text:
    COOPER PLAZA LTD., a Domestic Limited Partnership, Appellant, v. Mortimer NIDETCH and Martin Weinstein, as Trustee for the benefit of Mortimer Nidetch, et al., Appellees.
    No. 76-1873.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Noriega, Bartel, Chopp, Schatz, Levine & Shuford and Judy D. Shapiro, Miami, for appellant.
    Koltun & Tobias, Coral Gables, Blatt, Udell, Alterman & Lasky, Miami, for appel-lees.
    Before PEARSÓN, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Cooper Plaza, Ltd., a domestic limited partnership, seeks review of an order denying its motion to quash process and service' of process.

Plaintiff-appellees filed a complaint for breach of a partnership agreement against appellant Cooper Plaza, Ltd. and its general partners Leo Marks, Dorthy Marks and Un-isco First Project Corporation, N.V. Pursuant to Section 48.061(2), Florida Statutes (1975), the sheriff was directed to serve the summons and a copy of the complaint on Cooper Plaza by serving Mr. Hugo Za-morano, president of Unisco First Project Corporation, N.V., as general partner for Cooper Plaza. The return of service indicated that the complaint and summons had been served on Hugo Zamorano as general partner of Cooper Plaza. Thereafter, Za-morano appeared and moved to quash service of process which had issued purporting to serve him as a general partner on the grounds that he was not and is not a general partner of Cooper Plaza. Cooper Plaza also appeared specially to contest jurisdiction by challenging the service of process. Following oral argument on the issues, the trial judge denied the motions to quash process and Cooper Plaza perfected this appeal.

Clearly the return of service which purports to have served Zamorano as a general partner of Cooper Plaza, Ltd. is improper and, accordingly, the order of denial is reversed. Further, we remand the cause to the trial court to temporarily abate the action and grant appellees the right within a reasonable period of time to have the return of service corrected.

Reversed and remanded.

      . “48.061 Service on partnerships
      sfc sf: sjs sfs sf: sf:
      “(2) Process against a domestic limited partnership shall be served on any general partner and is as valid as if served on each individual member thereof. After service on any general partner, plaintiff may proceed to judgment and execution against the limited partnership and all of the general partners individually. Service of process may be made under §§ 48.071 and 48.21 on limited partnerships.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida ex rel. MERCY HOSPITAL, INC., a Florida Corporation, Relator, v. The Honorable Harold VANN et al., Respondents.
    No. 76-2285.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.

      Thornton, Dougherty & Conroy and John Edward Herndon, Jr., Miami, for relator.
    Stuart L. Simon, County Atty. and Jon I. Gordon, Asst. County Atty., for respondents.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

This court was presented with a petition for the issuance of an alternative writ of mandamus by Mercy Hospital, Inc. The burden of the petition was that the hospital, as defendant in a medical liability mediation proceeding, pursuant to Section 768.-133, et seq., Florida Statutes (1975), was being deprived of the benefit of that law by the action of the circuit judge. The petition alleged a clear legal right in the relator to an order of the circuit court directing the panel to proceed under the above cited law.

The alternative writ was issued and the only response filed thereto was by the circuit judge, which stated:

“ . . .in the event this Court determines that his Order of November 22, 1976 . . . is in error and that the Medical Mediation Panel, of which he is a member, does possess jurisdiction pursuant to Chapter 768 of the Florida Statutes, he will most respectfully comply with this Court’s Opinion without the necessity of the issuance of an Alternative Writ of Mandamus.”

The uncontroverted allegations of the petition are, in salient part, as follows:

“2. On or about October 21, 1975, Respondents ESTHER and GUSTAVO CASTANEDA, pursuant to Florida Statutes Section 768.133, filed a complaint and claim for Medical Mediation against the Relator, MERCY HOSPITAL, INC., and served the same on October 30,1975.
* * * * * *
“3. Pursuant to the requirements of Section 768.133 of the Florida Statutes, the Relator answered the claim for medical mediation within the prescribed time period.
“5. On or about January 23, 1976, THE HONORABLE HAROLD VANN, Respondent herein, and Judicial Referee of the Panel, entered an Order appointing Respondents ALAN JOEL REICH and BARRY L. GARBER as the remaining members of the Respondent Panel.
S(C * i}t ‡ * *
“6. On or about March 1, 1976, the aforesaid Respondents, ESTHER and GUSTAVO CASTANEDA filed with the Panel a Motion to Stay the Proceedings then currently pending.
* * * * * *
“7. On or about March 4, 1976, the Respondent, THE HONORABLE HAROLD VANN, entered an Order staying the proceedings pending a determination by the Supreme Court of Florida as to the constitutionality of Section 768.133 et seq. of the Florida Statutes.
S}{ ífc sf: ¡{! * *
“8. Subsequent to the Florida Supreme Court decision of Carter vs. Spark-man, 335 So.2d 802 (Fla.1976), which determined the constitutionality of Section 768.133 of the Florida Statutes, the Relator, MERCY HOSPITAL, filed a Motion to Dissolve the Order staying the proceedings on or about October 29, 1976.
* * * * Jf5 *
“9. On or about November 22, 1976, the Respondent, THE HONORABLE HAROLD VANN, signed an Order stating that the Mediation Panel was without jurisdiction in Medical Mediation Case No. 75/40 on the ground that the case had been pending for a period of longer than ten months.”
* * * * * *

This court having determined upon the issuance of the alternative writ that the petition made a prima facie case and the factual matters therein contained having been admitted by the respondents and the respondent judge having further certified his desire to follow the directions of this court, it is incumbent upon us, by this opinion, to set forth the duty of the respondent and the basis for our decision herein. See State ex rel. Lawler v. City of West Palm Beach, 125 Fla. 626, 170 So. 697, 699 (1936).

It is clear that the trial judge, in refusing to proceed with the arbitration, felt that the following section of the law forbade him to proceed:

“(3) The clerk shall, with the advice and cooperation of the parties and their counsel, fix a date, time, and place for a hearing on the claim before the hearing panel. The hearing shall be held within 120 days of the date the claim was filed with the clerk unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed 6 months from the date the claim is filed. If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with law.” [Emphasis added]
Section 768.133(3), Florida Statutes (1975)

The circuit judge who has by his own action in the stay order and over the objection of the defendant rendered the progress of the mediation panel impossible, has a duty now to proceed with the cause based upon the concept that a party (in this case, the hospital) may not be deprived of a valuable legal right without due process of law. See the general proposition of law in Brooks v. Owens, 97 So.2d 693 (Fla.1957). It can be said that the hospital could have appealed the order staying the proceeding, but we find no clear right to appeal from an order of a circuit judge made in his capacity as the judicial referee and presiding member of the hearing panel. See Section 768.133(1), Florida Statutes (1975). Therefore, we hold that the hospital was deprived of its right to mediation by the unauthorized act of the circuit judge in staying the mediation. While it is apparent from the reading of the law that it was the intention of the legislature that the circuit judge should have the authority to supervise and direct the proceedings, there is no authority to stay or otherwise alter the time allowed for the arbitration.

We conclude that the circuit judge incorrectly held that his own order, entered upon the motion of the claimants, barred the proceedings. It was his duty to proceed with the mediation proceeding because the statute grants to the mediation panel a definite period of time within which to do its work, and the panel has been deprived of •the period specified in the statute by the action of the circuit judge. There still adheres to the mediation panel the period of time which remained at the time that the circuit judge entered the unauthorized stay order. There is no doubt that the time limitations in the statute are binding and must be rigorously enforced. We, therefore, limit this holding to the specific facts of this case.

The respondent circuit judge having graciously certified to us his decision to proceed in accordance with the directions of this court without the need for the issuance of a peremptory writ, this proceeding is, by the rendition of this opinion, terminated. The petition is dismissed and the alternative writ quashed in full confidence that upon receiving this opinion, the respondent circuit judge will proceed in accordance with the views herein expressed.

It is so ordered.

      . This statute is now § 768.44 et seq., Fla.Stat. (1976 Supp.). See also In re Transition Rule 21, 316 So.2d 38 (Fla.1975).

      . As to the constitutionality of this statute, see Carter v. Sparkman, 335 So.2d 802 (Fla.1976).


author: McNULTY, Judge.

text:
    Marjorie B. MESSER, Appellant, v. Addison L. MESSER, Appellee.
    No. 76-273.
    District Court of Appeal of Florida, Second District.
    March 2, 1977.
    George N. Meros and John M. Edman, of Meros, Coit, Wells, Edman & Meros, St. Petersburg, for appellant.
    Erma R. Hallett and Thomas J. Collins, of Collins, Hallett & Ford, St. Petersburg, for appellee.
   McNULTY, Judge.

In this dissolution of marriage proceeding appellant/wife appeals from a Supplemental Judgment determining property rights rendered on January 26, 1976. A final judgment of dissolution of marriage had previously been rendered on July 18, 1975, with the court retaining jurisdiction for further orders and judgments pertaining to property rights.

The Supplemental Judgment appealed from decreed that the marital residence remain in the names of the parties as tenants in common; that appellee/husband pay appellant/wife the sum of $650 per month as rehabilitative alimony for a period of three years or until she remarries or either party dies; and that the husband shall pay all outstanding debts incurred by the wife for her necessities prior to the date of the final judgment of dissolution of marriage.

The primary thrust of the wife’s appeal is that the trial court abused its discretion in failing to award permanent alimony. We agree.

The parties lived together as man and wife for 31 years. As of the date of the judgment appealed from the husband was 60 years of age and was a practicing physician in St. Petersburg. The wife was 58 years of age with some physical and emotional impairment. She became a registered nurse in 1939 and had worked for four years as such before her marriage to appel-lee and for about five months thereafter. However, she is not licensed to work as a registered nurse in the State of Florida, nor has she had any supplemental nursing training since 1939. She has not been employed in any capacity besides her duties as homemaker, wife and mother since 1943. Two children were born of this marriage, both of whom are now adults and self-supporting.

At the time the parties married in 1943, their total assets were approximately 3 or 4 thousand dollars. Thereafter, during the course of the marriage, appellee/husband accumulated a net worth of $319,000. Ap-pellee estimated that his income for the year 1975 would be approximately $65,000, the same as for the year 1974. On the other hand, the wife’s assets, with the exception of her undivided one-half interest in the marital home (approximately $30,000) which the trial court’s judgment did not disturb, were $547. The wife estimated her weekly expenses to be $320, with no income.

On these facts, we hold that the trial court erred in failing to provide for permanent alimony to appellant.

To begin with, the fact that the legislature authorized rehabilitative alimony did not do away with permanent alimony. In a proper case, permanent alimony is still desirable and lawful.

Secondly, the wife is still entitled to live in a manner reasonably commensurate with the standard established by the husband during marriage, as we said in Lash v. Lash; and even if she rehabilitates herself as a nurse her standard of living obviously, on this record, cannot rise to that of a successful physician’s wife.-

It is thus clear that the instant case is one in which equity requires an award of permanent alimony to the wife, as opposed to only rehabilitative alimony. The need has been amply demonstrated and the ability on the part of appellee to pay is not seriously in dispute.

Concerning the rehabilitative alimony, we note that the whole concept thereof presupposes the potential for self-support; and, without this capacity, there is nothing to which one can be rehabilitated. In light of the facts that appellant is 58 years old, has some physical and emotional impairment, has not worked as a registered nurse since 1943 and is not presently licensed as such by the State of Florida, there is little likelihood that appellant will be rehabilitated to support herself within three years; certainly not in her accustomed stratum. It is more likely that appellant is now less equipped for work than she was when she became married to appel-lee in 1943. Moreover, the fact that the wife stated that she was not interested in procuring employment (alluded to with apparent disapproval by the trial court in the Supplemental Judgment) would not of itself disqualify her from her entitlement to permanent alimony.

Finally, appellant argues that the trial court erred in concluding that it could not award the husband’s interest in the jointly owned home as lump sum alimony. It appears from the findings of fact and law as recited in the Supplemental Judgment that the trial court may have been of the opinion that it was without authority to award the husband’s undivided interest in the jointly owned marital home as lump sum alimony. This is not so, of course, and in a proper case the trial court would certainly have the authority to make such an award in the form of lump sum alimony. Therefore, in light of our holding that the trial court erred in not awarding permanent alimony in the instant case, the trial court on remand will have the opportunity to revisit the question of permanent alimony in all of its forms and ramifications, including the possible contribution thereto of an award of the husband’s interest in the jointly owned home.

The other points raised by appellant lack merit and do not require comment.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN, C. J., and HOBSON, J., concur.

      . See Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Gall v. Gall, 336 So.2d 10 (Fla.2d DCA 1976); Dash v. Dash, 284 So.2d 407 (Fla.3d DCA 1973); Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974)

      . 307 So.2d 241 (Fla.2d DCA 1975).

      . See, e. g., Reback v. Reback, 296 So.2d 541 (Fla.3d DCA 1974); Patterson v. Patterson, 315 So.2d 104 (Fla.4th DCA 1975); Lash v. Lash, supra, n. 2.

      . Cf. Sommese v. Sommese, 324 So.2d 647 (Fla. 1st DCA 1976).

      . See Steinhauer v. Steinhauer, 252 So.2d 825 (Fla.4th DCA 1971).


author: HOBSON, Judge.

text:
    MID-STATE CONTRACTORS, INC., Appellant, v. HALO DEVELOPMENT CORPORATION, Appellee.
    No. 76-368.
    District Court of Appeal of Florida, Second District.
    March 2, 1977.

      Bruce A. Campbell, of Barrs, Melendi, Williamson & Levens, Tampa, for appellant.
    A. G. Spicola, Jr., Tampa, for appellee.
   HOBSON, Judge.

In this case .appellant/plaintiff, Mid-State, challenges the decision below dismissing its first amended complaint with prejudice for failure to state a cause of action. The trial court held that no mechanics’ lien foreclosure action could be maintained as Mid-State failed to include in its claim of lien a specific amount remaining unpaid as required by Section 713.-08(l)(g), Florida Statutes (1975).

It is undisputed that Mid-State was a subcontractor on a project operated by defendant Halo. It is also uncontroverted that labor and materials were furnished by Mid-State for work on that project. Following cessation of work on the project, the origin of which is not in dispute here, Mid-State filed its claim of lien and filed suit to foreclose its mechanics’ lien. The claim of lien followed the form set out in Section 713.08(3), but stated the amount remaining unpaid as “between 30,000.00 and/or 56,-500.00.”

Thereafter Halo filed a motion to dismiss in that the complaint failed to allege a specific amount due and the claim of lien failed to meet statutory requirements by failing to set forth the amount remaining unpaid. The motion was granted and Mid-State in its first amended complaint stated that $39,200.00 remained unpaid. Halo again filed a motion to dismiss, asserting successfully that no foreclosure action was maintainable due to the defect in the claim of lien.

Our inquiry focuses on the question of whether the claim of lien in the case sub judice was sufficient to afford the defendant herein the requisite notice to frame a response to the imposition of this mechanics’ lien and resulting foreclosure action. In answering this question in the affirmative we are influenced by the language contained in the pertinent parts of the statute. First, Section 713.08(l)(g) provides in part,

“ . . . [A] claim of lien
shall state:
(g) The amount unpaid the lienor for such labor or services or materials.”

Following that directory language Section 713.08(3) sets forth a form which contains all the required elements of subsection (1). The language utilized to introduce this form in subsection (3) is, “Such claim of lien shall be sufficient if it is in substantially the following form . . . ” (emphasis supplied).

Even more persuasive is the language found in subsection 4(a) of Section 713.08, which states:

“The omission of any of the foregoing details or errors in such claim of lien shall not, within the discretion of the trial court, prevent the enforcement of such lien as against one who has not been adversely affected by such omission or error.”

The conclusion to be drawn from these quoted portions of Section 713.08 is that technical fulfillment of these statutory components in a claim of lien, although desirable, is neither required nor can it form the basis of a denial of enforcement of an otherwise valid lien where the lienor substantially complies with the prescribed requisites. Cf. Adobe Brick and Supply Co. v. Centex-Winston Corp., 270 So.2d 755 (Fla. 3d DCA 1972); Yell-For-Pennell, Inc. v. Joab, Inc., 243 So.2d 438 (Fla. 3d DCA 1971); George J. Motz Construction Corp. v. Coral Pines, Inc., 232 So.2d 441 (Fla. 4th DCA 1970). As a caveat to this proposition, such liens, despite defects in form, are valid unless in the discretion of the trial judge some prejudice is shown to the owner or other parties affected. Adobe Brick and Supply Co., supra; Florida New Deal Co. v. Crane Co., 142 Fla. 471, 194 So. 865 (1940).

In this case we believe that the claim of lien was sufficient to apprise the appellee Halo of the approximate amount owed by it to Mid-State. Although the claim of lien was not complete in itself, Mid-State did, by its amended complaint, specifically identify the amount owed to it by Halo. We believe that this result best fulfills the standards for interpretation under the Mechanics’ Lien Law. As succinctly stated in Centex-Winston Corporation v. Crown Paint, Inc., 294 So.2d 694, 695 (Fla. 3d DCA 1974).

“ . . . [T]he mechanic’s lien law is remedial in nature and is liberally construed to protect the laborer and the materialman. Crane Co. v. Fine, Fla.1969, 221 So.2d 145; Art Berman Concrete, Inc. v. Sey Construction Corp., Fla.App.1971, 247 So.2d 791.”

Upholding this claim of lien also comports with the general rule regarding the sufficiency of statements as to the amount owed under mechanics’ lien statutes. As noted in 57 C.J.S. Mechanics’ Liens § 153 (1948):

“ . . . [T]he notice, claim, or statement must set forth the amount due claimant, the amount claimed to be due, the amount unpaid to the lienor, the amount of the demand, or must fairly apprise the owner and the public of the nature, . . . and amount of the demand asserted as a lien . . . [I]t is sufficient if from the whole statement, including all the papers filed, the amount due clearly appears, although the language used is not as apt or accurate as might be desirable." (emphasis supplied)

See also: 53 Am.Jur.2d, Mechanics’ Liens, §§ 221, 227 (1970).

Such a result does not sanction, as asserted by the defendant Halo, any and all errors, no matter how gross, in a claim of lien. In fact, such omissions or errors may, according to Section 713.08(4)(a) be fatal to the maintenance of a mechanics’ lien action if the party against whom such lien is asserted can show it has been adversely affected by such omission. Florida New Deal Co., supra; O’Brian Associates of Orlando, Inc. v. Tully, 184 So.2d 202 (Fla. 4th DCA 1966). In speaking to the discretion vested in the trial court when reviewing an error or omission in the claim of lien under subsection (4)(a), our sister court from the Third District has stated in Adobe Brick and Supply Co., supra,

“ ■ ■ ■ [T]he discretion conferred upon the court under subpara-graph (4)(a) should not be exercised to deny enforcement to a materialman’s lien against one who has not been adversely affected by such omission or error. The discretion there granted to the court is to enforce the lien in such circumstance.”

270 So.2d 755, 759.

Here the order from which this appeal is taken reflects no specific finding as to whether Halo was adversely affected by Mid-State’s failure to specify the amount owed in its claim of lien. Therefore, while we hold that the error herein was not in itself sufficient to bar enforcement of his mechanics’ lien, we remand to the trial court for a determination of whether the error adversely affected the appellee Halo and whether such prejudice, if any, should bar enforcement of this lien. We note that any showing of an adverse effect must appear from a preponderance of the evidence. Adobe Brick and Supply Co., supra.

Accordingly, the judgment is reversed and remanded for further proceedings consistent with the views expressed herein.

REVERSED and REMANDED.

BOARDMAN, C. J., and SCHEB, J., concur.


author: SCHEB, Judge.

text:
    HERITAGE INSURANCE COMPANY OF AMERICA, a corporation, Appellant, v. Rebecca Sue CANTER, as Administratrix of the Estate of Roger Canter, Deceased, and Jacky Lynn Mitchell, Appellees.
    No. 76-1314.
    District Court of Appeal of Florida, Second District.
    March 2, 1977.
    Ramon Carrion and Patrick F. Sprague, Tampa, for appellant.
    Harry M. Hobbs, Tampa, for appellee Rebecca Sue Canter.
   SCHEB, Judge.

This case presents the question of whether the “use of other automobiles” provision in a liability insurance policy affords protection to an insured operating someone else’s motorcycle. The trial court entered judgment for the plaintiff/appellee Canter Estate, holding this provision furnished coverage. Defendant/appellant Heritage appeals. We reverse.

Defendant Heritage issued an automobile liability insurance policy to Jacky Lynn Mitchell. Mitchell was involved in an accident on May 13, 1974, while operating a motorcycle owned by Cecil Fields. Roger Canter, who was riding as a passenger on the motorcycle was killed in the accident. When Canter’s estate sued Mitchell, the issue of coverage was raised by Heritage. Once the trial court ruled as a matter of law that Heritage’s policy covered Mitchell, a consent judgment was entered for the policy limits of $10,000 against both Mitchell and Heritage. Heritage, which supplied counsel to Mitchell in the trial court, filed this appeal on its behalf but did not appeal on behalf of its insured.

The relevant part of the policy issued by Heritage to its insured Mitchell stipulated:

“Use of Other Automobiles. If the named insured . . owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy . . . with respect to said automobile applies with respect to any other automobile . .

There is no definition of “automobile” in the policy applicable to the use of other automobiles coverage.

Recently, the Fourth District Court of Appeal in Florida, Farm Bureau Mutual Ins. Co. v. Pitzer, 330 So.2d 499 (Fla.4th DCA 1976), considered the question now before us. There, our sister court held that under an identical policy provision, where the word “automobile” was not defined, a motorcycle was not “any other automobile” and the insured was not covered by the policy. We agree that the word “automobile” as used in the context of the “use of other automobile” provision before us does not comprehend use of a motorcycle by the insured.

Accordingly, the judgment appealed from is vacated as to Heritage and the trial court is directed to enter a judgment in favor of the defendant Heritage.

GRIMES, Acting C. J., and OTT, J., concur.


author: GRIMES, Judge.

text:
    MADAX INTERNATIONAL CORPORATION, Appellant, v. DELCHER INTERCONTINENTAL MOVING SERVICES, INC., Appellee.
    No. 76-1614.
    District Court of Appeal of Florida, Second District.
    March 2, 1977.

      Julian M. Piper of Goldner, Marger, Davis & Piper, P. A., St. Petersburg, for appellant.
    John E. Karvonen of Piper, Pennell, Kar-vonen & Lewis, St. Petersburg, for appellee.
   GRIMES, Judge.

This interlocutory appeal involves the question of jurisdiction over the person of the defendant corporation and the propriety of ordering the nonresident president of the defendant to appear in St. Petersburg for the taking of his deposition.

The following facts may be gleaned from the complaint, an affidavit filed in support thereof and certain answers to interrogatories. The plaintiff, Delcher Intercontinental Moving Services, Inc. (Delcher), is a Florida corporation having its principal office in St. Petersburg. The defendant, Ma-dax International Corporation (Madax), is an Oregon corporation which does business in Europe. Gerald D. MacDougall and Jeannine M. MacDougall, his wife, who have been joined as defendants in the suit, were living in St. Petersburg in June of 1975. At that time, Mr. MacDougall, who was vice president of Madax, was making arrangements to move himself and his family from St. Petersburg to Belgium. He obtained quotations from Delcher on the cost of moving his furniture and automobiles to Belgium. Madax then sent a telex from Germany to Delcher in St. Petersburg in the form of a purchase order requesting the shipment of the MacDougalls’ furniture and automobiles to Belgium upon the terms of the quotation. Delcher moved the items to New Orleans where they were transshipped to Belgium. Delcher invoiced Madax based upon the terms of the purchase order, but Madax has refused to pay the invoice.

Delcher first sought to obtain jurisdiction over Madax by serving MacDougall who has now moved back to Florida. MacDou-gall filed an affidavit that he is no longer vice president of the corporation. Delcher then obtained an alias summons and had it served upon Madax’s designated agent for service of process in Oregon. An affidavit of the official who made the service appears in the file. Madax then filed a motion to dismiss asserting lack of jurisdiction over the person.

In the meantime, Delcher had noticed the deposition of William G. Moore, the president of Madax who lives in Germany, to be taken in St. Petersburg. He failed to appear for his deposition at the appointed time. Following a hearing, the court denied the motion to dismiss on lack of jurisdiction and directed Mr. Moore to appear in St. Petersburg for his deposition.

We believe that the court properly concluded that jurisdiction over Madax had been obtained under Sections 48.193 and 48.194, Florida Statutes (1975). These statutes read in pertinent part as follows:

“48.193 Acts subjecting persons to jurisdiction of courts of state
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(g) Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.
(2) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in § 48.194. The service shall have the same effect as it it had been personally served within this state.
(3) Only causes of action arising from acts or omissions enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section, unless the defendant in his pleadings demands affirmative relief on other causes of action, in which event the plaintiff may assert any cause of action against the defendant, regardless of its basis, by amended pleadings pursuant to the rules of civil procedure.
# * Sfc * *
“48.194 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.”

Accepting the facts stated above to be true, the parties entered into a contract which had been breached by Madax’s failure to perform acts required by the contract to be performed in this state, to wit: the payment for the services rendered by Delcher. Where there is an express promise to pay and no place of payment is stipulated, the debtor must seek the creditor, and the cause of action accrues where the default occurred. M. A. Kite Company v. A. C. Samford, Inc., 130 So.2d 99 (Fla.1st DCA 1961). In suits for money owed brought either in special or general assump-sit in which no place of payment was agreed upon, the cause of action accrues in the county of residence of the payee where the default in payment occurred. Saf-T-Clean, Inc. v. Martin-Marietta Corporation, 197 So.2d 8 (Fla. 1967). While the foregoing cases involved questions of venue, their rationale is controlling, because in a suit on a contract the cause of action accrues where the breach occurs. Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934).

The question of whether the defendant is “conducting a business or business venture” in Florida is irrelevant because service is being made under Section 48.193 rather than Section 48.181. Unlike Georgia Sav. & L. Serv. Corp. v. Delwood Estates, Inc., 315 So.2d 237 (Fla.1st DCA 1975), the record in this case clearly reflects the applicability of the statute.

On the other hand, we think the court erred in requiring Mr. Moore to travel to St. Petersburg for his deposition. This is not a case in which the deponent or the party he represents is seeking affirmative relief in the Florida courts. See Kaufman v. Kaufman, 63 So.2d 196 (Fla. 1952). Absent extraordinary circumstances not shown to exist in this record, the deposition of a nonresident officer of a nonresident corporate defendant which is not seeking affirmative relief should be taken at the deponent’s place of residence. See Godshall v. Hessen, 227 So.2d 506 (Fla.3d DCA 1969). In view of the alternative methods of discovery provided by the rules of civil procedure, it may well be that the need for taking this deposition will be obviated.

AFFIRMED in part; REVERSED in part.

BOARDMAN, C. J., and OTT, J., concur.


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. George J. SCHWARZBAUER, Appellee.
    No. 76-1696.
    District Court of Appeal of Florida, Second District.
    March 2, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Anderson & Campbell, New Port Richey, for appellee.
   OTT, Judge.

The State appeals the granting of Appel-lee’s Motion to Suppress Evidence by the trial court. We reverse.

The affidavit for the search warrant stated that a confidential informant had purchased drugs from the Appellee “within the last five days.” The trial court found this not to be sufficiently specific as required by our decision in State v. Mills, 267 So.2d 44 (Fla. 2d DCA 1972). In that case no allegation was included in the affidavit to fix the date when the alleged illegal activity occurred. In this case the illegal activity is narrowed to the five day period immediately preceding the application.

Though this is a novel issue in this jurisdiction, courts of other jurisdictions have taken the view that when “within” language is used with a specified span of time, e. g., “within the last three days,” a sufficiently clear and definite statement has been made provided the period encompassed is not too remote in time for a search warrant to issue. Annot. 100 A.L.R.2d 525 (1965). Five days has not been held to be too remote by the courts of this state. Hamelmann v. State, 113 So.2d 394 (Fla. 1st DCA 1959).

In the case under consideration the time of the alleged illegal activity is narrowed to a five day period. This coupled with the other facts alleged in the affidavit demonstrate to us that there was probable cause to issue the search warrant. Therefore, it was error to grant Appellee's Motion to Suppress Evidence.

GRIMES, Acting C. J., and SCHEB, J., concur.


author: MILLS, Judge.

text:
    George COMEAU, Appellant (Plaintiff), v. SAFECO INSURANCE COMPANY OF AMERICA, Appellee (Defendant).
    No. CC-147.
    District Court of Appeal of Florida, First District.
    March 3, 1977.

      Hal S. Castillo, of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appellant.
    Henry H. Graham, Jr. and Richard M. Hart, Jr., of Howell, Howell, Liles & Braddock, Jacksonville, for appellee.
   MILLS, Judge.

By this appeal, we are called upon to construe a part of the Florida Automobile Reparations Act, subsection (4) of Section 627.736, Florida Statutes (1975), which provides that personal injury protection benefits shall be primary, “except that benefits received under any workmen’s compensation law shall be credited against the benefits provided by subsection (1)”. Subsection (1) limits the benefits to $5,000.00.

Comeau contends that subsection (4) requires a personal injury protection insurer to supplement workmen’s compensation benefits until the insurer has paid its limits of $5,000.00. Safeco contends that the subsection requires an insurer to supplement workmen’s compensation benefits until the insured has been paid, both from workmen’s compensation benefits and from the insurer, $5,000.00.

While driving a tractor-trailer in the course of his employment, Comeau was involved in an accident and suffered bodily injuries. Safeco provided him with $5,000.00 statutory personal injury protection benefits. The workmen’s compensation carrier of Comeau’s employer paid him weekly compensation of $105.00. Safeco paid him the difference of $160.36 a week for lost wages until 2 January 1976, at which time Safeco advised him that no further benefits would be paid because the workmen’s compensation benefits plus personal injury protection benefits paid to him exceeded the $5,000.00 statutory limitation.

Comeau filed a declaratory judgment action against Safeco which resulted in the trial court ruling that subsection (4) only required Safeco to supplement workmen’s compensation benefits until Comeau had been paid, both from workmen’s compensation benefits and personal injury protection benefits, a total of $5,000.00. It is from this judgment that Comeau appeals.

Where the language of a statute is plain and unambiguous, conveying a clear and definite meaning, a court will not apply its interpretation. Wagner v. Botts, 88 So.2d 611 (Fla.1956). The legislature clearly and plainly stated in subsection (4) that workmen’s compensation benefits are credited against the statutory $5,000.00 limitation. It is obvious that the legislature intended that when workmen’s compensation benefits are received for the same items of loss and expense under any workmen’s compensation law, the total aggregate limit of personal injury protection benefits available with respect to such bodily injury shall be reduced by the amount of workmen’s compensation benefits received.

Safeco’s contention and the trial court’s interpretation of subsection (4) were correct.

The judgment is affirmed.

BOYER, C. J., and McCORD, J., concur.


text:
    STATE of Florida, Appellant, v. Richard Lee EBY, Appellee.
    No. 75-1769.
    District Court of Appeal of Florida, Second District.
    March 4, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Herbert T. Schwartz, Gainesville, for ap-pellee.
   McNULTY, Judge.

The state appeals from an order granting appellee post-conviction relief under Fla.R. Crim.P. 3.850 for the failure of appointed trial defense counsel to present evidence relating to certain possible defenses. We reverse.

On January 1,1972, appellee was charged by indictment with two counts of first degree murder, he having allegedly shot and killed his wife and her paramour while they were engaged in sexual intercourse. A trial by jury before Circuit Judge Oliver Maxwell resulted in a verdict of guilt on both counts with a recommendation of mercy. Appellee was thereafter adjudged guilty and sentenced to life imprisonment. He took a direct appeal asserting error in the failure of the trial court to give a certain “heat of passion” instruction as requested by defense counsel and this court affirmed without opinion.

On May 7,1973, appellee filed the instant motion alleging that he had been denied adequate defense by the failure of his court-appointed counsel, Everett Q. Jones, to assert several available affirmative defenses. After a hearing at which appellee was not afforded an opportunity to appear, Circuit Judge Laurence I. Goodrich denied the motion. This court reversed on the ground that appellee should have been present at the hearing to testify as to matters within his personal knowledge.

On remand, and following four days of new hearings (again before Judge Goodrich) on the motion, the court entered an order on November 13, 1975, granting the motion and awarding a new trial.

Relevant facts relating to the alleged “available” defenses at trial are as follows: In response to the prosecutor’s opening statement, defense counsel Jones made an opening statement that the defense would establish in evidence a relationship between appellee’s experiences as a prisoner of the Japanese in World War II and his apparent insanity at the time he committed the homicides. Counsel’s opening statement further suggested that the defense intended to establish by medical testimony a “heat of passion” theory of homicide.

The state’s case in chief then followed; and by its proof left little room for doubt that appellee killed his wife and her paramour while they were engaged in sexual intercourse. Among other evidence to this effect, the state presented an inculpatory statement or confession of the defendant made shortly after the homicides which was formally introduced by stipulation of the parties.

A defense motion for judgment of acquittal was denied at the close of the state’s case. The defense thereupon closed without calling appellee to testify and without producing any additional evidence before the jury. Appellee’s instant motion relies on that course of events in support of his basic contention that his appointed trial counsel did not adequately represent him.

At the evidentiary hearing on the instant motion, attorney Jones testified virtually without contradiction to the following. First, he felt after an initial interview with appellee that there was a good chance of gaining a manslaughter conviction on a heat of passion defense. However, after further investigation of the case, Jones questioned whether he could substantiate his heat of passion defense through competent medical testimony. Prior to trial, he had a discussion with Dr. Sprehe, a psychiatrist who had examined appellee. He testified at the hearing that Dr. Sprehe told him that it was his opinion that appellee received vicarious pleasure from seeing his wife having intercourse with other men and, further, that appellee had told him (Sprehe) that he had watched his wife and her lover for some four or five minutes prior to the actual shooting. Jones stated that he later talked to appellee but the latter denied what Dr. Sprehe had stated. (We interpose to point out, here, that in appellee’s admissions which were stipulated into evidence he himself stated that he may have watched the act of intercourse for as long as five minutes before getting the gun which was used to shoot them.) Further, Dr. Sprehe and Dr. Fesler agreed appellee was sane at the time of the offense.

Jones testified further that he thus determined prior to trial that there was no possible medical evidence which he could produce which would benefit appellee; but after discussing tactics with the appellee, he listed a number of witnesses, including medical witnesses, in an attempt to keep the state guessing.

Additionally, Jones stated that the confession statement made by defendant and stipulated into evidence during the state’s case as aforesaid was, in Jones’ opinion, essentially self-serving inuring to the benefit of appellee because appellee, while stating he shot the victims, made many statements tending to establish a defense of insanity. Even a cursory reading of that statement, with its rambling, paranoiac narration of appellee’s background, supports this conclusion. Thus Jones believed that the state had already placed the defense ease before the jury in a favorable manner without exposing appellee or the doctors to cross-examination.

Further, Jones was concerned about exposing appellee to cross-examination concerning a third drinking glass which through discovery Jones knew had been found in the bedroom where the crime was committed. In the face of all this, Jones advised appellee not to testify at trial but still left the ultimate decision to appellee personally. He then said appellee decided not to testify.

Jones also testified that he made his opening statement indicating that the jury would hear medical testimony. He wished to keep his options open; but after the state introduced the confession statement of appellee, he decided not to put on the medical testimony. He testified that he did not wish to prove premeditation for the state; and this consideration of strategy weighed heavily upon his decision not to call witnesses.

Dr. Sprehe and Dr. Fesler also testified. Each said that had he testified at trial he would have offered his medical opinion that appellee acted in the heat of passion and each was firm in his opinion that appellee’s acts were consistent with a person disassociated from reality and acting from passion, rage and anger.

In his order Judge Goodrich found that, by “not having a known available or reasonably ascertainable defense presented [heat of passion], appellee’s trial suffered a serious substantive deficit”, despite the fact that the judge considered Jones to be competent in terms of training and ability. The judge stated that the jury actually was left with only two choices: (1) not guilty of any crime or (2) guilty of first degree murder. Thus, the court granted a new trial. We think he was wrong.

To begin with, we point out that the argument relating to a “heat of passion” defense was settled in appellee’s direct appeal. A review of the record in that appeal reveals that a “heat of passion” jury instruction was in fact given and that such a defense was an issue at trial. Appellee’s principal contention in that appeal was that the standard charge given was inadequate and that the court erred in refusing a charge prepared by him. We rejected his contention.

Secondly, a decision not to raise certain possible defenses or call certain defense witnesses is ordinarily a matter of personal judgment and strategy within the prerogatives of defense counsel. As such, it is not a proper predicate for a collateral attack on the competence of counsel unless it is so irresponsibly exercised as to constitute “inadequate” representation. Here, the undisputed testimony of trial counsel revealed a deliberative, well-founded decision to pursue the course taken which, on its face, is not unreasonable nor irresponsible. No evidence was before the trial court to support a contrary finding; and neither second-guessing nor substituting the court’s own hindsight judgment for that of trial counsel will suffice to reject as “inadequate” the role of trial counsel.

Finally, contrary to the opinion of the trial judge as stated in his order granting the relief sought by appellee, the trial jury was not left by defense counsel with only two choices: not guilty of any crime or guilty of first degree murder. The record on the original appeal before this court affirmatively shows that the trial jury was instructed on all degrees of homicide, including instructions on the defense of insanity, justifiable homicide, excusable homicide (which includes the “heat of passion” instruction) and manslaughter precisely as contained in the Florida Standard Jury Instructions in criminal cases as adopted by our Supreme Court. The jury in the instant case was appropriately instructed and our affirmance on those grounds in the original appeal settled the matter.

We are of the opinion therefore, and so hold, that the trial judge erred as a matter of law in finding that appellee’s trial “suffered a serious substantive deficit” by not having “a known available or reasonably ascertainable defense presented.”

In view whereof, the order granting ap-pellee’s motion for post-conviction relief and granting a new trial should be, and it is hereby, reversed.

The cause is remanded with directions to set aside the order and to reinstate and leave standing the convictions, adjudications of guilt and sentences of confinement entered against appellee herein.

BOARDMAN, C. J., and SCHEB, J., concur.

      . Eby v. State, 276 So.2d 566 (Fla.2d DCA 1973).

      . Eby v. State, 306 So.2d 602 (Fla.2d DCA 1975).

      . n. 1, supra.

      . See Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974); Mims v. Wainwright, 403 F.Supp. 552 (M.D.Fla.1975); see also Fuller v. Wainwright, 238 So.2d 65 (Fla.1970).


text:
    Jerry A. MARGOLIN, M.D., Appellant, v. MORTON F. PLANT HOSPITAL ASSOCIATION, INC., a nonprofit Florida Corporation, et al., Appellees.
    No. 76-776.
    District Court of Appeal of Florida, Second District.
    March 4, 1977.

      F. Wallace Pope, Jr., of Johnson, Blakely & Pope, P. A., Clearwater, for appellant.
    Emil C. Marquardt, Jr. and James A. Martin, Jr., of McMullen, Everett, Logan, Marquardt & Cline, P. A., Clearwater, for appellees, Morton F. Plant Hospital Ass’n, Inc., Roger S. White and Paul J. Straub, M.D.
    J. Michael Ford, of Blake & Ford, P. A., Tampa, for appellees, Cooksey, Rackstein, Kottmeier, Turbin, Burns and Dabney.
   GRIMES, Judge.

This is an appeal .from the dismissal of a complaint which alleged that the plaintiff/doctor was prevented from conducting surgery at Morton Plant Hospital in Clear-water by being improperly deprived of the necessary anesthesia services.

The complaint was couched in four counts. We concur with the dismissal of Counts II, III and IV and need not discuss the substance of these counts. Count I is another matter.

The essential allegations of Count I may be summarized in the following manner. The plaintiff is a licensed physician engaged in the practice of ear, nose, throat and cosmetic surgery in Pinellas County. He is a member in good standing of the medical staff of Morton Plant Hospital. The defendant, Roger White, is the Executive Director and Administrator of the hospital, and the defendant, Dr. Straub, is president of the hospital’s medical staff. The other defendants, characterized as the group, are licensed physicians who practice anesthesiology as members of the hospital staff. The defendants comprising the group are the only anesthesiologists on the Morton Plant Hospital staff and are alleged to be exercising absolute control over the availability and rendering of general anesthesia services to all surgeons and their patients at the hospital.

The plaintiff alleges that the admission of his patients into the surgical facilities of Morton Plant Hospital, and the obtaining of general anesthesia services are essential to his practice as a surgeon in Clearwater. He says that since 1973 until the happening of the events alleged in the complaint, all of his patients who required general anesthesia were treated at Morton Plant Hospital. Almost 50% of the plaintiff’s surgical patients were referred to him by other physicians on the staff of the hospital. He further alleges that for the past several years he has performed surgery on hundreds of patients at the hospital during which members of the group have routinely and regularly rendered general anesthesia services. Yet, he contends that subsequent to March 28, 1975, the members of the group have wantonly and maliciously combined and conspired with each other and with the defendants, White and Straub, to boycott the plaintiff and his patients by denying them the availability of anesthesia services and thereby the use of the hospital’s surgical facilities. The plaintiff alleges that by virtue of their unique position as the only anesthesiologists on the hospital staff and their concerted refusal to provide him with general anesthesia services, the members of the group have interfered with the contractual rights between him and his patients. The purpose is said to be to bring about the plaintiff’s financial ruin by driving him out of his established practice of medicine in Clearwater.

Certain specific acts of the defendants are alleged in paragraph 13 as follows:

“13. In the furtherance of said combination and conspiracy, the below-described defendants, without cause or justification, wilfully, wantonly and maliciously undertook the following concerted, overt acts:
A. On or about April 18, 1975, the GROUP collectively refused to render any general anesthesia services to plaintiff or his patients.
B. On or about April 18, 1975, the defendants, STRAUB and WHITE, acting in concert on behalf of themselves and the GROUP, cancelled all of plaintiffs surgery cases which had previously been scheduled for April 21, 22 and 23, 1975, at MPH, refused to permit plaintiff to perform plaintiff’s scheduled surgery at MPH, and refused to permit plaintiff to admit to MPH general anesthesia patients in the future.
C. On April 21, 1975, the defendants, WHITE, STRAUB, BURNS, DABNEY and TURBIN, acting in concert and on behalf of themselves and the other defendants hereto, met with plaintiff and informed him that the GROUP’S refusal to render general anesthesia services to plaintiff and his patients and the restrictions against plaintiff’s use of the surgical facilities of MPH would continue until such time as a lawsuit filed on March 28, 1975, by plaintiff’s wife, Dr. Ann Margo-lin, in Federal Court in Tampa, Florida, against all defendants but STRAUB was dismissed, and general anesthesia services from the GROUP would be available to plaintiff and his patients only after said action by Dr. Ann Margolin was dismissed.
D. On May 11, 1975, the defendants, WHITE and STRAUB, acting in concert on behalf of themselves and the GROUP, discharged plaintiff’s patient, Kevin Jarrett, who had been admitted to MPH for surgery requiring general anesthesia services, and the GROUP collectively refused to render anesthesia services for plaintiff’s patient, Kevin Jarrett.
E. The GROUP continues to boycott plaintiff and his patients by refusing plaintiff and his patients general anesthesia services.
F. All defendants, on dates and times presently unknown to plaintiff, have since March 28, 1975, combined and conspired to block and prevent the appointment of at least two additional M.D. anesthesiologists to the staff of MPH, thereby preserving the absolute control of the GROUP over the rendering of anesthesia services at MPH and continuing the effectiveness of the boycott directed against plaintiff and his patients by preventing other anesthesiologists not controlled by the GROUP from becoming qualified to render services to plaintiff and his patients at MPH.”

The plaintiff concludes that as a result of the conspiracy he has been denied the opportunity to practice any surgery at Morton Plant Hospital. As a consequence, he seeks compensatory and punitive damages for lost surgical patients, the decrease in the number of referral patients, the denial of the right to practice a vital portion of his profession, and the damage to his professional reputation and ability to earn a living.

In support of his claim to a cause of action, the plaintiff relies heavily upon Snipes v. West Flagler Kennel Club, Inc., 105 So.2d 164 (Fla.1958). The complaint in that case alleged that five racetrack corporations and others connected with them had wrongfully conspired to refuse to permit him to race his greyhounds at their tracks. The complaint further alleged that the defendants, through their force of numbers and economic stature, had intimidated other dog tracks in the state and made them unwilling partners in the boycott and conspiracy being directed toward the plaintiff. The plaintiff contended that the conspiracy was being carried on not to gain any financial benefit but rather to precipitate his financial ruin by driving him out of the greyhound business. The court first stated the general rule in Florida was that an act which did not constitute a cause of action against one person could not be made the basis of a civil action for conspiracy. However, the court went on to point out that an exception to this rule existed in which by reason of the force of numbers or other exceptional circumstances the conduct of the defendants acting in concert could be such as to give rise to an independent wrong. The court quoted with approval from a Massachusetts case in which it was said that in order to prove an independent tort for conspiracy upon this basis, it must be shown that there was some “ ‘peculiar power of coercion of the plaintiff possessed by the defendants in combination which any individual standing in like relation to the plaintiff would not have had.’ ” The court held that the allegations of the complaint fell within the exception and were thereby sufficient to state a cause of action for civil conspiracy.

Though the facts are quite different, the rationale of Snipes is applicable to the instant case. Certainly, any one of the group could decline to render services to the plaintiff for whatever reason he might have. Yet, when all of them declined to do so, the effect is to preclude the plaintiff from conducting surgery at Morton Plant Hospital. While the plaintiff is admittedly free to seek to perform his surgery at some other hospital, the loss of his opportunity to perform surgery at Morton Plant when he is a fully accredited member of that hospital’s staff is a substantial deprivation of his rights. When a surgeon loses his right to operate at a major hospital in his community where all of his general surgical procedures have previously been conducted, he is bound to suffer a substantial impairment of his economic well-being.

The defendants point out that there are other hospitals in the Tampa Bay area, but we would be naive to think that this is a practical alternative to using a major hospital in the plaintiff’s locale. The gravamen of the exception in Snipes is the effectiveness of the boycott and not its geographical scope. There, the effectiveness arose from the defendant’s absolute control over five dog tracks where Snipes conducted his racing business. Here, the effectiveness of the boycott arises from the group’s absolute control over anesthesia services at an institution where the plaintiff practiced all of his general surgery before the commencement of the boycott. The power of coercion over the plaintiff with respect to his use of Morton Plant Hospital is evident from the allegations that the members of the group are the only anesthesiologists on the staff and that the defendants have conspired to block the appointment of additional anesthesiologists who might be willing to work with the plaintiff.

The case of Cowan v. Gibson, 392 S.W.2d 307 (Mo.1965), warrants consideration because of its analysis of the effect upon a doctor when he cannot practice in a particular hospital. There, the Missouri Supreme Court upheld a complaint by a doctor alleging that other doctors comprising the staff of a private hospital had wrongfully conspired to prevent him from acquiring membership on the medical staff so as to force his patients to seek the services of the defendants in their individual practice in order to obtain proper medical treatment. While the motivation of the defendants was different than that alleged in the instant case, the Missouri court pointed out the defendants’ unjustified refusal to admit the doctor to the staff constituted an inference with the plaintiff’s contractual rights with his patients. See also Regan v. Davis, 97 So.2d 324 (Fla. 2d DCA 1957), in which our court upheld a complaint for conspiracy to interfere with the plaintiffs right to practice her profession as a speech therapist.

Apropos to our discussion is Section 765 of the Restatement of Torts (1939) which reads as follows:

“§ 765. CONCERTED REFUSAL TO DEAL.
(1) Persons who cause harm to another by a concerted refusal in their business to enter into or to continue business relations with him are liable to him for that harm, even though they would not be liable for similar conduct without concert, if their concerted refusal is not justified under the circumstances.
(2) In the issue of justification under the rule stated in Subsection (1), the following are important factors:
(a) the objects sought to be accomplished and the interests sought to be advanced by the actors’ conduct;
(b) the extent of the hardship caused to the person against whom the actors’ conduct is directed and his opportunities for mitigating the hardship;
(c) the appropriateness of the actors’ conduct as a means of advancing their interests and the availability of less harmful means to that end;
(d) the relations between the actors and the person against whom the conduct is directed and their relative economic power;
(e) the effects of the actors’ conduct and of its objects on the social interest in business enterprise and competition.”

While the terminology in Snipes and that of the Restatement is different, we think this difference is little more than semantics. The Snipes exception of coercion falls within the scope of Section 765(2)(d). In essence, even though a person has the privilege of selecting those with whom he wishes to conduct business, when several persons who occupy a coercive position with respect to another act in concert to decline to do business with him, their refusal may under certain circumstances constitute an independent tort.

We hasten to point out that we simply hold that Count I states a cause of action. As recognized in Section 765(2)(a) of the Restatement, there may be a number of legitimate reasons why the group has declined to render services to the plaintiff, but these are matters of defense which do not appear on the face of the complaint.

The order dismissing Count I is reversed. The order dismissing Counts II, III and IV is affirmed.

BOARDMAN, C. J., and HOBSON, J., concur.


text:
    STATE of Florida, Appellant, v. Clarence SMITH, Appellee.
    No. 76-1260.
    District Court of Appeal of Florida, Second District.
    March 4, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Clarence Smith and John Robinson were charged with possession and sale of heroin. The charges arose out of a purported drug sale to an undercover agent. A tape recording was made of the transaction, but was subsequently misplaced by the state. Robinson moved for dismissal of the charges against him, alleging the tape contained material that would be favorable to his defense, with which the state agreed. Smith was allowed to join in the motion at the hearing on the matter. The trial court dismissed the charges against both defendants on the basis of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Farrell v. State, 317 So.2d 142 (Fla. 1st DCA 1975).

The state filed this appeal alleging that it was error to dismiss the charges against appellees Smith and Robinson. The state has voluntarily dismissed its appeal as to Robinson.

The dismissal of the charges against a defendant under these circumstances is an extreme sanction that should only be utilized with caution after a great deal of deliberation. In the record there is no evidence that would demonstrate that the tape contained material favorable to appellee Smith.

Upon remand the trial court should take evidence to determine if the tape was indeed Brady material as to Smith. If it were, the court should make inquiry to determine the culpability of the state in misplacing the tape and then impose such sanctions, if any, the court deems just under the circumstances. Fla.R.Crim.P. 3.220(j)(l).

REVERSED and REMANDED for further proceedings in accordance with this opinion.

HOBSON, A. C. J., and McNULTY and GRIMES, JJ., concur.


text:
    Sam FUCHS, Appellant, v. Guy W. BOOTS, etc., et al., Appellees.
    No. 76-612.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Mark Silverstein, Miami Beach, for appellant.
    Mahoney, Hadlow, Chambers & Adams and Dana G. Bradford II, Jacksonville, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

By this appeal and cross-assignment of error, the court is called upon to review the propriety of an order transferring a claim of lien to bond and the denial of a motion for summary judgment in favor of the original plaintiff-mortgagee.

We affirm all the action of the trial judge here under review, save and except we modify his order providing the transfer of lien to bond by striking the following language at the end of the first sentence in paragraph 4 of said order:

# # * * * *
“ * * * if it shall be finally determined in this litigation that plaintiffs owe the defendant Sam Fuchs the money which he has alleged herein that is due and owing tó him by plaintiffs; and if it is determined that such money is not due and owing to the defendant Sam Fuchs by plaintiffs, then such bond shall be null and void. * * *

And, as necessary, the bond filed pursuant to this order shall also be amended accordingly.

The orders here under review are affirmed, as modified.


text:
    Richard WITT et al., Appellants, v. The CITY OF MIAMI, a Municipal Corporation, State of Florida, et al., Appellees.
    No. 76-907.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Anthony F. Paterna, Miami, for appellants.
    George F. Knox, City Atty., and Mikele S. Carter, Asst. City Atty., for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed. See May v. Holley, 59 So.2d 636 (Fla.1952).


text:
    Jenny OLIVIER, Appellant, v. ALLSTATE INSURANCE CO., a Foreign Insurer, Appellee.
    No. 76-911.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Bernard H. Butts, Jr., Hialeah, for appellant.
    Huebner, Shaw & Bunnell and James W. Knight, Jr., Fort Lauderdale, for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed upon authority of Camacho v. Allstate Insurance Company, 310 So.2d 330 (Fla. 3d DCA 1975).


text:
    Eduvigis Pina CRUZATA, Appellant, v. Frederick MASCARELLA et al., Appellees.
    No. 76-980.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Emilio de la Cal, Miami, for appellant.
    Frank, Strelkow & Gay, North Bay Village, August, Nimkoff & Pohlig, Miami, for appellees.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Potakar v. Hurtak, 82 So.2d 502 (Fla.1955); Kutner v. Kalish, 173 So.2d 763 (Fla. 3d DCA 1965).


text:
    COLONIAL PRESS OF MIAMI, INC., a Florida Corporation, et al., Appellants, v. Earl V. ROBERTS, Individually, et al., Appellees.
    No. 76-1661.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Joseph A. Ferrera and Richard L. Zapf, Coral Gables, for appellants.
    Philip M. Gerson, Miami, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Pollack v. Pollock, 110 So.2d 474 (Fla. 1st DCA 1959), cert. denied 116 So.2d 761 (Fla.1959); Passio v. Crowell, 208 So.2d 877 (Fla. 3d DCA 1968).


author: RAWLS, Judge.

text:
    Calvin JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. CC-241.
    District Court of Appeal of Florida, First District.
    March 9, 1977.
    Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   RAWLS, Judge.

Appellant Jenkins, who was tried and convicted of grand larceny, contends here that the evidence was insufficient to sustain his conviction. We agree and hold that the trial court erred in denying Jenkins’ motion for judgment of acquittal.

The testimony of witness Booker Pollock constitutes the sole evidence adduced by the state. Pollock testified that on February 3, 1976, Jenkins, whom he had known for four years, came by his house to see his sister who was not at home. After using the telephone, Jenkins sat down at the dining room table with Pollock and began reading a newspaper. Situated on the table was a brown envelope in which Mr. Pollock said was his social security check in the sum of “a hundred and ninety-eight dollars and some change”. The envelope had not been opened and Pollock had not viewed the contents of same, except observing his name and address through “a little piece of plastic paper that be on the envelope”. • Pollock went to the bathroom for a period of three to five minutes, and upon returning found Jenkins and the envelope missing. Pollock’s three-year old nephew who lived in the house was playing outside. A screened door was unlocked, and anybody else could have opened the door and entered the house. After looking in his room, his mother’s room and the living room, and not finding the missing envelope, Pollock called the social security office. At a later date he procured a certified copy of the original check which had been cashed. It was upon this testimony that Jenkins was convicted of the crime of grand larceny and sentenced to five years.

Harrison v. State, 104 So.2d 391 (Fla. 1st DCA 1958), controls. There, defendant had the opportunity to steal some $1,300.00 from his uncle, and the uncle was of the positive opinion that defendant was guilty of the theft. As stated by Judge Wiggin-ton, speaking for this court:

“We are fully aware of the burden which our system of jurisprudence places upon those charged with enforcement of the law. In the absence of positive evidence resort must be frequently made to circumstances. When evidence of this kind is relied upon for conviction, it should be acted upon with extreme caution. Our responsibility in such cases—human liberty being involved—is doubly great. The cloak of liberty and freedom is far too precious a garment to be trampled in the dust of mere inference compounded. As was stated in Adams v. State, this court is fully cognizant of the rule that conviction may be had upon circumstantial evidence alone, and although the State’s burden does not extend to an absolute metaphysical and demonstrative certainty in proving a crime by circumstantial evidence, it must be sufficient as to every essential element of the crime charged to meet the requirement of the rule as set forth above. When measured in a light most favorable to the State, the evidence adduced in this case is not sufficient to close the gap to the reasonable hypotheses of innocence; and is therefore insufficient to sustain conviction.”

The judgment appealed is reversed with directions that the defendant be discharged.

REVERSED.

BOYER, C. J., and SMITH, J., concur.

      . This is the only reference to the “certified copy” of the check in the record. No testimony was adduced connecting this “certified copy” with the defendant or to the missing brown envelope.

      . The $1,300.00 was stolen during the nighttime from the uncle’s bedroom. The uncle’s opinion of his nephew’s guilt was based in part upon the fact that he owned a bulldog that would not allow strangers on the premises; that defendant (nephew) was friendly with the dog; and that the defendant failed to report to work the next morning; that defendant was the only person that knew he kept a large sum of money on hand. Other witnesses testified as to the defendant’s movements on the night of the theft and as to the defendant having a “roll of money”.


text:
    James DELANEY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-997.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.

      Bennet H. Brummer, Public Defender, and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

The appellant was charged with robbery, grand larceny, and resisting arrest. He was tried before a jury, acquitted of Count I, convicted of a lesser-included offense under Count II, and convicted under Count III.

On appeal, error is asserted in the form of the verdict as rendered in the conviction for the lesser-included offense under Count II, and that the trial judge should have declared a mistrial because of the alleged improper comment by counsel during closing argument.

As to the first error urged, no motion was directed to the trial court to correct the form of the verdict and, therefore, no error has been preserved for review by this court. Benitez v. State, 172 So.2d 520 (Fla. 4th D.C.A. 1965); Hall v. State, 203 So.2d 202 (Fla. 2nd D.C.A. 1967); Jones v. State, 248 So.2d 517 (Fla. 3rd D.C.A. 1971); McPhee v. State, 254 So.2d 406 (Fla. 1st D.C.A. 1971); Kruglak v. State, 300 So.2d 315 (Fla. 3rd D.C.A. 1974); State v. Barber, 301 So.2d 7 (Fla.1974); Davis v. United States, 409 U.S. 841, 93 S.Ct. 193, 34 L.Ed.2d 80 (1973). Even if the proper motion had been made, it is doubtful that any error would have been made to appear. Russo v. State, 340 So.2d 1273 (Fla. 4th D.C.A. 1976).

As to the second error urged, no objection to the first comment on the part of the prosecutor during closing argument was made and, therefore, no error has been made to appear in this regard. Rogers v. State, 158 Fla. 582, 30 So.2d 625 (1947); State v. Jones, 204 So.2d 515 (Fla.1967). Further, as to the second comment, upon objection by defense counsel the trial court offered to give a curative instruction and defense counsel requested he not do so. Therefore, the defendant will not now be heard to complain of this ruling. Further, it appears that the comment made by the prosecutor in closing argument, which was objected to, was nothing more than a valid comment on the evidence. Clinton v. State, 56 Fla. 57, 47 So. 389 (1908).

Therefore, for the reasons above stated, the jury’s verdict, adjudication and sentences here under review, be and the same are hereby affirmed.

Affirmed.


author: CALOGERO, J., DIXON, J., DENNIS, J.,

text:
    STATE of Louisiana v. Carl W. GUILLORY et al.
    No. 59161.
    Supreme Court of Louisiana.
    March 9, 1977.
   In re: Carl W. Guillory applying for cer-tiorari, or writ of review, to the Court of Appeal, 339 So.2d 970, Third Circuit, Parish of Rapides.

Granted. The judgment of the Court of Appeal is affirmed. The Court of Appeal correctly construed Connick v. Lucky Pierre’s, 331 So.2d 431 (La.1976).

CALOGERO, J.,

is of the opinion the writ should be granted. This court declared unconstitutional R.S. 13:4711 et seq. in Con-nick v. Lucky Pierre’s, 331 So.2d 431 (La. 1976). The Court of Appeal here has determined that R.S. 13:4711 is severable, and in part, still viable. If the Court of Appeal is correct in this regard, we should determine so only after full consideration of this case, and reconsideration of Connick v. Lucky Pierre’s.

DIXON, J.,

dissents from affirming the Court of Appeal and would grant the writ.

DENNIS, J.,

is of the opinion that the writ should be granted. We should not modify our decision in Connick v. Lucky Pierre’s by adopting the Court of Appeal opinion. The parties should be allowed to brief and argue the issue of whether the portions of the statute found objectionable in Lucky Pierre’s are severable — particularly since this issue was not discussed by the Court of Appeal and may never have been argued by the parties below.


author: TATE, J., DIXON, J., CALOGERO, J.,

text:
    STATE of Louisiana v. Arthur J. MONROE, Jr.
    No. 59256.
    Supreme Court of Louisiana.
    March 9, 1977.
   In re: Arthur J. Monroe, Jr., applying for writ of habeas corpus and/or supervisory writs.

Writ refused. The ruling of the trial judge denying the habeas corpus petition is correct.

TATE, J.,

dissents from the denial of the writ, for the reasons assigned by Calogero, J.

DIXON, J.,

concurs in the denial, for the reason that the revelation of the omission from the victim’s statement could not reasonably be considered to affect the verdict.

CALOGERO, J.,

dissenting.

The state’s principal evidence was the discovery of a fingerprint on the truck’s door latch and the victim’s testimony that his attention was drawn to the robbery by a “noise on my left hand door. He had the latch down.” The same victim’s statement given police on the date of the armed robbery was contrary, in my view. On that occasion he said he had gotten out of the truck (“had one foot on the ground”) when he was first aware of the robber who at that point asked for his money.

Defendant upon cross-examination of the witness sought production of the statement earlier given police, but was denied same. The non-disclosed statement contained exculpatory material and due process required the court and prosecutor to produce the statement. In my view had defendant been furnished this statement, there was “a reasonable likelihood” that the discovered contrary statement and its use at trial “could have affected the judgment of the jury.” And this I believe is the standard to be applied in this specific request (for Brady material) effort. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1983); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).


author: TATE, J.,

text:
    STATE of Louisiana v. James Barney HENSON.
    No. 59393.
    Supreme Court of Louisiana.
    March 9, 1977.
   In re: James Barney Henson applying for writs of review, prohibition and/or mandamus.

Writ denied. Applicant has an adequate remedy by appeal in the event of conviction. The Court will not interfere with the orderly proceedings in the trial court in the absence of palpable error and great injustice.

TATE, J.,

concurs in the denial. While the writer had reservations about the failure of the State to furnish the names of any other member of the alleged conspiracy, the indictment names the only other member of the conspiracy, thus limiting the State’s proof to a conspiracy between the accused and that person. The accused is therefore not prejudiced by the State’s failure to furnish the information requested.


author: CALOGERO and DENNIS, JJ.,

text:
    Verlina WELTON v. Dennis J. FALCON et al.
    No. 59263.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Louisiana Dept, of Highways (Dept, of Transportation and Development) applying for certiorari, or writ of review, to the Court of Appeal, 341 So.2d 564, Fourth Circuit, Parish of St. John the Baptist.

Writ denied. On the facts found by the court of appeal, the result is correct.

CALOGERO and DENNIS, JJ.,

are of the opinion that this writ should be granted.


author: SUMMERS and TATE, JJ.,

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. Lawrence B. BERTHEAUD et al.
    No. 59266.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Lawrence B. Bertheaud, et al., applying for certiorari, or writ of review, to the Court of Appeal, 340 So.2d 689, Fourth Circuit, Parish of St. James.

Writ denied. On the facts found by the Court of Appeal, the judgment is correct.

SUMMERS and TATE, JJ.,

are of the opinion the writ should be granted.


author: DIXON, J., DENNIS, J.,

text:
    The FEDERAL NATIONAL BANK AND TRUST COMPANY OF SHAWNEE v. CALSIM, INC., et al.
    No. 59279.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Brady Steel Co., Inc.; Dura Tuft Carpets, Inc.; Enterprise Electric, Inc.; LA Lightweight, Inc.; Ben C. Baldwin Contractor, Inc.; Armand Delle, Jr., d/b/a Town & Country Landscaping applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit Parish of Jefferson. 340 So.2d 611.

Writ denied. No error in the judgment complained of.

DIXON, J.,

dissents from denial.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    The FEDERAL NATIONAL BANK AND TRUST COMPANY OF SHAWNEE v. CALSIM, INC., et al.
    No. 59289.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Leslie Henry Day applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit Parish of Jefferson. 340 So.2d 611.

Writ denied. There is no error of law in the judgment of the Court of Appeal.

DIXON, J.,

dissents from denial.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    The FEDERAL NATIONAL BANK AND TRUST CO. OF SHAWNEE v. CALSIM, INC., et al.
    No. 59293.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Bolton Plumbing Supply Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 340 So.2d 611.

Writ denied. No error in the judgment complained of.

DIXON, J.,

dissents from denial.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    The FEDERAL NATIONAL BANK AND TRUST COMPANY OF SHAWNEE v. CALSIM, INC., et al.
    No. 59300.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Calsim, Inc., et al. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 340 So.2d 611.

Writ denied. No error in the judgment complained of.

DIXON, J.,

dissents from denial.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    The FEDERAL NATIONAL BANK AND TRUST COMPANY OF SHAWNEE v. CALSIM, INC., et al.
    No. 59309.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: General Electric, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 340 So.2d 611.

Writ denied. No error in the judgment complained of.

DIXON, J.,

dissents from denial.

DENNIS, J.,

is of the opinion the writ should be granted.


author: TATE, J., CALOGERO, J.,

text:
    Dennis J. DEVUN, Individually and on behalf of the minor, David C. Devun v. Jon H. BARTON and the United Services Automobile Association.
    No. 59286.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Dennis J. Devun applying for cer-tiorari, or writ of review, to the Court of Appeal, 340 So.2d 1018, Fourth Circuit, Parish of Jefferson.

Application denied; no error of law, on the facts found by the court of appeal.

TATE, J.,

dissents. Under the sudden emergency presented by the defendant driver’s gross negligence, the plaintiff’s driver — approaching and turning from the right-of-way highway — is not guilty of contributory negligence because of any misjudgment (as viewed from after the accident in the calm of an appellate conference chamber) in the evasive action adopted by him in response to the defendant’s negligence.

CALOGERO, J.,

is of the opinion the writ should be granted.


text:
    AMERICAN BANK AND TRUST CO. v. TIL, d/b/a Spanish Villa Apartments of Monroe, et al.
    No. 59288.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Til, d/b/a Spanish Villa Apts, of Monroe, Jesse H. Heard, Jr., Jerry A. Kirby, and Jesse H. Heard Construction Co., Inc., applying for certiorari, or writ of review, to the Court of Appeal, 340 So.2d 636, Second Circuit, Parish of Ouachita.

Not considered. Not filed timely in accordance with Rule 10, Sec. 4(b), inasmuch as the application received following the 30th date post rehearing denial (the day following) was not mailed.

TATE, J.,

concurs. Constructive filing on or before the last day of the delay is permitted only by deposit in the United States mail. Rule 10, Section 4B.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. George W. D’ARTOIS.
    No. 59340.
    Supreme Court of Louisiana.
    March 16, 1977.
   In re: State of Louisiana, applying for writs of certiorari, mandamus, prohibition and review.

Granted and remanded to trial court to reconsider in light of this court’s opinion in State v. Kamo, 342 So.2d 219, reserving to the trial judge the discretion to admit further evidence if the state or defendant request.

SUMMERS, J.,

is of the opinion defendant’s trial should be fixed and proceeded with forthwith.


author: DIXON, J., CALOGERO, J., DENNIS, J.,

text:
    STATE of Louisiana v. Lawrence M. WEINBERG.
    No. 59257.
    Supreme Court of Louisiana.
    March 16, 1977.
   In re: Lawrence M. Weinberg, applying for writs of certiorari, mandamus prohibition, and for Stay Order.

Writ refused. There is no merit in the application.

DIXON, J.,

dissents from the denial. The allegations here, if proved, would convict of theft. The statute serves no useful purpose in this case, and seems to be a clear violation of 1st amendment rights.

CALOGERO, J.,

is of the opinion the writ should be granted.

DENNIS, J.,

is of the opinion the writ should be granted.


author: MARCUS and DENNIS, JJ.,

text:
    COMMERCIAL UNION INSURANCE CO. v. Roubin J. MAISE et al.
    No. 59305.
    Supreme Court of Louisiana.
    March 16, 1977.
   In re: Guaranty Bank & Trust Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 340 So.2d 684.

Writ refused. There is no error of law in judgment of the court of appeal.

MARCUS and DENNIS, JJ.,

are of the opinion the writ should be granted.


author: TATE, J., DIXON, J., DENNIS, J.,

text:
    William M. CARLTON, Jr. v. GREAT AMERICAN INSURANCE CO. et al.
    No. 59308.
    Supreme Court of Louisiana.
    March 16, 1977.
   In re: William M. Carlton, Jr. applying for certiorari, or writ of review, to the Court of Appeal, 340 So.2d 678, Fourth Circuit, Parish of Orleans.

Writ denied. On the facts set forth in the opinion of the court of appeal, the result is correct.

TATE, J.,

concurs in the denial. I agree that a prejudicially erroneous evidentiary ruling deprives a jury verdict of its presumption of correctness, and thus requires an appellate court to decide the appeal on the basis of the record without the benefit of the “manifest error” presumption of correctness of the trial court judgment. See Broussard v. State Farm Mutual Auto. Ins. Co., 188 So.2d 111 (La.App.3rd Cir. 1966), cert. denied, 249 La. 713, 190 So.2d 233 (1966). However, I am not convinced that such prejudicially erroneous trial ruling here occurred. Accordingly, supervisory review should here be denied, since the result appears to be correct under the facts found by the court of appeal in approving the trial jury’s apparent findings.

DIXON, J.,

dissents from the denial, and would grant and order the court of appeal to decide 1. whether the error complained of by plaintiff was prejudicial and probably affected the jury verdict; and 2. whether the court of appeal concluded that the record showed no causal connection between the second accident and plaintiff’s injury, the opinion can be misinterpreted to hold that even when there is such prejudicial error, the jury verdict will be upheld if supported by some evidence.

DENNIS, J.,

is of the opinion the writ should be granted.


author: TATE, J., DIXON, J.,

text:
    Larry B. COBB v. Hon. J. Al AMISS, Sheriff of East Baton Rouge Parish and C. Paul Phelps, Director, Dept. of Corrections, State of Louisiana.
    No. 59324.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Larry B. Cobb, applying for writs of review, mandamus and certiorari.

Writ denied. On the showing made, the ruling of the trial judge is correct.

TATE, J.,

dissents. Due process is offended if an offender is sentenced on the basis of false information given ex parte to the sentencing judge. The petitioner is entitled to a hearing on these allegations. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); U.S. v. Espinoza, 481 F.2d 553 (C.A.5, 1973).

DIXON, J.,

dissents from denial.


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. Charles Ray GRAVES v. STATE of Louisiana.
    No. 59417.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Charles Ray Graves, applying for writ of habeas corpus and mandamus.

Writ denied. The application is moot.

DIXON, J.,

concurs. This application is for mandamus to order the trial judge to rule. He ruled and denied the petitioner’s demands on Mar. 7, 1977.


text:
    STATE of Louisiana v. Ray Anthony DUGAS and Maurice Dugas, Surety.
    No. 59203.
    Supreme Court of Louisiana.
    March 16, 1977.
   In re: Ray Anthony Dugas and Maurice Dugas, Surety, applying for remedial writs.

Writ denied. Since no appeal lies in the present case, we treat the appeal as a writ application. See State v. Johnson, La., 342 So.2d 863, handed down February 4, 1977. Our review discloses no error in the judgments of the trial court.


text:
    STATE of Louisiana v. Willie R. EVANS.
    No. 59444.
    Supreme Court of Louisiana.
    March 16, 1977.
   In re: State of Louisiana through District Attorney, Harry F. Connick, Parish of Orleans applying for writ of certiorari.

Writ granted. In the event the defendant is convicted of a capital offense, a sentencing hearing should be provided as authorized by La.C.Cr.P. arts. 905-905.9 (as added by Acts 1976, No. 694). The writ is granted without prejudice to the defendant’s right to object to the sentencing procedure and to assign such procedure as error on appeal, if convicted. The trial court’s order is accordingly reversed.


text:
    STATE of Louisiana v. Stephen Scoggins SALTER.
    No. 59463.
    Supreme Court of Louisiana.
    March 16, 1977.
   In re: Stephen Scoggins Salter applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    GEORGE ENGINE COMPANY, INC. v. SOUTHERN SHIPBUILDING CORP. et al.
    No. 59307.
    Supreme Court of Louisiana.
    March 16, 1977.
   In re: George Engine Company, Inc., applying for supervisory writs of certiorari, prohibition and mandamus.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered.

It is ordered that a writ of certiorari issue herein, directing the Honorable Stephen A. Duczer, Judge,of the 22nd Judicial District, Court for the Parish of St. Tammany, to transmit to the Supreme Court of Louisiana, on or before the 30th day of March, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 20th day of June, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    GEORGE ENGINE COMPANY, INC. v. SOUTHERN SHIPBUILDING CORP., et al.
    No. 59410.
    Supreme Court of Louisiana.
    March 16, 1977.
   In re: George Engine Co., Inc. applying for supervisory writs of certiorari, prohibition and mandamus.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Stephen A. Duczer, Judge of the 22nd Judicial District, Court for the Parish of St. Tammany to transmit to the Supreme Court of Louisiana, on or before the 30th day of March, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 20th day of June, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Ranton BROUILLETTE v. PHOENIX ASSURANCE CO. Ranton BROUILLETTE v. Vincent BROUILLETTE.
    No. 59306.
    Supreme Court of Louisiana.
    March 16, 1977.
   In re: Ranton Brouillette applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Bernard, 340 So.2d 667.

Writ denied. Upon the facts found, the result is correct.


text:
    STATE of Louisiana v. John S. SCHIELDS and Thomas P. Lukefahr a/k/a Thomas J. Davison.
    No. 59431.
    Supreme Court of Louisiana.
    March 16, 1977.
   In re: John S. Schields and Thomas P. Lukefahr a/k/a Thomas J. Davison applying for writs of certiorari and review.

Writ denied. Under the present showing, we cannot say the trial court abused its discretion.


text:
    STATE of Louisiana v. Gregory F. FALCONE et al.
    No. 59432.
    Supreme Court of Louisiana.
    March 16, 1977.
   In re: Gregory F. Falcone, Stephen D. Lukefahr and Joseph Trotta applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. Under the present showing, we cannot say the trial court abused its discretion.


text:
    STATE of Louisiana v. Everett TWINER.
    No. 59312.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: State of Louisiana, applying for supervisory writs.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable John C. Morris, Jr., Judge of the Fifth Judicial District, Court for the Parish of Richland, to transmit to the Supreme Court of Louisiana, on or before the 1st day of April, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 24th day of June, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. James W. WOMACK.
    No. 59313.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: State of Louisiana, applying for supervisory writs and stay order.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable John C. Morris, Jr., Judge of the Fifth Judicial District, Court for the Parish of Richland, to transmit to the Supreme Court of Louisiana, on or before the 1st day of April, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 24th day of June, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    In re CLUB MAGAZINE et al.
    No. 59443.
    Supreme Court of Louisiana.
    March 18, 1977.
    Case Remanded and Dismissed April 1, 1977.
   In re: Jiffy Mart, Inc., et al. applying for supervisory writ.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Fred Jones, Jr., Judge of the 3rd Judicial District, Court for the Parish of Lincoln, to transmit to the Supreme Court of Louisiana, on or before the 1st day of April, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 20th day of June, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Lawrence T. WATTS v. Hon. Edward A. de la HOUSSAYE, III, Judge, 16th Judicial District Court.
    No. 59359.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Lawrence T. Watts, applying for writ of mandamus or alternate writ of cer-tiorari.

Writ granted in part and denied in part. The writ of mandamus is granted and the trial court is ordered to grant relator’s motion for an appeal. The writ of certiorari requested in the alternative is denied.


text:
    STATE of Louisiana v. Ronnie Kurt HONGO.
    No. 59412.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Ronnie Kurt Hongo, applying for writs of certiorari, prohibition, mandamus and review.

On motion of relator the petition is dismissed.


text:
    STATE of Louisiana v. Billy Joe RICHARDSON.
    No. 59478.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: State of Louisiana, applying for writs of certiorari, prohibition and mandamus.

On motion of the relator the application is dismissed.


text:
    STATE of Louisiana ex rel. Joseph ANDERSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59146.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Joseph Anderson applying for remedial writs.

Writ denied. On the basis of the allegations of the application, as well as the transcribed plea colloquy on the date of the plea of guilty (November 13, 1973), the petitioner’s application does not warrant post-conviction relief.


text:
    STATE of Louisiana v. Benny HASTINGS.
    No. 59314.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Benny Hastings applying for writs' of certiorari, prohibition and mandamus.

Writ denied. No merit in application.


text:
    STATE of Louisiana v. Jesse R. MARTIN.
    No. 59320.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Jesse R. Martin, applying for writ of habeas corpus.

Writ denied. There is no merit in this application.


text:
    STATE of Louisiana ex rel. Richard SIMS v. 19th JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE.
    No. 59322.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Richard Sims applying for writ of mandamus.

Denied; a return from the district clerk shows an attorney was appointed and a hearing scheduled for Feb. 28, 1977, which was apparently held. The application is moot.


text:
    STATE of Louisiana v. Tommie L. GORDON, III.
    No. 59339.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Tommie L. Gordon, III applying for remedial writs.

Writ refused. Treating this appeal as a writ application, we deny the writ. There is no error of law in the proceedings.


text:
    STATE of Louisiana v. Shirley McCLURE.
    No. 59347.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: State of Louisiana applying for writs of certiorari or review.

Writ denied. We find no abuse of discretion in the ruling of the trial judge.


text:
    STATE of Louisiana ex rel. Edward L. SMITH v. Ross MAGGIO, Warden, Louisiana State Penitentiary, Angola, et al.
    No. 59349.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Edward L. Smith, applying for remedial writs.

Writ refused. We find no merit in the petition.


text:
    STATE of Louisiana ex rel. Thomas DENNIS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 59353.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: State of Louisiana through Attorney General William J. Guste, Jr. applying for supervisory writs.

Denied; the ruling of the trial judge is correct.


text:
    STATE of Louisiana ex rel. Joseph WHITE and Raymond Harris v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59383.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Joseph White and Raymond Harris applying for remedial writs of certiorari.

Writ denied. There is no merit to the petitioners’ application.


text:
    STATE of Louisiana v. Benjamin N. FLANAGAN.
    No. 59404.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Benjamin N. Flanagan applying for writ of review.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Anne Celeste BARRAS.
    No. 59481.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Anne Celeste Barras, applying for writs of certiorari, prohibition, mandamus and for a stay order.

Writ denied. Adequate remedy by review in event of conviction.