text:
    William E. LINGOLD and Patricia E. Lingold, Appellants, v. TRANSAMERICA INSURANCE COMPANY and Robert E. Howard, d/b/a Bob Howard Construction Company, Appellees.
    No. 81-1264.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.

      Robert A. Cole and Rutledge R. Liles of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellants.
    Robert M. Sharp and W. Douglas Childs of Bullock, Sharp, Childs, Mickler & Cohen, P. A., Jacksonville, for appellees.
   COWART, Judge.

This case involves the question of whether or not a general contractor is immune under the workers’ compensation statute from suit against it by an injured employee of a subcontractor.

Appellee, as general contractor, contracted to build a residence for an owner and the contract included supplying and installing floor covering. The general contractor had a general agreement with a floor covering company to provide floor covering to fulfill the contract requirement. However, the contract provided a monetary allowance for the cost of the floor covering and the contractor permitted the owner and the floor covering company to deal directly so that the latter could provide floor covering to the owner’s satisfaction, with the owner paying the floor covering company all costs over the contract allowance paid by the general contractor. Appellant, an employee of the floor covering company, was injured on the job, collected workers’ compensation benefits from his employer then sued appel-lee, the general contractor, for negligently failing to provide a safe work place. The trial court entered summary judgment for the general contractor on the basis that it was an employer and immune under workers’ compensation from suit by appellant. This appeal results.

If appellee was required to carry workers’ compensation insurance on appellant, or see that it was carried, appellee is immune from suit by appellant; otherwise, appellee is not immune.

Under Florida law applicable in this case, an entity is required to provide workers’ compensation when it is an “actual” employer because it employs laborers under direct supervision and control or when it, as a contractor, sublets part of a contract obligation to others and thereby becomes a “statutory employer” of the subcontractor’s employees. In this latter instance, whether the subcontractor is an “independent contractor” or not is irrelevant.

In this ease, the original contract required appellee, as general contractor, to supply and install floor covering. Without regard to the question of whether the subcontractor was an “independent contractor” or was subject to the general contractor’s direct supervision, and notwithstanding that the owner had some direct dealings with appellant’s employer, the floor covering company, that entity was performing part of appellee’s obligation under the main contract, therefore under section 440.10(1), Florida Statutes (1979), the floor covering company was a subcontractor to appellee and appellant was a statutory employee of appellee. Accordingly, workers’ compensation was appellant’s exclusive remedy. The summary judgment for appellee was proper and is hereby

AFFIRMED.

ORFINGER, C. J., and FRANK D. UP-CHURCH, J., concur.

      . § 440.11(1), Fla.Stat. (1981); Conklin v. Cohen, 287 So.2d 56, 59 (Fla.1973); Smith v. Ussery, 261 So.2d 164, 165 (Fla.1972); Jones v. Florida Power Corp., 72 So.2d 285, 287 (Fla.1954).

      . § 440.10, Fla.Stat. (1979). That section was amended by chapter 80-236, section 2, Laws of Florida, effective July 1, 1980, but such amendment is not applicable in this case.

      . See § 440.02(4), Fla.Stat. (1979).

      . “A contractor is one under a contractual obligation to perform some work for another.” Motchkavitz v. L. C. Boggs Indus., Inc., 407 So.2d 910 (Fla.1981); State ex rel. Auchter Co. v. Luckie, 145 So.2d 239 (Fla. 1st DCA), cert. denied, 148 So.2d 278 (Fla.1962).

      .“To ‘sublet’ means to ‘underlet’, Webster’s New International Dictionary; in the context in which it is here used, the effect of subletting is to pass on to another an obligation under a contract for which the person so ‘subletting’ is primarily obligated.” Jones v. Florida Power Corp., 72 So.2d at 289. This passage was quoted in Conklin v. Cohen, 287 So.2d at 59 (citing Jones v. Florida Power Corp. and Smith v. Ussery) and Smith v. Ussery, 261 So.2d at 165 (citing Jones v. Florida Power Corp.).

      . See § 440.10(1), Fla.Stat. (1979).

      . See, e.g., Motchkavitz v. L. C. Boggs Indus., Inc.; Miami Roofing & Sheet Metal Co. v. Kindt, 48 So.2d 840 (Fla.1950).


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    AMERICAN SECURITY INSURANCE COMPANY, a corporation, Appellant, v. Clara E. VAN HOOSE, individually and as mother and natural guardian of Angela Van Hoose, a minor, and Alison Van Hoose, a minor, Appellee.
    No. 81-1406.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.
    John B. Fuller and Bryce W. Ackerman of Savage, Krim, Simons & Fuller, P. A., Ocala, for appellant.
    John H. Piccin of Musleh, Mippin, Atkins & Krehl, Ocala, for appellee.
   COBB, Judge.

The issue in this case is whether the trial court erred by defining the term “resident of household” in an automobile insurance policy to include appellee and her daughters who lived separate and apart from the named insured. We hold it did and reverse.

The appellee, Clara E. Van Hoose, filed suit against American Security Insurance Co. claiming that she and her daughters are entitled to recover for injuries suffered while passengers in a truck driven by an uninsured motorist which was involved in an accident on December 20, 1977. Van Hoose claims that she is covered by a policy held by her father, Hebron T. Weaver. The policy provides for coverage for injury from uninsured motorists to the named insured (Weaver) and any family member. “Family member” is defined in the policy as follows:

A person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child.

Van Hoose’s motion for a summary judgment was granted by the circuit court on October 19, 1981, and the insurance company appeals.

Appellee claims she is a family member as defined in the policy, despite the fact that she and her father do not live in the same house. It is this claim that is the focus of this appeal.

Appellee and her two daughters moved to Florida in October, 1976, after she had left her husband in Michigan. They moved into a rented house at 1342 Elliott Street, in close proximity to her father’s home at 1330 Elliott Street. The home was rented in appellee’s name and was fully equipped. In addition, the electricity was placed in appel-lee’s name.

Depositions of both the father and the daughter show that while appellee always lived apart from her father, both at 1342 Elliott and subsequently at 1333 Elliott, she relied upon him for much of her support, including utility and rent payments as well as some food bills. Van Hoose did testify that she paid the rent when she was able to do so. Her main source of income was from a job as a nurse’s aide. Prior to that, she was receiving approximately $150 per month from Aid for Families with Dependent Children. The father’s contributions to the daughter and her children can be seen in the fact that the father took one child as an exemption on his 1976 and 1977 federal income tax returns.

It was established by the testimony that the appellee and her children spent much time at the father’s house, including eating most meals there, and doing many chores around the house. Additionally, the appel-lee’s children often spent nights there when appellee was working, and appellee herself would often sleep there. Weaver often was in charge of the children, and helped prepare them for school and prepared their meals. There was only one car in the family, the father’s, and he often took the daughter to work and back. Appellee did testify, however, that she used the address of her house (1333 or 1342 Elliott) on job applications and federal income tax returns. Since the accident, Van Hoose’s mother died, and appellee has remarried and divorced, with her new husband living for a time at her home at 1333 Elliott Street.

This appeal focuses on the sole question of whether the term “resident of household” can be defined to include the appellee and her daughters who, while maintaining a very close relationship with appellee’s father, do live separate and apart from him, albeit only across the street. Black’s Law Dictionary defines “household” as:

a family living together ... those who dwell under the same roof and compose a family.

While this definition would seem to require living together in one dwelling, several cases have held that an insurance policy in some situations covers one who is not physically within the same house as the named insured. U. S. Fidelity & Guaranty Co. v. Williams, 375 So.2d 328 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980).

Appellee and apparently the lower court relied heavily on Williams to allow the ap-pellee to fall under the auto policy of her father despite the fact they were not actually living together. This reliance seems misplaced due to the different factual nature of the cases. In Williams, the evidence showed that the mother had taken out the insurance policy only for the daughter, since she herself did not drive; further, the daughter and mother often lived together in an on-and-off fashion for quite some time. In his dissent to the denial of the petition for rehearing, the writer of the original opinion, Judge Robert Smith, noted that a factual dispute was present in the testimony, and perhaps it was not proper to conclude as a matter of law that the daughter and mother resided in the same household. Judge Smith suggested a remand for further proceedings but noted that if the facts showed that they had spent substantially all their time living together, a joint residence could be seen.

In the instant case, Van Hoose was not put on the father’s insurance policy, although the father states he thought about it after the accident. Further, the appellee and her father never lived together after her return to Florida, and at all times (even presently, following the death of Mrs. Weaver, appellee’s mother) they lived apart. Appellee’s only claim to being a resident of the same household comes from the large amount of support received from her father, support which he also gave to her, although in not as large an amount, when she lived in Michigan with her previous husband. This case clearly is distinguishable from Williams.

In cases dealing with a situation where a husband and wife are recently separated, this court has held that the test for whether a wife is no longer a member of her husband’s household is not mere physical presence, but physical absence coupled with an intent not to return. Sanders v. Wausau Underwriters Ins. Co., 392 So.2d 343 (Fla. 5th DCA 1981). Analogizing that rule to this case, it is certainly obvious that Van Hoose had no intent of living with her father in his house; she did not do so at any time upon her return from Michigan, but instead had him rent a house for her prior to her arrival. She did not do so when forced to move from the original house, nor did she do so upon the death of her mother. This clearly differentiates this case from those where a temporary separation is allowed as long as intent to return is seen. See note 2, supra.

Even though it is clearly established that Weaver paid a substantial part of his daughter’s expenses, this fact alone is not sufficient to show a joint household. If two separate households are indeed set up, even if maintenance may come heavily from one source, a joint residence is not established. Cotton States Mutual Ins. Co. v. McEachern, 135 Ga.App. 628, 218 S.E.2d 645 (1975) (father contributed 50% of support, son paid some expenses in house one-and-a-half miles away, court saw separate household via intent of son); Hernandez v. Comco Ins. Co., 357 So.2d 1368 (La.App.), cert. denied, 359 So.2d 1305 (La.1978) (home on adjacent lot owned by father seen as separate since son-in-law paid own utilities, groceries, and exhibited other indicia of household). Contra: Mazzilli v. Accident & Casualty Ins. Co., 35 N.J. 1, 170 A.2d 800 (1961) (two houses built by husband on same lot prior to divorce seen as one household following divorce as to husband and wife due to continuance of a substantially integrated family relationship from marriage to present).

Here, the daughter gave sufficient indicia of having a separate household, such as putting the electric in her name, having the lease for the original house in her name, and putting that address down for job applications and on federal income tax forms. Additionally, appellee did pay some of the bills when she was able to. This is not an instance such as Mazzilli, where the relationship merely continued as it had but in a different building. Here the appellee went away for many years and was married before deciding to return to be near her parents in Florida, so no relationship can be said to have continued. Further, the fact that the houses were of such close proximity is insufficient to consider this as one household. Drake v. Donegal Mut. Ins. Co., 422 F.Supp. 272 (W.D.Pa.1976) (mother and daughter lived in same apartment building, but deemed to be two separate households).

While not denying the close relationship that the appellee and her father have, it is apparent that two households are indeed present here, requiring a denial of recovery under the insurance policy. The order below is reversed and this cause remanded with instructions for entry of a summary judgment for thé insurance company, American Security.

REVERSED and REMANDED.

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

      . The appeal is brought pursuant to Florida Rule of Appellate Procedure 9.130(a)(C)(iv).

        . See, e.g., Sanders v. Wausau Underwriters ins. Co., 392 So.2d 343 (Fla. 5th DCA 1981) (estranged wife may be seen to have two households); Miller v. United States Fidelity &

        Guaranty Co., 127 N.J.Super. 37, 316 A.2d 51 (1974) (child deemed to have two residences where spent time with mother during week and father on weekends); Travelers Ins. Co. v. Mixon, 118 Ga.App. 31, 162 S.E.2d 830 (1968) (living temporarily away does not deny residence in household); State Farm Mut. Auto Ins. Co. v. Elkins, 52 Cal.App.3d 534, 125 Cal.Rptr. 139 (1975) (temporary absence does not deny right to claim household). These cases are distinguishable from the instant case in that the absence is for a temporary time, with an intent seen to go back to the residence of the named insured. Contra, Griffin v. General Guaranty Ins. Co., 254 So.2d 574 (Fla. 3d DCA 1971) (insured seen as resident of only one home despite spending time in two).


author: COWART, Judge. DAUKSCH, Judge,

text:
    EAST COLONIAL REFUSE SERVICE, INC., a Florida Corporation, Petitioner, v. Antonio VELOCCI, Respondent.
    No. 82-561.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.

      Donald E. Grincewicz of Lawrence, Griffin & Landis, Orlando, for petitioner.
    Timothy J. Manor of Lowndes, Drosdick, Doster & Kantor, Orlando, for respondent.
   COWART, Judge.

Respondent sued petitioners in a three count complaint seeking: (1) damages for breach of an oral employment contract, (2) dissolution of the petitioner-corporation and (3) an accounting of corporate assets. Respondent then sought discovery of numerous corporation records, including the corporation’s customer lists and various corporate accounting documents. The petitioner declined to produce these items and respondent sought an order compelling production. The trial court entered an order compelling production of the items with the protective caveat that certain items were to be viewed only by respondent’s counsel. Petitioner seeks review of this order by writ of common law certiorari.

Florida Rules of Civil Procedure 1.280 and 1.350 generally provide for broad discovery in a civil trial. However, this discovery is not unlimited. Initially, it must be relevant to the subject matter of the case and be admissible or reasonably calculated to lead to admissible evidence in the case. Even after these conditions are satisfied, the particular items or information sought to be discovered may be privileged and therefore beyond permissible discovery.

Petitioner contends that the items sought to be discovered are not only irrelevant to the subject matter of either count, but are privileged as well. Section 90.506, Florida Statutes (1981) (Florida Evidence Code) recognizes a privilege with respect to trade secrets. A customer list can constitute a “trade secret” where the list is acquired or compiled through the industry of the owner of the list and is not just a compilation of information commonly available to the public. The trial court implicitly found these lists were privileged since, with regard to the list and related matters, the court limited discovery to respondent’s counsel. While we agree that the lists are privileged, respondent has not shown sufficient need for this information to entitle him to discovery. Respondent contends that discovery of the corporation’s customer list is relevant to the allegation in count I that part of his job was to obtain new business for the corporation. However, petitioner has admitted this allegation and respondent has failed to show sufficient necessity to overcome petitioner’s privilege.

Additionally, we quash the order allowing discovery of the items pertaining to the corporation’s various accounting documents. Respondent asserts that this discovery is relative to his count for dissolution of the corporation. This count is based on an allegation that the petitioners are misapplying and wasting the corporate assets. However, beyond a general allegation that the assets are being wasted, the respondent only alleges two incidents of waste; the corporate officers are paying salaries to non-employees and, for personal reasons, are hiring more employees than necessary. Such general allegations do not support such broad discovery into any and all financial aspects of the corporation; only discovery concerning the number and salary of the corporation’s various employees.

For these reasons, we grant the petition for writ of certiorari and quash the trial court’s order granting discovery with regard to items 8 through 17 inclusive.

ORFINGER, C. J., concurs.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially:

As reluctant as I am to grant certiorari to review pre-trial orders I concur with the majority based upon the record before us. Once the respondent establishes a right to an accounting, if he does, the court can permit at least some of the discovery.

      . Due to the irreparable harm involved when an order impermissibly grants discovery of a nondiscoverable item, common law certiorari is an appropriate remedy. See, e.g., Travelers Ins. Co. v. Habelow, 405 So.2d 1361 (Fla. 5th DCA 1981); Palmer v. Servis, 393 So.2d 653 (Fla. 5th DCA 1981). See generally W. Haddad, The Common Law Writ of Certiorari in Florida, 49 U.Fla.L.Rev. 207, 220 (1977).

      . See, e.g., Central Florida Skates, Inc. v. Thomas, 393 So.2d 1200 (Fla. 5th DCA), review denied, 402 So.2d 608 (Fla.1981).

      . In applying these principles to the instant case, only the first two counts of the complaint need be considered. Items possibly relevant to an accounting are not discoverable until the right to an accounting has been established. See, e.g., Charles Sales Corp. v. Rovenger, 88 So.2d 551 (Fla.1956); Ponte Vedra Recorder, Inc. v. Carpenter, 401 So.2d 834 (Fla. 5th DCA 1981); Giammaresi v. Parker, 326 So.2d 243 (Fla. 4th DCA 1976); cf. Bartolucci v. Bartoluc-ci, 399 So.2d 448 (Fla. 5th DCA 1981) (pleadings affirmatively established a right to an accounting).

        . See, e.g., Erik Electric Co., Inc. v. Elliot, 375 So.2d 1136 (Fla. 3d DCA 1979); Inland Rubber Corp. v. Helman, 237 So.2d 291 (Fla. 1st DCA 1970). See generally Annot., 28 A.L.R.3d 7 (1969) (Former employee’s duty, in' absence of express contract, not to solicit former employer’s customers or otherwise use his knowledge of customer lists acquired in earlier employment).


author: MARCUS, Justice. LEMMON, Justice,

text:
    LIFEMARK CORPORATION v. Roger GUISSINGER, Secretary, Department of Health and Human Resources, State of Louisiana, and Murray Forman, Director, Division of Health Planning and Development Department of Health and Human Resources, State of Louisiana. QUALICARE INC. v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, STATE OF LOUISIANA, et al.
    Nos. 82-C-1366, 82-C-1376.
    Supreme Court of Louisiana.
    June 15, 1982.
    Stewart E. Niles, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for relator.
    Fritz Windhorst, Gretna, James A. Cobb, Jr., Stephen M. Sullivan, Emmett, Cobb, Waits & Kessenich, New Orleans, Joseph A. Donchess, Baton Rouge, Dorothy J. Kyle, Lafayette, for respondent and applicant.
    Leon H. Rittenberg, Jr., Kenneth F. Sills, Polack, Rosenberg, Rittenberg & Edom, Stewart E. Niles, Jr., Jones, Walker, Wae-chter, Poitevent, Carrere & Dengre, New Orleans, for respondents.
   MARCUS, Justice.

Pursuant to Section 1122 of the Social Security Act, 42 U.S.C. § 1320a-l, the Secretary of the U. S. Department of Health and Human Services (DHHS) entered into a written agreement with the State of Louisiana, acting through the Division of Health, Planning and Development (DHPD) under which DHPD was named as the state designated planning agency (DPA). Section 1122 is a program designed to curb unnecessary capital expenditures by hospitals and other health care facilities. Health care providers are required to secure advance approval from state designated planning agencies for capital expenditures in order to be reimbursed with federal funds. Moreover, the Section 1122 review is designed to be a streamlined procedure and thus avoid delaying the construction of needed facilities.

Five health care providers, including Lifemark Corporation, Qualicare Inc. and National Medical Enterprises, Inc. (NME) made separate applications to DPA for advance approval of a hospital to be constructed in Slidell, Louisiana. In accordance with Section 1122 guidelines, DPA sent the applications to the local health systems agency, which, after performing an initial review of each application, recommended to DPA that the Lifemark application be approved and that the Qualicare and NME applications, as well as the others, be disapproved. However, upon further review, DPA approved the application of NME and disapproved the others. Notice of its findings and recommendations were sent to each applicant, the Secretary of the U.S. Department of Health and Human Services (DHHS) as well as to other specified agencies.

Thereafter, Lifemark and Qualicare filed separate lawsuits in the state district court, each challenging the certificate of approval issued by DPA to NME and their respective notifications of disapproval. After a hearing in the Lifemark case, the trial judge rendered judgment in favor of Lifemark and ordered that the certificate of approval issued to NME be recalled and vacated and that DPA notify the Secretary of DHHS of said order and request that the certificate of approval be returned. It was further ordered that a hearing of Lifemark’s appeal be commenced within thirty days and that the record and all conclusions of the hearing officer be forwarded to court within sixty days of said hearing. Subsequently, NME, who had not been made a party defendant, filed a petition to intervene as an indispensable party. Its right to intervene was denied. On the same day, the trial judge signed a stay order in the Qualicare suit which, in effect, granted Qualicare the same relief previously granted to Lifemark. On NME’s application in the Lifemark suit, the court of appeal granted a writ of mandamus vacating and recalling the judgment of the district court and ordering that NME be joined as a party defendant. Several days later, another panel of the same court of appeal denied NME’s application for writs in the Qualicare case. We granted Lifemark’s application in the Lifemark case and NME’s application in the Qualicare case, consolidated the cases for an expedited hearing, and ordered the stay orders issued by the trial judge in these cases recalled and vacated including notification to the Secretary of DHHS to return the certificate of approval issued to NME. All proceedings were stayed pending further orders of this court.

The threshold issues presented for our review are whether plaintiffs (Lifemark and Qualicare) are entitled to oppose the certificate of approval issued to NME and whether plaintiffs are entitled to judicial review of their respective notifications of disapproval prior to the exhaustion of their administrative remedies. We think not on each issue.

Under Section 1122 of the Social Security Act, Congress only required participating states to establish procedures by which adverse decisions of the DPA may be appealed by proponents of capital expenditures. The implementing federal regulations provide in pertinent part:

The request for a hearing must be made in writing, to the designated planning agency, within 30 days after the date on which the person proposing the capital expenditure receives notice of an adverse finding or recommendation of the designated planning agency. (Emphasis added.)

42 C.F.R. § 100.106(c)(1). The law does not require the establishment of such appeal procedures for opponents of proposals that have been approved and Louisiana has established none. 42 U.S.C. § 1320a-l(d)(l)(B)(ii)(II); Hollingsworth v. Schweiker, 664 F.2d 526 (5th Cir. 1981); Wilmington United Neighborhoods v. HEW, 615 F.2d 112 (3d Cir.), cert. denied, 449 U.S. 827, 101 S.Ct. 90, 66 L.Ed.2d 30 (1980). We consider the omission of such a procedure significant. As previously indicated', the Séction 1122 review process is designed to be a streamlined procedure to avoid delays in the construction of needed facilities. Providing a proponent whose capital expenditure has been disapproved a hearing does not conflict with this clear objective for streamlined proceedings because there has already been a finding that the proposed capital expenditure is unnecessary. On the other hand, providing a hearing to opponents of a proposed capital expenditure would make this objective unreachable for any number of opponents could seek a hearing on any number of grounds with the result that a capital expenditure found to be necessary could be delayed indefinitely. See Wilmington United Neighborhoods v. HEW, supra. Since federal law does not contemplate a procedure for the opponents of proposals that have been approved and Louisiana has not established one, we must conclude that plaintiffs are not entitled to oppose the certificate of approval issued to NME. Therefore, the trial judge erred in recalling and vacating the certificate of approval issued by DPA to NME.

The procedure for appeal in the case of an “adverse finding or recommendation” of the designated planning agency (DPA) is set forth in the federal regulations. Generally, it provides that a dissatisfied proponent who wishes to appeal may request a hearing before a hearing officer, whose decision, to the extent that it reverses or revises the findings or recommendations of the DPA, supersedes those findings or recommendations. We do not consider that the scheme contemplates judicial review until such time as the hearing officer has rendered a decision. Plaintiffs, who concede that their lawsuits were filed prior to commencement of the hearings, attempt to rest their right for judicial review on the Administrative Procedure Act, La.R.S. 49:964(A), which provides that a preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury. Even assuming for the sake of argument that the Administrative Procedure Act applies to the Section 1122 process, we do not agree that La.R.S. 49:964(A) applies in the instant case. We consider that the regulations set forth a streamlined procedure for administrative review which affords plaintiffs an adequate remedy from the issuance of the negative recommendations. Moreover, we do not consider that any irreparable injury will result from waiting until a “final decision or order” is rendered in the “adjudication proceeding.” Hence, we conclude that plaintiffs are not entitled to judicial review of their respective notifications of disapproval prior to the exhaustion of their administrative remedies. Therefore, the trial judge erred in ordering that the appeals be commenced and thereafter the recommendations and all conclusions of the hearing officer be forwarded to court.

In accordance with our conclusions that plaintiffs are not entitled to oppose the certificate of approval issued to NME and that plaintiffs are not entitled to judicial review of their respective notifications of disapproval prior to the exhaustion of their administrative remedies, we must order that plaintiffs’ suits be dismissed at their respective costs and that all judgments and orders previously rendered in these cases be vacated and set aside.

DECREE

It is ordered that plaintiffs’ suits be dismissed at their respective costs and that all judgments and orders previously rendered in these cases be vacated and set aside.

CALOGERO, J., recused.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

The federal regulations at issue in these proceedings do not expressly authorize disapproved parties to obtain a stay of action by the Secretary on the DPA’s approval of a competing party’s proposal until the disapproved parties obtain judicial review. If the federal regulations are to be interpreted as contemplating that the DPA’s recommendation should not be acted upon by the Secretary until the competing disapproved parties are afforded judicial review, then the federal courts should make that interpretation of Congressional intent.

Arguably, if the state court ultimately has jurisdiction to review the DPA’s disapproval of competing proposals after completion of administrative procedures, then the state court has jurisdiction to issue needful writs in aid of that jurisdiction in order to prevent the question from becoming moot. However, since the Louisiana Legislature has not required comparative hearings (and the disapproved parties did not request comparative hearings prior to the decision of the DPA), and since neither Congress nor the Legislature has provided for a delay in the DPA’s notice of its recommendation to the Secretary until judicial review is afforded to competing disapproved parties, the state courts should not read between the lines and interpret the federal regulations so as to afford that right to the disapproved parties. The Congress, clearly intended a streamlined procedure, and the state court should not frustrate that clear intention by inferential interpretation of the federal regulations.

      .The federal regulations for the implementation of Section 1122 are found in 42 C.F.R. § 100:101, et seq. The Louisiana rules, promulgated in accordance with the federal regulations are found at 6 La.Register 601.

      . (La.App. 1st Cir. 1982).

      . (La.App. 1st Cir. 1982).

      . 414 So.2d 1247 (La. 1982).

      . For example, the DPA is required to complete its review of an application within sixty to ninety days of receiving it and, if the DPA fails to render its decision within the allotted time, the application is deemed approved for Section 1122 purposes. 42 C.F.R. § 100.106(a)(4).

      . 42 C.F.R. § 100.106(c) provides in pertinent part:
      (1) The request for a hearing must be made in writing, to the designated planning agency, within 30 days after the date on which the person proposing the capital expenditure receives notice of an adverse finding or recommendation of the designated planning agency.
      (2) The hearing shall be commenced within 30 days after receipt of the request described in paragraph (c)(1) of this section (or later, at the option of the person requesting the hearing), and shall be conducted in accordance with the applicable requirements of State law and by such agency or person, other than the designated planning agency, as the Governor (or other chief executive officer of the State) may designate for that purpose: Provided, That no agency which or person who has taken part in any prior consideration of or action upon the proposed capital expenditure may conduct such hearing.. ..
      (3) As soon as practicable, but not more than 45 days after the conclusion of a hearing, the hearing officer shall notify the person who requested the hearing, the designated planning agency, the other agencies described in § 100.105 who participated in the hearing, and other interested parties at the discretion of the hearing officer, of his decision and the reasons therefor....
      (4) Any decision of a hearing officer, arrived at in accordance with this paragraph, shall, to the extent that it reverses or revises the findings or recommendations of the designated planning agency, supersede the findings and recommendations of the designated planning agency: Provided, That where judicial review of such decision is obtained, the final decision of the reviewing court, to the extent that it modifies the findings and recommendations of the designated planning agency, shall to such extent supersede the findings and recommendations of the designated planning agency.
      (5) To the extent that any decision of a hearing officer pursuant to this paragraph requires that the designated planning agency take further action, such action shall be completed by such date as the hearing officer may specify. Failure by the designated planning agency to complete such action by such date shall have the effect of a finding that the proposed capital expenditure is in conformity with the standards, criteria, and plans described in § 100.104(a)(2).

      . See 6 La.Register 607.

      . We expressly decline to address at this time the issue of the applicability of the Administrative Procedure Act to the Section 1122 process.

      . Indeed, the federal regulations apparently do not contemplate a situation involving competing proposals.

      . While the federal court will not review the state proceedings, the federal court can stay the Secretary’s action on the DPA’s recommendation until there is a state judicial review of the proceedings, if the federal court believes that such action was contemplated by Congress.


author: FRED C. SEXTON, Justice Ad Hoc.

text:
    STATE of Louisiana v. Anthony L. RUSSELL.
    No. 81-KA-2467.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren J. Hebert and Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Timothy M. Screen and David Randall Buckley, Jeffery Calmes, Baton Rouge, for defendant-appellant.
   FRED C. SEXTON, Justice Ad Hoc.

Defendant, Anthony L. Russell was charged in a three-count bill of indictment with aggravated rape, armed robbery, and aggravated burglary, violations of LSA-R.S. 14:42, 14:64, and 14:60, respectively. On April 13-16,1981, he was tried by a jury of twelve persons and was found guilty of the responsive verdict of forcible rape on Count One, and guilty as charged on Counts Two and Three.

Thereafter he was sentenced on Count One, to 40 years at hard labor; on Count Two, to 80 years at hard labor; and on Count Three to 20 years at hard labor. Each sentence was assessed concurrently to the other counts and without benefit of probation, parole or suspension. Defendant originally asserted nine assignments of error and argues the first six of these before us. Accordingly assignments 7, 8 and 9 are considered abandoned. State v. Edwards, 261 So.2d 649 (La.1972).

FACTS

Testimony at the trial indicated that early on the morning of December 3, 1980, Marlin Michelle Troxell was awakened in her bedroom at 3251 Carlotta Street in East Baton Rouge Parish by a black male later identified as the defendant. A hallway light shone sufficiently to enable Michelle to view the intruder’s face and the knife which he held in his hand. The assailant removed a necklace and rings from Michelle and then undressed her prior to having sexual intercourse with her, all the while holding the knife in his hand. Thereafter he rummaged through her dresser and closet. Michelle testified that after the rape, while the defendant was walking around the bedroom he told her not to look at him. She stated she asked if it was alright to call him “Dave” and he agreed. Prior to leaving the defendant also took money and Michelle’s driver’s license from her wallet, which license contained her parents’ address. After reporting the offense and the ensuing hospital examination, she selected the defendant out of a six man lineup some ten days after.

About four days after this incident, the victim’s parents began to receive suspicious phone calls at their home, the address on Michelle’s stolen driver’s license. In one of these calls Michelle’s mother answered the phone and the male caller asked to speak to “Marlin.” Upon calling her husband to the phone, thinking that was whom the caller wanted, the caller hung up. Later that same evening when another call was received by Mrs. Troxell asking for Marlin, she was asked by the caller if she knew who was calling. Having learned of the details of the incident from her daughter, she answered in the affirmative that the caller was “Dave.” He stated he could not talk long and would call back soon as he could. He called again a few minutes later and apparently thinking he was speaking to Michelle inquired “Why are you doing this?” He went on to remind her that she had promised not to call the police if he did not hurt her. He further reminded her he did not hurt her and told her he knew that she had been to the hospital. He told her she had been followed and that someone was continuously watching her, stating that “Even if I go, it doesn’t matter.” He went on to state that he had been to prison before and that there were others who would take care of her.

Mrs. Troxell coincidentally worked for the phone company and arranged to have the line traced.

She continued to receive several more calls and pretended each time to be her daughter, engaging in fairly lengthy conversations with the caller during which the caller stated that she was picked at random by others and that he was directed to her. He told her that he was ordered to hurt her and a conversation ensued about whether the caller was proud of his actions and how he would feel if a similar event had happened to a female relative of his. Mrs. Troxell pretended that the ring which was taken during the incident had been given to her by a boyfriend and contended that she wanted it back, trying to make arrangements to meet with the caller. As the caller was testifying that arrangements could be made for the return of the jewelry the caller put the phone aside apparently saying “just a moment.” She then heard muffled voices and the caller returned and got off the phone.

Early in the morning hours of December 9 the last of these calls was traced and Detective Odom was notified. He went to the address to which the phone was registered and subsequently arrested this defendant who resided there with his mother and father.

ASSIGNMENT OF ERROR NO. 1

Defendant, in assignment of error number one, asserts that the trial court erred in denying his motion to suppress the lineup identification, asserting that he was subjected to the lineup without being advised of his right to counsel or making a knowing and intelligent waiver of that right, as per the Sixth and Fourteenth Amendments to the United States Constitution. He further contends that the manner in which the lineup was conducted by the officers involved violated his due process rights under the Fourteenth Amendment.

The defendant testified that prior to the lineup he and the other participants were taken to a room where numbered tags for use in the lineup were on a table. He chose tag number two, placing it around his neck. But before the lineup actually started he switched numbers with another party in the lineup and became number five.

He further testified at the motion to suppress that upon entering the lineup room someone behind the mirror, whom he assumed to be the victim, hollered out that it was number two and that she was sure of that. He stated he was later informed that he had been picked out of the lineup. Lawrence Johnson testified during the trial itself that he was indeed lineup participant number two and that he heard someone say that number two was the culprit. Detective Ben Odom who conducted the lineup denied that the victim picked number two as her assailant and testified that her choice was definitely number five. He further testified that she was not prompted in any way, to his knowledge, by any other officers present.

Detective Odom testified at the motion to suppress that as a matter of course he called the public defender’s office, not because the defendant requested it, because that was his procedure when he was conducting a lineup when the defendant was represented by that organization.

Louisiana has followed the United States Supreme Court’s limitation of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) in holding that presence of counsel at a preindictment lineup is not a due process requirement. State v. Stewart, 389 So.2d 1321 (La.1980). But see State v. Thomas, 406 So.2d 1325 (La.1981).

Furthermore just as in Stewart, supra, it appears that the unrequired good faith effort was made by the police to notify defendant’s counsel of the intention to hold a lineup.

Additionally, even assuming arguen-do the validity of the defendant’s position, it is abundantly clear from this record that the victim’s in court identification of the defendant stems from her independent recollection of the defendant from the time of the offense and was not a product of a tainted lineup. She had ample opportunity to view him and testified that her bedroom was well lit from a light in the hallway. Also she testified that it had become light outside prior to his leaving. She had intimate contact with him for at least 30 minutes and had conversation with him as he rummaged through her things, as he stood at one point at the bedroom door to the hallway with the light behind him. Her description of the defendant to the police immediately following the incident was detailed. At the trial she was positive that her assailant was number five in the lineup.

Thus this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

By assignment of error number two the defendant asserts that the trial court erred in admitting improper hearsay testimony of Florrie Troxell, the victim’s mother, to the effect that her daughter had told her that she had called the defendant by the name of “Dave.”

This statement was offered to prove that Mrs. Troxell had called the defendant by the name “Dave” so that when she spoke to him on the phone she was able to tell who he was, as discussed in assignment of error number three. This testimony was not offered to prove the matter asserted, that the defendant’s name was “Dave,” but rather that she knew that her daughter had called the defendant by that name. The evidence was thus offered merely to show that the conversation had occurred and to explain the use of the name “Dave” by the victim’s mother during her subsequent phone conversation with the defendant. Under these circumstances the evidence is not hearsay. State v. Toomer, 395 So.2d 1320 (La.1981).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

Here the defendant argues that the trial court erred in allowing the introduction of certain inculpatory statements made by the defendant for which no notice was provided as per LSA-C.Cr.P. Art. 768.

This argument pertains to the testimony of the victim’s mother, Mrs. Florrie Troxell, who testified extensively as to conversations which she had with a person who identified himself on the phone as “Dave.” “Dave” gave statements which were incriminating in nature as were previously chronicled herein in the recitation of facts. It should be noted that in spite of several efforts Mrs. Troxell was unable to identify the voice of the defendant as being the phone caller. However the implication from the evidence is that when she was talking to him on the telephone someone came to his door and he subsequently returned and hung up. The police officer who arrested him testified that when the defendant came to the door he told the officer to wait because he was on the phone. (This statement is treated in another assignment of error and is not of concern here as there is no evidence that Mrs. Tro-xell heard the statement.)

In response to the defense discovery motion inquiring whether defendant made any oral confession or statement of any nature, the state responded “yes.” The motion made no additional inquiry as to when, where or to whom any such confession or statement was made. Thus the defense was on notice that a statement existed, but failed to pursue the matter. The state thus complied with LSA-C.Cr.P. Art. 716(B).

An “inculpatory statement” has been defined as an out of court admission of incriminating facts made by the defendant after the crime has been committed. State v. Brumfield, 329 So.2d 181 (La.1976).

We have serious concern whether the statement introduced herein comes within the definition just noted. We are mindful of State v. Bodley, 394 So.2d 584 (La.1981), where the defendant, known to the person to whom he was talking, stated that the deceased was doing fine and had gone to work that morning. The coroner’s evidence was that the victim had died prior to the time of that telephone conversation and thus the conversation suggested an active attempt to conceal the victim’s death. The rationale in Bodley was that the statements were exclupatory rather than inculpatory and contained no admission as to any element of the offense of murder for which the defendant was charged. The court noted that the statements were not damaging until coupled with other testimony.

Such is also the case here. The testimony of the witness was not that this defendant made those statements but rather some person whose voice she was never able to recognize as the defendant, known to her as “Dave,” made the statements. It can be argued that it was the other evidence when coupled with the fact of the statements that were incriminating, rather than the content of the statements themselves.

However, assuming arguendo that this is the type statement for which a 768 notice is required, we find no prejudice in the state’s failure to render such a notice in this case, and thus a reversal is not mandated. State v. Thomason, 353 So.2d 235 (La.1977); State v. Qualls, 353 So.2d 978 (La.1977); State v. Sneed, 316 So.2d 372 (La.1975).

The purpose of the statutory scheme of LSA-C.Cr.P. Arts. 766-768 was to prevent surprise and allow adequate time for the preparation of the defense, as well as to avoid certain problems that had been attendant to mentioning of confessions or in-culpatory statements in the state’s opening statement.

The defense did not complain of surprise either at the trial itself or before this court. A reading of the entire record would tend to indicate that the defense was aware of this evidence. The defense had been apprised of the existence of oral statements in the state’s response to the defense motion for discovery, which the defense did not formally pursue. Also, no showing of actual prejudice was made. The circumstances are similar to Sneed, supra, where the minutes indicated that the defense motion for oyer of oral confessions or statements had been agreed to by the state, but there was no 768 notice.

Thus any error in failing to furnish a 768 notice, if indeed necessary, is without prejudice and harmless. LSA-C.Cr.P. Art. 921; Thomason, supra, Qualls, supra, and, Sneed, supra.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends in assignment of error number four that the trial court erred in denying a defense motion for mistrial based upon testimony about past crimes of the defendant as testified to by Florrie Troxell, the mother of the victim.

As we have noted, Mrs. Troxell testified that her daughter had related the events of the offense to her and that she received a phone call from a party who apparently thought she was her daughter. The caller asked if she knew who it was and she had responded that it was “Dave” (the name her daughter had given the assailant). She testified that the caller asked her why she was “doing this.” She further testified that he stated that “I promised that I wouldn’t hurt you if you wouldn’t call the police and I did not.” He then stated:

“. . . even if I go, it doesn’t matter. I’ve been to prison before . . . there are others who will take care of you. They’ll carry on.”

There was no contemporaneous objection to this testimony but after cross-examination and the luncheon recess defense counsel moved for a mistrial.

In his charge to the jury, the trial judge instructed the jury that if there was any evidence that tended to show that the accused had committed any other offense for which he was not on trial that they were not to consider any such evidence in weighing his guilt or innocence as to the crime for which he was charged.

It is well settled that objections not timely raised are not to be considered on appeal. State v. McDermitt, 406 So.2d 195 (La.1981). Furthermore the remark was not made by any of the officials enumerated by LSA-C.Cr.P. Art. 770. Here the state’s witness was merely responding to a question concerning a conversation that was evi-dentiary in nature and was testifying to a statement by “Dave.” Thus it is evidentia-ry in nature and is not the type evidence of a previous conviction contemplated by LSA-R.S. 15:495.

Furthermore the state was in good faith and any conceivable error was cured by the trial court’s instruction.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5

The defendant urges that the trial court erred in denying his motion for mistrial based on the testimony of Detective Ben Odom involving an alleged incul-patory statement of defendant, without pri- or notice under LSA-C.Cr.P. Art. 768.

The state had elicited testimony from Detective Odom that he had gone to defendant’s residence in the early morning hours of December 9, after a trace of a phone call received by Mrs. Troxell had directed him to that residence. Detective Odom testified that the defendant answered the front door and after the officers identified themselves he allowed them to enter the residence. Detective Odom stated that the defendant left the room and went into a room which he later determined was the defendant’s parents’. The following exchange occurred:

“Q. Was there a phone in that room?
A. According to his father there was. I didn’t see a telephone but I didn’t look in the bedroom either except to ascertain that that was their bedroom.”

Thereafter on cross-examination defense counsel asked Detective Odom:

“Q. And you said on that particular occasion you did not check to see where if any phone, where it was located?
A. I was advised by one of the members of the residence—
Q. Of your own personal knowledge.
A. No, I did not check.
Q. You didn’t see Anthony Russell go to any phone?
A. No, I saw him go into the bedroom.
Q. And you didn’t see Anthony Russell talking on the phone?
A. No, I did not.”

and later asked:

“Q. Did Anthony Russell tell you he knew nothing about this event?
A. Yes, he did.”

On re-direct, the state then proceeded as follows:

“Q. Officer, defense counsel asked you did Anthony Russell tell you he did not do it? I’d like to ask you, you previously testified you had arrived at the Russell residence — what is it, 2161 Kentucky Street — you testified that Anthony Russell was the one who answered the door?
A. Yes, sir.
Q. Okay. What did he say right at that time?
A. He said, I’ll be with you in a minute; I’m on the telephone.
Q. He said he was on the telephone?
A. Yes, sir.”

After a short re-cross examination, defense counsel moved for a mistrial based on the failure of the defense to receive a 768 notice of inculpatory statements.

It appears here that the state was merely attempting on re-direct examination to clarify an area brought out by defense on cross-examination. When the defense opens the door for a particular area on cross-examination it then becomes a proper subject matter for re-direct for the purpose of eliciting an explanation of the testimony brought out by defense on cross-examination. State v. Kirsch, 363 So.2d 429 (La.1978); State v. Overton, 337 So.2d 1201 (La.1976); State v. Hollingsworth, 337 So.2d 461 (La.1976).

Moreover the statement here to the effect “Just a minute, I’m on the telephone,” in the context here made is not such an out of court admission of facts, circumstances or involvement from which guilt may be inferred so as to require notice under LSA-C.Cr.P. Art. 768. State v. Bodley, 394 So.2d 584 (La.1978); State v. Brumfield, 329 So.2d 181 (La.1976); State v. Brent, 347 So.2d 1112 (La.1977); State v. Fink, 255 La. 385, 231 So.2d 360 (1970).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 6

In assignment of error number six the defendant contends that the trial court erred in denying defense counsel the opportunity to individually question the jurors with regard to their possible exposure to an allegedly prejudicial newspaper article.

On the third day of the trial the defense counsel noted to the court a newspaper article published the day before which stated that the trial judge had denied a motion to suppress a lineup identification and that the defendant had testified outside the jury’s presence that he had switched numbers during the lineup with another inmate, and that the victim had initially chosen this other individual. The article was not filed in evidence but was quoted by defense counsel. Defense counsel then requested the right to question each of the jurors as to possible prejudice individually and out of the hearing of other jurors, which motion was denied. The jury was returned and the trial judge then asked each juror individually, after reminding them of their oath as a juror, whether they had any personal knowledge of the article or whether it had been brought to their attention by any friend or relative. All denied any such knowledge.

A mistrial is not warranted absent a determination that the jurors were actually exposed to the publicity in question and were so impressed by it as to be incapable of rendering a fair and impartial verdict. LSA-C.Cr.P. Art. 775; State v. Monk, 315 So.2d 727 (La.1975). Here questioning by the trial judge of each juror showed that none of the jurors had been even exposed to the newspaper article complained of, much less prejudiced thereby. (The trial judge had consistently warned the jurors during the trial to avoid contact with any of the press accounts thereof.)

Therefore this assignment of error lacks merit.

For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.

       Judges Fred C. Sexton, Jr., and William Norris, III, of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . Michelle’s full name is Marlin Michelle Tro-xell and she is called Michelle as Marlin is the name by which her father goes.

      . LSA C.Cr.P. Article 716(B)

      B. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.

      . See Justice Tate’s excellent discussion of the history and purpose of Articles 766 et seq. in State v. Sneed, supra, and the authorities cited therein.

      . LSA-C.Cr.P. Article 770. Prejudicial remarks; basis for mistrial
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or nation origin, if the remark or comment is not material and relevent and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

      . LSA-R.S. 15:495

      § 495. Impeachment by evidence of conviction; condition precedent to proof by others; prohibition against cross-examination as to indictment or arrest
      Evidence of conviction of a crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.
      Amended by Acts 1952, No. 180, § 1.


author: DIXON, C. J.,

text:
    CITY OF NEW ORLEANS v. Donna NELSON.
    No. 82-K-1613.
    Supreme Court of Louisiana.
    June 25, 1982.
   DIXON, C. J.,

concurs in the denial; this application requests a declaratory judgment concerning the powers of municipal court judges — a matter inappropriate in this criminal proceeding.


author: DIXON, Chief Justice.

text:
    Mrs. Francois Maude DETRAZ et al. v. Anthony J. FONTANA, Jr. et al.
    No. 81-C-3033.
    Supreme Court of Louisiana.
    July 2, 1982.
    Anthony J. Fontana, Jr. of Theall & Fon-tanna, Abbeville, for applicants.

      Paul G. Moresi, Jr. of Broussard, Brous-sard & Moresi, Ltd., Abbeville, for respondents.
   DIXON, Chief Justice.

In a third party demand to a libel suit third party defendants Hulin and the police jury filed a rule to require third party plaintiffs Fontana and Dore to furnish a bond for attorney’s fees under R.S. 42:261 E. Fontana and Dore opposed the rule on the ground that the statute violates the equal protection clause of the state and federal constitutions, that Hulin and the police jury are not public officials, and that no attorney’s fees were being incurred by the third party defendants because they were represented by the district attorney. On November 20, 1980 the trial court ordered Fontana and Dore to post bond in the amount of $15,000 before December 20, 1980, in default of which the third party demand would be dismissed. No bond was posted; on December 23, 1980 the third party claim was dismissed with prejudice.

The court of appeal upheld the constitutionality of R.S. 42:261 E. The trial court’s ruling was reversed insofar as it applied the provision to the police jury, the court noting that the statute does not encompass public bodies; the court also ruled that the third party demand should have been dismissed without prejudice. 406 So.2d 248 (La.App. 1981).

We granted certiorari to address the constitutional challenges raised by third party plaintiffs.

1. History
R.S. 42:261 E provides:
“Any party who files suit against any duly elected or appointed public official of this state of or any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office other than matters pertaining to the collection and payment of taxes and those cases where the plaintiff is seeking to compel the defendant to comply with and apply the laws of this state relative to the registration of voters, and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorneys fees shall be fixed by the court.
The defendant public official shall have the right, by rule, to require the plaintiff to furnish bond as in the case of bond for costs, to cover such attorneys fees before proceeding with the trial of said cause.” (Footnote omitted).

By Act 304 of 1960 the legislature added subsection D (now E) to R.S. 42:261; it was passed by a unanimous vote of each branch of the legislature and signed into law by Governor Jimmie Davis. Although the legislative history of this particular act is not available, a review of documents endorsed by the legislature during the 1960 Regular Session reveals the motivating force behind the passage of many of these bills. The legislature approved thirty-five acts and proposed four constitutional amendments which deal with interracial relations. Wol-lett, Race Relations, 21 La.L.Rev. 85, n. 1 (1961). According to Professor Wollett:

“Many of these acts do not purport, on their face, to deal with segregation or any other aspect of race relations as such. It seems likely, however, on the basis of the facts set forth in legislative debates, discussions, and comments, that in operation they will affect primarily the Negro population of the state.”

A joint resolution of the legislature evidences the contempt of state leaders for the decision of the United States Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). In the resolution the state legislature announced its determination to carry on the fight to “maintain segregation of the races in all phases of our life in accordance with the customs, traditions and laws of our State ...” The statute now before us would further this purpose by making it extremely costly, if not prohibitive, for minority groups or individuals to bring suit against any public official (school board member, police officer, police juror) for the redress of grievances suffered because of race. The statute classifies litigants as either public officials or those not public officials. Public officials can recover attorney’s fees if the plaintiff is unsuccessful, and obtain a bond for attorney’s fees before trial. Defendants who are not public officials can recover attorney’s fees only in certain kinds of cases as provided by statute.

Wide discretion is normally afforded legislative classifications; the legislative judgment will be upheld “if any state of facts reasonably may be conceived to justify it.” McGowan v. State of Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961). Racial classifications, however, must be considered in “light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.” McLaughlin v. State of Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222, 228 (1964). For this reason, racial classifications are suspect and subject to the “most rigid scrutiny.” Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Brown v. Board of Education, supra. If viewed by this stringent test the statute could not pass constitutional muster (if it were established that racial reasons caused the classification, a fact not evident from the face of the statute). The purported purpose of protecting public officers from litigation brought solely for its harassment value would not satisfy the requirement of a “compelling governmental interest.” Shapiro v. Thompson, 394 U.S. 618, 89 5.Ct. 1322, 22 L.Ed.2d 600 (1969).

Other than suits for taxes or voter registration, the statute applies to suits, of whatever kind, brought by any person, including paupers, so long as the party defendant is a public official.

The appellate courts have fashioned various jurisprudential exceptions to the statute to avoid its harsh application. In Jones v. Anderson, 277 So.2d 697 (La.App.1973), writ denied 279 So.2d 697 (La.1973), the court held that a bond for attorney’s fees could not be imposed on an indigent. The court examined the language in R.S. 42:261 E which states that the plaintiff may be required to furnish bond “as in the case of bond for costs” and analogized this provision to R.S. 13:4522, concluding that since no bond for costs can be required of an indigent under the latter statute, no bond could be demanded under R.S. 42:261 E.

In Cogswell v. Town of Logansport, 321 So.2d 769 (La.App.1975), writ denied, 322 So.2d 768 and 323 So.2d 479 (La.1975), a writ of mandamus was sought by a town to compel its police chief to put an abandoned trailer in the abandoned vehicles lot. The police chief asked that the town post bond. On original hearing, the court held that R.S. 42:261 E does not apply to mandamus actions where suit is brought to compel performance of an official duty. (On rehearing, the court decided a stipulation by the parties that the officer was sued on a matter arising out of the performance of his duties precluded a determination of whether mandamus was intended to be within the actions to which the statute applies).

In Collins v. Rozands, 385 So.2d 332 (La.App.1980), the court avoided the constitutional question by finding that the public officials were represented by insurance companies who were paying the expenses of defense, and, therefore, no attorney’s fees were actually “incurred” by any official.

One appellate court has upheld the statute against constitutional attack. In Houston v. Brown, 292 So.2d 911, 915 (La.App. 1974), an action was brought against the City of Shreveport and a police officer for personal injuries sustained during an arrest. The court held that the statute did not deny “a meaningful opportunity to be heard,” and that the Fourteenth Amendment did “not demand access to the courts for all individuals in all circumstances.” The bond requirement was considered a legitimate exercise of legislative control over litigation.

2. Equal Protection

The state and federal constitutional guarantees of equal protection mandate that state laws affect alike all persons and interests similarly situated. U.S.Const.Amend. XIV; La.Const, art. 1, § 3 (1974). The effect of the bond requirement is to create two classes of litigants indistinguishable from each other except that one is a private citizen and the other is an elected or appointed public official. As a result of this distinction the class composed of public officials is entitled to demand that a bond for attorney’s fees be furnished before the litigation may proceed; no corresponding privilege is afforded members of the other class. Litigants generally are required to pay their own attorney’s fees in Louisiana. Failure to post the bond will result in dismissal of the lawsuit. This statutory scheme creates a classification which substantially burdens the right of some persons to be compensated for injuries suffered by them while not placing such a burden on other individuals. Such classifications are permissible only if they are:

“. .. reasonable, not arbitrary, and . .. rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.... ” Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed.2d 989, 990-991 (1920).

Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225, 229 (1971); Dandridge v. Williams, 397 U.S. 471, 520-522, 90 S.Ct. 1153, 1179-1180, 25 L.Ed.2d 491, 522-523 (1970) (Marshall, J., dissenting).

It is argued that the bond requirement is a justifiable means to deter frivolous suits instituted against public officials for harassment. No support for the suggestion that suits are brought against public officials for harassment with greater frequency than suits against other defendants has been presented in brief or in argument.

A similar statute was invalidated in Sheffield v. State, 92 Wash.2d 807, 601 P.2d 163 (1979), on an equal protection ground. In that ease, the court summarily struck down a provision which entailed the filing of a surety bond contemporaneously with institution of suit against the state, relying on Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845 (1975). Hunter dealt with a “nonclaim” statute which required notice of claims against governmental entities to be given within 120 days from the date the claim arose. The court held that, even under minimal scrutiny, the statute bore no reasonable relation to its asserted purposes — it unjustifiably discriminated against persons with claims against the government in violation of the equal protection clause of the Fourteenth Amendment.

“... This prerequisite to tort recovery has no counterpart in actions between private parties. The statutes thus create two classes of tortfeasors, governmental and nongovernmental, and grant the one a procedural advantage not available to the other. Concomitantly they produce two classes of tort victims and place a substantial burden on the right to bring an action of one of them.” Hunter v. North Mason High School, supra, 539 P.2d at 847.

In the case before us, the instant statute also divides tortfeasors into two classes: governmental tortfeasors and private tortfeasors. Simultaneously two classes of victims are created: victims of governmental tortfeasors and victims of private tortfeasors. Only the first class of victims must suffer the additional burden of a bond for attorney’s fees. No reasonable justification for this disparate treatment has been supplied. The statute violates the equal protection clauses of the state and federal constitutions.

3. Due Process and Access to Courts

The challenged provision is also defective because it deprives the plaintiff of due process and denies open access to the courts. U.S.Const.Amends. V, XIV; La. Const. art. 1 §§ 2, 22 (1974). In Beaudreau v. Superior Court of Los Angeles County, 14 Cal.3d 448, 121 Cal.Rptr. 585, 535 P.2d 713 (1975), a cost bond statute was struck down on the ground that it constituted a taking of property without a prior hearing in violation of the due process clause of the Fourteenth Amendment. The court noted that the purpose of the challenged sections was to protect public entities and public employees against unmeritorious litigation. As in this case, decisional law allowed the plaintiff an opportunity to qualify to proceed in forma pauperis. Under the statute, the court reasoned that a taking occurs if the plaintiff refuses to post the bond and thereby relinquishes his property interest in the form of his claim against the public entity or employee. Conversely, should the plaintiff secure his undertaking from a corporate entity, he will forfeit the nonrefundable premium; if money is deposited in court, the plaintiff is deprived of its use during pendency of the suit. The court concluded that due process mandates a hearing before the undertaking is posted to inquire into the merits of the litigation and the reasonableness of the amount of the bond in light of the defendant’s probable expenses.

In Williams v. London, 370 So.2d 518, 521 (La.1979), Judge Tate observed in a concurring opinion that the constitutionality of R.S. 42:261 E was not before the court. Citing Beaudreau v. Superior Court of Los Angeles County, supra, he stated that the Louisiana statute is invalid for reasons similar to those used to invalidate the California statute:

“... a requirement that a citizen furnish a bond and be liable for attorney’s fees when he sues a public official, whereas an official suing a citizen need not file bond or be liable for attorney’s fees, is in my opinion unconstitutional. For one reason, the statute offends Art. 1, Section 22, La.Const. of 1974: ‘All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.’ ”

In Boddie v. Connecticut, 401 U.S. 371, 374-375, 91 S.Ct. 780, 784, 787, 28 L.Ed.2d 113, 117, 120 (1971), the court declared that a Connecticut statute which required prepayment of court fees and costs violated due process because it precluded access to the courts to those plaintiffs who could not afford to pay the costs. The court stated:

“Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner. . .. ”
“Just as a generally valid notice procedure may fail to satisfy due process because of the circumstances of the defendant, so too a cost requirement, valid on its face, may offend due process because it operates to foreclose a particular party’s opportunity to be heard. The State’s obligations under the Fourteenth Amendment are not simply generalized ones; rather, the State owes to each individual that process which, in light of the values of a free society, can be characterized as due.”

The present statute unconstitutionally denies litigants due process and open access to Louisiana courts.

For these reasons, that portion of the judgment of the Court of Appeal upholding the constitutionality of R.S. 42:261 E is reversed, and R.S. 42:261 E is declared unconstitutional; the demand of third party defendant Jewitt Hulin for bond for attorney’s fees is rejected, at the cost of third party defendant.

WATSON, J., concurs.

LEMMON, J., concurs and will assign reasons.

MARCUS, J., concurs in the result..

      . This action for damages was brought by Mrs. Francois Detraz, Marlene Detraz and Ada De-traz against Anthony Fontana, Monte Williams, Charles Dore and Louisiana State Newspapers, Inc., d/b/a Abbeville Meridional. The petition alleges that defendants made certain libelous statements concerning the lease of a tract of land for a waste dumping site by Francois De-traz to the Vermilion Parish Police Jury. Defendants Anthony Fontana and Charles Dore answered the petition and filed a third party demand against J. Minos Simon, the attorney for plaintiffs, and the Vermilion Parish Police Jury, as well as a reconventional demand against plaintiffs. In a supplemental pleading defendants Fontana and Dore filed a third party claim against Jewitt Hulin, the secretary-treasurer of the police jury, alleging that the statements made by them were based on information supplied by Hulin.

      . Compare these acts passed during the 1960 Regular Session of the Mississippi legislature: chs. 241, 253, 254, 256-261, 273, 288, 365.
      Several of the acts have been struck down on the basis of racial discrimination. In Bush v. Orleans Parish School Board, 187 F.Supp. 42 (E.D.La.1960), aff’d 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806, Acts 333, 495, 496 and 542 of 1960 (as well as Act 256 of 1958, Act 319 of 1956, and Act 555 of 1954) were declared unconstitutional. See also Anderson v. Martin,
        375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 (1964), declaring Act 538 of 1960 unconstitutional; Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963), reversing convictions under Act 77 of 1960.
      Cost bond statutes were passed in other states around the same time as the Louisiana provision. The Idaho legislature enacted I.C. § 6-610 in 1953; RCW 4.96.010 was passed by the Washington legislature in 1967; the California provisions were added in 1963; the 1962 legislature of Alaska enacted AS 09.50.260 (now repealed); a similar provision was passed in Indiana in 1965 (Ind. 34-17-5).

      .The resolution reads in part:
      “Whereas, the rights and liberties of the people of the United States are threatened as never before by enemies, both foreign and domestic; and
      Whereas, these enemies have concentrated their attacks upon the States in the South and are there employing what has been described by these enemies as ‘the Party’s most powerful weapon . .. racial tension’, and, the success of these subversive forces has been so great that they have been able to pit one section of the country against another, one branch of the Federal Government against the governments of the several states and, in many places, the people of one race against the people of another; and
      Whereas, in Louisiana the design of these evil forces has been largely thwarted through the prompt and vigorous action of the Legislature of Louisiana aided by the other branches of the State Government, with the result that the turmoil created by the Black Monday decision of May 17, 1954, has been held in check and relative peace and good will has been maintained among our people; ...” H.Con.Res. 6, 23rd Reg.Sess. (1960), Official Journal of the Senate (1960), at 210.
      Other state legislatures reacted in a corresponding manner to Brown v. Board of Education, supra. In Cooper v. Aaron, 358 U.S. 1, 15, 78 S.Ct. 1401, 1408, 3 L.Ed.2d 5, 15 (1958), the Court discussed the response of leaders in the State of Arkansas (the state directly affected by Brown):
      "... the conditions they [findings of the district court] depict are directly traceable to the actions of legislators and executive officials of the State of Arkansas, taken in their official capacities, which reflect their own determination to resist this Court’s decision in the Brown case and which have brought about violent resistance to that decision in Arkansas. In its petition for certiorari filed in this Court, the School Board itself describes the situation in this language: ‘The legislative, executive, and judicial departments of the state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements villifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace.’ ”
      The Court warned:
      “. . . the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously.’ ” 358 U.S. at 18, 78 S.Ct. at 1409, 3 L.Ed.2d at 16.

      . To the same effect, see also Governor’s Address, Official Journal of the House (1960), at 53 et seq.; Resolution 4 of the State of North Carolina read before the Louisiana House of Representatives, Official Journal of the House (1960), at 207 et seq.

      . The definition of a public official has been liberally construed to include a high school principal (Prentice v. McGowen, 346 So.2d 1361 (La.App.1977)), a police officer (Houston v. Brown, 292 So.2d 911 (La.App.1974); Jones v. Anderson, 277 So.2d 697 (La.App.1973), writ denied 279 So.2d 697 (La.1973); Bolden v. City of Shreveport, 278 So.2d 138 (La.App.1973), writ denied 279 So.2d 685 (La.1973); Foshee v. Longino, 236 So.2d 870 (La.App.1970)), and a state trooper (Brown v. Aetna Life & Casualty Ins. Co., 394 So.2d 290 (La.App.1980)).
      The term has not been construed so broadly as to include public entities such as the state (Brown v. Aetna Life & Casualty Ins. Co., supra) or a police jury (Detraz v. Fontana, 406 So.2d 248 (La.App.1981)).

      . See Comment, Attorney’s Fees As An Element of Damages: The General Rule and Its Exceptions, 20 La.L.Rev. 389 (1960). See, e.g., R.S. 9:3902 (failure of surety to pay); R.S. 22:658 (failure of insurance company to pay); R.S. 23:632 (failure to pay employees’ wages); R.S. 38:2246 (claims of materialmen and laborers on public works); R.S. 45:454 (enforcement of railroads’ obligation to relieve natural drainage); R.S. 23:1201.2 (arbitrary failure to pay workmen’s compensation claim); R.S. 23:364 (failure to pay minimum wage).

      . The sanction of dismissal was developed by the courts. See Gisclair v. Ripp, 378 So.2d 553 (La.App.1979).

      . But see Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (Idaho 1957), holding that a statute requiring a plaintiff to file an undertaking for costs before maintaining a suit against an officer charged with the enforcement of criminal laws did not violate the equal protection clause.

      . The statute provides in part:
      “Any person or corporation having any claim against the state of Washington shall have a right of action against the state in the superior court. The plaintiff in such action shall, at the time of filing his complaint, file a surety bond executed by the plaintiff and a surety company authorized to do business in the state of Washington to the effect that such plaintiff will indemnify the state against all costs that may accrue in such action, and will pay to the clerk of said court all costs in case the plaintiff shall fail to prosecute his action or to obtain a judgment against the state: Provided, That in actions for the enforcement or foreclosure of any lien upon, or to determine or quiet title to, any real property in which the state of Washington is a necessary or proper party defendant no surety bond as above provided for shall be required.” RCW 4.92.010.

      . Several other states have held that a provision requiring a private citizen to notify the governmental entity within a certain time period (ranging from 30 to 120 days) unconstitutionally discriminates against the private plaintiff in derogation of the Fourteenth Amendment. See Reich v. State Highway Dept., 386 Mich. 617, 194 N.W.2d 700 (1972); Kossak v. Stalling, 277 N.W.2d 30 (Minn.1979); O’Neil v. City of Parkersburg, 237 S.E.2d 504 (W.Va.1977); Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973), cert. denied 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486.

      . The defective sections read as follows:
      “(a) At any time after the filing of the complaint in any action against a public entity, the public entity may file and serve a demand for a written undertaking on the part of each plaintiff as security for the allowable costs which may be awarded against such plaintiff. The undertaking shall be in the amount of one hundred dollars ($100) for each plaintiff or in the case of multiple plaintiffs in the amount of two hundred dollars ($200), or such greater sum as the court shall fix upon good cause shown, with at least two sufficient sureties, to be approved by the court. Unless the plaintiff files such undertaking within 20 days after service of a demand therefor, his action shall be dismissed.
      (b) This section does not apply to an action commenced in a small claims court.” Cal.Ann. Gov.Code § 947 (West 1954).
      “(a) At any time after the filing of the complaint in any action against a public employee or former public employee, if a public entity undertakes to provide for the defense of the action, the attorney for the public employee may file and serve a demand for a written undertaking on the part of each plaintiff as security for the allowable costs which may be awarded against such plaintiff. The undertaking shall be in the amount of one hundred dollars ($100), or such greater sum as the court shall fix upon good cause shown, with at least two sufficient sureties, to be approved by the court. Unless the plaintiff files such undertaking within 20 days after service of the demand therefor, his action shall be dismissed.
      (b) This section does not apply to an action commenced in a small claims court.” Cal.Ann. Gov.Code § 951 (West 1954).
      An equal protection argument was not presented to the court. See Beaudreau v. Superior Court of Los Angeles County, supra, 121 Cal.Rptr. at 587, n.5, 535 P.2d at 715 n. 5. The requirement of a prior hearing is embodied in an Indiana provision dealing with bonds in public lawsuits. Ind. 34-17-5. Due to this safeguard, the statute withstood due process attack in State ex rel. Haberkorn v. DeKalb Circuit Court, 251 Ind. 283, 241 N.E.2d 62 (1968).

      . But see United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973), rehearing denied 411 U.S. 922, 93 S.Ct. 1551, 36 L.Ed.2d 315.


author: LEMMON, Justice. DIXON, Chief Justice WATSON, Justice,

text:
    STATE of Louisiana v. Peggy A. MOORE.
    No. 82-K-0800.
    Supreme Court of Louisiana.
    July 2, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, Asst. Dist. Atty., for plaintiff-appellee.
    Joseph Meyer, Jr., New Orleans, for defendant-appellant.
   LEMMON, Justice.

We granted certiorari to clarify, by means of an express holding by this court in a particular case, the cases to which this court will apply the requirements of the decision in State v. Jones, 404 So.2d 1192 (La.1981).

In the Jones case, this court held that a misdemeanor guilty plea cannot be used as a basis (1) for actual imprisonment for the currently charged offense, (2) for enhancement of actual imprisonment in a subsequent case, or (3) for conversion of a subsequent misdemeanor into a felony, unless defendant entered the guilty plea voluntarily after being informed of the basic constitutional rights given up by the plea. The court further decided to give the newly adopted rule prospective application, in effect decreeing that all future misdemeanor guilty pleas must be entered in accordance with the specified requirements in order to be used for the enumerated purposes. However, this court made an exception for certain “pipeline” cases which were then pending in this court and which had been held for consideration until Jones was rendered. The “pipeline” exception to the rule of prospective application was stated in Jones as follows:

“Our decision will be fully applicable to this ease and any other case filed and presently pending in this court involving the issue presented herein. In all other cases, however, we will apply our holding to guilty pleas entered after this decision becomes final.” 404 So.2d at 1196

The Jones decision was rendered on September 10, 1981 and became final on September 24, 1981, when the delay for applying for rehearing expired without an application having been made. C.Cr.P. Art. 922 B.

Some confusion has occurred as to the “cases” in which the requirements of Jones are to be applied. The confusion probably arises because the Jones issue is being mostly raised in “cases” involving both a currently charged offense and one or more predicate offenses, so that the court in the currently charged offense is being asked to determine the validity of pleas in the predicate offenses.

It is the date of entry of the guilty plea in the predicate offense which usually determines the applicability of the Jones requirements. The requirements of Jones are clearly applicable when the guilty plea in the predicate offense was entered after September 24,1981 (the date of finality of Jones). On the other hand, the requirements of Jones are usually inapplicable when the guilty plea in the predicate offense was entered on or before September 24,1981, the only exception being when the “case” involving the currently charged offense had been filed and was pending in this court on September 10, 1981 when Jones was rendered.

In State v. Moore, 408 So.2d 1220 (La.1982), this court applied the requirements of Jones retroactively to reverse a conviction of third offense driving while intoxicated (DWI-3). In Moore, defendant had entered a guilty plea on January 12,1981 to DWI-3, but had reserved his right to appeal the issue of the validity of the 1977 and 1979 misdemeanor guilty pleas which served as the predicate for the present charge. Although the pleas in the predicate offenses had been entered before the Jones decision became final, the “case” (the appeal from the 1981 DWI-3 conviction in the currently charged offense based on 1977 and 1979 pleas to the predicate offenses) had been filed in this court on February 18, 1981 and was “presently pending in this court” when the Jones decision was rendered on September 10, 1981. Thus, the Moore case qualified as a “pipeline” exception to the Jones rule of prospective application.

The case of State v. Lee, 407 So.2d 1192 (La.1981), presented another “pipeline” exception. After the trial court had sustained defendant’s motion to quash the bill of information charging DWI-3 on the ground that the 1976 and 1977 predicate pleas were invalid, the state’s application for certiorari was filed on November 21, 1980. Although the guilty pleas to the predicate offenses predated Jones, the “case” in the currently charged offense (although on writs, rather than on appeal) was “presently pending in this court” when Jones was decided on September 10, 1981, and we held that the “case” was a “pipeline” exception to which the requirements of Jones were applicable in determining the validity of the 1976 and 1977 pleas. See also State v. Stephenson, 412 So.2d 553 (La.1982), which was pending in this court when Jones was decided and which was held to be an exception to the prospective application decreed by Jones.

The present “case” was filed in this court on April 2, 1982, when the state applied for certiorari and complained that the trial court had quashed the indictment (charging defendant with second offense prostitution in violation of R.S. 14:82) because the 1979 guilty plea to the predicate offense did not meet the requirements of Jones. The state argued that the trial court should not have inquired into the issue of compliance with Jones, because Jones itself provided only for prospective application.

Since the “case” involving the currently charged offense of second offense prostitution was not “presently pending in this court” when Jones was rendered on September 10, 1981, and since the guilty plea to the predicate offense of first offense prostitution was entered before the finality of Jones, the requirements of Jones are not applicable to the determination of the validity of the plea to the predicate offense. The conviction in the predicate offense, which was apparently entered with assistance of counsel in compliance with previously existing standards, although not in compliance with the subsequently announced requirements of Jones, can therefore be used to convert the status of a second conviction of the same offense into a felony, and the trial judge erred in quashing the indictment.

For these reasons, the judgment of the trial court is reversed, and the motion to quash is overruled. The case is remanded for further proceedings.

DIXON, C. J., concurs with reasons.

WATSON, J., concurs and assigns reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur.

This opinion represents a clear violation of Boykin v. Alabama, but follows State v. Jones, 404 So.2d 1192 (La.1981). I reluctantly subscribed to State v. Jones in order to assure at least future compliance with Boykin in this state.

WATSON, Justice,

concurring.

Although I dissented in State v. Jones, 404 So.2d 1192 (La., 1981), it is now jurisprudential law and I agree that it should be applied only prospectively.

Therefore, I respectfully concur.

      . In the Jones case, defendant was charged with violation of R.S. 14:98 D, third offense of operating a vehicle while intoxicated. The felony charge depended upon the validity of two prior guilty pleas to misdemeanor charges of driving while intoxicated, because those prior convictions (from pleas) were being used to convert the currently charged offense into a felony.

      . New procedural rules are normally given only prospective application when they do not affect the integrity of the factfinding process and when judges and prosecutors are entitled to rely in good faith on prior standards. See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Refusal to decree retroactive application is particularly logical in a situation, such as the present one, in which retroactive application would effectively grant “judicial amnesty” from multiple offender prosecution to those drunk drivers who previously entered voluntary guilty pleas on advice of counsel.