author: RYDER, Judge.

text:
    CITY OF ST. PETERSBURG, Florida, a Municipal Corporation, and Douglas M. Moore, as Director of Department of License and Inspections of the City of St. Petersburg, a municipal corporation, Appellants, v. Grover W. AUSTIN and Margaret N. Austin, his wife, Appellees.
    Nos. 77-1056 and 77-1346.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1978.

      Michael S. Davis, Chief Asst. City Atty., St. Petersburg, for appellants.
    Wm. Fletcher Belcher of Belcher & Fleece, and H. Rex Owen of Owen & McCrory, St. Petersburg, for appellees.
   RYDER, Judge.

Appellees [Austins] own certain realty in the City of St. Petersburg. On May 5,1976 the City of St. Petersburg, Florida [City] approved the Austins’ site plan for the development of their property by construction of a seven story, 38-unit boarding house. Subsequently, but prior to the Austins obtaining a building permit, council for appellant City purportedly enacted Ordinance No. 172-F on June 17, 1976. This amended the zoning ordinance by substantially reducing the number of units which the Austins could build on their property and thus prevented them from developing it in accordance with their previously approved site plan. The City then refused to issue the building permit. Thereafter, the Austins filed a five-count complaint praying for an alternative writ of mandamus directed to appellant Moore to command him to issue a building permit to the Austins and praying for an injunction, constitutional relief, declaratory judgment and other equitable relief against the City, so as to prevent the City from enforcing the ordinance and to require the City (and Moore) to issue the building permit to the Austins.

Depositions were taken and affidavits filed. Through the deposition of its then clerk of council and also in its memo of law filed below, the City admitted that Ordinance No. 172-F was not read aloud, either by title or in full, on either of the two occasions when it came before the city council. Appellant Moore, in deposition, admitted the sole basis for the City’s denial of the Austins’ application for a building permit was the purported enactment of Ordinance No. 172-F.

Section 166.041(3)(a), Florida Statutes (Supp.1976) sets forth the procedures for adoption of ordinances and resolutions by municipalities and provides, in part: “A proposed ordinance . . . may be read by title, or in full, on at least 2 separate days and shall, at least 7 days prior to adoption, be noticed once in a newspaper of general circulation in the municipality.”

To support the City’s contention that this statute is permissive only, the City filed an affidavit of an English professor opining that the word “may” as used in the section quoted above, expresses permissiveness and should not be construed as must or shall.

On June 8, 1977 the trial court entered partial summary final judgment finding that (1) Ordinance No. 172-F was never read aloud at any open council meeting, either in its entirety or by its title; and (2) the sole basis for the denial of the Austins’ application for a building permit was the purported passage of the ordinance prior to the Austins applying for said permit. The court concluded as a matter of law: (1) Section 166.041(3)(a) requires that a proposed ordinance be read aloud at a minimum of two meetings; the word “may” as used in the subsection in conjunction with the words “on at least 2 separate days” makes reading either by title or in full mandatory; the legislative intent is to give the public notice of the ordinance and to make the council itself aware of the ordinance’s effect; the word “may” gives the council discretion only as to whether the ordinance should be read by title or in full. (2) Further, that the aforesaid subsection contemplates that the reading of an ordinance will be aloud, and not merely that it will be read silently by the councilmen.

The trial court concluded that Ordinance No. 172-F is fatally defective because of its invalid enactment and insofar as it was the only reason for the City’s refusal to issue the building permit to the Austins, the Austins are entitled to the permit. Thereupon, the court entered judgment making the alternative writ of mandamus final and absolute and ordered appellant Moore and the City to issue the building permit to appel-lees. From this ruling, this appeal ensues.

The trial court was correct and we affirm.

As did the trial court, we reject the opinion of the English professor and find no material issue of fact was created by his affidavit. Statutory interpretation is a matter of law to be determined by the trial court. It is quite obvious that the legislature intended to allow the City the option of reading proposed ordinances either by title or in full, but it is also equally obvious that the legislature mandated that this reading be done on no less than two occasions prior to its passage. We reject the argument of the City that silent reading of proposed ordinances is permitted; on the contrary, the legislature intended such reading to be aloud as to be heard by the public in order that the public might be informed of the measures under consideration by the City. As this was not accomplished, Ordinance No. 172-F is invalid as properly found by trial court and the orders of the learned judge below were properly entered.

Affirmed and remanded.

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


source: Caselaw Access Project

author: McCORD, Chief Judge.

license: Public Domain

text:
    Vincent Anthony BUSCH, Appellant, v. STATE of Florida, Appellee.
    No. GG-445.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   McCORD, Chief Judge.

Appellant contends first that the trial judge should have suppressed his confession because it was the result of an arrest of appellant in his home without a warrant and with no showing by the state of exigent circumstances that would have excused the absence of an arrest warrant. The trial court was correct in denying appellant’s motion to suppress. See State v. Perez, 277 So.2d 778 (Fla.1973). Appellant next contends that the trial court erred by instructing the jury that he could be found guilty of robbery committed while carrying a firearm when the evidence conclusively established that the firearm was in the possession of appellant’s accomplice and that the judgment and sentence for armed robbery are, therefore, not supported by the evidence. Appellant cites Earnest v. State, 351 So.2d 957, Fla., opinion filed August 31, 1977, rehearing denied December 6, 1977. There, the Supreme Court construed § 775.-087(2), Florida Statutes (1975), which provides that any person who is convicted of robbery and who had in his possession a firearm shall be sentenced to a minimum term of imprisonment of three years. The court held that the three-year minimum term under the statute applied only to physical possession of a firearm by a defendant rather than constructive possession. Here, as in Earnest, the appellant, who did not have a firearm, was convicted as an aider and abettor of the crime in which he participated — robbery in which the offender carried a firearm or other deadly weapon [§ 812.13(1) and (2)(a), Florida Statutes (1975)], rather than robbery in which the offender carried no firearm, deadly weapon, or other weapon [§ 812.13(1) and (2)(c), Florida Statutes (1975)]. Here, unlike in Earnest, appellant was not sentenced to minimum three-year term of imprisonment; thus, we are not concerned with § 775.-087(2).

The Supreme Court in Earnest did not in any way abrogate § 777.011, Florida Statutes (1975), dealing with principals in the first degree. That statute provides that whoever aids, abets, counsels, hires or otherwise procures an offense to be committed and such offense is committed is a principal in the first degree and may be charged, convicted and punished as such whether he is or is not actually or constructively present at the commission of such offense. That statute makes an aider and abettor a principal in the first degree to the crime he aids and abets. Here, the evidence clearly shows that appellant was present aiding and abetting his accomplice in the accomplice’s commission of the crime of robbery with a firearm. Thus, appellant is guilty as a principal in the first degree of that crime rather than the crime of robbery in which the offender carried no firearm, deadly weapon, or other weapon.

AFFIRMED.

BOYER, J., and McLANE, RALPH M., Associate Judge, concur.


author: PER CURIAM.

text:
    Carl Edward WEST, Appellant, v. STATE of Florida, Appellee.
    No. HH-146.
    District Court of Appeal of Florida, First District.
    Feb. 28, 1978.
    Michael J. Minerva, Public Defender and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of the Circuit Court, Volu-sia County, adjudicating Defendant guilty of battery and sentencing him to 360 days in the county jail. The public defender has filed an “Anders’ Brief”, and by order of this Court Defendant was allowed additional time in which to file such brief on his own behalf as he deemed advisable.

Review of the briefs and transcripts and record of proceedings below reveal no error.

Accordingly, the judgment below is AFFIRMED.

MILLS, Acting C. J., and BOYER and BOOTH, JJ., concur.

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


text:
    HARMONY HOMES, INC., a Florida Corporation, and O. C. King, Appellants, v. SEVERUD, KNIGHT, BOEREMA, BUFF, a partnership, Appellee.
    Nos. 76-1436, 77-316.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.
    Harry M. Hobbs, Tampa, for appellants.
    Goodwin, Ryskamp & Welcher, Miami, for appellee.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   PER CURIAM.

These consolidated appeals are from an order denying appellants’ motion to make the record speak the truth and from a final judgment entered in favor of the appellees pursuant to a jury verdict.

The points presented urge (1) that the trial court erred in denying the motion to make the record speak the truth; (2) that the court erred in denying appellants’ motion for directed verdict at the close of the appellants’ case; (3) that the court erred in allowing appellees to introduce evidence of a joint venture; and (4) that the court erred in giving instructions to the jury on the issue of joint venture when the pleadings did not raise that issue.

When relief is sought from an appellate court, it thereupon becomes the duty of appellant to make errors complained of clearly appear by furnishing the court with an adequate record pertaining to the asserted errors. Morceau v. Meader, 179 So.2d 242 (Fla. 3d DCA 1965); Wilder v. Altman, 179 So.2d 250 (Fla. 3d DCA 1965).

The appellants having failed to meet this requirement the order and judgment are affirmed.

Affirmed.


author: KEHOE, Judge.

text:
    Thomas POTTER, Appellant, v. HOWARD HALL COMPANY, INC., Appellee.
    No. 76-1984.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.
    Feldman & Abramson, Miami, for appellant.
    Williams, Tomlinson & duFresne, Coral Gables, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, petitioner below, brings this appeal from a final judgment, in a workman’s compensation case, denying his petition for a rule nisi. In its final judgment, the trial court held that it had no jurisdiction to enforce the administrative order awarding appellant temporary total compensation payments.

Based on the authority of Phoenix Assurance Company of New York v. Merritt, 160 So.2d 552 (Fla.2d DCA 1964), and Section 440.24, Florida Statutes (1975), the trial court should have granted appellant’s petition for a rule nisi. See also McCormick v. Messink, 208 So.2d 113 (Fla.2d DCA 1968). Therefore, the final judgment appealed is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Vernal ROLLE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-838.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.
    Bennett H. Brummer, Public Defender, and Elliott H. Scherker, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellant was found guilty by a jury of burglary. This appeal is from the judgment of conviction and sentence entered by the Circuit Court in and for Dade County, Florida.

Appellant urges reversal on the ground that the trial court erred in excluding two defense alibi witnesses whose names had not been provided to the state prior to trial.

The ground relied on by appellant for reversal has been carefully considered in the light of the record, briefs and arguments of counsel and has been found to be without merit. Therefore, the judgment and sentence are affirmed.

Affirmed.


text:
    Keith WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-887.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellant was tried non jury and found guilty under a two-count information charging him with possession of heroin and methaqualone.

The sole point on appeal questions the sufficiency of the evidence to support the trial court’s finding of guilt.

We have carefully considered appellant’s contentions in the light of the record and briefs and have concluded that the evidence adduced was sufficient to support the court’s finding of guilt and that no reversible error has been made to appear. Dawson v. State, 338 So.2d 242 (Fla. 3d DCA 1976); Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974).

Affirmed.


text:
    James Leon CARPENTER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-890.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.

      Weiner, Robbins & Tunkey, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Lowey, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

James Leon Carpenter appeals an order revoking his probation and vacating his sentence of four years in the state penitentiary on the ground that the court lacked jurisdiction. We find this appeal has merit.

Defendant Carpenter was informed against for possession of a controlled substance and upon changing his plea from not guilty to nolo contendere, the court entered an order withholding adjudication of guilt and placing Carpenter on six months probation. On February 22, 1977, the last day of Carpenter’s probationary period, his probation officer filed an affidavit of violation of probation. A revocation hearing was held on March 29 and the trial judge found Carpenter not guilty of the violations charged in the affidavit. However, the judge directed that the probation officer file an amended affidavit alleging additional violations. An amended affidavit was sworn to on April 7 and an evidentiary hearing thereon was conducted on April 12. Based upon the amended affidavit and the evidence presented, the judge entered an order revoking Carpenter’s probation and sentencing him to four years imprisonment. Carpenter moved to vacate the above order for the reason that the court erred in entertaining the amended affidavit inasmuch as the court became divested of jurisdiction when it found him not guilty after the March 29 hearing on the original affidavit of violation of probation. The court denied the motion and this appeal ensued.

It is undisputed that after the end of a specified period of probation, the trial court lacks jurisdiction to entertain a proceeding or application for revocation of probation for a violation which occurred during the term of probation unless in the meantime, the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, Florida Statutes (1975). Carroll v. Cochran, 140 So.2d 300 (Fla.1962); State ex rel. Ard v. Shelby, 97 So.2d 631 (Fla. 1st DCA 1957); Brooker v. State, 207 So.2d 478 (Fla. 3d DCA 1968); Maycock v. State, 281 So.2d 64 (Fla. 3d DCA 1973).

Reviewing the record in light of the above established principle of law, the trial court clearly had jurisdiction to entertain the original February 22 violation of probation affidavit. However, upon the finding by the trial court at the conclusion of the March 29 hearing that Carpenter was not guilty of violating the conditions of his probation as alleged in the original affidavit, the court lost jurisdiction as Carpenter’s probationary period had expired and it was error for the court to entertain the amended affidavit of April 7 alleging new violations. See State ex rel. Ard v. Shelby, supra.

We also are compelled to reject the contention of the State that Carpenter waived the jurisdictional defect by participating in the April 12 hearing on the amended affidavit because, upon the termination of the March 29 hearing in favor of Carpenter, the trial court became divested of jurisdiction and was powerless to entertain the amended April 7 affidavit. See Section 948.06, Florida Statutes (1977) and Coleman v. State, 205 So.2d 5 (Fla. 3d DCA 1967).

Accordingly, the order revoking probation and sentencing Carpenter to four years is reversed.

Reversed.

      . The last day of Carpenter’s probationary period.


text:
    Kenneth GAMBLE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-943.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

On this appeal from conviction on two counts of robbery, for which the appellant was sentenced to imprisonment for ten years and five years, respectively, at hard labor, the appellant challenges provisions of the sentence entered on March 30, 1977 which expressly precluded eligibility for parole for three years [under Section 775.-087(2), Florida Statutes (1975)] and which provided for imprisonment at hard labor. In a motion filed by the State, as appellee, it is conceded that on the facts of the case the mandatory three-year sentence provision was not applicable, citing Earnest v. State, 351 So.2d 957 (Fla.1977); Johnson v. State, 349 So.2d 1190 (Fla.1977), and that it was incorrect for the sentence to provide for hard labor, citing Smith v. State, 354 So.2d 477 (Fla. 3d DCA 1978), Case No. 77-72, opinion filed January 31, 1978; Wells v. State, 354 So.2d 1221 (Fla.1978). [See also: Speller v. State, 305 So.2d 231, 232 (Fla. 2d DCA 1974).]

Accordingly, the sentences thus imposed are hereby amended by striking therefrom the provision excluding eligibility for parole for three years and the provision that the imprisonment shall be at hard labor, as contained therein. The judgment is affirmed, and the sentences as thus amended are affirmed.

It is so ordered.


text:
    COCO PLUM WOMAN’S CLUB, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Yolanda Cohen, Respondents.
    No. 77-1306.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.
    Faye T. Dugas, in pro. per.
    Kenneth H. Hart, Jr., Tallahassee, and James R. Parks, Miami, for respondents.
    Before PEARSON, HUBBART and NATHAN, JJ.
   PER CURIAM.

The petition for certiorari is granted, the order of the Industrial Relations Commission under review is quashed, and the cause is remanded to the Industrial Relations Commission to entertain the petitioner’s appeal on the merits based on the respondent’s concession that the petitioner’s appeal herein was erroneously dismissed. Polatnick v. Florida Department of Commerce, 349 So.2d 203 (Fla. 3d DCA 1977); State ex rel. Martinez v. Florida Division of Commerce, 339 So.2d 313 (Fla. 3d DCA 1976), and Miami Dolphins, Ltd. v. Florida Department of Commerce, 252 So.2d 396 (Fla. 3d DCA 1971).


text:
    Halcyon H. CARROLL, Petitioner, v. STATE of Florida, DIVISION OF PROFESSIONS, DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, BOARD OF EXAMINERS OF PSYCHOLOGY, Respondent.
    No. FF-33.
    District Court of Appeal of Florida, First District.
    March 1, 1978.
    Fred W. Baggett of Roberts, Miller, Bag-gett & LaFace, Tallahassee, for petitioner.
    Connie Hartley, Jacksonville, for respondent.
   PER CURIAM.

Petitioner brings for review the final agency action of the Board of Examiners of Psychology in declining to permit her to take the Florida examination pursuant to the provisions of Section 490.19, Florida Statutes.

The hearing officer heard and considered conflicting evidence concerning the question of whether the university from which the petitioner had received a doctoral degree in pupil placement services maintained in such doctoral program a standard of training comparable to those universities having programs approved by the American Psychological Association for the granting of a doctoral degree in psychology.

The hearing officer concluded that such a training was not the equivalent of that required by Section 490.19, and, therefore, upheld the order of the Board of Examiners of Psychology. The Board of Examiners of Psychology considered and approved the report of the hearing officer.

This matter is before this court upon conflicting testimony. It is not for this court to substitute its judgment for that of the hearing officer or the Board of Examiners of Psychology. Therefore, the order entered by the Board of Examiners of Psychology denying to Halcyon H. Carroll the right to take such examination is hereby

AFFIRMED.

SMITH, Acting C. J., and ERVIN and MELVIN, JJ., concur.


author: MILLS, Judge.

text:
    Isaiah ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. GG-150.
    District Court of Appeal of Florida, First District.
    March 1, 1978.
    Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, Isaiah Ellis, in pro. per., for appellant.
    Robert L. Shevin, Atty. Gen., Michael H. Davidson, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Ellis was charged with robbery while armed with a firearm. A jury found him guilty of unarmed robbery. Ellis appeals contending the trial court erred in denying his motion to suppress and erred in denying his motion for mistrial.

Ellis moved to suppress his confession. He testified that the State threatened to issue a warrant for the arrest of his wife and to put his children in a shelter unless he signed the confession. He argues that a state witness testified to the use of similar coercion by the State in obtaining a statement from him.

The trial court heard all of the evidence, weighed it, observed the witnesses, adjudged their credibility, and concluded Ellis’ confession was freely and voluntarily given. Von Horn v. State, 334 So.2d 43 (Fla. 3d DCA 1976). The record supports the court’s finding.

During closing argument, the state attorney made the following statement:

“What I urge you to do is, if you believe the testimony — and, again, I believe the State’s testimony is plausible, has proven to you beyond and to the exclusion of a reasonable doubt that Isaiah Ellis is guilty — if you believe that testimony, don’t go back in the jury room and say, ‘Well, Mr. Matthews allowed one man to plead to a lesser included; therefore, we believe the testimony but we are going to let him — we are going to find him guilty of a lesser included offense.’
“Don’t do that ladies and gentlemen. Again, if you don’t like my decision, hold that against me, but there are many factors to go into determining what the State will let a witness plead to, and, as I told you and what I tell you now, some of it includes his background, whether he has been convicted of a crime, and more important — ”

Ellis objected and moved for a mistrial. The court denied the motion for mistrial but sustained the objection and gave the following curative instruction:

“The court will sustain the defendant’s objection to comments of counsel for the state with respect to the factors which the State Attorney considers in determining whether to permit a defendant to plead guilty to a lesser offense and, particularly, the background of the defendant.
“Ladies and gentlemen of the jury, I instruct you that you are not to consider and you are to disregard those comments which the counsel for the state just made to you.”

Ellis argues that the prosecutor’s comment led the jury to believe that there was more serious criminal activity in his background than revealed by the evidence and this prejudiced his right to fair trial. He contends that the state attorney’s remarks were so prejudicial that the curative instruction did not cure the error. We do not agree.

The trial court took prompt and proper action and was in a better position than we to determine the effect of the remarks on the jury as well as the effect of the curative instruction. We fail to see how Ellis was substantially harmed or materially prejudiced. Ellis has failed to demonstrate that the trial court abused its discretion in denying his motion. Perry v. State, 146 Fla. 187, 200 So. 525 (1941).

We affirm the judgment appealed.

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


text:
    Thomas M. BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. HH-248.
    District Court of Appeal of Florida, First District.
    March 1, 1978.

      Michael J. Minerva, Public Defender, Judith J. Doughtery, Asst. Public Defender and Thomas M. Bryant, in pro per. for appellant.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals the judgment and sentence for three counts of petit larceny. He was charged by information with three counts of grand larceny. Appellant entered a plea of not guilty to the charges. Subsequently, he appeared before the court with his attorney and requested to enter pleas of guilty to the offenses of petit larceny. The court was informed that negotiations had not been made with the State.

The court then questioned the appellant but made no inquiry relating to the volun-tariness of the pleas. The pleas were thereafter accepted.

Appellant alleges that he was induced by his court-appointed attorney to enter his pleas of guilty. He contends his attorney informed him that if he pleaded guilty to the charges, the sentences imposed would run concurrently with the prison sentence to be imposed on another charge to which the appellant had previously entered a plea of guilty. If these allegations were true, such would lead to a conclusion that the pleas were involuntary. Cooley v. State, 245 So.2d 679 (Fla. 4th DCA 1971); Roberts v. United States, 486 F.2d 980 (5th Cir. 1973). The record does not refute the allegation that the pleas were entered due to coercion or promises. Cf. Scarborough v. State, 278 So.2d 657 (Fla. 2d DCA 1973); Pierce v. State, 318 So.2d 501 (Fla. 1st DCA 1975).

Before accepting a guilty plea, the trial judge must satisfy himself that the plea is voluntarily entered to insure that the plea is made of the defendant’s own free will without threats or coercion. See Williams v. State, 316 So.2d 267 (Fla.1975). If a guilty plea is induced by promises which are not kept or threats which vitiate the voluntary character of such act, the plea is void. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

Since there is nothing in the record to refute appellant’s allegation, we relinquish jurisdiction of this cause and remand it to the trial court for a period of thirty (30) days in order that the court may make a determination of whether or not the pleas were voluntarily made. After a hearing, the trial court shall determine the truth of the appellant’s allegations — whether or not the appellant’s guilty pleas were induced by the aforesaid alleged representation of the Public Defender. If the trial court finds the appellant’s allegations to be true, appellant should be allowed to withdraw his guilty pleas and a certified copy of the court’s order should be thereafter forthwith forwarded by the clerk of the trial court to the clerk of this court. If the trial court should find otherwise, a certified copy of that order should in like manner be forthwith forwarded to this court.

REMANDED with directions as aforesaid.

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


text:
    ALLSTATE INSURANCE COMPANY and Delores Thomason Cooley, Appellants, v. Allen L. BRIGGS, Appellee.
    No. 11-131.
    District Court of Appeal of Florida, First District.
    March 1, 1978.
    Frederick B. Tygart, of Tygart & Tygart, Jacksonville, for appellants.
    Charles R. Forman and Victor J. Musleh, of Musleh, Leak, Bond & Arnett, Ocala, for appellee.
   MASON, ERNEST E. (Circuit Judge, Retired),

Associate Judge.

Appellant Cooley has filed this interlocutory appeal for review of an order of the Circuit Court of Marion County which denied her motion to dismiss the complaint filed in the trial court against her and her insurer, the other appellant herein, or, in the alternative, to transfer the action to Clay County, on the ground of improper venue in Marion County.

The suit grew out of a motor vehicle collision which occurred in Clay County allegedly between a motor vehicle owned and operated by appellant Cooley and one owned by the appellee Briggs, causing injury to the latter. The record reflects that Cooley was, at the time of the collision and at the time of suit, a resident of Clay County, and that Allstate Insurance Company, which covered her with liability insurance, was authorized to do business in Florida, but was not a resident of Florida.

Both appellants (defendants below) filed timely objections in Marion County and alleged that such venue was properly in Clay County. We agree and reverse.

Section 47.011, Florida Statutes provides that:

“Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. ...”

Here, the appellant Cooley resided in Clay County and the cause of action arose in that county, and unless Cooley has waived her right to be sued in Clay County or is es-topped to raise a venue objection, she is entitled to be sued in that county. We find neither fact to exist in the record. Fortuitously, after suit was filed, service was promptly had upon the non-resident defendant, Allstate, but the sheriff was unable to effect service upon Cooley for some nine months after suit. In the meantime, Allstate filed a motion to dismiss or for transfer of venue to Clay County which motion was denied by the trial judge, whereupon Allstate filed an answer which included an affirmative defense of improper venue. Again the trial court denied this defense of improper venue by striking it. Thereafter, the two parties before the court proceeded to prepare for trial. This all occurred before service was had upon appellant Cooley. When such service was effected upon her, she promptly raised the issue of venue, claiming her right to be sued in Clay County. The trial judge denied her motion raising this issue. Hence this appeal.

It is appellee’s position that Cooley’s motion attacking venue in Marion County is improper for two reasons. First, he says that the motion was not joined in by Allstate, the other defendant, and secondly, that through the actions of both appellants, Cooley is now estopped to raise a venue objection. We find both assertions to be without merit. As to the first reason that Allstate should have joined in Cooley’s motion to be effective, we hold that such was not necessary because under the statute, the venue privilege is personal to the defendant claiming it. Furthermore, such joinder would have been futile in view of the fact that the trial judge had already twice denied Allstate’s objection to Marion County venue. As to the question of estop-pel, there are no facts in the record to support this claim. Cooley asserted her privilege to be sued in the county of her residence at the very first opportunity she had to do so. She was served with process on August 22, 1977, and eight days thereafter she filed her motion for change of venue, well within the twenty days allowed her under the rule to file defensive pleadings.

Appellee relies upon the case of Universal Credit Co. et al. v. Beckwith, 126 Fla. 865, 172 So. 358 (1937). However, we do not find that Beckwith supports his position for the reason that in Beckwith the two defendants were joint obligors on a contractual obligation and were there held to be joint defendants in such fashion as to require both to join in a motion for change of venue. Assuming the reasoning in Beck-with to be valid as to the situation reflected therein, such reasoning is not valid as applied to the facts in this case. Cooley and Allstate are not joint obligors. Cooley’s obligation, if any, toward appellee is that of an alleged tort-feasor, while Allstate’s obligation to respond to appellee’s claim for damages stems from its contract to indemnify Cooley under her policy for damages caused by her to a third party, the courts of this state having decreed that such third party is a beneficiary of such policy. In other words, the law imposes upon the insurer an implied contractual obligation to respond in damages directly to one injured by the negligence of the insured.

More in point and decisive of the issue to be resolved by us is the case of Amick v. Hanousek, 323 So.2d 49 (Fla. 2nd DCA 1975), wherein our sister court of the Second District held that the venue privilege granted by Section 47.011, Florida Statutes, is one personal to the party claiming it and that it cannot be denied because the alleged tort-feasor is joined as a party defendant with her insurer, a foreign corporation. As stated above, Allstate is a foreign corporation having no county of residence in Florida.

Reversed and remanded with directions to the trial court to enter an appropriate order granting the motion for change of venue and transfer of the file below to the Circuit Court of Clay County, Florida.

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


author: OTT, Judge.

text:
    Albert RUSHING, Appellant, v. STATE of Florida, Appellee.
    No. 77-1452.
    District Court of Appeal of Florida, Second District.
    March 1, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of possessing a controlled substance with intent to deliver and delivery of a controlled substance. He was adjudicated guilty of these charges and sentenced to fifteen years on each count to be served concurrently.

In this appeal appellant argues that one of his two sentences must be set aside because both crimes occurred during a single episode in which appellant delivered heroin to an undercover agent, citing Williams v. State, 349 So.2d 800 (Fla. 2d DCA 1977). We agree. When a defendant is convicted of two crimes in a single transaction, and each of the crimes is a facet of the same transaction, a sentence should be imposed for only the highest crime charged. Orange v. State, 334 So.2d 277 (Fla. 3d DCA 1976). This rationale was applied by this court in Williams v. State, supra.

In the instant case both of the crimes for which appellant was convicted are second degree felonies punishable by a maximum term of imprisonment not exceeding fifteen years. Sections 893.-13(1)(a)1 and 775.082(3)(c), Florida Statutes (1975). It follows that either crime can be considered the “highest crime charged” for sentencing purposes under Orange v. State, supra. This being the case, the judgment of conviction for possessing a controlled substance with intent to deliver is affirmed, but the.sentence for that crime is hereby set aside.

The judgment of conviction for delivering a controlled substance is also affirmed, but this case is remanded for resen-tencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla. 2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. The appellant does not have to be present at resentencing.

Remanded for proceedings consistent with this opinion.

HOBSON, Acting C. J., and DANAHY, J., concur.


text:
    Robert TALMADGE, by his next friend and natural guardian, Billy Talmadge, and Billy Talmadge, Individually, Appellants, v. DISTRICT SCHOOL BOARD OF LAKE COUNTY, Sonny Walters, and Auto Owners Insurance Company, Appellees.
    No. 77-1514.
    District Court of Appeal of Florida, Second District.
    March 1, 1978.

      David M. Hammond of Meyers, Mooney & Adler, P. A., Orlando, for appellants.
    Monroe E. McDonald of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for ap-pellee Walters.
   RYDER, Judge.

Talmadge appeals an order of the trial court dismissing Walters as a defendant in a suit filed by Talmadge against Walters, appellee District School Board of Lake County (Board), and their insurer, Auto Owners Insurance Company. We reverse for reasons hereafter expressed.

Talmadge was a student at Tavares Middle School and Walters was his physical education instructor. Talmadge filed a complaint against Walters, the Board, and its insurer seeking damages for injuries received while Talmadge was performing on a trampoline. The complaint alleged that Walters forced Talmadge to perform certain acrobatics on the trampoline against his will, and while so performing, Talmadge sustained injuries to his knee and teeth. Talmadge further alleged Walters had provided him with only minimal instructions on the trampoline and that Talmadge had little experience on the equipment and was therefore unprepared to safely perform the acrobatics demanded by Walters.

Walters filed a motion to dismiss himself as a defendant in the lawsuit on the ground that, under Section 768.28(9), Florida Statutes (1975), no cause of action exists against him. The motion to dismiss was granted and the propriety of the granting of this motion is the sole issue on appeal.

Section 768.28(9), Florida Statutes (1975), does not clearly provide that no cause of action may be sustained against an employee of the Board, nor does it clearly provide that an individual employee is immune from suit as a result of injuries sustained due to his negligence. While it does state, “No . . . employee, or agent of the state . . . shall be held personally liable in tort . . .,” the statute goes on to indemnify such an employee for a monetary judgment rendered against him personally with the following language:

“. . . [T]he state shall pay any monetary judgment which is rendered in a civil action personally against an . employee . . . which arises as a result of any act . within the scope of his employment.”

We hold that this statute acts only to indemnify an employee of the state for a monetary judgment entered against him as a result of negligent acts occurring within the scope of his employment, but does not operate as a bar against suing such an employee as a party defendant. Had the legislature intended that individual employees be immune from suit, they would have clearly so stated.

In so holding, we find it was, therefore, error to dismiss Walters as a defendant in the instant case.

Reversed and remanded for proceedings consistent with this opinion.

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


text:
    The OHIO CASUALTY GROUP, Appellant, v. James C. PARRISH, Jr., a minor by and through his father and next friend, James C. Parrish, Sr., and James C. Parrish, Sr., Individually, et al., Appellees.
    Nos. 75-1799 and 75-1800.
    District Court of Appeal of Florida, Third District.
    March 2, 1978.
    Horton, Perse & Ginsberg, Miami, Jones, Paine & Foster, West Palm Beach, for appellant.
    Headley & Sudduth, Sam Daniels, Miami, for appellees.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on November 2,1976 (338 So.2d 910) affirming the order of the Circuit Court of Dade County, Florida in the above styled cause, and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed September 29,1977, 350 So.2d 466 and mandate now lodged in this court quashed a portion of this court’s judgment,

NOW, THEREFORE, It is Ordered that the mandate of this court issued in this cause on November 18, 1976 is withdrawn, the opinion and judgment of this court filed November 2, 1976 insofar as it is in conflict with or fails to conform to the views expressed in the said opinion and judgment of the Supreme Court of Florida foresaid is withdrawn and vacated, and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, and the cause remanded to the trial court for further proceedings not inconsistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the Circuit Court (Rule 3.16(b), Florida Appellate Rules).


text:
    Vincent L. GARCIA, Appellant, v. James M. McLEAN and Ruth L. McLean, his wife, Appellees.
    No. GG-206.
    District Court of Appeal of Florida, First District.
    March 3, 1978.

      E. C. Deeno Kitchen and Brian S. Duffy, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Angus G. Andrews, of Andrews & Miller, Defuniak Springs, for appellees.
   PER CURIAM.

Appellant contests here the trial court’s finding that his ejectment action against appellees was barred by the seven-year statute of limitations for adverse possession of land. The record reveals that appellees built a fence on part of appellant’s Walton County land late in 1960. In 1966, before the running of the limitation period, appellant brought a suit in equity seeking to quiet title in the land. On appellees’ motion, however, the court dismissed that suit (without prejudice) and quashed process in the cause. Appellant then brought this ejectment action at law against appellees in October of 1968, well after the running of the limitation period. The trial court held that because the court had dismissed the earlier suit in equity and quashed process, the statute of limitations had not been tolled by that suit and therefore appellees had established their claim to adverse possession at the time of this second suit.

We affirm the trial court’s judgment. It is a well-established rule that an unsuccessful suit does not break the continuity of adverse possession, 51 Am.Jur.2d 808, Limitation of Actions, § 301. Where as here an action to try title to real estate fails or does not result in a judgment in favor of the plaintiff, it does not have the effect of suspending or tolling the running of the statute of limitations in an independent action. 3 Am.Jur.2d 175, Adverse Possession, § 92. Deas v. Burnham, 65 So.2d 297 (Fla.1953), cited by appellant, is not to the contrary. There the court had transferred the equity suit to the law side of the docket pursuant to a motion by the plaintiff. The Florida Supreme Court held that the subsequent proceedings at law were a continuation of the original suit so that the statute of limitations had been tolled at the time the original process was served. The situation is different here. Under Fla.R.Civ.P. 1.040 there are no longer two forms of action — law and equity, but only one form known as “civil action.” Had appellant desired to amend his original complaint to quiet title and allege a suit in ejectment, he should have requested leave to do so. But since that suit was dismissed and thereafter became final, no appeal having been taken, appellant’s subsequent ejectment suit was a completely new cause of action for which the statute of limitations had already run. The lower court is

AFFIRMED.

McCORD, C. J., BOYER, J., and McLANE, RALPH M., Associate Judge, concur.


text:
    Willie Clifford PITTS, Appellant, v. STATE of Florida, Appellee.
    No. 11-203.
    District Court of Appeal of Florida, First District.
    March 3, 1978.

      Willie Clifford Pitts, in pro. per.
    Robert L. Shevin, Atty. Gen., and Patti Englander and Richard W. Prospect, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of the order denying his Motion to Vacate Judgment and Sentence filed pursuant to Fla.R.Crim.P. 3.850. We find no error and therefore affirm.

The appellant was convicted of robbery and sentenced to forty (40) years imprisonment on December 3, 1969. The appellant has previously taken a full appeal from this judgment and sentence. Pitts v. State, 244 So.2d 515 (Fla. 1st DCA 1970). The issue raised in the appellant’s Motion to Vacate was previously raised and considered on direct appeal. Therefore, such issue may not be considered as grounds for post-conviction relief. Gore v. State, 260 So.2d 218 (Fla. 1st DCA 1972). The order appealed from is AFFIRMED.

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


text:
    Freddie Joe BRISCO, Appellant, v. Sandra Lee BRISCO, Appellee.
    No. 77-1340.
    District Court of Appeal of Florida, Second District.
    March 3, 1978.

      Charlie Luckie, Jr. and Ted R. Manry, III of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Donald G. Doddington of John A. Gillis, P. A., Tampa, for appellee.
   RYDER, Judge.

The husband appeals a final order establishing a foreign judgment of divorce, denial of modification of alimony and a judgment for arrearage.

On February 11, 1977 wife filed suit to have a final judgment and decree of divorce entered by the DeKalb Superior Court of the State of Georgia established as a Florida judgment. Her complaint alleged that the divorce decree granted her permanent alimony in the sum of $1,000.00 per month beginning November 1, 1975 until she dies or remarries. She sought a determination of the amount of payments due and unpaid to her and sought a judgment for such arrearage.

Husband answered and counterclaimed alleging that, although he agreed to pay wife $1,000.00 per month as permanent alimony, at the time said agreement was entered into he was the Professional Wrestling Champion of the World and, during 1975 he earned $190,000.00 from wrestling (plus certain other income). However, since losing his championship, his earnings in 1976 were only $60,000.00 and he estimated his 1977 wrestling earnings at a mere $50,-000.00. We pause here to note that, although the record is somewhat unclear on this point, husband apparently has earned a great deal more from enterprises outside the purses he earned as a wrestler. Husband admits he was delinquent in making payments of alimony but avers that his ex-wife is able to become employed and support herself. Therefore, the husband prayed that the court establish the Georgia judgment and decree as a judgment of the Florida court and modify the agreement, final judgment and decree, by eliminating the provision requiring him to pay alimony or by reducing the amount of alimony to be paid.

On July 28,1977 the trial court entered a final order which established the Georgia final judgment and decree as a Florida judgment. The court, in denying husband’s petition for modification of alimony, held as a matter of law, the alimony provision of the judgment was not subject to modification under Florida law as the parties had entered into a valid and binding property settlement wherein the wife had waived her right to increase alimony, and concluded that the husband “cannot have it both ways.” The trial court relied on Howell v. Howell, 164 So.2d 231 (Fla. 2d DCA 1964); also at 207 So.2d 507 (Fla. 2d DCA 1968). The trial court then determined the amount of arrearage in alimony to be $6,650.00 through May 1977 and entered judgment in favor of the wife. This appeal ensued.

We affirm that portion of the trial judge’s order establishing the Georgia final judgment and decree as a Florida judgment. However, for reasons later discussed, we reverse the determination of the amount of arrearage in alimony owed and the trial court’s ruling that the judgment may not be modified.

The facts of this case are distinguishable from those presented to this court in Howell. There we were dealing with a genuine property transfer agreement for specified consideration. Personalty, realty, stock and bank accounts were distributed and the wife relinquished her interest in the business, business accounts, business bank accounts, franchise, good will, etc. of the husband’s businesses. The wife bargained for full and complete settlement and discharge of all further obligations the husband had to her for alimony, support, maintenance, dower, or claim of the wife against the husband in clear, concise and unambiguous terms of a contract listing various and sundry assets and properties which included jointly owned property as well as the business property in which the wife had an interest. In return, the husband bargained and agreed to pay to the wife a certain amount of money per week so long as she lived and did not remarry. The agreement in Howell expressly bound the heirs, executors, administrators, personal representatives or assigns of the parties. Thus, we said in Howell: “It is clear that the parties effected a complete contractual settlement, transfer, division and sale of their properties for a consideration definitely fixed for an expressed period of time. The chancellor could not reduce the agreed amounts on petition for modification without doing violence to the underlying contract.” 164 So.2d at 233.

Appellee, of course, urges that both husband and wife sub judice attempted the same result. The record does not sustain that allegation. We find the wife had no special equity in any of the husband’s properties, all of which were acquired prior to the marriage and in which the wife did not participate. In fact, there was no claim for special equity in the Georgia divorce proceedings. It also appears the husband gave to the wife a condominium, furnishings and an automobile. The wife conveyed no property or interest in property to the husband. Consequently, we cannot find this to be a pure property settlement agreement not subject to modification. Therefore, the terms of our holding in Ohmes v. Ohmes, 200 So.2d 849 (Fla. 2d DCA 1967) more closely apply. Thus, in so holding, we also find that Section 61.14, Florida Statutes (1975) is applicable to the litigation herein.

Section 61.14(1), relating to modification of alimony judgments; agreements, etc., provides, in part: “When the parties have entered into . .' . an agreement for payments for . . . alimony, whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement and the circumstances or the financial ability of either party has changed . . . since the execution of such agreement or the rendition of the order, either party may apply to the circuit court . . . for a judgment decreasing or increasing the amount of alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties . . . decreasing, increasing, or confirming the amount of . alimony provided for in the agreement or order.” [Emphasis added]

The order appealed from dismissed the petition for modification without any hearing on the theory that Howell took the action out of the operation of Section 61.14. In this, the trial court was in error. As the Georgia judgment is now a Florida judgment and is not a genuine property transfer agreement, Section 61.14 does apply and thus is available to both husband and wife for modification of alimony. Consequently that portion of the order of the trial court is reversed and remanded without prejudice to either party to pursue modification of alimony.

In view of the foregoing, the judgment entered herein in favor of the wife for alimony arrearages of $6,650.00 through May 1977 must also be reversed. In the event the trial judge grants the husband’s petition for modification, he also has the discretion to make the modification effective as of the date of the petition for modification [here, March 14, 1977] or subsequent thereto but prior to the date of the order of modification. See McArthur v. McArthur, 106 So.2d 73 (Fla.1958); Simon v. Simon, 155 So.2d 849 (Fla. 3d DCA 1963). In this respect, the amount of arrearages owed by the husband may ultimately be determined to be less than the amount stated in the judgment appealed from. We hasten to point out that we express no opinion as to the merits of husband’s petition and, further, that under no circumstances could the trial court modify the arrearages as to installments of alimony that were due and owing, and thus vested in, the wife prior to the husband’s filing his petition for modification on March 14,1977.

Affirmed in part; reversed in part; remanded for proceedings not inconsistent with this opinion.

HOBSON, Acting C. J., and DANAHY, J., concur.


text:
    Willie James CHESTER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1534.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon review of the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the revocation of appellant’s probation is affirmed.

However, we remand this case to the trial court to correct imperfections in both the order of revocation of probation and in the sentence. The affidavit filed against appellant alleged violations of conditions (4), (7), and (9), of the conditions of probation. During the course of the revocation hearing, the trial court granted appellant’s motion for a judgment of acquittal as to the alleged violations of conditions (7) and (9), but ruled that the allegation pertaining to the alleged violation of condition (4) was sustained. Yet the written order revoking appellant’s probation recited that appellant violated conditions (7) and (9) as well as condition (4). Since the court’s order of revocation enlarged upon the announced findings of the trial court, the order must be corrected to conform to the findings of the trial court made at the hearing. Sing Eng v. State, 350 So.2d 559 (Fla. 2d DCA 1977). Also, the phrase “at hard labor” in the sentence is improper. Brooks v. State, 349 So.2d 794 (Fla. 2d DCA 1977).

Remanded for correction of the sentence and the order of revocation of probation; otherwise affirmed. Appellant need not be present for this purpose.-

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


text:
    Lolita Rapoza JONES, as Personal Representative of the Estate of Carol Frances King Martin, a/k/a Carol Francis King Rapoza, Deceased, Appellant, v. KYLE, INC., a corporation, Harold Raymond Wilderman; McCullagh Leasing, Inc., and Maryland Casualty Company, a corporation, Appellee.
    No. HH-245.
    District Court of Appeal of Florida, First District.
    Feb. 28, 1978.

      Stephen H. Kurvin of Sale, .Bryant, Daniel & Thompson, Panama City, for appellant.
    J. Robert Hughes of Barron, Redding, Boggs & Hughes, Panama City, for appel-lee.
   PER CURIAM.

Appellants by interlocutory appeal seek review of a partial summary judgment finding the appellee employer not liable in punitive damages for the negligent entrustment of a motor vehicle to its employee. We agree with the trial judge there is no evidence in the record supporting any theory upon which punitive damages may be based. Sideris v. Warrington Motor Co., 181 So.2d 650 (Fla. 1st DCA 1966).

AFFIRMED.

BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.


text:
    FIRST COMMERCE REALTY INVESTORS, Appellant, v. PENINSULAR TITLE INSURANCE COMPANY, Appellee.
    No. GG-74.
    District Court of Appeal of Florida, First District.
    March 3, 1978.
    Robert J. Mayes of Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Ma-gie, Pensacola, for appellant.
    T. A. Shell of Shell, Fleming, Davis & Menge, Pensacola, for appellee.
   PER CURIAM.

Appellant First Commerce Realty Investors is a real estate investment trust, the assignee of a $1,600,000 mortgage. A mortgagee’s title insurance policy was issued by appellee Peninsular Title Insurance Company. The title insurance issued by Peninsular Title was in the maximum sum of $1,600,000 and the policy’s description of the property included, as did the mortgage, five lots to which the mortgagor did not have title. When the mortgagor defaulted on the payments, a final judgment of foreclosure was sought and obtained. The judgment provided a total sum of $1,567,518.48 was owing to First Commerce, including principal, interest, costs and attorney fees. First Commerce was the only bidder at the foreclosure sale and bid the exact amount of the judgment, $1,567,518.48. Its bid extinguished the debt and satisfied the mortgage. First Commerce filed suit against Peninsular Title, contending the title insurance policy covered its alleged loss due to the defect in title. The trial judge granted summary judgment in favor of the title insurer. We affirm.

Peninsular Title insured First Commerce against loss or damages in an amount not to exceed $1,600,000 if title to the estate was otherwise than as stated. At no time prior to the entry of summary judgment was any evidence presented relating to the value of the five lots.

After judgment was entered favoring Peninsular Title, First Commerce moved for rehearing and attached an affidavit stating that the value of the property, including the five lots, was $1,823,500, while the diminished value was $1,731,500. The value of the property at the time First Commerce acquired it, according to First Commerce’s own evidence, was in excess of both the amount of the mortgage and the maximum insured interest. As a result, First Commerce can show no loss which entitles it to indemnification. The dominant characteristic of insurance is the granting of indemnity, or security against, loss for a stipulated consideration. Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934).

AFFIRMED.

BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.


author: PER CURIAM. DENNIS, Justice,

text:
    STATE of Louisiana v. Vernon Barley RENFRO, Jr.
    No. 60798.
    Supreme Court of Louisiana.
    Feb. 17, 1978.
    A. J. Boudreaux, Staff Appeals Atty., 24th Judicial Dist, Indigent Defender Bd., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

On July 9, 1970, Vernon Barley Renfro, Jr., was indicted by the grand jury for the Parish of Jefferson for the murder of Robert Lee Maride in violation of La.R.S. 14:30. After trial by jury, he was found guilty of manslaughter and was sentenced to serve twenty-one (21) years at hard labor. Defendant appealed his conviction and sentence to this court which on April 10, 1973, annulled and set aside his sentence and remanded the case to the trial court for resentencing of defendant in accordance with law. Subsequently, defendant was sentenced to serve twenty-one (21) years at hard labor with credit given toward service of his sentence for time spent in actual custody prior to the imposition of sentence. On March 1,1977, he was granted an out of time appeal. Defendant relies on three assignments of error for reversal of his conviction and sentence.

We have reviewed the record and find no merit to defendant’s assignments of error. Accordingly, we affirm his conviction and sentence.

DECREE

The conviction and sentence are affirmed.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

The prosecuting attorney unlawfully cross-examined the defendant as to the details of a prior unrelated offense, La.R.S. 15:495, and improperly expressed his opinion that the defendant was “a cool calculated killer” during closing arguments. La.C. Cr.P. art. 774.

I respectfully dissent.

      . 277 So.2d 655 (La.1973).


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. David Leon SCHWARTZ, Respondent.
    No. 57090.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   PETITION FOR LEAVE TO RESIGN, TO SURRENDER LICENSE TO PRACTICE LAW AND TO HAVE STRICKEN HIS NAME FROM THE ROLL OF ATTORNEYS DISBARMENT ON CONSENT

TO THE HONORABLE SUPREME COURT OF THE STATE OF LOUISIANA THROUGH THE COMMITTEE ON PROFESSIONAL RESPONSIBILITY OF THE LOUISIANA STATE BAR ASSOCIATION

The Petition of David Leon Schwartz, Respondent herein, appearing herein personally, with respect represents.

I.

That David Leon Schwartz was admitted to practice law in the State of Louisiana on June 8, 1959.

II.

That David Leon Schwartz was convicted of a felony in the United States District Court of the Northern District of Texas, all as set forth in Petitioner’s “Motion and Order for Suspension from the Practice of Law” filed in this Honorable Court on November 10, 1975, and docketed under the above number and made a part hereof by reference.

III.

That on November 13, 1975, this Court did, by Order, suspend from the practice of law David Leon Schwartz and did order Petitioner to institute disciplinary proceedings against David Leon Schwartz, which action was filed under this Docket Number on January 14, 1976.

IV.

That at Respondent’s request, the foregoing disciplinary proceedings were postponed until Respondent was released from federal confinement.

V.

That upon Respondent’s release and upon motion of the Louisiana State Bar Association, Paul B. Deal was appointed this Court’s Commissioner.

VI.

That David Leon Schwartz acknowledges that his said conviction is now final.

VII.

That David Leon Schwartz acknowledges that his conviction was of a serious offense, a felony, and one that indicates that he lacks the moral fitness to practice law.

VIII.

David Leon Schwartz herein petitions this Court for leave to resign, to surrender his license to practice law, and to have his name stricken from the rolls of attorneys and thereby be disbarred on his consent.

IX.

David Leon Schwartz acknowledges and declares that his disbarment on consent is freely and voluntarily submitted; it is not the result of coercion or duress and David Leon Schwartz is fully aware of the impli-; cations of his disbarment on consent.

WHEREFORE, David Leon Schwartz prays that he be allowed to surrender his license, that same be revoked and cancelled, and further, that his name be stricken from the rolls of attorneys authorized to practice law in the State of Louisiana thus resulting in his disbarment on his own consent.

ORDER

The foregoing Petition, the premises, and the law considered:

IT IS ORDERED, ADJUDGED, AND DECREED

That David Leon Schwartz be allowed to surrender his license to practice law; that the name of David Leon Schwartz be stricken from the Rolls of Attorneys thus resulting in the disbarment of David Leon Schwartz on his consent.

JOE W. SUMMERS Chief Justice

FRANK W. SUMMERS Associate Justice

ALBERT TATE Associate Justice

JOHN A. DIXON Associate Justice

PASCAL F. CALOGERO Associate Justice

WALTER F. MARCUS Associate Justice

JAMES L. DENNIS Associate Justice


text:
    Lynden Howell CLAY v. Louis H. CLAY, Jr.
    No. 61480.
    Supreme Court of Louisiana.
    Feb. 17, 1978.
   In re: Louis H. Clay, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Denied.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Joseph Adair WATTERS, Respondent.
    No. 61607.
    Supreme Court of Louisiana.
    Feb. 23, 1978.
   PETITION FOR LEAVE TO RESIGN TO SURRENDER LICENSE TO PRACTICE LAW AND TO HAVE STRICKEN HIS NAME FROM THE ROLL OF ATTORNEYS DISBARMENT ON CONSENT

TO THE HONORABLE SUPREME COURT OF THE STATE OF LOUISIANA THROUGH THE COMMITTEE ON PROFESSIONAL RESPONSIBILITY OF THE LOUISIANA STATE BAR ASSOCIATION

The Petition of Joseph Adair Watters, Respondent herein, appearing herein personally and through his attorney, William Waller Young, Jr., with respect represents.

I.

That Joseph Adair Watters was admitted to practice law in the State of Louisiana on June 5, 1957.

II.

That Joseph Adair Watters was convicted upon his plea of guilty of a felony in the United States District Court for the Eastern District of Louisiana, all as set forth in the true copies of Indictment and Judgment and Commitment Order attached hereto and made a part hereof as if copied in extenso.

III.

That Joseph Adair Watters acknowledges that his said conviction is now final.

IV.

That Joseph Adair Watters acknowledges that his conviction was of a serious offense, a felony, and one that indicates that he lacks the moral fitness to practice law.

V.

Joseph Adair Watters herein petitions this Court for leave to resign, to surrender his license to practice law, and to have his name stricken from the rolls of attorneys and thereby be disbarred on his consent.

VI.

Joseph Adair Watters acknowledges and declares that his disbarment on consent is freely and voluntarily submitted; it is not the result of coercion or duress and Joseph Adair Watters is fully aware of the implications of his disbarment on consent.

WHEREFORE, Joseph Adair Watters prays that he be allowed to surrender his license, that same be revoked and cancelled, and further, that his name be stricken from the rolls of attorneys authorized to practice law in the State of Louisiana thus resulting in his disbarment on his own consent.

ORDER

The foregoing Petition, the premises, and the law considered:

IT IS ORDERED, ADJUDGED, AND DECREED

That Joseph Adair Watters be allowed to surrender his license to practice law; that the name of Joseph Adair Watters be stricken from the Rolls of Attorneys thus resulting in the disbarment of Joseph Adair Watters on his consent.

JOE W. SANDERS Chief Justice

FRANK W. SUMMERS Associate Justice

JOHN A. DIXON Associate Justice

PASCAL F. CALOGERO Associate Justice

WALTER F. MARCUS Associate Justice

JAMES L. DENNIS Associate Justice


text:
    STATE of Louisiana v. Johnny 0. DAVIS.
    No. 61640.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Johnny 0. Davis applying for supervisory writs. Sabine Parish.

Writ denied.

DENNIS, J., would grant writ.


text:
    STATE of Louisiana v. T. J. GOODS.
    No. 61615.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: T. J. Goods applying for writ of review. Parish of Natchitoches.

Granted. The trial court is ordered to afford access of defendant’s counsel to the presentence report. See La.C.Cr.P. art. 877. See State v. Underwood, 353 So.2d 1013 (La.1977).

SANDERS, C. J., and SUMMERS, and MARCUS, JJ., dissent from this order.


text:
    Lawrence MURPHREY v. TRAVELERS INSURANCE CO. et al.
    No. 61591.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Lawrence Murphrey, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of LaSalle. Writ denied.


text:
    LOUISIANA LIVESTOCK SANITARY BOARD v. Jesse JOHNSON.
    No. 61563.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Jesse Johnson, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline, 335 So.2d 784.

Writ denied.


text:
    STATE of Louisiana v. Jimmy D. MURRAY.
    No. 61683.
    Supreme Court of Louisiana.
    Feb. 27, 1978.
   In re: Jimmy D. Murray applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans.

Writ denied. There is no merit in the application.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Jon F. HOGAN.
    No. 61687.
    Supreme Court of Louisiana.
    Feb. 28, 1978.
   In re: Jon F. Hogan applying for supervisory and/or remedial writs. Jefferson Parish.

Granted,

SUMMERS, J.,

would deny the writ. Applicant has an adequate remedy by appeal in the event of conviction.

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 Patrick E. Carr, Judge of the 24th Judicial District Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, immediately, 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 13th day of March, 1978, 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. Pascal J. MARCELLO.
    No. 61685.
    Supreme Court of Louisiana.
    Feb. 28, 1978.
   In re: Pascal J. Marcello applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson.

Writ denied. The showing made does not warrant the exercise of our supervisory jurisdiction. As to Assignment of Error No. 1, we have construed relator’s contention as an asserted error for denial of pre-trial discovery.


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

text:
    Mr. Homer E. MARTY, Mrs. Luciell Marty and Denese Marty. v. Jack N. LEE, State of Louisiana, Dept. of Sanitary Services and Care Services, Inc.
    No. 61684.
    Supreme Court of Louisiana.
    March 1, 1978.
   In re: Jack N. Lee and Care Services, Inc. applying for writs of certiorari, prohibition and mandamus. Orleans Parish.

Granted. The injunction prohibiting defendant from laying a sewer line on his property, with access to defendant’s property to accomplish the work, is annulled and set aside. However, the injunction is maintained in effect insofar as it prohibits defendant from dumping, draining or permitting raw sewerage from the premises at 838-42 Esplanade Ave. unto plaintiff’s premises at 1320 Dauphine St. A mandatory injunction is granted to plaintiff requiring defendant to accomplish the work of laying the sewer pipe within five working days insofar as the use of defendant’s property is concerned. Plaintiff’s right to claim damages for the invasion of his property and possessory rights as in case of trespass are reserved.

DIXON, J.,

dissents, believing the applicant has no right to go on his neighbors land to repair his plumbing, when it can be done completely on applicant’s land. However, plaintiff-respondent has the right to apply here for a rehearing and would be well advised to attach to his application the evidence heard by the trial judge who granted the injunction.

CALOGERO, J.,

dissents from the writ grant. Relator’s unilateral showing doesn’t convince me that the trial court’s judgment, based on evidence not now before this court, should be reversed in any regards.

DENNIS, J., dissents for the reasons stated by Dixon and Calogero, JJ.


text:
    STATE of Louisiana v. Gerald DICKERSON.
    No. 61714.
    Supreme Court of Louisiana.
    March 2, 1978.
   In re: Gerald Dickerson applying for supervisory and/or remedial writs and for a stay order.

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


text:
    STATE of Louisiana v. Otis QUINCY.
    No. 61700.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Otis Quincy applying for writ of habeas corpus and/or motion to have appeal placed on preference docket. Parish of West Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Floyd A. ST. ANDRE.
    No. 61650.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Floyd A. St. Andre applying for Writ of Habeas Corpus and Mandamus. East Baton Rouge Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Kenneth C. WILLIAMS, Anthony G. Parker v. CRIMINAL DISTRICT COURT.
    No. 61643.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Kenneth C. Williams and Anthony G. Parker applying for writ of mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Noah Lee BROCK v. Willie J. BLAIR, Sheriff of Washington Parish.
    No. 61642.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Noah Lee Brock applying for Writ of Mandamus. Washington Parish.

Writ denied.


text:
    CENTRAL BANK v. Robert V. BISHOP.
    No. 61626.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Robert Y. Bishop applying for certiorari, or writ of review to the Court of Appeal, Second Circuit. Parish of Ouachita. 353 So.2d 1109.

Writ denied.


text:
    James B. DAVIS et ux. v. Homer Wesley DAVIS, Sr., et al.
    No. 61624.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: James Davis applying for certiora-ri, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 353 So.2d 1060.

Writ denied. Result is correct.

SANDERS, C. J., and SUMMERS, J. would grant.


text:
    Grady BUTCHER v. LOUISIANA AND ARKANSAS RAILWAY COMPANY.
    No. 61620.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Grady Butcher, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bossier. 353 So.2d 1068.

Denied.


text:
    Michael B. DORSEY v. ADMINISTRATOR, Louisiana DEPT. OF EMPLOYMENT SECURITY and Sears Roebuck & Co.
    No. 61488.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Michael B. Dorsey applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 353 So.2d 363.

Writ denied.


text:
    STATE of Louisiana ex rel. Claude HOPKINS and Chester M. Lee v. Matthew S. BRANIFF, Judge.
    No. 61485.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Claude Hopkins and Chester M. Lee, applying for writ of mandamus, prohibition and stay order. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Frank Joseph MARTIN, Jr.
    No. 61468.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Frank Joseph Martin, Jr. applying for supervisory writs. Terrebonne Parish.

Denied.


text:
    STATE of Louisiana v. Donald MORGAN.
    No. 61667.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: State of Louisiana through the District Attorney, Harry F. Connick, applying for stay order.

Writ withdrawn.


text:
    STATE of Louisiana ex rel. Adam SMITH v. STATE of Louisiana.
    No. 61611.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Adam Smith, applying for remedial writs of certiorari. Parish of Jefferson.

Transfer to the District Court for a ruling on applicant’s petition.


text:
    STATE of Louisiana ex rel. Junious JONES v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 61653.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Junious Jones applying for writs of habeas corpus/remedial writs. Parish of Orleans.

Granted. Evidentiary hearing ordered.

SANDERS, C. J., and SUMMERS, J. dissent.


text:
    STATE of Louisiana v. Bruce HAWKINS.
    No. 61646.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Bruce Hawkins applying for writs of certiorari, prohibition, and/or mandamus. Parish of Tangipahoa.

Writ granted. The trial court is ordered to entertain relator’s application for habeas corpus insofar as it alleges ineffective counsel, provided relator satisfies the court that he has abandoned any legal recourses to have his conviction reviewed under this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana v. Kenneth LORD.
    No. 61520.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Kenneth Lord, applying for writs of certiorari.

Granted, the order of the district judge on sequestration of jurors is reversed and the jury is ordered sequestered.

SANDERS, C. J. dissents.


text:
    STATE of Louisiana v. Duane L. DICKERSON.
    No. 61641.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Duane L. Dickerson applying for writ of habeas corpus. Parish of East Baton Rouge.

Writ denied.

SUMMERS, J.,

is of the opinion a hearing should be held by the District Court to determine whether applicant is being deprived of adequate medical treatment.


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. Jimmy SYKES v. Robert HENDERSON, Assistant Warden, Nyguen Y. Duc, M. D., Dixon Correctional Institute.
    No. 61644.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Jimmy Sykes applying for writ of mandamus. East Baton Rouge Parish.

Writ denied.

DIXON, J.,

is of the opinion this application should be transferred to the District Court for fixing a trial date.


author: CULPEPPER, Judge.

text:
    Vera Mae ROBINSON et al., Plaintiffs and Appellants, v. BEAUREGARD PARISH POLICE JURY, Defendant and Appellee.
    No. 5717.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    E. M. Nichols, Lake Charles, for plaintiffs and appellants.
    William C. Pegues, III, DeRidder, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

This wrongful death action was previously decided by us, 342 So.2d 696 (La.App. 3rd Cir. 1977). We affirmed the trial court decision that the bridge on which the accident occurred was not a public bridge, and, therefore, the defendant police jury had no duty to maintain it. We did not reach the issue of the jury’s negligence. Our Supreme Court granted writs, reversed our decision, held the bridge is a public bridge and remanded the case to us to consider the issue of negligence, 351 So.2d 113 (1977).

The general facts as to the nature and location of the bridge and as to the occurrence of the accident are set forth in our original opinion. We will not repeat them here.

While we did not discuss the issue of negligence in our earlier opinion, the Supreme Court noted that the trial court had done so. We quote from the Supreme Court opinion: “Furthermore, he (the trial judge) held that plaintiff had not proved negligence or liability on the part of defendant because (1) inspection of the broken parts of the bridge revealed that the timbers were solid, not rotten, (2) the police jury had no knowledge of any defect, and (3) the bridge had been inspected over a month before the accident by the police juror who had responsibility for roads and bridges in his ward, and appeared to be in good shape.”

In his written reasons for judgment, 66 pages in length, the trial judge discusses in detail the testimony of the witnesses on which he based these factual findings. We have carefully reviewed the record and find it fully supports them.

Under the findings of fact, there are no issues of law.

For the reasons assigned, we find no negligence or liability by defendant. The judgment rejecting plaintiffs’ demands is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.


text:
    Robert DUPRE, Plaintiff and Appellant, v. TRI-PARISH FLYING SERVICE, INC., Defendant and Appellee.
    No. 6261.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    John Saunders, Ville Platte, and Donald Soileau, Mamou, for plaintiff and appellant.
    Fusilier, Pucheu & Soileau, L. 0. Fusilier, Ville Platte, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

This is a companion case to Tri-Parish Flying Service, Inc. v. Dupre, 355 So.2d 558, in which a separate decision is being rendered by us this date. In the present case, Robert Dupre, a rice farmer, sues TriParish Flying Service, Inc. for damages to the engine of his irrigation well and loss of part of his rice crop allegedly caused by defendant’s failure to repair the engine in a good and workmanlike manner. In the companion case, Tri-Parish sues Dupre for the balance due on an open account which includes $1,023.53 for the overhaul of the engine. In the present case, the trial judge rejected Dupre’s demand for damages on the basis that he assumed the risk of damage to the engine by continuing to run it, knowing that it was using oil excessively. In the companion suit, the trial judge awarded Tri-Parish the balance due on the open account, subject to a credit of $1,023.53, representing the cost of repairs to the engine. Mr. Dupre, the plaintiff, appealed only the present case. He did not appeal in the companion case.

The substantial issue is whether Mr. Dupre assumed the risk of damage to his engine.

The facts are that in November of 1974 Dupre purchased a tract of rice land and the irrigation well thereon. In January of 1975, he called Tri-Parish to examine the engine and fix it in running condition for irrigation of the spring rice crop. The mechanics from Tri-Parish advised Dupre that the engine was smoking excessively and needed an overhaul. In February of 1975, Dupre contracted with Tri-Parish to overhaul the engine. Pursuant to this agreement, Tri-Parish replaced the piston rings and certain other parts, which they said would put the engine in good running condition.

In early March of 1975, Dupre ran the engine for the first time after the overhaul. It used about three gallons of oil per day. He realized this was excessive, so he immediately notified Tri-Parish, who advised him that this excessive use of oil would probably cease after several days of use required for the new rings to properly seal. Plaintiff accepted this advice and continued to run the engine and to check the oil closely. The engine continued to use about three gallons of oil per day. The testimony indicates that two or three quarts per day would be normal. The engine holds six gallons of oil.

The.condition persisted, and Dupre made numerous complaints. Finally, Tri-Parish agreed that as soon as the pumping season ended, normally about 90 days, they would take the engine back to their shop and check it out and replace the rings if necessary. During May of 1975, the engine became overheated and threw a rod which broke the block. It is a total loss.

In his written reasons, the trial judge discussed the conflicting testimony by experts as to exactly what caused the engine to overheat and throw a rod. The court concluded:

“Much testimony revolved over the exact cause of the damage to the engine. Some experts testified to the effect that the oil was simply allowed to run too low, another expert says that even if it were three gallons low, it could still perform because it has a six gallon capacity. Other witnesses testified that it was not a lack of oil, but rather a connecting arm that came loose and caused the damage. Further testimony involved the nuts holding the connecting rods as being too loose, or too tight, and causing the connecting rod to come loose and being shoved through the engine. With reference to these lock nuts or bolts, testimony also reveals that extreme heat such as could be caused by lack of adequate oil in the engine could cause these lock nuts to loosen, and that probably this is what happened in this particular case.
“This Court is of the opinion that quite possibly the rings placed in the engine were defective. The Court is further of the opinion therefore that while this may not necessarily be the fault of Tri-Parish Flying Service, yet it warrants the parts which it uses in repair work. Therefore credit should be given to Dupre for the amount of the cost of those repairs, that is, the amount of $1,023.53. Otherwise, Tri-Parish should have judgment as prayed for in its suit Number 30,483, subject to a credit of $1,023.53.
“Plaintiff, Dupre’s claim for damages should be denied. The record will reveal that Mr. Dupre is an educated man, knowledgeable in these matters, and that by running this engine knowing full well that it was consuming three to four gallons of oil a day, quite excessively, that he assumed a calculated risk that this procedure could be and indeed was detrimental to the engine and that therefore his claim for damages should be denied.”

As to Mr. Dupre’s knowledge of engines, the evidence shows that he graduated from college with a BS Degree in Chemistry and Physics. He had worked during his high school years as a mechanic’s helper for his father’s International Harvester dealership. As a farmer, he had worked on the engines of automobiles, mowing machines, etc. Thus, the evidence does show that Mr. Dupre had a better than average knowledge of combustion engines.

Since this is an action for breach of contract, rather than a tort action, the narrow defense of assumption of the risk, is not applicable. In Stone, Tort Doctrine, La.Civ.L.Treatise, Vol. 12, Sec. 294, the author explains the rationale of this defense is that the plaintiff, with actual knowledge of the risk, voluntarily chooses to assume the risk, thus relieving the defendant of the duty to protect against the injury. An essential requirement of assumption of the risk is actual knowledge of the risk, which is a subjective test. This differs from contributory negligence where actual knowledge of the risk is not required, the test being that of the reasonable man, an objective test. Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971).

This brief analysis of the doctrine of assumption of the risk indicates it should have no application in actions for breach of contract. In tort actions, where assumption of the risk is a defense, the plaintiff with actual knowledge of the risk voluntarily chooses to expose himself to the harmful actions of the defendant, thereby relieving the defendant of the duty to protect against injury. To apply such a rationale to actions for breach of contract would mean that if plaintiff has actual knowledge of a risk that defendant will breach the contract, and plaintiff does not protect himself against damage by such breach, he thereby relieves defendant of any liability for breach of the agreement. This is not logical.

The applicable rule in the present case is the duty of the injured party to mitigate damages after the wrongful action has occurred. This rule is also referred to as the doctrine of “avoidable consequences”. It can be applied in both actions in tort and actions for breach of contract.

The doctrine of mitigation of damages has been applied many times by the appellate courts of Louisiana. In Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So.2d 823 (1968), a suit for breach of a contract to build a swimming pool, our Supreme Court stated:

“Perhaps the best exposition of the principle, insofar as it is pertinent to the instant matter, appears in 22 American Jurisprudence, 2d, pages 53, 61 and 282, verbo ‘Damages’ (Sections 32, 37 and 203). Therein it is stated: ‘Section 32. Under the doctrine of avoidable consequences, the injured person need not make extraordinary efforts or do what is unreasonable or impracticable in his efforts to minimize damages; reasonable diligence and ordinary care are all that is required to allow full recovery of all damages caused by the defendant’s wrongful activity. More completely stated, the consequences of an injury are recoverable where the injured party acts with such care and diligence as a man of ordinary prudence would under the circumstances, and his efforts to minimize damages are determined by the rules of common sense, good faith, and fair dealing.’ ”

In Meaux v. Hoffpauir, La.App., 219 So.2d 551 (3rd Cir. 1969), a case somewhat similar to the present, plaintiff sued defendant for breach of a contract to furnish water for the irrigation of rice. The defendant contended plaintiff should have minimized his crop damage by securing water from other sources. One of the factors considered by the court in finding that plaintiff had not breached his duty to minimize damage was that defendant had repeatedly assured plaintiff that the water would be forthcoming.

Particularly applicable to the present case is the summary and comment from 66 ALR 3rd 1162, at page 1164:

“According to the doctrine of avoidable consequences, it is said that a party cannot recover damages flowing from consequences which that party reasonably could have avoided. However, the authorities hold that an injured person may recover to the full extent of his injury where he shows reasonable grounds for his failure to make an effort to lessen his damages. Thus, for example, it is said that the repeated assurances of the defendant after an injury has begun that he will remedy the condition is sufficient justification for the plaintiff’s failure to take steps to minimize loss, so long, at least, as there is ground for expecting that he will perform.”

Applying these rules to the present case, we conclude first that the evidence amply supports the finding of fact by the trial judge that defendant breached its contract to overhaul the engine in a good and workmanlike manner. However, we disagree with the trial judge’s finding that the plaintiff assumed the risk of damage to the engine by continuing to run it, knowing that it was using oil excessively. Although plaintiff had better than average knowledge about combustion engines, and he knew the engine was using too much oil, he immediately notified defendant of this defect. Defendant assured plaintiff the reason for the excessive use of oil was probably that the new rings had not properly sealed. Defendant advised plaintiff to continue to use the engine and the condition would probably correct itself. The engine continued to use oil excessively, and plaintiff continued to complain to defendant, and defendant continued to reassure plaintiff that he could run the engine safely until the end of the pumping season and then they would bring the engine to their shop and replace the rings if necessary.

We conclude plaintiff used ordinary reasonable care under the circumstances, particularly in view of the repeated assurances by defendant that it was safe to continue to use the engine. Plaintiff did not breach any duty he had to minimize damages. Therefore, plaintiff is entitled to recover the damages he suffered by reason of defendant’s failure to properly overhaul the engine.

The evidence shows that a new engine of this type would cost about $6,500. There is evidence that in its used condition, before the repairs by defendant, it was worth about $2,750. After the repairs, the engine had a value of about $3,500. Defendant’s employee, Winston Soileau, testified that it would cost about $4,000 to repair the damages caused to the engine by the overheating. This would be more than the value of the engine before it was repaired, so it is a total loss. Plaintiff is entitled to the value of the engine in its condition before the original repairs by the defendant, i. e., the sum of $2,750, and, of course, plaintiff is relieved of paying the costs of the repairs by defendant.

Although plaintiff prayed for damages for loss of part of his rice crop, there is no evidence to support this claim.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Robert Dupre, and against the defendant, Tri-Parish Flying Service, Inc., for the sum of $2,750, together with legal interest thereon from date of judicial demand until paid. All costs in the trial and appellate courts are assessed against the defendant-appellee.

REVERSED AND RENDERED.


text:
    TRI-PARISH FLYING SERVICE, INC., Plaintiff and Appellant, v. Robert Daigle DUPRE (Rusty Dupre), Defendant and Appellee.
    No. 6262.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    John Saunders, Ville Platte, and Donald Soileau, Mamou, for plaintiff and appellant.
    Fusilier, Pucheu & Soileau, L. 0. Fusilier, Ville Platte, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

This is a companion case to Dupre v. Tri-Parish Flying Service, Inc., 355 So.2d 554, in which a separate decision is being rendered by us this date.

For the reasons stated in our opinion in the companion case, the judgment appealed in the present case is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    KRAUSE & MANAGAN LUMBER COMPANY, LTD., Plaintiff and Appellee, v. Lionel VINCENT et al., Defendants and Appellants.
    No. 6283.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rogers & St. Romain by Phillip St. Ro-main, Lake Charles, for defendants and appellants.
    Anderson, Leithead, Scott, Boudreau & Savoy by James A. Leithead, Lake Charles, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

Plaintiff and defendants are owners in indivisión of 144.75 acres of land in Calca-sieu Parish. Plaintiff owns 89%, four defendants own 2% each, and a fifth defendant owns 3%. Plaintiff sued for a partition by licitation, and the defendants (all of whom are majors residing outside of Louisiana) answered, asking for a partition in kind.

After a trial on the merits, the district judge held that the subject property could not be divided into 784 lots of approximately equal value, as would be necessary for a partition in kind.

In a motion for a new trial, defendants alleged they would agree to combine their interests to permit the land to be divided into only nine lots of equal value. They argued they could draw one of the nine, which they would own in indivisión, and the remaining eight parcels would be owned by the plaintiff. The district judge denied the motion for a new trial.

On appeal, defendants do not question the trial judge’s finding that the property cannot be divided into 784 lots of equal value. They now urge only the argument made in their motion for a new trial.

Defendants cite no case which expressly approves a portion of the owners in indivi-sión combining their interest for purposes of drawing lots. They cite cases applying the rule that partition in kind is favored by the law. Hoss v. Hardeman, 156 La. 371, 100 So. 532 (1924); Kaffie v. Wilson, 130 La. 350, 57 So. 1001 (1911).

Even assuming, without deciding, that defendants can combine their interests, and assuming that the mere allegations in their motion for a new trial that they “would be willing to draw as a group” is a sufficient agreement to do so, the record supports the decision of the trial judge in denying the new trial on the basis that the propérty cannot be divided into nine lots of approximately equal value without substantial loss and inconvenience. The tract is irregular in shape with various portions inaccessible from public roads. The Kansas City Southern Railroad runs through the tract, as does the Sabine Water Canal. The nature of the land with respect to its present use is varied with parts being agricultural, others cut-over pine land, and another a pecan grove. Defendants have not even suggested to the trial court or to this court any method of dividing the property into nine lots.

For the above reasons, we affirm the judgment appealed. Costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.