text:
    Monique WAMBST, Appellant, v. Jean Pierre WAMBST, Appellee.
    No. 79-2287.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Lister Witherspoon, IY, Miami, for appellant.
    Richard H. W. Maloy & Associates, Coral Gables, and Kevin A. Anderson, Hialeah, and Elizabeth Bohn, Coral Gables, for ap-pellee.
    Before HUBBART, C. J., HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

The final judgment of marriage dissolution under review is affirmed with one modification. The provision in the final judgment which prohibits any male adult not married to the appellant-wife from staying overnight in the parties’ former marital abode [in which appellant-wife was awarded temporary occupancy] is reversed as being overbroad and an improper attempt to regulate the private life of the appellant-wife. Dominik v. Dominik, 390 So.2d 81 (Fla. 3d DCA 1980); Sheffield v. Sheffield, 310 So.2d 410 (Fla. 3d DCA 1975), cert. denied, 328 So.2d 844 (Fla.1976). The balance of appellant’s contentions upon this appeal are rejected as having no merit. Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980); Ball v. Ball, 335 So.2d 5 (Fla.1976); Leonard v. Leonard, 389 So.2d 256 (Fla. 3d DCA 1980); see Groover v. Walker, 88 So.2d 312 (Fla.1956).

Affirmed as modified.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TELE-MEDIA CO. OF KEY WEST, a foreign Corporation, Ms. Violet E. Dennis and Mrs. Mogi O’Neil, Appellants, v. MONROE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 80-424.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.

      Horan & Sireci and David Paul Horan, Key West, for appellants.
    Michael H. Cates, Key West, for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Subsequent to our opinion in Cable Vision, Inc. v. Freeman, 324 So.2d 149 (Fla. 3d DCA 1975), Tele-Media Co. of Key West (successor in interest to Cable Vision) filed a new action ultimately sounding in five counts, wherein it sought by:

Count I-a public referendum so as to determine the public need and interest in establishing a television translator system by Monroe County with ad valorem tax funds.

Count II-have the court declare the expenditure of funds for a television translator system by Monroe County to be for recreational purposes, requiring the holding of a public referendum pursuant to the Constitution of Florida and the Laws of Florida.

Count Ill-have nine (9) special taxing districts created within the area benefited by the translator system and to have a special referendum held so that the citizens in each district be permitted to vote concerning their need or desire for such a system.

Count IV-have damages awarded for injuries sustained by the appellant, Tele-Me-dia, by virtue of the interference by the County system with Tele-Media’s cablevision system, which amounts to a taking without due process of law.

Count V-hold the lease agreement between the County and Largo Brand Corporation invalid, and to temporarily and permanently enjoin the expenditure of County funds on construction of a translator tower on the lands leased from Largo Brand.

The trial court granted a motion to dismiss as to Counts I through IV, based upon our prior holding in Cable Vision, Inc. v. Freeman, supra. This appeal was then prosecuted. We affirm.

Even, if the dismissal of Counts I through IV were not controlled by our earlier decision, the trial court can still be correct even if the wrong reason was given. In Re Yohn’s Estate, 238 So.2d 290 (Fla.1970); Croft v. Edwards, 353 So.2d 669 (Fla. 1st DCA 1978); Supro Corporation v. Bridwell, 361 So.2d 734 (Fla. 4th DCA 1978). Examining each count in light of the law of Florida, we determine that each count fails to state a cause of action, as follows:

As to Count I-referendums are not necessary nor required for the County to enter into binding construction or service contracts for current governmental needs and requirements when done in due course of their authorized budgetary administration of public affairs. See: County of Leon v. State, 122 Fla. 505, 165 So. 666 (1936); Tapers v. Pichard, 124 Fla. 549, 169 So. 39 (1936); State v. City of Miami, 150 Fla. 270, 7 So.2d 146 (1942).

As to Count II-there is no statutory requirement to have expenditures for recreational purposes approved by referendum. See: Sections 125.01(l)(f), 125.01(l)(w), 125.01(3)(b), Florida Statutes (1979).

As to Count III-the power of the County to establish special tax districts and to hold special elections is discretionary with the County. See: Sections 125.-01(l)(q) and 125.01(l)(y), Florida Statutes (1979).

As to Count IV-See: Cable Vision, Inc. v. Freeman, supra.

Therefore, we affirm the order dismissing the first four counts here under review.

Affirmed.

      . For a factual background of this dispute, this earlier opinion should be reviewed.

      . It appears that Count V may be independent of Counts I through IV, although we make no determination in this opinion as to the validity of Count V.


text:
    INTERCONTINENTAL GROUP, INC., Appellant, v. S & S AIR CONDITIONING CO., Appellee.
    No. 80-598.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Jack J. Weiss and Stuart M. Gold, Miami, for appellant.
    Lewis W. Miles, II, Miami, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The pivotal question in this case is when are materials “finally” furnished to an owner by a contractor in order to secure a mechanics lien, pursuant to Section 713.-08(5), Florida Statutes (1977).

We hold that where the work is suspended on the project by the owner and the contractor is unable to go forward with the work (although he has material on the job site needed to complete the work), the materials are “finally” furnished when the owner notifies the contractor that he wants the work to proceed and the materials are then utilized. Baldyga Construction Company, Inc. v. Hurff, 164 N.J.Super. 587, 397 A.2d 396 (1978); Gaston v. Avansino, 39 Nev. 128, 154 P. 85 (1915); Anno. 97 ALR 780 and cases cited therein. Compare, Miller Electric Company of Miami, Inc. v. Sweeny, 199 So.2d 734 (Fla. 3d DCA 1967).

No error was made in the award of attorney fees. See: Section 713.29, Florida Statutes (1977).

Therefore, the final judgment under review is affirmed.

Affirmed.


text:
    Mary Louise BACKUS, Individually and as Personal Representative of the Estate of Howard W. Backus, Deceased, Appellant, v. HOWARD W. BACKUS TOWING, INC., and Fred W. Backus, Appellees.
    No. 80-673.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.

      Quarles & Mills and Charles F. Mills, South Miami, for appellant.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Robert Wayne, Phillips & Phillips, Miami, for appellees.
    Before HENDRY and BASKIN, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   VANN, HAROLD R. (Retired), Associate Judge.

We are called upon in this appeal to review a summary judgment dismissing a corporate counterdefendant from a counterclaim seeking declaratory relief. Based upon a holding that, under the present state of the pleadings, the dismissed corporation is properly amenable to suit under Chapter 86 of the Florida Statutes (Declaratory Judgments) and that the counterplaintiff may discover the sources of funds contained in a certain “drawing account” to the extent of the applicable provisions of Chapter 95 of the Florida Statutes (Limitation of Actions), we reverse the appealed judgment and reinstate the corporation as a counter-defendant.

Fifty percent of the stock of the counter-defendant corporation, Howard W. Backus Towing, Inc., was owned by Howard W. Backus himself (now deceased); the other fifty percent was owned by his son, Fred W. Backus (plaintiff-counterdefendant below and nominal appellee herein). Pursuant to a November, 1966, Stock Purchase Agreement between Howard and Fred Backus, Fred purchased Howard’s, stock for $100,-000, with payments to be made in $700 monthly installments, in consideration for which Howard was to be retained, for as long as he wished, as the Corporation’s board chairman at $6,000 per annum. Payments under the agreement were to terminate upon Howard’s death. (The Corporation was not a party to this agreement, nor a party to certain inter-family real property transactions that took place at the same time.)

In September, 1978, Howard died intestate and in May, 1979, Fred filed an action against Howard’s widow, Mary Louise Backus (the counterclaimant below and appellant herein) for the quieting of title on the inter-family property, for a declaration of his (Fred’s) rights as owner of the Corporation and for a determination of his rights under a quit — claim deed. Defendant Mary Louise Backus answered and counterclaimed (individually and as personal representative of the estate of Howard W. Backus), naming the Corporation.as an additional counterdefendant, and seeking a declaration of her rights to certain quit-claim deeds, as well as her rights under the Stock Purchase Agreement between Howard and Fred. A motion by Fred and the Corporation to dismiss the counterclaim was denied, an answer and affirmative defenses were then filed and Fred was deposed. At Fred’s deposition, certain questions concerning financial aspects of the Corporation were certified to the court. However, germane to this appeal, Fred did admit that there was an amount owing on Howard’s “drawing account” under the Agreement and that Howard’s $6,000 annual salary was paid by “the Company.” Fred was granted a protective order on November 15, 1979, limiting discovery on the Agreement to five years preceding Howard’s death (pursuant to the applicable statute of limitations). Both Mary and the Corporation moved for summary judgments. A hearing was held on both motions, resulting in a denial of Mary’s motion and the granting of the Corporation’s motion, thereby dismissing the Corporation from the counterclaim, with prejudice. This appeal followed.

The Corporation argues and would have us hold that because it is not a party to the agreement between Fred and Howard, because Mary’s counterclaim simply seeks the salary owed to Howard under the Agreement and because the obligation to pay Howard’s salary falls exclusively upon Fred (and not the Corporation), accordingly, the trial court properly dismissed the corporation from the counterclaim. The Corporation also argues that under any circumstances Section 95.11, Florida Statutes (1977), and the case law interpreting it, limit any action against the Corporation to five years preceding Howard’s death and, therefore, that Mary, as counterclaimant, may not defeat a protective order to that effect by pursuing discovery concerning Howard’s drawing account. We cannot fully adopt such a holding and we hereby reverse the appealed summary judgment.

Initially, we would note that the subject counterclaim sounds in declaratory relief pursuant to Chapter 86 of the Florida Statutes (Declaratory Judgments), a statute which we are compelled to construe liberally. See § 86.101, Fla.Stat. (1977), and Lambert v. Justus, 335 So.2d 818 (Fla.1976). We also would note that the order appealed from is a summary judgment, which requires a showing of a genuine issue of material fact in order to mandate a reversal. See Hulley v. Cape Kennedy Leasing Corp., 376 So.2d 884 (Fla. 5th DCA 1979); and Clark v. City of Atlantic Beach, 124 So.2d 305 (Fla. 1st DCA 1960). Finally, we would note that in analyzing the counterclaim, we have given special attention to its specific prayers in light of the purposes and principles of law applicable to declaratory actions generally. Pursuant to such review we hold that Mary has a proper cause of action against the corporation under the present state of the pleadings and that the evidence elicited in the deposition of Fred, the Corporation’s principal officer and stockholder, establishes an ample predicate for further discovery into Howard’s drawing account to the full extent of the applicable statute of limitations and for leave to make any necessary amendments to the counterclaim.

The fact that the Corporation is not a party to the subject agreement is not determinative of its susceptibility to respond to a declaratory action. See § 86.021, Fla.Stat. (1977), and Government Employees Insurance Co. v. Anta, 379 So.2d 1038 (Fla. 3d DCA 1980). The pleadings demonstrate that Mary clearly “... is in doubt about [her] rights under [the Agreement] ...” so that she may properly seek a determination of whether her “... rights, status, or other equitable or legal relations are affected by [the Agreement].” § 86.021, Fla.Stat. (1977). Further, as the personal representative of the estate of Howard, Mary may also seek declaratory relief under Section 86.041(1) & (3), Florida Statutes (1977), “... (1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; or ... (3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.” The Corporation is, therefore, a proper party to the counterclaim. See Lambert v. Justus, 335 So.2d 818 (Fla.1976); and May v. Holley, 59 So.2d 636 (Fla.1952).

The Corporation relies upon Section 95.11, Florida Statutes (1977), for the proposition that, at most, Mary is limited in her discovery of the payment of Howard’s salary to a period not exceeding five years prior to. Howard’s death. On the other hand, Mary argues that in determining the propriety of her counterclaim, the question is not whether she will succeed in obtaining a declaration of her rights pursuant to her prayer, but whether she is entitled to a declaration of her rights at all. See Hildebrandt v. Department of Natural Resources, 313 So.2d 73 (Fla. 3d DCA 1975). We note that although there is no extensive Florida case law in such matters, nonetheless, the law that does exist appears to suggest that lach-es should not attach in declaratory actions in those instances where there has been no showing of injury as a result of the delay. See Wiggins v. Lykes Bros., Inc., 97 So.2d 273 (Fla.1957); and Goldstein v. Sweeny, 42 So.2d 367 (Fla.1949); and cf. Board of Public Instruction v. Little River Valley Drainage District, 119 So.2d 323 (Fla. 3d DCA 1960).

Therefore, we hold that the trial court erred in dismissing, with prejudice, the corporate counterdefendant solely on the basis that the Corporation had shown full payment of Howard’s salary for the five year period preceding his death. The prayer of the counterclaim and the disclosures gathered from Fred’s disposition leave genuine issues of material fact in the balance, for which leave to amend should forthwith be granted. We further hold that to the extent necessary to declare those rights about which Mary is in doubt with regard to the sources of funds in Howard’s drawing account, discovery should be permitted, at least to the extent of the five year period preceding Howard’s death, or to any greater extent determined by the trial court to be applicable under Section 95.11, Florida Statutes (1977).

Accordingly, we reverse and remand this cause for further proceedings consistent with these holdings.

      . “95.11 Limitations other than for the recovery of real property. — Actions Other than for recovery of real property shall be commenced as follows:

      (2) WITHIN FIVE YEARS.-
      $ $ * $ * *
      (b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument.

        (6) LACHES.-Laches shall bar any action unless it is commenced within the time provided for legal actions concerning the same subject matter regardless of lack of knowledge by the person sought to be held liable that the person alleging liability would assert his rights and whether the person sought to be held liable is injured or prejudiced by the delay. This subsection shall not affect application of laches at an earlier time in accordance with law.”


text:
    Elijah LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-782.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Bennett H. Brummer, Public Defender, and Lawrence E. Besser, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., BARKDULL, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

The life sentence, which was imposed by the trial court on March 28, 1980 and is now under review by this appeal, is reversed based on the authority of Troupe v. Rowe, 283 So.2d 857 (Fla.1973), and the cause is remanded to the trial court with directions to reinstate the original sentence imposed by the trial court on January 22,1980. The underlying judgment of conviction, however, is not attacked by the appellant on this appeal and is, accordingly, affirmed. This result shall be without prejudice to the state upon remand to proceed against the appellant for perjury or contempt of court, if appropriate, based on the appellant’s conduct in this cause. Hardwick v. State, 357 So.2d 265 (Fla.3d DCA 1978).

Affirmed in part; reversed in part and remanded.


text:
    D.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-924.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., BARKDULL, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. McArthur v. State, 351 So.2d 972 (Fla.1977).


text:
    LIDIA MARINE CORPORATION, Transvenezuelean Shipping & British Marine Mutual Insurance Association, Ltd., Appellants, v. Freddy Castellon CERDAS, Appellee.
    No. 80-1379.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and C. Douglas Skinner, Miami, for appellants.
    No appearance, for appellee.
    Before HUBBART, C. J., HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

This appeal is from a non-final order which denied the motion of the defendant, British Marine Mutual Insurance Association, Ltd., to dismiss the complaint as to that defendant upon the ground that there was a lack of jurisdiction over the person of the defendant. It appears from the record filed that the issue clearly falls within the rule stated in Caribe & Panama Investments, S. A. v. Christensen, 375 So.2d 601 (Fla. 3d DCA 1979) and Yachts v. Ray Richard, Inc., 347 So.2d 779 (Fla. 3d DCA 1977), in that the complaint does not sufficiently allege a jurisdictional basis for service on the nonresident defendant and the factual allegations of an affidavit of the defendant fully negated the conclusory allegations of the complaint and no evidentiary hearing was had. Therefore, the order is reversed.

Reversed.

      . The appellee has failed to file a brief.


text:
    SOUTH CAROLINA INSURANCE COMPANY, Appellant, v. Rolando PILOTO, Appellee.
    No. 80-1801.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellant.
    Robert A. Glassman, Miami, for appellee.
    Before HUBBART, C. J., HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Tropical Park, Inc. v. United States Fidelity & Guaranty Co., 357 So.2d 253, 256 (Fla. 3d DCA 1978).


text:
    INTERNATIONAL CENTER OF the AMERICAS, INC. and International Diversified Industries, Inc., Appellants, v. DADE FASHIONS, INC., Appellee.
    No. 80-1934.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Bartel & Shuford, Miami, for appellants.
    Britton, Cohen, Kaufman, Benson & Schantz, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

In an action at equity between these parties, appellant ultimately prevailed. Among costs assessed at the close of the proceedings was a $700 fee of a court-appointed monitor of disputed funds, charged to appellant.

In response to the contention that the prevailing party may not properly be made to bear any costs of a litigation, we quote the language of Wilhelm v. Adams, 102 Fla. 669, 136 So. 397, 398 (1931):

So it appears that the rule is well settled that in equity causes it. is within the province of the chancellor to make an order prorating the costs, if there appear facts or circumstances which would render it inequitable and unjust to require the losing party to pay the entire cost. This is a matter which is within the sound judicial discretion of the chancellor and, without having before us a transcript of the record upon which he based his conclusions in this regard, we certainly cannot assume to say that he abused that discretion.

Affirmed.


text:
    James Lee INGRAHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2228.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    James Lee Ingraham, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: OTT, Judge.

text:
    Paul Stanley SNOW, Appellant, v. STATE of Florida, Appellee.
    No. 79-1686.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Samuel Robert Mandelbaum, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

A jury found appellant guilty of sexual battery after the court denied a defense motion for mistrial. We reverse the conviction because the court failed to ascertain whether a violation of discovery requirements, which was the basis of the motion, was prejudicial.

At her pretrial deposition the complaining witness admitted that she was under the influence of alcohol and drugs the night she met appellant in a bar. She further admitted that after she had talked with appellant and drunk the drink he bought her, she had met an old boyfriend and had gone to his nearby home with him after several more drinks. There they drank some more, smoked marijuana and had sexual intercourse. On her way home she again encountered appellant and the acts occurred which are the subject of this prosecution-voluntary acts according to appellant, but coerced according to the complaining witness.

When quizzed about the identity of her old boyfriend, the witness professed to remember only that his given name was Bill. At trial, however, she gave his full name and testified that she had supplied that information to the State Attorney several days before trial. Defense counsel immediately moved for a mistrial, on the grounds that he had filed a proper demand for all evidence and witnesses known to the state which might negate appellant’s guilt or the credibility of the state’s witness, to which the state had responded that it had no such evidence, and that the state had never updated that response when it learned Bill’s complete name. The prosecutor denied having ever received the information, and the court summarily denied the motion.

We think that the facts of this case made it particularly essential that the court conduct a hearing to determine the degree of prejudice resulting from the withheld information. Whether the complaining witness did or did not give the name to the prosecutor before trial is not determinative of whether or not appellant was prejudiced. If appellant was prejudiced by the withholding of the information, the court could at least have ordered a continuance in the interest of fairness and justice. State v. Banks, 349 So.2d 736 (Fla. 3d DCA 1977). The evidence was such that the credibility of the complaining witness had been seriously impaired by her admission that she was quite intoxicated at the time in question. Tibbs v. State, 337 So.2d 788 (Fla.1979). Under those circumstances, the prejudicial effect of concealing evidence upon the issue of consent seems quite probable.

The judgment is reversed and the case remanded to the court below for a new trial.

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


author: DANAHY, Judge.

text:
    Donald W. HARTENSTEIN, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 80-53.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 1980.
    Alvaro Ruiz, Tampa, for appellant.
    James R. Parks and A. Robert Whaley, Tallahassee, for appellee.
   DANAHY, Judge.

In a case of first impression in Florida, we review a determination that appellant was self-employed and, therefore, not unemployed within the meaning of Florida’s unemployment'compensation law. An appeals referee reached that conclusion and denied appellant’s claim for unemployment compensation benefits. The Unemployment Appeals Commission affirmed the decision of the appeals referee and this petition for review followed. We grant the petition, set aside the order of the Commission, and remand the cause with directions to enter an order allowing appellant’s claim for benefits.

For two years appellant operated a one-man accounting and tax return firm while working full time as a bookkeeper in covered employment. For his one-man firm, appellant rented an office, obtained a business telephone, and engaged an answering service. He solicited business by placing ads in the newspaper and in the yellow pages of the telephone directory.

Appellant lost his job as a bookkeeper under circumstances which did not disqualify him for unemployment compensation benefits. He immediately began looking for other regular employment and obtained another job ten weeks later. During the interim ten-week period, he spent the majority of his time at his business office in order to answer telephone calls from potential customers. He did not, however, make any personal effort to obtain business. He secured two work assignments in response to his ads which together earned him $300. He claimed unemployment compensation benefits for those weeks between jobs other than the weeks in which he performed the work assignments.

Based on these facts, the appeals referee found that appellant was clearly self-employed and accepted regular employment to supplement his self-employment income. He ruled that, therefore, appellant was not unemployed during the period for which appellant claimed unemployment compensation benefits. We hold that the referee’s decision was incorrect as a matter of law.

We have no difficulty accepting the proposition that a self-employed person is not unemployed within the meaning of the unemployment compensation law. The law does not specifically so provide, but this is a fair interpretation of the law’s definition of unemployment. § 443.03(12)(a), Fla.Stat. (1979). The difficulty lies in determining the point at which self-directed work activity amounts to self-employment, though financially unsuccessful, for purposes of determining entitlement to unemployment compensation benefits.

The Commission urges upon us the hardline view of early decisions in Pennsylvania and New York that any work activity which is potentially profitable and of substantial proportions amounts to self-employment regardless of whether any remuneration is actually realized. That view reflects the attitude that persons engaged in such activity are not exposed to the rigors of unemployment which unemployment compensation law is designed to alleviate, and that unemployment compensation benefits should not be used to subsidize unprofitable business ventures. Those considerations were found to outweigh the possibility that ambitious and energetic persons might be penalized for their industry. Claim of Schreiber, 5 A.D.2d 745, 168 N.Y.S.2d 818 (1957); Meckes v. Unemployment Compensation Board of Review, 190 Pa.Super. 578, 155 A.2d 463 (1959); Gheder v. Unemployment Compensation Board of Review, 186 Pa.Super. 493, 142 A.2d 355 (1958); Annot., 65 A.L.R.2d 1182 (1959). Accord, Pedalino v. Board of Review, Division of Employment Security, Department of Labor and Industry, 83 N.J.Super. 449, 200 A.2d 351 (1964), cert. denied, 43 N.J. 129, 202 A.2d 702 (1964).

Other courts have taken a more flexible view that a person should not be penalized for temporary efforts to augment funds during a period of lay-off from regular employment, even though those efforts might be self-employment in the technical legal sense. We find that over the years the weight of authority has shifted to that view and away from the rigid rule adopted in Pennsylvania and New York. However, the courts adopting the more liberal attitude have used a variety of tests for determining what constitutes self-employment in the context of unemployment compensation laws. E. g., Cumming v. District Unemployment Compensation Board, 382 A.2d 1010 (D.C.1978), and Bolles v. Appeal Board of the Michigan Employment Security Commission, 361 Mich. 378, 105 N.W.2d 192 (1960) (genuine attachment to the labor market); Corwin v. Sunshine Mining Com pany, 96 Idaho 211, 525 P.2d 993 (1974) (measurement by specific criteria); Siddiqi v. Review Board of the Indiana Employment Security Division, Ind.App., 388 N.E.2d 613 (1979) (whether part time or full time); Watkins v. Board of Review of the Employment Security Division of the Labor Department, 191 Kan. 223, 380 P.2d 329 (1963) (primary interest); Chapman v. Employment Division, 32 Or.App. 127, 573 P.2d 755 (1978) (proportionate amount of time spent).

But we do not have to choose an overall rule to settle all cases, only a rule for the situation presented here-that in which an individual’s self-directed work activity is a continuation of activity engaged in while the individual was employed full time by another. Several courts have agreed that the continuation of such activity, in and of itself, does not constitute self-employment even though the individual devotes more time to it while laid off from his regular employment. Kleinwachter v. Department of Employment Services, 305 Minn. 568, 234 N.W.2d 822 (1975); Parent v. Administrator, Bureau of Unemployment Compensation, 84 Ohio App. 360, 171 N.E.2d 522 (1959); Gesualdi v. Board of Review of the Department of Employment Security, 118 R.I. 399, 374 A.2d 102 (1977); Johnson v. Board of Review of Industrial Commission, Department of Employment Security, 7 Utah 2d 113, 320 P.2d 315 (1958); Bartel v. Employment Security Department, 60 Wash.2d 709, 375 P.2d 154 (1962). No one of these cases agrees in its rationale with any other, but the common pattern of facts suggests a general rule. In each case the extent of the self-directed work activity changed only in that the individual devoted more time to it, sometimes full time, during the period of layoff from his regular employment, but there were no factors suggesting that the self-directed activity became the individual’s primary source of livelihood. We hold that in such circumstances, the activity does not constitute self-employment for purposes of unemployment compensation benefits.

We note that in 1959 Pennsylvania amended its law to soften the judicial rule in that state by providing specifically that an individual shall be deemed not engaged in self-employment by reason of continued participation without substantial change in activity undertaken while customarily employed by an employer in full-time work and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood. 43 Pa.Stat.Ann. § 802(h) (Purdon).

As noted above, the appeals referee in the case before us was of the opinion that appellant accepted regular employment to supplement his self-employment income. There is absolutely no evidence to support that conclusion; the opposite could be true. In the absence of any evidence of substantial change in appellant’s self-directed work activity after the loss of his regular job, other than his spending most of his time at his office, and in the absence of any evidence that appellant engaged in that activity as a primary source of livelihood during the period for which he claimed benefits, the appeals referee erred in deciding that appellant’s activity constituted self-employment.

Therefore, we set aside the order of the Unemployment Appeals Commission affirming the decision of the referee and remand with directions to enter an order allowing the benefits which appellant claimed.

OTT, A. C. J., and CAMPBELL, J., concur.


author: RYDER, Judge.

text:
    Roy HASLEM a/k/a Leroy Gatchet, Appellant, v. STATE of Florida, Appellee.
    No. 80-869.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 1980.
    Jack 0. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Roy Haslem a/k/a Leroy Gatchet was charged by information with (1) grand theft, (2) resisting arrest with violence and (3) battery on a law enforcement officer in violation of Sections 812.014, 843.01 and 784.07, Florida Statutes (1979). He was convicted as charged and appeals only his motion for judgment of acquittal as to the grand theft charge and the denial of a motion in limine to strike the “also known as” (a/k/a) phrase from the information. We find no merit whatsoever as to the appeal from the denial of the motion in limine, and thus affirm that portion of the appeal. We do find merit pertaining to the grand theft charge.

The testimony elicited during the jury trial revealed that a police officer Dunkle-berger was working part-time as a security guard in plain clothes at a K-Mart store approximately four days before Christmas. Manager Jack Thomas alerted him to the presence of two males in the shoe department who he thought were behaving suspiciously. Dunkleberger testified that as he approached the appellant, an employee conversed with the appellant and identified Dunkleberger as a police officer:

Dunkleberger further testified that the appellant later left the store, but before doing so, appellant left a torn bag of shoes inside the store in the custody of his brother and, in departing, asked his brother “to watch the bag for him.” Dunkleberger followed the appellant outside, informed him that he was a police officer and requested that he return to the store. An ensuing struggle followed which resulted in appellant being charged with resisting arrest with violence and battery on a law enforcement officer, which, as previously noted, are not relevant to this appeal.

The appellant testified that he had gone to the K-Mart store to make Christmas purchases and had selected seven pairs of shoes. As there were no shopping carts available due to the holiday crowds, the appellant had been given a bag by a K-Mart employee to carry the shoes to the check-out counter. After selecting the shoes, the appellant discovered that he had left his wallet in the car: He asked his brother to watch the bag of shoes which he left inside the store while he went outside to retrieve his wallet. Without warning, Dunkleberger grabbed him and asked him to return to the store. The appellant admitted struggling with the police officer, saying that he hadn’t done anything wrong and that they were not affording him a chance to explain that he had gone outside to get his wallet.

The issue of what would legally constitute theft from a store when the suspect never carried anything outside of the store is one which only scattered opinions throughout the United States have contemplated. Further complications arise when the store involved is a self-service one, as was the K-Mart store here.

The act of moving goods within a self-service store does not per se constitute a possession of those goods which is clearly adverse to that of the owners, from which intent to steal could be inferred. Therefore, courts have held that the burden of proof in establishing the intent to steal by a defendant is more onerous upon the prosecution where the offense alleged occurred inside a self-service store. Jones v. State, 55 Ala.App. 274, 314 So.2d 876 (Cr.App.1975); Groomes v. U. S., 155 A.2d 73 (D.C.1959). See Freeman v. Meijer, Inc., 95 Mich.App. 475, 291 N.W.2d 87 (1980); People v. Britto, 93 Misc.2d 151, 403 N.Y.S.2d 546 (Cr.Ct.1978). Cf. State v. Grant, 135 Vt. 222, 373 A.2d 847 (1977).

Nevertheless, an asportation of goods within a self-service store can be sufficient to prove a case of theft if the movement of the goods within the store is coupled with criminal intent which is most often shown by the fact that the suspect attempted to conceal the goods. People v. Bradovich, 305 Mich. 329, 9 N.W.2d 560 (1943); State v. Hauck, 190 Neb. 534, 209 N.W.2d 580 (1973). In a case addressed by this court in 1976, the suspects secreted garbage bags full of Zayre’s property under clothing racks within the store. We held that the actions of the suspects, when coupled with the fact that they had no money or credit cards, that they had repeatedly returned to the store and that they had secreted the clothes within the garbage bags underneath a clothing rack, constituted sufficient proof of criminal intent to steal. C. E. v. State, 342 So.2d 979 (Fla. 2d DCA 1976).

In the Britto case, the defendant put paper towels and other items in a brown paper bag belonging to the store, but also put six or seven ham steaks under his belt and stated when stopped at the door, “You got me-have the meat. I’m leaving,” Id. 403 N.Y.S.2d at 548. The New York court held that the placing of items within the store’s bag, when coupled with the concealment of the ham steaks under the belt and the confession to an employee at the door, constituted sufficient proof of criminal intent to steal the goods.

However, in another case, the defendant had put meat into a self-service grocery store’s own shopping bag and even though the defendant had also placed a baby blanket on top of the bag containing the meat, the court held that this was not concealment. The court stated additionally that it would be difficult to infer concealment where the defendant had acted in the same manner before and after he knew he was being observed by the store manager. Durphy v. U. S., 235 A.2d 326 (D.C.1967).

The only facts in the instant case from which a criminal inte it to steal could be inferred is the concealment of the shoes within the torn K-Mart bag. The problem with “concealment” here is that the tear actually allowed a casual observer a view to the bag’s contents. Unlike the facts in C. E., it was not shown that the appellant was without any funds with which to purchase the shoes. Unlike the facts in Britto, the appellant did not additionally conceal anything within his clothing, nor did he admit that he had been foiled in an attempt to steal the shoes.

Like the facts in Durphy, the appellant had placed store items within a K-Mart bag and acted in the same manner before and after he knew that Dunkleberger was observing him, indeed, appellant physically left the shoes in the custody of his brother with verbal instructions audible to all concerned.

There is no indication in the case at hand that the appellant did not intend to go through check-out procedures and pay for the shoes. To the contrary, there are indications that the appellant merely wanted to go out and retrieve his wallet from the car. It appears that the only thing the prosecution showed in this case was an authorized temporary possession of the store’s merchandise. Although the intent of a suspect is certainly an issue for the trier of fact, there was no substantial evidence from which criminal intent could have been inferred in this case. This is true particularly in light of the findings of other courts that there is a higher standard of proof upon the prosecution in self-service situations. Facts showing only suspicious possession within a self-service store have been held insufficient to demonstrate a theft. Britto, supra; Freeman, supra; Groomes, supra; Durphy, supra.

Because of the lack of evidence to support the intent element, we reverse the trial court’s denial of the motion for a judgment of acquittal in regard to the grand theft charge, and order the setting aside of the judgment of guilt and sentence thereon, and in their place the entry of a judgment of acquittal; otherwise, affirmed.

AFFIRMED in part; REVERSED in part and REMANDED with instructions.

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


author: SCHEB, Chief Judge.

text:
    Michael D. PATIERNO and William S. Ellis, Jr., Appellants, v. STATE of Florida, Appellee.
    No. 80-878.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 1980.

      John W. Boult, Tampa, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Does an employer’s refusal to pay an employee’s salary while the employee serves as a juror furnish a proper basis for holding the employer in contempt? We hold that it does not and reverse.

Robert Heilmann was empaneled as one of three alternate jurors for a criminal trial in circuit court. When Heilmann informed the trial court that he could not serve because his employers would not continue his salary during this service, the court excused him.

The court then ordered Heilmann’s employers, Michael D. Patierno and William S. Ellis, Jr., to show cause why they should not be held in contempt for refusing to continue Heilmann’s salary had he served as a juror. Subsequently, the court found Patierno and Ellis in contempt and fined each $150. Pa-tierno and Ellis challenge the court’s judgment.

In holding Patierno and Ellis in contempt, the court recognized that there was no statutory requirement in Florida that an employer continue an employee’s salary during jury service. The trial judge concluded, however, that

F.S. 40.271(1) provides no employee shall be dismissed from employment for any cause because of the nature or length of service on a jury .... By withholding payment of wages or salary during an employee’s jury service when they are the juror’s sole means of support is tantamount to a “threat of dismissal.”

There was no evidence to indicate that Pa-tierno and Ellis had threatened to dismiss Heilmann had he served as a juror. Moreover, contrary to the trial court’s conclusion, there is no basis for holding that Pa-tierno and Ellis’s refusal to continue Heil-mann’s salary was tantamount to a “threat of dismissal.” Finally, there was no evidence that Patierno or Ellis intended to embarrass, hinder or obstruct the court in the administration of justice or to lessen its authority or dignity. Thus, we cannot sustain the court’s finding that Patierno and Ellis were in contempt of court. See Ray v. State, 352 So.2d 110 (Fla.1st DCA 1977).

We sympathize with the plight of jurors, especially those with family obligations, who must forego their usual compensation and receive the minimal statutory compensation in order to serve as jurors. In Florida the legislature has provided for jurors to receive ten dollars per day and fourteen cents per mile for travel expenses while in attendance at court. § 40.24, Fla. Stat. (1979). To receive far less than the federal minimum wage, particularly in an extended trial situation, undoubtedly imposes a severe financial hardship on many jurors. A juror’s right to compensation, however, is purely statutory and a matter of legislative and not judicial prerogative. See Maricopa County v. Corp., 44 Ariz. 506, 39 P.2d 351 (1934); 50 C.J.S. Juries § 207 (1947). Therefore, the legislature may find it prudent to re-examine the statutory compensation for jurors.

We vacate the judgment of contempt against Patierno and Ellis.

OTT and DANAHY, JJ., concur.

      . We note that in 1978 the United States Congress re-examined federal juror compensation and raised it to thirty dollars from twenty dollars per day. 28 U.S.C. § 1871(b) (Supp.1979), as amended by Pub.L. No. 95-572, § 5, 92 Stat. 2454. Federal trial jurors also may, at the trial judge’s discretion, be paid an additional five dollars per day if they attend more than thirty days in hearing one case. Further, if the jurors are required to attend more than ten days of actual service, the judge may order their fees paid at the end of the first ten days and at the end of every ten days of service thereafter. Finally, federal jurors are not only entitled to mileage compensation but may be reimbursed for parking and toll charges as well. Id. §§ 1871(b)-(c).


author:
MARCUS, Justice. DENNIS, Justice, LEMMON, Justice.
     DENNIS, Justice, FEDOROFF, Justice ad hoc,

text:
    R. G. CLAITOR’S REALTY et al. v. Ray A. JUBAN et al.
    No. 65403.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    On Rehearing Oct. 20, 1980.

      Mack E. Barham, Charles F. Thensted, Barham & Churchill, New Orleans, Cordell Haymon, Haymon & Arbour, Ltd., Frank M. Coates, Jr., Taylor, Porter, Brooks & Fuller, Baton Rouge (Professor A. N. Yian-nopoulos, Baton Rouge, of counsel), for plaintiffs-applicants.
    E. Drew McKinnis, McKinnis, Juban, Bevan, Baton Rouge, for defendants respondents.
   MARCUS, Justice.

On August 21, 1970, Robert G. Claitor, Ray A. Juban and The Kroger Co. entered into a “Reciprocal Agreement” for the joint use of their adjoining properties as a shopping center. Claitor owned the westernmost parcel (Parcel No. 1); Kroger owned the center parcel (Parcel No. 2); Juban owned the easternmost parcel (Parcel No. 3). Subsequent to the execution of the agreement, Juban sold Parcel No. 3 to Ju-ban Properties, Inc. and Claitor acquired Lot No. 8, East Richland Estates, which is contiguous to and east of Parcel No. 3.

On August 12, 1975, Juban Properties, Inc. filed suit seeking a declaratory judgment affirming its right to construct a fence along the eastern boundary line of Parcel No. 3. Robert G. Claitor was named defendant. On May 19,1977, the trial court denied Juban Properties, Inc. a declaratory judgment. On December 28, 1977, the court of appeal reversed, rendering judgment in favor of plaintiff and against defendant “declaring that the construction of a fence along the eastern boundary of plaintiff’s property would not violate the Reciprocal Agreement.” We denied writs. Juban Properties, Inc. proceeded to construct the fence.

On June 16, 1978, the present action was filed seeking an injunction ordering defendants therein to remove the fence. Plaintiffs in this suit are Robert G. Claitor, his wife, Nancy M. Claitor, and R. G. Claitor’s Realty, a partnership in commendam that had acquired Lot No. 8, East Richland Estates, on December 30, 1976, during the previous litigation. Robert G. Claitor is the general partner of Realty; the partners in commendam are the separate trusts of his and his wife’s four children. Named defendants are Ray A. Juban, Juban Properties, Inc. and T.G.&Y. Stores Company, Inc., lessee of Parcel No. 3. On August 30, 1978, Louisiana National Bank of Baton Rouge (LNB) filed a petition of intervention as trustee of the Claitor children’s trusts, seeking removal of the fence. The trusts had acquired Parcel No. 2 from Realty on December 26, 1977; Realty had purchased it from The Kroger Co. on November 23,1977.

Defendants filed a peremptory exception of res judicata. Additionally T.G.& Y. filed an exception of no cause of action. The trial court overruled the exception of res judicata and took T.G.&Y.’s exception of no cause of action under advisement. Defendants then filed a motion for summary judgment on the ground that the petition, sworn affidavit accompanying the motion for summary judgment and the record of the previous suit showed that there was no genuine issue of material fact and that defendants were entitled to judgment as a matter of law. The trial court granted the motion for summary judgment filed by defendants Ray A. Juban and Juban Properties, Inc., dismissing plaintiffs’ suit against them, sustained the exception of no cause of action filed by defendant T.G.&Y. Stores Company, Inc., dismissing plaintiffs’ suit as to it, and further ordered that the intervention of LNB be dismissed. Plaintiffs appealed. The court of appeal affirmed. We granted certiorari to review the correctness of the decision of the court of appeal.

At the outset, we note that LNB, interve-nor and owner of Parcel No. 2, did not appeal from the judgment of the trial court dismissing its intervention. Plaintiffs alone have appealed; consequently, claims of LNB cannot be reviewed by this court. Daly v. Opelousas Ins. Agency, 181 La. 89, 158 So. 631 (1934); White v. Fifth Regular Baptist Church, 31 La.Ann. 521 (1879); Jenkins v. Stonebraker, 201 So.2d 698 (La.App. 2d Cir. 1967); Tillman v. Public Belt R.R. Comm’n, 42 So.2d 888 (La.App.Orl.1949).

We now proceed with the merits of plaintiffs’ appeal. Plaintiffs present three issues for our consideration: (1) whether the overruling by the trial court of defendants’ exception of res judicata established the law of the case and precludes a later finding of res judicata by the trial court; (2) whether a summary judgment can be granted based on a finding of res judicata; and (3) whether the facts of this case support a finding of res judicata.

The Code of Civil Procedure permits a reconsideration of the overruling of peremptory exceptions. La.Code Civ.P. art. 928; Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972); La.Code Civ.P. art. 1152, comment (b). The overruling of a peremptory exception is merely an interlocutory order and the court has the right, at any stage of the proceeding at which the objection was made, to set aside that decree and to sustain the exception, upon finding that it erred in overruling it. Babineaux v. Pernie-Bailey Drilling Co., supra; Labourette v. Doullut & Williams Shipbuilding Co., 156 La. 412, 100 So. 547 (1924); Register v. Harrell, 131 La. 983, 60 So. 638 (1912). Accordingly, in the instant case, the overruling of defendants’ exception of res judicata did not preclude the trial court from later reversing itself and sustaining the exception.

Plaintiffs next contend the trial court was without authority to grant a summary judgment based on a finding of res judicata. La.Code Civ.P. art. 966 provides that the plaintiff or defendant may move for a summary judgment in his favor and that the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

Defendants specially pleaded the exception of res judicata as required by La.Code Civ.P. art. 927; additionally, they effectively reurged the exception in the motion for summary judgment and the supporting affidavit. The record of the previous suit and the pleadings in this case are before the court. They present no genuine issue as to material fact concerning the applicability of res judicata. Therefore, should the facts support a finding of res judicata, defendants would be entitled to judgment as a matter of law. Accordingly, we have left only to consider whether the facts support a finding of res judicata.

The principles governing the content and application of res judicata are located in the section of the Civil Code concerning legal presumptions. One presumption drawn by the law attributes authority to the “thing adjudged” (which is a literal translation of the Latin “res judicata”) as proof of the existence or non-existence of certain facts. La.Civ.Code art. 2285. The “thing adjudged” consists

of that which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been confirmed on the appeal.

Id. art. 3556(31). Article 2286 details the requisites of a “thing adjudged”:

The authority of the thing adjudged takes place only with respect of what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

Thus, in determining whether plaintiffs’ right to have the fence removed in this case is a “thing adjudged” to which we must accord conclusive authority, we must first consult the former suit. Applying the principles of art. 2286, if there exist identical demands, causes and parties between the first suit and the present litigation, the “object of the [former] judgment” acquires the authority of the “thing adjudged,” and the legal presumption arising in defendants’ favor and appended to the “thing adjudged” bars its relitigation.

In the instant case, the thing demanded was the removal by defendants of a fence which they had constructed. In the first suit, the thing demanded was a declaration of the right of plaintiff therein to construct the same fence. Clearly, the same thing was demanded in both suits. See State ex rel. Guste v. City of New Orleans, 363 So.2d 678 (La.1978).

Next, we consider whether the cause upon which the demands in the two suits were founded are the same. Plaintiffs contend the causes are different for two reasons: (1) the first suit was a declaratory action, whereas the present suit is a posses-sory or petitory action; and (2) the first suit adjudicated only whether the Reciprocal Agreement created a servitude on Parcel No. 3 in favor of Parcel No. 1 and Lot No. 8 and the- present suit concerns servi-tudes created independently of the Reciprocal Agreement. ,

Plaintiffs’ first contention is without merit. The term “the same cause of action” in art. 2286 is a mistranslation. The article should read “the same cause.” Thus, the proper interpretation of art. 2286 requires a consideration of the broader concept of cause at civil law rather than the common law cause of action. Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Sliman v. McBee, 311 So.2d 248 (La.1975). Therefore, that the original suit was a declaratory action and the instant suit is a possessory or petitory action is of no moment here. Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810 (La.1974); Norah v. Crawford, 218 La. 433, 49 So.2d 751 (1950); Greenwood Planting & Mfg. Co. v. Whitney Central Trust & Savings Bank, 146 La. 567, 83 So. 832 (1920).

Plaintiffs’ second contention is also without merit, even though the final judgment in the first suit stated: “[C]on-struction of a fence along the eastern boundary of plaintiff’s [Juban Properties, Inc.’s] property would not violate the Reciprocal Agreement.” Juban Properties, Inc. v. Claitor, 354 So.2d 672 (La.App. 1st Cir. 1977). Our jurisprudence has rested on a solid foundation the rule that all the issues presented by the pleadings, and on which evidence has been offered, will be considered as disposed of by a final judgment in the cause, and that demands passed over in silence must be considered as rejected in the absence of a special reservation. Sewell v. Argonaut Southwest Ins. Co., 362 So.2d 758 (La.1978); Villars v. Faivre, 36 La.Ann. 398 (1884). In the instant case, the record in the first suit indicates the issue of servi-tudes created independently of the Reciprocal Agreement was presented by the pleadings and evidence was taken thereon. In particular, the petition of Juban Properties, Inc. alleged:

Plaintiff has not granted defendant or his property a servitude of any character upon plaintiff’s property and neither defendant nor his employees nor customers have any right to use plaintiffs property.

Robert G. Claitor’s answer denied the above allegation and further asserted:

Alternatively, Robert G. Claitor alleges that the property owned by Juban Properties, Inc. is subject to real rights burdening it, and in favor of Robert G. Claitor and the said Lot 8, East Richland Estates.
. .. [T]he Juban property is subject to a servitude or passage of way because of the reciprocal agreement ... and ... the erection of fence on any part of that servitude would impair the servitude, in violation of the reciprocal agreement.

The pretrial order reflects the same contentions, and the transcript of the trial reveals that evidence was adduced on these issues. Therefore, the existence of a servitude independent of the Reciprocal Agreement must be considered to have been rejected in the first suit. Accordingly, we find the demands in the instant suit to be founded on the same cause as in the first suit.

Lastly, we must consider whether the two suits are between the same parties. Clearly, Robert G. Claitor and Juban Properties, Inc. were parties to the original suit; thus, the judgment therein is res judicata as to them.

R. G. Claitor’s Realty was not actually a party to the original suit. However, this court has stated that, under the civil law doctrine, the ayants cause, or successors, of the parties of record are considered parties to the demand when they acquire title after the institution of the original suit in which judgment is rendered. Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399 (1965); Roach v. Craig, 124 La. 684, 50 So. 652 (1909); Hargrave v. Mouton, 109 La. 533, 33 So. 590 (1903); Delabigarre v. Second Municipality of New Orleans, 3 La. Ann. 230 (1848). Such is the case here. The first suit was instituted on August 12, 1975. Realty thereafter acquired Lot No. 8, rights of which were subject to the first suit, on December 30, 1976. Therefore, Realty must be considered to have been party to the original suit. As such, the judgment therein is res judicata as to it.

The remaining parties to the present suit, Nancy M. Claitor and Ray A. Juban, cannot be considered parties to the original suit. Hence, res judicata does not apply to them. However, La.Code Civ.P. art. 927 authorizes this court to notice on our own motion the peremptory exception of failure to disclose a right or interest in the plaintiff to institute the suit. Here, the pleadings fail to disclose the right or interest of Nancy M. Claitor to institute this suit. Therefore, her claims must be dismissed.

The petition states no claim against Ray A. Juban individually except that he erected the fence. However, the affidavit filed by defendants with their motion for summary judgment states that Juban Properties, Inc. and not Ray A. Juban individually erected the fence. This statement is not controverted by plaintiffs’ opposing affidavit. Additionally, he does not own any property subject to this litigation. Therefore, we find he is entitled to judgment as a matter of law dismissing plaintiffs’ claims against him.

DECREE

For the reasons assigned, the claims of Nancy McClellan Claitor are dismissed for failure to state a right or interest on her part to institute this suit. Otherwise, the judgment of the court of appeal affirming the trial court’s grant of summary judgment in favor of defendants, dismissing plaintiffs’ claims, is affirmed.

DENNIS, J., dissents with reasons.

BLANCHE, J., recused.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Our summary judgment procedure is based on Federal Rule 56(a)-{c). See La.C. C.P. art. 966, Official Revision Comment. When res judicata and collateral estoppel turn on disputed facts, courts do not use the summary judgment procedure to determine the issues raised. As a result, summary judgment has been denied when there was some question about the sufficiency of the relationship between the parties to the two actions, the validity of the former adjudication, the scope of the earlier decision, or the court had any doubt as to the application of res judicata. 10 Wright and Miller, Federal Practice & Procedure, § 2735, and authorities cited.

As evidenced by its initial ruling, the district court had grave doubt as to the application of res judicata to this case. Furthermore, in my opinion, there are serious questions as to the sufficiency of the relationship between the parties to the two actions and the scope of the earlier adjudication. These questions, therefore, should have been decided by trial and not by summary judgment.

There is serious doubt, also, that res judicata is applicable to this case. Transferees of particular objects, as distinguished from universal successors, are affected only by acts done by their transferors which concern the particular objects transferred; and that is true only as to such acts as are accomplished before the transfer takes place. Every transferee of a particular object or right has thus a double character, according to the time considered, that of ayant cause for the time before his acquisition, that of third party as to the time after that. 1 M. Planiol, Civil Law Treatise, § 304 (La.St.L.Inst.Transl.1959); 1M. Pothier on Obligations, § 56 (Evans transl.1853). Accordingly, in the present case, since the particular property involved was transferred before judgment in the first lawsuit, the transferees were not ayant causes, but were third parties insofar as that judgment is concerned. See Pothier, supra, at §§ 51 et seq.

ON REHEARING

LEMMON, Justice.

This is an action by R. G. Claitor’s Realty (Claitor’s Realty), a partnership which owned Lot 8 (shown on the attached sketch) when this suit was filed in June, 1978, to require Juban Properties, Inc. (Juban Properties) and Ray A. Juban (Juban), the current and former owners of adjoining Parcel 3, to remove a fence separating Parcel 3 from Lot 8. We granted certiorari to review the dismissal of the action by summary judgment.

I.

The right of the owner of Parcel 3 to build this fence was the subject of prior litigation. A review of the facts and issues involved in that suit is necessary to a knowledgable resolution of the present action.

In 1970 the owners of three adjacent parcels of property formulated plans to develop a shopping center. At the time Robert Claitor (Claitor) owned Parcel 1, The Kroger Co. (Kroger) owned Parcel 2, and Juban owned Parcel 3. (Claitor subsequently acquired Lot 8.) On August 21, 1970 these three parties executed a Reciprocal Agreement in which they mutually consented to plans and specifications regarding construction and location of stores, driveways, and a common parking lot. Specifically, the owner of Parcel 1 agreed to construct and maintain an unobstructed driveway along the western twenty feet of the property; the owner of Parcel 3 agreed to construct and maintain a driveway along the eastern fifteen feet of the property; each owner agreed to construct and maintain a continuous and unobstructed driveway for service vehicles across the rear of his property; each owner further agreed to construct and maintain a parking lot in the “Common Area” of his property between the stores and Perkins Road; and each owner granted to the other “a nonexclusive [sic] easement in the entire Common Area of Parcels # 1, # 2, and # 3, for use by pedestrians and vehicular traffic and the parking of automobiles by the business invitees, customers and employees of each, its tenants, successors or assigns”.

Significantly, the Reciprocal Agreement purported to affect Parcels 1, 2 and 3 and the rights and obligations of the owners of those properties only.

Later in 1970 Juban Properties acquired Parcel 3 from Juban.

After the parties had undertaken to perform their obligations under the Reciprocal Agreement, Claitor acquired Lot 8, adjacent to and east of Parcel 3, by two separate acts in 1971 and 1974, and thereafter constructed two buildings on Lot 8 (as shown on the annexed sketch). The building closest to Perkins Road contained seven stores which faced the parking lot on Parcel 3.

II.

In 1975 Juban Properties, as owner of Parcel 3, filed a petition for declaratory judgment against Claitor, as owner of Lot 8, seeking a declaration of Juban Properties’ right to construct a fence along the property line separating Parcel 3 and Lot 8. Juban Properties alleged that the location of the buildings on Lot 8 caused the customers and employees of the stores on Lot 8 to travel on the driveway and park in the parking lot Juban Properties had constructed on Parcel 3 pursuant to its obligations under the 1970 Reciprocal Agreement executed by Claitor, Kroger, and Juban’s ancestor in title. The petition further asserted that neither Juban nor Juban Properties had ever granted a servitude affecting Parcel 3 in favor of Claitor or of Lot 8 and that Claitor’s tenants on Lot 8 and their customers and employees had no right to use Parcel 3.

In his answer Claitor, without claiming any rights as owner of Parcel 1, asserted that the customers and employees of the stores located on Lot 8 had the right to use Parcel 3 for three reasons: (1) Parcel 3 was subject to a servitude of passage established in the Reciprocal Agreement in favor of the public, which would be impaired by erection of the fence; (2) Juban Properties was es-topped from questioning Claitor’s use of Parcel 3, because Juban Properties observed construction of the buildings on Lot 8 and did not object to Claitor’s use of Parcel 3 until the buildings had been completed, and (3) Juban Properties’ contract of lease of Parcel 3 created a servitude for parking and driveway in favor of “Claitor and adjacent properties”.

With the issues thus framed by the pleadings, the case proceeded to trial on March 3, 1977. At trial, however, Claitor added, over objection of opposing counsel, another basis for his right to use Parcel 3, testifying that Juban had given him verbal permission to use the driveway along the eastern property line of Parcel 3 and that he had constructed the buildings in reliance on that verbal permission.

Juban admitted he gave Claitor permission to use the service driveway between the store on Parcel 3 and Claitor’s rear building on Lot 8 after that building had been completed, since Claitor had no other access to the fenced parking area behind the rear building on Lot 8. Juban denied, however, ever giving Claitor permission to use the driveway between the front of the stores on Parcel 3 and Perkins Road. Moreover, neither Juban nor Claitor testified as to any discussion of Claitor’s right to use the parking lot on Parcel 3.

The trial court ruled that Juban had no right to erect a fence on the property line, reasoning that the fence would impair the fifteen-foot driveway servitude on the eastern boundary of Parcel 3. The court of appeal reversed on the basis that the driveway had been built twenty feet wide, in excess of the required width, and that construction of the fence on a few inches of the driveway would not violate the terms of the Reciprocal Agreement. See 354 So.2d 672. The court further observed that since the Reciprocal Agreement did not contemplate inclusion of Lot 8 in the shopping center project, there was nothing in the contract to prevent Juban from constructing a fence on the eastern boundary of his property. Although the issue was clearly before the court, the decision did not discuss either the factual issue of whether Juban gave Claitor verbal permission to use the driveway or the legal issue of the effect of Juban’s verbal permission (if given) and of Claitor’s construction in reliance on that permission.

This court denied Claitor’s application for certiorari on March 27,1978. 356 So.2d 440.

III.

Armed with the definitive declaratory judgment, Juban Properties erected the fence in June, 1978. Several dáys later Claitor’s Realty and Mr. and Mrs. Claitor filed suit against Juban, Juban Properties, and the lessee of parcel 3, seeking a judgment recognizing plaintiffs’ right to possession and restoring them to possession, and further seeking a mandatory injunction to require removal of the fence. In the petition plaintiffs asserted that Juban Properties’ contract of lease of Parcel 3 created “real rights of possession ... in favor of other estates and for third parties who are now possessing and have possessed for years quietly and peacefully”; that plaintiffs “own and possess conventional servi-tudes and real rights over [Parcel 3]”; that Juban and Juban Properties have no right to erect a fence on Parcel 3 and “no right of possession in said property”; that the fence impairs the conventional servitude established in the Reciprocal Agreement; that the fence is a disturbance of plaintiffs’ possession of the servitude; that plaintiffs and their assigns were in possession of the property without interruption for more than one year immediately prior to the recent disturbance; that the erection of the fence destroyed ingress and egress to and from adjoining properties; that the fence “obstructs and intrudes upon the right of petitioners and others claiming under them for full use and possession of the premises which they possess under the reciprocal agreement”; and that “[pjarties on the adjoining property who claim under petitioner have been forcibly evicted and ejected from their right of possession, and possession, ingress and egress which has accrued to them by virtue of said grant by defendants”.

Juban and Juban Properties filed exceptions of res judicata and estoppel by judgment, which were overruled.

Juban and Juban Properties then filed a motion for summary judgment. In support of the motion Juban, individually and as corporate officer, filed an affidavit stating that the corporation alone erected the fence pursuant to the final judgment in the earlier suit. They also filed the judgment and entire record in that suit.

Claitor filed a counter affidavit stating that in numerous conversations prior to construction on Lot 8 Juban indicated the driveway on Parcel 3 would be available for his tenants and their customers; that those conversations created a right for the use of the driveway; that numerous persons told him Juban had made statements of similar import; and that these statements had been repeated in correspondence between Juban and his lessee.

The trial court granted the summary judgment and dismissed plaintiffs’ suit, reasoning that the fence constructed in accordance with the definitive declaratory judgment did not constitute a disturbance entitling plaintiffs to institute a possessory action. The court of appeal affirmed in an unpublished opinion which essentially reiterated the trial court’s reasoning. This court granted plaintiffs’ application for cer-tiorari. 375 So.2d 947.

IV.

In brief in this court plaintiff argues that this suit is based on two claims separate and distinct from those presented in the first suit: “(1) Juban’s disturbance of plaintiffs’ possession of the servitude, created by the Reciprocal Agreement, over Lot 3, in favor of Lot 2, which plaintiffs had purchased in 1977, and (2) Juban’s disturbance of plaintiffs’ possession of a servitude over Lot 3, in favor of Lot 8, arising out of the subsequent agreement of 1974.”

As to plaintiffs’ rights under the Reciprocal Agreement as owner of Parcel 2, they have no right, as a matter of law, to object to the erection of the fence. The Reciprocal Agreement granted the owners of Parcels 1, 2, and 3 rights which were pertinent to the use of the property within the perimeter of those parcels and to access to the bordering streets. The right of access across Parcel 3 to Lot 8 was not mentioned in the agreement, and there was no indication the parties intended to have free access to Lot 8 as part of the shopping center project.

On this issue there was no genuine issue as to material fact, and defendants are entitled to judgment as a matter of law. The lower courts properly rendered a summary judgment rejecting that claim by plaintiffs.

Plaintiffs’ second and principal claim is that a servitude over Parcel 3 in favor of Lot 8 was created by a verbal agreement subsequent to the Reciprocal Agreement. Claitor’s assertion of a servitude created by a verbal agreement was rejected, at least implicitly, by the lower courts in the first suit (although the issue was argued in brief in both courts), and the crucial question is whether the matter may be relitigated.

A plea of res judicata may be raised by motion for summary judgment when there is no genuine issue as to any material fact. Here, there is no dispute as to the facts necessary to determine the identity of the parties, the thing demanded, and the cause or ground on which the demand was founded in each suit. C.C. art. 2286. The determination of the plea of res judicata in this case is thus purely a question of law.

The thing demanded in the first suit was a declaration of Juban Properties’ right to construct a fence. Claitor resisted by demanding a declaration that Juban Properties had no right to do so. In the present action the thing demanded is removal of the fence, on the. basis that Juban Properties had no right to construct the fence. We conclude that the thing demanded was the same in both suits.

The cause or ground for the thing demanded was also the same in each suit. In the first suit the owner of Lot 8 asserted his right to unobstructed access to Parcel 3 arising from the 1970 Reciprocal Agreement, or from Juban Properties’ contract of lease, or as the consequence of a verbal agreement subsequent to the Reciprocal Agreement. In the present action the owner of Lot 8 again asserts the right to unobstructed access to Parcel 3 (and the resulting right to remove the fence) as the consequence of the same alleged verbal agreement, but now argues for the first time that the verbal agreement, confessed by Juban under oath in a deposition, created a servitude under C.C. art. 2275.

While the reference to C.C. art. 2275 is a new argument for the creation of a servitude by an alleged verbal agreement subsequent to the Reciprocal Agreement, the issue of whether that verbal agreement (if proved) created a servitude was fully litigated in the first suit. Any servitude rights arising from the verbal agreement cannot now be relitigated.

Identity of parties presents a slightly more difficult problem. However, Claitor was sued in the original action as the owner of Lot 8. Although he conveyed Lot 8 to a partnership consisting of himself, his wife, and family trusts between the filing of the suit and the trial, he did not substitute the partnership (a partnership in commendam in which he was the general partner) and apparently did not reveal the fact of the conveyance prior to trial. And at trial he stipulated that the change of owners by donation to family trusts would not be a defense to the suit seeking a declaration of the right to construct a fence.

The partnership that owned Lot 8 at the time of the first trial was the plaintiff in the second suit. Since Claitor (a defendant in the first trial) was a general partner of the partnership, and since the other partners were his wife (a witness in the first trial) and the trustee of the four trusts he created during the course of the first litigation, we conclude that all plaintiffs in this suit had actual notice of the first suit, although Juban Properties did not file a notice of lis pendens. We further conclude that the parties in each suit are the same for the purpose of the plea of res judicata.

For these reasons and the reasons stated in our original opinion, we reinstate our original decree affirming the judgments of the court below.

ORIGINAL DECREE REINSTATED.

DENNIS, J., dissents for additional reasons and the reasons assigned by him on original hearing.

CALOGERO, J., concurs for reasons assigned by FEDOROFF, J. ad hoc.

FEDOROFF, J. ad hoc, concurs and assigns reasons.

BLANCHE, Justice, recused.

ON REHEARING

DENNIS, Justice,

dissenting.

I respectfully dissent for the reasons originally assigned and for additional reasons. The combined effect of the majority on rehearing and the concurring opinion unjustifiably weaken or nullify recent holdings of this Court.

In Welch v. Crown Zellerbach, 359 So.2d 154 (La.1978) we held that collateral estop-pel is a doctrine of issue preclusion alien to Louisiana law. In the present case this Court retreats from that position by precluding litigation of an issue without there being an identity of the parties or the causes.

In Mitchell v. Bertolla, 340 So.2d 287, 291 (La.1976), this Court held that “cause” is defined as “the juridical or material fact which is the basis of the right claimed, or the defense pleaded,” which may be likened to the ground or theory of recovery. Under this holding, the cause in the present case is not identical to that litigated before. Justice Lemmon’s opinion concedes that the legal effect of Civil Code article 2275 was not raised until the second suit. However, he maintains that the effect of any alleged verbal permission by Juban for Claitor to use the servitude was finally decided in the first suit. But this cannot be so, because proof of an extrajudicial admission that such permission was given does not have the same legal effect as an in-court confession under oath of such permission by Ju-ban. Thus, by asserting a cause under Civil Code article 2275, plaintiffs have raised a new ground or theory of recovery. If we remain true to what we said in Mitchell v. Bertolla, supra, the plaintiff should be given a chance to have Juban admit under oath that a servitude was given which is being infringed by his fence.

Justice Pedoroff’s concurring opinion correctly points out that the transferee partnership, which is a separate legal entity from Claitor, was not joined as party as might have been done under Code of Civil Procedure article 807. However, he and the majority erroneously state that Claitor “stipulated” that the partnership would be “bound.” Claitor did not say anything. His lawyer said that the transfer would not be raised in “defense” in the first suit. However, the lawyer was not authorized to represent or stipulate for the transferee partnership that was not a party to the litigation. Furthermore, the transfer was not raised in defense of the first suit and the stipulation fell short of joining or substituting the transferee partnership as a party in that suit which requires amendment of the pleadings and service of a copy thereof and court orders on the partnership. See La.C. C.P. art. 807, comment (b).

Accordingly, the transferee partnership was not a party to the first case, and since the particular property involved was transferred before judgment in the first lawsuit, the transferee was not an ayant cause, but was a third party insofar as the judgment therein is concerned. 1 M. Planiol, Civil Law Treatise, § 304 (La.St.L.Inst.Transl. 1959); 1 M. Pothier on Obligations, § 56 (Evans Transí.1853).

FEDOROFF, Justice ad hoc,

concurring.

Plaintiffs argue that the Claitor partnership, having acquired under particular title, before judgment, was not an ayant cause bound by that judgment. They argue further that absent recorded notice of the suit, the partnership acquired ownership free from the effect of the eventual judgment.

C.C.P. Art. 807 was designed to solve this problem. It provides:

When a party to an action transfers an interest in the subject matter thereof, the action shall be continued by or against such party, unless the court directs that the transferee be substituted for or joined with the transferor.

Claitor was on the witness stand when he first disclosed that he had donated the property to the partnership after the suit had been filed. At this point Art. 807 would have come into play. But Claitor, through his Attorney, stipulated that this transfer would not be used as a defense. Claitor was speaking as much for the partnership, as its general partner, as for himself individually. The partnership, as record owner of the property, had a greater interest in a prompt (and hopefully favorable) resolution of the suit than did Claitor individually. The agreement clearly meant that the partnership was to be bound by whatever judgment was rendered. It could have no other meaning.

Claitor had complete authority to speak for the partnership. As the only general partner, he was vested (by Art. 10 of the Articles) with:

“.full power to:
a. manage the property;
c. sell, transfer, assign, convey, lease, sublet, Mortgage or otherwise dispose of or deal with all or any part of the property except as otherwise agreed among the Partners.”

In fact, only Claitor could so bind the partnership. Art. 10 concludes:

“The Partners in Commendam shall not participate in the management or control of the Partnership’s business, nor shall they transact any business for the Partnership, said powers being vested solely and exclusively in the General Partner.”

Juban and the Court accepted this stipulation and proceeded without adding the partnership as a defendant. Having induced such reliance, the partnership cannot now be heard to repudiate the stipulation.

      . 354 So.2d 672 (La.App. 1st Cir. 1977).

      . 356 So.2d 440 (La.1978).

      . Plaintiffs have neither assigned as error nor briefed in this court or in the court of appeal the dismissal of T.G.&Y. on its exception of no cause of action. The only mention in the court of appeal’s decision of T.G.&Y.’s dismissal is in a footnote stating that the exception was sustained by the trial court and plaintiffs’ claim against T.G.&Y. was dismissed. Accordingly, we consider plaintiffs to have abandoned any objections concerning T.G.&Y.’s dismissal. Moosy v. Huckaby Hosp., Inc., 283 So.2d 699 (La.1973); Wier v. Grubb, 228 La. 254, 82 So.2d 1 (1955); State v. New Orleans Parkway Comm’n, 215 La. 779, 41 So.2d 678 (1949). In any event, we consider T.G.&Y.’s exception of no cause of action to have been properly sustained.

      . 375 So.2d 947 (La.1979).

      . The motion for summary judgment states in part:
      On motion of defendants, . . . and on suggesting to the Court that the defendants are entitled to a summary judgment on the grounds that the plaintiffs’ petition, the sworn affidavit with defendants’ motion and the entire record of the proceeding entitled 'Juban Properties, Inc. v. Robert G. Claitor,’ No. 184, 274, Division ‘D’ of the 19th Judicial District Court for the Parish of East Baton Rouge, Louisiana, which are made a part of defendants’ motion, show that there is no genuine issue as to material fact and that movers are entitled to a judgment as a matter of law ....

      . The supporting affidavit provides in part:
      The fence that is the subject of plaintiffs’ petition was erected by Juban Properties, Inc.., pursuant to a final judgment rendered in the case of 'Juban Properties, Inc. v. Robert G. Claitor,' No. 184,274.

      . Additionally, we note that the following stipulation was made at the trial of the first suit:
      Q [Mr. McKinnis, Juban Properties, Inc.’s attorney].
      Now, you said something a minute ago about not owning Lot 8 now. Would you explain -that?
      A [Claitor]. Yes, I donated it-Strike that please. We formed a family partnership about December the 31st-
      MR. SCHROEDER [Claitor’s attorney]: This is immaterial, Your Honor.
      MR. McKINNIS: We are willing to stipulate that any donation that he has made to the family and so forth has nothing to do with this case so long as they don’t intend to use it as a defense.
      MR. SCHROEDER: We so stipulate.
      Transcript at 38. In view of our holding above that Realty must be considered to have been a party to the original suit because it acquired Lot No. 8 after that suit was instituted, we need not consider the effect of this stipulation.

       The Honorable Gerald P. Fedoroff participated in this decision as an Associate Justice pro tempore.

      . This was the only reference in the petition to the Reciprocal Agreement, perhaps because the suit was directed against the owner of a lot that was not included in that agreement. The fact that an original party to the Reciprocal Agreement (Claitor) also owned Lot 8 at the time of suit was an insignificant coincidence, since Claitor was sued only as owner of Lot 8 (which could just as well have been owned by a stranger to the agreement). Stated otherwise, Claitor enjoyed no special status as owner of Lot 8 because of the fact that he also owned Parcel 1 when the Reciprocal Agreeméht was executed. His rights as owner of each lot are unrelated and should be considered separately.

      .By the time of trial Claitor had conveyed an undivided interest in Lot 8 to the trustee of four trusts he created in favor of his children, and Claitor’s Realty (a family partnership composed of Claitor, his wife, and the trusts) had subsequently acquired full title to Lot 8 from the trustee and from Claitor. At trial, however, the parties stipulated that the donation Claitor made to his family would not be raised as an issue in the case.

      . Juban Properties’ counsel objected on the basis that Claitor could not acquire the servitude by estoppel. The trial court permitted introduction of the evidence subject to that objection.

      . The trustee of the trusts established by Claitor intervened and adopted plaintiffs’ position.

      . The lessee filed an exception of no cause of action. The trial court maintained the exception and dismissed the lessee from the suit. Dismissal of the lessee was not assigned as .error in this court.

      . The transcript of testimony in another suit may be filed in support of a motion for summary judgment in order to establish that there is no genuine issue as to material fact. C.C. art. 966.

      .In 1977 (after trial of the first suit) Claitor’s Realty acquired Parcel 2 from Kroger and then conveyed Parcel 2 to the trustee of the Claitor children’s trusts.

      . Actually, the trustee of the trusts failed to appeal from the adverse judgment of the trial court. That judgment arguably has required the authority of the thing adjudged as to the trustee.

      . Tr. 38, 39:
      Q (Mr. McKinnis, Juban Properties, Inc.’s attorney). Now, you said something a minute ago about not owning Lot 8 now. Would you explain that?
      A (Claitor). Yes, I donated it-Strike that please. We formed a family partnership about December the 31st_
      MR. SCHROEDER (Claitor’s attorney): This is immaterial, Your Honor.
      MR. McKINNIS: We are willing to stipulate that any donation that he has made to the family and so forth has nothing to do with this case so long as they don’t intend to use it as a defense.

      MR. SCHROEDER: We so stipulate.