text:
    BALBOA INSURANCE COMPANY, Appellant, v. W.C.B. ASSOCIATES, INC., Walter C. Bowman & Associates, Norma L. Bowman, Walter C. Bowman, Faith Construction Company, Richard W. Beckwith and Housing Authority of Brevard County, Florida, Appellees.
    No. 80-193.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.

      Donald E. Grincewicz, Law Office of Carroll S. Barco, Orlando, for appellant.
    Edward L. Stahley, Cocoa, for appellee, Housing Authority.
   ORFINGER, Judge.

Appellant contends that the trial court erred in dismissing with prejudice its complaint against the appellee, Brevard County Housing Authority. We agree and reverse.

The complaint alleges that appellant was the surety on a contractor’s performance and payment bond with appellee as the obligee thereof. When the contractor defaulted in performance, appellant as surety stepped in and completed the work at a cost of $5,309.08. Based on the terms of its assignment and indemnity agreement with the contractor, wherein the contractor assigned to the surety all rights under the contract and all monies due thereunder, appellant then requested the Housing Authority to pay it that sum out of the funds still retained by the Authority on the contract. When the appellee refused to pay, this suit followed.

The performance bond contained a provision that any suit on the bond must be brought within two years from the date in which the final payment under the contract falls due, and the motion to dismiss was based on the sole ground that the complaint clearly showed upon its face that suit had not been brought within that time.

Nowhere in the complaint does it allege that this action was brought under the bond. We find nothing in the bond that would give the surety a cause of action against the obligee, nor does the complaint allege any violation of any covenant of the bond. Therefore, whatever limitation applies to the bond is not material here.

Instead, it is clear that the action is brought under the assignment and indemnity agreement. Appellee points to nothing in the complaint nor to any authority which would cause us not to recognize the validity of the assignment. Additionally, when the surety undertook the completion of the construction, it became subrogated, to the extent necessary to protect it from loss, to all the rights of the contractor in the funds still remaining unpaid in the Housing Authority’s hands. Commercial Bank in Panama City v. Board of Public Instruction of Okaloosa County, 55 So.2d 552 (Fla. 1951); Union Indemnity Co. v. City of New Smyrna, 100 Fla. 980, 130 So. 453 (1930); Phifer State Bank v. Detroit Fidelity & Surety Co., 97 Fla. 538, 121 So. 571 (1929). The court should not have dismissed the complaint because of any limitation period contained in the bond.

The final judgment dismissing the complaint as to appellee is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.

DAUKSCH, C. J., and COBB, J., concur.

      . In the light of our decision, we need not decide the validity of the two year limitation period mentioned in the bond. The bond makes no reference to Chapter 255, Florida Statutes (1973), nor does it state that it is furnished pursuant to the requirements of that statute. For a case holding that a bond similar to the bond issued by the surety here is a common law bond subject to the limitations contained in § 95.11(3), Florida Statutes (now § 95.11(2)(b)), see United Bonding Insurance Company v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971).


source: Caselaw Access Project

author: COWART, Judge.

license: Public Domain

text:
    FLORIDA AIR CONDITIONERS, INC., a Florida Corporation, Appellant, v. COLONIAL SUPPLY COMPANY, a Florida Corporation; Charles Buchanan and William F. Howard, jointly and severally, Appellees.
    No. 80-279.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.
    James A. Sisserson, of Nance, Cacciatore & Sisserson, Melbourne, for appellant.
    Frank R. Pound of Lovering, Pound & Lober, P.A., Cocoa, for appellees.
   COWART, Judge.

In an action for debt appellants sued the corporate defendant-appellee Colonial Supply Company in three counts and in Count 4 sued the individual defendants-appellees Buchanan and Howard, essentially alleging that the individuals were liable as partners or proprietors of a business known as Colonial Supply Company and also that they had acted as a corporation without authority and were personally liable under Section 607.397, Florida Statutes (1975). Buchanan and Howard moved to dismiss Count 4 on the ground that the cause of action alleged accrued prior to effective date of Section 607.397, Florida Statutes (1975). That motion was denied. The counts against the corporate defendant were severed and the case was tried to a jury on Count 4. During trial the plaintiff struck its allegations that the appellees were liable as partners or owners and the case was submitted to the jury solely on the theory of individual liability under the statute. The jury found for the plaintiffs on that theory. Buchanan and Howard appealed and that judgment was reversed because the motion to dismiss should have been granted on the ground urged and the case was remanded “for further proceedings consistent herewith.” Buchanan v. Florida Air Conditioners, Inc., 374 So.2d 1017 (Fla. 4th DCA 1979). Upon remand plaintiff moved to amend its complaint to re-allege its original claim that Buchanan and Howard were liable in debt as partners or proprietors of the business incurring the debt. From the denial of the motion to amend this appeal was taken.

The question presented is the right of a litigant to amend pleadings after an appeal.

Appellant refers to Rule 1.190(e), Florida Rules of Civil Procedure, which provides in part as follows:

(e) Amendments Generally. At any time in the furtherance of justice, upon such terms as may be just, the Court may permit any process, proceeding, pleading or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading,

and to the policy of the law to allow litigants to amend pleadings freely that causes may be tried on their merits. Turner v. Trade-Mor, Inc., 252 So.2d 353 (Fla. 4th DCA 1971).

Appellees cite Airvac Inc. v. Ranger Ins. Co., 330 So.2d 467 (Fla.1976), and Palm Beach Estates v. Croker, 143 So. 792 (Fla. 1932), for the proposition that after an appeal the trial court cannot permit amendments to assert new theories of recovery or defenses inconsistent with the appealed record which has become the law of the case.

In Airvac, Ranger Ins. Co. had, before the first appeal, moved to amend its pleadings to assert a fraudulent conveyance defense. That motion had been denied and the denial had not been cross-assigned as error on an appeal taken by Airvac from a directed verdict. After reversal and remand Ranger again sought to amend to allege the fraudulent conveyance defense. On certiorari the Florida Supreme Court held that Ranger had a full opportunity to have had the denial of its first motion reviewed on the initial appeal and having failed to do so the state of the record and the points of law decided on the first appeal became the law of the case and upon remand the once rejected defense could not then be permitted by amendment.

In Airvac the party seeking to amend after appeal had before the initial appeal suffered an adverse trial ruling on the very point presented to the trial court after appeal (being the right to amend to add a defense) and that legal point was held to have been settled by the first appeal. In this case appellant never sought to amend before the first appeal and in fact won a verdict before the jury.

In Croker, on an interlocutory appeal in equity, an appellate court upheld the sufficiency of an answer and counterclaim. On remand the complainant sought to further amend the complaint. Upon a second appeal it was held that the defendant could not be deprived of the benefit of the first appellate ruling by permitting the complainant to file amendments inconsistent with the state of the record upon which the first appeal was decided and which would have indirectly defeated or circumvented the effect of the appellate decision upholding the sufficiency of the defense in the answer. In Croker, at page 794, the court said:

[A]n amended bill of complaint which is in effect the institution of a new and materially different suit alleging a different cause of action, which is wholly inconsistent with, and repugnant to, the allegation of the original bill and attempts to assert an entirely different and inconsistent right in the complainant has been held by this court to be improper ....

Croker involved a party who first lost an appeal involving the sufficiency of an opponent’s pleading then attempted by later amendment to circumvent the effect of the appellate ruling while in this case the plaintiff sought to amend only after an appellate court found error with the trial court’s pretrial order upholding the application of the statute upon which the plaintiff had won a jury verdict.

Long before Section 607.397, Florida Statutes, as enacted in 1975, it was the law of the State of Florida that persons who assumed to act as a corporation without authority to do so were individually liable for debts they incurred. Therefore, that statute was declaratory of existing law and was not the only basis of a cause of action in appellant. Unfortunately it was pleaded and was the basis for the judgment recovered. All the first appeal decided was that the statute was not in effect and did not govern the debt in question, and that the trial court’s error in denying the motion to dismiss permeated the proceeding because the jury instruction on the statute prejudiced the defendants. The first appeal did not hold that appellants had no cause of action against the individual appel-lees for debt aside from the statute. Amendment of the complaint to state a cause of action in debt against the individual appellees would not be inconsistent with or repugnant to the allegations in the original complaint, Croker, supra; would not entirely change or abandon the nature of the plaintiff’s case as presented in the first instance nor introduce a new theory of recovery not theretofore asserted. The fact that appellants recovered a jury verdict on a cause of action erroneously based on Section 607.397, Florida Statutes, is a reasonable indication that a justifiable issue can be made upon amendment to conform to facts appearing at the time of the entry of the prior judgment because the same facts establishing a cause of action under the statute could also constitute a cause of action independent of the statute. In the furtherance of justice, appellants, having changed their position relying on the erroneous ruling of the trial court, should be returned to their position before such ruling.

The order denying the appellant’s motion to amend is reversed and the cause remanded with directions to permit appellant to amend its complaint in order to permit the just determination of this cause on its merits.

REVERSED.

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

        .Nichols v. Bodenwein, 146 So. 86 (Fla.1932); Akel v. Dooley, 185 So.2d 491 (Fla. 2nd DCA 1966); International Design, Inc. v. Rubin’s Franchises, Inc., 247 So.2d 778 (Fla. 3rd DCA 1971); Katz v. Kent Kenholtz, 147 So.2d 342 (Fla. 3rd DCA 1962). Independent of the inapplicable § 607.397, Fla.Stat., there may be other statutory bases for personal liability under the circumstances of this case. See § 608.59, Fla. Stat. (1973) and Rosenberg v. Ryder Leasing, Inc., 168 So.2d 678 (Fla. 3rd DCA 1964).

      . See State ex rel. Palmer v. Hewitt, 116 Fla. 140, 156 So. 236 (Fla.1934).

      . See St. Joe Paper Co. v. Connell, 299 So.2d 92 (Fla. 1st DCA 1974).

      . Mount Sinai Hospital of Greater Miami, Inc. v. Cordis Corp., 285 So.2d 645 (Fla. 3d DCA 1973).


author: COBB, Judge.

text:
    In re The ESTATE of Luigi FRESIA, Deceased. Floyd MOORE and Robert Moore, Appellants, v. The FLORIDA BANK & TRUST COMPANY OF DAYTONA BEACH, Florida, Appellee.
    No. 80-444.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.

      Eugene E. Rhodes, Jr., South Daytona, for appellants.
    Christopher W. Wickersham, of Becks, Becks & Wickersham, Daytona Beach, for appellee.
   COBB, Judge.

Luigi Fresia died and left a will with four codicils. One of the paragraphs of the will appointed Floyd Moore as executor of the estate. Another paragraph of the will gave Floyd Moore, or in the alternative, his son, Robert Moore, the exclusive right to sell any real estate that might be in Fresia’s estate. The changes made by the first and second codicils are not relevant to this appeal. In the third codicil, Fresia deleted Floyd Moore as his executor, and replaced him with Dante Fresia, a nephew. In the fourth codicil, Fresia deleted his nephew as executor and named the Florida Bank and Trust Company of Daytona Beach as his personal representative.

The Florida Bank and Trust Company began probate proceedings on Fresia’s will and filed a petition for instructions with the court in which the bank asked the court to tell it whether the paragraph of the will directing it to use the Moores as its real estate agent was binding on the bank or if it was only advisory. The appellants objected to the notice of hearing on the petition for instructions on the ground that the proceeding was an adversary proceeding pursuant to Rule 5.025(a)(1), Florida Rules of Probate and Guardianship Procedure, and moved to continue the hearing. The appellants also answered the petition for instructions and moved to dismiss the petition for instructions. The trial court denied the objection to the notice of hearing, denied the motion for continuance, denied the motion to dismiss, and struck the answer. The trial court then found that the paragraph in question, of the will, was not binding; and that the bank could sell the real estate without' a brpker, or could use a broker of its choosing without using Floyd Moore or Robert Moore. It is this order that the appellants are appealing.

Depending upon the intent of the testator, precatory words are sometimes mere recommendations and are sometimes mandatory. 35 Fla.Jur. Wills § 286 (1961); 80 Am.Jur.2d Wills § 1168 (1975). Oftentimes, when precatory words are addressed to the personal representative (i. e., as in directing the representative to divide the bequests among the beneficiaries in a certain manner, or to invest certain assets for the benefit of a beneficiary) such words are interpreted as mandatory. 80 Am.Jur.2d Wills § 1168 (1975); 95 C.J.S. Wills § 602(b) (1957).

However, that interpretation does not apply when the decedent is directing the representative to use the services of a particular individual in a fiduciary capacity. Where a provision of a will directs the representative to use a particular attorney, Florida has aligned itself with the majority view that such language is only advisory. In re Marks Estate, 83 So.2d 853 at 854 (Fla.1955). Where employment other than an attorney is involved, there is division among the state jurisdictions as to whether the provision of the will is binding. 1 Bowe-Parker: Page on Wills § 5.5 (1960). Since a real estate broker is a fiduciary, Nantell v. Lim-Wick Const. Co., 228 So.2d 634 (Fla. 4th DCA 1970), language in a will directing the representative to use a particular real estate broker is not binding on the representative, but rather is only advisory.

Since the trial court was construing the will by determining whether the language in question was binding or advisory, the appellants are correct in arguing that they were entitled to an adversary proceeding. However, since the issue involved is one of law rather than of fact, any error in not taking testimony was harmless.

AFFIRMED.

SHARP and COWART, JJ., concur.

      . The term personal representative' has subsequently replaced the term executor. § 731.-201(25), Fla.Stat.

      . It is my wish that my Executor, FLOYD MOORE, shall have the exclusive right to sell any real estate which might be in my estate at the time of my death. If, for any reason, the said Floyd Moore cannot act as my exclusive agent in the sale of said real estate, then it is my wish and I direct my Executor to use his son, ROBERT MOORE, as the exclusive real estate agent to sell and dispose of my said real estate.

      .In the first codicil, Fresia eliminated a trust for a friend of his. In the second codicil, Fresia eliminated a specific bequest to a friend of his.


author: GLICKSTEIN, Judge.

text:
    Willie Freeman SMITH, Petitioner, v. The Honorable James R. STEWART, Judge of the 15th Judicial Circuit, Richard P. Wille, Sheriff in and for Palm Beach County, and Henrietta Mason, Respondents. Willie Freeman SMITH, Appellant, v. Henrietta MASON and Fred Mims, Appellees.
    Nos. 77-2414 to 77-2416.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1980.

      Jeff Tomberg and Joseph Tomberg of Law Offices of Tomberg & Woolley, P. A., Boynton Beach, for appellant/petitioner.
    Edward C. Castagna, Jr., of Lavalle, Wochna, Rutherford, Maher & Truesdell, P. A., Boca Raton, for appellee/respondent Mason.
   GLICKSTEIN, Judge.

Having consolidated three proceedings, a petition for certiorari, final appeal, and an interlocutory appeal, we now affirm the trial court’s order denying appellant’s motion to abate a sheriff’s sale.

The record discloses that Henrietta Mason, appellee, obtained a judgment for tort damages in the sum of $100,000 on May 11, 1977, against Willie Freeman Smith. On September 28, 1977, Ms. Mason obtained a writ of execution. A sheriff’s sale of Smith’s real property was scheduled for November 18, 1977. On October 24, 1977, Smith filed a motion to abate the sale on the ground that the property was exempt as homestead, pursuant to Article X, Section 4(a)(1), Florida Constitution. His affidavit filed in support of the motion asserted (1) that he was the owner of the property; (2) that he was married, had one child, and resided on the property with his wife and child; and (3) that he had filed for homestead exemption. He set his motion for hearing on the November 15th motion calendar; and the time for argument was limited to ten minutes by administrative order of the trial court.

At the hearing the trial court orally denied the motion, which order was reduced to writing on November 17th. Smith’s motion for rehearing was denied on December 5, 1977. Execution has been subsequently stayed by Smith’s having filed a voluntary petition in bankruptcy in the United States District Court for the Southern District of Florida.

Smith asserts two points on appeal:

1. The trial court should have concluded that his property was exempt from forced sale as homestead.
II. The trial court’s limitation of the time for hearing upon his motion to abate deprived appellant of adequate representation of counsel and his right of access to the courts.

I

In order for appellant to establish that his property was exempt from forced sale as homestead, it was incumbent upon him to prove he was the head of a family. Article X, Section 4(a)(1), Florida Constitution. To be accorded head of a family status, one must be legally or morally obligated to support the other family members. Beck v. Wylie, 60 So.2d 190 (Fla.1952); cf. Solomon v. Davis, 100 So.2d 177 (Fla.1958); Shambow v. Shambow, 158 Fla. 760, 15 So.2d 836 (1943).

While there was no testimony taken at the hearing on appellant’s motion, it is un-contradicted that there had never been any ceremonial marriage between appellant and the woman he described in the affidavit as his wife. Therefore, to demonstrate his status as head of a family at law, appellant was obliged to prove his common law marriage by establishing two essential elements: an actual, mutual agreement by the parties to marry, Jordan v. Jordan, 89 So.2d 22 (Fla.1956); and entry into the marriage prior to January 1, 1968, Section 741.211, Florida Statutes (1979).

There was woefully insufficient evidence of the first element. Appellant’s affidavit merely recites:

2. I am married and have one minor child, both of whom reside with me at said afore-described address.

Further, appellant’s deposition, to which the trial court referred at the hearing, reflected appellant’s only having testified: “If you live with a woman for more than six months you are married to her, so, I guess I am.” Although it is unnecessary to consider the second element because the first was not proven, we note that there was a question whether the relationship commenced in late 1967 or early 1968.

To establish a “family in fact,” appellant was required to prove he had a moral obligation to support and care for the woman and her child with whom he was living. Zimmerman v. Gardner, 355 So.2d 157 (Fla.4th DCA 1978); In re Kionka’s Estate, 113 So.2d 603 (Fla.2d DCA 1959), affirmed 121 So.2d 644 (Fla.1960). We recognize that dicta in several cases has referred to the “family in fact,” defined as “a continuing communal living by at least two individuals under such circumstances that one is regarded as the person in charge,” as entitled to the benefit of the homestead exemption. See, e. g., Cory v. Parks, 386 So.2d 292 (Fla.2d DCA 1980); Brown v. Hutch, 156 So.2d 683 (Fla.2d DCA 1963); 16 Fla. Jur., Homesteads § 27 (1957); Crosby and Miller, Our Legal Chameleon, 2 Fla.L.Rev. 12, 24 (1949). However, we have found no authority in Florida recognizing a moral obligation in the absence of close or lineal blood ties. In Zimmerman v. Gardner, supra, relief was denied a divorced woman caring for her former husband’s elderly aunt. In In re Kionka’s Estate, supra, where a woman resided with her niece by marriage, it was found no family in fact existed. In contrast, head of a family status has been accorded a mother residing with an adult daughter, Beck v. Wylie, supra; a mother supporting an able-bodied adult daughter, DeCottes v. Clarkson, 43 Fla. 1, 29 So. 442 (1901); a widow supporting a disabled adult son, Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448 (1943); and a father living with a married daughter whose husband was on active military duty, Beensen v. Burgess, 218 So.2d 517 (Fla.4th DCA 1969). Sub judice we find no moral obligation, as that term has been construed by pertinent case law, could be said to exist on the part of Mr. Smith to support the woman and her child with whom he resided. Accordingly, Mr. Smith cannot be deemed head of a family in fact.

II

Appellant’s second point is also without merit. First, we note that appellant’s counsel, with knowledge aforethought of the time limitations for the hearing, picked the time for the hearing; never requested another hearing time; and further never attempted to make a proffer of any additional testimony or evidence he would have submitted if given more time. Second, if facts did exist which would have established the essential elements of a common law marriage, appellant could have attached affidavits to his motion executed by himself, the woman with whom he was living, and any corroborative witnesses establishing such facts. The court’s limitation of time did not deprive appellant of proving by affidavit that he was the head of a “family at law.”

In view of the foregoing, the trial court’s order is affirmed.

DOWNEY and ANSTEAD, JJ., concur.

      . Appellant admits that the child is not his offspring and that he has not adopted her.

      . Beck v. Wylie, 60 So.2d 190 (Fla.1952).


author: GRIMES, Judge.

text:
    John EHRENZELLER, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 80-313.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1980.
    Michael B. Mclver, Fort Myers, for appellant.
    Anthony N. DeLuccia, Jr., Fort Myers, for appellee.
   GRIMES, Judge.

John Ehrenzeller seeks review of an order of the Career Service Commission approving his demotion from a position as a Family Services Consultant II for the Department of Health and Rehabilitative Services. We have jurisdiction pursuant to section 120.68, Florida Statutes (1979).

On July 1, 1971, the Division of Family Services of the Department of Health and Rehabilitative Services employed Mr. Eh-renzeller as a Family Services Consultant II for District VIII in Fort Myers. The position is also referred to as that of District Medical Services Coordinator. By letter dated May 16, 1979, the administrator for District VIII demoted Mr. Ehrenzeller effective May 18,1979. The reason given for the demotion was Mr. Ehrenzeller’s failure to obtain a satisfactory level of job performance during the preceding six months.

Mr. Ehrenzeller appealed his demotion to the Career Service Commission on a form provided by the Commission. He listed several reasons why he felt the demotion unjustified, but his major contention was that his immediate supervisor had unilaterally reclassified and changed his job position to a higher level. He stated that the increased responsibilities and duties were not contained within the scope of his job definition and that the poor employee evaluations were a result of his inability to perform and assume duties which were unconnected with his position. He requested that a determination be made upon his performance as a medical services coordinator as that position had originally been defined and explained by the Department of Health and Rehabilitative Services.

Subsequently, the Career Service Commission held a hearing to consider Mr. Eh-renzeller’s appeal. A large portion of Mr. Ehrenzeller’s presentation at the hearing was concerned with his contention that he was being required to perform duties outside the scope of his employment. Several months following the hearing, the Career Service Commission issued a written opinion and order denying Mr. Ehrenzeller’s appeal. The opinion and order contained lengthy findings of fact which dealt with Mr. Ehrenzeller’s failure to satisfactorily perform duties assigned to him. However, it made no findings on the question of whether those duties were outside the scope of Mr. Ehrenzeller’s employment.

Section 120.68(8), Florida Statutes (1979), which deals with our review of final agency action provides that “the court shall remand the case for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.” In view of this statute, we think it necessary to return this case to the Career Service Commission because the Commission’s failure to make findings of fact as to whether Mr. Ehrenzeller was required to undertake duties beyond those contained in his job description was a material error in procedure which may have impaired the fairness and correctness of the Commission’s action.

Section 120.59(2), Florida Statutes (1979), relating to final orders of agencies, requires that:

(2) Findings of fact, if set forth in a manner which is no more than mere tracking of the statutory language, shall be accompanied by a concise and explicit statement of the underlying facts of record which support the findings. If, in accordance with agency rules, a party submitted proposed findings of fact or filed any written application or other request in connection with the proceeding, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request. (Emphasis added.)

In his written notice of appeal to the Commission, Mr. Ehrenzeller sought a determination as to whether he was being required to perform duties outside the scope of his job definition. Hence, the Commission should have made written findings concerning this request for a determination. See Weisbrod v. Florida Career Service Commission, 375 So.2d 1102 (Fla. 1st DCA 1979); Stuckey’s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976).

We would also note that the Commission’s failure to make the findings requested by Mr. Ehrenzeller was potentially prejudicial to him. The personnel regulations of the career service system require that employees not be expected to meet performance standards which have not been defined or explained to them to be part of the requirements of their position. Fla.Admin.Code Rule 22A-9.02(3). This being the case, if the Career Service Commission were to make findings of fact to the effect that the duties Mr. Ehrenzeller did not satisfactorily perform were those which he had been required to do outside the scope of his job classification, it would necessarily have to find that he was entitled to relief from his demotion.

We reverse the order of the Career Service Commission and remand the case to that body for it to make written findings of fact based upon the record before it as to whether Mr. Ehrenzeller’s supervisor had required him to perform duties and responsibilities not contained within the scope of his job definition. The Commission should then make whatever disposition of the case those findings justify.

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


text:
    FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. CHICK SMITH FORD, INC. for the use and benefit of Universal Underwriters Insurance Company, and John McMullen, Appellees.
    No. 80-444.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1980.
    James C. Hadaway and Mark E. Hun-gate, of Fowler, White, Gillen, Boggs, Villa-real & Banker, P. A., St. Petersburg, for appellant.
    Jeffrey R. Fuller, of Williams, Earle, Brasfield & Wertz, P. A., St. Petersburg, for appellees.
   GRIMES, Judge.

This appeal involves the interpretation of an exclusion in a liability insurance policy.

Florida Farm Bureau Casualty Insurance Company insured Charles and Carlotta McMullen, doing business as McMullen Feed Store, under a comprehensive fleet policy. On May 27, 1978, the McMullens’ emancipated son, John, took one of their insured trucks to Chick Smith Ford for repairs. John needed a truck to drive for the weekend, and so the truck sales manager gave him one off the lot to use. John paid no rent for the loan of the truck, and Chick Smith Ford placed no restrictions upon its use.

Two days later, John struck a bridge abutment, damaging the truck to the extent of $4,808.24, and Universal Underwriters, the insurer for Chick Smith Ford, paid the dealership for the damage done to the truck. Universal Underwriters’ policy contained a provision which insured a permissive user only if he had no liability policy of his own or he was not covered by any other policy. Since John had no policy of his own, Universal Underwriters brought a subrogation action against him and Florida Farm Bureau seeking to recover for the damages it had paid Chick Smith Ford, contending that Florida Farm Bureau’s policy insured John.

Universal Underwriters moved for a partial summary judgment against Florida Farm Bureau. Florida Farm Bureau also filed a motion for summary judgment. The court granted Universal Underwriters’ motion and then, based upon a stipulation concerning damages, entered final judgment against Florida Farm Bureau.

At the outset, we note that both parties agree that there was no collision coverage under the Florida Farm Bureau policy available for the wrecked truck owned by Chick Smith Ford. The issue on appeal is whether the Florida Farm Bureau policy provided liability coverage for damages to the vehicle. Since Florida Farm Bureau makes no contention that John McMullen was not an insured under its policy, the case turns upon the interpretation of an exclusion in the property damage liability section of the Florida Farm Bureau policy which reads as follows:

This policy does not apply: (f) under coverage B, (Property Damage), to injury to or destruction of property (1) owned or transported by the insured; (2) rented to or in charge of the insured other than a residence or private garage damaged or destroyed by a private passenger automobile covered by this policy.

Florida Farm Bureau maintains that because the truck was property “in charge of the insured,” there could be no recovery for the damage to that property.. Universal Underwriters argues that the word “property” in the exclusion does not include motor vehicles, thereby rendering the exclusion inapplicable since the only damages in issue were to a motor vehicle.

No Florida case is squarely on point, though the reasoning in Haenal v. United States Fidelity & Guaranty Co., 88 So.2d 888 (Fla.1956), and Hodapp v. Shelby Mutual Insurance Co., 166 So.2d 772 (Fla.2d DCA 1964), lends some support to Florida Farm Bureau’s position. There are, however, a number of cases from other jurisdictions in which the courts have squarely addressed the issue. The overwhelming majority of these courts have concluded that a clause worded in the manner of the one at issue here excludes liability coverage for damages to a vehicle driven by the insured with the owner’s permission. Nationwide Mutual Insurance Co. v. Peek, 115 Ga.App. 678, 155 S.E.2d 661 (1967); Herrman v. Folkerts, 202 Kan. 116, 446 P.2d 834 (1968); Middlesex Mutual Fire Insurance Co. v. Ballard, 148 So.2d 865 (La.App.196S); Wyatt v. Wyatt, 239 Minn. 434, 58 N.W.2d 873 (1953); Wyse v. Dixie Fire & Casualty Co., 242 Miss. 508, 136 So.2d 578 (1962); MacDonald v. Hardware Mutual Casualty Co., 105 N.H. 458, 202 A.2d 489 (1964); Security Mutual Casualty Co. v. Johnson, 584 S.W.2d 703 (Tex.1979); Mallory v. Vermont Mutual Fire Insurance Co., 126 Vt. 237, 226 A.2d 901 (1967); Faust v. Dawes, 257 Wis. 353, 43 N.W.2d 365 (1950).

The only reported decision which supports Universal Underwriters’ argument that property in the insured’s charge does not include a motor vehicle is American Casualty Co. v. Aetna Casualty & Surety Co., 251 Md. 677, 248 A.2d 487 (1968), but we find this authority unconvincing. First, the opinion reflects that the insurance company seeking to uphold the exclusion cited no authority for its interpretation in spite of the fact that such a position clearly represented the majority view throughout the country. Furthermore, one of the reasons given by the Maryland court for its ruling was that otherwise “the ridiculous conclusion would be reached that any vehicle owned by the insured would be excluded from coverage under the policy; obviously a result not intended by the parties to the insurance contract.” 251 Md. at 680, 248 A.2d at 490-91. In making this statement, the court missed the point. The only exclusion was one for liability coverage for damages to property which was in the insured’s charge. If as hypothesized by the Maryland court the owner desired to be reimbursed for damages to the vehicle itself, this would have been available through the purchase of collision coverage.

In the final analysis, we find ourselves in accord with the interpretation placed upon this exclusion by the vast majority of courts in other jurisdictions. The provisions are unambiguous, and we find it impossible to characterize a motor vehicle as not being property. The truck was obviously in the charge of John McMullen, so there could be no liability coverage for damages to the truck itself.

We reverse the judgment and remand the case with directions that the court enter judgment for Florida Farm Bureau.

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


author: CAMPBELL, Judge.

text:
    LAKE TIPPECANOE OWNERS ASSOCIATION, INC., Appellant, v. NATIONAL LAKE DEVELOPMENTS, INC. and Harry Macksey, Appellees. NATIONAL LAKE DEVELOPMENTS, INC. and Harry Macksey, Appellants, v. James J. FARRELL, Sidney Heller and Lake Tippecanoe Owners Association, Inc., Appellees. LAKE TIPPECANOE OWNERS ASSOCIATION, INC., Appellant, v. NATIONAL LAKE DEVELOPMENTS, INC. and Harry Macksey, Appellees.
    Nos. 80-601, 80-689 and 80-699.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1980.
    Joseph S. Paglino, Miami, and Ezra J. Regen, Sarasota, for Lake Tippecanoe Owners Ass’n, Inc., James J. Farrell and Sidney ' Heller.

      Daryl J. Brown of Rosin, Abel, Band, Brown & Russell, Chartered, Sarasota, for National Lake Developments, Inc. and Harry Macksey.
   CAMPBELL, Judge.

Lake Tippecanoe Owners Association appeals from paragraph one of the trial court’s order of March 20, 1980, which requires the Association to make certain payments pursuant to section 718.401(4), Florida Statutes (1979) and from a subsequent order compelling compliance with the March 20th order. National Lake Developments appeals from paragraph two of the March 20th order which relieves Lake Tippecanoe from all other previous stipulations requiring the deposit of money during litigation.

These appeals arise out of an action to cancel and declare void as unconscionable a ninety-nine year recreation lease. Lake Tippecanoe, lessee, and National Lake Developments, lessor, had entered into the lease on October 12, 1971. After bringing the action, Lake Tippecanoe moved for an order to deposit into the registry of the court rents under the disputed lease and all franchise fees under a CATV franchise agreement as they became due under' the litigation. This motion was made pursuant to section 718.401(4), Florida Statutes (1979), the application of which had been found to be mandatory in Saul v. Basse, 375 So.2d 290 (Fla. 2d DCA 1979).

As National Lake Developments had mortgaged the leased property and was obligated to make $4,000 per month payments, the parties stipulated that rather than deposit rent into the registry of the court pursuant to section 718.401(4), Lake Tippecanoe would pay National Lake Developments $4,000 per month to enable National Lake to meet its mortgage obligations. The stipulation also provided that Lake Tippecanoe would deposit the payments on the CATV franchise system into a special interest bearing savings account. The parties executed an additional joint stipulation which provided that the portion of the monthly payments deposited in the special interest bearing savings account would be used to the extent necessary to maintain the CATV franchise system.

Subsequent to these stipulations, the Florida Supreme Court held that application of section 718.401(4) to contracts in existence prior to the effective date of the statute is an unconstitutional impairment of contract rights. Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1979).

Based on Pomponio, Lake Tippecanoe moved for an order vacating or modifying the stipulations and orders entered into previously. The lower court vacated the previous orders and entered a new order which provided that Lake Tippecanoe was to continue paying $4,000 per month to National Lake Developments’ mortgagee and that Lake Tippecanoe was relieved from the stipulations regarding the CATV franchise system.

Lake Tippecanoe did not make the $4,000 payment by April 10,1980, as the court had directed, but on April 14, 1980, filed a $4,600 civil supersedeas bond. National Lake Developments filed a motion to compel compliance with the prior court order. The lower court granted the motion and ordered Lake Tippecanoe to continue making payments.

Lake Tippecanoe contends on appeal that the trial court erred in failing to vacate its prior orders and the parties’ prior stipulations which were based on application of section 718.401(4). We agree.

In Pomponio v. Claridge of Pompano Condominium, Inc., the Florida Supreme Court stated, with regard to section 718.-401(4), “[a]s applied retroactively, absent a lessor’s express consent to its incorporation into the terms of the contract, the statute is invalid.” 378 So.2d at 782.

Lake Tippecanoe and National Lake Developments entered into the disputed recreation lease on October 12, 1971, prior to section 718.401(4) becoming effective. There was no express consent to the incorporation of section 718.401(4) into the terms of the lease. Consequently, retroactive application of section 718.401(4) to this lease was improper.

Absent section 718.401(4) the court has no authority to require Lake Tippecanoe to make payment of rent in this situation. National Lake Developments has an adequate remedy at law should it be needed. National Lake Developments may bring an action on the lease agreement for damages if the payments are not made. See § 83.55, Fla.Stat. (1979). The court may not exercise its equity powers when there is an adequate remedy at law. First National Bank in St. Petersburg v. Ferris, 156 So.2d 421 (Fla. 2d DCA 1963).

Accordingly, we reverse paragraph one of the March 20th order which required the payment to National Lake Developments for its mortgagee. This holding mandates reversal of the order compelling compliance with paragraph one of the March 20th order also. We affirm paragraph two of the March 20th order which relieved Lake Tippecanoe from its obligation to deposit its payments on the CATV franchise system into the savings account.

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

      . Case No. 80-601.

      . Case No. 80-699.

      . Case No. 80-689.


text:
    Thomas R. GOLIAN, Sr. and Margaret Golian, Appellants, v. Charles POLHIRONAKIS and Karen Polhironakis et al., Appellees.
    No. 80-700.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1980.
    Daniel R. Monaco and Michael J. Volpe of Monaco, Cardillo & Keith, Naples, for appellants.
    Richard D. Sparkman and Louis S. Erickson, Naples, for appellees.
   GRIMES, Judge.

The only point in this appeal which gave us any concern was whether a landowner in a subdivision can enforce deed restrictions against another landowner in the same subdivision when the restrictions contain a provision allowing the original grantor “to amend, alter or change” them. However, we believe that this court’s recent opinion in Loch Haven Homeowners’ Association v. Nelle, 389 So.2d 697, (Fla. 2d DCA, 1980), controls our decision.

In Loch Haven, the lower court had held that because the developer of a subdivision had reserved the right to amend the restrictions, this negated the existence of a common plan of development so as to preclude enforcement by one remote grantee against another. In reversing that judgment, this court held that “the reservation of the right to amend restrictions is only one factor to be considered in determining whether the grantor intended to establish a uniform plan of development, and that all language of the restrictions should be considered in arriving at the grantor’s intention.” Id. at 698-99.

It is true that the retained right to amend the restrictions in the case at hand contains broader language than the one in Loch Haven. However, a reading of the restrictions as a whole leads us to conclude that the court below did not err in concluding that the grantor intended the restrictions to be part of a uniform plan of development. The restrictions are applicable to the entire subdivision. Their comprehensive nature obviously reflects the desire to see that the subdivision remain a high class residential and commercial area. The restrictions also contain a provision that they “shall run with the land,” and the original grantor retains no right of reverter in the event of a violation of the restrictions. In any event, despite the broad language of the reservation provision, the developer could only amend the restrictions in a reasonable manner consistent with the general scheme or plan of development. Bay Island Towers, Inc. v. Bay Island-Siesta Association, 316 So.2d 574 (Fla. 2d DCA 1975); Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d 665 (Fla. 4th DCA 1974).

We affirm the judgment which enjoins a violation of the restrictions.

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


author: PER CURIAM.

text:
    Maguel SEGARRA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-531.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1980.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven L. Bo-lotin, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on May 30, 1978 (360 So.2d 79) reversing the judgment and sentence of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 388 So.2d 1017, by its opinion and judgment dated September 4,1980 now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on July 20, 1978 is withdrawn, the judgment of this court filed May 30, 1978 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment and sentence of the trial court is reinstated and affirmed. Costs allowed shall be taxed in the criminal court (Rule 9.400(a) Florida Rules of Appellate Procedure).


text:
    Larry WELCH, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2069.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. State v. Segarra, 388 So.2d 1017 (Fla.1980).


author: PER CURIAM. BARKDULL, Judge,

text:
    Marion L. WINNER, Appellant, v. Linda G. WINNER, Appellee.
    No. 80-59.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Steinberg & Sorota and Samuel S. Sorota, Miami Beach, for appellant.
    Koeppel, Stark & Newmark and Robert Gellman, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

This is the third appeal which appellant husband has brought in connection with matters complained of relative to the dissolution of the marriage of the parties to this cause, 376 So.2d 924.

In this appeal appellant is seeking reversal of an order of the Circuit Court of Dade County, Florida awarding his former wife the sum of $18,000 as and for reasonable attorneys fees due her attorneys, Koeppel, Stark & Newmark for services rendered in an effort to enforce the court’s final judgment of dissolution of marriage. The fee of $18,000 was apportioned as follows: $8,300 for services rendered in case no. 76-27588 in the Circuit Court of Dade County, Florida; $8,000 for services rendered in case no. 79-195CA, in the Circuit Court of Monroe County, Florida; and $1,700 for services rendered in the Courts of Alabama.

It is appellant’s contention that the trial court erred in its award of each of these fees. We cannot agree.

We have carefully considered appellant’s contentions in the light of the record, briefs and arguments of counsel and have concluded that no reversible error has been demonstrated. Accordingly, the order appealed is affirmed.

Affirmed.

BARKDULL, Judge,

concurring in part; dissenting in part.

I concur in the affirmance of the award of fees for services rendered in the Circuit Court of Dade County and in the courts of Alabama, as these were proceedings seeking to directly enforce the trial court’s final judgment. However, I dissent from so much of the opinion that approved fees for the Monroe County action, as this was an independent action to set aside a fraudulent conveyance in an attempt to collect a judgment rendered in behalf of the former wife. I think once she elected to take a money judgment she was then in the same position as any other judgment creditor and was not entitled to fees for the bringing of an independent action to set aside an alleged fraudulent conveyance. I don’t think that such a proceeding falls under the provision for “enforcement” under Section 61.16, Florida Statutes. Therefore, I would reverse this part of the order under review.


text:
    James BARBER and Coulter Electronics, Inc., Appellants, v. Juana PILOTO, Appellee.
    No. 80-271.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 1980.
    Adams & Ward and Robert C. Ward, Miami, for appellants.
    Martin M. Dernis, Coral Gables, and Mauricio J. Bjenbaum, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Southwestern Insurance Company v. Stanton, 390 So.2d 417 (Fla.3d DCA 1980); Clooney v. Geeting, 352 So.2d 1216 (Fla. 2d DCA 1977); Little v. Miller, 311 So.2d 116 (Fla.4th DCA 1975); Ruiz v. Cold Storage and Insulation Contractors, Inc., 306 So.2d 153 (Fla.2d DCA), cert. denied 316 So.2d 286 (Fla.1975).


text:
    The STATE of Florida, Appellant, v. Edroy FERGUSON, Appellee.
    No. 80-985.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Janet Reno, State Atty., and Stephen V. Rosin and Russell R. Killinger, Asst. State Attys., for appellant.
    Bennett H. Brummer, Public Defender and Joseph C. Segor, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and BARK-DULL and PEARSON, DANIEL, JJ.
   PER CURIAM.

Affirmed. § 776.031, Fla.Stat. (1979); State v. Smith, 376 So.2d 261 (Fla.3d DCA 1979).


text:
    ST. REGIS PAPER COMPANY, Appellant, v. O. W. BUSH, Appellee. O. W. BUSH, Appellant, v. ST. REGIS PAPER COMPANY, Appellee.
    Nos. SS-195, SS-357.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.

      J. Caleb Clarke, III, Atlanta, Ga., for appellant (no. SS-195) and appellee (no. SS-357).
    Roderic G. Magie of Levin, Warfield, Middlebrooks, Mabie & Magie, P. A., Pensacola, for appellee (no. SS-195) and appellant (no. SS-357).
   PER CURIAM.

In these consolidated appeals, the employer challenges a compensation Order, while the claimant contends that the Deputy Commissioner erred In entering an Order that awarded attorney’s fees of $5,000.00. Upon consideration of the briefs and the record, we find that there was competent substantial evidence to support the compensation Order.

We feel compelled to affirm the Order awarding attorney’s fees, in light of the Supreme Court’s decision in R. H. Coody & Associates, Inc. v. Shelton, 352 So.2d 852 (Fla.1977). See also Redmer Sons Co. v. Waugh, 377 So.2d 815 (Fla. 1st DCA 1979).

Accordingly, we affirm that Order in its entirety.

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


author: THOMPSON, Judge.

text:
    CENTRAL OIL CO. and Peninsular Fire Ins. Co., Appellants/Cross-Appellees, v. Frederick E. CAMPEN, Appellee/Cross-Appellant.
    No. SS-205.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.
    Joseph E. Smith of Miller & Cooper, Orlando, for appellants/cross-appellees.

      Kurt P. Hampp of Jacobs, Robbins & Gaynor, St. Petersburg, for appellee/cross-appellant.
   THOMPSON, Judge.

The appellants challenge a worker’s compensation Order, contending in part that: (1)the Deputy Commissioner (“the Deputy”) erred in ordering the appellants to provide for the claimant’s examination at a pain clinic; and (2) the Order lacks a decre-tal clause or mandate. We agree and reverse.

In February 1977, the claimant was involved in a work-related accident. The appellants paid temporary total disability benefits until October 1978, when they began paying permanent partial disability benefits. On July 31, 1979, a hearing was held. The claimant’s application for this hearing made no reference to any request or need for the services of a pain clinic. The same is true of the Notice of Hearing. Nor was any testimony presented on this issue. The Deputy subsequently entered his Order, finding in part that the appellants should provide for the claimant’s examination at a pain clinic.

This court has recognized that “due process problems arise when the deputy commissioner undertakes to rule on issues not framed by the parties.” Farm Stores v. Dyrda, 384 So.2d 269 (Fla. 1st DCA 1980). In this case, the Deputy, by ordering that the appellants furnish the claimant with the services of a pain clinic, ruled on an issue which was neither raised nor anticipated by the parties herein. Thus, the appellants properly complain of a lack of adequate notice regarding this issue, thereby resulting in a denial of their rights to due process.

Additionally, the Deputy had no statutory authority to sua sponte order that the claimant be examined at a pain clinic with the costs to be borne by the appellants. Section 440.25(3)(b), Fla.Stat., is inapplicable, since there was no conflict in the medical evidence. Section 440.25(6), Fla.Stat., is inapplicable because it does not provide for the assessment of costs, while § 440.29(1), Fla.Stat., is inapplicable for the same reason. See Lu-Mar Enterprises, Inc. v. Mazur, 8 FCR 248, 249 (1974).

We recognize that treatment at a pain clinic may constitute remedial treatment pursuant to § 440.13(1), Fla.Stat. See Planning Research Co. v. Shy, 379 So.2d 1047 (Fla. 1st DCA 1980). Also, § 440.13(2), Fla. Stat., provides that a Deputy “may at any time, for good cause shown, .. . order a change in such remedial attention, care, or attendance.” (emphasis supplied) Here, however, there was no showing of good cause: the Deputy simply ordered an examination based on his own observations of the claimant. Accordingly, he acted without authority.

The appellants also argue that the Order is devoid of a decretal clause and is therefore invalid. We note that although the Order does sufficiently mandate that the appellants provide for an examination at a pain clinic, this portion of the Order is invalid, as discussed above. Outside of this provision, the Order makes certain other findings, but does not mandate the rights and responsibilities of the parties in light of those findings. Therefore, the Order is defective. See Dade Paper Co. v. Farrell, IRC Order 2-3708 (Feb. 19, 1979). See also § 440.25(3)(c), Fla.Stat.

We have considered the remaining point raised by the appellants, as well as the claimant’s point on cross-appeal, and find them both to be without merit. Accordingly, we reverse the Deputy’s Order and remand this cause for reconsideration consistent with this opinion.

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


text:
    Angelean P. MILTON, Appellant, v. STATE of Florida, Appellee.
    No. TT-74.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.
    Stephen Lindsey Gorman, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appeal dismissed without prejudice to appellant to file a motion for post-conviction relief under Fla.R.Crim.P. 3.850. See Wilson v. State, 378 So.2d 1258, 1260 (Fla. 1st DCA 1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

ERVIN, SHAW and WENTWORTH, JJ., concur.


text:
    W. S. DICKEY CLAY MANUFACTURING and Traveler’s Insurance Company, Appellants, v. Wilfred J. KING, Appellee.
    No. TT-454.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.
    Alex P. Lancaster of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    Harry G. Goodheart, III, Bradenton, for appellee.
   PER CURIAM.

AFFIRMED. See Jordan v. Florida Industrial Commission, 183 So.2d 529 (Fla.1966).

McCORD, SHIVERS and JOANOS, JJ., concur.


text:
    Madeline W. COWART, Appellant, v. Lawrence Dempsey COWART, Appellee.
    No. UU-86.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.
    M. Stephen Turner, of Culpepper, Beatty & Turner, Tallahassee, for appellant.
    Nevin J. Zimmerman, of Spear, Bennett, Logue, Burke & Blue, Panama City, for appellee.
   PER CURIAM.

The trial court’s judgment on the first issue presented by this appeal, i. e., whether the court erred in awarding the husband a special equity in the wife’s interest in certain notes and mortgages and a contract for deed, is AFFIRMED. We do not pass on the merits of the parties’ other contentions because the trial court has had no opportunity to consider the merits in the light of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In order that the trial court may have that opportunity, we REVERSE the judgment of January 20, 1980 insofar as it deals with money and property issues other than the issue on which we have approved the trial court’s judgment, and we REMAND the case for further consideration by the trial court.

AFFIRMED in part, REVERSED in part, and REMANDED.

McCORD, ROBERT P. SMITH, Jr. and THOMPSON, JJ., concur.


text:
    Michael N. HERNICZ, Appellant, v. STATE of Florida, DEPARTMENT OF PROFESSIONAL REGULATION, Board of Nursing, Appellee.
    No. UU-437.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.
    C. Allen Watts, of Watts & Biernacki, DeLand, for appellant.
    Julious Finegold, Jacksonville, for appel-lee.
   PER CURIAM.

Appellant, an advanced registered nurse practitioner, had his license suspended by the Board of Nursing for treating patients without a physician’s supervision. He raises four points in his appeal, only one of which merits discussion.

The hearing officer issued a recommended order that the charges against Her-nicz be dismissed. In its final order, the Board accepted the hearing officer’s findings of fact, then made “additional findings of fact” to the effect that appellant had examined and treated two named individuals (prescribing medication in one of the cases) without “specific authorization from a licensed physician to perform such treatment . . .. ”

The appellant correctly states that § 120.-57(l)(b)(9), Florida Statutes (1979), forbids an agency to “reject or modify the findings of facts unless the agency, first determines from a review of the complete record, and states with particularity in its order, that the findings of fact were not based on competent substantial evidence .... ” Appellant is incorrect, however, in contending the Board rejected or modified the hearing officer’s proposed findings of fact.

The recommended order quotes the Administrative Complaint against Hernicz, which included the allegation that he treated the two patients, providing medication for one and a type of therapy for the other. The hearing officer, after reciting the factual bases for the complaint, states that the “facts surrounding the allegations in the Administrative Complaint filed herein are not in dispute.” Because the hearing officer found the facts to be undisputed, the agency could in its order spell out exactly what those facts were.

Nor was the Board’s statement that appellant acted without authorization an improper “additional” finding of fact, because it was not a finding of fact at all but a conclusion of law. It may have been inappropriate for the Board to make such a conclusion in its findings-of-fact section, but misplacement of a conclusion of law does not metamorphose it into a finding of fact. See Sapp v. Florida State Board of Nursing, 384 So.2d 254 (Fla.2d DCA 1980).

There being competent, substantial evidence to support the Board’s conclusion, the order appealed is AFFIRMED.

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


author:
MARCUS, Justice.
     DIXON, Chief Justice CALOGERO, Justice,

text:
    Dalila T. CANGELOSI v. SCHWEGMANN BROTHERS GIANT SUPER MARKETS.
    No. 67150.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    John P. Massicot, Frank A. Silvestri, New Orleans, for plaintiff-applicant.
    C. Monk Simons, III, New Orleans, for defendants-respondents.
   MARCUS, Justice.

This tort suit for damages arose out of an incident which occurred when plaintiff was a cashier in defendant’s supermarket. Plaintiff alleges that defendant’s supervisory personnel defamed her and invaded her privacy during an investigation of a customer’s altered check. A jury awarded damages in the amount of $13,500. The verdict was made a judgment of the court. The court of appeal reversed, finding no factual basis in the record to support a finding of tortious conduct by any person for whom defendant was vicariously liable. Upon plaintiffs application, we granted certiorari.

Plaintiff had been employed by defendant as a cashier for seven years. On June 22, 1977, Mrs. Frances Navis, a customer, presented a check for $37.02 for her purchases at plaintiff’s check-out counter. Approximately two months later, Mrs. Nav-is informed defendant’s store manager that her check had been altered to $57.02. An investigation of the incident revealed that plaintiff had accepted the check, that the check had in fact been altered, and that plaintiff’s cashier deposit report showed a check for $57.02 rather than $37.02 was recorded in the report. Shortly thereafter, plaintiff was called into the store’s vault room and, in the presence of the store manager, check cashing supervisor, vault room supervisor and plaintiff’s supervisor and assistant supervisor, was shown a picture of the check and the customer.

According to plaintiff’s version, she was asked if she recognized the customer, to which she replied that she had seen that person shopping in the store on previous occasions. Defendant’s store manager then asked plaintiff what color ink she had used that day and if she had in fact altered the check. Plaintiff became quite hysterical, replied that she had a good work record, requested a lie detector test, and was then taken into the ladies lounge by her supervisor,. where she proceeded to tell other employees about what had occurred in the vault room. Plaintiff’s daughter, who had been called by plaintiff’s supervisor, came to the store and brought plaintiff home. Plaintiff worked for several more days and took a lie detector test but was fired one week after the incident in the vault room, although the test results were favorable. The sum of $18 was deducted from her final paycheck.

The version related by defendant’s employees was that they simply showed plaintiff the check and photograph, whereupon she became hysterical, even though they assured her she was not being accused. They testified that plaintiff subsequently stated that she intended to resign from her employment as soon as she completed the lie detector test and cleared her reputation of any wrongdoing, but later declined to do so because she learned she would be disqualified for unemployment compensation. Accordingly, her employment was terminated which was approximately one week after the incident in the vault room. Defendant contends that the $18 was paid by plaintiff at the time of her termination pursuant to a written agreement whereby plaintiff agreed to pay for “all shortages or monies over a tolerance of $1.00 per week.”

The record is unclear as to the events that followed. The separation notice alleging disqualification sent by defendant to the Department of Employment Security sets forth as the reason for separation: “Resigned employee turned in her resignation 8-15-77 to supv. due to a personal hardship that would continue if she stood on the job.” However, the notice to appear for a hearing before the appeals referee notes as alleged grounds for disqualification: “You were discharged from your job for misconduct connected with the work or you voluntarily resigned from your job.” After a hearing, the appeals referee determined that an employee who retracts her resignation but is required by her employer to leave anyway, was discharged from her job under nondisqualifying circumstances. Finding that plaintiff’s discharge from employment was not due to misconduct connected with her employment, no disqualification was assessed. As a result, plaintiff received unemployment benefits for approximately six months. Plaintiff then instituted this suit for damages against defendant.

Plaintiff’s claim for damages arising out of these facts is essentially an action in defamation. The sole issue presented for our resolution is whether the jury verdict awarding damages in favor of plaintiff and against defendant was clearly wrong justifying reversal by the court of appeal.

To maintain an action in defamation, the following elements must be shown: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. HMC Corp. v. New Orleans Basketball Club, 375 So.2d 700 (La.App. 4th Cir. 1979), writs denied, 378 So.2d 1384, 379 So.2d 11 (1980); Trahan v. Ritterman, 368 So.2d 181 (La.App. 1st Cir. 1979); Lees v. Smith, 363 So.2d 974 (La.App. 3d Cir. 1978); Perrilloux v. Batiste, 357 So.2d 841 (La.App. 4th Cir. 1978); Harper v. Jeans, 353 So.2d 1093 (La.App. 2d Cir. 1977), writ denied, 355 So.2d 264 (La.1978); Ward v. Sears, Roebuck & Co., 339 So.2d 1255 (La.App. 1st Cir. 1976); Lake Charles Diesel Inc. v. Guthridge, 326 So.2d 613 (La.App. 3d Cir. 1976); Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2d Cir. 1975); Rogeau v. Firestone Tire & Rubber Co., 274 So.2d 454 (La.App. 3d Cir. 1973). Accord, Makofsky v. Cunningham, 576 F.2d 1223 (5th Cir. 1978).

First, plaintiff asserts that the “questioning” by defendant’s personnel during the confrontation in the vault room was more “accusatory” than investigatory, thus constituting defamation. We do not agree. Even accepting plaintiff’s version of what occurred, we find no factual basis from which to conclude that defendant’s personnel used defamatory language or that the questions posed to plaintiff were accusatory or libelous in nature. While words which impute a crime to another are defamatory per se, Trahan v. Ritterman, supra, Becnel v. Boudreaux, 340 So.2d 687 (La.App. 4th Cir.), writ denied, 342 So.2d 671 (1977), no one in the instant case accused plaintiff of stealing or called her a thief. Nor did plaintiff prove that the statements made by defendant’s personnel in the vault room constituted a publication. Those persons present at the vault room meeting were supervisory personnel essential to the investigation-not third persons to whom the statements were communicated or publicized. Plaintiff herself made the sole communication as to the existence of an investigation when she entered the ladies lounge and proceeded to relay the events of the meeting to other employees in the lounge. Furthermore, we agree with the court of appeal that the record discloses a sufficient basis to justify defendant’s good faith and lack of malice in provoking an investigation regarding plaintiff’s involvement in the incident. The court of appeal correctly reasoned:

When an alteration is made to a check received by a store owner’s employee in the regular course of business, the employer is certainly entitled to investigate the circumstances surrounding the incident, as long as the investigation is conducted in good faith and in a reasonable manner.

Additionally, we do not find that the $18 deducted from plaintiff’s paycheck constituted an indirect imputation or insinuation of guilt upon which an action in defamation would lie. To the contrary, defendant was carrying out an ongoing management policy applicable to all of its cashiers when a shortage of monies occurred in any given week. Also, plaintiff agreed to pay for these shortages at the time of her employment.

Finally, we reject plaintiff’s contention that defendant defamed her when it challenged her request for unemployment compensation. Louisiana’s unemployment compensation laws provide that a claimant shall be disqualified for benefits when discharged for misconduct connected with his employment. La.R.S. 23:1601(2). First, the record is unclear upon what basis defendant alleged disqualification. In any event, the findings of fact by the appeals referee indicate only a dispute over whether plaintiff could withdraw her two weeks notice to resign after defendant had accepted her resignation. This dispute was resolved in plaintiff’s favor; no disqualification was assessed.

In sum, our review of the record convinces us that the jury was clearly wrong in finding that plaintiff proved the necessary elements to maintain an action in defamation. Accordingly, the court of appeal correctly reversed the judgment of the trial court. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

DIXON, C. J., and CALOGERO, J., dissent with reasons.

WATSON, J., dissents for reasons assigned by DIXON, C. J.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Plaintiff was accused of theft in the presence of others, an act which gives rise to damages unless the accuser can prove the truth of the accusation.

CALOGERO, Justice,

dissenting.

I respectfully dissent. Words which impute a crime to another are defamatory per se. Trahan v. Ritterman, 368 So.2d 181 (La.App. 1st Cir. 1979). Plaintiff was accused in the presence of others of altering a check. Unless the accuser can prove the truth of the accusations, he is liable to the plaintiff for damages she suffered.

       The Honorable Gerald P. Fedoroff participated in this decision as an Associate Justice Ad Hoc in place of Associate Justice Harry T. Lemmon, who was recused.

      . 379 So.2d 836 (La.App. 4th Cir. 1980).

      . 384 So.2d 793 (La.1980).


text:
    STATE of Louisiana v. Charles BAKER.
    No. 67517.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, P. Michael Cullen, Asst. Dist. Attys., for plaintiff-appellee.
    Jack Quarles, Indigent Defender Program, Gretna, Louis J. Cosenza, New Orleans, for defendant-appellant.
   PER CURIAM.

Affirmed.

LEMMON, J., concurs.


text:
    STATE of Louisiana ex rel., Lionel JENKINS v. CRIMINAL DISTRICT COURT PARISH OF ORLEANS SECTION “G”.
    No. 67744.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Lionel Jenkins applying for Writ of Mandamus. Parish of Orleans. No. 366-126.

Granted. The trial court is ordered to fix a new return date in this matter 60 days from the date of this order. In this regard the transcript shall be furnished at least 15 days prior to the return date. See C.Cr.P. art 919 as amended by Acts 1980, No. 537.


text:
    CAR KITS, INC. v. BOLT-ON PARTS, INC.
    No. 80-C-1751.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   PER CURIAM.

Relator’s application for reconsideration of ruling 390 So.2d 1346, is granted. Rule X(b), second paragraph, requiring filing in this Court within ten (10) days of the date of a Court of Appeal refusal to review complained of trial court action (or inaction) is inapplicable here, where relator’s complaint is directed to the Court of Appeal’s refusing to entertain on the merits (stating “insufficient showing to justify the exercise of this court’s supervisory jurisdiction”) a complaint concerning the trial court’s overruling an exception to personal jurisdiction.

Writ denied. The Court of Appeal is ordered to rule on the merits of the writ application. See Thibodeaux v. King-Wilkinson, Inc., 381 So.2d 1245 (La.1980), and C.Civ.P. art. 2083.


author: LEMMON, Justice,

text:
    STATE of Louisiana v. Eddie J. BROWN, Jr.
    No. 80-K-1931.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Eddie J. Brown, Jr., applying for writs of prohibition, and certiorari. Parish of St. John the Baptist. No. 1913.

Denied.

LEMMON, J., concurs with reasons.

DIXON, C. J., and CALOGERO and DENNIS, JJ., would grant the writ.

LEMMON, Justice,

Concurring.

Relator’s application arguably contains the issue of whether intentional opposition to an officer who is acting in his official capacity, but is not arresting, seizing property, or serving process, constitutes a violation of R.S. 14:108. Compare R.S. 40:1390. Since the issue was not raised or considered in the trial court and was not argued in the brief supporting this application, I concur in the denial of this application and defer adjudication of the issue until it is more clearly presented.

      . The record establishes that relator did resist an officer who was acting in his official capacity, but who was not arresting, seizing property, or serving process.


text:
    Ernest JOHNSON v. Henry MARICLE and Sam Cloud.
    No. 80-C-2189.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   ORDER

5 The trial court rendered judgment in favor of plaintiff and against Henry Maride, among others. The court also granted judgment on a third party demand against Maride. Although Maride did not appeal or seek to have the judgment annulled, the court of appeal declared the judgment invalid as to him.

A judgment cannot be modified on appeal in favor of a party who did not seek relief. Accordingly, the writ is granted as to relator’s request to have the judgment against Maride reinstated, and it is ordered that the judgment of the trial court as to Henry Maride be reinstated. In all other respects, the writ is denied.

DENNIS, J., would grant the writ.


text:
    John J. MATHIEU and Norma R. Mathieu v. Malcolm Lamar NETTLES and Betty Jean Nettles.
    No. 80-C-1429.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re John J. Mathieu and Norma R. Mathieu applying for certiorari, or writ of review, to the Third Circuit Court of Appeal. Parish of Sabine. 383 So.2d 1337.

Writ denied.


text:
    Leroy HARPER v. Ray Preston WILLIS.
    No. 80-C-1406.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Leroy Harper, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 383 So.2d 1299.

Denied. The result is correct.

DIXON, C. J., and LEMMON, J., would grant the writ.


text:
    Curt E. BOWERS v. D. C. GREENE & Greene’s Marine Products, Inc.
    No. 80-C-1403.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re D.C. Greene & Greene’s Marine Products, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Jefferson Davis. 386 So.2d 920.

Denied.


text:
    CALCASIEU MARINE NATIONAL BANK OF LAKE CHARLES v. GREENE’S MARINE PRODUCTS, INC., and D. C. Greene.
    No. 80-C-1404.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Greene’s Marine Products, Inc., and D. C. Greene applying for writ of certiorari, or review, to the Court of Appeal, 3rd Circuit. Parish of Jefferson Davis. 386 So.2d 926.

Denied.


text:
    Everett P. HEBERT v. DIAMOND M. COMPANY et al.
    No. 80-C-1759.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Everett P. Hebert, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terre-bonne. 385 So.2d 410.

Denied.


text:
    Everett P. HEBERT v. DIAMOND M. COMPANY et al.
    No. 80-C-1774.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Diamond M Company, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 385 So.2d 410.

Denied.


text:
    STATE of Louisiana v. Carl and Bettye PERRY.
    No. 80-K-2013.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Carl and Bettye Perry, applying for writ of certiorari, review and mandamus, and stay order, East Baton Rouge Parish, Nos. 5-80-7, 8, 10, 12, 13; 5-80-5, 6, 9, 11; 5-80-7, 8, 10, 12, 13.

Granted. The district court is ordered to grant a jury trial. C.Cr.P. art. 706; State v. Nettleton, 367 So.2d 755 (La.1979).

MARCUS, J., would deny the writ.


text:
    STATE of Louisiana ex rel. Chester FRAZIER v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-K-1458.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Chester Frazier, applying for application for supervisory writs. Parish of Caddo. First Judicial District Court. No. 114,558 HC.

Granted.

Because the trial court failed to vacate the defendant’s original sentence before imposing the second sentence under R.S. 15:529.1, that second sentence is declared void.. State v. Hingle, 130 La. 620, 139 So.2d 205 (La.1962). The matter is remanded to the district court for such further proceedings as are consistent with the law.


text:
    STATE of Louisiana ex rel. Joe L. BATES v. Warden Frank C. BLACKBURN.
    No. 67818.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Joe L. Bates, application of reconsideration of denied writ of July 7, 1980. Parish of West Feliciana.

Denied.


text:
    Daphne Fisher KEARNEY, wife of James Robert Kearney, Jr. v. James Robert KEARNEY, Jr.
    No. 80-C-1964.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Robert James Kearney, Jr., applying for remedial writs and stay order. Parish of Orleans. No. 80 • 10346.

Denied.

CALOGERO and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Ray JONES a/k/a Ray Masters v. STATE of Louisiana.
    No. 80-KH-1648.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Ray Jones, applying for writ of mandamus. Parish of Caddo. No. 110, 300.

Denied.


text:
    STATE of Louisiana v. Joseph MARSHALL and Kevin Marshall.
    No. 80-K-1651.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Joseph and Kevin Marshall, applying for remedial writs, and stay order. Parish of Orleans. No. 276-396.

Writ denied.

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


text:
    STATE of Louisiana ex rel., Tyronne J. FORREST, Sr. v. Frank SHEA, Judge, Section “G”, Criminal District Court.
    No. 80-KH-1718.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Tyronne J. Forrest, Sr., applying for remedial writ. Parish of Orleans. No. 269-672.

Denied.


text:
    STATE of Louisiana ex rel. Raymond Thomas LITTLE, Jr. v. STATE of Louisiana.
    No. 80-KH-1904.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Raymond Thomas Little, Jr., applying for remedial writ. Parish of Bossier. No. 57198.

Denied.


text:
    CITY OF HOUMA v. Betty Joseph WATKINS.
    No. 80-K-2047.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Betty Joseph Watkins, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Houma (City Court). Nos. 34041-C and 34042-C. Terre-bonne Parish.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Jerry Michael CASSO.
    No. 80-K-2025.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Jerry Michael Casso applying for writ of review, prohibition and stay order. Parish of Ouachita. No. 39425.

Writ denied. Relator has adequate remedy on appeal.


text:
    STATE of Louisiana ex rel. Arthur M. DAVIS v. ORLEANS PARISH JUVENILE COURT, Division A, Honorable Joan Armstrong, Judge.
    No. 80-K-1481.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Arthur M. Davis applying for writ of certiorari. Parish of Orleans. No. 183— 142, Div. A.

Denied.

DENNIS, J., would grant to determine if evidence supports transfer beyond a reasonable doubt.


text:
    STATE of Louisiana ex rel. Irving W. PETE v. Frank C. BLACKBURN, Warden.
    No. 80-K-1482.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Irving W. Pete applying for remedial writ. Parish of St. Mary. No. 78-224.

Writ denied.


text:
    STATE of Louisiana ex rel. Napoleon HARPER v. STATE of Louisiana.
    No. 80-K-1483.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Napoleon Harper applying for writ of habeas corpus. Parish of Webster. No. 47606.

Writ denied on showing made.


text:
    STATE of Louisiana ex rel. Sammy Glenn LAWSON v. CLERK OF COURT, 26TH JUDICIAL DISTRICT COURT, PARISH of WEBSTER.
    No. 80-K-1490.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Sammy Glenn Lawson, applying for remedial writs. Parish of Webster, 26th Judicial District Court. No. 45819.

Denied.


text:
    STATE of Louisiana v. Jefferson AVERY.
    No. 80-K-1502.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Jefferson Avery, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Caddo. No. W-838 (City Court).

Writ denied. We decline to exercise our supervisory jurisdiction. Relator’s remedy is to appeal to the District Court in the event of conviction.

DIXON, C. J„ and WATSON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Donald Joe FORD v. STATE of Louisiana.
    No. 80-KH-1529.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Donald Joe Ford applying for remedial writ. Parish of Orleans. No. 270-581, Section G.

Denied. Relator has access to transcript through counsel and may reapply to this Court if he is unable to obtain access to transcript upon completion.


text:
    STATE of Louisiana v. Charles Edward LUSK.
    No. 80-K-1561.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Charles Edward Lusk applying for writ of certiorari. Parish of East Baton Rouge. No. 7-76-866.

Writ denied. Relator has adequate remedy by appeal.


text:
    STATE of Louisiana ex rel. LeRoy GIPSON v. Frank C. BLACKBURN, Warden.
    No. 80-KH-1569.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re LeRoy Gipson applying for writs of certiorari, prohibition, mandamus and habe-as corpus. Parish of Caddo. No. 113-449 HC.

Denied.


text:
    William S. WIEDORN, Jr. v. Ann Campbell Coco WIEDORN.
    No. 80-C-1594.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re William S. Wiedorn, Jr., applying for remedial writs and stay order. Parish of Orleans. No. 77-10447, (Civil Court).

Denied.


text:
    STATE of Louisiana, ex rel. Everette WARD v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 80-KH-1647.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Everette Ward, applying for Writ of Mandamus. Parish of Terrebonne. No. 88638.

Denied. Moot.


text:
    STATE of Louisiana in the Interest of Chris AARON.
    No. 80-K-2131.
    Supreme Court of Louisiana.
    Sept. 18, 1980.
   In re Chris Aaron, applying for writs of certiorari, prohibition, and mandamus, Family Court. Parish of East Baton Rouge. No. 53051.

Granted and remanded to the trial court to fix bail forthwith.


text:
    STATE of Louisiana v. Kenneth WALKER.
    No. 80-K-1636.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Kenneth Walker applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 79-1057.

Granted. Ruling of trial court reversed. The holding in the decision of State in the Interest of Hunter, 387 So.2d 1086 (La.1980), is to be applied retroactively. Case remanded for a new hearing.


text:
    Lorenza WILSON v. EBASCO SERVICES, INC. et al.
    No. 80-C-1508.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Lorenza Wilson, applying for certio-rari, or writ of review to the Court of Appeal, Fourth Circuit. No. 11166. Parish of St. Charles.

Granted.


text:
    STATE of Louisiana v. Lloyd JOHNSON.
    No. 80-K-1519.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re State of Louisiana through the Attorney General’s Office applying for supervisory writs. Parish of St. John the Baptist. Nos. 1729 and 1730.

Granted.


text:
    STATE of Louisiana ex rel. Thomas W. PICKENS v. Hon. L. P. HIGGINBOTHAM, Judge, 19th Judicial District Court, Victor Townsley, Deputy Probation and Paroles; Department of Corrections.
    No. 67644.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Thomas W. Pickens, applying for reconsideration of denied writ of June 23, 1980. East Baton Rouge Parish.

Reconsideration denied. Relator’s parole has not yet been revoked.


text:
    STATE of Louisiana ex rel. Donald R. HEBERT v. CLERK OF COURT, 9TH JUDICIAL DISTRICT COURT, RAPIDES, PARISH.
    No. 80-KH-1562.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Donald R. Hebert, applying for writ of mandamus. Parish of Rapides. No. 108-238.

Not considered. This civil matter should first be presented to the court of appeal.


text:
    STATE of Louisiana v. Gardner TAYLOR.
    No. 80-K-1816.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 268-388, Sect. A.

This matter is ordered docketed as an appeal. The record shall be lodged with this Court on or before October 3, 1980.


text:
    STATE of Louisiana v. Harry FRISCH, Jr.
    No. 80-K-1565.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 276-606, Sect. D.

Granted.


text:
    STATE of Louisiana v. Jerry HEAD.
    No. 80-K-1523.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick applying for writs of certiorari, mandamus and prohibition. Parish of Orleans. Nos. 275-989 and 275-852.

Granted.


author: STOKER, Judge. LABORDE, Judge,

text:
    Joseph Clarence ARTIGUE, Plaintiff-Appellant, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellee.
    No. 7742.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 11, 1980.
    Rehearing Denied Dec. 1, 1980.
    Domengeaux & Wright, Robert K. Tracy and Anthony Moroux, Lafayette, for plaintiff-appellant.

      Dubuisson, Brinkhaus & Dauzat, James G. Dubuisson, Opelousas, for defendant-ap-pellee.
    Before FORET, STOKER, and LA-BORDE, JJ.
   STOKER, Judge.

This is an action for damages for personal injuries sustained as a result of a fall. Plaintiff, Joseph Clarence Artigue, filed this tort action against South Central Bell Telephone Company. After a jury trial a verdict was returned against plaintiff in favor of defendant. Judgment was rendered on that verdict dismissing plaintiff’s suit at his costs. Plaintiff has appealed. We affirm. An intervention was filed by Niagara Fire Insurance Company which asserted a subrogation interest in any recovery which might be made by plaintiff. This subrogation claim was also dismissed by the trial court.

At the conclusion of the trial no special interrogatories were submitted to the jury, and it returned a general verdict. Since no specific findings of fact were made we are unable to determine the grounds upon which the jury based its general verdict in favor of defendant.

On appeal plaintiff briefed the issues of defendant’s negligence and plaintiff’s contributory negligence. In defendant’s brief submitted to us defendant’s counsel asserts that he admitted negligence on the part of defendant in the course of argument to the jury. The arguments of counsel are not part of the trial record. Therefore, the issues before this court are the negligence of the defendant, South Central Bell, and the contributory negligence of the plaintiff, Joseph Clarence Artigue. Since we affirm the jury’s findings and the judgment of the trial court, we are not confronted with the issue of damages.

FACTS

The record in the case reflects the following. In July of 1975, the plaintiff’s brother, Lawrence Artigue, had difficulty with his telephone service. On July 15, 1975, an employee of the defendant installed a temporary drop line from the Lawrence Artigue home to a telephone terminal located near the street. The drop line was a series of wires encased in a gray rubber coating and was approximately Vs inch wide and 75 to 100 feet in length. The line rested on the surface of the grass and traversed the side of the Lawrence Artigue home veering a few feet into an adjoining vacant lot. This lot separated the plaintiff’s home from the home of his brother.

Around dusk on August 10, 1975, the plaintiff and his wife were walking from his brother’s home to their home. As they were crossing the vacant lot plaintiff tripped and fell. Plaintiff alleges that the cause of his fall was the temporary drop line installed by the defendant. Plaintiff notified defendant of his fall. Defendant’s employees buried the drop line within two days following the accident.

Defendant’s Negligence

Defendant in his appellate brief states that he admitted negligence to the jury. In our opinion, this admission of negligence is supported by the trial record. We find that defendant was negligent. The employee who installed the temporary drop line testified that his normal job responsibilities did not include installation of drop lines. Testimony established that the installing employee deviated from company procedures in failing to execute and deliver to the repair foreman a written work order detailing the location of the drop line. Additionally, the employee failed to tag the line or erect warning signs or warn the public that the line was located in the grass. Defendant allowed this drop line to remain on the surface for approximately one month, failing to bury it in accordance with work procedure until after the company was notified of the plaintiff’s fall.

Finding defendant negligent in failing to warn the public of the presence of the wire, we move to the issue of plaintiff’s contributory negligence.

Plaintiff’s Contributory Negligence

Contributory negligence is a matter of fact to be determined in the light of the circumstances of each case. McKowen v. Gulf States Utilities Company, 358 So.2d 675 (La.App. 1st Cir. 1978).

Plaintiff was a pedestrian and as such is held to have seen that which he should have seen. A pedestrian is not required to look for hidden dangers but he is bound to observe his course to see if his pathway is clear. A pedestrian is held to have seen those obstructions in his pathway which would be discovered by a reasonably prudent person exercising ordinary care under the circumstances. Siau v. Rapides School Board, 264 So.2d 372 (La.App. 3rd Cir. 1972), writ denied 266 So.2d 440 (La.1972).

• [4,5] Whether the obstruction is an obvious hazard which a pedestrian should observe and avoid or whether the obstruction is a hazard which a pedestrian of ordinary care would not see depends upon all the surrounding circumstances. Factors to consider include the time of day, the nature of the pathway, other distractions such as traffic, familiarity with the obstruction, and the size, situation and color of the obstruction. Merchant v. Montgomery Ward & Company, 83 So.2d 920 (La.App. 1st Cir. 1955).

Should the plaintiff have observed the drop line? The jury was apparently of the opinion that plaintiff should have seen it. It was dusk as plaintiff crossed the vacant lot. His wife testified that it was not completely dark but was in the process of getting dark. Plaintiff was crossing a vacant lot, not a paved sidewalk. Photographs introduced into evidence by the plaintiff indicate that the grass on the lot and adjoining lawn was short at the time of the accident. Plaintiff testified that he had crossed the lot frequently and had probably crossed the lot after the drop line was installed and prior to his fall. Plaintiff adamantly insisted that he did not know of the presence of the drop line. The line was gray and ran along the surface of the grass for approximately 75 to 100 feet. Plaintiff’s photographs indicate some coiling and bunching where the drop line connected with the terminal.

The citation of authorities provided us by plaintiff-appellant primarily covers cases involving sidewalks and other walkways, alleys, streets and public pathways. Hence, they are not persuasive in plaintiff’s favor. Plaintiff-appellant has made no showing that the jury which heard this case was clearly wrong. While the facts are such that a different jury or trier of fact might have found in favor of plaintiff-appellant, the jury in this case did not. The record contains ample proof to support the jury’s finding of fact. In the absence of a showing that the jury’s finding was clearly wrong or manifestly erroneous, it is our duty to affirm its finding of fact. Arceneaux v. Domingue, 365 So.2d 1330 (La.1975) and Matte v. Guillory, 370 So.2d 1299 (La. App. 3rd Cir. 1979), writ denied, 374 So.2d 661 (La.1979).

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

LABORDE, J., dissents with reasons.

LABORDE, Judge,

dissenting.

I dissent being of the opinion that the jury’s verdict was clearly wrong. South Central Bell admitted negligence and the record does not support a finding that the plaintiff was contributorily negligent.

For these reasons, I dissent.