author: SHARP, Judge.

text:
    Benjamin M. BURLEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1009.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Burley appeals his judgment and sentence for the offense of robbery in violation of section 812.13(2)(c), Florida Statutes (1979). He claims error in the trial court’s denial of his requested jury instruction and in the imposition of adult sanctions without, reference to the criteria provided in section 39.111(6), Florida Statutes (1979). We disagree and affirm the judgment and sentence.

The trial court denied Burley’s request for a jury instruction which provided:

Picking a pocket or purse snatching is not robbery if no more force or violence is used than is necessary to physically remove the property from a person who does not resist. But if the victim resists in any degree and this resistance is overcome by the physical force of the offender, the crime of robbery is complete.

This instruction was inappropriate because the victim’s testimony indicated that resistance occurred during the incident and there was apprehension on the part of the victim.

Further, the instructions to the jury included the following:

Now the property taken must be of some value, but the extent of the value makes no difference in determining guilt of the crime of robbery. The taking must be by the use of force of violence or by assault so as to overcome the resistance of the victim, or by putting the victim in fear so that he does not resist.
The law does not require that the victim of robbery resist to any particular extent or that he offer any actual resistance if the circumstances are such that he is placed in fear of death or great bodily harm if he does not resist. But unless prevented by fear, there must be some resistance to make the taking one done by force or violence.

This instruction adequately covered the requirement of resistance in the context of force and fear. Lowman v. State, 353 So.2d 652 (Fla. 3d DCA 1977).

Burley was seventeen years old when he was arrested for the robbery. He argues that the trial court imposed adult sanctions without following the procedures set out in section 39.111(6), Florida Statutes (1979). However, this issue was not presented to the trial court and therefore it was not preserved for appeal. Rubasky v. State, 401 So.2d 894 (Fla. 5th DCA 1981); Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981). Accordingly, the judgment and sentence are affirmed without prejudice to appellant’s right to seek appropriate relief, e. g., through Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jerry L. HURST, Appellant, v. STATE of Florida, Appellee.
    No. 80-1379.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

See Mills v. State, 400 So.2d 516 (Fla. 5th DCA 1981).

AFFIRMED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., and COWART, JJ., concur.


text:
    Curtis Melvyn LEE, Appellant, v. STATE of Florida, Appellee.
    No. 80-1502.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    James B. Gibson, Public Defender, and Brynn Newton and Julianne Piggotte McLarty, Asst. Public Defenders, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Appellant, Lee, appeals the denial of his motion to suppress evidence. He was charged by information with possession of cannabis, possession of methaqualone, possession of paraphernalia and possession of phentermine. His motion to suppress was granted as to the paraphernalia but denied as to the rest of the evidence. Lee pled nolo contendere reserving the right to appeal. He was adjudicated guilty and sentenced to serve one year in jail as a condition of five (5) years probation. The written judgment states that Lee entered a plea of guilty.

We find no error in the denial of the motion to suppress. The evidence seized was in open view and fell within an exception to the warrant requirement. However, we amend the judgment to correctly state that Lee pled nolo contendere.

AFFIRMED AS AMENDED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . Ensor v. State, No. 57,817 (Fla. June 4, 1981).

      . United States v. Chadwick, 433 U.S. 1, 97 S.ct. 2476, 53 L.Ed.2d 538 (1977); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).


author: RYDER, Judge.

text:
    MANATEE COUNTY, a political subdivision of the State of Florida, Petitioner, v. ESTECH GENERAL CHEMICALS CORPORATION, Respondent.
    No. 80-1375.
    District Court of Appeal of Florida, Second District.
    Aug. 12, 1981.
    E. N. Fay, Jr. of Mann & Fay, Chartered, Bradenton, for petitioner.
    John R. Blue and J. B. Donnelly of Grimes, Goebel, Parry, Blue, Boylston & McGuire, Bradenton, for respondent.
   RYDER, Judge.

Manatee County petitions for common law certiorari to review the order below granting a motion to compel discovery and granting a motion to strike affirmative defenses. We grant certiorari to quash the order compelling discovery.

Respondent Estech General Chemicals Corporation (Estech) sought review below of petitioner Manatee County’s denial of Estech’s application for approval of a development of regional impact under sections 380.06 et seq., Florida Statutes (1979). The complaint alleged a taking of Estech’s land without just compensation and sought damages, both apparently pursuant to the judicial review provisions of section 380.085, Florida Statutes (1979). After pleadings were filed in the suit below, Estech deposed one of the Manatee County commissioners. The commissioner refused to answer numerous questions generally concerning the reasons for her vote to disapprove the application for a DRI and what evidence she considered in making her decision to vote against the approval. Respondent moved to compel answers to the questions. The court granted the motion to compel, apparently in the mistaken belief that respondent was entitled to know the factual basis for the commissioner’s decision. Petitioner Manatee County then filed this action for review of the order below under common law certiorari.

Certiorari is the proper method to review the grant of a discovery order. Zuberbuhler v. Division of Administration, 344 So.2d 1304 (Fla.2d DCA 1977); Winn Dixie Stores, Inc. v. Belcher, 144 So.2d 863 (Fla.2d DCA 1962).

We start our review by noting that discovery is usually permitted only on matters reasonably calculated to lead to admissible evidence. Brooks v. Owens, 97 So.2d 693 (Fla.1957); Fla.R.Civ.P. 1.280(d)(1). The right to discovery thus does not extend to matters which are not directly relevant and which cannot reasonably lead to relevant matters. Miami v. Fraternal Order of Police, 346 So.2d 100 (Fla.3d DCA 1977); Hoogland v. Dollar Land Corporation, Ltd., 330 So.2d 509 (Fla. 4th DCA 1976). We hold that the questions asked below fall under the above principles. The issues in an action alleging a taking of land, or inverse condemnation, involve only the effect of governmental action on the use of the land. The question is simply whether the governmental action was a “taking.” See Edwards Dairy, Inc. v. Pasco Water Authority, Inc., 378 So.2d 866 (Fla.2d DCA 1979). The motive of the governmental entity in taking the action, much less the motive of an individual commissioner in voting, has no relevance to this action, and, moreover, we do not see any path from the questions leading to relevant matter.

We note that the action below is not an appeal of the petitioner’s action in denying the approval for development, so that the record factual basis for the decision might be significant. Substantive appeals from denials of DRI approval are taken in accordance with chapter 120, Florida Statutes. Section 380.085(2), Florida Statutes (1979). The action below is merely for inverse condemnation and damages, with the additional remedies provided by section 380.085(3), Florida Statutes (1979).

We grant the petition for writ of certiorari and quash the order below compelling answers on deposition. We decline to review the grant of Estech’s motion to strike affirmative defenses. That order ■ may not be reviewed by common law certiorari. Gibson v. Curry, 319 So.2d 149 (Fla.2d DCA 1975). The case is remanded for further proceedings consistent herewith.

SCHEB, C. J., and HOBSON, J., concur.


text:
    GULF CONTRACTING, INC. and United States Fidelity and Guaranty Company, Appellants, v. Randol FRIER (Deceased), Opal Frier, Appellees.
    No. XX-117.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1981.

      Patrick J. Malone, Anthony J. Beisler, Beisler & Wells, West Palm Beach, for appellants.
    Earle Lee Butler and Don Lacy, Fort Lauderdale, for appellees.
   PER CURIAM.

We affirm on all points raised, except with regard to the interest rate, which the parties agree was incorrectly assigned at twelve percent (12%) by the deputy commissioner. With regard to delinquencies accruing prior to July 1, 1978, the applicable interest rate is six percent (6%); for delinquencies accruing on or after July 1, 1978, the applicable interest rate is twelve percent (12%). Myers v. Carr Construction Co., 387 So.2d 417 (Fla. 1st DCA 1980). The order is amended to reflect the correct interest rates, and AFFIRMED as amended.

McCORD and SHIVERS, JJ., and LILES, WOODIE A. (Ret.) Associate Judge, concur.


text:
    E. W., a Child, and A. J., a Child, Appellant, v. STATE of Florida, Appellee.
    No. XX-148.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1981.
    Michael Minerva, Public Defender and Judith J. Dougherty, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellants were adjudged to be delinquent and committed to the Division of Youth Services. They appeal the judgment and sentence. The evidence, which is entirely circumstantial, is insufficient to support the judgment in that it is not inconsistent with all reasonable hypotheses of innocence.

REVERSED.

ROBERT P. SMITH, Jr., C. J., and McCORD and SHIVERS, JJ., concur.


text:
    Columbus FLOYD, Sr., Appellant, v. STATE of Florida, Appellee.
    No. AD-184.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1981.

      Columbus Floyd, Sr., in pro. per.
    No appearance for appellee.
   PER CURIAM.

Floyd raises two points in his appeal of the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post conviction relief. We reverse and remand.

First, he argues he was given a five year sentence in open court, but his commitment papers reflect a fifteen year split sentence. He is to serve five years in prison followed by ten years on probation. He states he pleaded guilty pursuant to an understanding with his attorney that he would receive a five year sentence. This contention is refuted by the express language of the written plea of guilty form signed by appellant, a copy of which appears attached to the trial court’s order denying his motion. We find no reversible error on this point.

Appellant correctly argues, however, that the trial court erred in sentencing him to a period of incarceration equal to or in excess of one year on a split sentence. See Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). Therefore we reverse the trial court’s denial of his motion for post conviction relief and remand the cause to the trial court for resentencing to comply with Villery, supra.

MILLS, ERVIN and LARRY G. SMITH, JJ., concur.


author: J0AN0S, Judge.

text:
    Roscoe WILLIAMS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. XX-50.
    District Court of Appeal of Florida, First District.
    August 17, 1981.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

      Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   J0AN0S, Judge.

Appellant Roscoe Williams, Sr., appeals from an adjudication of guilt of possession of a firearm by a convicted felon. We affirm.

Sometime in the past, the appellant was convicted of a felony and lopt his civil rights. On February 15,1980, the appellant obtained an executive clemency order from the Governor with concurrence of the requisite members of the cabinet restoring appellant’s civil rights “... except the specific authority to possess or own a firearm. . .. ” Thereafter, appellant was charged with the crime of possession of a firearm by a convicted felon under § 790.23, Florida Statutes. The alleged unlawful possession was said to have occurred on March 15, 1980.

Section 790.23, Florida Statutes (1979) provides as follows:

(1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offense in any other state, territory, or country punishable by imprisonment for a term exceeding 1 year to own or to have in his care, custody, possession, or control any firearm or electric weapon or device or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices.
(2) This section shall not apply to a person convicted of a felony whose civil rights have been restored.
(3) Any person convicted of violating this section is guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

Appellant moved to dismiss the charge urging that his civil rights had been restored and, therefore he could not be convicted under the statute. The trial judge denied the motion and appellant pled nolo contendere to the charge conditioned upon his right to appeal the denial of the motion. This appeal followed appellant’s conviction.

Appellant argues that § 944.292, Florida Statutes (1979) provides that a felon’s “civil rights” shall be suspended unless reinstated by the Governor. He urges that because the statute does not define “civil rights”, the term is ambiguous and should be construed in his favor, to wit, that the “civil rights” suspended do not included the right to possess a firearm. He further argues that although current Florida law does not define “civil rights”, the former law, § 944.-292, Florida Statutes (1975) (declared unconstitutional on unrelated grounds in In re: Advisory Opinion of the Governor Civil Rights, 306 So.2d 520 (Fla. 1975)), provided that the civil right suspended upon conviction of a crime “are the rights to vote, hold public office, and serve on a jury” and did not include the right to possess a firearm. See Crossley v. State, 334 So.2d 17, 20 (Fla. 1976). His conclusion is that since “civil rights” forfeited by the conviction of a felony does not include the right to possess a firearm, all of his “civil rights” have been restored and § 790.23(2) operates as a complete defense to possession of a firearm by a convicted felon.

We reject appellant’s arguments and agree with the State. What appellant actually received was a partial restoration of his civil rights rather than a complete restoration. When the appellant was convicted of a felony, one of the rights that he previously held as a citizen, the right to possess a firearm, was taken away by virtue of § 790.23(1). Appellant could no longer legally possess or own a firearm. This was clearly a “civil right” that he no longer possessed. Under the Governor’s discretionary clemency power (Article IV, § 8, Florida Constitution) appellant was restored to all other pre-conviction rights except the authority to possess or own a firearm. The trial court properly denied the motion to dismiss because appellant had not had his “civil rights” restored for purposes of § 790.23 when the event for which he was charged occurred.

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and THOMPSON, J., concur.


text:
    Jessie KEY and Clyde Goley Carpet Service and The Travelers Insurance Company, Appellants, v. Clyde GOLEY and Cut-Rate Carpet, Inc. and Commercial Union Assurance Companies, Appellees.
    No. XX-83.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1981.
    H. George Kagan of Miller, Hodges & Kagan, Miami, for appellants.
    G. J. Godfrey of Lanza, Sevier & Wom-ack, Coral Gables, for appellees.
   PER CURIAM.

This is an appeal from an order of the deputy commissioner finding Travelers Insurance Company had waived the requirement that a partner file a notice of election to be covered under the compensation policy, and finding Travelers acted in such a manner as to be estopped from denying coverage. We reverse. We conclude that acceptance by Travelers of a workers’ compensation policy issued to Jessie Key and Clyde Goley, identified as a partnership, does not constitute a waiver of Goley’s exclusion from the act under § 440.04(2), Florida Statutes, nor do we find that Travelers acted in any manner which would estop it from denying coverage.

Jessie Key and Clyde Goley installed carpet for Cut-Rate Carpet, Inc. The president of Cut-Rate informed Key and Goley that they must obtain their own workers’ compensation insurance. An application was submitted to the Florida Compensation Rating Bureau indicating that compensation coverage was sought by Jessie Key and Clyde Goley, doing business as a partnership. The application disclosed the partnership had two employees. No notice of election to have the partners covered under the policy was submitted. Travelers Insurance Company issued a policy to Jessie Key and Clyde Goley noting that the insured was a partnership. The number of employees of the partnership was not indicated in the policy nor was there a description of any positions of the partnership. Thereafter, Goley was injured while installing carpet. Travelers denied coverage and Commercial Union Assurance Company, carrier for Cut-Rate, paid benefits to Goley. A hearing was held before the deputy commissioner on Commercial Union’s claim that it was entitled to reimbursement from Travelers for the benefits paid Goley.

Under the facts of this case, it is clear that Travelers Insurance Company took no action which would estop it from denying coverage. Travelers simply issued a policy to a partnership in accordance with an application which had been assigned to it by the Florida Compensation Rating Bureau. Under Florida law, a partner is an employer, not an employee. Fink v. Fink, 64 So.2d 770 (Fla.1953). The partners here did not elect to be considered employees for compensation purposes.

The argument that Travelers waived notice under § 440.04(2) by issuing the insurance policy is not persuasive. That section provides that when any policy specifically secures the benefits of the workers’ compensation chapter to any person not included in the definition of employee or who is otherwise exempted from the operation of the chapter, the writing of the policy by the carrier shall constitute a waiver of such exclusion or exemption. In the present, case, the policy issued by Travelers did not specifically secure benefits of the workers’ compensation law to any person not included under the chapter. In fact, the insurance policy makes no specific reference to any employees for whom benefits were secured by the policy. Only a partner who devotes full time to the partnership and elects to be included in the definition of employee by filing a notice thereof as provided in Section 440.05, is included in the term “employee”. Section 440.02(2)(c), Fla. Stat. (1977). Notice that a partner elects to be included in the definition of employee must be mailed to the Division of Labor of the Department of Commerce in Tallahassee. Section 440.05(2), Fla.Stat. (1977). No such notice was submitted in the present case and thus the partners were not included as employees under the policy issued by Travelers insuring the partnership. White v. White, IRC Order 2-3589 (1978).

The order is reversed.

MILLS and SHAW, JJ., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


author: COWART, Judge.

text:
    STATE ex rel Franklin C. COODY, Petitioner, v. The Honorable Bernard MUSZYNSKI, as Judge of the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida, Respondent.
    No. 81-1019.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1981.

      Richard E. Trapp, Orlando, for petitioner.
    No appearance for respondent.
   COWART, Judge.

The petition for writ of prohibition, or alternatively petition for writ of habeas corpus, is treated as a petition for certiora-ri, Fla.R.App.P. 9.040(c), and is granted. The words “7 days after incarceration” are stricken from that portion of the trial court’s order finding the petitioner-father in contempt for failure to pay ordered child support, sentencing him to confinement for 60 days and providing that “7 days after incarceration” he could purge himself of contempt by paying the amount of adjudicated arrearages.

Contempt for failure to pay child support is civil contempt for which the con-temnor must always be permitted to purge himself by compliance with the court order he has disobeyed. Petitioner could have been found guilty of a criminal contempt and confined without provision for purging if, after he had been personally served with an unqualified order to appear at the proceedings to determine his compliance with a final judgment providing for child support, he had failed to appear and a separate criminal contempt proceeding had been prosecuted in the manner provided in Florida Rule of Criminal Procedure 3.840.

We reject petitioner’s claim of inadequate time to retain counsel and prepare a defense prior to the civil contempt hearing. Failure to pay child support as ordered is a matter of great importance and urgency. Although given short notice, petitioner had time to attend the hearing, but did not attend. If additional time to prepare was necessary, petitioner should have appeared at the hearing and then and there requested a continuance for such time as would make preparation possible.

The trial court order dated August 13, 1981, herein committing petitioner for civil contempt is affirmed except for the provision permitting purge only “7 days after incarceration,” which qualifying provision is hereby quashed.

CERTIORARI GRANTED; ORDER QUASHED IN PART.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: SCHWARTZ, Judge.

text:
    I. B. L. CORPORATION, a Florida corporation; Heriberto Valdez and Reina Margarita Valdez, his wife, Appellants, v. PAN AMERICAN BANK, N.A., Appellee.
    No. 80-1634.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.

      Rudolph Browd, Miami, for appellants.
    Smathers & Thompson and John H. Hickey, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   SCHWARTZ, Judge.

Almost one year after the issuance of a clerk’s certificate of title pursuant to a sale ordered in a final judgment of foreclosure, see Section 45.031, Florida Statutes (1979), the second mortgagee, Pan American Bank, N.A., moved for the entry of a deficiency judgment against the mortgagors. The trial court entered the judgment and they appeal. We reverse.

The final judgment of foreclosure did not contain an adjudication of the appellee’s demand for a deficiency judgment and neither expressly nor impliedly, see Galloway v. Musgrave, 154 So.2d 846, 850-51 (Fla. 2d DCA 1963), reserved jurisdiction to do so thereafter. Accordingly, that relief could be granted only upon an application filed within 10 days of the certificate of title. Katz v. Koolish, 142 So.2d 759 (Fla. 3d DCA 1962). Since the appellee’s motion was filed far beyond that time, the trial court had no jurisdiction to grant it and to enter the judgment under review. Jappe v. Heller, 65 So.2d 302 (Fla.1953); Cole v. Heidt, 124 Fla. 264, 168 So. 11 (1936); Atwell v. Atwell, 111 Fla. 352, 149 So. 555 (1933); Mabson v. Christ, 96 Fla. 756, 119 So. 131 (1928); Scheuermann v. Shamas, 97 So.2d 314 (Fla. 3d DCA 1957); see Katz v. Koolish, supra.

Reversed.

      . We reject as totally baseless Pan American’s claims that jurisdiction was “impliedly” reserved by virtue either simply of the denomination of the final judgment as one of “foreclosure” or of the provision — presumably by negative implication — that the first mortgagee waived its right to a deficiency. Compare Galloway v. Musgrave, supra, upon which the bank solely relies, in which the foreclosure judgment expressly reserved jurisdiction
      to settle all other questions that this court has jurisdiction to settle under the complaint ... as the court shall deem proper in equity and as the circumstances of this case may require.


text:
    Raymond BELVIN, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2239.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.

      Bennett H. Brummer, Public Defender and Lance R. Stelzer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Section 810.07, Florida Statutes (1979). See Kersey v. State, 73 Fla. 832, 74 So. 983 (1917); M. R. v. State, 399 So.2d 56 (Fla. 3d DCA 1981).


text:
    Kenneth SHAW, Appellant, v. IBERO-AMERICAN TRADE CORPORATION, a Florida corporation, Appellee.
    No. 80-2507.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Bergman & Jacobs and Richard H. Bergman, North Miami, for appellant.
    Christie, Gelber & Christie and Joyce Christie, Miami, for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant Shaw, in compliance with § 865.09, Florida Statutes (1979), Fictitious Name Statute, filed an affidavit with the Clerk of the Circuit Court that he was sole owner of the business, Foolish Pleasure. Ibero-American Trade Corporation which subsequently sold goods to Foolish Pleasure, brought suit against Shaw for breach of contract when Shaw failed, to pay for the goods delivered. Shaw defended on the grounds that a corporation, and not he personally, was the actual owner of Foolish Pleasure, and that the affidavit was an error. The trial court rejected the defense and entered judgment for Ibero-American. We affirm.

We also find the two other issues raised by appellant on appeal to be without merit.

Affirmed.


author: BASKIN, Judge.

text:
    Steven A. STANLEY, Appellant, v. Fred CRAWFORD, Director of Corrections, Dade County Jail and Regina Shaw, Head Nurse-Dade County Jail, Appellees.
    No. 81-38.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.

      Steven A. Stanley, in pro. per.
    Robert A. Ginsburg, County Atty. and Roy Wood, Asst. County Atty., for appel-lees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We reverse the Order of Dismissal entered by the trial court upon our holding that appellants’ pending prior federal court action does not mandate dismissal. State ex rel. Dos Amigos, Inc. v. Lehman, 100 Fla. 1313, 131 So. 533 (1930); Lawyers Professional Liability Insurance Co. v. Shand, Morahan & Company, 394 So.2d 238 (Fla. 1st DCA 1981); ITT-Community Development Corp. v. Halifax Paving, Inc., 350 So.2d 116 (Fla. 1st DCA 1977); cert. denied, 359 So.2d 1215 (Fla.1978), but a court may, upon the filing of a proper motion and record, abate a subsequent suit under appropriate circumstances.

Appellants’ complaint sought damages predicated upon the alleged inattention of jail personnel to his medical needs. Department of Transportation v. Knowles (Fla. 1981) (Case No. 59,870, opinion filed June 25,1981) clearly states that appellees do not enjoy retroactive sovereign immunity protections under the 1980 amendment to section 768.28(9), Florida Statutes (Supp. 1980).

Reversed and remanded for further proceedings.


text:
    Preston McBURROWS and Myrtis McBurrows, his wife, Appellants, v. MIAMI CRANE SERVICES, INC., a Florida corporation, Appellee.
    No. 81-205.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Mark R. Baer, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Fred R. Ober, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed on the authority of Chase v. Tenbroeck, 399 So.2d 57 (Fla.3d DCA 1981). See McDonald v. Wilson Welding Works, Inc., 370 So.2d 863 (Fla. 1st DCA 1979) (Ervin, J., specially concurring).


author: NESBITT, Judge.

text:
    The STATE of Florida, Appellant, v. Oscar RODRIGUEZ, Appellee.
    No. 81-390.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

While committing a burglary, the defendant stole a loaded handgun. He was informed against for armed burglary of a structure which is prohibited by Section 810.02(2)(b), Florida Statutes (1979). The defendant filed an amended sworn motion to dismiss the information as authorized by Florida Rule of Criminal Procedure 3.190(c)(4). The defendant’s motion admitted the circumstances surrounding his acquisition of the handgun. The state demurred as permitted by Florida Rule of Criminal Procedure 3.190(d), the effect of which was to place in issue the legal sufficiency of the accusatory pleading. Haddock v. State, 141 Fla. 132, 192 So. 802 (1939); O’Brien v. State, 55 Fla. 146, 47 So. 11 (1908). The trial court granted the defendant’s amended sworn motion to dismiss, which therefore reduced the offense charged from armed burglary to burglary.

Section 810.02(2)(b), Florida Statutes (1979) converts a simple burglary into an armed burglary by the following terms:

Is armed, or arms himself within such structure, with explosives or a dangerous weapon.

In the same language, Section 810.02(3), Florida Statutes (1979) authorizes an increased penalty where the burglar is armed. The fact that the defendant does not actually employ the weapon is not the gravamen of this enhanced offense. We agree with State v. Dopson, 323 So.2d 644 (Fla.4th DCA 1975) where Judge Downey stated:

There is nothing ambiguous about the language of either section of the statute nor do we find any support for the alleged requirement that the state must show the person charged intended or was willing to use such weapon in the furtherance of the crime being committed. A loaded pistol is a dangerous weapon and to take possession thereof is to arm oneself.

323 So.2d at 645. Accord, Fowler v. State, 375 So.2d 879 (Fla.2d DCA 1979).

For the foregoing reasons, as well as the defendant’s confession of error, the order appealed from is reversed with directions to reinstate the information charging the defendant with the offense of armed burglary-


text:
    Samuel TEPPER, Appellant, v. ESTATE OF Pauline TEPPER, a/k/a Pauline Romer, Appellee.
    No. 81-481.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Britton, Cohen, Kaufman, Benson & Schantz, Fort Lauderdale, for appellant.
    Hoffman & Kupfer, Fort Lauderdale, for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. §§ 732.212, 733.212, 733.702, Fla.Stat. (1979).


text:
    George WOODS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1731.
    District Court of Appeal of Florida, Third District.
    Aug. 19, 1981.
    John H. Lipinski, Miami, for appellant.
    j¡m Smith, Atty.' Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on July 17, 1979 (374 So.2d 47) reversing the order of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment by certiorari, the Supreme Court of Florida, by its opinion and judgment dated June 18, 1981, 400 So.2d 456, now lodged in this court, quashed this court’s judgment.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on October 1, 1979 is withdrawn, the judgment of this court filed July 17, 1979 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the order of the trial court is reinstated and affirmed. Costs allowed shall be taxed in the criminal court (Rule 9.400(a) Florida Rules of Appellate Procedure).


text:
    STATE of Louisiana ex rel. Thomas GRAYER v. T. N. ARMISTEAD, Superintendent, East Louisiana State Hospital.
    No. 67397.
    Supreme Court of Louisiana.
    July 7, 1980.
    James H. Looney, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

The writ is granted.

On February 15, 1980, this court granted Writ No. 66608, State ex rel. Grayer v. Armistead, 380 So.2d 624 with the following order:

“Writ granted. The trial court is instructed to order a report from East La. State Hospital and to proceed thereafter according to law. See Jackson v. Indiana, 406 U.S. 715, [92 S.Ct. 1845, 32 L.Ed.2d 435] (1972); State v. Williams, 363 So.2d 441 (La. 1978).”

On April 25, 1980, relator again filed an application in this court complaining of the action taken by the district court at a hearing held April 24.

Subsequent inquires produced the transcript of the April 24 hearing, but no one was able to supply us with the report from the East Louisiana State Hospital.

Code of Criminal Procedure article 648 recognizes the rule of Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). When a defendant is found to lack the mental capacity to proceed, he is committed to a state mental institution for a time not to exceed the maximum sentence he would receive if convicted of the crime. At any time thereafter a hearing may be held to determine whether the defendant will attain the capacity to proceed in the foreseeable future and whether he is a danger to himself and others. After this hearing, if the court determines that the defendant will be incapable of standing trial in the foreseeable future and may be released without danger to himself or others, the defendant will be released on probation, pursuant to other provisions of article 648.

Since the record before us does not contain the report from the East Louisiana State Hospital on the prognosis of the defendant’s attaining the capacity to proceed with trial in the foreseeable future, we cannot review that element of the hearing. The transcript furnished to this court of the April 24 hearing shows no testimony except from Dr. Ritter and Dr. Medina, who were apparently members of the original lunacy commission. The trial judge stated at the conclusion of the “re-evaluation” hearing that “the Court has requested and received a report from Louisiana State Mental Hospital ...” There was no finding relating to the dangerous quality of defendant.

These things must be determined in a hearing: (1) will the defendant attain the capacity to proceed with his trial in the foreseeable future; (2) is he a danger to himself or others. If the defendant will not gain the capacity to proceed, and is not danger to himself or others, he must be released on probation as provided in article 648. If the court determines that the mentally defective defendant is unlikely in the foreseeable future to be capable of standing trial, and is a danger to himself or others, the court shall order a commitment to a suitable treatment facility. This commitment is classified in the statute as a “civil commitment,” and will be thereafter governed by civil commitment statutes.

Therefore, the district court is ordered to hold another hearing in accordance with our order and the provisions of C.Cr.P. 648.

DENNIS, J., not participating.'


author: PER CURIAM. LEMMON, Justice,

text:
    STATE ex rel. Eddie Lee HOWARD v. CLERK OF COURT, FIRST JUDICIAL DISTRICT COURT.
    No. 81-KH-0112.
    Supreme Court of Louisiana.
    April 27, 1981.
   PER CURIAM.

GRANTED. Just as with other trial irregularities involving fundamental rights, the defendant’s failure to object or to present evidence of the non-existence of the record does not prevent his raising the lack of a record of the constitutionally required judicial determination that his plea was voluntary in an application for a writ of habe-as corpus, La.Code of Crim.Proc. art. 362, or in a motion for a new trial, La.Code of Crim.Proc. art. 851. State v. Nelson, 379 So.2d 1072 (La.). See La.Code of Crim. Proc. art. 841 official revision comment (b). Accordingly, the trial court is ordered to conduct an evidentiary hearing on relator’s motion.

LEMMON, J., concurs and assigns reasons.

MARCUS, J., dissents from the grant, being of the opinion that the ruling of the trial judge was correct.

BLANCHE and WATSON, JJ., dissent.

LEMMON, Justice,

concurring.

At the multiple offender hearing the state introduced evidence, without objection, of two prior convictions based on guilty pleas. If defendant had objected at that time, the burden would have been on the state to prove the guilty pleas were voluntarily entered with knowledge of the consequences. Defendant’s failure to object at that time does not impliedly waive his right forever to assert any constitutional deficiencies in those guilty pleas, but the failure does relegate defendant to post conviction proceedings, at which the burden will be on defendant to prove a constitutional deficiency in his pleas. See my concurring opinion in State v. Jackson, 389 So.2d 69 (La.1980).

I differ from my colleagues who voted to grant this writ, however, in that I believe a guilt plea is not necessarily constitutionally deficient merely because the three right articulation procedures outlined in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971) was not followed. The decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), while rejecting any presumption of a knowledgable and intelligent waiver when the record is silent, did not require any specific articulation of constitutional rights on the record contemporaneous with the plea, although the Court noted that such a practice is highly preferable. Therefore, when a guilty plea is subsequently attacked in post conviction proceedings, the trial court may consider all evidence offered at the post conviction hearing in determining whether the plea was intelligently and voluntarily entered at the time with awareness of its consequences. McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974).

      . In Boykin the Court noted:
      “A majority of criminal convictions are obtained after a plea of guilty. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses of which he is charged and the permissible range of sentences.”


author: PER CURIAM. DIXON, C. J., and DENNIS, J.,

text:
    STATE of Louisiana v. Joseph LUCAS and Cornelius Scott.
    No. 67567.
    Supreme Court of Louisiana.
    May 27, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns and Donald Foret, Asst. Dist. Attys., for plaintiff-appellee.
    Joseph Drolla, New Orleans, for Cornelius Scott.
    Elizabeth Cole, New Orleans, Tulane Appellate Advocacy Clinic, for Joseph Lucas.
   PER CURIAM.

Affirmed.

DIXON, C. J., and DENNIS, J.,

dissent and would remand for reconsideration of the sufficiency of the showing on the Federal conviction as to defendant Scott; but concur as to conviction and sentence as relates to the defendant Lucas.


author: CHIASSON, Judge. PER CURIAM.

text:
    Christopher KNOCKUM et al. v. AMOCO OIL COMPANY et al. Claiborne WHITE, Jr. et al. v. AMOCO OIL COMPANY et al.
    Nos. 13836, 13837.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    On Rehearing June 29, 1981.
    On Rehearing July 27, 1981.
    Rehearing Denied Aug. 25, 1981.

      Alfred F. McCaleb, III, Baton Rouge, Malcolm J. Dugas, Jr., Joffrion & Dugas, Donaldsonville, John A. Lieux, Gonzales, for plaintiffs and appellees.
    A. Shelby Easterly, III, Taylor, Porter Brooks & Phillips, Baton Rouge, for defendants and appellants Amoco Oil Co. and Aet-na Cas. & Surety Co.
    Charles F. Castille, La. Health & Human Resources Adm., Baton Rouge, for interve-nor and appellee.
    Harry P. Gamble, III, Gamble & Gamble, New Orleans, for defendant and appellant Bernice Holmes.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Defendants-Appellants, Amoco Oil Company and Aetna Casualty & Surety Company (sued as Aetna Insurance Company), appeal the separate judgments rendered against them and in favor of the appellees for damages awarded to appellees for personal injuries and wrongful death actions sustained in a gas explosion and house fire in Prairieville, Louisiana.

Two separate suits were filed in this matter and consolidated for trial purposes. A brief review of the facts will aid in the determination of the respective parties and their claims.

On May 5, 1975, Christine Wenzy and her two minor children, Amy (then age three) and Jerome (then age two), were moving into a two bedroom wood frame house in Prairieville. The house was owned by Bernice Holmes, a resident of New Orleans, who had given a key to the house to Christine. There is some dispute as to whether Christine Wenzy was actually going to rent the house or whether she had permission to use the house, but this is not vital to our determination.

Helping Christine to move was Diane Knockum who had her daughter, Susan, with her. Shirley Ezeff White, who had been living with Christine in a house across the road from the one in question, was also helping. Finally, Christine Wenzy’s brothers, Albert Wenzy and Michael Wénzy, along with Willie Robinson, aided in the venture.

The house had previously been rented to Ms. Emma Frazier who had moved at least two weeks (others testified that it was longer) prior to the move by Christine. Ms. Frazier had lived in the house less than a year and had it serviced for propane gas by one of the defendants, Amoco Oil Company.

The move began sometime in the afternoon on May 5 and concluded close to dinner time. At that time, Albert Wenzy connected the gas stove they had brought into the house to the gas connection in the kitchen. Albert and Christine turned on the gas from the propane tank located outside and in the back of the house. During this time, the three children were seated at the dinner table with the others gathered in the living room. Christine Wenzy then went to the back bedroom and proceeded to open the door. At that moment an explosion occurred followed by a fire which engulfed the house.

Injured in the blaze, but surviving, were Christine Wenzy and Susan Knockum. Amy and Jerome Wenzy, Diane Knockum, and Shirley Ezeff White survived the fire but later died of burns to their bodies. None of the three males were injured in the accident.

Two suits were filed in this matter, the first by Christopher Knockum, husband of Diane Knockum; Willie D. Williams, alleged natural father of Amy and Jerome Wenzy; and Christine Wenzy. The plaintiffs sued Amoco Oil Company, its liability insurer, Aetna Casualty & Surety Company, and Bernice Holmes, owner of the house.

Christopher Knoekum sued for the wrongful death of his wife, Diane, and for the pain and agony she suffered before dying on June 16, 1975. In addition, Christopher is suing as natural tutor of his daughter for the injuries she sustained as well as for the wrongful death of her mother and the pain and agony her mother sustained before dying.

Willie D. Williams, the alleged natural father of Jerome and Amy Wenzy, is suing for their wrongful deaths in addition to damages for the pain they suffered prior to their deaths on May 6, 1975, and June 9, 1975, respectively.

Christine Wenzy is suing for the wrongful deaths of her two children, Jerome and Amy, as well as damages for the pain they suffered prior to their deaths. Christine is also seeking damages she incurred as a result of the fire.

The second suit is by the survivors of Shirley Ezeff White. Her husband, from whom she had been judicially separated, Claiborne White, Jr., sued on his behalf for the medical and funeral expenses incurred by the death of Shirley. In addition, he sued as natural tutor of the five minor children born of the marriage for the wrongful death of their mother and the pain and suffering she experienced before dying on May 15, 1975.

Named as defendants in the second suit were Amoco Oil Company, Aetna Casualty & Surety Company, Bernice Holmes, Emma Frazier, Albert Wenzy, Michael Wenzy, and Willie Robinson.

The State of Louisiana, through the Department of Health and Human Resources Administration, intervened in the first suit seeking reimbursement of $9,806.09 for medical expenses incurred by them in caring for Christine, Jerome and Amy Wenzy at the Charity Hospitals in Baton Rouge and New Orleans.

The trial court, after two days of testimony and taking the case under advisement, rendered judgment, without assigning written reasons, in favor of all plaintiffs. In the first suit, all three defendants were held, in solido for the following awards:

In addition the three defendants were cast, in solido for $9,806.09, the amount owed to the intervening State, as well as for all court costs, expert fee in the amount of $750.00, and interest in the amount of seven percent (7%) for all sums awarded.

In the second suit, judgment was rendered on the same day against Amoco Oil Company and Bernice Holmes, in solido. The awards to Claiborne White, Jr. were as follows:

In addition, the defendants were to pay for all court costs, expert fee in the amount of $750.00, and interest at the rate of seven percent (7%) for all sums awarded.

Amoco Oil Company and Aetna Casualty & Surety Company obtained a timely sus-pensive appeal and timely posted an appeal bond on May 8, 1980. The other defendant, Bernice Holmes, obtained an order for a devolutive appeal on June 17, 1980.

In regards to this latter appeal, we find that it is untimely and therefore we dismiss the appeal for lack of jurisdiction over the matter. Therefore, the judgment of the trial court as it relates to Bernice Holmes is final.

The judgments of the trial court were rendered on March 14, 1980. Notices of the judgments were sent out by the Clerk of Court of Ascension Parish on April 3, 1980. The time frame applicable for a new trial was seven days which expired on April 15, 1980. (La.C.C.P. art. 1917). The thirty day delay for a suspensive appeal ended on May 15, 1980 (La.C.C.P. art. 2123), while the sixty day delay for a devolutive appeal ended on June 16, 1980. (La.C.C.P. art. 2087). Ms. Holmes did not obtain her order for appeal until June 17, 1980. Her appeal is therefore untimely. We are without jurisdiction and dismiss her appeal at her costs. (La.C.C.P. art. 2088).

Appellants, Amoco and Aetna, enumerated five specifications of error, but we need only concern ourselves with three of the five.

1. The trial court committed manifest error in failing to find the liquefied petroleum gas was properly odorized.
2. The trial court committed manifest error in failing to find Amoco free from fault causing or contributing to the alleged explosion and fire complained of by plaintiffs.
3. The trial court committed manifest error in failing to find plaintiffs (and their decedents) at fault causing the alleged explosion and fire complained of by plaintiffs.

Since the trial court did not provide written reasons for judgment, we are left to surmise the factual findings of the trial court for rendering the judgment it rendered.

During plaintiffs’ case, they have advanced two main theories of recovery, both based on the negligence of the defendants. The first is based on numerous violations of the 1974 Edition of the Rules and Regulations of the Liquefied Petroleum Gas Commission (LPG) as it relates to the servicing of improperly installed gas systems. The second contention is that Amoco failed to put a sufficient amount of odorant in the propane gas that was delivered to the house so that its presence in the house could have been detected.

Concerning this second contention, we find that the propane gas that was in the tank and which was supplied by Amoco Oil Company was properly odorized. If the trial court found this to be a duty that was breached by the defendants, we hold that this is manifestly wrong and reverse.

From the records of Amoco Oil, which were introduced into evidence, four deliveries were made to the house in which Emma Frazier was residing. The first was made in December of 1974, and the last delivery was in March of 1975. The shipping receipts from the Brittany distribution plant showed the amount of malodorant present in the propane. The amount was of sufficient quantity under the Rules and Regulations of the LPG Commission. See Davis v. Aetna Insurance Company, 291 So.2d 486 (La.App. 3rd Cir. 1974).

The Brittany Plant was, the place of origin of the propane that was delivered to Emma Frazier in March of 1975. The record does not reflect any other propane being delivered to the house since that time.

In addition to this evidence, four witnesses testified that after the explosion, they had an opportunity to smell the gas that remained in the tank and actually did smell the propane. Of the four witnesses, two were chemists contacted originally by the plaintiffs to run tests on samples of the propane to determine if there was a sufficient amount of odorant in the propane.

Mr. Delbert A. Covington testified that he conducted a test that diluted the propane gas with air but could not tell the actual percentage of odorant present in the propane. He did state that he could smell the gas, though it was not very strong.

William Marvin Welsh, who worked for Shilstone Testing Laboratory, Inc. of New Orleans, went to Prairieville to take samples of the gas. He stated that he could smell the propane in his car on the way back to New Orleans. In addition, after diluting the propane in his laboratory, he asked five other persons present in the lab if they could detect an odor, and all five of them agreed that they could.

Plaintiffs’ main argument is premised on the fact that Amoco failed in its statutory duty by servicing the house with an improperly installed gas system or one that was in a dangerous condition. Their contention is based on the following section of the Rules and Regulations of the LPG Commission:

“5.14 Transfer of Liquids
(h) Must Not Serve Illegal Installations: Bonded dealers must NOT SERVE any liquefied petroleum gas containers INSTALLED ILLEGALLY in the State of Louisiana or posted by the Liquefied Petroleum Gas Commission. Ignorance will not be accepted as an excuse, as it is the duty of the dealer to investigate before serving any doubtful liquefied petroleum gas container.
(i) Must Not Serve Improperly Installed System: Bonded dealers must NOT SERVE any liquefied petroleum gas system which, upon investigation, is found to be IMPROPERLY INSTALLED or which is in a dangerous condition.”

It is contended that the gas system was improperly installed or at least in a dangerous condition because of the following violations of the Rules and Regulations of the LPG Commission. They include: (a) Improper placing of the tank within ten feet of the building; (b) Supply lines not buried to the proper depth; (c) No cutoff valve provided at the outside of the building; (d) No drip provided at the installation; (e) Piping was not properly graded; (f) Piping was not properly supported; (g) No shutoff valve provided at each appliance; and (h) Two uncapped lines in the house.

These violations were found to have existed after the explosion and fire by Lionel Ortego, Director of the LPG Commission. Based on these violations and the servicing of the system by Amoco, plaintiffs are contending that the defendants were negligent per se in accordance with the case of Home Gas & Fuel Co. v. Mississippi Tank Co., 246 La. 625, 166 So.2d 252 (1964).

It was stated by a number of witnesses, including Mr. Ortego, that of all the violations the last one was the actual cause of the explosion and fire. The presence of two uncapped gas lines in the house was the cause of the explosion and fire.

Since the cause of the explosion and fire are known, we need to determine whether the defendants had any responsibility for that cause.

Ms. Frazier notified Amoco back in December of 1974 that she wanted gas service. She was initially turned down since she did not have her appliances hooked up. Eventually, Cecil Harrington, a route salesman for Amoco, went to the house for the purpose of servicing it. He made an initial inspection of the house checking for gas leaks in the lines as well as for proper hookup of the appliances. Finding everything to his satisfaction, he supplied the propane gas.

At the time of his inspection, there was present in the house a kitchen stove, a hot water heater and two space heaters. All were gas appliances supplied by the propane tank located outside. A gas line was also present in the bathroom but it had been capped.

After four months of service to the system with the last supply of propane coming in March of 1975, Ms. Frazier vacated the premises. Amoco did not come into further contact with the system. Ms. Frasier, upon leaving the premises, took her two space heaters that were located in the back bedroom and in the dining room.

The two heaters were supplied with propane from the same gas line. The line had a T-connection with one end of the connection protruding into the bedroom while the other supplied gas to the dining room. After the gas heaters were removed, no caps or plugs were placed on the open ends of the line.

Our resolution of this case will depend on the duty/risk analysis that the Supreme Court has set forth in a number of eases. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972); Boyer v. Johnson, 360 So.2d 1164 (La.1978); and LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978).

Although the factual situation is different, the Laird decision gives a detailed analysis of the Court’s function under the duty/risk approach:

“We have repeatedly held that a criminal violation would lead to civil responsibility only if that act is the legal cause of damage to another. To decide whether the violation of the criminal statute by Laird imposes civil liability upon him and denies him civil redress from one admittedly negligent, we must determine whether his act was a cause-in-fact of the accident, what was the nature of the duty imposed upon him, what risks were encompassed within that duty, and whether under the combination of these considerations he should be declared negligent.” Laird, supra, 267 So.2d p. 717.

We must determine what the duty on Amoco was and determine whether it was breached by some actions or omissions. The duty in this case was the statutory duty imposed on dealers and distributors of gas to inspect the premises for violations of the Rules and Regulations of the LPG Commission before servicing the system with the propane. In particular, the plaintiffs cited the following provision pertaining to the requirement of shutoff valves:

“5.9 Container Valve and Accessories (a) Shut-Off Valves: All shut-off valves and accessory equipment (liquid or gas) shall be suitable for liquefied petroleum gas service, and designed for not less than the maximum pressure to which they may be subjected. Valves and accessories which may be subjected to container pressure shall have a rated working pressure of at least 250 pounds per square inch gauge.
(b) 3. Any appliance connected to a piping system shall have an accessible manual shut-off valve installed upstream of the union or connector, and within six (6) feet of the appliance it serves.”

See Home Gas & Fuel Co. v. Mississippi Tank Co., supra, and Carlysle v. Aetna Insurance Company, 248 So.2d 64 (La.App. 1st Cir. 1971).

Another inquiry when a court decides on the duty is whether the duty encompasses the risk that is involved as well as the party that is injured. As stated in the case of Geismar v. General Gas Corporation, 182 So.2d 769 (La.App. 1st Cir. 1966):

“There is no question that liquefied petroleum gas is an inherently dangerous substance, and must be handled with a care commensurate with its dangerous qualities, however, those who handle such commodities are not insurers of any mishap. Liability attaches only on due proof that the handler violated a duty owed to the person harmed.”

The rules and regulations of the LPG Commission were designed in the interest of public safety. La.R.S. 40:1846. We deem that these plaintiffs, although not fully classified as lessees, would be encompassed within this duty imposed on the defendants. Carlysle v. Aetna Insurance Company, supra. Surry v. Arkansas Louisiana Gas Company, 170 So.2d 133 (La.App. 2nd Cir. 1964), but see Huggins v. Hartford Accident and Indemnity Co., 271 So.2d 876 (La.App. 4th Cir. 1973).

Notwithstanding this duty, the flaw in plaintiffs’ case is that they have failed to prove that the actions of the defendant, Amoco Oil, were a cause-in-fact of the explosion and fire which led to the injuries and damages sustained by the plaintiffs.

The violation of statutory requirements imposed on the distributors does not impose liability on them without some showing that these violations contributed to or actually caused the damage complained of. As was stated in the Dixie Drive It Yourself Sys. case, supra, 137 So.2d page 302: “Negligent conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm.” The statement was clarified in the Laird decision, supra, 267 So.2d pages 717 & 718:

“We determine only whether it was a substantial factor without which the accident would not have occurred — that is, whether it had some direct relationship to the accident.”

We need to examine the violations of the regulations of the LPG Commission to determine if any of these violations had a direct relationship to the accident. Mr. Or-tego testified that all of the violations were minor and in no way contributed to the accident except for the open gas lines. He stated, along with other witnesses, that the presence of open gas lines in the house was the cause of the plaintiffs’ damages.

Plaintiffs’ argument is that Amoco failed in' its duty by not requiring shutoff valves on those lines before it serviced the system with propane. They contend if these lines had been equipped with shutoff valves then, when Christine and Albert Wenzy turned the propane on, the shutoff valves would have prevented the gas from escaping into the room.

The problem with this argument is twofold. First, plaintiffs did not prove there was no shutoff valves present at the space heaters when Mr. Harrington made his inspection of the system. The only testimony concerning the valves was that of Mr. Harrington which was inconclusive. He stated that he did not remember if there were shutoff valves present or not, but that all the lines had either appliances or were capped so that there were no open gas lines.

Secondly, as Mr. Ortego explains: “In almost every case, whoever moves out takes the gas cock (shutoff valve) and everything with them.” (Explanation ours). In this regards, Ms. Frazier corroborated by her sister, Blanche Honoré, testified that they visited the house on the afternoon of May 5, 1975. Their testimony is to the effect that Ms. Frazier pointed out the open gas lines to Christine Wenzy and told her that they needed to be capped before turning on the gas.

Mr. George Pappas, an expert on cause and prevention of fire and explosion called by the plaintiff, stated that when he inspected the house in August of 1979, he found a capped line in the bathroom, two uncapped lines in the bedroom and dining room. He also found a gas stove which had the required shutoff valve and a hot water heater which also had a shutoff valve.

We feel that the plaintiffs have failed in their burden of proof of proving that the actions of Amoco were a cause-in-fact of the explosion and fire. Their actions in inspecting the system might have resulted in minor violations of the Rules and Regulations of the LPG Commission but in no way were they a substantial factor in bringing about the accident.

The gas system had worked without incident the four or five months that Ms. Frazier had used it while being serviced by Amoco. The actions of Ms. Frazier in removing the space heaters, the failure of Bernice Holmes to carefully inspect the house before leasing the premises, as well as the actions of the plaintiffs in using the gas system without proper assistance could have all been the actual cause of the accident. Plaintiffs have not shown that Amoco failed in detecting open gas lines in the house when it made its inspection, presumably because it did not exist at that time.

We only hold that the acts or omissions of the defendant, Amoco Oil Company, were not a cause-in-fact of the accident.

For the foregoing reasons, the judgment of the trial court in case numbered 13,836 is reversed in as much as it held the defendants Amoco Oil Company and Aetna Casualty & Surety Company, liable for the damages sustained by the plaintiff. The judgment as it relates to Bernice Holmes has become final for failure to appeal timely and her appeal is dismissed. The judgment of the trial court in case numbered 13,837 is also reversed in as much as it held the defendant Amoco Oil Company, liable for damages sustained by the plaintiffs. The judgment as it relates to Bernice Holmes has become final for failure to appeal timely and her appeal is dismissed. The costs of these proceedings are cast against the ap-pellees.

DISMISSED IN PART, REVERSED IN PART, AND RENDERED.

ON REHEARING

We granted a rehearing to reconsider our dismissal of the appeal of defendant, Bernice Holmes, our factual conclusions and our duty/risk analysis in this matter.

In our original opinion we held that the defendant, Bernice Holmes, had failed to obtain a timely devolutive appeal order. In her motion for rehearing she produced documents which reflect she did file her order of appeal with the Clerk of Court of Ascension Parish before the last day for taking -such an appeal, but the trial court did not sign the order until the day after the delays had lapsed.

From the decision of Traigle v. Gulf Coast Aluminum Corporation, et al., 399 So.2d 183 (La.1981), the rule emerges that a devolutive appeal will not be dismissed when the motion for an appeal is timely filed with the Clerk of Court but the order is not signed until after the delays have run.

In the original records of both suits, the orders for appeal are incorporated therein and signed by the trial court, but no date as to the filing is shown nor can we ascertain when the orders were signed by the trial judge. In defendant’s application for rehearing, she produced an affidavit of the Deputy Clerk of Court of Ascension Parish stating that the Clerk’s Office received the defendant’s motions for devolutive appeals before the delays for a devolutive appeal had run. In addition, defendant has a copy of a letter dated June 4, 1980, from her attorney and addressed to the Clerk of Court of Ascension Parish requesting that two motions for devolutive appeals be filed in the captioned matters. Under the circumstances, we find the defendant has shown that the motions were filed with the Clerk of Court prior to the delay for taking an appeal. Under the ruling of Traigle, the devolutive appeals of defendant Holmes are therefore timely. We therefore reinstate the appeals of this defendant.

The details of the explosion which gave rise to these two suits are set forth in our original opinion. We now conclude we were in error in holding the plaintiffs had failed to prove there were no shutoff valves at the space heaters when the gas system was inspected by an employee of Amoco. Although there is no direct evidence regarding the presence or absence of the shutoff values, there is circumstantial evidence which establishes there were no shutoff valves at the space heaters. This evidence consists of the photographs of the open gas lines, the testimony of Emma Frazier, of Lionel Ortego and of George Pappas.

As found by Mr. Ortego, Director of the Liquefied Petroleum Gas Commission, in his inspection on the day after the fire, there were two galvanized outlets in the approximate center of the house with no caps and both pipes terminated with a copper adapter used to connect space heaters. Mr. Pap-pas stated the adapters had an opening of a quarter of an inch and were of the kind which are used to connect to a flexible or semi-rigid copper tubing.

The testimony of these witnesses establishes that the shutoff valves should have been upstream of the adapters and that there were no shutoff valves at the time the system was inspected by Amoco.

The plaintiffs contend this act of servicing the system without shutoff valves in violation of the Commission’s Rules and Regulations is negligence per se and a cause-in-fact of the explosion which renders Amoco liable citing Home Gas & Fuel Co. v. Mississippi Tank Co., 246 La. 625, 166 So.2d 252 (1964).

The Supreme Court has held that violations of statutorily imposed duties do not automatically create liability in a particular civil case. Boyer v. Johnson, 360 So.2d 1164 (La.1978); Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972). The reason being the statutorily imposed duty may have been designed to protect someone other than the plaintiffs or to protect the plaintiffs from some evil other than the injury for which they seek recovery. Boyer, supra; Laird, supra; and Bradford v. Brewton Butane Company, Inc., 319 So.2d 892 (La.App. 3rd Cir. 1975).

For Amoco to be held liable, we must again examine the duty/risk analysis in accordance with the principles set forth in our original decision. Under that doctrine, a determination of negligence involves a two step process. First, it must be determined whether Amoco’s conduct was a cause-in-fact of the harm suffered by the plaintiff, i. e., whether Amoco’s conduct was a substantial factor in bringing about the accident and resulting harm. Secondly, if Amoco’s conduct was a cause-in-fact of the accident, whether this act was a breach of a duty imposed on Amoco to protect these plaintiffs against the particular risk they encountered.

This court in Follins v. Barrow, 354 So.2d 609 (La.App. 1st Cir. 1977), outlined the procedure for the courts in determining cause-in-fact, as follows:

“To determine cause in fact, courts will carefully scrutinize all the evidence, and those acts will be adjudged causes in fact when it is found that more probably than not they were necessary ingredients of the accident. Stated otherwise, an act will be deemed a cause in fact of an accident only when, viewed in the light of all the evidence, it is concluded that it is a substantial factor without which the accident would not have happened. Laird, above.” Follins, supra, page 611. See also Geismar General Gas Corporation, 182 So.2d 769 (La.App. 1st Cir. 1966), where this court held there must be a causal relationship between acts complained of and the results thereof to have liability.

Consideration of the facts in this case reveals acts of several individuals which could be held to be substantial factors or necessary antecedents to the accident. These can be summarized as: (1) the servicing of the gas system by Amoco Oil’s representative in violation of several rules; (2) the removal of the space heaters by Emma Frazier; (3) the failure of the inspection by Bernice Holmes to reveal the open gas lines; and (4) the hooking up and using of the gas system by Christine Wenzy and Albert Wenzy.

The accident we are concerned with is the explosion and fire that occurred. The actual cause of this explosion and fire was the open gas line in the bedroom as testified to by a number of witnesses. We need to ascertain if the actions above-mentioned were causes-in-fact of this explosion, concentrating on nothing but the evidence and not taking into consideration any policy decisions. Wex Malone, Ruminations on Dixie Drive It Yourself Versus American Beverage Company, 30 La.L.Rev. 363.

A moco first serviced this system in December of 1974 for its customer, Ms. Emma Frazier. At that time, Mr. Harrington made an inspection of the gas system. He supplied gas to the house which was owned by Bernice Holmes even though two of the gas outlets inside the house did not have the required shutoff valves. The system worked without incident for five months with Amoco making its last delivery of gas to Ms. Frazier in March of 1975.

In the weeks that followed, Ms. Frazier decided to move from the premises and, in so doing, she removed her two space heaters. The removal of the two space heaters left the two gas outlets open, although the gas had been turned off at the tank. Bernice Holmes made an inspection of the house but did not notice the open gas lines.

Then on May 5, 1975, Christine Wenzy began moving into the house when she and Albert Wenzy turned the gas on at the tank. Soon thereafterwards, an explosion and fire resulted.

At this point we make the determination that, but for the servicing of the system by Amoco, the explosion and fire would not have occurred. The intervening acts of third parties do not prevent Amoco’s actions from being classified as a cause-in-fact of the accident. Home Gas & Fuel Co., supra.

A finding that Amoco’s conduct was a cause-in-fact of plaintiff’s injury does not alone establish liability. The next consideration is to determine whether a duty or standard of care was breached by Amoco which was imposed to protect against this particular risk involved. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); and Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970). The statutory standard of care imposed on Amoco in this case is set forth in the Rules and Regulations of the Liquefied Petroleum Gas •Commission, in particular, Sections 5.14(g) and (i). Home Gas & Fuel Co., supra; and Carlysle v. Aetna Insurance Company, 248 So.2d 64 (La.App. 1st Cir. 1971). These sections provide in pertinent part:

“5.14 Transfer of Liquids
(g) Inspection of Old System: Where an installed system has not been in use for some time, the dealer must INSPECT ALL LINES to see that they are connected to the appliances or that any openings are properly capped or plugged before filling the tank.
(i) Must Not Serve Improperly Installed System: Bonded dealers must NOT SERVE any liquefied petroleum gas system which, upon investigation, is found to be IMPROPERLY INSTALLED or which is in a dangerous condition.”

Mr. Ortego’s inspection of the system the day after the accident revealed the following violations: (a) improper placing of the tank within ten feet of the building; (b) supply lines not buried to the proper depth; (c) no cutoff valve provided at the outside of the building; (d) no drip provided at the installation; (e) piping was not properly graded; (f) piping was not properly supported; (g) no shutoff valves provided at each appliance; and (h) two uncapped lines in the house. Mr. Ortego concluded that of the violations, only the uncapped lines were major discrepancies and the rest were of a minor nature. The only one that actually caused the explosion and fire was the open gas lines.

Plaintiffs argue that all of these violations made the entire system unsafe or dangerous and the servicing of the system was in violation of Section 5.14(i). In addition, since the actual cause of the explosion and fire was the two open lines, plaintiffs particularly point to Section 5.9(b)3 which requires that: “Any appliance connected to a piping system shall have an accessible manual shut-off valve installed upstream of the union or connector, and within six (6) feet of the appliance it serves.” They contend that, if this shutoff valve was not present at the time of the inspection, the system was unsafe.

Amoco counters these contentions in three arguments. First, it avers that there was no need for a shutoff valve at the time of the explosion since there was no appliance connected to this line in the abandoned house. This argument is an after-the-fact determination and without merit.

The facts reflect that Amoco initially refused service to Ms. Frazier since she did not have her appliance hooked up. Eventually, Mr. Harrington went to the house to service the system. After an inspection of the system for leaks, he filled the tank. Upon our determination that there were no shutoff valves at the space heaters at the time of servicing, Amoco breached its statutory duty not to service an improperly installed system. The absence of shutoff valves as required by Section 5.9(b)3 made this system an improperly installed one.

Next, Amoco contends this was an old system and Section 5.14(g) only required it to inspect all lines to see if they are connected to appliances and that any openings are properly capped or plugged before filling the tank. We hold this section does not relieve Amoco of the requirements of the other sections of the Rules and Regulations. Amoco was still required by Section 5.14(i) not to service an improperly installed system.

Amoco’s last argument in regards to the breach of duty is based on Mr. Orte-go’s testimony that the general practice of the industry is to service such a system where appliances are connected with no shutoff valves. The general practice of an industry which handles inherently dangerous substances cannot overcome specific statutory provisions designed to provide a higher degree of care for the protection of the public. Carlysle, supra. Compare Bradford, supra. After considering all of these arguments, we hold Amoco did breach the statutory duty imposed upon it by servicing this system.

The next step in our duty /risk analysis is to determine whether these plaintiffs are within the scope of the duty owed and whether the risks encountered are within this duty. Laird, supra; Boyer, supra.

The risk of having an open gas line when a tenant moves from a dwelling is encompassed within the duty of having shutoff valves on the gas lines connecting the appliances. With shutoff valves installed, a tenant need only shut the valves off before disconnecting his appliances and he need not cap the gas outlets to avoid the flow of gas. The shutoff valves are designed to prevent this free flow of gas — the exact harm that occurred in this case. We hold the risk involved in this case is encompassed within the duty owed by Amoco.

Amoco avers that the rules of the LPG Commission are not designed to protect trespassers (or even legitimate occupiers) who take possession of an abandoned LP gas system absent an intervention by a gas supplier at a time contemporaneous thereto.

On original hearing we did not believe it necessary to classify the plaintiffs. At this time we hold plaintiffs acquired the classification of lessees. Although there is some doubt as to whether an actual lease agreement had been entered into between Bernice Holmes and Christine Wenzy, we find the evidence is sufficient to reveal a tentative agreement for leasing the premises. This finding is substantiated by the fact that Bernice Holmes left a key to the house with Christine Wenzy, that there was conversation about a lease agreement, and that Christine was sending Bernice a money order for the rent. Compare Young v. City of Franklinton, 387 So.2d 1390 (La.App. 1st Cir. 1980).

Amoco refers to language in the Carlysle decision, supra, to the effect that the Rules and Regulations of the LPG Commission were adopted for the protection of its customers and their premises. They contend that only Emma Frazier was their customer and that these plaintiffs were not customers of theirs within the meaning of the above quoted case.

We cannot adhere to this limited interpretation of the Carlysle decision. In making the statement, the court was emphasizing the fact that the Rules and Regulations of the LPG Commission were not for internal regulation only, but for the protection of the particular plaintiff who was its customer in that case. We hold the duty extends to any user of the gas, although not a customer of the distributor. This situation arises when a tenant is furnished with a place to live and the landlord is the actual customer of the distributor, but the tenant is the user of the gas. Therefore, all of the plaintiffs who were legally on the premises were within the scope of the duty owed by Amoco.

Finally in regards to the liability aspect of their case, Amoco asserts that Christine Wenzy was contributorily negligent. In support of this argument, it points to the testimony of Emma Frazier who claims to have told Christine Wenzy of the open gas lines.

Christine denied that Emma Frazier pointed out the opened gas lines to her and she further denied having any knowledge of open gas lines in the house.

Although the trial court did not give written reasons for its judgment, it must have concluded there was no negligence on the part of Christine. The trial court is vested with the task of judging the credibility of the witnesses and deriving facts from their testimony. As an appellate court, we are not to substitute our judgment for that of the trial court. There is evidence in the record to support its holding and it is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In regards to the duty of Bernice Holmes as the owner of the house, we find the Carlysle case to be on all fours with this suit. Ms. Holmes stated that she had made an inspection of the house and did not discover the open gas lines. This court in the Carlysle decision sets forth the duty of a lessor:

“We have no hesitation in finding that an uncapped gas pipe would prevent the lessee from using the premises and that such a condition is a vice or defect within the meaning of Article 2695. The cases interpreting that Article have never established an affirmative duty requiring the lessee to inspect the premises for defects not readily apparent. On the contrary, the issue of contributory negligence is not even considered unless it is shown that the lessee knows of the vice or defect and even then it must appear that the premises could not reasonably be used in safety. Harrell v. Johnson, 242 So.2d 648 (1st La.App., 1970) and cases cited therein.
“Clearly, if Mr. Carlysle had actually known of the uncapped pipe, his actions in having the gas delivered and turned on would have constituted negligence because it could hardly be argued that such actions would not be imminently and apparently dangerous. But there is no evidence that Mr. Carlysle knew of the dangerous condition. Under the clear language of Article 2695, the defendant Philip Burns has failed to comply with his obligation to Mr. Carlysle to provide premises free from vices and defects and Carlysle’s mere failure to discover the uncapped pipe is not negligence on his part.” Carlysle, supra, page 67. See also Huggins v. Hartford Accident and Indemnity Co., 271 So.2d 876 (La.App. 4th Cir. 1973).

Falling squarely within the holding of this case, we find Bernice Holmes is liable to the plaintiffs.

Turning now to the question of quantum, defendants object to plaintiff’s, Willie D. Williams, recovery for the death of Amy and Jerome Wenzy. An allegation is made in his petition that he is the children’s natural father, which is denied in defendants’ answer. No proof is shown of the relationship between Mr. Williams and the two deceased children and therefore the award to Mr. Williams was manifestly erroneous. The holding is not to deny recovery to a natural father for his natural children, but to deny recovery to this plaintiff since Mr. Williams did not testify at the trial and no other proof was offered to show that he actually was the children’s natural father.

Plaintiffs are seeking an increase in the awards for their damages while the defendants are asking for a decrease in the awards.

Diane Knockum lived 41 days after the accident having received second and third degree burns over a majority of her body. At the time of the fire she was six months pregnant. During this period, her left leg was amputated because of infection. The trial court awarded $100,000 to Christopher Knockum for the wrongful death of his wife and $35,000 for the damages sustained by her.

Christopher Knockum was also awarded in his capacity as tutor of his daughter, Susan, the sum of $775,000 for the loss of her mother, the injury and pain and suffering sustained by her mother, and for her own damages. Susan had burns over most of her body, especially her arms and legs. The burns and permanent scars have left some webbing of her extremities. She was hospitalized for six months with a number of skin grafts.

Christine Wenzy received second and third degree burns on the face and upper extremities covering 36% of her body. She was admitted to Earl K. Long Hospital on May 6,1975 and released on July 2,1975. She required physical therapy and has undergone three skin graft operations since being released. She was awarded $180,000 for her personal damages. In addition, she was awarded $100,000 for the wrongful death of Jerome and Amy Wenzy and for the damages sustained by her two children who died a day and a month, respectively, after the accident.

Finally, Claiborne White, Jr. was awarded $226,389.45 for the death of his ex-wife, Shirley Ezeff White. A fixed amount was awarded to him for the medical and funeral expenses and $225,000 was awarded to him in his capacity as tutor of his five children. Shirley White lived ten days following the accident having suffered second and third degree burns over 65% of her body.

After a careful review of the itemized elements of damages and the complete record, we find no abuse of the trial court’s great discretion in the amounts awarded. Reck v. Stevens, 373 So.2d 498 (La.1979).

For the reasons assigned, the judgments of the trial court in both cases are affirmed at defendants’ costs.

AFFIRMED.

ON REHEARING

PER CURIAM.

We note a technical error in the decretal portion of our judgment rendered on rehearing and amend our decree to read as follows:

For reasons assigned, the judgment of the trial court in favor of Willie D. Williams is reversed and judgment is rendered dismissing his claims.

In all other respects, the judgments of the trial court are affirmed at defendants’ costs.

REVERSED IN PART AND AFFIRMED.


author: PONDER, Judge.

text:
    COHN REALTY COMPANY, INC. v. ABLE MOVING AND STORAGE COMPANY, INC. et al.
    No. 14070.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Moise W. Dennery, New Orleans, David Donnell Moss, Baton Rouge, for plaintiff-appellee Cohn Realty Co., Inc., Isidore Cohn, Jr., Rosenthal and Associates, Inc., and Robert Rosenthal.
    Phil Breaux, St. Gabriel, Michael A. Patterson, Baton Rouge, for defendants-appellants Able Moving and Storage Co., Inc., Gregory Constant, Clayton Constant and Rodney Constant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Appellee moved to dismiss the appeal on the grounds that appellant has acquiesced in the judgment.

This acquiescence is the sole issue. We deny the motion.

The pertinent portions of the judgment read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff and against defendants, in solido, for $45,790.00 with interest at the rate of 8% per annum from date due until paid, and for rental at the rate of $1,425.00 per month for the first floor, $100.00 per month for the vacant lot, and $1,140.00 per month for the second floor from June 1, 1980, until vacated under the terms of this judgment.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiffs in recon-vention and against defendant in recon-vention, Cohn Realty Company, Inc. for $10,372.43 with interest at the rate of 8% on $4,969.79 and $2,650.00 from dates paid out by plaintiff in reconvention until paid, interest on the remainder to be at the legal rate from date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff in reconvention dissolving the lease as of the date this judgment becomes final, plaintiff in reconvention is to vacate the second floor on the last date of that month, and the lease is dissolved on the second floor as of that date. Thereafter, the lease is continued on the vacant lot and first floor until the last day of the sixth month following the date of final judgment, unless plaintiff in reconvention desires to terminate sooner, in writing addressed to the attorney of record herein for Cohn Realty Co., Inc.”

Defendant appealed suspensively. Later it vacated the premises.

Appellee contends that because the right to dissolve the lease is contingent upon appellant’s paying the rent until the premises are vacated, the termination of the lease is an acquiescence in that portion of the judgment ordering rental paid from June 1, 1980 to date.

Acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment. LSA-C.C.P. Art. 2085. Because appeals are favored in law, forfeiture of an appellant’s right through acquiescence should be decreed only when his intention to abandon the right of appeal is clearly demonstrated. Kendrick v. Garrene, 231 La. 462, 91 So.2d 603 (La.1956); Major v. Louisiana Department of Highways, 327 So.2d 515 (1st Cir. 1976).

Appellant’s taking advantage of the option afforded it by that portion of the judgment in its favor does not clearly demonstrate an intention to acquiesce in the remainder of the judgment and to abandon the right of appeal.

MOTION DENIED.

      . LSA-C.C.P. Art. 2085:
      “An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.”