text:
    Robert KOONTZ, Appellant, v. SCHARF LAND DEVELOPMENT CO., a Florida Corporation, Appellee.
    No. 80-967.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.

      Carl J. Robie, III, Sarasota, for appellant.
    David Paul Horan and Mark H. Kelly, Key West, for appellee.
    Before HUBBART, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order denying the defendant’s motion for change of venue, which is under review by this appeal under Fla.R.App.P. 9.130(a)(3)(A), is affirmed upon a holding that: (a) an action for reformation of a warranty deed which seeks to change the title to real property is a local action and may properly be brought, as here, in the county where the real property is located, § 47.011, Fla.Stat. (1979); see Franklin v. Sherwood Park, Ltd. Inc., 380 So.2d 1323 (Fla. 3d DCA 1980); Sales v. Berzin, 212 So.2d 23 (Fla. 4th DCA 1968); and (b) the trial court, based on this record, did not abuse its discretion in declining to change the venue of this cause under Section 47.-122, Florida Statutes (1979). Hertz Corp. v. Rentz, 326 So.2d 216 (Fla. 4th DCA 1976).

Affirmed.


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    Kathleen M. PISTORINO, Petitioner, v. Ralph B. FERGUSON, Jr., Judge, Respondent.
    No. 80-688.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.

      Richard A. Crisonino, Miami, for petitioner.
    Leib, Popper & Mackoul and Rory S. Stein, Miami, for respondent.
    Before HUBBART, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

In this divorce action, the trial judge, at the conclusion of a December 1979 hearing in which he awarded temporary custody of the minor children of the parties to the father, stated to counsel for Kathleen Pisto-rino:

“Dick, your client is not playing with a full deck. Personally, I think she is crazy, and I will recuse myself anytime you want me to.”

At the time the statement was made there remained to be later determined issues of child support, alimony, permanent custody, visitation privileges and the like. The next action in the case was taken by John Pisto-rino in February 1980 when he petitioned the court for permanent custody of the children. On the heels of that petition, Kathleen’s counsel perfunctorily and with understandable confidence moved to recuse the trial judge, asserting that by the judge’s own admission he could no longer be impartial. Counsel’s confidence was misplaced. The trial judge denied the motion to recuse, and Kathleen appealed.

It is undisputed that the motion to recuse did not comport with the requirements of Section 38.10, Florida Statutes (1979) — it was late; initially, it was unaccompanied by an affidavit and at no time was it supported by corroborating affidavits; and no good faith certificate was filed by counsel. But it is also undisputed that the trial judge made the statement attributed to him. We must decide whether the mother’s procedural failure forecloses relief by way of prohibition.

We are mindful of cases holding that the failure to follow the dictates of the disqualification statute precludes relief by way of prohibition. E. g., Peebles v. Smith, 291 So.2d 102 (Fla. 1st DCA 1974). Those cases do not involve patent prejudice. Where that exists, courts are quick to provide a remedy even where the statute is not complied with, State v. McFarlane, 318 So.2d 449 (Fla. 2d DCA 1975) (substitute trial judge ordered after review by certiorari of inter alia, a deficient motion to disqualify); or not strictly complied with, State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939) (prohibition granted despite the fact that technical content of affidavits disclosing prejudice against counsel, not party, did not meet terms of statute); State v. Cannon, 163 So.2d 535 (Fla. 3d DCA 1964) (suggestion for prohibition dismissed without prejudice to proceed in accordance with statute); State v. Cannon, 166 So.2d 625 (Fla. 3d DCA 1964) (prohibition granted despite the court’s view that “the affidavits may be subject to technical statutory deficiencies”).

The courts of this state are firmly committed to the proposition that the due process guarantee of a fair trial contains in its core the principle that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. State ex rel. Davis v. Parks, supra; State v. Steele, 348 So.2d 398 (Fla. 3d DCA 1977). Where the judge is conscious of any bias or prejudice which might influence his official action against any party to the litigation, he should decline to officiate whether challenged or not. McGregor v. Hammock, 101 Fla. 1170, 132 So. 815 (1931); State v. Cannon, 166 So.2d 625 (Fla. 3d DCA 1964). In the present case the trial judge’s spontaneous commitment to recuse himself at the option of counsel for the mother is convincing evidence of his own awareness of bias and speaks louder than his subsequent disclaimer, implicit in his denial of the motion to recuse. State ex rel. Davis v. Parks, supra. See also Anderson v. State, 287 So.2d 322 (Fla. 1st DCA 1973).

The mother’s failure to meet the statute’s requirements is not, in our view, an impediment to relief by way of prohibition. The statute allows a party to bring about the disqualification of a judge on the basis of his belief that he will not receive a fair trial. When the requirements of the statute are met, the necessity of proving that the judge is in fact prejudiced is obviated. But where the record, as here, reflects that the judge is in fact prejudiced, the necessity of utilizing the statute is obviated.

Accordingly, we grant the petition for writ of prohibition. We assume it will not be necessary to issue the writ.

      . Thereafter, this court entered an order treating the appeal as a petition for writ of prohibition. See Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); State ex rel. Alien v. Board of Public Instruction, 214 So.2d 7 (Fla. 4th DCA 1968).

      . This question was left open by us in State v. Cannon, 166 So.2d 625 (Fla. 3d DCA 1964), where we decided that a sufficient statutory showing had been made. We said, however, that were the showing inadequate, . . then this court [would be] presented with the choice of adhering strictly to statutory requirements and denying relief, or refusing to require strict adherence and granting the relief which the record before us demonstrates is so obviously needed. If so required, we would choose the latter course, but in our opinion a sufficient showing was made to entitle the relators to judgment” 166 So.2d at 627.

      . “The rule must be construed, however, with order and justice in view and should not be employed to perpetuate a prejudice, to justify pride of opinion or to attach a value to unusual complexes that result in defeating its purpose.” State ex rel. Davis v. Parks, 141 Fla. at 519, 194 So. at 615.

      . As Judge Hendry pointed out in his dissenting opinion in State v. Cannon, 163 So.2d 535, 537 (Fla. 3d DCA 1964): “Section 38.10, Fla.Stat., F.S.A. was adopted in 1919, but many years prior to that the remedy of prohibiting a judge from hearing a case because of relationship to the parties or interest or prejudice was recognized and afforded. The fact that the statute was enacted does not mean that it abrogated the common law remedy available prior thereto.”


text:
    Willie Lee SCOTT and Industrial Fire & Casualty Insurance Company, Appellants, v. Cecil Taylor JOHNSON and Patricia Johnson, Appellees.
    No. 80-169.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.

      Jeanne Heyward, Goodhart & Rosner, Miami, for appellants.
    Charles J. Pasek, Miami, for appellees.
    Before HUBBART, SCHWARTZ and DANIEL S. PEARSON, JJ.,
   DANIEL S. PEARSON, Judge.

Scott and his insurer, Industrial Fire & Casualty Insurance Company, against whom defaults were entered, challenged an $8,500 judgment against them in a suit for unliquidated damages.

Scott and Industrial correctly contend that under Florida Rule of Civil Procedure 1.440(c), they were entitled to notice of the trial in order that they might avail themselves of their right to defend on the issue of damages. B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980). The Johnsons say that the order setting the cause for trial shows that notice was given. That order contains a form certificate (presumably initialed by someone in the trial judge’s office), which reads:

“It is hereby certified that a true copy of this Order was mailed to each attorney of record and party appearing without counsel on the above date.”

We agree with the Johnsons that this certificate is prima facie proof that the notice of trial was mailed, cf. Florida Rule of Civil Procedure 1.080(f); that proof of mailing raises the presumption that the mail was received, Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla. 1973); Service Fire Insurance Company of New York v. Markey, 83 So.2d 855 (Fla. 1955); Milros-Sans Souci, Inc. v. Dade County, 296 So.2d 545 (Fla.3d DCA 1974); and that this presumption is not overcome by a denial, even though sworn, that the order was not received. Service Fire Insurance Company of New York v. Markey, supra; Milros-Sans Souci, Inc. v. Dade County, supra; Allstate Insurance Company v. Dougherty, 197 So.2d 563 (Fla.3d DCA 1967).

The correctness of these propositions does not, however, win the day for the Johnsons. While the certificate on the order constitutes proof of mailing, the question is: to whom was it mailed? The certificate says the order was mailed “to each attorney of record and party appearing without counsel.” But there were no attorneys of record for Scott and Industrial, and neither of these defendants appeared without counsel. The Johnsons argue that the clear meaning of “party appearing without counsel” is a party named in the suit. We cannot agree that the meaning of that phrase is so clear, and we certainly cannot conclude that the certificate on its face constitutes convincing evidence that the order setting the trial was mailed to Scott and Industrial.

Accordingly, we remand the cause to the trial court to conduct an evidentiary hearing to determine whether its order setting the cause for trial was in fact mailed to Scott and Industrial. If after such hearing the trial court finds that the order was mailed to Scott and Industrial and that the presumption of receipt created by such mailing has not been overcome by sufficient and competent evidence, then its order denying the defendants’ motion for new trial and motion to vacate final judgment shall remain unaffected.

Reversed and remanded.

      . “In law actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Rule 1.080(a).”

      . Since the Johnsons recovered judgment pursuant to a jury verdict, the defendants cannot complain that they were deprived of their right to trial by jury. See Eastern Koex Co., Ltd. v. Bonanza Import & Export, Inc., 360 So.2d 153 (Fla.3d DCA 1978).

      . This rule, by its express terms, applies to certificates made by attorneys. Where the certificate is made by the court, a fortiori, it constitutes prima facie proof of mailing. Compare Grahn v. Dade Home Services, Inc., 277 So.2d 544 (Fla.3d DCA 1973). See also Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla. 1973) (proof of general office practice satisfies the general requirement of showing due mailing).


author: PER CURIAM.

text:
    Clarence GRAY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1729.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.

      Koeppel, Stark & Newmark and Stanley M. Newmark, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

This is an appeal from an order revoking probation and imposing two five-year prison sentences to run concurrently with one another for the crimes of aggravated battery, burglary of conveyance, burglary of structure and second-degree grand theft.

Appellant urges reversal of the order and sentences on the ground that the evidence was not legally sufficient to find that a violation of probation had occurred. We find no merit in this contention. The revocation is supported by ample evidence, including his own admission that he had violated the terms of his probation, which the trial court found to be sufficient to support the order of revocation of probation.

We have carefully considered the record, briefs and argument of counsel and have concluded that no reversible error has been made to appear. Bernhardt v.State, 288 So.2d 490 (Fla.1974); Johnson v. State, 378 So.2d 108 (Fla. 5th DCA 1980); Evans v. State, 356 So.2d 1355 (Fla. 1st DCA 1978).

Accordingly the order, judgment and sentences are affirmed.

Affirmed.


text:
    Lloyd Allen GARDNER, Appellant, v. STATE of Florida, Appellee.
    No. 79-33.
    District Court of Appeal of Florida, Fifth District.
    July 30, 1980.
    John L. Woodard, III of Lubet, Sears & Woodard, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER.CURIAM.

AFFIRMED on the authority of Singletary v. State, 290 So.2d 116 (Fla. 4th DCA), cert. dismissed, 293 So.2d 361 (1974).

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author:
HOBSON, Acting Chief Judge.
      GRIMES, Judge,

text:
    BROWARD MARINE, INC., Appellant, v. NEW ENGLAND MARINE CORPORATION OF DELAWARE, Bendix Corporation, Cummins Engine Company, Inc. and Dayton Electric Manufacturing Company, Appellees.
    No. 78-1953.
    District Court of Appeal of Florida, Second District.
    July 30, 1980.

      Thomas D. Lardin of Weaver & Weaver, P.A., Fort Lauderdale, for appellant.
    William F. McGowan, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee Bendix Corp.
    H. Vance Smith of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee Cum-mins Engine Co., Inc.
    Nathaniel G. W. Pieper of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellee Dayton Electric Manufacturing Co.
   HOBSON, Acting Chief Judge.

Appellant Broward Marine, Inc. (Broward) appeals a final judgment dismissing with prejudice its crossclaims for indemnity and contribution against Bendix Corporation (Bendix), Cummins Engine Co., Inc. (Cummins), and Dayton Electric Manufacturing Co. (Dayton). We reverse.

New England Marine Corporation (New England) filed a complaint against Bro-ward, Bendix, Cummins and Dayton on behalf of itself and its insurer. The complaint alleged that Broward manufactured and was the retail seller of the yacht Spare Time which was equipped with an air compressor manufactured by Cummins, and further equipped with an air regulating valve manufactured by Bendix. The compressor and valve were sold and supplied to Broward by Cummins. Further, the yacht was equipped with an air receiver tank manufactured by Dayton. The complaint further alleged that all defendants breached their express and implied warranties of merchantability and fitness for a particular purpose and that, as a result, the air receiver tank exploded, causing damage to the yacht.

Broward filed an answer to the complaint and crossclaims against Bendix, Cummins and Dayton. The crossclaims alleged that Broward’s liability was vicarious, while the liability of the other defendants was active, and demanded indemnity and/or contribution.

New England subsequently reached a settlement with Bendix, Cummins and Dayton, by the terms of which each of these three defendants agreed to pay New England $2,000 and New England agreed to give each defendant a complete release from all liability arising from the lawsuit. In the same instrument, New England released Broward from all claims arising out of

possible passive negligence based on defects in the design or manufacture of air receiving system or any component parts thereof, including the air receiving tank, the air regulating valve, the air compressor, or their component parts manufactured and supplied by . [Bendix, Cummins and Dayton] and installed aboard THE SPARE TIME at the time of. the vessel’s manufacture by Broward Marine, Inc. insofar as Broward Marine, Inc. could or might be entitled to maintain an indemnity action over against either The Bendix Corporation, Cummins Engine Co., Inc. or Dayton Electric Manufacturing Co. The parties to this Release do not intend to release Broward Marine, Inc. from the consequences of its own active negligence or defective design nor from liability it might have because of the acts, omissions, negligence or defective products of persons or companies not a party to or within the terms of this Release, [emphasis ours]

New England subsequently filed an amended complaint solely against Broward, claiming that the yacht manufactured by Broward was negligently designed and asking in excess of $25,000 damages. Broward answered and filed an amended crossclaim for indemnification and contribution against Bendix, Cummins and Dayton.

The third-party defendants and New England filed motions to dismiss the cross-claim. At the motion hearing, New England’s counsel stated that its amended complaint sought damages only for active negligence against Broward. The trial court entered an amended order dismissing Bro-ward’s crossclaims with prejudice and stating:

Having advised the Court that the Plaintiff’s Amended Complaint only seeks damages for any active negligence on the part of the Defendant, BROWARD MA-RIÑE, INC., and the Court having heard argument of counsel, it is
ORDERED, ADJUDGED and DECREED that the Crossclaims of the Defendant, BROWARD MARINE, INC., against the Defendants, the BENDIX CORPORATION, CUMMINS ENGINE COMPANY, and DAYTON ELECTRIC MANUFACTURING CO., be and the same are hereby dismissed, with prejudice, and it is further
ORDERED, ADJUDGED and DECREED that the Defendant, BROWARD MARINE, INC., is entitled, as a setoff, to the benefit of any consideration received by the Plaintiff, NEW ENGLAND MARINE CORPORATION OF DELAWARE, from the Defendants, the BENDIX CORPORATION, CUMMINS ENGINE COMPANY, and DAYTON ELECTRIC MANUFACTURING COMPANY as reflected in that Release dated May 25, 1978, which is on file and that at the appropriate time said consideration will be setoff from any recovery Plaintiff may obtain from the Defendant. .

[emphasis ours]

Broward correctly argues that the trial court committed reversible error in looking beyond the four corners of the crosscom-plaint when it ruled on the motions to dismiss. The court’s order to dismiss was based on: 1) the release executed between New England and Bendix, Cummins and Dayton (contribution), and 2) the fact that New England’s amended complaint sought damages based solely on Broward’s active negligence (indemnity).

The law is clear, and New England concedes, that a court may not go beyond the four corners of a complaint to test the legal sufficiency of its allegations. As our sister court stated in Reed v. Sampson, 349 So.2d 684 (Fla.4th DCA 1977):

Where a motion to dismiss a complaint rests on facts outside the scope of the allegations contained in the complaint, the trial court commits reversible error in dismissing the complaint based on these extraneous matters. Tiseo v. Arnold, 237 So.2d 21 (Fla.2d DCA 1970).

340 So.2d at 685. The crosscomplaint, standing alone, is sufficient to state a cause of action on the theories of contribution and indemnity.

As to contribution, the final order of dismissal obviously relied, at least in part, on the executed release which was filed with the court by New England and mentioned in each of the motions to dismiss. Moreover, as this court stated in Tiseo v. Arnold, “the ground as to release of liability would be distinctly an affirmative defense, inasmuch as the complaint alleges nothing about any such release.” Tiseo at 22.

As to indemnity, the fact that the amended complaint only sought damages for active negligence on the part of Bro-ward is not a ground for dismissing Bro-ward’s crossclaims.

In Central Truck Lines, Inc. v. White Motor Corp., 316 So.2d 579 (Fla.3d DCA 1975), it was held:

The precise question now before us is whether the defendant is ‘locked in’ by an allegation in the plaintiff’s complaint that the defendant is the active tort fea-sor, thus precluding the defendant from alleging in a third party complaint that he is but a passive tort feasor and that the third party defendant is the active tort feasor and defeating the maintenance of a third party claim in the same action. We think not.
The general purpose of third party practice is to avoid two actions which should be tried together in order to save the time and expense involved in duplication of evidence, to obtain consistent results from identical or similar evidence and to do away with the serious handicap to a defendant of a time difference between a judgment against him and a judgment in his favor against the third party defendant. 3 Moore’s Federal Practice, Third Party Practice § 14.04. Also see Authors’ Comment to Rule 1.180, RCP.
Third party defendant White points to our decision in Armor Elevator Company, Inc. v. Elevator Sales and Service, Inc., Fla.App. 1975, 309 So.2d 44, wherein we affirmed the trial court’s dismissal of a third party complaint. We distinguish that case, however, since the defendant elevator manufacturer did not allege in its third party complaint that it was merely guilty of secondary or passive negligence rather than active negligence. We find the result reached in Seaboard Coast Line Railroad Company v. Brown, Fla.App. 1974, 297 So.2d 843, to be applicable to the instant situation. In that case it was held that Rule 1.180, RCP, allows the defendant, third party plaintiff, charged with active negligence in the original complaint to place his own characterization upon the events and maintain a third party claim alleging active negligence on the part of a third party defendant and only passive negligence, if any, on his own part. ‘The purpose of the rule is to settle the controversy in a single action, and it would be unfair to the defendant-third party plaintiff to confine it to the version of facts asserted by the plaintiff in the first instance.’ Seaboard v. Brown, supra, page 844.

316 So.2d at 580. See Crawford Door Sales Co., Inc. v. Donahue, 321 So.2d 624 (Fla.2d DCA 1975).

REVERSED and REMANDED for further proceedings.

OTT, J., concurs.

GRIMES, J., concurs specially with opinion.

GRIMES, Judge,

concurring specially.

In essence, the crossdefendants’ position with respect to indemnity fails on this appeal for the same reason as their argument concerning contribution. It is premised in part upon New England’s release of Bro-ward for claims based on passive negligence; yet, the release was not properly before the court on the motions to dismiss.

Assuming the release is valid, however, I see no reason why Broward’s crossclaims should not ultimately be dismissed. Under Section 768.31(5)(b), Florida Statutes (1977), Broward could not make a claim for contribution against the settling tortfeasors. Likewise, New England could only recover against Broward for active negligence, and if Broward was actively negligent, I cannot see how its claims for indemnity on either theory could be sustained. See Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla. 1979).

      . The amended crossclaim sought contribution based on the premise that if Broward were negligent at all, its negligence concurred with that of the other defendants and that, therefore, all defendants were joint tortfeasors and each should be liable only for its pro rata share of the judgment based upon its relative .degree of fault. The amended crossclaim sought indemnity on two theories. First, that Broward’s negligence, if any, was passive, .while the negligence of the other defendants was active. Second, Broward alleged that under the Uniform Commercial Code, Cummins, Bendix and Dayton were liable to Broward by virtue of their breaches of warranty of merchantability and fitness for a particular purpose in the sale or installation of the compressor and component parts.

      . The motions to dismiss filed by Cummins, Bendix and Dayton claimed that Broward’s negligence was active, thereby barring recovery, and that the crosscomplaint did not show that the co-defendants had a common liability to New England unextinguished by the release.
      New England filed its motion to dismiss and set forth the additional assertion that a release had been executed by New England in favor of all defendants and that the release was contingent upon the court dismissing Broward’s crosscomplaint. New England filed a copy of the executed release with the court.


author: OTT, Judge.

text:
    James WHITE and Puritan Insurance Company, Appellants, v. Maude F. NICHOLSON and P. N. Nicholson, Appellees.
    No. 80-446.
    District Court of Appeal of Florida, Second District.
    July 30, 1980.
    Roy B. Dalton, Jr. of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for appellants.
    Victor J. Pellegrino of Yado, Keel, Nelson, Grandoff, Casper, Bergmann & Newcomer, P.A., Tampa, for appellees.
   OTT, Judge.

Appellants contend that the trial court erred in denying their motion to quash service of process. We agree.

Appellees filed a complaint for personal injury resulting from an automobile accident. They purported to serve appellant, James White, by substituted service of process pursuant to Section 48.171, Florida Statutes (1977). The attorney for James White, provided by his carrier Puritan Insurance Company, filed a motion to quash service of process under Florida Rule of Civil Procedure 1.140(b) challenging the court’s jurisdiction over James White. Subsequent to the filing of this motion to quash, White secured personal counsel who filed a “Notice of Appearance.” The trial court ruled that this constituted a general appearance by White and a waiver of the jurisdictional challenge. The trial court denied the motion on that basis.

A defendant may not make a general appearance and later repudiate it by attacking the court’s jurisdiction over him. Hotel & Restaurant Employees & Bartenders International Union v. Lake Buena Vista Communities, Inc., 349 So.2d 1217 (Fla. 4th DCA 1977); Royal Industries, Inc. v. Birdsong, 340 So.2d 526 (Fla. 1st DCA 1976). In the instant case, the appellant first moved against the service of process and subsequently filed a notice of appearance.

Florida Rule of Civil Procedure 1.140(b) provides that certain defenses, including lack of in personam jurisdiction, be presented by motion or in the first responsive pleading. The rule also provides that “[n]o defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion.” The effect of Rule 1.140(b) is to eliminate the need to file a special appearance to challenge jurisdiction. Royal Industries, Inc. v. Birdsong, supra.

In Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966) this court discussed whether an attack on jurisdiction had been waived by a general appearance. In that case, appellee filed a complaint against Green Brothers Builders, Inc. and the Greens individually. Appellee also filed a notice of lis pendens. The corporation filed a motion to dismiss for insufficiency of service of process. The Greens did not challenge the jurisdiction of the court over them. The court entered an order denying the corporation’s motion with leave to file additional affidavits. Subsequently, the corporation and the Greens moved to discharge the lis pendens. In this motion they did not challenge jurisdiction. Later, they moved to increase the bond without including a challenge of jurisdiction. The appellee filed a motion to require appellants to file an answer. The court ordered the Greens to file an answer because they had filed pleadings reaching the merits and thereby subjected themselves to the jurisdiction of the court. The Greens and the corporation appealed this order. This court considered whether the corporation waived its jurisdictional challenge by joining in the motions to discharge lis pendens and increase the bond and stated:

This Court is of the opinion that once having raised the question of jurisdiction over their persons, they can then proceed in the trial of this litigation and be a participant therein without waiving their right to raise the question of jurisdiction over their persons at any time during the trial of this cause. This Court therefore is of the opinion and so rules that the defendant corporation having promptly raised the question of jurisdiction over its persons has not submitted itself to the jurisdiction of this Court by filing a motion to discharge the lis pendens or affirmatively moving the Court to increase the injunctive bond.

Id. at 539. Compare Periolat v. Periolat, 336 So.2d 1256 (Fla. 2d DCA 1976) and Jones v. Denmark, 259 So.2d 198 (Fla. 3d DCA 1972).

This question is also indirectly addressed in 5 Am.Jur.2d Appearance, § 7 (1962) wherein it is stated: “A general appearance by the defendant, without previous objection to the process or return, operates as a waiver of defects in the process . . . .” [Emphasis added.]

We believe the appellant properly preserved his challenge of the court’s jurisdiction. This jurisdictional challenge was not waived by the subsequent notice of appearance. The order denying appellant’s motion to quash service of process is vacated and remanded for consideration on its merits.

SCHEB, C. J., and BOARDMAN, J., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    SONITROL SOUTHEAST, INC. and Sentry Insurance Co., Appellants, v. Dennis M. NORTHCUTT, Appellee.
    No. OO-291.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1980.
    Richard G. Davis, of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellants.
    Clifford R. Opp, Jr., of Peavyhouse, Gig-lio, Grant, Clark & Charlton, Tampa, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Substantial competent evidence supports the deputy commissioner’s finding that Northcutt’s heart attack was compensable by the standard of Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962). On this record the deputy commissioner could properly have concluded that climbing a 20-foot stack of plywood in lieu of a ladder, while installing wiring, produced an unusual strain or exertion in an identifiable effort not routine to Northcutt’s usual work. On the cross-appeal, it appears that the deputy ¡prematurely ruled on a question of apportioning attorney’s fees, Section 440.34, Florida Statutes (1978 Supp.), which was reserved by stipulation for a further evidentiary hearing. Also undisposed of is claimant’s claim for interest and penalties.

AFFIRMED in part, REVERSED in part.

BOOTH, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: PER CURIAM:

text:
    STATE of Louisiana v. Floyd JEFFERSON. STATE of Louisiana v. James BELL.
    Nos. 67289, 67290.
    Supreme Court of Louisiana.
    July 2, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Thomas Chester, Asst. Dist. Atty., for plaintiff-relator.
    Dwight M. Doskey, Orleans Indigent Defender Program, New Orleans, Patricia Christofferson, for defendants-respondents.
   PER CURIAM:

We have consolidated the state’s application for supervisory writs in each of defendants’ cases to consider a single question. Defendants claimed at their multiple offender hearings that they did not receive, or could not recall receiving, appropriate Boy-kin warnings in entering prior pleas of guilty. The challenged pleas came after the opinion in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and before our decision in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1976). The trial court thought that defendants’ disclaimers, and the absence in each case of a contemporaneous Boykin record, sufficient to bar the state’s use of prior convictions under R.S. 15:529.1. We disagree, reverse the rulings of the trial court, and remand for resentencing.

Defendant Floyd Jefferson was charged in a two-count bill of information with simple burglary, La.R.S. 14:62 and the receiving of stolen things, La.R.S. 14:69. On October 25,1979, he entered a plea of guilty as charged to the burglary offense, the state dismissing the second count that same day. Thereafter, the state filed an information against defendant under the provisions of R.S. 15:529.1 alleging two prior convictions, both by plea: one, on December 27,1974, to possession of methadone, La.R.S. 40:967; the other, on April 2, 1970, to attempt burglary, in violation of R.S. 14:27; 14:62. After a hearing conducted on this information, March 10, 1980, the trial court found defendant a second, not third, felony offender, and sentenced him to six years’ imprisonment at hard labor.

Defendant James Bell was charged by bill of information with theft in the amount of nine hundred ($900.00) dollars, La.R.S. 14:67. On October 2, 1979, he entered a plea of guilty as charged in the same court that would consider defendant Jefferson’s case. In subsequently charging him as a multiple offender under La.R.S. 15:529.1, the state relied on two prior convictions: a plea in October 30, 1968, to theft, La.R.S. 14:67; and a second plea on July 20, 1970, to armed robbery, La.R.S. 14:64. After a hearing on March 10, 1980, the same day it sentenced Jefferson, the trial court dismissed the multiple bill altogether. It then sentenced Bell to five years’ imprisonment at hard labor.

The trial court’s rulings focused exclusively on the 1970 convictions. In addition to the state’s independent proofs at the hearings, defendants took the stand and freely admitted their prior pleas in 1970. They also conceded they had been represented by counsel, a fact clearly established by certified minute entries of the pleas in each case submitted by the state. Defendant Bell, however, denied that either the trial court or counsel explained to him the consequences of his pleas. Less certain, Jefferson could recall only that the trial judge “asked me some questions . before he gave me the time . . but what it was, I don’t know.” Both defendants testified that their pleas were otherwise voluntary.

The trial court emphasized in each case that the state had failed to produce a contemporaneous record indicating compliance with Boykin. For that lack, defendant’s testimony stood unopposed and, in the court’s view, appeared sufficient to meet “the burden placed on defendant in these matters . . ” The trial court accordingly placed the 1970 convictions beyond reach of the state. In the case of Bell, the ruling meant dismissal of the bill altogether, as the 1968 conviction appeared too remote for purposes of La.R.S. 15:529.1(C). In Jefferson’s case, the ruling meant a reduction in sentencing liability from a third to second felony offender, as the court found his 1974 conviction valid.

The trial court’s rulings were erroneous. With the decisions in State v. Holden, 375 So.2d 1372 (La.1979) and State v. Bolton, 379 So.2d 722 (La.1980), this Court has now firmly established that for all pleas taken in Louisiana prior to December 8, 1971, the date of finality of State ex rel. Jackson v. Henderson, “the state is required only to prove the conviction by a plea of guilty with representation by counsel.” State v. Holden, 375 So.2d at 1376. Defendant thereafter “has the burden of proving that he did not waive his constitutional rights in making the plea, if the plea was taken subsequent to Boykin’s requirements in this regard.”

In this case, the certified copies of the minute entries in each case, we well as defendant’s testimony from the stand, established unequivocally that defendants were represented by counsel when they entered their pleas in 1970. The pleas came after the decision in Boykin (1969) and before the opinion in Jackson, supra. Holden thereafter shifted the burden of voluntariness to the defense, a fact acknowledged by the trial court. As set forth above, the trial court ultimately concluded that defendant’s testimony alone met that burden. Holden specifically cautioned, however, 375 So.2d at 1376 that “[u]nless the colloquy at the time of the plea of guilty affirmatively shows substantial defect in this regard, the defendant will not be permitted to make any other collateral attack beyond the colloquy upon the otherwise valid guilty pleas in the enhanced punishment proceedings.”

In the present cases, counsel failed to support defendant’s testimony with a transcript of the prior pleas indicating substantial Boykin defects. On this record under Holden, the defendant’s have therefore not made out their claims, at least in the present context. Accordingly, we reverse the ruling of the trial court, vacate the Sentences imposed, and remand these cases for resentencing in accord with the views expressed herein.

REVERSED AND REMANDED FOR RESENTENCING.

DIXON, C. J., dissents.

       In defendant Bell’s case, at least, the effort was made, if by the state, and proved unavailing. At the hearing on the multiple bill, the prosecutor took the stand and detailed his attempts to find a contemporaneous record of Bell’s plea. According to his testimony, the records seem to have disappeared. Nonetheless, State v. Bolton makes clear that neither defendant is without a remedy here. Bolton thus explains, 379 So.2d at 723 that “[f]or any other collateral attack upon the prior plea [not based on the colloquy at the time of the plea], the defendant is relegated to any remedy he has in the court which took his plea.”


author: CALOGERO, Justice.

text:
    James L. WALL et al. v. AMERICAN EMPLOYERS INSURANCE COMPANY et al. Jeff L. BUTLER et al. v. AMERICAN EMPLOYERS INSURANCE COMPANY et al.
    No. 66301.
    Supreme Court of Louisiana.
    June 23, 1980.

      Jenifer Ward Clason, Shaw & Shaw, Homer, for plaintiffs-applicants.
    William J. Doran, Jr., William T. Kivett, Doran & Kivett, Baton Rouge, for defendants-respondents.
   CALOGERO, Justice.

We granted writs in these consolidated cases to resolve the following issues:

1) Should plaintiffs’ awards of damages against the Claiborne Parish Police Jury have been reduced by the Court of Appeal by two-thirds because of plaintiffs’ pre-trial settlements with and restrictive releases of two co-defendants and their insurers?

2) Should the damages awarded by the Court of Appeal be increased?

These consolidated actions for damages for wrongful death and for personal injury to guest passengers arose out of a two-car collision which occurred in July of 1966 in Claiborne Parish at the intersection of two rural blacktop roads maintained by the parish police jury as part of the parish road system. Brenda Prothro, the seventeen year old driver of one vehicle, and her three passengers, were travelling north on the Harris-Beck Road; Mrs. Eunice Vize, with six passengers, was driving east on the old Minden-Arcadia Road.

The intersection at which the collision occurred was described by the Court of Appeal as follows:

“Several stop signs which once had been maintained facing north-south traffic on the Harris-Beck Road were knocked down or removed by persons unknown at least a month before the accident. Grass and weeds had grown on the road shoulders at the intersection to the extent that drivers’ view of the intersection a safe distance away was obstructed. One stop sign remained at the intersection but it faced southbound traffic on the Harris-Beck Road (Brenda Prothro was northbound) and was located not on the right shoulder of that road, but on the left shoulder. The hazardous nature of the generally uncontrolled, unmarked, and obstructed intersection was compounded by a hill which also obstructed the vision of a northbound driver and by a curve which obstructed the view of the eastbound driver. The posted speed limit on each road was 60 M.P.H. Each automobile was travelling 50-55 M.P.H. No signs, however, were posted to warn traffic that an intersection was ahead.” 377 So.2d 369, 371 (La.App.2nd Cir. 1979).

Reconstruction of the accident through expert testimony indicated that neither driver was aware of the other vehicle until the collision was imminent. The Vize vehicle which was travelling at approximately fifty miles an hour left skid marks of twenty-two feet and nine inches while the Proth-ro vehicle travelling at about fifty-five miles an hour left only two feet of skid marks. Testimony indicated that neither driver began braking until well after the point beyond which the collision was no longer avoidable.

As a result of the collision, Brenda Proth-ro and one of her passengers, Dianne Wall, were killed. Additionally, all of the six passengers in the Vize vehicle — Mrs. Blanche Butler, her three minor children, and a minor niece and nephew — were injured. An action for the wrongful death of Dianne Wall was filed by her parents, Mr. and Mrs. James L. Wall, plaintiffs herein. A separate action was filed for the personal injuries sustained by the passengers in the Vize vehicle. Named as defendants in each action were Mr. and Mrs. E. L. Prothro, Jr., their insurer American Employers Insurance Company, Mr. and Mrs. H. C. Vize, their insurer State Farm, the Claiborne Parish Police Jury, and the State Department of Highways. The Department of Highways was dismissed from the litigation on exceptions upon a showing that the two roads in question were parish rather than state maintained roads.

Before trial both sets of plaintiffs settled with and gave restrictive releases to Mr. and Mrs. H. C. Vize, the Vize insurer State Farm, Mr. and Mrs. E. L. Prothro and the Prothro insurer American Employers. After much procedural litigation not relevant to the issues at hand and almost twelve years after the accident, the consolidated cases went to trial against the Claiborne Parish Police Jury alone.

At the conclusion of trial the district court found that plaintiffs in their pleadings had judicially confessed the negligence, of the two drivers with whom they had settled before trial and that plaintiffs were bound by the allegations in their pleadings. The court further held, however, that the negligence of the two drivers had been proved by a preponderance of the evidence and that any negligence of the police jury in not signing the intersection properly was not a proximate cause of the accident. The trial court accordingly dismissed with prejudice the actions against the police jury.

On appeal the Second Circuit reversed the trial court’s finding that the failure of the police jury to sign the intersection properly was not a proximate cause of the accident. That court found that the police jury had a duty to maintain the road and the traffic signs in a reasonably safe condition and to warn motorists of this unmarked intersection. The Court of Appeal further found that the Claiborne Parish Police Jury either knew or should have known that the stop signs at the intersection were down for more than a month before the accident. As a consequence that court found that the police jury’s negligence was a proximate cause of the accident and constituted legal fault.

After finding that the police jury was liable for plaintiffs’ damages, the Court of Appeal reduced the judgment by two-thirds for the reason that plaintiffs’ allegations that the police jury’s two co-defendants with whom plaintiffs had settled before trial had been jointly and concurrently negligent were binding. The court held that plaintiffs could not now assert that the two co-defendants with whom they had settled were not joint tortfeasors and thereby defeat the police jury’s right to claim a proportionate reduction in the judgment.

The finding by the Court of Appeal that the police jury’s negligence was a proximate cause of the accident and constituted legal fault is well-founded and is no longer at issue in this litigation. What prompted our granting writs in this case was the method by which the Court of Appeal determined that the drivers of the two vehicles were joint tortfeasors.

In reducing plaintiffs’ judgments the Court of Appeal did not on the basis of the record find that the drivers of the two vehicles were negligent. Rather it determined as a procedural matter that plaintiffs were bound by their original and unamended pleadings filed at the commencement of the litigation, before settlement with and release of the two drivers and their insurers. In those pleadings plaintiffs had alleged that Brenda Prothro and Eunice Vize were jointly and concurrently negligent and had prayed that they be held liable in solido with the other defendants. Relying on Danks v. Maher, 177 So.2d 412 (La.App.4th Cir. 1965), the court found that the allegations of negligence of the two drivers in the unamended pleadings bound plaintiffs, and that consequently the two co-defendants were joint tortfeasors entitling the police jury to a reduction of the judgment under Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App.3rd Cir. 1964).

Harvey v. Travelers established the rule that when a plaintiff settles with and releases a joint tortfeasor and thereby deprives the remaining tortfeasor of his right to contribution against the one who has been released, the plaintiff can recover from the remaining tortfeasor only one-half of the damages which he has sustained. In that case plaintiffs filed suit against two drivers involved in an accident. After plaintiff settled with, released and dismissed from the suit one driver, the remaining defendant filed a third party action demanding that the released co-defendant be brought back into the action so that its solidary liability might be determined. He further demanded that if he were found liable, the judgment against him be either reduced by half or that he be given judgment for one-half against the released co-defendant. Upon motion for summary judgment on the third party demand, the trial court dismissed the third party action against the released defendant. The Court of Appeal affirmed, concluding however that the effect of the pre-trial settlement with the released defendant would be to reduce the plaintiffs’ recovery if it were determined at trial that the released driver were a joint tortfeasor:

“We conclude, therefore, that where the claimant in a tort action settles with and releases one of two joint tort-feasors, reserving all of his rights against the other, the remaining tort-feasor is thereby deprived of his right to enforce contribution against the one who has been released. And, since the claimant by his own act has deprived the unreleased tort-feasor of this right to enforce contribution, he can recover from the latter only one-half of the damages which he sustained.” 163 So.2d at 921.

The court in Harvey, however, stated that it was only if the released co-defendant were determined to be a joint tortfeasor at trial that the reduction in damages would apply:

“. . If it should be determined on the trial of the merits of this case that the [released co-defendant] and the [non-released co-defendant] were both negligent, and thus that they were joint tort-feasors, then in view of the settlement with and release of [one co-defendant] plaintiffs must be decreed to have reduced their claim by one-half, and they would be permitted to recover only one-half of the total amount of their damages from the remaining tort-feasor, . (and its insurer). If it should be determined on a trial of the merits that the [released co-defendant] was not negligent, and thus that he was not a joint tort-feasor, then the settlement entered into between plaintiffs and [that defendant] would not have the effect of reducing plaintiffs’ claim against any others who may be determined to be tort-fea-sors.” 163 So.2d at 922.

In reducing plaintiffs’ damages under Harvey in the instant case, the Court of Appeal relied upon Danks v. Maher, supra, a medical malpractice case in which plaintiff filed suit against her doctor, the hospital in which the operation was performed, and the insurers of each. After trial was nearly completed but before the case was submitted to the jury, plaintiff settled her claim against the doctor and his insurer. Plaintiff then moved for and was granted a dismissal of her suit as to those plaintiffs but reserved her rights against the remaining plaintiffs. There the Fourth Circuit observed that the settlement with and dismissal of the doctor from the lawsuit after trial but before submission of the case to the jury unfairly and without notice shifted the burden of proving the negligence of the doctor from the plaintiff to the defendant hospital. The Court of Appeal held that plaintiff was bound by her pleadings in which she had alleged joint and concurrent negligence of the defendants. The court concluded that the doctor and the hospital were joint tortfeasors and accordingly reduced the judgment rendered against the hospital by half.

In following Danks in the instant case the Court of Appeal without much discussion distinguished Hall v. Hartford Accident & Indemnity Co., 278 So.2d 795 (La.App.4th Cir. 1973), in which a somewhat different procedural problem was presented. In Hall plaintiff filed suit against two defendants, then settled with and restrietively released one of them, making the settlement part of the record. However, the released co-defendant was not dismissed from the lawsuit and the case went to trial (with the jury unaware that one co-defendant had been released) for the determination of fault of each of the co-defendants. After trial the jury found that the co-defendant who had been released was not a tortfeasor and that only the defendant who had not been released was liable for plaintiff’s damages. The Court of Appeal held that a reduction in recovery under Harvey v. Travelers does not apply to all situations in which multiple defendants are alleged to be liable, but only in cases in which more than one defendant would actually be liable.

There was no patent unfairness in Hall as there was in Danks because it was determined at trial in Hall that the released co-defendant was not a joint tortfeasor. Any recovery from that defendant was essentially a gratuity and should not serve to reduce plaintiff’s recovery against the remaining defendant. In Danks the Court of Appeal held plaintiffs to be bound by their pleading in which they alleged the joint and concurrent negligence of the co-defendants because to have done otherwise would have been patently unfair to the remaining co-defendant.

Danks, to the extent that it held that a plaintiff’s allegations of joint and concurrent negligence of a co-defendant later released binds that plaintiff and serves to reduce plaintiff’s recovery against the remaining defendants, is not controlling in the instant case. Here plaintiffs settled with and released two of the three defendants well before trial. Aware of the release, defendant itself raised in its supplemental answer to the petition the issue of the negligence of the released co-defendants and prayed that if judgment be for the plaintiffs, the judgment be reduced because of the release of the two co-defendants. And while plaintiffs did not amend their original petition in which they alleged the joint and concurrent negligence of all defendants, plaintiffs did introduce without objection from defendant evidence of lack of fault on the part of the two released co-defendants.

In this case as in Hall the issue of the co-defendants’ fault or lack thereof was fully and completely litigated at trial. Defendant did not object to the introduction of the evidence of the released co-defendants’ lack of fault; nor did it at or before trial contend that plaintiffs had judicially confessed the released co-defendants’ negligence in their pleadings. Consequently defendant must be held to have consented to expansion of the pleadings by introduction of the evidence. Had defendant objected, showing his lack of express or implied consent, then the trial court could have allowed plaintiffs to amend their petition. An objection at that time would possibly have facilitated amendment of the petition and would have obviated this procedural problem.

We therefore conclude that plaintiffs are not bound by their allegations in the original petition, for the pleadings were amended by implied consent of the parties to charge exclusive fault on the part of the police jury. The Court of Appeal’s reliance upon the allegations in plaintiffs’ original petition was erroneous.

Although the Court of Appeal erred in reducing plaintiffs’ damage awards on the basis that they were bound by their original and unamended pleadings, the reduction of the award may nonetheless be warranted if the evidence adduced at trial indicates that the two drivers were in fact negligent and thus joint tortfeasors with the police jury. Because this issue was completely and fully litigated at trial, there is an adequate record for this Court to review and make that determination.

The trial court determined, as did the Court of Appeal, that plaintiffs were bound by their allegations in the original pleadings. But the trial court further found, on an issue pretermitted by the Court of Appeal, that both of the drivers of the cars were negligent and legally at fault. The record in this case amply supports that conclusion.

Testimony introduced at trial indicated that at the time of the accident the Prothro vehicle was travelling north at approximately fifty-five miles per hour while the Vize vehicle was travelling east at fifty miles per hour. Colonel Joseph Andre, an expert in accident reconstruction, testified that although the vehicles were travelling below the posted speed limit (sixty miles per hour), both drivers were travelling too fast for the prevailing road conditions. He stated that the Prothro vehicle approached the intersection from the north over a hill which obscured the driver’s view and that the Vize vehicle approached from the east around a blind curve. The two feet of skid marks made by the Prothro vehicle indicated that Brenda Prothro did not react to the oncoming vehicle until she was a mere sixty-three feet from impact although the Vize vehicle was visible before that point. The twenty-two feet nine inch skid marks •left by the Vize vehicle also indicated that Mrs. Vize did not begin braking as soon as the Prothro vehicle would have become visible to an attentive driver.

Other testimony introduced at trial indicated that the drivers of the two vehicles could have, and likely would have, reacted more quickly had they been keeping the proper lookout. Testimony indicated that both drivers were familiar with the intersection and had travelled it on previous occasions. Furthermore, Peggy Frye, a passenger in the Prothro vehicle who was injured, testified that just before impact she and Brenda were talking and that Brenda would from time to time take her eyes from the road and look in her direction. Mrs. Vize also indicated that just before -impact, she was discussing the day’s shopping trip with the passenger in the front seat of her vehicle.

Based on the evidence in the record, we find that the drivers of the two vehicles were in fact negligent and are joint tort-feasors with the Claiborne Parish Police Jury. Therefore the judgment in favor of plaintiffs should under Harvey v. Travelers be reduced by two-thirds because of the pre-trial settlement with and release of two of the three joint tortfeasors.

We have also reviewed the evidence relating to the amount of damages assessed for plaintiffs by the Court of Appeal (and awarded after reduction by two-thirds) and conclude that plaintiffs’ argument of inadequacy is without merit. The Court of Appeal awarded the following damages:

“In favor of plaintiff, Mrs. Blanche Butler $37,000.00
In favor of plaintiff, Jeff L. Butler, as head and master of the community and as administrator of the estates of his former minor children for these sums, respectively as follows:
Expenses relating to Mrs. Butler $5,454.76
Karen 53.00
Jeffrey Lane 337.71
Martha Ann 114.20
TOTAL $5,959.67
Personal injury damages to the minor, Jeffrey Lane Butler $3,000.00
In favor of plaintiff, Martha Ann Butler Moore $3,000.00
In favor of plaintiff, Karen Butler Shell $2,200.00
In favor of plaintiff, Donald Ray Mosley (including medical expenses) $4,750.00
In favor of plaintiff, Terri Elaine Mosley Rowell (including medical expenses) $3,250.00
In favor of James L. Wall (including expenses) $41,275.00
In favor of Mrs. Betty Wall $40,000.00”

We do not find these awards inadequate. The only award which- is arguably on the low side is the $37,000 for Mrs. Blanche Butler’s having suffered multiple fractures. However, the record supports the Court of Appeal’s assessment of damages.

Decree

For the foregoing reasons the judgment of the Court of Appeal is affirmed.

AFFIRMED.

       Honorable Frederick Stephen Ellis, Justice Pro Tempore, who heard arguments in this case later recused himself upon discovering that early in this litigation he had ruled on an interlocutory matter as a member of a three judge Court of Appeal panel.

      . Two other passengers in the Prothro vehicle were also injured. Their claims are not before us in this case.

      . An application for writs filed by the Claiborne Parish Police Jury seeking review of that finding was denied by this Court. 378 So,2d 1383 (La. 1980).

      . C.Civ.P. art. 1154 provides that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. . . . ” (emphasis provided)

      . C.Civ.P. art. 1154 further provides [i]f evidence is objected to at trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

      .Peggy Frye indicated that she and Brenda Prothro travelled this road each summer when going to camp and that Brenda had travelled that route as recently as a week before the accident. Mrs. Vize’s testimony indicated that she drove through the intersection quite frequently.

      . This Court in Canter v. Koehring, 283 So.2d 716 (La. 1973) followed Harvey and its succeeding jurisprudence in approving the reduction of a judgment against a defendant because of the release of a joint tortfeasor.


author: BLANCHE, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Ray JONES.
    No. 65892.
    Supreme Court of Louisiana.
    July 7, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Joseph David Toups, Asst. Dist. Attys., for plaintiff-appellee.
    Kelly & Salim, Robert L. Salim, Natchi-toches, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Ray Jones, was charged by bill of information with distribution of marijuana in violation of R.S. 40:966(A). On June 11, 1979, the district attorney, pursuant to a plea bargain agreement between defendant and the state, moved to reduce the charge to attempted distribution of marijuana, R.S. 14:27, 40:966(A). Following the trial judge’s determination that defendant was knowingly and intelligently entering the plea, defendant pleaded guilty to the reduced charge. On September 13, 1979, defendant was sentenced to five years at hard labor, the maximum term possible for attempted distribution of marijuana, and was fined $7,000.

Defendant now appeals his conviction and sentence on the following grounds: (1) the sentence imposed is excessive in violation of the constitutional prohibition of cruel and unusual punishment, La.Const. art. 1, § 20; (2) the defendant’s plea was involuntary because it was induced in part by the state’s promise that defendant would receive no jail term and that this part of the bargain was breached when defendant received a five-year sentence; (3) the trial judge erred in not providing defendant, prior to sentencing, with a copy of a pre-sentence report.

Defense counsel failed to object to any of these three alleged errors at the time of the imposition of sentence, but first raises them in his written assignments of error for appeal.

The imposition by law of excessive punishment is unconstitutional. La.Const. art. 1, § 20 (1974). In State v. Sepulvado, 367 So.2d 762 (La.1979), we held that:

“. . . the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review of his conviction.”

We further stated that C.Cr.P. art. 894.1, which sets forth factors to be considered in imposing sentence and which requires the trial judge to state for the record the factual basis of the sentence, provides:

“. . appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentence alternatives.”

Although, as a general rule, an alleged error cannot be urged for the first time on appeal, La.C.Cr.P. art. 841, State v. Valentine, 364 So.2d 595 (La.1978); State v. Stoltz, 358 So.2d 1249 (La.1978), this Court has not taken the same attitude where the defendant complains of an excessive sentence and where the trial judge imposes a sentence with inadequate compliance with the mandatory requirement of La.C.Cr.P. art. 894.1 that he state the considerations and the factual basis for his sentence. We have held that, even without formal objection at the time of sentencing, this Court may vacate a sentence and remand for re-sentencing when the factual reasons for an apparently severe sentence in relation to the particular defendant and the actual offense committed do not appear in the record. State v. Gist, 369 So.2d 1339 (La.1979); State v. Cox, 369 So.2d 118 (La.1979); State v. Sepulvado, 359 So.2d 137 (La.1978). In State v. Cox, supra, we held that no objection is required as to excessiveness at the time of sentencing to preserve the issue for appellate review when raised by assignment of error to this Court.

In the present case, the trial judge indicated that there was undue risk that defendant would commit another crime if granted probation, and that a lesser sentence would depreciate the seriousness of the crime, factors listed in C.Cr.P. art. 894.1 as considerations for sentencing. However, the court provided no factual basis for these conclusions. In considering mitigating circumstances, the judge continued to give unexplained findings. Absent full compliance with La.C.Cr.P. art. 894.1, we lack appropriate criteria by which to measure whether these sentences are excessive. Accordingly, we vacate defendant’s sentence and remand the case to the trial court with instructions to properly follow the mandates of C.Cr.P. art. 894.1 before imposing sentence.

LEMMON, Justice,

concurring.

The sentence should be set aside because of the failure to provide the report of the pre-sentence investigation to counsel prior to sentencing and to afford counsel an opportunity to rebut erroneous information.


author: BLANCHE, Justice.

text:
    CUTE’-TOGS OF NEW ORLEANS, INC. v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY.
    No. 66413.
    Supreme Court of Louisiana.
    July 8, 1980.

      Arthur H. Andrews, Franklin, Moore & Walsh, Baton Rouge, for defendant-applicant.
    John R. Tharp, Nancy C. Tyler, Taylor, Porter, Brooks & Phillips, Baton Rouge, for plaintiff-respondent.
   BLANCHE, Justice.

Plaintiff, Cute’-Togs of New Orleans, Inc., entered into an agreement with defendant, Louisiana Health Service & Indemnity Company (hereinafter referred to as Blue Cross) whereby Blue Cross agreed to insure the subscribing employees of Cute’-Togs under a group policy. Plaintiff's business was that of a clothing manufacturer and one of its employees completed and sent in an application to Blue Cross applying for medical insurance protection coverage for himself and his ■ family. Thereafter, the wife of the employee became hospitalized and allegedly, upon discovering that Blue Cross had not yet processed his application for group insurance coverage, the employee terminated his employment with Cute’-Togs. Thereafter, Cute’-Togs instituted suit against Blue Cross, alleging negligence in the processing of the insurance policy and claiming that as a result of that negligence, a skilled employee quit, causing a loss of production. Blue Cross then responded by filing a third-party demand against its liability insurer, Aetna Fire Underwriters Insurance Company (hereinafter referred to as Aetna), contending that it had a duty to defend the action filed against it by Cute’-Togs. The insuring clause relied upon by Blue Cross reads as follows:

“The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence . . . and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent .' . . (emphasis ours)

To this third party demand, Aetna refused to provide a defense on the grounds that there was no coverage and it prayed for and was granted a summary judgment by the trial court. From this judgment, Blue Cross perfected a devolutive appeal and the First Circuit Court of Appeal reversed the decision of the trial court finding that assuming all of the allegations of fact in Cute’-Togs’ petition to be true, negligent acts constituting an occurrence did take place and damage to property resulted, and that on the occurrence of these two events, Aetna had a duty to defend.

The exclusion relied upon reads as follows:

“This insurance does not apply
* * * * * ¡fc
“(m) to loss of use of tangible property which has not been physically injured or destroyed resulting from (1) a delay in or lack of performance by or on behalf of the named insured of any contract or agreement . . . ”

Clearly, the above clause excludes coverage for any damage occasioned by the breach of any contracts or agreements.

With reference to the agreement between the parties, Cute’-Togs, in an amending and supplemental petition, alleges that it entered into an agreement with Blue Cross whereby Blue Cross agreed to insure its subscribing employees pursuant to the terms of the insurance policy (paragraph (lXa)). Thus, it may be observed that the duty owed to Cute’-Togs is one which arose from the contract between them, and it follows that any harm or damage which Cute’-Togs claims to have suffered resulted from the failure of Blue Cross to comply with its agreement thereunder.

The allegations of plaintiff’s petition allege a negligent breach of contract in the following language:

“11. The loss of Edward Lancaster as an employee and the costs incurred in replacing are the result of the defendant’s negligence in processing the employee’s application.”
* * * * * *
“11(a). Defendant’s negligence consisted of the following particulars, among others:
1. Failure to process employee’s application with the requisite efficiency;
2. Failure to be cognizant of employee’s application;
3. Failure to realize that the additional information requested was not applicable; and
4. Failure to process the employee’s application with due speed and efficiency once defendant discovered or should have discovered its mistake.”
[Amending Petition filed by plaintiff, p. 2.]

The court of appeal, relying on these allegations, reasoned that:

“Since the insurer did not specifically exclude negligence as a contractual ground of non-defense, Aetna must defend Blue Cross. Since there was no unambiguous exclusion of coverage for the occurrences and property damage that resulted, Aet-na must indemnify Blue Cross. Since there was coverage, there must be a defense.” 376 So.2d 999, 1002 (La.App. 1st Cir. 1979).

This reasoning overlooks the source of Cute’-Togs’ alleged damages. According to the allegations of plaintiff’s petition, the duty /right relationship between the parties arose out of the insurance agreement between them, and the allegations of plaintiff’s petition allege no more than a negligent failure of that duty. In American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969), we clearly stated the “duty to defend” rule as follows:

“. . . the insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. * * *
“Thus, if, assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Additionally, the allegations of the petition are liberally interpreted in determining whether they set forth grounds which bring the claims within the scope of the insurer’s duty to defend the suit brought against its insured. * * *” 230 So.2d at 259. [cits, omitted]

Accordingly, when the duty and its breach causing damages have been properly identified, we find the exclusion relied upon by Aetna to be unambiguous and applicable.

For the above reasons, the court of appeal is hereby reversed, and there is further judgment herein reinstating the decision of the district court dismissing third-party plaintiff’s suit at its cost.

DENNIS and LEMMON, JJ., specially concurring.

WATSON, J., dissents believing the Court of Appeal to be correct.


text:
    STATE of Louisiana v. Alvin “Coffee” WASHINGTON.
    Nos. 66581 and 66582.
    Supreme Court of Louisiana.
    July 8, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Jr., Dist. Atty., for plaintiff-relator.
    Louis B. Guidry, D. Michael Mooney, Jack Rogers, Robert E. Guillory, Jr., U. Eugene Thibodeaux, Carla F. Chrisco, Lake Charles, for defendant-respondent.
   BLANCHE, Justice.

Defendant, Alvin “Coffee” Washington, failed to appear at trial, and on motion of the district attorney, judgments were entered and signed on July 27, 1976 in favor of the state declaring a forfeiture of his appearance bond. One year, two-and-one-half months later, and through the efforts of the bondsman, the defendant was again arrested, and returned to court where he was subsequently tried and convicted. Approximately three years after the signing of the above judgment, the then District Attorney, Frank T. Salter, joined in with the attorney for the bail bondsman and the surety on the bail bond in a motion to the court to set aside said judgment of forfeiture. This judgment was signed on June 2, 1979, and thereafter, the present District Attorney, Leonard Knapp, Jr., filed a motion for a new trial. The motion was denied by the trial judge, and writs to this Court were applied for and granted. We now reverse.

The sole issue before this Court is whether the judgment on the forfeiture of the bond can be set aside when the “surrender” of the defendant is made more than six months after the judgment has been rendered. The law governing bond forfeitures for the period involved in this litigation is La.R.S. 15:85, as amended by Acts 1976, No. 579, § 1...

That statute requires that all bonds taken to secure the appearance of any person before any district court, except their preliminary examinations, shall shall be forfeited and collected if, at the time fixed for the appearance of such person, he fails to appear and answer when called. Thereafter, the judge, on motion of the district attorney, and upon hearing proper evidence, including service or attempted service upon the defendant and service upon the surety, shall forthwith enter a judgment decreeing the forfeiture of the bond, and against such person in his surety, in solido, for the full amount thereof. The law further requires the district attorney to issue a writ of fieri facias against both the principal and his surety if the time has expired for the taking of an appeal of the judgment of forfeiture, and the time allowed by law for the surety to return the fugitive to the jurisdiction of the court has passed.

Provisions are made for setting aside of such judgments, and in this regard, the statute provides that if one of three things occurs within a six-month time frame after rendition of the judgment, that the judgment shall be set aside. These three occurrences are: (1) the defendant surrenders or is surrendered to the law enforcement agency; (2) the defendant appears (namely, by arrest by law enforcement officers), and a trial and conviction or acquittal of the defendant is had within that time frame; or (3) the district attorney, upon his own motion, obtains a continuance after the defendant has appeared in court.

This Court in the past has been called upon to interpret various aspects of the bond forfeiture provisions, and has always strictly construed these provisions. See State v. Sandoz, 258 La. 297, 246 So.2d 21 (1971); State v. Kunzler, 248 La. 133, 177 So.2d 112 (1965).

In State v. Kunzler, supra, 177 So.2d at 114, this Court, in interpreting former La. R.S. 15:109, the effective provision at that time, held “ . . . that the ‘adequate proof’ required by the statute must have been made to the judge in a judicial proceeding commenced within the prescribed 60-day period . . ” in order to set aside the forfeiture. Although subsequent legislation has extended this period to six months, the reasoning of Kunzler is still valid.

An examination of the record in the instant case reveals that defendant, Alvin “Coffee” Washington, failed to appear on November 10, 1975, and that it was not until February 2, 1977 that he was re-arrested and subsequently returned to court. It is clear from the record that the motion to set aside the judgment of bond forfeiture on November 24, 1975 did not fall within the prescribed six-month period of R.S. 15:85. Having failed to comply with the effective provisions of R.S. 15:85, the judgment of the trial court setting aside the judgment is contrary both to the law and the evidence. Code of Civil Procedure article 1972(1) provides that a new trial shall be granted where the judgment appears clearly contrary to the law and evidence. Utah-Louisiana Investment Co. v. International Development, Inc., 262 So.2d 553 (La.App. 1st Cir., 1972). Therefore, the trial court erred in denying the state’s motion for a new trial.

For these reasons, it is ordered that the judgment recalling the bond forfeiture signed on June 22, 1979, be recalled, vacated and set aside and the judgment of appearance bond forfeiture signed November 26, 1975 is reinstated.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

The purpose of R.S. 15:85 is to encourage the surety to obtain the appearance of a defendant who has failed to appear and to do so within a reasonable period of time, while the state’s witnesses are still available and before the state’s evidence loses its value with the passage of time. Accordingly, R.S. 15:85 requires (by the mandatory word “shall”) the setting aside of the bond forfeiture and the return of the surety’s payment if the defendant is surrendered within six months of payment of the bond forfeiture judgment.

When the statutory conditions are met, the bond forfeiture must be set aside, and no discretion is allowed. However, no positive law prohibits the trial judge from setting aside the bond forfeiture if the defendant is surrendered by the surety after the statutory period, but within sufficient time for the state to utilize its evidence and obtain a conviction (as happened in this case).

The majority decision, in effect, tells a surety to give up efforts to locate a missing defendant after six months, no matter how horrible the crime or how plentiful and overwhelming the evidence. In my opinion the decision frustrates the underlying statutory purpose of ultimately bringing a fugitive to justice. If R.S. 15:85 were interpreted to accord the trial court discretion in setting aside bond forfeitures when the defendant is surrendered after the statutory period, then a trial judge could reward a surety whose continued diligence after the statutory period results in a conviction, but could refuse to return the surety’s payment when the defendant’s surrender is too late to be of value. Such an interpretation serves the statutory purpose of encouraging apprehension of fugitives under all circumstances.

      . The surety is statutorily entitled to have the bond forfeiture set aside by the very act of effecting a surrender timely. State v. Sandoz, 246 So.2d 21 (1971).

      . In the present case the fugitive was apprehended in California, through the efforts of the surety, about 15 months after the judgment forfeiting the bond. He was ultimately tried and convicted.


text:
    STATE of Louisiana ex rel. Steve LINVELL v. STATE of Louisiana.
    No. 80-K-1515.
    Supreme Court of Louisiana.
    July 10, 1980.
   In re Steve Linvell applying for writ of habeas corpus to the 14th Judicial District Court for the Parish of Calcasieu. Nos. 7417-79, 7418-79 and 7219-79.

Denied. We have been informed that relator’s bond is now set at $6500.00. With respect to relator’s right to preliminary examination, we have been advised that he has not pursued that right. However, if he so requests he is entitled to a preliminary examination to be held forthwith. La. Const. Art. 1, § 14 (1974).


text:
    STATE of Louisiana ex rel. Larry D. ROGERS v. 19TH JUDICIAL DISTRICT COURT.
    No. 80-KH-1581.
    Supreme Court of Louisiana.
    July 15, 1980.
   In re Larry D. Rogers, applying for remedial writs. Parish of East Baton Rouge.

Denied. Relator has merely requested that a hearing date be fixed. The Court has been advised that the hearing is scheduled for Monday, July 28, 1980. The application is moot.


text:
    Perry H. COLEMAN v. GUARANTY BANK & TRUST COMPANY OF ALEXANDRIA.
    No. 80-C-1652.
    Supreme Court of Louisiana.
    July 23, 1980.
   In re Guaranty Bank & Trust Company of Alexandria, applying for remedial writs and stay order, Parish of Rapides. No. 106,279.

Granted in part and reversed in part. The ruling of the trial judge striking the amending pleadings is reversed and the pleadings are reinstated. Otherwise the writ is denied.

MARCUS, J., would grant and order a jury trial.


author: DIXON, C. J., LEMMON, J.,

text:
    E. J. LAURENT, Jr. v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 80-C-1638.
    Supreme Court of Louisiana.
    July 23, 1980.
   In re E. J. Laurent, Jr., applying for supervisory writs. Parish of East Baton Rouge. Number 236-609.

Denied.

DIXON, C. J.,

concurs in the denial. Relator’s petition in district court was not premature. Nevertheless, by the time this Court could determine the timeliness of the school board’s appeal, the summer will be over.

LEMMON, J.,

would grant since appeal was untimely, order of the hearing examiner became definitive and should now be enforced.


text:
    FIRST METROPOLITAN BANK v. Peter A. PLAIA et al.
    No. 80-C-1468.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Hycel, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 384 So.2d 560.

Granted. Relator’s contention that he has been denied the possibility of reargument before a five-judge panel, La.Const. art. 5, § 8(B) (1974), is correct. The case is remanded to the court of appeal for reargument.

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


text:
    FIRST METROPOLITAN BANK v. Peter A. PLAIA et al.
    No. 80-C-1498.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Exchange Oil and Gas Corp., and Hibernia National Bank, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. 384 So.2d 560.

Granted. Relator’s contention that he has been denied the possibility of reargument before a five-judge panel, La.Const. art. 5, § 8(B) (1974), is correct. The case is remanded to the court of appeal for reargument.

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


text:
    FIRST METROPOLITAN BANK v. Peter A. PLAIA et al.
    No. 80-C-1509.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Howard, Weil, Labouisse, Fried-richs, Inc., applying for certiorari or writ of review to the Court of Appeal, 4th Circuit. Parish of Orleans. 384 So.2d 560.

Granted and remanded to the Court of Appeal. See 80-C-1468 and 80-C-1498.

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


text:
    Jo Juanna Wiggins ATTEBERRY v. Winston ATTEBERRY, Jr.
    No. 66989.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Winston Atteberry, Jr., applying for reconsideration of granted writ of March 21, 1980. Court of Appeal, Third Circuit. Parish of Lafayette. 379 So.2d 18.

Denied

LEMMON, J., would grant the writ.


author: MARCUS and BLANCHE, JJ.,

text:
    John Richard CLARK, III, Individually and on behalf of the minor child, Heather Michelle Clark v. McDONALDS SYSTEMS, INC.
    No. 67792.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re John Richard Clark, III, etc., et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bossier. 383 So.2d 61.

Writ denied. The majority opinion is wrong on the prescription issue; nevertheless, the writ is denied for the reasons expressed by the concurring opinion of HALL, J., in the Court of Appeal.

MARCUS and BLANCHE, JJ.,

concur. Not reaching the prescription issue, we concur in the denial of the application of the minor.


text:
    Clifford F. FAVROT, Jr. v. Katherine Boulet BARNES.
    No. 67841.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Clifford F. Favrot, Jr., applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 383 So.2d 403.

Denied.


text:
    STATE of Louisiana In the Interest of Catrice ALEXANDER.
    No. 80-C-1421.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Cassandra Alexander, mother of Catrice Alexander, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 384 So.2d 1003.

Denied.

LEMMON, J., recused.