text:
    Thomas FRASER, Appellant, v. Fay FRASER, Appellee.
    No. 78-1128.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Marvin & Sheppard and Dennis P. Sheppard, Miami, for appellant.
    Albert E. Schrader, Jr., Coral Gables, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Petitioner, Thomas Fraser, appeals the alimony provision of a dissolution of marriage judgment.

A final judgment was entered dissolving the bonds of the twenty-year marriage between Thomas and Fay Fraser. Fay Fraser was awarded custody of the two minor children, ages seventeen and fifteen, and child support of $50 per week. In addition, the trial judge entered the following alimony award:

******
“4. ALIMONY. By the way of lump sum and periodic alimony, in view of the long standing marriage and disparate earning capacity of the two people, FAY FRASER is awarded THOMAS FRASER’S interest in the house at 3900 S W 122nd Avenue, Miami, Florida, and THOMAS FRASER is ordered to continue to make the payments on the mortgage, being responsible for the mortgage payments to the extent of $275.00 a month, FAY FRASER being responsible for the balance of the monthly payments until such time as the mortgage is retired. In the event that the house is sold before then, or death of the parties, payment shall cease. This order shall remain in effect as long as FAY FRASER is alive and living in the house. If the house should be sold before her death and the mortgage retired, THOMAS FRASER shall continue to make payment in the amount of $275.00 to her per month.”
******

We reverse.

The record reflects that Thomas Fraser, a sales manager, earns a net income of approximately $1,000 a month. Other than his undivided interest in the marital residence, he has no major assets. Fay Fraser had worked part-time most of her married life and was currently earning $500 per month. She is in good health.

The award of Thomas Fraser’s interest in the marital residence is unsupported by the record in that there is no showing of necessity on Fay Fraser’s part. See Cummings v. Cummings, 330 So.2d 134, 136 (Fla.1976); Meredith v. Meredith, 366 So.2d 425 (Fla.1978). We, therefore, vacate this award and remand the cause to the trial court with directions to (a) award Fay Fraser and the minor children possession of the marital home until further order of the court, and (b) make such other provisions for the payment of mortgages, insurance, taxes, etc. as may be equitable. See e. g. Meredith v. Meredith, 352 So.2d 72, 73 (Fla. 4th DCA 1977).

In light of the above holding, we set aside the award of $275 as permanent periodic alimony and remand this question to the trial court for reconsideration. This opinion is not to be construed as our passing upon the merits of Fay Fraser’s entitlement to and/or amount of permanent or rehabilitative alimony.

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FIREMAN’S INSURANCE COMPANY OF NEWARK, Appellant, v. James L. PHILLIPS and Lois C. Phillips, his wife, et al., Appellees.
    No. 78-1216.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Marlow, Shofi, Ortmeyer, Smith & Span-gler, Miami, for appellant.
    Engel & Palgon, Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd A. Cowart, Miami, for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner, Fireman’s Insurance Company of Newark, workmen’s compensation carrier, appeals a final order finding that its equitable distribution amounted to $2,663.38.

James Phillips, while in the employ of Central Bank and Trust Company, was injured when he slipped on a cigarette on the bank’s premises. For the injury arising out of his employment, Fireman’s, the bank’s compensation carrier, paid Phillips a total of $19,633.70. Subsequently, Phillips sued Central Bank and the case was settled for $30,000. Fireman’s filed a notice of lien and petitioned for equitable distribution. At a hearing thereon, counsel for Central Bank testified that the case was worth between $120,000 and $150,000 and Phillips was approximately 75% negligent, in that he testified he had seen the cigarette first prior to stepping on it, resulting in the $30,000 settlement. The trial judge determined that the full value of the damages was $130,000 and that Phillips was comparatively negligent. The judge then applied the formula as set out in National Ben Franklin Ins. Co. v. Hall, 340 So.2d 1269 (Fla. 4th DCA 1976) and awarded Fireman’s $2,663.38. Fireman’s appeals this award and alleges (1) that the judge failed to exercise his discretion in that he simply applied the formula approved in National Ben Franklin Ins. Co., supra, and (2) the evidence at the hearing was legally insufficient to support the determination of the trial judge as to the full value of damages (i. e. $130,000) and the comparative negligence on the part of Phillips.

The determination of the amount of an equitable distribution rests within the sound discretion of the trial court. Liberty Mutual Insurance Company v. Williams, 356 So.2d 54 (Fla. 4th DCA 1978). There was no abuse of discretion on the part of the trial judge in deciding to apply the formula set out in National Ben Franklin Insurance Company v. Hall, supra. In fact, counsel for Fireman’s did not object when the trial judge applied the formula and determined thereunder that Fireman’s was entitled to $2,667.38.

With regard to the ground of insufficiency of the evidence, the record demonstrates to the contrary. The testimony of counsel for Central Bank and Phillips is sufficient to support the determination as to the full value of the case and Phillips’ comparative negligence. Thus, the determination of the amount of the equitable lien based upon these factual findings should not be disturbed on appeal. Zurich Insurance Company v. Renton, 189 So.2d 492 (Fla. 2d DCA 1966).

Affirmed.


text:
    Senen Francisco BRITO, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1294.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Carling H. Stedman, Miami, for appellant.
    Janet Reno, State Atty. and George Vol-sky and Howard K. Blumberg, Asst. State’s Attys., Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Allen v. State, 174 So.2d 538 (Fla.1965).


author: PER CURIAM. SCHWARTZ, Judge

text:
    Matilda GARCIA, Appellant, v. DEPARTMENT OF COMMERCE, BOARD OF REVIEW, State of Florida, and J. S. S. Enterprises, Appellees.
    No. 78-1305.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Terry L. DeMeo, Legal Services of Greater Miami, South Miami, for appellant.

      Kenneth H. Hart, Jr. and Ollie L. Evans, Tallahassee, for appellees.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal of a decision of an appeals referee of the Department of Commerce, Board of Review, State of Florida, holding that appellant was not entitled to unemployment benefits under her claim because she left her employment voluntarily without good cause attributable to her employer.

We have carefully considered the record, brief and argument of counsel and have concluded that the decision of the appeals referee was correct. No error having been shown, we therefore affirm.

Affirm.

SCHWARTZ, Judge

(dissenting).

In my view, there is nothing whatsoever in the record to support the finding of the referee that the petitioner voluntarily left her employment. The only evidence— which was not disputed by the employer in any way either at the hearing, at which it presented no witnesses, or in any of the subsequent proceedings, in which it did not even appear — was that she was fired. I would therefore reverse the determination under review.


text:
    Gloria ALFONSO, Appellant, v. GREIT REALTY TRUST, Appellee.
    No. 78-1369.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Rollo E. Karkeet and Jose R. Sierra, Miami, for appellant.
    Adams & Ward and Amy Shield Levine, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Hurt v. Leatherby Insurance Company, 354 So.2d 918 (Fla. 4th DCA 1978); Weatherford v. Ryder Truck Rental and Leasing, Inc., 344 So.2d 937 (Fla. 3d DCA 1977); Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla. 3d DCA 1976), and Hester v. Gatlin, 332 So.2d 660 (Fla. 2d DCA 1976).


text:
    Gary T. WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2176.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Gary T. White, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is not entitled to relief, the denial of his motion is affirmed.

Affirmed.


text:
    Gregory Lawrence ZATLER a/k/a Gregory Zatler a/k/a Gregory Hi Wright, Appellant, v. The STATE of Florida, Appellee.
    No. 79-238.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Gregory Lawrence Zatler, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY 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.

Affirmed.


author: BERANEK, Judge.

text:
    Julian MARX and Oakland Park Development Corporation, Appellants, v. Zachary W. REDD, Appellee.
    No. 76-2227.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.

      Harry G. Carratt of Morgan, Carratt & O’Connor, Fort Lauderdale, for appellants.
    Michael J. Padula of Allsworth, Doumar, Schuler, Padula & Laystrom, Fort Lauder-dale, for appellee.
   BERANEK, Judge.

Defendants appeal from a judgment in favor of plaintiff entered after a non jury trial. Plaintiff sued for an accounting and for damages alleged to have occurred as a result of the breach of a business association agreement. It was alleged in Count I that the parties had reached an oral partnership agreement relating to the development of real estate. It was asserted that this oral partnership agreement had been breached by defendants. Count II alleged the existence of an oral employment agreement whereby the plaintiff was to share in certain profits resulting from the development of real estate.

The matter proceeded to a non jury trial in the Circuit Court. The events following the trial may be summarized as follows:

November 25, 1975 — Final judgment entered for defendant dismissing plaintiff’s complaint with prejudice.
December 4, 1975 — Plaintiff served a motion for rehearing directed to Count II of the complaint relating to the employment contract.
August 31, 1976 — Order denying plaintiff’s motion for rehearing.
September 14, 1976 — Order granting plaintiff’s motion for rehearing and entering judgment in favor of plaintiff against defendants on Count II of the complaint relating to the employment contract.
September 27, 1976 — Order setting aside prior order of August 31, 1976, and stating that this order had been entered through mistake and inadvertence.

The eventual final judgment (a combination of the judgment and order of November 25, 1975, and September 14, 1976) found that an employment relationship existed between the parties and that the said oral employment agreement provided for payment to the plaintiff in the form of a sharing of profits. The profits were to be shared on the basis of 33V3% from the sale of phase one of the real estate development. A special master was appointed to proceed with taking an accounting. It was noted in the final judgment that pursuant to the terms of the plaintiff’s employment, plaintiff had already been paid by defendants the sum of $102,000, but that some $90,000 of this amount had not actually been received by plaintiff by reason of a stop payment order which defendants had issued on the check.

The defendants raise four points on appeal. The first point asserts that the trial court erred in acting under Rule 1.530 of the Rules of Civil Procedure in setting aside the original final judgment in favor of defendants and in setting aside the initial order denying plaintiff’s motion for rehearing. It is clear that Circuit Courts have general authority over their own orders, decrees and judgments before they become final. Danner v. Danner, 206 So.2d 650 (Fla. 2d DCA 1968). The Florida Rules of Civil Procedure allow courts to act upon motion by any party or on the Court’s own motion to grant relief from an order under such circumstances and for those reasons set forth in Rule 1.540(b). Such reasons include mistake, inadvertence, surprise or excusable neglect. The type of “mistake” envisioned by this rule is the type of honest and inadvertent error made in the ordinary course of litigation. See, Danner v. Danner, supra. The trial court’s eventual order of September 27,1976, expressly stated that the court had inadvertently signed the order denying plaintiff’s motion for rehearing when in fact the court intended to grant said motion. Clearly, when a court signs an order submitted by counsel inadvertently and through error, this sort of mistake can be corrected under Fla.R.Civ.P. 1.540. This is clearly the intention of the rule and no error was committed in this regard. Defendants also assert that the form of the court’s order granting the motion for rehearing was improper in that it did not set forth the specific grounds therefor. This argument is without merit. Pensacola Chrysler-Plymouth, Inc., v. Costa, 195 So.2d 250 (Fla. 1st DCA 1967).

Defendants next argue that the Court misconceived the legal effect of the evidence. It is asserted that the Court could not have found the absence of a partnership agreement under Count I and still found in favor of the plaintiff on an employment agreement under Count II. We see no legal inconsistency between these two theories and do not believe that the finding on Count I and Count II is inconsistent so as to require reversal. Defendants’ main argument here seems to be that the sharing of profits is more akin to a partnership than it is to an employment agreement. While this may be true, an employment contract may provide that the employee will share in the profits of the employer’s business. See, Ennis v. Warm Mineral Springs, Inc., 203 So.2d 514 (Fla. 2d DCA 1967), and Bouden v. Walker, 266 So.2d 353 (Fla. 2d DCA 1972).

Defendants next argue that the evidence was insufficient to sustain the final judgment eventually entered. In short, it appears that the principal of the defendant corporation testified that there did exist an employment relationship. As such, there was clearly evidence in support of the trial court’s finding in this regard. We find the evidence to be sufficient.

Lastly, defendants argue that the plaintiff’s claim based on an employment contract was within the Statute of Frauds as provided in F.S. § 725.01. We have reviewed the evidence and law in this regard and find this argument to be without merit.

The final judgment below is therefore affirmed.

AFFIRMED.

DOWNEY, C. J., and CROSS, J., concur.


text:
    Michael F. MORRISON, Jr., Appellant, v. INTERCOUNTY CONSTRUCTION CORPORATION et al., Appellees.
    No. 76-2647.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.
    Frank E. Maloney, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellees/cross-appel-lants.
   BERANEK, Judge.

Plaintiff appeals from a final judgment entered after a jury trial of a personal injury action. Plaintiff was injured in an accident occurring on a construction site. The jury verdict found that the plaintiff himself was guilty of 75% negligence and that the plaintiff’s total damages were $17,-000.00. The jury also found in favor of the plaintiff’s wife on her loss of consortium claim but awarded her “zero” dollars. Plaintiff asserts that the 75% figure was too high and not supported by the evidence and that the $17,000.00 damage award was grossly inadequate so as to shock the judicial conscience.

These two arguments, along with an attack on the wife’s “zero” dollar consortium verdict, were made to the trial court on motion for new trial. The trial court denied the motion as to the grounds asserted by the husband but granted the motion as to the wife’s consortium claim.

On appeal the husband/appellant attacks the final judgment entered pursuant to the jury verdict and the defendant cross-appeals the granting of the new trial on the wife’s consortium claim. We affirm.

Under Lawrence v. Florida East Coast Railway Co., 346 So.2d 1012 (Fla.1977), special verdicts are required in all cases involving comparative negligence. We believe that the setting of the precise percentage of negligence is obviously a matter peculiarly within the judgment of the jury. Here the evidence was not without conflict. The accident involved a fall on a construction site where plaintiff was an inspector. There was evidence — if believed — that plaintiff should have seen a sign when he crossed a ladder stating, “Do not enter — dangerous.” The jury might well have found a lower percentage of negligence. However, we cannot rule that reasonable men could not reach the verdict rendered.

The same rationale is applicable to the $17,000.00 award of damages. As noted in McNash v. Oxenhandler, 355 So.2d 446 (Fla. 4th DCA 1978), although we could well affirm a much higher award, we cannot rule that the verdict lacks support in the record. Here again, this is a matter peculiarly within the decisional power of the jury.

As the Supreme Court noted in Helman v. Seaboard Coastline Railroad Co., 349 So.2d 1187 (Fla.1977), there are certain “incontrovertible premises of law” governing review of jury verdicts. It is unnecessary to here repeat the 25 cases cited by that court in support of the principles that a verdict must be sustained if there is any competent evidence to support it and that it is not the function of this Court to re-evaluate evidence and substitute its judgment for that of the jury. Suffice it to say that the quantity of negligence and the dollar amount of damages were both pure jury questions and were supported by competent evidence. No other legal errors have been demonstrated from the record, and we, therefore, affirm on the husband/appellant’s appeal.

The grant of a new trial on the wife’s consortium claim is also proper. See, Worley v. Kirkland, 360 So.2d 447 (Fla. 1st DCA 1978). The grant of a new trial will not be disturbed on appeal except on a clear-showing of an abuse of discretion. Castlewood International Corporation v. LaFleur, 322 So.2d 520 (Fla.1975). The cross-appellant has failed to fulfill the heavy burden necessary for reversal in this regard. Hendries v. Dailey, 208 So.2d 101 (Fla.1968).

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.


author: MOORE, Judge.

text:
    Dexter D. COFFIN, Jr., Appellant, v. Kathryn Joyce COFFIN, Appellee.
    No. 77-309.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.

      Terry N. Freeman of Beverly & Freeman, West Palm Beach, for appellant.
    Thomas M. Mettler of Baugher & Mett-ler, Palm Beach, and Cecil H. Albury of Brennan, McAliley, Albury & Hayskar, West Palm Beach, for appellee.
   MOORE, Judge.

Appellant, the former husband of appel-lee, appeals an order of the trial court granting appellee’s motion for summary judgment and dismissing, with prejudice, appellant’s petition for modification of a final judgment of divorce. In his petition appellant sought relief from the “alimony” and child support provisions of a voluntary property settlement agreement to which the court made reference in the final judgment and ordered the parties to comply with the terms and conditions thereof. The trial judge held that the property settlement agreement could not be modified as a matter of law and therefore granted the appellee’s motion for summary judgment and dismissed the petition for modification with prejudice. We reverse.

Among other things the property settlement agreement required the appellant-husband to pay to the appellee-wife the sum of $100,000 per year for “so long as she shall live” and the sum of $350,000 in two equal installments, all “as alimony for the support and maintenance of the wife.” These obligations .of the appellant were made chargeable against his estate. The agreement further provided that each of the parties released the other from all claims that he or she may have by reason of the marriage relationship or otherwise. It also required the husband to be responsible for the financial care, support, maintenance and education of the minor children of the parties.

Pursuant to Section 61.14, Florida Statutes (1975), the circuit court has jurisdiction to modify alimony or support payments even though the obligation for same stems from a voluntary property settlement agreement. This section, however, has been interpreted to apply only to those situations involving alimony for support and maintenance. It does not apply to purely property settlement agreements. Mills v. Mills, 339 So.2d 681 (Fla. 1st DCA 1976); Schulman v. Schulman, 273 So.2d 403 (Fla. 3d DCA 1973). The main issue then is whether or not the trial judge could determine the nature of the agreement on a motion for summary judgment.

Use of the word “alimony” is not conclusive, and the court must look to the substance of the agreement to determine its true legal status. Underwood v. Underwood, 64 So.2d 281 (Fla.1953). Settlement agreements must be construed and interpreted as other contracts. Underwood, supra. As Justice Drew stated:

“The Court has repeatedly held, along with practically every other Court in the land, that property settlements between husband and wife made in good faith are valid and should not be disturbed by the Courts. Vance v. Vance, 143 Fla. 513, 196 So. 128. That these agreements should be construed and interpreted as other contracts is no longer open to question. Bergman v. Bergman, 145 Fla. 10, 199 So. 920. We said in the case of St. Lucie County Bk. & Tr. Co. v. Aulin, 94 Fla. 528, 114 So. 438, 441:

‘. . .In the construction of written contracts it is the duty of the court, as near as may be, to place itself in the situation of the parties, and from a consideration of the surrounding circumstances, the occasion, and apparent object of the parties, to determine the meaning and intent of the language employed. Indeed, the great object, and practically the only foundation, of rules for the construction of contracts, is to arrive at the intention of the parties. This is a most conspicuous and far-reaching rule, and involves the nature of the instrument, the condition of the parties, and the objects which they had in view; and, when the intent is thus ascertained, it is to be effectuated, unless forbidden by law. “Contracts are not to be interpreted by giving a strict and rigid meaning to general words or expressions without regard to the surrounding circumstances or the apparent purpose which the parties sought to accomplish.” ’ ” At 287.

In the agreement under consideration the parties chose to define the appellant’s obligations “as alimony for the support and maintenance of the wife.” Conversely there are indicia which tend to make one believe they only intended a settlement of their property rights against each other. This creates a genuine issue of fact. As difficult as it may be for the able trial judge, we feel, from our review of the record, that the parties’ intentions must be fully explored at trial and summary judgment was thus premature.

We also note that the Petition for Modification sought relief from child support obligations. Here the paramount concern is to serve the best interests and welfare of the children consistent with the financial abilities of the parties. As such, “Interpretation or modification of a separation agreement affecting welfare of children is not only permissible but obligatory where the circumstances so indicate.” Forte v. Forte, 320 So.2d 446 (Fla. 3d DCA 1975).

The order granting summary judgment and dismissing the Petition for Modification is reversed and this cause is remanded for further proceedings consistent with the views expressed herein.

DOWNEY, C. J. and RIVKIND, LEONARD, Associate Judge, concur.

      . It is interesting to note that although the court ordered the parties to comply with the voluntary property settlement agreement the trial court did not incorporate the agreement in the final judgment of divorce as is alleged by the appellant in his petition for modification.


text:
    W. D. BALL, Appellant, v. STATE of Florida, Appellee.
    No. 77-977.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.

      Richard L. Jorandby, Public Defender, and Marc E. Kirk and Wilbert Stevenson, Jr., Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon examination of the record this court finds that the evidence is insufficient to sustain the adjudication of guilt of indirect contempt of court. Accordingly, the adjudication is reversed.

REVERSED.

DOWNEY, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


text:
    CITY OF INDIAN HARBOUR BEACH, a municipal corporation in Brevard County, Florida, Appellant, v. The HOMEBUILDERS ASSOCIATION OF BREVARD, INC., a Florida Corporation not for profit, Jimmie Caudle, Joseph Di Prima, and Frederick Gravel, Appellees.
    No. 77-1897.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.
    T. M. Barlow, Jr., of Crofton, Holland, Starling, Harris & Severs, Melbourne, for appellant.
    Joseph S. Gillin, Jr., of Storms, Pappas & Krasny, Melbourne, for appellees.
   PER CURIAM.

Affirmed on the authority of City of Miami v. Carter, 105 So.2d 5 (Fla.1958); City of Miami Beach v. Jacobs, 341 So.2d 236 (Fla. 3d DCA 1976); City of Opa-Locka v. Buckress Land Co., 247 So.2d 339 (Fla. 3d DCA 1971).

LETTS, J., and RIVKIND, Associate Judge, concur.

DAUKSCH, J., concurs in conclusion only.


author: PER CURIAM. DAUKSCH, Judge,

text:
    ADCO SIGN CORPORATION, Appellant, v. Joseph J. LACH and Mary Ann Lach, d/b/a Crossroads Motel, Appellees.
    No. 77-2564.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.

      J. Michael Brennan of Brennan & Mus-chott, Fort Pierce, for appellant.
    Spencer B. Gilbert of Gilbert & Horowitz, P.A., Fort Pierce, for appellees.
   PER CURIAM.

This is an appeal from a judgment denying the appellant’s complaint for breach of contract and granting the counterclaim of the appellees. Our examination of the record fails to disclose any legal or evidentiary basis for the appellees’ recovery on their counterclaim against the appellant of funds deposited by the appellees with a third party who was not joined in the trial court action. Accordingly, the judgment on the counterclaim is reversed, but the judgment in all other respects is affirmed.

ANSTEAD and MOORE, JJ., concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent. In this contract case the trial court found for the defendant. In my opinion the pleadings and discovery themselves are enough to substantiate a judgment against those defendants. There was an offer to lease a sign, in writing, for a specified amount and a particular design. The signmaker received a deposit from the offeror and forwarded it to the leasing company and began his efforts toward constructing the sign. That is a unilateral contract, in my opinion, and is enforceable. In their answer to the complaint the defendants admitted they entered into a contract with the plaintiff but allege, as an affirmative defense they say, that they told the plaintiff to “correct and amend the proposed sketch of the sign” and that “the plaintiff did prepare an amended sketch of a proposed sign for approval by the defendants which said defendants refused to approve due to the plaintiff’s failure to correct the design to meet the requests of the plaintiffs.” They went on to allege this caused a “failure of consideration.” I would hold the defendants to their admission of the contract in their answer and in their answers to requests for admissions, and I find quite sufficient evidence of a contract to build and lease a sign. The contract is supported by consideration and work began in reliance upon the contract, as further consideration. Just because they changed their minds does not and should not relieve the plaintiffs of their promise to pay. I would reverse.


author: DOWNEY, Chief Judge.

text:
    Linda Susan MOORE, a minor, by and through her parents and natural guardians, Clifford Moore and Ruth C. Moore: and Clifford Moore and Ruth C. Moore, Individually, Appellants, v. Russell CAUGHEY d/b/a Russell’s Magic Midway and Stuyvesant Insurance Company, a foreign corporation organized and existing under the laws of the State of New York, duly authorized to do business in the State of Florida, Appellees.
    No. 77-2625.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.

      James R. Dressier, Cocoa Beach, for appellants.
    Barbara Kane, of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellees.
   DOWNEY, Chief Judge.

Plaintiffs-appellants seek review of an adverse verdict and judgment in favor of the defendants-appellees. The suit arose as a result of personal injuries sustained by appellant, Linda Susan Moore, while riding on a ferris wheel owned and operated by the individual appellees. We have considered appellants’ four points on appeal and find that none of them constitutes reversible error. However, we believe one of appellants’ points does deserve comment.

During the course of the proceedings below a number of discovery depositions were taken, some or all of which were used for impeachment during the course of the trial. The trial court taxed the cost of depositions, including copies, against the appellants as the losing party. Taxation of the cost of copies is assigned as error and is the subject of appellants’ fourth point on appeal.

Appellants contend that the Supreme Court of Florida held in Florida Greyhound Lines v. Jones, 60 So.2d 396 (Fla.1952) that copies of depositions were not taxable as costs. On the other hand, appellees point to County of St. Lucie v. Browning, 358 So.2d 253 (Fla. 4th DCA 1978), in which this court held copies of depositions were taxable.

The expansive use of discovery today and the concomitant increase in the cost of litigation make the taxation of costs a major item of consideration in present day litigation. As we read the cases it seems to us we have pretty well settled the taxation of the cost of depositions, i. e., the cost of the original. If the deposition served a useful purpose the party who prevails is generally entitled to have that item of cost taxed against the unsuccessful litigant. Miller Yacht Sales, Inc. v. Scott, 311 So.2d 762 (Fla. 4th DCA 1975), and cases cited therein.

However, as to the question of taxing the cost of copies of depositions there appears to be some confusion. In Florida Greyhound Lines, Inc. v. Jones, supra, the Supreme Court, without discussion or reason, expressly held the expense of copies of depositions is not assessable as costs. Jones, supra, was followed in Cohen v. Dennis, 209 So.2d 465 (Fla. 3rd DCA 1968), wherein the court seems to suggest as a rationale for the Jones holding that since counsel can examine the original deposition on file in the courthouse copies are not necessary. In the Browning case, supra, in approving the taxation of costs of copies of depositions this court, among other things, held:

“It is not at all clear that the Supreme Court in Florida Greyhound Lines v. Jones, supra, intended that under no circumstances may costs of deposition copies be taxed against a losing party. We think a better reasoned rule is that such copy costs may be taxable if the copies serve a useful purpose. There may be circumstances in which such copies are necessary expenses which the prevailing party should recover. It is best left to the trial court’s discretion to determine whether the copies served a useful purpose. See, for example, Cohen v. Dennis, supra, in which the cost of deposition copies was found to be not assessable, the original deposition being on file in the clerk’s office and available for examination by the party making the copy.
“The record on appeal does not disclose the circumstances under which the copies were ordered, for what purposes they were to be used, or whether the original depositions were readily available for inspection by the party ordering the copies. Therefore, we cannot find that the trial court abused its discretion in assessing the cost (sic) deposition copies against Appellants. That part of the order taxing this cost is affirmed.” 358 So.2d at 254.

The above quote seems to us to be at odds with the Supreme Court’s unequivocal holding in Jones, supra. However, Jones was decided in 1952 when the use of pretrial discovery on a large scale had not yet commenced in Florida, although use of discovery as in the Federal Rules was authorized initially in 1947. Considering the pace of the practice of law and the somewhat limited use of discovery at that time as compared to its use today, the suggestion that lawyers go to the courthouse and read the original transcript of depositions may have been adequate, but to suggest that as a viable, practical alternative to obtaining copies of depositions today is totally unrealistic. Besides the problems presently existing of time and space as Florida grows, one wonders how the practitioner is to handle the reading of depositions, the impeachment of witnesses, etc., during trial. Who is the lucky one who gets to hold the original transcript? How do the lawyers and judge follow the reading of the transcript? Suffice to say that in this day and time copies of depositions are a necessity in many cases and so we reaffirm the statement in Browning, supra, that the better reasoned rule would seem to allow taxation of costs of copies of depositions if, as is the case with the original transcript, the copies serve a useful purpose.

We perceive an apparent conflict between the Supreme Court’s Greyhound case and our Browning case. Thus, we have belabored the foregoing point for the purpose of suggesting the question should be certified to the Supreme Court of Florida so that this important practical question can be answered authoritatively by that court.

Accordingly, we affirm the action of the trial court in taxing costs of copies of depositions because this court has previously so ruled. However, somewhat belatedly, we believe this question should be settled so as to assist the trial bench and bar in the assessment of costs. Accordingly, we certify to the Supreme Court of Florida as a matter of great public interest the following question:

MAY COPIES OF DEPOSITIONS BE TAXED BY THE TRIAL COURT AS COSTS IF THE COURT FINDS THE COPIES SERVED A USEFUL PURPOSE?

LETTS and BERANEK, JJ., concur.

      . The most recent case following Jones is Ryan v. Beucher, 360 So.2d 15 (Fla. 2nd DCA 1978).

      . Ch. 24041, Laws of Florida (1947).


text:
    Rita M. TIERNEY, Appellant, v. John S. TIERNEY, Jr., Appellee.
    No. 78-156.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.

      Errol S. Willes of Willes, Bittan & Willes, Fort Pierce, for appellant.
    Ben L. Bryan, Jr., Fort Pierce, for appel-lee.
   PER CURIAM.

This is an appeal by the wife from an order awarding her rehabilitative alimony for eight years upon dissolution of a twenty-seven year marriage. There is no evidence in the record to support an award for rehabilitative rather than permanent alimony. In addition, it appears that the amount of the alimony award was erroneously predicated on the husband’s testimony that he contemplated a reduction in income in the future. In essence, the wife was left in the position of seeking a modification if the reduction did not occur. The undisputed evidence at the time of the final hearing was that the husband had already earned income of $32,000.00 for the first eleven months of the year. His earnings in recent years were substantially the same. Based upon this evidence we believe the wife was entitled to a minimum of $150.00 weekly permanent alimony. Should the husband’s expectations as to a future decrease in annual income actually occur, he may seek a modification of the judgment. The evidence was not sufficient to establish that the reduction had already occurred. Accordingly, the judgment for rehabilitative alimony is reversed with directions that judgment be entered for permanent alimony in the amount of $150.00 weekly.

ANSTEAD and LETTS, JJ., and GREEN, R. A., Jr., Associate Judge, concur.


author: DAUKSCH, Judge.

text:
    CONTINENTAL JANITORIAL CORPORATION, a Florida Corporation, Petitioner, v. NATIONWIDE UNDERWRITERS, INC., a Florida Corporation, Respondent.
    No. 78-533.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.

      Michael B. Solomon, of Galbut, Galbut & Menim, Miami Beach, for petitioner.
    Peter N. Hanna, Fort Lauderdale, for respondent.
   DAUKSCH, Judge.

The petition for Writ of Certiorari in this case alleges the circuit court, acting in its appellate capacity, departed from the essential requirements of law when it denied attorneys fees to appellant for its attorney on appeal. We agree and grant certiorari. Section 627.428, Florida Statutes (1977) provides:

Attorney fee.
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
(2) As to suits based on claims arising under life insurance policies or annuity contracts, no such attorney fee shall be allowed if such suit was commenced prior to expiration of 60 days after proof of the claim was duly filed with the insurer.
(3) Where so awarded, compensation or fees of the attorney shall be included in the judgment or decree rendered in the case.

In order for petitioner to be entitled to the attorneys fees we must determine respondent is an insurer under Sections 624.03 and 624.04, Florida Statutes (1977). Respondent is an insurer within the meaning of the statutes because in its lower court complaint it alleged it issued the appellant an insurance policy; because it is an underwriter and in the business of underwriting insurance policies; because the policy which was at issue in the lower court was countersigned by respondent as agent for (it said “authorized representative”) the carrier; and because respondent was acting, at least, as a service representative (a mentioned “person” in Section 624.04, Florida Statutes (1977)), by collecting premiums.

In order for attorneys fees to be properly awarded we must find, in addition to the above finding that appellee is an insurer within the meaning of the statute, that the judgment be “against the insurer”. Section 627.428, Florida Statutes (1977). This was an action by the respondent against the petitioner for the collection of allegedly owed insurance premiums. Parenthetically, if it was not an insurance company how could it be owed insurance premiums? The judgment in this case was assuredly against the insurer—a verdict was directed in favor of the insured at the close of the insurer’s case at trial. Judgment upon that verdict was entered in favor of the insured and affirmed by the circuit court.

The order denying attorneys fees is quashed and this cause is remanded for entry of an order affixing and awarding attorneys fees for petitioner both in the circuit court and this court.

Order QUASHED and REMANDED.

CROSS and LETTS, JJ., concur.


author: LETTS, J.

text:
    STATE of Florida, Appellant, v. Dana Thomas McGUIRE, Appellee.
    No. 78-1532.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, and Michael Salnick, Legal Intern, West Palm Beach, for appellee.
   LETTS, J.

This cause is reversed upon the authority of State v. Newman, 367 So.2d 251 (Fla.4th DCA 1979).

DAUKSCH, J., concurs.

CROSS, J., dissents without opinion.


author: MILLS, Judge.

text:
    JONITA, INC., Appellant, v. Cecil O. LEWIS et al., Appellees.
    No. II-117.
    District Court of Appeal of Florida, First District.
    March 8, 1979.

      J. Klein Wigginton and William C. Owen of McClure, Wigginton & Owen, Tallahassee, for appellant.
    D. Michael Chesser of Selby & Chesser, Fort Walton Beach, for appellees.
   MILLS, Judge.

Lewis and Gillespie brought suit for declaratory judgment and affirmative relief against Jonita.

In Count One, Lewis alleged that he and his wife purchased a golf course lot in Lake Lorraine Estates from Jonita and, as a result of purchasing this lot, acquired by implication the unrestricted view and potential access to the undeveloped area surrounding the golf course. Lewis contended he was entitled to injunctive relief due to Jonita’s construction of a fence along its golf course property line to the rear of the Lewises’ lot.

In Count II, Lewis and Gillespie sought to have their rights determined with respect to a segment of roadway, known as Entrance Road, which had been closed by Joni-ta. They asserted that they obtained an easement by implication and that Jonita was estopped from denying them ingress and egress over the closed section of Entrance Road. They sought injunctive relief to require Jonita to open and make passable the section of Entrance Road which was closed. Jonita alleged that the disputed road section had been eroded and washed out by action of the Choctawhatchee Bay and that it was necessary to eliminate access to the road to protect the public from damages and to protect Jonita from liability-

At the conclusion of the trial, Lewis and Gillespie moved to conform all pleadings to the evidence presented. The motion was granted. The trial court entered final judgment granting an easement over the closed section of Entrance Road in favor of Lewis, Gillespie and other subdivision property owners and limiting the height and type of fence which Jonita could construct along the golf course property.

Jonita appealed.

The issues raised by this appeal are as follows:

1. Where subdivision purchasers acquire their property by deeds referring to a recorded plat and thereafter are afforded access to the property by dedicated public roadway as shown on the plat, do the purchasers acquire permanent easement rights over a segment of roadway not shown on the plat by virtue of reliance upon the developers general layout maps and material reflecting the existence of the roadway?

2. Whether the restrictions on the fence ordered and imposed by the trial court were justified?

Jonita is a family corporation with John W. Boyce as President. Jonita is the owner and principal developer of a residential development located east of the community of Shalimar called Lake Lorraine Estates. Jo-nita also owns the stock of a corporation known as Lake Lorraine Golf and Tennis Club, Inc. (the Club). The Club leases golf course property and grounds from Jonita.

The Road

On 21 November 1967, the plat to Lake Lorraine Estates, the original subdivision, was recorded in the public records. However, Lewis and Gillespie testified that they were given copies of a map when they visited Jonita’s office and indicated an interest in the property. A large copy of the map was located on a wall behind the secretary in Boyce’s office, the office from which all sales were made. The plat and the map indicate different entrances to the subdivision. The plat indicated the entrance to be by Country Club Road. The map indicated the entrance to be by Entrance Road.

Gillespie testified that at the time he purchased his property and later at the time he finished and moved into his house in November 1968, there was no practical access to his property by regular passenger vehicle other than the bay approach by Entrance Road. Lewis testified that at the time he moved into his house in December 1971, the only paved access to his property was over Entrance Road, the route by the bay.

Both witnesses testified that Country Club Road, at the north of the development, was later extended to the west and then south to the point where it connected with Entrance Road leading from Fourth Avenue. Gillespie testified that his first knowledge of any map showing plans for the extension of Country Club Road west and south was a newspaper ad appearing in October 1968.

Boyce testified that Entrance Road came about as a means of access to the country club, that he originally planned to build a commercial lodge in the area of the disputed road segment, and that the road was not constructed as a permanent road. Boyce also testified that the disputed road section was closed in June 1973 due to extreme erosion.

The segment of Entrance Road in question, the part traversing the area between the clubhouse and Choctawhatchee Bay, was not reflected on the recorded plat to Lake Lorraine Estates. Lewis and Gillespie contend that they purchased their lots relying upon the location of Entrance Road as shown on the map, therefore, they are entitled to an easement to this roadway.

Assuming the trial court found that Lewis and Gillespie relied upon the map as an inducement to purchase their properties, a lawful and proper basis for implying an easement has not been demonstrated. An easement can be created in only three ways: by express grant, by implication, or by prescription. The theory of this case is that certain easement rights arose by implication.

In McCorquodale v. Keyton, 63 So.2d 906 (Fla.1953), our Supreme Court upheld the right of subdivision property owners to enjoin the obstruction of an area labeled “Sunnyside Park” on a recorded plat. The question in the case at bar is whether the McCorquodale rule can be extended to create private easement rights based upon pictorial representations appearing in the developer’s advertising material and general layout maps but not referenced in the conveying instrument itself or in a recorded plat referred to in the conveying instrument.

In Owen v. Yount, 198 So.2d 360 (Fla. et sec. DCA 1967), the Court stated that an easement can be impressed only by specific written grant or reservation, by dedication and acceptance or by prescription, and cannot be impressed solely by conversation or by advertising and selling. In Brooks-Garrison Hotel Corp. v. Sarah Investment Company, 61 So.2d 913 (Fla.1953), the Court held that an implied easement did not result from an unfiled and unrecorded plat which reflected that a strip of land was dedicated to the public for a street. Thus, the traditional theory of an implied easement is not available to sustain the conclusion of the trial court.

Further, the appellees did not acquire an easement of necessity. A common law or statutory “way of necessity” may have existed in the developmental stages of the subdivision to afford access to subdivision purchasers along the bay, however, this right terminated upon completion of the Country Club Road extension which provided public road access to the lots in question. This is the underlying rationale suggested in Hanna v. Means, 319 So.2d 61 (Fla. 2d DCA 1975).

The Fence

Boyce testified that he determined to fence in portions of the golf course to combat vandalism and various other activities occurring on the golf course. He relayed his intention to construct a fence around the golf course over those portions where the property owners did not elect to place their own fences. Gillespie did not want a fence along his back property line but reluctantly put in his own fence rather than undergo the alternative of having the club place its fence along the property line. Lewis rejected the club’s alternative to put up his own fence at his own expense, and the club erected a five-foot chain link fence topped by one foot of barbed wire. After the six-foot fence was erected, other surrounding property owners began to construct their own four-foot fences. Lewis testified that he asked Boyce at the time of the purchase of his lot whether Boyce expected any fences to be constructed on the property line and Boyce indicated that he did not.

Boyce was asked by the Court whether a four-foot fence had proved adequate in areas where residences were and Boyce answered “Yes”. Gillespie and Lewis testified that no significant vandalism occurred at the golf course. Vast areas of the subdivision remained unimproved and completely accessible to people desiring to enter onto the golf course. Under these circumstances, the Court properly ordered Jonita to limit the height of its fences to four feet and the construction to chain link.

The final judgment appealed is reversed in part and affirmed in part.

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


text:
    Harvey B. ROBERTS, Appellant, v. D. H. BRIERTON et al., Appellee.
    No. KK-313.
    District Court of Appeal of Florida, First District.
    March 8, 1979.

      Harvey B. Roberts, in pro. per.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellees.
   PER CURIAM.

Roberts appeals from a summary denial of a petition for a writ of habeas corpus. We reverse and remand with instructions that the trial court issue an order to show cause to appellees.

The petition alleged that Roberts was denied due process of law in a disciplinary proceeding. Though he lists several grounds, the one we find to be meritorious under the circumstances of this case is that he was refused the opportunity to call witnesses in his own defense.

While we recognize that Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), does not require that an inmate be allowed to call witnesses on his own behalf, it does state that an inmate should be allowed to call witnesses “when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” There being no record developed in this case, there is no evidence or allegation by the state that the calling of the witnesses requested would have created such a hazard.

Furthermore, Rule 33-3.08(13)(i), F.A.C., provides:

“(i) The inmate or the Disciplinary Team may request material witnesses. The chairman will call those witnesses (staff or inmates) who are available and who are determined to be necessary for an appreciation of the circumstances. Repetitive witnesses will not be called. Unavailable witnesses may submit written statements. Witnesses will not be called if doing so would create a risk or reprisal or would undermine authority. The inmate witness must be willing to testify. An inmate witness may elect to offer an oral or written statement to the investigating officer in lieu of a personal appearance before the Disciplinary Team. The chairman should note in the report the reasons for declining to call requested witnesses.”

We reject appellees’ contention that since the charge was the inmate’s refusal to work, the only fact to be established was that he did or did not work. Surely appel-lees would not contend that an inmate who is physically incapacitated could be disciplined for refusal to report to work, yet the procedure suggested by appellees would provide the inmate no opportunity to present witnesses, medical personnel, for example, to prove he was incapacitated. The need for an inmate in this situation to be able to call witnesses to explain the circumstances of the alleged disciplinary violation is apparent.

We are not ruling that the trial court must issue a show cause order or grant an evidentiary hearing everytime an inmate makes a conclusory allegation that he was denied the opportunity to call witnesses in his own behalf. The facts of this case are compelling. This petition makes detailed factual allegations: it states that Roberts filed a written request before the hearing and made a verbal request at the hearing; it alleges that two of the witnesses he had requested had been “interviewed” before the hearing by staff and were not called for the hearing; and it names the witnesses he wanted to call, two of whom were medical personnel. There being no record, we do not know if witnesses were determined to be unnecessary or unavailable, if inmate witnesses elected to give statements in lieu of personal appearances, or if the chairman noted in the report the reasons for declining to call requested witnesses.

Under the circumstances of this case, we believe that the allegations in the petition are sufficient to require a response by ap-pellees. Accordingly, we reverse and remand with instructions that the trial court issue an order to show cause to appellees.

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


text:
    STATE of Florida, Appellant, v. Jonathan Chester HUGGINS, Appellee.
    No. KK-487.
    District Court of Appeal of Florida, First District.
    March 9, 1979.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellant.
    Robert Staats, Panama City, for appellee.
   MILLS, Judge.

The State appeals from an order granting Huggins’ motion to dismiss its information on the ground that the State did not respond with sufficient specificity. The State contends the trial court erred. We agree and reverse.

Although the State's traverse is not a model pleading; although there is no authority for the allegation, “has no knowledge”; nevertheless, the State did specifically deny under oath the material facts alleged in the unsworn motion to dismiss. Florida Rule of Criminal Procedure 3.190(d) provides that a motion to dismiss shall be denied if the State’s traverse with specificity denies under oath the material facts alleged in the motion.

However, the Court’s order dismissing the information is based on the State’s failure to respond with sufficient specificity. Apparently the court was of the opinion that the State was required to disclose in its traverse the ultimate facts upon which it would rely at trial in order to withstand the motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). This is contrary to our holding in Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977). We stated in Ellis that a proceeding pursuant to Rule 3.190 “is designed to create neither a trial by affidavit nor a dry run of a trial on the merits, nor is it supposed to serve as a ‘fishing expedition.’ ” As the Court stated in State v. Wood, 299 So.2d 111 (Fla. 4th DCA 1974), if a material fact in the motion is traversed by the State the information should not be dismissed.

The trial court could have and should have denied Huggins’ motion to dismiss for its failure to comply with Rule 3.190(c)(4). The motion was not sworn to by Huggins, did not allege that the material facts of the case were undisputed and did not demonstrate that undisputed facts failed to establish a prima facie case. We stated in Ellis v. State, supra:

“Initially, the defendant in his sworn motion must allege that the material facts of the case are undisputed, describe what the undisputed material facts are, and demonstrate that the undisputed facts fail to establish a prima facie case . . . Obviously, if the undisputed facts as alleged in the motion to dismiss do not meet such burden then any response from the State would be superfluous, and the motion may be summarily denied.”

The order appealed is reversed and this case is remanded to the trial court for trial.

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


text:
    STATE of Louisiana v. Kenneth Paul FONTENOT.
    No. 63018.
    Supreme Court of Louisiana.
    Feb. 7, 1979.
    Paul C. Tate, Jr., Tate, Tate & Tate, Mamou, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Kenneth Paul Fontenot was charged by bill of information with four counts of forgery, violations of La.R.S. 14:72. On March 29,1978, a six person jury found him guilty as charged on all counts. Thereafter, the trial court sentenced him to serve three years at hard labor on each count, with the sentences to run consecutively. Represented by new counsel, he now appeals on the ground that his court-appointed trial counsel represented him ineffectively.

The record before us does not provide an adequate basis for review of defendant’s complaint. We have repeatedly held that a claim of ineffective assistance of counsel is more properly raised by an application for a writ of habeas corpus in the district court, where a full evidentiary hearing may be conducted. See, State v. Collins, 350 So.2d 590 (La.1977); State v. Daniels, 346 So.2d 672 (La.1977); State v. Ross, 343 So.2d 722 (La.1977).

Accordingly, defendant’s conviction and sentence are affirmed.

MARCUS, J., not participating.


text:
    Judith LAWRENCE, wife of/and Edward L. Lawrence v. Wilburn C. MOORE et al.
    No. 63406.
    Supreme Court of Louisiana.
    March 7, 1979.
    Thomas A. Gennusa, II, New Orleans, for plaintiffs.
    C. Gordon Johnson, Jr., Porteous, Toleda-no, Hainkel & Johnson, New Orleans, for defendant.
   JOINT MOTION TO DISMISS APPEAL FROM 362 So.2d 803

On joint motion of Judith Lawrence, wife of/and Edward L. Lawrence, plaintiffs, appearing herein through undersigned counsel of record, and State Farm Fire & Casualty Company, defendant, appearing herein through undersigned counsel of record, and upon suggesting to this Court that the above matter has been fully settled and compromised; that movers desire that said appeal be dismissed, with prejudice, each party to bear its own costs of court;

IT IS ORDERED by this Court that the above numbered and entitled case be and the same is hereby dismissed, with prejudice, each party to bear its own costs of court.


text:
    INSURANCE COMPANY OF NORTH AMERICA and Gloria Latour, wife of/and Donald E. Lange v. SOLARI PARKING, INC., and U. S. Fidelity & Guaranty Co.
    No. 63238.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Alton TASSIN et al. v. C. A. RHYNES et al. (Malcolm Sayes).
    No. 63421.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re Alton Tassin, et al. applying for writ of certiorari, prohibition, mandamus and for a stay order, Third Circuit Court of Appeal. Parish of Avoyelles. 366 So.2d 580.

Writ denied.


text:
    Glenn C. ROARK and Curtis D. Roark v. Johnnie MAY et ux.
    No. 63610.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Johnnie May et ux. applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Catahoula. 367 So.2d 397.

Writ denied.


text:
    Joseph LYTELL v. STRICKLAND TRANSPORTATION CO., INC.
    No. 63795.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Enos VERDIN and Elizabeth Verdin v. The SOUTHCOAST CORPORATION and Aetna Life and Casualty Insurance Company.
    No. 63861.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Enos Verdin and Elizabeth Verdin applying for writ of certiorari, First Circuit Court of Appeal. Parish of Terrebonne. 366 So.2d 1001.

Writ denied. The defect complained of did not create an unreasonable risk of harm. The result is correct.

DIXON and DENNIS, JJ., would grant the writ.

BLANCHE, J., recused.


text:
    Roy J. LaFLEUR and Mary Lewis LaFleur v. CITY OF VILLE PLATTE. Dewey THIBODEAUX and Runnie Thibodeaux v. CITY OF VILLE PLATTE.
    No. 63837.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re City of Ville Platte applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Evangeline. 367 So.2d 121, 367 So.2d 126.

Writ denied.

SUMMERS, C. J., and BLANCHE, J., would grant the writ.


text:
    Michel J. HANKEL, Jr. v. HARTFORD FIRE INS. CO. and Roger P. Blitz, M. D.
    No. 63857.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Michel J. Hankel, Jr. applying for Writ of Certiorari, First Circuit Court of Appeal. Parish of St. Tammany. 363 So.2d 1188, 366 So.2d 1031.

Writ denied.

DIXON, J., would grant the writ.

BLANCHE, J., recused.


text:
    Frank V. MOISE, Jr. v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 63859.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re State of Louisiana applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 366 So.2d 1054.

Writ denied.


text:
    Michael F. BILLIOT v. SENTRY INSURANCE, a mutual company.
    No. 63830.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Sentry Insurance, a Mutual Company, applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of Lafourche. 366 So.2d 1017.

Writ denied.


text:
    STATE of Louisiana v. Nick BONNETTE.
    No. 64009.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Nick Bonnette applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Caddo.

Writ denied. Adequate remedy by appeal.


text:
    Frances RADOSTA, wife of and Stephen J. DeFelice v. Herbert J. GARON and Rufus M. Carimi.
    No. 64023.
    Supreme Court of Louisiana.
    Feb. 22, 1979.
   In re Herbert J. Garon and Rufus M. Carimi, applying for remedial writs and stay order. Orleans Parish.

Writ granted. Under the circumstances, trial judge abused discretion in not granting a suspensive appeal. Case remanded to District Court to grant a suspensive appeal and fix bond in accordance with law. Stay Order continued in effect through March 2nd, 1979, in order to allow relators to perfect a suspensive appeal. This order it not intended to delay the expedited hearing ordered by the Court of Appeal.


text:
    STATE of Louisiana v. Carl SANGER a/k/a James Wilson.
    No. 64026.
    Supreme Court of Louisiana.
    Feb. 22, 1979.
   In re Carl Sanger a/k/a James Wilson applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana v. Paul GALAVIZ.
    No. 64040.
    Supreme Court of Louisiana.
    Feb. 22, 1979.
   In re Paul Galaviz, applying for writs of certiorari, prohibition or mandamus. Parish of Calcasieu.

Writ denied. On the showing made, no abuse of discretion.


text:
    STATE of Louisiana v. David NELSON.
    No. 63707.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re David Nelson applying for writ of mandamus, Parish of Orleans.

Writ granted. Application transferred to Judge Frank Shea to act on this application and the application in Writ No. 63,594.


text:
    STATE of Louisiana v. David NELSON.
    No. 63594.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re David Nelson applying for remedial writs, Parish of Orleans.

Granted. Application transferred to Judge Frank Shea to act on this application and application in No. 63,707.


text:
    STATE of Louisiana ex rel. Thello BATTLE v. Charles R. LINDSAY, Judge, First Judicial District Court, Parish of Caddo, State of Louisiana.
    No. 63890.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Thello Battle, applying for writ of mandamus. Caddo Parish.

Granted. It is ordered that relator be furnished with copy of transcript of Boykin Examination.


text:
    SOUTHERN VENTURES CORP. v. TEXACO, INC.
    No. 63945.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Phillip Batiste PHILLIPS, a/k/a Phil Phillips, a/k/a Philip Batiste.
    No. 63941.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Walter C. Peters, Judge of the Thirty-First Judicial District, Court for the Parish of Jefferson Davis, to transmit to the Supreme Court of Louisiana, on or before the 9th day of March, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court on a date to be appointed by this court why the relief prayed for in the petition of the relator should not be granted.


text:
    James CORSEY v. The STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS, et al.
    No. 63931.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
    BLANCHE, J., recused.
   It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. James E. COPLEY.
    No. 63836.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Carl A. Guidry, Judge of the City Court of Baton Rouge, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 9th day of March, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Ivory CHOPIN, Jr.
    No. 63907.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Floyd W. Newlin, Judge of the Twenty-Fourth Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 9th day of March, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Danny L. CLARK.
    No. 63882.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Jerome M. Winsberg, Judge of the Criminal District, Court of the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 9th day of March, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be assigned by this Court why the relief prayed for in the petition of the relator should not be granted.


text:
    BENTON CASING SERVICE, INC. v. AVEMCO INSURANCE CO.
    No. 63946.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
    BLANCHE, J., recused.
   It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Glynn W. REYNOLDS v. Margaret S. REYNOLDS.
    No. 63936.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Loveless CHAISSON and Elvina Chaisson v. Ena Martin DOMINGUE et al.
    No. 63915.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. John L. McNEMAR, Jr.
    No. 63904.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re John L. McNemar, Jr., applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of East Baton Rouge.

Previously issued stay order set aside. Writ denied.


text:
    STATE of Louisiana v. Leonard D. POURCIAU.
    No. 63887.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Leonard D. Pourciau applying for supervisory writ of review. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Plutarcho HILL v. FIRST JUDICIAL DISTRICT COURT, CADDO PARISH, Louisiana, and State of Louisiana.
    No. 63919.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Plutarcho Hill, applying for writ of certiorari. Caddo Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Calvin DUMAS v. Frank BLACKBURN, Warden.
    No. 63959.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Calvin Dumas applying for remedial writ. Parish of Morehouse.

Granted; evidentiary hearing ordered to determine applicant’s mental capacity when he pleaded guilty.


text:
    STATE of Louisiana ex rel. Barbara PORTER STATE of Louisiana, CRIMINAL DISTRICT COURT, and Hon. Judge Charles Ward.
    No. 63668.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Barbara Porter applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Stanley Jules JOHNSON.
    No. 63884.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Stanley Jules Johnson applying for writ of habeas corpus. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana v. Alan B. McCABE.
    No. 63880.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Alan B. McCabe applying for supervisory writs and/or writs of certiorari and review. Parish of Caddo.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Gail M. MARTIN.
    No. 63898.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Gail M. Martin applying for writ of certiorari. Parish of Orleans.

Writ denied.

SUMMERS, C. J., and DIXON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Raymond PRIEUR v. Frank C. BLACKBURN, Warden.
    No. 63891.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Raymond Prieur applying for writ of habeas corpus. Parish of Lafourche.

Writ denied.


text:
    Lee Mack BROWN v. Archie ARMSTRONG.
    No. 63955.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Archie Armstrong, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides.

Not considered. Not timely filed.


text:
    CITY OF BATON ROUGE v. Samuel B. ROBINS, Jr.
    No. 63886.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Samuel B. Robins, Jr. applying for writ of certiorari. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Jeff H. DUPUIS et al.
    No. 63862.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Jeff Dupuis, et al. applying for writs of certiorari, mandamus, prohibition and stay order. Parish of St. Martin.

Writ denied. Adequate review in event of conviction.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Napoleon MOORE v. Frank C. BLACKBURN, Warden.
    No. 63921.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Napoleon Moore applying for writs of certiorari. Parish of East Baton Rouge.

Writ denied. Sec. 2 of Act 126 of 1973 retained the qualified verdict for relator’s trial.


text:
    STATE of Louisiana v. Michael ZEY.
    No. 63925.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Michael Zey applying for writs of certiorari. St. John the Baptist Parish.

Granted. The sentence imposed is vacated and the case is remanded to the trial judge for resentencing and compliance with Article 894.1, the Code of Criminal Procedure.


text:
    STATE of Louisiana ex rel. Robert CASTON v. Frank BLACKBURN, Warden.
    No. 63920.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Robert Caston applying for writ of habeas corpus and/or certiorari. Parish of Orleans.

Denied.

CALOGERO, J., would grant relator an out of time appeal.


text:
    STATE of Louisiana v. Charles FOBB.
    No. 63922.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Charles Fobb applying for writ of habeas corpus. Parish of Jefferson.

Writ denied.


text:
    Paul M. KOSBAB v. B. R. EUBANKS and the First Durham Corporation.
    No. 63930.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re B. R. Eubanks, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.


text:
    Doris O. DAVID v. Nelson A. BOURGEOIS, Jr.
    No. 63934.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Doris 0. David, applying for certio-rari, or writ of review to the Court of Appeal, First Circuit. Parish of Pointe Coupee.

Denied. The result is correct.


text:
    Warren A. MARKS v. GARBER BROTHERS, INC.
    No. 63944.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Warren A. Marks applying for writ of certiorari, First Circuit Court of Appeal. Parish of Terrebonne.

Writ denied.


text:
    Abraham THOMAS v. VANCOUVER PLYWOOD COMPANY, INC.
    No. 63950.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Vancouver Plywood Co., Inc., applying for certiorari, or writ of review to the Parish of Court, of Appeal, Third Circuit. Allen.

Denied.


text:
    Clamie Guillory GOLMAN et al. v. DIXIE AUTO INS. CO. et al.
    No. 63958.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Clamie Guillory Golman, et al. applying for writ of certiorari, First Circuit Court of Appeal. Parish of West Feliciana.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Charles FORT v. Frank C. BLACKBURN, Warden.
    No. 63960.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Charles Fort applying for writs of habeas corpus and certiorari. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Michael O. COOK v. Frank BLACKBURN, Warden.
    No. 63961.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Michael 0. Cook applying for writs of habeas corpus, certiorari, prohibition and mandamus. Lincoln Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Antonio MELENDEZ a/k/a John Kim v. Frank C. BLACKBURN, Warden.
    No. 63962.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Antonio Melendez a/k/a John Kim applying for writ of habeas corpus. Parish of Ouachita.

Writ denied.


text:
    STATE of Louisiana ex rel. Bennie J. HUDGENS v. STATE of Louisiana, 28TH JUDICIAL DISTRICT COURT, PARISH OF LaSALLE.
    No. 63889.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Bennie J. Hudgens, applying for writ of mandamus. Parish of LaSalle.

Writ granted. Evidentiary hearing ordered. The sentencing court is ordered to conduct an evidentiary hearing at which it should determine the date the charge for each of the six offenses for which relator was sentenced on April 5,1973 was brought. As to the sentence for each of the six offenses, relator is entitled to and must be granted credit for time spent in custody prior to imposition of sentence which is attributable, in whole or in part, to the charge. See Code of Criminal Procedure, Article 880; see also State ex rel. Johnson v. Henderson, 303 So.2d 741 (La.1973).

SUMMERS, C. J., would deny the writ.


text:
    DE LAUREAL ENGINEERS, INC. v. ST. CHARLES PARISH POLICE JURY.
    No. 63932.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re St. Charles Parish Police Jury applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of St. Charles. 367 So.2d 60.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana, DIVISION OF ADMINISTRATION COMPENSATION, PAYMENT AND CONTROL v. STATE of Louisiana, DEPARTMENT OF LABOR, OFFICE OF EMPLOYMENT SECURITY.
    No. 63860.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Office of Employment Security applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 367 So.2d 43.

Denied.

TATE and DIXON, JJ., would grant the writ.

BLANCHE, J., recused.


text:
    Beverly Griffin BAKER v. Jackson L. BEEBE, M. D., et al.
    No. 63929.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Beverly Griffin Baker applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 367 So.2d 102.

Writ denied.


text:
    Satoshia WAITE v. TOMENY RIVER ROAD ESTATES, INC., et al.
    No. 63933.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Tomeny River Road Estates, Inc., et al. applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of St. Charles. 367 So.2d 70.

Writ denied. The result is correct.


text:
    James Marvin BRASHER v. COMMERCIAL UNION INSURANCE COMPANY et al.
    No. 63953.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re James Marvin Brasher applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 367 So.2d 24.

Writ denied.


text:
    PASQUIER, BATSON & COMPANY v. Mildred Hunt EWING et al.
    No. 63927.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Mildred Hunt Ewing, et al. applying for writ of certiorari, Second Circuit Court of Appeal, No. 13,729. Parish of Caddo. 367 So.2d 28.

Denied.

SUMMERS, C. J., and DENNIS, J., would grant the writ.


text:
    Anna Mae Bower DUHON v. Kenneth DELCAMBRE, Department of Public Safety, Division of State Police, State of Louisiana, and Appalachian Insurance Company.
    No. 63923.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Anna Mae Bower Duhon, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Lafayette. 365 So.2d 516.

Writ denied.

DIXON and DENNIS, JJ., would grant the writ.


text:
    Clara YOUNG v. DEPARTMENT OF HOSPITALS.
    No. 63916.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Department of Hospitals applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Rapides. 365 So.2d 848.

Writ denied.

SUMMERS, C. J., and BLANCHE, J., would grant the writ.


text:
    Howard RATTLIFF v. DIAMOND CRYSTAL SALT CO. et al.
    No. 63914.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Howard Rattliff, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Martin. 365 So.2d 543.

Writ denied.


text:
    Michael STEVENSON v. Betty LE BLANC.
    No. 63909.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Michael Stevenson applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of St. Charles. 365 So.2d 865.

Writ denied.


text:
    Rich D. MERCHANT et al. v. Perrell FUSELIER et al.
    No. 63902.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Rich D. Merchant, et al. applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Allen. 365 So.2d 854.

Writ denied; the result is correct.


text:
    STATE of Louisiana v. Cary ANDERSON.
    No. 64039.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Cary Anderson applying for supervisory writs. Parish of East Baton Rouge.

Writ granted. Hearing is ordered on applicant’s motion to reduce bail.


text:
    Steven R. PLOTKIN v. Phillip MONTELEPRE.
    No. 64060.
    Supreme Court of Louisiana.
    Feb. 28, 1979.
   In re Steven R. Plotkin, applying for writ of certiorari, mandamus, prohibition and stay order. Orleans Parish.

Writ denied. The Court of Appeal did not err in setting aside the temporary restraining order issued by the trial judge.


text:
    STATE of Louisiana v. Virgil PUGH.
    No. 64055.
    Supreme Court of Louisiana.
    Feb. 28, 1979.
   In re Virgil Pugh applying for reduction of bail. Parish of Rapides.

Writ denied. There is insufficient showing to warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. O. C. THOMAS v. Alvin OSER, Judge, et al.
    No. 63753.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re O. C. Thomas applying for writ of habeas corpus. Parish of Orleans.

Writ granted. This application is transferred to the District Court for consideration and appropriate action.


text:
    STATE of Louisiana ex rel. Curtis GORDON v. Israel M. AUGUSTINE, Judge.
    No. 63970.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Curtis Gordon applying for writ of mandamus. Parish of Orleans.

Granted. It is ordered that a copy of the sanity report be sent to relator.


text:
    STATE of Louisiana ex rel. Louis Joseph BELLARD v. 14TH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, Louisiana.
    No. 63918.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Louis Joseph Bellard, applying for writ of mandamus. Calcasieu Parish.

Granted. If the sanity report has not been furnished to relator, it is ordered that a copy be furnished forthwith.


text:
    STATE of Louisiana v. William MASTERSON.
    No. 64051.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re William Masterson, applying for writs of certiorari, prohibition, mandamus and for a stay order. Caddo Parish.

Granted. Preliminary hearing ordered without further delay.

SUMMERS, C. J., dissents from the order.

TATE and DENNIS, JJ.,

The accused’s constitutional right to a preliminary examination fixed for hearing cannot be evaded by continuing the hearing in order to permit the grand jury time to indict an accused.


text:
    STATE of Louisiana ex rel. Wellington RATCLIFF v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 63742.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Wellington Ratcliff applying for writ of certiorari. Orleans Parish.

Relator’s motion to dismiss the application without prejudice is granted.


text:
    STATE of Louisiana v. Johnny M. ROSS.
    No. 63297.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Johnny M. Ross applying for supervisory writs. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. James WILSON v. CADDO PARISH SHERIFF’S DEPARTMENT.
    No. 63756.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re James Wilson applying for writ of habeas corpus. Parish of Caddo.

Writ denied.


text:
    Danny E. STUTTS et al. v. WHITTEMORE PLANTATION et al.
    No. 63943.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Danny E. Stutts, et al. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Tensas.

Writ denied.

SUMMERS, C. J., and DIXON and BLANCHE, JJ., would grant the writ.


text:
    John E. SMITH v. LOUISIANA BOARD OF REVIEW, OFFICE OF EMPLOYMENT SECURITY.
    No. 63963.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re John E. Smith applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Kenneth L. MOORE.
    No. 63966.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Kenneth L. Moore applying for writs of habeas corpus and certiorari. Parish of Orleans.

Writ denied. Applicant must first file in the district court.


text:
    STATE of Louisiana ex rel. Roger Dale YATES v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 63967.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Roger Dale Yates, applying for writ of habeas corpus and/or remedial writs of certiorari, mandamus, prohibition. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Larry Joe PHILLIPS v. Charles FOTI, Sheriff, Orleans Parish.
    No. 63968.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Larry Joe Phillips, applying for writ of habeas corpus. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 63972.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Larry Joe Phillips, applying for remedial writ. Orleans Parish.

Denied.


text:
    STATE of Louisiana v. Donald BENOIT.
    No. 63976.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Donald Benoit applying for writs of certiorari, prohibition, mandamus. Parish of Calcasieu.

Writ denied.


text:
    Henderson EAGLES v. RAPIDES PARISH SCHOOL BOARD.
    No. 63980.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Henderson Eagles applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Rapides.

Writ denied.


text:
    STATE of Louisiana v. Autry CAVALIER.
    No. 63989.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Autry Cavalier, applying for remedial writs. Parish of Iberville.

Writ denied. The result is correct.

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


text:
    William BRANNAN v. Glenn L. BABIN et al.
    No. 63994.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Stanley A. Lafague applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ denied.


text:
    Charles B. W. PALMER v. Walter WREN and Reliance Insurance Company.
    No. 63973.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Charles B. W. Palmer applying for writ of certiorari, First Circuit Court of Appeal. Parish of Tangipahoa. 366 So.2d. .960.

Writ denied.

TATE, DENNIS and BLANCHE, JJ., would grant the writ.


text:
    DYNAMIC EXPLORATION, INC., et al. v. SUGAR BOWL GAS CORPORATION.
    No. 63974.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Dynamic Exploration, Inc., et al. applying for writ of certiorari, First Circuit Court of Appeal. Parish of Terrebonne. 367 So.2d. 18.

Writ denied.

■ TATE, J., would grant the writ.


text:
    Harvard G. NELSON v. The STATE BOARD OF EDUCATION for the State of Louisiana, etc., et al.
    No. 63978.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Harvard G. Nelson applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 366 So.2d 948.

Writ denied.

DENNIS, J., would grant the writ.

BLANCHE, J., recused.


text:
    Dr. I. I. ROSEN v. Leonard E. YOKUM et al. c/w Dr. I. I. ROSEN v. Nancy Ann STOGNER et al.
    No. 63985.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Dr. I. I. Rosen, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. 366 So.2d 929.

Writ denied.

BLANCHE, J., recused.


text:
    Mrs. Gerald J. GEGENHEIMER, Individually, et al. v. CITY OF NEW ORLEANS et al.
    No. 63987.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Mrs. Gerald J. Gegenheimer, et al. applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 365 So.2d 911.

Writ denied.

TATE, J., would grant this application.

CALOGERO, J., recused.


text:
    Nancy N. STERN v. Frank B. WILLIAMS.
    No. 63995.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Frank B. Williams applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 365 So.2d 1128.

Writ denied.


text:
    CITY OF NEW ORLEANS et al. v. BOARD OF TRUSTEES OF the FIREFIGHTERS’ PENSION AND RELIEF FUND et al.
    No. 63996.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re City of New Orleans, et al. applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 365 So.2d 882.

Writ denied.


text:
    Andrew J. WARE v. Birdie Pankey WARE.
    No. 63997.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Birdie Pankey Ware applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 365 So.2d 842.

Writ denied.


text:
    LOUISIANA POWER & LIGHT COMPANY v. Vernon L. CALDWELL, Jr., et al.
    No. 64056.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Vernon L. Caldwell, Jr., et al., applying for remedial writs. Terrebonne Parish.

Writ denied. In view of the representation that the district court will dispose of the entire matter when set on March 27, 1979, the application is denied, reserving to relators any right to damages.


text:
    John THOMAS v. W & W CLARKLIFT, INC. and Reliance Insurance Company.
    No. 63986.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re W & W Clarklift, Inc. and Reliance Ins. Co. applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 365 So.2d 913.

Writ granted.

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


text:
    Gothlyn J. RECK v. Richard STEVENS.
    No. 63982.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Gothlyn J. Reck, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 365 So.2d 876.

Writ granted.

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


text:
    Wallace NATHAN, Jr., et al. v. Henry Zac CARTER et al.
    No. 63935.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Wallace Nathan, Jr., et al. applying for writ of certiorari, Fourth Circuit Court of Appeal. 367 So.2d 56.

Writ granted.

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


text:
    Samuel QUIETT v. ESTATE of James MOORE.
    No. 63993.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Lubertha Moore Mack and Lucille Moore Rogers applying for writ of certiora-ri, First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ granted.

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


text:
    STATE of Louisiana ex rel. Louis HOLDEN v. Charles FOTI, Jr., Sheriff, et al.
    No. 63752.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Louis Holden applying for writs of certiorari, prohibition, mandamus and habe-as corpus. Parish of Orleans.

Writ denied. Appeal pending. See La. Code Crim. Procedure 363.