text:
    Anthony John PEDONE, Appellant, v. The STATE of Florida, Appellee.
    No. 76-441.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1977.
    Rehearing Denied Jan. 27, 1977.
    Engel & Mishkin and David B. Javits, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

The defendant Anthony John Pedone was found guilty by a jury of the separate crime of burglary, robbery, attempted murder and grand larceny. He was sentenced to life imprisonment on the burglary conviction and a concurrent term of life imprisonment on the robbery conviction. He was sentenced to fifteen years in the state prison on the conviction of attempted second degree murder and on the conviction of grand larceny, he was sentenced to a separate term of fifteen years.

The proof of appellant’s guilt is overwhelming and the points raised on this appeal are directed to alleged errors of the trial court in rulings made during the progress of the trial. The substantial arguments made relate to the failure of the court to grant a continuance when counsel for the defendant announced that he was made aware of the addition by the State of a crucial witness only four days prior to the date set for trial. Also, defendant alleges he was denied a fair and impartial trial by the court’s denial of his motion for continuance in order to afford him a psychiatric examination to determine whether he was competent to stand trial and to assist his counsel where allegations in the trial proceedings indicated the need for such examination.

Our review of the record convinces us that no error has been demonstrated. See Shepherd v. State, 108 So.2d 494 (Fla. 1st DCA 1959).

The defendant urges that an amendment to the complaint which,.just prior to trial, allowed a change of the third count from “aggravated assault” to “attempted first degree murder” was prejudicial to a fair trial on the amended count. We find that while there is doubt that this change prejudiced the defendant, we are not in a position to hold, on this record, that it was not prejudicial. See Lawson v. State, 251 So.2d 683 (Fla.3d DCA 1971), and cases cited therein. We, therefore, hold that the conviction and sentence under the count for attempted murder in the second degree must be reversed for a new trial. See 5 Am.Jur.2d Appeal and Error § 953.

Defendant’s point claiming the burglary conviction was improper because he and his accomplice gained entry through trickery rather than breaking and entering does not present reversible error in view of the rule that where entrance is obtained by trick or fraud, a conviction for burglary will stand. See 12 C.J.S. Burglary § 9; and 13 Am.Jur.2d Burglary § 13.

Affirmed in part, reversed in part and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Leroy BROWN and Millie M. Brown, a/k/a, Milly M. Brown, his wife, Appellants, v. GOVERNMENT NATIONAL MORTGAGE ASSOCIATION, a corporation organized under an Act of Congress and existing pursuant to Title III of the National Housing Act, Appellee.
    No. 76-1019.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1977.

      Robert A. Bertisch, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Defendants appeal an order denying their motion to vacate order rescinding judgment of dismissal (for lack of prosecution) and granting plaintiff’s motion to continue action.

On November 5, 1974 plaintiff, Government National Mortgage Association, filed a mortgage foreclosure action against defendants, Leroy and Millie Brown. The Browns, who are receiving federal aid subsidies on their mortgage as a low income family under the National Housing Act, filed a third-party complaint against James Lynn as Secretary of the U. S. Dept, of Housing and Urban Development and others. The cause was removed to the federal district court and on August 25, 1975, upon motion of third-party defendants, the third-party complaint was dismissed and the federal court remanded the case to the state court. In September 1974 the parties entered into a repayment plan to enable the defendants to bring the mortgage to a current status.

On April 1, 1976 the circuit court on its own motion issued a judgment directing the action be dismissed unless good cause was shown and if no showing of good cause was made, the action would stand dismissed for lack of prosecution without further order of court. Plaintiff filed a motion to continue reciting the federal court proceedings as the reason for lack of prosecution and also the fact defendants had defaulted under the repayment plan. The court entered an order granting the motion to continue and rescinded its judgment of dismissal. Upon being notified of the above order, defendants filed a motion to vacate and after hearing argument of counsel, the court denied the motion. We affirm.

We find that the federal court proceedings constituted good cause and the trial judge did not abuse his discretion in rescinding the judgment of dismissal. See Popkin v. Crispen, 213 So.2d 445 (Fla. 4th DCA 1968); English v. Hecht, 189 So.2d 366 (Fla. 3d DCA 1966).

Affirmed.


text:
    Barbara BUSH, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1361.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1977.
    Rehearing Denied Jan. 27, 1977.

      Bennett H. Brummer, Public Defender and Robert A. Rosenblatt, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

This appeal is from a judgment of guilty of the crime of grand larceny after a jury trial. The two points presented on appeal urge (1) error upon an incomplete response to pretrial discovery, and (2) the admission of evidence of a similar crime. We hold that the record affirmatively shows that the omission from discovery responses by the State of an oral exculpatory statement made by the defendant to a police officer was not prejudicial to defendant’s preparation of her case. As to the admission of evidence of a similar crime (shoplifting) committed in the same area and shortly after the crime charged, we hold the evidence met the test of relevance as set forth in Williams v. State, 110 So.2d 654 (Fla.1959). See also Wilson v. State, 330 So.2d 457 (Fla.1976); and Roche v. State, 326 So.2d 448 (Fla.2d DCA 1976).

Affirmed.


author: GRIMES, Judge.

text:
    Kenneth Rodney PRINGLE, Appellant, v. STATE of Florida, Appellee.
    No. 76-1015.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 1977.
    Rehearing Denied Feb. 2, 1977.

      Raymond E. LaPorte, Tampa, and Terry Lee Rogers, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

The appellant was charged with receiving a stolen sailboat. Upon appearing for trial, plea negotiations took place in chambers involving appellant’s attorney, the assistant state attorney and the judge. The in-chambers proceedings were not reported.

As a result of the conference, appellant entered a nolo contendere plea to the charge. Upon the request of the prosecutor, the court ordered a presentence investigation. The judge then stated in open court:

“. . . We will have a P.S.I., but, as I told you earlier, counsel, this does sound like a probation case with adjudication withheld.
Mr. Pringle, Mr. Rogers does tell me you are on probation at this time for some sort of crime before.
THE DEFENDANT: Yes, sir.
i|< # $ # #
THE COURT: If you get in any trouble with the law between now and sen-fencing in this case, all bets are off. You understand that, don’t you?
THE DEFENDANT: Yes, sir.”

When the appellant returned for sentencing, he was sentenced to three years imprisonment. The court denied appellant’s request to withdraw his plea and entered the judgment and sentence which are now appealed.

The law is clear that when a judge finds that he cannot honor a plea bargain, he must give the defendant an opportunity to withdraw his plea. Odom v. State, 310 So.2d 770 (Fla. 2d DCA 1975); Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974); Enos v. State, 272 So.2d 847 (Fla. 4th DCA 1973). Thus, our court stated in Odom :

“. . . When this agreement was not honored, either through mistake, inadvertence, or subsequent change in the trial court’s concurrence with the plea bargain, appellant should have had the opportunity to withdraw his pleas. . . ”

Apparently, the reason why the judge changed his mind was because he felt that he had been misled concerning the severity of the prior offense that was referred to in the quotation set forth above. To the extent that can be gleaned from the colloquy during arguments on the appellant’s right to withdraw his plea, appellant’s counsel had advised the court during the plea bargain conference that appellant had one prior marijuana conviction. Between the time of the entry of the plea and the sentencing hearing, another state attorney who was engaged in the investigation of a large marijuana import operation became aware of the pending charge against appellant and sought to obtain appellant’s cooperation in his investigation. When appellant declined to cooperate, the judge was then advised that appellant’s prior marijuana possession offense was connected with this operation. Understandably miffed, the judge concluded that he had been misled and imposed the three year sentence.

The problem with this is that the plea bargain seemed to call for probation unless appellant got into more trouble or something was brought out in the presentence investigation warranting a more severe penalty. There was no indication that appellant was further involved in crime between the time of the entry of the plea and the time of sentencing, and there was no substantial adverse information in the pre-sentence report beyond what the judge already knew. Cf. Barker v. State, 259 So.2d 200 (Fla. 2d DCA 1972).

Under the peculiar circumstances of this case, the judge had every right to decline to put appellant on probation, but when he did so, he was obligated to permit appellant to withdraw his plea. Accordingly, the judgment and sentence are reversed, and the case is remanded for further proceedings at which appellant shall be permitted to withdraw his plea.

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

      . Indeed, one of the conditions of the bargain for his plea in the original marijuana charge was that he would not be required to testify against others who might have been involved.


text:
    Michael Ray SOLOMON, Appellant, v. STATE of Florida, Appellee.
    No. 76-1162.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant pled guilty to a charge of breaking and entering with the intent to commit a misdemeanor in violation of Section 810.05, Florida Statutes (1973). On January 31, 1975, he was sentenced to one year in the county jail. On July 11, 1975, that sentence was suspended and appellant was placed on three years probation.

On April 6, 1976, an affidavit and warrant were issued which charged appellant with violating the conditions of his probation by committing and being arrested for a robbery. A probation revocation hearing was held at which the appellant pled guilty to violating a condition of his probation pursuant to a plea bargain. According to the bargain, the trial court could impose the maximum for the probation violation in return for the state placing the robbery charge on the absentee docket without a hold. Based on appellant’s admission, the trial court found that appellant had violated a condition of his probation and revoked the probation. The trial court then adjudicated appellant guilty of the underlying offense of breaking and entering with the intent to commit a misdemeanor and sentenced him to five years imprisonment with credit for time served. Appellant appeals this judgment and sentence.

Appellant was originally sentenced on January 31,1975. According to Section 26.-34, Florida Statutes (1973), the Hillsbor-ough County Circuit Court began a new term on the first Tuesday of April. The court suspended the original sentence and replaced it with three years probation on July 11, 1975. Thus, the changed sentence was imposed during a subsequent term.

Fla.R.Crim.P. 3.800 allows a court to reduce a sentence during the same term at which the original sentence was imposed (or within sixty days if less than sixty days remain in the term). Upon expiration of the term of the court which imposed a lawful sentence (or the sixty days when applicable), the court which imposed that sentence loses control over the sentence except to enforce it. This means that the order which placed appellant on probation was void for lack of jurisdiction, and this is fundamental error even if not raised at the trial court. Section 948.01, Florida Statutes (1973), which permits the suspension of the balance of a sentence and the placing of a defendant on probation, specifically contemplates that this shall be done at the time of the original sentencing.

Since the change in the sentence which placed appellant on probation was void, it follows that the probation revocation and its corresponding sentence of five years imprisonment was also void. In turn, this makes the plea bargain entered at the probation revocation hearing a nullity. Therefore, the state may proceed on the robbery charge which was dropped in the plea bargain.

The judgment and sentence are reversed. The original sentence of January 31, 1975, shall be reinstated, with appellant being given credit against that sentence for any time served upon the sentence now being vacated.

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

      . State v. Evans, 225 So.2d 548 (Fla.3d DCA 1969).

      . Ware v. State, 231 So.2d 872 (Fla.3d DCA 1970); see Ex parte Bosso, 41 So.2d 322 (Fla.1949).

      . The trial court may have also erred by replacing the remaining six months imprisonment with three years of probation. Even when a court is authorized to modify a sentence, it may only mitigate and may not increase the sentence. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Beckom v. State, 227 So.2d 232 (Fla.2d DCA 1969). However, a grant of probation for a term which is longer than the sentence is not necessarily a reduction of sentence. Cf. Reynolds v. State, 339 So.2d 714 (Fla.2d DCA 1976); Phillips v. United States, 212 F.2d 327 (8th Cir. 1954).

      . Sayer v. State, 267 So.2d 42 (Fla.4th DCA 1972).


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. Raymond CHARLES, Appellee.
    No. 76-1195.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Paul J. Martin, Asst. Public Defender, Bar-tow, for appellee.
   SCHEB, Judge.

Appellant/defendant was charged by in-formations with forgery and uttering a forged instrument contrary to Florida Statutes, Sections 831.01 and 831.02, respectively. The instrument involved was a payroll check for $191.01, drawn by United States Sugar Corp. on the First Bank of Clewiston and payable to the order of “Boone, Fannie M.”

Pursuant to Fla.R.Crim.P. 3.190(c)(4), defendant sought dismissal of the informa-tions, accompanying his motion by an affidavit stating the defendant endorsed the check as “Bonnie Fannie M.” Defendant argued that since the payee’s signature was not correctly endorsed on the check, the drawee bank was not obligated to honor the check, and hence, there was no forgery. The trial judge dismissed both informations, allowing the state to continue prosecution only on the lesser included offenses contained in the information charging forgery. We reverse.

Section 831.01, Florida Statutes, proscribes either the forgery or alteration of an instrument with the intent to injure or defraud another. Forgery requites the making of a writing which falsely purports to be the writing of another, with intent to defraud. The crime may exist even though the name is fictitious when it is shown that the fictitious name was used with an intent to defraud. Green v. State, 76 So.2d 645 (Fla.1954); State v. Rapp, 281 So.2d 193 (Fla.1973).

Clearly, an endorsement supplied to a check drawn on a bank may constitute forgery. Smith v. State, 59 So.2d 625 (Fla.1952); Hazen v. Mayo, 90 So.2d 123 (Fla.1956). Where the name actually signed resembles a true name, the texts indicate that it is sufficient to constitute forgery as long as the instrument bears such a resemblance to the document as may deceive a person of ordinary observation or business capacity, even though experts or persons of experience could not be deceived by it. See generally 37 C.J.S. Forgery, Section 13; 36 Am.Jur.2d, Forgery, Sections 21 to 26.

In dismissing the informations, the trial court apparently relied on State v. Peterson, 192 So.2d 293 (Fla.2d DCA 1966), where this court held that an alteration did not constitute a forgery even though the figures on the check were altered where the amount specified by words was not changed. Defendant contends that here, as in Peterson, there would be no obligation to pay on the part of the bank since the endorsement was not correct. Defendant thus concludes that his actions did not constitute a forgery, but rather a mere alteration of the check which did not change the obligations of the parties. Defendant further points out, and correctly so, that if there was no forgery, there would be no basis for the information charging uttering of a forged instrument. See Forbes v. State, 210 So.2d 246 (Fla.3d DCA 1968). Reliance on Peterson is we think, misplaced because Peterson was premised upon Section 674.19(1), Florida Statutes, which provided that when there is a variance between figures and written amounts, that the writing controls; hence, the obligations of the parties do not change. Irrespective of whether the bank was required to honor the check, those who received it and presumably gave consideration for the check which the defendant admittedly endorsed could be injured by the instrument. Although not perfectly endorsed, it cannot be said, as a matter of law, the defendant’s endorsement did not bear a reasonable resemblance to the required endorsement to a person of ordinary observation. The essence of the offense is the “intent to defraud.” Walters v. State, 245 So.2d 907 (Fla.1st DCA 1971). At this juncture, we cannot say, as a matter of law, that the state cannot establish such intent.

Accordingly, both informations are reinstated, and the cause remanded for further proceedings consistent with this opinion.

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

      . Fla.Stat. § 673.203 provides:
      Where an instrument is made payable to a person under a misspelled name or one other than his own he may endorse in that name or his own or both; but signature in both names may be required by a person paying or giving value for the instrument.


author: HOBSON, Acting Chief Judge.

text:
    Guenevere JENNINGS, Appellant, v. John A. JENNINGS, Appellee.
    No. 76-151.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1977.
    Guión T. DeLoach, Naples, for appellant.
    Richard D. Sparkman, Naples, for appel-lee.
   HOBSON, Acting Chief Judge.

On January 17, 1974, the lower court entered a final judgment dissolving the marriage of the parties. The court held, inter alia, that John, appellee herein, and Guenevere, appellant, each owned one-half of the stock in the business known as Jennings, Inc. Furthermore, the judgment specifically reserved jurisdiction to continue the receivership and/or transfer to another cause of action the receivership of Jennings, Inc. previously instituted. Guenevere’s appeal from that final judgment was voluntarily dismissed before being heard by this court. On May 8, 1974 and again on August 1 of that same year the court below adopted by order stipulations of the parties whereby they modified the disposition of property as stated in the final judgment. Subsequently, on June 9, 1975, the trial court, in ruling on reciprocal motions for contempt, became aware that the parties had negotiated a settlement agreement for resolution of their differences in Jennings, Inc. This agreement, designated “Contract to Purchase,” provided for a “buy-out” arrangement of the appellee’s interest by the appellant. The contract was attached to and made a part of the court’s order with a clause reserving the power to enforce the order as necessary.

Following entry of this order, adopting the contract which modified the disposition of Jennings, Inc. as set out in the original dissolution judgment, a series of offensive and defensive maneuvers began which can best be described as testy. These charges and counter-charges resulted primarily from the parties failing to agree as to certain requirements of the June 9, 1975 order and the assertion by each party that the other was willfully failing to comply with the contract. Apparently exasperated, the trial judge on January 26, 1976 appointed a special master and ordered him immediately to take possession and sell Jennings, Inc. The appellant took this interlocutory appeal from that order.

The primary issue on this appeal is whether or not the trial judge, in the final judgment of dissolution entered on January 7, 1974, retained the requisite authority to make subsequent substantive changes in the property disposition of the business Jennings, Inc. including ordering an immediate sale of the business to resolve a contractual dispute. For the reasons stated herein, we hold that he did not and reverse.

The law in this state is that a final judgment of dissolution settles all property rights of the parties and thereafter bars any action to determine the question of property rights. Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948); Dockery v. Dockery, 43 So.2d 460 (Fla.1949); Shannon v. Shannon, 101 So.2d 428 (Fla. 1st DCA 1958). This principle has been tempered in recent years by allowing a specific reservation of jurisdiction to later determine property rights after dissolution of the marriage. Farr v. Farr, 249 So.2d 761 (Fla. 3d DCA 1971); Kipnis v. Kipnis, 330 So.2d 67 (Fla. 3d DCA 1976). As this court held in Hyman v. Hyman, 310 So.2d 378 (Fla. 2d DCA 1975), cert. discharged 329 So.2d 299 (Fla.1976).

“ . . . We rule that a Trial Court may enter an interlocutory order granting a dissolution of marriage and therein reserve jurisdiction to later determine property rights. The Judgment of Dissolution remains interlocutory until such time as a Final Judgment of Dissolution is later entered determining all property rights and confirming the interlocutory judgment previously entered.” 310 So.2d at 379.

Cf. McKenry v. McKenry, 336 So.2d 20 (Fla.3d DCA 1976).

The pertinent provisions in the final judgment of dissolution of January 7, 1974 provide,

3. The Court reserves jurisdiction to partition the marital home pursuant to Chapter 64, Florida Statutes, (1971).
5. The Court retains jurisdiction to continue the receivership of Jennings, Inc. previously instituted in this cause.
6. The Court retains jurisdiction to transfer the receivership to any cause of action instituted by either of the parties involving Jennings, Inc., subject to the findings herein made.

Nowhere in the final judgment does the trial court specifically reserve jurisdiction to resolve property disputes arising out of supplementary agreements entered into by the parties as to Jennings, Inc. Had such jurisdiction been broadly reserved, we would have no difficulty in finding the trial court correct in seeking to enforce subsequent stipulations and contractual agreements as to the settlement of interests in the business. This view, that the trial court lacked jurisdiction to enforce the contract of June 9, 1975 by sale of the business or otherwise, does not leave the parties without a remedy as to that agreement. We note that the contract of June 9, 1975 is susceptible to a separate suit for a breach thereof and the parties may proceed accordingly.

A subsidiary question arises as to the effect, if any, of the reservation of jurisdiction over the receivership of Jennings, Inc. and the retention of jurisdiction to transfer that receivership to another cause of action. Although it might be argued that reservation of jurisdiction over the receivership continued and validated .the trial court’s adoption of the subsequent stipulations and contract of June 9, 1975, the record reveals, albeit incompletely, that the trial court terminated the receivership on the date of its adoption of the first stipulation of the parties following the final judgment, i. e., May 8, 1974. Even if the receivership had been continued, it is doubtful that the narrow reservation of jurisdiction to continue the receiver could have conferred jurisdiction on the trial court to later sell the entire business and dispose of its assets in a different manner than that set out in the final judgment of dissolution. Since we hold that the receivership terminated prior to entering the contract of June 9, 1975, we need not reach this issue.

Accordingly, we reverse the order appealed from insofar as it requires the immediate sale and distribution of the proceeds of the business known as Jennings, Inc. The parties may also pursue any remedies they have under a separate cause of action.

McNULTY and GRIMES, JJ., concur.

      . The order arose out of a motion by the husband for an agreement not to compete and for an accounting and damages arising out of the operation of Jennings, Inc. The wife filed corresponding motions to close the contractual buy-out arrangement arising out of the June 9, 1975 contract. The trial court denied all these motions, appointed a special master to take physical possession of the business premises with all records, accounts, and assets, and directed the master to sell the same. The order also recited,
      (7) That the Judgment in favor of John A. Jennings, Inc. in the amount of $19,166.00 plus 8% interest from January 7, 1974, shall be satisfied from the sale of Jennings, Inc. prior to any division of proceeds to the stockholders or any payment of monies to any stockholder.
      This latter provision was the remaining payment on a pre-existing debt owed by Jennings, Inc. to the appellee, John Jennings. The final judgment of dissolution entered on January 7, 1974 recognized the debt as amounting to some $44,666 and directed the receiver to pay the appellee $25,000 of that sum.

      . Correspondence in the record dated June 17, 1974 between the receiver and the trial judge indicates that the receiver was relieved of his duties as a receiver on May 8, 1974 which corresponds to the trial court’s order of that date adopting the stipulation of the parties modifying the January 1974 final judgment. Attached to this letter is a financial statement revealing the balance sheets and income statements from November 11, 1973, the day prior to the receiver’s appointment, to May 8, 1974, the day the receiver was relieved of his duties. This stipulation shows that the appellant took over and managed the business of Jennings, Inc.
      We do not dispute the appointment of a receiver in this cause. Courts of equity have long recognized the usefulness of this device and its use is codified under our rules of procedure. Fla.R.Civ.P. 1.620. The general rule with respect to the continuance of a receivership is that it continues as a proceeding ancillary to some other main relief asked for, and until dissolution by discharge of the receiver or otherwise. 27 Fla.Jur. Receivers, § 37. See also 75 C.J.S. Receivers § 92 (1952); 66 Am. Jur.2d Receivers, §§ 192-193. Here, the record does not specifically reveal any final discharge of the receiver. However, the actions of the parties subsequent to the termination of the receiver on May 8, 1974 indicate that the receivership was formally discharged some time prior to formation of the contract of June 9, 1975. This conclusion is required since it is undisputed in the record that both parties had access to certain accounts and assets of the business prior to entry into the June 1975 contract. In fact, the latter contract was an attempt to reconcile differences in the respective interests held by each party in the business. In addition, the contract itself recites that the parties were to transfer to each other certain items which1 were formerly in the custody of the receiver.


author: PER CURIAM. McNULTY, Judge,

text:
    The LADIES CENTER OF CLEARWATER INC., and Francis M. Swain, M. D., Appellants, v. Carol Ann RENO, et al., Appellees.
    No. 76-826.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1977.

      Kevin P. O’Connor of Magill & Sevier, Miami, for appellants.
    Worth T. Blackwell, of Blackwell, Shar-man & Mascara, St. Petersburg, for appel-lees.
   PER CURIAM.

Carol Ann Reno brought this action for damages resulting from an unsuccessful abortion and birth of a child alleging negligence and breach of contract by The Ladies Center of Clearwater, Inc. and Dr. Francis M. Swain. The defendants filed a third party complaint against the unwed father, David A. Keller, alleging that his negligent failure to employ a method of contraception was the legal proximate cause of any injuries or losses suffered by Ms. Reno. The trial court granted summary judgment in favor of Mr. Keller

having determined that the impregnation by the third party defendant is but the philosophical cause and not the legal proximate cause of the alleged damage, and that the only cause of action against the third party defendant is one in bastardy, having determined that illegal fornication has not, as of yet, been elevated to a tort in the eyes of the law, and having further determined that as a result defendants/third party plaintiffs have no right of indemnification or contribution from third party defendant.

We agree with the findings of the trial judge and

AFFIRM.

BOARDMAN, C. J. and WETHERING-TON, GERALD T., Associate Judge, concur.

McNULTY, J., dissents with opinion.

McNULTY, Judge,

dissenting:

In this “wrongful life” action against an abortion clinic and its doctor, brought by the mother of a bastard child born after an alleged negligently ineffectual abortion attempt, I would reverse the order appealed from which dismissed the clinic’s/doctor’s third-party claim over against the admitted father for indemnification of any damages which may be awarded and which, except for the claim against them, may be the sole responsibility of the father pursuant to Chapter 742, Florida Statutes (1975). I would do nothing that might inspire abortionists to attain greater efficiency in the taking of life. Saddling a negligent, unsuccessful abortionist with the legal obligation of a third-party wrongdoer would have just such an effect.

      . The complaint alleged among other things that “as a direct and proximate result of the foregoing, the Plaintiff was damaged in and about her body and was required to accumulate additional medical bills for herself during and after the pregnancy and was required to accumulate additional medical bills and charges for the birth and care of her minor child born as a result of the Defendants’ negligence; Plaintiff suffered severe mental and physical pain, suffering and anguish upon learning of the fact that her pregnancy had not been terminated and due to the fact that the fetus which she carried may well have been damaged from the surgical procedure attempted and by the medications prescribed by the Defendants or their officers, agents or employees or during the course of the joint venture; furthermore, the Plaintiff will be required to support said unwanted child until she reaches her majority and Plaintiff’s earning capacity and income will be impaired during the child’s minority and Plaintiff has been forced to incur the expense of bearing and raising the child until said child reaches her majority.”


text:
    Thomas G. ELLIS, Appellant, v. BARNETT BANK OF LAKELAND, Appellee.
    No. 76-884.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1977.
    William H. Jeter and Adam G. Adams, II, of Adams & Adams, Jacksonville, for appellant.
    J. Hardin Peterson, Jr., of Peterson, Carr, Harris & Seacrest, Lakeland, for appellee.
   SCHEB, Judge.

Appellant Ellis, a guarantor of a mortgage debt, was one of several defendants in a suit brought by the appellee bank to foreclose that mortgage. Included in the relief prayed for was an award of reasonable attorney’s fees as provided in the underlying contract guaranteed by appellant.

Appellee moved for summary judgment. Affidavits as to the merits were submitted by both appellant and appellee prior to the hearing on the motion, but no affidavits were submitted at or prior to the hearing on the issue of attorney’s fees. Some three months after the hearing, without obtaining leave of court, appellee submitted an affidavit on the issue of attorney’s fees and sent a copy to appellant. Thereafter a final judgment of foreclosure which included $10,000 in attorney’s fees was entered.

Appellant contends the court was without authority to assess attorney’s fees under these circumstances. We agree.

Rule 1.510(e), Fla.R.Civ.Proc., provides:

(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or by further affidavits.

If affidavits are to be supplemented under this rule, the approval must be clearly indicated on the record for the benefit of all parties. Kendel v. City of Miami, 281 So.2d 566 (Fla.3d DCA 1973). Although appellant was furnished a copy of appellee’s affidavit on the subject of fees, he was not obligated to dispute that affidavit since he received no indication that it would be considered by the trial court. This being the case, the court erred in awarding the fees without notice and an opportunity for appellant to be heard on the issue. Siciliano v. Hunerberg, 135 So.2d 750 (Fla.2d DCA 1961).

We have carefully examined appellant’s remaining contention that summary judgment on the merits was improperly entered, and find it to be without merit.

Accordingly, that portion of the final judgment awarding attorney’s fees is reversed and the cause is remanded for further proceedings on the subject of attorney’s fees consistent with this opinion; otherwise, the final judgment is affirmed.

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


text:
    RAMAR-DOOLEY CONSTRUCTION COMPANY, Employer, and American States Insurance Company, its Workmen’s Compensation Insurance Carrier, Appellants, v. Calvin L. NORRIS, Appellee.
    No. 76-1004.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1977.

      Ivan Matusek, of Earle, Yanchuck & Cooper, St. Petersburg, for appellants.
    Larry Byrd, of Ginsburg & Byrd, Sarasota, for appellee.
   SCHEB, Judge.

As employer/carrier, appellants challenge an equitable distribution order under the Workmen’s Compensation Law allowing recovery of only 25% of the benefits they paid and are to pay appellee, their employee, who was injured in a vehicular accident on November 7, 1974.

The employer’s carrier has already paid the employee workmen’s compensation benefits of $5,480.69 as ordered by the Judge of Industrial Claims. Additional benefits required to be paid may eventually bring the total to $16,120.69. The employee received $30,000 in a settlement of his third party action against an allegedly negligent tort-feasor. He then sought a determination of the amount the carrier was to receive from the settlement. Upon hearing, the carrier, relying upon Section 440.39(3)(a), Florida Statutes, contended it was entitled to receive $8,060,34, representing a 50% recovery of the benefits paid and to be paid to the employee. The trial judge ordered the employee to reimburse the carrier for 25% of all sums which he had been paid and of those which he subsequently receives in compensation benefits. The order also required escrowing of sufficient sums from the settlement the employee received in the third party tort action to assure fulfillment of his obligation to the carrier for its reimbursement from his future compensation benefits.

Appellants contend the trial court erred in failing to allow a 50% recovery under Section 440.39(3)(a), Florida Statutes, as amended effective October 1, 1974. By cross appeal, appellee attacks that part of the trial court’s order requiring $2,660 of the employee’s recovery escrowed to assure reimbursement to the carrier for future benefits to be paid to the employee. We agree with appellant's position; we reject the contentions by appellee. We reverse.

Prior to October 1,1974, the extent of an employer or carrier’s entitlement where an injured employee recovered damages from a third party tortfeasor was determined by the trial judge, based on “such equitable distribution of the amount recovered as the court may determine,” less a pro rata share of all court costs expended by the employee in the prosecution of the action including a reasonable fee for the employee’s attorney. Effective October 1, 1974, that equitable distribution provision was deleted. For industrial accidents occurring after that date, equitable distribution to the employer or carrier is governed by Section 440.39(3)(a), Florida Statutes, which provides:

“. . . The employer or carrier shall recover fifty percent (50%) of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. . . .”

Prior to the 1974 amendment, the practical effect of the statute was to place the burden upon the carrier to establish the amount of its entitlement. The former statute vested wide discretion in the trial judge and allowed for many equitable considerations in determining the employer or carrier’s entitlement to share in proceeds recovered by an employee against a third party tortfeasor. See Southern Farm Bureau Casualty Ins. Co. v. Bennett, 131 So.2d 499 (Fla.2d DCA 1961). Commenting on the former statute, the Supreme Court of Florida in Arex Indemnity Co. v. Radin, 72 So.2d 393 (Fla.1954) stated:

“We think any effort to establish a precise formula to encompass all variables that may be present in situations arising under Section 440.39(3), supra, would be a simple case of judicial legislai tion. The statute sets up and prescribes the standard. If the language there used is undesirable, the matter is one for legislative action.”

The legislature has acted. We must give effect to the statutory criteria they have imposed. Under the revised statute, once the carrier establishes the expenditures it has made and the future benefits it is to pay, the employer or carrier has the right to receive its 50% of any recovery against a third party tortfeasor, unless the employee demonstrates to the court that he did not recover full value of the damages he sustained because of (a) comparative negligence, or (b) limits of insurance coverage and collectibility. Thus, the legislature has now cast the burden on the employee if he is to succeed in reducing the employer’s carrier’s recovery from the 50% statutory entitlement. Cf., National Ben Franklin Ins. Co. v. Hall, 340 So.2d 1269 (Fla.4th DCA 1976) (1976).

In this case, the employee’s counsel informed the court of the $30,000 settlement and his one-third contingency fee and suggested a 25% pay back as being fair and equitable. The amended statute was then brought to the court’s attention by the counsel for the carrier. Some evidence was presented as to injuries suffered by the employee but the record is devoid of any evidence to indicate he did not recover full value of the damages he sustained either because of comparative negligence or limits of insurance coverage and collectibility. Simply stated, there was no basis for the court to award less than 50% of what the carrier has paid and will pay in future benefits to the employee.

We find no merit in appellee’s contentions on cross-appeal that the trial judge erred in requiring that certain sums be es-crowed to assure repayment of the carrier’s entitlement for its equitable distribution as relates to future benefits to be paid. The thrust of the employee’s argument here is that considering his own health, it is speculative whether he will ever receive those future benefits. The statute establishes the carrier’s lien for an amount that it “. has paid and future benefits to be paid . .” It was not unreasonable for the court to require the employee who has assurance of receiving future benefits to secure the carrier’s share by escrowing $2,660 of his award.

Accordingly, this cause is remanded to the trial court with directions to enter an order authorizing the carrier to recover 50% of the sums paid and to be paid to the employee.

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

      . The new statute apparently envisions an employee will be able to sustain his attorney’s fee and costs incurred in an action against a third part tortfeasor from the 50% of the proceeds he is permitted to retain.


text:
    Thomas Melvin HOWZE, Petitioner, v. STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent.
    No. DD-164.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1977.
    Richard H. Frank and Mark F. Kelly of Law Offices of Richard H. Frank, P.A., Tampa, for petitioner.
    Stephen S. Mathues, Div. of Retirement, Tallahassee, for respondent.
   PER CURIAM.

It appearing that the agency did not err in the order of which review is sought, the prayer of the petition for certiorari review is

DENIED.

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


text:
    Betty G. HILGENDORF, Appellant, v. Martha DENSON, Appellee.
    No. BB-62.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1977.
    Selig I. Goldin of Goldin, Turner & Cates, Gainesville, Sam Spector and Cynthia Tun-nicliff, Tallahassee, for appellant.

      John F. Roscow, III, and William N. Long of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Langdon & Helpling, Gainesville, for appellee.
   PER CURIAM.

Once again, Hilgendorf appeals from a Final Judgment entered upon Denson’s claim for an accounting of the profits earned by Hilgendorf after Hilgendrof dissolved a partnership previously known as “Gateway Realty”. This cause was previously before this Court. Betty G. Hilgendorf v. Martha Denson, Fla.App., 320 So.2d 36. This Court had remanded the cause to the trial judge inasmuch as there was an apparent error in dates which could affect the Judgment. The trial judge corrected the dates and reaffirmed his Final Judgment. In effect, the Judgment provided for distribution of the assets the parties previously owned as a partnership and required Hilgendorf to pay Denson one-half of all earnings made by her for a period of eleven months following the dissolution of the partnership.

In January, 1972, Hilgendorf and Denson formed a partnership known as “Gateway Realty”. The nature of that business was to sell real estate. The partnership was compensated by earning real estate commissions. The partnership was a verbal one, with the understanding that the parties would share expenses and profits. It was not for a fixed period of time and, therefore, was subject to being dissolved at any time by the expressed decision of either party. Section 620.71(l)(b), Florida Statutes. In January, 1973, Hilgendorf told Denson that the partnership was over and Denson left February 2, 1973.

Hilgendorf and her husband owned the premises where the partnership had previously existed. Hilgendorf remained there and continued to operate a real estate business. For six or seven weeks she operated under the name of Gateway Realty of Gainesville, Inc., and thereafter as Betty Hilgendorf, Realtor. There had recently been a classified ad placed in the telephone directory which would continue until January of 1974. Hilgendorf continued to use the same telephone number. Hence, Hil-gendorf had the benefit of the telephone number and the classified advertising. Denson set up her own business at a different location. Hilgendorf accounted for and paid to Denson one-half of all the sales which resulted from listings that were in the office at the time of the dissolution of the partnership. The Judgment entered against Hilgendorf was in addition to those figures.

Assuming arguendo that Hilgen-dorf continued the partnership business for a while, or used its assets, as the trial judge found, Denson’s rights are governed by the provisions of Section 620.765, Florida Statutes. Under that Statute Denson had the right to have the value of her interest on the date of dissolution ascertained and to receive the value of that interest or, at her option, to receive the profits attributable to the use of her right in the property of the dissolved partnership. As stated in Sechrest v. Sechrest, 248 Wis. 516, 22 N.W.2d 594 (1946):

“The reason for the provision in the partnership law for payment of either interest on the retiring partner’s share of the assets or profits, at his option, is not because the retiring partner still retains an interest in the business but rather is intended to give him a return on assets belonging to him which still are being employed in the business by the remaining partner. . .

By accepting the proceeds of the sales from listings which were in the office at the time of the dissolution of the partnership, Den-son elected to receive a part of the profits. Any additional profits which have not been distributed to her would of necessity be limited to that part which her share of the assets of the partnership produced.

As this Court previously stated, Denson seeks to sustain her participation in Hilgen-dorf’s profits for the eleven month period ending January 3, 1974, on the ground that under all the circumstances that is an appropriate period for an accounting by Hil-gendorf of post-dissolution profits earned with partnership assets. See 55 A.L.R.2d 1391, 1424 (1957). The difficulty from that proposition is that other than the sales already accounted for, as mentioned above, there is no evidence that any of the sales or profits made by Hilgendorf were related in any way to the assets of the partnership. “The best considered authorities hold that the former partner or his estate is entitled to the profits which are earned by his share of the assets, or according to his share of the capital, after deducting such share as is attributable to the skill and services of those who have continued to carry on the business.” Rowley on Partnership, Sec. Ed., Sec. 42.3 C. 1.

It must be borne in mind that the profits of the partnership were the result primarily of the performance of personal services. In the absence of particular circumstances affecting the situation, a partner whose only contribution to the firm is personal services or skill is not entitled to share the profits earned after dissolution of the partnership when his services ended upon the dissolution. Again, 55 A.L.R.2d 1418. Griffeth v. Fehsel (1943), 61 Cal.App.2d 600, 143 P.2d 522.

We agree with the proposition that if a surviving or remaining partner continues the partnership business with the partnership assets, the remaining partner is required to account to the withdrawing partner. Biers v. Sammons, 242 So.2d 158 (3d DCA). The distinct difference between this case and the Biers case is that in the Biers case it was clearly the assets of the partnership which were the primary source of revenue (the operation of a utilities company), while in this action the primary basis for profits is the personal service of the parties in selling real estate.

The assets remaining at the time of the dissolution were so minimal that except for the listings already accounted for there was no basis upon which one could claim that subsequent earnings by Hilgendorf were derived therefrom.

The Judgment of the trial court is, therefore, vacated and set aside to the extent of the personal judgment of $9,058 entered in favor of Martha Denson against Betty G. Hilgendorf. The balance of the Judgment is affirmed.

BOYER, C. J., RAWLS, J., and MCDONALD, PARKER LEE, Associate Judge, concur.


text:
    Douglas L. TURVEY, Jr., and Barbara Sue Turvey, his wife, Appellants, v. Michael KULAZENKA and Mary E. Kulazenka, his wife, Appellees.
    No. BB-241.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1977.

      Jack A. Nants, Orlando, for appellants.
    Lou Tally, of Tally & Moore, Mount Dora, for appellees.
   PER CURIAM.

This cause arises out of a foreclosure action brought by appellees-sellers against appellants-buyers of a mobile home park.

By their answer to appellees’ complaint, appellants set forth affirmative defenses and by counterclaim sought a recission of the transaction on the grounds of misrepresentation. The basic factual allegations as to misrepresentation concerned zoning, licensing, and hookups. Appellants had previously owned and managed a mobile home park in Orange County, Florida, and in that capacity dealt with health and zoning authorities. The alleged factual misrepresentations complained of by appellants relate to matters which could have been ascertained by them by inspection of the premises and inquiry to the proper governmental authorities.

As stated in Beagle v. Bagwell, 169 So.2d 43 (Fla. 1st DCA 1964):

“It is a generally accepted rule of law in Florida that under any standard of conduct, and in the absence of accompanying actual deception, artifice, or misconduct, where the means of knowledge are at hand and are equally available to both parties, and the subject matter is equally open to their inspection, if one of them does not avail himself of those means and opportunities, he will not be heard to say that he was deceived by the other’s misrepresentations.”

AFFIRMED.

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


author: DIXON and CALOGERO, JJ.,

text:
    STATE of Louisiana v. James C. DERRYBERRY, Jr.
    No. 58907.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: James C. Derryberry, Jr., applying for writs of certiorari, prohibition and mandamus.

Writ denied. The evidence as a whole constitutes some evidence of guilt of hunting deer. Our review is confined to issues of law; sufficiency of evidence is not a reviewable issue.

DIXON and CALOGERO, JJ.,

dissent from the denial, finding no evidence that defendant was hunting deer.


author: DIXON, J.,

text:
    STATE of Louisiana v. Hugh B. EXNICIOS.
    No. 58962.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: State of Louisiana applying for Writs of Certiorari, Prohibition and Mandamus.

Writ refused. The ruling of the judge of the lower court that a prosecution for violation of an ordinance in the Parish Court must be instituted by affidavit is correct. See LSA-C.Cr.P. arts. 382, 385.

TATE and MARCUS, JJ., are of the belief the writ should be granted.

DIXON, J.,

is of the opinion the trial court was in error, and that District Attorney may prosecute by information, but that no objection was made by defendant, and the matter is de minimus.


author: SANDERS, C. J., MARCUS, J.,

text:
    Rudolph WALKER and Bertha Landeche, his wife v. The ST. PAUL INSURANCE COMPANIES et al.
    No. 59009.
    Supreme Court of Louisiana.
    Jan. 21, 1977.
   In re: Rudolph Walker and Bertha Lan-deche, applying for Certiorari, or writ of review, to the Court of Appeal, 339 So.2d 441, First Circuit, Parish of East Baton Rouge.

Granted, and remanded to the Court of Appeal for it to review the jury award in the light of Coco v. Winston Industries (La., 1976), 341 So.2d 332.

SANDERS, C. J.,

dissents, being of the opinion that there is no error of law in the Court of Appeal judgment.

SUMMERS, J., dissents from the granting of this writ.

MARCUS, J.,

is of the opinion that the writ should be denied. I find no error of law in the judgment of the Court of Appeal.


text:
    STATE of Louisiana v. Phillip HOUSE.
    No. 59204.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
   In re: Phillip House applying for writ of certiorari or review.

Writ denied. Defendant has an adequate appeal in the event of conviction.

DENNIS, J., is of the opinion the writ should be granted.

DIXON, J.,

dissents from the refusal; there is no remedy for the defendant unless he closes without offering any evidence, under the existing jurisprudence. If he offers any evidence, the appellate court is not restricted to a review of the State’s case, but may review the whole case to see if there is any evidence of defendant’s age.


text:
    STATE of Louisiana v. Phillip W. HOUSE.
    No. 59206.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
   In re: District Attorney, E. Baton Rouge Parish, applying for supervisory writs.

Writ denied. We find no abuse of the trial court’s discretion.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., are of the opinion that a writ should be granted and the State allowed to offer evidence of the age of defendant.

SUMMERS, J., is of the opinion the trial judge has abused his discretion in this case.


author: SUMMERS, J.,

text:
    ECONOMY CARPETS MANUFACTURERS v. BETTER BUSINESS BUREAU OF BATON ROUGE, INC.
    No. 59190.
    Supreme Court of Louisiana.
    Jan. 25, 1977.
   In re: St. Paul Fire Marine Insurance Co. applying for Supervisory Writs.

Application denied; we will not interfere with the orderly procedure of the trial court absent a clear showing of probable error and prejudice.

SUMMERS, J.,

is of the opinion the writ should be granted. La.Code Civ.Pro. art. 929.


author: DENNIS, J.,

text:
    STATE of Louisiana v. Roderick J. JENKINS.
    No. 58825.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Roderick J. Jenkins, applying for writs of certiorari, prohibition, mandamus and stay order.

Writ refused. There is no adequate showing of error in the proceedings below.

DENNIS, J.,

dissenting. In the absence of a record clearly showing that the defendant waived his right to be present at rendition of verdict or waived the right to assistance of counsel at sentencing, I would grant the writ for the limited purpose of rendition of verdict and, in the event of conviction, the sentencing, in the presence of both the defendant and his attorney.


text:
    STATE of Louisiana ex rel. Frank C. WILLIAMS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 59065.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Frank Charles Williams, applying for writ of habeas corpus.

Granted; hearing ordered.

SANDERS, C. J., and SUMMERS, J., dissent from the granting of the writ.

MARCUS, J., dissents from the granting of this writ.


text:
    STATE of Louisiana v. Freddie YOUNG.
    No. 59076.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Freddie Young applying for writs of certiorari, prohibition, mandamus and for stay order.

Writ granted: On the showing made, the plea of guilty set aside as unintelligent.

SANDERS, C. J., dissents from the grant of writ.

SUMMERS, J., dissents from this disposition of this writ without a hearing.


author: MILLER, Judge

text:
    Harris A. RESWEBER v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. 5675.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1976.
    Dissenting Opinion Aug. 11, 1976.
    Writ Refused Aug. 27, 1977.
    Davidson, Meaux, Onebane & Donohoe, by J. J. Davidson, III, Lafayette, for defendant-relator.
    J. B. Willis, St. Martinville, for plaintiff- • respondent.
    Before MILLER, DOMENGEAUX and WATSON, JJ.
   WRITS DENIED: This court will not exercise its supervisory jurisdiction save in cases where there is palpable error in the ruling complained of, and then only if irreparable injury will ensue. No such showing being made, the application is denied.

MILLER, J., dissents from the refusal to grant the writ and will assign written reasons.

MILLER, Judge

(dissenting).

I respectfully submit the majority is in error in declining to exercise this court’s supervisory jurisdiction in this case.

On November 6, 1975, Harris A. Reswe-ber filed suit against Liberty Mutual Insurance Company, seeking recovery of property damages to a tractor as a result of an accident which occurred on February 28, 1975. On April 8,1976, more than one year after the accident and shortly before trial was scheduled, Resweber filed a motion to change the party-plaintiff to “Harris A. Resweber, Inc.,” since the damaged tractor was always owned by that corporation and not by Resweber individually. Resweber was majority stockholder in this family corporate entity. Liberty Mutual filed a motion to strike the substitution and, alternatively, exceptions of no cause or right of action and prescription together with a motion for summary judgment. The exception of no right of action asserted that Resweber never had any real interest in the damages complained of, because he never owned the property in question; the exception of prescription alleged that all claims of Harris A. Resweber, Inc. had prescribed under LSA-C.C. art. 3536, since more than one year had passed after the accident. After the trial court denied the motions and exceptions, Liberty Mutual applied to this court for writs.

Under the jurisprudence, the amendment of respondent’s petition to substitute the real party in interest as plaintiff does not relate back to the date of the original petition so as to cure the prescription of the claims of the substituted plaintiff. LSA-C. C.P. art. 1153; Younger v. American Radiator & Standard Sanitary Corporation, 193 So.2d 798 (La.App. 3 Cir. 1967), writ denied, 250 La. 368, 195 So.2d 644 (1967); Succession of Roux v. Guidry, 182 So.3d 109 (La.App. 4 Cir. 1966), writ refused, 248 La. 1106, 184 So.2d 27 (1966); Holley v. Butler Furniture Company, 217 La. 8, 45 So.2d 747 (1950); Ritsch Alluvial Land Company v. Adema, 211 La. 675, 30 So.2d 753 (1947). Perhaps these cases should be overruled to avoid the harsh result in these situations. If so, we should flatly declare that we refuse to follow the Supreme Court decisions.

Absent the decision in Nini v. Sanford Brothers, Inc., 276 So.2d 262 (La.1973), a majority of this panel might have granted the writ in this case. However, Nini is not controlling; it is distinguished in that: 1) It was a workmen’s compensation case and the Supreme Court specifically noted that a liberal interpretation was required under the Workmen’s Compensation Act, and 2) plaintiff there, although deceased at the time suit was filed, did, at one time, have a real interest — a right of action. In the present suit for tort damages to property, Harry A. Resweber, individually, never had an interest in the property. The corporate owner is a separate entity.

The denial of the exceptions of no right of action and prescription is “palpable error” and the relator, Liberty Mutual Insurance Company, is entitled to have these issues finally determined before it is required to defend the merits of the claim. In this regard, I adhere to the views expressed in my dissent in Alexander v. Administrator, Division of Employment Security, 302 So.2d 64 (La.App. 3 Cir. 1974). The court should confront the difficult issues raised by relator at this point in order to avoid the distinct possibility of needless and wasteful litigation.

I respectfully submit the writ should be granted.


author: WATSON, Judge.

text:
    Peggy G. DRERUP, Plaintiff-Appellee, v. Alphonse L. DRERUP, Jr., Defendant-Appellant.
    No. 5504.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 16, 1976.
    Gold, Hall, Hammill & Little, by James D. Davis, Alexandria, for defendant-appellant.
    David A. Sheffield, Alexandria, for plaintiff-appellee.
    Before HOOD, WATSON, and PETERS, JJ.
   WATSON, Judge.

Appellant herein, Alphonse L. Drerup, Jr., neither appeared nor filed a brief in this matter prior to the time the case was called for oral argument. Pursuant to Rule VII, Section 5(b), Uniform Rules, Courts of Appeal, this appeal is considered abandoned, and is hereby dismissed at appellant’s cost.

Appeal dismissed.


author: HUMPHRIES, Judge. DOMENGEAUX, Judge WATSON, Judge HUMPHRIES, Judge.

text:
    Joseph Glenn VIDRINE, Plaintiff-Appellee, v. SENTRY INDEMNITY COMPANY et al., Defendants-Appellants.
    No. 5676.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 1976.
    Rehearing Denied Jan. 26, 1977.
    Writ Refused March 25, 1977.
    Voorhies & Labbé by D. Mark Bienvenu, Lafayette, for defendants-appellants.
    Tate & Tate by Donald J. Tate, Mamou, for plaintiff-appellee.
    Before HOOD, CULPEPPER, DOMEN-GEAUX, WATSON and HUMPHRIES, JJ.
   HUMPHRIES, Judge.

Defendant-Appellant, Sentry Indemnity Company (Sentry) perfects this appeal from an award to plaintiff-appellee for property damages, loss of wages and medical expenses.

The genesis of this case is an automobile accident on November 10, 1973 in the Town of Mamou, Louisiana. Sentry concedes its liability. The only matter at issue is the quantum.

Prior to the accident the plaintiff was an extremely large man (and still is). His weight was approximately 620 pounds. Because of his extreme obesity it was necessary that the seat of his automobile be moved back 4 to 6 inches in order to permit him to fit into the front seat between the back of the seat and the steering wheel. One doctor in describing his appearance states that the fat hung down to his knees.

For a period of approximately 5 years prior to the accident the plaintiff had been toying with the idea of going to a specialist and having an intestinal by-pass operation. He talked to friends or relatives of his who were doctors. In social conversation, 5 or 6 doctors had told plaintiff that an intestinal by-pass operation would help him lose weight. None of these doctors recommended that he have that operation. Not having examined him, certainly they would not. As a matter of fact none of the doctors who examined or treated the plaintiff after the accident recommended that he have the operation. They recommended that he see a doctor of this specialty first. One doctor gave him the name of an endocrinologist.

The plaintiff is a meat inspector for the State of Louisiana. Outside of getting in and out of his car and driving his vehicle he works in an office and his work is quite sedentary.

In order to determine whether the quantum of this case should be affirmed, increased or reduced, it is necessary to review the medical testimony.

Following the accident, which occurred in front of the Savoy Hospital, the plaintiff was admitted to that hospital and was treated by Dr. Gregory M. Savoy. The plaintiff was in the hospital from the time of the accident at 1:55 P.M. November 10, 1973 until November 13, 1973. Dr. Savoy stated that, after three days in the hospital, plaintiff improved to such an extent that he could be discharged. He said that the X-rays were negative. The plaintiff returned to the hospital on December 31st and remained until January 4, 1974. At this time Dr. Savoy stated that plaintiff said that his neck was alright and he was having no trouble.

At the time that Dr. Savoy saw the plaintiff, following the accident, he found several bruises, mostly over the shoulder and arms and across his chest, which he ascribed to hitting the steering wheel. He found some muscle spasm involving the posterior muscles of the neck, as well as possible lumber spasm. At his second hospitalization, X-rays were within normal limits and Dr. Savoy found no evidence of neurological loss in either extremity. He found that the straight leg raising test was never positive and he felt that this test is probably the primary examination that is used to discover nerve root irritation. Dr. Savoy stated that at no time did he find any objective evidence of any injury sustained by the plaintiff other than bruises. He stated that the only thing the plaintiff had were subjective complaints regarding his neck and his back.

Dr. Savoy stated that he would characterize the plaintiff’s weight as “exogenous obesity”, or that caused by overeating.

Under cross-examination by the defendant, Dr. Savoy stated that he never was able to actually elicit any objective findings insofar as the low back complaints were concerned. He stated that he treated the man because the man told him that his back hurt.

The plaintiff introduced the deposition of Dr. John R. Jackson, a neurosurgeon of Metairie, Louisiana. Dr. Jackson examined the plaintiff only one time and that was on February 12, 1974. Dr. Jackson did a neurological examination consisting of clinical testing as well as X-rays. X-rays were most difficult to take because of plaintiff’s obesity. As a matter of fact some types of X-rays were not possible at all. The X-rays that were taken were of poor quality and called for little reliability. His examination revealed that the plaintiff had a full range of motion of the lumbar and cervical spine in all directions and with no limitation of motion on an anterior flexion. He was able to almost touch his toes but the full maneuver was prevented by his obese abdomen. There were no muscular weaknesses or atrophy noted throughout the examination. The grip in his right hand was 190 pounds and his left hand was 180. The deep tendon reflexes were present. Straight leg raising test caused no pain at 100 degrees bilaterally. The sensory examination suggested decreased sensation of the lateral aspect of the right foot and leg to pinscratch. Otherwise sensation was intact throughout. Dr. Jackson stated that, in short, the neurological examination was essentially normal except for the creased sensation of the lateral foot and leg. He stated that there was a suspicion of narrowing of the inner space between L5 and SI. The Court observes that because of the poor quality of the film, as testified to by the doctor, that the possible X-ray findings cannot be considered because the film was not reliable.

In spite of the lack of findings, Dr. Jackson stated that he suspected a bulging disc that was irritating the SI nerve root. He stated: “Fortunately, this is no more than an irritation since it is not creating any objective neurological damage.” In the same answer, wherein Dr. Jackson stated that he suspected a ruptured disc, he also stated: “It is quite possible that the mere loss of 200 pounds of weight would give him complete relief of his symptoms”. It must be observed that Dr. Jackson was not, at any time, giving a definite diagnosis but merely was expressing possibilities that might exist.

The doctor stated, under direct examination, that he could not conclude with reasonable medical certainty that the man had a bulging disc. (Tr. 44).

“Q. . . . can you state with reason-ble medical certainty that this man probably does have a bulging disc?
A. No, on these findings I can say that I suspect he has a bulging disc and I can’t say that he probably does until I prove it with a myleogram.”

Dr. Jackson stated that he could not determine whether the “marginal narrowing” of the inner space was caused by the accident. He stated that he found no objective evidence of neurological damage. (Tr. 54).

“Q. Summing up, you didn’t really find any objective neurological damage in this patient?
A. That’s right.”

The plaintiff called these two doctors to testify and is of course bound by their testimony.

The other doctor that examined the plaintiff was Dr. J. Frazer Gaar, a board certified orthopedic surgeon of Opelousas, Louisiana. Dr. Gaar’s deposition was taken on behalf of the defendant. Actually the only thing that Dr. Gaar found was that the plaintiff was “grossly obese”. He estimated his weight to be in the vicinity of 600 pounds. He didn’t have any scales that went up that high. The patient was so heavy that he broke the doctor’s examining table and the remainder of the examination had to be done with him standing or sitting in a chair. Dr. Gaar found that the plaintiff had complete extension of his knees without any complaint of back pain. He could forward flex to approximately 45 degrees before he complained of any pain. He did not complain of radiation of pain down his legs with forward extension. The doctor was unable to get any natural reflex action from the patient. He found that the plaintiff had no significant muscular weaknesses or any atrophy. He described plaintiff’s reaction to pin prick of both legs as a stocking type of anesthesia or hypothesia. He stated that this had no anatomical basis, and was of no diagnostic value. It should be pointed out that Dr. Jackson found this to be the only symptom that would lead to a diagnosis of a ruptured disc. Plaintiff had good muscle function in both legs. He demonstrated a good range of motion in the neck and there was no muscle spasm noted there. There was no complaint of any tenderness in the cervical or shoulder region. Compression of the head did not cause any complaint or any radiation of pain in the arms. He stated that the plaintiff complained of subjective decrease to pain with pin prick in both little fingers bilaterally. He stated that this had no anatomical basis. He found that the plaintiff had adequate pulses and that he had no sensory loss. He had an adequate range of motion in the shoulders. The doctor was only able to take adequate X-rays of the cervical spine. He could not take X-rays of the lumbar spine because his machine was not strong enough to penetrate the fat. He stated that all of the complaints were subjective and he failed to find any organic pathology and he could not demonstrate any spinal cord compression or nerve root irritation with his examination and limited X-rays.

There was no lay testimony introduced. The medical evidence regarding injury is most meager and certainly will not support a high award of $16,000 as granted by the trial court.

While the plaintiff was testifying, and his testimony was quite brief, he stated that he had been to Houston and had had an intestinal by-pass operation done in July of 1975. The trial was in September of 1975. He stated that since this by-pass operation he had lost about 150 pounds. There is no other proof in the record that this plaintiff had a by-pass operation. He stated that no doctor sent him to have the operation but that he on his own diagnosis and prescription went and had it done. The only thing that would corroborate the plaintiff’s testimony was the introduction into evidence, over the objection of the defendant, of three medical bills. There was no foundation laid for the introduction of these rank hearsay documents. These bills are: St. Joseph’s Hospital, $3,274.10; Dr. V. V. Williams, $1,250.00; Association Anesthesiologists, $550.00. There is no testimony that these bills were for a by-pass operation on the plaintiff or anything else. They cannot be used as evidence to prove that any such operation was undergone by the plaintiff. [See: Cloney v. Travelers Insurance Co., 253 So.2d 83 (La.App. 4 Cir. 1971) at p. 95. The Court of Appeal disallowed medical benefits wherein only bills for services were introduced and there was no evidence to show these services were rendered for injuries incurred in the accident. Brister v. Martinez, 277 So.2d 751 (La.App. 4 Cir. 1973). Medical expenses for X-rays taken 8 days less than one year from the date of the accident were disallowed. Injured party had the X-rays taken when he experienced a flare-up of pain. He assumed his pain to be a result of the accident but consulted no physician about the need for X-rays].

Certainly the plaintiff cannot testify regarding such an intricate medical and surgical procedure. There is no explanation whatever in the record as to why the testimony of any doctor regarding such an operation was not introduced. We note here that the rule of evidence is that when the plaintiff is unable to provide a sufficient explanation as to why a treating physician’s testimony is not introduced, it is presumed that such testimony would be adverse to plaintiff’s cause. McCauley v. LaFleur, 213 So.2d 176 (La.App. 3 Cir. 1968) and cases cited therein. Plaintiff’s claim rests upon the supposition that the by-pass operation performed in Houston was necessitated by the accident.

More importantly, however, is that there is no evidence whatever connecting such an operation, if it was undergone, in which the plaintiff was involved. It is certainly the duty of the plaintiff to prove first, that he underwent such an operation and, secondly, and more importantly, that its necessity was brought about by the accident. Sattler v. Allstate Insurance Company, 225 So.2d 54 (La.App. 3 Cir. 1969); Pierrotti v. St. Paul Fire & Marine Insurance Co., 273 So.2d 263 (La.App. 3 Cir. 1973). Since the plaintiff has failed to sustain this burden of proof the award for pain and suffering, loss of wages and medical expenses for such an alleged operation and period of disability must be disallowed.

We are of the opinion that an award of $3,500 for the pain and suffering for the cervical sprain and possible lumbar sprain and the few bruises suffered in the accident is quite adequate for the small amount of discomfort that plaintiff proved that he sustained.

The defendants make no complaint of the award for the expenses for drugs and we therefore affirm this item of the award. The defendants make no complaint of the award for the property damage and automobile rental and this is likewise affirmed. The award for loss of earnings for the period he claims to have been in the hospital in Houston must be disallowed. This dictates an award for loss of earnings of $250 for the two periods of hospitalization at the Savoy Hospital.

The judgment of the trial court is amended so as to award as follows:

TO: Allstate Insurance Company $1,254.11
TO: Joseph Glen Vidrine
Pain and suffering $3,500.00
Property damage deductible 100.00
Loss of earnings 250.00
Savoy Memorial Hospital 169.20
Savoy Memorial Hospital 334.85
Automobile rental 760.00
TOTAL $5,114.05

The plaintiff is entitled to legal interest from judicial demand until paid.

The defendants are assessed all costs in the district court and plaintiff is cast for all costs in this court.

AMENDED AND AFFIRMED.

DOMENGEAUX, J., concurs in the result reached and assigns written reasons.

WATSON, J., concurs in part and dissents in part.

DOMENGEAUX, Judge

(concurs in the result reached).

Plaintiff was awarded $10,900.00 for damages referable to a by-pass operation. There is no medical or other evidence to connect the alleged operation with the accident. Additionally, he was awarded approximately $12,500.00 for pain and suffering due to back injuries from the accident. Beyond a couple of months his medical proof was practically nil on that score. Simply stated, whatever back condition plaintiff may have is caused by his extreme obesity which preceded the accident. There is no proof of aggravation.

WATSON, Judge

(concurring in part and dissenting in part):

The award made by the trial court in this case falls into two categories: (1) damages for pain, suffering, disability, loss of wages and medical expenses resulting from the injuries sustained in the accident; and (2) damages for pain, suffering, loss of wages and medical expenses involved in an intestinal by-pass operation which plaintiff alleges he had in order to reduce his obese condition and promote recovery of his back injury-

As to the by-pass operation, I concur with the majority that an award should not have been made. There is insufficient proof to establish that plaintiff in fact had such an operation. The record is devoid of testimony, deposition or medical report from the physician who performed the operation; the only evidence is plaintiffs testimony and some medical bills.

As to whether plaintiff could have recovered for the by-pass operation if proven, I reserve judgment.

I dissent vigorously from the reduction of the award of general damages to plaintiff. The trial court awarded the sum of $12,500, based on: the fact that plaintiff was involved in an automobile collision, which resulted in $1,354.11 damages to his vehicle; that he suffered bruises and contusions about his arms, shoulders and chest; that Dr. Savoy, the physician who examined him initially, found definite muscle spasm of the neck and some spasm in the low back (difficult to discern because of obesity [TR. 62]); that another physician found a narrowing of a vertebral interspace; and that plaintiff testified he has continued to suffer with his back since the accident. The trial court may have been impressed with the fact that Dr. Jackson, a qualified neurosurgeon, testified he “suggested” a bulging disc in the lumbar region. It is important to note that the physicians, who according to the majority did not confirm plaintiff’s back injury, did not deny the validity of his complaints. Plaintiff was so fat that the doctors could not either confirm or deny the continued existence of the injuries to his low back. It is unfortunate that plaintiff is obese, but defendants take plaintiffs as they find them. One final factor which may have impressed the trial court is that plaintiff has lost 150 pounds, attempting to relieve the back pain which the majority concludes he does not have.

Obviously, the trial court was impressed with the extent of the injuries found by the physician who examined plaintiff immediately following the accident and with the sincerity of plaintiff’s complaints. The trial court made a credibility judgment in believing plaintiff and in making an award based on the testimony he heard.

The majority is clearly substituting its judgment for that of the trial court in holding that the highest possible award which could be given plaintiff for his various injuries is the sum of $3,500 in general damages. This case points up the problems encountered by the Court of Appeal in substituting its judgment for that of the trial court or trial jury in damage awards. Compare, for example, this award by the majority of $3,500 to the $15,000 (cut from $59,-000 given by a jury) in Schexnayder v. Carpenter, 338 So.2d 344 (La.App. 3 Cir. 1976) where the plaintiff had injuries not unlike those of Vidrine. Mrs. Schexnayder also claimed a traumatic neurosis but the majority there gave short shrift to her contentions. She was never hospitalized (Vid-rine was in the hospital twice), and her medical for the bruises and neck strain was $175 (Vidrine had doctor and hospital bills — not related to the by-pass — of $504.05 and drug bills for muscle relaxants and pain pills of $577.68). This court held that the largest possible award to Mrs. Schexnayder was $15,000 and now the majority is holding that the largest possible award to Vidrine for similar injuries is $3,500. This approach, in my opinion, is in the teeth of the recent jurisprudence of the Louisiana Supreme Court, interpreting LSA-C.C. art. 1934. See Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974) and cases cited therein.

Therefore, I respectfully dissent from the reduction in the ward of general damages from $12,500 to $3,500.

HUMPHRIES, Judge.

ON APPLICATION FOR REHEARING

One of the complaints in plaintiff-appel-lee’s application for rehearing is the failure of this Court to allow for drug expense awarded by the district court. In our opinion we stated:

“The defendants make no complaint of the award for the expense for drugs and we therefore affirm this item of the award.”

In our recapitulation of the award we inadvertently omitted this item. The award total is amended to include this $802.68 for a total award of $5,916.73.

In addition, the first sentence of the first full paragraph on page 8 is amended to add the words “with the accident” between the words “undergone” and “in” to read thusly.

More importantly, however, is that there is no evidence whatever connecting such an operation, if it was undergone, with the accident in which the plaintiff was involved.

The application for a rehearing is otherwise denied.

WATSON, J., votes for a rehearing.