author: PER CURIAM.

text:
    Robert Earnest DeFOREST, Appellant, v. STATE of Florida, Appellee.
    No. HH-4.
    District Court of Appeal of Florida, First District.
    March 13, 1978.
    Michael J. Minerva, Public Defender and Edward L. Harvey, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant entered a plea of guilty to a charge of an accessory after the fact for robbery and was sentenced to a term of one year in the county jail, with credit for seventy-four (74) days jail time. After having served six (6) months of said term, appellant was to be placed on probation for three (3) years. During the period of probation, an affidavit was filed alleging a violation of probation. Following a hearing on the alleged violation, appellant was found guilty of the violation and his probation was revoked. The appellant was sentenced to two (2) years in State prison with credit for the time spent in jail awaiting the revocation hearing and sentencing, ninety-five (95) days.

The appellant’s probation was properly revoked. However, the appellant urges that the trial court was required to give the appellant credit for the jail time previously served as a condition of probation. State v. Jones, 327 So.2d 18 (Fla.1976). We agree that the appellant should be given credit for the time previously served on the split sentence. Although the record does not reflect what portion of the six-month split sentence the appellant actually served, the record clearly reveals that the appellant was not given credit for such period, contrary to State v. Jones, supra. Therefore, the judgment is affirmed and the case is remanded for proper sentencing. The trial court shall determine the period of credit time to be allowed attributable to the split sentence and the appellant shall be credited for such time. The appellant need not be present for this purpose.

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


source: Caselaw Access Project

license: Public Domain

text:
    John STETSON, Appellant, v. Mary STETSON, Appellee.
    Nos. 76-2359 and 77-127.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Donald J. Sasser of Johnston, Sasser & Randolph, West Palm Beach, for appellant.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellee.
   PER CURIAM.

The husband in this divorce case raises several points on appeal. With one exception, we find that the trial court did not abuse its discretion: It erred in finding that a certain 1970 Lincoln automobile belongs to the wife. The automobile in question was titled in the joint names of the parties. The wife neither pled nor proved a special equity in the jointly owned automobile and an award of the husband’s interest in the automobile to the wife cannot be justified as alimony. The court specifically denied the wife’s prayer for alimony based upon the financial resources of both parties and the earning ability of the wife. We can find no legal basis for the court’s determination that the automobile belongs to the wife. It was jointly owned and upon dissolution of their marriage the parties became tenants-in-common.

AFFIRMED in part, REVERSED in part, and REMANDED.

ALDERMAN, C. J., and LETTS and MOORE, JJ., concur.


text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. James I. WILLIAMS and Harry F. Jones, M.D., et al., Appellees.
    No. 76-2623.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Gerald R. Wells, Fort Lauderdale, for appellant.
    Michael F. Kempner, Fort Lauderdale, for appellee James I. Williams.
   PER CURIAM.

This is an appeal by the employer’s Workmen’s Compensation carrier from an order denying it any award in a proceeding for equitable distribution, pursuant to Section 440.39, Florida Statutes (1975).

We have considered appellant’s contention in the light of the record and the authorities and find that no abuse of discretion has been demonstrated. In equitable distribution cases a trial judge, when supported by the record, may in the exercise of his discretion find the insurance carrier not entitled to recover any amount by way of equitable distribution. United States Fidelity & Guaranty Company v. Harb, 170 So.2d 54 (Fla. 3rd DCA 1964).

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

DOWNEY, ANSTEAD and LETTS, JJ., concur.

      . The record does not contain the evidence adduced at the hearing on appellant’s application for equitable distribution. However, the trial judge made specific findings of fact in the judgment.


author: LETTS, Judge.

text:
    COMMERCIAL UNION INSURANCE COMPANY, Appellant, v. The ESTATE of Dianne C. PLUTE, the Estate of John R. Skeen, or his personal representative and Florida Farm Bureau Mutual Insurance Company, Appellees.
    No. 76-2665.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.

      Edna L. Caruso, of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant.
    David E. Stone, of Stone, Sostchin & Gonzalez, P. A., Miami, for appellee, The Estate of Dianne C. Piute.
   LETTS, Judge.

On appeal is an award, pursuant to Sec. 627.428 Fla.Stat. (1975), of attorneys fees equalling 90% of the total amount payable under the policy. We affirm with directions.

A long recitation of the facts and circumstances of this case will not, in our opinion, provide significant precedent. Suffice it to say that the insurance company denied coverage and the policy holder was required to sue to recover. The insurer contests, not so much the hourly rate of $100.00, but the number of hours, estimated at 200. Furthermore, the insurer also contends that, properly handled, no more than 50 hours attorney’s time need have been expended, regardless of how much actually was expended, and cites numerous examples of what might appear to be incompetence on the part of the insured’s counsel. Lastly, the insurance company claims that some of the legal work involved was not attributable to its recalcitrance, even assuming such existed.

We suspect that one or more of these arguments by the insurer, may be, at least in part, correct, but find no overriding evidence of this in the record, to justify an overturning of the trial judge’s exercise in discretion.

We agree with the Third District that the insurance company should only be required to pay a reasonable fee for necessary representation. Allstate Insurance v. Baer, 334 So.2d 135 (Fla.3d DCA 1976), but do not feel the record demonstrates, conclusively, that the trial judge here ignored the “reasonable” and “necessary” precepts under case law and statute. Nor can we say that fees equalling 90% of any award are conclusively capricious, for it would appear that a competent lawyer might well be required to expend a hundred hours of his time to recover a mere $5,000 from a stubborn and unreasonable insurer. If such were to occur, we would have no hesitation in approving a fee in excess of the award, because, although the amount of the award is a factor, it is not of controlling significance. All-Star Insurance v. Scandia, 321 So.2d 575 (Fla.3d DCA 1975).

The insurance company also argues that the policy holder in this case has already paid his counsel $8,000 in fees out of his own pocket, and that the trial court’s ruling will result in an attorneys fee of $26,000 rather than the $18,000 envisaged by the trial judge. However, there is nothing in the record to demonstrate that such will be the result and we cannot therefore overturn the award for that reason. Notwithstanding, the ethics of the situation, coupled with the nature of the representation, would obviously dictate the refund of the $8,000 unless the insured has agreed to a $26,000 fee. Sec. 627.428 of the Florida Statutes was enacted to protect the public from being squeezed out by the overwhelming economic power and resources of the insurance industry and was not designed to provide windfall profits for the legal profession. The trial court has here determined that a total “reasonable” fee would be $18,000 and we are convinced that the applicable statute presupposes that the insurance company will pay all of that total fee. To think otherwise is to suppose that the legislature foresaw the payment of an unreasonable fee, in addition. Counsel for the insured, at the hearing on his attorneys fees, testified that his 200 hours, for which he has been rewarded by the court, included the setting up of, two estates, necessary interlocking negotiations with a second insurer and, generally, all representation incident to the end result. So be it.

This cause is affirmed, but remanded to • the trial judge for a hearing to ensure that the policy holder is to be reimbursed for the $8,000 he expended, unless, for some unlikely reason, the insured has, with full understanding, specifically agreed to pay this extra sum on top of the $18,000 awarded by the court.

AFFIRMED AND REMANDED IN ACCORDANCE HEREWITH.

ALDERMAN, C. J., and MOORE, J., concur.


author: MOORE, Judge.

text:
    Ernest WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 77-7.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Appellant seeks reversal of his conviction for burglary of a dwelling and the resulting fifteen year sentence of imprisonment. At trial the appellant testified on his own behalf and was the only defense witness. During direct examination defense counsel attempted to inquire as to appellant’s whereabouts on the night in question to lay the foundation for an alibi defense, but was prevented from doing so by the prosecutor’s objection grounded on appellant’s failure to reply to the State’s pretrial demand for notice of intention to claim alibi. The judge agreed with the State’s position and excluded appellant’s testimony regarding his own activities on the night of the incident. Appellant, being only permitted to baldly deny his involvement, later swore on direct examination that he did not commit the alleged crime.

It is clear that the trial judge erred by excluding appellant’s own testimony concerning his activities on the night of the burglary. Fla.R.Crim.P. 3.200, which requires the filing and serving of defendant’s notice of intention to claim alibi upon demand by the State, provides that if the defendant fails to file and serve a copy of such notice the court may exclude evidence offered by the defense for the purpose of providing an alibi, except the testimony of the defendant himself. Thus, such notice is not required in any event if the defendant intends to be the sole witness in regard to the alibi. State ex rel. Mitchell v. Walker, 294 So.2d 124 (Fla. 2d DCA 1974).

Conceding the lower court’s error, the State argues it was harmless. We disagree. Appellant’s only defense was that he did not commit the burglary that occurred on the night in question. The erroneously excluded alibi testimony went to the very heart of appellant’s defense and the net effect of this error was to deprive appellant of the right to be heard in his own defense. The fact that appellant could not testify as to his whereabouts on the night in question could well have raised speculation in the minds of the jury as to his veracity in denying his guilt (if he wasn’t there, then where was he?) and, thus, could easily have contributed to his conviction. Cf. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Bennett v. State, 316 So.2d 41 (Fla.1975).

We also note appellant’s constitutional challenge to the exclusion of his alibi testimony and the contrary positions taken by the Tenth Circuit Court of Appeals in Rider v. Crouse, 357 F.2d 317 (10th Cir. 1966) and, in an analogous situation, the Fifth Circuit in Hall v. Eastern Air Lines, Inc., 511 F.2d 663 (5th Cir. 1975). If the lower court’s error was also a constitutional violation, the burden of demonstrating the resulting prejudice (or lack thereof) would be shifted from the appellant to the State. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In this regard, although the State presented a reasonably strong circumstantial web of evidence against the appellant in addition to the testimony of one eye-witness, still the evidence was not so overwhelming that any possible constitutional error should be considered harmless. Cf. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). However, inasmuch as the exclusion of appellant’s alibi testimony was erroneous under Fla.R.Crim.P. 3.200 and clearly resulted in prejudice to appellant, we reverse without reaching the constitutional issue presented.

The judgment and sentence is reversed and the cause remanded for a new trial consistent with this opinion.

REVERSED and REMANDED.

CROSS and LETTS, JJ., concur.

      . The United States Supreme Court has not yet had occasion to rule on the constitutional validity of sanctions imposed for failure to comply with notice of alibi rules. See Williams v. Florida, 399 U.S. 78, 83, n. 14, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970).

      . Although Florida’s harmless error statute, Fla.Stat. § 924.33 (1975), provides that an appellate court shall not presume that error injuriously affected the substantial rights of the appellant, when the error reaches constitutional magnitude it must be judged by federal standards and the holding in Chapman, supra, which places the burden on the State to prove beyond a reasonable doubt that constitutional error was not harmful, must prevail over the Florida statute.


author: DAUKSCH, Judge.

text:
    Carmine MARTUCCI, Appellant, v. Ames BENNETT, Aia, Richard Garfield, Bliss & Nyitray, Inc., etc., and Moseley Collins, et al., Appellees. Carmine MARTUCCI, Appellant, v. BLISS & NYITRAY, INC., etc., Richard Garfield, et al., Appellees. Carmine MARTUCCI, Appellant, v. Moseley COLLINS and Richard Garfield, et al., Appellees.
    Nos. 77-57, 77-88 and 77-89.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Larry Klein, West Palm Beach, for appellant. '
    Gregory B. Dickenson, of Warwick, Campbell, Dickenson & Hewitt, Palm Beach, for appellee Moseley Collins.
    Richard A. Henry, Palm Beach, for appel-lee Ames Bennett.
   DAUKSCH, Judge.

This case comes to us after a summary final judgment was entered for Appellees against Appellant. There are material issues of fact raised within the pleadings and the depositions which cannot be resolved by summary judgment at this point. For example, there is a question of the authority of an alleged agent to bind the Appellant as a principal and there is a question as to whether the claims of lien were filed on time. These issues and any others which may become apparent must be resolved before a final judgment can be rendered. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

REVERSED and REMANDED.

ALDERMAN, C. J., and CROSS, J., concur.


author: ALDERMAN, Chief Judge.

text:
    Anthony CUCCO, Appellant, v. STATE of Florida, Appellee.
    No. 77-113.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.

      Valentine Gabaldon, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

In this revocation of probation case the defendant contends that he was denied due process of law. We reverse.

The State alleged that the defendant violated his probation by failing to live and remain at liberty without violating any law in that he committed grand larceny by participating in the theft of 35 rolls of barbed wire. The defendant denied this charge and a trial was held. At the conclusion of the hearing the trial judge stated:

It is my factual conclusion that the defendant Cucco is not guilty of grand larceny; but is guilty of participating in the sale of stolen merchandise.

Based upon this finding the court revoked the defendant’s probation.

This court has consistently held that fundamental due process requires that revocation of probation be based only on violations alleged, and after a hearing. Crum v. State, 286 So.2d 268 (Fla. 4th DCA 1973); Warr v. State, 330 So.2d 504 (Fla. 4th DCA 1976); Frederick v. State, 339 So.2d 251 (Fla. 4th DCA 1976). The sale of stolen property is not an included offense of the crime of larceny. Johnson v. State, 226 So.2d 884 (Fla. 2d DCA 1969). The fact that the State alleged that the defendant violated the terms of his probation by committing grand larceny did not put the defendant on notice that his probation might be revoked because he had participated in the sale of stolen merchandise. Each are substantial offenses separate and distinct from each other.

We conclude that the defendant was denied fundamental due process. Accordingly, the order revoking probation is reversed; however, the State, within a reasonable time to be set by the trial court, may file an amended petition for revocation, should it choose to do so.

DAUKSCH, J., concurs.

CROSS, J., dissents without opinion.


author: DOWNEY, Judge.

text:
    Nancy C. ROLLINS, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Howard J. Jones and Jones and Jones Court Reporters, Appellees.
    No. 77-504.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.

      Walter N. Colbath, Jr., of Campbell, Col-bath, Kapner & Fine, West Palm Beach, for petitioner.
    Howard J. Jones of Jones and Jones Court Reporters, West Palm Beach, in pro. per.
    No appearance for Florida Dept, of Commerce, Division of Employment Security, who by written waiver, dated July 20, 1977, waives its right to submit a brief or participate in oral argument.
   DOWNEY, Judge.

After being discharged from her employment Petitioner applied for unemployment compensation which was denied. In due course a hearing was held before an Appeals Referee who found that Petitioner was discharged by her Employer but not for misconduct connected with her work, thus she was entitled to benefits.

The Industrial Relations Commission vacated the decision of the Appeals Referee and remanded the cause to another Appeals Referee for a de novo hearing. The order of the Commission stated:

“The Referee in the hearing below acted in a manner which was in derogation of due process requirements of the law. The Referee by his manner brought the hearing to an abrupt and arbitrary conclusion. The Referee started closing the hearing before he had questioned the employer or the employer had had an opportunity to make a statement. Although the Referee continually insisted he did not want to limit anyone, his actions and attitudes had a chilling effect on the hearing. The hearing did not fulfill the requirements for the fair and impartial hearing due both parties.”

The decision of the Industrial Relations Commission is the subject of this Petition for Certiorari.

We have combed the transcript of testimony of the hearing before the Appeals Referee and fail to find any support whatsoever for the conclusions reached by the Industrial Relations Commission. The only possible basis for those conclusions would seem to be the Employer’s suggestion at the hearing before the Appeals Referee that the Referee had a conflict of interest, the conflict being that after the Employer discharged the claimant she obtained employment with the State of Florida, Unemployment Compensation office in West Palm Beach. At the time of the hearing she had worked there approximately three weeks. No showing of any sort was made to the Referee to indicate any prejudice to the Employer other than the bare fact that the claimant had been employed by the Department of Commerce for three weeks, and the Referee is also employed by the Department of Commerce. It is not even shown that the claimant and Referee work out of the same office or bureau. We think something more was required of the Employer to support a recusal of the Referee under Rule 8B-5.10(1) of the Department of Commerce, Division of Employment Security.

In view of our finding that the record does not support the conclusions contained in the order being reviewed, we grant the Petition for Writ of Certiorari and quash the Order of the Industrial Relations Commission filed February 16, 1977 and direct the reinstatement of the Order of the Appeals Referee.

CROSS and ANSTEAD, JJ., concur.


text:
    Willie C. HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 77-1067.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Alan H. Schreiber, Public Defender and Peter LaPorte, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

The defendant appeals his convictions for sexual battery and false imprisonment. Three points have been raised, but only one, involving the admission of “Williams Rule” evidence, has merit and requires reversal.

The defendant was charged with abducting a young woman as she was leaving a nightclub known as the Embassy Club, and then raping her. Over defendant’s objection, another young woman was allowed to testify that he had raped her about three weeks after the offenses for which he was being tried. We hold that the trial court erred in allowing the testimony of the second rape victim. Evidence of collateral crimes may not be admitted if the effect is merely to show bad character or a propensity to commit crime on the part of the defendant. Williams v. State, 110 So.2d 654 (Fla.1959). In this case there is no more than a very general similarity between the two crimes. Two women were, on different occasions, raped by a man with whom they made contact at or near the Embassy Club. There the similarity between the two incidents virtually ends.

REVERSED and REMANDED for a new trial.

CROSS and DAUKSCH, JJ., concur.


author: KEHOE, Judge.

text:
    Joyce Oesterle TASH, Appellant, v. Douglas W. OESTERLE, Appellee.
    No. 76-2124.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.

      Koppen & Watkins and Faith K. Stalnaker, Miami, for appellant.
    Militana, Militana & Militana, Miami, for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from an order dated April 27, 1976, entered by the trial court denying her petition for modification and for an order requiring payment of arrearages under a final decree of divorce entered on August 26, 1965, between appellant and appellee, defendant below. Appellant also appeals that portion of the order which granted appel-lee’s counter-petition for custody of the parties’ 13 year old son. Additionally, appellant appeals an order dated October 12, 1976, entered by the trial court denying her motions for a rehearing and for attorney’s fees with costs. We affirm the orders, except to the extent that they granted appel-lee custody of the parties’ 13 year old son and denied a consideration of the appellant’s motion for modification; these portions of the orders are reversed and the cause is remanded for further proceedings in the trial court.

Appellant raises the following four points on appeal: (1) that the trial court erred in denying her petition for arrearages in child support; (2) that the trial court erred in denying her petition for modification of the order awarding child support; (3) that the trial court abused its discretion in granting appellee’s counter-petition for change of custody; and (4) that the trial court erred in denying her attorney’s fees and costs in her petition to enforce payment of past due child support.

The usual criteria for modifying child custody provisions are twofold; there must be a material and substantial change in the circumstances of the parties and the best welfare of the child must be promoted by a change in custody. See, e. g., Avery v. Avery, 314 So.2d 198 (Fla. 1st DCA 1975); Spradley v. Spradley, 312 So.2d 215 (Fla. 1st DCA 1975); Nicholson v. Nicholson, 311 So.2d 676 (Fla. 4th DCA 1975); and Bruggisser v. Bruggisser, 244 So.2d 518 (Fla. 3d DCA 1970). The court in Spradley, supra, at 216, stated as follows:

“When considering petitions for modification of custody or visitation arrangements, the court does not have the same degree of discretion as it does in entering the original decree. The law favors the reasonableness of the original decree and, in fact, the same is res judicata of all matters involved and known at the time of the decree and is to be afforded and entitled to this weight at a subsequent proceeding. The party seeking a modification has the burden of proof to show facts warranting modification and to show that the change is for the child’s best interests. Belford v. Belford, 159 Fla. 547, 32 So.2d 312 (1947).”

In applying these criteria to the instant appeal, we are of the opinion that the record fails to reflect sufficient competent substantial evidence upon which the trial court could have properly transferred custody of the parties’ 13 year old son from appellant to appellee. Therefore, appellant’s third point on appeal is well taken and that portion of the orders transferring custody of the child is reversed. Also, in the light of this determination, appellant’s fourth point on appeal is well taken and the cause is remanded for further proceedings in regard to appellant’s petition for modification of the final decree of divorce between the parties. We have also considered each of the other points raised by appellant and find them to be without merit. Therefore, except to the extent specifically set forth above, the remaining portions of the orders appealed are affirmed.

Affirmed in part, reversed in part, and remanded.


text:
    Camelo CANET, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2181.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto and Ronald A. Dion, Asst. Attys. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellant, Camelo Canet, was charged by information with four (4) offenses; (1) armed burglary; (2) armed robbery; (3) display of a firearm during the commission of a felony; (4) conspiracy to commit felonies, to-wit: burglary and robbery.

The trial resulted in a jury verdict of guilty as to all counts. Following his adjudication of guilty the court sentenced him to three (3) concurrent fifteen (15) year terms of imprisonment and one (1) five (5) year term of imprisonment, also to run concurrently.

We have carefully considered appellant’s points on appeal in the light of the record on appeal, briefs and arguments of counsel and have concluded that no reversible error has been made to appear; therefore, the convictions and sentences are affirmed.

Affirmed.


author: NATHAN, Judge.

text:
    Thomas M. DOZIER, Appellant, v. Jacqueline M. DOZIER, Appellee.
    No. 77-724.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.

      Gilbert & Schumacher, Coral Gables, for appellant.
    Harold Peter Barkas, Miami, for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   NATHAN, Judge.

In this appeal from a final judgment of dissolution of marriage, the husband challenges (1) the award to the wife of $20,-000.00 lump sum alimony to be paid from the husband’s share of the proceeds derived from the sale of the marital domicile; and (2) the award to the wife of title in the personal property on the premises, except for the husband’s personal effects.

The record reflects substantial evidentia-ry support for the award of $20,000.00 to the wife as lump sum alimony. This portion of the final judgment is affirmed. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Storer v. Storer, 353 So.2d 152 (Fla. 3d DCA 1977).

However, we find that the award to the wife of all of the personalty in the marital home constitutes a gross abuse of the trial court’s discretion. There is no testimony in the record as to the ownership of the personal property, nor is there a showing by the wife of special equities therein. Therefore, we reverse this portion of the final judgment and remand the cause to the trial court with directions to entertain further hearing upon motion of either or both of the parties, relating to disposition of the personalty in the marital home.

Affirmed in part, reversed in part and remanded with directions.


text:
    J. C. PENNY COMPANY, INC., and Travelers Insurance Company, Appellants, v. Mary DAHLAN and Arthur Dahlan, her husband, Appellees.
    No. 77-1176.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and Bradford Swing, Miami, for appellants.
    Horton, Perse & Ginsberg, Hawkesworth, Schmick, Ponzoli & Wassenberg, Miami, for appellees.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Appellants seek reversal of a final judgment entered pursuant to a jury verdict, awarding the appellee, Mary Dahlan, the sum of Twenty-five Thousand Dollars and her husband, Arthur Dahlan, Fifteen Thousand Dollars for damages caused by injuries sustained by appellees as a result of Mary Dahlan’s slip and fall in appellant/Penney’s store.

In our review of the issues presented for decision, we have concluded that the issue of negligence was properly left to the jury on conflicting evidence and that the trial court was correct in denying the appellants’ motion for directed verdict and judgment notwithstanding the verdict. The record reveals that although the testimony is conflicting, there is substantial evidence to support the jury’s verdict.

It is not this court’s province to substitute its judgment for that of the trier of facts. Accordingly, the judgment appealed is affirmed.

Affirmed.


text:
    DADE COUNTY, a political subdivision of the State of Florida, Petitioner, v. The Honorable Paul BAKER, Judge of the Circuit Court, Eleventh Judicial Circuit in and for Dade County, Florida, State of Florida, Albert Thomas, a/k/a Albert Rossi and Zebedee W. Wright, Respondents.
    No. 77-1769.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.
    Rehearing Denied April 7, 1978.
    Stuart Simon, County Atty. and Murray A. Greenberg, Asst. County Atty., for petitioner.
    Zebedee W. Wright, Ft. Lauderdale, for respondents.

      Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Dade County brings this petition for writ of certiorari to review an order of the respondent judge ordering Dade County to pay to the attorney for one Albert Thomas, a respondent herein, the money that Thomas had expended for a bail bond premium while he was a criminal defendant in the circuit court upon a charge that was ultimately dismissed due to the state’s failure to produce a witness for deposition.

Respondents urge that such payments should be refundable pursuant to Article I, Section 19, of the Florida Constitution, and Sections 939.06 and 939.07, Florida Statutes (1975). This court has previously dealt with this assertion and has held that the premiums for bail bonds are not taxable. See Holton v. State, 311 So.2d 711 (Fla. 3d DCA 1975); and see Dinauer v. State, 317 So.2d 792 (Fla. 1st DCA 1975); and Daniel v. State, 309 So.2d 248 (Fla. 4th DCA 1975).

Upon authority of the cited cases, the order of the respondent judge dated July 20, 1977, ordering the County Comptroller to pay Zebedee W. Wright the sum of $735.00, is quashed.

It is so ordered.


text:
    N. S. L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1951.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   NATHAN, Judge.

N.S.L., a juvenile, was charged by petition for delinquency with burglary and grand larceny. He was tried and adjudicated delinquent for burglary and petit larceny. Careful review of the record discloses that the trial court erred in entering an adjudication of delinquency, as the evidence in this case fails to exclude every reasonable hypothesis of innocence that may be derived from the facts. Mayo v. State, 71 So.2d 899, 904 (Fla.1954); Sanders v. State, 344 So.2d 876 (Fla. 4th DCA 1977).

Reversed.


text:
    Nathaniel CARTER, Appellant, v. STATE of Florida, Appellee.
    No. FF-147.
    District Court of Appeal of Florida, First District.
    March 15, 1978.
    Robert H. Wilson, III and James D. Swearingen of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen. and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This cause is before us on appeal from the judgment of the Circuit Court, Escam-bia County, entered on a jury verdict, finding the Defendant guilty of robbery. The conviction must be reversed and the cause remanded for a new trial due to the conduct of the prosecuting attorney in the course of his closing argument to the jury.

The prosecuting attorney in closing argument told the jury that Defendant’s attorney was trying to “distort the evidence” and then stated:

“MR. RON JOHNSON: She’s trying to mislead you. That’s her job. She’s been appointed to be the defendant’s mouthpiece, and she’s done it. But, remember that when you return to the jury room. It’s almost criminal sometimes the extent these people go to—
MRS. PTOMEY: (Interposing) I object, Your Honor.
MR. JOHNSON: To represent these criminals.
JUDGE: Young man.
MR. JOHNSON: Yes, Your Honor.
JUDGE: You’re not to reply to counsel.
MR. JOHNSON: I’m sorry, Your Honor.”

[At this point the jury was excused for conference on Defendant’s motion for a mistrial, and the following occurred.]

“JUDGE: It’s improper. You can’t comment on her morals and her actions.
MR. JOHNSON: Your Honor, I’m not commenting—
JUDGE: (Interposing) You said, ‘It’s almost criminal sometimes the extent these people go to to defend these criminals.’
MR. JOHNSON: But I’m not accusing her of anything. I said, ‘almost’; I’m not saying that she is.
JUDGE: Are you saying she’s almost a criminal?
MR. JOHNSON: I’m saying it’s almost criminal the extent sometimes these people go to.
JUDGE: I deny the motion for a mistrial, but I’m going to instruct the State Attorney to apologize and to explain to the jury that he didn’t mean that the defense counsel was criminal — or almost criminal.
MR. JOHNSON: You want me to apologize to Mrs. Ptomey, to the jury—
JUDGE: (Interposing) Yes.
MR. JOHNSON: And explain to them what I meant by the argument?
JUDGE: I want to make sure the jury hears that you’re not accusing her of any criminal act or almost criminal act in representing a criminal.
MR. JOHNSON: Gentlemen and Mrs. Stattem of the jury, His Honor has instructed me I shouldn’t have been quite so rough with the young lady. I apologize to you—
MRS. PTOMEY: (Interposing) I object.
MR. JOHNSON: And I apologize to the lady—
JUDGE: (Interposing) That’s all right. Go ahead. The objection is overruled.
MR. JOHNSON: And I apologize to the Court if my argument is improper in any kind of manner .
Well, maybe I should apologize again to the defendant’s lawyer that I didn’t have a bunch of little people running around out there with tape measures and yard sticks trying to measure his height . . ”

The public interest is ill served by conduct such as that exhibited by the prosecuting attorney in this case. The right of a person accused of a crime to be represented by counsel and to be fairly tried is basic to the concept of due process. Lack of respect for this essential requirement by an officer of the court cannot be tolerated, even at the expense of requiring a new trial. Here there is no indication in the record of any genuine effort by counsel to remedy the prejudicial effect of his attack on opposing counsel. Further, there was no effective curative instruction by the court.

Accordingly, the judgment below is REVERSED and the cause REMANDED for further proceedings consistent herewith.

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


author: SMITH, Judge.

text:
    T. D. McCURLEY, Appellant, v. AUTO-OWNERS INS. CO. et al., Appellees.
    No. GG-244.
    District Court of Appeal of Florida, First District.
    March 15, 1978.
    Calvin W. Wilson, Pensacola, for appellant.
    W. Christopher Hart of Clark, Parting-ton, Hart & Hart, Pensacola, for appellees.
   SMITH, Judge.

McCurley appeals from an adverse summary judgment dismissing his action against the owner, driver, and insurer of a vehicle which collided with McCurley’s vehicle. McCurley’s complaint sought to set aside, as having been obtained by fraud, a complete release signed by McCurley and delivered to the insurer’s agent in' exchange for $2,000. The release recites that the payment was in full settlement of all claims, but McCurley testified the agent told him the payment and release were for his automobile damage alone, not for McCurley’s bodily injury. McCurley did not read the release and, if his testimony is taken as true, he apparently overlooked the recitation on the face of the draft that $700 of the payment was for “P. D.” and $1,300 was for “B. I.”

In reviewing the summary judgment dismissing McCurley’s claim, we must credit his testimony from which a jury could find the insurance agent falsely and fraudulently misrepresented the contents of the release. The record does not show sufficiently for a summary judgment that McCurley unjustifiably relied on the asserted misrepresentations or that McCurley was negligent in failing to ascertain the true facts. Florida East Coast Ry. Co. v. Thompson, 93 Fla. 30, 111 So. 525 (1927); Buchanan v. Clinton, 293 So.2d 120 (Fla. 1st DCA 1974); Bryant v. Small, 236 So.2d 150 (Fla. 3d DCA 1970). The movants did not demonstrate the absence of any material issue of fact.

REVERSED.

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


text:
    M & H FOODS, INC., d/b/a Cotton’s Min-A-Mart, No. 6 and Home Insurance Company, Petitioners, v. Janet Lee WILLIS, etc., Respondents.
    No. II-37.
    District Court of Appeal of Florida, First District.
    March 15, 1978.
    R. Dennis Comfort of Jones & Langdon, P. A., Gainesville, for petitioners.
    Harold H. Catlin of Howell, Howell, Liles & Braddock, Jacksonville, for respondents James B. and Clara H. Cochran.
   PER CURIAM.

The point appealed has become moot by the trial court’s apparent rejoinder of the third party defendants, whose severance was complained of by petitioners. We therefore decline to address the point of law involved. The petition is DENIED.

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


author: BOYER, Judge.

text:
    Donnell SLATER, Appellant, v. STATE of Florida, Appellee.
    No. DD-462.
    District Court of Appeal of Florida, First District.
    March 16, 1978.

      Ernest D. Jackson, Sr., of Jackson & Micks, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Michael H. Davidson, Asst. Atty. Gen., for appellee.
   BOYER, Judge.

A jury found appellant guilty of conspiracy to sell or deliver cocaine. He now appeals the adjudication of guilt based upon the jury verdict.

There is nothing in the record to support appellant’s first two points on appeal. As to those points we accordingly affirm.

By his third point appellant urges that the trial court erred in admitting evidence of an agreement between two co-conspirators to purchase and deliver cocaine, the agreement having been made in the absence of appellant.

In establishing a conspiracy the state may adduce evidence of related transactions between or among other co-conspirators not withstanding that all alleged conspirators were not privy to that transaction if it is established that that transaction is part of the overall conspiracy. (Though distinguishable, see Epps v. State, 354 So.2d 441 (Fla.App. 1st 1978), and cases therein cited.) As an example, two parties may agree to commit an illegal act: If, thereafter, a third party joins in the agreement, the original agreement may be proved in the trial of the third party notwithstanding that he was not a party to the initial agreement. Further, the order of proof, in an appropriate case, may be reversed and evidence admitted of declarations or acts of co-conspirators prior to proof of the conspiracy itself. (See Honchell v. State, 257 So.2d 889 (Fla.1971)) Such reversal of sequence is, of course, conditioned on the state subsequently furnishing adequate proof of the conspiracy. (Honchell v. State, supra, and cases there cited)

Appellant’s fourth point is essentially the same as the third and our ruling is the same.

By his fifth point appellant contends that the trial judge committed reversible error when permitting a police officer, over the objection of the defendant, to be qualified as an expert witness regarding street language in the drug culture and permitting the officer to explain to the jury his interpretation of words used by the alleged conspirators in intercepted conversations, the tapes of which were played to the jury. During those conversations the speakers used the terms “C”; “white girl”; “lady”; “snow”; “party pack”; “rock and roll”; “boy”; “white boy”; “doogee”; “kattie” and the expression “three, but I know a duece smoking.” The words were used in contexts wherein their normal lexicographical meanings would be illogical and meaningless. They would make no sense at all to the average juror. We find no error. (See United States v. Cirillo, 499 F.2d 872 (2d Cir. 1974); United States v. Borrone-Iglar, 468 F.2d 419 (2d Cir. 1972); State v. Grayton, 163 Conn. 104, 302 A.2d 246 (1972), cert. den. 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495 (1972); and Llerandi v. Blackburn, 97 So.2d 247 (Fla.1957))

Finally, appellant seeks reversal on the ground that the trial judge denied his motion to be declared insolvent for the purpose of taking necessary depositions of witnesses who were later called by the state as witnesses at the trial. In proceedings for the determination of insolvency, there is a presumption of solvency and the defendant has the burden of rebutting that presumption by constant proof. (F.S. 27.52(2)(a)) The record does not reveal that appellant met his burden of proof. He was represented by able counsel and no error has been demonstrated.

AFFIRMED.

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


text:
    Charles MURRAY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. HH-279.
    District Court of Appeal of Florida, First District.
    March 16, 1978.

      Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of the judgments and sentences for robbery and attempted robbery. Appellant urges the trial court committed reversible error and abused its discretion by prohibiting appellant from interviewing a member of the jury after the trial.

Following rendition of the verdict, the jury was polled, and each juror indicated that the verdict was his as well as that of the jury as a whole. Appellant sought to interview one juror because during the polling of the jury, this juror began crying. This fact does not constitute a reasonable basis for belief that the verdict of the jury may be subject to a legal challenge. Bullard v. State, 324 So.2d 652 (Fla. 1 DCA 1975). Therefore, the trial court did not abuse its discretion by prohibiting appellant from interviewing this juror.

Therefore, the judgment and sentence are AFFIRMED.

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


text:
    PENSACOLA BEACH REALTY, INC., Grace B. Futch and Thomas E. Archer, Petitioners, v. FLORIDA REAL ESTATE COMMISSION, Respondent.
    No. HH-410.
    District Court of Appeal of Florida, First District.
    March 16, 1978.
    Benjamin T. Shuman, Orlando, for petitioners.
    Howard Hadley, Winter Garden, and Charles E. Felix, Orlando, for respondent.
   PER CURIAM.

Petitioners’ petition for writ of certiorari is granted, the Florida Real Estate Commission’s order of 23 September 1977 is quashed on authority of Robins v. Florida Real Estate Commission, 162 So.2d 535 (Fla.3d DCA 1964), and this case is remanded for further appropriate action as the Commission deems necessary.

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


text:
    Stephen BRACEY, Appellant, v. STATE of Florida, Appellee. Danny Lee COCHRAN, Appellant, v. STATE of Florida, Appellee.
    Nos. HH-448, HH-449.
    District Court of Appeal of Florida, First District.
    March 16, 1978.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellants entered pleas of guilty to offense of making or uttering a false prescription, contrary to Section 893.13(3)(a), Florida Statutes (1975). Appellants were adjudicated guilty of the offense. Imposition of sentence was withheld and appellants were placed on probation for a period of five years. As a condition of probation, Bracey was ordered to spend nine (9) months in county jail, whereas Cochran was ordered to spend eleven (11) months and twenty-nine (29) days in county jail. Appellants urge the trial court erred by not allowing appellants credit for time spent in county jail prior to entry of the order of probation.

Section 921.161(1), Florida Statutes (1975), provides:

“A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.”

Under Section 948.01(3), Florida Statutes (1975), the trial court is authorized to stay and withhold imposition of sentence, and place a defendant on probation. The court may, as a condition of probation, order that the defendant spend a specified period of time in jail. Section 948.03, Florida Statutes (1975). State v. Jones, 327 So.2d 18 (Fla.1976).

We do not believe Section 921.161(1), Florida Statutes-(1975), is applicable in the present situation. The order of probation does not constitute an imposition of sentence necessitating applicability of Section 921.161(1).

Accordingly, the trial court did not err in refusing to allow credit for time served against the jail term imposed as a condition of probation.

The judgments and sentences are AFFIRMED.

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


author: SARTAIN, Judge.

text:
    R. C. MARINE SERVICE, INC., Plaintiff-Appellant, v. LOMBAS ORGERON MARINE SERVICE, INC., Defendant-Appellee.
    No. 11747.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    John J. Erny, Jr., Larose, for plaintiff-appellant.
    L. G. Laplante, Jr., Cut Off, for defendant-appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: BLANCHE, Judge.

text:
    Paul Adam VERDIN, Jr. v. LA-TEX GULF DRILLING CORPORATION.
    No. 11804.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    John M. Robin, Metairie, for plaintiff and appellant.
    Joseph A. Reilly, Jr., Houma, for defendant and appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: COVINGTON, Judge.

text:
    STATE of Louisiana, ex rel. Autry Lee JONES v. Richard A. WALLS et al.
    No. 11680.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Autry Lee Jones, in pro. per.
    Richard Rudolph, Baton Rouge, of counsel, for defendants-appellees Richard A. Walls, et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the district court in favor of defendants, Richard A. Walls, Kelly Ward, Robert Bryan and Michael Beauboueff, dismissing the suit of plaintiff, Autry Lee Jones, for damages. The plaintiff-appellant claimed that he was damaged in the amount of $50.00 from each defendant, because defendant Walls arbitrarily made a charge of violation of disciplinary rules against the plaintiff, and defendants, Ward, Bryan and Beauboueff, who made up the Disciplinary Board which heard the charge, arbitrarily sentenced the plaintiff to five days’ solitary confinement and a loss of twelve days’ good time. The plaintiff claimed that Walls maliciously “pre-fabricated” the charge against him, which subjected him to cruel and unusual punishment; and that the other defendants, in bad faith, falsely imprisoned him, which subjected him to cruel and unusual punishment. The plaintiff further alleged that he took a non-suspensive appeal to the Department of Corrections which granted his appeal, and gave him back his good time, but not before he had served the isolation time.

At the trial, the plaintiff offered only his own testimony. The defendants offered only the testimony of defendants Wall and Ward. The gist of Jones’ testimony was that defendant Walls made the charge against the plaintiff because of the fact that Jones had written a letter of complaint about Walls to the Director of Civil Service, and that the Department of Corrections ultimately decided that Jones was not guilty of violating a disciplinary rule. Jones admitted that he had not requested that the sentence be suspended pending an appeal. Walls testified that he charged Jones with “disrespect” for writing the letter, but only after conferring with the deputy warden. He also stated that he bore no malice toward Jones and in no way threatened him; that he believed, at the time that he made the charges against Jones, that it was both “within his power and within the rules.” Ward, who was the Director of Classification for Louisiana State Penitentiary, testified about serving on the Disciplinary Board along with Bryan, who was a Colonel in the Security Division, and Beau-boueff, who was Classification Officer, at the time when Walls made the charge against Jones. Ward stated that at the time the Jones case was decided he honestly believed that Jones was guilty of violating the “disrespect rule”, and that they considered “some of the past appeals” on file in reaching their decision. Ward further testified that he did not bear Jones any ill will, and that to his knowledge none of the other board members had any malice toward Jones.

The appellant’s assertion of “cruel and unusual punishment” is without merit. The courts have uniformly adhered to the rule that solitary confinement is not in itself cruel and unusual punishment. See Annot., 51 A.L.R.3d 111, 162. As this court stated in the case of Craft v. State, 308 So.2d 290, 295 (La.App. 1 Cir. 1975), writ denied, 319 So.2d 441 (5 Cir., 1975), cert. den., 423 U.S. 1075, 96 S.Ct. 859, 47 L.Ed.2d 84: “Cruel and unusual punishments are those that are barbarous, extraordinary or grossly disproportionate to the offense, those that shock the conscience of civilized men.” The record in the case at hand shows beyond any question that no such punishment was inflicted upon the appellant.

We have carefully reviewed the record. There is no evidence indicating that the defendant Walls or the individual members of the Disciplinary Board acted arbitrarily or capriciously in charging the appellant or finding him guilty. See Sanchez v. Hunt, 329 So.2d 691 (La.1976).

In the Sanchez case the Court set out: “Prison officials must be accorded latitude in the administration of prison affairs. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). It is settled that except in extreme cases the courts will not interfere with the conduct of a prison, with its regulations and their enforcement, or with its discipline. Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967). A reviewing court must not disturb an order of the agency charged with the administration of a prison unless, in such an extreme case, its order is clearly arbitrary or capricious.
“The legislature has delegated to the director of corrections broad authority to classify and discipline inmates within the jurisdiction of the department in order to maintain order and safety within Louisiana’s prison system. La.R.S. 15:828; La. R.S. 15:829.”

Moreover, when prison officials act in reliance on good faith beliefs that what they are doing is constitutionally and lawfully permissible, they are not liable in damages as a consequence of their actions even if it should be later established that their beliefs were not well founded. See Skinner v. Spellman, 480 F.2d 539 (4th Cir. 1973).

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Toinette W. CAPPEL et al., Plaintiffs and Appellants, v. Ronald DUPLECHAIN et al., Defendants and Appellees.
    No. 6292.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Writ Refused May 12, 1978.
    Douglas L. Hebert, Jr., Kinder, for plaintiffs-appellants.
    Ryder & Deshotels, Errol D. Deshotels, Oberlin, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

The plaintiffs, owners of farm land, filed this suit against the defendants, who leased the land in 1976, to enjoin the defendants from continuing to farm the property in 1977. The defendants contend their 1976 oral lease was reeonducted for the year 1977. At the beginning of the hearing on the preliminary injunction, the parties stipulated that defendants had a lease for 1977 to raise rice on Tracts 1, 2, 3 and 4, comprising approximately 135 acres, leaving for trial only the issue of whether defendants had a lease for 1977 on Tract No. 5, comprising approximately 100 acres, to raise either rice or soybeans. After the hearing on the preliminary injunction, the trial judge held that the oral lease for 1976 was reconducted for the crop year 1977, and that under that lease defendants had the right to use as much of plaintiffs’ land as defendants desired to raise rice, including the 100 acres in question, but that since the 1976 lease was for rice only, defendants could plant only rice and not soybeans. From a judgment rejecting plaintiffs’ demand for a preliminary injunction, plaintiffs appealed.

The substantial issue is whether the 1976 lease was reconducted for the year 1977.

The facts are that beginning in the year 1967 and until the year 1974, plaintiffs orally leased their farm, on a share crop basis, to Mr. Steve Duplechain. In 1975 and 1976, the lease , was jointly to Steve Duplechain and his son, Ronald Duplechain. In 1975, the lessees raised rice and soybeans. However, in 1976 the lease was for the purpose of raising rice only, and lessees were permitted to choose the tracts which they desired to plant in rice, totaling 118 acres. In 1976, plaintiffs leased the remaining portions of their farm to Heard LeJeune for the purpose of raising soybeans.

After defendants harvested their 1976 rice crop, during the latter part of November or the first part of December, Ronald Duplechain met with Lane Cappel, the farm manager for the owners, concerning the lease for 1977. At that meeting it was agreed that the defendants would plant 134 acres of rice in 1977 on the tracts designated as 1, 2, 3 and 4. Following this agreement with defendants as to the rice, plaintiffs leased the remainder of the farm to Mr. LeJeune to raise soybeans in 1977.

In January of 1977, the Duplechains requested from plaintiffs additional land on which to plant soybeans. Plaintiffs advised defendants that they had already leased to LeJeune to plant soybeans in 1977 all of the land except the 135 acres, Tracts 1, 2, 3 and 4, which had been previously leased to defendants for rice.

In early February of 1977, Ronald Duple-chain again requested plaintiffs to lease to him additional land for soybeans, and he was again refused since plaintiffs had already leased all of the soybean land to LeJeune. Nevertheless, about one week later, Ronald Duplechain started plowing the field of approximately 100 acres, designated as Tract 5, which was in addition to the 135 acres of rice previously agreed upon. Plaintiffs demanded that the Duplechains cease operations on the 100-acre tract. When defendants refused, plaintiffs filed the present suit on February 23, 1977 and obtained a temporary restraining order on that date.

At the hearing on March 3, 1977 for a preliminary injunction, the parties stipulated that defendants had a lease for 1977 to raise rice on Tracts 1, 2, 3 and 4, totaling approximately 135 acres. On that date, a preliminary injunction issued enjoining defendants from conducting farming operations on any of the remainder of the farm, except that defendants’ right to farm Tract 5, the 100 acres in dispute was upheld.

The hearing on plaintiffs’ rule for a preliminary injunction as to Tract 5, the 100 acres in dispute, was held on April 28, 1977. On May 2, 1977, the trial judge rendered written reasons in which he held (1) that defendants’ 1976 lease was reconducted for the year 1977 for the planting of rice only and not soybeans; (2) “that both parties did not by mutual consent alter the existing rice lease so as to limit lessee to the land contained in Tracts 1, 2, 3 and 4, or to otherwise renegotiate the reconducted lease”; (3) that the defendants-lessees led the plaintiffs-lessors to understand that defendants would plant only Tracts 1, 2, 3 and 4 in rice in 1977, and that lessors acted reasonably in leasing the balance of the land to LeJeune for soybeans; (4) that since the defendants-lessees had a rice lease in 1976, “it was the primary lease to plant as much rice each year as was feasible”; (5) that the defendants-lessees would, by their actions, have been estopped to plant any land beyond Tracts 1, 2, 3 and 4, but, since plaintiffs have not pleaded estoppel, they cannot rely on this doctrine.

Judgment was rendered on May 5, 1977 denying plaintiffs a preliminary injunction as to Tract 5, the 100 acres in dispute, and decreeing that the defendants-lessees had a right to plant Tract 5 in rice for the year 1977, in addition to Tracts 1, 2, 3 and 4.

The principal issue is whether defendants’ verbal lease for 1976 was recon-ducted for 1977. LSA-C.C. Articles 2684, 2687, 2688 and 2691 contain the pertinent provisions regarding leases and their recon-duction. Article 2684 makes it clear that the duration and conditions of leases are generally regulated by the agreement between the parties. Article 2688 provides for reconduction, where there has been no new agreement, and states that if the farmer continues in possession of the leased estate for one month after the lease expires, without any step being taken by the lessor to cause him to deliver up possession of the estate, the former lease shall continue “subject to the same clauses and conditions which it contained.” Article 2691 provides that although the tenant has continued in possession, there can be no reeonduction where he has been given timely notice that the lease will not be continued. In Eames v. Goodwin, 337 So.2d 909 (La.App. 3rd Cir. 1976), we construed these articles as follows:

Tacit reeonduction has no application when either party has announced his intention not to renew the lease on the same terms or for a full year. Tacit reeonduction does not apply when one party has announced his intention to terminate the lease. It is not to be used to force a contract upon parties unwilling to contract, but merely to establish a rule of evidence, or a presumption, as to their intention when a contrary intent has not been expressed.

There is no dispute that the 1976 lease in the present case terminated when the crop was harvested in late November or early December of 1976. There is also no dispute that at that time plaintiffs and defendants made a new agreement for 1977 that 134 acres would be planted in rice, instead of 118 acres as in 1976, and also that different tracts be planted in rice than in 1976. Of particular importance is the fact that there was no express agreement that in addition to the 118 acres planted in rice in 1976, the defendants could plant the disputed 100-acre tract in 1977. These essential facts were found by the trial judge in his written reasons and are clearly supported by the evidence.

We cannot agree with the trial judge that under these facts there was a reeonduction of the 1976 lease. Even accepting defendants’ own testimony and the findings of fact by the trial judge, it is clear a new lease agreement was made between plaintiffs and defendants during late November or early December of 1976 that in 1977 the lessees would plant 135 different acres in rice. This was a new lease agreement. There was no reeonduction of the same lease agreement as existed in 1976.

The defendants-appellees have not filed an appellate brief. However, we understand from their testimony they contend that under the 1976 lease, as well as the oral leases for previous years, they had the right to plant whatever crops they wanted wherever they wanted and that this lease continued for the year 1977. This contention has no merit. In the first place, as the trial judge held, the 1976 lease was for rice only. Furthermore, the evidence is clear that defendants did not have the right to plant where they wanted each year. Instead, the landowners and the defendants-lessees agreed each year, including 1976, as to what tracts would be planted in rice or soybeans. Of course, a further reason for rejection of this contention by defendants is that, for the reasons stated above, we find there was a new lease agreement between the parties for 1977 before the 1976 lease became reconducted by continued possession by the lessees.

During oral argument of this case in our Court, we requested that counsel for plaintiffs file a supplemental brief on the issue of whether these proceedings are now moot, since the 1977 crop year is now ended. In a supplemental brief, plaintiffs point out that in their original petition to enjoin the defendants from remaining in possession of the property during 1977, they also prayed for damages in the sum of $5,000 caused by defendants trespassing on the land. Plaintiffs state that, as shown by the record, they may be subject to a claim by Heard LeJeune, for damages for plaintiffs’ failure to deliver to LeJeune possession of the disputed 100 acres for the purpose of growing soybeans during 1977. For these reasons, we agree with plaintiffs that this case is not moot.

Of course, since the trial judge rejected plaintiffs’ demand for an injunction against defendants and held that defendants were entitled to possession of the disputed 100 acres, the issue of damages was not reached in the district court. Therefore, this case must be remanded to the district court for trial of the issue of any damages suffered by plaintiffs as a result of defendants wrongfully farming the disputed 100-acre tract during 1977.

Of course, we cannot grant plaintiffs’ demand for an injunction restraining the defendants from farming the disputed 100 acres during 1977, because that year has already expired. However, we can conclude, contrary to the district court, that defendants had no right to farm the disputed 100 acres during 1977, and that plaintiffs are entitled to any damages caused by defendants wrongfully farming the 100 acres.

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 plaintiffs and against defendants recognizing that the 1976 lease was not reconducted for 1977, and that defendants had no right to raise rice or any other crop on the disputed 100 acres during the year 1977. This case is remanded to the district court for trial of the issue of damages prayed for in plaintiffs’ original petition, in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendants-appellees. Costs in the trial court must be assessed after a final judgment there.

REVERSED AND REMANDED.


author: LANDRY, Judge.

text:
    In re Succession of Voladia JONES, Deceased.
    No. 11750.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied March 20, 1978.
    Writ Refused May 5, 1978.

      Phil Breaux of Bride & Breaux, St. Gabriel, for appellant-defendant, Margaret Jones Ellison.
    James Dore of Dupont, Edwards & Dore, Plaquemine, for appellees-defendants in Rule, Voladia Earl Jones and Susan Ann Jones.
    William 0. Templet of Middleton & Tem-plet, Plaquemine, for appellee-plaintiff in Rule, Citizens Bank and Trust Co.
    James L. Dendy of Dendy, Davis & Hyde, Baton Rouge, for appellee-defendant in Rule, Voladia D. Jones.
    Gail Marie Jones, Sunshine, for appellee-defendant in Rule, Gail Marie Jones.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Voladia D. Jones (Appellant) appeals from judgment ordering probate of a photo copy of an olographic will left by his deceased father, Voladia Jones (Decedent). The trial court rejected Appellant’s contention that the olographic, will was revoked in that the original was destroyed by Appellant in compliance with Decedent’s expressed wish and desire. We affirm.

The issues presented are: (1) Is the will valid as to form; (2) If valid as to form, was the will legally revoked; and (3) If valid and unrevoked, may the testament be probated notwithstanding destruction of the original subsequent to testator’s demise.

On October 26,1971, Decedent executed a valid statutory will. The testament bequeathed decedent’s estate, (inventoried at $305,674.47), excepting Decedent’s cattle, to Decedent’s daughter Margaret Jones Ellison and Appellant, in proportion of % to Mrs. Ellison and % to Appellant. All Decedent’s cattle were left to Appellant.

Decedent died July 19, 1976. The statutory will was duly probated on October 28, 1976, and Citizens Bank & Trust Company, Plaquemine, Louisiana (Executor), was qualified as Testamentary Executor pursuant to the terms of the instrument. Thereafter, Executor presented to the court a photo or xerox copy of an olographic will purportedly written by Decedent under date of November 15, 1972. This lattér testament bequeaths Appellant a large tract of land, some horses and all of Decedent’s cattle except 15 head left to Decedent’s grandson Voladia Earl Jones. It also left Decedent’s granddaughters Gail and Susan Jones two horses each. Susan Jones was also bequeathed $6,000.00 cash. Decedent’s daughter Maggie Jones Ellison was left $100,000.00 cash. The remainder of Decedent’s land, if any, was left to Susan and Gail Jones.

Executor then impleaded all heirs and legatees in a petition for declaratory judgment in which Executor prayed that validity of the olographic will be determined.

Appellant and his wife testified in substance that about four or five months prior to his death, Decedent called Appellant to Decedent’s home and handed Appellant the olographic will and gave Appellant instructions to keep the instrument. Later, Decedent summoned Appellant and told Appellant to destroy the testament because Decedent did not want to use it. Still later, Decedent inquired whether Appellant had destroyed the document. On this occasion, Appellant replied that he had not yet destroyed the will but would do so. Appellant did not, however, destroy the will during Decedent’s lifetime. Appellant learned of the statutory will after the death of his father. Appellant admits he did not destroy the olographic will on learning about the statutory testament because he did not then know the contents of the statutory will and felt that if he destroyed the olo-graphic testament “it might hurt him”. Appellant then contacted the attorney representing the Executor and presented the attorney with the olographic will. The attorney made a photo or xerox copy of the original olographic will and returned the original to Appellant. Appellant’s testimony is clear that after ascertaining that the olographic instrument was adverse to his interest, he destroyed the document. The trial court admitted the copy to probate.

VALIDITY OF THE OLOGRAPHIC WILL

Appellant contends the will is invalid in that it is undated. He concedes, however, that the body of the will and the signature thereon are in the handwriting of Decedent. The attorney for the Executor, W. B. Middleton, Jr., a respected member of the local bar, testified that the olographic will presented to him bore the date “Nov. 15, 1972”, but that when he duplicated the testament, only part of the date appeared on the copy. He then, in his own handwriting, added the date “Nov. 15, 1972” to the copy at the same place where the date appeared on the original. He also stated he compared the writing and signature to numerous samples of Decedent’s writing available to him, and that the document was entirely written, dated and signed in Decedent’s handwriting.

Appellant’s wife testified she saw the olo-graphic will while it was in Appellant’s possession. She believed the original was dated. She also stated the entire instrument, date and all, was in Decedent’s handwriting.

Appellant’s testimony concerning a date on the will is in substance that he does not recall seeing a date on the instrument.

We find no merit in Appellant’s contention that the will was not dated and that it was not proven by the testimony of two credible witnesses as required by La.C.C. Article 1588 and La.C.C.P. Article 2883. Appellant, who was familiar with Decedent’s handwriting, verified that all of the will, excepting the date, was in Decedent’s handwriting. Appellant’s wife, also familiar with Decedent’s handwriting, attested that the entire will, including date, was in the handwriting of testator. Mr. Middleton, who has no interest in this matter, although not a handwriting expert, compared the will to numerous known specimens of Decedent’s handwriting and concluded the will was entirely written, dated and signed by Decedent’s own hand.

Proof that an alleged olographic will was entirely written, dated and signed in the testator’s handwriting is not limited to handwriting experts. A credible individual familiar with decedent’s handwriting is competent to serve as a credible witness pursuant to La.C.C.P. Article 2833. Succession of Lirette, 5 So.2d 197 (La.App. 1st Cir. 1941).

WAS THE OLOGRAPHIC WILL REVOKED

Revocation of testaments is governed by La.C.C. Article 1691, which pertinently states:

“The revocation of testaments by the act of the testator is express or tacit, general or particular.
It is express when the testator has formally declared in writing that he revokes his testament, or that he revokes such a legacy or a particular disposition.
It is tacit when it results from some other disposition of the testator, or from some act which supposes a change of will. It is general when all the dispositions of a testament are revoked.
It is particular when it falls on some of the dispositions only, without touching the rest.”

Although the above codal authority does not specify that destruction of a will by testator constitutes a testamentary revocation, our jurisprudence recognizes that such action is the most effective means of revoking a will. Smith v. Shaw, 221 La. 896, 60 So.2d 865 (1952), and authorities cited therein.

Mere intent to revoke a will does not per se effect revocation. Such intent must be implemented either by a method of revocation authorized by Article 1691, above, or intentional destruction of the instrument. Smith v. Shaw, above; Succession of Hill, 47 La.Ann. 329, 16 So. 819 (1895); otherwise testator’s intent to adhere to the will is presumed.

We deem it elementary that each question of this nature must be decided in the light of its own peculiar facts and circumstances.

In Succession of Hill, above, testatrix discarded a will by throwing it away in the trash. The testament was retrieved and given to testatrix who stated she had revoked the will. She added that she did not want the document and wished it destroyed. Nevertheless, the will was kept in testatrix’s home with papers considered of insignificant value. During the remainder of her life, testatrix stated on several occasions that she had made a will but revoked it. Prior to her death, she obtained a will form with the intent to make out a new will but did not do so. In holding that the will had not been revoked, the court, in Succession of Hill, above, observed that such acts and declarations do not revoke a testament pursuant to Article 1691, above. The court also noted that when the discarded will was presented to testatrix she did not destroy it.

We find that Smith v. Shaw, above, relied on by Appellant, is factually inapposite. In that case, the will was destroyed in that it was torn and shredded by testatrix’s attorney at testatrix’s suggestion and in her presence.

In this instance, the only evidence of testator’s intent to revoke comes from Appellant who admittedly did not destroy the will until after Decedent’s death, and only then after the witness determined that destruction of the testament was in his own best interest. Decedent himself did not destroy the will during his lifetime, notwithstanding his inquiry of Appellant which elicited the response that the will had not yet been destroyed as Decedent requested. We concur in the trial court’s finding that Appellant has failed to establish revocation of the olographic will as required by the law and jurisprudence.

MAY A COPY OF A WILL BE PROBATED '

Our jurisprudence is to the effect that when an original will has been destroyed, a copy may be admitted to probate, provided the copy is shown to be an exact copy of a testament valid as to form. Succession of O’Brien, 168 La. 303, 121 So. 874 (1929); Jones v. Mason, 234 La. 116, 99 So.2d 46 (1958). Jones v. Mason, above, concerned a carbon copy of a will valid as to form. The original could not be found. The court held there was only one will, of which duplicate originals existed. Succession of O’Brien, above, involved a typewritten copy of an olographic will shown to have been valid as to form and execution by decedent. The copy was admitted to probate on a showing that the original had probably been destroyed along with the bedding on decedent’s bed which was burned, following decedent’s death, because of its condition.

We are here concerned with a photo copy of an olographic will valid as to form and execution. Revocation of the instrument pursuant to our law and jurisprudence has not been established. It is presumed that testator’s intent to make the olographic will his last will and testament continued until the moment of death. The copy was properly admitted to probate.

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    MARINE AND LAND CONTRACTORS, INC., Plaintiff, Defendant in Reconvention and Appellant, v. MARINE RENTAL SERVICE, INC., Defendant, Reconvenor and Appellee.
    No. 11762.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied March 20, 1978.
    Writ Refused May 5, 1978.
    Clayton E. Lovell, Houma, for plaintiff, defendant in reconvention and appellant.

      Charles J. Hannemann, Houma, for defendant, reconvenor and appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This is a suit on an oral contract in which Marine & Land Contractors, Inc. (MALCO) agreed to do certain sandblasting and other work on a barge owned by Marine Rental Service, Inc. (MARS). Plaintiff MALCO brought the suit for the unpaid contract price of $5500.00. Defendant MARS answered admitting the existence of the contract but alleging that the work performed by MALCO was not in compliance with the contract and, in fact, was of absolutely no value. MARS reconvened for damages which it had allegedly sustained as a result of MALCO’s breach of the contract. Plaintiff appeals from adverse judgments on the main and reconventional demands. We affirm.

This case presents factual questions as .to the terms of the oral agreement, the work performed by MALCO, and the amount of damages. On factual issues such as these we are required to uphold the findings of the trial judge absent a showing of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Three persons testified that they were present when the oral agreement was reached. Albert Griffin and Kennedy Farmer were present for MALCO and Alvin Delaune was present for MARS. Both Griffin and Delaune testified that the agreement was to sandblast, dimetcote and tarset the barge. Farmer testified that the agreement was to commercially sandblast and then tarset the barge. A commercial blast removes all large pieces of caked rust although some tiny rust particles may remain. On the other hand, a near-white blast removes all dirt, surface coating, and rust, leaving the base metal exposed with only a slight rust discoloration. Delaune stated that no special type of sandblasting was specified. Griffin first stated that the agreement was to commercially blast, dimetcote, and tarset. However, when it was pointed out to him that the manufacturer’s specifications for applying inorganic zinc primer (dimetcote) require a near-white blast, he stated his understanding was that the zinc primer was to be applied in accordance with the specifications. He then went on to define commercial sandblast in a manner synonymous with the definition of near-white sandblast. We find no manifest error in the determination that the agreement called for a sandblast leaving the bare metal exposed with only a slight discoloration, dimetcote, and tarset. The fact that the officers of plaintiff did not understand this to be the agreement is of no moment. It is not alleged that Griffin was not authorized to contract for MALCO.

It is undisputed that MALCO did not sandblast the barge to the extent agreed or dimetcote the barge to any extent. This of itself is a breach of contract. However, the evidence also preponderates to the effect that not even a commercial sandblast, as it is generally defined, was performed. The tarset was applied over large cakes of rust according to defendant’s witnesses. Although plaintiff’s witnesses disputed this point, we will not disturb the trial judge’s determination to the contrary.

The trial judge found that the work performed by MALCO was worthless. This was because MALCO had applied tarset over large cakes of rust. In order to do the job originally agreed to, it would be necessary to start over. We agree with this determination.

In assessing damages the trial judge relied on an estimate given by an expert called by plaintiff that he would charge $12,000.00 to near-white sandblast, dimet-cote and tarset this barge. Although the expert stated that this estimate was somewhat high, he also stated that it was fair and honest. We do not believe that the trial judge committed error in accepting this estimate absent other testimony as to the cost of the work.

Plaintiff had agreed to do this job for $5500.00. He breached his agreement. Defendant proved that it would cost him $12,000.00 to have someone else do the job. We therefore agree with the award of $6500.00 damages given by the trial judge. See Scheppegrell v. Barth, 239 La. 42, 117 So.2d 903 (1960). Plaintiff argues that defendant has failed to show damages because the barge was never resandblasted. However, an injured party is not required to repair his damages prior to instituting suit. Scheppegrell, above; Wooten v. Central Mutual Insurance Co., 182 So.2d 146 (La. App. 3rd Cir. 1966).

For the reasons assigned, the judgment is affirmed at appellant’s costs.

AFFIRMED.


author: ELLIS, Judge.

text:
    Janis Phelps Alfonso, wife of and Vernon ALFONSO, and Sandra Serigne Alfonso, wife of and Ralph Alfonso v. MARKET FACILITIES OF HOUSTON, INCORPORATED and Money Hill Plantation, Incorporated.
    No. 11753.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied March 20, 1978.
    Writ Refused May 5, 1978.

      Edwin R. Pillault, Jr., New Orleans, for plaintiff s-appellants.
    France W. Watts, III, Richard W. Watts, Franklinton, for defendants-appellees.
    Before LANDRY, SARTAIN, and ELLIS, JJ.
   ELLIS, Judge.

This is a suit for damages for personal injuries suffered by Janis Phelps Alfonso and Sandra Serigne Alfonso when they fell or were thrown from the horses which they were riding at Money Hill Plantation. Plaintiffs are the two injured parties and their husbands, Vernon Alfonso and Ralph Alfonso. Defendants are Money Hill Plantation, Inc. and Market Facilities of Houston, Inc., its insurer. After trial on the merits, judgment was rendered dismissing plaintiffs’ suit and they have appealed.

On July 27, 1974, Janis Phelps Alfonso and Sandra Serigne Alfonso, together with their husbands and children, and other members of their family, were on a picnic at Money Hill Plantation, a recreation area operated by the defendant. Among the facilities offered by the defendant is a trail ride, in which, for a fee, patrons are conducted on a horseback ride over a trail of about a mile in length. The riders are conducted by two employees of the defendant, who lead and follow the patrons, who ride in single file along the trail. The horses used are trained to remain in single file, and to follow the horse ahead of them. The rides are made at a walk, and patrons are cautioned not to get out of line, not to get too close to the horse ahead, and not to attempt to go faster than a walk.

At the time of the accidents in this case, the attendants who conducted the rides also collected the fees from the patrons. Before anyone was permitted to take the ride, he was required to sign a “Waiver and Hold Harmless Agreement”, by virtue of which he assumed the risks inherent in horseback riding. Usually, the waiver was identified as such, but not in any way explained to the patrons. Janis Alfonso signed the agreement, and also signed it on behalf of Sandra and other members of the family who made the trail ride. Since Janis had no recollection of any of the events leading up to the trail ride, or of what happened during or immediately thereafter, she had no recollection of signing the agreement. She did identify her signature thereon, and stated that she must have known what she was doing when she signed it. Sandra testified that Janis was authorized to sign the agreement on her behalf.

July 27, 1974, was characterized by the witnesses as a typical midsummer day in St. Tammany Parish. There had been some showers earlier in the day, but it was not raining at the time the trail ride began, and the sky was partly cloudy. At a point when the ride was one-half to three-quarters completed, it began to rain. One of the attendants rode ahead to open the gate of the corral where the horses were kept. The other attendant, riding the lead horse, led the riders back to the coral. Just after they entered the coral, there was a sudden bolt of lightning, followed by a clap of thunder. The horses carrying Janis and Sandra bucked or shied, throwing them to the ground and causing the injuries complained of herein. Neither Janis nor Sandra were experienced riders, .but each had made the trail ride on one previous occasion.

Plaintiffs seek recovery on two bases. First, they claim that defendants are liable under the provisions of Articles 2317 and 2321 of the Civil Code, and, second, that the trail ride was negligently conducted by the defendants.

Articles 2317 and 2321 of the Civil Code provide as follows:

“Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
si* * * Sfc * *
“Art. 2321. The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.”

In Holland v. Buckley, 305 So.2d 113 (La.1974), the court said:

“The issue before us is: When an innocent bystander is bitten by a dog, who shall bear the damages so caused? The bystander passing on the street, who did not provoke the attack? Or the owner of the dog, who created the risk by letting the dog go loose? ”

It further said:

“We hold, therefore, that the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event. * * * * * *
“The underlying reason for the owner’s liability is that, as between him who created the risk of harm and the innocent victim thereby injured, the risk-creator should bear the loss. He maintains the animal for his own use or pleasure.
“Article 2321 places the master of the animal under a legal obligation to keep his animal under such guard that it does no damage to others. A fault in this obligation to control the animal and guard others from harm by it entitles the victim to recover damages thereby sustained.”

In Loescher v. Parr, 324 So.2d 441 (La.1975), the court said:

“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others. “The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.
“This jurisprudence recognizes that the injured person must prove the vice (i. e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice. Once this is proved, the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.
“The legal fault thus arising from our code provisions has sometimes been referred to as strict liability.”

In refusing writs in Harrington v. Upchurch, 337 So.2d 222 (La.1976), the court said this:

“ . . . Under the facts shown, the presence of the cow in open-range highway did not create an unreasonable risk of injury to others; therefore, the owner is shown to be exonerated from fault.”

In two recent dog bite cases, this circuit has relieved the owner of responsibility because the offending animals were secured on the owner’s premises, and the parties injured were on the premises against the wishes or instructions of the owner. Dotson v. Continental Insurance Co., 322 So.2d 284 (La.App. 1st Cir. 1975); Parks v. Paola, 349 So.2d 896 (La.App. 1st Cir. 1977).

In a recent third circuit case, a boy employed to exercise horses, was thrown by one of the horses and injured. The court held that the rule of Holland v. Buckley, supra, was not applicable, since the animal was not in the custody of the owner, but was in fact under the care, custody and control of the injured party. The case was then decided on the basis of conventional negligence principles. Fontenot v. Soileau, 336 So.2d 1006 (La.App. 3rd Cir. 1976).

From the foregoing, we gather that, in order to hold the owner of an animal strictly liable for damage to another done by the animal, there must be a domestic animal, which is actually or constructively under the control of the owner, or which he has an obligation to restrain, the presence of which causes an unreasonable risk of harm to others and which injures an innocent third party.

In this case, both Janis and Sandra were active participants in the trail ride, and cannot be considered as innocent third parties. Further, they were in control of the two horses at the time of the accident. They are therefore not entitled to recover under the strict liability provisions of the Code.

The only act of negligence charged to defendant is that the trail ride was taken out at a time when it was likely that there would be thunder and lightning, which might cause the horses to bolt or buck. Eric Schindler, who was in charge of the trail ride, said that he saw some black clouds on the horizon, but was of the opinion that the trail ride would be completed before the clouds would arrive in the vicinity. He testified that it was not unusual for the trail riders to get caught in the rain, and he anticipated that this was the worst that could happen on this occasion. He further stated that he had never been on a trail ride when there was lightning and thunder, and that this was the only case of patrons being thrown from a horse during a trail ride in his experience at Money Hill.

The trial judge found as a matter of fact that the lightning and thunder caused the horses to bolt and throw the plaintiffs to the ground. We find no manifest error in this factual conclusion. The question is whether or not this circumstance renders defendant legally liable for plaintiffs’ injuries.

It is clear from the record that many trail rides had been made under similar circumstances, and that they had been caught in the rain on occasion, but that there had been no lightning or thunder. We further note that the two horses on which Janis and Sandra were riding were considered to be among the most stable and dependable horses in the herd, and were often used to carry double. There is no evidence that any of the other horses acted up as a result of the lightning and thunder.

Operators of recreational facilities are not the insurers of the safety of their patrons, but must conduct their operations in such a way as to not expose the patrons to an unreasonable risk of harm, considering the nature of the facilities provided. It is also true that one who voluntarily utilizes such facilities assumes the reasonably foreseeable risks which are inherent in the use thereof. Rosenberger v. Central La. Dist. Livestock Show, Inc., 312 So.2d 300 (La.1975); Lefort v. Ponchatoula Beach Development Corp., 292 So.2d 354 (La.App. 1st Cir. 1974); Richmond v. Employers Fire Insurance Company, 298 So.2d 118 (La.App. 1st Cir. 1974).

Considering the foregoing principles, we are of the opinion that no negligence on the part of the defendants has been shown. We fail to see that defendants exposed the plaintiffs to any unreasonable risk of harm which is not inherent in horseback riding. Defendant made every effort to see that the horses used were gentle and trained to walk in line during the trail ride. No trail rides were started when it was raining, or when the weather was threatening. Patrons were warned of the chance of rain, and were instructed in how to handle the horses during the ride. The testimony is that it is in the nature of horses to shy at sudden loud noises. The record preponderates to the effect that there was no thunder prior to the clap which startled the horses, and this took place after the horses were in the corral. Barring the application of strict liability, we find no basis for holding defendant responsible for plaintiffs’ injuries.

The judgment appealed from is therefore affirmed at plaintiffs’ cost.

AFFIRMED.