author: ERVIN, Judge.

text:
    Genise Tatum BINNINGER, Appellant, v. Colin F. HUTCHINSON, Appellee.
    No. FF-153.
    District Court of Appeal of Florida, First District.
    March 8, 1978.

      Earl R. Duncan and William F. Daniel of Cotten, Shivers, Gwynn, Daniel, Kelley & Arrington, Tallahassee, for appellant.
    J. Robert Hughes of Barron, Redding, Boggs &• Hughes, Panama City, for appel-lee.
   ERVIN, Judge.

Binninger appeals a judgment granting specific performance to Hutchinson, the intended purchaser, based upon an oral agreement for the conveyance of real property. Binninger was the owner of improved property in Bay County, Florida, which Hutchinson was interested in buying. Binninger was then living in Houston, Texas. There is a conflict of testimony, which the trial court resolved against Binninger, as to whether an agreement was reached between the parties. While Mrs. Binninger stated no bargain was struck, Hutchinson testified that during a long distance telephone conversation, she agreed to sell him the property for $15,000, provided he pay her $10,000 and give her an installment note for the remaining $5,000. Hutchinson stated Mrs. Binninger told him that upon his making the above payment, the property was his.

Following the conversation, Hutchinson forwarded a warranty deed, mortgage, note and a check in the amount of $2,000 payable to “Genise Tatum Bissonett.” The named payee was an obvious error. Bissonett was the name of the street where Binninger resided. Upon receipt of the check she attempted to call Hutchinson to advise him she was not selling the property, but without success. When she later discovered Hutchinson had taken possession, and was making substantial improvements, she returned the check uncashed to her attorney, who also attempted to contact Hutchinson, but, being unable to, left a message for Hutchinson to call him. Hutchinson finally contacted Mrs. Binninger within one or two months after receipt of the papers by her.

When further negotiations between the parties failed, Hutchinson brought an action seeking specific performance of the oral contract, or in the alternative, seeking an equitable lien upon the property for money expended for improvements. The court found the parties entered into an oral agreement for the sale of the property for a price of $15,000. The prayer for specific performance was granted and the property conveyed to Hutchinson upon payment of $15,000 together with accrued interest. We reverse.

Binninger argues (1) an oral agreement was never reached, and (2) the Statute of Frauds, Section 725.01, Florida Statutes (1975), bars Hutchinson from relief. Hutchinson responds there was competent substantial evidence for the trial court to determine the contract had been formed between the parties and since proof of both possession and payment of some part of the consideration was made, partial performance of the agreement was made, thus bringing into operation the partial performance exception to the Statute of Frauds. Cottages, Miami Beach v. Wegman, 57 So.2d 439, 441 (Fla.1951). Before the partial performance exception may be applied, delivery of possession must be made pursuant to the terms of the contract and acquiesced in by the other party. Tate v. Jones, 16 Fla. 216, 243 (1877). Even construing the conflicting testimony in Hutchinson’s favor, as we must, we find no evidence entitling him to possession of the property. His possession was known to Mrs. Binninger only after she received the deed, mortgage, note and check and after she was told by relatives Hutchinson was making improvements upon the property. Hutchinson’s proof concerning Mrs. Bin-ninger’s acquiescence to his possession was hardly clear and positive. Before a plaintiff may be allowed to give evidence of a contract for the sale of land not in writing, it is essential that he establish by clear and positive proof, acts which take the contract out of the statute. Maloy v. Boyett, 53 Fla. 956, 43 So. 243, 246 (1907). The statement attributed by him to Mrs. Binninger, that after he paid $10,000 down and gave her a note for $5,000 the property was his, cannot be reasonably relied upon by Hutchinson as acquiescence for him to move onto the property without title and begin extensive improvements. The oral agreement was within the Statute of Frauds and unenforceable.

Additionally we find Hutchinson’s forwarding of a $2,000 check, rather than the $10,000 which even he said was agreed upon by the parties, was a material variation of the agreement, so as to be no more than a counter-offer. As stated in the robust prose of Judge Boyer:

“It is ‘hornbook law’ requiring no citations of authority, except common sense, that a contract once entered into may not thereafter be unilaterally modified; subsequent modifications require consent and ‘a meeting of the minds’ of all of the initial parties to the contract whose rights or responsibilities are sought to be affected by the modification.” Tropicana Pools, Inc. v. Boysen, 296 So.2d 104, 108 (Fla. 1st DCA 1974).

While Hutchinson’s action for specific performance is not supported by the evidence, we think it appropriate for the cause to be remanded to the trial court for consideration of Hutchinson’s claim for an equitable lien upon the property.

REVERSED AND REMANDED for further proceedings not inconsistent with this opinion.

BOYER, Acting C. J., and MILLS, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jackie Boyd SWAIN, Appellant, v. STATE of Florida, Appellee.
    No. HH-463.
    District Court of Appeal of Florida, First District.
    March 8, 1978.

      Jackie Boyd Swain, in pro. per.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst.'Atty. Gen., for appellee.
   PER CURIAM.

Appellant filed his pro se Motion to Vacate, Set Aside or Correct Sentence on August 25, 1977. The trial court entered an Order Denying Motion to Vacate, Set Aside or Correct Sentence and advised the appellant of his right to appeal that order. In said order, the court specifically found that the motion was not in substantial compliance with Fla.R.Crim.P. 3.850 (as amended, effective July 1, 1977) and noted that pursuant to said Rule, the court refused to receive or act upon the motion.

Rule 3.850 provides that a motion to vacate, set aside, or-correct a judgment or sentence shall include the following:

(a) The judgment or sentence under attack and the court which rendered the same;
(b) Whether there was an appeal from the judgment or sentence and the disposition thereof;
(c) Whether a previous post-conviction motion has been filed, and if so, how many;
(d) The nature of the relief sought;
(e) A brief statement of the facts (rather than conclusions) relied upon in support of the motion.

Further, Rule 3.850 mandates that the trial court refuse to receive any motion which is not in substantial compliance with those minimum prerequisites.

The trial court did not err in finding that the appellant’s motion failed to substantially comply with Fla.R.Crim.P, 3.850. Therefore, the order appealed from is affirmed. Certainly, the appellant may file a motion which substantially complies with Fla.R.Crim.P. 3.850 so that a decision on the merits of his motion can be reached.

Where the court refuses to receive or act upon a motion for post-conviction relief because the motion fails to substantially comply with Fla.R.Crim.P. 3.850, in accordance with the rule, the court should instruct the clerk, without order, to return said motion to the movant as unacceptable in that it fails to substantially comply with the Rule. Although not specifically required by the Rule, we would recommend that the motion returned to the movant be accompanied with a statement of the reason for its return setting forth which portions of the Rule were not complied with.

AFFIRMED.

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

      . We note that Fla.R.Crim.P. 3.850 has been recently amended and that Fla.R.Crim.P. 3.987 now provides a model form for a Motion for Post Conviction Relief [effective January 1. 1978; see 353 So.2d 552 (Fla. 1977)].


author: BOOTH, Judge.

text:
    LAKE CRESCENT DEVELOPMENT CORPORATION, Appellant, v. M. K. FLOWERS, and Robert W. Wigglesworth d/b/a M. K. Flowers and Associates, a partnership, Appellee.
    No. II-216.
    District Court of Appeal of Florida, First District.
    March 8, 1978.
    Gary R. Dunham of Brooten, Carter & Dunham, Gainesville, for appellant.
    John F. Roscow, III of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Helpling & Young, Gainesville, for appellee.
   BOOTH, Judge.

This cause is before the Court on interlocutory appeal from the order of the Circuit Court, Alachua County, denying Defendant’s ' motion to dismiss the complaint for lack of prosecution under Rule 1.420(e), Florida Rules of Civil Procedure.

Complaint was filed on an account stated and Defendant responded with a counterclaim seeking damages in excess of the damages claimed by the Plaintiffs. Plaintiffs’ motion for summary judgment was denied September 2, 1976. No further action of record was taken on either the complaint or the counter-claim for one year and four days until September 6, 1977, when Defendant moved to dismiss the complaint for lack of prosecution. On the same day, Defendant filed notice of intention to proceed with its counter-claim on which no action had been taken during the previous year.

Plaintiffs filed a statement of good cause as to why the complaint should not be dismissed stating: (1) there was non-record activity within the one year period consisting of settlement negotiations conducted between counsel for the parties and (2) it would be inequitable to dismiss the complaint and allow continued prosecution of the counter-claim.

Rule 1.420(e), FRCP, as amended effective October 1, 1968, provides:

“All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court or otherwise for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing why the action should remain pending at least five days before the hearing on the motion.”

Under the foregoing version of the rule, in effect at the time of the proceedings below, the trial court determines whether there has been activity, either of record or not of record, within the one year period which “moves the cause of action towards its ultimate resolution.”, or if not, whether good cause has been shown why the action should remain pending. The question presented here is whether thé trial court may consider all the facts and circumstances, including Defendant’s reactivation of its counter-claim and non-record activity within the one-year period, activity which standing alone may not be sufficient, in ruling on the motion to dismiss. Defendant concedes that it has been dilatory in pursuing its counter-claim, but states this was a “matter of tactics.”

In Grossmann v. Segal, 270 So.2d 746 (Fla.2nd DCA 1972) the trial court ruled that despite the lack of activity within the one-year period the particular factual situation did not call for the enforcement of Rule 1.420. On appeal, the District Court affirmed, holding:

“. . .In the case sub judice defendant had engaged in delaying tactics and was not free from criticism. The trial court properly exercised his discretion and denied the motion to avoid ‘an unfair result’ that would ‘defeat the cause of justice.’ We uphold the denial of defendant’s-motion based upon the good cause exhibited by plaintiffs which excused their failure to prosecute.”

We hold that the trial court may consider all facts and circumstances bearing on “good cause,” in order that the ends of justice be not defeated by an unreasonable application of procedural rules, as stated in Grossman, supra. In the absence of abuse of discretion, the trial court’s determination on the motion will stand, as stated in Eli Einbinder, Inc. v. Miami Crystal Ice Co., 317 So.2d 126, 128 (Fla.3d DCA 1975):

“A ruling on a motion for order of dismissal for failure to prosecute is subject to attack only on the ground that it constitutes an abuse of discretion and this heavy burden must be borne by the losing party, i. e. the defendants in the case at bar.”

Defendant/Appellant, in the case at bar, has failed to demonstrate abuse of discretion and the judgment below is, accordingly, AFFIRMED.

BOYER, Acting C. J., and MILLS, J., concur.

      . Rule 1.420(e) as amended effective January 1, 1977 apparently eliminates non-record activity as basis for tolling the one-year period.

      . Rapport v. Weisberg, 316 So.2d 73 (Fla.3d DCA 1975).

        .Steisel v. Birnholz, 313 So.2d 125 (Fla.3d DCA 1975); Leeks v. Dolling, 350 So.2d 10 (Fla.4th DCA 1977), holding settlement negotiations do not toll one-year period under Rule 1.420(e).


author: SMITH, Judge.

text:
    FIRST NATIONAL BANK OF MIRAMAR, Petitioner, v. Gerald A. LEWIS, as Comptroller and as Head of the Department of Banking and Finance of the State of Florida, and Barnett Bank of Hollywood in Miramar, Florida, Respondents.
    No. II-479.
    District Court of Appeal of Florida, First District.
    March 8, 1978.
    Joseph C. Jacobs and Robert J. Angerer of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    Franklyn John Wollett, Tallahassee, and Sam Cockrel, Jacksonville, for respondents.
   ON PETITIONER’S MOTION TO STAY

SMITH, Judge.

First National Bank of Miramar, having petitioned for review of a Department of Banking and Finance order authorizing a Miramar branch of The Barnett Bank of Hollywood, now moves that we stay the Department’s order pending our review of the merits. Section 120.68, Florida Statutes (Supp.1976).

Petitioner, a competitor bank, urges that the public and the depositors of the branch will suffer irreparable injury should the branch open and later be forced to close as a result of an adverse decision in this court. Petitioner first presented its motion to stay to the Department. That was entirely appropriate; prior application to the affected agency is an essential predicate for our consideration of stay petitions in cases arising under the Administrative Procedure Act.

The Department denied a stay for several reasons, among them that any necessary closure of the branch would not have the disastrous effect on the banking climate which petitioner describes; and that the applicant bank should be privileged to make its own decision whether to open the branch without further delay, with knowledge that the Department’s favorable order is subject to review on the merits by this court.

We conceive that the Department has spoken clearly and persuasively concerning matters within its area of expertise, and that we should accord great weight to the Department’s decision. Petitioner does not claim that the Department took action without complying with essential Chapter 120 procedures, as by denying an essential hearing; the questions raised by the petition for review relate solely to the merits of the branch bank application. In these circumstances, and in the light of the Department’s cogent advice to the applicant bank concerning the risks involved, petitioner’s motion to stay is

DENIED.

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


text:
    James Bernard WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 77-1128.
    District Court of Appeal of Florida, Second District.
    March 8, 1978.
    Jack 0. Johnson, Public Defender, Victoria J. Powell, Asst. Public Defender, and Lawrence D. Shearer, Legal Intern, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty, Gen., Tampa, for appellee.
   PER CURIAM.

Appellant filed a motion to correct his sentence pursuant to Fla.R.Crim.P. 3.850, contending he had not been given credit for all the time he had spent in jail prior to imposition of his sentence. The trial court denied the motion without an evidentiary, hearing. We reverse.

Appellant was originally charged with grand larceny on October 18, 1974. On March 18,1975, he pled guilty pursuant to a plea bargain, the trial judge stating that appellant would be placed on probation for three years with the special condition that he serve the first year in jail “with credit for time served.” The order placing appellant on probation, however, recited no such special condition but contained a note at the top which read: “Presently serving one year County Jail.” Nowhere in this order was there any mention of credit for time served.

On April 21, 1975, an affidavit and warrant were filed charging appellant with having violated his probation by escaping from jail on March 25, 1975. At that point, appellant was still at large, but he was eventually apprehended. At a hearing held on August 27, 1975, the probation violation charge was dropped in exchange for his plea of guilty to the substantive charge of escape that had also been' brought against him. At that hearing appellant informed the court that he had been free for about three months as a result of his escape.

In September and October of 1975, appellant was charged with further probation violations. After a hearing held on November 4, 1975, the trial court revoked appellant’s probation and sentenced him to five years in prison with credit for 117 days served in jail. The 117 days credit was apparently awarded pursuant to a memorandum from the sheriff’s office indicating that appellant had served that many days in jail.

On appellant’s direct appeal, this court affirmed; Wright v. State, 338 So.2d 850 (Fla.2d DCA 1976). Appellant subsequently filed the instant motion alleging, inter alia, that the trial court had failed to give him credit for the time he spent in jail from his arrest to the entry of his guilty plea to the original charge.

Appellant’s allegation is not conclusively refuted by the record. It may well be, as appellant claims, that the 117 days for which he was given credit cover only the period between his return to jail after his escape and the revocation of his probation. Appellant is entitled to credit for all of the time he spent in jail prior to sentencing on this offense; Section 921.161(1), Florida Statutes (1975); Marshall v. State, 310 So.2d 55 (Fla. 2d DCA 1975); including the time he spent in jail as a condition of his probation; State v. Jones, 327 So.2d 18 (Fla.1976).

Accordingly, the order denying appellant’s motion is vacated and the cause remanded with directions to hold an eviden-tiary hearing to determine and award to appellant the total amount of credit time to which he is entitled.

BOARDMAN, C. J., and HOBSON and DANAHY, JJ., concur.


author: DANAHY, Judge.

text:
    Eileen PADOVANO, Appellant, v. Leo WOTITZKY and Stanley Rosenstein, Appellees.
    No. 77-1363.
    District Court of Appeal of Florida, Second District.
    March 8, 1978.

      Philip J. Padovano, St. Petersburg, and Lee E. Haworth of Isphording, Payne & Muirhead, Sarasota, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee Wotitzky.
    Charles J. Cheves of Cheves, Hazen & Rapkin, Venice, for appellee Rosenstein.
   DANAHY, Judge.

Appellant is the holder of record of more than 5% of the outstanding shares of stock of Grove City Realty Corporation, a New Jersey corporation authorized to do business in Florida and having its principal place of business in Charlotte County. Appellee Wotitzky is the attorney for the corporation and appellee Rosenstein is its president. Appellant seeks to assess a statutory penalty against appellees for their refusal to allow appellant to inspect the books and records of Grove City. The applicable statute is Section 607.157, Florida Statutes (1975), which reads in pertinent part as follows:

(4) Any person who shall ... be the holder of record of . . .at least 5 percent of the outstanding shares of any class or series of a corporation, upon written demand stating the purpose thereof, shall have the right to examine, in person or by agent or attorney, at any reasonable time or times, for any proper purpose its relevant books and,, records of accounts, minutes, and record of shareholders and to make extracts therefrom.
(5) Any officer or agent who, or corporation which, shall refuse to allow any such shareholder ... or his agent or attorney so to examine and make extracts from its books and records of account, minutes, and record of shareholders for any proper purpose shall be liable to such shareholder . . . in a penalty of 10 percent of the value of the shares owned by such shareholder .

Appellees filed motions to dismiss. Both were granted, with leave to amend. Appellant declined to amend her complaint and it was then dismissed with prejudice. This appeal followed. We reverse.

Although appellees’ motions to dismiss set forth several grounds, only one ground as to each appellee has been argued on this appeal. Appellee Wotitzky contends that the complaint was defective in failing to allege specifically that appellee Wotitzky had the power and the authority to permit appellant’s inspection of Grove City’s books and records. As to appellee Wotitzky, the complaint alleged that “[t]he defendant, Leo Wotitzky, was at all times material hereto the attorney for and authorized agent of Grove City Realty Corporation.” We believe that the complaint sufficiently alleged Wotitzky’s agency and authority. It is not necessary that the complaint charge Wotitzky with possession or custody of the books and records in question. Babbitt v. Paceo Investors Corp., 246 Or. 261, 425 P.2d 489 (1967). Whether appellee Wotitzky had any specific authority with respect to inspection of Grove City’s books and records is an issue which, raised by an answer denying that authority, is to be determined on the basis of the evidence presented.

Appellee Rosenstein does not dispute the proposition that, by virtue of the provisions of Section 607.307, Florida Statutes (1975), Section 607.157 applies to foreign corporations authorized to do business in Florida. Section 607.307 reads as follows:

A foreign corporation for which an application for authority under this chapter has been filed shall . . . enjoy the same, but no greater, rights and privileges as a domestic corporation organized for the purposes set forth in the application and, except as otherwise provided in this chapter, shall be subject to the same duties, restrictions, penalties, and liabilities now or hereafter imposed upon a domestic corporation of like character.

Section 607.004, Florida Statutes (1975), states that “[a]s used in this chapter, unless the context otherwise requires, the term . ‘corporation’ . . . means a corporation subject to the provisions of this chapter, except a foreign corporation.”

Appellee Rosenstein points out that Section 607.157 can apply to a foreign corporation only by virtue of the provisions of Section 607.307 and the latter section does not mention officers or agents of foreign corporations. He, therefore, urges the conclusion that, although Section 607.157 may apply to a foreign corporation, it does not apply to the officers or agents of the foreign corporation and, accordingly, the trial judge was correct in dismissing the complaint with respect to appellee Rosenstein.

We find no Florida case nor any case from any other jurisdiction specifically ruling on the point raised by appellee Rosen-stein. However, in at least one other jurisdiction, a right of action for the statutory penalty against the officers of a foreign corporation as well as the corporation under a statute similar to Section 607.157 has implicitly been recognized. McCormick v. Statler Hotels Delaware Corporation, 55 Ill. App.2d 21, 203 N.E.2d 697 (1964); Tasner v. U. S. Industries, Inc., 379 F.Supp. 803 (N.D. Ill.1974).

We are mindful that subpara-graph (5) of Section 607.157 is penal in nature and that a penal statute must be construed strictly in favor of the one against whom the penalty is sought to be imposed. However, as the court in the McCormick case pointed out in construing a similar statute, the purpose of our statute is to protect shareholders and the need for protection is the same whether the business was incorporated in this state or in another. It seems to us that this purpose requires an interpretation that if, as appellee Rosen-stein agrees, Section 607.157 applies to a foreign corporation and if, as here, personal jurisdiction of an authorized officer or agent of the foreign corporation can be obtained, the statutory penalty can be assessed against that officer or agent notwithstanding that the corporation is a foreign corporation. We cannot envision a legislative purpose to exclude officers or agents of foreign corporations from the provisions of Section 607.157 while an officer or agent of a domestic corporation comes within the provisions of the statute. The statutory remedies envisioned by the legislature would be inadequate in many cases if they applied only to a foreign corporation and not to the officers and agents through whom the foreign corporation acts or refuses to act.

We, therefore, reverse this case with instructions to reinstate appellant’s complaint and for further proceedings not inconsistent with this opinion.

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

      . The corporation is not a party to this action.

      . On this point generally see Annot., 19 A.L. R.3d 869 (1968) and S. Kaplan, Foreign Corporations and Local Corporate Policy, 21 Vand.L. Rev. 433 (1968).


author: RYDER, Judge.

text:
    Elizabeth CALTAGIRONE, Clarence Wingrove and Hernando Classroom Teachers’ Association, Appellants, v. The SCHOOL BOARD OF HERNANDO COUNTY, Florida, Appellees.
    No. 77-1942.
    District Court of Appeal of Florida, Second District.
    March 8, 1978.

      Richard H. Frank and Mark F. Kelly, Tampa, for appellants.
    Joseph E. Johnston, Jr., Brooksville, for appellees.
   RYDER, Judge.

We have before us today an interlocutory appeal of two orders; one dismissing Count I and striking Count II of a counterclaim and another denying a motion to dissolve a temporary injunction. We affirm in part and reverse in part.

The Hernando Classroom Teachers Association [HCTA] is the officially recognized collective bargaining representative for a unit of school teachers employed by the School Board of Hernando County, Florida [Board], a public employer within the meaning of Section 447.203, Florida Statutes (1975). On September 16, 1976 the HCTA and the Board entered into a collective bargaining agreement. This agreement was executed on behalf of the Board by its then chairman and signed on behalf of the HCTA and later ratified by the Board and the members of the bargaining unit represented by HCTA.

Thereafter, the Board announced that it perceived certain defects in the manner in which those who executed the agreement were described on its signature page. During the dispute over the form of the signature page, the Board refused to implement the terms of the agreement. HCTA acquiesced in certain modifications to the signature page demanded by the Board. The agreement, however, was never reratified by the Board or the members of the bargaining unit represented by HCTA. However, both the Board and HCTA substantially performed their obligations in accordance with the agreement.

On February 10, 1977 appellant Caltagi-rone and on March 8, 1977 appellant Win-grove filed grievances, and HCTA attempted to have these grievances submitted to arbitration pursuant to Article IV of the agreement.

On June 30, 1977 the Board filed a complaint for declaratory relief and prayed for a temporary injunction restraining the appellants from proceeding to arbitration, alleging that (1) there was no valid agreement between the parties and (2) if the agreement is valid, the matters raised by the individual appellants are not subject to the grievance procedure.

The trial court, on July 1, 1977, and after a hearing, issued a temporary injunction restraining appellants from proceeding to arbitration. The appellants, on July 22, 1977, filed an answer asserting that the agreement is valid and the matters are grievances. Appellants also filed a two-count counterclaim and alleged in Count I that the Board breached the contract by failing to cause copies of the contract to be printed and distributed in accordance with its terms and sought compensatory damages. In Count II, an application was made for an order compelling the Board to submit to arbitration pursuant to Section 682.03, Florida Statutes (1975).

The Board filed a motion to dismiss both counts of the counterclaim on August 3, 1977 asserting that the Board was protected by sovereign immunity, and also filed a motion to strike both counts as “redundant and not seeking any relief not available in the main suit.” On October 28, 1977 the court entered an order dismissing Count I and striking Count II of appellants’ counterclaim.

The appellants filed a motion to dissolve the temporary injunction on September 13, 1977. After an evidentiary hearing, the trial court denied this motion on November 14, 1977. Appellants timely appealed both orders.

Appellants contend in their first point on appeal that the trial court exceeded its jurisdiction by entering and maintaining an injunction temporarily halting arbitration.

At this juncture, we find a strikingly similar question addressed by this court in R. B. F. Management Company v. Sunshine Towers Apartment Residences Association, Inc., 352 So.2d 561 (Fla. 2d DCA 1977). Sunshine Towers stands for the proposition that if a lawsuit is brought for the purpose of determining the validity of the entire contract then it is proper for the court to refuse to compel arbitration until the issue of the contract is settled completely.

We note also that appellants joined in the litigation for declaratory relief and, in fact, filed a counterclaim as noted above.

The more basic question in this entire matter is whether there was a valid contract between the parties. That is a question of law and the circuit judge below has jurisdiction to determine that. We find that proposition basic. We affirm his action in entering and maintaining a temporary restraining order halting arbitration until that question has been decided by him.

We reverse, however, his dismissal of Count I of appellants’ counterclaim seeking damages for breach of the contract, noting that the Board is not so clothed with sovereign immunity as to avoid the plain language of Section 230.22(4), Florida Statutes (1975), which provides in part that the Board “. . may, when acting as a body, make contracts, also sue and be sued in the name of the school board; . . . .”

The trial court’s striking of Count II of appellants’ counterclaim does not constitute an abuse of discretion on the facts presented, thus we affirm.

Affirmed in part; reversed in part; remanded for further proceedings not inconsistent with this opinion.

BOARDMAN, C. J., and HOBSON, J., concur.


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

text:
    STATE of Louisiana v. Gregory RUGON.
    No. 60001.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 21, 1977.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William F. Wessel, Louise S. Korns, Bridget Bane, Lindsay Alexis Larson, III, Asst. Dist. Attys., New Orleans, for relator (plaintiff).
    John V. Baus and Donald V. Organ, New Orleans, for respondent, Judge Matthew S. Braniff.
   SANDERS, Chief Justice.

The State charged Gregory Rugon with possession of marijuana, in violation of LSA-R.S. 40:966. After pleading not guilty, defendant withdrew his plea and entered a plea of guilty. On that date, May 27, 1977, the Orleans Parish Criminal District Court Judge postponed sentencing. On June 6, 1977, the judge sentenced defendant to serve three months in the Orleans Parish Prison. The court suspended the execution of sentence during good behavior under the terms and conditions set forth in Article 894 of the Code of Criminal Procedure and under the special condition that defendant donate $200 to the Judicial Administrator of the Criminal District Court for the Appellate Process Support and Court Programs Fund. The court further ordered defendant to pay court cost of $67.50 or to serve an additional thirty days in the parish prison. At this-time, the State objected to the special condition of probation, the donation. The court overruled the St?+e’s objection. Upon the State’s application, we granted supervisory writs. La., 346 So.2d 1271 (1977).

The sole issue presented is the validity of the $200 “donation” to the Judicial Administrator.

The State contends that the payment is in direct contravention of LSA-R.S. 15:571.11(D). It argues that the pecuniary penalty imposed by the trial court is a fine or forfeiture and thus subject to the legislative mandate in LSA-R.S. 15:571.11(D). The district court judge asserts that the $200 “donation” is not a fine or forfeiture as encompassed by the Statute.

LSA-R.S. 15:571.11(D) provides:

“All fines and forfeitures imposed in criminal cases and prosecutions by the courts of Orleans Parish shall, upon collection, be paid to the district attorney of Orleans Parish who shall deposit same in a special account to be used in defraying the expenses of the criminal courts of the parish, extradictions and such other expenses pertaining to the operation of the criminal courts of Orleans Parish and the office of the district attorney of Orleans Parish as in his discretion may be necessary. Provided, that any surplus remaining in said special account or fund on December 31st of each and every year shall be distributed as follows: one-half to be retained by the district attorney of Orleans Parish, to be used as hereinabove set forth, and the other half to be remitted to the city of New Orleans. No money shall be paid out of this fund except upon motion by the district attorney of Orleans Parish and approval by a judge of the criminal district court of Orleans Parish. A copy of said motion must be served on the budget officer of the city of New Orleans twenty-four hours prior to the approval thereof by the judge. Said fund shall be annually audited by the director of finance of the city of New Orleans.” (Emphasis added.)

In determining whether a given payment is a fine, the label given by the trial judge is not conclusive. Shore v. Edmisten, 290 N.C. 628, 227 S.E.2d 553 (1976).

A donation is a gratuity; a voluntary alienation of property; a gift. Webster, N., New International Dictionary (3rd ed. 1961) p. 673. The official court minutes clearly indicate that the suspension of defendant’s three-month sentence was conditioned upon his “donation” of $200. If defendant paid $200 to the Judicial Administrator of the Criminal District Court for the Appellate Process Support and Court Programs Fund, his jail sentence would be suspended. If defendant failed to contribute, he would be confined in the parish prison for thirty days. The contribution was not voluntary or gratuitous. Hence, in our opinion, it was not a donation.

In State v. Brannon, 34 La.Ann. 942 (1882), this Court stated that a fine “is a sum expressly imposed in lieu of, or in addition to a term of imprisonment, or as any part of the punishment for an offense.” (Emphasis added.) Since that time, we have defined a fine as: “a pecuniary penalty” (State v. Price, 124 La. 917, 50 So. 794 (1909)); “a pecuniary exaction, imposed as a punishment for violation of the law.” (McHugh v. Placid Oil Co., 206 La. 511, 19 So.2d 221 (1944)).

When the statute is given a genuine construction to effectuate its funding purpose, the payment at issue here falls within the scope of “fine.”

The trial court judge asserts, however, that the payment in controversy is a valid condition of probation, which can be equated with restitution to the aggrieved party under Louisiana Code of Criminal Procedure Article 895. In pertinent part, that article provides:

“When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following:
“That the defendant shall:
U * * *
“(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court; ”

In our opinion, this argument is not dispositive of the legal question presented. Formulating the sentence so as to make the exaction a condition of probation does not change its essential nature nor bar its classification as a fine. The specific conditions of probation enumerated in Article 895 are not exclusive. See Official Revision Comment (a). The sentencing judge is granted general authority to “ ‘impose any specific conditions reasonably related to ’ . rehabilitation.” The authority is broad enough to include the exaction of a fine as a condition of probation. See, e. g., A.B.A. Standards Relating to Probation § 3.2(d) and Comment at p. 49; Rubin, S., The Law of Criminal Correction, Ch. 6, § 9, p. 218 (1973).

Clearly, the pecuniary exaction is not a reparation or restitution to the aggrieved party. It is essentially a pecuniary exaction in lieu of imprisonment. Hence, we hold that it is a fine within the intendment of LSA-R.S. 15:571.11(D), subject to the legislative mandate that it “be paid to the district attorney for Orleans Parish . to be used in defraying the expenses of the criminal courts.” Accordingly, the sentence must be annulled and set aside, but only insofar as it ordered the payment made to the Judicial Administrator.

For the reasons assigned, that portion of the sentence making the Judicial Administrator the recipient of the fine is hereby annulled and set aside. Accordingly, the case is remanded to the Criminal District Court for the Parish of Orleans for correction of the sentence by making the sum payable to the District Attorney of Orleans Parish in accordance with law and the views herein expressed.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

The majority holds that a trial judge’s authority is broad enough to allow him to order a probationer to pay money to another person as a condition of probation but too narrow to permit a judge to designate the recipient of such payment. It does not appear to me that the legislature intended to so restrict the prerogative of trial judges. There is no indication whatsoever in the statute that a judge may not require a donation for purposes reasonably calculated to further the probationer’s rehabilitation. Nor is there any evidence the legislature intended to .restrict the payment of money, as a condition of probation, to reparation or restitution to the aggrieved party.

La.C.Cr.P. art. 895, in pertinent part, provides:

“A. When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following: [List of specific conditions omitted].” (Emphasis added).

Under this Article, according to Official Revision Comment (a), “ * * * [further leeway is given the sentencing judge under the general authority to ‘impose any specific conditions reasonably related to’ rehabilitation. * * * ” (Emphasis in original).

There is no evidence of record showing that the district judge abused his discretion by imposing a condition of probation not reasonably related to rehabilitation. The majority’s ruling is apparently based upon evidence outside the record that the trial judge intended to impose a fine, rather than a condition of probation, but incorrectly directed its payment to the wrong state agency. I do not think this Court should have considered such evidence and for that reason find no justification for our interference in the sentencing process below.

PER CURIAM.

In his application for rehearing, respondent alleges that our decision prevents the expungement of the conviction record as authorized by LSA-R.S. 44:9.

After a consideration of the issue, we conclude that the decision does not prevent expungement.

The motion for rehearing is denied.

DENNIS J.,

concurs in the per curiam but is of the opinion that a rehearing should be granted.

      . We, of course, express no opinion as to the wisdom of the legislative policy of funding the operations of a court from fines imposed and collected.


author: DENNIS, Justice. SUMMERS, Justice

text:
    Donald James MASHBURN, d/b/a Maison de Mashburn v. Richard H. COLLIN et al.
    No. 59466.
    Supreme Court of Louisiana.
    Dec. 13, 1977.

      Garic K. Barranger, Barranger, Barran-ger, Jones & Fussell, Covington, Mack Bar-ham, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendant-applicant.
    Carl W. Cleveland, Henican, James & Cleveland, New Orleans, for plaintiff-respondent.
   DENNIS, Justice.

“T’aint Creole, t’aint Cajun, t’aint French, t’aint country American, t’aint good.” So began a critique of the cuisine served at Maison de Mashburn, a restaurant near Hammond, which appeared in the “Underground Gourmet” column of the June 22, 1974 New Orleans States-Item newspaper. Shortly after the article was published Donald J. Mashburn, owner and operator of Maison de Mashburn, filed a defamation suit against the column’s author, Richard H. Collin, and the publisher, Times-Picayune Publishing Corporation, seeking $2,000,000 in damages for humiliation, injury to professional reputation and loss of business allegedly caused by the publication. The claim against the Times-Picayune Publishing Corporation was subsequently dismissed following an out of court settlement.

Defendant Richard Collin filed a motion for summary judgment, asserting that the criticism complained of was privileged as “fair comment.” The trial court found that there was no genuine issue as to the fact that the defamatory statements had been made without “actual malice,” that is, without knowledge of their falsity and without reckless disregard for whether they were false, and granted the motion for summary judgment.

The First Circuit Court of Appeal held that, on the record established by the pleadings, affidavit, and deposition on file, see, Louisiana Code of Civil Procedure Article 966, the issue of whether the statements were made with knowing or reckless falsity was not material because Mashburn was a “private” plaintiff, not a “public figure,” who therefore, under the applicable principles of law, Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), needed only to show “fault” to recover damages for defamatory falsehoods. Since the question of Collin’s “fault,” as opposed to “malice,” in publishing the statements, does present a genuine issue as to a material fact, the court of appeal reversed the summary judgment and remanded for further proceedings. 341 So.2d 1236 (La.App. 1st Cir. 1977). We granted certiorari to determine what protection, if any, the common law privilege of “fair comment,” which has been given a federal constitutional dimension by the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny, affords to the libelous statements of a restaurant critic. 343 So.2d 1074 (La.1977).

Before 1925, the Supreme Court did not intimate that the First Amendment was applicable to the states by reason of the Fourteenth Amendment, and a definite decision to this effect did not occur until six years later. Even after this development, the high court consistently refused to extend constitutional protection to libelous statements under the guarantees of freedom of speech and freedom of press. It was not until 1964 that the Supreme Court, in New York Times v. Sullivan, supra, declared that the common law defense of truth, standing alone, was insufficient to protect freedom of expression, and erected a constitutional privilege for fair comment respecting public officials. The Court held that the First Amendment guarantees prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not.

Under the common law rules of defamation, which the Supreme Court used as models in shaping the constitutional privilege of New York Times, a publisher was strictly liable for publication of defamatory statements unless he could prove that the statements were either true or privileged. One of the most important privileges recognized at common law was the privilege of “fair comment.” This was a qualified privilege to express an opinion or otherwise comment on matters of public interest. Traditionally, fair comment concerned persons, institutions or groups who voluntarily injected themselves into the public scene or affected the community’s welfare, such as public officials, political candidates, community leaders from the private sector or private enterprises which affected public welfare, persons taking a public position on a matter of public concern, and those who offered their creations for public approval such as artists, performers and athletes. While the existence of the privilege was undisputed, a large majority of state courts held that only “comment” or opinion was protected and not misstatements of fact. There was, however, a substantial, and vigorous, minority view that even false statements of fact were privileged, if they were made for the public benefit with an honest belief in their truth.

In fashioning the New York Times First Amendment privilege, the Supreme Court borrowed the minority common law fair comment view, elevated it to constitutional status, and limited its use to good faith criticism of public officials. Following New York Times, the Court in a series of decisions clarified and expanded the new constitutional privilege. The designation of “public officials” was expanded to include relatively low-ranking government employees including “at the very least . those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Protection was afforded a broad range of comments about public officials, including, for example, “a charge of criminal conduct, no matter how remote in time or place.” The ambit of the privilege was enlarged to include comments about “public figures” requiring them to prove knowing or reckless falsity before recovering for defamatory statements made respecting their public involvement. “Actual malice,” for purposes of the New York Times constitutional privilege, does not mean either “malice” or “recklessness” as defined at common law, but “knowledge that [the statement] was false or . reckless disregard of whether it was false or not.” A showing of common law “actual malice” is not sufficient to meet the Times standard. In St. Amant v. Thompson, the Court declared:

“ ‘Reckless disregard’ . . . cannot be fully encompassed in one infallible definition . . . [however, the] cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.”

A plurality of the Supreme Court in Ro-senbloom v. Metromedia would have extended the constitutional privilege to “all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” Under this extension, private individuals, like public officials and public figures, would have had to prove knowing or reckless falsity where the defamatory statement concerned matters of public or general concern.

The Rosenbloom plurality view, however, was short-lived. A shift in position by one member of the Court and the replacement of two others resulted in a new majority in Gertz v. Robert Welch, Inc., which approved New York Times and Butts, retreated from the Rosenbloom extension, and drastically revised the constitutional privilege, along with a great deal of the states’ traditional defamation law. The Court held that (1) public officials and public figures may recover for defamation only upon clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard of the truth; (2) the states may define the standard of liability for a publisher of defamatory falsehood injurious to a private individual (at least where the defamatory potential of the material is apparent on its face) so long as they do not impose liability without fault; and, (3) presumed and punitive damages may be recovered only by establishing with clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or reckless disregard for the truth. Thus, the Gertz court, in a radical reinterpretation of the First Amendment, retreated from the position taken in Rosenbloom in some respects, but in others it made “more sweeping incursions” into the common law. For our purposes in the instant case it is important to note that, whatever the restrictions imposed in other areas, Gertz actually broadened the class of defendants protected under the privileges by extending it to include those accused of defaming “private” plaintiffs.

These cases in which the Supreme Court has struggled to reconcile First Amendment freedoms and the law of defamation have involved misstatements of facts. Nevertheless, the decisions have had a correlative effect upon the power of the states to impose liability for defamatory opinions. The Court specifically stated in New York Times that since the First Amendment, which is applicable to the states through the Fourteenth Amendment, “requires recognition of the conditional privilege for honest misstatements of fact, it follows that a defense of fair comment must be afforded for honest expression of opinion based upon privileged, as well as true, statements of fact.” In the Gertz decision it is strongly indicated that the Court, in relaxing the stringent test of the New York Times rule in cases brought by private individuals, was speaking in terms only of libelous misstatements of fact and that mere comment or opinion on public matters, even though defamatory, enjoys the unqualified protection of the First Amendment. The Court contradistinguished defamatory opinions and defamatory misstatements of facts as follows:

“We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” 418 U.S. at 339-40, 94 S.Ct. at 3007, 41 L.Ed.2d at 805.

In Letter Carriers v. Austin, decided the same day as Gertz, the Court flatly stated that “[bjefore the test of reckless or knowing falsity can be met, there must be a false statement of fact,” and refused to apply the test to what a majority of the Court found to be a mere expression of opinion. The logical inference to be drawn from the language and the Court’s analysis in these cases is that mere opinion expressed on matters of public concern cannot be the basis of a defamation action. If “[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters,” then surely the First Amendment must also protect the expression of opinion in order to foster “uninhibited, robust and wide-open” debate on public issues. Indeed, the constitutional safeguard “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” However, in New York Times the Court indicated that defenses which protect both misstatements of fact and expressions of opinion are defeasible if the plaintiff proves “actual malice,” which was defined by the Court as knowing or reckless disregard of the truth.

We conclude, therefore, that the First Amendment freedoms as defined by the New York Times-Gertz series of decisions afford, at the very least, a defense against defamation actions for expressions of opinion about matters of public concern made without knowing or reckless falsity. Thus the Supreme Court appears to have drawn an important distinction between statements of fact and expressions of opinion in molding the constitutional privilege. While the states are free to impose liability for misstatements of fact about private individuals made with fault, they may impose liability for expressions of defamatory opinions about matters of public concern only when made with knowing or reckless falsity. The contours of the New York Times-Gertz privilege regarding expressions of opinion are uncertain but we think that it clearly protects at least (1) mere expressions of opinion; (2) by members of the press or the news media; (3) concerning matters of public interest or concern; (4) when made without knowing or reckless falsity.

The distinction drawn between opinion and statement of fact has long been important at common law because most states restricted the privilege of fair comment to expressions of opinion. Although difficult to state in abstract terms, as a practical matter, the crucial difference between statement of fact and opinion depends upon whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker’s or writer’s opinion, or as a statement of existing fact. The opinion may be ostensibly in the form of a factual statement if it is clear from the context that the maker did not intend to assert another objective fact but only his personal comment on the facts which he had stated. An expression of opinion occurs when the maker of the comment states the facts on which his opinion of the plaintiff is based and then expresses a comment as to the plaintiff’s conduct, qualifications or character; or when both parties to the communication know the facts or assume their existence and the comment is clearly based on the known or assumed facts in order to justify the comment. Criticism is privileged as fair comment only when the facts on which it is based are truly stated or privileged or otherwise known either because the facts are common knowledge or readily accessible.

In determining whether an expression is a statement of fact or opinion under the common law, words must be read in their context. Words which, taken by themselves, would appear to be a positive allegation of fact, may be shown by the context to be a mere expression of opinion or argumentative influence. On the other hand, if a statement, ostensibly in the form of an opinion, is apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication, the expression gives rise to the inference there are undisclosed facts that justify the opinion. In such a case the expression, although in the form of an opinion, in reality implies a statement of fact, which is not usually protected by the common law privilege. In order for a statement to be defended as fair comment it must be recognizable by the ordinary reasonable person as opinion and not as a statement of fact.

Although we have discovered no Louisiana cases involving food or restaurant critics, there are ample precedents recognizing the defense of “fair comment” in defamation suits. Since we find that the publication in the instant case is fully protected by the principles enunciated in New York Times and Gertz, however, it is not necessary that we consider at this time whether our jurisprudential fair comment privilege and the freedom of expression guarantees of our state constitution also provide defenses for the criticism.

The First Amendment requires careful appellate review of the facts found at trial or determined for purposes of summary judgment. The Supreme Court stressed this judicial obligation in New York Times Co. v. Sullivan, supra :

“ * * * This Court’s duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across ‘the line between speech unconditionally guaranteed and speech which may legitimately be regulated.’ * * * In cases where that line must be drawn, the rule is that we ‘examine for ourselves the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.’ * * * We must ‘make an independent examination of the whole record,’ * * * so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression. (Citations omitted).

376 U.S. at 285, 84 S.Ct. at 728, 11 L.Ed.2d at 709-10.

It is true that, as a general rule, a Louisiana appellate court should not disturb the reasonable findings and inferences of fact of a trial judge or jury, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La.1973). But when interpretation of a communication in the light of the constitutional requirements is involved, our scope of review is to examine in depth the “statements in issue” and the “circumstances under which they were made,” see, New York Times Co. v. Sullivan, supra, 376 U.S. at 285, n. 26, 84 S.Ct. at 728,11 L.Ed.2d at 709; Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976); Davis v. Schuchat, 166 U.S.App.D.C. 351, 354-55, 510 F.2d 731, 735-36 (1975); Goldwater v. Ginsburg, 414 F.2d 324 (2d Cir. 1969), cert. denied 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970), and to “re-examine the evidentiary basis” of the lower court decision in the light of the Constitution. Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S.Ct. 633, 636, 28 L.Ed.2d 45, 50 (1971).

In order to consider within their context the words which plaintiff contends were libelous, we set forth below the pertinent portion of the June 22, 1974 “Underground Gourmet” column with the statements complained of in italics.

“MAISON DE MASHBURN, Country Club Rd. U.S. 190, Hammond, La. Closed Monday. Dinner 5-11 p. m. Sunday from noon. Reservations. Tel. 1-345-0569. Bar.
“T’aint Creole, t’aint Cajun, t’aint French, t’aint country American, t’aint good. There’s been a lot of fuss about this handsome new restaurant on the Covington-Hammond Rd. and more than the usual amount of letters telling me to try it. Mashburn’s is an impressively set-out restaurant located on a large and beautiful estate, in a fine 1907 house, with all of the amenities of a good European country inn.
“I don't know how much real talent in cooking is hidden under the melange of hideous sauces which make this food and the menu a travesty of pretentious amateurism but I find it all quite depressing. The line between genius and eccentricity is sometimes a thin one but at Mash-burn’s it is not really in doubt for very long. The only grand dish served here that I found acceptable was a good oysters Rockefeller (recommended). The oysters Bienville were a ghastly concoction combining all manners of strange flavors that are too weird even for this grand variable of the Creole cuisine. The style — such as it is — of this restaurant is best demonstrated early in the meal by the escargots Bourgoghe. Mashburn’s is not happy with the classic dish; snails in their shells in a rich garlic butter sauce. Here the snails are placed on mushrooms and served in a ramekin with butter sauce. Not bad as an idea providing the butter sauce is at least as good as that of the classic dish being ‘improved.’ It decidedly is not.
“This is where the breaking point comes between marvelous originality and bizarre improvisation —to know where to stop, which effect to make and simply what tastes good and what doesn’t. Escargots a la Mashburn are simply pretentious failures that leave a bad taste in one’s mouth.
“The fussiness with classic snails reflect this restaurant’s strange image of itself, perhaps that of the only world purveyor of Hammond French food, although having eaten in some good places in Hammond I cannot honestly blame the taste shown by Mashburn’s on this little town. A good example is a dish'that is done extremely well in Creole and Cajun cooking as well as in French haute and country cooking, roast duck. I know several fine ways to eat duck and have no great urge to improve upon the classic styles.
“Mashburn’s does. Put a yellow flour sauce on top of the duck, flame it for drama and serve it with some horrible multi-flavored rice in hollowed-out fruit and what have you got? A well-cooked duck with an ugly sauce that tastes too sweet and thick and makes you want to scrape off the glop to eat the plain duck. This is not an improvement — it is a travesty of taste.
“A real tour de force here is the stuffed eggplant maison de Mashburn. Not stuffed eggplant the way Galatoires’ does it nor the kind served all over the city in little workingmen’s restaurants. No, at Mashburn’s it’s different. Served in a casserole with minutely chopped particles of all manner of seafood (not good, not that bad), the piece de resistance that turns this into a gourmet dish is to empty a shaker full (more or less) of paprika on top of it. Voila! Now the casserole looks and tastes just like bad overcooked broiled fish. And just try scraping paprika off a casserole.
“I don’t know if all of this is Mr. Mash-burn’s taste or if he is somehow convinced that opening an elaborate restaurant means that one has to cover everything with a GOURMET sauce. Most of the food tastes as if the conceptions were wrong to begin with —as if someone flipped through pages of bad cookbooks looking for unusual sauces to make an ordinary dish impressive. Some of the basic cooking is good as with the duck or the simple and excellent French-fried potatoes. Or with the poached trout under a crawfish sauce that I would have named trout a la green plague. The trout was fine; a perfectly poached trout is a rare enough thing and I would have been impressed with it. The ugly green sauce had the same effect as putting mushrooms with snails, Paprika on eggplant or yellow death on duck.
“Only the proprietor of this new place can answer the question of whose taste is on the restaurant’s menu. If it is his, then this restaurant is an irremedially ghastly mistake; if he really likes the nice plain food hidden beneath those sorry sauces than [sic] he should save us all the trouble of scraping them off by serving good honest plain food the way classic French and classic Creole restaurants do.
“Entres [sic] run from $4.75 for stuffed eggplant to $8.50 for prime beef, appetizers are $1.50 to $2.25 and desserts run from 75 cents to $1.50. Other grand entrees include Turkey ‘Cardón Bleu’ (sic) chicken supreme, crabmeat au gratín, trout menuire or amandine and seafood medley Florentine.
“The chef’s puffed-baked potato in which the insides are baked, combined with bacon and sour cream etc. are as good as they are at any country club or hotel banquet, which is to say gloopy; the caramel custard tastes like a fallen butterscotch flan which is not that bad but hardly like caramel custard.
“The coffee is good, the wine list adequate and sensible, the service perhaps a bit too fussy but basically good. The restaurant as it stands now is a burlesque.”

The twenty some odd statements complained of within the “Underground Gourmet” column may be separated into three groups for the purpose of analysis. First, many of the expressions are evaluations of a purely subjective nature. For example, Collin said that the food “[t]’aint Creole, t’aint Cajun, t’aint French, t’aint country American, t’aint good;” that “the menu [was] a travesty of pretentious amateurism;” that one dish served was a “bizarre improvisation” and a “pretentious failure . ;” that the restaurant was eccentric, had a “strange image of itself,” and was “a burlesque.” It is clear from a reading of the whole column that these expressions of opinion are based upon facts stated within the publication, and that they do not give rise to inferences that there are other, undisclosed facts which justify the statements. Accordingly, the statements must be designated as comment or opinion, rather than statements of fact. Second, there are a number of statements describing the taste and the appearance of the restaurant’s food. According to the author, the sauces could be described as “hideous” and “glop,” the Oysters Bienville were a “ghastly concoction” of “strange,” and “weird” flavors, the escargots left “a bad taste in one’s mouth,” the duck was served with “horrible multiflavored rice,” the stuffed eggplant looked and tasted like “bad overcooked broiled fish,” and most of the food tasted “as if the conceptions were wrong to begin with,” or as if the sauces came from “bad cook books.” Although these remarks were sharply critical, they undoubtedly amounted to no more than expression of an opinion that the preparation of the food was ill conceived and unskillful. When read in their context, the words could not, as plaintiff contends, cause ordinary reasonable persons to conclude that there were facts suggesting unsanitary conditions not disclosed in the column which provided the basis for the author’s opinion. Third, some of the statements, if taken by themselves, would appear to be allegations of fact, but may be shown by the context to be mere expressions of opinion. In mock praise of the stuffed eggplant, the critic said that “the piece de resistance that turns this into a gourmet dish is to empty a shaker full (more or less) of paprika on top of it.” The tenor and context of this remark unmistakably indicate that it is an example of hyperbole which meant merely that in the critic’s opinion a large amount of paprika unnecessarily had been added to the dish. In similar fashion, when the author speaks of “trout a la green plague” and “yellow death on duck” it is obvious that an ordinarily reasonable person would not infer that these entrees were actually carriers of communicable diseases. Instead, a reading in context readily signifies that the writer was repeating his earlier criticism of the sauces which he thought unfavorably altered the appearance and taste of the food. In the final analysis, when we read the entire piece of criticism to determine how ordinary reasonable persons hearing or reading the statements would be likely to understand them, we find that they would be regarded as expressions of the writer’s opinion, and not as statements of fact. Moreover, they do not reasonably give rise to the inference that there are undisclosed defamatory facts which justify the opinion; and the plaintiff does not contend that any of the column’s expressions that we find are statements of fact were false, e. g., he does not argue in this Court that Collin did not actually visit the restaurant or taste the dishes described.

The evidence on the motion for summary judgment shows that Collin has been writing the “Underground Gourmet” column' for many years. He has also written two editions of the “New Orleans Underground Gourmet,” a book of restaurant critiques published by Simon & Schuster of New York, of which 140,000 copies have been sold publicly. Collin filed his own deposition indicating that he had reviewed hundreds of restaurants in the New Orleans area, that he followed his usual procedure in visiting and evaluating Maison de Mash-burn, and that, while he attempted to use vivid, colorful language in the column, the review nevertheless expressed his careful, honest opinion and reflected no ill will or desire to harm the restaurant or its owners. In opposition Mashburn filed his own affidavit which neither related to the information contained in the column nor contradicted Collin’s deposition. Instead, it merely sought to establish that Donald J. Mash-burn was neither a public official nor a public figure as defined by the New York Times series of cases."

It is undisputed that the Maison de Mashburn is a public restaurant, actively engaged in advertising and seeking commercial patronage. Thus the establishment was a matter of public interest and properly a subject of fair comment under the common law and the constitutional privilege. We think it equally clear that Collin, as a writer of a regular newspaper column, qualifies as a member of the press or the news media, regardless of how ill-defined that term may be or whether the New York Times-Gertz privilege is to be restricted to such persons. Therefore, since we have also concluded that the writings complained of were expressions of opinion rather than statements of fact, they were privileged unless published with knowing or reckless falsity. It is upon this last issue that plaintiff has concentrated his effort to defeat finally the motion for a summary judgment filed by the defendant.

A motion for summary judgment should be granted where it is shown that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. The party moving for summary judgment has the burden of showing the absence of a genuine issue as to any material fact. And where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion. However, when a motion for summary judgment is made and supported, the adverse party cannot rest on the allegations of his pleadings, but must set out in evidence or depositions, “specific facts showing that there is genuine issue for trial.” Moreover, if the New York Times standards may be invoked in a case, the courts must apply them in assessing the summary procedure evidence. Accordingly, in order for a genuine issue to exist concerning the material fact of defendant’s state of mind in making the alleged defamatory expression of fact or opinion, the plaintiff-opponent must show that a judge or jury reasonably could find by clear and convincing evidence that the expression of fact or opinion was made with knowing or reckless falsity. Also, if there is no genuine issue of material fact, the plaintiff-opponent must show that a judge or jury reasonably could find by clear and convincing evidence, after construing all of the facts and inferences reasonably to be drawn therefrom in favor of the plaintiff-opponent, that the alleged defamatory statement was made with knowing or reckless falsity. When reasonable minds must conclude that there is no genuine issue of material fact for trial and that the defendant-mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted.

In eases affecting the exercise of First Amendment liberties, proper summary judgment practice is essential. As the Court in Washington Post Company v. Keogh observed:

“ * * * [T]he stake here, if harassment succeeds, is free debate. One of the purposes of the Times principle, in addition to protecting persons from being cast in damages in libel suits filed by public officials, is to prevent persons from being discouraged in the full and free exercise of their First Amendment rights with respect to the conduct of their government. . . . Unless persons, including newspapers, desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors. * * *

Summary adjudication may be thought of as a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeri-torious actions which threaten the free exercise of rights of speech and press.

The affidavit filed by Mashburn fails to raise a material issue of fact. It is based upon the same misapprehension as the court of appeal opinion, viz., that Collin must show that Mashburn is a “public figure” in order to claim the First Amendment privilege. Since the defendant’s derogatory expressions concerning the restaurant consisted solely of journalistic opinions about a matter of public interest, they were privileged unless uttered with knowing or reckless falsity. The affidavit is devoted solely to the question of whether Mashburn was a “public figure,” an issue which is not material under the facts before the Court for purposes of the motion for a summary judgment. In contrast, Collin’s deposition does establish satisfactorily the absence of knowing or reckless falsity on his part. Further, the reasonable inferences favorable to Mashburn which may be drawn from the facts before the Court do not show that a reasonable trier of fact could find by clear and convincing evidence that plaintiff has been defamed with knowing or reckless fal.sity by defendant.

Accordingly, we conclude that the trial judge was correct in granting summary judgment for the defendant in this case. There is no genuine dispute as to a material issue of fact and upon the facts before the Court the mover is entitled to judgment.

In order to avoid confusion in this evolving area of law, it is desirable that we state clearly some of the issues which have not been decided. Since the Supreme Court decisions from New York Times through Gertz and Firestone establish only minimum safeguards for the freedom of speech and the freedom of press under the First Amendment, it is permissible and perhaps appropriate for a state to grant broader protection of these important rights under its own constitution or laws. Because an expression of opinion without knowing or reckless falsity about a matter of public concern by the press is fully protected under the First Amendment aegis, we did not consider to what extent our state constitution, jurisprudence and statutes also protect expression of such opinions. Nor did we attempt to define the ambit of Louisiana’s safeguard for defamatory misstatements of fact. Since the decision in Gertz many states have applied its negligence standard of liability in defamation actions based on misstatements of fact brought by private persons, while some have followed the Ro-senbloom rationale, applying an actual malice or gross negligence standard of liability in actions based on defamatory misstatements of fact brought by private individuals involved in matters of general or public interest. It is clear that a state is free to adopt any reasonable standard, so long as it affords the minimum protection required by the New York Times-Gertz cases. In the instant case it was not necessary for us to define such a standard for Louisiana because we found the expressions in question to be opinions fully protected by the minimum federal standards.

The judgment of the court of appeal is reversed and the judgment of the trial court is reinstated. The costs of all proceedings in this Court are assessed to the respondent.

SUMMERS, J., dissents and will assign reasons.

SUMMERS, Justice

(dissenting).

The majority’s analysis of how ordinary reasonable persons reading the column would be likely to understand it is a cavalier disregard of the full context and substance of the published text. The impression I gain from a reading is that the author is stating the facts concerning the food at Mashburn’s, and I believe that “reasonable” persons would come to a like conclusion. No food could reach the depths of degradation heaped upon Mashburn’s menu by this column.

Mashburn’s restaurant represents a conscientious undertaking by a private individual in a harmless enterprise. It has no broad impact upon the public in what the author characterizes as the restaurant’s effect upon a “little town”. Why the author would employ the power of the press and embark upon such a vicious and sustained attack defaming and maligning virtually all of Mashburn’s culinary efforts is unexplained. One thing is certain. The composition on its face is undoubtedly designed to strike at the very heart of Mashburn’s business causing him injury, untold humiliation and embarrassment.

In my opinion the tenor of this publication offends any ordinary standard of decency and fair comment. It constitutes a degrading, malicious and unprovoked attack which no privilege or right should condone.

In all matters involving rights and privileges there are corresponding obligations and responsibilities. In my view this publication demonstrates a total lack of restraint in the use of the awesome power of the press against a small private business man engaged in an honest and conscientious effort to earn a living — an enterprise with a very limited effect upon the public interest. Just as Mashburn is not a public official subject to almost unrestrained criticism, the author of this column is not entitled to any special license or privilege not enjoyed by other private individuals.

I would remand the case to the trial court to be tried by a jury.

      . Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925).

      . Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).

      . E. g., Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (dictum); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (dictum).

      . 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

      . 1 Hanson, Libel & Related Torts, § 137, p. 103 (1969).

      . Id. § 138, p. 104; Gatley on Libel and Slander, § 107 (6th ed. 1967); Restatement of Torts 2d, § 566 (1977).

      . W. Prosser, Torts, § 188, p. 819 (4th ed. 1971); Gatley, § 706 (7th ed. 1974); but see, Harper. & James, The Law of Torts, § 5.28 (1956).

      . Coleman v. MacLennan, 28 Kan. 711, 98 P. 281 (1908); Prosser, § 118, p. 820; Noel, Defamation of Public Officers and Candidates, 49 Cal.L.Rev. 875 (1949).

      . J. Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349, 1366 (1975).

      . See, Robertson, Defamation and the First Amendment, 54 Tex.L.Rev. 199, 201-212 (1976).

      . Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 675, 15 L.Ed.2d 597, 605 (1966).

      . Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 628, 28 L.Ed.2d 35 (1971).

      . Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

      . New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 725, 11 L.Ed.2d 686 (1964).

      . Local 496, Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974).

      . St. Amant v. Thompson, 390 U.S, 727, 730-31, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267 (1968). See, Robertson, supra, pp. 201-212.

      . 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971).

      . Id. at 43. See, Francis v. Lake Charles American Press, 262 La. 875, 265 So.2d 206 (1972) in which this Court applied the Rosenbloom standard.

      . 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

      . J. Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349, 1366 (1975).

      . Gertz, supra, at 342-43, 94 S.Ct. 2997.

      . Id. at 347-48, 94 S.Ct. 2997.

      . Id. at 348-50, 94 S.Ct. 2997.

      . Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 59, 91 S.Ct. 1828, 29 L.Ed.2d 321 (1971) (White, J., concurring).

      . 376 U.S. at 292, n. 30, 84 S.Ct. at 732.

      . A. Hanson, Libel and Related Torts, § 141, Supplement No. 3 (1976).

      . 418 U.S. 264, 284, 94 S.Ct. 2770, 2781, 41 L.Ed.2d 745, 761 (1974). A local union’s publication of a “list of scabs” followed by Jack London’s “definition of a scab” expressed in most abusive language was held to be privileged because “such an opinion, even in the most pejorative terms, is protected under federal labor law.” 418 U.S. 284, 94 S.Ct. 2781. See also, Greenbelt Cooperative Publ. Assn. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970).

      . Restatement of Torts 2d, § 566, p. 172 (1977).

      . 418 U.S. at 340, 94 S.Ct. at 3007, 41 L.Ed.2d at 805.

      . Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498, 1506 (1957), quoted with approval in New York Times v. Sullivan, supra, at 376 U.S. 269, 84 S.Ct. at 720, 11 L.Ed.2d at 700.

      . New York Times Co. v. Sullivan, 376 U.S. at 292, n. 30, 84 S.Ct. at 732, 11 L.Ed.2d at 713.

      . See, Robertson, Defamation and the First Amendment: In Praise of Gertz v. Robert Welch, Inc., 54 Texas L.Rev. 199, 215 (1976) for discussion of the applicability of the Gertz decision to cases of defamation by others than publishers and broadcasters.

      . Hanson, § 139, p. 104; Harper & James, § 5.28, p. 458. Comment, Developments in the Law of Defamation, 69 Harv.L.Rev. 875, 927 (1956).

      . Harper & James, § 5.28, p. 458.

      . Restatement of Torts, 2d ed., § 566, p. 171.

      . Id.

      . Id.

      . Harper & James, § 5.28, p. 459.

      . Gatley, § 709, p. 295.

       “The Seventh Amendment does not, as respondent contends, preclude such an examination by this Court. That amendment, providing that ‘no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law,’ is applicable to state cases coming here. * * * But its ban on re-examination of facts does not preclude us from determining whether governing rules of federal law have been properly applied to the facts. * * *.” (Citations omitted).

      . Restatement of Torts, 2d, § 566, p. 172.

      . Gatley, § 711, p. 297.

      . E. g., Madison v. Bolton, 234 La. 997, 102 So.2d 433 (1958) (see extensive authorities cited); Matassa v. Bel, 246 La. 294, 164 So.2d 332 (1964); Flanagan v. Nicholson Publishing Co., 137 La. 588, 68 So. 964 (1915); See, Comment, Defamation: A Compendium, 28 La.L.Rev. 82 (1967); Comment, Defamation — Conditional Privilege in Louisiana, 6 La.L.Rev. 417 (1945); Cf. La.R.S. 14:49. This statute, which establishes a defense of qualified privilege to criminal defamation, in pertinent part, provides: “A qualified privilege exists and actual malice must be proved, regardless of whether the publication is true or false, in the following situations:
      “ * * * (2) Where the publication or expression is a comment made in the reasonable belief of its truth, upon,
      “(a) The conduct of a person in respect to public affairs; or
      “(b) A thing which the proprietor thereof offers or explains to the public.

      The “Reporter’s Comment” indicates that the statute is a substantial codification of the law of “qualified privilege” recognized by the Louisiana civil jurisprudence.

        .See, La.Const. of 1974, art. I, § 7. See, State of Louisiana Constitutional Convention of 1973 Verbatim Transcripts, Vol. XIII, 41st day, pp. 41-52; 42nd day, pp. 9-53.

      . The original petition does not specifically point to these statements as being libelous, but in brief and oral argument plaintiff’s counsel indicated that they are the basis of this suit.

      . One statement does not fit in any of the categories. In his deposition Collin indicated that he may have exaggerated when he said there had been “more than the usual amount of letters telling me to try” the restaurant. However, under the pleadings, affidavit, and deposition on file, this statement clearly was not defamatory.

      . “To deny to the press the right to use hyperbole, under the threat of removing the protecting mantle of New York Times would condemn the press to an arid, desiccated recital of bare facts.” Time, Inc. v. Johnston, 448 F.2d 378, 384 (4th Cir. 1971).

      . See footnote 6, supra.

      . See footnote 32, supra.

      . La.C.C.P. art. 966; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976).

      . Weinberger v. Hynson, Wescott & Dunning, 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973).

      . United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Moore’s Federal Practice, § 56.15[1]; Green v. Southern Bell Tel. & Tel. Co., 204 So.2d 648 (La.App. 3d Cir. 1968).

      . La.C.C.P. art. 967; Cates v. Beauregard Electric Cooperative, Inc., supra, 369,

      . New York Times v. Sullivan, supra, 376 U.S. at 285, 84 S.Ct. at 728, 11 L.Ed.2d at 710.

      . See, e. g., Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972); Bon Air Hotel v. Time, Inc,, 426 F.2d 858 (5th Cir. 1970); Time, Inc. v. McLaney, 406 F.2d 565 (5th Cir. 1969); United Medical Laboratories v. CBS, 404 F.2d 706 (9th Cir. 1968).

      . Cates v. Beauregard Electric Cooperative, Inc., supra, at 370; Washington Post Company v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (1966) (citing authorities at 967-68).

      . 125 U.S.App.D.C. 32, 365 F.2d 965 (1966).

      . Id. at 968.

      . See, Wright & Miller, Federal Practice and Procedure, § 2730, p. 591 (1973).

      . Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 560 P.2d 1216 (1977); Corbett v. Register Publishing Co., 33 Conn.Supp. 4, 356 A.2d 472 (Super.Ct.1975); Cahill v. Hawaiian Paradise Park Corp. (Haw.), 543 P.2d 1356 (1975); Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292 (1976); Gobin v. Globe Publishing Co., 216 Kan. 223, 531 P.2d 76 (1975); Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976); Stone v. Essex Cty. Newspapers, Inc. (Mass.), 330 N.E.2d 161 (1975); Thomas H. Maloney & Sons, Inc. v. E. W. Scripps Co., 43 Ohio App.2d 105, 334 N.E.2d 494 (1974), cert. denied, 423 U.S. 883, 96 S.Ct. 151, 46 L.Ed.2d 111 (1975); Martin v. Griffin Television, Inc., 549 P.2d 85 (Okl.1976); Taskett v. King Broadcasting Co., 86 Wash.2d 439, 546 P.2d 81 (1976).

        .Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450 cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975); Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc. (Ind.App.), 321 N.E.2d 580 (1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1112, 47 L.Ed.2d 318 (1976); Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569 (1975).

      . For excellent discussions of this area of law and anticipated developments, see, Robertson, Defamation and the First Amendment: In Praise of Gertz v. Robert Welch, Inc., 54 Tex.L. Rev. 199 (1976); Anderson, A Response to Professor Robertson: The Issue is Control of Press Power, 54 Tex.L.Rev. 271 (1976); Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349 (1975).