author: KEHOE, Judge.

text:
    Sidney ADLER, Appellant, v. Ettamae ADLER, Appellee.
    Nos. 76-2186, 77-788 and 77-1572.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Buchbinder & Black and Melvin S. Black, Miami, for appellant.
    Dubbin, Schiff, Berkman & Dubbin and Evan Langbein, Miami, for appellee.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, respondent below, brings these consolidated appeals from the following judgment and orders entered by the trial court: (1) final judgment of dissolution of marriage, dated August 20, 1976; (2) order on respondent’s petition for rehearing and petitioner’s [appellee] request for attorney’s fees, dated November 4, 1976; (3) order of contempt and order on other pending motions, dated March 14, 1977; (4) order of contempt, dated June 14, 1977; (5) order granting attorney’s fees, dated June 20, 1977; and (6) amended order on wife’s [ap-pellee] motion to set aside fraudulent conveyance, June 23, 1977.

We have carefully reviewed each of appellant’s contentions in regard to items (1), (2), and (3), listed above, and find them to be without merit. See, e. g., Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Bosem v. Bosem, 279 So.2d 863 (Fla.1973); Firestone v. Firestone, 263 So.2d 223 (Fla.1972); Bowen v. Bowen, 347 So.2d 675 (Fla.3d DCA 1977); Goldin v. Goldin, 346 So.2d 107 (Fla.3d DCA 1977); Hazelwood v. Hazelwood, 345 So.2d 819 (Fla. 4th DCA 1977); Hawkesworth v. Hawkesworth, 345 So.2d 359 (Fla.3d DCA 1977); Long v. Long, 304 So.2d 483 (Fla. 1st DCA 1974); Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 1974); Gamse v. Gamse, 291 So.2d 620 (Fla.3d DCA 1974); and Lee v. Lee, 262 So.2d 6 (Fla. 4th DCA 1972).

However, in regard to item (4), listed above, the parties agree that the amount of the arrearages is $6,900 rather than $7,900. Further, in regard to items (4) and (5), listed above, our review of the record reflects that there was no testimony upon which the finding of contempt or the award of attorney’s fees could be predicated. Therefore, item (4) is reversed as to the finding of contempt and the amount of the arrearages set forth should be reduced to $6,900, and item (5) is reversed as to the award of attorney’s fees.

In regard to item (6), listed above, it is our opinion that the trial court properly gave appellee a lien against certain real property owned by appellant in order to secure the payment of alimony and child support as awarded by the court. Substantial arrearages existed at the time of the imposition of the lien under the final judgment of dissolution of marriage, as modified, and it was within the discretion of the trial court to secure payment in this manner. §§ 61.11 and 61.13, Fla.Stat. (1977).

Affirmed in part; reversed in part with directions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bertha WITHERSPOON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2238.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Holmes, 360 So.2d 380 (Fla., filed April 27, 1978) (petition for rehearing denied July 13, 1978).


text:
    CARBRELL CORP., Appellant, v. PHIL C. GALLAGHER ASSOCIATES, INC., Appellee.
    No. 77-1399.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.

      Parkhurst, LaHurd & Purdy and Arthur B. Parkhurst, Fort Lauderdale, for appellant.
    Sibley, Giblin, Levenson & Glaser and Irving B. Levenson, Miami Beach, for ap-pellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, appeals an order dated May 26,1977, entered by the trial court awarding appellee, defendant below, attorney’s fees. We reverse.

During the course of this action on a promissory note, appellee filed a motion to compel discovery. Thereafter, appellant filed a motion for a protective order. These matters came on for hearing before the trial court at which time it entered an order, on April 18, 1977, granting appellee’s motion and requiring appellant to produce all documents requested thereby within 15 days from the date of the order. Before the expiration of the 15 days, appellant filed a notice of voluntary dismissal pursuant to Rule 1.420, Florida Rules of Civil Procedure. Thereafter, appellee filed a motion to assess reasonable expenses, including attorney’s fees. Attached to the motion was an affidavit on attorney’s fees. Neither the motion nor the affidavit made any reference to any costs incurred by appellee in the litigation. Upon hearing the motion, the trial court entered the order appealed awarding appellee reasonable expenses, including attorney’s fees, of $750. Further, the trial court made payment of this amount a condition precedent to a refiling of the action.

The Supreme Court of Florida in Campbell v. Maze, 339 So.2d 202 (Fla.1976), has stated that costs taxable to a plaintiff (here appellant) do not include reasonable attorney’s fees. Rotondo v. Greene, 343 So.2d 671 (Fla.3d DCA 1977); and Granoff v. Cherin, 270 So.2d 430 (Fla.3d DCA 1972). See also Thibert v. Thibert, 106 So.2d 918 (Fla.3d DCA 1958). Further, because the dismissal occurred prior to the time that any sanctions were applicable under Rule 1.380, Florida Rules of Civil Procedure, attorney’s fees could not have been properly imposed under this Rule. Because the amount of the attorney’s fees awarded in the order appealed is indeterminable from any costs allowable pursuant to Rule 1.420, Florida Rules of Civil Procedure, the order must be reversed and the cause remanded for the court to assess any appropriate costs, excluding attorney’s fees.

Reversed and remanded with directions.


text:
    RON-LEE, INC., et al., Appellants, v. Roberto P. LARIOSA et ux., et al., Appellees.
    Nos. 77-1731, 77-1978.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Preddy, Kutner & Hardy and Howard K. Cherna, Miami, for appellants.
    Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appel-lees.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   KEHOE, Judge.

Appellant, defendant and third party plaintiff below, brings these consolidated appeals from orders dismissing its fourth amended complaint with prejudice against appellees, third party defendants below. We affirm.

We have carefully reviewed the appellant’s fourth amended complaint and have formed the opinion that the complaint does not set forth sufficient allegations to state a cause of action for indemnity or contribution against appellees. Because this opinion is consistent with the orders appealed entered by the trial court, the orders are affirmed. See Stuart v. Hertz, 351 So.2d 703 (Fla.1977); VTN Inc. v. Coastal Engineering Associates, 341 So.2d 226 (Fla. 2d DCA 1976); Armor Elevator Co., Inc., v. Elevator Sales & Service, Inc., 309 So.2d 44 (Fla. 3d DCA 1975); and Hutchings v. Harry, 242 So.2d 153 (Fla. 3d DCA 1970).

Affirmed.


text:
    O. H. OVERHOLSER and Nola Overholser, his wife, Appellants, v. WALSH & NOTTEBAUM and Harry J. Chadderton and Federal National Mortgage Association, Appellees.
    Nos. 77-2180, 77-2537.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Robert Rossano, Coral Gables, for appellants.
    Robert R. White, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Mr. and Mrs. Overholser appeal an order imposing a charging lien in favor of their attorneys upon the subject real property.

Appellants, Mr. and Mrs. Overholser, held mortgages on certain real property, and they retained appellees, Walsh, Notten-baum and Chadderton, as their attorneys to foreclose these mortgages. Subsequently, a summary final judgment was entered in favor of the Overholsers. The judgment provided that their attorneys were entitled to a reasonable fee of $2,500.00, directed that the property be sold at public sale from which the attorneys should be paid, and further provided that the Overholsers could bid at the sale and, if successful, would be entitled to a credit on their bid up to the amount of the judgment. The Overholsers purchased the property at the public sale. However, having only paid their attorneys $250 of the $2,500 fee, the attorneys filed a petition to enforce payment. The Overhol-sers also filed a motion for issuance of certificates of title because of the clerk’s refusal to issue them as a result of an order to that effect entered by the trial court arising out of the fee dispute. After hearing argument of counsel, the trial court entered the following herein appealed order on motion for issuance of certificate of title:

“THIS CAUSE came on for rehearing upon the motion of Plaintiff’s attorney, as attorney for Defendants; O. H. OV-ERHOLSER and NOLA OVERHOLSER, his wife, for issuance of Certificate of Title to Defendants, 0. H. OVERHOL-SER and NOLA OVERHOLSER, and the Clerk being advised in the premises, it is thereupon,
“ORDERED that the Order on Motion for Issuance of Certificate of Title dated the 23rd day of September 1977, be set aside and in lieu thereof it is further,
“ORDERED that said Certificate of Title issue after proof of payment by said defendants of the amount remaining due to their attorneys WALSH & NOTTEB-AUM and HARRY J. CHADDERTON, in the amount of $2,250.00, and it is further,
“ORDERED that the foregoing attorneys’ fee constitutes a charging lien upon the real property involved herein and in the event said lien be not satisfied within ten (10) days, it may be enforced by further appropriate proceedings in this action.”

Subsequently, a summary final judgment was entered on November 3, 1973 directing that the Overholsers pay the charging lien within three days or the property was to be sold at public sale. The Overholsers appealed this judgment and the appeals were consolidated.

The established law is that in the absence of statutory authority or an express contract or an implied agreement arising out of special equitable circumstances, an attorney is not entitled to the imposition of a charging lien on the real estate of his client. Billingham v. Thiele, 109 So.2d 763 (Fla.1959). In light of this principle of law, we reverse the summary final judgment and the last portion of the order on motion for issuance of certificate of title imposing a charging lien upon the real property involved herein. In all other respects the order is affirmed.

Affirmed in part, reversed in part.


text:
    Homer VIERS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2194.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Bennett H. Brummer, Public Defender, and Kurt L. Marmar, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

By this appeal, we are called upon to rule upon the propriety of a lifetime sentence for attempted first degree murder. This sentence is in excess of that provided by the statutes. See: Sections 777.04(4)(a) and 775.082(3)(b), Florida Statutes (1977).

Therefore, the sentence be and the same is hereby set aside. In all other respects, the adjudications and sentence on the second degree murder conviction are affirmed. The matter is returned to the trial court for an appropriate sentence on the conviction for attempted first degree murder.

Affirmed in part; reversed in part, with directions.


text:
    Franklin Delano MAJOR, Appellant, v. The STATE of Florida, Appellee.
    No. 78-315.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Weiner, Robbins & Tunkey, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Affirmed. See: Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971).


text:
    Joey JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1414.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Joey Jones, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, BARKDULL and KE-HOE, 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.


author: ANSTEAD, Judge. CROSS, Judge,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner-Appellant, v. Floyd Dale KILBREATH et al., Respondents-Appellees.
    Nos. 76-1438 and 76-1450.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1978.
    Rehearing Denied Oct. 23, 1978.
    Thomas G. Kane and James O. Driscoll of Driscoll, Baugh, Langston, Layton & Kane, Orlando, for petitioner-appellant.
    William H. Roundtree, Cocoa, for respondents-appellees Kilbreath.
   ON REHEARING GRANTED

ANSTEAD, Judge.

Our opinion of March 14, 1978 is hereby withdrawn. Upon reconsideration this court is of the opinion that the final judgment of the trial court should be reversed.

The Kilbreaths, father and son, instituted the present action to collect personal injury protection benefits from multiple insurance policies, after the younger Kilbreath was injured in an automobile accident in 1972. At the time, Mr. Kilbreath, the father, had four separate policies of automobile insurance with State Farm, each of which pro-, vided personal injury protection benefits. The trial court granted a summary judgment in favor of the Kilbreaths holding that State Farm was responsible for $5,000.00 on each policy for a total of $20,-000.00 of coverage.

The policies of insurance involved herein specifically provided for a $5,000.00 cap per person for personal injury protection benefits regardless of the number of persons or vehicles insured or policies involved.

Section 627.736, Florida Statutes (1971) provides for a limitation of $5,000.00 on personal injury protection benefits, notwithstanding the number of automobiles insured or policies issued. Travelers Indemnity Company v. Wolfson, 348 So.2d 661 (Fla.3d DCA 1977); Chappelear v. Allstate Insurance Company, 347 So.2d 477 (Fla.1st DCA 1977); State Farm Mutual Automobile Insurance Company v. Castaneda, 339 So.2d 679 (Fla.3d DCA 1976).

Rule 4-27.06 was promulgated by the Florida Department of Insurance pursuant to the mandate contained in § 627.-741(1), Florida Statutes (1971) and provides:

4r-27.06 Extent of insurer’s liability. As to the extent of an insurer’s liability as referred to in Sections 7(1), 8(1) and 8(2) of Chapter 71-252, Laws of Florida, an insurer liable to pay Personal Injury Protection Benefits under two or more policies to any one person shall be subject to a maximum as specified in Subsection 1 of Section 7 and tort exemption shall likewise be subject to a maximum as specified in Section 8.

Although not controlling, the construction placed on a statute by an administrative body charged with the responsibility for its enforcement is entitled to great weight. United States Gypsum Co. v. Green, 110 So.2d 409 (Fla.1959); State v. Massachusetts Company, 95 So.2d 902 (Fla.1956).

In our opinion, the legislation, the policy provisions and the regulations are all unambiguous in limiting the personal injury protection benefits involved herein to $5,000.00. Accordingly, the judgment of the trial court is reversed with directions for further proceedings in accordance with this opinion. This court’s order of March 7, 1978 granting the motion for attorney’s fees filed by appellees is hereby withdrawn and the motion for attorney’s fees is denied.

DAUKSCH, J., concurs.

CROSS, J., concurs specially, with opinion.

CROSS, Judge,

concurring specially:

On the points raised on appeal by the briefs and oral argument of counsel for the respective parties, I must concur in the majority opinion.

However, in my mind substantive constitutional questions are posed by a formulation of law that requires the citizens of this state to purchase multiple policies of personal injury protection (P.I.P.) insurance on which they are then forbidden to collect.


author: McCORD, Chief Judge.

text:
    John MADDEN, Appellant, v. FLORALA TELEPHONE COMPANY, Appellee.
    No. GG-235.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1978.

      James E. Moore of Moore & Anchors, Niceville, for appellant.
    C. LeDon Anchors of Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellee.
   McCORD, Chief Judge.

This is an appeal from a judgment permanently enjoining appellant, John Madden, from interfering with appellee, Florala Telephone Company, in its construction of telephone lines and equipment within the right-of-way area of a certain road in Sections 32 and 33, Township 5 North, Range 23 West, Okaloosa County, Florida. We affirm.

Appellee brought this suit for injunction against appellant alleging that appellant had interfered with appellee’s construction and installation of telephone lines in certain areas of Okaloosa County. Appellant is the owner of certain lands bordering the telephone construction and contends he is the owner of the lands over which the construction is being done by appellee.

The Board of County Commissioners of Okaloosa County gave appellee authority to construct and maintain utility lines and equipment on county maintained roads including the area here in question. This suit arose over appellee’s attempt to replace aerial telephone wires with underground cables along a road which traverses appellant’s lands. Appellant interfered with the construction claiming that the county did not own the land on which the cables were to be installed; that the land was owned by him and was thus being taken by appellee without just compensation. At the final hearing, appellee produced a map of the area in question which had been filed with the Clerk of the Court (but had not been recorded) and which purported to show compliance with the requirements of § 95.361, Florida Statutes (1975), which provides in pertinent part as follows:

“(1) When a road, constructed by a county, a municipality, or the Division of Road Operations, has been maintained or repaired continuously and uninterruptedly for 4 years by the county, municipality, or Division of Road Operations, jointly or severally, the road shall be deemed to be dedicated to the public to the extent in width that has been actually maintained for the prescribed period, whether the road has been formally established as a public highway or not. The dedication shall vest all right, title, easement, and appurtenances in and to the road in:
(a) The county, if it is a county road;
(b) * * *
(c) * * *
whether there is a record'of a conveyance, dedication, or appropriation to the public use or not.
(2) The filing of a map in the office of the clerk of the circuit court of the county where the road is located showing the lands and reciting on it that the road has vested in the state, a county, or a municipality in accordance with subsection (1) or by any other means of acquisition, duly certified by:
(a) * * *
(b) The chairman and clerk of the board of county commissioners of the county, if the road is a county road; or
(c) * * *
shall be prima facie evidence of ownership of the land by the state, county, or municipality, as the case may be.”

The County Commission’s Minute Book shows that the Board of Commissioners adopted the map and evidence was presented in the trial below that the county had maintained the road for more than four years.

§ 362.01, Florida Statutes (1975), provides as follows:

“Any telegraph or telephone company chartered by this or another state, or any individual operating or desiring to operate a telegraph or telephone line, or lines, in this state, may erect posts, wires and other fixtures for telegraph or telephone purposes on or beside any public road or highway; provided, however, that the same shall not be set so as to obstruct or interfere with the common uses of said roads or highways. Permission to occupy the streets of an incorporated city or town must first be obtained from the city or town council.”

The trial court granted the injunction as aforesaid finding that § 95.361(2), Florida Statutes (1975), does not require the recording of the questioned map in the office of the Clerk of the Circuit Court but contemplates instead the filing of a map; that dedication of the public way may be proven by § 95.361(2), Florida Statutes (1975), or by complying with the provisions of § 95.361(1). The trial court further found that although no survey or map was introduced showing the width of the roads at every point, it found from the evidence that the right-of-way area varies from a minimum of 23 feet to a maximum of 36 feet. The map which was filed in the Office of the Clerk of the Circuit Court pursuant to § 95.361(2) was an Okaloosa County general map which does not show the boundaries of the road in question. The trial court found that the road in question had been dedicated under the foregoing statute. There is competent substantial evidence to support such finding.

Appellant further contends that if the county has acquired any rights under § 95.361, its rights are only to a road easement, and it has not acquired fee title to the land. We disagree. § 95.361(1) provides:

“The dedication shall vest all right, title, easement and appurtenances in . . ”
(Emphasis supplied.)

Had the legislature intended only an easement, it would not have used the above all-inclusive language. In support of its contention, appellant cites State v. Jacksonville Expressway Authority, 139 So.2d 135 (Fla.1962). There, however, the court was construing a condemnation statute, and it held that the condemning authority should be limited to taking only such property as it needed for the public use involved. The court there further stated:

“In the absence of an expressed statutory requirement, a condemning authority may exercise its discretion as to the quality and quantum of estate needed to meet the needs of the public purpose involved. When, however, the Legislature stipulates the extent of the interest in land which must be acquired, then both the condemnor and this Court are bound to recognize the legislative prescription." (Emphasis supplied.)

While the statute here is not a condemnation statute, the legislature has stated the quantum of estate which shall vest under its provisions — “all right, title, easement, and appurtenances” (emphasis supplied). This clearly means fee simple title. Having acquired fee simple title to the road, the county had full authority to permit appellee to construct its telephone lines within the confines thereof.

It is not clear from the record whether appellee seeks to lay its line under the area actually maintained by the county for the requisite period or whether it seeks (where the maintained area varies in width) to place its line beside the maintained area. Neither the county nor any other person or corporation claiming under the county has any rights beyond the boundary of such road which has been actually maintained.

We affirm based upon the record before us but remand for such further proceedings as may be appropriate should appellant contend that the telephone lines and equipment do not lie entirely within the boundary of the road.

BOYER, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Robert L. SHIRMON, Appellant, v. STATE of Florida, Appellee.
    No. HH-228.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1978.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant was convicted for the offenses of burglary and attempted grand larceny. The convictions are affirmed. However, the judgment and sentence form, although adjudicating appellant guilty of each offense, fails to reflect a pronouncement of sentence for the offense of attempted grand larceny. This is improper. Helton v. State, 106 So.2d 79 (Fla.1958); Bateh v. State, 101 So.2d 869 (Fla. 1st D.C.A. 1958), cert. disch. 110 So.2d 7 (Fla.1959); Slay v. State, 347 So.2d 730 (Fla. 1st D.C.A. 1977). Accordingly, the judgment and sentence are reversed and the cause remanded for the imposition of a proper sentence.

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


author: BOYER, Judge.

text:
    H. D. MANUCY, Jr., and Cheryl Manucy, his wife, and Cheryl Manucy, Individually, Appellants, v. Carl MANUCY and Candy Manucy, his wife, and South Carolina Insurance Company, Appellees.
    No. JJ-201.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1978.

      Jill Brown and Robert Perry of Miller, Perry & Brown, Palatka, for appellants.
    John J. Schickel, of Cowles, Coker & Myers, Jacksonville, for appellees.
   BOYER, Judge.

Appellants seek on this appeal the reversal of a summary judgment entered against them on their complaint against appellees for dogbite injuries received by appellant-husband. After a complete review of the pleadings, depositions and affidavits in the record, we agree that summary judgment was improper and reverse.

The controlling principles relating to summary judgment, enunciated by this court in Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975), cert. dism., 336 So.2d 105 (Fla.1976), and numerous subsequent cases, are essentially that summary judgment proceedings may not be used as a substitute for trial, that a summary judgment proceeding is not a trial by affidavit or deposition, that a trial court in ruling on a motion for summary judgment may not resolve controverted issues of fact, that the burden is upon the party moving for summary judgment to establish that there is no material fact and that he is entitled to a judgment as a matter of law, and importantly, that a summary judgment may be granted only in cases where there is no issue of material fact. See, e. g., Forrest v. Carter, 308 So.2d 141 (Fla. 1st DCA 1975); Norman v. Bank of Hawthorne, 321 So.2d 112 (Fla. 1st DCA 1975); Burlingham v. Allen, 317 So.2d 781 (Fla. 1st DCA 1975). In addition, every reasonable inference must be drawn in favor of the party against whom the motion is made. Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977).

The facts here reveal that appellant H. D. (Tommy) Manucy was working at a construction site near the residence of the ap-pellees when he received a message from appellee-wife to stop by the house on his way home from work. He later did so, and just as he stepped into the appellees’ yard, two pit-bull dogs came out of the yard toward him and began barking and nipping at his pants. He retreated into the street and appellee-wife’s son came out of the house and called the dogs away from him. Appellant then started back toward the house and was attacked and severely bitten by the male dog. Appellant stabbed the dog in self-defense. Appellant was taken to the hospital and the dog was taken to the veterinarian.

Appellants sued appellees in two counts, claiming first that they were strictly liable as dogowners under Section 767.04, Florida Statutes (1977), and second that they were liable under the common law for allowing dangerous animals to occupy their property. Depositions were taken and affidavits were filed. The issue on count one was simply whether appellees were the owners of the dog. On count two, the issue was whether appellees negligently allowed animals of known vicious tendencies to remain on their premises.

Our review of the record reveals conflicting evidence on both points. Although there was substantial evidence that appel-lee-wife’s son, Larry Masters, was the owner of the dog, there was also admissible evidence to the contrary. The veterinarian’s receptionist testified on deposition that appellee-wife had called on the day of the incident and stated, “I have a dog named Diablo that is bleeding badly and we need medical treatment right away.” In addition, the veterinarian’s deposition stated that appellee-wife had told him “that she had raised the dogs on her premises since they were puppies.” Other deposition and affidavit evidence demonstrated that the dogs were seen frequently at appellee’s residence. In short, there was a “genuine issue of material fact” as to the ownership of the dog which should not have been taken away from the jury.

There was also conflicting evidence on the “landowner’s liability” count. Appel-lees denied that the attack took place on their property and denied any knowledge of vicious tendencies in the dogs. However, Tommy Manucy stated in his deposition that he was in appellees’ yard when the attack commenced, and several of appellees’ neighbors submitted affidavits stating that other dogbiting incidents had occurred before the one involved here. One affidavit asserted that appellee-wife’s son had admitted a previous dogbiting incident, although he stated at his deposition that he did not know of any vicious propensities in the dogs. One affiant stated that appellees’ 13-year old daughter had told her the dog had bitten another person before this incident. Another affiant stated that he himself had been bitten by the dogs in the presence of Larry Masters’ girlfriend/roommate, Diane.

We believe the inferences created by the affidavits on this point sufficed to create a jury issue. Furthermore, our decision in O’Steen v. Kemmerer, 344 So.2d 313 (Fla. 1st DCA 1977), does not preclude liability at this point in view of the conflicting evidence on whether the dogbite occurred on or off the appellees’ property.

Therefore, applying the above-cited principles of summary judgment, we are of the view that appellees failed to meet their burden of conclusively showing the absence of any genuine issue of material fact. Accordingly, we reverse the summary judgment on both counts and remand for further proceedings.

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


text:
    SILICONE COATING SYSTEMS, a division of General Electric Company, and General Electric Company, Petitioners, v. VOLUSIA JAI ALAI, INC., Individually and f/u/b/o Travelers Insurance Company, Respondent.
    No. KK-198.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1978.
    Goble D. Dean of Dean, Ringers, Morgan & Lawton, Orlando, for petitioners.
    Frank M. Palmour of Gurney, Gurney & Handley, Orlando, Donald L. Gattis, Mait-land, Eli H. Subin, Ronald M. Owen, Orlando, for respondent.
   PER CURIAM.

Petitioners, by petition for writ of common law certiorari, seek review of an interlocutory order of the trial court refusing to grant a motion to dismiss on the grounds that the parties were litigating the identical issues in a pending federal case. Respondent heretofore moved for dismissal on jurisdictional grounds, but because of the complexity of the facts and issues involved we delayed ruling on that motion until hearing oral argument on the merits. The parties correctly concede that the order sought to be reviewed is not one subject to interlocutory appeal. Upon consideration we do not find that the learned trial judge departed from the essential requirements of law, therefore, common law certiorari is inappropriate. Finding as we do, that we are without jurisdiction, the petition for writ of common law certiorari is dismissed.

IT IS SO ORDERED.

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


author: MELVIN, Judge.

text:
    STATE of Florida, Appellant, v. Clarence Parmlee FELDMAN, Appellee.
    No. JJ-426.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1978.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellant.
    Robert G. Kerrigan of Kerrigan, Estess & Rankin, Pensacola, for appellee.
   MELVIN, Judge.

The State appeals from.the final order of the trial court dismissing an information charging the appellee-defendant with manslaughter by intoxication and manslaughter by culpable negligence, in connection with the defendant’s operation of his automobile while in an intoxicated condition. The information charging manslaughter was filed February 17, 1978, in the Circuit Court of Escambia County, Florida. The defendant had been previously charged in the County Court of Escambia County, Florida, with the offense of driving an automobile while intoxicated, and the traffic infraction of running a red light at a traffic intersection. On December 27, 1977, the defendant entered his plea of guilty to those charges in the County Court and was, thereupon, adjudged to be guilty.

The defendant moved to dismiss the information charging manslaughter based upon the provisions of Fla.R.Crim.P. 3.151(c). The trial court agreed that the provisions of subsection (c) of said rule was applicable and entered its order dismissing the information. Fla.R.Crim.P. 3.151 provides:

“(a) For purposes of these Rules, two or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on two or more connected acts or transactions.
* * * * * *
“(c) When a defendant has been tried on a charge of one of two or more related offenses, the charge of every other related offense shall be dismissed on the defendant’s motion unless a motion by such defendant for consolidation of such charges has been previously denied, or unless such defendant has waived his right to consolidation, or unless the prosecution has been unable, by due diligence, to obtain sufficient evidence to warrant charging such other offense or offenses. “(d) A defendant may plead guilty or nolo contendere to a charge of one offense on condition that other charges or related offenses be dismissed or that no charges of other related offenses be instituted. Should the court find that such condition cannot be fulfilled, the plea shall be considered withdrawn.” (Emphasis supplied)

Appellee is correct in his contention that operating an automobile while intoxicated, manslaughter by intoxication and manslaughter by culpable negligence, all resulting in an automobile accident, are related offenses. Such charges all grew out of one transaction or series of events, and they could each have been included in one information, filed and tried in the Circuit Court of Escambia County, Florida. The fact that the State elected to file the driving while intoxicated charge in the County Court of Escambia County, Florida, and that the defendant, without negotiation with the State, elected to enter his plea to such charge does not position the defendant to claim the benefit of the provisions of subsection (c) which comes into operation only when a defendant has actually gone to trial upon a related offense. We hold, therefore, that subsection (d) applies to the issue before the court. The defendant did not comply with the conditions of subsection (d) in that he did not negotiate with the State for the dismissal, or the non-filing on related offenses.

At the time the trial court entered its ruling, it did not have the benefit of the decision in State v. Harris, 357 So.2d 758 (Fla. 4th DCA 1978), dealing with this same issue. This opinion was filed some six days after the trial court had entered the judgment that is now before this court. We here reach the same conclusions as did the Fourth District Court in State v. Harris. No constitutional issue has been presented or considered in reaching our conclusion.

The Order appealed from is REVERSED and the cause is remanded with directions to reinstate the information and for further proceedings.

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

      . § 26.012(2)(d), Fla.Stat. (1977).


text:
    B. M. V., a child, Appellant, v. The STATE of Florida, Appellee.
    No. 78-171.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1978.
    John H. Keane, Public Defender and Leonard J. Cooperman, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

The appellant, a fifteen-year old boy, was charged in a petition for delinquency with burglary of an unoccupied dwelling. He was adjudicated delinquent and committed to the Division of Youth Services for an indeterminate period, not to exceed his twenty-first birthday.

The record shows that the juvenile was taken to the Monroe County Sheriffs Department, Key Vaca Substation. There, appellant signed his name to an instrument labeled “Interrogation; Advice of Rights.” This instrument, the execution of which was witnessed by appellant’s father and a police Lieutenant Roth, purported to waive appellant’s constitutional rights to silence and an attorney. Subsequent to the execution of the waiver of rights, appellant was interrogated at the police station by officers of both the Monroe County Sheriffs Department and the Division of Youth Services. A transcript of the interrogation was made in which there does not appear any indication that appellant knowingly, voluntarily, and intelligently waived those rights which he purportedly waived by the execution of the “Advice of Rights” form. The youth was ordered detained in the Monroe County Regional Detention Center on December 8, 1977, pending an adjudicatory hearing in the case. The following day, on December 9, 1977, a petition alleging the delinquent acts of burglary and grand larceny was filed with the court.

Subsequently, appellant, through his attorney, demanded discovery from the state pursuant to Fla.R.Juv.P. 8.070. Upon learning of the existence of the statements, appellant filed a motion to suppress pursuant to Fla.R.Juv.P. 8.130(b)(3). A hearing was held on the motion immediately prior to the adjudicatory hearing on December 28, 1977. Upon hearing testimony and argument in the matter, the court denied the motion to suppress without stating its reasons therefor, nor issuing a written order of denial. The statements were admitted into evidence against appellant at the adjudicatory hearing. At the conclusion of the hearing, appellant was adjudicated delinquent as to each charge in the petition, and was committed to the Division of Youth Services. He now appeals the order of adjudication and disposition.

One of appellant’s points on appeal is that the trial court erred when it admitted into evidence the confession of appellant prior to it being proved that the statement was made voluntarily, with knowledge of the consequences thereof. We find merit in appellant’s point as the record does not reflect that the confession was made voluntarily.

Therefore, in order to dispose of the issue of the court’s making an unequivocal and explicit finding of voluntariness, this court will relinquish jurisdiction and remand the cause to the trial judge to consider and rule on the voluntariness of appellant’s confession, with or without oral argument as the judge shall choose. Promptly, after an order is made on the issue of voluntariness, counsel for the juvenile shall file in this court a certified copy of such order. Further proceedings shall be taken by this court on this appeal as indicated or required by the juvenile court’s order making an explicit finding of the voluntariness of appellant’s confession. See B. M. v. State, 337 So.2d 423 (Fla. 3d DCA 1976); and Husk v. State, 305 So.2d 19 (Fla. 1st DCA 1974).

It is so ordered.


author: HOBSON, Judge.

text:
    Catherine MALOY, Appellant, v. Michael W. MALOY, Appellee.
    No. 77-1597.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 1978.
    Stephen C. Booth of Richmond & Booth, New Port Richey, for appellant.
    H. James Parker of Delzer, Edwards, Coulter & Parker, Port Richey, for appellee.

      . Although the cases cited deal with post-nuptial separation agreements, we feel the logic applies to antenuptial agreements as well under the circumstances of the instant case.

   HOBSON, Judge.

Appellant, Catherine Maloy, appeals that portion of the final judgment dissolving her marriage to Michael W. Maloy which denied specific performance of the parties’ ante-nuptial agreement. She argues that the trial court erred in basing its denial on her misconduct. We agree and reverse that portion of the order which denied appellant the $5,000 she seeks.

The parties were married on September 6, 1975. Prior to the marriage, the parties entered into an antenuptial agreement providing, inter alia, that both parties waived any right to alimony from the other, and in consideration for appellant’s waiver, appel-lee would pay her $5,000 within 90 days of the institution of a divorce action. They separated in early May, 1977. Appellant filed her petition for dissolution on May 31, 1977, incorporating the antenuptial agreement by reference and seeking a $5,000 judgment in accordance with its terms. Appellee filed a Demand for Admissions stating, “Please admit or deny that between September 6, 1975 and the date of answering these Demands for Admissions, that you have committed adultery with an adult male other than Michael Maloy.” In her response filed August 30,1977 (the morning of the hearing), appellant answered, “The Petitioner admits that sometime after September 6, 1975, she committed adultery.” At the hearing, appellant further admitted that another man had spent the night in her apartment the night before. There is nothing in the record to indicate whether or not the adultery occurred after appellant’s separation from appellee or if it was the same instance admitted at the hearing.

Neither party challenges the validity of the agreement itself.

While it is true that Section 61.14, Florida Statutes (1975) permits judicial modification of agreements concerning alimony, this statute is inapplicable here. The parties’ agreement provided for her waiver of alimony. The trial court erred in interpreting this provision as, in effect, a provision for alimony. See Underwood v. Underwood, 64 So.2d 281 (Fla.1953).

As to the effect of appellant’s misconduct on the validity of the antenuptial agreement, we look to the intent of the parties at the time of execution. The parties executed an agreement which specifically provided for the possibility of a future dissolution. Obviously, some misconduct on the part of one or both of the parties was a factual possibility contemplated at that time. Appellee argues that appellant’s misconduct constituted a breach of the marital covenants sufficient to destroy the underlying consideration for the antenuptial agreement. If this were the case, antenuptial agreements providing for the contingency of future dissolution would fail when the contingency materialized. It is difficult to imagine circumstances which would provide the impetus for a dissolution where there was absolutely no breach of the duties and obligations of the marital covenants by either party. Appellee’s theory would undermine the very purpose of the dissolution provision of this agreement. If he had intended for appellant’s subsequent misconduct to extinguish the mutual promises in the agreement, he should have made this requirement clear in the agreement. We will not supply that limitation for him. See Walter v. Walter, 37 Del.Ch. 35, 136 A.2d 202 (1957); Gutman v. Gutman, 51 A.D.2d 535, 377 N.Y.S.2d 641 (1976); Wilson v. Atwood, 63 App.D.C. 80, 69 F.2d 398 (1934); 30 C.J. 1065 (authorities collected). The record in this case does not reveal that degree of gross marital misconduct which could be considered to have been beyond the contemplation of the parties at the time they entered into the agreement. Further, the record does not show nor does appellee allege fraud on the part of appellant which, if proved, could provide a basis for invalidating the agreement.

Therefore, that portion of the final judgment denying appellant the $5,000 provided for in the antenuptial agreement is vacated and the cause remanded with instructions to amend the final judgment to include an award to appellant of $5,000 in accordance with the terms of the antenuptial agreement.

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


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Robert J. PASTOR, Respondent.
    No. 60161.
    Supreme Court of Louisiana.
    June 9, 1978.
   ORDER

The * * * Petition [for suspension on consent], the premises, and the law considered:

IT IS ORDERED, ADJUDGED, AND DECREED

That ROBERT J. PASTOR is by his consent suspended from the practice of law, and his name stricken from the Roll of Attorneys authorized to practice law for the period of two (2) years.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED

That reinstatement of Respondent will not be automatic but Respondent may apply for reinstatement after the lapse of said two (2) year period; and that such application shall be granted by this Court, after due proceedings, upon a clear showing by Respondent that he is emotionally and morally able to resume the practice of law. Absent reinstatement by this Court, Respondent understands his suspension to practice law shall continue in effect.

New Orleans, Louisiana, this 29th day of June, 1978.


author: CALOGERO, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Brent A. TURNIPSEED.
    No. 61881.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      Athena B. Piedrahita, Baton Rouge, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Ralph E. Tyson, Asst. Attys. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-relator.
   CALOGERO, Justice.

Brent A. Turnipseed was charged by bill of information with possession of marijuana, a violation of R.S. 40:966. The marijuana found in his possession was seized in the execution of a search warrant issued upon the affidavit of an East Baton Rouge Sheriff’s deputy relating information secured from an unnamed informant. In a motion to suppress the evidence seized, Turnipseed challenged the sufficiency of the affidavit which formed the basis for the issuance of the search warrant. After a hearing on the motion the district judge ordered suppression of the evidence. On application of the state, this Court granted writs to review the ruling. State v. Turnipseed, 356 So.2d 1388 (La.1978).

The only issue presented for the Court’s determination is whether the affidavit sufficiently sets forth underlying facts and circumstances from which the magistrate might determine both the credibility of the informant and the information he is alleged to have related. These two determinations are prerequisites to a finding of probable cause, without which no warrant can issue. La.Const. Art. I, § 5, C.Cr.P. art. 162. In State v. Richards, 357 So.2d 1128 (La.1978), we noted our repeated recognition that probable cause exists when facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed, citing State v. Smith, 350 So.2d 1178 (La.1977) and numerous earlier decisions of this Court. The “two-pronged” test to determine both informant’s and information’s reliability to which we alluded earlier in this discussion was set forth in the United States Supreme Court’s decision in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

In fashioning guidelines for application of the rule of Aguilar and those of other United States Supreme Court cases governing determinations of the sufficiency of warrants, this Court in State v. Paciera, 290 So.2d 681 (La.1974), determined that “[factors which support the credibility of an un identified informant include prior accurate reports [by the informant] or any specific independent corroboration [in the affidavit] of the accuracy of the instant report.”

The chief dispute in the instant case is whether the assertions contained in the affidavit adequately establish a basis for finding the unnamed informant credible. The recitation in the affidavit bearing upon that issue describes the unidentified informant as follows: “. . . [A] confidential and reliable informant who has been working under the direct supervision of affiant for the past two (2) months, and who has provided information which has led directly to the arrest of at least four (4) persons on narcotics violations in East Baton Rouge Parish.”

Turnipseed argues that the quoted content of the affidavit is insufficient to supply a basis for a finding that the informant is credible. He urges that only the report of four arrests resulting from information reported tends to establish informant credibility and claims that the statement relating supervision has no bearing on the credibility determination to be made. Turnip-seed maintains that arrests alone cannot satisfy the requirement of establishing the informant’s credibility, especially in the absence of an assertion that the arrests were legal or that they did not all occur on one occasion (in which event it would be more like one “bust” or arrest than four).

The State takes the position that the recitation setting forth four arrests for narcotics violations as a direct result of information related, coupled with the statement establishing that affiant directly supervised the informant’s work for the previous two months, adequately establishes the credibility of the informant.

We have previously found sufficient a warrant wherein the requirement of establishing informant credibility was met by virtually identical assertions. In State v. Thomas, 329 So.2d 704 (La.1976) the affidavit recited direct supervision of the reliable and confidential informant by the affiant for the previous six months and arrests of at least ten persons as a result of information the informant communicated. The temporal difference in the periods of supervision and the seeming difference in the number of resulting arrests does not dispose us to disapprove the warrant in this situation. We cannot say that recitation of prior arrests (notwithstanding the absence of an averment that they were legal or fruitful arrests, although that would certainly be preferable), coupled with the fact of direct and personal supervision of the unnamed informant by the affiant is insufficient to establish the reliability of the informant.

Mindful of our duty to accord great deference to the probable cause determination of the magistrate responsible for the warrant’s issuance which dictates that doubtful or marginal cases be determined by the preference to be accorded to warrants, we are constrained to find that the affidavit’s allegations were sufficient to support the magistrate’s determination of credibility. State v. Paciera, supra.

The affidavit’s content bearing upon the issue of the reliability of the information related by the informant states: “. . . [0]n or about March 5, 1977 he [,] being said informant^] had been present at 10148 N. Harvey Dr. Baton Rouge, La. and observed a large quantity of green vegetable substance to be present in the residence. . . . [Informant was offered an ounce of the above mentioned green vegetable substance identified as marijuana by a white male known only as Turnipseed, occupant of the residence for the price of ten dollars ($10.00) per ounce.”

The quoted recitation sets forth sufficient facts to warrant the magistrate’s determination that the information was reliable. The informant’s direct personal observation of marijuana on the premises, related in some detail with reference to the date of the observation, adequately established the information’s reliability. State v. Smith, 350 So.2d 1178 (La.1977).

Decree

Based on our finding that the affidavit here sufficiently sets forth probable cause upon which to base the issuance of a search warrant, we vacate and reverse the ruling of the district court sustaining the motion to suppress the evidence and remand the case for proceedings not inconsistent with this opinion.

TRIAL COURT RULING REVERSED; REMANDED.

Dennis, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

I agree with the trial judge that merely working under supervision of a police officer for two months and providing information that leads to the arrest of four persons does not establish an unidentified informer’s credibility.

State v. Thomas, 329 So.2d 704 (La.1976) is not authority for the holding herein because it did not involve an attack upon the affidavit’s showing of an informer’s credibility.


author: DIXON, Justice. TATE, Justice,

text:
    William Travis ALLISON, Paula A. Perrone and Allison and Perrone (a Professional Law Corporation) v. LOUISIANA STATE BAR ASSOCIATION.
    No. 61047.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    William Travis Allison, New Orleans, for plaintiffs-relators.
    Chris J. Roy, Celia R. Cangelosi, Gravel, Roy & Burnes, Alexandria, for defendant-respondent.
   DIXON, Justice.

Petitioners William Travis Allison, Paula A. Perrone and Allison and Perrone (A Professional Law Corporation) brought this action under this court’s original jurisdiction (La.Const. of 1974, Art. 5, § 5(B)) seeking to enjoin the defendant Louisiana State Bar Association from enforcing certain disciplinary rules which prohibit the soliciting, marketing and providing of prepaid legal services offered by the petitioners to various business groups.

William Travis Allison and Paula A. Per-rone formed a division of the Allison and Perrone law corporation designated “Employees’ Legal Plan” (ELP). According to the petition to this court, the purpose of the division was to “formulate and market systems of prepaid legal services to selected employee groups in the State of Louisiana.” On August 19, 1977 petitioners mailed to certain New Orleans employers a letter describing the services offered and enclosed a brochure designed for the education of the employees. On September 22, 1977 the petitioners contracted with one of the employers; if 50% of the eligible employees subscribed, the employer agreed to withhold from their wages and remit to the lawyers $10.00 a month from each covered employee; the lawyers agreed to perform legal services specified in detail in the agreement. On September 26, 1977 the Committee on Professional Responsibility, Louisiana State Bar Association, notified petitioners by mail that an investigation of their potential violations of DR 2-103 of the Code of Professional Responsibility had commenced. The petition was then filed in this court on November 18, 1977.

Petitioners argue that the threatened enforcement of DR 2-103(A), DR 2-103(D)(4) and DR 2-103(D)(4)(b) of the Code of Professional Responsibility has had a “chilling effect” on their rights secured by the First and Fourteenth Amendments to the United States Constitution and that those rules governing professional conduct are unconstitutional.

The rules under attack read as follows: “DR 2-103. Recommendation of Professional Employment.
(A) A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer.
(B) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client, except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D).
(D) A lawyer shall not knowingly assist a person or organization that furnishes or pays for legal services to others to promote the use of his services or those of his partner or associate or any other lawyer affiliated with him or his firm except as permitted in DR 2-101(B). However, this does not prohibit a lawyer or his partner or associate or any other lawyer affiliated with him or his firm from being recommended, employed or paid by, or cooperating with, one of the following offices or organizations that promote the use of his services or those of his partner or associate or any other lawyer affiliated with him or his firm if there is no interference with the exercise of independent professional judgment in behalf of his client:
(4) Any bona fide organization that recommends, furnishes or pays for legal services to its members or its beneficiaries provided the following conditions are satisfied:
(a) Such organization, including any affiliate, is so organized and operated that no profit is derived by it from the rendition of legal services by lawyers, and that, if the organization is organized for profit, the legal services are not rendered by lawyers employed, directed, supervised or selected by it except in connection with matters which such organization bears ultimate liability of its member or beneficiary.
(b) Neither the lawyer, nor his partner, nor associate, nor any other lawyer affiliated with him or his firm, nor any non-lawyer, shall have initiated or promoted such organization for the primary purpose of providing financial or other benefit to such lawyer, partner, associate or affiliated lawyer.
(c) Such organization is not operated for the purpose of procuring legal work or financial benefit for any lawyer as a private practitioner outside of the legal services program of the organization.
(d) The member or beneficiary to whom the legal services are furnished, and not such organization, is recognized as the client of the lawyer in the matter.
(e) Any member or beneficiary who is entitled to have legal services furnished or paid for by the organization may, if such member or beneficiary so desires, select counsel other than that furnished, selected or approved by the organization for the particular matter involved; and the legal service plan of such organization provides appropriate relief for any member or beneficiary who asserts a claim that representation by counsel furnished, selected or approved would be unethical, improper or inadequate under the circumstances of the matter involved and the plan provides an appropriate procedure for seeking such relief.
(f) The lawyer does not know or have cause to know that such organization is in violation of applicable laws, rules of court and other legal requirements that govern its legal service operations.
(g) Such organization has filed with the appropriate disciplinary authority at least annually a report with respect to its legal service plan, if any, showing its terms, its schedule of benefits, its subscription charges, agreements with counsel, and financial results of its legal service activities or, if it has failed to do so, the lawyer does not know or have cause to know of such failure.”

Petitioners argue that the above rules infringe upon their freedom of speech in that they are prevented from actively soliciting business for their “Employees’ Legal Plan.” In support of their argument the petitioners rely on several United States Supreme Court cases.

In the first case cited by petitioners, N.A. A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), the N.A.A.C.P. challenged certain Virginia laws which banned the solicitation of legal services. The Virginia Conference of the N.A.A.C.P. devised a plan by which persons who had potential legal actions raising questions of racial discrimination would be referred by the Conference to a N.A.A.C.P. legal staff of fifteen attorneys. The Conference would then pay all of the expenses arising out of the case, usually including the fees for each of the lawyers involved.

The Supreme Court first dismissed the contention that “solicitation” may not be among the freedoms protected by the First Amendment:

“. . . To this contention there are two answers. The first is that a State cannot foreclose the exercise of constitutional rights by mere labels. The second is that abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. Thomas v. Collins, 323 U.S. 516, 537, 65 S.Ct. 315, 325, 89 L.Ed. 430, 444; Herndon v. Lowry, 301 U.S. 242, 259—264, 57 S.Ct. 732, 81 L.Ed. 1066, 1075-1078. Cf. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117, 1123, 73 A.L.R. 1484; Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131, 1134. In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression.
The NAACP is not a conventional political party; but the litigation it assists, while serving to vindicate the legal rights of members of the American Negro community, at the same time and perhaps more importantly, makes possible the distinctive contribution of a minority group to the ideas and beliefs of our society. For such a group, association for litigation may be the most effective form of political association.” 371 U.S. at 429, 83 S.Ct. at 336, 337, 9 L.Ed.2d at 416, 417. (Emphasis added).

The court then examined the interests advanced by the state in support of its ban against solicitation and, finding none which justified the impairment of N.A.A.C.P.’s rights to political expression, held:

“. . . the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business . . . ” 371 U.S. at 428-429, 83 S.Ct. at 335, 9 L.Ed.2d at 415.

A year after Button the United States Supreme Court was presented with a case in which an organization not involved in the advancement of civil rights solicited legal assistance for its members. In that case, Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964), the Brotherhood set up a “Legal Aid Department” which endeavored to refer injured workers or their widows to individual lawyers in the area who had been determined by the Brotherhood to be the best to consult.

The court described the Brotherhood’s constitutional interests in the referral system as follows:

“It cannot be seriously doubted that the First Amendment’s guarantees of free speech, petition and assembly give railroad workers the right to gather together for the lawful purpose of helping and advising one another in asserting the rights Congress gave them in the Safety Appliance Act and the Federal Employers’ Liability Act, statutory rights which would be vain and futile if the workers could not talk together freely as to the best course to follow. The right of members to consult with each other in a fraternal organization necessarily includes the right to select a spokesman from their number who could be expected to give the wisest counsel. That is the role played by the members who carry out the legal aid program. And the right of the workers personally or through a special department of their Brotherhood to advise concerning the need for legal assistance — and, more importantly, what lawyer a member could confidently rely on— is an inseparable part of this constitutionally guaranteed right to assist and advise each other.” 377 U.S. at 5-6, 84 S.Ct. at 1116, 12 L.Ed.2d at 93.

To the state’s argument that its interest in regulating the affairs of the legal profession justified the prohibition of this activity, the high court responded:

“Virginia undoubtedly has broad powers to regulate the practice of law within its borders; but we have had occasion in the past to recognize that in regulating the practice of law a State cannot ignore the rights of individuals secured by the Constitution. For as we said in NAACP v. Button, supra, 371 U.S. at 429, 83 S.Ct. 336, 9 L.Ed.2d 405, ‘a State cannot foreclose the exercise of constitutional rights by mere labels.’ Here what Virginia has sought to halt is not a commercialization of the legal profession which might threaten the moral and ethical fabric of the administration of justice. It is not ‘ambulance chasing.’ The railroad workers, by recommending competent lawyers to each other, obviously are not themselves engaging in the practice of law, nor are they or the lawyers whom they select parties to any soliciting of business ...” 377 U.S. at 6-7, 84 S.Ct. at 1116 — 1117, 12 L.Ed.2d at 93. (Emphasis added).

The Supreme Court, finding the state’s intrusion into the association’s First Amendment rights unjustified, held it unconstitutional.

In United Mine Workers v. Illinois State Bar Association, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967), the U.M.W. challenged state prohibition of a system devised by the union through which members were provided legal counsel by a salaried union attorney. After discussing the First Amendment guarantees involved, the Supreme Court decided that the issue was governed by the Button and Trainmen eases, supra:

“The foregoing were the principles we invoked when we dealt in the Button and Trainmen cases with the right of an association to provide legal services for its members. That the States have broad power to regulate the practice of law is, of course, beyond question. See Trainmen, supra, 377 U.S., at 6, 84 S.Ct. 1113, 12 L.Ed.2d at 93, 11 A.L.R.3d 1196. But it is equally apparent that broad rules framed to protect the public and to preserve respect for the administration of justice can in their actual operation significantly impair the value of associational freedoms. .
We think that both the Button and Trainmen cases are controlling here. The litigation in question is, of course, not bound up with political matters of acute social moment, as in Button, but the First Amendment does not protect speech and assembly only to the extent it can be characterized as political. ‘Great secular causes, with small ones, are guarded. The grievances for redress of which the right of petition was insured, and with it the right of assembly, are not solely religious or political ones. And the rights of free speech and a free press are not confined to any field of human interest.’ Thomas v. Collins, supra, 323 U.S. at 531, 65 S.Ct. 315, 89 L.Ed. at 441. And of course in Trainmen, where the litigation in question was, as here, solely designed to compensate the victims of industrial accidents, we rejected the contention made in dissent, see 377 U.S. at 10, 84 S.Ct. 1113, 12 L.Ed.2d at 95, 11 A.L.R.3d 1196 (Clark, J.), that the principles announced in Button were applicable only to litigation for political purposes. See 377 U.S., at 8, 84 S.Ct. 1113, 12 L.Ed.2d at 94, 11 A.L.R.3d 1196.” 389 U.S. at 222-223, 88 S.Ct. at 356-357, 19 L.Ed.2d at 430-431.

Accordingly, the court held that the restrictions were violative of the constitutional rights of the union members.

Finally, the petitioners rely on Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). In Bates, the Supreme Court held for the first time that prohibitions against the advertisement of routine legal services constitute a denial of the attorney’s First Amendment rights. In so holding the court found that the traditional justifications offered for the ban on advertising were insufficient to justify the infringement upon the rights of the individual attorneys.

We find each of the cases relied upon by the petitioners to be distinguishable from the facts and issues presented in the instant case. Two recent cases from the Supreme Court point out the distinguishing factors. The cases, Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) and In Re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), were companion cases dealing with different aspects of state bans against solicitation.

Ohralik involved an Ohio attorney who had been disciplined by the state bar association for violating disciplinary rules which prohibited direct solicitation. The violation occurred when Ohralik, having heard of an automobile accident, visited both of the victims, informed them of their potential legal rights, and solicited employment.

The court first described the nature of the constitutional right involved and the degree of judicial scrutiny to be accorded regulations of that interest:

“Expression concerning purely commercial transactions has come within the ambit of the Amendment’s protection only recently. In rejecting the notion that such speech ‘is wholly outside the protection of the First Amendment,’ Virginia Pharmacy [Virginia Pharmacy Board v. Virginia Consumer Council], 425 U.S. [748], at 761, 96 S.Ct. 1817, 48 L.Ed.2d 346, we were careful not to hold ‘that it is wholly undifferentiable from other froms’ (sic) of speech. Id., at 771 n. 24, 96 S.Ct. 1817. We have not discarded the ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. Ibid. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.
In-person solicitation by a lawyer of remunerative employment is a business transaction in which speech is an essential but subordinate component. While this does not remove the speech from the protection of the First Amendment, as was held in Bates and Virginia Pharmacy, it lowers the level of appropriate judicial scrutiny.” 436 U.S. at 455, 98 S.Ct. at 1918, 56 L.Ed.2d at 453.

The court then distinguished the interests involved from those presented in Bates, supra, and the Button series of cases, supra:

“. . . Unlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection. The aim and effect of in-person solicitation may be to provide a one-sided presentation and to encourage speedy and perhaps uninformed decisionmaking; there is no opportunity for intervention or counter-education by agencies of the Bar, supervisory authorities, or persons close to the solicited individual. The admonition that ‘the fitting remedy for evil counsels is good ones’ is of little value when the circumstances provide no opportunity for any remedy at all. In-person solicitation is as likely as not to discourage persons needing counsel from engaging in a critical comparison of the ‘availability, nature, and prices’ of legal services, cf. Bates, supra, 433 U.S. at 364, 97 S.Ct. 2691; it actually may disserve the individual and societal interest, identified in Bates, in facilitating ‘informed and reliable decisionmaking.’ Ibid.
Appellant does not contend, and on the facts of this case could not contend, that his approaches to the two young women involved political expression or an exercise of associational freedom, ‘employ[ing] constitutionally privileged means of expression to secure constitutionally guaranteed civil rights.’ NAACP v. Button, 371 U.S. 415, 442, 83 S.Ct. 328, 9 L.Ed.2d 416 (1963); see In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417. Nor can he compare his solicitation to the mutual assistance in asserting legal rights that was at issue in United Transportation Union v. Michigan Bar, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); and Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964). A lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns. It falls within the State’s proper sphere of economic and professional regulation. See Button, supra, 371 U.S. at 439-443, 83 S.Ct. 328, 9 L.Ed.2d 416. While entitled to some constitutional protection, appellant’s conduct is subject to regulation in furtherance of important state interests.” 436 U.S. at 457, 98 S.Ct. at 1919, 56 L.Ed.2d at 454.

The court found the state interests involved to be substantial. Among those described by the court were the interest in the maintaining of high standards among the members of a licensed profession, the prevention of overreaching and the exertion of undue influence on lay persons, the protection of privacy and the prevention of situations in which the lawyer’s judgment may be clouded by his pecuniary interest. The court noted:

“. . . The rules prohibiting solicitation are prophylactic measures whose objective is the prevention of harm before it occurs. The rules were applied in this case to discipline a lawyer for soliciting employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert. In such a situation, which is inherently conducive to overreaching and other forms of misconduct, the State has a strong interest in adopting and enforcing rules of conduct designed to protect the public from harmful solicitation by lawyers whom it has licensed.” 436 U.S. at 464, 98 S.Ct. at 1923, 56 L.Ed.2d at 458.

The holding of Ohralik was stated as follows:

“. . . The Bar — acting with state authorization — constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent, . . . ” 436 U.S. at 449, 98 S.Ct. at 1915, 56 L.Ed.2d at 449.

In the companion case, In Re Primus, supra, the court was presented with a situation which it determined to be akin to that presented in the Button series of cases. Edna Smith Primus, an attorney associated with the American Civil Liberties Union, was disciplined under state bar association rules for contacting women who had been sterilized or threatened with sterilization as a condition of their continued participation in a “Medicaid” program, and offering her legal services in the advancement of their rights.

The court quickly distinguished the case from its companion:

“Unlike the situation in Ohralik, however, appellant’s act of solicitation took the form of a letter to a woman with whom appellant had discussed the possibility of seeking redress for an allegedly unconstitutional sterilization. This was not in-person solicitation for pecuniary gain. Appellant was commdnicating'an offer of free assistance by attorneys associated with the ACLU, not an offer predicated on entitlement to a share of any monetary recovery. And her actions were undertaken to express personal political beliefs and to advance the civil-liberties objectives of the ACLU, rather than to derive financial gain. The question presented in this case is whether, in light of the values protected by the First and Fourteenth Amendments, these differences materially affect the scope of state regulation of the conduct of lawyers.” 436 U.S. at 422, 98 S.Ct. at 1899, 56 L.Ed.2d at 428.

Instead of the minimal First Amendment, freedoms involved in the Ohralik situation, the court found that the ACLU interests and those represented by Primus’ actions were those partaking of the broad rights to freedom of association and political expression. The court then stated:

“Where political expression or association is at issue, this Court has not tolerated the degree of imprecision that often characterizes government regulation of the conduct of commercial affairs. The approach we adopt today in Ohralik, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444, that the State may proscribe in-person solicitation for pecuniary gain under circumstances likely to result in adverse consequences, cannot be applied to appellant’s activity on behalf of the ACLU. Although a showing of potential danger may suffice in the former context, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina’s broad prohibition is said to be directed.” 436 U.S. at 434, 98 S.Ct. at 1906, 56 L.Ed.2d at 436.

Under this analysis, the Supreme Court held that the bar association could not constitutionally discipline Primus for her activities.

From the above cases we can make these observations. First, the state has an undeniable interest in the regulation of the legal profession. Whether that interest is sufficient to justify an infringement upon First Amendment freedoms, however, depends upon the nature of the First Amendment right asserted and the evil sought to be avoided by the regulation. In cases involving the substantial rights to associate for the advancement of a common purpose, the state’s interest in regulating the “solicitation” attending that association will generally be deemed insufficient to sustain the abridgment of the First Amendment rights. On the other hand, because of the substantial dangers associated with direct, in-person solicitation for pecuniary gain, the state’s interest in “prophylactic” regulation justifies the limitation upon the lawyer’s activities.

It is not the right of individuals to join and associate for the improvement of the common lot which is involved in this action, but rather it is the asserted right of the individual attorney to form such a group for the advancement of his own interests.

Petitioners did not engage in face-to-face solicitation with would-be clients, as did Ohralik. They wrote an employer, soliciting the formation of a contract under which the employer collected money from wages and sent it to petitioners, who promised to perform specified legal services for those who paid. The solicitation by mail was not fraught with as many undesirable possibilities as face-to-face solicitation, but it was direct solicitation, nevertheless. And because the offer was privately made, and not in the public domain like the advertising approved in the Bates case, for all to see, it would be more difficult to regulate to prevent abuses which are legitimate subjects of state regulation, in spite of some First Amendment involvement (but less difficult to regulate than face-to-face solicitation — see Primus).

In the Primus case the solicitation was by letter to a woman who had been sterilized by a doctor, suggesting a consultation about proposed litigation which the American Civil Liberties Union wanted to bring, at no cost to the victim. “This was not in-person solicitation for pecuniary gain.” In re Primus, supra, 436 U.S. at 422, 98 S.Ct. at 1899, 56 L.Ed.2d at 428. The solicitation was interpreted as volunteering free legal services to express personal political beliefs and to advance civil liberties objectives of the ACLU, rather than to derive financial gain.

The necessary inference from the opinion in the Primus case is that the result would have been different if the lawyer’s income was dependent on the outcome of the litigation.

Only in a general, socially conscious way do petitioners justify their plan as anything but a source of economic benefit for themselves; they argue that people who need it most cannot obtain legal services at reasonable cost, and their plan will make it possible. We have no difficulty in concluding that financial benefits for petitioners is at least an important motive for the solicitation. Since we interpret petitioners’ actions as direct solicitation for pecuniary gain, and since we find the State’s traditional and important regulation of the practice of law by prohibiting solicitation would have no adverse impact upon constitutional rights (except the lawyer’s own right to speak as he pleases in commercial solicitation) the prohibition against direct solicitation by lawyers for pecuniary gain will be upheld.

Petitioners’ demands are rejected and the petition is dismissed, at their cost.

TATE, J., concurs and assigns reasons.

TATE, Justice,

concurring.

The writer concurs with very grave reservations.

I agree with much of the thoughtful majority opinion, including with its reconciliation of the United States Supreme Court decisions in Bates, Ohralik, and Primus. Nevertheless, in my view the Bates rationale more nearly applies than does Ohralik to the plan of the petitioners to solicit employer groups to set up prepaid legal-service plans for their employees. The proposed plan shows that the solicitation will be by mail, in a restrained and dignified explanation of the plan to be offered.

The organized bar has a valid interest in regulating direct person-to-person solicitation and in protecting the public against a one-sided presentation and uniformed retaining-decision by prospective clients. See Ohralik. On the other hand, a lawyer-regulation (although ostensibly designed to advance this professional interest) falls afoul of the First Amendment if it unreasonably restricts society's interest in the free flow of commercial information (and the supplier’s First Amendment right to communicate the availability of his services); for, in America’s free-market economy, the “advertisement” by a supplier is the traditional mechanism by which potential purchasers are informed of the availability of services or products and enabled to take advantage of them. See Bates.

In my view, the professional interest of the organized bar (Ohralik) is outweighed by the First Amendment values favoring society in general and the petitioners in particular (Bates):

The latter’s proposal involves communication of socially desirable legal services (a prepaid insurance for middle-income employees) which the organized bar has (in my opinion) no constitutionally supportable reason for prohibiting per se. I do not see Ohralik objections to the petitioner’s proposed method of communicating this plan to a selected and sophisticated portion of the commercial public, by a restrained and dignified “advertising” means best available for the purpose — a mail solicitation, in this case, rather than advertising in public journals.

Ultimately, however, I do not dissent from the majority holding. I agree that Bates et al do not as yet compel us to extend free-communication rights this slight step further (although it does not take the eye of a prophet to discern that the United States Supreme Court may soon itself take this step). Also, I defer to the wisdom of my brethren in not examining at this time whether the protection of free speech by our own state constitution, Article 1, Section 7, perhaps broader than the federal First Amendment, might not require a different result.

In general, the adjustment of competing political and economic values should take place within the social institutions in which they interact, not in a courtroom as a result of judicial fiat. This is subject to the caveat that the decision-making apparatus of society does not infringe upon the constitutional protection of each individual against unreasonable governmental restriction to speak or act as he will.

Whether this caveat applies is the issue before us, of course. Giving deference to the presumption of constitutionality of the lawyer-regulation attacked, I am unwilling at present to disagree with my brethren that the federal constitution as yet requires us to invalidate it.

I do agree that, as written, the Code of Professional Responsibility, adopted by this court on recommendation of the organized bar, required the bar association to disapprove of the efforts of the petitioners.

The presentations and my study in this matter likewise impel me to suggest that this court and the organized bar should seriously study modifications of our Code so as to permit approval of the offer of socially desirable prepaid legal-service plans (which will expand the range of legal services practicably available to the people we serve), such as the present — with (if thought advisable) prior approval of bar committees based upon reasonable regulation as to the nature of the services to be offered, and as to the experience and competence of the personnel who will offer the services.

Whether or not it has yet been held that the federal or state constitution requires it, it seems to me that the legal profession itself (and this court, with its constitutional responsibility to regulate the Louisiana legal profession) should recognize the public interest in having available this type of prepaid legal service, which may make practicably more possible our service to many members of the community who will not otherwise take advantage of the counsel and help of an attorney that should be (but may not otherwise be) known by them as readily available.

With the reservations here expressed, I respectfully concur.

      . See also the similar case of United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971).

      . The disciplinary rules at issue in Ohralik are identical to DR 2-103(A) and DR 2-104(A)(l) of the Louisiana Code of Professional Responsibility.


author: SUMMERS, Justice. SANDERS, Chief Justice

text:
    Perry M. SEGURA, d/b/a Perry Segura and Associates v. LOUISIANA ARCHITECTS SELECTION BOARD et al.
    No. 61390.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Max N. Tobias, Jr., New Orleans, J. Burton Willis, St. Martinsville, William P. Brumfield, Brumfield & Brumfield, Baton Rouge, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Kenneth C. DeJean, Thomas S. Halligan, Asst. Attys. Gen., for defendants-respondents.
   SUMMERS, Justice.

Plaintiff Perry M. Segura, doing business as Perry Segura and Associates, sued the Louisiana Architects Selection Board and its members; the Louisiana Engineers Selection Board, and its members; the Louisiana Landscape Architects Selection Board, and its members; the State of Louisiana, Division of Administration; the Governor; the Capitol Outlay Budget Board; the Lieutenant Governor; the State Treasurer; Kevin P. Reilly; B. B. Rayburn; and Nichols State University.

Plaintiff sought a judgment declaring that he had a valid and binding contract to furnish architectural services for the construction of a building to be known as the Ellender Memorial Library at Nichols State University. Judgment was rendered in favor of plaintiff and against the defendants, the Governor and the State of Louisiana, Division of Administration, through the Commissioner, jointly and in solido, declaring the contract in question to be valid and binding on the State, the Governor and the Commissioner of Administration. It was also ordered that costs be paid by defendants “to the extent provided by law.”

On appeal to the First Circuit the trial court judgment was affirmed. That court also decreed: “The State shall pay whatever costs it may be responsible for under the law.” 340 So.2d 369 (La.App.1976). Defendants’ application for writs to this Court was denied. 342 So.2d 676 (1977).

Thereafter plaintiff Segura brought a rule against defendants, in accordance with Article 1920 of the Code of Civil Procedure, to show cause why they should not be condemned to pay costs in this matter, or, alternatively, why costs should not be reimbursed and refunded to plaintiff by the clerks of court and sheriffs to whom plaintiff had advanced or paid costs in the course of this litigation. After a hearing, plaintiff’s rule was dismissed in the trial court and this dismissal was affirmed on appeal to the First Circuit. 353 So.2d 330 (1977). On application of the plaintiff in rule writs were granted by this Court to review the judgment of the Court of Appeal. 354 So.2d 1051 (La.1978).

By Act 135 of 1936, later amended by Act 509 of 1964, Section 4521 of Title 13 of the Revised Statutes was enacted declaring that,

“Except as hereinafter provided, neither the state, nor any parish, municipality, or other political subdivision, public board or commission shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state or any such parish, municipality or other political subdivision, board or commission, in any court of this state or any municipality of this state, including particularly, but not exclusively, those courts in the Parish of Orleans and the City of New Orleans. This Section shall have no application to stenographers’ costs for taking testimony.”

Thereafter, in 1974, Louisiana’s new constitution was adopted wherein it was provided that “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” La. Const, art. XII, § 10(A).

The narrow question presented by this case is whether the exemption from payment of costs granted to the State in judicial proceedings by Section 4521 of Title 13 of the Revised Statutes was superseded by Section 10(A) of Article XII of the Constitution of 1974 declaring that the State shall not be “immune from suit and liability in contract.” And, if the Constitution did supersede Section 4521 in this regard, is the State required to pay costs in this case?

If the State has no immunity from suit or liability in contract under the Constitution, it is not immune from payment of costs of court incurred by the party who prevails in such a suit against the State, and any statutory enactment to the contrary must succumb to this constitutional proposition.

Costs of court are part of the “liability” to which a party cast in litigation is subject. As plaintiff in this suit Segura was required to advance costs to the clerks of the courts through which this litigation progressed. These advances, insofar as they have been incurred, and other costs paid by plaintiff and properly chargeable to this suit, would reduce the value of the award in Segura’s favor if he could not be reimbursed to that extent. The consequence would be that the State was relieved of part of its liability. The Constitution makes no such concession.

Even before the constitution declared the State was not immune from suit and liability in contract and tort, the State was required by statute to pay the stenographer’s costs for taking testimony if cast in judgment. In light of the clear constitutional declaration that the State is not immune from suit and liability in this suit in contract, there is no reason why the State should not now be cast in judgment for all other costs. Under the facts of this case this can be accomplished by a judgment in favor of Segura in the amounts advanced or incurred by him for costs. If other costs not advanced or incurred by Segura are involved, the question whether clerks of courts, sheriffs and others can collect these costs from the State is not before us. Our concern is Segura’s claim against the State for costs incurred and advanced by him through all phases of this litigation. He is entitled to a judgment against the State in that amount.

Segura’s claim for attorney’s fees cannot be allowed. There was no stipulation to pay attorney’s fees in the contested contract, and no statute allows recovery of attorney’s fees in such cases. Recovery of attorneys’ fees in this State is allowed only when required by contract or statute. Nassau Realty Co. v. Brown, 332 So.2d 206 (La.1976); Hughes v. Burguieres, 276 So.2d 267 (La.1973).

For the reasons assigned, the case is remanded to the trial court for a hearing and a determination of the costs advanced and incurred by Segura and for judgment in his favor in that amount.

SANDERS, C. J., dissents and assigns reasons.

DIXON, J., dissents.

SANDERS, Chief Justice

(dissenting).

In Act No. 467 of 1978, the Legislature has now made the state and its agencies liable in appropriate cases for the payment of court costs. This act is inapplicable to the present case. I disagree with this decision for a most compelling reason: It holds that the state’s liability for court costs is mandated by Section 10(A) of Article XII of the Louisiana Constitution of 1974. Thus, it freezes court costs’ liability in the constitution, removing it from legislative authority. In my opinion, the decision is unsound.

The obligation to provide funds for the courts has always been a legislative function. Hence, the Legislature has the authority to exempt the state and its agencies from the payment of court costs and to finance the courts through other means.

Prior to the 1974 Constitution, the Legislature adopted such a court costs statute. LSA — R.S. 13:4521 reads as follows:

“Except as hereinafter provided, neither the state, nor any parish, municipality, or other political subdivision, public board or commission shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state or any such parish, municipality or other political subdivision, board or commission, in any court of this state or any municipality of this state, including particularly, but not exclusively, those courts in the Parish of Orleans and the City of New Orleans. This Section shall have no application to stenographers’ costs for taking testimony.”

This statute should be given effect in the present case unless it is unconstitutional. The majority, however, holds that it has been “superseded” by Article 12, Section 10(A) of the 1974 Constitution.

The constitutional provision provides:

“Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”

The constitutional provision refers to immunity “from suit and liability in contract or for injury to person or property.” I agree with the Court of Appeal that the removal of the immunity does not give rise to the obligation to pay court costs. The payment of court costs is not a necessary incident of liability in contract or for injury. Court costs are separable, and payment is regulated both by the Legislature and the courts.

The doctrine of sovereign immunity was abrogated prior to the 1974 Constitution. See Board of Commissioners of the Port of New Orleans v. Splendour Shipping & Enterprises Company, Inc., La., 273 So.2d 19 (1973). The holding in Splendour was reexamined in Darville v. Associated Indemnity Corporation, La., 323 So.2d 441 (1975) in light of the 1974 Constitution. We concluded from an examination of the Berbatim Transcripts of the 1973 Constitutional Convention that the intent of the constitutional provision was to do no more than officially abrogate the judicial doctrine of sovereign immunity and to give constitutional status to the principle that the state is amenable to suits on contracts and for injuries to persons and property without first obtaining the permission of the Legislature. State of Louisiana, Constitutional Convention of 1973. Verbatim Transcripts. 39 Volumes. [1973-1974] VI Proceedings. (21st day, July 27), pp. 22-23; 34; 37; 39-46. See, Jenkins v. Orleans Parish School Board, La., 310 So.2d 831 (ON REHEARING, 1975).

The Court of Appeal, in my opinion, correctly held:

“The obligation to provide funds to support the courts of the State is a legislative function. It has absolute control over the finances of the State except as limited by constitutional provisions. Woodward v. Reily, 244 La. 337,152 So.2d 41 (1963); Article 3, § 22, Louisiana Constitution of 1921; Article 3, § 16, Louisiana Constitution of 1974. It is the Legislature that decides how the branches and departments of government shall be funded from the public fisc. It could have provided such revenues in full in the General Appropriations Act. However, it chose to fund the courts, in part, by assessing all litigants with costs of court, LSA-C.C.P. art. 1920, and exempting itself in part by virtue of the provisions of LSA-R.S. 13:4521. We do not find that Article 12, § 10(A), supra, has in any way limited the Legislature’s power in this respect.” [Segura v. Louisiana Architects Selection Bd., La.App., 353 So.2d 330 at 332-333 (1977).]

For the reasons assigned, I respectfully dissent.