author: COBB, Chief Judge.

text:
    Louis JOHNSON, Jr.; Cleveland West, Camilla Ann Arns; Wendell L. Andrews and Ellen Andrews, his wife, Appellants, v. David LEUSCHNER, Appellee.
    No. 84-4.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.

      John C. Englehardt, P.A., Orlando, for appellants.
    T. Michael Woods, Orlando, for appellee.
   COBB, Chief Judge.

In this case, the issue is whether the trial court erred in computing mesne profits awarded to a successful plaintiff in ejectment. The appellants, defendants below, are handicapped on this appeal by the absence of a transcript of the trial, which was not reported. See Sroczyk v. Fritz, 220 So.2d 908 (Fla.1969); Wright v. Wright, 431 So.2d 177 (Fla. 5th DCA 1983); Balzam v. Cohen, 427 So.2d 329 (Fla. 3d DCA 1983); Mills v. Heenan, 382 So.2d 1317 (Fla. 5th DCA 1980).

The defendants below — Johnson, West and Arns — took possession in 1979 of certain realty owned by the plaintiff, Leus-chner, pursuant to a written lease and option to purchase. The lease provided for monthly rental payments of $325.00, and these were made by the lessees through March 31,1981; they also paid down on the option a total of $15,000.00, and made certain improvements to the real property.

In 1981, the defendants subleased the two houses on the property for $500.00 per month to their tenants, Wendell and Ellen Andrews. Thereafter, they ceased making the monthly payments to Leuschner, whereupon he demanded that the rents paid by the Andrews be surrendered to him, as well as the past-due rents of $325.00 per month. Leuschner then filed an action for possession of the property, and the defendants counterclaimed, seeking either the return of the $15,000.00 down payment, with interest, or specific performance of the option to purchase.

Following nonjury trial, the trial judge entered an order dated August 10, 1983, making certain findings of fact and rulings of law. He found that the rental agreement was breached by the defendants’ failure to pay the monthly rental of $325.00 after March 31, 1981; that the defendants were “in actual or constructive possession since that time, and in fact, have been renting out two (2) houses on the property and receiving the income from those properties;” that the plaintiff (Leuschner) was entitled to that rental income; that ejectment should be granted; that any improvements to the property made by the defendants were in contravention of the plaintiff’s direct orders and therefore set-offs for them should be denied; and that the $15,-000.00 — minus the rents, in toto — should be returned to the defendants, with any deficit to be paid to the plaintiff. It is apparent from the record that the trial court found the terms of the option portion of the lease agreement so vague and unconscionable as to render it void and unenforceable.

In accordance with the foregoing order, a final judgment was entered in November, 1983, ejecting the defendants and their tenants; adjudicating that the plaintiff, Leus-chner, was due $9,425.00 in delinquent rental for the months of April, 1981 through August, 1983, inclusive, and, also, the amount of $15,000.00 for the rental income paid to defendants by the tenants from February 1, 1981 to August 1, 1983, inclusive; and granting a set-off of the $15,000.00 down payment on the unconsummated option purchase. Court costs were awarded to the plaintiff.

On appeal, the defendants below argue that during their rightful occupancy up to April, 1981, while they made the monthly contractual payments of $325.00, they had the right to collect and retain the rents from their subtenants. Hence, the $1,000.00 rents collected by the appellants for the months of February and March, 1981, could not be due to the plaintiff below based on the trial court’s finding that their breach occurred by reason of their failure to make the April payment. Furthermore, appellants argue that it is unjust enrichment to award the plaintiff below any delinquent rental greater than that agreed upon by the parties in the original lease, i.e., $325.00 per month.

Appellants also contend that the evidence adduced below does not support the amount of rents collected from their ten-ants, and that they are entitled to reimbursement for their improvements. These contentions must fail because of the absence of a trial record.

The appellee/plaintiff, in his brief, asserts that the “primary dwelling on the property” was sublet by appellants for $325.00 per month and rent for “the other dwelling was collected at the rate of $175.00 per month.” Plaintiff/appellee claims that he is entitled to the rents collected by the defendants from their tenants commencing in February, 1981. In other words, it is apparent from the appellee’s brief that the maximum rental produced by the property at any given time was $500.00 per month.

The appellee argues that when the rent payments ceased at the end of March, 1981, the defendants became tenants at sufferance without any property rights whatsoever. See Coleman v. State ex rel. Carver, 119 Fla. 653, 161 So. 89 (1935); David Properties, Inc. v. Selk, 151 So.2d 334 (Fla. 1st DCA 1963). Such a holdover tenant, without evidence of the landlord’s acquiescence, has no right to collect rents from subtenants. Coleman; Pillans & Smith Co., Inc. v. Lowe, 117 Fla. 249, 157 So. 649 (1934).

In Kester v. Bostwick, 15 So.2d 201 (Fla.1943), the Florida Supreme Court considered the issue of mesne profits, which had been denied by the trial court to a successful plaintiff in ejectment. The defendant, whose tax title was determined to be void, had built thirty-two dwellings on the disputed property and derived the rents from them until ejected. The supreme court noted that the general rule in regard to mesne profits is that they are measured by the rental value of the property or its value for use and occupation during the time the defendant is in wrongful possession. This value also includes any damages suffered to the lands by reason of the occupancy. The value of rents and profits, said the court, refers to net rents and profits—i.e., fair rental value less the cost of rental and collection, but not inclusive of interest on the investment.

In the instant case, the trial court apparently awarded the sum of the rental owed by the defendants and the rental they collected from their tenants, rather than determining the rental value during wrongful possession. Clearly, the rental value of the entire property during the period from April, 1981 through August, 1983, inclusive (29 months), was no more than $500.00 per month, based on the findings of the trial court as reflected by the order of August 10, 1983.

The total judgment for the plaintiff, therefore, should have been $14,500.00 ($500 x 29) plus costs of $515.80 properly assessed against defendants, minus the $15,000.00 set-off for monies paid down on the option, or a total judgment of $15.80 accompanying the order of ejectment. We reverse and remand for entry of a judgment consistent with this opinion.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anna Marie RAKES, Appellant, v. STATE of Florida, Appellee.
    No. 84-268.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Rose v. State, 434 So.2d 1014 (Fla. 5th DCA 1983); Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982), review denied 419 So.2d 1195 (Fla.1982).

ORFINGER, SHARP and COWART, JJ., concur.


text:
    Calvin Lynn SPANGLER, Appellant, v. STATE of Florida, Appellee.
    No. 84-402.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984).

COBB, C.J., and ORFINGER, and CO-WART, J.J., concur.


text:
    Walter R. RICKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 84-610.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Gann v. State, 459 So.2d 1175 (Fla. 5th DCA 1984).

COBB, C.J., and ORFINGER and CO-WART, JJ., concur.


text:
    Willie GOULD, Appellant, v. STATE of Florida, Appellee.
    No. 84-666.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Curtis v. State, 455 So.2d 1090 (Fla. 5th DCA 1984).

DAUKSCH, ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.


text:
    Jerome E. WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 84-792.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Harris v. State, 453 So.2d 228 (Fla. 5th DCA 1984).

DAUKSCH, FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


text:
    Thomas James McKNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 84-826.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

See Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984).

AFFIRMED.

DAUKSCH, ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    PAN AMERICAN BANK OF ORLANDO, P.A., as Personal Representative of the Estate of Gordon J. Barnett, Petitioner, v. ORANGE COUNTY, a Political Subdivision of the State of Florida, Respondent.
    No. 84-1352.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    N. James Turner, Orlando, for petitioner.
    Philip H. Trees and G. Robertson Dilg, Orlando, for respondent.
   PER CURIAM.

The petition for certiorari in this case to review a trial court order denying petitioner’s motion to compel discovery, is denied. See Industrial Tractor Company v. Bartlett, 454 So.2d 1067 (Fla. 5th DCA 1984). See generally Haddad, The Common Law Writ of Certiorari in Florida, 29 U.Fla.L. Rev. 207, 224 (1977).

The underlying discovery question here sought to be presented by certiorari review of an interlocutory trial order, and which we do not now reach, is whether documents protected by the attorney-client privilege (see § 90.502(2), Fla.Stat.) are exempt from the disclosure requirements of the Public Records Act (see § 119.07(3)(a), Fla.Stat.). This interesting point of law can be presented on direct appeal in the event petitioner loses in the trial court and then desires review by appeal from the final judgment.

DENIED.

COBB, C.J., and COWART, J., concur.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially:

In my opinion petitioner has not established a sufficient basis for us to require the discovery he seeks. Thus I agree we should not grant certiorari. Industrial Tractor Company v. Bartlett, 454 So.2d 1067 (Fla. 5th DCA 1984) says appellate courts do not generally grant certiorari to remedy errors in denying discovery. I agree also with that statement. If it be inferred by anyone, however, that orders denying discovery can never be the subject of a writ of certiorari, then I suggest the inference is erroneous. Some orders denying discovery are properly reviewed by cer-tiorari.


text:
    HUMANA OF FLORIDA, INC., d/b/a Women’s Hospital Tampa, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 84-331.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1984.
    John H. French, Jr., of Messer, Rhodes & Vickers, Tallahassee, for appellant.
    Jay Adams, Dept, of Health and Rehabilitative Services, Tallahassee, for appellee.
   PER CURIAM.

At oral argument, appellant informed this court that it had abandoned its first point on appeal. We have reviewed the remaining points on appeal and find them to be without merit.

Accordingly, the order appealed from is AFFIRMED.

OTT, A.C.J., and DANAHY, J„ and HARRY W. FOGLE, Associate Judge, concur.


author: SCHEB, Acting Chief Judge.

text:
    Eric Bobbie BURKE, Appellant, v. STATE of Florida, Appellee.
    No. 84-1028.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1984.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Defendant Eric Bobbie Burke appeals his judgment of conviction for grand theft and the sentence imposed by the trial court pursuant to the sentencing guidelines. Fla.R.Crim.P. 3.701.

In June 1983 defendant was charged with second-degree grand theft, a third-degree felony. He pled nolo contendere and was placed on probation for five years. In November an affidavit was filed alleging that defendant violated several conditions of his probation. He was adjudged guilty and, in January 1984 the trial court entered an order of modification of probation. One month later another affidavit of violation of probation was filed. After a hearing on February 17, the court found that defendant had violated his probation. The court then sentenced him under the new sentencing guidelines imposing a prison term of five and one-half years. On appeal defendant only challenges the sentence he received.

We find a number of problems with defendant’s sentence. First, the scoresheet prepared by the court reflects that defendant was charged with two counts of grand theft. However, the record only discloses one count of grand theft and the judgment and sentence forms only indicate one count. We are unable to determine from the record whether there was a concurrent charge of grand theft for which defendant was being sentenced. If the court sentenced defendant for only one count of grand theft, the sentence imposed was illegal as it exceeded the allowable maximum of five years for a third-degree felony. See §§ 812.014(2)(b) and 775.082(3)(d), Fla.Stat. (1983); Fla.R.Crim.P. 3.701(d)(10). If, on the other hand, defendant was being sentenced for two counts of grand theft, as the order revoking probation indicates, then the court should have imposed a separate sentence for each offense. Of course, the total sentence cannot exceed the total guideline sentence unless a written reason is given. Rule 3.701(d)(12).

Next, the record reveals that several times during the proceedings the trial judge made remarks to the effect that he intended to deviate from the guidelines by aggravating defendant’s sentence. Nevertheless, the method used by the court to achieve this goal was improper. The trial judge stated that he was going outside the guidelines “based on the latest ruling from the sentencing commission that on violations of probation, we may enhance by going up.” The court was evidently relying on rule 3.701(d)(14) as authority for increasing the sentence. This was incorrect. While this rule does permit an enhancement of a sentence imposed after revocation of probation, it did not become effective until July 1, 1984, and cannot be applied retroactively. Saunders v. State, 459 So.2d 1119 (Fla. 1st DCA 1984); Randolph v. State, 458 So.2d 64 (Fla. 1st DCA 1984).

The court also incorrectly added six points to the scoresheet because defendant was on probation for the offense for which he was being sentenced. The court determined that this constituted being under “legal constraint” at the time of the offense for which defendant was being sentenced. See Rules 3.701(d)(6) and 3.988(f)(IV). But, while defendant was under legal constraint when his probation was revoked, he was not under legal constraint at the time he committed the offense of grand theft for which he was sentenced. Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984).

Finally, we note that the court incorrectly checked the habitual offender box on the scoresheet. The record does not reflect any grounds which would qualify defendant for habitual offender treatment.

We find no merit to the remaining points raised by defendant. Accordingly, we affirm his conviction but vacate his sentence and remand for resentencing. On remand defendant should be sentenced under the guidelines in effect on February 17, 1984. See Vileta v. State, 454 So.2d 792 (Fla. 2d DCA 1984). Should the court desire to deviate from the recommended guidelines range, it shall state in writing its reasons for doing so. Rule 3.701(d)(ll). If the court does impose a sentence outside the range recommended by the guidelines, then either party may appeal after resentencing. Vileta.

OTT, J., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.


author: DELL, Judge.

text:
    In the Interest of A.R., a child.
    No. 84-616.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

A.R., a child, appeals from his conviction of burglary of a structure and of loitering and prowling.

Between 10:00 and 11:00 P.M., two police officers observed appellant and another individual walking in a high crime area in downtown Fort Lauderdale. The police officers testified that appellant and his companion walked through the area in a suspicious manner. On at least two occasions the officers observed appellant standing on the sidewalk watching traffic while his companion entered a car lot, peeked into car windows and tried the car doors. Appellant’s companion testified that he needed a tire iron and that when he saw one beyond a fence which he could not reach, he jumped over the fence and took it. He testified that appellant had nothing to do with him taking the tire iron. Appellant was charged and found guilty of burglary of a structure and of loitering and prowling.

Appellant argues that, assuming he knew that his companion was looking for a tire iron, his mere presence on the sidewalk without doing any act to assist does not present sufficient evidence to convict him of aiding and abetting a burglary. In support of this argument he cites Davis v. State, 436 So.2d 196 (Fla. 4th DCA 1983) wherein this court quoted with approval from A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982):

It is well established that to be convicted as an aider and abettor, the state must show an intent to participate in the perpetration of the crime. J.H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1980). Where there is no direct evidence of intent, the circumstantial evidence relied upon to show such an intent must be such as to preclude every reasonable inference that the defendant did not intend to participate in the criminal activity. K.W.U. v. State, 367 So.2d 647 (Fla. 3d DCA), cert. denied, 378 So.2d 349 (Fla.1979).

Id. at 1158-59. As proof of intent, appellee relies upon the police officers’ testimony that they observed appellant and his companion going from one car lot to another and that appellant watched all pedestrian and vehicle traffic that came near while his companion checked vehicles in the car lots. Appellee also cites testimony that appellant acted as a “lookout”. Appellee has misstated the record. The trial court sustained appellant’s objection and granted his motion to strike that portion of the police officer’s testimony which described his actions as a “lookout.”

Construed in a light most favorable to the State, this evidence establishes no more than appellant’s presence at the scene and knowledge of his companion’s intent to commit a crime.

Presence at the scene, without more, is not sufficient to establish either intent to participate or act of participation. J.L.B. v. State, [396 So.2d 761 (Fla. 3d DCA 1981) supra; J.H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979). Mere knowledge that an offense is being committed is not equivalent to participation with criminal intent. See, e.g., United States v. Martin, 533 F.2d 268 (5th Cir.1976). Knowledge that a crime is going to be committed and presence at the scene, without more, is generally insufficient to establish aiding and abetting. See, e.g., Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919, 925 (1949); Baker v. United States, 395 F.2d 368 (8th Cir.1968); Ramirez v. United States, 363 F.2d 33 (9th Cir.1966).

G.C. v. State, 407 So.2d 639, 640 (Fla. 3d DCA 1981).

We find no merit in appellant’s argument that the State presented insufficient evidence to convict him of loitering and prowling. Therefore we affirm the conviction of loitering and prowling, and reverse the conviction of burglary of a structure.

AFFIRMED IN PART and REVERSED IN PART.

LETTS and WALDEN, JJ., concur.


text:
    WILCOX GALLERY OF HOMES, INC. and Mary C. Carter, Appellants, v. Amalia D. CUERVO, Appellee.
    No. 84-798.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.

      Gary J. Nagle of Nagle & Miller, West Palm Beach, for appellants.
    Richard B. Kay, Jupiter, for appellee.
   PER CURIAM.

Reversed. There is no evidence in the record to support the appellee’s claim that appellants caused the prospective purchasers of appellee’s property to withdraw their offer to purchase. Hence, in our view ap-pellee’s proof was insufficient to sustain a cause of action for intentional interference with a contractual relationship. We also find that this court’s decision in Bush v. Palermo Realty, Inc., 443 So.2d 104 (Fla. 4th DCA 1983) has no application to the facts of this case.

ANSTEAD, C.J., and GLICKSTEIN and BARKETT, JJ., concur.


author: HERSEY, Judge.

text:
    DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellant, v. E.L. ASHBURY, d/b/a Eddie’s Drive Inn, Appellee.
    No. 84-837.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Harold F.X. Purnell, Gen. Counsel, Dept, of Business Regulation, Tallahassee, for appellant.
    Robert V. Schwerer, McAliley, Hayskar, McAliley & Jefferson, Fort Pierce, for ap-pellee.
   HERSEY, Judge.

Appealed is a non-final order enjoining appellant, the Division of Alcoholic Beverages and Tobacco, from enforcing any adverse administrative decision against appellee, Ashbury, pending review by the circuit court of the constitutional issues raised by a first amended complaint. We reverse on two grounds. First, the allegations and prayer of the complaint are directed to the constitutionality “as applied” of the statute in question rather than to its facial constitutionality. Such an inquiry is properly directed to the district court of appeal following final administrative action, not to the circuit court midstream of the administrative process. Key Haven v. Board of Trustees of the Internal Improvement Fund, 427 So.2d 153 (Fla.1982); Solimena v. State Department of Business Regulation, 402 So.2d 1240 (Fla. 3d DCA 1981); Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). Second, the complaint is woefully inadequate to support injunc-tive relief. The necessary allegations are discussed in such cases as Department of Business Regulation v. Provende, Inc., 399 So.2d 1038 (Fla. 3d DCA 1981) and Contemporary Interiors v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980).

REVERSED.

ANSTEAD, C.J., and DOWNEY, J., concur.


author: WALDEN, Judge.

text:
    Judd GILBERT, Appellant, v. OIL CONSERVATIONISTS, INC., Barry Paul and Paul V. De Bianchi, Appellees.
    No. 84-1052.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Joyce A. Slater, Sunrise, for appellant.
    Harry G. Carratt of Morgan, Carratt & O’Connor, Fort Lauderdale, for appellee DeBianchi.
   WALDEN, Judge.

Judd Gilbert, a qualified stockholder, sued Oil Conservationists, Inc., Barry Paul, the corporate president and sole director, and Paul V. DeBianchi, the corporate attorney, an authorized agent. Gilbert sought to examine the corporate books and records pursuant to Section 607.157(4), Florida Statutes (1983), and was refused by the three defendants. Gilbert then sought to impose the penalties prescribed by Section 607.157(5), Florida Statutes (1983). DeBi-anchi filed a motion to dismiss for failure to state a cause of action as to him. The motion was granted. Gilbert appeals. We reverse.

Most obviously, the gaze of the trial court is limited to the four corners of the complaint, its allegations taken as true, when considering the merits of a motion to dismiss. Green v. Savin, 455 So.2d 494 (Fla. 3d DCA 1984).

Here the complaint alleged that DeBian-chi was the attorney for and authorized resident agent of the corporation. It further alleged that DeBianchi had custody of the various books and records in question.

We feel that the terms of the statute were adequately met by the complaint and that it was error to dismiss DeBianchi from the action. Padovano v. Wotitzky, 355 So.2d 871 (Fla. 2d DCA 1978). Moreover, if DeBianchi has an affirmative defense, he may yet assert it and it would be premature for the trial court to adjudicate it on a motion to dismiss before it is pleaded.

Reversed.

HURLEY and DELL, JJ., concur.

      . Section 607.157(5) provides:
      (5) Any officer or agent who, or corporation which, shall refuse to allow any such shareholder or holder of voting trust certificates or his agent or attorney so to examine and make extracts from its books and records of account, minutes, and record of shareholders for any proper purpose shall be liable to such shareholder or holder of voting trust certificates in a penalty of 10 percent of the value of the shares owned by such shareholder, or in respect of which such voting trust certificates are issued, in addition to any oth- - er damages or remedy afforded him by law. It shall be a defense to any action under this section that the person suing therefor has within 2 years sold or offered for sale any list of shareholders or of holders of voting trust certificates for shares of such corporation or any other corporation, has aided or abetted any person in procuring any list of sharehold- ' ers or of holders of voting trust certificates for any such purpose, has improperly used any information secured through any prior examination of the books and records of account, minutes, or record of shareholders or of holders of voting trust certificates for shares of such corporation or any other corporation, or was not acting in good faith or for a proper purpose in making his demand.


author: BASKIN, Judge. JORGENSON, Judge,

text:
    FLORIDA LITERARY DISTRIBUTING CORPORATION, a Florida corporation, d/b/a Rich’s News-Stand, John Doe, salesperson of a retail bookstore located at 180 Northeast 79th Street, Miami, Florida individually jointly and severally, et al., Appellants, v. STATE of Florida, ex rel., Jose GARCIA-PEDROSA, as City Attorney of the City of Miami of the State of Florida, Appellees.
    Nos. 83-2877, 84-253.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.

      Joel Hirschhorn and Harry M. Solomon, Miami, for appellants.
    Lucia A. Dougherty and Leon M. Firtel, Miami Beach, and Gisela Cardonne, Miami, for appellees.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

Florida Literary Distributing Corporation (Florida Literary) appeals a final judgment finding four magazines obscene and granting a permanent injunction enjoining and restraining appellant from showing, offering for sale, or exhibiting the magazines to the public.

Florida Literary contends on appeal, as it did at the non-jury proceeding below, that appellee failed to meet its burden of proof, and that appellee’s failure to offer testimony defining contemporary community standards of obscenity in Dade County precluded the issuance of an injunction as a matter of law. We agree and reverse upon a holding that absent á presentation to the trial court of testimony defining contemporary community standards of obscenity, the evidence was insufficient to support the trial court’s ruling that the materials in question are obscene. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, reh’g denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973); Golden Dolphin No. 2, Inc. v. State, Division of Alcoholic Beverages & Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981); § 847.011(11), Fla.Stat.(1981).

We agree that:

While it may be said that the trier of fact will know obscenity when he sees it (to paraphrase Justice Stewart’s concurrence in Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), how exactly can an appellate court determine if he has properly identified the relevant community standards? See concurrence in part and dissent in part of Justice Stevens in Marks v. United States, 430 U.S. 188, 198, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).

United States v. 2,200 Paper Back Books, 565 F.2d 566, 570 n. 7 (9th Cir.1977). The presentation of expert testimony defining contemporary community standards is essential in cases where no right to a jury trial exists. See Golden Dolphin.

Reversed and remanded for further proceedings consistent with this opinion.

JORGENSON, Judge,

concurring.

I write separately only to suggest that trial courts should consider the use of a jury in proceedings of this nature.

While a defendant ordinarily is not entitled to a jury trial in an action in equity which seeks an injunction, For Adults Only, Inc. v. State ex rel. Gerstein, 257 So.2d 912 (Fla. 3d DCA 1972), cert. denied, 292 So.2d 592 (Fla.1974), disapproved on other grounds, Ladoga Canning Corp. v. McKenzie, 370 So.2d 1137, 1140 (Fla.1979), it is within the trial court’s discretion to permit a jury to decide the issues in a case involving equitable relief. Berg v. New York Life Insurance Co., 88 So.2d 915 (Fla.1956); Sanitary Linen Service Co. v. Executive Uniform Rental, Inc., 270 So.2d 432 (Fla. 3d DCA 1972); St. Sophia Greek Orthodox Community v. Vamvaks, 213 So.2d 313 (Fla. 3d DCA 1968). Cases in which contemporary community standards are applied to facts in controversy are particularly suitable for juries because “[a] jury represents a cross-section of the community and has a special aptitude for reflecting the view of the average person.” McKinney v. Alabama, 424 U.S. 669, 688, 96 S.Ct. 1189, 1199-1200, 47 L.Ed.2d 387, 401 (1976) (Brennan, J., concurring) (quoting Kingsley Books, Inc. v. Brown, 354 U.S. 436, 448, 77 S.Ct. 1325, 1331, 1 L.Ed.2d 1469, 1478 (1957) (Brennan, J., dissenting)). The use of a jury in this case would have obviated the necessity of the introduction of testimony defining contemporary community standards. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, reh’g denied, 419 U.S. 885, 95 S.Ct. 157, 42 L.Ed.2d 129 (1974); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446, reh’g denied, 414 U.S. 881, 94 S.Ct. 27, 38 L.Ed.2d 128 (1973), cert. denied, 418 U.S. 939, 94 S.Ct. 3227, 41 L.Ed.2d 1173, motion for leave to file petition for reh’g denied, 419 U.S. 887, 95 S.Ct. 163, 42 L.Ed.2d 133 (1974); Golden Dolphin No. 2, Inc. v. State, Division of Alcoholic Beverages & Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981).


text:
    GREAT AMERICAN HERITAGE CORP., a Florida corp., and Nora Manning, Appellants, v. E.N. BELCHER, III, individually and as co-trustee of the Margaret Belcher Gerhart Trust, Appellee.
    No. 84-138.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.
    Roger A. Bridges, Coral Gables, for appellants.
    Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack, and Alan G. Greer and Bertha Claire Lee and Scott J. Feder, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Estes v. Moylan, 94 So.2d 362 (Fla.1957); Taco Bell of California v. Zappone, 324 So.2d 121 (Fla. 2d DCA 1975).


text:
    Joaquin CASTILLERO, Appellant, v. The STATE of Florida, Appellee.
    No. 84-588.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.
    Mark R. Baer, Miami, for appellant.
    Jim Smith, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See State v. Benitez, 395 So.2d 514 (Fla.1981); White v. State, 324 So.2d 115 (Fla.3d DCA 1975); cert. dismissed, 339 So.2d 1173 (Fla.1976).


text:
    Robert P. FEDER, Appellant, v. NODNOL, INC., a Florida corporation, Appellee.
    No. 84-1013.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.
    Milledge & Hermelee and Florence Beth Snyder, Miami, for appellant.
    Smith & Mandler and Jeffrey R. Mazor, Plantation, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Westinghouse Elevator Co. v. DFS Construction Co., 438 So.2d 125 (Fla. 2d DCA 1983).


text:
    Dionisio GOMEZ and Ana Maria Suarez, his wife, Appellants, v. Maria Cabrera ESPINOSA, Appellee.
    No. 84-1027.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.
    Rehearing Denied Feb. 6, 1985.
    David A. Donet, Coral Gables, for appellants.
    Mascaro & Peppier and Charles Peppier, Coral Gables, for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Brown v. Skinner, 73 So.2d 221 (Fla.1954); Schwartz v. Schwartz, 431 So.2d 716 (Fla. 3d DCA 1983); Poe v. Estate of Levy, 411 So.2d 253 (Fla. 4th DCA 1982); Kasper Instruments, Inc. v. Maurice, 394 So.2d 1125 (Fla. 4th DCA 1981); Porter v. State, 386 So.2d 1209 (Fla. 3d DCA 1980); Lamb v. Dade County, 159 So.2d 477 (Fla. 3d DCA), cert. denied, 166 So.2d 754 (Fla.1964).


text:
    S.C.H. REALTY, INC., Appellant, v. SOUTH BAYSHORE DEVELOPMENT CORP., C. Robert Cusick, L. Ronald Capozzoli and Richard Vazza, Edward J. DeBartolo, Appellee.
    No. 84-1153.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.

      Lapidus & Stettin and Richard Lapidus, Miami, for appellant. .
    Smith & Mandler and Mitchell Mandler and Patricia M. Silver, Miami Beach, Wright & Carauana, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

We affirm the final summary judgment against appellant, S.C.H. Realty, Inc. [S.C.H.] upon a finding that seller-principal, South Bayshore Development Corporation [South Bayshore], is not liable to subagent-broker S.C.H. in light of the undisputed evidence in the record indicating that South Bayshore neither directly contracted with S.C.H. to retain its services nor authorized or ratified the employment of S.C.H. Whidden v. Morse, 213 So.2d 625 (Fla. 2d DCA 1968).

Affirmed.


author: BASKIN, Judge.

text:
    William Lain GUTHRIE and Walter Lain Guthrie, Appellants, v. FLORIDA POWER AND LIGHT COMPANY, Appellee.
    No. 84-1685.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.

      Thomson, Zeder, Bohrer, Werth, Adorno & Razook and Hendry N. Adorno, Miami, for appellants.
    Steel, Hector & Davis and Darrey A. Davis, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

William and Walter Guthrie appeal two partial summary judgments in favor of Florida Power & Light Company [FPL] on Walter Guthrie’s claim alleging malicious prosecution and William Guthrie’s claim alleging abuse of process. We affirm.

The essential facts giving rise to Walter Guthrie’s malicious prosecution claim are succinctly stated by the trial court:

The subject matter of this litigation stems from incidents occurring April 16, 1982, between William Lain Guthrie (“William”) and Rogert L. Fritze and W.T. Bethea, employees of FPL. Walter was not an active participant in the subject incidents. However, the State Attorney on June 15, 1982, filed criminal charges against Walter, instead of William. The State Attorney dismissed the criminal charges against Walter, and refiled the same charges against William. Walter then brought this action for malicious prosecution against FPL.

The dispositive question presented for review in this cause is whether FPL’s employees induced the institution of the criminal proceeding filed against Walter Guthrie, or, as FPL contends, whether the criminal proceeding against Walter Guthrie was initiated not by any actions of FPL, but purely by the mistake of an assistant state attorney.

According to the governing rule of law, a plaintiff alleging malicious prosecution is required to establish six elements:

(1) a criminal proceeding was commenced or continued against the plaintiff; (2) the defendant commenced or caused the commencement of such proceedings; (3) the criminal proceeding had a bona fide termination in the plaintiff’s favor; (4) there was no probable cause for commencing criminal proceedings; (5) the defendant acted with malice; and (6) the plaintiff suffered damage. (Emphasis supplied)

Weissman v. K-Mart Corp., 396 So.2d 1164, 1167 (Fla. 3d DCA 1981); Shidlowsky v. National Car Rental Systems, Inc., 344 So.2d 903 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 516 (Fla.1978).

It is well settled that a malicious prosecution claim is established only where there is a concurrence of these six elements and that the absence of any one of these elements is fatal to the action. Clements v. Eastern Airlines, Inc., 183 So.2d 264 (Fla. 3d DCA), cert. denied, 192 So.2d 486 (Fla. 1966).

The trial court determined that:

The material fact fully and fairly made known to the State Attorney’s office by FPL’s employees was that William, and not Walter, was the person involved in the incident occurring on April 16, 1982. Therefore, the commencement of the criminal proceedings against Walter was not caused by the employees of FPL, but solely by mistake of the State Attorney’s office. There is no genuine issue on this material fact.

We agree with the trial court that the record presents no genuine issue of material fact on-this essential element of malicious prosecution and, accordingly, affirm the entry of summary judgment in favor of FPL on Walter Guthrie’s malicious prosecution claim. See Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982); Johnson v. Gulf Life Insurance Co., 429 So.2d 744 (Fla. 3d DCA 1983).

Finding no merit in the contentions raised by William Guthrie concerning his abuse of process claim, we affirm the partial summary judgment in favor of FPL on that claim.

Affirmed.


text:
    STATE of Louisiana, ex rel. Gregory DANIELS v. N. Burl CAIN, Warden, Dixon Correctional Institute.
    No. 84-KH-0598.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In Re: Gregory Daniels, applying for Writ of Certiorari, Criminal District Court, Parish of Orleans, No. 275-425.

Granted. Sentence set aside; case remanded to the district court for compliance with La.Code Crim.P.Art. 894.1.

DIXON, C.J., concurs. The sentence in this case may not be excessive, but the record before us does not support it.


text:
    FIRST NATIONAL BANK OF COMMERCE, NEW ORLEANS v. Basil C. ANTHONY.
    No. 84-CC-1909.
    Supreme Court of Louisiana.
    Nov. 21, 1984.
   In re Anthony, Basil C., applying for supervisory and/or remedial writ, Parish of St. Tammany, 22nd Judicial District Court, Div. “A”, No. 78788; to the Court of Appeal, First Circuit, No. CW 84-1193.

Denied.

WATSON, J., would grant the writ.


text:
    David Keith BORDELON v. VULCAN MATERIALS COMPANY.
    No. 84-C-1694.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Bordelon, David Keith, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0882; Parish of Ascension, 23rd Judicial District Court, Div. “C”, No. 28539.

Prior report: 454 So.2d 168.

Granted.


text:
    PLAQUEMINES PARISH COMMISSION COUNCIL v. DELTA DEVELOPMENT COMPANY, INC., et al.
    No. 84-CC-1901.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Plaquemines Par. Comm. Coun., applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. C-2487; Parish of Plaquemines, 25th Judicial District Court, Div. “A”, No. 25708.

Prior report: 458 So.2d 967.

Granted.

WATSON, J., recused.


text:
    PLAQUEMINES PARISH COMMISSION COUNCIL v. DELTA DEVELOPMENT COMPANY, INC., et al.
    No. 84-CC-1906.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Times-Picayune Publishing Co., O’Byrne, James, applying for writ of certio-rari to the Court of Appeal, Fourth Circuit, No. 0-2487; Parish of Plaquemines, 25th Judicial District Court, Div. “A”, No. 25-708.

Prior report: 458 So.2d 967.

Granted.

WATSON, J., recused.


text:
    STATE of Louisiana ex rel. Lloyd JAMES v. Hon. Frank J. SHEA, Judge, Sec. “G”, Criminal District Court, Parish of Orleans.
    No. 84-KH-1320.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Lloyd James, applying for writ of mandamus to the Criminal District Court, Parish of Orleans, No. 200-721.

Granted. Trial court is ordered to rule on petition by December 6, 1984.


text:
    STATE ex rel. Douglas E. COODY v. SECOND JUDICIAL DISTRICT COURT PARISH OF BIENVILLE.
    No. 84-KH-1597.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Coody, Douglas E., applying for writ of mandamus or writ of prohibition, Parish of Bienville, 2nd Judicial District Court, Div. “A”, No. 17992A.

Granted. Trial judge ordered to act on relator’s application by December 21, 1984.


text:
    STATE of Louisiana ex rel. Ernest R. CULPEPPER v. SECOND JUDICIAL DISTRICT COURT PARISH OF BIENVILLE.
    No. 84-KH-1642.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Culpepper, Ernest R., applying for writ of mandamus, Parish of Bienville, 2nd Judicial District Court, Div. “A”, No. 17992A.

Granted. The trial court is ordered to act on relator’s application by December 21, 1984.


text:
    PIONEER BANK AND TRUST COMPANY v. George D. OECHSNER, III and Innkeepers Choice of New Orleans, Inc.
    No. 84-CC-1882.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
    Rehearing Granted Jan. 14, 1985.
   In re Oechsner, George D. Ill, Innkeepers Choice of N.O. Inc., applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-2156; Parish of Orleans, Civil District Court, Div. “H”, No. 84-4442.

Granted. Ruling of the Court of Appeal is reversed. Exception to the use of the writ of sequestration is sustained. Case remanded to the district court for further proceedings.


text:
    Richard S. INGE v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY.
    No. 84-C-1924.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Inge, Richard S., applying for writ of certiorari to the Court of Appeal, First Circuit, No. 83-CA-1026; Parish of Tangi-pahoa, 21st Judicial District Court, Div. “B”, No. 60925.

Prior report: 457 So.2d 776.

Granted. The ruling of the Court of Appeal is reversed. The case is remanded to the district court to permit the plaintiff to amend the petition as requested within 20 days.


text:
    Rena M. BERGERON v. INSURANCE COMPANY OF NORTH AMERICA et al.
    No. 84-CC-1926.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Insurance Co. of N. America et al., K & B Inc., applying for writ of certiorari, writ of review, Parish of Calcasieu, 14th Judicial District Court, Div. “H”, No. 84-93; to the Court of Appeal, Third Circuit, No. 84-919.

Granted. Ruling of trial judge set aside in so far as he denied request for jury trial. Trial judge is ordered to grant the demand for a jury trial.

DIXON, C.J., dissents.


text:
    Mary Matranga LICATA, Mary Lee Power, Wife of/and Nicholas B. Licata, Jr. v. Helen J. Whittenburg, Wife of/and John A. BENINATE.
    No. 84-CC-1934.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Whittenburg, Helen J. et vir, Beni-nate, John A., applying for writ of certiora-ri, Parish of Jefferson, 24th Judicial District Court, Div. “H”, No. 263-805; to the Court of Appeal, Fifth Circuit, No. 84-C-556.

Granted. Remanded to the district court with instructions to trial judge to decide the rule to cancel judgment.


text:
    Joseph PERKINS v. F.I.E. CORPORATION. Judie RICHMAN, Individually and as Personal Representative of the Estate of Kathy Newman, Deceased, v. CHARTER ARMS CORPORATION.
    No. 84-CQ-1888.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re certification from the United States Court of Appeals for the Fifth Circuit, Nos. 83-3451 and 83-3591.

Prior report: 743 F.2d 262.

Certification declined.

DIXON, C.J., and CALOGERO, J., would grant certification.


text:
    STATE of Louisiana ex rel., Jewel SPOTVILLE v. John T. KING, Secretary of the Department of Corrections.
    No. 84-KH-0104.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Jewel Spotville, applying for writ of mandamus, from the Criminal District Court, Parish of Orleans, No. 233-945.

Denied.


text:
    STATE ex rel. Albert WILLIS, Melvin Lewis, Matthew Shaffer v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-1253.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Albert Willis; Melvin Lewis; Matthew Shaffer, applying for writ of mandamus, to the 19th Judicial District Court, Parish of East Baton Rouge, No. 60995.

Denied.


text:
    STATE of Louisiana ex rel. Joseph Leon CHASE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-1256.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Joseph Leon Chase, applying for writs of certiorari, habeas corpus and mandamus to the Twentieth Judicial District Court, Parish of West Feliciana, No. W-74-1-52, Section “A”.

Denied.


text:
    STATE of Louisiana v. Lloyd SIMPSON.
    No. 84-KP-1301.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Lloyd Simpson, applying for writ of certiorari, to the Thirty-Sixth Judicial District Court, Parish of Beauregard, No. 17464.

Denied.

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


text:
    STATE ex rel. Tommy L. WHEELER v. COURT REPORTER, CRIMINAL DISTRICT COURT, SECTION B.
    No. 84-KH-1532.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Wheeler, Tommy, applying for writ of mandamus, Parish of Orleans, Criminal District Court, Div. “B”, No. 291-678.

Denied.

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


text:
    STATE ex rel. Christopher J. WATKINS v. CRIMINAL DISTRICT COURT.
    No. 84-KH-1614.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Watkins, Christopher J., applying for remedial writs, Parish of Orleans, Criminal District Court, Div. “E”, No. 285-590.

Denied.


text:
    STATE ex rel. Eddie Joel CATES v. Hon. Judge HANSEN, and Criminal District Court, Parish of Orleans.
    No. 84-KH-1624.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Cates, Eddie Joel, applying for writ of mandamus, Parish of Orleans, Criminal District Court, Div. “B”, No. 288-065.

Denied. Moot.


text:
    STATE ex rel. Jerome Milton POWELL, Jr., v. Hon. Edwin LOMBARD, Clerk of the Criminal District Court.
    No. 84-KH-1626.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Powell, Jerome Milton, Jr., applying for writ of mandamus, Parish of Orleans, Criminal District Court, Div. “H”, No. 264-368.

Denied. Moot.


text:
    STATE ex rel. Alton J. BATISTE v. Lucien C. BERTRAND, Jr., Judge, Fifteenth Judicial District Court, Parish of Lafayette, State of Louisiana.
    No. 84-KH-1652.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Batiste, Alton J., applying for writ of review, Parish of Lafayette, 15th Judicial District Court, Div. “D”, Nos. 35296, HC-84-5.

Denied.


text:
    STATE ex rel. David READO v. Acton HILLEBRANDT, Clerk of Court, Fourteenth Judicial District Court.
    No. 84-KH-1666.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Reado, David, applying for remedial writs, Parish of Calcasieu, 14th Judicial District Court, Div. “G”, No. 1850-81.

Denied.


text:
    STATE ex rel. Leonard Jerome BASTIDA v. The TWENTY-FOURTH JUDICIAL DISTRICT COURT IN AND FOR JEFFERSON PARISH GRETNA, Louisiana.
    No. 84-KH-1695.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Bastida, Leonard Jerome, applying for writ of certiorari, writ of review, alternative writ, Parish of Jefferson, 24th Judicial District Court, Div. “C”, No. 73-1210.

Denied.


text:
    STATE ex rel. Willie A. THOMAS v. Ross MAGGIO, Jr., Warden, L.S.P.
    No. 84-KH-1702.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Thomas, Willie A., applying for remedial writs, Parish of DeSoto, 11th Judicial District Court, Div. “B”, No. 39582.

Denied. Moot.


text:
    STATE of Louisiana v. James A. STOKES.
    No. 84-KH-1792.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Stokes, James A., applying for writ of habeas corpus, Parish of Terrebonne, 32nd Judicial District Court, Div. “B”, No. 79857.

Denied.


text:
    STATE ex rel. Frank RABY v. Hon. Donovan PARKER, Judge, Section II, 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana.
    No. 84-KH-1801.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Raby, Frank', applying for writ of mandamus, Parish of East Baton Rouge, 19th Judicial District Court, Div. “C", No. 4-79-432.

Denied. Moot.


text:
    STATE of Louisiana v. Louis WHITE.
    No. 84-KH-1824.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re White, Louis, applying for writ of review, Parish of Caddo, 1st Judicial District Court, Div. “D”, No. 121481; to the Court of Appeal, Second Circuit, No. 15375-KW.

Denied.


text:
    STATE ex rel. Stanley ZENO v. CLERK OF COURT, CRIMINAL DISTRICT, 15TH JUDICIAL DISTRICT, PARISH OF LAFAYETTE, State of Louisiana.
    No. 84-KH-1826.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Zeno, Stanley, applying for writ of certiorari, writ of review, and mandamus, Parish of Lafayette, 15th Judicial District Court, Div. “A”, No. 37358.

Denied.


text:
    STATE ex rel. Willie C. WASHINGTON v. STATE of Louisiana.
    No. 84-KH-1849.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Washington, Willie C, applying for remedial, Parish of Orleans, Criminal District Court, Div. “F”, Nos. 297-459, 296-999, 297-941.

Denied. Relator must apply first to the Court of Appeal.


text:
    STATE of Louisiana v. Vincent ORLANDO.
    No. 84-K-1831.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re State of Louisiana, applying for writ of certiorari, writ of review to the Court of Appeal, Second Circuit, No. 16113-KA; Parish of Caldwell, 37th Judicial District Court, Div. “ ”, No. 26190-A.

Prior report: 456 So.2d 1021.

Denied. Result correct.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Lamar JENKINS.
    No. 84-K-1837.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Jenkins, Lamar, applying for writ of review to the Court of Appeal, Second Circuit, No. 16197-KA; Parish of Ouachita, 4th Judicial District Court, Div. “D”, No. 40610.

Prior report: 456 So.2d 174.

Denied.


text:
    Jerry McKENZIE, Individually and For the Use and Benefit of the Minor, Gregory McKenzie v. NEW ORLEANS PUBLIC SERVICE, INC. and Herman R. Dear.
    No. 84-C-1869.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re McKenzie, Jerry etc. et ah, applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. CA-1688; Parish of Orleans, Civil District Court, Div. “K”, No. 76-15419.

Prior report: 455 So.2d 678.

Denied.


text:
    Harry THOMPSON, Jr., et ux. v. Dr. Dabney M. EWIN, et al.
    No. 84-C-1870.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Thompson, Harry Jr. et ux, Goff, Dorothy Jean, applying for writ of certiora-ri, writ of review to the Court of Appeal, Third Circuit, No. 83-945; Parish of Rap-ides, 9th Judicial District Court, Div. “G”, No. 124372.

Prior report: 457 So.2d 303.

Denied.

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


text:
    James BEASLEY v. Louis S. PUGLISE and State Farm Insurance Company. GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA v. Louis S. PUGLISE and State Farm Mutual Automobile Insurance Company.
    No. 84-C-1871.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Puglise, Louis S. et al., applying for writ of certiorari to the Court of Appeal, Fourth Circuit, Nos. CA-1466, CA-1756; Parish of St. Bernard, 34th Judicial District Court, Div. “C”, Nos. 42430, 42425.

Prior report: 454 So.2d 1125.

Denied.


text:
    Robert SANDS, M.D. v, STATE of Louisiana Through LOUISIANA STATE MEDICAL CENTER SCHOOL OF DENTISTRY.
    No. 84-C-1872.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Sands, Robert M.D., applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-1538; Parish of Orleans, Civil District Court, Div. “B”, No. 80-16951.

Prior report: 458 So.2d 960.

Denied.


text:
    STATE ex rel. Lloyd STEWART and Robert Jones v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 84-KH-1878.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Stewart, Lloyd et al., Jones, Robert, applying for writ of certiorari, prohibition and mandamus, Parish of Jefferson, 24th Judicial District Court, Div. “G”, No. 76-1224.

Denied.


text:
    Oliver P. SCHULINGKAMP v. E. Henry HEATON and the City of New Orleans.
    No. 84-C-1879.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Schulingkamp, Oliver P., applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. CA-1166; Parish of Orleans, Civil District Court, Div. “G”, No. 81-1834.

Prior report: 455 So.2d 1181.

Denied.

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


text:
    Janice G. SMITH, Individually and as Natural Tutrix for Johnathan Clark v. ORLEANS ELECTRIC, INC., Philip G. Kreeger, United States Fidelity & Guaranty Company and James Ferguson.
    No. 84-C-1880.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Smith, Janice G. et al., Clark, Johnathan, applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-1844; Parish of Orleans, Civil District Court, Div. “H”, No. 83-8064.

Prior Report: 457 So.2d 216.

Denied.


text:
    STATE ex rel. Michael COLEMAN v. NINETEENTH JUDICIAL DISTRICT COURT CLERK OF COURT.
    No. 84-KH-1885.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Coleman, Michael, applying for writ of review, writ of mandamus and review to the Court of Appeal, First Circuit, No. KW-84-1284; Parish of East Baton Rouge, 19th Judicial District Court, Div. “C”, No. 1-78-699.

Denied.


text:
    Cicero Garner JURLS v. LLAMA DRILLING COMPANY, INC.
    No. 84-C-1887.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Juris, Cicero Garner, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 16432-CA; Parish of Caddo, 1st Judicial District Court, Div. “H”, No. 284705.

Prior report: 457 So.2d 135.

Denied.


text:
    Carl Edward SULLIVAN v. David Wayne ST. CYR and Metropolitan Property and Liability Insurance Company.
    No. 84-C-1893.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Sullivan, Carl Edward, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-1077; Parish of Livingston, 21st Judicial District Court, Div. “E”, No. 38968.

Prior report: 457 So.2d 800.

Denied. The result is correct.


text:
    STATE ex rel. Edgar J. THEARD, III v. STATE of Louisiana.
    No. 84-KH-1898.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Theard, Edgar J. Ill, applying for remedial writ, Parish of Orleans, Criminal District Court, Div. “H”, No. 297580.

Denied. The O.I.D.P. has agreed to forward to relator the requested transcripts and a copy of the defense brief.


text:
    Mrs. Bernice M. DOHM v. Michael H. O’KEEFE, Ben Daly Bridge-man, Edmond G. Miranne, Apartment Housing Corporation, Darryl D. Berger, David R. Burrus, Joseph E. Berrigan, Jr., and the Bridgeman-O’Keefe-Miranne, Metairie Towers Partnership.
    No. 84-C-1902.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Apartment Housing Corp., Berger, Darryl D., Burrus, David R., Old Metairie Ltd., applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-1628; Parish of Orleans, Civil District Court, Div. “C”, No. 82-9510.

Prior report: 458 So.2d 964.

Denied.


text:
    Artis M. SOLOMON v. Willie SKINNER and New Orleans Public Service Inc.
    No. 84-C-1908.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Skinner, Willie et al., New Orleans Public Serv. Inc., applying for writ of cer-tiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-1421; Parish of Orleans, Civil District Court, Div. “C”, No. 82-5319.

Prior report: 458 So.2d 962.

Denied.


text:
    STATE of Louisiana v. George W. PAYNE.
    No. 84-KK-1921.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Payne, George W., applying for supervisory writs, Parish of Rapides, 9th Judicial District Court, Div. “A”, No. 208-398; to the Court of Appeal, Third Circuit, No. K 84-950.

Denied.


text:
    Georgia LEONARD, TUTRIX OF the Minor Latoya M. BLAND, and Administrator of the Estate of Linda Bland v. CONTINENTAL ASSURANCE COMPANY and the Board of Trustees, State Employees Group Benefits Program.
    No. 84-C-1923.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Leonard, Georgia etc. et al., Bland, Latoya, applying for writ of certiorari, writ of review, writ of mandamus to the Court of Appeal, First Circuit, No. 83-CA-0982; Parish of East Baton Rouge, 19th Judicial District Court, Div. “H”, No. 261-704.

Prior report: 457 So.2d 751.

Denied.


text:
    James Allen ROSHTO v. WAUSAU INSURANCE COMPANIES and James W. Salley, Inc. d/b/a Salley’s Food Stores.
    No. 84-C-1925.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Roshto, James Allen, applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 83-887; Parish of Rapides, 9th Judicial District Court, Div. “D”, No. 125451.

Prior report: 457 So.2d 261.

Denied.

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


text:
    Jasper L. BARBERA v. Linda Roberthon BARBERA.
    No. 84-C-1929.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Barbera, Jasper L., applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-1000; Parish of Lafourche, 17th Judicial District Court, Div. “C”, No. 45827.

Prior report: 457 So.2d 1206.

Denied.


text:
    John FILLWOCK v. BROWN & ROOT, INC. and Its Workmens Compensation Insurance Carrier, Highlands Insurance Company.
    No. 84-C-1935.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Fillwock, John, applying for writ of certiorari to the Court of Appeal, Fifth Circuit, No. 84-CA-141; Parish of St. John the Baptist, 29th Judicial District Court, Div. “A”, No. 11929.

Prior report: 458 So.2d 210.

Denied.


text:
    William Everette BISHOP, Jr. v. Ragina Sue Kilpatrick BISHOP.
    No. 84-C-1936.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Bishop, William Everette, Jr., applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 83-891; Parish of Lafayette, 15th Judicial District Court, Div. “H”, No. 82-2201-H.

Prior report: 457 So.2d 264.

Denied.


text:
    Wallace J. JENSEN, Sr., and as Administrator of the Estate of His Minor Son, Wallace J. Jenson, Jr. v. CENTRAL LOUISIANA ELECTRIC COMPANY, INC., et al.
    No. 84-C-1937.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Jensen, Wallace J., Sr. etc. et al., applying for writ of review to the Court of Appeal, Third Circuit, No. 83-912; Parish of Acadia, 15th Judicial District Court, Div. “H”, No. 43450.

Prior report: 457 So.2d 287.

Denied.


text:
    Vickie Bourgeois BERCEGEAY v. Travis Paul BERCEGEAY.
    No. 84-CC-1947.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Bercegeay, Travis Paul, applying for writ of certiorari, mandamus and supervisory writ, Parish of Ascension, 23rd Judicial District Court, Div. “A”, No. 25582; to the Court of Appeal, First Circuit, No. CW 84-1349.

Denied.

DIXON, C.J., would grant summary relief.


text:
    STATE ex rel. O’Neal JOHNSON v. STATE of Louisiana, Criminal District Court, Section “F”, Dennis Waldron, Judge.
    No. 84-KH-1965.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   In re Johnson, O’Neil, applying for reduction in bail and emergency writ, Parish of Orleans, Criminal District Court, Div. “F”, No. 299-035.

Denied.


text:
    STATE of Louisiana v. David ROBINS.
    No. 84-KK-2012.
    Supreme Court of Louisiana.
    Nov. 27, 1984.
   In re Robins, David, applying for stay, remedial and supervisory writ, Parish of East Baton Rouge, 19th Judicial District Court, Div. “G”, No. 7-84-422; to the Court of Appeal, First Circuit, No. KW-84-1416.

Denied. Since there is a remedy by appeal in the event of conviction, we will not interrupt the trial to rule on the admissibility of evidence.


text:
    STATE of Louisiana v. Naomi D. WATSON.
    No. 84-KK-2017.
    Supreme Court of Louisiana.
    Nov. 29, 1984.
   In re Watson, Naomi D., applying for writ of certiorari and/or review, writ of mandamus and stay order, Parish of Oua-chita, 4th Judicial District Court, Div. “D”, No. 42888; to the Court of Appeal, Second Circuit, No. 16886-KW.

Granted and all proceedings in this contempt proceeding stayed until further orders of the Court.


text:
    STATE ex rel. Loyers FORD v. W. Charles BROWN, Judge, Eleventh Judicial District Court, Parish of Desoto, State of Louisiana.
    No. 84-KH-1917.
    Supreme Court of Louisiana.
    Nov. 29, 1984.
   In re Loyers Ford, applying for writ of mandamus, Parish of DeSoto, 11th Judicial District Court, Division “A”, No._

Granted. The district court is ordered to act, if it has not already done so, on the post conviction petition submitted for filing on September 7, 1984, if, as alleged, such petition has been filed.


text:
    STATE of Louisiana, ex rel. Walter WILSON v. Darrell WHITE, Judge Ad Hoc, Section “II” of the Nineteenth Judicial District Court, Parish of East Baton Rouge.
    No. 84-KH-1942.
    Supreme Court of Louisiana.
    Nov. 29, 1984.
   In re Walter Wilson, applying for mandamus, Parish of East Baton Rouge, 19th Judicial District Court, Div. “H”, No.

Granted. The district court is ordered to act, if it has not already done so, on the post conviction petition submitted in July, 1984, if, as alleged, such a petition has been filed.


text:
    STATE ex rel. Darrell ZENO v. STATE of Louisiana.
    No. 84-KH-2004.
    Supreme Court of Louisiana.
    Nov. 29, 1984.
   In re Darrell Zeno, applying for writ of mandamus, Parish of Jefferson Davis, 31st Judicial District Court, Division _, No.

Granted. The district court is ordered to act, if it has not already done so, on the post conviction petition submitted in April, 1984, if, as alleged, such a petition has been filed.


text:
    Dudley B. PILLOW, Jr., et al. v. BOARD OF COMMISSIONERS FOR the FIFTH LOUISIANA LEVEE DISTRICT, et al. Robert Burney LONG, et al. v. BOARD OF COMMISSIONERS FOR the FIFTH LOUISIANA LEVEE DISTRICT, et al.
    No. 84-OC-2015.
    Supreme Court of Louisiana.
    Nov. 29, 1984.
   In re Pillow, Dudley B. Jr. et al., Long, Robert Burney et al., applying for supervisory or remedial writ, Parish of Madison, 6th Judicial District Court, Div. “B”, Nos. 84-287, 84-294; to the Court of Appeal, Second Circuit, Nos. 16874-CA, 16875-CA.

Expedited hearing is ordered in the Court of Appeal.


text:
    STATE of Louisiana v. Sylvester BROWN.
    No. 84-KK-1998.
    Supreme Court of Louisiana.
    Nov. 29, 1984.
   In re Brown, Sylvester, applying for writ of certiorari and/or review, stay, Parish of Caddo, 1st Judicial District Court, Div. “F”, No. 127850; to the Court of Appeal, Second Circuit, No. 16889-KW.

Denied.


text:
    Billy ABEL, et al v. FIREMAN’S FUND INSURANCE COMPANIES, et al.
    No. 84-CC-1988.
    Supreme Court of Louisiana.
    Nov. 29, 1984.
   In re Fireman’s Fund Ins. Co. et al., applying for stay, supervisory writ, Parish of Tangipahoa, 21st Judicial District Court, Div. “E”, No. 71593; to the Court of Appeal, First Circuit, No. CW 84-1374.

Denied.


text:
    SOUTH LOUISIANA PRODUCTION CREDIT ASSOCIATION v. Jerry P. BOURGEOIS and Danielle Taylor Bourgeois.
    No. 84-CC-2016.
    Supreme Court of Louisiana.
    Nov. 29, 1984.
   In re Bourgeois, Jerry P. et ux, Bourgeois, Danielle Taylor, applying for writ of certiorari and/or review, stay, prohibition and mandamus, Parish of Jefferson, 24th Judicial District Court, Div. “N”, No. 295-236; to the Court of Appeal, Fifth Circuit, No. 84-CA-600.

Denied.


text:
    STATE ex rel. Edward JACKSON v. CRIMINAL DISTRICT COURT, SEC. “G”, “I” JUDGES, PARISH OF ORLEANS.
    No. 84-KH-1969.
    Supreme Court of Louisiana.
    Nov. 29, 1984.
   In re Edward Jackson, applying for writ of mandamus and prohibition to the Court of Appeal, Fourth Circuit, No. K-3035; Parish of Orleans, Criminal District Court, Div. “G”, No. 285-306; Criminal District Court, Div. “I”, Nos. 272-906, 272-907.

Granted. The district court is ordered to act, if it has not already done so, on the post conviction petition submitted in October, 1983, for filing in Section “I” if, as alleged, such petition has been filed.


text:
    STATE ex rel., Joel MORRISON v. CRIMINAL DISTRICT COURT.
    No. 84-KH-1707.
    Supreme Court of Louisiana.
    Nov. 30, 1984.
   In re Morrison, Joel, applying for mandamus, Parish of Orleans, Criminal District Court, Div. “G”, No. 268-605.

Granted. The district court is ordered to act, if it has not already done so, on the post conviction petition submitted in July, 1984.


text:
    STATE ex rel. John JONES v. 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, State of Louisiana.
    No. 84-KH-1977.
    Supreme Court of Louisiana.
    Nov. 30, 1984.
   In re Jones, John, applying for writ of mandamus, Parish of East Baton Rouge, 19th Judicial District Court, Div. “H”.

Granted. The district court is ordered to act, if it has not already done so, on the post conviction petition submitted in November, 1983 if, as alleged, that petition has been received in the district court. A copy of “memorandum of law and fact” purportedly submitted to the district court (along with other exhibits and an application for post conviction relief) is transferred herewith.


author: NORRIS, Judge. NORRIS, Judge.

text:
    Carole Edna HALL, Plaintiff-Appellant, v. Shannon HALL, Defendant-Appellee.
    No. 16302-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    On Rehearing Dec. 5, 1984.

      Smith & Hingle by Gilmer P. Hingle, Monroe, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendant-appellee.
    Before PRICE, HALL and NORRIS, JJ.
   NORRIS, Judge.

Carole Edna Hall appeals the granting of a motion for summary judgment declaring Shannon Hall to be the owner of certain immovable property as his separate property and cancelling a notice of lis pendens filed in connection with this action.

Mrs. Hall contends that the trial court committed error:

(1) In determining that plaintiffs Affidavit in Opposition to Motion for Summary Judgment could not be considered; and therefore, granting defendant’s Motion for Summary Judgment;
(2) In further determining that (partial) summary judgment was appropriate because there was both no genuine issue of material fact and defendant was entitled to judgment as a matter of law, affidavits considered or not considered; [and]
(3) In the allowing use of Motion for Summary Judgment to cancel and erase matters from the public records without a mandamus suit/proceedings.

FACTS

On October 21, 1983, Mrs. Hall filed a petition seeking a partition of community property. Contained within the petition was the allegation that property acquired by the parties consisted of both movable and immovable property. The immovable property was particularly described as follows:

A parcel of land in the Northwest quarter of the Northeast quarter (NW ¼ of NE V4), Section 5, Township 17 North, Range 1 East, Ouachita Parish, Louisiana, commencing at a point 509.7 feet North 2 degrees 37 minutes West from the Southwest corner of said Northwest quarter of Northeast quarter (NW lk of NE Vi) of Section 5 for the Point of Beginning; said Southwest corner established by others; thence North 89 degrees 49 minutes East 300.0 feet to a point; thence North 2 degrees 37 minutes West 440.0 feet to a point; thence North 87 degrees 16 minutes West 300.0 feet to a point; thence South 2 degrees 37 minutes East 455.3 feet to the Point of Beginning, said parcel containing 3.16 acres, more or less.

It was further alleged that Mrs. Hall was the owner of separate property in the possession of Mr. Hall for which he was indebted to her separate estate, and that he had mismanaged certain community property under his control causing Mrs. Hall damage in the amount of $5000. It was finally alleged that in the event that the parties could not agree as to what constituted community property and what should be reimbursed to Mrs. Hall’s separate estate that a Notary Public should be appointed to make an inventory.

In response, Mr. Hall filed an Exception of No Cause of Action on the grounds that the petition failed to state a cause of action under La.R.S. 9:2801 and a Motion for Summary Judgment seeking a judgment declaring the aforedescribed immovable property to be his separate property. The only attachment to the motion was a deed which stated that at the time that the property was purchased by Mr. Hall that he was a single man. A later supplemental motion was filed to which was attached a correction deed executed for the purpose of correcting a distance call. That deed also recited that Mr. Hall was a single man.

The hearing on the motion was held on December 6, 1983. At the hearing Mrs. Hall’s counsel attempted to refer to a coun-teraffidavit with attachments filed in the record on December 2, 1983, four days prior to the hearing. Counsel for Mr. Hall objected to the court’s consideration of this affidavit on the ground that he had not received a copy. However, the affidavit contained a certificate of service certifying that a copy had been mailed to opposing counsel at his address on December 2, 1983. The affidavit was further objected to on the ground that the use of the affidavit would be improper because it would be offering for consideration facts not admissible under La.C.C.P. Art. 967.

Upon a finding that there was no genuine issue of fact as to the title of the property after sustaining defense counsel’s objection to the counteraffidavit, the trial court granted the motion and ordered a notice of lis pendens filed in connection with this proceeding cancelled and erased from the records.

ASSIGNMENT OF ERROR NO. 1

In connection with this assignment, counsel for Mrs. Hall argues that it was error for the trial court to have refused to consider the counteraffidavit of Mrs. Hall and its attachments because the affidavit was timely filed and served.

La.C.C.P. Art. 966 provides that the party opposing the motion may serve opposing affidavits prior to the date of the hearing. Counteraffidavits must be filed prior to the day before the hearing or they cannot be considered. Jones v. Jones, 385 So.2d 880 (La.App. 2d Cir.1980). Furthermore, counteraffidavits must be served pri- or to the day of the hearing in order for them to be considered. Bonnette v. Century Ready-Mix, 369 So.2d 1201 (La.App. 2d Cir.1979).

In the instant case, there is no question that the counteraffidavit with attachments was timely filed because it was filed of record four days prior to the day of the hearing. The question presented here is whether or not the counteraffidavit was timely served. In fact, the specific issue presented for resolution is whether or not an affidavit filed four days prior to the hearing on the motion which contains a certificate of service certifying that the affidavit was mailed to opposing counsel on the same day is timely served for the purposes of La.C.C.P. Art. 966 although it is not received by opposing counsel prior to the day of the hearing.

La.C.C.P. Art. 1313 provides:

A pleading which requires no appearance or answer, or which under an express provision of law may be served as provided in this article, may be served either by the sheriff or by:
(1)Mailing a copy thereof to the adverse party at his last known address, or to his counsel of record, this service being complete upon mailing;
(2) Delivering a copy thereof to the adverse party, or to his counsel of record; or
(3) Delivering a copy thereof to the clerk of court, if there is no counsel of record and the address of the adverse party is not known.
When service is made by mail or delivery, the party or counsel making the service shall file in the record a certificate of the manner in which service was made.

This article is applicable to the service of affidavits filed in opposition to motions for summary judgment. See Bonnette v. Century Ready Mix, supra.

The Supreme Court was called upon to interpret the meaning of this article in Block v. Fitts, 259 La. 555, 250 So.2d 738 (1971). The Block court stated that La.C. C.P. Art. 1313(1) contemplates the mailing of copies of filed documents and that a document mailed in connection with this article becomes an official pleading when it is actually filed with the Clerk of Court. Upon this filing, service by mailing becomes effective. Therefore, when service of a document is by mail, service is complete when it is mailed and filed, notwithstanding the order in which these tasks are accomplished.

Applying this rationale to the facts of the instant case, we conclude that the certificate of service dated the same day as the filing of the counteraffidavit is prima facie proof that it was mailed on the same day that it was filed, thereby showing of record that it was served timely for purposes of La.C.C.P. Art. 966. Article 1313 requires that the party or counsel making the service filed of record a certificate showing the manner in which service was made. This “Certificate of Service” is presumed to be correct, but not conclusively so, and may be refuted or amended and corrected when it is shown in an appropriate proceeding to be in error. Compare Haywood v. Salter, 421 So.2d 1190 (La. App. 2d Cir.1982). Accordingly, in a proper evidentiary proceeding it may be established that a certificate of service is incorrect and that in fact the document was not served in the manner reflected by the certificate; that is, that it was not mailed at all, it was mailed to the wrong party or the wrong address, and/or it was not mailed timely.

There was no appropriate evidentia-ry hearing in this case to determine the factual circumstances surrounding the service of the counteraffidavit. Counsel for the proponent of the motion simply objected to the consideration of the counteraffi-davit because he had not received a copy of it. This was insufficient to rebut the presumption attached to the certificate of record and the trial court was in error in refusing to consider the counteraffidavit and its attachments on this basis.

ASSIGNMENT OF ERROR NO. 2

In connection with this assignment, it is argued that the motion for summary judgment was improvidently granted notwithstanding the failure to consider the coun-teraffidavit.

Motions for summary judgment are provided for in La.C.C.P. Arts. 966 and 967. As we formerly stated in Watson v. Cook, 427 So.2d 1312 (La.App. 2d Cir.1983):

A motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. * * * The movant for the summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact and any doubt as to the existence of such issue of material fact is to be resolved against granting the motion. * * To satisfy his burden, the party moving for the summary judgment must meet a strict standard by showing that it is quite clear as to what the truth is, and that excludes any real doubt as to the existence of material fact. * * * The papers supporting the position of the party moving for the summary judgment are to be closely scrutinized while the opposing papers are to be indulgently treated, in determining whether mover has satisfied his burden. * * * Where the trial court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits and attached exhibits, reasonable inferences must be viewed in the light most favorable to the party opposing the motion. * * * No summary judgment will be granted even if the trial court has grave doubts regarding a party’s ability to establish disputed facts. * * * It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. * * [Citations omitted.]

As further stated in Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980):

* * * On a motion for summary judgment the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings.
In deciding whether all material issues have in fact been disposed of, any doubt is to be resolved against the granting of summary judgment and in favor of trial on the merits. [Citations omitted.] * *

Accordingly, the first question for our resolution in this case is whether or not Mr. Hall, as the moving party, satisfied his burden of showing that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law.

The only documents introduced in support of Mr. Hall’s motion were certified copies of the deeds stating that he waif~a single man at the time of the purchase and at the time that the deed was corrected. It is the position of Mr. Hall on appeal that because the authentic acts relating to the purchase of the property show th$it he was single at the time of the purchase of the property he is entitled to a declaratory judgment as a matter of law under La.C.C. Arts. 2334, 2236 and 2276, absent a showing by Mrs. Hall that he was not single at the time that the property was purchased, declaring that the property is his separate property.

Although Mr. Hall’s position may have had merit prior to recent legislative changes regarding the ownership' or property and the dissolution of matrimonial regimes, under the present state of the law and for the reasons hereinafter stated, we conclude that the particular declaratory relief obtained through ¡the granting of the motion for summary judgment was inappropriate in this case.

The resolution of all matters pertaining to the partition of the community property and settlement of claims arising from matrimonial regimes after termination of the community is now specifically provided for by recent legislation enacted for the specific purpose of settling all matters pertaining to the community, settling all claims by and against each spouse and providing for methods of protecting those claims.

La.R.S. 9:2801 provides:

When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising from the matrimonial regime, either spouse, upon termination of the matrimonial regime, may institute a proceeding, which shall be conducted in accordance with the following rules:
(1) Each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. Each party shall affirm under oath that the detailed descriptive list filed by that party contains all of the community assets and liabilities then known to that party. Amendments to the descriptive lists shall be permitted. No inventory shall be required. Upon motion of either party, the court shall set a time limit for the filing of each detailed descriptive list.
(2) Each party shall either traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party. Upon motion of either party, the court shall fix a time limit within which each party shall either traverse or concur. The trial of the traverses may be by summary procedure. At the trial of the traverses, the court shall determine the community assets and liabilities; the valuation of assets shall be determined at the trial on the merits. The court, in its discretion, may by ordinary procedure try and determine at one hearing all issues, including those raised in the traverses.
(3) The court may appoint such experts pursuant to Articles 192 and 373 of the Louisiana Code of Civil Procedure as it deems proper to assist the court in the settlement of the community and partition of community property, including the classification of assets as community or separate, the appraisal of community assets, the settlement of the claims of the parties, and the allocation of assets and liabilities to the parties.
(4) The court shall then partition the community in accordance with the following rules:
(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.
(d) In the event that the allocation of an asset, in whole or in part, would be inequitable to a party, the court may order the parties to draw lots for the asset or may order the private sale of the asset on such terms and conditions as the court deems proper, including the minimum price, the terms of sale, the execution of realtor listing agreements, and the period of time during which the asset shall be offered for private sale.
(e) Only in the event that an asset cannot be allocated to a party, assigned by the drawing of lots, or sold at private sale, shall the court order a partition thereof by licitation. The court may fix the minimum bids and other terms and conditions upon which the property is offered at public sale. In the event of a partition by licitation, the court shall expressly state the reasons why the asset cannot be allocated, assigned by the drawing of lots, or sold at private sale.

Because this legislation is procedural and remedial it is applicable even when a community was terminated prior to its enactment. Simon v. Simon, 421 So.2d 931 (La.App. 4th Cir.1982). Therefore, its effect must be considered in determining whether the granting of the declaratory judgment through the vehicle of the motion for summary judgment was appropriate in this case.

First of all, the relief sought through this motion is a declaratory judgment seeking to declare certain property to be the separate property of Mr. Hall. Declaratory judgments are specifically provided for by law and a trial court is given the discretion to refuse declaratory relief when it would not be appropriate or definitive under the circumstances. Furthermore, the broad discretionary power to determine whether a request for declaratory judgment is properly one for such relief may be exercised by appellate courts as well as trial tribunals. Michell v. Louisiana State Board of Optometry Examiners, 128 So.2d 825 (La.App. 3d Cir.1961); Atchafalaya Basin Levee District v. Pecquet, 364 So.2d 610 (La.App. 1st Cir.1978).

We conclude that the declaratory relief sought in this motion for summary judgment is inappropriate to proceedings brought under La.R.S. 9:2801 to settle community affairs because it defeats the purpose behind the legislation and fosters piecemeal determinations of issues which are contemplated by the legislation itself to be handled in relation to the settlement of the community and claims arising therefrom and related to it in such a manner as to foster an equitable result for both spouses. This legislation provides in detail the procedure for a judicial partition of community property, an order of priority and guidelines to be followed in the allocation of assets and liabilities. It authorizes the court, as a part of the proceedings, to partition the community property, to settle claims of the spouses which may include claims for reimbursement, accounting or damages for fraud or bad faith in the management of community property. It affords the trial court the much needed latitude to arrive at an equitable distribution of assets and liabilities between the spouses and the extent of its utility is far reaching and particularly suited to such a proceeding. See 43 La.L.Rev. 513.

While this legislation has not been judicially interpreted with any degree of certainty at this point, the extent of the trial court’s discretion to resolve problems associated with the dissolution and partition of community property and liabilities appears from its very language to be far reaching. For example, it might be possible for a trial judge to determine that a family home built with community funds on separate property be classified as community property under appropriate circumstances. See La. C.C. Arts. 491 and 493. See also Deliberto v. Deliberto, 400 So.2d 1096 (La.App. 1st Cir.1981). It is also conceivable under this legislation that a court could order that a spouse execute a note to the other spouse for sums due that spouse and require that the debtor spouse issue to the creditor spouse a mortgage or lien on the debtor spouse’s separate property to secure that debt. To allow a spouse to obtain a final judgment declaring property to be his separate property prior to the resolution of all matters pertaining to the dispute between the spouses could well defeat the purpose of the article if after obtaining this final judgment the spouse sold the property to an innocent third party and exhausted the funds obtained from the sale prior to a resolution of the community. All of these matters are best left to a proceeding held in accordance with the applicable statute which affords the trial court a full and detailed picture of the entire actual situation existing between the parties prior to arriving at a resolution.

Accordingly, we conclude that Mr. Hall has not shown that he is entitled to judgment as a matter of law because he does not even attempt to claim much less does he show that there is no community property or that Mrs. Hall does not have claims arising from the matrimonial regime to be settled. Thus, the trial court was in error in granting the summary judgment.

However, we note ex proprio motu, that the petition filed by Mrs. Hall is not in compliance with La.R.S. 9:2801. We hold that this proceeding is to be governed by that statute and conducted according to its provisions. See Simon v. Simon, supra. Accordingly, we reverse the judgment of the trial court and remand this matter to the district court for proceedings consistent with this opinion. Costs of this appeal are to be divided equally between the parties.

JUDGMENT REVERSED; CASE REMANDED WITH INSTRUCTIONS.

Before PRICE, HALL, MARVIN, SEXTON and NORRIS, JJ.

ON REHEARING

NORRIS, Judge.

We granted a rehearing in this case to reconsider certain pronouncements in our original opinion which may have gone beyond the issues presented and may constitute unnecessary obiter dicta. Upon reconsideration, we adhere to our original opinion insofar as it sets forth the factual posture of the case and our treatment of assignment of error number one. However, we set aside that portion of our original opinion that embodies assignment of error number two, but reach the same result on rehearing as in our original opinion for the following reasons.

ASSIGNMENT OF ERROR NO. 2

In connection with this assignment, appellant argues that the motion for summary judgment was improvidently granted notwithstanding the failure to consider the counteraffidavit.

A motion for summary judgment should be granted if, and only if, there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Credithrift of America, Inc. v. Williams, 426 So.2d 339 (La.App. 2d Cir.1983). Even if there is no genuine issue of material fact, summary judgment is improper if the mover is not entitled to judgment as a matter of law. Credithrift of America, Inc. v. Williams, supra.

Not conceding the point, but assuming for sake of argument that there is no genuine issue of material fact, we conclude that appellee is not entitled to summary judgment as a matter of law and reverse and remand.

The detailed procedure for resolving all matters pertaining to the partition of the community property and settlement of claims arising from matrimonial regimes after termination of the community is now specifically provided for by recent legislation enacted for that purpose. La.R.S. 9:2801. Because this legislation is procedural and remedial it is applicable even when a community was terminated prior to its enactment. Hinton v. Hinton, 452 So.2d 417 (La.App. 3d Cir.1984); Simon v. Simon, 421 So.2d 931 (La.App. 4th Cir. 1982). Therefore, its effect must be considered in determining whether the granting of the motion for summary judgment was appropriate in this case.

We conclude the declaration that the immovable property was the separate property of appellee through the granting of the motion for summary judgment at the stage in these proceedings when granted was inappropriate under 9:2801. This legislation provides in detail the mandatory procedure for a judicial partition of the community property and settlement of claims arising from the matrimonial regime. In the instant case, the record reveals the parties made no attempt to follow the mandatory procedure set forth in 9:2801. Neither party filed the required sworn detailed descriptive list of all community property with the fair market value and location of each asset, and all community liabilities in accordance with 9:2801(1). Thus, neither party was in a position to traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the other’s descriptive list. Admittedly, the trial of the traverses “may be by summary procedure”; however, there was nothing to traverse in the instant case that complied with the f mandatory statutory scheme at the time the motion for summary judgment was filed and ruled on.

To allow a spouse to obtain a final judgment declaring one item of property to be his separate property without compliance with 9:2801 would without doubt defeat the clear intent and purpose of the statute. Therefore, we conclude that the trial court was in error in granting the motion for summary judgment absent compliance with the mandatory provisions of 9:2801 by the parties to this litigation. In sum, appellee was not entitled to summary judgment at the stage of these proceedings when granted, as a matter of law.

This proceeding is governed by 9:2801 and must be conducted strictly in accordance therewith. Hinton v. Hinton, supra; Simon v. Simon, supra. The procedural scheme of the statute should acco-modate, rather than impede, an equitable partition of the community. Accordingly, we reverse the judgment of the lower court granting appellee’s motion for summary judgment and remand this matter to the trial court for proceedings consistent with this opinion. Costs of this appeal are to be divided equally between the parties.

JUDGMENT REVERSED; CASE REMANDED WITH INSTRUCTIONS.

      . La.C.C.P. Arts. 966 and 967 provide:
      Art. 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 plaintiffs 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 date 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. [Emphasis added.]
      Art. 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.

      . La.C.C. Art. 2334 formerly provided:
      Separate property is that which either party brings into the marriage.

      . In Mrs. Hall’s affidavit she states that as evidenced by an "Act of Correction of Deed and Act of Correction of Act of Correction of Deed” filed of record in the conveyance records of Ouachita Parish, as reflected by the certified copy attached to her affidavit that the vendor conveyed the property in question to Mr. Hall with the intent that the property belong to Mr. and Mrs. Hall. She further recites that part of the original purchase price was paid by Mrs. Hall, that the value of the land is minimal compared to the value of the house located thereon which was paid for mostly with community funds and that Mr. Hall has signed a listing agreement to sell the house and the property as is reflected by an attached copy of that listing agreement and that she is afraid that he may sell the property and return to his home state of Virginia affecting her chances of realizing her interest in her home.

      . Because of our holding in connection with Assignment of Error No. 2 we pretermit any discussion of appellant’s third assignment of error.

      . See the text of this statute set forth in our original opinion in its entirety.