author: LARRY G. SMITH, Judge.

text:
    ABC AUTO PARTS, INC., Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Division of Employment Security and Patricia L. Stephens, Appellees.
    No. MM-92.
    District Court of Appeal of Florida, First District.
    June 26, 1979.

      Herman Ulmer, Jr., and Douglas D. Chunn, of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellant.
    Norman A. Blessing, Tallahassee, and James R. Parks, Miami, for appellees.
   LARRY G. SMITH, Judge.

ABC Auto Parts, Inc. appeals a final order of the Unemployment Appeals Commission determining that ABC’s former employee was not disqualified from receiving unemployment compensation benefits. We find error and reverse.

The employee, Stephens, was among sales personnel required to attend a sales meeting for the purpose of having fully explained to them the warranty claim procedures to be used in the handling of warranty claims, which were becoming costly and time consuming to ABC. All sales persons were directed to hand in a written report on the procedure by April 22, in order to ascertain whether or not they knew the correct procedure. They were informed that if they were unable to complete the report by that date, it could be turned in on Monday, April 24. Stephens did not have the report on the 24th, and her supervisor, after a discussion with her, informed her that she was being transferred to a warehouse job, which was in effect a demotion with less pay. Rather than accept warehouse work, Stephens tendered her resignation which was accepted at that time.

Stephens filed a claim for unemployment compensation benefits which resulted in a denial by the claims examiner who determined that she had voluntarily left her employment without good cause attributable to the employer. Stephens appealed and a hearing de novo was held before the appeals referee. The evidence before the appeals referee was in conflict as to just what exactly did occur between Stephens and her supervisor. Stephens testified that she did not have time to do the report at home and that she offered to prepare the report at the office, but her supervisor would not listen and told her she was being placed in the warehouse to work. She denied that she ever told him she would not do the report. The supervisor, on the other hand, testified that Stephens told him she did not have the report prepared, that she did not have time to do work at home, and was not going to do any work at home. He further testified that he asked her to prepare the report while there at work but she refused and stated unequivocally that she was not going to prepare the report, which he, the supervisor, considered to be insubordination. We note there is no finding and no suggestion by the record that the employer’s request was unreasonable.

The employer proferred the testimony of two employees who were present at the hearing who were prepared to testify that Stephens had previously stated at the sales meeting that she had no intention of preparing the written report. However, the appeals referee refused to allow the witnesses to testify, stating there was no need to show any misconduct because Stephens was not fired, and that their testimony would not have any bearing on the case.

The decision of the appeals referee contains the finding, among other things:

The claimant was not discharged from her job at this time; therefore, any misconduct on her part has no bearing on this case. . . . (decision of appeals referee, page two)

Appellant contends, and we agree, that the appeals referee was acting under a misapprehension as to the legal effect of the conduct of the employee, Stephens, in relation to the action taken by ABC in demoting her to a lower status job. Under the unemployment compensation law, an individual is disqualified to receive benefits if he has voluntarily left his employment without good cause attributable to his employer, or been discharged for misconduct connected with his work (§ 443.06(1) Fla. Stat.). “Misconduct” under Section 443.-06(9)(a), (b), Florida Statutes, includes, but is not limited to:

“(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
“(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.” (§ 443.06(9)(a), (b), Fla. Stat.)

We are of the opinion that the employee’s willful or negligent failure to comply with the employer’s request that the employee demonstrate her understanding of the proper claims procedure by submitting the written report could well fall within those definitions of misconduct contained in the statute. It is obvious that the appeals referee foreclosed consideration of this issue by her assumption that unless discharged, the employee’s misconduct could not be considered. We find no authority and no support in logic or reason, for the appeals referee’s interpretation of the law to permit a discharge of an employee for violation of a reasonable rule or insubordination, but to prohibit a transfer of that employee (or demotion if necessary) to a position in which the employee’s complained of conduct would have no bearing upon her ability to perform that job. We hold that under a reasonable interpretation of the letter, intent and purpose of the unemployment compensation law, an employer may, in lieu of discharge of an employee who has been guilty of misconduct sufficient to justify discharge, transfer or demote that employee to a lesser position; and that if the employee on that account voluntarily leaves the employment, it cannot be claimed that it was for “good cause attributable to his employer” (§ 443.06(1) Fla.Stat.) and such employee must be held disqualified from receiving unemployment compensation benefits. Cf. Carlson v. Florida Department of Commerce, 275 So.2d 24 (Fla. 2nd DCA 1973); State Department of Commerce, Division of Employment Security v. Dietz, 349 So.2d 1226 (Fla. 2nd DCA 1977); and W. M. Palmer Company v. Meeks, 354 So.2d 893 (Fla. 1st DCA 1978). See also Barajas v. Industrial Commission, 487 P.2d 598 (Colo.App.1971).

Under our interpretation of the unemployment compensation law it was error for the appeals referee to assume that misconduct had no bearing on the case, and to deny the employer’s efforts to produce witnesses whose testimony would be material and relevant to the issue of the employer’s misconduct in failing or refusing to turn in the required report.

It is, accordingly, ordered that the decision of the Division of Unemployment Security of the Department of Commerce is reversed, and this cause is remanded for further proceedings before the appeals referee consistent with the foregoing opinion.

McCORD, C. J., and BOOTH, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William L. PHILLIPS, Appellant, v. Bernita Werner PHILLIPS, Appellee.
    No. MM-190.
    District Court of Appeal of Florida, First District.
    June 26, 1979.

      Selig I. Goldin, of Goldin & Cates, Fort Lauderdale, for appellant.
    Allison E. Folds, of Anderson & Folds, Gainesville, for appellee.
   PER CURIAM.

Mr. Phillips appeals from a final judgment of dissolution which provides that, in addition to the rehabilitative alimony awarded, husband is obligated to pay an amount equivalent to one-half of the income to be earned by the wife up to a maximum of $350 monthly for the first year, then $250 monthly for the second year. Appellant also contests the award of lump sum alimony in the form of one-half of the proceeds upon sale of a lot adjoining the marital home. Finally, Mr. Phillips appeals the award of attorney’s fees to the wife in the amount of $1,250. We reverse in part and affirm in part.

Neither party contests the adequacy of the rehabilitative alimony award. Appellant’s first point is solely concerned with the provision for additional payments to be made by the husband in the event the wife works. Although we appreciate the trial judge’s apparent attempt to offer the wife an incentive to work, there is no basis in law to make such an award at the expense of the husband. The wife’s entitlement to alimony depends on a showing of her need and husband’s ability to pay. Thigpen v. Thigpen, 277 So.2d 583 (Fla. 1st DCA 1973). The additional award had no relationship to the needs of the wife. Accordingly, the provision of the final judgment awarding additional monies in the event the wife worked is stricken. The award of lump sum alimony and attorney’s fees was within the court’s discretion and we find no error or abuse of discretion. Appellee’s motion for allowance of fee money on appeal is provisionally granted and the case is remanded for the trial court to consider the parties’ needs and abilities to pay. Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

McCORD, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    Nancy R. GRAY, Cross-Appellant, v. William L. GRAY, III, Cross-Appellee.
    No. 78-643.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Hendricks & Hendricks, Rosenberg, Rosenberg, Reisman & Glass and James E. Glass, Miami, for cross-appellant.

      George & Thompson, Daniels & Hicks and Sam Daniels, Miami, for cross-appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and KEHOE, JJ.
   PER CURIAM.

Affirmed. See: Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    DANIEL SYSTEMS, INC., a Florida Corp., and R. Dixon Speas, Appellants, v. Paul D. CARSWELL, Appellee.
    Nos. 78-1123, 78-1392.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellants.
    Iva W. Kay, Jr. and M. J. Kortis, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

We affirm the judgment below on the authority of the rule stated in Florida Moss Products Co. v. City of Leesburg, 93 Fla. 656, 112 So. 572, 574 (1927):

“Where the consideration sought to be shown by parol is purely contractual in its character and imposes upon one of the parties an additional contractual obligation repugnant to the plain terms of the written contract, parol proof may not be resorted to for the purpose of enforcing such additional obligation, since parol evidence is no more admissible to vary or add to the written instrument in that respect than it is in any other.”

Accord: Mallard v. Ewing, 121 Fla. 654, 164 So. 674 (1936); Bond v. Hewitt, 111 Fla. 180, 149 So. 606 (1933); Whitehead v. Rowland, 352 So.2d 128 (Fla. 2d DCA 1977), cert. denied, 359 So.2d 1218 (Fla.1978); Maszewski v. Piskadlo, 318 So.2d 226 (Fla. 2d DCA 1975).

Affirmed.


author: PER CURIAM. HUBBART, Judge

text:
    The STATE of Florida, Appellant, v. Martin KATZ, Appellee.
    No. 78-1273.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.

      Janet Reno, State’s Atty. and Ira N. Lo-ewy, Asst. State’s Atty., for appellant.
    Henry Gonzalez, Tampa, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

The State of Florida brings this appeal from an order dismissing an information against defendant Martin Katz. The information was dismissed on the ground that Katz’s trial upon a prior information and a finding therein of not guilty collaterally estopped the State from the prosecution of the second information.

Defendant Katz was charged in the first information with burglary of a conveyance, aggravated assault and possession of burglary tools. The count charging the defendant with burglary of a conveyance alleged, in pertinent part, that:

“. . . MARTIN KATZ on the 16th day of November, 1977 ... did unlawfully enter or remain in a certain conveyance, to-wit: A 1977 BUICK AUTOMOBILE, the property of MIKE ALBURY, with the intent to commit an offense therein, to-wit: THEFT . . ”

A non-jury trial took place on April 4, 1978. Testimony was presented showing that the automobile at which defendant was discovered and into which he had broken was a 1975 Chevrolet belonging to Michael Albury. The 1977 Buick described in the information, in fact, belonged to the defendant’s wife and was the vehicle in which the defendant and his companions attempted to escape.

At the close of all the evidence, defense counsel moved for dismissal of all charges. The court expressed confusion over the discrepancy between the allegation of a 1977 Buick contained in the information and the proof of a 1975 Chevrolet presented at trial. The State advised the court that the information contained in the State’s file had been corrected to reflect that the subject of the burglary was a 1975 Chevrolet. However, the official information in the court’s file had not been amended or corrected, nor had notice been given to the defendant or his attorney of a motion to amend. Consequently, the court, noting that the defendant was charged with “breaking into his own car,” found defendant not guilty. The court also found defendant not guilty of the other counts charged in the information.

Thereafter, the State filed a new information, charging the defendant with burglary of a conveyance and grand theft. The first count alleged, in pertinent part, that:

“. . . MARTIN KATZ on the 16th day of November, 1977 . . . did unlawfully enter or remain in a certain conveyance, to-wit: A 1975 CHEVROLET AUTOMOBILE, the property of MIKE ALBURY, with the intent to commit an offense therein, to-wit: THEFT

In the second count, the defendant was charged with theft of that same automobile.

The defendant filed a “Motion for Collateral Estoppel” and a supporting memorandum of law in which he alleged that the State was barred from prosecuting him for burglary and theft of the Chevrolet by virtue of his acquittal in the prior case heard on April 4, 1978. The court agreed and, in an order rendered June 12, 1978, dismissed all charges against the defendant based upon the doctrine of collateral estoppel announced in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). This appeal followed.

The State contends that it was error for the trial judge to dismiss the second information because the only charge of which the defendant was acquitted was burglary of a 1977 Buick and that the charge of stealing the 1975 Chevrolet was a new charge. The State relies upon the holding in State v. Beamon, 298 So.2d 376 (Fla.1974); and State v. Bentley, 81 So.2d 750 (Fla.1955).

We hold that the decision of the trial court must be affirmed on authority of the principles stated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).

While we recognize here that the distinction is close, we believe that one exists. In the Beamon case, the Supreme Court found that a difference in the day alleged for the crime constituted a different crime for which the defendant could be prosecuted. In the present case, however, the second information was obviously tailored to meet the proof that had been offered at the first trial and constituted only a change in the description of the automobile alleged to have been stolen.

Affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would reverse the order under review and remand the cause to the trial court for further proceedings under the authority of State v. Beamon, 298 So.2d 376 (Fla.1974), and State v. Bentley, 81 So.2d 750 (Fla.1955).

In my view, the court makes the same error under the same controlling facts as this court made in State v. Beamon, 302 So.2d 208 (Fla. 3d DCA 1973), which decision was subsequently quashed in State v. Beamon, 298 So.2d 376 (Fla.1974), and as the trial court made in State v. Bentley, 81 So.2d 750 (Fla.1955). That error is in concluding that the first information upon which a judgment of acquittal was entered charges “the same offense” which the defendant is presently charged with under the second information, and that, therefore, the defense of double jeopardy or collateral es-toppel is applicable to bar the second information. In point of fact, two different offenses are charged in the above two in-formations involving two entirely separate cars thereby rendering the defense of double jeopardy and collateral estoppel ineffective.

In the first information, the defendant was charged with the burglary of a 1977 Buick automobile, the property of Mike Al-bury. He was tried and acquitted on this charge. He was thereafter charged with the burglary of a 1975 Chevrolet automobile, the property of Mike Albury. These two informations charge two separate crimes and an acquittal on the first information cannot bar a prosecution on the second information under the defense of double jeopardy or collateral estoppel. Different offenses, not the same offense, are charged in the two informations.

This result is not changed by the fact that the proofs at the first trial showed that the defendant owned the 1977 Buick automobile in question and had burglarized a 1975 Chevrolet automobile. The first information charged the defendant with burglary of the 1977 Buick and an acquittal thereon can only be an acquittal as to the burglary of that particular automobile. The issue of whether the defendant burglarized the 1975 Chevrolet on the same day was neither litigated nor determined at the first trial. I entirely agree with the court that the second information was obviously tailored to meet the proof that was offered at the first trial, but that fact has no legal significance as the issues determined at the first trial in no way involved whether the defendant had burglarized the 1975 Chevrolet. As such, the doctrine of double jeopardy or collateral estoppel cannot bar a prosecution of the defendant for the burglary of the 1975 Chevrolet.

In State v. Beamon, 298 So.2d 376 (Fla.1974), the Supreme Court held that an acquittal on a robbery occurring on one date did not bar a subsequent information charging a robbery of the same victim on a different date. The defense of double jeopardy and collateral estoppel was held ineffective to bar the second prosecution. This result was in no way changed by the fact that at the first trial it was established that the robbery in question had occurred on the date subsequently charged in the second information. Similarly, in the instant case, it can make no difference that the proofs at the first trial showed that the defendant had burglarized the automobile subsequently charged in the second information.

In State v. Bentley, 81 So.2d 750 (Fla.1955), the Florida Supreme Court held that an acquittal on the charge of larceny of a cow on a certain date did not bar a subsequent prosecution for the larceny of a bull, property of the same person, occurring on the same date. The defense of double jeopardy was held ineffective to bar the second prosecution. This result was in no way changed by the fact that at the first trial it was established that the defendant stole a bull, rather than a cow, belonging to the complaining witness. Similarly, in the instant case, it can make no difference that the state established at the first trial that the defendant burglarized the automobile subsequently charged in the second information. ,

I would reverse.


text:
    Willie LAWYER and Queen Lawyer, his wife, Appellants, v. GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Appellee.
    No. 78-1657.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Philip Freidin, Greene & Cooper and Sharon L. Wolfe, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James Blecke, Miami, for appel-lee.
    Before HENDRY, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Fishman v. Liberty Associates, Inc., 196 So.2d 493 (Fla.3d DCA 1967); cert. discharged, 205 So.2d 657 (Fla.1968); Florida Power & Light Co. v. Robinson, 68 So.2d 406, 413 (Fla.1953).


author: PEARSON, Judge.

text:
    METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellants, v. Moises MANDELKERN, Appellee.
    No. 78-1736.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.

      Stuart L. Simon, County Atty., and J. Elisabeth Middlebrooks, Miami, for appellants.
    Eugene P. Spellman and Denis Dean, Sr., Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PEARSON, Judge.

Metropolitan Dade County appeals a final judgment in mandamus which held that immunity conferred upon the appellee (petitioner in the trial court) by the State Attorney’s office included a pending personnel appeal by petitioner so that the petitioner, an employee of the County, must be reinstated. We affirm.

The trial judge summarized the facts as follows:

“1. The Petitioner, prior to the action complained of, was a permanent employee of the Respondent, METROPOLITAN DADE COUNTY, with the job classification of Architect II.
“2. The Respondent, METROPOLITAN DADE COUNTY, is a political subdivision of the State of Florida, and at all times material hereto was the employer of the Petitioner.
“3. On March 30th, 1978, the Petitioner, MOISES MANDELKERN, was terminated from his position as an Architect II, with Metropolitan Dade County for an alleged violation of Metropolitan Dade County Personnel Rules.
“4. In accordance with Section 2-47, of the Code of Metropolitan Dade County, the Petitioner herein, filed an appeal of his dismissal.
“5. On May 5th, 1978, the Petitioner, appeared pursuant to a subpoena in the office of the State Attorney of the Eleventh Judicial Circuit of Florida, pursuant to an investigation concerning the same matter for which the Petitioner was terminated from his employment with Metropolitan Dade County. The Petitioner at that time was afforded full immunity under Florida Statute, Section 914.04 by the State Attorney’s Office for testimony provided to them for their investigation.
“6. Subsequent to the aforementioned immunity afforded the Petitioner, the Petitioner through his counsel requested the Respondent, METROPOLITAN DADE COUNTY, to reinstate the Petitioner based upon the grant of immunity. The Respondent refused Petitioner’s request which resulted in the filing of a petition for writ of mandamus with this Court.”

The County does not challenge these findings of fact except as finding “5” states: “ . . . pursuant to an investigation concerning the same matter for which petitioner was terminated from his employment with Metropolitan Dade County.” The County urges that the petitioner’s termination of employment was for incompetency and violation of an official regulation or order. The County argues three points on appeal. First, it is urged that the grant of immunity did not apply to the termination because the immunity was granted after the employee was terminated. Second, it is urged that the termination was not the same transaction because the State Attorney’s investigation concerned possible violations of the criminal law, while the discharge concerned improper work. Third, it is claimed that the employee had waived his right to immunity with regard to his discharge because he had already discussed the grounds for his discharge with his supervisor and had replied in writing. We find no error and affirm.

The County relies upon the reasoning in Federal Trade Commission v. Gladstone, 450 F.2d 913 (5th Cir. 1971), which held that immunity granted under federal immunity statutes does not relate back to convictions obtained prior to granting immunity. We find the case inapplicable to the present situation where a notice of dismissal is not final. Due process requires an opportunity to be heard. See Burton v. Walker, 231 So.2d 20 (Fla. 2d DCA 1970). Here, the process to effect the petitioner’s discharge had just started. A letter of notice cannot properly be equated with a conviction.

The trial judge’s finding that the discharge and the State Attorney’s investigation concerned the same transaction is supported by the record. Many transactions have a civil and a criminal aspect. The actions of the petitioner were the same whether they are viewed as violations of the personnel rules or violations of law. As pointed out by the Supreme, Court of Florida in Ciravolo v. The Florida Bar, 361 So.2d 121 (Fla.1978), the Florida immunity statute refers to immunization for more than criminal prosecution by referring to any “penalty or forfeiture.”

The County’s third point does not present error on this record. The petitioner was required to respond to the notice in order to secure a hearing. Discussion with a supervisor may not be called testimony in order to bring about a waiver. See the reasoning in McKown v. State, 54 So.2d 54, 56 (Fla.1951).

Affirmed.

      . The notice of discharge stated in part:
      “You have violated Metropolitan Dade County Florida Personnel Rules, Chapter VIII, Section 7, Articles:
      A) That the employee is incompetent or inefficient in the performance of his duty.
      D) That the employee has violated any lawful or official regulation or order, or failed to obey any lawful and reasonable direction given him by a supervisor, when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization or result in loss, inconvenience or injury to the County service or to the public”

      . Section 2-47 of the Code of Metropolitan Dade County provides in part-

      “In the event a properly requested hearing is not commenced timely, the dismissed employee shall be entitled to temporary reinstatement until such time as a hearing is commenced ... In the event the county manager does not reach a decision within (30) days of receipt of the hearing examiner’s recommendations, the dismissed employee shall be entitled to temporary reinstatement until such time as the decision by the county manager is reached.”

      . See §§ 2-47 and 2-47.1 of the Code of Metropolitan Dade County, Florida.

      . § 914.04, Fla.Stat. (1977).


text:
    Michael BURGIO, Appellant, v. FRANK MERCEDE & SONS OF FLORIDA, and Hartford Accident and Indemnity Co., Appellees.
    No. 78-1967.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Keyfetz & Poses and L. Barry Keyfetz, Miami, for appellant.
    K. P. Jones, Ft. Lauderdale, for appellees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Appellant’s points on appeal are in substance whether the trial court erred (1) in failing to award attorney’s fees in connection with successful enforcement of workmen’s compensation order; (2) in failing to award interest from date of final workmen’s compensation order to date of final judgment; and (3) in failing to award costs incurred in successful proceedings enforcing payment pursuant to final workmen’s compensation order.

We have considered all the points on appeal in the light of the record, briefs and argument of counsel and have concluded that the trial court erred in denying the award of attorney’s fees, costs and interest from the date of the final order to date of final judgment. Stone v. Jeffres, 208 So.2d 827 (Fla.1968).

Reversed and remanded for entry of proper award of attorney’s fees, interest and costs.


text:
    Emiliano DE LA FUENTE, Jr., Appellant, v. Pury DE LA FUENTE, Appellee.
    No. 78-1990.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Layne & Brill and Richard Bernstein, Miami, for appellant.
    Jerald I. Rosen, Hialeah Gardens, for ap-pellee.
    Before HENDRY, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Rosenberg v. Rosenberg, 371 So.2d 672 (Fla.1979) (Case No. 53,082, opinion filed, May 31, 1979), adopting dissenting opinion and quashing 352 So.2d 868 (Fla. 3d DCA 1977); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


author: SCHWARTZ, Judge.

text:
    VIGILANT INSURANCE COMPANY, Appellant, v. Sandra KELPS, Appellee.
    No. 78-2132.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.

      Walton, Lantaff, Schroeder & Carson and Joan S.- Buckley, Miami, for appellant.
    Stone, Sostchin & Gonzalez and Gisela Cardonne, Miami, for appellee.
    Before HENDRY, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The lower court granted summary judgment to the plaintiff-appellee compelling the defendant-insurance company to arbitrate a claim for personal injuries under her policy’s uninsured motorist provisions. The claim arose when the car in which Mrs. Kelps was a passenger struck a vehicle which was allegedly improperly parked at the side of the road; she contends that the negligent parking was a legal cause of the accident. The record concededly does not affirmatively establish that the parked vehicle was. in fact not covered by liability insurance. Thus, the entry of a summary judgment on that issue could not be upheld. Holl v. Talcott, 191 So.2d 40 (Fla.1966). The plaintiff argued below, however, and the trial judge agreed, that the question as to whether the tortfeasor’s vehicle was insured was one properly to be decided in arbitration, rather than by the court. We hold to the contrary and reverse the judgment below.

It is well-settled that issues concerning the existence of uninsured motorist coverage may be determined only by the court, and, conversely, may not be a subject of the arbitration proceedings commonly provided for in such policies. Aetna Casualty and Surety Co. v. Goldman, 346 So.2d 111 (Fla. 3d DCA 1977); Government Employees Ins. Co. v. Mirth, 333 So.2d 545 (Fla. 3d DCA 1976); Zeagler v. Commercial Union Ins. Co. of New York, 166 So.2d 616 (Fla. 3d DCA 1964); Cruger v. Allstate Ins. Co., 162 So.2d 690 (Fla. 3d DCA 1964), writ disch. 172 So.2d 450 (Fla.1965). It is just as clear that no UM coverage exists if the offending motorist is not actually un- or underinsured. Hayston v. Allstate Ins. Co., 290 So.2d 67 (Fla. 3d DCA 1974); Green v. United States Fidelity and Guaranty Co., 181 So.2d 198, 199 (Fla. 3d DCA 1965) (“It is essential to coverage under the policy that the status of the motorist, as to uninsured or insured, be established.”) To complete the syllogism, it therefore follows that the court, and not the arbitrators, must determine the insurance status of the allegedly negligent driver (or parker) of the vehicle in question. Government Employees Ins. Co. v. Mirth, supra, squarely so holds. At 333 So.2d 547, this court stated:

“. . the trial court should have decided the issue created by that allegation and its denial and thereby determined either that the tortfeasor’s motor vehicle was uninsured and presence of a provision for arbitration, or that such motor vehicle was insured in which event there would be no provision for arbitration of Mirth’s claim against Purcell, and Geico would be entitled to an order staying the proposed arbitration.”

The cases cited by the appellee, Industrial Fire and Casualty Ins. Co. v. Coquemard, 332 So.2d 636 (Fla. 3d DCA 1976) and Ebens v. State Farm Mutual Auto. Ins. Co., 278 So.2d 674 (Fla. 3d DCA 1973), do not support her position. Each holds merely that issues as to the liability of an admittedly uninsured (or hit-and-run) motorist were for the arbitrators to decide. The insured status of the vehicle, which is the question involved in this case, goes to the existence of coverage, which only the court has the power to resolve.

The summary judgment under review is reversed and the cause is remanded for further consistent proceedings.

Reversed and remanded.

      . The record also indicates an unresolved issue as to whether the identity of the owner and operator of the parked vehicle was not discoverable and thus whether the car was a “hit- and-run” vehicle which is, in effect, deemed to have been uninsured as a matter of law. Brown v. Progressive Mutual Ins. Co., 249 So.2d 429 (Fla.1971); Industrial Fire and Casualty Ins. Co. v. Coquemard, supra. Since the plaintiff-movant did not conclusively establish that this was the case, however, the summary judgment cannot be upheld on this alternative ground. Holl v. Talcott, supra.


text:
    John Errol FERGUSON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2152.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.

      Hacker, Phelps & Matters, Miami, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esqurioz, Asst. Atty. Gen., for appellee.
    Before HAVERPIELD, C. J., and BARK-DULL and KEHOE, JJ.
   PER CURIAM.

John Errol Ferguson appeals an order revoking his probation and sentencing him to a five year term of imprisonment.

Ferguson was convicted of resisting an officer with violence to his person and was sentenced to 18 months incarceration followed by’ two years probation. While on probation, Ferguson was charged with first degree murder, tried and convicted. At the conclusion of the murder trial, the court revoked his probation and sentenced him to five years on his initial conviction for resisting an officer.

On appeal Ferguson contends the court erred in revoking his probation at the conclusion of the murder trial without holding a separate revocation hearing and/or notifying him that the murder trial would be utilized as a revocation hearing. We cannot agree.

In the absence of a stipulation or consent, the trial of a criminal case should not be construed as a probation revocation hearing, but can be treated as such upon stipulation or consent made before or after the trial. State v. Spratling, 336 So.2d 361 (Fla.1976).

The record reflects that Ferguson’s counsel agreed with the trial judge that not only was Ferguson on probation at the time of the murder and understood the conditions of his probation, but also that there would be no need for a separate revocation hearing as the results of the probation violation would be determined by the outcome of the murder trial.

Ferguson next contends the trial court erred in imposing the five year sentence without crediting the defendant with the 18 months served on the original sentence.

We find this point well taken under the holding in State v. Holmes, 360 So.2d 380 (Fla.1978). Accordingly, we reverse the sentence and remand the cause to the trial court with directions to impose a new sentence giving Ferguson credit for the time served on his original sentence.

In all other respects the revocation order appealed is affirmed.

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


text:
    Bernice McCARTY, Petitioner, v. ESTATE of Elizabeth SCHULTZ, Respondent.
    No. 78-2274.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.

      Jerry A. Burns, Miami, for petitioner.
    Young, Stern & Tannenbaum, North Miami Beach, for respondent.
    Before HAVERFIELD, C. J., and BARK-DULL and KEHOE, JJ.
   PER CURIAM.

Petitioner, Bernice McCarty, seeks review of an order denying her motion to quash and/or for protective order in connection with the taking of her deposition by the attorneys for the personal representative of the estate of Elizabeth Schultz, deceased.

Prior to the death of Elizabeth Schultz, Betty McCarty, a private duty nurse, attended the deceased and her sister, Reba. After the will of Elizabeth Schultz was admitted to probate respondent, Southeast First National Bank of Miami, was appointed representative. An investigation revealed that some estate assets were unaccounted for and Southeast, believing that Betty McCarty might have some knowledge of these assets, served her with a subpoena duces tecum for deposition requesting the following:

“1. Copies of the Federal Income Tax Returns for 1975, 1976 and 1977.
“2. List of all monies received from Elizabeth and/or Reba Schultz during the years 1975, 1976 and 1977 and the first 3½ months of 1978 by way of salary, gift, bonus or by any other means.
“3. Copies of your bank statements and cancelled checks from each banking institution and savings association in which you had monies on deposit for the years 1975, 1976 and 1977 and the first 3V2 months of 1978.
“4. Any and all copies of receipts received from any nursing registry for salary or commissions paid to you for your services rendered to Mrs. Elizabeth Schultz during the years 1975, 1976 and 1977 and the first 3V2 months of 1978.

Petitioner filed a motion to quash and/or for protective order and contended that Southeast was using the subpoena simply as a vehicle to annoy her and to conduct a “fishing expedition”. After a hearing, the trial judge denied the motion to quash and Betty McCarty filed the instant petition for writ of certiorari therefrom. We find error and reverse.

With regard to the scope of discovery Fla.R.Civ.P. 1.280(b)(1) provides that “parties may obtain discovery regarding any matter, not privileged, that is relevant for the subject matter of the pending action

There is no adversary action to which petitioner is a party and the alleged sole purpose of the discovery is to determine if she has knowledge of the unaccounted for estate assets. Under the circumstances, we find that Betty McCarty is not required to produce her tax returns or bank statements in that they are not relevant to the subject matter. The instant subpoena duces tecum may not be used for a mere “fishing expedition” or general inquisitorial examination of the papers with a view to ascertaining whether something of value may or may not show up. See Imparato v. Spicola, 238 So.2d 503 (Fla.2d DCA 1970); Travelers Indem. Co. v. Salido, 354 So.2d 963 (Fla.3d DCA 1978).

Nevertheless, we find that items 2 and 4 requested in the subpoena could be relevant and, therefore, are within the scope of discovery.

The denial order is reversed as to items 1 and 3 and affirmed as to items 2 and 4 and the cause is remanded to the trial court for further proceedings consistent herewith.

Petition for Writ of Certiorari is granted in part and denied in part.


text:
    Cesar Augusto BREA and Savra Knowlton Brea, a/k/a Dr. & Mrs. Brea, Appellants, v. MPS INDUSTRIES, INC., a Florida Corporation, Appellee.
    No. 78-2375.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff and David W. Trench, Miami, for appellants.
    Getelman & Gersten and Michael J. Ge-telman, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PEARSON, Judge.

The appellants, Dr. and Mrs. Brea, were the defendants in an action to foreclose a mechanic’s lien brought by a materialman, MPS Industries, Inc. The trial court struck an affirmative defense filed by the defendants and thereafter entered a summary final judgment of foreclosure. The facts were undisputed and the points presented urge an error of law in striking the affirmative defense. We affirm.

The defendant owners entered into a contract with a general contractor to build a residence for $158,600.00. A notice of commencement was filed. Some proper payments were made to the general contractor. The plaintiff materialman began furnishing materials and, on December 22,1977, served its “notice to owner.” The defendant owners made payments to the general contractor without reference to the plaintiff’s notice. These payments were in substantial amounts exceeding the amount of the plaintiff’s claim. The plaintiff perfected its lien and the defendants discharged the general contractor and paid a second contractor $168,000.00 to complete the residence.

The lienor brought suit to foreclose its lien. The owners’ affirmative defense alleged the essential facts set forth above and further alleged that there were no funds to pay the lien because the original contract price was more than exhausted by proper payments to the first general contractor, that is, the payments before service of the “notice to owner” and the reasonable cost of completion. The owners urge error upon the striking of the defense and rely upon Alton Towers, Inc. v. Coplan Pipe & Supply Co., 262 So.2d 671 (Fla.1972); MacIntyre v. Torres, 358 So.2d 101 (Fla. 3d DCA 1978), and Bryan v. Owsley Lumber Company, 201 So.2d 246 (Fla. 1st DCA 1967).

A reading of these cases shows that the Alton Towers and Bryan cases involve proper payments only. The MacIntyre ease is not helpful because it shows no factual conflict with regard to the propriety of all the payments made. We are impressed here that the plaintiff lienor has promptly done everything that he could to follow the statute and to perfect his lien. The defendant owners did not do all that they could have done under the statute to protect themselves from an allegedly incompetent general contractor, whom the owners found it necessary to discharge. See Section 713.-06(3), Florida Statutes (1977).

We recognize that where there is a fund to pay lienors created under the application of the statute and rules stated in Alton Towers, Inc. v. Coplan Pipe & Supply Co., 262 So.2d 671 (Fla.1972), that fund then belongs to the lienors pro rata. In the present case, there is an affirmative showing that only one other lien was filed, and that lienor was made a defendant in this suit but did not prove its claim. We, therefore, hold that the court properly held that the defense of “no funds” was not sufficient to bar the enforcement of the plaintiff’s claim. See Tamarac Village, Inc. v. Bates & Daly Co., 348 So.2d 23 (Fla. 4th DCA 1977).

Affirmed.

      . Pursuant to § 713.01 et seq., Fla.Stat. (1977).


text:
    Fralon WARREN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-117.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Fralon Warren, in pro. per.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Bennett S. COHN, Petitioner, v. WORLD CASINO TOURS, INC., a Florida Corporation and Ivan Stephens, Respondents.
    No. 79-296.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Stuart A. Young and Frank B. Kessler, West Palm Beach, for petitioner.
    Burns & Aronovitz and Jeffrey W. Sa-mek, Miami Beach, for respondents.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

The trial judge erroneously transferred the action below to the county court because of the alleged absence of the jurisdictional amount, despite unresolved claims in the complaint to $1,200 in compensatory damages and punitive damages in excess of $50,000 based on allegations that the defendants were guilty of fraud and extortion. Certiorari is therefore granted and the order of transfer under review is quashed on the authority of Stabinski v. Windjammer International Corp., 360 So.2d 56 (Fla. 3d DCA 1978), and cases cited. The cause is remanded for further proceedings consistent herewith.

Certiorari granted.


author: MOORE, Judge.

text:
    Diego LEZCANO and Mirelia R. Lezcano, his wife, Appellants, v. LEATHERBY INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 78-37.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.
    Rehearing Denied July 17, 1979.
    Ronald V. Alvarez and Larry Klein, West Palm Beach, for appellants.
    'Basil E. Dalack, of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellee.
   MOORE, Judge.

The question on this appeal is whether a passenger in an automobile, who is injured by the negligence of a driver of another automobile, may “stack” his own uninsured motorist coverage with that of his host driver in order to declare the tortfeasor an “underinsured” driver, pursuant to Section 627.727(2)(b), Florida Statutes (1975). The trial court held that he could not. We reverse on the authority of United States Fidelity & Guaranty Company v. Curry, 371 So.2d 677, Fla. 3rd DCA, Opinion filed May 8, 1979; See generally, Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla.1973); Allstate Insurance Co. v. Dairyland Insurance Co., 271 So.2d 457 (Fla.1972); Sellers v. United States Fidelity & Guaranty Co., 185 So.2d 689 (Fla.1966).

REVERSED and REMANDED.

CROSS and DAUKSCH, JJ., concur.

      . This case arose in 1975, therefore, § 627.4132 is not applicable.


author: PER CURIAM. LARRY G. SMITH, Judge,

text:
    William F. ACKERMAN, Appellant, v. STATE of Florida, Appellee.
    No. KK-372.
    District Court of Appeal of Florida, First District.
    June 29, 1979.
    Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

MELVIN, Acting C. J., and BOOTH, J., concur.

LARRY G. SMITH, specially concurs.

LARRY G. SMITH, Judge,

specially concurring.

Defendant appeals his conviction and sentence for first degree murder. He seeks reversal contending that the trial court erred in sustaining the State’s objection to certain questions propounded by defense counsel to a State’s witness on cross-examination.

The witness, Ken Killian, who had known defendant for several years, testified that he received three or four telephone calls from defendant while defendant was awaiting trial in the case. He testified that defendant admitted to him in these phone conversations that he had hit the victim in the head with a club and an owl statue. On cross-examination, defense counsel asked Killian three questions concerning whether or not defendant told Killian who had done the stabbing. The State objected to the questions on the grounds that they called for self-serving declarations by defendant which were inadmissible as hearsay. The prosecuting attorney acknowledged to the court out of the presence of the jury that the witness, if permitted to answer, would have testified that defendant had stated in the conversations that Wendy Raduns was the one who did the stabbing. The trial court sustained the objections to the three questions.

I agree that it was error for the trial court to sustain objections to the questions.

Where the State calls a witness to prove an incriminating statement made by the accused in a conversation, the accused is entitled to have the remainder of the conversation admitted into evidence even though favorable to him. Burch v. State, 360 So.2d 462 (Fla. 3rd DCA 1978); Bennett v. State, 96 Fla. 237, 118 So. 18 (1928); Thalheim v. State, 38 Fla. 169, 20 So. 938 (1896); West v. State, 53 Fla. 77, 43 So. 445 (1907).

Since the right to cross-examination stems from the constitutional right of the accused to be confronted by his accusers, Coco v. State, 62 So.2d 892 (Fla.1953), improper curtailment of cross-examination constitutes constitutional error. Such error may not be regarded as harmless if there is a reasonable possibility that the erroneous evidentiary ruling may have contributed to the defendant’s conviction or if the error may not be found harmless beyond a reasonable doubt or if prejudice is demonstrated. Nowlin v. State, 346 So.2d 1020, 1024 (Fla.1977) citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Coxwell v. State, 361 So.2d 148, 152 (Fla.1978).

Accordingly, it is necessary to consider the entire evidence in the case to determine whether the harmless error doctrine applies. Briefly, the evidence discloses that the defendant and the victim were long-time friends and had, in fact, a homosexual relationship. Wendy Raduns, an alleged accomplice, who had plead guilty as an accessory after the fact, testified at defendant’s trial that she and defendant went to the victim’s apartment on the evening of January 22 where the victim was beaten and stabbed by the defendant after he was forced to write out a check payable to defendant. The next day, she testified defendant cashed the check, they bought two coats, defendant bought bus tickets for the two of them, and they departed for New York City. Upon arrival, they were arrested and various items of property in their joint possession were taken from them, which at the trial were identified as belonging to the victim and admitted into evidence. Defendant’s fingerprints were identified by a fingerprint expert as the ones found on various envelopes or papers in the victim’s apartment.

The pathologist who performed the autopsy upon the victim testified that the puncture type stab wound to the chest of the victim was the cause of death. He could not determine with certainty the sequence of the blows to the head and the stab wounds, although he testified that if the head wounds occurred first, they had not been lethal because the amount of blood found in the chest caused by the stab wound indicated that at the time of the chest wound the heart was still pumping. The doctor testified that the head wounds, if not accompanied by the wound to the chest, would probably not have been lethal. However, on redirect examination, he testified that the injuries to the skull could have been lethal if they had been unattended and if unaccompanied by the stab wound but since the stab to the chest area was the cause of death, this possibility was rendered moot.

Finally, pursuant to a written pretrial stipulation between the State and defendant, the results of a polygraph examination and the opinions of the polygraph examiner were introduced into evidence. In the opinion of the examiner, the defendant gave responses “indicative of deception” when he answered “no” to questions concerning whether he stabbed the victim.

Viewing the evidence as a whole, I conclude that there is no reasonable possibility that the error contributed to the defendant’s conviction. If the jury had been permitted to consider Killian’s testimony that Wendy Raduns did the stabbing, and if they believed the truth of that accusation, they still would have been compelled to believe defendant’s admission to Killian that he struck the blows to the head of the victim. That admission, considered in connection with the evidence of cashing the check, speedy departure from the locality, and possession of items from the victim’s apartment formed a well connected chain of direct and circumstantial evidence from which a reasonable jury could draw no reasonable conclusion except that defendant participated in a robbery of the victim and forceable assault upon the victim from which his death ensued. Although the omitted statements might well have made a difference in determining the credibility of the State’s prime witness, Wendy Raduns, I think there is no reasonable possibility that if the jury had concluded that Wendy Ra-duns, not defendant, inflicted the fatal stab wound, it would not also have found defendant guilty of murder in the first degree under the felony — murder statute, Section 782.04(l)(a), Florida Statutes.

I have considered defendant’s remaining point and find it to be without merit.

For the foregoing reasons, I concur in the affirmance of defendant’s conviction.


text:
    Nathaniel HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. LL-22.
    District Court of Appeal of Florida, First District.
    June 29, 1979.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Henderson seeks reversal of his conviction for conspiracy to commit a felony, to wit: the sale or delivery of cocaine urging that (1) hearsay statements of his alleged co-conspirators were improperly admitted at trial because the conspiracy itself had not been established by independent evidence, and (2) the trial court erred in denying his motion for continuance without conducting an adequate Richardson inquiry when it was discovered at trial that the State had violated the discovery rules.

Independent proof of a conspiracy is required before an alleged co-conspirator’s hearsay statements made during the pendency of the conspiracy and in furtherance of its objectives are admissible. Briklod v. State, 365 So.2d 1023 (Fla.1978). We find that the circumstantial evidence coupled with the statements made by appellant were sufficient to establish independent proof of the conspiracy and its members. Accordingly, the hearsay statements of the alleged co-conspirators were properly admitted.

However, we agree that the cause should be reversed because the court failed to conduct a proper inquiry into the State’s discovery violation. The State did not disclose the existence and substance of a statement made by Henderson until the day of trial. The inquiry conducted by the trial court was insufficient to satisfy the requirements of Richardson, supra, particularly since the circumstances establishing non-prejudice to Henderson do not affirmatively appear in the record. See McClellan v. State, 359 So.2d 869 (Fla. 1 DCA 1978). Although prejudice may have been averted if a recess had been granted to allow questioning or a deposition of the witness to the statement, the trial court denied Henderson’s motion for a continuance.

Since an adequate Richardson hearing was not conducted herein, the cause is reversed and remanded for a new trial. See Smith v. State, 372 So.2d 86 (Fla.1979).

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

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    Rowena B. SOLOMON, Appellant, v. Davisson F. DUNLAP as the Personal Representative of the Estate of Crawford Solomon, Deceased, Appellee.
    No. MM-2.
    District Court of Appeal of Florida, First District.
    June 29, 1979.
    Stephen H. Durant of Martin, Ade, Birch-field & Johnson, Jacksonville, for appellant.
    Robert L. Young of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Orlando, for appellee.
   PER CURIAM.

This appeal brings for review the order entered by the trial court in which the appellant’s share in the estate of Crawford Solomon was determined. The facts in this case may be briefly stated. In 1974, Crawford Solomon executed his Will. On February 6,1975, he married Rowena B. Solomon. At the time of such marriage, he had two living sons born of a previous marriage. He made no change in his Will, and he died in February, 1977. Rowena B. Solomon filed a petition requesting a determination of her appropriate share in the estate of Crawford Solomon, her status being that of a pretermitted spouse. The order of the court entered upon such petition found and determined that Rowena B. Solomon, being the pretermitted spouse of Crawford Solomon, deceased, is entitled to receive one-half of the net intestate estate pursuant to the provisions of Section 732.301 and Section 732.102(l)(c), Florida Statutes (1977). The order then provided:

“The net intestate estate is hereby defined to be all of the assets of the estate administered by this Court less those assets determined by this Court to be exempt property and less the debts and costs of administration of this estate. The share of the Petitioner, Rowena B. Solomon, will furthermore be charged with those taxes which her share will equitably bear pursuant to Section 733.-817, Florida Statutes.”

The sole issue presented on appeal is whether Rowena B. Solomon is entitled to one-half of the net, or one-half of the gross value of the estate. If the Legislature intended that a pretermitted spouse would take one-half of the gross value of the intestate estate, we perceive that it would have inserted the word “gross” in the appropriate place in Section 732.102(l)(c). In those instances where it is the legislative intent that property of a decedent be distributed not subject to any burden of administrative cost or taxes, it has specifically referred to such property as “exempt property.” For an example, see the provisions of Section 732.402, Florida Statutes (1977), where the legislature carefully designated its intent by using the words “exempt property” and “net value.” We find no provision in the applicable statutes to indicate any intent that the pretermitted spouse takes her share free from any liability for payment of any applicable tax, debts, or costs of administration. See In re Suarez’s Estate, 145 Fla. 183, 198 So. 829 (1940), at 831.

The order appealed from is AFFIRMED.

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


text:
    STATE of Louisiana v. James E. BATISTE.
    No. 64687.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re James E. Batiste, applying for writ of habeas corpus. Parish of Orleans. No. 258-777.

Writ denied.


text:
    STATE of Louisiana v. William J. ADAMS.
    No. 64731.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re State of Louisiana, applying for supervisory writ of review. Parish of Jefferson. No. 144,144.

Writ denied.


text:
    STATE of Louisiana ex rel. Gary A. DESDUNES v. Matthew S. BRANIFF, Judge.
    No. 63883.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Gary A. Desdunes, applying for writ of mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Connie BAILEY.
    No. 64639.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Connie Bailey, applying for writ of certiorari. East Baton Rouge Parish. No. 1-79-254.

Writ denied.


author: PONDER, Judge. PER CURIAM.

text:
    Paul H. BRAUD v. Leo J. MORGAN et al.
    No. 12246.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearing Granted Dec. 27, 1978.
    On Rehearing April 16, 1979.
    James Don Thomas, II, Baton Rouge, of counsel, for plaintiff-appellee Paul H. Braud.
    Walton J. Barnes, Baton Rouge, of counsel, for defendants-appellants Leo J. Morgan, et al.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiffs in rule, Leo J. Morgan and Ul-ger J. Morgan, appeal from the judgment vacating their rule and dismissing their demands to cancel' a judgment under the provisions of LSA-R.S. 9:5166.

The sole issue is the propriety of that judgment. We reverse.

In 1968, defendant in rule, Paul Braud, obtained a judgment against the two Morgans. In 1969, Leo Morgan was granted a discharge in bankruptcy. In 1971 Ulger Morgan was granted a discharge in bankruptcy. The obligation to Braud was included in the schedules and personal liability was admittedly removed by the discharge. In 1973 Ulger Morgan filed a rule under LSA-R.S. 9:5166 to cancel a number of judicial mortgages. When Paul H. Braud objected, the rule as to him was recalled and vacated by agreement of counsel. In 1978 Paul H. Braud filed a petition for revival of judgment, to which the Morgans filed an exception of no right and no cause of action alleging the discharge in bankruptcy. They asked for and secured a rule to show cause why the judgment should not be cancelled under the provisions of LSA-R.S. 9:5166. After a hearing was held a judgment recalling the rule and dismissing the demands to cancel was rendered. Appeal from that judgment was taken.

Appellee first contends that the vacating and recalling of the rule in 1973 should be res judicata and prevent a consideration of this rule. The evidence is uncon-troverted that the rule was recalled and vacated on motion of the attorney for Ulger Morgan, and the recall was ordered without consideration of the merits. The judgment did not vacate and recall with prejudice. Under these circumstances, we find the plea of res judicata without application.

Considerable discussion has been given to the question of burden of proof and the possible conflict in the effect of C.C.P. 2031 and 9:5166, and both appellants and appellee cite Socony Mobil Oil Co., Inc. v. Burdette, 295 So.2d 854 (La.App. 1st Cir. 1974) and 309 So.2d 655 (La.1975) in which the problem was discussed. There the judgment appealed from was one denying the revival of the judgment under C.C.P. 2031. In the instant case the judgment appealed from is one denying the cancellation of the judgment under 9:5166. The lower court has not yet ruled on the question of the revival of the judgment. We therefore find Socony Mobil Oil Co., Inc. inapplicable and the burden under 9:5166 is therefore applicable.

On the trial of the rule both appellants and appellee rely on the schedules filed in the bankruptcy proceeding. Leo J. Morgan listed a home worth $8,000.00 with a mortgage of $9,350.00. Some handwritten figures are unexplained. We find the creditor has not shown a secured interest in the property affected by the judgment.

Ulger J. Morgan’s schedule showed a first mortgage with a balance of $10,892.40 and a second mortgage with a balance of $3,314.64 on property valued at $13,000.00. Again the creditor has not shown a secured interest in the property affected by the judgment. See Kohnke v. Justice, 280 So.2d 665 (La.App. 4th Cir. 1973).

Our decision does render the matter of the renewal of the judgment somewhat moot but the procedural aspects render it advisable for us to remand the case.

For these reasons the judgment appealed is reversed and there is judgment herein in favor of the plaintiffs in rule, Leo J. Morgan and Ulger Morgan, and against defendants in rule, Paul H. Braud and H. M. Cannon, Clerk of Court ordering the cancellation of the judgment rendered in the matter entitled “Paul H. Braud v. Leo J. Morgan and Ulger J. Morgan”, No. 124,266 on the docket of the Nineteenth Judicial District Court, East Baton Rouge Parish, dated February 27, 1968 and -of record in Judgment Book 68 Folio 366 of the records of East Baton Rouge Parish. The notice of Lis Pendens filed on April 5, 1978 is also ordered cancelled. The costs in both courts are assessed against defendant in rule, Paul H. Braud.

The case is remanded for further proceedings not inconsistent with these proceedings.

REVERSED, RENDERED and REMANDED.

ON REHEARING

PER CURIAM.

We granted a rehearing on the assertion of plaintiff-appellee that he had a secured interest in the property of Ulger J. Morgan because his judgment recorded February 27, 1968 antedated the second mortgage given in September, 1969, listed by Morgan in his bankruptcy schedule.

Plaintiff-appellee is correct in his facts but not in his conclusion. It is true that his judicial mortgage antedated the second mortgage. However, there were several judgments listed in the bankruptcy schedules practically the only evidence before us that antedated his judgment. As of the date of the bankruptcy we find the following ahead of plaintiff’s mortgage:

First Mortgage, May, 1963 $10,892.42
Judgment, Olinde Hardware & 1,184.26 Supply Co., January, 1965
Judgment, E. J. Gonzales Finance 1,463.66 Co., April, 1965
Judgment, Royal Furniture, 330.02 April, 1965
Total $13,870.36

The value of the security is listed at $13,000.00. Ergo, plaintiff-appellee had no secured interest.

For these reasons, our initial decision is reinstated and made the judgment of this court.

      . LSA-R.S. 9:5166:
      “Upon rule to show cause by any interested party against the clerk of court and ex officio recorder of mortgages of the several parishes and the recorder of mortgages for the parish of Orleans, the judgment creditor and a judgment debtor discharged in bankruptcy, the court shall order the cancellation of the inscription of any dischargeable judgment rendered twelve months previously unless the judgment creditor can prove that he continues to possess a secured interest in the property affected by such judgment, or any judgment rendered in a tort proceeding wherein the judgment debtor’s liability arose out of his wilful negligence, or any judgment for taxes due or any other judgment otherwise not discharged in bankruptcy.”

      . C.C.P. 2031:
      “A money judgment may be revived at any time before it prescribes by an interested party in an ordinary proceeding brought in the court in which the judgment was rendered.
      “The judgment debtor shall be made a defendant in the proceeding to revive the judgment, unless he is dead, in which event his legal representative or legal successor shall be made a defendant.
      “A judgment shall be rendered in such a proceeding reviving the original judgment, unless the defendant shows good cause why it should not be revived.”


author: GUIDRY, Judge.

text:
    Allison Lamar MOTT et ux., Plaintiffs-Appellants-Defendants in Reconvention, v. Jerry and Ruth PHILLIPS d/b/a Phillips Real Estate Agency and Stephens Realty Inc., Defendants-Appellees-Plaintiffs in Reconvention.
    No. 6852.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Stephen E. Everett, Alexandria, for plaintiffs-appellants-defendants in recon-vention.
    Walter M. Hunter, Jr., Alexandria, for defendants-appellees-plaintiffs in reconvention.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Judgment was rendered in favor of defendants/plaintiffs in reconvention, Ruth Phillips d/b/a Phillips Real Estate Agency (Phillips), in the amount of $2,094.00, representing commission earned in connection with defendants’ efforts in procuring a buyer for plaintiff’s home pursuant to a written multi-list agreement executed by the parties. The trial court rejected plaintiffs’ demand to have the listing agreement annulled and set aside, and the plaintiffs perfected this appeal. We affirm.

The facts giving rise to the instant suit were set forth by the trial court in its written reasons for judgment, from which we shall quote at length:

“Essentially all of the salient facts save one were stipulated to by the parties. The disputed factual issue involves the alleged existence of a contemporaneous oral modification to the multi-list agreement.
The essential facts of the case are as follows: On August 15, 1977, plaintiff, Allison Lamar Mott and defendant, Mrs. Ruth Phillips entered into a listing agreement for the sale of immovable property owned by Mr. Mott and his wife. The gist of this contract was that Mrs. Phillips was to receive 6 percent of the purchase price of the property as a commission for finding a buyer ready, willing and able to to (sic) pay $34,900 for the property. It was shown at trial that such a buyer was found and a contract to buy and sell the property was drawn up, but that plaintiffs refused to sign.
The only disputed issue at trial was with respect to the allegation by the plaintiffs that at the time they signed the multi-list agreement with the defendants, they also reached an oral agreement with the defendants to the effect that any contract to buy and sell the listed property would be subject to the condition that they have the ability to purchase another residence at a price and upon terms and conditions acceptable to them. At the trial of the case, defendants interposed an objection to the admissibility of any evidence purporting to prove the existence of such an oral agreement on the grounds that it violated Louisiana’s parole evidence rule. The Court sustained the objection to the admissibility of the evidence of an oral modification of the listing agreement. After the objection was sustained, plaintiffs introduced the evidence of an oral agreement under an offer of proof. . . ”

In refusing to permit the introduction of any evidence tending to prove a contemporaneous oral modification of the multi-list agreement and in rendering judgment for Phillips the trial court reasoned as follows:

“Since plaintiffs relied exclusively on the assertion of a contemporaneous oral modification of the multi-list agreement in seeking declaratory relief, and inasmuch as evidence to prove this is inadmissible, the plaintiffs have failed to carry their burden of proof. Therefore, the relief sought by the plaintiffs will be denied
It is established in Louisiana jurisprudence that a real estate broker earns his commission when he procures a purchaser ready, willing and able to buy on the terms stipulated by the seller. Eanes v. McKnight. 262 La. 915, 265 So.2d [220] (1972); Joiner v. Lockart. 350 So.2d 199 (La.App. 3rd Cir. 1977).
The evidence clearly establishes that a buyer was produced in this case and that he was ready, willing and able to pay the price stipulated by the Motts, $34,900.
The listing agreement provides that Mrs. Phillips is entitled to a 6 percent commission on the gross amount of the stipulated price. Hence, Mrs. Phillips is entitled to recover 6 percent of $34,900 or $2,094.”

The substantial issue raised on appeal is whether the trial court properly excluded parol evidence relating to an alleged verbal agreement made contemporaneously with the written multi-list agreement, pursuant to which plaintiffs reserved the right to refuse to sell their home to a prospective buyer should they be unable to find a suitable home to move into. The written agreement is herein set forth in full:

LSA-C.C. Article 2276 provides:

“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

In Salley v. Louviere, 183 La. 92, 162 So. 811 (1935), our Supreme Court stated:

“Article 2276 of the Civil Code declares that parol evidence shall not be admitted against or beyond what is contained in a written contract, nor on what may have been said before, or at the time of making the contract, or since. This article of the Code is not to be construed so as to forbid the proving [of] parol evidence of a subsequent agreement modifying or abrogating a written contract of a character which the law does not require to be in writing. It is true that the article says that parol evidence shall not be admitted to prove what may have been said by the parties to a written contract, before or at the time of making the contract, or since. But the meaning is that parol evidence as to what the parties to a written contract may have said at any time shall not be admitted for the purpose of proving that they had an antecedent or a contemporaneous agreement contrary to that which was reduced to writing. The words ‘or since’ have reference to the phrase ‘what may have been said,’ and not to what may have been agreed to, since the making of the written contract. It is well settled that this article of the Civil Code does not forbid the proving by parol evidence of a subsequent agreement to modify or to revoke a written agreement. Commandeur v. Russell. 5 Mart.(N.S.) 456, 459; Bouligny v. Urquhart. 4 La. 29; Knox v. Liddell. 5 Rob 111, 112; Jamison v. Ludlow. 3 La.Ann. 492, 493; Leeds & Co. v. Fassman. 17 La.Ann. 32; Cain v. Pullen. 34 La.Ann. 511, 517; Cary v. Richardson. 35 La.Ann. 505, 510; Story v. Hone Insurance Co.. 37 La.Ann. 254, 258.” 162 So. at pg. 813.

See also: Southern Fleet Leasing Corporation v. Brown, 257 So.2d 819 (La.App. 1st Cir. 1972); W. R. Aldrich and Company v. Spalitta, 285 So.2d 835 (La.App. 1st Cir. 1973).

The multi-list agreement entered into by plaintiffs and defendants was a contract of employment which the law does not require to be in writing. Wolfe v. Anderson, 242 So.2d 14 (La.App. 3rd Cir. 1970) writ ref. 257 La. 613, 243 So.2d 276; Olympic Homes, Inc. v. Ory, 207 So.2d 258 (La.App. 1st Cir. 1968), writ ref. 252 La. 113, 209 So.2d 41, 1968; Veters v. Krushevski, 100 So.2d 93 (Orleans, La.App.1958). It is well settled that where a written contract is not required to be in writing to be valid, verbal testimony is admissible to show that the contract was modified, altered or abrogated by subsequent parol agreement, but where the verbal agreement was entered into antecedent to or contemporaneously, with the .written agreement, such verbal agreement cannot be established by parol evidence. Salley v. Louviere, supra; Southern Fleet Leasing Corporation v. Brown, supra; Layne-Louisiana, etc. v. Green Acres S., etc., 347 So.2d 1222 (La.App. 1st Cir. 1977); Baton Rouge Sash and Door Company, Inc. v. Saale, 298 So.2d 115 (La.App. 1st Cir. 1974); Piliawsky v. Colar, 112 So.2d 730 (Orleans, La.App.1959). There is no dispute in the instant case that the plaintiffs sought at trial to admit parol evidence for the purpose of establishing that a verbal agreement contrary to or in modification of the terms of the written agreement had been entered into contemporaneously with the written listing agreement. The record reveals that this fact was stipulated by the parties to the suit.

Appellants have urged that parol evidence was properly admissable at trial, relying on the cases of Strahan v. Weiland, 216 So.2d 169 (La.App. 1st Cir. 1968) and Adams v. Spillman, 290 So.2d 726 (La.App. 1st Cir. 1974), writ ref. 293 So.2d 191, 1974. We find these cases to be clearly distinguishable from the instant case. In Strahan, the pa-rol evidence introduced related to an alleged verbal agreement entered into by the parties subsequent to their written agreement. In Adams, the written agreement between the parties contained conflicting terms, and parol evidence was admitted for the purpose of clarifying the ambiguity.

There are well settled exceptions to our parol evidence rule. As between the parties to a written instrument, parol evidence is competent to show fraud, mistake, illegality, want or failure of consideration, to explain an ambiguity when such explanation is not inconsistent with the written terms, or to complete a manifestly incomplete written agreement without varying the terms of the writing. Gulf States Finance Corp. v. Airline Auto Sales, Inc., 248 La. 591, 181 So.2d 36 (1965); Edwards v. State, Department of Corrections, 244 So.2d 69 (La.App. 1st Cir. 1971); Dorvin-Huddleston Developments, Inc. v. United Services, Inc., 207 So.2d 225 (La.App. 4th Cir. 1968).

In this case, there is no ambiguity on the face of the multi-list agreement, nor is the instrument manifestly incomplete. Plaintiffs have not alleged failure of consideration, fraud or illegality. The verbal agreement allegedly arose contemporaneously with the written agreement, and would have clearly altered the terms of the writing itself. The parol evidence sought to be admitted by plaintiffs consequently fit within none of the above-mentioned exceptions to our parol evidence rule which precludes the use of parol evidence to modify the express terms of a written instrument. We find the trial court properly ruled such evidence inadmissible.

The record reveals that plaintiffs in reconvention performed numerous tasks in their attempt to procure a buyer for plaintiffs’ home, and that they did in fact find a willing and able buyer. Such acts included advertising the house and showing it to prospective buyers. It is well settled that a real estate agent engaged to sell property has earned the agreed commission when he procures a purchaser ready, willing and able to buy on the terms stipulated by a vendor. Production of such a prospective purchaser fulfills the realtor’s obligation notwithstanding the sale is never confected due to some fault on the part of the owner. Eanes v. McKnight, 262 La. 915, 265 So.2d 220 (1972); Joiner v. Lockart, 350 So.2d 199 (La.App. 3rd Cir. 1977), writ refused, 352 So.2d 240, 1977.

For the above and foregoing reasons, we affirm the judgment of the trial court, at appellants’ cost.

AFFIRMED.


author: PONDER, Judge.

text:
    The VISION CENTER AND OPTICAL CENTER v. BEN GLAZER COMPANY, INC.
    No. 12545.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Peter T. Dazzio, Baton Rouge, for plaintiff-appellant The Vision Center and Optical Center.
    Jack N. Rogers, Baton Rouge, for defendant-appellee Ben Glazer Company, Inc.
    Before COVINGTON, PONDER and SARTAIN, JJ.

      Serving by appointment of the La.Sup.Ct.

   PONDER, Judge.

Plaintiff appealed from the denial of a declaratory judgment that a lease between it and defendant was terminated because of breaches.

Appellant complains of: the court’s finding that there was no breach of the lease especially in the failure to repair the roof and plumbing, and in failure to correct building violations found by City-Parish inspectors; of failure by the court to apply the presumption as to the failure to produce a witness having peculiar knowledge of the facts; and the court’s holding a lease could be terminated if the lessor sold or released the premises.

We reverse.

In 1970, appellee leased premises to appellant for a term of five years. The lease contained the following provision:

“The Lessor agrees to maintain the roof and keep the building structurally sound. He agrees further to maintain the plumbing in a sanitary and workable condition. However, it is specifically understood that the Lessee obligates himself to keep the plumbing free from obstruction or stoppage caused by his own negligence or imprudent usage.”

In 1974, appellant exercised its option to renew the lease for an additional five years. About the same time, through employees, appellant began complaining of appellee’s failure to maintain the roof and plumbing. Appellee’s local representative first denied receiving any complaints but later admitted receiving telephone calls, in which, however, he refused to discuss any complaints because there was “no lease with those people.”

In 1976, appellant mistakenly attempted to assert that the lease was a month to month one because there had been no exercise of the option to renew. In the same letter, however, it complained of failure to repair. Shortly thereafter, defendant moved from the leased premises but continued to make the rental payments. It, however, filed this suit to have the lease declared breached and thereby terminated.

The trial court held that the failure to repair the roof leaks did not constitute a breach of the lease, stating in its reasons that both parties knew of the advanced age of the building at the time of the initial lease. We believe this constituted error. The provisions above quoted imposed the duty on the lessor to maintain the roof and also the plumbing subject only to lessee’s duty to “keep the plumbing free from obstruction or stoppage caused by his own negligence or imprudent usage.” That the roof leaked and caused plaster above the display window to fall has been amply proved. There was evidence that a water pipe in the slab burst and had to be repaired by the lessee when lessor refused to do so. There was evidence of corroded pipe. There was no evidence that the trouble with the burst and corroded pipe was caused by negligence or improper usage.

Plaintiff has also adequately proved that these breaches resulted in the premises being unsuited for the purpose intended. The unsightliness, the inconvenience and the trouble were attested to and not controverted. The volume of business increased greatly after the move to another building across the street.

The failure to maintain leased premises in such condition as to keep it suitable for the purpose for which it was intended gives the lessee the option of terminating the lease. R.C.C. Art. 2729, Reed v. Classified Parking System, 232 So.2d 103 (2nd Cir. 1970), writ refused 235 La. 1097, 234 So.2d 194 (1970).

Appellee introduced some checks for the purpose of showing repairs had been made. The evidence in regard thereto is rather vague and indefinite. The only one that would seem to be for the repair of the roof was given some four months after the filing of this suit.

Our decision on the above makes it unnecessary to rule on the other complaints.

For these reasons, the judgment is reversed and there is now judgment declaring the lease between the plaintiff and defendant be cancelled as of April 23, 1976. The costs are assessed to the appellee.

REVERSED AND RENDERED.


author: BAILES, Judge.

text:
    William West CONSTANTINE v. Linda Leonard CONSTANTINE.
    No. 12613.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.

      Charles W. White, Baton Rouge, of counsel for plaintiff-appellee William West Constantine.
    Charles A. Schutte, Jr., and Daniel R. Atkinson, Baton Rouge, of counsel for defendant-appellant Linda Leonard Constantine.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   BAILES, Judge.

Appellant-mother appeals the judgment of the court a quo reducing the monthly payments due by the father from $300 to $250 per month, for the support of the parties’ six and eight year old children.

We find there is neither a diminution in earnings of the father nor an increase in needs of the children. On our finding no change in circumstances, we reverse.

At the time the parties were divorced on July 20,1976, the trial court awarded appellant the sum of $300 for the support of the two children. Then the appellee father was earning slightly less than he was at the time the rule for reduction was filed.

Appellant answered the rule and is seeking an increase of support to $500 per month. The trial court denied this increase and granted a reduction of $50 per month.

At some time after the divorce the appel-lee married and at the time of the hearing on the rule was supporting a wife and an eighteen month old daughter. Four months before the rule was heard this wife resigned employment which paid her $13,000 annually in order to remain at home with the young daughter. Appellee testified his present earnings are about $17,000 annually with certain fringe benefits. At the time of the divorce from appellant his earnings were about $14,000 annually.

We recognize, as stated in Lopez v. Lopez, 264 So.2d 354 (La.App. 4th Cir. 1972) that a child born to a remarried father may be properly considered a change of circumstances, however, this is not urged as a change of circumstances to justify a reduction in a child support award by the appel-lee herein. The ground urged and which the appellee argues herein is that there has been a decrease in his net disposable income as a result of an Internal Revenue Service audit of his 1976-1977 federal income tax return in which it found that he was not contributing one-half of the support of the two children of his first marriage. Further, he argues that where a party has suffered a change in income the trial court is justified in reducing the child support payment, citing Colby v. Colby, 200 La. 321, 7 So.2d 924 (La.1942).

We find no factual basis that appel-lee had a reduction in net disposable income. As noted above, at the time the amount of child support was initially fixed at $300 per month appellee was earning approximately $14,000 annually and at the time the rule for reduction was tried, appel-lee was earning $17,000 annually, plus certain fringe benefits.

The appellant is employed and contributes to the support of the two children. IRS has determined that appellant furnishes more than one-half of the two children’s living expenses.

See Ducote v. Ducote, 339 So.2d 835 (La.1976); Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Prados v. Prados, 341 So.2d 1286 (La.App. 3rd Cir. 1976); and Crum v. Crum, 330 So.2d 925 (La.App. 1st Cir. 1976).

The record shows that appellant has remarried and that her husband has children by a prior marriage to support. The earnings of the appellee have not increased to such extent as to warrant an increase in the award.

For the foregoing reasons, the judgment of the trial court reducing the support award by $50 per month is reversed and the monthly support due by appellee is reinstated and maintained at $300 per month.

All court costs in both the trial court and this court are to be paid by appellee.

REVERSED.


author: BEER, Judge. REDMANN, Judge, REDMANN, Judge,

text:
    SAVE OUR WETLANDS, INC. v. WERNER BROS., INC.
    No. 10090.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied July 12, 1979.
    Philip R. Johnson, Metairie, for plaintiffs-appellants.
    Greenberg & Dallam, Nathan Greenberg, Gretna, for defendant-appellee.

      Before REDMANN, BEER and GARRISON, JJ.
   BEER, Judge.

Appellant, Save Our Wetlands, Inc. (hereafter, “SOWL”), filed suit for injunctive and declarative relief against Werner Brothers, Inc., alleging their breach of the state constitution by reason' of their construction of a lakefront restaurant which has, as its foundation, pilings driven into the water bottom of Lake Pontchartrain.

SOWL’s contentions are based on Article IX, Section 3 of the Louisiana Constitution of 1974 which prohibits alienation of the water bottom of Lake Pontchartrain except for purposes of reclamation by the riparian owner or reclamation for public use. The trial court dismissed plaintiff’s suit, and it appeals.

The Department of the Army (Corps of Engineers) issued a permit on September 2, 1975, authorizing Werner Brothers, Inc. to construct and maintain a building (and connecting walkway) structured on pilings driven in Lake Pontchartrain. The location of the proposed three-story complex was between Fitzgerald’s Restaurant and Pier Orleans, about 600 feet north of the Metair-ie Relief Outfall Canal in the section known as West End and located on the Jefferson Parish side, just past the parish line between Jefferson and Orleans.

At the trial court hearing on the preliminary injunction, George Werner, in response to a subpoena duces tecum, produced their application to the Corps of Engineers, as well as the permit issued subsequent to a public hearing, and also produced various local, state and federal agency-originated letters (or related documents) evidencing approval (or lack of objection to) the proposed construction project. The trial judge concluded that the construction had been authorized by a permit issued by the U. S. Corps of Engineers and that all requirements and pre-requisites were satisfied in the issuance of the permit. He also concluded that no objection to the project was voiced by any of the various political subdivisions affected, or by the Attorney General in behalf of the State of Louisiana or its agencies.

Notwithstanding these important conclusions, we see the primary issue as being whether SOWL met its burden of showing that it had standing to proceed as a proper party plaintiff in the first place. We believe that it did not. Accordingly, for this reason as well as those of the trial court, the judgment is affirmed.

AFFIRMED.

REDMANN, Judge,

concurring.

The law of Louisiana was explicit in the Civil Code of 1825 and is explicit in the Code of 1870 in force when this suit was filed in 1977 (and remains so in the 1978 revision of the property articles): any citizen may require the removal of any work on a public thing (place) that obstructs the public use of the public thing such as navigable waters or their banks.

Accordingly it cannot be said that a private citizen has no right of action (“no interest in plaintiff”, C.C.P. 927) to enjoin the construction or maintenance of a building on the bed or bank of navigable water. The law expressly grants that right to any “person residing in the state”, C.C. 458, to “any individual of full age residing where [the obstructing works] are situated”, former C.C. 861 (applicable here).

“No pecuniary interest,” as defendant explained its exception of no right of action in this case, is irrelevant: for the assertion of every citizen’s right to fully use public things no pecuniary interest is necessary: Giardina v. Marrero Furniture Co., Inc., La. 1975, 310 So.2d 607.

Thus the courts are open to any citizen who is willing to be the plaintiff — that is to say, who is willing to place himself or herself at risk for perhaps several hundred dollars of court costs such as transcripts.

But Save Our Wetlands, Inc. is not an “adult individual residing in the place” as former C.C. 861 requires and therefore it has no right of action. (Furthermore, this fictitious being SOWL does not go fishing or boating and therefore obviously cannot find its use of the public place obstructed.) Presumably SOWL is pushed by some human beings — perhaps adult, perhaps residents of the place: but also perhaps not. It matters not why those individuals reject the unquestionable right the law gives them (if they are adult residents), or why they elect instead to have suit brought by a corporation with picturesque name and cryptic acronym. (May one suppose a case of business competitors, themselves occupying a public place, pretending to be a public-minded nonprofit corporation?)

The law does not grant the right to a non-profit corporation to exercise the citizenship rights (if any) of its anonymous members, while the members protect themselves against all responsibility for their exercise by the legal device of the corporate shield. If any “person residing in the state”, C.C. 458, finds his use of the public waterway or its banks or shores obstructed by defendant’s building, let that person sue and be responsible if his suit be ill-founded.

REDMANN, Judge,

concurring in denying rehearing.

Applicant for rehearing would supplement the record to show that a second supplemental petition had alleged “Neal Foy, a major resident of the Parish of Orleans, . . . wishes to join in this litigation, averring that his . . . rights are being infringed . . . .” That petition was never answered, however, and therefore issue was not joined and there can be no judgment effective in respect to Foy. To remand to allow Foy to present his demand is more cumbersome than his bringing a new suit, unburdened by an inappropriate corporate plaintiff.

      . The Civil Code of 1825, art. 857, retained verbatim in the revision of 1870, art. 861, provided:
      Works which have been formerly built on public places, or in the beds of rivers or navigable streams, or on their banks, and which obstruct or embarrass the use of these places, rivers, streams, or their banks, may be destroyed at the expense of those who claim them-, at the instance of the corporation of the place, or of any individual of full age residing in the place where they are situated.
      And the owner of these works can not prevent their being destroyed under pretext of any prescription or possession, even immemorial, which he may have had of it, if it be proved that at the time these works were constructed, the soil on which they are built was public, and has not ceased to be so since.
      When C.C. 861 was replaced in the property law revision of La.Acts 1978 No. 728, effective January 1, 1979, (ignoring 861’s brief retention as R.S. 9:1111) its substance was transferred to now art. 458:
      Works built without lawful permit on public things, including the sea, the seashore, and the bottom of natural navigable waters, or on the banks of navigable rivers, that obstruct the public use may be removed at the expense of the persons who built or own them at the instance of the public authorities, or of any person residing in the state.
      The owner of the works may not prevent their removal by alleging prescription or possession.

      . Defendant’s only claim to a right to build is a “permit” from the U. S. Corps of Engineers. The Corps, however, has no power under federal (much less state) law to grant one a servitude (or other property right) to build on state-owned property. The Corps may under federal law prevent an owner from building over navigable waterways or over flood-control levees if the building would interfere with a federally-controlled function such as navigation or flood control, and for that reason even the owner of navigable water bottom or banks must obtain a permit from the Corps to build. But the Corps’s authority is negative: its refusal of a permit prevents building but its issuance of a permit does not authorize building. Authorization can only come from the owner. (Since their enactment by La.Acts 1978 No. 645, R.S. 41:1701-1714 provide for authorization of encroachments upon state waterbottoms by lease or permit.)