text:
    Laura A. COHEN, as Administratrix of the Estate of Maurice Cohen, M.D., Deceased, Petitioner, v. Ronald HICKOX, as Personal Representative of the Estate of Katherine H. Hickox, Deceased, Respondent.
    No. 78-1299.
    District Court of Appeal of Florida, Second District.
    Oct. 4, 1978.
    William E. Hennen of Marlow, Shofi, Ortmayer, Smith & Spangler, Tampa, for petitioner.
    Richard A. Bokor, Tampa, and Kelso & Scott, New Albany, Ind., for respondent.
   PER CURIAM.

The petition for writ of certiorari is denied without prejudice to the right of petitioner to seek review of the matters therein by way of an appeal from the final judgment. Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla.4th DCA 1976); Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla.2d DCA 1973).

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


source: Caselaw Access Project

author: GRIMES, Chief Judge.

license: Public Domain

text:
    Woodrow D. PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1912.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1978.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

Appellant was charged with possession of a firearm by a convicted felon and found guilty of attempted possession of a firearm by a convicted felon. He now contends that he was convicted of a nonexistent crime.

The question of whether there can be crimes involving attempted possession continues to recur. In State v. Thomas, 363 So.2d 1348, No. 52,759 (Fla., filed September 21, 1978), our supreme court recently held that there is no crime of attempted possession of burglary tools. The court reasoned that the tools used in burglary are innocent by themselves and that no crime is committed until these tools are in the actual or constructive possession of a person with the requisite criminal intent. In reaching its conclusion the court said:

Although it may be possible for a person to be convicted of an attempt to possess items which are contraband per se, burglary tools are not contraband per se State v. Thomas, supra at 1350.

Like burglary tools, a firearm is not contraband, per se; yet, in the hands of a convicted felon, a firearm becomes equivalent to contraband for purposes of Section 790.23, Florida Statutes (1977). The Fourth District Court of Appeal has consistently held that attempted possession of contraband is a crime. Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976); McClam v. State, 288 So.2d 285 (Fla. 4th DCA 1974); Nichols v. State, 248 So.2d 199 (Fla. 4th DCA 1971).

We cannot say that it is logically impossible to visualize a factual setting in which a convicted felon could attempt to gain possession of a firearm but fail in the perpetration. See Section 777.04(1), Florida Statutes (1977). Therefore, we hold that there exists in Florida the crime of attempted possession of a firearm by a convicted felon.

AFFIRMED.

HOBSON and RYDER, JJ., concur.


author: RYDER, Judge.

text:
    Melvin Lee VITKO, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-536, 78-645.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1978.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant contends that the trial court erred in adjudging him guilty of aggravated assault. We agree.

On January 4, 1978, the State filed a two-count information charging appellant with attempted robbery and battery. The attempted robbery count read as follows:

[Appellant] by force, violence or assault, or putting RODDIE SMITH in fear, willfully and against the will of said ROD-DIE SMITH, did attempt to take money or other property from his person op custody with intent to permanently deprive the said RODDIE SMITH of said money or other property, the said RODDIE SMITH being lawfully entitled to possession of the said money or other property, to wit: lawful money of the United States of America, and during the course of the aforesaid offense, the said MELVIN LEE VITKO did carry a deadly weapon, to wit: a knife; contrary to Chapter 812.13, and against the peace and dignity of the State of Florida. (Empha- ■ sis supplied)

After the court denied a motion to dismiss, appellant pled guilty to battery and went to trial on the attempted robbery count. At trial, the court granted appellant’s motion for a judgment of acquittal as to attempted robbery and sent the case to the jury on a theory of aggravated assault. The court also instructed the jury over appellant’s objection on aggravated battery, and it was that crime of which the jury found appellant guilty. However, after further consideration, the court voided the aggravated battery conviction and adjudged appellant guilty of aggravated assault, sentencing him to ninety days in prison for battery and six months to five years in prison for aggravated assault. The court also assessed costs against him. This timely appeal followed.

We believe that appellant’s conviction for aggravated assault cannot stand. A defendant may not be convicted of a lesser included offense of the crime charged if the information under which he is tried does not allege all the elements of that offense. See Brown v. State, 206 So.2d 377 (Fla.1968). Here, the information did not allege all the elements of. aggravated assault. An aggravated assault occurs when a person commits assault with a deadly weapon or with intent to commit a felony. Section 784.021, Florida Statutes (1977). The information alleged only that appellant carried a deadly weapon, not that he assaulted the victim with a deadly weapon. Moreover, nowhere did it allege assault with intent to commit a felony.

We also think that the court erred in assessing costs against appellant. Once a court has declared a defendant to be insolvent, as it did in this case, it may not assess costs against him. Cox v. State, 334 So.2d 568 (Fla.1976).

Appellant has presented two other points, but our disposition of the case makes it unnecessary to consider them further. Accordingly, we affirm the battery conviction and reverse the judgment and sentence for aggravated assault. We also reverse the order assessing costs to appellant, and remand the case for proceedings consistent with this opinion.

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

      . Apparently the author of the language used in the attempted robbery count of the information was attempting to track Section 812.-13(2)(a) wherein one carrying a firearm or other deadly weapon during a robbery would be treated, if convicted, as having committed a robbery of the first degree, so that had appellant been convicted of attempted robbery of that degree the penalty of that attempt would be commensurably greater.


author: PER CURIAM.

text:
    Thomas Edward DEPSON, Appellant, v. STATE of Florida, Appellee.
    No. JJ-252.
    District Court of Appeal of Florida, First District.
    Oct. 9, 1978.
    Michael J. Minerva, Public Defender and Janice G. Scott, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Thomas Edward Depson appeals from a revocation of probation alleging first of all that the court had no jurisdiction because his probationary period had expired. Appellant was granted post-conviction relief and was re-sentenced. The order withheld adjudication of guilt and placed Depson on two (2) years probation with the special condition that he remain incarcerated for the first six (6) months of the probation. The order further specified that he was to be given credit “for any time spent in confinement in the county jail or in the custody of the Division of Corrections.” Appellant contends that the credit for the time spent in confinement (19 months, 20 days) was to be credited against the entire two year probationary period and not just against the six months jail time. We find no decisions supporting that position and we do not so hold. Thus, the appellant’s probationary period had not expired before revocation proceedings were initiated.

Three other points raised by appellant do have merit. First, one of the grounds for the revocation of probation was the failure to pay the cost of supervision authorized by Section 945.30, Florida Statutes (1977). The record reveals no evidence that the appellant had the ability to pay the costs of supervision. We hold that the court must make an affirmative finding that the indigent defendant’s financial condition is such that payment can be made before entering a revocation on this ground. Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978). There were other grounds for the revocation which were not appealed. Thus, this finding does not directly affect the revocation.

Second, the trial court sentenced appellant to a straight time term of years and ordered that gain time be withheld. The state concedes that this was improper. Third, the trial court issued an amended judgment and sentence after the Notice of Appeal had been filed. The trial court no longer had jurisdiction once the case was on appeal. State ex rel. Faircloth v. District Court of Appeal, Third District, 187 So.2d 890 (Fla.1966).

We, hereby, remand for correction of the judgment and sentence and specifically direct that the provision requiring the withholding of gain time be stricken.

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


text:
    George J. BAYA and Mary Phillips Baya, Appellants, v. Robert REVITZ, Appellee.
    No. 75-1880.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1978.

      L. J. Cushman, Miami, for appellants.
    Lapidus & Hollander, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   ON PETITION TO REVIEW COSTS JUDGMENT

PER CURIAM.

The opinion in this cause was filed on March 8, 1977. See Baya v. Revitz, 345 So.2d 340 (Fla. 3d DCA 1977). See also Baya v. Revitz, 281 So.2d 521 (Fla. 3d DCA 1973). We are now presented with a petition to review a judgment for costs pursuant to Fla.App. Rule 3.16. The order taxing costs provides as follows:

“[3] That Defendants, GEORGE J. BAYA, and MARY PHILLIPS BAYA, his wife, and the securities deposited by them as surety be and they are hereby discharged of all liability upon their su-persedeas bond in the above-styled cause, filed, taken and approved by the Clerk of this Court on December 4, 1975, and the Clerk is hereby ordered to forthwith deliver to said Defendants, GEORGE J. BAYA and MARY PHILLIPS BAYA, said securities deposited as surety upon said supersedeas bond, described as follows:
United States Treasurer Bearer 6% Notes bearing numbers 1530; 1442; 1439; 1438; 1437; 1436 and 889, of the total principal sum of Sixty Thousand and no/00 Dollars lawful money of the United States of America.
“[4] That Defendants, GEORGE J. BAYA and MARY PHILLIPS BAYA, do have and recover their costs from Plaintiff, ROBERT REVITZ, in the sum of $3847.05 for all of which, let execution issue, 10 days from the date of this order.”

It affirmatively appears from the Defendant’s Motion for Judgment on the Mandate and to Tax Costs and an affidavit attached thereto that the sum of $2,700 was allowed as costs of a supersedeas bond, pursuant to the attached affidavit, which alleged that although no bond premium was paid, the defendants’ deposit of certain securities caused them to lose interest at the rate of six percent per annum on the principal sum thereof, in the amount of $4,420.

Loss of interest on collateral deposited in lieu of a surety bond is not allowable as costs under the provisions of Section 57.071, Florida Statutes (1977). See City of Jacksonville v. Brentwood Golf Course, Inc., 338 So.2d 1105 (Fla. 1st DCA 1976).

Accordingly, the petition for review of judgment for costs is granted and the order of the trial court insofar as it taxed costs is reversed, with directions to enter an amended costs judgment in accordance with the views herein expressed.

Reversed and remanded.

      . This question arises under the rules in effect prior to the present Florida Rules of Appellate Procedure, which took effect March 1, 1978.


author: PER CURIAM. KEHOE, Judge

text:
    Willie SIMPKIN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-997.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.

      Taffer & Jacobs and Jack J. Taffer, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.

       Judge Barkdull participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

The defendant, Willie Simpkin, was informed against in a two count information charging (1) burglary of a dwelling and (2) grand larceny. After a jury trial, he was found guilty on each count and was sentenced to a term of fifteen years imprisonment on the burglary charge and a consecutive term of five years on the grand larceny charge.

Two points are presented. The first urges that the evidence is not sufficient to support the conviction on the burglary charge and the second urges that the trial court committed fundamental error in failing to define a dwelling as distinguished from a structure. Under the second point, the claim is to fundamental error because the defendant neither requested the instruction, the omission of which is now claimed to be error, nor did he object to the trial court’s failure to give such an instruction. We affirm upon a holding that the evidence is sufficient to support the jury verdict of guilty of burglary of a dwelling and upon the further holding that the failure to give the instruction upon which error is now assigned was not, under the circumstances of this case, fundamental error.

Simpkin had the misfortune of being caught red-handed in the act of removing goods from a dwelling house occupied by one Pierre Gesner. His defense was an assertion that he was paid $20.00 to assist a person named “Mr. Slims” in moving furniture and that he had no knowledge of any burglary. The defendant contends on this appeal that this explanation was sufficient to raise a reasonable hypothesis of innocence and that the truth of this hypothesis was not disproved to the absence of a reasonable doubt. Our review of the record convinces us that this position is not well taken and that the circumstances of the case, such as the fact that a forceable entry had been made prior to the removal and the goods were stacked ready for removal in a place next to the jimmied door, together with the nature of the goods being removed and other circumstances of the case, render defendant’s explanation unreasonable, as the jury found. In this connection, it should be noted that the defendant could not identify or give police any instructions for contacting Mr. Slims. There was the additional fact that the van being used for the transportation of the articles was “hot-wired.” We conclude, therefore, that the record contains sufficient evidence to support the jury’s finding of guilt upon the burglary charge.

The second point presented is predicated upon the fact that while the applicable burglary statute, Chapter 810, Florida Statutes (1975), does not make burglary of a dwelling a distinct offense, a subsequent section, Section 810.02(3), Florida Statutes (1975), provides that burglary of a dwelling constitutes a felony in the second degree while the burglary of an unoccupied structure constitutes a felony in the third degree. The appellant was charged by the words of the information with burglary of a dwelling. Thereupon, defendant argues that it was fundamental error for the court to fail to give a definition of a dwelling inasmuch as the jury was called upon to find the defendant guilty of such an offense.

As pointed out, the defendant was charged with burglary of a dwelling. Therefore, he had full notice of the extent of the charge against him. At the trial, the evidence fully supported the charge. There was uncontroverted evidence that the burglary was of a dwelling belonging to Mr. Gesner. No issue was raised on this point and no contrary evidence was offered. Further, at no time during the trial or in the discussion of charges was the point ever made to the trial court that an instruction defining a dwelling should be given to the jury. Finally, the verdict of the jury found the defendant guilty of burglary of a dwelling. We hold that under the circumstances of this case, fundamental error does not appear and that the defendant has waived the giving of an instruction which would define the word dwelling as used in the information. See Ward v. State, 123 Fla. 248, 166 So. 397; 124 Fla. 113, 168 So. 397 (1936). Further, it is clear that the failure to give an unobjected to, or not requested, jury charge is not ordinarily fundamental error. See Williams v. State, 346 So.2d 554, 556 (Fla. 3d DCA 1977). We hold that under the circumstances of this case, fundamental error has not been shown. Cf. Gibson v. State, 194 So.2d 19 (Fla. 2d DCA 1967).

Affirmed.

KEHOE, Judge

(dissenting).

I respectfully dissent from that portion of the majority opinion dealing with appellants conviction of burglary of the second degree.

On October 28, 1976, the state charged appellant with a felony of the second degree, i. e. burglary of a dwelling, in violation of Section 810.02(3), Florida Statutes (1975). Consequently, one of the essential elements of the offense charged was that the structure entered was a “dwelling.”

I agree with the majority opinion that the evidence fully supported the crime charged. The problem arises in that the trial court did not charge the jury by Florida Standard Jury Charges, or otherwise, with the aggravating circumstances which elevated this alleged burglary from third degree burglary to second degree burglary. The court gave only the Florida Standard Jury Charge which pertains to the burglary of a “structure”, which constitutes burglary of the third degree. § 810.02(1), Fla.Stat. (1975).

Our problem is further compounded by the fact that defense counsel made no objection concerning either the giving of or the refusal to give any instruction before the jury retired, nor was the issue specifically raised on motion for new trial. My colleagues, citing the authorities upon which they rely, feel that this failure on counsel’s part is dispositive of the matter.

I am fully aware of Florida Rule of Criminal Procedure 3.390(d) and a long line of cases stating the elementary principle that a request for an instruction or an objection to a failure to give an instruction is a prerequisite to raising error on appeal. See, e. g., Flagler v. State, 198 So.2d 313 (Fla.1967); Hood v. State, 287 So.2d 110 (Fla. 4th DCA 1973); Clements v. State, 284 So.2d 700 (Fla. 3d DCA 1973); and Alford v. State, 280 So.2d 479 (Fla. 3d DCA 1973). Also, I recognize that the Florida courts have on many occasions declined to apply the fundamental error rule to alleged errors arising from unrequested jury instructions or from those to which no objection was made. See, e. g., McCaskill v. State, 344 So.2d 1276 (Fla.1977); Williams v. State, 346 So.2d 554 (Fla. 3d DCA 1977); Shockey v. State, 338 So.2d 33 (Fla. 3d DCA 1976); and Gibson v. State, 194 So.2d 19 (Fla. 2d DCA 1967). However, I feel that the case presently before us calls for the application of a rule of law which distinguishes these principles. In this case, as distinguished from those cited above, the trial court failed to charge the jury on an essential element of the crime charged in the information, i. e., that appellant entered a “dwelling.” See § 810.02(3), Fla.Stat. (1975). As stated above, the charge actually given to the jury used the word “structure” rather than “dwelling.” In my opinion, the giving of this charge constituted such error as to require reversal, even though appellant neither made an objection to it nor requested a different charge. See Robles v. State, 188 So.2d 789 (Fla.1966); Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945); Croft v. State, 117 Fla. 832, 158 So. 454 (1935); Finch v. State, 116 Fla. 437, 156 So. 489 (1934); Wright v. State, 250 So.2d 333 (Fla. 2d DCA 1971); Jones v. State, 187 So.2d 915 (Fla. 2d DCA 1966); Canada v. State, 139 So.2d 753 (Fla. 2d DCA 1962). Accordingly, I would reverse and remand the cause for a new trial on the burglary charge only.


text:
    Richard M. DASH, Appellant, v. Gloria DASH, Appellee.
    No. 77-1846.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    Hersh & Bernstein and Brian R. Hersh, Miami, for appellant.
    Heller & Kaplan and Daniel Neal Heller, Miami, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.

       Chief Judge Haverfield participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

Appellant/petitioner/husband appeals from an award of attorney’s fees rendered in favor of appellee/respondent/wife. Basically, appellant challenges the award of attorney’s fees to appellee as being “grossly unreasonable and shocking.”

Attorney’s fees awarded pursuant to a dissolution of marriage action is largely within the discretion of the trial judge. Absent an abuse of that discretion, we will not substitute our judgment for that of the trial court. Krasner v. Krasner, 339 So.2d 674 (Fla. 3d DCA 1976). As stated in this court’s opinion (per Judge Hubbart) in Pfohl v. Pfohl, 345 So.2d 371 (Fla. 3d DCA 1971):

“The elements usually considered in determining the amount of attorney’s fees are: services rendered, responsibility incurred, the nature of the services, the skill required, the circumstances under which it was rendered, the ability of the litigant to respond, the value of the services to the client, and the beneficial results, if any, of the services.” at 379.

Based upon the above criteria and the record before us, it is our opinion that there was substantial competent evidence to justify the court’s award and as such, there was no abuse of discretion. Krasner v. Krasner, supra.

Other points raised by appellant are without merit.

Affirmed.


author: PER CURIAM. NATHAN, Judge.

text:
    LEA INDUSTRIES, INC., a corporation, Appellant, v. RAELYN INTERNATIONAL, INC., a Florida Corporation, Wendell E. Ray and Linda Ray, Appellees.
    No. 77-2276.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.

      Kreeger & Kreeger and Judith L. Kreeger, Miami, for appellant.
    Levine, Reckson & Reed and Allen P. Reed, Miami, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.

       Judge Kehoe participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

The following opinion and judgment by NATHAN, J., prepared prior to his death on August 10, 1978, is hereby adopted by a panel of the Court as the opinion and judgment of this Court.

NATHAN, Judge.

This is an appeal by the plaintiff from a final judgment for defendants rendered after a non-jury trial in an action for damages for non-payment of accounts due. The basic issues concern whether or not a contract of guarantee had been modified or revoked by subsequent writings and whether or not the trial court erred in excluding from evidence various documents and testimony proffered by plaintiff. We find prejudicial error in the decision below and reverse the judgment of the trial court.

The defendants in the trial court were Raelyn International, Inc. [Raelyn], Wendell E. Ray, Raelyn’s organizer and original president, and Linda Ray, Wendell’s wife. Raelyn went into business in Florida in late 1972 as a wholesale furniture distributing company. It purchased some of its merchandise from LEA Industries, Inc. [LEA], whose home offices were in Virginia. In order to induce LEA to extend credit to Raelyn, Wendell and Linda Ray, as individuals, signed the following contract of guarantee on a form submitted by defendants themselves, in November of 1972:

LEA INDUSTRIES, INC.
RICHMOND, VA.
Gentlemen:
For value received, and in consideration of the credit which you may hereafter extend, I/We hereby jointly, severally, and unconditionally guarantee payment when due at your office in RICHMOND. VA. of any and all present or future indebtedness owed by RAELYN INTERNATIONAL, INC., of Hialeah, Florida to you and I/We hereby agree punctually to pay such indebtedness if default in the payment thereof be made by aforesaid RAELYN INTERNATIONAL, INC., of Hialeah, Florida.
This is intended as a continuing guarantee applying to all present and future indebtedness, howsoever arising, and to all sales and advances made by you to RAELYN INTERNATIONAL, INC., of Hialeah, Florida until the same is revoked by the undersigned in writing and delivered to RICHMOND. VA.. at its offices in _, by registered or certified mail. The signed receipt will acknowledge the revocation of the personal guarantee on all shipments after date of receipt of such revocation.
Witness my/our hands and Seals this 15th day of Nov. 1972.

On August 24, 1973, a letter was sent by Raelyn, per Wendell Ray, as president, to LEA, which included, in pertinent part, the following:

“At the present time, however, please hold up any pending orders until they are personally released by me, as I wish to review our entire situation as far as merchandise is concerned and go over it with Mr. Lou Adler and then make plans for the future.” [Emphasis added.]

LEA responded to Raelyn in a letter dated September 4, 1973, which stated:

“As stated in your letter, all pending orders are being held and no shipments will be made until we receive notification from you.” [Emphasis added.]

Raelyn, through its president, Wendell Ray, again wrote LEA on September 10, 1973, noting: “As stated before, make absolutely no shipments without my personal authorization.” [Emphasis added.]

In mid 1974, personal problems caused Ray to limit his active participation in Rae-lyn’s business. Ownership of Raelyn was transferred to others in October, 1974. It appears that the business effectively ceased to function within a short time thereafter.

Alleging that furniture was ordered by Raelyn and that the goods, though delivered F.O.B. LEA’s factory, as ordered, were never paid for, LEA filed suit against Rae-lyn for damages on an account stated, on an open account, and for goods sold and delivered in two transactions in August and September, 1974; and against Wendell and Linda Ray on their guarantee.

At the non-jury trial which ensued, the court excluded the proffered testimony of one of plaintiff’s witnesses which showed that an oral order had been placed by Wendell Ray and an associate with LEA’s representative at a trade show in July, 1974. Ray denied having placed the order. The court also excluded the order forms written by LEA’s salesman at the time the alleged oral order was placed, as well as invoices, acknowledgements and numerous shipping documents proffered by LEA. The apparent bases for exclusion were that the parol evidence rule and the statute of frauds barred their admission. LEA’s computerized records of Raelyn’s account were excluded on the theory that LEA’s witness was not a proper custodian of the records.

The record before us contains uncontra-dicted evidence of some payment sent to LEA by Raelyn, to wit, a check dated October 8, 1974, which was dishonored because of insufficient funds. The trial court nevertheless entered a final judgment for all defendants.

Plaintiff specifies seven points on appeal, all of which devolve around two basic issues: whether plaintiff’s ability to prove Raelyn’s liability was prejudiced by erroneous evidentiary rulings, and whether the guarantors’ liability was discharged by revocation or modification of the contract of guarantee. Therefore we will treat these central issues without specifically addressing each point on appeal.

We find that the trial court committed reversible error in excluding various documents and testimony proffered by LEA. Defendants’ contentions that the pa-rol evidence rule is applicable to the facts at bar are fallacious and without merit. As to the contention that the statute of frauds bars admission of plaintiff's evidence of goods ordered and delivered, we note that plaintiff produced a signed check on Rae-lyn’s account, made out to LEA, dated October 8, 1974, marked for Invoice # 88822 (one of the invoices Raelyn sought to have admitted). The check had been accepted by LEA and deposited to its account in a Virginia bank, but was returned for insufficient funds. This evidence alone was enough to take at least part of the contract out of the statute of frauds, for a contract which is otherwise valid is enforceable “with respect to goods for which payment has been made and accepted or which have been received and accepted.” Section 672.-2-201(3)(c), Florida Statutes [1977].

Moreover, LEA proffered copies of acknowledgements which had been sent to Raelyn to which Raelyn offered no evidence of objection having been made at any time. This too removed the contract from the reach of the statute of frauds. Section 672.2-201(2) and comment 3 thereto, Florida Statutes [1977]. Thus defendants’ objections to the admission of evidence because of the statute of frauds were groundless.

As to the assertion that LEA’s witness was not a proper records’ custodian and therefore the computer printouts he presented could not be admitted, the record reveals that the witness was properly identified as the man who had custody of the records as a regular part of his work, that he identified the persons making the entries which were transcribed into computer language as persons who did so in the ordinary course of business, and that he testified that the records were created substantially contemporaneously with the respective transactions to which they related. However, it lies within the trial court’s discretion to determine whether admission of such business records is justified. Because we perceive no necessarily reversible abuse of discretion, we decline to find reversible error on this point. Section 92.36(2), Florida Statutes [1977]. See generally Mastan Company v. American Custom Homes, Inc., 214 So.2d 103 (Fla. 2d DCA 1968).

Since plaintiff’s right to recover against any of the three defendants depends upon proof of delivery of ordered merchandise for which payment was not completed, the trial court’s errors in refusing to admit much of the evidence upon which such proof was predicated was patently prejudicial and requires reversal.

Plaintiff’s right to recover against Wendell and Linda Ray as individual guarantors depends first on proof of Raelyn’s liability and second on a determination that the guarantee was neither revoked nor modified sufficiently to relieve the'guarantors of secondary liability. Defendants Wendell and Linda Ray contend that the letters exchanged between the parties in August and September of 1973 constituted just such relief from liability. They argue that this correspondence modified what had been an unconditional guarantee into “a form of conditional guarantee” requiring prior approval of shipments by Mr. Ray before liability could attach under the guarantee.

The contract of guarantee was submitted by defendants on a form prepared by them. In such a situation, the guarantee is to be construed against the guarantor. Taran v. Sea Coast Appliance Distributors, Inc., 164 So.2d 274 (Fla. 3d DCA 1964).

By its terms, the guarantee is an unconditional and continuing one which could be revoked only by the means specified therein, i. e., by the returned receipt of a certified or registered letter. No revocation occurred. Was the absolute guarantee so modified by the later correspondence as to relieve the guarantors of their joint and several liability? We think not.

The letters were signed by Wendell Ray in his capacity as president of Raelyn. His agency status was indicated on both letters by the typewritten line beneath his handwritten signature, Wendell E. Ray, President. The guarantee was signed by both Wendell and Linda Ray in individual capacities. Moreover, it is clear that the letters referred to orders pending at the time they were written, not to orders as yet uncon-templated at the time of the exchange of correspondence. The record reveals no disclaimer of responsibility under the guarantee until the instant suit was filed. See generally Frell v. Dumont-Florida, Inc., 114 So.2d 311 (Fla. 3d DCA 1959). The later correspondence did not modify the original, absolute guarantee.

Where agreements are unambiguous, they must be enforced according to their terms:

“A continuing guaranty covers all transactions, including those arising in the future, which are within the description or contemplation of the agreement. If a guaranty is not ambiguous and is clearly a continuing one, it will, or course, be construed and treated accordingly.
* ' * * * if.
Courts have universally held that a contract of guarantee which provides that it is to run until further notice remains in force until revoked by the guarantor.” (Citations omitted.)

Bryant v. Food Machinery and Chemical Corporation Niagara Chemical Division, 130 So.2d 132 (Fla. 3d DCA 1961). Since the evidence produced by defendants did not show that the original guarantee was modified, the guarantors remain jointly and severally liable on their individual guarantees.

The judgment appealed from is reversed.

       Adler was a sales representative of LEA.

      . Another piece of evidence, a proffered deposition, was admitted only in part. We do not treat plaintiff’s argument that it was error to fail to admit the deposition in its entirety because, in light of our other holdings, it is unnecessary to a disposition o„f this cause.

      . The witness testified that according to LEA policy, the longest allowable time lag between occurrence of a transaction and its computerized recordation was forty-eight hours.


text:
    Catherine CIRACO, Appellant, v. Domenick CIRACO, Appellee.
    No. 77-2407.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.

      Philip A. Holtsberg, Coconut Grove, for appellant.
    Spiegelman & Spiegelman and Robert I. Spiegelman, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The appellant Catherine Ciraco appeals a final judgment of marriage dissolution entered in the Circuit Court for the Eleventh Judicial Circuit of Florida. She contends inter alia that it was reversible error for the trial court to award her two years of rehabilitative alimony in the amount of $75 a week, rather than permanent periodic alimony. We agree and reverse.

The undisputed evidence in the record establishes that the appellant has a 10th grade education, that she has no prior employment experience save as a factory worker in Detroit approximately 20 years ago, that she has little or no employment training or skills, that she has chronic back problems which prevent her from sitting for any length of time, that she was married for 24 years and is now 42 years old and that the appellee husband Domenick Ciraco earns in excess of $23,000 a year at reasonably secure employment having just recently gone through a bankruptcy proceeding which wiped out most of his debts. Based on such evidence, it is clear that it was an abuse of discretion to make an award of rehabilitative alimony to the appellant, as opposed to permanent periodic alimony. Hawkesworth v. Hawkesworth, 345 So.2d 359 (Fla.3d DCA 1977); McAllister v. McAllister, 345 So.2d 352 (Fla.4th DCA 1977); Patterson v. Patterson, 315 So.2d 104 (Fla.4th DCA 1975); Hernandez v. Hernandez, 312 So.2d 466 (Fla.4th DCA 1975); Lash v. Lash, 307 So.2d 241 (Fla.2d DCA 1975); Schwartz v. Schwartz, 297 So.2d 117 (Fla.3d DCA 1974); Reback v. Reback, 296 So.2d 541 (Fla.3d DCA 1974); Wilson v. Wilson, 279 So.2d 893 (Fla.4th DCA 1973).

We have carefully considered the other contentions made by the appellant on this appeal and find them insufficient to reverse any other portion of the final judgment. Accordingly, we reverse the final judgment only insofar as it awards the appellant two years of rehabilitative alimony and remand the cause to the trial court with directions to make the award of alimony permanent, rather than rehabilitative. In all other respects the final judgment is affirmed.

Affirmed in part; reversed in part.


author: KEHOE, Judge.

text:
    Edward M. HANRAHAN, Appellant, v. Daniel O. BARRY, Appellee.
    No. 77-2459.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.

      Steel, Hector & Davis and Henry J. Whelchel, Miami, for appellant.
    Batchelor, Brodnax, Guthrie & Primm, Miami, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   KEHOE, Judge.

The defendant, Edward M. Hanrahan, seeks review of an amended summary judgment in favor of the plaintiff, Daniel 0. Barry, in an action for contribution stemming from promissory notes on which the parties were co-guarantors.

In entering summary judgment for the plaintiff, the trial judge refused to accept the defendant’s tardy affidavit and untimely answers to plaintiff’s request for admissions. The court stated that, defendant having failed to timely respond to the request for admissions, each matter therein was deemed admitted and thus conclusively established under Florida Rule of Civil Procedure 1.370. Therefore, it ruled that there was no genuine issue of material fact and that plaintiff was entitled to judgment as a matter of law.

Among the matters deemed admitted as a result of defendant’s failure to timely file answers to plaintiff’s request for admissions was the following:

“That by virtue of the guaranty of said note by [defendant] and the payment of the note on demand by [plaintiff], [defendant] owes [plaintiff] 50% of the principal and interest paid thereon by [plaintiff].”

In reliance on this admission, the trial judge awarded plaintiff the full amount of damages sought in his complaint, one half of the principal and interest paid on the notes by the plaintiff.

Under the circumstances and facts as they were presented to the trial judge, we rule that he did not abuse his discretion in refusing to accept the defendant’s late answer to request for admissions. However, it appears that a certain crucial fact known to both parties was never brought to the attention of the trial court. This fact renders the amount of damages awarded to the plaintiff incorrect at this stage of the proceedings.

The admission recited above, and on which the trial court based its award of damages, is inaccurate for the reason that there was a third guarantor on the notes. Although the record reflects that neither party brought this fact before the trial court, the notes, copies of which are attached as exhibits to the pleadings, contain the signatures of three guarantors, plaintiff, defendant and another person.

Under this posture of the case, the plaintiff would be entitled only to a one third share from the defendant unless the plaintiff can demonstrate that the third guarantor is insolvent, and the trial judge makes a judicial determination of such insolvency. See generally, Annot. 64 A.L.R. 213 (1929); 38 C.J.S. Guaranty § 115 (1943); 7 Fla.Jur. Contribution § 2 (1956); 18 Am. Jur.2d Contribution § 27 (1965).

Therefore, we reverse the amended summary judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    The WICKES CORPORATION, Appellant, v. GENERAL ELECTRIC CREDIT CORPORATION, Appellee.
    No. 77-2542.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    Goldberg, Young, Goldberg & Borkson and Jeffrey S. Altman, Fort Lauderdale, for appellant.
    Gunn, Venney & Buhler and Robert E. Venney, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal by The Wickes Corporation (Wickes), one of the defendants below, is from a judgment entered against it on the cross claim of defendant General Electric Credit Corporation (G.E.) on a non jury trial. We hold no reversible error has been shown, and affirm.

A rather complicated commercial transaction was involved. The facts and the law applicable thereto were set out in the trial court’s judgment as follows:

“This cause came on before the Court on an order setting it for non-jury trial in which the Plaintiffs, Lock E. Towns and Emma H. Towns, seek a judgment for damages for conversion of a recreational vehicle purchased in 1975 and General Electric Credit Corporation seeks a judgment for damages for conversion of three recreational vehicles which it financed through Swinger Motor Homes in 1975. The parties have submitted the matter for decision by the Court on a stipulated record, including pleadings, affidavits and depositions on file.
The Cross-Defendant, Defendant Wick-es Corporation, held a Security Agreement that described the inventory and proceeds of inventory of Swinger and filed with the Secretary of State a financial statement that described inventory, proceeds of inventory and chattel paper. Wickes then financed inventory of Swinger Motor Homes in Broward County, Florida during 1975; and upon finding defaults in its security agreement with Swinger, repossessed on August '4, 1975, all of the inventory of Swinger Motor ■ Homes from its location in Broward County, Florida.
Three of the motor homes that are the subject of this action had been subject to purchase agreements by the Plaintiffs,' Lock E. Towns and Emma H. Towns, and two other purchasers in which possession of the vehicles had been delivered by Swinger to the customer purchasers and General Electric Credit Corporation had purchased the installment security agreement that had been executed by Swinger’s customers Robert Mucha, Sheldon Mayer and Lock E. Towns and Emma H. Towns.
General Electric Credit Corporation paid on July 30, 1975 to Swinger, $16,000 on behalf of Robert Mucha, on August 4, 1975, $19,000 on behalf of Sheldon Mayer, and on July 31,1975, $16,000 on behalf of Lock E. Towns and Emma H. Towns.
The recreational vehicles had been delivered to the respective customer purchasers of Swinger and then redelivered to the Swinger premises on an understanding that Swinger would make arrangements for the rental of the vehicles on behalf of the various customers.
Wickes Corporation repossessed the vehicles from the premises of Swinger and the parties Lock E. Towns and Emma H. Towns, and General Electric Credit Corporation now request damages for conversion as of August 4, 1975.
The Court finds that the sale of the vehicles by Swinger to its three customers was to buyers in the ordinary course of business, Uniform Commercial Code 671.201(9), and that such buyers take free of a security interest of inventory, Uniform Commercial Code, Florida Statutes Sec. 679.307(1).
General Electric Credit Corporation was the purchaser for value of the customer installment purchase security agreements. It took possession of the security agreements in the ordinary course of business, with no specific knowledge of the security interest of Wickes and it is entitled to recover the consideration it paid for the security agreements, Uniform Commercial Code, Florida Statutes Sec. 679.308, and the Court being otherwise advised, it is:
Adjudged as follows:
1. General Electric Credit Corporation recovers from the Defendant, Wickes Corporation, the sum of $51,000, together with legal interest from August 4, 1975, in the amount of $6,052, for a total of $57,052, together with its costs, for which let execution issue.
2. The plaintiffs, Lock E. Towns and Emma H. Towns, shall have judgment for the direct monetary loss by reason of the conversion of Wickes Corporation upon submission of competent evidence of same on or before December 15, 1977.
3. The motion to dismiss the complain by General Electric Credit Corporation is granted, with prejudice.

The appellant urges here that its security interest, which covered the seller’s inventory including items returned to its inventory, was superior to the security interest of the paper assignee, G.E. It is the contention of the appellee G.E. that its security interest was paramount. The trial court properly held that G.E., as purchaser for value of the customer installment purchase security agreements, with no specific knowledge of the security interest of Wickes, held superi- or thereto, under the Uniform Commercial Code. See Section 679.308 Florida Statutes (1975).

Appellant’s claim of superiority of security interest with respect to the involved vehicles is based on a theory that the said returned vehicles became a part of the seller’s inventory, and thereby were brought under Wickes’ security interest. Appellant’s contention in that connection is unsound, because when the purchasers of said vehicles redelivered them to the seller, with an arrangement for the latter to lease them out for the purchasers’ account, that was not a return of the vehicles to inventory, and did not cause them to become a part of the sales inventory. See Section 679.306(5), Florida Statutes (1975).

Affirmed.


text:
    Peter STEINBERG and Ina Steinberg, his wife, Appellants, v. BAY TERRACE APARTMENT HOTEL, INC., a Florida Corporation, Appellee.
    No. 78-22.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    Eli Breger, North Miami Beach, for appellants.
    Chai'les L. Neustein, Miami, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

This is an appeal by plaintiffs from an order dismissing their complaint, with prejudice.

The complaint alleged that plaintiffs entered into a contract for the purchase of an apartment house from the defendant, that under the terms of the contract the apartment house to be purchased consisted of twenty-three efficiency units -and that based upon such representations^ the transaction was closed. At the time of closing-, plaintiff, Peter Steinberg executed a purchase money mortgage in favor of the defendant.

After the closing, the Building and Zoning Department of the City of Miami Beach advised plaintiffs that the apartment house which plaintiffs purchased from defendant, had a designated use of ten units and could not be occupied by twenty-three tenants, nor had permits ever been issued changing the use from ten units to twenty-three units.

It was further alleged that defendant, through its officers, knew that the apartment house which it sold could not be used for the rental of twenty-three efficiency units and that such action on the part of said defendant was a fraud upon plaintiffs, or in the alternative, was the result of a mistake or, that it was a breach of a representation set forth in the contract.

Plaintiffs sought to have the transaction set aside and offered to make an accounting to defendants.

The defendant moved to dismiss the complaint on the grounds (1) that the plaintiffs are an estate by the entireties by virtue of a warranty deed from Peter Steinberg to Ina Steinberg and Peter Steinberg, husband and wife, and the defendant did not convey title to the plaintiffs, but instead, conveyed title to Peter Steinberg, individually, and therefore, the plaintiffs are not in privity with the defendant; (2) that the defendant made no warranties or representations to the plaintiffs estate by the entireties; (3) that there are no representations or warranties set forth in the contract for sale with regard to zoning; (4) that plaintiffs do not allege anywhere that they relied upon representations made by the defendant nor that they, had a right to rely on representations made by the defendant.

The complaint was dismissed, with prejudice, on the grounds of lack of privity, merger of contract into the deed and lack of any warranties with respect to zoning.

The appellants contend that the trial court erred in ruling that (1) the plaintiffs did not have sufficient standing: (2) that there was a merger of the contract into the deed, and (3) that there was a lack of any warranties with respect to zoning.

Upon review of the complaint and consideration of the points on appeal, we have concluded that the trial court erred in dismissing the complaint. We hold that the complaint stated a cause of action and should not have been dismissed. Gabel v. Simmons, 100 Fla. 526, 129 So. 777 (Fla. 1930); Musselwhite v. Oleson, 60 Fla. 342, 53 So. 944 (Fla.1910); Milu, Inc. v. Duke, 204 So.2d 31 (Fla.3d DCA 1967); Soper v. Stine, 184 So.2d 892 (Fla.2d DCA 1966).

Reversed and remanded for further proceedings.


text:
    Norman COHEN, as Trustee under that certain Land Trust Agreement dated June 15, 1972, and known as Trust No. 72-LT-9, and Jerome H. Tick, Murray Blattman and Norman Cohen, Appellants, v. PAN AMERICAN ALUMINUM CORPORATION, a Florida Corporation, and Florida East Coast Railway Company, a Florida Corporation, Appellees.
    No. 78-48.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.

      Williams, Salomon, Kanner, Damian, Weissler & Brooks and Lewis M. Kanner, Miami, for appellants.
    Patton, Kanner, Segal, Zeller, King & Middelthon and Dennis G. King, Miami, John W. Humes, Jr., St. Augustine, Stephen T. Onuska, Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

The sole issue on this appeal by plaintiffs from a final summary judgment rendered for defendants is whether the language of a particular document granting an easement for a railway right of way was correctly interpreted by the trial court. We hold that it was and affirm the judgment below.

Plaintiffs’ property was burdened by an easement which their predecessor in title had granted to one of the defendants. Contending that the easement had expired, plaintiffs sought to enjoin defendants from using the property as a railway right of way. The trial court found, as a matter of law, that the easement had not expired and rendered summary judgment for defendants. This appeal ensued.

The document at issue recites:

“[T]he Grantor does hereby and by these presents give and grant unto the Grantee, its successors and assigns, an exclusive perpetual easement over the lands hereinafter described, for the sole use of the Grantee for the purposes herein set forth, to wit, to use said land for a railway right-of-way to serve Grantee’s property.
‡ * * * m $
It is expressly understood and agreed that this easement and rights and privileges hereby granted will expire and become null and void whenever the Grantee, its successors or assigns, fails to use the property for a railway right-of-way for any one hundred twenty (120) consecutive days.”

Plaintiff-appellant contends the document is ambiguous and material issues of fact remain unresolved, arguing that the intent of the grantor was to terminate the easement if the use of the tracks was abandoned for the stated period. The argument is without merit.

The controlling document is not ambiguous. It provides that the easement is to expire when the property ceases to be used as a railway right of way for the specified time period. Where the language of a deed is clear and the grantor’s intention is reflected by that language, judicial interpretation of the words employed is inappropriate. Saltzman v. Ahern, 306 So.2d 537 (Fla.1st DCA 1975). It is the property itself which is the right of way, not the tracks laid thereupon. See Figg v. Louisville & N. R. Co., 116 Ky. 135, 75 S.W. 269, 270 (1903); Rio Grande Western Ry. Co. v. Salt Lake Inv. Co., 35 Utah 528, 101 P. 586, 589 (1909).

The record is devoid of any showing that the property was not used as a railroad right of way or that the right to so use it was abandoned merely because no trains passed over the tracks for one hundred twenty days. Therefore, the decision of the trial court must be upheld.

Affirmed.


text:
    Rae KAUFMAN, Appellant, v. A-1 BUS LINES, INC., Appellee.
    No. 78-263.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    Friedman & Robbins, North Miami Beach, for appellant.

      Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, plaintiff below, appeals an order entered by the trial court on January 23, 1978, dismissing her complaint with prejudice. We affirm the dismissal, but reverse its entry with prejudice.

Appellant sued defendants, Tom Gaskins, d/b/a Tom Gaskins’s Cypress Knee Museum, Lykes Brothers, Inc., and its insurance carrier, Hartford Accident & Indemnity Company, and A-1 Bus Lines, Inc., to recover damages for personal injuries which she received as a result of a trip and fall on the premises owned by defendant, Lykes Brothers, Inc., and maintained and operated as a tourist attraction by defendant, Tom Gas-kins, d/b/a Tom Gaskins’s Cypress Knee Museum.

In her complaint appellant alleged that she was a participant in a group tour, operated and conducted by the defendant, A-l Bus Lines, Inc., in accordance with an agreement with the Fountainview Ladies Club of the Fountainview Condominium, of which she was a member. The complaint further alleged that she fell from a catwalk located on the premises known as the Tom Gaskins’s Cypress Knee Museum, which was a place of amusement or attraction to which the public was invited, and which said cat-walk, the owner of the premises (Lykes Brothers, Inc.,), and the operator of the tourist attraction (Tom Gaskins), knew or reasonably should have known, was dangerous, hazardous, and unsafe for use. The specific acts of negligence on the part of the appellee A-l Bus Lines, Inc., were set forth in Counts III and IV of the complaint.

In Count III, appellant alleged that ap-pellee was in the business of “packaging, operating, and/or conducting group tours, such as the tour in which the Plaintiff was a participant,” and that by virtue of an agreement with the Fountainview Ladies Club of Fountainview Condominium, of which the plaintiff was a member, appellee agreed to “operate and conduct a bus tour to certain places of amusement and/or attraction, including Tom Gaskins’s Cypress Knee Museum.” The complaint in Count III further alleged that appellee was “fully and solely responsible for, and had the duty to make all arrangements for the tour, including but not limited to the selection of the amusements and/or attractions, and various rest and meal stops.” Appellant further alleged in Count III of her complaint, that appellee knew or should have reasonably known of the dangerous condition which existed at the Tom Gaskins’s Cypress Knee Museum on the date of the accident, and should not have made arrangements to stop at this attraction where members of the tour group, such as appellant, would be exposed to unreasonable risks or harm and personal injuries due to the use of the premises, and more particularly, the cat-walk located therein.

Appellant alleged that appellee had an implied contractural obligation to reasonably protect her from unsafe conditions such as the one that existed at Tom Gas-kins’s Cypress Knee Museum on the date of her accident, and that appellee breached the duty which it owed to appellant by virtue of its agreement with the Fountainview Ladies Club of Fountainview Condominium to arrange for and conduct this tour.

In Count IV of her complaint, appellant alleged that appellee had a duty to protect her from dangerous and hazardous conditions which might arise during the course of the tour, and that appellee breached this duty by the following acts:

1. Failure to inspect the amusements or attractions visited by the tour, and more specifically by failing to inspect the catwalks located on the premises known as Tom Gaskins’s Cypress Knee Museum;

2. Failing to warn appellant of the dangerous and hazardous conditions sued upon in her complaint;

3. Failing to prevent appellant from using the cat-walk which appellee knew or should have known would expose a person of appellant’s age and agility, to unreasonable risk and harm and personal injuries.

Appellee filed its motion to dismiss alleging that the complaint failed to state a cause of action against it on the grounds that no duty existed on its part to perform the acts appellant alleged appellee failed to perform and that the complaint failed to allege any act on the part of appellee which proximately resulted in any injury to appellant.

After a hearing, the trial court on January 23, 1978, entered an order granting appellee’s motion to dismiss with prejudice. From this order, appellant appeals contending that the trial court erred in dismissing with prejudice her complaint against appel-lee A-l Bus Lines, Inc.

A motion to dismiss a complaint for failure to state a cause of action is addressed exclusively to the allegations of the complaint. A trial court, in determining the validity of a motion to dismiss, assumes all well pleaded allegations to be true. The ultimate question before a court in ruling on such a motion is whether, if the one making the allegations later proves them, he would thereby establish a cause of action against the defendant. Thus, the motion must be decided on questions of law only, keeping to the allegations contained within the complaint. See, e. g., Geer v. Bennett, 237 So.2d 311 (Fla. 4th DCA 1970).

Although the trial court did not set forth any specific reason in its order dismissing appellant’s complaint with prejudice, we are of the opinion that the trial court acted correctly because, under the facts alleged, appellee owed no duty to appellant in regard to her injuries sustained on the premises of Tom Gaskins’s Cypress Knee Museum. It was neither alleged that appellee owned the Museum nor had any right or duty to control, operate, maintain, or care for it. Further, it was neither alleged that appellee furnished a tour director, guide, or in any way assumed responsibility for appellant’s welfare on the premises nor were these duties advertised in any brochure, etc., upon which appellant relied. Here, appellant alleged that she had left appellee’s bus and was on the Museum premises when she was injured. She also alleged that the injury was due to a dangerous condition existing on the Museum premises. For a cause of action to exist against appellee, there must have been some showing of negligence on its part; here, there was none. Under these circumstances, it is clear that appellee owed no duty to appellant in regard to the injuries which she sustained. See, e. g., Kenan v. Houston, 150 Fla. 357, 7 So.2d 837 (1942); and Carlton v. Miami Transit Co., 147 So.2d 581 (Fla. 3d DCA 1962). Compare Stevenson v. Four Winds Travel, Inc., 462 F.2d 899 (5th Cir. 1972).

In the light of our determination above, we believe that the trial court properly dismissed appellant’s complaint; however, we are of the opinion that the dismissal should not have been with prejudice. Accordingly,, the order appealed is affirmed, except to the extent that the dismissal was with prejudice it is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.


author: McCORD, Chief Judge.

text:
    Garnett UMBERGER, Berrian W. Rouse, Ronald E. Sanders, H. Paul Taylor, Luther H. Dean and Thomas F. Futch, Appellants, v. Vernon F. JOHNS, Willis H. (Bill) Fowler, Eugene Hodges, F. E. (Gene) McCloud, Cora Lee (Mrs. Ronald) Hersey and W. E. Turner, Grady Mason and Richie Shirley, as Trustees of Sans Souci Baptist Church, an unincorporated religious society, Appellees.
    No. JJ-255.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1978.

      William H. Maness, Jacksonville, for appellants.
    Eric B. Smith, Jacksonville, for appellees.
   McCORD, Chief Judge.

This is an appeal from the trial court’s dismissal with prejudice of appellants’ amended complaint. The amended complaint alleged in substance that appellees, a faction of the Sans Souci Baptist Church of Jacksonville, colluded to adopt a resolution without adequate notice which in effect deprived appellants of their active membership in the church, their right to vote on business affairs of the church, their right to hold elected positions of responsibility in the church and their right to continue to teach in the Sunday School and Training Union. We reverse.

The allegations of the amended complaint are to the effect that on June 6, 1977, appellees caused a notice to be sent to the church membership calling attention to the regular monthly business meeting to be held on June 8,1977, and encouraging members “who are interested in the future ministry of Sans Souci Baptist Church to be in attendance at this important meeting”; that at the June 8 meeting, a majority of the church members who were present (20% of the membership being present) passed a resolution (attached to the amended complaint as an exhibit) which gave rise to this cause of action. The resolution stated a general purpose of restoring unity and harmony within the church and in pursuit of that goal it required all members to sign the church covenant and the resolution on or before June 26, 1977. The resolution provided that any members who did not sign as required would enter an inactive membership status with the above-named restrictions on their church activities. The amended complaint alleged that appellants refused to sign the resolution and covenant and were thereafter notified of their inactive membership status.

Under the adopted rules of church order (the by-laws) applicable to Sans Souci Baptist Church (attached to the amended complaint as an exhibit), there is no provision for the automatic placement of any person on the “inactive” status. Instead, the bylaws set forth a series of steps to be fulfilled before one will be declared inactive. The adoption of the resolution at issue in this ease had the effect of adding a new category of “inactive” members, to-wit: Those persons who refused to sign the June 8, 1977, resolution and the covenant. Since appellants’ membership status was changed automatically by their failure to sign, the legal effect of the resolution was an alteration of or amendment to the requirements of the by-laws regarding change in membership status. The church by-laws provide that a meeting in which an amendment to the by-laws is to be considered must be duly noticed for not less than 8 days and publicity shall be given as to the purpose both from the pulpit and in the church bulletin for two consecutive Sundays. The amended complaint alleges that no such notice was given prior to the June 8 meeting.

We endorse the general rule that civil courts do not assume jurisdiction to adjudicate disputes in ecclesiastical matters. However, appellants filed this action in the trial court seeking to have the court apply and enforce principles of parliamentary procedure and not for the purpose or effect of involving a court of law in an ecclesiastical matter. As recognized in Epperson v. Myers, 58 So.2d 150 (Fla.1952):

“The Baptist Church is congregational in government and conducts its proceedings by well-established rules of church order. [The affairs of the Baptist Church] must be accomplished by the [cjhurch organization under recognized rules of church order. When a ‘faction’ of the church arrogates authority to itself, disrupts the organization and sets at naught well-defined rules of church order, there is no course left for those who desire their rights settled through orderly processes but resort to the courts.”

In keeping with the Epperson reasoning, we find that appellants’ amended complaint states a cause of action insofar as it alleges that appellees effected a change in the church by-laws without complying with the notice requirements of the by-laws.

REVERSED and REMANDED.

BOYER and MILLS, JJ., concur.


text:
    Lillie G. HOWARD and Landley V. Howard, her husband, Appellants, v. Kingston C. NEWMAN, Appellee.
    No. JJ-317.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1978.
    Elliott Zisser, of Zisser, Robison & Spohrer, Jacksonville, for appellants.
    Stephen E. Day, of Matthews, Osborne, Ehrlich, MeNatt, Gobelman & Cobb, Jacksonville, for appellee.
   PER CURIAM.

In this case of first impression we are asked to determine whether the phrase “medically or scientifically demonstrable” in Section 627.737(2)(e), Florida Statutes, requires objective signs of an injury or allows subjective statements of pain as proof of injury.

The Second District Court of Appeal in Johnson v. Phillips, 345 So.2d 1116 (Fla. 2d DCA 1977), determined that the term “permanent injury” in Section 627.737(2), Florida Statutes, includes “permanent subjective complaints of pain from an initial organic injury.” That holding is not dispositive of the issue here because of the wording of the statute. Section 627.737(2)(e), Florida Statutes, provides for recovery by the plaintiff for:

“A serious, nonpermanent injury which has a material degree of bearing on the injured person’s ability to resume his normal activity and lifestyle during all or substantially all of the 90 day period after the occurrence of the injury, and the effects of which are medically or scientifically demonstrable at the end of such period.”

In that subparagraph, the Legislature has chosen to insert the qualifying phrase “the effects of which are medically or scientifically demonstrable.” We do not believe that that phrase is intended to be without meaning or effect. Thus, we interpret the phrase “medically or scientifically demonstrable” to require the plaintiff to show objective signs of injury.

In light of this interpretation, we affirm the action of the trial court dismissing the complaint without prejudice for failure to meet the threshold requirements of Section 627.737(2).

SMITH, Acting C. J., ERVIN, J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.


text:
    Cathy Elizabeth CHASTAIN, Appellant, v. Thelmon Bernard CHASTAIN, Appellee.
    No. JJ-339.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1978.
    H. Randolph Fallin, Jacksonville, for appellant.
    L. Haldane Taylor, of Taylor & Brecher, Jacksonville, for appellee.
   PER CURIAM.

Appellant, the mother of Clay Chastain, eight years of age, appeals an order of the trial court modifying the custody provision of the final judgment of divorce. The order of modification changes custody from the appellant mother to the appellee father for a period of one year and provides that “the court shall review the question of child custody on or after June 1,1979, upon filing of appropriate application and notice of hearing by either party.” The appellee has cross-appealed, urging that the trial judge erred in not making the modification permanent.

The record is replete with evidence supportive of the change of custody. That evidence is clearly sufficient to have supported a permanent change. Although the purpose of restricting the modification of custody to a period of one year and providing in the order for a review thereafter is unclear to us, we are not prepared to hold at this time that such constitutes an abuse of discretion. Whether or not another hearing will in fact be held in accordance with the reservation in the order here sought to be reviewed, what the evidence will then reveal as to the best interest of the child and the trial court’s decision then are matters upon which we will not now speculate.

AFFIRMED.

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


text:
    Jimmie CARRIERE v. PEE WEE’S EQUIPMENT COMPANY.
    No. 61785.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Jimmie Carriere applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 361 So.2d 1223.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Daniel A. OLIVER v. MILLIKEN & FARWELL, INC., et al.
    No. 62613.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Daniel A. Oliver applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of West Baton Rouge. 356 So.2d 443, 361 So.2d 1248.

Writ denied.


text:
    Gloria Ann GUILOTT v. Clyde B. GUILOTT.
    No. 62662.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Gloria Ann Guilott, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 361 So.2d 1271.

Writ denied.

SANDERS, C. J., and CALOGERO, J., would grant the writ.


author: CALOGERO, J.,

text:
    Dave SANDERSON, Jr. v. Harry J. ATWOOD, Jr., A. J. Graffagnino and A & H Electric, Inc.
    No. 63059.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Dave Sanderson, Jr., applying for writ of review. Parish of Jefferson.

Not considered. Application not timely filed. See Rule 10, Section 5(b), Louisiana Supreme Court Rules.

CALOGERO, J.,

concurs. Under our rules, applicant may still file here anew after securing leave and a return date from the trial judge.


text:
    Warren J. MOITY, Sr. v. Mrs. Florence Avant CASTILLE et al.
    No. 63113.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Warren J. Moity, Sr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Iberia.

Writ not considered. Application not timely filed. See Rule 10, Section 5(b), Louisiana Supreme Court Rules.


text:
    Raymond EDLER v. Joyce MURRAY.
    No. 62949.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Joyce Murray applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 205.

Writ denied.

SANDERS, C. J., would grant the writ.


text:
    Ernest V. RICHARDS, IV v. GULFCO ELECTRONICS CORPORATION.
    No. 62945.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Ernest V. Richards, IV, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 609.

Denied.


text:
    STATE of Louisiana v. Richard A. PASS.
    No. 62970.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Richard A. Pass, applying for remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Handsome ROBINSON v. H. (Mike) CANNON, Clerk of Court, 19th Judicial District Court, Parish of E. Baton Rouge and State of La. Through 19th Judicial District Court, Parish of East Baton Rouge.
    No. 62967.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Handsome Robinson applying for writ of mandamus. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Michael JONES v. Hayden J. DEES, Warden.
    No. 62971.
    Supreme Court of Louisiana.
    Sept. 29, 1978..
   In re: Michael Jones, applying for writ of certiorari. Parish of Tangipahoa.

Writ denied.


text:
    STATE of Louisiana ex rel. James L. LaRUE v. Frank BLACKBURN, Warden and Louisiana State Penitentiary.
    No. 62972.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: James L. LaRue applying for writ of habeas corpus/remedial writs.

Writ denied.


text:
    STATE of Louisiana ex rel. Ronnie L. FRANCOIS v. Hayden J. DEES, Warden, Dixon Correctional Institution, Jackson, Louisiana.
    No. 62973.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Ronnie L. Francois, applying for writ of mandamus. Parish of Orleans.

Writ denied. Application is moot. Trial judge has ruled.


text:
    STATE of Louisiana ex rel. John VICENTE v. C. Paul PHELPS, Secretary for Department of Corrections.
    No. 62916.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: John Vicente, applying for remedial writs of mandamus, prohibition and in-junctive relief. Parish of Jefferson.

Granted and transferred to Jefferson Parish.


text:
    STATE of Louisiana ex rel. Salvador J. LOGRANDE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62922.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Salvador J. Logrande, applying for writ of habeas corpus. Parish of Orleans.

Not considered. Not filed in district court.


text:
    STATE of Louisiana ex rel. McArthur JOHNSON v. Sheriff Vol S. DOOLEY, Jr., Bossier Parish.
    No. 62881.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Me Arthur Johnson, applying for remedial writ. Parish of Bossier.

Denied.


text:
    Joseph A. MULLER, d/b/a Acme Finance v. Larry BRYANT et al.
    No. 62909.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Larry Bryant applying for supervisory and remedial writs and certiorari, Orleans Parish and Jefferson Parish.

Writ denied. Adequate remedy by appeal to the Civil District Court for Parish of Orleans which the record indicates is presently pending.

SUMMERS, J., would deny until such time as relator has exhausted all remedies below.


text:
    ASSOCIATED EXECUTIVE CONTROL, INC. v. BANKERS UNION LIFE INSURANCE COMPANY.
    No. 62885.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Associated Executive Control, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 557.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


author: SUMMERS, J.,

text:
    STATE of Louisiana ex rel. David BURCH v. CLERK OF COURT, CRIMINAL DISTRICT COURT ORLEANS PARISH.
    No. 62935.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: David Burch, applying for writ of mandamus. Parish of Orleans.

Granted. Transcript of Boykinization is ordered sent to relator.

SUMMERS, J.,

dissents. See reasons in State, ex rel. Thomas v. Ward, Judge, 363 So.2d 1389.


text:
    Succession of John Jacob ZINSEL.
    No. 62944.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Joseph G. Zinsel, Individually and as testamentary executor and Mrs. Dolores Clark, widow of John Jacob Zinsel, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 587.

Writ denied.


text:
    INGRAM CONTRACTORS, INC. v. H. L. ROWLEY.
    No. 62943.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Ingram Contractors, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 593.

Writ denied.


text:
    James BATTISTE v. Louis FREY and Charles Frey.
    No. 62911.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: James Battiste, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Denied.


text:
    JOBOB TOWING, INC., v. JEFFERSON MARINE TOWING, INC., et al.
    No. 62941.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Jobob Towing, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana ex rel. Billy Ray CLARK v. Hayden J. DEES, Warden, Dixon Correctional Institution, Jackson, Louisiana, C. Paul Phelps, Secretary, Louisiana Department of Corrections.
    No. 62917.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Billy Ray Clark, applying for writ of mandamus. Parish of Caddo.

Denied. Moot.


text:
    STATE of Louisiana v. Archie Calvin GUSS.
    No. 62923.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Archie Calvin Guss applying for writ of habeas corpus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. James Edward SMITH, v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 62921.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: James Edward Smith, applying for writ of habeas corpus. Parish of LaSalle.

Denied.


text:
    Thomas LEBOUEF v. DESTREHAN BOARD OF TRADE and Commercial Union Insurance Company.
    No. 62894.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Thomas Lebouef, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. John the Baptist.

Writ denied.


text:
    STATE of Louisiana v. Nelson L. EARIN.
    No. 62884.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Nelson L. Earin, applying for writ of habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Larry Dean HIGGINS.
    No. 62882.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Larry Dean Higgins, applying for remedial writs. Parish of Ouachita.

Writ denied.


text:
    J. W. STROUGHTER REALTY v. Jo Ann LEWIS.
    No. 62834.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Rose Miller, applying for writ of certiorari or review. Parish of Orleans.

Writ denied, reserving to relator the right to timely apply to this court after the ruling of the court of appeal.


text:
    STATE of Louisiana v. James CARSON, Jr.
    No. 62975.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: James Carson, Jr., applying for remedial writs. Parish of Orleans.

Moot. Not considered. An appeal has been filed under No. 63,092 in this Court in behalf of this applicant.


text:
    STATE of Louisiana v. Wayne BALLOM.
    No. 62883.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Wayne Ballom, applying for writ of habeas corpus, mandamus, certiorari and prohibition. Parish of Orleans.

Not considered; applicant has not first applied to district court.


text:
    STATE of Louisiana v. Charles Earl BAKER.
    No. 63104.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Charles Earl Baker applying for supervisory writ of review, prohibition, mandamus and stay order.

Writ granted. Evidentiary hearing ordered on motion to reduce bond.


text:
    STATE of Louisiana v. James MORRIS.
    No. 62915.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: James Morris, applying for writ of mandamus. Parish of East Baton Rouge.

Granted. Trial court ordered to furnish petitioner Boykin examination.


text:
    STATE of Louisiana ex rel. Milton ARMSTEAD v. Frank J. SHEA, Judge, Criminal District Court.
    No. 62934.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Milton Armstead, applying for writ of mandamus. Parish of Orleans.

Writ granted. It is ordered that the petition be transferred to the trial court for a ruling.


text:
    STATE of Louisiana v. Ray T. WOODALL, Jr.
    No. 62919.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Ray T. Woodall, Jr., applying for remedial writ. Parish of Orleans.

Writ granted. It is ordered that transcript be furnished to applicant.


text:
    STATE of Louisiana ex rel. Barry Edward BALLARD v. Diehlmann C. BERNHARDT, attorney at law.
    No. 62849.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Barry Edward Ballard, applying for writ of mandamus or a writ of prohibition. Parish of Ouachita.

Writ granted. It is ordered that transcript of evidentiary hearing be furnished relator or his attorney.


author: EASON, Judge.

text:
    GUIDE NEWSPAPER CORPORATION v. John A. LANGFORD, Louisiana Land & Development Corporation, and Carr Realty Company.
    No. 9195.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Favret, Favret & Demarest, Thomas J. Lutkewitte, New Orleans, for plaintiff-appellant.
    Wayne M. Babovich, New Orleans, for defendants-appellees.
    Before LEMMON, BOUTALL and EA-SON, JJ.
   EASON, Judge.

In these proceedings, the plaintiff, Guide Newspaper Corporation, has entered suit against three defendants, Louisiana Land & Development Corporation as present owner of the property for which the advertisement for sale was effected (New England Apartments, the previous owner which had sold earlier and judgment rendered against that corporation which apparently is without assets), Carr Realty Company as alleged undisclosed agent for Louisiana Land & Development Corporation, and John A. Lang-ford personally alleged to have signed the advertising contract albeit as president of New England Apartments.

This appeal arises from an exception of no cause or right of action filed on behalf of defendant Carr Realty. Carr Realty contends that the petition has alleged no cause of action against Carr Realty and has no right of action since no contractual relationship existed between plaintiff and Carr Realty. These exceptions were sustained by the trial judge without written reasons for that judgment.

There is well settled jurisprudence in Louisiana concerning Code of Civil Procedure Article 927(4) providing for the peremptory exception of no cause of action. The Louisiana Supreme Court in Louisiana & Arkansas Railway Company v. Goslin, 258 La. 530, 246 So.2d 852 (1971), set forth the general rule that to maintain an exception of no cause of action the allegations of the petition must be such as to exclude every reasonable hypothesis other than the premises upon which the defense is based and all doubts must be resolved in favor of the sufficiency of the petition to state an actionable cause. This position is buttressed by Article 865 of the Code of Civil Procedure which provides:

“Every pleading shall be so construed as to do substantial justice.” LSA-C.C.P. Art. 865.

In these proceedings, the petition alleges that the defendant, Carr Realty, is an undisclosed agent for other of the defendants. Such an undisclosed agency according to time-honored jurisprudence may make the undisclosed agent personally liable. Chappuis & Chappuis v. Kaplan, 170 La. 763, 129 So. 156 (1930). Thus, it is clear that the allegation in the petition, Paragraph VII thereof, that Carr Realty was an undisclosed agent for another defendant, Louisiana Land & Development, sufficiently sets forth a cause of action within the framework of our laws. Accordingly, it is our opinion that the district court should have overruled the exception as it concerns no cause of action.

The peremptory exception of no right of action relates specifically to the party plaintiff and raises the issue concerning the plaintiff’s right to proceed against the defendant. This exception cannot be used to raise a matter which constitutes a defense on the merits rather than an attack on the plaintiff’s capacity to file the suit. The exception of no right of action should have been overruled.

Accordingly, the judgment of the lower court is reversed and these matters are remanded for further proceedings by the lower court.

REVERSED AND REMANDED.


author: SCHOTT, Judge.

text:
    Richard L. ALFORD v. DELTA AIRLINES, INC.
    No. 9722.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Robert T. Garrity, Jr., New Orleans, for plaintiff-appellee.
    McGlinchey, Stafford, Mintz & Hoffman, Frederick R. Campbell, New Orleans, for defendant-appellant.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   ON MOTION TO DISMISS

SCHOTT, Judge.

On our own motion we questioned our jurisdiction over this appeal from a default judgment taken against the defendant in the First Parish Court for the Parish of Jefferson. Defendant did not apply for a new trial and the following chronological developments are pertinent:

February 8,1978 - Personal service on defendant’s agent for service of process.
March 3,1978 - Default judgment taken against defendant.
May 10,1978 - Petition for suspensive appeal filed and appeal bond posted by defendant.

The delay for taking an appeal from a judgment of the First Parish Court is ten days from the expiration of the three day period allowed for the filing of an application for a new trial. See LSA-C.C.P. Arts. 5002 and 4898 and R.S. 13:2561.10.

Appellant takes the position that the delays for the filing of the application for a new trial and the taking of the appeal never commenced to run because appellant was not served with a notice of judgment which appellant contends was required by C.C.P. Art. 4898. This provides:

“Notice of judgment shall be served on a defendant against whom judgment is rendered if the citation was not served on him personally, and he failed to answer. “Notice of judgment need not be given in any other case.”

The record shows that the citation was served on appellant through its agent for the service of process, T. T. Corporation System. The issue before us is whether this constituted personal service under Art. 4898 with the result that notice of judgment was not necessary.

In Rue v. Messmer, 332 So.2d 591 (La. App. 4th Cir. 1976) we held that service of citation on the Secretary of State as the statutory agent for the service of process of a foreign insurer was equivalent to personal service so that notice of the signing of the default judgment was not required. We see no distinction in the case of the registered agent for service of process for a corporation and reach the same conclusion that no notice of judgment was required in this case.

Accordingly, the appeal is dismissed.

APPEAL DISMISSED.