author: PER CURIAM. PEARSON, Judge

text:
    FINANCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION OF DADE COUNTY, Appellant, v. CONTINENTAL ENTERPRISES, INC., Appellee.
    No. 75-1694.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.
    Meyer, Weiss, Rose, Arkin, Sheppard & Shockett and S. Harvey Ziegler, Miami Beach, for appellant.
    Goldstein & Goldstein, Miami, for appel-lee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellant, Financial Federal Savings and Loan Association of Dade County, appeals from a final judgment for the plaintiff-appellee, Continental Enterprises, Inc. Financial Federal refused to complete a pending loan after a closing at which the mortgage was signed but the funds were not disbursed. Financial Federal refused to disburse the funds on the ground that the interest rate had advanced since the time of the application for the loan and that the use of the lower interest rate was a mistake. The trial was held by the court without a jury and the trial judge made extensive findings of fact, all of which are supported by the record.

Two points are presented. The first goes to the legal effect of certain evidence and claims error because the court did not hold that Financial Federal was entitled to a judgment because of a provision in the application that: “ . . . the Association reserves the right prior to the final disbursement . to withdraw its approval and acceptance for any other reason whatsoever . . . ” The trial court correctly held that the application was not a binding contract upon either party and that the agreement to loan the money came into being with the acceptance of the loan by Financial Federal as demonstrated by the acceptance of the mortgage and note and agreement to disburse. Representations and negotiations which precede and accompany the making of a contract are presumed to have merged in the written contract. See Windowmaster Corporation v. Jefferson Construction Co., 114 So .2d 626 (Fla.3d DCA 1959).

The second point urges error upon the assessment of damages. The borrower was able to secure a loan at a slightly higher interest rate than that specified in its aborted loan from Financial Federal. The damage was properly measured by the additional cost of the substitute loan. But appellant urges that the damages represented by the excess of the larger payments to be made at a future time should have been reduced to present money value. Although no Florida case in contract so holding has been presented, we are inclined to this view. Cf. Hanna v. Martin, 49 So.2d 585 (Fla.1950).

The defendant tendered the testimony of a bank officer that the loss of $6,036 capitalized at the rate of eight and three-quarters percent would be $2,447.26. This tender was objected to only upon the ground that the reduction of the gross amount of damages to present money value was improper in a contract case. In view of our holding that such a reduction would have been proper, we reverse the judgment as to damages only and remand the cause with directions to take such further testimony as the court may find proper under the views herein expressed. The court shall, thereupon, assess such damages as it finds proper based upon the evidence in this record and such additional evidence as shall be taken pursuant to the direction of this court.

Affirmed in part, reversed in part and remanded.

PEARSON, Judge

(dissenting in part).

It is my view that in the instant case, error was not shown in this record because defendant’s tender of evidence was. not proper in substance. See the rule stated in Renuart Lumber Yards, Inc. v. Levine, 49 So.2d 97 (Fla.1950), where the Supreme Court held that while the trier of fact is not limited to the legal rate in the reduction of future damages to a present money value, the rate must be such as “to be just and fair under the circumstances.” The Supreme Court took into consideration the general public knowledge of interest rates payable on government bonds, bank deposits, building and loan association deposits, insurance contracts, and other thoroughly safe investments. I would hold that the tender did not meet this standard. No other evidence was before the court. I would, therefore, affirm the judgment.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Louis D. LAMBERTI, Appellant, v. STATE of Florida, Appellee.
    No. 75-1735.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.
    Storace, Hall & Hauser, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant, defendant in the court below, appeals a final order entered by the trial court denying appellant’s motion for a new trial. Appellee, the State of Florida, was the prosecution below.

Appellant’s basic contentions are twofold: (1) that the trial court abused its discretion by failing to grant him a new trial because appellee failed to provide appellant with a witness’s statement used by the prosecution for impeachment purposes and (2) that the trial court abused its discretion by failing to grant him a new trial upon the discovery of certain newly acquired evidence.

We are unable to agree with appellant’s basic contentions in light of the recent United States Supreme Court case of United States v. Agars,-U.S.-, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Other contentions raised by appellant in his brief are without merit.

After carefully reviewing the record, all points in the briefs and arguments of counsel, in light of the controlling principles of law, we are of the opinion that the trial court did not abuse its discretion in denying appellant’s motion for a new trial and that he received a full and fair trial.

Having concluded that no reversible error has been demonstrated, the final order denying appellant’s motion for a new trial is affirmed.

Affirmed.


text:
    Jacquelyn PARKER, Appellant, v. W. R. ROBBINS, Appellee.
    No. 75-1787.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.

      Frank Amigo, Legal Services, of Greater Miami, Miami, for appellant.
    Abe Schonfeld, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Short v. Short, 162 So.2d 538 (Fla.3d DCA 1964); Veterans Loan Authority v. Danzo, 210 So.2d 461 (Fla.3d DCA 1968) and Fla.App. Rule 4.2; Florida Living for Retired v. Retirement Hotel Assoc., 167 So.2d 83 (Fla.3d DCA 1964).


author: HENDRY, Judge.

text:
    The OHIO CASUALTY GROUP, Appellant, v. James C. PARRISH, Jr., a minor by and through his father and next friend, James C. Parrish, Sr., and James C. Parrish, Sr., Individually, et al., Appellees.
    Nos. 75-1799, 75-1800.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.
    Horton, Perse & Ginsberg, Miami, Jones, Paine & Foster, West Palm Beach, for appellant.
    Headley & Sudduth, Sam Daniels, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

Appellant, the workmen’s compensation carrier in the court below, brings this appeal from an order entered by the trial court on February 3, 1975, denying appellant’s motion to modify an order on equitable distribution, or in the alternative, for relief pursuant to Fla.R.Civ.P. 1.540(b)(5). Appellees were the plaintiffs in the trial court.

On September 7, 1970, appellee, a minor, was severely injured in an automobile accident. The minor’s father instituted suit against the third party tortfeasors on behalf of his son and in his individual capacity. Appellee’s employer had workmen’s compensation insurance with appellant. On January 26, 1971, pursuant to Section 440.-39, Florida Statutes (1971), a Notice of Workmen’s Compensation Carrier’s Claim of Lien was filed by appellant.

During the course of settlement negotiations, a conference was held before the circuit court judge to determine the amount of recovery the court would allow appellant on its lien. On August 23,1971, the trial court entered its order of award and an appeal by the carrier followed. By order of April 4, 1972, this court affirmed the trial court. Ohio Casualty Group v. Parrish, 260 So.2d 550 (Fla.3d DCA 1972), cert. den. 273 So.2d 78 (Fla.1973), cert. den. 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973); App. dism. 291 So.2d 8 (Fla.1974).

On November 5, 1975, appellant, based upon a subsequent modification of Section 440.39, Florida Statutes (Supp.1974), sought to modify the August 23, 1971 award. Ap-pellees thereupon filed a Suggestion of Lack of Jurisdiction over the Subject Matter. On November 3, 1975, the lower court held that it lacked jurisdiction and denied the appellant’s motion without prejudice. On November 21, 1975, appellants filed a Notice of Appeal and Notice of Interlocutory Appeal. These appeals were consolidated by order of this court on November 24, 1975.

Appellant, in its brief, correctly states the issue as follows:

“Whether the trial court, after affirmance on appeal of a judgment, may thereafter entertain a motion to modify or in the alternative for relief under F.R.Civ.P. 1.540(b) without first obtaining leave of the appellate court which theretofore affirmed the judgment.”

Appellant contends that the better procedure under a F.R.Civ.P. 1.540(b) motion would be to allow the trial court to entertain the motion without first obtaining permission from the appellate court. Appellant argues that this procedure would eliminate the unnecessary and delaying formalism of requiring leave of the appellate court before the trial court could dispose of the motion.

We cannot agree with appellant’s contention. When the provisions of a final judgment are affirmed on appeal, that judgment becomes a judgment of the appellate court. Without specific permission by the appellate court, that judgment cannot be interfered with by the trial court. Schetter v. Schetter, 330 So.2d 150 (Fla.4th DCA 1976). See also Lesperance v. Lesperance, 257 So.2d 66 (Fla.3d DCA 1971).

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reason stated and upon the authorities cited the order appealed from is affirmed and this cause is remanded to the trial court for the assessment of appellees’ attorney’s fees pursuant to Section 440.-34(1), Florida Statutes (1975).

Affirmed and remanded to the trial court for an assessment of attorney’s fees.


text:
    Terry ALEXANDER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1806.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.
    Winter & Zuelch, Key West, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Weeks, 166 So.2d 892 (Fla.1964), and Garcia v. State, 228 So.2d 300 (Fla.3rd DCA 1969).


text:
    Frank C. PETRINE and Searle & Morris Coral Gables Insurance Inc., Appellants, v. D. BLACK & SONS, INC., a Florida Corporation, and Glen Falls Insurance Co., a Foreign Corporation, Appellees.
    No. 75-1844.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.
    Smathers & Thompson, Miami, Gerald M. Walsh, Fort Lauderdale, for appellants.
    Savitt, Kotzen, Riskin & France, P. A., North Miami Beach, for appellees.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

The appellants were defendants in an action which charged negligence in the failure to procure insurance for the plaintiff. The plaintiff also sued in the same cause to establish the existence of the insurance. The court found the existence of the insurance but, in the alternative, found that if it should be held by an appellate court that the evidence did not support his finding that the insurance did exist, then the defendant insurance agents would be liable.

The appellants urge on appeal that such an alternative finding is not allowed by the law. No statute or case on point is cited. Appellants’ reliance on Durbin Paper Stock Co. v. Watson-David Insurance Co., 167 So.2d 34 (Fla.3d DCA 1964) is misplaced inasmuch as in that case the findings were contradictory rather than alternative.

No error having been demonstrated, the judgment is affirmed.

Affirmed.


text:
    Georgia BARTON, Appellant, v. George BARTON, Appellee.
    No. 75-1886.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.

      Hirschhorn & Freeman, Miami, for appellant.
    Timothy Keyser, Interlachen, for appel-lee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976); and Bruggisser v. Bruggisser, 133 So.2d 654 (Fla.3d DCA 1961).


text:
    Andrew Holland WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1997.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.
    Phillip A. Hubbart, Public Defender, and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Andrew Holland Williams was charged by information with four counts of robbery and with unlawful possession of a firearm while engaged in a criminal offense. The firearm possession charge and one robbery count were abandoned by the State. At trial, the jury rendered verdicts of guilty on the three counts of robbery. The trial court adjudicated Williams guilty and sentenced him to three concurrent terms of fifteen years in the state penitentiary, ten years to be served and five to be stayed and withheld and the defendant placed on probation.

The record reflects that on September 16, 1974, a supermarket on South Dixie Highway was robbed by three black males, one wearing a green shirt, and the other two wearing maroon or maroon flowered shirts. The men had been armed with pistols and a shotgun. A BOLO (be on the lookout) radio alert was issued. Sergeant Green of the Dade County Public Safety Department heard the BOLO as he was driving his patrol car on South Dixie Highway a few miles from the scene of the robbery. He observed a car carrying three men fitting the description given in the BOLO. Defendant Williams was one of the passengers. Sergeant Green stopped the car, and then Officer Callahan, also of the Public Safety Department, arrived in response to a request by Green. When one of the suspects asked to get some cigarettes from the car, Officer Callahan accompanied him back to the car, and observed the butt end of a firearm sticking out from under the seat on the floorboard area of the car. He reached down and pulled out a short barrelled shotgun. Officer Callahan testified that from his experience, the combination of the sawed off shotgun together with the BOLO gave him cause to believe that more contraband was in the vehicle. He placed the suspects under arrest for possession of illegal firearms, then searched the suspects and the car and found two revolvers, a billy club and a brown paper bag filled with money.

Williams filed a pretrial motion to suppress the evidence seized in the search of the car. The trial judge denied the motion and stated as grounds that: (1) the initial stop pursuant to the BOLO was an aspect of temporary detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); (2) the seizure of the shotgun fell under the plain view doctrine; and (3) the seizure of the gun coupled with the circumstances and the knowledge of the officers gave probable cause to search the car under the Carroll doctrine. At trial, the objects seized from the car were admitted into evidence over defense counsel’s objection. At the close of the State’s case, defense counsel moved for a judgment of acquittal alleging as grounds that the State had failed to prove a prima facie case. The motion was denied. Subsequent to the defense resting, counsel renewed the motion for judgment of acquittal on the same grounds as those previously raised, and the court again denied the motion.

On a motion to suppress evidence, the trial judge is trier of both law and fact. His conclusions come to this court clothed with a presumption of correctness, and in testing the accuracy of his conclusions on questions of fact, we should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom, in the light most favorable to those conclusions. Cameron v. State, 112 So.2d 864, 869 (Fla. 1st DCA 1959); Rodriquez v. State, 189 So.2d 656, 660 (Fla. 3rd DCA 1966).

The pivotal question on this appeal is whether the arresting officers had sufficient probable cause to stop and detain the defendant and his two companions. The applicable rule was recently recited by this court in Maruca v. State, 329 So.2d 427 (Fla. 3rd DCA 1976), quoting from United States v. Rias, 524 F.2d 118, 120-121 (5th Cir. 1975), and is paraphrased as follows: The courts recognize a police officer’s right to stop and detain an individual under certain circumstances; such circumstances must be sufficient to enable the officer reasonably to suspect that the particular individual is involved in criminal activity; a stop of a suspicious individual may be most reasonable in light of the facts known to the officer at the time. In Maruca, supra, where the facts known to the police officer at the time the suspects were initially stopped were sufficient to warrant a conclusion that the defendants were involved in criminal activity, the officer had cause to stop the defendant; the search conducted after the officers discovered further evidence was legal, and the fruits thereof were not subject to a motion to suppress.

In our opinion, in light of the facts known to the officers at the time, the initial stop of defendant and his two companions was reasonable. The information known to Green at the time was sufficient for him to reasonably suspect that these three men had just been involved in criminal activity. He knew that an armed robbery had occurred only minutes before at a supermarket located only a few miles north on the same road and only a few minutes away. He also had a description of the suspects and their clothing. Certainly, a brief stop of the vehicle, in order to maintain the status quo while obtaining more information, was reasonable. As in Maruea, supra, the officer’s suspicions, based on the BOLO and other facts known to the officer were reasonable.

Accordingly, we find no error demonstrated on this appeal, and we affirm.

Affirmed.

      . Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).


text:
    Michael Charles LAMBERT, Appellant, v. STATE of Florida, Appellee.
    No. BB-44.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

At arraignment, appellant entered a negotiated plea. During this proceeding, the following colloquy was had between appellant and the trial judge:

“THE COURT: Well, you would probably — there is not going to be any probation in this case, do you understand that? You are going to get jail time?
“DEFENDANT LAMBERT: Yes, sir.
“THE COURT: And recommendation for youthful offender’s facility. Do you have any other understanding about what is going to happen to you?
“DEFENDANT LAMBERT: No, sir.”

The trial court sentenced appellant to the custody of the Department of Offender Rehabilitation of the State of Florida to be imprisoned for a term of five years. The trial court did not, however, recommend appellant to be placed in a youthful offenders’ facility.

By its brief, appellee suggests that this court might determine that appellant be accorded confinement in a youth services program.

Pursuant to Adams v. State, 328 So.2d 48 (1 Fla.App.1976), appellant’s sentence is vacated and the cause is remanded to the trial court to either impose sentence in accordance with the recommendation, or vacate the judgment and offer appellant an opportunity to withdraw his. plea.

Reversed and remanded with directions.

RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.


author: GRIMES, Judge.

text:
    Virginia Ellen BROWN, Appellant, v. John Edward BROWN, Appellee.
    No. 76-274.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 1976.

      Clara J. Cafaro of Martin J. Jones, P. A., Lance Andrews, St. Petersburg, for appellant.
    Martin E. Rice of Harris, Clark, Green & Piper, St. Petersburg, for appellee.
   GRIMES, Judge.

This is an appeal from an order dismissing a petition for modification of a judgment of dissolution on grounds of lack of jurisdiction.

In the final judgment of dissolution, the wife was awarded temporary alimony of $75 per week until further order of the court. The judgment also included the following provision:

“6. The Court retains jurisdiction of this cause to enter such further orders as may be required to enforce this judgment, and after disposition is made as to the pending personal injury claim of petitioner, and further upon petitioner reaching some sort of maximum medical improvement, and upon motion of either party, the Court would then decide the permanent custody of said minor children, and any need for permanent alimony for petitioner.”

In August of 1974 the husband filed a motion to modify the judgment by eliminating the provision for alimony. As a basis for his motion, the husband asserted that the wife had reached maximum medical improvement, had settled her personal injury claim and no longer needed alimony. Following a hearing, the court entered an order stating that the temporary alimony payments should continue until October 18, 1975, “at which time they shall terminate.”

On June 25, 1975, the court entered an order adjudging the husband to be in contempt for failing to pay alimony payments which were then in arrears by $1,200. The court sentenced the husband to jail but suspended the sentence providing the husband “pays to the Petitioner VIRGINIA ELLEN BROWN, the sum of $100.00 per week, twenty-five Dollars of which is to be applied to the $1,200.00 arrearage and providing further that he continues to make said payments until the arrearage of $1,200.00 has been satisfied.” On January 16, 1976, the wife filed a motion for order of contempt for failure to comply with the June 25,1975, order and a petition for modification of final judgment asserting that she was totally disabled and unable to support herself without alimony and seeking an order requiring the husband to pay her alimony of $75 per week. The court entered an order granting the husband’s motion to dismiss the petition for modification for the following reasons stated therein:

“1. The previous Order granting Modification of the Final Divorce Decree did not expressly retain jurisdiction over the cause and that this Court does not have jurisdiction unless specifically retained despite possible changes in circumstances which would justify modification.
“2. The fact that the Respondent had not fully satisfied a previous court order regarding payment of arrearage and was still paying arrearage, did not give the Court jurisdiction for purpose of Petition for Modification.”

Where there is no provision for alimony in a judgment of dissolution and no reservation of jurisdiction for this purpose, the court is without jurisdiction to later entertain a petition for alimony. Weiss v. Weiss, 118 So.2d 833 (Fla.3d DCA 1960). On the other hand, even if the final judgment does not contain a provision for alimony, jurisdiction may properly be reserved to consider a petition for alimony at a later date. Poe v. Poe, 263 So.2d 644 (Fla.3d DCA 1972). Where permanent alimony is awarded, the court is always open to hear a petition for modification. Kosch v. Kosch, 113 So.2d 547 (Fla.1959). However, if alimony is provided for a terminable period, as in the case of rehabilitative alimony, once the alimony has been paid pursuant to the order, the court no longer has jurisdiction to award additional alimony. Elkins v. Elkins, 287 So.2d 119 (Fla.3d DCA 1973); see Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975).

Applying the foregoing principles to this case, we find that the original judgment of dissolution not only ordered alimony but retained jurisdiction for further consideration of this subject. The following year the court decided to continue the alimony payments for one additional year. We construe this provision to be in the nature of rehabilitative alimony terminable on October 18, 1975. This order appears to be the accomplishment of . what the court had in mind when jurisdiction was reserved in the final judgment. Therefore, in the absence of a further reservation of jurisdiction, we cannot say that the original reservation carried beyond the entry of the 1975 order. Consequently, the court was correct in concluding that it had no jurisdiction to entertain a petition for additional alimony which was filed subsequent to October 18, 1975, unless such jurisdiction was preserved either by the entry of the June 25, 1975, order or by the fact that the husband was still in arrears in his alimony payments when the petition for modification was filed.

If the order of June 25, 1975, could be considered as a further order of modification of the alimony payments and if the provision whereby the husband was required to pay $100 per week was construed to require only a $25 weekly payment against the arrearages once the alimony termination date of October 18, 1975, had been reached, then it could be said that the petition for modification was filed within the period of time that alimony payments were still being ordered to be paid. However, the language of the June 25, 1975, order does not support this interpretation because it is clearly a contempt order directed to the enforcement of the payment of back alimony rather than a modification of the amount of duration of the alimony payments.

Therefore, we must consider whether the court still had jurisdiction to entertain a petition for alimony at a time beyond the temporary alimony termination date by reason of the fact that the husband was still in arrears in the payment of the alimony which had been previously ordered. No cases have been cited which are directly on point. However, the language of Elkins v. Elkins, supra, lends support to the view that the court still had jurisdiction to act until the husband had fully complied with his obligation to pay alimony. In that case the court ordered monthly alimony payments for one year beginning in November of 1970 and did not retain jurisdiction for any other purpose. In 1972 the wife filed a petition for modification seeking an award of additional alimony. At the hearing the chancellor found that the husband had fully complied with the court’s original order and dismissed the petition. In affirming, the District Court of Appeal said:

“Appellant argues that where the court has not retained jurisdiction in a divorce action and appellant has performed completely all which he was ordered to do, the court cannot lawfully invoke jurisdiction in postjudgment proceedings. We agree.” (Emphasis supplied.)

In the instant case, the court obviously had jurisdiction over the subject of alimony to the extent of being able to enforce the nonpayment thereof through an order of contempt. So long as jurisdiction existed for this purpose, we hold that the court also had jurisdiction to consider a petition for modification directed to obtaining additional alimony pursuant to Section 61.14, Florida Statutes (1975). A spouse who is behind in the payment of alimony can hardly be heard to complain that his wilful failure to carry out his original alimony obligations has had the effect of extending the period of time within which the court is entitled to consider a request for further alimony predicated upon need and the ability to pay.

REVERSED.

HOBSON, A. C. J., and GOBBIE, EVELYN, Associate Judge, concur.


author: SANDERS, Chief Justice. DENNIS, Justice PER CURIAM.

text:
    STATE of Louisiana v. McArthur GALLOW.
    No. 57920.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      David L. Dawson, Jr., Robert R. Rainer, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty.- Gen., Ossie B. Brown, Dist. Atty., Robert H. Hester, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant, McArthur Gallow, was charged with and convicted of the second degree murder of Bobby Miller, a violation of LSA-R.S. 14:30.1. Defendant was sentenced to life imprisonment. On appeal, defendant relies upon seven assignments of error for reversal of his conviction and sentence. Assignment of Error No. 5, being neither briefed nor argued, is considered abandoned. State v. Richmond, La., 284 So.2d 317 (1973); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

ASSIGNMENT OF ERROR NO. 1

Defendant alleges that the trial court committed error when it commented on the facts of the case and expressed an opinion as to the defendant’s guilt or innocence during voir dire examination.

Unfortunately, the comment complained of is subject to two transcriptions. Due to a malfunction of the transcription equipment, the comment had to be reconstructed from the reporter’s notes, which were imperfect.

During the voir dire examination of a juror, the following exchange took place:

“Q. As I said, we want the average person who will listen to what comes from that witness stand — am I safe in saying that if you are convinced that the defendant committed murder you could find him guilty of murder?
“A. Well, yes, I believe so.
“Q. You understand what I am saying, Mr. Edgell?
“A. There is something that I don’t understand here. Maybe I have watched too much TV — if a man — I assume that attempted murder is a felony, but I thought that killing somebody is first degree murder, that’s what I thought.
“Q. That’s not the law in our State.
“Reporter’s note: The recording machine having malfunctioned, this transcription below is dependent on the Reporter’s notes which are, unfortunately imperfect and lend themselves to two transcriptions, which are presented:
"THE COURT: There is no attempt involved here. He is on trial for the person who died . . . killed, not for the one he didn't get.
THE COURT: There is no attempt involved here. He is on trial for the person who got killed not for the one who didn't get killed.
“MR. DAWSON: At this point I’m going to object to the Court’s comments. I think the Court, even though no evidence has been introduced, the Court is commenting on possible evidence.
“THE COURT: I am not commenting on . hypothetical .
“MR. DAWSON: I don’t think it’s proper, and I object.
“Interrogation on voir dire of panel No. 2 of the Jury Venire was resumed by Robert Hester, assistant district attorney, and then begun by David L. Dawson, Jr., counsel for defense; and concluded. Whereupon the Court made the following remarks:
“THE COURT: I would admonish you and order you to disregard the remarks that I made if those remarks were interpreted by you as referring to this case on trial.”

The above admonition was made by the court on its own initiative, since defense counsel requested neither an admonition nor a mistrial.

Having reviewed the judges comment in context, we construe it to mean that the defendant was charged with murder, not attempted murder. (The defendant was charged with second degree murder of Bobby Miller, who was struck by a bullet intended for another.)

Even if the comment were construed to be a factual comment, however, in our opinion. the error would not be reversible. Firstly, the comment by the court during voir dire is not a comment on the facts within the purview of Article 772 of the Louisiana Code of Criminal Procedure. Secondly, the remark did not relate either directly or indirectly to any of the grounds listed in Article 770 of the Louisiana Code of Criminal Procedure requiring a mistrial if requested. At most, the comment would constitute a remark under Article 771 of the Louisiana Code of Criminal Procedure, which can be cured by an admonition. Such an admonition was given.

It is well settled that a verdict will not be set aside because of improper remarks by the judge unless the reviewing court is thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Hammler, La., 312 So.2d 306 (1975); State v. Simpson, 247 La. 883, 175 So.2d 255 (1965).

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges that the trial court committed error when it admitted into evidence, over defendant’s objection, a portion of a bullet found at the scene of the crime.

The investigating officer testified that he found the lead slug approximately twelve inches from a bloodstain near the victim’s body. The bullet was the only one found at the scene of the crime and did tend to establish that the victim had been shot.

It is well settled that a trial court has wide discretion in determining the relevancy of evidence, and its ruling will not be disturbed on appeal in the absence of an abuse of discretion. State v. Owens, La., 301 So.2d 591; State v. Pierre, 261 La. 42, 259 So.2d 6 (1972); State v. Davis, 259 La. 35, 249 So.2d 193 (1971). There is no showing of an abuse of discretion in this case. Defendant’s objection goes to the weight to be given to the evidence rather than to its admissibility. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges that the trial court erred when it admitted into evidence, over defendant’s objection, two color photographs of the victim.

The test of admissibility is whether the probative value of the photographs outweighs the prejudice which may result from their display to the jury. State v. Smith, La., 327 So.2d 355 (1976); State v. Beach, La., 320 So.2d 142 (1975).

In the present case, the photographs were neither gruesome nor gory. Defendant bases his argument partially on the fact that the photographs were in color. The fact that they were in color does not of itself make the photographs inadmissible. The trial judge, demonstrating awareness of possible prejudice, allowed into evidence only two of the three photographs offered by the State. The trial court has considerable discretion in the admission of photographs; its ruling will not be disturbed in the absence of an abuse of that discretion. State v. Gibson, La., 271 So.2d 868 (1973); State v. Barber, La., 271 So.2d 853 (1973).

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant alleges that the trial court erred in permitting the jury to visit the scene of the crime. He contends that the trip was “completely unnecessary since there were photographs and other evidence in [the] record pertaining to this matter. The only thing that this did was to inflame the jury which situation was aggravated by the inclement weather.”

Article 762 of the Louisiana Code of Criminal Procedure provides in pertinent part that the court may move to the scene of the crime:

“To allow the jury or judge to view the place where the crime or any material part thereof is alleged to have occurred, or to view an object which is admissible in evidence but which is difficult to produce in court.”

As shown by the testimony, there were several people involved in the shooting incident which resulted in the victim’s death. Obviously, the location of each participant is critical. The State did present photographs of the area; yet, it is clear from the testimony of Ray Buckley, one of the State’s chief witnesses, that the photographs were insufficient to show clearly the location of the participants. Buckley testified that none of the pictures indicated exactly where the defendant was at the time of the incident.

The granting of a motion to have the jury view the scene of the crime is within the sound discretion of the trial court, and the ruling will not be disturbed on appeal in the absence of an abuse of discretion. State v. Johnson, La., 294 So.2d 229 (1974).

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 6

Here, defendant alleges that the trial court erred when it refused to grant defendant’s request for Special Jury Charges Nos. 1, 2, 3, and 8.

Special Instruction No. 1 provided:

“It is the duty for the attorney on each side of the case to object when the other side offers testimony or other evidence that the attorney believes is not properly admissible. Upon allowing testimony or other evidence to be introduced over the objection of an attorney the Court does not, unless expressly stated, indicate any opinion as to the weight or effect of such evidence.”

Special Instruction No. 2 provided the State bears the burden of proof beyond a reasonable doubt that a homicide was felo-niously committed and that such homicide was not perpetrated in self-defense.

Special Instruction No. 3 purported to explain the difference between manslaughter and second degree murder to the jury.

Special Instruction No. 8 recited that if the factual argument of the lawyers is not substantiated by the evidence, the jury is to disregard it.

Article 807 of the Louisiana Code of Criminal Procedure provides in pertinent part:

“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

Special Instruction No. 1 is a misstatement of the law and was correctly refused by the trial court. Under no circumstances is the court allowed to comment on the weight to be given to specific evidence; this is the prerogative of the jury. The court properly instructed the jury that:

“Our law provides that you alone determine the credibility of the witnesses and the weight of the evidence which has been offered in the case. Under Louisiana law the Court is not permitted to comment on the facts nor upon the testimony nor upon the credibility of the witnesses. You alone decide what has been proven and what has not been proven, and you alone decide what weight you will give the testimony of the various witnesses. . . . * * * is purely a legal matter which directs itself to the Court and is a matter of concern between Court and counsel, not between counsel and the jury. As stated before, you the jurors are the sole judges of the credibility of witnesses and of the weight which their testimony deserves.”

Our examination of the transcript discloses that requested Special Instructions Nos. 2, 3, and 8 are comprehensively covered in the general charge to the jury; they were, therefore, correctly denied. LSA-C. Cr.P. Art. 807.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

During rebuttal argument by the State, defendant objected and asked for a mistrial, contending the prosecutor had interjected his personal opinion on the defendant’s guilt. Defendant cites language from the transcript to which he did not object:

“We don’t need that evidence. When we started this trial I had no way of knowing whether or not we’d be able to go out there. We don’t need that evidence to convict.”

By his failure to object timely, defendant has waived his right to complain of this statement. LSA-C.Cr.P. Art., 841; State v. Marcell, La., 320 So.2d 195 (1975).

The only statement that the defendant objected to, and which in reality forms the basis for this assignment of error is: “I can only conclude that their only motive in getting up there and saying what they said was because . .

Before the prosecutor could finish, the defendant objected and asked for a mistrial, which was denied. The prosecutor was speaking of the credibility of certain relatives of a State’s witness who had testified. The prosecutor’s next statement, after the objection had been overruled, was:

“What reason could they have for getting up there under oath and saying what they said? Unless it was the truth. What other reason could there be?”

This comment by the State was in response to defense argument, which first introduced the subject of these witnesses’ credibility:

“Remember that all of these people that testified, neighbors up and down . and relatives. The only person that testified that wasn’t a relative . . . was the fellow we brought in. . .

This Court stated in State v. Kaufman, La., 304 So.2d 300 (1974), citing the American Bar Association standards relating to the prosecutorial function, Standard 5.8(c), Comment b:

“Credibility is solely for the triers, but an advocate may point to the fact that circumstances or independent witnesses give support to one witness or cast doubt on another.”

See also State v. West, La., 319 So.2d 901 (1975); State v. Dorsey, 262 La. 785, 264 So.2d 644 (1972).

Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant alleges that the trial court erred in refusing to grant a new trial on the grounds enumerated in his assignments of error, supra. Having determined the assignments of error to be without merit, we hold that the trial court correctly denied defendant’s motion for a new trial.

For the reasons assigned, the conviction and sentence are affirmed.

DIXON, J., concurs without reasons.

DENNIS, J., dissents with reasons.

DENNIS, Justice

(dissenting).

I respectfully dissent. The defendant in this case has been subjected to life imprisonment without the right of judicial review based upon a complete record of all evidence upon which the judgment is based, in violation of Louisiana Constitution of 1974, article I, § 19. See State v. Bizette, 334 So.2d 392 (La.1976). The majority opinion correctly notes in discussing assignment of error number 1 the existence of a void in the record of the trial during which the trial judge may have commented upon the evidence to be produced. Under one version of the stenographer’s notes the judge indicated a belief to the jury that defendant had committed the homicide for which he was on trial. Such a comment upon the facts of the case by the judge in the presence of the jury giving an opinion as to what he expected to be proved constitutes error under Louisiana Code of Criminal Procedure article 772, potentially having a very prejudicial influence on the jurors.

ON REHEARING

PER CURIAM.

In his application for rehearing defendant points to an apparent inaccuracy in our opinion where it was stated that defense counsel did not move for a mistrial relative to assignment of error number one. What we meant to convey is that there was no contemporaneous motion for a mistrial. The motion came appreciably later than when the court purportedly commented on the evidence and after the court on its own initiative, some time after defendant’s objection, had admonished the jury to disregard the remark, should it have been construed by the jury as referring to the case on trial.


author: CALOGERO, J.,'

text:
    AMERICAN BANK AND TRUST COMPANY IN MONROE v. CARSON HOMES, INC., et al.
    No. 58797.
    Supreme Court of Louisiana.
    Oct. 26, 1976.
   In re: Carson Homes, Inc., et al. applying for Writs of Certiorari and Review, Mandamus, Prohibition and Supervisory Writs and/or Stay Order.

Writ Denied: The application and attachments do not demonstrate sufficient reason to exercise our supervisory jurisdiction.

CALOGERO, J.,'

dissents, believing the court should exercise its supervisory jurisdiction, stay the fi fa sale and grant the writ. Summary judgment procedures in my view have been misused in this case.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Sherroll L. BUSH.
    No. 58781.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: Sherroll L. Bush, applying for writs of certiorari, prohibition and mandamus.

Writ granted. Finding of contempt and sentence therefor set aside. Art. 22, Code of Criminal Procedure. Any time served, if in connection with the contempt sentence, shall be credited to the 90 day sentence simultaneously imposed on 9/27/76.

SANDERS, C. J., dissents from the granting of this writ and the action taken.

SUMMERS, J.,

dissents. This ex parte order setting aside the trial judge’s finding of contempt, without a hearing, is both improper and demeaning of the authority of the trial judge. This action can only promote further contemptuous conduct in trial courts.


text:
    STATE of Louisiana ex rel. Norman R. SPEER v. FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO.
    No. 58608.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: Norman R. Speer applying for writs of mandamus and habeas corpus.

Writ granted in part, denied in part, not considered in part.

The writ of mandamus is granted insofar as the requested copies of the bill of information or indictment, pre-trial motions, the order of commitment, and minutes of the proceedings in district court. The writ of mandamus is denied insofar as the requested transcripts, police records and “jurisdictional data.” Minutes of proceedings, if any, in city court should be requested of that court. The application for a writ of habeas corpus on the ground that the obscenity statute is unconstitutional is not considered as this relief has not yet been applied for in the district court.


author: DIXON, J.,

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. Dorothy Finke MIMS et al.
    No. 58609.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: State of La. through the Dept, of Highways, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches.

Writ denied. On the facts found by the Court of Appeal there is no error of law in the judgment complained of.

DIXON, J.,

dissents from denial. For reasons stated in dissent in Court of Appeal opinion, there appears to be merit in the complaint about severance damages.

CALOGERO, J., is of the opinion this writ should be granted.

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


text:
    Paul Allen MILLER and Darlene S. Miller v. Floyd J. MILLER.
    No. 58611.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: Paul Allen Miller and Darlene Strange Miller, applying for Certiorari or writ of review, to the Court of Appeal, 335 So.2d 767, Third Circuit, Parish of Acadia.

Writ denied. The result is correct.

DIXON, J.,

concurs in the denial, for the reason that the analysis by the Court of Appeal majority is correct, and there is no error of law in its opinion.


author: SANDERS, C. J., SUMMERS, J.,

text:
    STATE of Louisiana v. Richard S. HALVERSON et al.
    No. 58798.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: Richard S. Halverson, Robert E. Lang, Lloyd R. Schwegmann and Raymond T. Woodall, Jr., applying for writs of certio-rari, prohibition, mandamus and for Stay Order.

Granted; Bond reduced for each applicant to $25,000.00 (total, for the two charges involved here).

SANDERS, C. J.,

dissents from granting of writ, being of the opinion there was no abuse of discretion.

SUMMERS, J.,

dissents from this reduction of bail being of the opinion there was no abuse of discretion in the bond fixed by the trial judge.

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


author: SAMUEL, Judge. PER CURIAM.

text:
    Argimiro D. LAGO, M.D. v. BROWNE-McHARDY CLINIC et al.
    No. 7443.
    Court of Appeal of Louisiana', Fourth Circuit.
    Sept. 2, 1976.
    Rehearing Denied Nov. 16, 1976.

      Philip S. Brooks, New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Stanley McDermott, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff, Argimiro D. Lago, M.D., filed this suit against Browne-McHardy Clinic, a medical partnership in which plaintiff had been a member, and the individual partners thereof, seeking an accounting of partnership assets, income, profits, losses and liabilities. The only property in dispute are accounts receivable and the sum of approximately $7,500 paid by the partnership as interest due in connection with the purchase of certain real estate in which the partnership now conducts its medical practice. The defense is based on the contention plaintiff already has received from the partnership everything to which he is entitled as a former partner.

After a trial on the merits, judgment was rendered dismissing plaintiff’s suit. Plaintiff has appealed from that judgment.

The partnership known as Browne-McHardy Clinic was governed by a written partnership agreement dated January 1, 1965, as amended from time to time, and the partnership existed until its liquidation on August 25, 1973. Fifteen doctors were parties to the original partnership agreement. Twenty doctors were partners on August 25,1973, the date of the liquidation. The partnership conducted its practice in the New Orleans area; eight physicians practiced in offices on St. Charles Avenue; ten physicians practiced in offices on Veterans Boulevard; and two physicians practiced in offices on Carondelet Street.

In 1973 a number of the partners decided to consolidate the operation in one location, in a new building to be constructed in Jefferson Parish on Houma Boulevard, adjacent to the East Jefferson Hospital. As this proposal contemplated termination of the partnership practice at the three locations mentioned above, a substantial minority of the partners did not favor the proposal. Accordingly, it was agreed to liquidate the existing partnership and form a new one to be composed of the partners in favor of the move.

Pursuant to the liquidation, twelve members, including the plaintiff, moved to the Houma Boulevard address. Six partners remained at the St. Charles Avenue address, continuing practice under a different name, and two partners remained at the Carondelet Street office, also continuing practice under a different name. The St. Charles Avenue group received nine twenty-seconds of the accounts receivable, the Carondelet Street group retained the accounts receivable attributable to that office, and thirteen twenty-seconds of the accounts receivable were transferred to the new Houma Boulevard office.

On August 27, 1973, the majority opened its Houma Boulevard office to the public for medical services under the name “Browne-McHardy Clinic”. Accounts receivable generated by this operation were comingled with the accounts receivable transferred from the old partnership. Plaintiff practiced at the Houma Boulevard office until he terminated his relationship with the partnership on May 17, 1974. He admits he received his virile share of the partnership assets with the exception of the accounts receivable.

A document dated August 26, 1973 was prepared to govern the affairs of the Hou-ma Boulevard partnership, but it was not actually signed until a much later date because of changes desired by the partners in the old contract. The old partnership agreement provided that physicians joining the partnership do not pay for a share of the accounts receivable and that, conversely, physicians voluntarily leaving the partnership forfeit all rights except their capital and undrawn earnings to the date of departure. It is clear that under the old partnership agreement plaintiff has received everything to which he is entitled.

However, plaintiff takes the position that he is not bound by these restrictions because he did not voluntarily leave the old partnership (i. e., it was liquidated) and because he never signed the new articles of partnership. He therefore claims his virile share of the accounts receivable of the old partnership to the date of liquidation plus his share of the receivables accruing from the date of liquidation to the date of his withdrawal from the partnership.

The defendants, on the other hand, contend it was agreed upon by all partners moving to the Houma Boulevard location that upon termination of the original partnership they would be bound by the provisions of the old partnership agreement until amendments could be agreed upon. This is the basic fact question which was posed for the trial court’s consideration and which is before us for review on appeal.

The testimony overwhelmingly supports the finding that the partners who moved to the new Houma Boulevard location agreed to operate under, and be bound by, the old partnership agreement of January 1, 1965 until appropriate changes could be arranged.

The new majority, of which Dr. Lago was a member, ceased doing business on Veterans Boulevard on Friday, August 28, 1973. The move was made over the weekend, and the group opened for business at 4315 Hou-ma Boulevard the following Monday with no interruption in its medical practice. At the time of this move, all doctors had been practicing under the partnership agreement of January 1, 1965. .

The evidence shows the agreement to work under the 1965 partnership agreement was carried out in all substantial details by all of the physicians in the partnership, including Dr. Lago until his resignation in May, 1974.

Numerous members of the partnership testified at the trial that all physicians moving to the Houma Boulevard location agreed to operate under the 1965 partnership contract. Dr. George .Welch, one of the senior partners, specifically testified Dr. Lago was present when this agreement was reached and that he agreed to it. To the same effect was the testimony of Dr. Robert McHardy, Dr. Walton Schafer, Dr. Norma Kearby, Dr. James. Corcoran, Dr. Carl Kemmerly, and Dr. Robert Ayerst. While this testimony is somewhat self-serving, its basic unanimity is such as to afford it reasonable weight.

Perhaps more important is the testimony of Harold Buras, the certified public accountant for the clinic, and of Roland Roger, its business manager.

Mr. Buras testified he prepared a monthly statement of earnings and apportioned them among the doctors at the Houma Boulevard office in accordance with the specific provisions of the 1965 partnership contract. Article VI of the partnership agreement is rather detailed in the manner in which partnership income was apportioned, since income was divided on a point system weighed according to productivity, seniority, board certification, and participation as a partner. After points were awarded under this formula, the month’s earnings were determined for each physician and he was paid accordingly. Each month plaintiff received his earnings based upon this formula and cashed his check without protest.

In addition, Mr. Buras prepared and delivered to the physicians, including plaintiff, a balance sheet of the partnership which did not list receivables as an asset. At no time did Dr. Lago make any complaint regarding this procedure, thus indicating he acquiesced in it.

Equally important, according to Buras, none of the doctors in the Houma Boulevard group ever reported as income the receivables which they continued to hold when they broke away from the St. Charles Avenue and Carondelet Street groups. If the action of the group was not merely a continuation of the existing partnership, each member of the group would have been compelled to report the receivables as income in 1973 because of the dissolution of the old partnership. On the contrary, none reported these receivables as income and consequently the logical conclusion to be drawn is that all of them understood the 1965 partnership agreement would be controlling until changed by them.

Buras further testified that when two physicians left the partnership, Drs. Cuellar and Craighead, neither requested nor received anything in payment of their alleged share of receivables.

Roland Roger, the business manager for the clinic, testified that when plaintiff terminated his relationship with the group he received $6,800 in payment of his capital account in strict accordance with Article X of the partnership agreement, which is the same article which plaintiff now says he disclaimed and to which he never consented. In addition, Roger testified the doctors, including plaintiff, made no change in their operation when they opened the Houma Boulevard location, he received no instructions regarding any change in the partnership agreement, he continued to proceed as he did under the old partnership agreement, and Dr. Segismundo Ureta, upon being admitted to the partnership during the disputed period, paid in his required capital in accordance with the 1965 partnership agreement now disclaimed by plaintiff.

Roger further testified he withheld 10% of plaintiff’s earnings each month in accordance with the 1965 partnership agreement, with no dispute or dissension from plaintiff. It can fairly be said from a reading of Roger’s testimony that each provision of the 1965 written partnership agreement was observed and given effect by the doctors at the Houma Boulevard establishment, including Dr. Lago, between August 25, 1973 and May 17, t1974, when Dr. Lago left the partnership.

Other facts tend to show plaintiff’s acceptance of the written articles of partnership dated January 1, 1965 and his compliance therewith during the period in dispute. Plaintiff practiced under and held himself out as a partner of Browne-McHardy Clinic during the period in question. His associate, Dr. Kemmerly, appointed plaintiff a member of the committee to consider amendments to the partnership contracts. Dr. Segismundo Ureta was elected a partner by a vote of all existing partners, including plaintiff, under Article IV of the old contract of January 1, 1965. Further, plaintiff acquiesced in a provision of Article V of the old contract by which the partners voted in accordance with a weighted formula. Associates were employed pursuant to Article VII of the old contract with plaintiff’s knowledge and approval during his tenure at the Houma Boulevard establishment. Finally, plaintiff paid in his capital contribution pursuant to Article VIII of the old contract when he became a partner in 1967 and received his paid-in capital when he withdrew from the clinic in 1974, even though he denies the existence or binding effect of the old contract.

The question before the trial court was one of fact, namely whether Dr. Lago, the plaintiff, agreed to be bound by the old partnership contract of January 1, 1965 until appropriate amendments thereto could be effected and implemented. The trial court obviously concluded as a matter of fact that Dr. Lago did agree to be bound by the conditions of the old contract and accordingly dismissed his suit. We agree with that finding of fact made by the trial judge.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

ON APPLICATION FOR REHEARING

Before SAMUEL, LEMMON and SCHOTT, JJ.

PER CURIAM.

Plaintiff-appellant has filed an application for rehearing in which it is argued that, in the event he is not entitled to receive his share of the accounts receivable, alternatively he is entitled to receive approximately $7,500 as his share of the total amount paid by the partnership on interest due in connection with the purchase of the Houma Boulevard property upon which the new clinic building was constructed. While we did consider the issue and did conclude the trial court judgment was correct regarding the same, our opinion does not contain that consideration or that conclusion.

The testimony of the Browne-McHardy Clinic accountant, Mr. Buras, effectively disposes of the matter. He testified title to the ground which was to serve as a site for the future clinic on Houma Boulevard was taken in the name of the corporation, but the interest on the mortgage was to be paid by the partnership as rent. This was an expenditure approved by plaintiff-appellant and all other members of the partnership. The record contains no evidence to the contrary. In particular, the record contains no evidence showing, or tending to show, that plaintiff-appellant or any other partner was to be repaid his share of the interest-rental payments either by the partnership or by the corporation.

The application for rehearing is denied.

APPLICATION DENIED.


author: ELLIS, Judge:

text:
    Elaine W. MORGAN et al. v. The AETNA CASUALTY AND SURETY COMPANY et al.
    No. 11054.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      A. Foster Sanders, William Grimley, Baton Rouge, for plaintiffs-appellants.
    James E. Moore, Baton Rouge, for defendant-appellee Aetna Casualty.
    Thomas J. Wyllie, New Orleans, for defendant-appellee Bucyrus-Erie Co.
    Robert J. Vandaworker, Baton Rouge, for defendant-appellee Crown Zellerbach Corp.
    Daniel R. Atkinson, Baton Rouge, for defendant-appellee Ford, Bacon & Davis Constr. Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

ON RULE TO DISMISS APPEAL

On April 2, 1976, summary judgment was granted dismissing plaintiff’s suit as to Aet-na Casualty & Surety Company. On June 29, 1976, plaintiff was granted a devolutive appeal to this court, returnable on July 30, 1976. On July 27, 1976, the appeal bond was filed. We issued, ex proprio motu, a rule to show cause why the appeal should not be dismissed because the appeal bond was not timely filed.

Allowing for the seven day delay for applying for a new trial provided by Article 1974 of the Code of Civil Procedure; and the 90 day delay thereafter for perfecting the devolutive appeal, provided by Article 2087 of the Code of Civil Procedure; the last day for filing the appeal bond was July 13, 1976. The bond in this case was not filed until two weeks thereafter and we are without jurisdiction to entertain the appeal. Pan American Petroleum Corporation v. Cocreham, 251 La. 705, 206 So.2d 79 (1968).

Plaintiff argues that the bond was timely filed because it was filed prior to the return date. The argument is without merit. The return date fixed by the trial court, under Article 2125 of the Code of Civil Procedure, has no effect on the delays for perfecting the appeal provided by Article 2087 thereof. See Guidry v. Canal Insurance Co., 313 So.2d 858 (La.App. 1st Cir. 1974).

The appeal is dismissed, at plaintiff’s cost.

APPEAL DISMISSED.


author: REDMANN, Judge.

text:
    William Stephen LAMBERT v. Darryl CAVALIER et al.
    No. 7454.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.

      Henry L. Klein, Windhorst, Heisler, De Laup, Wysocki & Klein, New Orleans, for plaintiff-appellant.
    No appearance for defendant.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   REDMANN, Judge.

Plaintiff appeals from a judgment which awarded him against defendant real estate agents Cavalier only the return of his deposit on one contract and only half of an agent’s commission on a second contract for the purchase of lots adjacent to an Interstate Highway. Plaintiff argues he is entitled to double the amount he gave Cavalier in each case plus attorney’s fees. Several other original parties and incidental demands are no longer involved. On the first contract, we affirm the granting of simple return of the deposit rather than its double because plaintiff has shown no other entitlement than to damages, and no damages save the loss of his deposit. On the second contract, we amend the award to require return of the $6,500 paid to defendant Cavalier. On neither contract has plaintiff shown any provision entitling him to attorney’s fees.

Plaintiff characterized his case as one of fraudulent misrepresentation by Cavalier of both properties as usable as commercial, when Cavalier knew they were not because of title restrictions. On a commissioner’s recommendation, the trial judge found clear and active fraud in the first transaction but insufficient proof of fraud in the second. Our view is that plaintiff’s overemphasis on the commercial-usage fraud aspect of his case on the second contract obscured perhaps clearer factual circumstances that require return to plaintiff of all money given to Cavalier.

According to the uncontroverted testimony of a third party who had agreed to buy this property, that party called for return of his $3,500 deposit because, due to the property’s non-commercial usability, he was unable to obtain financing (a condition of his purchase agreement). Instead of simply returning his deposit, however, Cavalier caused him to sign, in exchange for return of his own $3,500, a transfer of his rights under the purchase agreement to Cavalier. On the next day, Cavalier “sold” those rights to plaintiff for $3,000.

One evident right of the third party was to all rights arising from his $3,500 deposit. It was therefore a fraud on Cavalier’s part to exact yet a second $3,500 from plaintiff, as if there were no deposit. This view would oblige the return to plaintiff of the $3,500 second deposit, and the $3,500 first deposit as well (since the third party testified that his contract, assigned for $3,000 to plaintiff, was construed by the parties to entitle him to'return of his deposit). However, we view the overall scheme as requiring a $6,500 payment by plaintiff to Cavalier, for Cavalier’s right to buy property which Cavalier knew plaintiff wanted for commercial use (even plaintiff’s $6,500 check to Cavalier declared itself to be for the described property, “zoned C-2 Commercial”). If Cavalier knew that this property, in the same subdivision whose title restrictions made the other property he sold plaintiff non-commercial, was also non-commercial by title restriction, he perpetrated a fraud by his silence, C.C. 1847(5), justifying rescission, C.C. 1847(2). If Cavalier did not know of the title restrictions, the plaintiff-Cavalier $6,500 contract is still rescindable for mutual error as to a quality which was “the principal cause of making the contract,” C.C. 1845; Overby v. Bench, 1951, 220 La. 77, 55 So.2d 873; Note, 1952, 12 La.L.Rev. 507; Stack v. Irwin, 1964, 246 La. 777, 167 So.2d 363; Marcello v. Bussiere, La.1973, 284 So.2d 892.

The second award of the judgment appealed from is amended in principal from $1,750 to $6,500 and the judgment is otherwise affirmed.

      . Cavalier’s right to buy the property, moreover, may have been non-existent. The contract he had “purchased” from his third party client stipulated “sale predicated on purchaser securing adequate financing to purchase property within 30 days.” Yet that contract was dated over 100 days prior to the third party to Cavalier to plaintiff “sales” of the contract rights (and the third party testified he had demanded his deposit back because he could not obtain financing). Thus the third party had not secured the financing within the 30-day period of the condition.


author: BEER, Judge.

text:
    Henry G. HODGE, III v. ST. BERNARD CHAPTER NO. 36, HOME, INC., et al.
    No. 7555.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.

      Tonry & Mumphrey, Richard A. Tonry, Chalmette, for plaintiff-appellant.
    Drury, Lozes & Curry, René A. Curry, Jr., New Orleans, for defendants-appellees.
    Before LEMMON, GULLOTTA and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Henry G. Hodge, III, sued St. Bernard Chapter No. 36, Home, Inc. (commonly referred to as the D.A.V. Hall), its insurer, The Continental Insurance Company, The Sorcerers Social Club and “John Doe,” for injuries sustained as a result of an altercation with “John Doe” at a dance sponsored by The Sorcerers Club and held at the D.A.V. Hall on the evening of October 25, 1969. St. Bernard Chapter No. 36, Home, Inc. and The Continental Insurance Company were the only defendants who responded to' plaintiff’s petition although The Sorcerers Social Club was cited and served. The trial judge rendered judgment in favor of St. Bernard Chapter No. 36 Disabled American Veterans and The Continental Insurance Company, and against Henry G. Hodge, III, dismissing the suit at plaintiff’s cost without reference to The Sorcerers Club or John Doe. Hodge devolutively appeals from that judgment.

Hodge purchased a ticket from his brother-in-law, Leyte Fumar, for the dance which was sponsored by The Sorcerers Club and held at the hall which had been rented from St. Bernard Chapter No. 36, Home, Inc. (hereafter, D.A.V. Hall”). There is some dispute between the parties as to whether D.A.V. Hall or The Sorcerers Club arranged for the presence of two peace officers through the St. Bernard sheriff’s office; D.A.V. Hall contending that it arranged for the presence of the officers on behalf of The Sorcerers Club and Hodge, who responded that the officers were employed by the D.A.V. Hall. We find that the resolution of this particular factual dispute is not essential to the ultimate disposition of this matter for reasons hereafter discussed.

Hodge and his wife sat with relatives and friends, and, toward the end of the evening, he visited the men’s room and there encountered the unidentified John Doe, attired in a black and gold or black and orange outfit who, Hodge says, continuously blocked his way as he made use of the facilities. As he was leaving the men’s room, he again encountered this individual and the altercation which is the subject of this litigation took place. Undisputed evidence indicates that the two peace officers who were assigned to the premises immediately responded to indications that an altercation was in progress and broke up the altercation, thereafter allowing Hodge to remain on the premises but ejecting the unknown John Doe. Hodge returned to his table and thereafter began to experience pain allegedly related to injuries incurred in the altercation.

Hodge claims that the D.A.V. Hall failed to properly protect ■ him from the risk of harm which might occur at the hands of a third party. He bases this upon the contention that the deputies on duty that evening knew or should have known of a previous “scuffling” outside the men’s room involving a man in a black and gold outfit which allegedly occurred prior to the altercation in which Hodge was hurt.

John Doe was described as being about 5'10" tall, weighing about 170-180 pounds, with dark hair. He was wearing black pants and an orange or gold shirt, as were a number of other people, this being a Halloween dance.

Since he was a paid-up patron of the dance, Hodge was, we conclude, an invitee (see Levert v. Travelers Indemnity Company, 140 So.2d 811 (La.App. 3rd Cir., 1962), and the duty owed to Hodge was that of reasonable and ordinary care including pri- or discovery of reasonably discoverable conditions that may be unreasonably dangerous, and correction thereof or a warning of the danger.

Appellant seeks to assimilate this case to those in which injuries were caused as a result of a defective physical condition of the premises or as a result of a proprietor’s omission or commission bearing on the duty owed to its invitees. However, a lessor-owner is obliged to meet the standards set by Article 670 (dealing with the fall of a building or portion of a building) and Article 2322 (relating to damages “occasioned by” the ruin of the owner’s “building”) which have no application to this case dealing with damage resulting from the violent actions of a third party invitee. The liability of the lessor-owners of the premises (such as defendant-appellee herein) vis-a-vis those who are upon the premises is determined under LSA-C.C. Articles 2315 and 2316. Cothern v. LaRocca, 255 La. 673, 232 So.2d 473 (1970).

Accordingly, in Champagne v. Harahan Lion Club, Inc., La.App., 243 So.2d 292 (1971), we concluded that the owner of premises rented to a club for a purpose of holding a dance has a duty of maintaining the premises in a manner “consistent with the purpose of dancing.” Thus, if the D.A.V. Hall breached its duty of maintaining the premises in a manner “consistent with the purpose of dancing,” and this breach proximately caused damage to Hodge, he has a basis for recovery. For example, in Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir., 1973), an employee of the owner of a poolroom was warned that a customer was coming back to make trouble. The employee armed himself with a gun in anticipation thereof, and then shot the customer in self-defense when he returned with a butcher-knife or meat cleaver. One of the shots struck the plaintiff who was a bystander. We concluded that the employee’s failure to call the police was a breach of his duty under the circumstances as was his failure to warn patrons of the possibility of impending danger. Such breach of duty, to protect the patrons from harm at the hands of fellow guests or employees, was properly imputed to the owner of the poolroom, even though he had no direct knowledge of the circumstances at the time. In Borne v. Bourg, La.App., 327 So.2d 607 (1976), we held that an employee-bartender, who clearly knew of but ignored a potentially dangerous situation provoked by intoxicated customers who were harassing the plaintiff-patron (blinded in the ensuing confrontation) had breached the establishment’s duty to safeguard the welfare of its patrons.

These cases are entirely distinguishable from the case at bar, for here there is much doubt as to whether the peace officers who were at the dance had any actual or even implied knowledge of the disruptively violent nature of an unidentified patron; whereas the employees in Borne and Anderson were knowledgeable of imminent danger, had time to call the police in fulfillment of their duty, but failed in their duty by resorting to self-help (Anderson) or allowing the situation to develop to its inevitable violent result (Borne).

Here, the facts regarding the issue of negligence vel non are similar to those in Callender v. Wilson, 162 So.2d 203 (La.App. 1st Cir., 1964), wherein the decedent was shot and killed while she sat at a table in the cafe belonging to the defendant therein. The assailant obtained the pistol from the kitchen immediately prior to the shooting. Immediately after the killing, the assailant turned the gun on himself and took his own life. In holding that the cafe proprietor was not guilty of negligence, the court found . . the evidence was conclusive that there was nothing loud or out of order on the night of the tragedy to have aroused anyone’s fear that violence would erupt.” Furthermore, the court emphasized that even though the proprietor of a restaurant has a duty to protect his patrons from violence, he is not an insurer of the safety of his guests but only owes him a duty to exercise reasonable care. “The rule of reasonable care must be considered, not in light of the actions which happened, but with reference to that which ordinary prudence should have indicated is likely to happen.”

Prosser significantly summarizes the invitor’s duties as follows:

“The occupier is not an insurer of the safety of invitees, and his duty is only to exercise reasonable care for their protection. . . . The occupier must . take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use. . (But) there is no liability for harm resulting from conditions from which the occupier did not know and could not have discovered with reasonable care. . . . Likewise, in the usual case, there is no obligation to protect the invitee against dangers which are known to him. ... In particular, the possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands. He must act as a reasonable man to avoid harm . . . even from intentional attacks on the part of such third persons. But he is required to take action only when he has reason to believe, from what he has observed or from past experience, that the conduct of the gther will be dangerous to the invitee.” W. Prosser, Law of Torts at 392-5 (4th ed. 1971). (Emphasis supplied.) Also cf. Cothern, supra, and Goodeaux v. Martin Hospital, Inc., 333 So.2d 717 (La.App. 2nd Cir., 1976).

A painstaking review of the testimony of the numerous witnesses called during the trial of this matter supports the apparent factual determination on the part of the trial court that no prior incident (nor any report thereof) was brought to the attention of the management of the D.A.V. Hall or to the peace officers assigned thereto in sufficient detail or with sufficient particularly to have reasonably required the management or the peace officers to take precautionary or prohibiting action beyond that which they did, in fact, take on the evening in question.

Accordingly, the judgment of the 25th Judicial District Court for the Parish of St. Bernard is affirmed at appellant’s costs.

AFFIRMED.