text:
    Ruby PITTMAN, Appellant, v. VOLUSIA COUNTY et al., Appellees.
    No. NN-186/T1-62.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.

      Daniel J. Roberson, of Roberson & Roberson, DeLand, for appellant.
    Robert K. Rouse, Jr., of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P. A., Day-tona Beach, for appellees.
   COBB, Judge.

This case requires a determination of the nature and extent of the duty owed to an invitee by an occupier of premises; in particular, whether or not that duty is ever greater than the mere duty to warn of dangers unknown to the invitee.

In the instant case, the plaintiff stepped in, and slipped upon, a foreign substance (which appeared to be vomit) on the steps of a public building owned and operated by the defendant, Volusia County. From the evidence adduced at trial, the plaintiff had actual knowledge of the presence of the substance; the defendant was chargeable with no more than constructive knowledge of the condition.

A property owner or occupier owes two duties to an invitee: “he must keep his property reasonably safe and protect the visitor from dangers of which he is, or should be aware.” Post v. Lunney, 261 So.2d 146, 147 (Fla.1972). In Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967, 969-970 (Fla.1977), the dual nature of a landowner’s or occupier’s duties to an invitee was more clearly expressed in dictum by Justice Sundburg in a dissent in which Justices England and Overton concurred:

In Florida, a landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining the premises in a reasonably safe condition; and (2) to give the invitee warning of concealed perils which are or should be known to the landowner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care. Id., quoting Warren v. Hudson Pulp & Paper Corp., 477 F.2d 229, 233 (2d Cir. 1973).

The defendant, at the conclusion of the plaintiff’s case, convinced the trial court that it was entitled to a directed verdict on the basis of the obvious danger principle set forth in Vermont Mutual Ins. Co. v. Conway, 358 So.2d 123 (Fla.1st DCA 1978) that a duty to warn does not arise if the invitee has knowledge of the danger equal or superior to that of the occupier. We agree with that statement of the law in Vermont Mutual. But we do not agree that it is disposi-tive of the instant case. The fallacy is in the premise that the discharge of the occupier’s duty to warn by the plaintiff’s actual knowledge necessarily discharges the duty to maintain the premises in a reasonably safe condition by correcting dangers of which the occupier has actual or constructive knowledge. To extend the obvious danger doctrine to bar a plaintiff from recovery by negating a landowner’s or occupier’s duty to invitees to maintain his premises in a reasonably safe condition would be inconsistent with the philosophy of Hoffman v. Jones, 280 So.2d 431 (Fla.1973), that liability should be apportioned according to fault.

The issue with which we are confronted was addressed by the Second District Court of Appeal in Heath v. First Baptist Church, 341 So.2d 265 (Fla.2d DCA 1977), cert. denied, 348 So.2d 946 (Fla.1977). The plaintiff therein tripped over a rise in the floor, which she admittedly had tripped over three or four times in the past. In reversing a summary judgment for the defense, the appellate court discussed the dual duties of a landowner:

Aside from the question of assumption of risk, there remains the question of whether an occupier of land can ever owe a duty greater than the mere duty to warn of defects unknown to the plaintiff. If there is no such duty, then assumption of risk becomes irrelevant.
The general duty of a landowner to an invitee has been described by this court as: ‘the duty to use ordinary care in keeping the premises in a reasonably safe condition, and to give timely notice of latent or concealed perils which are known or should be known to the owner, but which are not known to the plaintiff.’ (emphasis supplied in original.)
Waterman v. Graham, 228 So.2d 925 (Fla.2d DCA 1969); see also Standard Jury Instruction 3.5(f). We think this statement of the rule suggests that in some circumstances the duty may extend beyond mere warning.

3. In discussing this issue, Prosser writes:

‘Likewise, in the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself. It is for this reason that it is so frequently held that reasonable care requires nothing more than a warning of the danger. But this is certainly not a fixed rule, and all of the circumstances must be taken into account. In any case where the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, where there is reason to expect that the invitee’s attention will be distracted, as by goods on display, or that after lapse of time he may forget the existence of the condition, even though he has discovered it or been warned; or where the condition is one which would not reasonably be expected, and for some reason, such as an arm full of bundles, it may be anticipated that the visitor will not be looking for it. It is true also where the condition is one such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, and because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. In all such cases the jury may be permitted to find that obviousness, warning or even knowledge is not enough.’
W. Prosser; Law of Torts 394-95 (4th Ed. 1971).

Likewise, in 2d Restatement of Torts, § 343A, it is said:

‘Known or obvious dangers
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.’

Heath v. First Baptist Church, supra at 267. See also Dawson v. Payless, for Drugs, 248 Or. 334, 433 P.2d 1019 (Or.1967); 35 A.L.R.3d 222 (1971).

The Vermont Mutual case, which apparently weighed heavily in the granting of the directed verdict, is distinguishable. In that case, the defendant homeowner had hosed down a paved driveway. The plaintiff housepainter placed his ladder on the wet surface, knowing it was wet, just before he fell. The appellate court, in reversing the denial of a directed verdict for the homeowner, stated that her knowledge was no greater than that of the housepainter. As we see it, the defendant in that case was not chargeable with any knowledge, actual or constructive, of a danger. It was not foreseeable that the housepainter would place his ladder on the wet driveway and fall — hence she was under no duty to warn or to correct a danger. The wet driveway was not a danger, as such. There was no way for her to have foreseen any danger or to correct it. In the instant case, there were facts from which a jury could conclude that there was a duty occasioned by foreseeability that someone would fall on the slippery steps and there was a reasonable opportunity to have corrected this danger before the fall occurred.

Here, it is clear that the plaintiff' was negligent. But was there any negligence — /. e., any breach of a duty causally related to the plaintiff’s injury — by the defendant which a jury should have been allowed to consider for comparative purposes? In order to say no, it is necessary to say, as a matter of law, that defendant’s allowing a large puddle of vomit to remain for approximately six hours on steps used by the public was causally unrelated to the plaintiff’s fall at the later time. That is not the law under the doctrine of comparative negligence. Hoffman v. Jones, supra. The trial court erred in directing a verdict. See Hernandez v. Motrico, Inc., 370 So.2d 836, 837 (Fla.3d DCA 1979); Petroleum Carrier Corp. v. Gates, 330 So.2d 751, 752 (Fla.1st DCA 1976); Budgen v. Brady, 103 So.2d 672, 674 (Fla.1st DCA 1958) cert. denied, 105 So.2d 793 (Fla.1958).

Accordingly, the judgment for the defendant is reversed and this cause is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

UPCHURCH and SHARP, JJ., concur.

      . Incomplete or abbreviated appellate court statements of the rules of landowner or occupier liability are one source of confusion, such as the following juxtaposition of the two duties with a circumstance negating only the duty to warn:
      Liability for negligence in failing to maintain premises in a reasonably safe condition, or in failing to warn of existing dangers, must be predicated on the occupier’s superior knowledge or means of obtaining knowledge concerning the danger. Winn-Dixie Montgomery Inc. v. Peterson, 291 So.2d 666, 668 (Fla.1st DCA 1974).

      . For instance, it is clear at this point in time in Florida that implied assumption of the risk is no longer a complete bar to recovery. Blackburn v. Dorta, 348 So.2d 287 (Fla.1977); aff’g., Rea v. Leadership Housing, Inc., 312 So.2d 818 (Fla.4th DCA 1975). In addition, obviousness of a hazard is no longer an exception to liability on the part of a manufacturer, but. is only a factor to be considered when applying principles of comparative negligence. Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla.1979); Ford v. Highlands Ins. Co., 369 So.2d 77 (Fla.1st DCA 1979); Blaw-Knox Food & Chemical Equip. Corp. v. Holmes, 348 So.2d 604 (Fla.4th DCA 1977), cert. denied, 351 So.2d 405 (Fla.1977).

      . “A plaintiff is barred from recovering damages for loss or injury caused by the negligence of another only when the plaintiffs negligence is the sole legal cause of the damage, or the negligence of the plaintiff and some other person or persons. other than the defendant or defendants was the sole legal cause of the damage.” Hoffman v. Jones, supra at 438.


source: Caselaw Access Project

author: UPCHURCH, Judge.

license: Public Domain

text:
    Martha Ann McINTYRE, Appellant, v. Ray G. McINTYRE, Appellee.
    No. 79-709/T2-25.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.

      Mary Anne DePetrillo, Tavares, for appellant.
    Neal D. Huebsch, Eustis, for appellee.
   UPCHURCH, Judge.

This is an appeal from a Final Order of the Circuit Court of Lake County modifying the Final Judgment of .Dissolution of Marriage in respect to alimony.

In the Final Judgment dated January 28,-1977, which was modified by the Final Order of Modification sought to be reviewed, the trial court had provided for alimony in the amount of $800 per month to be paid over a period of five years or until Wife died or remarried whichever event occurred first. In addition, the court divided other properties between Husband and Wife. The trial judge was deceased at the time of the Petition for Modification and the hearing was conducted by a judge who was a stranger to the original suit.

Section 61.14, Florida Statutes (1977), authorizes modification of an alimony decree only upon a clear showing that the circumstances of the parties or the financial ability of the Husband have changed since entry of the decree. Fowler v. Fowler, 112 So.2d 411 (Fla.1st DCA 1959). The court below in its Final Order of Modification of Final Judgment found that at the time of the Final Judgment the court had made a thorough and approximately equal division of property; that although only one child was a minor, there were two children living at home and, to a large degree, the expenses attributable to these two children were included in the Wife’s Financial Affidavit; and that the $800 per month ‘periodic’ alimony was intended by the court at the time of entry of the judgment to be rehabilitative in nature; and that the Wife was working part time, at best, at the time of the dissolution and had now obtained full time employment, thus virtually eliminating the need for rehabilitative alimony. The court also found that Dr. McIntyre was supplying the needs of his children who were now all adults.

The record reflects that Dr. McIntyre continues to enjoy a comfortable standard of living, including such luxuries as a hunting trip to Mexico at a cost of $8,000. On the other hand, Mrs. McIntyre has returned to full time employment and has an earned income of $191.00 per week. Electing to return to full time employment and live frugally has resulted in Mrs. McIntyre’s forfeiture of an amount roughly equivalent to her alimony. This result, if permitted to stand, would not be a rule which would encourage the recipient of rehabilitative alimony to seek rehabilitation quickly.

In Reese v. Reese, 330 So.2d 89 (Fla.1st DCA 1976) the court denied a Petition for Modification on similar facts, a difference being that the alimony award was for life rather than for a set term as in the case sub judice. The court held; “The husband did not show a substantial change in his circumstances . . . Although the wife’s financial condition had improved, this was contemplated by the parties at the time the stipulation and agreement was signed by them.”

From the record, the alimony award was apparently a part of the over all plan of distribution of the property of the parties. It was not a lump sum award, however, because the payments terminated upon the death or remarriage of Wife. Had it been lump sum the amount would have been a vested property right and survived the subsequent remarriage of Wife or her death. Latta v. Latta, 135 So.2d 443 (Fla.3d DCA 1961); Horne v. Horne, 289 So.2d 39 (Fla.2d DCA 1974).

The trial court in its judgment referred to the alimony as “periodic” and did not use the term “rehabilitative”. Under section 61.08 Florida Statutes (1977), the court was empowered to award alimony which “may be [either] rehabilitative or permanent in nature”. Nowhere in that chapter is the term “periodic” alimony used although “periodic" payments are authorized by section 61.08. The term “periodic alimony” has meaning only in the context of the tax treatment accorded to “periodic alimony” under the Internal Revenue Code. This purpose on the part of the trial court undoubtedly resulted in a savings to Husband.

From our examination of the record, we have concluded that the trial court did not label the alimony as “rehabilitative” because it did not intend it solely as such; rather, the court intended it to be a part of an over all plan to equitably adjust the property rights and to enable the parties to have reasonably comparable standards of living. Under section 61.08(2), the court is authorized to consider any factor necessary to do equity and justice between the parties. While the successor judge was technically correct in labeling the award “rehabilitative in nature”, this fact alone is not determinative of the question presented here.

Under the facts of this case there was no showing that there had been a change in circumstances which would justify reduction or elimination of the alimony award. Dr. McIntyre’s income at the time of the final judgment was approximately $3,500 per month, and at the time of the modification hearing $4,200. He was purchasing a Cadillac automobile, owned a Winnebago motorhome, a Mako fishing boat and a pickup truck; in addition, immediately prior to the hearing, he spent $8,000 on a hunting trip to Mexico. After the dissolution, Dr. McIntyre also obligated himself to payments for the acquisition of real property. While perhaps desirable and possibly advantageous economically from an investment standpoint, these expenses should not be considered by the court in determining Dr. McIntyre’s ability to continue the alimony.

Therefore, we conclude that the court abused its discretion in terminating alimony simply because Mrs. McIntyre had shown an ability to earn an amount equal to her alimony award.

Appellant has also assigned as error the failure of the court to award attorney fees. While Appellant asked for fees, the record does not reveal that any predicate was laid for an award based on testimony, affidavits or other proof. While ordinarily fees would be awarded in a factual situation such as this, we cannot say the court below erred where Wife did not introduce the requisite proof. Nivens v. Nivens, 312 So.2d 201 (Fla.2d DCA 1975). However, Mrs. McIntyre is entitled to a reasonable amount for the services of her attorneys on appeal, the amount to be determined by the lower court on application.

REVERSED and REMANDED.

DAUKSCH, C. J„ and ORFINGER, J., concur.

      . 34 Am.Jur.2d Federal Taxation ¶ 7321 (1938).


author: DAUKSCH, Chief Judge.

text:
    Steve GUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 77-2484/T4-23.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Chief Judge.

This case began by the Appellant, without an attorney, filing a motion under Rule 3.850, Florida Rules of Criminal Procedure, seeking collateral relief from the judgment. He sought to have his conviction of robbery vacated and a new trial because he says he was denied effective assistance of counsel.

It is the duty of trial courts in these cases to follow the dictates of Rule 3.850, Florida Rules of Criminal Procedure, and either hold an evidentiary hearing to determine if relief should be granted or if the case file and record conclusively show the petitioner is entitled to no relief, then to deny relief in an order specifically setting out the reasons for the denial and attaching the appropriate case file and record. Neither was done in this case. Because Appellant is now represented by counsel, upon remand, an amended petition may be filed if counsel deems advisable, even though we find Appellant’s pro se petition to be legally sufficient.

The order denying Appellant’s motion under Rule 3.850, Florida Rules of Criminal Procedure, is reversed and this cause is remanded for further proceedings consistent herewith. Payne v. State, 362 So.2d 688 (Fla. 2d DCA 1978).

REVERSED AND REMANDED.

UPCHURCH and SHARP, JJ., concur.


author: PER CURIAM.

text:
    Johnny BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 79-898.
    District Court of Appeal of Florida, Second District.
    March 12, 1980.
    Johnny Brown, pro se.

      Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appeal dismissed without prejudice to the appellant to request permission from this court to file a writ of error coram nobis. See Hallman v. State, 371 So.2d 482 (Fla.1979).

GRIMES, C. J., and DANAHY and CAMPBELL, JJ., concur.


author: SHIVERS, Judge.

text:
    Josie L. PHILLIPS, Appellant, v. DUVAL COUNTY SCHOOL BOARD and Gallagher-Bassett Insurance Service, Appellees.
    No. QQ-143.
    District Court of Appeal of Florida, First District.
    March 14, 1980.
    C. Wayne Alford, of Sinoff, Edwards & Alford, Jacksonville, for appellant.
    Grady W. Martin, and Dawson A. McQuaig and William Lee Allen, Jacksonville, for appellees.
   SHIVERS, Judge.

This appeal is from Order denying appellant’s claim for workmen’s compensation benefits. The Judge of Industrial Claims found that appellant’s medical complaints after April 27,1977, were not causally related to her work. We reverse on the basis of the medical testimony that claimant’s employment exacerbated her underlying condition.

Claimant worked for over ten years as a school cafeteria worker and food handler. Her duties included preparing food, washing pots and dishes, and collecting money for school lunches. In early 1976, claimant, after washing dishes at the school cafeteria, developed a rash on her hands that produced swelling, cracking and bleeding. The employer referred claimant to Dr. Rehbein, a dermatologist, who treated claimant from May, 1976, through the hearing in December, 1978. April 27, 1977, is the date the parties stipulated to as being the date of maximum medical improvement. That date is when claimant last worked for the employer on the recommendation of Dr. Rehbein. Appellees voluntarily paid temporary total disability compensation for 35 weeks and 5 days, beginning November 24, 1976, and permanent partial disability for eight and three-fourths weeks. Appellee paid all medical treatment.

All the medical evidence was in the form of correspondence. Dr. Rehbein was of the opinion that claimant had a chronic hand dermatitis. He noted that claimant showed a positive reaction to a patch test involving the detergents used by claimant in her employment. On July 25, 1977, Dr. Rehbein wrote: “I feel Mrs. Phillips has a chronic hand dermatitis that would be exacerbated by contact with soaps, water, vegetable juices, any types of strong acids or chemicals, and any types of detergents.” On January 26, 1978, Dr. Rehbein felt that claimant would be able to return to a “dry job,” one which would not involve exposing her hands to liquids of any type. She was definitely advised not to seek further work in the food handling area. He described her hand dermatitis as being “quite mild” and opined that “any permanent disability certainly would be less than 5%.”

Dr. Trimble, a dermatologist, examined claimant on February 22, 1978, and March 8, 1978. Dr. Trimble diagnosed a fungus infection on claimant’s inner thighs and around the buttocks. He wrote: “The rash on the hands could either be an allergic reaction to this fungus infection or a contact dermatitis and very possibly a combination of both these problems.” Dr. Trimble further opined: “I do feel that this type of condition certainly would be aggravated by exposure to detergents, harsh chemicals, soaps and vegetables such as Dr. Rehbein has indicated in his letter, regardless of which of the above diagnoses is correct.” Dr. Trimble believed that claimant “could be treated (for the fungus condition) and rehabilitated to her old job or to some similar type of work provided she did wear protective gloves and provided she treated the other factors involved in her rash, such as her nervous tension (which is unrelated to the pending claim) and her contact dermatitis.”

The claim filed June 28, 1978, was for temporary total and permanent partial disability benefits. The notice of hearing stated that the question in dispute was “merits of the claim.” Claimant’s attorney argued at the hearing that his client was totally and permanently disabled from a loss of wage earning capacity.

From the record it is clear that claimant’s employment exacerbated or aggravated her condition. The Judge of Industrial Claims found the record insufficient to determine that the employment caused the condition or that any aggravation were other than transient. The Judge of Industrial Claims found it unnecessary to determine the duration of any transient aggravation based on his finding that the only benefits being claimed were permanent total benefits. This finding is not supported by competent, substantial evidence.

The issue of claimant’s entitlement to permanent partial benefits was an issue before the Judge of Industrial Claims, being properly claimed and noticed for hearing. Claimant’s argument that she was permanently and totally disabled did not waive the claim for permanent partial benefits. While neither doctor opined that the contact dermatitis was caused by the claimant’s employment, they both were of the opinion that the employment exacerbated or aggravated the condition. The case is remanded for the taking of further evidence to determine whether claimant’s condition was caused by her employment or whether the exacerbation or aggravation was of such a nature as to entitle her to permanent partial or permanent total benefits.

ERVIN and SHAW, JJ., concur.


text:
    FOOD FAIR STORES, INC., and Group VII Services, Appellants/Cross-Appellees, v. Spencer M. HANCE, Appellee/Cross-Appellant.
    No. QQ-174.
    District Court of Appeal of Florida, First District.
    March 14, 1980.
    M. Wayne Myers, of Cowles, Coker & Myers, Jacksonville, for appellants/cross-appellees.
    John E. Houser, Jacksonville, for appel-lee/cross-appellant.
   SHIVERS, Judge.

This appeal is from the order adjudicating the merits of appellee’s claim for benefits under the Florida Workmen’s Compensation Law. The dispositive issue is whether the Judge of Industrial Claims erred in ruling on the merits of appellee’s claim after an order had been entered in a bankruptcy proceeding restraining and enjoining the institution or continuation of any action, suit or proceeding of any nature or description against the appellant employer. We reverse, finding that the restraining order entered in the bankruptcy proceeding precluded the entry of the order being appealed.

The first hearing on the merits of appel-lee’s workmen’s compensation claim occurred September 29, 1978. On October 2, 1978, the employer filed for Chapter 11 reorganization in bankruptcy in the United States District Court, Southern District of New York. Also on October 2, 1978, the restraining order was entered in the bankruptcy proceeding. Counsel for the employer moved for a stay of the workmen’s compensation proceeding. The Judge of Industrial Claims, following a hearing on the employer’s motion for stay, entered an order on October 25, 1978, finding that while the claimant was enjoined and restrained from proceeding, the Judge of Industrial Claims was not restrained or enjoined from entering a final order. On December 12, 1978, the Judge of Industrial Claims heard arguments on the merits. On January 11, 1979, the Order on appeal was entered.

A bankruptcy court clearly has the authority to enjoin a state court proceeding. The Judge of Industrial Claims correctly recognized that the restraining order entered in the bankruptcy proceeding applied to the workmen’s compensation proceeding, but reversibly erred in ruling that the restraining order did not prevent the hearing of final argument or the entry of the final order. The plain language of the restraining order enjoined the continuation of the workmen’s compensation proceeding. The appellee is required to have the restraining order entered in the bankruptcy proceeding lifted before proceeding further on his claim for workmen’s compensation benefits.

In light of our disposition of the foregoing issue, the remaining issues raised by appellants need not be determined.

The order appealed from is reversed and remanded for proceedings consistent herewith.

ERVIN and SHAW, JJ., concur.


text:
    Arcadia MERCADO, Appellant, v. HIGHLANDS COUNTY TITLE AND GUARANTY LAND COMPANY and Insurance Company of North America, Appellees.
    No. 79-1001.
    District Court of Appeal of Florida, Second District.
    March 14, 1980.
    William A. Seacrest of Harris & Seacrest, P. A., Lakeland, for appellant.
    Michael F. Tew, of Barr & Murman, P. A., Tampa, for appellees.
   PER CURIAM.

The trial court properly dismissed this suit for lack of prosecution pursuant to the requirements of Rule 1.420(e) Fla.R.Civ.P. However, the judgment is hereby amended to reflect that the dismissal is without prejudice. Gibbs v. Trudeau, 283 So.2d 889 (Fla. 1st DCA 1973). If the statute of limitations has run, this can be raised as a defense to a subsequent suit. As amended, the judgment is affirmed.

GRIMES, C. J., and HOBSON and CAMPBELL, JJ., concur.


text:
    John Henry GETER, Petitioner, v. Louis L. WAINWRIGHT, Secretary, Department of Corrections, Respondent.
    No. 79-1330.
    District Court of Appeal of Florida, Third District.
    March 17, 1980.
    John Henry Geter, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HUB-BART and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner, John Henry Geter, by writ of habeas corpus seeks review of his sentence for robbery.

John Geter was charged with robbery and after plea negotiations he entered a plea of guilty. The trial judge adjudicated him guilty, withheld sentence and placed him on probation for 15 years; however, as a special condition of probation, Geter was ordered to serve 10 years in the state penitentiary. After serving several years, Geter requested consideration for parole and was informed by the Department of Offender Rehabilitation that because of the nature of his sentence he was not eligible for parole consideration. Thereupon, Geter filed the instant petition for writ of habeas corpus challenging the 10-year mandatory sentence. We have jurisdiction to entertain this petition. Dallas v. Wainwright, 175 So.2d 785 (Fla.1965).

The lead case with respect to the imposition of a mandatory prison sentence as a condition of probation is Shead v. State, 367 So.2d 264 (Fla. 3d DCA 1979) wherein this court held:

“. . . Although a short jail or prison sentence may be imposed as a condition of probation if reasonably related to a rehabilitative purpose, State v. Jones, 327 So.2d 18 (Fla.1976), it is doubtful whether a lengthy prison term, as here, can stand as a probationary condition when its primary, if not exclusive purpose is to punish the defendant. See Kominsky v. State, 330 So.2d 800 (Fla. 1st DCA 1976). Moreover, it is further doubtful whether a trial court by this device can divest the Parole Board of its exclusive authority to parole a defendant on a prison sentence ...” 367 So.2d 267-68

We, therefore, reverse the subject sentence and remand the cause to the trial court to impose a new sentence consistent with the view expressed herein.

Reversed and remanded.


text:
    Perla B. OHAYON, (Graff), Wife, Appellant, v. Charles OHAYON, Husband, Appellee.
    No. OO-473.
    District Court of Appeal of Florida, First District.
    March 17, 1980.
    Simon W. Selber, of Selber & Selber, Jacksonville, for appellant.
    Harry B. Mahon, of Mahon & Farley, Jacksonville, for appellee.
   SHIVERS, Judge.

This timely appeal is from an order entered June 29, 1979, which modified the Final Judgment of Dissolution of Marriage entered February 22, 1973, and found the appellant to be in contempt of court for her failure to allow appellee to visit with the parties’ minor children. We modify the order by striking the provision staying the sentence of contempt upon the condition that appellant grant appellee visitation privileges with the minor children of the parties “(a)t all other reasonable times and places upon reasonable notice by the husband to the wife,” but otherwise affirm.

Paragraph number 4 of the Order is as follows:

“The husband’s Motion for Order to Show Cause is granted and the wife is found to be in contempt of this Court for her failure to allow visitation to the husband. Sentence for this contempt is deferred however; providing that the wife afford to the husband the following visitation privileges with the minor children of the parties, to-wit:
(a) Alternate weekends from 9:00 A.M. Saturday until 6:00 P.M. Sunday, commencing Saturday, July 7, 1979, and continuing each alternate weekend thereafter.
(b) Two weeks visitation during the summer months, concurrent with the husband’s vacation, which is the last two weeks in August of 1979.
(c) One week during the Christmas Holidays, which week shall include Christmas Day on odd numbered years, commencing with Christmas 1979.
(d) At all other reasonable times and places upon reasonable notice by the husband to the wife.
To the foregoing extent paragraph 3 of the Final Judgment of Dissolution of Marriage is modified to conform therewith.”

The trial court did not err in modifying the Final Judgment.. Likewise, the trial court did not err in deferring the sentence of contempt as provided by Paragraph 4(a), (b), and (c). However, it is error for the trial court to defer the sentence of contempt on the vague provision of Paragraph 4(d). Foster v. Foster, 220 So.2d 447 (Fla.App. 3rd DCA 1969). The order is modified by striking the provision contained in Paragraph 4(d) as a condition for the deferral of the sentence for contempt. However, the portion of the Order modifying the Final Judgment to include the visitation privileges specified by Paragraph 4(d) is not disturbed.

We have carefully examined the remaining issues raised by appellant but find no other error. The Order, as modified, is AFFIRMED.

ERVIN and SHAW, JJ., concur.


author: ERVIN, Judge.

text:
    TOWN OF PEMBROKE PARK, Appellant, v. Thomas McCARTHY, Appellee.
    No. QQ-159.
    District Court of Appeal of Florida, First District.
    March 17, 1980.
    Russell A. Ortmayer of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellant. '
    K. P. Jones, Fort Lauderdale, for appel-lee.
   ERVIN, Judge.

The employer, Town of Pembroke Park, appeals a compensation order which authorized surgery for the claimant McCarthy. We agree that the judge of industrial claims erred in failing to give the parties proper notice of the hearing as is required by Section 440.25(3), Florida Statutes (1977).

Claimant first requested an authorization hearing on May 15, 1978. On February 7, 1979, the judge sent out a proper notice setting the hearing for April 10, 1979. However, on April 3, attorneys for Florida Insurance Guaranty Association (FIGA) were substituted for those of the employer’s insurer, which had become insolvent, to defend the employer. FIGA’s attorneys sought a stay, and, on April 10, the judge ordered the hearing reset for April 19, reserving the date of May 4,1979, against the possibility the April date could not be met by the parties. By letter, FIGA’s attorneys confirmed the May 4th date and stated both sides were unable to attend a hearing on April 19. Neither the judge nor claimant’s attorneys could attend the hearing on May 4. On May 7, claimant’s attorneys mailed a letter to the judge and to FIGA’s attorneys, stating that they were confirming “that hearing on the above cause has been reset for . . . May 10,1979 . . . .” By hand-delivered letter of May 9, 1979, FIGA’s attorneys notified the judge they objected to the May 10 hearing, which they had neither agreed to nor been notified of in accordance with Section 440.25(3), and that they would not attend. After the hearing, the judge ruled FIGA had waived the notice requirements in Section 440.25(3), and that proper notice was given once, after which the parties simply rescheduled the hearing.

We do not agree that the parties had waived all reasonable notice requirements by attempting to set a mutually convenient date for the hearing. It is not clear from the record when FIGA’s attorneys actually received the letter “confirming” the date of May 10; however, it was sometime after May 7, and the appellants assert it was May 9, the date of their protest to the judge. There is no evidence in the record that FIGA’s attorneys ever agreed to the May 10 date. Under these circumstances, we find that the judge failed to obtain jurisdiction over the appellant and erred in adjudicating the claim. Reversed and remanded for another hearing after proper notice to all parties.

SHIVERS and SHAW, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION and National Loss Control Service Corporation and Crawford & Co., Appellants, v. John E. BELCHER, Appellee.
    No. QQ-241.
    District Court of Appeal of Florida, First District.
    March 17, 1980.
    Summers A. Warden, Coral Gables, for appellants.
    Gerald E. Vick, of Spencer & Taylor, Miami, for appellee.
   SHIVERS, Judge.

This appeal is from an Order dated July 14, 1978, in a workmen’s (now workers’) compensation proceeding. The Order contains several findings as to material facts that are in direct conflict with undisputed portions of the record. It would be of no benefit to recite these erroneous findings. Suffice it to say that these errors taint the entire Order.

The Order dated July 14,1978, is vacated and the matter is remanded to the Deputy Commissioner for such further proceedings as the Deputy Commissioner deems appropriate.

ERVIN and SHAW, JJ., concur.


text:
    STATE of Louisiana v. Timothy J. NORMAND.
    No. 65993.
    Supreme Court of Louisiana.
    Feb. 6, 1980.
    John D. McGovern, Jr., New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Tom Donelon, Abbott J. Reeves, Asst. Dist. Attysi, for plaintiff-respondent.
   PER CURIAM.

Defendant is charged in separate infor-mations with two counts of receiving stolen things in violation of La.R.S. 14:69. The authorities seized the items allegedly involved, a diamond ring and a quantity of the drug butisol, from defendant’s residence under authority of a search warrant executed on March 7, 1979. The defense challenged that seizure below by way of a motion to suppress. The trial judge denied the motion on October 11, 1979. We granted defendant’s application for supervisory writs to review that judgment. We now reverse.

The warrant in this case issued for the search of defendant’s residence and three cars located on the premises. Its supporting affidavit reads as follows:

On the date of 3/6/79 and 3/7/79 the [affiant] received a written statement from a C.I. stating that he has observed one Timmy Morman, occupant of # 20 Glenwood Dr., Harahan, La. to be in possession of a stolen article to wit: one 2¼ kt. diamond set in a 6 point gold colored Tiffany Setting. This ring is the object of a residence burglary occurring at 741 Ashlawn Dr., on 2-21-79. This ring is valued at $7,000.00.

The defense challenges the validity of the warrant, claiming that the affidavit wholly fails to establish probable cause for the subsequent search.

We have repeatedly cautioned that a search warrant may be issued only upon an affidavit reciting facts establishing to the satisfaction of the judge who issues the warrant that probable cause exists to search the premises for the object sought. State v. Morgan, 376 So.2d 99 (La.1979); State v. Boksham, 370 So.2d 491 (La.1979); State v. Paciera, 290 So.2d 681 (La.1974). Probable cause exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Morgan, supra; State v. Boksham, supra; State v. Turnipseed, 362 So.2d 486 (La.1978).

In State v. Paciera, supra, this Court also emphasized that “[t]he affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him.” See also State v. Hysell, 364 So.2d 1300 (La.1978); State v. Boksham, supra; State v. Koncir, 367 So.2d 365 (La.1979).

Judged against the standards established by this Court, the warrant in this case fails in almost all respects. The informant here is not a named or identified individual, compare State v. Greenwald, 369 So.2d 1317 (La.1979), but an anonymous tipster. The affidavit alleges that he personally saw the stolen items in defendant’s possession, indication enough he came by his information in a reliable way. State v. Paciera, supra; State v. Anderson, 357 So.2d 547 (La.1978). Nonetheless, the warrant makes no attempt to support the reliability of the informant himself. It makes no allegation that he had supplied accurate information in the past, whether or not that information led to arrests or convictions. State v. Weinberg, 364 So.2d 964 (La.1978); State v. Roach, 322 So.2d 222 (La.1975). Nor does it corroborate the information in sufficient detail by independent means. Reference in the affidavit to a police report clearly indicates that police investigation had discovered the fact of the burglary on February 21, 1979 and the loss of at least the ring, important considerations in any probable cause showing. State v. Collins, 378 So.2d 928 (La.1979); State v. Johnson, 363 So.2d 684 (La.1978). That information alone, however, in no way touched upon a reasonable belief as to defendant’s involvement in the offense, apart from the information supplied by the informant’s tip itself.

Moreover, even had the informant’s tip met the two-fold requirement of State v. Paciera, supra, we would still find the warrant crucially deficient. In State v. Loehr, 355 So.2d 925, 926 (La.1978), this Court emphasized that “[i]t is fundamental that an affidavit upon which a search warrant is based must inform the issuing magistrate of underlying facts sufficient to support a determination that evidence of a crime is present on the premises to be searched.” In this case, the warrant contains not the slightest indication where the informant purportedly saw defendant in possession of the stolen ring, whether in defendant’s residence, or in any of the three vehicles included within the warrant’s scope, or elsewhere. Here, as in State v. Morgan, 376 So.2d 99 (La.1979), the affidavit thus presented no factual basis from which the magistrate could reasonably conclude that the sought after evidence was on the property in question at the time the warrant was issued.

Accordingly, we reverse the judgment of the trial court and remand the case for proceedings not inconsistent with this opinion.

REVERSED.

      . The defense indicates in brief that the informant may have been a juvenile also under arrest for possession of stolen property. Under the decision in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), we have held that declarations against penal interest carry with them their own indicia of reliability. State v. Dazet, 378 So.2d 1369 (La.1979); State v. Welsh, 371 So.2d 1314 (La.1979). Even so, no allegation to that effect appears in the affidavit and none can save the warrant now. As we noted in State v. Daniel, 373 So.2d 149, 151 (La.1979), under La.C.Cr.P. Art. 162, “. . . all essential facts to support the issuance of the search warrant must be contained in the affidavit submitted to the magistrate . ” In any event, the parties stipulated below that the issue here would turn on the face of the affidavit.

      . The defense also notes that the warrant fails to allege when the informant saw defendant in possession of the ring and argues staleness. We do not necessarily agree. Police investigation had fixed the date of the prior burglary on February 21, 1979. The informant’s tips came in on March 6 and March 7, some two weeks later. That interval may still appear sufficient to establish a probable continuing nexus between the place sought to be searched and the property sought to be seized, State v. Weinberg, supra, if that nexus has been established in the first place.


text:
    STATE of Louisiana v. Eugene “Dick” CLARK.
    No. 65743.
    Supreme Court of Louisiana.
    March 3, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James David Caldwell, Dist. Atty., George F. Fox, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Raymond L. Cannon, Chief Indigent Defender, Parish of East Carroll, Tallulah, for defendant-appellant.
   PER CURIAM.

Having reviewed all the assignments of error filed by the defendant, we find that they present no reversible merit and do not require published explanation because they do not present any question of unsettled law. Therefore, these assignments are discussed in an unpublished, but publicly recorded, appendix to this opinion.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

         Chief Judge Paul B. Landry, Jr., Retired, participated in this decision as an Associate Justice Ad Hoc.


author: DENNIS, CALOGERO and STONE, JJ.

text:
    STATE of Louisiana ex rel. Ignatius RED v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65873.
    Supreme Court of Louisiana.
    Nov. 23, 1979.
   In re Ignatius Red, applying for writ of certiorari, prohibition, mandamus or habeas corpus. Parish of Orleans. No. 241-738.

Writ denied.

DENNIS, CALOGERO and STONE, JJ.

ad hoc, would grant for trial judge to address the claim that relator makes that upon sentencing judge failed to consider whether suspension of sentence would be warranted.


text:
    BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS v. ILLINOIS CENTRAL GULF RAILROAD COMPANY.
    No. 66719.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Illinois Central Gulf Railroad Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 379 So.2d 838.

Writ denied.


text:
    Charles Arnold WATTS v. C. Paul PHELPS.
    No. 66691.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Charles Arnold Watts, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 377 So.2d 1317.

Writ denied.


text:
    CITY OF BATON ROUGE et al. v. Omer J. HEBERT et al.
    No. 66681.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Omer J. Hebert et al., applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 378 So.2d 144.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Charles S. BRYANT, III v. LOUISIANA STATE PARDON BOARD.
    No. 66355.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Charles S. Bryant, III, applying for remedial writs. East Baton Rouge Parish. No. 216,969.

Denied.


text:
    Mrs. Marie Camps OSTER v. WETZEL PRINTING, INC. et al.
    No. 66687.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Mrs. Marie Camps Oster, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 378 So.2d 195.

Granted.


text:
    Roy HARRIS et al. v. Frank M. LEE et al.
    No. 66684.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Roy Harris and Sandra Harris, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 377 So.2d 1352.

Writ granted.


text:
    STATE of Louisiana v. Charles JACKSON.
    No. 65329.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, mandamus and prohibition. Parish of Orleans. No. 267-977.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Eldridge BLANCHARD, III.
    No. 65367.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari and review. Orleans Parish. No. 270-428.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Janet PETTY and Frank Thomas.
    No. 65487.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, through the District Attorney, Harry Connick, applying for writs of certiorari, prohibition and mandamus. Orleans Parish. No. 271-379.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Charles PIERRE.
    No. 65489.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, through the District Attorney, Harry Connick, applying for writs of certiorari, prohibition and mandamus. Orleans Parish. No. 270-041.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Alvin OBEY.
    No. 65556.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans. No. 270-380.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Curtis G. EMILLIEN.
    No. 65557.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans. No. 271-414.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Vernon RAIFORD.
    No. 65581.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 271-954.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980). Decided January 28, 1980.


text:
    STATE of Louisiana v. Vernon WEBSTER.
    No. 65587.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition and mandamus. Orleans Parish. No. 271-446.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Corabelle HARDY and Gregory Brown.
    No. 65637.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, mandamus and prohibition. Orleans Parish. No. 270-081.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Joseph SULLIVAN.
    No. 65776.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Joseph Sullivan, applying for writ of certiorari. Parish of Orleans. No. 271-956.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Nelson BAILEY.
    No. 65778.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans. No. 271-203.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Joseph FRANK.
    No. 65848.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans. No. 271-455.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Dwight ALBERT.
    No. 65887.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans. No. 271-387.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Herman MATHEWS.
    No. 65965.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition and mandamus. Orleans Parish. No. 271-858.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana v. Osband GENTRIS, Jr.
    No. 65984.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Orleans Parish. No. 271-164.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


text:
    STATE of Louisiana ex rel. Chester MERCANDEL v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65948.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Chester Mercandel, applying for writ of habeas corpus and remedial writs. Orleans Parish. No. 254-095.

Writ denied. Trial court ruling is correct, not because State v. Lewis, 367 So.2d 1155 (La.), is not retroactive, but because of the principles stated in State v. Holden, 375 So.2d 1372 (La.1979).

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


text:
    STATE of Louisiana ex rel. Robert D. STOKES v. Warden Frank C. BLACKBURN, Louisiana State Penitentiary.
    No. 66377.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Robert D. Stokes, applying for writ of habeas corpus. Parish of Beauregard. No. C-661 — 79.

Writ granted. Remanded for an eviden-tiary hearing on whether there was an intelligent waiver of counsel at time guilty plea was entered January 13, 1961. See Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971) and Hall v. Henderson, 318 So.2d 12 (La.1975).

BLANCHE, J., would deny the writ.


text:
    STATE of Louisiana ex rel. Ignatius RED v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 65873.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Ignatius Red, applying for reconsideration on denied writ of November 23, 1979. Parish of Orleans. No. 241-738.

Writ denied. Implicit in the judgment of denial is the court’s assertion of full compliance with the law in sentencing, including consideration of the provisions of La.Code Crim.P. Art. 893.


text:
    STATE of Louisiana v. Ronald NASH, Sr.
    No. 66867.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Ronald Nash, Sr., applying for wirts of certiorari, prohibition, mandamus and stay order. Parish of Ouachita. No. 66, 867.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana v. William E. JENKINS, Jr.
    No. 66830.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re William E. Jenkins, Jr., applying for remedial writs. Parish of La Salle. No. 19,861.

Writ denied.


text:
    Carl Bernard GRIFFIN v. Ethel Alford GRIFFIN.
    No. 66827.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Carl Bernard Griffin, applying for writs of mandamus, certiorari, and prohibition. Parish of Caddo. No. 266-919.

Writ denied.

CALOGERO and MARCUS, JJ., would grant the writ.


text:
    Mary Tatum NEILL v. STATE of Louisiana Through the LOUISIANA STATE BOARD OF COSMETOLOGY.
    No. 66797.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Mary Tatum Neill applying for supervisory and/or remedial writs. Parish of Orleans. No. 79-14754.

Writ denied.


text:
    STATE of Louisiana v. Charles COLE.
    No. 66792.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Charles Cole applying for remedial writs. Parish of St. Tammany. No. 71,406.

Denied.


text:
    STATE of Louisiana v. Don W. SMITH.
    No. 66739.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Don W. Smith, applying for writs of certiorari and review. Parish of More-house. No. 79-2105A.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Earl RUSSELL.
    No. 66722.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Earl Russell, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge. No. 9-79 — 486.

Writ denied.


text:
    STATE of Louisiana ex rel. Frank James PRUDHOMME v. Judge Hugh E. BRUNSON.
    No. 66714.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Frank James Prudhomme, applying for writ of mandamus. Parish of Acadia. No. 32,789.

Denied. Since relator will not waive extradition and since the state is preparing to extradite him, the relator is entitled to no relief at this time.


text:
    STATE of Louisiana ex rel. Lorenzo CARPENTER v. STATE of Louisiana.
    No. 66710.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Lorenzo Carpenter, applying for remedial writs. Parish of Rapides. No. 185-172.

Writ denied.


text:
    Joseph HAWKINS v. MEDICAL PATHOLOGY LABORATORIES, INC., et al.
    No. 66700.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Joseph Hawkins, applying for cer-tiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 12,875.

Denied.

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


text:
    Myrtle THOMPSON et al. v. WINN DIXIE OF LOUISIANA, INC., et al.
    No. 66669.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Myrtle Thompson et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 12830.

Writ denied.

DIXON, J., would grant the writ. The wrong burden of proof was applied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Nick G. VAN NORMAN.
    No. 66566.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writs of certiorari, mandamus and prohibition. Orleans Parish. No. 272-930.

Writ denied.


text:
    STATE of Louisiana v. Richard A. PASS.
    No. 66494.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Richard A. Pass applying for a writ of certiorari. Orleans Parish. No. 259-318.

Writ denied.


text:
    STATE of Louisiana v. Ellis A. GUILLOT.
    No. 66491.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Ellis A. Guillot applying for remedial writs. Orleans Parish. No. 262-375.

Denied. Relator has been supplied with all the transcripts and documents in existence which he sought and there is no further relief sought by relator to which he is entitled.


text:
    STATE of Louisiana ex rel. Willie WILLIAMS. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66463.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Willie Williams, applying for writs of habeas corpus and certiorari. Orleans Parish. No. 234-317.

Writ denied.


text:
    STATE of Louisiana ex rel. Gary A. DESDUNES v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66462.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Gary A. Desdunes, applying for writs of habeas corpus and certiorari. Orleans Parish. No. 245-992.

Writ denied.


text:
    STATE of Louisiana ex rel. Sherman REFUGE. v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66445.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Sherman Refuge, applying for writ of habeas corpus. Parish of Jefferson. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. Ronnie GUIDRY v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66418.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re State of Louisiana ex rel. Ronnie Guidry applying for writ of habeas corpus. Parish of West Feliciana. Number unknown.

Writ denied.


text:
    STATE of Louisiana ex rel. Bobby Ray SNEED v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66378.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Bobby Ray Sneed, applying for writ of habeas corpus. Parish of Bienville. No. 17,360.

Writ denied.


text:
    STATE of Louisiana ex rel. Louis WILLIAMS. v. CRIMINAL DISTRICT COURT SECTION I, Honorable Judge I. Augustine, Parish of Orleans.
    No. 66357.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Louis Williams, applying for writ of mandamus. Orleans Parish. No. 234-890.

Writ denied. Moot.


text:
    STATE of Louisiana v. McArthur JOHNSON.
    No. 66353.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re McArthur Johnson, applying for remedial writs. Bossier Parish. No. 54,874.

Writ denied.


text:
    STATE of Louisiana ex rel. James McCOY. v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTIONS “A” AND “G”.
    No. 66027.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re James McCoy, applying for writ of mandamus. Parish of Orleans. Numbers unknown.

Denied. The application is moot.


text:
    STATE of Louisiana v. Rodney R. LOTT.
    No. 66892.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Rodney R. Lott, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo. No. 113,528.

Writ denied.


text:
    STATE of Louisiana v. George BRANCH, Jr.
    No. 65783.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re George Branch, Jr., applying for remedial writs. Parish of La Salle. No. 19,893.

Denied.


text:
    STATE ex rel. Charles Wayne SNEED v. David T. CALDWELL, Judge, 2nd Judicial District Court.
    No. 65449.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Charles W. Sneed, applying for writ of mandamus. Parish of West Feliciana. No. 17,360.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Robert SANDERS, Jr. v. Judge Frank J. SHEA, Orleans Criminal Judicial District Court.
    No. 66025.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Robert Sanders, Jr., applying for writ of mandamus. Parish of Orleans. No. 261-928.

Writ denied. Moot.


text:
    APPLICATION of James E. SMITH to take the Louisiana State Bar Exam.
    No. 66824.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re James E. Smith, applying for rehearing of denied writ of February 15, 1980.

Denied.

DIXON and DENNIS, JJ., would grant.


text:
    STATE of Louisiana v. Willie M. REGISTER.
    No. 66866.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Willie M. Register, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo. No. 107,-714.

Writ denied.


text:
    STATE of Louisiana ex rel. Warren BATISTE v. Honorable Israel M. AUGUSTINE.
    No. 65071.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Warren Batiste, applying for writ of habeas corpus. Orleans Parish. Number unknown.

Writ denied. Appeal is pending.


text:
    STATE of Louisiana v. Warren BATISTE.
    No. 65307.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Warren Batiste, applying for writ of habeas corpus. Parish of Orleans. No. 266-727.

Denied. Appeal pending.


text:
    STATE of Louisiana v. Warren BATISTE.
    No. 65282.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Warren Batiste 'applying for remedial writs. Orleans Parish. No. 266-727.

Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Ulysses SMITH v. Judge Frank MARULLO, Orleans Criminal Judicial District Court.
    No. 66277.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Ulysses Smith, applying for remedial writs. Parish of Orleans. No. 270-325.

Not considered. Relator must first file in trial court.


text:
    STATE of Louisiana v. Roy Edward SEGERS, Versie Segers, Jr., Surety.
    No. 64741.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Versie Segers, Jr., applying for reconsideration. Parish of Tensas. No. 22,-203.

Denied.

CALOGERO and BLANCHE, JJ., would grant.


text:
    STATE of Louisiana ex rel. Jerry Lynn PECK v. Mr. C. Paul PHELPS, Secretary, Louisiana Department of Corrections.
    No. 65995.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Jerry Lynn Peck, applying for rehearing of denied writs on January 18, 1980. Parish of Caddo. No. 112,080.

Granted.


text:
    Wade R. BAGGETTE v. LOUISIANA STATE BAR ASSOCIATION.
    No. 66889.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Wade R. Baggette, applying for declaration to take bar examination.

Writ granted and applicant is hereby permitted to take the bar examination on his execution of the waiver as amended and attached to his application.

SUMMERS, C. J., and MARCUS and WATSON, JJ., dissent from the action of the Court.


text:
    STATE of Louisiana ex rel. Phillip DEAN v. Honorable Charles R. WARD, Judge Criminal District Court, Parish of Orleans.
    No. 66254.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Phillip Dean, applying for writ of mandamus. Orleans Parish. No. 230-036.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. John D. MORRIS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66250.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re John D. Morris, applying for remedial writs. Parish of Orleans. No. 197-727.

Writ denied.


text:
    STATE of Louisiana v. Verdie DOUGLAS.
    No. 66953.
    Supreme Court of Louisiana.
    Feb. 28, 1980.
   In re State of Louisiana, through the District Attorney, Leonard K. Knapp, Jr., applying for writ of review, certiorari, mandamus and stay order. Parish of Calcasieu. No. 2227-78.

Granted. Trial judge has no authority to grant a directed verdict in a jury trial. C.Cr.P. 778; State v. Winzer, 354 So.2d 533 (La.) The case is remanded and the trial is to proceed according to law.


text:
    STATE of Louisiana v. Shelbra BANKS, Willie Samuels, Jr.
    No. 66898.
    Supreme Court of Louisiana.
    Feb. 29, 1980.
   In re Shelbra Banks and Willie Samuels, Jr., on motion to remand.

Motion Granted. Case remanded to trial court for hearing and for consideration of this Court’s decision in State v. Rodriguez, 379 So.2d 1084 (La. 1980).


text:
    STATE of Louisiana v. Willie James CHANEY, Jr. STATE of Louisiana v. Chad WATSON.
    No. 66796.
    Supreme Court of Louisiana.
    Feb. 29, 1980.
   In re Willie James Chaney, Jr. and Chad Watson, applying for writs of certiorari, prohibition and mandamus. Parish of St. Helena. Nos. 4654, 4655, 4659, 4660 and 4661.

Granted.


author: LEMMON, Judge.

text:
    Dolores SORAPURU, Wife of and Leonard Sorapuru, Individually and on behalf of their Minor Children, LeJoan Sorapuru and Denese Sorapuru v. Denis E. SIMON, III and United Services Automobile Association.
    No. 11013.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 21, 1980.
    Thomas M. Willmott, Metairie, for plaintiffs-appellants.
    Montgomery, Barnett, Brown & Read, Thomas E. Loehn, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

In this appeal by four plaintiffs from a judgment awarding them damages for injuries sustained in an automobile accident, the several assignments of error concern certain items of special damages, the amount of general damages awarded to Mrs. Sorapuru, expert fees and deposition costs.

Special Damages

The judgment of the trial court was as follows:

Mr. Sorapuru, individually $ 300.00
Mr. Sorapuru, as community representative 196.50
Mrs. Sorapuru, individually 3,000.00
Mr. Sorapuru, as administrator for his minor child, Denese 565.00
Mr. Sorapuru, as administrator for his minor child, LeJoan 335.00

Thus, the judgment, while broken down as to parties in various capacities, was not itemized. Normally, a lump sum judgment will be presumed as intended to award all items of special and general damages, and the appellant’s burden of proving that the judge or jury abused its discretion is even more difficult than usual because the intention to award a specific amount for any particular item is not readily ascertainable. Hood v. State Farm Mut. Ins. Co., 376 So.2d 328 (La.App. 4th Cir. 1979). However, each case must be determined on its own particular facts and circumstances, and there are some clear indications in this case that several items of special damages were inadvertently omitted from the award.

First, it is evident that the award to Mr. Sorapuru as community representative was intended to compensate the community for all expenses caused by the accident. However, Dr. Bohmfalk’s bill for Mrs. Sora-puru alone was $196.50, the exact amount awarded in the judgment. The $50.00 automobile deductible and Mrs. Sorapuru’s medical bills of $380.00 for Dr. Ganucheau (consulted five days after the accident), $115.00 for X-rays ordered by Dr. Ganu-cheau, $118.00 for Dr. Adatto, and $13.90 for medication prescribed by Dr. Bohmfalk were clearly proved, and it is more likely that these items were simply omitted from the judgment. The $3,000.00 awarded as general damages to Mrs. Sorapuru indicates the trial judge accepted that her injury lasted longer than five days and that all or most of these medical expenses were caused by the accident.

For the two minor children, Denese and LeJoan, the awards of $565.00 and $335.00 respectively are consistent with a round figure for general damages and $65.00 and $35.00 respectively for Dr. Bohmfalk’s bill. Again, as with Mrs. Sorapuru’s medical expenses, the inference is raised that only Dr. Bohmfalk’s bill was awarded, but bills of $25.00 each for Dr. Wexler and $12.90 and $6.60 for prescriptions were clearly proved. The judgment should be amended to include these amounts.

Finally, the award of a round figure for Mr. Sorapuru’s minor injuries might normally be deemed to include Dr. Ganucheau’s bill of $35.00, but since that doctor’s bill for the other three plaintiffs was apparently omitted, we will amend the judgment to add that amount.

General Damages—Mrs. Sorapuru

In the March 6, 1976 accident Mrs. Sorapuru sustained an acute cervical strain and a contusion and moderately severe sprain of the ankle. Dr. Ganucheau, the treating general physician, prescribed physical therapy for both areas and the use of crutches, with elevation of the foot and rest. By March 29 the swelling was decreased, and on April 19 she was allowed to ambulate because most of the swelling was gone. On June 22 there was no residual neck pain and only minimal ankle swelling, and she was discharged in July.

Mrs. Sorapuru returned four months later with complaints of ankle swelling upon playing tennis, and Dr. Ganucheau referred her to an orthopedic surgeon for consultation. Dr. Adatto diagnosed an ankle strain which had responded well to conservative treatment, with minimal residual effects upon intense activity or weather change, which the doctor characterized as “minor problems” which were not unusual. The doctor declined to recommend medication or therapy and opined that she should reach complete recovery shortly.

The award of $3,000.00 for general damages was within the much discretion accorded the trial court by C.C. art. 1934(3). Moreover, the fact that the trial judge did not consider Dr. Adatto’s deposition is of no great consequence, since he was aware of that doctor’s examination and of the result from other testimony and since the deposition testimony added little to the significance of the injury.

Expert Fees

Plaintiffs contend all medical experts were awarded $150.00, but that Dr. Ganucheau, the only doctor to appear at the trial in Convent, should have received a greater amount.

After consulting a general practitioner in St. James Parish, Mrs. Sorapuru on advice of counsel switched to a general practitioner in Harahan. She was certainly within her rights in making this choice, but she cannot then complain when the trial court fixes the expert fee for the Harahan doctor, who had to travel a considerable distance to testify, at the same amount as that awarded the local doctor.

Deposition Costs

Plaintiffs contend that the trial court erred in refusing to award the costs of the depositions of the doctors who testified by deposition. The judgment did not expressly refuse to award these costs, and no written motion was filed to tax these costs, nor was a bill for the costs entered in evidence. Nevertheless, R.S. 13:4533 clearly entitles plaintiffs to recover the costs of these depositions (which are itemized in plaintiffs’ brief and not disputed by defendants), and the judgment will be amended to reflect these awards.

Decree

The judgment is amended to increase the awards to Mr. Sorapuru, individually, from $300.00 to $335.00; to Mr. Sorapuru, as community representative, from $196.50 to $873.40; to Mr. Sorapuru, as administrator of Denese’s estate, from $565.00 to $602.90; and to Mr. Sorapuru, as administrator of LeJoan’s estate, from $335.00 to $366.60. The judgment is further amended to allow plaintiffs’ recovery of the costs of the doctor’s depositions presented in lieu of their testimony in the total amount of $220.15. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . After a trial on December 14, 1977, the case was left open for the deposition testimony of three doctors. After the judgment was rendered and appealed, Dr. Adatto’s deposition and several medical bills were not included in the record on appeal, and investigation determined that these documents and plaintiffs’ post-trial brief had been lost in the mail. While the record was subsequently completed by stipulation of counsel, the loss of these documents explains in part the omission of several items of special damages. Moreover, the amounts apparently awarded for medical expenses were the exact amounts contained in a stipulation submitted after the post-trial depositions were completed.

      . For purposes of this opinion, we disregard the technical question of whether these expenses should be awarded to Mr. Sorapuru individually or as administrator of his child’s estate.


author: MARVIN, Judge.

text:
    GIVENS JEWELERS, INC., Plaintiff-Appellant, v. Douglas J. GIVENS, Defendant-Appellant.
    No. 14007.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.
    En Banc. Rehearing Denied Feb. 29, 1980.

      Donald R. Miller, Shreveport, for plaintiff-appellant.
    James B. Wells & Associates by A. R. Snell, Bossier City, for defendant-appellant.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

This controversy between two brothers, who were in the jewelry business together until 1978, arises over the use of the trade name and the trademark here reproduced:

The lower court rejected plaintiff’s demand to enjoin Douglas J. Givens from using the trade name but granted plaintiff’s demand to enjoin Douglas J. Givens from using the distinctive mark, which was registered in 1978 under Louisiana law by the plaintiff corporation owned by F. A. Givens. We reverse and reject all demands.

The brothers, F. A. and D. J., did business as a partnership (1951-1963) and as jointly owned corporations, Givens Jewelers, Inc. (1963) and Givens Jewelers of Bossier, Inc. (1966). In 1975 they amicably divided their interests with F. A. taking the first corporation, which did business in a Shreveport store, and D. J. taking the second corporation, which did business in a Bossier City store.

In 1953, D. J. and the partnership’s advertising agent designed the trademark, essentially as depicted above. Before and after the stores were legally separated in 1975, D. J. Givens frequently advertised for both stores in one advertisement using the trade name and sometimes the trademark. F. A. objected occasionally to D. J.’s advertisement of particular merchandise which was not stocked in quantity in the Shreveport store. After the stores were legally separated in 1975, both stores continued to share computer, bookkeeping and collection services as they had before 1975.

In 1978 a location for a jewelry store became available in the Eastgate Shopping Center in Shreveport. After F. A. declined D. J.’s suggestion that F. A. open an East-gate'store, D. J. opened the store, incorporated it as Givens Jewelers of Eastgate, Inc., and began advertising. After registering the Givens Jewelers mark for his corporation under LRS 51:211 et seq. on July 20, 1978, F. A. then brought this suit under LRS 51:223 for damages and sought to enjoin D. J.’s further use of the name and the mark.

The trial court correctly denied the enjoining of D. J.’s use of the trade name Givens Jewelers. The word jewelers is descriptive of the business conducted by both litigants. Givens is the surname of both. The name Givens Jewelers is not distinctive, and, under the circumstances shown, is not subject to exclusive appropriation by either litigant. The public is not confused, mistaken or deceived, either by billboard advertisements, which do not designate a store location, or by printed advertisements, which do designate store locations, when the advertisements simply state that Givens Jewelers sells certain merchandise. 87 C.J.S. Trademarks §§ 33, 44; LRS 12:23(C) & (F); White v. White, 68 So.2d 648 (La.App. 1st Cir. 1953); Tharp-Bultman-Sontheimer Co. v. Tharp-Sontheimer-Tharp, Inc., 147 La. 765, 85 So. 906 (1920). See also Couhig’s Pestaway Company, Inc. v. Pestaway, Inc., 278 So.2d 519 (La.App. 3d Cir. 1973).

Apparently giving substantive effect to F. A.’s registration of the mark in 1978, the trial court erred in enjoining D. J. from using the mark reproduced above as he had been before and after the stores were legally separated.

The mere registration of a trade or service mark confers only procedural rights and does not create or confer substantive, proprietary rights of ownership in the mark. Substantive rights in a mark arise only from the use of the mark and not from registration. Buyers & T. Service, Inc., v. Car Maintenance Spec., etc., 290 So.2d 753 (La.App. 1st Cir. 1975); Couhig’s Pestaway, supra. See Robinson, Tradenames and Trademarks — State and Federal: Some Random Observations, XXII La.B.J. 179, 182-183 (1974).

“The registry of a trade mark or a service mark confers only procedural advantages, and not substantive rights. It confers no greater proprietary rights than exist without registration, and thus the registration by one party, or the lack of registration by the other, is not decisive as to the right of either party to use the trade mark or trade name. Gallo v. Safeway Brake Shops of Louisiana, Inc., 140 So.2d 912 (La.App. 4 Cir. 1962); Metalock Corp. v. Metal-Locking of Louisiana, Inc., 260 So.2d 814 (La.App. 4 Cir. 1972).” 278 So.2d at 521

F. A. and D. J., as partners before the 1963 incorporation of Givens Jewelers, Inc., had the right to use the distinctive mark. Even after incorporation in 1963, and after the legal split or separation in 1975, D. J. generally directed the use of the mark and used it for the Bossier store. F. A. has not acquired any better right, substantively, to the use of the mark than D. J. Even assuming otherwise, F. A. allowed unrestricted and indiscriminate use of the mark by D. J. after the legal split of their relationship. D. J. used the mark previous to F. A.’s registering it. LRS 51:212(5), 211(H). See also Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U.S. 118, 25 S.Ct. 609, 49 L.Ed. 972 (1905); Tharp-Bultman-Sontheimer Co., supra; 72 A.L.R.3d 8, § 17. F. A.’s right to use the mark was not exclusive of D. J.’s right. Exclusivity of use is a prerequisite to an injunction in trademark, tradename cases. See Metalock Corp. v. Metal-Locking of Louisiana, Inc., 260 So.2d 814 (La.App. 4th Cir. 1972); New Orleans Coffee Co. v. American Coffee Co., 124 La. 19, 49 So. 730 (1909); Huth v. Rosenzweig, 27 So.2d 742 (La.App.1946). See also Uncas Manufacturing Company v. Clark & Coombs Company, 309 F.2d 818 (C.A. 1st Cir. 1962); Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838 (C.A. 9th Cir. 1969); Annotation — Trademark or Tradename Abandonment, 3 A.L. R.2d 1265; Robinson, XXII La.B.J., supra.

Injunctive relief and damages are available against a person who violates a distinctive mark or name previously appropriated and used by another. This was true even before the enactment of the Louisiana Trademark Law. Handy v. Commander, 49 La.Ann. 1119, 22 So. 230, 235 (1897). See Robinson, supra, summarizing and citing authority from Louisiana and elsewhere. These remedies exist as a part of the law of unfair competition. Even the use of one’s own name in business is not permitted if that use is with the fraudulent intent of appropriating the business of another of the same name which was acquired and established by the previous use of that name. See New Orleans Checker Cabs v. Mumphrey, 205 La. 1083, 18 So.2d 629 (1944). See Robinson, supra, pp. 187-188. See 3 A.L.R.2d 1265, supra. Because of D. J.’s use of the name and the mark previous to F. A.’s registration of the mark, D. J.’s use of the name and the mark afterwards cannot be enjoined. See additionally LRS 51:212(6), supra; Couhig’s Pestaway Company, Inc., supra.

That part of the judgment granting plaintiff’s demands to an injunction and to damages is reversed. That part of the judgment rejecting plaintiff’s other demands is affirmed. All costs are assessed against plaintiff.

REVERSED in part, AFFIRMED in part.

      . The record contains reproductions of many advertisements. Approximately eight were run in 1976, five in 1977, and three in 1978. All of these advertisements except the one of August 30, 1978, were similar to this one of May 16, 1978, advertising the Shreveport store and the Bossier store:

      Partially reproduced are the last two advertisements before suit mentioning the Eastgate store:

      . Pertinent are these sections of LRS Title 51: “§ 211. Definitions
      “A. The term ‘trademark’ . means any work, name, symbol, or device or any combination thereof adopted and used by a person to identify goods made or sold by him and to distinguish them from goods made or sold by others.
      “B. The term ‘service mark’ means a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others.
      “C. The term ‘mark’ as used herein includes any trademark or service mark entitled to registration under this Sub-part whether registered or not, including the designation of a particular place of business.

        “D. The term ‘trade name’ means a word, name, symbol, device or any combination thereof used by a person to identify his business, vocation or occupation and distinguish it from the business, vocation or occupation of others.
      ******
      “H. For the purposes of this Sub-part, a trademark shall be deemed to be ‘used’ in this state (1) on goods when it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto and such goods are sold or otherwise distributed in the state, and (2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in this state.”
      “§ 212. Registrability
      “A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it:
      ******
      “(5) Consists of a mark which, (1) when applied to the goods or services of the applicant, is merely descriptive or deceptively misdescrip-tive of them, or (2) when applied to the goods or services of the applicant is primarily geographically descriptive or deceptively misde-scriptive of them, or (3) is primarily merely a surname provided, however, that nothing in this paragraph (5) shall prevent the registration of a mark used in this state by the applicant which has become distinctive of the applicant’s goods or services. The secretary of state may accept as evidence that the mark has become distinctive, as applied to the applicant’s goods or services, proof of continuous use thereof as a mark by the applicant in this state or elsewhere for the five years next preceding the date of the filing of the application for registration; or
      “(6) Consists of or comprises a mark which so resembles a mark registered in this state or a mark or trade name previously used in this state by another and not abandoned, as to be likely, when applied to the goods or services of the applicant, to cause confusion or mistake or to deceive.”
      “§ 214. Application for registration
      “Subject to the limitations set forth in this Subpart, any person who adopts and uses a mark in this state may file ... an application for registration of that mark setting forth, but not limited to, the following information:
      * * * * * *
      “(4) A statement that the applicant is the owner of the mark and that no other person has the right to use such mark in this state either in the identical form thereof or in such near resemblance thereto as might be calculated to deceive or to be mistaken therefor.”
      “§ 219. Cancellation
      “The secretary of state shall cancel from the register:
      ⅜ sft * ⅜ * *
      “(4) Any registration concerning which a court of competent jurisdiction shall find
      “(a) That the registered mark has been abandoned,
      “(b) That the registrant is not the owner of the mark,
      “(c) That the registration was granted improperly,
      “(d) That the registration was obtained fraudulently,
      “(e) That the registered mark is so similar, as to be likely to cause confusion or mistake or to deceive, to a mark registered by another person in the United States Patent Office, prior to the date of the filing of the application for registration by the registrant hereunder, and not abandoned; provided, however, that should the registrant prove that he is the owner of a concurrent registration of his mark in the United States Patent Office covering an area including this state, the registration hereunder shall not be cancelled.
      “(5) When a court of competent jurisdiction shall order cancellation of a registration on any ground.”
      “§ 222. Infringement
      “Any person who shall:
      “(1) Use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this Sub-part in connection with the advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source of origin of such goods or services; or
      “(2) Reproduce, counterfeit,, copy or color-ably imitate any such mark and apply such reproduction, counterfeit, copy or colorable imitation to advertisements intended to be used upon or in conjunction with the sale or other distribution in this state of such goods or services; shall be liable to a civil action by the owner of such registered mark for any or all of the remedies provided in this Sub-part, except that under Sub-section B hereof the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such mark is intended to be used to cause confusion or mistake or to deceive.”

        “§ 223. Remedies
      “Any owner of a mark registered under this Sub-part may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display or sale as may be by the said court deemed just and reasonable, and may require the defendants to pay to such owner all profits derived from and/or all damages suffered by reason of such wrongful manufacture, use, display or sale; and such court may also order that any such counterfeits or imitations in the possession or under the control of any defendant in such case, be delivered to an officer of the court, or to the complainant, to be destroyed.
      “The enumeration of any right or remedy herein shall not affect a registrant’s right to prosecute under any penal law of this state.”