text:
    Emory HARVEY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2205.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.

      Emory Harvey, in pro. per.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

This is an appeal from the denial, without an evidentiary hearing, of a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

Initially, we note that appellant’s conviction of: (1) robbery; (2) aggravated battery; (3) possession of a firearm by a convicted felon; and (4) possession of a firearm during the commission of a felony were affirmed by this court in Harvey v. State, 362 So.2d 714 (Fla.3d DCA 1978).

Appellant claims he is entitled to relief because: (1) his confession, which was admitted into, evidence, was involuntary; (2) his photographic identification was unduly suggestive; and (3) he received ineffective assistance from his court-appointed counsel.

The first two grounds were matters which could have been raised on direct appeal and thereby are unassailable in a collateral attack on the judgment. Clements v. State, 320 So.2d 44 (Fla.3d DCA 1975); Phillips v. State, 313 So.2d 428 (Fla.3d DCA 1975). The fact that one of the grounds is of constitutional dimension does not mean that a waiver may not occur. Clark v. State, 363 So.2d 331 (Fla.1978); Sanford v. Rubin, 237 So.2d 134 (Fla.1970).

The bare allegation of ineffective assistance of counsel without an allegation of prejudice to the defendant does not require an evidentiary hearing on a motion to vacate. State v. Barton, 194 So.2d 241 (Fla.1967); Bell v. State, 164 So.2d 28 (Fla.2d DCA 1964).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elizabeth Eckert GELL, Appellant/Cross Appellee, v. David Jerome GELL, Appellee/Cross Appellant.
    No. 80-430.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Sturrup & Della-Donna and Wayne Carson, Fort Lauderdale, for appellant/cross appellee.
    Neu & Sanderhoff, North Miami, for ap-pellee/cross appellant.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The order of January 28,1980, is reversed except insofar as it denied the wife’s motion to hold the husband in contempt, which was the only matter noticed for the later-expanded “emergency” hearing which gave rise to the order. Neither party, who each respectively complains about unfavorable provisions of the order, was given fair notice or a reasonable opportunity to be heard concerning any other issue. Barreiro v. Barreiro, 377 So.2d 999 (Fla.3d DCA 1979), and cases cited.

Affirmed in part, reversed in part.


text:
    Pedro RODRIGUEZ and Jose Jorge Suarez, Appellants, v. The STATE of Florida, Appellee.
    No. 80-816.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    J. Roberto Rojas, Miami, for appellants.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioners, Pedro Rodriguez and Jose Jorge Suarez, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioners are entitled to no relief, the denial of their motion is affirmed.


text:
    Jesse W. WARD, Appellant, v. Randolph L. CARTER, Jr., M. D., Appellee.
    No. 00-350/T1-130.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.
    Paul M. Rashkind of Sams, Gerstein & Ward, P.A., Miami, for appellant.
    Noah C. McKinnon, Jr., of Coble, McKin-non, Rothert, Bohner, Barkin & Godbee, P.A., Daytona Beach, for appellee.
   PER CURIAM.

Reversed. Aldana v. Holub, 381 So.2d 231 (Fla.1980).

COBB, UPCHURCH and SHARP, JJ., concur.


text:
    STATE of Florida, Appellant, v. Joe Haden JOHNSON, III, Appellee.
    No. 78-2673/T4-332.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

REVERSED and remanded for trial on authority of State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980).

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


author: SHARP, Judge.

text:
    Arthur C. FLOYD, Appellant, v. Ellinor Belding FLOYD, Appellee.
    No. 78-2218/T4-250.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.
    Kendall T. Moran, Titusville, for appellant.
    R. V. Richards, Titusville, for appellee.
   SHARP, Judge.

The husband and wife in this dissolution proceeding jointly owned a number of rental and commercial properties acquired during their sixteen year marriage. All but three properties — a rental unit at 4740 Tuscarora Road, a commercial property on Chil-dre Avenue, and a vacant lot on Violet Street — were held in the parties’ joint names. The other three properties were titled solely in the husband’s name. The trial court found no “special equity” interest for either party in any of this property, and it allowed the ownership of the property to follow the title holder. We agree that no special equity in the jointly owned property was clearly established by either party, and the property should be equally divided by the parties. However there is no basis in the record to deny a special equity to the wife in the three properties held by the husband in his sole name.

During the marriage the husband worked as an engineer for NASA at Cape Kennedy, Florida. The wife was a housewife, mother, and business partner in the parties’ family enterprise of acquiring rental and commercial properties. She raised the husband’s two young children by a prior marriage, and their son, and actively managed the rental properties, collected the rents, paid the mortgages and taxes, handled the bookkeeping, and supervised repairs, cleaning and complaints. The appellant-husband put various funds he obtained from inheritance and sources other than his salary, into the properties, but the wife similarly put funds from her inheritance and her family into the properties. The profits from the rents were used to reduce the mortgages on the properties, and pay the taxes, and when the mortgages were paid, the parties refinanced the properties numerous times and used the funds to make down-payments on additional properties. The commingling of funds from separate inheritances with the joint funds and earnings of the parties from the husband’s salary and from the properties had gone on for such a lengthy time, it was impossible to unravel and separate the parties’ interests.

The record shows, however, that the three properties titled solely in the husband’s name were acquired and managed in the same manner as the other properties. Joint bank account funds were used to acquire them, and meet the mortgage and tax payments on them. The wife managed the rentals on these properties as she did all of the others. She testified that she considered she had a 50% interest in these three properties; and the husband himself admitted she was entitled to some interest in the properties, although he denied her right to as much as a half-interest.

A special equity interest is acquired by a spouse in properties titled in joint names, or in the other’s sole name in recognition of his or her contribution of funds or property or services above and beyond the performance of normal marital duties. Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Ball v. Ball, 335 So.2d 5 (Fla.1976). The three properties were acquired with jointly-owned funds, whose ownership and source were substantially contributed to by the earnings of the other jointly owned properties and commingled funds of the parties. After their acquisition, the wife undertook their management as part of the family business. Both parties testified she had an interest in the three properties. Clearly the wife established a special equity in these properties. Because there is no basis in this record to treat these three business properties of the parties differently than the others, we reverse the lower court’s judgment on that point, and direct a finding that the wife established 50% interest in them.

We affirm the balance of the judgment.

REVERSED in part; and AFFIRMED in part.

UPCHURCH, J., concurs.

CROSS, J., dissents.

      . Hill v. Hill, 123 Fla. 571, 167 So.2d 414 (1936); Williams v. Williams, 177 So.2d 865 (Fla. 3d DCA 1965).

      . Knoblock v. Knoblock, 351 So.2d 387 (Fla. 1st DCA 1977); Scheidl v. Scheidl, 343 So.2d 963 (Fla. 1st DCA 1977); Long v. Long, 304 So.2d 483 (Fla. 1st DCA 1974).

        . Johnson v. Johnson, 367 So.2d 695 (Fla. 2d DCA 1979); Wollman v. Wollman, 235 So.2d 315 (Fla. 3d DCA 1970).


text:
    Thomas GLYNN, Appellant, v. CITY OF KISSIMMEE, Appellee.
    No. 79-54/T4-359.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.

      J. Russell Hornsby, Orlando, for appeli lant.
    Edward Brinson, of Brinson, Smith & Heller, P. A., Kissimmee, for appellee.
   SHARP, Judge.

The plaintiff, Glynn, appeals from a final summary judgment entered by the trial court in favor of the City of Kissimmee. The issue before this court is whether the amended complaint, answer and affidavit filed by the City of Kissimmee conclusively show there was no material issue of fact, and that the City was entitled to judgment as a matter of law. Summary judgments should be granted only in those cases where there remains no genuine issue of any material fact. Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978); Rice v. Plee-Zing Food Stores of West Florida, Inc., 316 So.2d 70 (Fla. 1st DCA 1975). Because we find there was a material issue as to the availability of a “qualified privilege” for the alleged slanderous communication, we reverse and remand the case for trial.

Glynn alleged that he was employed by the City of Kissimmee at its electric plant. On December 24, 1977, Westmoreland, Glynn’s supervisor, accused Glynn of being drunk on the job. This accusation was repeated to the plant manager and other city employees. Westmoreland called the Kis-simmee City police who transported Glynn to the police station. A breathalyzer test was administered to Glynn, and the results were 0.0%.

The trial court ruled that no publication of the slander took place because the communications were between employees of the same employer, citing Smith v. Anheuser-Busch Brewing Co., Inc., 346 So.2d 125 (Fla. 1st DCA 1977). But the Smith case expressly did not reach that question:

We need not determine whether words spoken to appellants by a manager in the presence of an assistant brewmaster constituted a publication to the assistant or whether that communication was privileged.

Id. at 126. The court held that the statements sued upon in the Smith case were not slanderous in nature.

In this case the alleged statements were clearly defamatory in nature. Alexrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978). Publications which impute to another characteristics or conditions incompatible with the proper exercise of one’s business, trade, profession or office are slanderous per se. Drennen v. Westing house Electric Corporation, 328 So.2d 52 (Fla. 1st DCA 1976); Prosser Law of Torts § 112 (4th Ed. 1971).

The trial court also ruled that the city was entitled to the summary judgment because the alleged communications were “privileged.” Unless the privilege is “absolute” as accorded statements made in judicial proceedings, or on the floor of the Legislature, or other instances where for public policy reasons, no actions for slander or defamation are allowed, the speaker is entitled only to a “qualified” privilege. Statements made by employees to other employees fall within the “qualified privilege” ambit. Drennen v. Westinghouse Electric Corporation, 328 So.2d 52 (Fla. 1st DCA 1976); Sias v. General Motors Corp., 372 Mich. 542, 127 N.W.2d 357 (1964). The existence of a “qualified” privilege vanishes if the statement is made with malice, or to too wide an audience. Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906); Arison Shipping Company v. Smith, 311 So.2d 739 (Fla. 3d DCA 1975); Belcher v. Schilling, 349 So.2d 185 (Fla. 3d DCA 1977). The complaint in this case alleged the defamation was made with malice and in bad faith. The affidavit did not counter these allegations.

Rarely is summary judgment appropriate in a defendant’s favor where the existence of a qualified privilege for a defamatory statement is controverted. “Qualified privilege” is a defense and the burden of proving it rests with the defendant. Prosser Law of Torts § 115 (4th Ed. 1971); Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906). Whether the privilege exists or hás been exceeded in some manner creates a mixed question of law and fact which should be determined by the trier of fact. Hartley & Parker v. Copeland, 51 So.2d 789 (Fla.1951); Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1968); Frank Coulson, Inc.-Buick v. Trummbull, 328 So.2d 271 (Fla. 4th DCA 1976). In this case, there are material questions of fact as to whether the statements were made with malice or to too wide an audience.

REVERSED and REMANDED.

DAUKSCH, C. J., and . SHARP, G. K, Associate Judge, concur.

      . The Smith case cites Drennen v. Westinghouse Electric Company, 328 So.2d 52 (Fla. 1st DCA 1976). Drennen rejected “absolute immunity” for communication between employees of the same employer and remanded the issue for trial.

      . McNayr v. Kelly, 184 So.2d 428 (Fla.1966). Prosser Law of Torts § 114 (4th Ed. 1971); Restatement (Second) of Torts § 585-592A (1977).


author: ORFINGER, Judge.

text:
    Gloria PARKER, etc. et al., Appellants, v. Keith KNORR, M.D., Appellee.
    No. NN-147/T1-56.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.

      Lee Weissenborn of Weissenborn & Burr, Miami, for appellants.
    Andrew G. Pattillo, Jr., of Pattillo, Mac-Kay & McKeever, P. A., Ocala, for ap-pellee.
   ORFINGER, Judge.

We are asked to determine if a medical mediation hearing was properly commenced within the six month period prescribed by Section 768.44(3), Florida Statutes (1977), so as to permit the mediation panel to conclude its hearing and render a decision within the statutory ten-month period. Aldana v. Holub, 381 So.2d 231 (Fla.1980) makes it necessary for us to decide the question because the mediation panel filed its written decision prior to Aldana. The judicial referee had set the matter for final hearing just a few days before the expiration of the six-month period, but because the names of some expert witnesses had not been supplied to defendants, he prohibited the presentation of anything other than opening statements and continued the hearing until a date beyond six months, but before ten months from the date the claim was filed. No other “hearing” was held within the six-month period.

Contending that the jurisdiction of the mediation panel had terminated, plaintiff then filed this action for damages. The trial court dismissed the action on motion because the mediation proceeding had not been concluded and plaintiff appealed. Thereafter, the mediation panel rendered its decision.

It is clear by now that the time limitations of the medical mediation statute were jurisdictional and if no hearing at all was begun within the six-month period, the panel’s jurisdiction terminated. Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978). A “hearing” is synonymous with trial, and includes reception of evidence and argument thereon. The presentation of opening statements only does not constitute a “hearing”. Since no final hearing was commenced within the six-month period, the mediation panel had no jurisdiction beyond that time. The purported hearing thereafter and the decision of the panel were void and of no effect. Cohen v. Johnson, 373 So.2d 389 (Fla. 4th DCA 1979).

The order dismissing the cause is reversed for further proceedings consistent herewith.

REVERSED.

COBB and SHARP, JJ., concur.

      . We use the past tense because of the holding in Aldana.

      . Hewitt v. Caffee, 368 So.2d 1342 (Fla. 3d DCA 1979), where only medical records were introduced. See also: Wright v. Ratnesar, 373 So.2d 431 (Fla. 2d DCA 1979); Hirsch v. Kleinman, 375 So.2d 362 (Fla. 4th DCA 1979); Shore v. Abbazia, 375 So.2d 354 (Fla. 3d DCA 1979).


text:
    James ETHRIDGE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. PP-197.
    District Court of Appeal of Florida, First District.
    May 21, 1980.
    Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from a verdict of guilty of attempt to commit aggravated battery. Appellant was sentenced to two years probation conditioned upon payment of restitution in the amount of $1,039.00 to the victim. The sole issue on appeal is the contention that the trial judge erred in ordering appellant to pay restitution without affording him an opportunity to be heard as to the amount of damages caused by his offense. Appellant asserts that the damages were $994.00, rather than $1,039.00 as ordered by the judge.

A review of the record reveals that this appeal is without merit. The trial judge delayed sentencing in order to determine the amount of damages at a subsequent hearing. The prosecuting attorney produced the victim of the offense, who presented receipts for $994.00 covering his medical expenses. The State Attorney explained to the court that the victim had an expense of $45.00 for which he had no receipt, but was prepared to testify concerning this expenditure. Appellant’s counsel, after examining the receipts produced, admitted the reasonableness of the sum of $994.00. The trial judge stated, rather firmly, that probation would be conditioned upon payment of the full amount of damages, on a “take it or leave it” basis. Both appellant and his attorney subsequently agreed to the higher figure without further argument or objection. We hold that the hearing below complied with the requirements of Fresneda v. State, 347 So.2d 1021 (Fla.1977).

Without any intention to offend counsel, we feel compelled to observe that this appeal is frivolous. The court is cognizant of the fact that parties have the right to and should pursue meritorious appeals, and it is entirely understandable that opinions on what is meritorious will never be unanimous. We acknowledge also that seemingly insignificant cases may often involve important legal issues that warrant the full attention of counsel and the courts. This case involves no new or novel issues, and even if the point presented could by any stretch of the imagination be considered significant, which we do not, on the record before us we are persuaded that the point was not properly preserved for appellate review.

Accordingly, the judgment and sentence are affirmed.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.

      . The amount in dispute is $45.00. We note that trial counsel filed a statement of judicial acts to bé reviewed requiring preparation of a transcript of the entire trial and sentencing proceedings. At a cost approaching $2.00 per page, transcript costs alone would exceed $700.00. We note also that trial counsel asserted no error in the sentencing proceeding.


text:
    Daniel Junior ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 79-105.
    District Court of Appeal of Florida, Second District.
    May 21, 1980.
    Jack 0. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Daniel Junior Armstrong appeals from the judgment entered upon his nolo conten-dere pleas to burglary and grand theft. The appellant contends that the trial court erred in denying his motion to suppress certain admissions made to the police.

We are unable to determine the appellant’s appeal on the. merits. Under Brown v. State, 376 So.2d 382 (Fla.1979), only legally dispositive issues may be reserved for appeal following a nolo contendere plea. We find that the appellant did not reserve a legally dispositive issue, and therefore is not entitled to an appeal.

The appellant’s plea was entered before the Brown decision. Accordingly, the case is remanded to the trial court with instructions that the appellant be afforded an opportunity to withdraw his plea. See Pittman v. State, 382 So.2d 1227 (Fla. 2d DCA, 1979), on rehearing (Fla. 2d DCA, Jan. 30, 1980), rehearing denied (Fla. 2d DCA, May 8, 1980).

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


author: PER CURIAM. BOOTH, Judge,

text:
    MERIDITH CORPORATION and Maryland Casualty Insurance Company, Appellants, v. Edwin H. ALLMAN, Jr., Appellee.
    No. PP-311.
    District Court of Appeal of Florida, First District.
    May 22, 1980.
    Wendell J. Kiser and Robert C. Barrett, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    No appearance for appellee.
   PER CURIAM.

Paragraph 1(a) of the decretal portion of the order appealed is hereby amended to read as follows:

(a) Claimant is entitled to such remedial treatment and attention as the nature of his injury or the process of his recovery may require, under the supervision of Dr. Clement H. Kreider, Jr., the authorized treating physician, in the manner and for the time provided by law.

As amended, the order is affirmed. Monex Corporation v. Mercado, 379 So.2d 439 (Fla. 1st DCA 1980).

McCORD and SHAW, JJ., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I dissent. Crews v. Town of Bay Harbor Islands, 378 So.2d 1265 (Fla. 1st DCA 1979).


text:
    Ray E. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. PP-371.
    District Court of Appeal of Florida, First District.
    May 22, 1980.
    Ray E. Davis, in pro. per.
    No appearance by appellee.
   PER CURIAM.

The factual allegations supporting the claim of ineffective counsel lack the specificity required to establish grounds for relief. See Meeks v. State, 382 So.2d 673 (Fla.1980); Potts v. State, 242 So.2d 729 (Fla. 2d DCA 1971); Fla.R.Crim.P. 3.850. As to the second ground, challenging the state court’s jurisdiction to try appellant, the facts as stated are insufficient to overcome the conclusive presumption of state court jurisdiction. 40 U.S.C. § 255; People v. Sullivan, 151 Colo. 434, 378 P.2d 633 (1963); Dobbins v. State, 114 Ga.App. 403, 151 S.E.2d 549 (1966); Kansas City v. Garner, 430 S.W.2d 630 (Kan.App.1968); State v. Dykes, 114 Ariz. 592, 562 P.2d 1090 (App.1977); United States v. Pate, 393 F.2d 44 (7th Cir. 1968), cert. denied, 393 U.S. 890, 89 S.Ct. 209, 21 L.Ed.2d 160 (1968).

AFFIRMED.

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


text:
    Pedro S. SARDUY M.D. and Pedro S. Sarduy, M.D., P. A., Appellants, v. Xiomara T. BAKER and Charles Baker, her husband, Appellees.
    No. 80-1046.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Howard E. Barwick and David L. Wills, Miami Shores, for appellants.
    No appearance for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

This appeal having been transferred to this court from the Supreme Court of Florida, 383 So.2d 230, and following review of the opinion and judgment of the Supreme Court of Florida filed April 24, 1980 now lodged in this court, it is ordered that this cause is remanded to the judicial referee for termination of medical mediation jurisdiction in accordance with Aldana v. Holub, 381 So.2d 231 (Fla.1980).


text:
    STATE of Louisiana v. Edward Charles JACKSON.
    No. 66084.
    Supreme Court of Louisiana.
    April 16, 1980.
    Rehearing Denied May 19, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
    Law Office of Joe Rolfe White, John Taylor Bentley, Bastrop, for defendant-appellant.
   PER CURIAM.

Affirmed.

EDWARD A. de la HOUSSAYE, III, J. ad hoc, does not participate.


text:
    STATE of Louisiana v. Tommy SCHMILL.
    No. 67026.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Tomniy Schmill, applying for writs of certiorari, prohibition and mandamus to the 29th Judicial District Court. St. Charles Parish. No. 79-297.

Writ denied.


text:
    Jerry CURRY et ux. v. Joe BAGWELL.
    No. 67230.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Jerry Curry applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 379 So.2d 1163.

Denied.


text:
    Effie T. COMEAUX v. GREYHOUND LINES, INC. et al.
    No. 67255.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Effie T. Comeaux applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Iberia. 381 So.2d 910.

Writ denied.


text:
    Billie Ann PRUDHOMME v. Charles S. PRUDHOMME.
    No. 67256.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Charles S. Prudhomme applying certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 381 So.2d 906.

Denied.


text:
    Frank CARVER v. Manuel CABIRO and Allstate Insurance Company.
    No. 67267.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Frank Carver applying for certiora-ri, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 381 So.2d 969.

Writ denied.

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


text:
    Phyllis Reynolds HANLEY v. James J. HANLEY, Jr.
    No. 67279.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Phyllis Reynolds Hanley applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 381 So.2d 963.

Denied.


text:
    Janet URIAN v. E. John BULLARD, Charles L. Mo and the New Orleans Museum of Art.
    No. 67288.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re E. John Bullard, Charles L. Mo and New Orleans Museum of Art, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 380 So.2d 707.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Douglas C. JONES.
    No. 67022.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re State of Louisiana, through John M. Mamoulides, District Attorney, applying for writs of certiorari, prohibition and mandamus to the 24th Judicial District Court. Parish of Jefferson. No. 79-2585.

Granted. Motion to quash reversed. Remanded for trial court to consider alternative motion to sever. C.Cr.P. Art. 495.1.


text:
    STATE of Louisiana v. Tommy SCHMILL.
    No. 67026.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Tommy Schmill, applying for reconsideration of denied writ of March 28, 1980. Parish of St. Charles. No. 79-297.

Not considered. Rule IX, § 6.


text:
    STATE of Louisiana ex rel. Hayman DOURESSEAU v. Judge Garland H. PAVY et al., 27th Judicial District Court, St. Landry Parish.
    No. 66178.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Hayman Douresseau, applying for reconsideration of denied writ of February 15, 1980. St. Landry Parish. Number unknown.

Not considered. Rule IX, § 6.


text:
    A. K. ROY, INC. v. Andrew L. ROY.
    No. 67310.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Andrew L. Roy, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 380 So.2d 689.

Denied.


text:
    STATE of Louisiana ex rel. Randall WEBB v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67104.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Randall Webb applying for writ of habeas corpus, certiorari, prohibition. No. 12-76-9. Parish of East Baton Rouge, 19th Judicial District Court.

Denied.


text:
    STATE of Louisiana ex rel. Charles Luther CLARK v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67124.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Charles Luther Clark applying for remedial writ. Bossier Parish. No. 56,032.

Writ denied.


text:
    James MILSTEAD v. James A. WOOD.
    No. 67127.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re James A. Wood, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Rouge. No. 12,953. Parish of East Baton

Denied.


text:
    STATE of Louisiana ex rel. Emanuel SYLVAS v. 22ND JUDICIAL DISTRICT COURT.
    No. 67187.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Emanuel Sylvas applying for writ of mandamus and habeas corpus. No. 76556. St. Tammany Parish.

Writ denied. The District Court has acted on relator’s application and the matter is now moot.


text:
    Olen O. JAMES et ux. v. R. J. SWAIN et ux.
    No. 67210.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Olen O. James applying for writs of certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Claiborne. No. 14,019.

Denied.


text:
    Robert RIDDLE v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS and Louisiana Paving Company, Inc.
    No. 67212.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Robert Riddle, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. No. 14,021.

Denied.


text:
    STATE of Louisiana v. Stanley Lee McKINNEY.
    No. 67217.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Stanley Lee McKinney applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 79-1000.

Denied. Adequate remedy by review in event of 'conviction.


text:
    STATE of Louisiana ex rel. Alex NOLAN v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67222.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Alex Nolan applying for writ of mandamus. Parish of East Baton Rouge. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. Ronald BRAUD v. Hon. Jerome WINSBERG, Judge, Orleans Criminal Judicial District Court.
    No. 67249.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Ronald Braud, applying for supervisory writs. Parish of Orleans. No. 268-294.

Denied. Relator’s appeal is pending.


text:
    James T. CLYNES v. Elaine Lowe CLYNES.
    No. 67266.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re James T. Clynes applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 77-14554.

Writ denied.


text:
    STATE of Louisiana v. George THOMAS.
    No. 67269.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re State of Louisiana applying for remedial writs through the District Attorney Harry F. Connick. Parish of Orleans. No. 269-572.

Denied.


text:
    STATE of Louisiana ex rel. Hayward Haymand DOURESSEAU v. STATE of Louisiana.
    No. 67272.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Hayward Haymand Douresseau applying for - remedial writ. Parish of St. Landry. Nos. 66-178, 32-304.

Denied.


text:
    STATE of Louisiana v. Danny SINGLETON.
    No. 67275.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Danny Singleton, applying for remedial writs. Parish of Rapides. No. 172,-357.

Writ denied.


text:
    STATE of Louisiana v. Donald Edward PERRY.
    No. 67285.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re State of Louisiana applying for writs of certiorari through the District Attorney. Parish of Terrebonne. No. 94,189.

Denied.


text:
    STATE of Louisiana ex rel. William S. JOHNSON v. ORLEANS PARISH CRIMINAL DISTRICT COURT.
    No. 67292.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re William S. Johnson, applying for remedial writs. Parish of Orleans. No. 263-196.

Writ denied.


text:
    STATE of Louisiana v. Darrell S. SADLER and Evelyn Sadler.
    No. 67293.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Darrell S. Sadler and Evelyn Sadler, applying for remedial writ, 13th Judicial District Court, Parish of Evangeline. No. 20,558.

Writ denied on the showing made.


text:
    STATE of Louisiana v. Harland J. HARVILLE, Jr.
    No. 67299.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re State of Louisiana applying for remedial writ. Parish of Caddo. 1st Judicial District Court, No. 112,548.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana v. Ralph HARBAUGH and Patricia Woods.
    No. 67315.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Ralph Harbaugh and Patricia Woods, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 80-136.

Denied.


text:
    STATE of Louisiana v. Eugene McELVEEN.
    No. 67337.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Eugene McElveen, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 77-95.

Denied.


text:
    STATE of Louisiana v. Tyronne J. MITCHELL.
    No. 67226.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Tyronne J. Mitchell applying for supervisory writ. Parish of Orleans. No. 253-522, Section D.

Denied.


text:
    Judy Belle V. Millet, wife of Lester J. MILLET, Jr. v. Lloyd B. JOHNSON, Individually, and as Sheriff of St. John the Baptist Parish.
    No. 67278.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Lloyd B. Johnson, applying for cer-tiorari, or writ of review to the Court of Appeal, Fourth Circuit. 381 So.2d 1293.

Denied.’


text:
    The CONTINENTAL GROUP, INC. v. J. L. ALLISON, Jr., et al.
    No. 67188.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Continental Group, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of DeSoto. 379 So.2d 1117.

Writ granted.


text:
    STATE of Louisiana ex rel. Milton ARMSTEAD v. CLERK OF COURT, ORLEANS CRIMINAL JUDICIAL DISTRICT COURT.
    No. 66777.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Milton Armstead, applying for writ of mandamus. Orleans Parish. No. 238-354.

Granted. The trial judge is ordered to furnish a copy of Boykin transcript.


text:
    STATE of Louisiana v. Richard WICHERS.
    No. 66855.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Richard Wichers applying for writ of certiorari. Parish of Orleans. No. 273-973.

Granted. Docket as appeal.


text:
    STATE of Louisiana v. Harry V. PHILLIPS.
    No. 67040.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Harry V. Phillips, applying for remedial writs to the 28th Judicial District Court for the Parish of La Salle. No. 20,-542.

Granted.


text:
    STATE of Louisiana ex rel. Lee N. DAVIS v. Judge Robert P. JACKSON, 9th Judicial District Court.
    No. 66736.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Lee N. Davis, applying for writ of mandamus. Parish of Rapides. Number unknown.

Writ denied. The District Court has acted on relator’s application and the matter is now moot.


text:
    STATE of Louisiana v. Manfred M. DELGADO.
    No. 67253.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Manfred M. Delgado applying for writ of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 79-559.

Writ granted.


text:
    LOUISIANA DIVISION OF the HORSEMEN’S BENEVOLENT & PROTECTIVE ASSOCIATION v. LOUISIANA STATE RACING COMMISSION et al.
    No. 67268.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Louisiana State Racing Commission, applying for remedial writs, Civil District Court. Parish of Orleans. No. 79-2454.

' Granted. Treating relators’ appeal to this court as an application for writs, the writ is granted and the case is ordered transferred to the Court of Appeal, Fourth Circuit, where relators have an adequate remedy by appeal.


text:
    STATE of Louisiana v. Niles CLAY.
    No. 67273.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Niles Clay, applying for writ of review. Parish of East Baton Rouge. No. 11-79-107.

Writ granted.


text:
    STATE of Louisiana v. Keith PARKER.
    No. 67274.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re City of Baker, through the City Prosecutor, Paul T. Thompson, applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. Nos. 6868 and 6869.

Granted.


text:
    STATE of Louisiana v. Floyd JEFFERSON.
    No. 67289.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re State of Louisiana through Harry F. Connick, District Attorney, applying for writ of certiorari, mandamus and prohibition. Parish of Orleans. No. 272-245 “E”.

Granted.


text:
    STATE of Louisiana v. James BELL.
    No. 67290.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re State of Louisiana through Harry F. Connick, District Attorney, applying for writ of certiorari, mandamus, and prohibition. Parish of Orleans. No. 272-328 “E”.

Granted.


text:
    STATE of Louisiana v. Alan D. LUCAS, Jr.
    No. 67363.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Alan D. Lucas, Jr., applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 79-1873.

Granted.


text:
    STATE of Louisiana v. Calvin MILLS.
    No. 67366.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Calvin Mills applying for writs of certiorari, prohibition, mandamus and stay order. Criminal District Court. Parish of Orleans. No. 250-990.

Granted.


text:
    In re Grand Jury Subpoenas Issued to David Lewis GRAHAM and Eric Joseph Graham.
    No. 67382.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re State of Louisiana through the District Attorney, Paul L. Carmouche, applying for certiorari, mandamus and prohibition. Parish of Caddo. No. 114,292.

Granted.


text:
    STATE of Louisiana ex rel. Byron PATTERSON v. LOYOLA UNIVERSITY LAW CLINIC.
    No. 67170.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Byron Patterson applying for remedial writs. Parish of Orleans. No. 268-673.

Not considered. Relator must first file his motion in the district court.


text:
    STATE of Louisiana v. Billy T. WRIGHT, Sr.
    No. 67235.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Billy T. Wright, Sr., applying for writ of certiorari, prohibition, and mandamus. Parish of Ouachita. No. 55856.

Dismissed.


text:
    STATE of Louisiana v. Nathaniel CRUMP.
    No. 65760.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Nathaniel Crump, applying for writs of certiorari. Parish of St. John the Baptist. No. 6-79.

Writ denied.


text:
    STATE of Louisiana ex rel. Gregory SOCKWELL v. COURT REPORTER, ORLEANS CRIMINAL JUDICIAL DISTRICT COURT, SECTION “C”.
    No. 66007.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Gregory Sockwell, applying for writ of mandamus. Parish of Orleans. Number unknown.

Denied. The trial judge has ordered that relator be furnished a transcript of the “Boykin” examination, the only documente to which he is entitled under the showing made.


text:
    STATE of Louisiana ex rel. Robert WALKER v. Hon. Alvin J. OSER, Judge, Orleans Criminal Judicial District Court.
    No. 66011.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Robert Walker, applying for writ of mandamus. Parish of Orleans. No. 248-949.

Denied. Moot. Acted on in district court March 25, 1980.


text:
    STATE of Louisiana ex rel. Richard DeMAIO v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 66016.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Richard DeMaio, applying for writ of mandamus. Orleans Parish. No. 234-708.

Writ denied. Application is moot.


text:
    STATE of Louisiana ex rel. John DOMINO v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 66019.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re John Domino, applying for writ of mandamus. Orleans Parish. No. 251-471.

Writ denied. Application is moot. District Court has acted.


text:
    STATE of Louisiana ex rel. Harold BROOMFIELD v. Judge Frank MARULLO, Orleans Criminal Judicial District Court.
    No. 66252.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Harold Broomfield, applying for writ of mandamus. Parish of Orleans. Number unknown.

Writ denied. Application is moot. District Court has acted.


text:
    STATE of Louisiana v. Arthur DAVIS.
    No. 66402.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Arthur Davis, applying for writs of certiorari, prohibition, mandamus and for a stay order. .Orleans Parish Family Court. No. 183-142 A. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Herbert BROWN v. Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 66443.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Herbert Brown applying for writ of mandamus. Orleans Parish. No. 239-286.

Writ denied.


text:
    STATE of Louisiana ex rel. Richard NELSON v. CRIMINAL DISTRICT COURT SECTION “I” NEW ORLEANS, Louisiana.
    No. 66515.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Richard Nelson applying for writ of mandamus. Orleans Parish. No. 257-042.

Writ denied. The District Court has acted and the application is now moot.


text:
    STATE of Louisiana ex rel. Roland GIBSON v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66737.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Roland Gibson, applying for writ of habeas corpus and certiorari. Parish of Orleans. No. 203-904.

Writ denied.


text:
    STATE of Louisiana ex rel. Wayne D. THOMAS, Sr. v. Honorable Frank J. SHEA, Judge, Criminal District Court.
    No. 66781.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Wayne D. Thomas, Sr., applying for supervisory writs. Parish of Orleans. No. 264-958.

Writ denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Arthur TURNER v. Judge Bernard BAGERT, Sr., Orleans Criminal Judicial District Court.
    No. 66905.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Arthur Turner, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 267-391.

Denied.


text:
    STATE of Louisiana ex rel. Delaney THOMAS v. Warden Roger AUCOIN, East Baton Rouge Prison.
    No. 66913.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Delaney Thomas, applying for writ of habeas corpus. Parish of East Baton Rouge. No. 3-79-561.

Denied.


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON v. ORLEANS PARISH CRIMINAL COURT REPORTER, SECTION “E”.
    No. 66930.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Garrett Decatur Richardson, applying for remedial writs. Parish of Orleans. No. 267-196.

Writ denied on the basis that appointed counsel will furnish relator with copy of transcript.


text:
    STATE of Louisiana ex rel. Cleon DUNHURST v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66943.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Cleon Dunhurst, applying for writ of mandamus. Parish of St. Tammany. Number unknown.

Denied. Moot. The District Court has acted.


text:
    STATE of Louisiana ex rel. David N. RICHARDSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66956.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re David N. Richardson applying for remedial writs. Parish of Livingston. No. 2134.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Daniel PUGH v. STATE of Louisiana.
    No. 67008.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Daniel Pugh, applying for remedial writs of certiorari. Parish of East Baton Rouge. No. 1-80-77.

Denied. Matter is proceeding regularly in trial court.


text:
    STATE of Louisiana ex rel. Kenneth MOORE v. Hayden J. DEES, Warden, Dixon Correctional Institution.
    No. 67053.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Kenneth Moore applying for writ of certiorari, to the Criminal District Court for the Parish of Orleans. No. 259-430.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert M. COOPER v. STATE of Louisiana.
    No. 67054.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Robert M. Cooper, applying for writs of mandamus and habeas corpus to the 22nd Judicial District Court for St. Tammany Parish. No. 60378.

Writ denied. Moot. ■ District Court has acted.


text:
    STATE of Louisiana ex rel. James DUGGAN v. STATE of Louisiana.
    No. 67055.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re James Duggan, applying for writ of mandamus to the 24th Judicial District Court for the Parish of Jefferson. No. 78-2570.

Denied.


text:
    STATE of Louisiana ex rel. Leonard Lee JOSEPH v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67061.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Leonard Lee Joseph applying for writs of habeas corpus, certiorari and mandamus to the 16th Judicial District Court. Parish of Iberia. No. 44682.

Writ denied.


text:
    STATE of Louisiana ex rel. Samual A. HARVEY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67064.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Samual A. Harvey applying for remedial writs to the Caddo Parish District Court. No. 67064.

Denied. No merit. See reasons of district judge. In addition, the place of detention in the sentence is surplusage; the penalty for manslaughter, (and the sentence should be) “imprisonment at hard labor” for a period.


text:
    STATE of Louisiana ex rel. Wilson ARMONT v. STATE of Louisiana.
    No. 67079.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Wilson Armont, applying for remedial writs to Orleans Parish. No. 264-233.

Writ denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Arthur GUILLORY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67101.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Arthur Guillory, applying for remedial writs of certiorari and habeas corpus. St. Landry Parish. No. 28054.

Denied.


text:
    STATE of Louisiana ex rel. Lawrence MATTHEWS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67056.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Lawrence Matthews, applying for writs of certiorari and habeas corpus. Parish of Orleans. No. 211-184.

Denied. Repetitive writ. See No. 55256.


text:
    STATE of Louisiana v. Joseph T. DEPAULA.
    No. 67215.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re State of La. applying through District Attorney Ad Hoc John L. A. Lenfant, IV for writs of certiorari, mandamus and prohibition. Parish of Tangipahoa. No. 42480.

Writ granted.


text:
    Edward J. ALLOR v. BELDEN CORPORATION.
    No. 67243.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Edward J. Allor applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of LaSalle, 382 So.2d 206.

Writ granted.


text:
    G. A. HEFT d/b/a G. A. Heft & Co. et al. v. E. P. LABRUYERE et al.
    No. 67138.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re G. A. Heft d/b/a G. A. Heft & Co. et al. applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 379 So.2d 771.

Denied.

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


text:
    CHARLES CARTER & COMPANY, INC. v. DIXIE ELECTRIC MEMBERSHIP CORPORATION.
    No. 67152.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Charles Carter & Company, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First . Circuit. Parish of East Baton Rouge. 380 So.2d 632.

Writ denied.

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


text:
    Loretta Ray RIVERS v. Jack Looney RIVERS.
    No. 67180.
    Supreme Court of Louisiana.
    May 2, 1980.
   (In re Loretta Ray Rivers, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Orleans. 381 So.2d 573.

Writ denied.


text:
    Johnny Everett GIPSON v. Linda Kay GIPSON.
    No. 67206.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Johnny Everett Gipson applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 379 So.2d 1171.

Denied.


text:
    GIVENS JEWELERS, INC. v. Douglas J. GIVENS.
    No. 67207.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Givens Jewelers, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 380 So.2d 1227.

Denied.


text:
    Frank J. HALL et al. v. ARKANSAS LOUISIANA GAS COMPANY.
    No. 67225.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Arkansas Louisiana Gas Company, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 379 So.2d 1142.

Denied.


author: EDWARDS, Judge.

text:
    HARRIS MORTGAGE CORPORATION v. Raymond C. JOHNSON.
    No. 13141.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    James L. Dendy, Baton Rouge, for plaintiff-appellee Harris Mortg. Corp.
    Doris Gates Rankin, Baton Rouge, for defendant-appellant Raymond C. Johnson.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Harris Mortgage Corporation, plaintiff-appellee, filed suit against Raymond C. Johnson, defendant, seeking to acquire Johnson’s twenty percent interest in a joint venture involving plaintiff, defendant and others. From a summary judgment granted in favor of Harris Mortgage Corporation, Johnson appealed. We affirm.

On April 24, 1973, the joint venture agreement at issue was executed. Paragraph 7 provides:

“In the event it shall become necessary for the owners to put cash money into the project described herein each owner shall pay his or its pro-rata share within ten (10) days from date of demand or shall transfer all interests and ownership to said Harris Mortgage Corporation, or assigns, at the value as shown on the books at the time of demand. Each party hereto agreeing that failure to comply with the provisions of this paragraph shall constitute a forfeiture and revocation of all right to title and interest without further payment or consideration.’1

Pursuant to Paragraph 7, cash calls were made on June 2, 1975, and July 1, 1975. Johnson’s pro-rata share was $7,800.00. No part of this amount was ever paid. Harris Mortgage Corporation filed suit to enforce the forfeiture provision on September 22, 1977.

On February 5, 1979, counsel for Harris Mortgage Corporation, in accordance with LSA-C.C.P. Art. 1496, filed a request for admission of facts and of genuineness of documents. The facts and documents as to which admission or denial was sought were such that, if admitted, plaintiff’s case would have been proven.

LSA-C.C.P. Art. 1496 provides in part:

“Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than fifteen days after service thereof or within such shorter or longer time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission either:
(1) An affidavit denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he -cannot truthfully admit or deny those matters, or
(2) Written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part.
If written objections to a part of the request are made, the remainder of the request shall be answered within the period designated in the request. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party deny only a part or a qualification of a matter of which an admission is requested, he shall specify so much of it as is true and deny only the remainder.”

Johnson made no reply to the requested admissions. Therefore, each request must de deemed admitted.

Plaintiff filed a motion for summary judgment on March 14,1979. Three affidavits and numerous exhibits, all clearly supporting plaintiff’s claims, were attached.

Defendant filed no affidavits in opposition to summary judgment. Instead, on March 19, 1979, counsel propounded interrogatories and filed an amended answer raising nebulous issues. Answers to the interrogatories were not due until after the date set for trial of the summary judgment motion.

On March 30, 1979, the summary judgment motion was tried. Judgment in favor of Harris Mortgage Corporation was signed on April 3, 1979.

On appeal, counsel for Johnson urges that the trial court misconstrued the law and jurisprudence of summary judgment. We find this claim untenable.

Summary judgment is controlled by LSA-C.C.P. Arts. 966 and 967.

Article 966:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if .the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

Article 967:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
•If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit ■facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt.”

Appellant’s counsel maintains that 1) there was not sufficient time between the filing of the defendant’s interrogatories and the trial of the summary judgment motion to compel plaintiff to file answers, and 2) that defendant’s failure to file counter-affidavits should not result in summary judgment for the plaintiff.

Johnson’s first attorney, appointed by the court, answered with a general denial on December 8, 1977. Therefore, LSA-C.C.P. Art. 966 made summary judgment available from that date forward. Whether Johnson’s court appointed attorney was named for due process reasons or otherwise is irrelevant. The appointment and ensuing answer were unquestionably valid.

We note that present counsel for appellant was enrolled as of January 26, 1979. From that date, no interrogatories were filed until after plaintiff’s motion for summary judgment of March 14. This delay is fatal to counsel’s claim of inadequate time. In fact, the interrogatories filed March 19, 1979, appear to be little better than a stalling tactic as they seek answers to wide-ranging and peripheral matters.

Appellant cites authority for the contention that failure to file counter-affidavits should not result in summary judgment for the plaintiff. A close examination of the jurisprudence, however, shows that each case is merely an exception to the general rule that a party opposing summary judgment must file counter-affidavits as required by C.C.P. Art. 967 or else state reasons by affidavit why he cannot.

In Wells v. Security Insurance Company of Hartford, 371 So.2d 354 (La.App. 4th Cir. 1979), the plaintiff, opposing summary judgment, filed no counter-affidavits. Nevertheless, public conveyance office records which contradicted defendant’s unrecorded authentic act of sale were held to create a genuine issue of material fact so as to preclude summary judgment.

Acme Refrigeration of Baton Rouge, Inc. v. Caljoan, Inc., 346 So.2d 743 (La.App. 1st Cir. 1977); Garlington v. Kingsley, 277 So.2d 183 (La.App. 3rd Cir. 1973), reversed on other grounds 289 So.2d 88 (La.1974); Louisiana Materials Company v. Turcich, 256 So.2d 719 (La.App. 4th Cir. 1972); and Mays v. Aetna Casualty & Surety Company, 242 So.2d 264 (La.App. 2d Cir. 1970), all stand for the principle that counter-affidavits need not be filed by the party opposing summary judgment if the motion for summary judgment has not been properly made.

In the present case, plaintiff’s pleadings, together with the facts deemed admitted, the affidavits and attached exhibits, show that there was no genuine issue of material fact. The motion for summary judgment was proper on its face. Johnson was, therefore, through affidavits or otherwise, bound to contradict, or give reasons why he could not, an issue of fact. Failure to do so properly resulted in summary judgment for Harris Mortgage Company. C.C.P. Arts. 996 and 967; Hardee v. Kilpatrick Life Insurance Co., 373 So.2d 982 (La.App. 3rd Cir. 1979); Badeaux v. East Jefferson General Hospital, 364 So.2d 1348 (La.App. 4th Cir. 1978); Joiner v. Lenee, 213 So.2d 136 (La.App. 3rd Cir. 1968).

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by Raymond C. Johnson.

AFFIRMED.


text:
    Hobart O. PARDUE, Jr. v. Kenneth Paul TURNAGE (Intervention of Ronald and Celestine Lessard).
    No. 13156.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.

      Joseph E. Anzalone, Jr., Amite, Phillip T. Hager, New Orleans, for plaintiff.
    Carl W. Cleveland, New Orleans, for defendant.
    Robert E. Tillery, Baton Rouge, for inter-venors, Ronald and Celestine Lessard.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Hobart 0. Pardue, Jr., appellee, won a judgment of $3,000.00 against Kenneth Paul Turnage. At the instance of Pardue, and pursuant to a writ of fieri facias, the Sheriff of Tangipahoa Parish seized a large stuffed bear, allegedly the property of Tur-nage.

Asserting that the bear had been manually donated to them by Turnage, Ronald and Celestine Lessard intervened. They claimed damages for wrongful seizure and sought to enjoin sale of the' bear. Following trial of the rule for a preliminary injunction, the trial court dismissed the Les-sards’ intervention. From that judgment, the Lessards appeal. We reverse.

The trial court’s oral reasons for judgment, although not entirely clear, indicate that there were three bases for his decision, to wit:

1) that no manual donation of the bear to the Lessards had actually transpired;

2) that the donation inter vivos was an illegal divestiture by the donor of all his property;

3) that the donation was in fraud of Par-due’s rights as a creditor.

I. DONATION OF THE BEAR

The statutory basis for manual donations of corporeal movables is LSA-C.C. Art. 1539, which provides:

“The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.”

Case law holds that while mere delivery of a corporeal movable is sufficient to effect a change in ownership, the burden of proving that a donation was made rests on the donee, who, by “strong and convincing proof,” must establish both that the donor intended to donate and that delivery actually took place. Hayes v. Dompe, 331 So.2d 874 (La.App. 2d Cir. 1976); Succession of Broussard, 306 So.2d 399 (La.App. 3rd Cir. 1975); Succession of McCrocklin, 126 So.2d 364 (La.App. 2d Cir. 1960), affirmed 242 La. 404, 137 So.2d 274 (1961); Succession of Gorman, 209 La. 1092, 26 So.2d 150 (1946).

Any admissible evidence may be used to prove a manual donation, LSA-C.C. Art. 2277; Campo v. Campo, 376 So.2d 519 (La.App. 4th Cir. 1979), and outward acts by the alleged donor, together with the relationship of the parties, is of weighty import. Succession of Brewster, 259 So.2d 388 (La.App. 2d Cir. 1972); Oulliber v. Oulliber, 204 So.2d 625 (La.App. 4th Cir. 1967); Lamkin v. Hanna, 135 So.2d 659 (La.App. 2d Cir. 1961).

At trial, no less than six witnesses testified that Kenneth Turnage had, or they heard he had, given the bear to the Les-sards. Their testimony stands uncontra-dicted. One witness, Raymond Wood, testified that it was his impression that Kenneth Turnage, and not the Lessards, owned the bear.

While the Lessards testified that they would give the bear back to Turnage if he requested it, such an assertion in no way derogates from Turnage’s initial donation.

Celestine and Ronald Lessard, the sister and brother-in-law of Kenneth Turnage, might well return a gift from kinfolk on request, just as would other relatives and close friends in similar situations. Barring such a request, their ownership of the bear continues. Their dominion over the bear was evidenced by its display at the Sportsman, a sporting goods store in Ponchatoula.

James Turnage, father of Kenneth Tur-nage, testified that “Everybody knew that bear as Kenny’s bear.” This testimony relates not to ownership, but to the fact that a hunter’s kill is known as his, regardless of actual title.

Finally, the testimony of Ethel Leary, grandmother of Kenneth Turnage, that she expected his return, dealt not with any potential reclamation of the bear, but simply demonstrated the desire of grandparents to see their grandchildren.

An exhaustive reading of the entire record convinces this court that Kenneth Turnage did give his stuffed bear to the Lessards. For the trial court to find otherwise was manifest error.

II. DONATION OMNIUM BONORUM

LSA-C.C. Art. 1497 provides:

“The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.”

Pardue, the appellee, never raised donation omnium bonorum as an issue. Nevertheless, the trial court ruled that such a prohibited donation had taken place. We find that Turnage did reserve property enough for subsistence. While it is true that he gave his household effects and the bear to the Lessards, these were simply things he could not conveniently take with him to Alaska. In addition to the retention of stock, Turnage possessed means for subsistence in his ability to work for a salary. Succession of Quaglino, 232 La. 870, 95 So.2d 481 (1957). There was no prohibited donation omnium bonorum.

III. DONATION IN FRAUD

Pardue never alleged that Turnage’s donation of the bear was fraudulent. Nevertheless, the trial court ruled that Tur-nage could not give away his property in fraud of creditors.

Pardue’s right to have filed a revocatory action is unchallenged. LSA-C.C. Art. 1970. However, to have been successful, Pardue would have been required to prove both injury to himself and bad faith on the part of Turnage. LSA-C.C. Art. 1978; Moran v. Johnson, 151 So. 139 (La.App.Orl.Cir.1933). In addition, revocation would not have been successful unless Turnage had not property sufficient to pay Pardue. LSA-C.C. Art. 1971.

Nothing in the record suggests that Tur-nage was insolvent when judgment was signed on May 22, 1978. To the contrary, testimony elicited showed that he owned hunting lodge stock and a home in Alaska.

It was, therefore, error for the trial court to rule that the donation of the bear was in fraud of Pardue’s rights.

This court holds that the donation of the bear by Kenneth Turnage to the Lessards was valid and that the bear is owned by the Lessards.

For the foregoing reasons, the judgment dismissing the Lessards’ intervention is annulled and reversed. The case is remanded for further proceedings not inconsistent with law and this opinion. All costs, both trial and appellate, are to be paid by Hobart 0. Pardue, Jr.

REVERSED AND REMANDED.


text:
    Adruel Breaux RICHARD v. Joseph RICHARD, (two cases).
    Nos. 13159, 13160.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.

      John T. Pettigrew, Houma, for plaintiff and appellant.
    Lee P. Lottinger, Jr., Houma, for defendant and appellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Adruel Breaux Richard, plaintiff-appellant, and Joseph Richard were married in 1955. In 1972, Mrs. Richard inherited certain lands, admitted by both parties to be her separate property. Subsequently, using community funds, Mr. and Mrs. Richard purchased a wood-frame house and moved it to' Mrs. Richard’s tract of land. That house became their domicile.

On February 2, 1978, the Richards were judicially separated. In March of 1978, Mrs. Richard sought to evict her husband from the family home. Defendant filed a dilatory exception of prematurity. The matter was taken under advisement.

On May 29, 1979, a judgment of divorce was rendered against Mr. Richard. Shortly thereafter, plaintiff again sought to evict Mr. Richard from the family home. Defendant filed both a dilatory exception of prematurity and a declinatory exception of lis pendens. Both suits for eviction were then consolidated.

The trial court heard arguments on the exceptions, determined there could be no eviction prior to partition, maintained the exceptions, and dismissed Mrs. Richard’s suit. She appeals. We reverse.

The thrust of Mrs. Richard’s appeal is that the family home, though purchased with community funds, became her separate property by virtue of her ownership of the land. She urges that as owner, she may evict Mr. Richard and that, at most, she owes the former community of acquets and gains for the enhanced value of her separate property due to the presence of the home on it. This contention is correct.

Even .though community funds were used to purchase the house which was moved, LSA-C.C. Art. 2408 allows her to claim the home as her own separate property.

LSA-C.C. Art. 2408 provides:

“When the separate property of either the husband or the wife has been increased or improved during the marriage, the other spouse or his or her heirs, shall be entitled to the reward of one half of the value of the increase or ameliorations, if it be proved that the increase or amel-iorations be the result of the common labor, expenses or industry; but there shall be no reward due, if it proved that the increase is due only to the ordinary course of things, to the rise in the- value of property, or to the chances of trade.”

Because Mrs. Richard’s separate tract has been enhanced, she must account to the community for the increase in value. LSA-C.C. Art. 2408: Succession of Singer, 208 La. 463, 23 So.2d 184 (1945); Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3rd Cir. 1976), writ denied 342 So.2d 217 (La.1977); Succession of Broussard, 306 So.2d 399 (La.App. 3rd Cir. 1975); Succession of Sonnier, 208 So.2d 562 (La.App. 3rd Cir. 1968); Will iams v. Williams, 199 So.2d 401 (La.App. 3rd Cir. 1967).

Plaintiff’s duty to compensate the community in no way derogates from the fact that the home is an enhancement, and part of, her separate estate. She therefore is free to evict Mr. Richard, since he is not a co-owner in indivisión of her separate property.

We note that had Mr. Richard not admitted the tract of land to have been his former wife’s separate property, he could have demanded a partition of that part of the community. The strong presumption that property acquired by either spouse during a marriage is community property would have been operative as to both land and house. LSA-C.C. Arts. 2402, 2405; R. D. M. Corporation v. Patterson, 255 La. 301, 230 So.2d 820 (1970).

Since the land’s ownership was not contested, Mrs. Richard’s right to the house operates as a matter of law, regardless of defendant’s claim that it belonged to the community.

For the foregoing reasons, the trial court judgment maintaining defendant’s exceptions and dismissing plaintiff’s suit is annulled and reversed. The case is remanded for further proceedings not inconsistent with law and this opinion. All costs, both trial and appellate, are to be paid by Joseph Richard.

REVERSED AND REMANDED.


text:
    Craig DICKEY v. Corinne Womack DICKEY.
    No. 13166.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Patsy Jo McDowell, Baton Rouge, for plaintiff-appellee Craig Dickey.
    Donald G. Cave, Baton Rouge, for defendant-appellant Corinne Womack Dickey.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Corinne Womack Dickey appeals a trial court judgment awarding the permanent care, custody and control of her ten year old son, Bradley Craig Dickey, to his father, Craig Dickey, plaintiff-appellee herein. We affirm.

Appellant’s only specification of error is that the trial court, in granting her husband a separation from bed and board on the basis of Mrs. Dickey’s adultery, erred in awarding custody to the father. Failure to properly apply the maternal preference rule and incorrect evaluation of the facts are urged as the bases for the trial court’s allegedly erroneous judgment.

This court finds both contentions to be incorrect.

LSA-C.C. Art. 157 provides the statutory authority for custody awards. As amended by Act 448 of 1977, Art. 157 read in pertinent part:

“A. In all eases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children.”

Act 718 of 1979, effective September 7, 1979, amended this provision. It now reads:

“A. In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent.”

Appellant cites Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), for the maternal preference rule. In that case, the Supreme Court held:

“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children.
(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable,

The maternal preference in Fulco was simply a rebuttable presumption that custody should be awarded to the mother provided she was not morally unfit or otherwise unsuitable. “Otherwise unsuitable” allowed custody to be denied the mother for any valid reason in addition to moral unfitness.

That the truly essential determination is the child’s best interest has been ruled in many cases. Delatte v. Delatte, 358 So.2d 974 (La.App. 1st Cir. 1978); Stevens v. Stevens, 340 So.2d 584 (La.App. 1st Cir. 1976); Franklin v. Franklin, 338 So.2d 1199 (La.App. 3rd Cir. 1976). In Stevens, the court held:

“The maternal preference rule is ex.planatory of, rather than distinct from, this general principle (of awarding custody in the child’s welfare and best interest) and, in most cases, follows naturally therefrom.”

Even the rebuttable presumption, which once favored the mother, has been swept away by both Art. 157 as amended in 1979 and the jurisprudence.

In Hegan v. Hegan, 367 So.2d 147 (La.App. 2d Cir. 1979), the court noted that while a child’s close bond with the mother was a factor to consider,

“this particular factor should not be so great as to only be overcome by a showing on the part of the father that the mother is unfit or unstable. Furthermore, . . . this same factor could also weigh in favor of the father.”

Spencer v. Talabock, 370 So.2d 684 (La.App. 4th Cir. 1979), held that the 1977 version of Art. 157 “clearly rejected preference in custody determinations based on the sex of the parent(.)”

Thornton v. Thornton, 377 So.2d 417 (La.App. 2nd Cir. 1979), is the most recent case to consider Art. 157. The court found Mrs. Thornton morally fit and not otherwise unsuitable. It nevertheless awarded custody of four children, aged 5 through 14, to Mr. Thornton because he was more fit. Noting the (at that time) not yet applicable 1979 Amendment to Art. 157, the court stated:

“It could hardly be more clear that the legislative intent is to do away with any legal preference or presumption in favor of the mother in custody disputes. The father and the mother stand on equal footing at the outset and the role of the court is to determine the best interest of the child based on the relative fitness and ability of the competing parents in all respects to care for the child.
The legislative amendments do not, however, do away with the real life fact, based on human experience, that it is often, in many if not most family circumstances, in the best interest of young children to be cared for by their mother. This nonmaterial concept remains a factor to be considered, along with many others, and will often compete with more materialistic factors that favor the father. It is correct, however, that this concept does not create a preference or presumption in favor of the mother that must be overcome by proof of the mother’s unfitness or incapability.”

Clearly, in the present case; Mrs. Dickey’s status as the mother was properly only one factor in the trial court’s determination of custody based on the welfare and best interests of Bradley Dickey. Fulco v. Fulco, supra.

A careful review of the record convinces us that the trial court made no manifest error in awarding custody.

For two years, Mrs. Dickey has been engaged in adultery. She frequently left the family domicile at night, leaving her husband to care for Bradley. She has stated that she wishes to marry her lover — with whom she has been seen in public. She has fought with her husband, her daughter and her in-laws.

Mr. Dickey has tried to provide a moral, healthy home for a ten-year-old boy. His parents assist him by providing a loving home where Bradley is always welcome to visit. Bradley’s education is fostered and encouraged both by Mr. Dickey and his parents. The child’s physical, mental and emotional needs are met and his surroundings are stable.

It is noteworthy that William E. Bezdek, the paramour of Mrs. Dickey, is presently ' married. Under oath, he admitted not only wanting to break up his current marriage to marry Mrs. Dickey, but also that he had committed adultery with eight other partners.

Mrs. Dickey’s acts, together with such a prospective stepfather, when contrasted with Bradley Dickey’s present environment, made the trial court’s custody award an easy determination with which we agree.

Mrs. Dickey urges that her relationship with Mr. Bezdek is not so notorious as the affair in Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979).

In that case, the wife had an illicit affair with a man of another race which lasted four months and occurred in the small, rural area of Vacherie and Kraemer. Widespread gossip and the consequent opprobrium followed. The Supreme Court awarded custody to Mr. Schexnayder.

We need not compare the affairs of Mrs. Dickey and Mrs. Schexnayder. We need only conclude that the trial court made a reasoned and correct award of custody based on all the evidence.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by Corinne Womack Dickey.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Glenn A. ARNOLD v. NEW ORLEANS POLICE DEPARTMENT.
    No. 10991.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Writ Refused June 6, 1980.

      David F. Craig, Jr., New Orleans, for plaintiff-appellee.
    Michael A. Starks, Jerry M. Lankford, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and HOOD , JJ.

       Due to the death of Judge John T. Hood prior to rendition, but after his concurrence therein, this opinion is rendered unanimously by Gulot-ta and Garrison, JJ.

   GULOTTA, Judge.

The New Orleans Police Department appeals from a decision of the Civil Service Commission reversing the Police Department’s dismissal of plaintiff from his job. We affirm.

The basis for Officer Glenn A. Arnold’s suspension and subsequent dismissal from the police department by the appointing authority was his role in a barroom brawl which took place in the early morning hours of April 30,1978. On that date, he and two other off-duty police officers were playing pool in a bar when Officer Arnold heard the sound of breaking glass and went to the front of the bar to see what was happening. He discovered that another patron of the bar had kicked a hole in the lower part of the plate glass door on his way out. The patron, Terry Pittman, returned to the bar and became involved in an altercation with Officer Arnold, in which one of the other officers (James Gomez) and Pittman’s two companions also joined. The fight progressed outside to the parking lot in front of the bar and progressed for some distance across the parking lot. Ultimately, Officer Debeau, the third policeman, was able to break up the fight and separate the parties. Pittman drove off with one of his friends, discovering, as he did so, that sometime in the course of the fight he had suffered a puncture wound to his left chest in the area of the heart.

As the Commission stated in its opinion, it is clear the appointing authority dismissed Officer Arnold in the belief he had stabbed Pittman in the course of the fight, and further that he failed to take an opportunity to withdraw from the fight at an appropriate point. The authority’s belief was based on polygraph examinations taken by Pittman and Arnold.

The Commission concluded the appointing authority failed to carry its burden of proof regarding the allegation that Officer Arnold stabbed Terry Pittman and that Officer Arnold chased Pittman for approximately 200 feet during the course of the altercation. The Commission concluded further that the testimony of the City’s witnesses and. its documentary evidence were insufficient to establish that Pittman was in fact stabbed by a knife or that Officer Arnold had stabbed the victim. The Commission refused to accept the results of the polygraph tests, commenting that Pittman never alleged he knew he was stabbed during the course of the fight, but rather only concluded he had been stabbed when he became aware of the wound after the fight was over. The Commission also stated that under the circumstances the results of the tests could not be relied on, regardless of their legal admissibility. Both parties, stated the Commission, were very drunk during the incident and neither was able to recall precise details; therefore, the Commission could not accept as reliable the polygraph tests based on the parties’ recollection of events.

We cannot say the Commission erred in refusing to accept the results of the polygraph tests. In Manale v. Department of Police, 376 So.2d 607 (La.App. 4th Cir., 1979), we held that admissibility of polygraph test results is within the Commission’s discretion and subject to guidelines. Here, as in Manale, we find no abuse of that discretion. As pointed out by the Commission, the reliability of the tests was questionable. Accordingly, we conclude the Commission did not err in not relying on the results of the polygraph examinations.

Excluding the results of the polygraph tests, the question remains whether the evidence in the record supports the appointing authority’s action by a preponderance of the evidence. We agree with the Commission’s conclusion that it does not. It is true that Arnold had in his possession a pocket knife, but the evidence does not clearly establish that Pittman was stabbed by a knife rather than cut by a shard of glass from the broken door. In fact, the doctor who treated Pittman in the hospital emergency room following the fight concluded that the wound was too irregular for a knife wound, and, although he found no glass particles or fragments in it, he indicated the wound could have been caused by a piece of broken glass. Moreover, Pittman could not say he experienced the stab wound during the fight, and there was no eye witness to a stabbing. Pittman simply concluded he had been stabbed when he discovered after the fight that he was bleeding and had a chest wound. The Commission concluded that there was sufficient evidence to indicate the wound was inflicted through other means not within Officer Arnold’s control.

Although this Court has review of both law and facts in Civil Service cases, the standard of review is the same as that which exists in judicial review. We must give great weight to the factual conclusions of the trier of fact. Herbert v. Dept. of Police, 362 So.2d 1190 (La.App. 4th Cir. 1978). Considering the evidence in the record, and excluding the results of the polygraph examinations, we agree with the Civil Service Commission’s finding that it was equally as possible that Pittman’s wound was caused by the broken glass as by a possible knife stabbing. See Manale v. Department of Police, supra. Accordingly, we conclude the Commission was correct in determining that the appointing authority failed to show sufficient cause for Officer Arnold’s dismissal.

Alternatively, the appointing authority argues the Commission’s actions in reducing Arnold’s dismissal to a 120-day suspension was an unwarranted usurpation of the duties and responsibilities of the Superintendent of Police. We disagree. In Branighan v. Department of Police, 362 So.2d 1221 (La.App. 4th Cir., 1978), we stated, “The Commission does not have the authority to reduce a penalty except upon a determination that there is insufficient cause for the greater penalty.” It is clear the Commission concluded here there was not sufficient 'cause to dismiss Officer Arnold, but also concluded Arnold had violated Articles 26 and 48 of the Rule for the Administration of the Department of Police, (specifically the rules regulating personal conduct and consumption and possession of alcoholic beverages) and on that basis gave him the maximum suspension. This action was justified both on the evidence in the record and on the Commission's authority as enunciated in the Branighan case.

For the reasons above, therefore, we affirm the decision of the Civil Service Commission reducing Arnold’s dismissal to a suspension of 120 days.

AFFIRMED.

      . A 120-day suspension of Glenn Arnold was imposed by the commission.


author: SCHOTT, Judge.

text:
    Robert L. AGNELLY v. John L. LAURICELLA, Jr., Frank Renaudin, Richard Dalferes, DeLauren Corp., d/b/a Air Oil, Inc.
    No. 10957.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Rehearing Denied May 22, 1980.

      J. Paul Demarest, Favret, Favret, De-marest & Russo, New Orleans, for plaintiff-appellee.
    Bruce G. Reed, Reed & Reed, New Orleans, for defendants-appellants.
    Before SAMUEL, SCHOTT and HOOD, JJ.

       Due to the death of Judge Hood prior to rendition, but after his concurrence therein, this opinion is rendered unanimously by Samuel and Schott, JJ.

   SCHOTT, Judge.

Robert L. Agnelly brought this suit for the balance of commissions allegedly due him as a salesman for Air Oil, Inc. He also sought wages allegedly earned as a foreman for the company in the amount of $358.75, expenses of $370.00 and penalties and attorney’s fees pursuant to LSA R.S. 23:632. The trial court awarded plaintiff $7,352.29 for unpaid commissions along with attorney’s fees in the amount of $2,150.00. Defendant was also taxed for an expert witness fee in the amount of $1,100.00 for a certified public accountant who testified in plaintiff’s behalf. The trial court dismissed plaintiff’s claim for wages, expenses and penalties. From the judgment defendant has appealed and plaintiff has answered the appeal.

At the end of 1975 defendant started its business of cleaning up oil spills and employed plaintiff as a salesman on a commission basis. Shortly after his employment plaintiff secured a cleanup job with Gulf Oil Corporation. This job was carried out during the first quarter of 1976 and produced gross income to defendant of $310,564.15. Plaintiff was employed by virtue of an oral agreement made with the three stockholders of defendant, Messrs. John L. Lauricel-la, Frank H. Renaudin and Richard Dal-feres. According to plaintiff the agreement called for payment to him of 10% of the gross profit realized on the job and gross profit meant the total -billings to Gulf less those amounts actually spent on the job for labor and materials. According to the stockholders, plaintiff was to be paid 10% of net profit which was the amount of cash they actually put into their pockets after the job was completed. The issue in the case revolves around certain costs which defendant deducted from the gross income collected from Gulf before computing plaintiff’s 10% commission.

In order to prove his case, plaintiff called a certified public accountant who testified that four items which defendant had deducted from the gross income were not properly included as costs of the job. These were as follows:

Prepaid insurance $10,100.00
Cost of a boom 19,513.56
Inventory on hand after completion of the job 13,009.00
Error in accounts payable 4,559.77

In connection with the insurance item, defendant’s principals took the position that the Gulf Oil job was the only reason for having the insurance and consequently the entire premium was a legitimate item to deduct as a cost of the job. The accountant testified that the $10,100.00 represented a prepaid insurance item remaining in defendant’s hands after the job was completed. As to the boom, defendant’s principals ■testified that the only reason they purchased the boom was to do the Gulf Oil job and consequently it was a legitimate deduction as a cost of that job. However, the evidence showed that the boom was still a. usable piece of equipment after the job was done and continued to be usable for two and a half years thereafter. The accountant testified that depreciation on the boom was the proper item of cost to be deducted from the job. . The inventory item was that portion of expendable materials defendant purchased for use on the Gulf job which was left over after the job was completed. The figure was specifically based on a letter from defendant to its accountant acknowledging that this material was on hand at the end of the Gulf job. Finally, in connection with the adjustment of accounts payable the certified public accountant testified that he traced every item which was billed to defendant in payment of such bills and he concluded from his meticulous review of defendant’s records that the accounts payable were erroneously overstated in defendant’s schedule of costs incurred on the job.

Defendant made timely objection to the testimony of the accountant and argues in this court that the trial court erred in permitting the accountant to testify. Defendant takes the position that the accountant’s opinion as to the proper allocation of the costs was irrelevant since he was not a party to the conversations in which the agreement between plaintiff and defendant was made. We have concluded that this testimony was properly admitted under the facts of this case as well as the law.

There was not a great difference between plaintiff’s version and defendant’s version of the contract. When the dispute came to a head defendant’s bookkeeper prepared a schedule which was unacceptable to plaintiff because he deducted too much from the job income in the way of costs. Plaintiff was entitled to expect assistance in analyzing and challenging these figures which had been taken from records compiled by defendant’s certified public accountant. When plaintiff’s accountant completed his work he identified the insurance, boom and inventory as assets remaining in defendant’s hands and reached the obvious conclusion that these were not costs incurred on the job. Even without the benefit of the testimony of a certified public accountant, common sense dictates that a salesman working on a commission of 10% of the profit on the job would not be charged with the cost of assets which remained in the hands of his employer after the job was completed. In effect, defendant takes the untenable position that plaintiff would earn 10% of cash which was left but would lose that portion of his commission on cash used to purchase other assets.

Furthermore, the use of the testimony of plaintiff’s certified public accountant was consistent with the law as expressed in LSA C.C. Art. 1945 et seq., concerning the interpretation of agreements. His testimony served to assist the court in the interpretation of the accounting terms, which necessarily had to be interpreted by comparing plaintiff’s claim with the schedule produced by defendant’s bookkeeper, Art. 1947; and the accountant’s testimony was likewise useful to the court in ascertaining what the intention of the parties was in the case. Art. 1950.

Finally, the decision of the trial judge, in refusing to allow, defendant to deduct the itéms discussed from the gross income from the Gulf job was within the fact finding province of the trial judge and should not be disturbed in the absence of manifest error. Far from finding such error, we conclude the decision was eminently correct.

With respect to plaintiff’s answer to the appeal in which he seeks wages and expenses, the same principle controls our decision. Although plaintiff testified that he earned $100.00 per day in wages plus $25.00 per day in expenses for 21 days, and for that he was short-changed, the trial judge concluded that plaintiff failed to prove his claim by a preponderance of the evidence. The record supports this conclusion. Defendant’s principals testified that plaintiff incurred, and defendant paid, expenses for his motel and meals during the 21 days in amounts which exceeded that which they had agreed to pay, so that plaintiff got all that was coming to him. The record does not provide a basis for us to disturb this conclusion by the trial court.

Turning to the question of penalties and attorney’s fees under R.S. 23:632, the trial court concluded that plaintiff was not entitled to penalties because there was a bona fide dispute between the parties as to what was owed to plaintiff. We find no error in this conclusion and consequently penalties are not due. However, even though the imposition of penalties is precluded plaintiff is entitled to attorney’s fees under Carriere v. Pee Wee’s Equipment Co., 364 So.2d 555 (La.1978). This is so notwithstanding the fact that his claim is for commissions as opposed to hourly or daily wages, Rubenstein Bros. v. La Forte, 320 So.2d 303 (La.App. 4th Cir. 1975), Nolfo v. Landeche, 339 So.2d 331 (La.1976). Finally, plaintiff has asked for an increase in the attorney’s fees, but the award is within the sound discretion of the trial court and will not be disturbed. Accordingly, the judgment is affirmed.

AFFIRMED.

      . The suit was originally brought against John L. Lauricella, Frank H. Renaudin and Richard Dalferes who are the holders of all of the stock of DeLauren Corporation, the parent corporation of Air Oil, Inc. DeLauren Corporation, d/b/a Air Oil, Inc. and Air Oil, Inc. were also joined as defendants. The judgment on appeal is against DeLauren Corporation, d/b/a Air Oil, Inc. No issue has been raised in this court with respect to the liability of the individual defendants or that judgment was taken against the proper defendant.

      . In the trial court there was also in dispute plaintiffs claim for commissions on three smaller jobs. The judgment includes these, and this aspect of the judgment is not seriously questioned by defendant in this court.


author: PATTERSON, Chief Justice,

text:
    David H. CULVER v. Joyce CULVER.
    No. 51860.
    Supreme Court of Mississippi.
    May 14, 1980.
    Dan W. Webb, Grady F. Tollison, Jr., Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Oxford, for appellant.
    Philip T. Dean, Billy J. Jordan, Columbus, William T. Sloan, Oxford, for appellee.
    Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.
   PATTERSON, Chief Justice,

for the Court:

In the Chancery Court of Lafayette County, David Culver sought on the grounds of habitual cruel and inhuman treatment a divorce from Joyce Culver, his wife of twenty-eight years. Mrs. Culver denied the allegations in the bill of complaint and through a cross bill sought a decree of separate maintenance. Despite uncontradicted evidence that Mrs. Culver had for eight years refused her husband sexual relations, the court denied the divorce. Mr. Culver appeals. We reverse.

Mr. Culver testified that his wife forced celibacy upon him without justification and publicly directed at him embarrassing, abusive language, including false accusations of adultery, causing him to develop nervousness and a rash. Other witnesses corroborated this testimony that Mrs. Culver’s conduct adversely affected her husband’s health.

Mrs. Culver said she refused sexual relations because of her husband’s drinking habits. She testified that he regularly drank beer to excess, causing a personality change; hence her refusal. She acknowledged that Mr. Culver gets up at six or seven every morning as he has for years, going to work sober. Friends of the Cul-vers testified that Mr. Culver enjoys beer, but cannot be classified as a drunkard. Mr. Culver stated that he drinks no hard liquor, only beer. His son agreed, testifying that his father very rarely drinks anything other than four or five beers during evening and early night. The son also indicated that Mrs. Culver herself enjoys vodka on occasion.

This Court has held that inexcusable long-continued refusal of sexual relations warrants divorce, either on the ground of constructive desertion for the statutory period, Graves v. Graves, 88 Miss. 677, 41 So. 384 (1906), or on the ground of habitual cruel and inhuman treatment, Sarphie v. Sarphie, 180 Miss. 313, 177 So. 358 (1937). Although habitual drunkenness could doubtless operate as an excuse for long-continued refusal of sexual relations, the evidence presently before us clearly fails to support the court’s finding that Mr. Culver “stayed pretty well soaked on beer practically all the time.” Indeed, the court held both the Culvers had grounds for divorce, but denied a divorce to Mr. Culver despite evidence indicating he is a respected member of the community, with reputable friends and regular employment. It also denied Mrs. Culver separate maintenance beyond a three-month period allowed to permit her to aid her brother in the settlement of her father’s estate..

Under the circumstances of this case, we conclude that the court manifestly erred in refusing Mr. Culver a divorce on the ground of habitual cruel and inhuman treatment. We therefore remand this case to the Chancery Court of Lafayette County for entry of a divorce decree and further proceedings respecting the allocation of the parties’ property.

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.