author: JASPER E. JONES, Judge.

text:
    In re SUCCESSIONS of Levy JOHNSON, Eddie Johnson, Mack Johnson and Nancy Johnson Middleton, Lehman Johnson, Plaintiffs-Appellants, v. Artis WILLIAMS, Lou Williams, Johnny Gaddis, Jr., Agnes Saulsberry and Millie Jackson, Defendants-Appellees.
    No. 14210.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.

      Jones, Jones & Jones by Benjamin Jones, Monroe, for plaintiffs-appellants.
    McIntosh, Fox & Lancaster by John M. Lancaster, Oak Grove, for defendants-ap-pellees.
    Before HALL, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

Plaintiff, Lehman Johnson, Administrator of the Succession of Nancy Johnson Middleton, appeals a judgment upholding the validity of the last will and testament of Nancy Johnson Middleton which he had sought to invalidate in this declaratory judgment action. We amend the judgment and affirm.

Nancy J. Middleton and her brother, Mack Johnson, were the only children of Levy and Eddie Johnson. Levy and Eddie died intestate owning a 40 acre tract of land in West Carroll Parish leaving as their sole heirs Nancy and Mack. Nancy and Mack each inherited an undivided one-half interest in the 40 acre tract. Nancy died in 1964 without issue. She left a will which granted certain tracts to Artis Williams, Lou Williams, Johnny Gaddis, Jr., Agnes Saulsbury, and Jim Johnson. The bequests totaled 20 acres. The bequests read as follows:

“I own twenty (20) acres of land near Darnell, Louisiana, in Section 27, Township 20 North, Range 10 East.
I give and bequeath to Artis Williams the West four (4) acres of the Northwest five (5) acres of my land.
I give and bequeath to Lou Williams the East one (1) acre of the Northwest five (5) acres of my land.
I give and bequeath to Johnny Gaddis, Jr. the Northeast five (5) acres of my land.
I give and bequeath to Agnes Sauls-bury the East six (6) acres of the South half of my land.
I give and bequeath to Jim Johnson the West four (4) acres of the South half of my land.
If it should be determined that I own more or less than twenty (20) acres, then it is my desire that the said legatees shall receive the same proportion of the total as the acreage willed to them bears to twenty (20) acres, to be located as near as possible in the same positions as herein-above stipulated.”

At the time of her death Nancy owned only an undivided one-half interest in the 40 acres though the legacies in her will seemed to indicate she believed she owned 20 acres in full ownership.

Lehman Johnson, as appointed administrator of the succession, contends the bequests amounted to a donation of property belonging to another and, therefore, under LSA-C.C. art. 1639 the bequests are null and void.

The trial court did not agree with plaintiff’s contention. It applied the maxim that a will should be given effect if at all possible and found the testatrix’s intent readily ascertainable. The trial court also relied upon Succession of Marion, 163 La. 734, 112 So. 667 (1927), which upheld a bequest purporting to bequeath full ownership in movable property in which the testatrix only owned an undivided interest.

The issue on appeal is whether these particular dispositions should be given effect or whether the 20 acres should pass intestate.

The Louisiana jurisprudence preponderates in favor of upholding a will if at all possible. In order to interpret a will the testator’s intention must be ascertained without departing from the proper significance of the terms of the will. LSA-C.C. art. 1712. Moreover, a disposition must be understood in the sense in which it can have effect rather than that in which it can have no effect. LSA-C.C. art. 1713. All rules of testamentary interpretation are only means to the end that courts must endeavor to determine the testator’s intent. If there is a choice between two interpretations-one which will effectuate the disposition and the other defeat it-the court interprets the testator’s intent to effectuate the bequest. The law presumes that the testator intends to dispose of all of his estate in the will if the will contains no declarations to the contrary. These principles of interpretation were all sanctioned in Carter v. Succession of Carter, 332 So.2d 439 (La.1976), as reflected from the following quote from the opinion at pages 441-442:

“Principally, courts must endeavor to ascertain the testator’s intention. All other rules are only means to that end. Succession of La Barre, 179 La. 45, 153 So. 15 (1934); Succession of McBurney, 165 La. 357, 115 So. 618 (1928); Succession of Blakemore, 43 La.Ann. 845, 9 So. 496 (1891). The function of the court is to determine and carry out the intention of the testator if it can be ascertained from the language of the will. Succession of Wilcox, 165 La. 803, 116 So. 192 (1928).
‘This intention must be ascertained from the whole will, and effect must be given to every part of the will as far as the law will permit. No part of a will should be rejected, except what the law makes it necessary to reject. Where it is a question of the choice between two interpretations, one of which will effectuate, and the other will defeat, a testator’s intention, the court will carry out the intention of the testator.
“There is also another rule which is invariably followed by the courts in interpreting a will; namely, that, if possible, the will should be read so as to lead to a testacy, not to an intestacy.” Succession of La Barre, supra, 179 La. at page 48, 153 So. at page 16.’
In the absence of contrary expressions, the law presumes that when a will is executed the testator intends to dispose of his entire estate. Succession of Killingsworth, 292 So.2d 536 (La.1973); Succession of Montegut, 211 La. 112, 29 So.2d 583 (1947); Succession of Fertel, 208 La. 614, 23 So.2d 234 (1945). And the cases have recognized that in the interpretation of wills, the first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. The testator is not supposed to be propounding riddles, but rather to be conveying his ideas to the best of his ability so as to be correctly understood at first view. Succession of La Barre, supra; Succession of Bobb, 41 La.Ann. 247, 5 So. 757 (1889).”

See also Succession of Bel, 377 So.2d 1380 (La.App. 4th Cir. 1979), and Succession of Griffin, 366 So.2d 1029 (La.App. 1st Cir. 1978).

The only Louisiana case that construed LSA-C.C. art. 1639 in connection with a contention that a bequest of full ownership was a nullity when the testator only owned an undivided interest is the Succession of Marion, supra. Here the testatrix’s disposition in her will left all her diamonds and gold jewelry to Father Martin. Some of this jewelry was owned by the testatrix in full ownership; however, the remainder had been inherited from her mother and was owned in indivisión by the testatrix and her two brothers. The two brothers (the plaintiffs) contested the validity of the disposition to Father Martin. Plaintiffs relied upon LSA-C.C. art. 1639 to argue for annulment of the bequest of the jewelry. The supreme court found plaintiffs had an undivided one-half interest in the jewelry that was owned by the mother. The court held the testatrix had the right to dispose of her one-half interest in this jewelry. The court stated 112 So. at p. 669:

“Whatever interest she owned in them [the jewelry] she conveyed by the will. Where one owns property in indivisión with another, and bequeaths the entire property to some third person, the disposition to the extent of the testator’s ownership is valid, unless the disposition is so worded as to prevent its being executed in part.”

The trial court in its reasons for judgment construed the decedent’s will as follows:

“It is an unassailable maxim that in Louisiana the Courts should and must give effect to all testaments if at all possible and the intent of the testator can be discerned. Certainly the intent of the testatrix in this case can be ascertained for she inserted the following clause, to-wit:
‘If it should be determined that I own more or less than twenty (20) acres then it is my desire that the said legatees shall receive the same proportion of the total as the acreage willed to them bears to twenty (20) acres, to be located as near' as possible in the same positions as hereinabove stipulated.’
Thus testatrix recognized that she might not be able to bequeath specific acreage, but that she intended for the legatees to have the same proportion in the whole that her specific bequest bears to twenty (20) acres. In Succession of Marion, 163 La. 734, 112 So. 667 (1927), the Louisiana Supreme Court specifically recognized the validity of a will purporting to bequeath specific property in which the testatrix only owned an undivided interest, and the case states that such a disposition should be given effect to the extent of the undivided interest unless the disposition is so worded as to prevent its being executed in part. Certainly that is not the case here, and the Court upholds the validity of the testament insofar as it relates to the undivided interest of the testatrix. Thus the above named legatees will take, respectively, 4/2o, V20,5/2o, %o and V20 of her estate.”

The language used in the will evidences the testatrix’s intent to give to each of the legatees a proportional share in the 20 acres so that her entire interest in the total 40 acres would be given to the named legatees. The paragraph in her will stating that the legatees should receive the same proportion of the total as the amount willed them bears to 20 acres (should she be determined to own more or less than 20 acres) shows her intent was to give away her entire interest in the 40 acres.

We find that the interpretation of the trial court carried out the testatrix’s intent to bequeath to the named legatees all of her land in the proportions which she had allotted in her own special bequests and though the trial court found it impossible to give whole ownership to each legatee at the location specified by the testator this possible eventuality was recognized by the testator when she said “to be located as near as possible in the same positions as herein-above stipulated”. The trial court’s reasons for judgment have complied with the mandate of LSA-C.C. art. 1713:

“A disposition must be understood in the sense in which it can be given effect, rather than that in which it can have none.”
The judgment appealed from only stated:
“IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of defendants upholding the validity of the last will and testament of Nancy Johnson Middleton and dismissing the plaintiff’s suit at his cost.”

and failed to include the interpretation of the bequests contained in the written reasons of the trial judge which we have here approved, and for that reason we recast the judgment appealed from by adding the following paragraph to it:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the will of said decedent’s bequeaths unto the following legatees in the proportions set forth by their name:
Artis Williams-y2oths
Lou Williams-Vfeoth
Johnny Gaddis, Jr.-5/2oths
Agnes Saulsbury~6/2oths
Jim Johnson-4/2oths
the decedent’s undivided interest in the following described property:
Commencing at the N.E. corner of the N.E. one-fourth of the Southwest Quarter of Section 27, Township 20 North of Range 10 East and running West three chains to the place of beginning, then South 20 chains, thence West 20 chains, thence North 20 chains, thence East 20 chains to the place of beginning, lying and being in the Parish of West Carroll, Louisiana, in the district of lands north of Red River all in section 27 (T 20 N-R 10 E) containing 40 acres more or less.

As AMENDED the judgment is AFFIRMED at appellant’s costs.

      . LSA-C.C. art. 1639-When the testator has bequeathed a thing belonging to another person, the legacy shall be null, whether the testator knew or know [knew] not that the thing did not belong to him.

      . LSA-C.C. art. 1712-In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.

      .LSA-C.C. art. 1713-A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    Curtis ELLIOTT et al., Plaintiffs-Appellees, v. AETNA CASUALTY AND SURETY COMPANY et al., Defendants-Appellants.
    No. 7657.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1980.
    See also, La.App., 387 So.2d 1388 and 387 So.2d 1389.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for plaintiffs-appellants.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees.

      William Henry Sanders, Jimmie C. Peters, Jena, John King, Baton Rouge, for plaintiffs-appellees.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   STOKER, Judge.

This is one of three cases consolidated on appeal in this court. The appellants Reginald Murrell and Aetna Casualty and Surety Company complain of the trial court’s action in sustaining certain peremptory exceptions filed in response to a reconventional demand and various third party demands filed by them. Exceptions were filed in each suit. The exceptions are primarily based on releases which were given as a result of compromise settlements. These exceptions are denominated as exceptions of res judicata, no right of action and no cause of action.

Reginald Murrell (Murrell) and Aetna Casualty and Surety Company (Aetna) are original defendants in each of the three consolidated cases here and in two of them are the only defendants. Murrell and Aet-na seek to bring in the other parties, including State Farm Mutual Automobile Insurance Company (State Farm) in order to establish entitlement to a reduction of any recovery plaintiffs may be granted. This claim for reduction is based on a release given for any liability based on the alleged negligence of Deborah L. Elliott (an alleged joint tortfeasor). In the alternative appellants seek contribution in the event that it is shown that someone else other than Deborah L. Elliott was the driver of a van she was allegedly driving at the time of the accident which gave rise to these suits. Deborah L. Elliott was killed in the accident. In these particular suits the plaintiffs have not sued the parents of Deborah or her insurer. (The Elliotts, parents of Deborah, could have sued State Farm inasmuch as their minor son, Randy L. Elliott, was injured in the accident).

The theory of Murrell and Aetna is that if Deborah L. Elliott was in fact driving the van in question, which was insured by State Farm, then any recoveries must be reduced to one-half because the plaintiffs have given releases to everyone who might be liable as a result of any negligence of Deborah L. Elliott which contributed to the cause of the accident. On the other hand, Murrell and Aetna contend that there is a factual question as to whether Deborah or one of two other persons, Randy L. Elliott or Robert D. Gustafson, was driving. As to Randy and Robert, Murrell and Aetna contend that no releases have been given. Therefore, if the evidence on trial should show that one of these persons was the driver of the van and was a joint tortfeasor with Murrell, then Murrell and Aetna are entitled to contribution from the driver, anyone vicariously liable for the driver’s tort, and the driver’s omnibus insurer, State Farm.

The reconventional demand and third party demands were brought by Murrell and Aetna to properly position them for the relief they seek from the standpoint of pleading and to bring into the suit the proper parties from whom they seek contribution.

There has been no trial on the merits, and in considering the exceptions we deal here with allegations of fact only. Quite obviously, it is necessary to set forth what the parties allege to be the facts in order to understand the arguments and contentions relative to the exceptions. Therefore, we will outline in some detail the various allegations and set forth the alignment of the parties.

ALLEGATIONS OF FACT AND ALIGNMENT OF THE PARTIES

On January 23, 1978, a van being driven by Deborah L. Elliott was traveling on Louisiana Highway 127 in LaSalle Parish, Louisiana. The vehicle was owned by the driver’s parents, Mr. and Mrs: Curtis Elliott, and was insured for liability with State Farm Mutual Automobile Insurance Company. At approximately 8:30 p. m. the van skidded on a muddy area of the highway, went through the railing on the Mill Creek Bridge and turned over. In the accident Deborah Elliott and guest passenger Rhonda Kleinpeter were killed. Two other passengers in the van, Randy Elliott and Robert Barry Gustafson, were severely injured. The three consolidated cases with which the court is dealing here involve claims asserted by members of the families of the occupants of the van, including claims on behalf of the minors injured in the mishap.

Plaintiffs assert that Reginald Murrell, a logging contractor, through his employees, caused mud to be tracked onto Louisiana Highway 127 a short distance from the accident scene on the day of the accident. Plaintiffs assert further that the mud caused the driver of the van to lose control of the vehicle.

In suit number 7657 in this court, Mr. Curtis Elliott brought suit individually and on behalf of his son, Randy, for damages arising from the injuries sustained by Randy who was a minor at the time the suit was brought. Mr. and Mrs. Elliott assert a wrongful death action for the death of their daughter, Deborah.

In suit number 7658, 387 So.2d 1383, Mr. and Mrs. Carey Kleinpeter brought suit individually for the loss of their daughter, Rhonda Kaye, and further attempted to assert survivors’ claims on behalf of two minor sons for the sons’ loss of a sister. These latter demands have been made subject to the exceptions of no cause or right of action which are not now before the court.

In suit number 7659, 387 So.2d 1389, Robert D. Gustafson brought suit individually for medical expenses and as administrator of the estate of his son, Robert Barry Gustafson, for personal injuries received by him in the accident.

As previously stated, these three cases are not before the court on the merits but are here on judgments sustaining peremptory exceptions to reconventional and third party demands filed by appellants. The trial court sustained the exceptions. The appeals presently before this court were taken in response to the judgments sustaining the exceptions.

APPEAL NUMBER 7657

We will now address ourselves specifically to the appeal bearing our docket number 7657, Curtis Elliott, et al v. Aetna Casualty and Surety Company. When the appellants, Murrell and Aetna, were made defendants in this suit they filed an answer and also assumed the position of plaintiffs in reconvention and of third party plaintiffs. The following were named as either defendants in reconvention or third party defendants:

(a) CURTIS ELLIOTT, husband of Mrs. Curtis Elliott, and father of the minor, Randy Elliott;
(b) MRS. CURTIS ELLIOTT, wife of Curtis Elliott and mother of the minor, Randy Elliott;
(c) ROBERT D. GUSTAFSON, husband of Mrs. Robert D. Gustafson, and father of Robert Barry Gustafson;
(d) MRS. ROBERT D. GUSTAFSON, wife of Robert D. Gustafson and mother of Robert Barry Gustafson;
(e) ROBERT BARRY GUSTAFSON, a resident of lawful age of LaSalle Parish, Louisiana; and
(f) STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as liability insurer of the 1977 Ford van involved in the accident giving rise to this litigation.

EXCEPTION OF MRS. ROBERT D. GUSTAFSON

The peremptory exception to the third party demand filed by Mrs. Gustafson (Tr. 49 & 50) is specifically denominated as an exception of no cause of action. If it was the intention of Murrell and Aetna to sue her in a representative capacity as mother of Robert Barry Gustafson, no issue has been raised on this score. This peremptory exception of no cause of action was grounded on the fact that during marriage the father of the minor tortfeasor is vicariously liable for any torts of the minor, but the mother is not. LSA-C.C. art. 2318. (Robert Barry Gustafson, the son, was apparently a minor at the time of the accident but is alleged to be of lawful age by appellants and was made a third party defendant individually and in his own right). Mrs. Gustafson’s exception of no cause of action is well taken, and the action of the trial court in sustaining her exception is affirmed. Cf. Frazer v. Day, 307 So.2d 733 (La.1975) and Flannigan v. Valliant, 371 So.2d 349 (La.App. 4th Cir., 1979).

EXCEPTIONS OF RES JUDICATA, NO CAUSE OF ACTION AND NO RIGHT OF ACTION

Prior to the institution of any of the three actions under consideration here, State Farm Mutual Automobile Insurance Company entered into three settlement agreements on behalf of itself and its insureds:

1. Curtis Elliott, appearing individually and as administrator of the estate of his minor son Randy, released State Farm and its insureds from liability for the injuries Randy received in the accident (Appeal Number 7657); '
2. Mr. and Mrs. Kleinpeter released State Farm and its insureds from any obligation for the death of their daughter, Rhonda Kaye (Appeal Number 7658); and
3. Robert D. Gustafson, appearing individually and administrator of the estate of his minor son, Robert Barry Gustafson, released State Farm and its insureds from liability for the injuries Barry received in the accident. (Appeal Number 7659).

Appellants argue that these settlements were made with reference only to any liability which may have existed on the part of Deborah Elliott-that is, on the assumption she was driver of the van, but if it develops that either Randy Elliott or Barry Gustafson was the driver of the vehicle, the release would not affect the liability flowing from any negligence on their part. Appellants contend that the settlements were with State Farm as the liability insurer of Deborah Elliott, her estate and anyone vicariously liable with her.

To fully understand the position of Mur-rell and Aetna we will summarize the pleadings filed by them in Appeal Number 7657. In their answer Murrell and Aetna:

1. Denied that the accident in question was in any way caused or contributed to by Murrell or anyone for whom he was legally responsible.
2. Asserted that the sole proximate cause of the accident was negligence and fault of Deborah L. Elliott which was specifically described.
3. Alternatively, Murrell and Aetna pleaded that if Murrell or his agents were at fault and such was a cause of the accident, Deborah L. Elliott’s negligence was a contributory cause of the accident which barred any claims of Mr. or Mrs. Elliott.
4. Further, Murrell and Aetna alleged that Deborah L. Elliott may not have been the driver of the van in question and the driver may have been Randy Elliott or Robert Barry Gustafson. If Randy Elliott was the driver, his contributory negligence is pleaded in bar of plaintiffs’ recovery.
5. The driver of the van (whoever it was) was operating the van with the permission of the owner and the release did not contain a specific reservation of rights against Murrell and Aetna. Therefore, the release operated as a release of all joint tortfeasors. (In this respect they rely on LSA-C.C. 2203).
6. Finally, the answer of Murrell and Aetna asserted an alternative claim that the release of the “alleged driver of the van effected a release of a joint tortfeasor and solidary obligor and therefore reduced by one-half (%) the amount of any judgment to which plaintiffs would otherwise be entitled from these defendants.”

Then assuming in the alternative the position of plaintiffs in reconvention and third party plaintiffs, Murrell and Aetna made claim against the defendants in reconvention and third party defendants for contribution. We assume that the claim for reduction of recovery to one-half was intended by Murrell and Aetna to apply if Deborah L. Elliott was in fact the driver. If on the other hand, the trial evidence should develop that Randy Elliott or Robert Barry Gustafson was the driver, then inasmuch as there has been no release of their liability, Murrell and Aetna would be entitled to contribution under LSA-C.C. art. 2103.

In the prayer of the answer and incidental demands of Murrell and Aetna they demand rejection of the Elliott suit. In the alternative they demand that any recovery based on Murrell’s negligence be reduced to one-half. In the final alternative Murrell and Aetna demand contribution to the extent of one-half of the recovery from all parties they have sued as defendants in reconvention or as third party defendants.

ARGUMENTS OF EXCEPTORS

As we view the controversy the exceptions of res judicata and no cause of action are applicable only to the claim of Murrell and Aetna for contribution. If the facts on trial establish that Deborah Elliott was driving the van and that both she and Mur-rell or his agents were at fault and, therefore, jointly at fault, reduction of recovery will be in order. Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir., 1964); Cunningham v. Hardware Mutual Casualty Company, 228 So.2d 700 (La.App. 1st Cir., 1969); Mullin v. Skains, 252 La. 1009, 215 So.2d 643 (La.1968).

With respect to the allegations of Murrell and Aetna we are bound by the averment that Randy Elliott or Robert Barry Gustafson may have been driving the van rather than Deborah Elliott. This is so because of the principle that for purposes of an exception of no cause of action allegations of fact by the plaintiff must be accepted as true. Haskins v. Clary, 346 So.2d 193 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976) and Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975). The exceptors assert that all of them have judicially confessed that Deborah Elliott was driving the vehicle at the time of the accident. Under the circumstances, so excep-tors argue, they are judicially estopped or barred by the doctrine of preclusion from changing their position. Exceptors cite LSA-C.C. art. 2291 and Exchange National Bank of Chicago v. Spalitta, 321 So.2d 338 (La.1975). However this may be, it does not affect Murrell and Aetna or estop them from making the alternative allegations that someone else other than Deborah Elliott was the van driver.

With respect to the exception of res judicata, we are unable to read the three releases as effecting a release of anyone from liability if in fact the van driver was not Deborah Elliott but was either Randy Elliott or Robert Barry Gustafson. This is especially so in view of the averments made in the- pleadings filed for the purpose of obtaining approval of minors settlement for Randy Elliott and Robert Barry Gustafson. Therefore, we do not regard the exception of res judicata as being well founded. Therefore, the trial court’s ruling in this regard will be reversed.

In its brief State Farm urges that it has expended the entire amount of their policy limits in making good faith settlements on behalf of Randy Elliott, Rhonda Kleinpeter and Barry Gustafson. If State Farm has expended all of its policy limits, it may constitute a defense to be appropriately asserted, but we fail to see that it has anything to do with the exceptions before us.

Appellees urge that regardless of who was driving, all Murrell and Aetna would be entitled to would be a pro rata reduction in the awards made to the Kleinpeters because of the settlement previously made with them. We agree that if Randy Elliott proved to be the driver, the Elliotts would be barred from recovery by his contributory negligence which has been pleaded as an alternative. However, if Robert Barry Gustafson proved to be the driver, the El-liotts would .not be barred. Also, in that event the Gustafsons would be barred by their son’s contributory negligence from recovery and so would the son. However, if the facts do show that Robert Barry Gus-tafson was the driver, then Murrell and Aetna are entitled to assert their claims for contribution from Robert D. Gustafson (the father) and Robert Barry Gustafson (the son) and State Farm as the insurer. It is appropriate in each suit that Murrell and Aetna be permitted to assert their alternative claims to meet any eventuality developed by the evidence.

In the Elliott appeal, number 7657, two exceptions were filed. These exceptions were included in one pleading denominated “PEREMPTORY EXCEPTION TO THIRD PARTY DEMAND”. Tr. 49 and 50. The first paragraph is the exception of no cause of action filed on behalf of Mrs. Robert D. Gustafson. Paragraph two is an exception filed solely on behalf of State Farm Mutual Automobile Insurance Company and consists of the exception of res judicata based on the Elliott settlement mentioned above. The judgment on exceptions in the Elliott appeal, number 7657, was signed on October 12, 1979, and sustained both the exception of no cause of action filed on behalf of Mrs. Robert D. Gustafson and the exception of res judicata filed on behalf of State Farm Mutual Automobile Insurance Company. Tr. 63.

In the other two appeals, number 7658 and 7659, general exceptions of no right and of no cause of action were filed. Ex-ceptors in those two cases have not addressed any arguments to support them. As to those two cases, we perceive no grounds for sustaining these exceptions.

For the foregoing reasons, the judgment of the trial court in appeal number 7657, Curtis Elliott, et al v. Aetna Casualty and Surety Company, et al, dated October 12, 1979, is affirmed insofar as it sustained the exception of no cause of action filed by third party defendant-exceptor-appellee, Mrs. Robert D. Gustafson. The judgment of the trial court dated October 12, 1979, is reversed and set aside insofar as it sustained the exception of res judicata filed by third party defendant-exceptor-appellee, State Farm Mutual Automobile Insurance Company, and, as to that exception, this case is remanded to the trial court for further proceedings consistent with the views expressed herein. The costs of this appeal are assessed one half to State Farm Mutual Automobile Insurance Company and one half to Aetna Casualty Insurance Company.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

      . Five other lawsuits have been filed by the plaintiffs in these cases as a result of this accident, suing different defendants in each case, generally. Three of those other suits are consolidated with the cases now before this Court of Appeal, but the records in those three other consolidated cases did not come up on this appeal. Mr. and Mrs. Curtis Elliott were unsuccessful in an earlier suit against the State of Louisiana, through the Department of Highways, for alleged negligence on the part of that Department in causing the accident. Elliott v. State of Louisiana, Through the Department of Highways, 372 So.2d 802 (La.App.3rd. Cir., 1979), writ denied, 375 So.2d 647.


text:
    Carey N. KLEINPETER, et ux., Plaintiffs-Appellees, v. Reginald L. MURRELL et al., Befendants-Appellants.
    No. 7658.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1980.

      Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for plaintiffs-appellants.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.
    William Henry Sanders, Jimmie C. Peters, Jena, John King, Baton Rouge, for plaintiffs-appellees.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   STOKER, Judge.

This case was consolidated for hearing on certain peremptory exceptions and on appeal with companion suits including Elliott, et al. v. Aetna Casualty and Surety Company, et al., 387 So.2d 1383 (La.App. 3rd Cir., 1980), which is being decided this date.

The issues and applicable law in this case are substantially the same as those in Elliott v. Aetna Casualty and Surety Company, supra. ' For the reasons we assigned therein we reverse and set aside the judgment of the trial court dated October 12, 1979, sustaining the peremptory exceptions filed on July 10, 1979, on behalf of Curtis Elliott, individually and as administrator of the estate of the minor, Randy Elliott, on behalf of Robert D. Gustafson, individually and as administrator of the estate of Robert Barry Gustafson, on behalf of Robert Barry Gustafson and on behalf of State Farm Mutual Automobile Insurance Company. The case is remanded to the trial court for further proceedings consistent with the views expressed herein. The costs of this appeal are assessed to exceptors — appellees.

REVERSED AND REMANDED.


text:
    Robert D. GUSTAFSON, Plaintiff-Appellee, v. AETNA CASUALTY & SURETY COMPANY et al., Defendants-Appellants.
    No. 7659.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1980.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for plaintiffs-appellants.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellants.
    William Henry Sanders, Jimmie C. Peters, Jena, John King, Baton Rouge, for plaintiff-appellee.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   STOKER, Judge.

This case was consolidated for hearing on certain peremptory exceptions and on appeal with companion suits including Elliott, et al. v. Aetna Casualty and Surety Company, et al., 387 So.2d 1383 (La.App 3rd Cir., 1980), which is being decided this date.

The issues and applicable law in this case are substantially the same as those in Elliott v. Aetna Casualty and Surety Company, supra. For the reasons we assigned therein we reverse and set aside the judgment of the trial court dated October 12, 1979, sustaining the peremptory exceptions filed on July-10, 1979, on behalf of Curtis Elliott, individually and as administrator of the estate of the minor, Randy Elliott, and on behalf of State Farm Mutual Automobile Insurance Company. The case is remanded to the trial court for further proceedings consistent with the views expressed herein. The costs of this appeal are assessed to exceptors-appellees.

REVERSED AND REMANDED.


author: ELLIS, Judge:

text:
    Otis YOUNG and Willie Ray Brumfield v. The CITY OF FRANKLINTON and T. J. Butler. Claude Lee GATLIN v. The CITY OF FRANKLINTON and T. J. Butler.
    Nos. 13451, 13452.
    Court of Appeal, of Louisiana, First Circuit.
    July 7, 1980.

      Gregory F. Gambel, New Orleans, for plaintiffs.
    Delos R. Johnson, Jr. of Johnson & Kuhn, Franklinton, for T. J. Butler.
    John W. Anthony of Talley, Anthony, Hughes & Knight, Bogalusa, Ronald J. Brumfield of Knight & Brumfield, Frank-linton, for the Town of Franklinton.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

These two consolidated cases arise out of a gas explosion in which Mrs. Anita Young suffered injuries which caused her death, and Claude Lee Gatlin was injured. In the first case the plaintiffs are Otis Young and Willie Ray Brumfield, Mrs. Young’s children, who sue for damages arising from Mrs. Young’s personal injuries as well as damages resulting from her wrongful death. In the second case, Mr. Gatlin sues for damages resulting from his personal injuries.

Defendants in both cases are the Town of Franklinton and T. J. Butler. After trial on the merits, judgment was rendered in favor of plaintiff in each case and against the Town of Franklinton. The suits were dismissed as against Mr. Butler. Plaintiffs have appealed in each case, alleging that the damages awarded are inadequate. The Town of Franklinton has answered the appeal, contesting its liability and alleging that the damages awarded were excessive.

T. J. Butler was the owner of a house at 1319 Alford Street in Franklinton, which he agreed to rent to Mrs. Young. After a previous tenant moved out, Mr. Butler had some repair work done, and then had the house nailed shut. Mrs. Young moved in without his knowledge some time prior to July 31, 1976. Shortly before that time, Mrs. Young’s niece called the Town to have the gas turned on. On July 21, 1976, Delbert Hodges and Abel Smith, employees of the Town of Franklinton, went to the house to turn on the gas and water. Mr. Smith first checked the house, as required by the policies of the Town, and found two uncapped gas lines. Mr. Smith told a carpenter and Mrs. Young’s niece about the uncapped pipes, and the meter was left sealed so that the gas could not be turned on.

On July 23, 1976, Mr. Smith and Mr. Hodges were instructed to return to the house and remove the seal from the meter. They did this without performing any further inspection of the house to see if the two pipes had been capped. The seal was removed, but the gas was not turned on.

On the evening of July 31, 1976, Mr. Gatlin went to the house. He knocked on the door and Mrs. Young answered. While they were talking, Mrs. Young lit a cigarette, and the explosion took place. Mrs. Young was severely burned, and eventually died of her injuries. Mr. Gatlin was knocked down by the force of the explosion. He testified that he was burned on the left side at that time. He then went into the house and brought Mrs. Young out, and apparently suffered his other injuries at that time.

We find that the trial court correctly resolved the issue of the negligence of the Town of Franklinton. Although it notified the lessee of the uncapped pipes, so that she was apprised of the existence of a dangerous situation, it failed in a further duty, when it removed the safety clip without first ascertaining if the pipes had been properly hooked up or capped. See Surry v. Arkansas Louisiana Gas Company, 170 So.2d 133 (La.App. 2nd Cir. 1964).

The record is devoid of any evidence as to the circumstances surrounding the order to remove the safety clip. Since a kitchen stove was hooked up to one of the uncapped outlets by a man named Bell, it may be that he requested the removal of the clip without Mrs. Young’s knowledge, or that Mrs. Young was advised that it was safe to turn on the gas.

The testimony is conflicting as to whether there was a noticeable smell of gas at the time of the explosion. The trial judge resolved the conflict in favor of plaintiffs, and we find no manifest error in his finding in this respect. The record, therefore, does not support a finding of contributory negligence on Mrs. Young’s part.

On the question of quantum, the record shows that Mrs. Young received second degree, and possibly some third degree, burns over 50 per cent of her arms and legs, and on her face and upper thorax. She was hospitalized and treated at Charity Hospital in New Orleans, and did well until the latter part of August, when she began to decline. She died on September 11,1976, of congestive heart failure. The hospital record, particularly the nurses’ notes, do not indicate that Mrs. Young was in great pain, and she was sedated for most of her stay in the hospital. We see no support for plaintiffs’ claim that she was in “excruciating pain” during that time. We therefore find no error in the award of $25,000.00 for her pain and suffering.

Mrs. Young’s two adult sons were awarded $5,000.00 each for the loss of their mother. The record shows that over the years she had lived with them at times, and had stayed in constant touch. There seems to have been a strong bond of affection between them. We think the lowest award that could have been made with propriety under the circumstances of this case to be $10,000.00 for each son, and the judgment will be amended accordingly.

Mr. Gatlin suffered second degree burns to 15 per cent of both arms and to his face. He was hospitalized and treated in Charity Hospital in New Orleans until August 30,1976, when he was discharged. He has residual scarring and skin discoloration on both arms and on his upper back, and loss of pigmentation of the skin of his right hand. For his pain and suffering, and the residual scarring, the trial court awarded $8,500.00. The hospital record does not support the claim of “excruciating pain” made by Mr. Gatlin, but it appears clear that he did suffer, and that he is somewhat disfigured for life. We think the lowest award that should have been made is $15,000.00, and the judgment will be amended accordingly-

The judgment appealed from is therefore amended so as to increase the awards to Otis Young and Willie Ray Brumfield for the loss of their mother to the sum of $10,000.00 each; and to increase the award for general damages to Claude Lee Gatlin to $15,000.00, and, as amended, it is affirmed, at the cost of the Town of Franklin-ton.

AMENDED AND AFFIRMED.


author: PER CURIAM.

text:
    Donald Walter WITT, Appellant, v. STATE of Florida, Appellee.
    No. 79-621.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.
    Richard L. Jorandby, Public Defender, and Polly M. Shull, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant/defendant appeals, asserting error in the denial of his motion to suppress certain evidence found by an arresting police officer during an inventory search of his automobile. After a jury trial at which a gun found in defendant’s car was introduced, defendant was found guilty of robbery with a firearm.

Although appellant moved. to suppress the gun prior to trial, he failed to object to the gun’s introduction at trial. Appellant has, therefore, failed to preserve the alleged error for appellate review. O’Berry v. Wainwright, 300 So.2d 740 (Fla. 4th DCA 1974); Jones v. State, 360 So.2d 1293 (Fla. 3d DCA 1978).

We have considered the other points raised by appellant in support of his appeal and find no error demonstrated. The conviction and judgment below are hereby affirmed.

AFFIRMED.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


author: DOWNEY, Judge.

text:
    James E. CASTO, Appellant, v. Donna L. CASTO, Appellee. Donna L. CASTO, Appellant, v. James D. CASTO, Appellee.
    Nos. 79-2008, 79-2037.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.

      Dubose Ausley, Tallahassee, and Talbot D’Alemberte, Miami, for appellant/appellee James E. Casto.
    S. Robert Zimmerman, Pompano Beach, James H. Walden, Dania, and Edna L. Caruso, West Palm Beach, for appellee/appel-lant Donna L. Casto.
   DOWNEY, Judge.

Appellee has moved to dismiss this appeal on the ground that it is untimely and thus this court is without jurisdiction to entertain it.

The judgment appealed from is a final judgment of dissolution of marriage. The pertinent dates and events are:

June 22, 1979 Final judgment signed;

June 25, 1979 Final judgment filed with clerk;

June 27, 1979 Final judgment recorded;

July 6,1979 Motion for Rehearing served;

September 12,1979 Motion for Rehearing denied;

September 13, 1979 Notice of Appeal filed.

The issue presented involves the timeliness of the motion for rehearing served July 6, 1979, and its effect upon the timeliness of the notice of appeal. Resolution of those issues requires a determination of the meaning of “entry of judgment” as that term is used in Florida Rule of Civil Procedure 1.530(b), which provides, in material part, that a motion for rehearing shall be served not later than 10 days after entry of judgment in a non-jury action.

Florida Rule of Appellate Procedure 9.110(b), provides that jurisdiction of the appellate court is invoked by the filing of a notice of appeal within 30 days of rendition of the order to be reviewed. “Rendition” is defined in Rulé 9.020(g), as the filing of a signed written order with the clerk of the lower tribunal. Of course, the filing of a timely motion for rehearing suspends the rendition date until the motion for rehearing has been disposed of.

In the case at bar, if entry of judgment as provided in Rule 1.530(b) means the date the judgment was recorded, as the appellant contends, then the motion for rehearing, served July 6, 1979, was timely and we have jurisdiction. On the other hand, if, as the appellee contends, the entry of judgment is the date the signed written order is filed with the clerk, then the motion for rehearing was untimely and we do not have jurisdiction.

Until the appellate rule defining “rendi-. tion” (Rule 9.020(g) was changed, effective March 1, 1978, the law in this jurisdiction was clear that “rendition” and “entry of judgment” were synonymous (insofar as Rule 1.530(b) is concerned) and meant the date the judgment was recorded. See, e. g., Palladeno v. Oesterle, 345 So.2d 382 (Fla.3d DCA 1977). However, as amended March 1, 1978, “rendition” means the date the signed written judgment is filed with the clerk. So the question arises, did the change in the meaning of “rendition” also change the meaning of “entry of judgment”?

This very issue was decided recently by the Third District Court of Appeal in an opinion authored by Judge Alan Schwartz in Dibble v. Dibble, 377 So.2d 1001 (Fla.3d DCA 1979). It was held there that the change in definition of “rendition” by implication changed the definition of “entry of judgment” because:

[I]n the absence of a specific definition of “entry” in either set of rules, the issue is controlled by the supreme court’s determination of the requisite for the finality of judgments, as contained in its definition of “rendition” in Fla.R.App.P. 9.020(g). In other words, what is deemed final for appellate purposes when no motion for rehearing is filed, is likewise final for the purposes of determining when the motion itself must be served. 377 So.2d at 1003.

We agree with the analysis of the issue and the holding in Dibble. However, the appellant has seriously questioned the correctness of the Dibble holding. Recognizing the importance of the question involved, we feel compelled to certify the following question to the Supreme Court of Florida, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(ii) as passing upon a question of great public importance:

Is the term “entry of judgment”, as used in Florida Rule of Civil Procedure 1.530(b), synonymous with the term “rendition”, as used in Florida Rule of Appellate Procedure 9.020(g)?

The appellee wife, in Case No. 79-2008, has filed an appeal in Case No. 79-2037 to review the order of the trial court denying her motion to strike the husband’s petition for rehearing as untimely. Having heretofore disposed of the husband’s petition for rehearing as untimely, this appeal should be dismissed.

Accordingly, both of these appeals are consolidated and they are both dismissed.

APPEALS DISMISSED.

ANSTEAD and MOORE, JJ., concur.


text:
    Samuel Lee HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 79-1311.
    District Court of Appeal of Florida, Second District.
    May 28, 1980.
    Jack O. Johnson, Public Defender, and Douglas A. Lockwood, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Samuel Lee Hunter appeals his conviction of robbery with a weapon and his sentence as a habitual felony offender. He contends that the trial court erred in sentencing him as a habitual felony offender without first making a finding that the sentence was necessary for the protection of the public and without specifying all the evidence relied upon in imposing the sentence. Appellant also contends that the court erred in denying his motion for new trial. We hold that the enhanced sentence was improperly entered, but we find no error in denying the motion for new trial.

When the trial judge imposed the enhanced sentence, he failed (1) to make a finding that the imposition of the enhanced sentence was necessary for the safety of the public and (2) to specify the evidence he relied upon in sentencing appellant as a career criminal, as required by Section 775.-084(3), Florida Statutes (1977). Ibbitson v. State, 366 So.2d 499 (Fla. 2d DCA 1979) and Fry v. State, 359 So.2d 584 (Fla. 2d DCA 1978). We therefore vacate the enhanced sentence.

Accordingly, the judgment is affirmed, but the sentence is vacated and the cause remanded for resentencing.

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


text:
    LE SHACK LIMITED, INC., Appellant, v. Michael AXLER, Appellee.
    Nos. 78-2205, 78-2206.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Joseph S. Kashi of Grimmett, Scherer & James, P.A., Fort Lauderdale, for appellant.
    Kevin A. Malone, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See Ferrante v. Waters, 383 So.2d 749 (Fla. 4th DCA Case No. 78-1264, opinion filed May 14, 1980).

BERANEK and HURLEY, JJ., and SPENCER C. CROSS, Associate Judge, concur.


author: ANSTEAD, Judge.

text:
    Alvin N. ANDREWS, Appellant, v. PAL-MAR WATER CONTROL DISTRICT DEPARTMENT OF REVENUE of the State of Florida, A.D. “Augie” Malfregeot, Property Appraiser, Board of County Commissioners of Martin County, Florida, Acting as the Board of Tax Adjustment, Appellees. DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. PAL-MAR WATER CONTROL DISTRICT, A. D. “Audie” Malfregeot, Property Appraiser, Alvin N. Andrews, Tax Collector, Board of County Commissioners of Martin County, Florida, Acting as the Board of Tax Adjustment, Appellees.
    Nos. 79-1605, 79-1639.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.

      John T. Carmody, Jr., County Atty., and Robert Makemson, Asst. County Atty., Stuart, for appellant Alvin N. Andrews, and Jim Smith, Atty. Gen., and Joseph C. Melli-champ, III, Asst. Atty. Gen., Tallahassee, for appellant Department of Revenue.
    Charles C. Chillingworth and Roxanne Beth Axelrod of Law Offices of Charles C. Chillingworth, Palm Beach, for appellee Pal-Mar Water Control District.
   ANSTEAD, Judge.

This is an appeal from a final judgment holding that the appellee, Pal-Mar Water Control District, was entitled to a refund of 1976 ad valorem taxes paid under protest. We affirm.

Although the issues as framed by the appellant involve a determination of whether the appellee water management district is entitled to an exemption from ad valorem taxation pursuant to the provisions of Chapter 196, Florida Statutes (1975), it is our conclusion that the district is immune from tax liability and hence not subject to the provisions of Chapter 196.

The trial court found that the district was a political subdivision of the state and as such entitled to an exemption from ad valo-rem taxation under the provisions of Chapter 196. At issue in the trial court was whether the district was entitled to a Chapter 196 exemption and if so whether the district had complied with the provisions of Chapter 196 in order to secure such an exemption.

The state and its political subdivisions are immune from taxation since there is no power to tax them. Dickinson v. City of Tallahassee, 325 So.2d 1 (Fla. 1975); Alford v. State, 107 So.2d 27 (Fla. 1958); Park-N-Shop, Inc. v. Sparkman, 99 So.2d 571 (Fla. 1958); Orlando Utilities Comm’n. v. Milligan, 229 So.2d 262 (Fla. 4th DCA 1969), cert. denied 237 So.2d 539 (Fla. 1970).

We find no error by the trial court in its determination that the district was a political subdivision of the state. Once that determination was made it is clear under the authorities cited, supra, that the district was immune from tax liability and hence entitled to a refund of the 1976 taxes paid under protest.

Accordingly, the judgment of the trial court is affirmed.

DOWNEY and HERSEY, JJ., concur.

      . See Op.Atty.Gen. 076-87, April 8, 1976 § 1.01(9), Fla.Stat. (1975). Chapter 298, Fla. Stat. (1975). But see Sugar Bowl Drainage District v. Miller, 120 Fla. 436, 162 So. 707 (1935).

      . The property appraiser for Martin County testified that the property of other water control districts located in the county was not taxed.


text:
    Jimmie Lee TUCKER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2417.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1980.
    Edward McHale, Miami, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HUBBART, SCHWARTZ and BASKIN, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

The defendant-appellant’s primary contention is that he was improperly sentenced to life imprisonment for burglary under Section 810.02(2), Fla.Stat. (1979) upon a jury verdict finding him guilty of “burglary of a structure.” Count I of the information filed against Tucker was denominated as charging only “burglary of a structure.” It specifically alleged, however, that, within the burglarized building, the defendant was armed or armed himself with a dangerous weapon, a knife. Such a charge is an “aggravating factor” which justifies a life sentence for burglary under Section 810.-02(2)(b). Without objection, the jury was repeatedly instructed by the court — and was informed by counsel in final argument — that if it found that Tucker was indeed armed, it should return the verdict form which read: “as to Count One of the Information: Burglary of a Structure, Guilty.” If it did not so find, it was to employ the form which found him guilty of “Burglary, a lesser included offense.” Under these circumstances, the return of the former verdict form and the rejection of the latter clearly and unmistakably evinced the jury’s determination that the defendant was guilty of burglary committed while he was armed with a dangerous weapon, as charged in count one. We thus find no error in the imposition of sentence accordingly. Yarborough v. State, 94 Fla. 143, 114 So. 237 (1927); Hambrick v. State, 80 Fla. 672, 86 So. 623 (1920); Coon v. State, 353 So.2d 1240 (Fla.3d DCA 1978).

Since the appellant’s remaining points, which challenge the sufficiency of the evidence against him are patently without merit, see Section 810.02(1), Fla.Stat. (1979), the judgment under review, in its entirety, is

Affirmed.


text:
    CASTLEWOOD INTERNATIONAL CORPORATION, Appellant, v. Charles A. WHITMAN, Jr., as Administrator of the Estate of John Michael Whitman, Deceased, Clinton Jones, Ceotis Burgess, Appellees. CASTLEWOOD INTERNATIONAL CORPORATION, Appellant, v. James W. GIROT, Clinton Jones, and Ceotis Burgess, Appellees.
    Nos. 76-2479, 76-2480.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1980.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellant.
    Joel T. Daves III of Burdick & Daves, West Palm Beach, for appellees James W. Girot and Charles A. Whitman, Jr., as administrator of the estate of John Michael Whitman, deceased.
   PER CURIAM.

Upon mandate of the Supreme Court of Florida, 383 So.2d 618, issued June 6, 1980, now lodged in this court, the opinion of this court, 359 So.2d 5, filed May 2, 1978, having been quashed and this court having considered all of the issues raised by the appellant which were not considered in our opinion of May 2, 1978, and having found no merit in any of the appellant’s contentions as to said issues, the final judgment of the trial court is hereby reinstated.

Appellant’s request for oral argument and for permission to file supplemental briefs and appellee’s motion to advance the cause are denied.

LETTS, C. J., and DOWNEY, J., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.


text:
    Charlotte Walker TIFFIN, Appellant, v. Jay Hopkins TIFFIN, Appellee.
    No. 79-2083.
    District Court of Appeal of Florida, Second District.
    July 18, 1980.
    A. Ann Arledge of Gordon & Maney, P. A., Tampa, for appellant.
    Harry S. Cline of McMullen, Everett, Logan, Marquardt & Cline, P. A., Clearwater, for appellee.
   PER CURIAM.

Affirmed. See Erhardt v. Erhardt, 362 So.2d 70 (Fla.2d DCA 1978).

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


author: OTT, Judge.

text:
    MERIDIAN INVESTING & DEVELOPMENT CORPORATION, Appellant, v. SUNCOAST HIGHLAND CORPORATION, Appellee.
    No. 80-466.
    District Court of Appeal of Florida, Second District.
    July 23, 1980.
    Rehearing Denied Sept. 22, 1980.
    Robert V. Williams and Gregory E. Mi-erzwinski, of Taub & Williams, Tampa, for appellant.
    Edmund S. Whitson, Jr. and Roger P. Hartley, of Whitson & Whitson, Clearwater, for appellee.
   OTT, Judge.

Appellant obtained judgment against ap-pellee, a Florida corporation, in a contested action in a New York federal court, and then filed on the judgment in the court below. However, in addition to requesting a Florida judgment on the New York award, appellant also included a creditor’s cause of action for appointment of a receiver to marshal appellee’s assets.

Appellee answered the complaint and set up certain alleged defenses to the suit on the New York judgment. Appellant then registered the foreign judgment in the District Court for the Middle District of Florida and obtained a writ of execution, which the marshal returned unsatisfied. Appellee then obtained an order from the court below temporarily enjoining appellant from taking further proceedings in the Florida Federal Court insofar as they might affect appellee’s assets. We note that upon learning of the pendency and nature of the state court action, the Florida District Court entered its own order deferring to the state court jurisdiction.

We affirm the order of the trial court. We think appellant’s action is at least quasi in rem, and that the state court therefore acquired exclusive jurisdiction over the creditor’s assets with power to shield them from forays originating in all other forums, including federal. Donovan v. Dallas, 377 U.S. 48, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964). Appellant chose the forum and the type of proceedings. He now must bide the orderly progression of that suit to its resolution.

However, nothing contained herein shall be interpreted as an expression of opinion on either the availability or the validity of appellee’s so-called defenses to the enforcement of appellant’s New York judgment.

The order appealed from is AFFIRMED.

SCHEB, C. J., and GRIMES, J., concur.


text:
    Lonnie Ruben EADY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1916.
    District Court of Appeal of Florida, Second District.
    July 30, 1980.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant Lonnie Ruben Eady, a juvenile, was charged with armed robbery and attempted armed robbery, pursuant to Section 39.04(2)(e)4, Florida Statutes (1977), which permits the filing of an information against a child aged sixteen or seventeen at the time of the commission of the offense. Both informations alleged that he “did carry a weapon, to-wit [sic]: a knife.” Appellant pled nolo contendere to both charges. The court sentenced him as an adult to forty-five years in prison on the armed robbery offense, retaining jurisdiction over one-third of the sentence, and five years in prison for the attempted armed robbery, to run concurrently.

Appellant contends that the trial court committed reversible error in not sentencing him pursuant to Section 39.111(6)(c)1-6, Florida Statutes (1979). He also contends that his sentence is excessive. We agree on both points.

Section 39.111(6) requires that a trial court, when imposing adult sanctions on a juvenile, make findings of fact and evaluate the juvenile based on the criteria in Section 39.111(6)(c). State v. Cain, 381 So.2d 1361 (Fla.1980). In Cain, the court noted that because of the protection of Section 39.-111(6)(c) the direct filing of an information does not constitute an abandonment of rehabilitative efforts on behalf of the juvenile.

Failure to comply with the safeguards of Section 39.111(6) is harmful error. Proctor v. State, 373 So.2d 450 (Fla. 2d DCA 1979). Appellant was not sentenced in conformance with that statute. Consequently, appellant’s sentences are invalid.

Appellant’s sentence for robbery with a weapon is, in any event, excessive. Robbery with a weapon is a felony of the first degree punishable by a term in prison not to exceed thirty years. §§ 812.13(2)(b) and 775.082(3)(b), Fla.Stat. (1979). Appellant’s sentence of forty-five years in prison exceeds this statutory maximum.

Accordingly, the judgment is AFFIRMED, but the sentences are REVERSED and the cause REMANDED with instructions to resentence appellant pursuant to Section 39.111(6).

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


author: BERANEK, Judge.

text:
    MOTOR CLUB OF AMERICA INSURANCE COMPANY, Appellant, v. Sanford LANDA, Dorothy Landa, and Allstate Insurance Company, Appellees.
    No. 79-1524.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1980.
    Theodore R. Hainline of Hainline & Billing, P.A., and Nancy Little Hoffmann, Fort Lauderdale, for appellant.
    Joel D. Eaton and Walter H. Beckham, Jr. of Podhurst, Orseck & Parks, Miami, Simons & Schlesinger, P. A., Fort Lauder-dale, and Law Offices of Joe N. Unger, P. A., Miami, for appellees, Landa.
   BERANEK, Judge.

This is an appeal by plaintiff, Motor Club of America Insurance Company, from a final declaratory judgment finding that the appellant carrier had uninsured motorist insurance coverage of $100,000. Various other coverage issues between other parties were also determined, but we need not consider these points. We affirm.

The issue at the non-jury trial concerned the stacking of appellant’s uninsured motorist insurance policy. Plaintiff/appellant relied upon the anti-stacking statute, Section 627.4132, Florida Statutes (1979), effective October 1,1976. The policy in question was issued after the statute’s effective date. After plaintiff rested, the policyholder presented evidence and introduced New Jersey law on the issue of uninsured motorist insurance coverage stacking. The trial court found Florida law inapplicable and allowed stacking based on New Jersey law. The policy and the parties had various contacts with the State of New Jersey which we need not explore in detail.

Appellant contends Florida law would have produced a different result and that the court erred in applying New Jersey law. Appellee contends that no proper objection was made to New Jersey law; therefore, even if the court erred in allowing New Jersey law in evidence, the issue was not preserved for appeal.

We have searched the record and carefully read the transcript and find no objection sufficient to allow our consideration of the issue. The error, if any, was simply unob-jected to. Holmes v. School Board of Orange County, 301 So.2d 145 (Fla. 4th DCA 1974), cert. denied 312 So.2d 755 (Fla.1975). Indeed, appellant’s counsel’s comments indicate his acquiescence in the trial court’s consideration of New Jersey law. Nelson v. Reliance Insurance Company, 368 So.2d 361 (Fla. 4th DCA 1978).

The judgment is hereby affirmed.

AFFIRMED.

GLICKSTEIN, J., and SIMONS, STUART M., Associate Judge, concur.


author: HOBSON, Acting Chief Judge.

text:
    Leo STODDARD, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-1922, 79-1923.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1980.
    Jack 0. Johnson, Public Defender, Michael S. Becker, Asst. Public Defender, and Geoffrey A. Foster, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

On August 27, 1971, appellant was convicted of receiving and concealing stolen property and placed on probation for a period of three years. On December 6, 1971, appellant was convicted of entering without breaking a building other than a dwelling house with intent to commit a felony and placed on probation for a period of five years. On the same date appellant was found to be in violation of probation in the receiving and concealing case and his three-year probationary period was extended for a period of three years from December 6, 1971. The periods of probation in both cases were to run concurrently. On September 20, 1974, appellant violated his probation with respect to both offenses.

For reasons not clear from the record on appeal, the appellant was not found guilty of violating his probation on the entering without breaking crime until October 30, 1975, at which time he was sentenced for a term of five years with credit for time served. It was not until March 8,1976, that appellant was found guilty of violating his probation on the receiving and concealing crime and was sentenced to a period of five years to run concurrently with the entering without breaking sentence.

On March 9,1976, the trial court attempted to mitigate the sentences imposed on appellant on October 30,1975, and on March 8, 1976, by placing appellant on probation for six years.

In 1978, the appellant violated his probation on entering without breaking and was placed on probation for a period of seven years. He also violated his probation on receiving and concealing and was placed on probation for a period of five years. Subsequent probation violations occurred, and on July 13, 1979, warrants for appellant’s arrest for violation of probation on both charges were issued.

Appellant was brought before the court where he pled nolo contendere, reserving the right to challenge the court’s jurisdiction. On September 21, 1979, amended judgments and sentences were entered in both cases and the appellant was sentenced for a term of four years on each charge, to run consecutively.

In this appeal the appellant contends that the trial court in 1976 did not have the authority to nullify the sentences and place him on probation and, therefore, the order attempting to nullify the sentences is void, and later actions taken by the court with respect to that order, including the 1979 probation revocations and sentences are also void. We agree.

Florida Rule of Criminal Procedure 3.800(b) governed the trial court’s power to mitigate a lawful sentence in March, 1976. At that time the rule provided that a court could “mitigate” a sentence during the term in which it was imposed or within 60 days of sentencing if less than 60 days remain in the term. In the instant case, while the trial court had the authority to mitigate the appellant’s sentence, it exceeded that authority by placing him on probation, because the granting of probation does not constitute mitigation of a legal sentence. State v. Evans, 225 So.2d 548 (Fla.3d DCA 1969); State v. Mancil, 354 So.2d 1258 (Fla.2d DCA 1978).

In De La Paz v. State, 358 So.2d 1093 (Fla.3d DCA 1978), the defendant was sentenced to four one-year sentences in April, 1971. In September, 1971, the court held a hearing on the defendant’s motion to mitigate these sentences and at that time placed the defendant on seven years probation. The defendant’s probation was subsequently revoked and he was sentenced to two five-year terms of imprisonment. On appeal, the court held that “the order placing the defendant on probation was a nullity. Accordingly, the sentence imposed for violation of probation is an illegal sentence,” and directed the trial court to reinstate the defendant’s original sentence.

This court has also held that where the order of the trial court mitigating an appellant’s sentence was void, the subsequent placing of the appellant on probation and the revocation of that probation are void. Petters v. State, 350 So.2d 558 (Fla.2d DCA 1977); Solomon v. State, 341 So.2d 537 (Fla.2d DCA 1977).

Therefore, in the instant case the trial court’s revocations of the appellant’s probation and the sentence of two consecutive four-year terms of imprisonment for the underlying offenses is void. Accordingly, the judgments and sentences are reversed. The original sentence entered on October 30, 1975, on the entering without breaking charge is reinstated and the original sentence entered on March 8, 1976, on the receiving and concealing crime is reinstated with credit given for any time served upon the sentence vacated by this opinion.

REVERSED and REMANDED.

SCHEB, C. J., and CAMPBELL, J., concur.


text:
    Clifford John BOWLING, Appellant, v. STATE of Florida, Appellee.
    No. 80-1189.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1980.
    Rehearing Denied Sept. 23, 1980.
   PER CURIAM.

Appellant seeks review of the circuit court’s denial of his motion to mitigate a legal sentence. No appeal lies from the denial of this motion. Suggs v. State, 358 So.2d 897 (Fla.2d DCA 1978). Accordingly, the appeal is dismissed.

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


author: WENTWORTH, Judge.

text:
    Andres HING, Appellant, v. RICHARD ELECTRIC SUPPLY CO., INC. and Federal Ins. Co., Appellees.
    No. RR-45.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1980.
    L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellant.
    H. George Kagan of Miller & Hodges, Coral Gables, for appellees.
   WENTWORTH, Judge.

We reverse the judge of industrial claims’ order which denied compensability in this case because we conclude no competent, substantial evidence supports his finding that appellant’s hernias were not caused by his industrial accident.

Hing was hospitalized for back pain occurring during his operation of a forklift in February 1978. Emergency-room records did not indicate complaints of abdominal tenderness the day of the accident; instead, he was diagnosed as suffering lumbosacral strain. Two days after the accident, however, while still in the hospital and in traction, appellant told his treating physician he had pain in the groin area. The hernias were confirmed the following day.

The JIC concluded that Hing’s hernias were not within the statutory requirements for compensability, based on findings that they did not appear suddenly, were not accompanied by pain, and did not immediately follow the accident. Section 440.15(6), Florida Statutes (1977). We reverse because, even if Hing’s inguinal pain did not appear for two days (he testified to the contrary), that occurrence under the particular circumstances is in our opinion plainly within the statute’s requirement of sudden appearance after the accident. The facts of this case also present a situation in which Hing’s hernias, or at least the pain therefrom, would reasonably have been masked temporarily by his other injuries and hospital confinement. See Exxon Co. v. Alexis, 370 So.2d 1128 (Fla. 1978). The fact that he was constantly in traction after the accident reinforces a conclusion in favor of the compensable accident as causally related to the hernias. As for the statute’s immediacy requirement:

. it would be going too far to say that “immediately” means precisely the same as “instantly” or “momentarily” but that the word, when used with reference to time, means “there must not have been any substantial interval between the accident and the manifestation of the rupture and the appearance of the hernia following in due, natural and uninterrupted course therefrom.”
* * * * * *
That there is necessarily some latitude, whether it be a few hours or even a few days under given circumstances, cannot be questioned . .

Frohman Gear Co v. Fellows, 149 So.2d 557, 560 (Fla. 1963).

In Frohman, benefits were denied because the hernia did not appear for six months after the accident. Atlantic Marine Boat Yard v. Daniel, 138 Fla. 864, 190 So. 612 (1939), however, affirmed an award for a hernia which appeared 27 days after the accident. More recently, benefits were affirmed on appeal for a hernia which was not evident for two months because of other injuries. Exxon, supra. The statutory criteria are intended in part to avoid potentially false claims for hernias which develop gradually rather than as the by-products of accidents. Garcia v. Continental Vending Machine Corp., 176 So.2d 329, 331 (Fla. 1965). The facts of this case amply demonstrate that the criteria have been met and that the statute’s intent demands a finding of compensability.

Reversed and remanded for further proceedings consistent with this opinion.

MILLS, C. J., and McCORD, J., concur.


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

text:
    DEPARTMENT OF ADMINISTRATION, Relator/Appellant, v. CAREER SERVICE COMMISSION and Ruth Glass, Respondent/Appellees.
    No. WW-139.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1980.
    Rehearing Denied Oct. 8, 1980.

      Samantha Boge, Tallahassee, for relator/appellant.
    Jim Smith, Atty. Gen., and Arthur C. Wallberg, Asst. Atty. Gen., Tallahassee, for respondent/appellee Career Service Commission.
    Ben R. Patterson III, Patterson & Trayn-ham, Tallahassee, for respondent/appellee Ruth Glass.
   ROBERT P. SMITH, Jr., Judge.

On February 5, 1980, one day before respondent Glass would have advanced from probationary to permanent status in her employment by the Division of Personnel as a personnel program supervisor, the Division director delivered a memorandum to the Division’s personnel officer, demoting employee Glass to personnel program analyst II, and sent a copy by interoffice mail to respondent Glass, who received it sometime after February 6. As was the case in Florida Dept. of Environmental Regulation v. Florida Career Service Comm’n, 344 So.2d 1292 (Fla. 1st DCA 1977), the employing agency effectively demoted employee Glass before she achieved permanent status in her position of employment. Therefore the Career Service Commission is without jurisdiction of respondent Glass’ appeal. The order accepting her appeal is QUASHED and the proceeding is DISMISSED.

ERVIN and BOOTH, JJ., concur.


text:
    Thomas WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-1858.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    Rehearing Denied Oct. 8, 1980.

      Richard L. Jorandby, Public Defender, and Joseph Atterbury, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Watson, defendant in the trial court, appeals the revocation of his probation. We affirm.

The sole issue on this appeal is whether a probationer may invoke his Fifth Amendment privilege against compulsory self-incrimination to justify his refusal to answer questions at a probation violation hearing regarding non-criminal conduct alleged to constitute the violation of probation. We answer in the negative.

Defendant was charged with violating his probation by moving from an approved residence without the consent of his probation officer. At the probation violation hearing, he was called as a witness by the State and asked how long he had remained at the approved residence, whether he had informed anyone that he was leaving the residence, and where he had resided after leaving the residence. Watson objected to each of these questions citing his Fifth Amendment privilege against compulsory self-incrimination. The court, however, required the defendant to answer. Thus, Watson’s own testimony was used to prove the allegation that he violated his probation.

While the fact of probation does not imply a total forfeiture of a probationer’s privilege against self-incrimination, it does qualify this right. Grubbs v. State, 373 So.2d 905 (Fla.1979). Specifically, it has been held that a probationer’s Fifth Amendment privilege is not infringed upon by requiring him to provide information necessary for his supervision, including his place of residence, and to explain his noncriminal conduct. State v. Heath, 343 So.2d 13 (Fla.), cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977). Moreover, when a probationer refuses to testify concerning compliance with the terms of probation relevant to residence, the judge may consider this factor in a revocation hearing. State v. Mangam, 343 So.2d 599 (Fla.1977). In fact, the court may properly infer non-compliance, and thus a violation of the condition of probation, from the probationer’s silence. Id.

Accordingly, we find that the trial court acted properly in requiring the defendant to testify. A substantial violation of probation having been established, the order of revocation is

Affirmed.

MOORE, BERANEK and HURLEY, JJ., concur.


text:
    CITY OF HOLLYWOOD, Florida, a Municipal Corporation, Appellant, v. The EVERGLADES PIT BULL CLUB, INC., et al., Appellees.
    No. 80-505.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    Rehearing Denied Oct. 8, 1980.

      Sherman Bennett Mayor, City Atty., and Andrew DeGraffenreidt III, Asst. City Atty., Hollywood, for appellant.
    David F. Cerf, Jr., Miami, for appellees.
   PER CURIAM.

This is an appeal from an order temporarily enjoining the City of Hollywood from enforcing an ordinance enacted to regulate the ownership and possession of certain breeds of dogs. Although we express no view on the eventual merits of the action, we do not believe that the requirements for securing a temporary injunction were demonstrated by appellees herein. See Contemporary Interiors, Inc. v. Four Marks Inc., 384 So.2d 734 (Fla.4th DCA 1980).

Accordingly, this cause is reversed and remanded for further proceedings consistent herewith.

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. STATE of Florida, Career Service Commission and Charles W. Hirst, Appellees.
    No. 79-208.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    H. Reynolds Sampson, Tallahassee, Gen. Counsel, and Alan E. DeSerio, Tallahassee, App. Atty., and Richard Vickers, Legal Intern, Tallahassee, for appellant.
    William G. Crawford, Jr., Fort Lauder-dale, for appellee, Hirst.
   PER CURIAM.

The State of Florida, Department of Transportation, appeals a final order of the Career Service Commission reinstating ap-pellee to his former position because the appellant failed to comply with the certified mail provision of Section 110.061(2)(b), Florida Statutes (1977) and Fla.Admin.Code Rule 22A-10.05(2).

We reverse the order on the authority of Department of Corrections v. Gandy, 374 So.2d 1081 (Fla. 1st DCA 1979) which we hereby adopt. This cause is remanded for further proceedings concerning the other grounds raised by the employee in his appeal to the Commission.

MOORE, HERSEY and HURLEY, JJ., concur.


author: WESSEL, JOHN D., Associate Judge.

text:
    Ernest J. JOHNSON, Appellant, v. The SCHOOL BOARD OF PALM BEACH COUNTY, Florida, and Thomas J. Mills, Superintendent of Schools, Palm Beach County, Florida, Appellees.
    No. 79-2355.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Richard H. Frank and John J. Chamblee, Jr., Law Offices of Frank, Chamblee & Kelly, P.A., Tampa, for appellant.
    Robert N. Goodman, West Palm Beach, Atty. for School Board of Palm Beach County, for appellees.
   WESSEL, JOHN D., Associate Judge.

Appellant failed to exhaust his administrative remedies and further relying upon the rule in Coulter v. Davin, 373 So.2d 423 (Fla.2d DCA 1979), we affirm.

AFFIRMED.

LETTS, C. J., and BERANEK, J., concur.


text:
    Alva Vida PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 80-217.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Rehearing Denied Oct. 8, 1980.
    Robert C. Hill of Engel, Aronson, Fried & Cohn, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant/defendant, Alva Yida Porter, was charged by information with aggravated battery. A jury found appellant guilty as charged and the court sentenced her to three years and one month in the state prison. She appeals her conviction and sentence raising several issues, one of which we deem necessary to discuss.

During the course of the trial, Anthony Russell entered the courtroom to testify. Juror number one raised her hand and stated that she didn’t know the witness’s name, but she recognized his face from the school where he teaches. Although she stated she could fairly judge his testimony, the court excused her “because as you go along, you may recall, as we sometimes do when we see someone sitting, and at first we kind of vaguely remember the face, maybe, and then we might remember something else, either for him or against him, . . . .” Defense counsel objected but noted no grounds.

Appellant now claims the juror’s excusal was error and that had the juror been allowed to serve the verdict might have been different. We disagree. Juror competency is a question of mixed fact and law within the sound discretion of the trial court whose determination will not be disturbed unless error is manifest. Singer v. State, 109 So.2d 7, 22 (Fla.1959). While the parties are entitled to have qualified jurors serve, they are not entitled to any particular juror. Piccott v. State, 116 So.2d 626 (Fla.1960), cert. denied, 364 U.S. 293, 81 S.Ct. 106, 5 L.Ed.2d 83 (1960). Since an alternate juror was present to whom appellant had not objected, the trial court did not err in exercising its discretion in removing juror number one. See Florida Rule of Criminal Procedure 3.280(a). The appellant here received a trial before a jury of 6 persons to whom she had no objection. The fact that one juror was replaced by the alternate has not been shown to have resulted in a miscarriage of justice to appellant. This is particularly so where the appellant’s objection was stated without advising the court of any grounds therefor. We therefore find appellant has failed to demonstrate prejudicial error,

AFFIRMED.

MOORE, J., and KAPNER, LEWIS, Associate Judge, concur.


text:
    STATE of Florida, Petitioner, v. Francesco Henry PELLICCIO, a/k/a Frank Hialeah, Respondent.
    No. 80-227.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Vincent J. Flynn of Flynn, Rubio & Tar-koff, and Gerald J. Tobin, Miami, for respondent.
   PER CURIAM.

The State has filed a petition for writ of certiorari to review the trial court’s pre-trial order excluding the State’s essential witness from testifying in the trial of this loansharking case.

The witness was deposed on two different days, once for two hours and again for several hours. During the deposition he refused, on his own, to answer any questions about certain individuals. In addition, the assistant state attorney instructed him not to answer certain questions. After the questions were certified, the trial court entered an order on respondent’s motion to compel, granting some and denying others. The State did not seek review by certiorari of the trial court’s order compelling the witness to answer certain questions.

The witness’ deposition was then taken again for the purpose of asking him the questions the trial court had ordered to be answered, and the witness continued to refuse to answer ten of the thirteen questions. On some occasions at this deposition the instruction not to answer was given to the witness by an attorney with the Justice Department, not the assistant state attorney. On others, the latter instructed the witness not to answer and announced he was doing so at the request of the federal government.

We are of the opinion that the relief sought is not warranted because a witness on deposition may not pick and choose with immunity what questions he wishes to answer, absent any recognized privilege. The State contends that the federal government, not the State, was the source of the instruction not to answer, the witness being in the federal government’s protective program. Therefore, the State.argues that it should not be penalized. Again, we point out the original decisions not to answer were made by the witness or the assistant state attorney, and the Justice Department exercised authority only at the last deposition. Moreover, it is the witness’ refusal to answer, not the source of his instruction, which we find to be material.

The State next argues that the defendant was not prejudiced by the witness’ refusal to answer and that the exclusion of the essential witness will penalize the public unnecessarily. In our opinion the public would suffer a substantially greater loss were we to permit a witness or party to dictate to the trial judge what questions the witness will answer on deposition. Accordingly, we hold the trial court was correct in excluding the witness from testifying at the trial of this cause. The petition is denied.

CERTIORARI DENIED.

MOORE, HERSEY and GLICKSTEIN, JJ., concur.


text:
    George Leroy STEPEK, Appellant, v. STATE of Florida, Appellee.
    No. 79-447/T4-426.
    District Court of Appeal of Florida, Fifth District.
    Sept. 10, 1980.
    Richard L. Jorandby, Public Defender, and Gary S. Israel, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of conviction and sentence entered by the Circuit Court for Orange County, Florida. The public defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On July 25, 1979, appellant was given thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. This court has reviewed the brief and the record herein and no reversible error appears. The motion of the public defender to withdraw is hereby granted, and the judgment of conviction and the sentence therefrom are hereby affirmed.

AFFIRMED.

ORFINGER, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    STATE of Florida, Appellant, v. George N. MUZEVSKY, Richard Williams, Mark S. Loranger, James F. Collins, and Richard S. Kollath, Appellees.
    No. 79-762.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Jim Smith, Atty. Gen., Tallahassee, Paul H. Zacks, Asst. Atty. Gen., David H. Blud-worth, State’s Atty., and William B. King, Asst. State’s Atty., West Palm Beach, for appellant.
    Philip G. Butler, Jr., of Foley, Colton & Butler, West Palm Beach, for appellees.
   ON PETITION FOR REHEARING

DOWNEY, Judge.

We previously issued an opinion in this case affirming the judgment and sentence appealed from. In that opinion we held that appellant’s Points III, IV and V were without merit and the trial court’s ruling involving said points was correct. We went to some pains to discuss Points I and II posed by the State, since those points involved the standing of all of the appellees except Muzevsky to question the search and seizure involved herein. Contrary to appellant’s contentions, we held that as of that writing it was our view the concept of standing announced in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), was still viable and until expressly changed by the Supreme Court of the United States it should be followed. Thus, we affirmed the ruling of the trial court that the defendants had standing to attack the search and seizure.

On timely petition for rehearing, the State has called to our attention the case of United States v. Salvucci, - U.S. -, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) wherein the Supreme Court of the United States overruled Jones v. United States, supra. In Salvucci, the Court held that one charged with possession of contraband does not have automatic standing to attack an unlawful search and seizure. To have standing to attack the illegality of a search and seizure the person must show that he had a legitimate expectation of privacy in the area searched.

No such showing was made by the appel-lees (except Muzevsky, and his showing of standing only applied to the house) at the hearing on the motion to suppress. Therefore, as to the appellees other than Muzev-sky the order of suppression was erroneous. Like this court, the trial court did not have the benefit of Salvucci, supra, at the time said suppression order was entered. In view of the foregoing, we hold that Muzev-sky had standing to attack the search and seizure of the house. But Muzevsky, Lor-anger, and Kollath did not have standing to attack the search of the boat, and Collins and Williams had no standing as to the search of the house.

Accordingly, the petition for rehearing is granted, our opinion of May 21, 1980, is vacated, the order of suppression is reversed, and the cause is remanded with directions that the circuit court deny the motion to suppress as to (a) all appellees with regard to the marijuana seized on the boat, and (b) all appellees except Muzevsky with regard to the marijuana seized from the house.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

ANSTEAD and HERSEY, JJ., concur.


author: DANAHY, Judge.

text:
    David S. PEMBERTON, Appellant, v. Miriam A. PEMBERTON, Appellee.
    No. 79-1004.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1980.
    Raymond E. LaPorte, Tampa, for appellant.
    A. Ann Arledge of Gordon & Maney, Tampa, for appellee.
   DANAHY, Judge.

The trial judge in this case entered a final judgment in favor of appellee for ar-rearages in alimony and child support totaling $23,292.95 and permitted execution to issue on that judgment. We find no basis to disturb the trial judge’s decision to enforce appellant’s liability to appellee in this manner. Appellee, however, concedes that the amount of the judgment is incorrect and should be reduced. Accordingly, we reverse with directions that the trial judge enter an amended final judgment reflecting the correct dollar amount as conceded by appellee.

Other than as to the amount, the final judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


author: BOOTH, Judge.

text:
    James G. DeDAKIS, Appellant, v. FLORIDA REAL ESTATE COMMISSION, Appellee.
    No. NN-411.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1980.

      James G. DeDakis, in pro. per.
    Howard Hadley, Orlando, and Salvatore A. Carpino, Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from agency action dismissing a petition to have a rule declared invalid. The petition alleges that letters of C. P. Stafford, Executive Director of the Florida Real Estate Commission, to appellant state what is in effect an agency rule which has not been adopted and is, therefore, invalid. These letters state that the provisions of Florida Statutes § 475.482, Real Estate Recovery Fund, apply to those whose licenses have been placed in inactive status as well as to those having active status. On this basis, the Commission had required that petitioner, whose license is on inactive status, pay the annual $3.50 fund fee in addition to the regular license fee.

We find that the Commission has followed the statute and that the matter does not require adoption of a rule. The statute refers to “licenses” for brokers and for salesmen, and makes no distinction between active and inactive licenses. Nor does the stated purpose of the fund lead to the conclusion that there should be no contribution by holders of inactive licenses. Such licensees may choose to return to active status at any time. They have an interest in maintaining their profession and the public’s estimate thereof in the interim. Contribution to the Real Estate Recovery Fund aids these objectives. Thus, the plain wording of the statute, its stated objective and the Commission’s practice in applying the statute are in accord. Adoption of a rule under these circumstances is unnecessary.

Accordingly, the order below is affirmed.

MILLS, C. J., and McCORD, J., concur.

      . Florida Statutes § 475.482, in part:
      475.482 Real Estate Recovery Fund-There is created the Florida Real Estate Recovery Fund as a separate account in the Professional Regulation Trust Fund.
      (1) The Florida Real Estate Recovery Fund shall be disbursed as provided in s. 475.484, on order of the board, as reimbursement to any person or corporation who is adjudged by a court of competent jurisdiction to have suffered monetary damages by reason of any of the following acts committed as a part of transaction involving the sale of real property in this state by any broker or salesman who was licensed under the provisions of this chapter at the time the alleged act was committed:

      (2) A fee of $3.50 per annum shall be added to the license fee for both new licenses and renewals of licenses for brokers, and a fee of $1.50 per annum shall be added for new licenses and renewals of licenses for salesmen. This fee shall be in addition to the regular license fee and shall be deposited in or transferred to the Real Estate Recovery Fund.


author: McCORD, Judge.

text:
    EASTERN AIR LINES, INC., and American Motorists Insurance Company, Appellants, v. David RANSFORD, Appellee.
    No. QQ-277.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1980.

      Steven R. Kronenberg of Pyszka, Kessler & Adams, Miami, for appellants.
    George M. Nachwalter of Nachwalter, Christie & Falk, Miami, for appellee.
   McCORD, Judge.

The employer/carrier appeals a workers’ compensation order which we affirm except as to the award of temporary total disability benefits and future remedial treatment. This case involves six hearings between June 27, 1977, and August 10, 1979, before the eventual entry of an order on August 27, 1979, and presents an example of the difficulties inherent in such protracted “serialized” proceedings. See also, O. H. Development Corp. v. Tejera, IRC Order 2-2990 (July 29, 1976), cert. denied, 342 So.2d 1104 (Fla.1976).

In the present case, the deputy found that the claimant reached maximum orthopedic improvement in February, 1977, but also found that the claimant had not reached total maximum medical improvement and was still temporarily totally disabled because of testimony as to related psychiatric disability which “will . require . . . treatment for an indefinite period of time in order to avoid any regression in the future, as has happened in the past.” These findings were expressly based upon the testimony, by deposition, of Dr. Zsaposnick [sic] in October, 1977 (nearly two years before the conclusion of these proceedings and the entry of an order), at a time when the claimant had ceased active treatment. Although treatment was subsequently resumed, the record contains no indication that the claimant received or sought treatment after May, 1978 (15 months before the conclusion of these proceedings). In these circumstances, we conclude that the record does not contain competent substantial evidence to support the JIC’s finding of temporary total disability at the time of the order or hearing; it may be that maximum medical improvement had been reached during the interim between May, 1978, and the August, 1979, order. Because of the lapse of time and the cloudy nature of the record, the award of future remedial treatment and continuing temporary total disability benefits from December 15, 1976, should be reversed and the cause remanded for redetermination of the issues incidental to that award. Cf., City of Fort Lauderdale v. Carter, IRC Order 2-3258 (Oct. 27, 1977).

Accordingly, the order appealed is affirmed in part and reversed in part, and the cause is remanded for further proceedings which may include the presentation of such additional evidence as the deputy may find necessary and proper to the disposition of the claim.

WENTWORTH, J., and LILES, WOOD-IE A., Associate Judge (Retired), concur.