author: GLICKSTEIN, Judge.

text:
    Louis C. ANDERSON and Harry W. Anderson, Appellants, v. HIGHLANDS BEACH DEVELOPMENT CORPORATION, a Florida corporation, and Watson, Hubert & Clark, Appellees.
    No. 83-945.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Scott E. Simowitz and Naomi Behar Smith of Goldberg, Young & Borkson, P.A., Fort Lauderdale, for appellants.
    Joseph A. Hubert and Henry B. Carpenter of Watson, Hubert & Clark, Fort Laud-erdale, for appellees.
   GLICKSTEIN, Judge.

This is an appeal by the plaintiffs from an adverse final judgment, the essence of which provided:

1. That on or about June 21, 1979 the Plaintiffs entered into a Purchase Agreement wherein the Defendant HIGHLANDS BEACH DEVELOPMENT CORPORATION agreed to sell them Condominium Unit 101-S in the Townhouses of Highland Beach Condominium which the Defendant was going to construct. The Purchase Agreement further provided that the total purchase price was $179,-000.00 and the contract stated that the purchase price of the unit was $159,-000.00 plus $20,000.00 for the 40 foot dock space. The Defendant was not able to build the dock space because it could not get regulatory approval from the appropriate agencies but did complete the condominium unit. The Plaintiffs declined to close on the unit in that they felt that they would not have purchased the unit without the dock space. The Plaintiffs brought a suit for rescission to recover their deposit claiming the Defendant did not perform in accordance with the contract and the basic question presented to the Court was whether or not the contract was severable. The Court finds, based on the evidence and testimony presented that the contract was in fact severable, in that it was intended that the condominium unit would cost $159,000 and the dock $20,-000.00 and the non-completion of the dock did not eliminate the Plaintiffs legal duty to continue to purchase the condominium unit for $159,000.00 _

We reverse and remand with direction to enter final judgment in favor of the plaintiffs for the amount of their deposits, and interest thereon, together with a reasonable attorney’s fee assessable against the developer/defendant only.

We find two flaws in the final judgment. The first, which may seem presumptuous on our part in the eyes of the trial court, is basic; namely, its finding that the contract was severable. We conclude that the only reasonable interpretation upon the contract is that it was not severable. The second is that if the contract was severable, there was no legitimate basis for the defendants to claim the buyers to have defaulted in the “dock contract.” It was the developer which could not deliver the dock. How, then, can it keep the deposit of $2,000 attributable to dock space after it failed to perform its fundamental obligation?

The first flaw does not appear from a casual reading of the final judgment, which initially appears sound. On close inspection of the case, however, we discovered that this purchase was clearly intended by the parties to be a package deal. The plaintiffs, as buyers, were sold the package of an oceanfront condominium with an in-tracoastal deep water dock, which package was available to only twelve of the seventy-two unit owners. When it came down to closing, however, the developer attempted to force plaintiffs to accept an abbreviated, dockless package or forfeit all their deposits. Sellers and buyers simply cannot change the rules of the game in mid-stream any more than lawyers can try their case one way and seek to argue it on appeal from an entirely different perspective never seen by the trial judge. As we view the dilemma in which the buyers here were placed by the developer immediately prior to closing, the American Heritage Dictionary of the English Language 626 (1979) defines it nicely:

Hobson’s choice. An apparent freedom of choice with no real alternative. [After Thomas Hobson (died 1681), English liveryman, who required his customers to take the next available horse rather than give them a choice.]

HURLEY and DELL, JJ., concur.

      . Take the package as offered or forfeit your deposits.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re PROTEST OF ELECTION RETURNS UNDER SECTION 102.166(2) FS.
    No. 83-1498.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.

      Bill Colon, Sunrise, pro se.
    Arne B. Carlson of Schwenke & Carlson, P.A., Fort Lauderdale, for appellee Arne B. Carlson.
    Samuel S. Goren of Josias & Goren, Fort Lauderdale, as amicus curiae of Jane Carroll, Supervisor of Elections of Broward County, Florida.
   PER CURIAM.

Bill Colon appeals from a final judgment in a case involving a protest of election returns.

Appellant filed a protest pursuant to Section 102.166(2), Florida Statutes (1988) and alleged that the election returns for the Sunrise city municipal elections were fraudulent. Appellant requested the court to grant appropriate relief, including the invalidation of the votes from two precincts.

The trial judge appointed an attorney to conduct an investigation. The attorney’s report, and his testimony at the hearing, indicated that he found no evidence of fraud. After hearing additional testimony, including appellant’s, the court entered a final judgment which found a complete absence of fraud in the election returns. The judgment also taxed attorney’s fees and costs against appellant.

We have carefully reviewed the record and find no evidence of fraudulent activity involved in the election returns. Thus, the trial court properly denied appellant’s request to invalidate the votes from the two precincts. However, we find that the trial court improperly taxed attorney’s fees and costs against- appellant.

“The law is well established in Florida that costs, expenses and attorney’s fees cannot be awarded by a court in a suit unless such award is authorized by statute or by agreement of the parties.” Lang v. Lang, 252 So.2d 809, 813 (Fla. 4th DCA 1971); Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla.1976); Johnson v. Schneegold, 419 So.2d 684 (Fla. 2d DCA 1982). We find neither a statutory provision nor any agreement to support the awards of fees and costs in this case.

Accordingly, we reverse that portion of the final judgment which taxed attorney’s fees and costs against the appellant.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

DOWNEY, HURLEY and DELL, JJ., concur.


text:
    Gary BRICE, Appellant, v. BRUCE KING CHEVROLET, INC., a Florida corporation, and Truck Insurance Exchange, a foreign insurance corporation, Appellees.
    No. 83-1782.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.

      Thomas L. Brown, West Palm Beach, for appellant.
    Stephen F. Radford, Jr., of Cibula, Gaunt & Pratt, West Palm Beach, for appellees.
   PER CURIAM.

Unknown persons stole appellant’s motor vehicle from appellee’s premises. Appellant challenges an adverse summary final judgment entered in his action for negligent bailment.

We have reviewed the record, and find questions of material fact as to the adequacy of the security measures taken by appel-lee. We therefore reverse and remand for further proceedings. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

REVERSED and REMANDED.

HERSEY, DELL and WALDEN, JJ., concur.


text:
    David L. KAHN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1855.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    David L. Kahn, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The trial court held appellant, counsel in a civil case, in direct criminal contempt for certain conduct which occurred during trial. The court failed to comply fully with Rule 3.830, Florida Rules of Criminal Procedure, which requires the court to inform the alleged contemnor of the accusation against him, inquire whether he can show cause why he should not be adjudged guilty of contempt, and give him an opportunity to present evidence of mitigating circumstances. Compliance with these procedural safeguards is mandatory. Holden v. State, 380 So.2d 548 (Fla. 2d DCA 1980). We therefore reverse and remand with directions to conduct a hearing in compliance with Rule 3.830.

REVERSED AND REMANDED WITH DIRECTIONS.

DOWNEY, HERSEY and DELL, JJ., concur.


author: MARCUS, Justice. WATSON, Justice,

text:
    STATE of Louisiana v. Lloyd JONES, Jr.
    No. 83-K-1808.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Michael K. Dees, Lake Charles, for applicant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Dist. Atty., Larry J. Regan, Ger-nine M. Mailhes, Asst. Dist. Attys., for respondent.
   MARCUS, Justice.

Pursuant to a plea bargain, Lloyd Jones, Jr. pleaded guilty to two counts of possession with intent to distribute methaqualone in violation of La.R.S. 40:967(A)(1) in one information (15,850-81); he also pleaded guilty to three counts of distribution of marijuana in violation of La.R.S. 40:967(A)(1) and to one count of possession of marijuana in violation of La.R.S. 40:966(C) in another information (15,989-81).

Subsequently, in connection with information 15,850-81, defendant was sentenced on the first count of possession with intent to distribute methaqualone to serve five years at hard labor, suspended, and placed on supervised probation for five years conditioned on his serving six months in the parish jail; in addition, he was sentenced to pay a fine of $7,500 by July 28, 1984, or, in default thereof, to serve two years at hard labor. On the second count, the sentence was the same as the one imposed on the first count except that there was no special condition of probation. The sentence on the second count was ordered to be served consecutively with the sentence on the first count.

In connection with information 15,989-81, defendant was sentenced on the first two counts of distribution of marijuana to the same sentence as that imposed on the second count of 15,580-81. These sentences were ordered to be served concurrently with the sentence on the first count of 15,850-81. On the third count of distribution of marijuana, defendant was sentenced to serve five years at hard labor, suspended, and this sentence was ordered to be served concurrently with the sentences in 15,850-81. On the fourth count, possession of marijuana, defendant was sentenced to serve six months in the parish jail to run concurrently with the six-month jail term imposed as a special condition of probation in the first count of 15,580-81.

The cumulative effect of these six sentences was that defendant was ordered to serve ten years at hard labor, suspended, and placed on supervised probation for ten years subject to the special condition that he serve six months in the parish jail; further, he was exposed to fines totaling $30,-000 or, in default thereof, to serve four years at hard labor. The trial judge denied defendant’s motion to reduce the sentences. The court of appeal, with one judge dissenting, affirmed the sentences. Upon defendant’s application, we granted a writ to review the legality of these sentences.

Defendant contends the trial judge erred in failing to follow the sentencing guidelines set forth in La. Code Crim.P. art. 894.1 and in imposing an excessive sentence.

At a preliminary examination, Deputies John Becton, John Lippmin and Donna Plai-sanee of the narcotics division of the Calca-sieu Parish Sheriff’s Department testified about the drug transactions involving defendant. Deputy Becton testified that a student at McNeese State University, Brian Richardson, contacted the sheriff’s department in May or June of 1981 requesting work. After a satisfactory evaluation, he was deputized and placed on the payroll as an undercover narcotics agent whose assignment was to buy illegal drugs on the street. On July 1, 1981, Deputy Richardson called the sheriff’s department and informed them that he had arranged to purchase one half pound of marijuana from defendant, a fellow student at McNeese. Deputy Richardson used $180 of sheriff’s department “buy money” to make the purchase while being observed by other narcotics agents. Deputy Lippmin described the next two purchases of marijuana. As in the initial buy, these purchases were set up and made by Deputy Richardson with sheriff’s department “buy money.” On July 6 and 16, one pound of marijuana was purchased on each occasion for $350. Deputy Plaisance testified about the purchases of methaqualone. As in the purchases of marijuana, Deputy Richardson prearranged the sales. On September 3 and 11 of 1981, 100 pills and 50 pills were bought for $350 and $175, respectively. Pursuant to a general round-up of suspected drug dealers, defendant was arrested at his home on October 20, 1981 and his car was seized. An inventory search of the vehicle uncovered about three pounds of marijuana. The trial judge ruled that there was probable cause to charge defendant on all of the counts.

Pursuant to a plea bargain that did not include an agreement on possible sentences, defendant pleaded guilty as aforesaid. At the sentencing hearing, information bearing on the appropriate penalty consisted of the above facts about the offenses, five letters from friends and relatives attesting to defendant’s good character, and the pre-sentence investigation re-port. The PSI report revealed the following. Defendant was 25 years old at the time of his arrest and had no prior criminal record. He served in the Marine Corps from 1975 until 1979. After an honorable discharge, defendant entered McNeese State University and worked parttime as a longshoreman. Following his arrest, defendant voluntarily entered a narcotics counseling and treatment facility and continued to reside with his parents.

After noting the above information, the trial judge stated that despite the opportunities provided by his good background, defendant “chose to disobey the law and obviously make a profit at selling controlled drugs.” With regard to the appropriate penalty, the judge commented: “Of course, you come from a very fine family. I know your father; I think he’s a fine person. He has a very responsible position and job in our community. If I were to send you to the Department of Corrections, Lloyd, I doubt if you would last a year.... Sentencing you to the Department of Corrections would be signing your death warrant. Somebody would like to say, well, I killed the son of an aide to a United States Congressman.” Hence, defendant was sentenced essentially to serve ten years at hard labor, suspended, pay a fine of $30,-000 or serve four years at hard labor, serve six months in the parish jail, and probation for ten years.

By attachments to a motion for appeal, defendant introduced evidence to rebut certain conclusions relied upon by the trial judge in imposing the sentences and evidence tending to show the excessiveness of the fines. Defendant’s affidavit reveals that he sold the drugs to Deputy Richardson because of a misplaced sense of friendship and not to make a profit. He contended that his total profit on the five transactions was $30 in cash. Further, his assets at the time of his arrest included a 1972 Oldsmobile, which was seized and forfeited to the state, $400 in savings, $400 in government bonds, and $342 per month while in school under the G.I. Bill. His total earnings in 1981 from parttime jobs were about $3,000. Finally, his parents’ affidavit confirmed that defendant’s father was an aide to a United States Congressman but that his annual salary was only $31,503.

Our review of the record in this case reveals that defendant has been illegally sentenced. Although defendant did not object to this error at the time of sentencing or urge it on appeal, the error shall be considered by this court since it is an error discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La.Code Crim.P. art. 920(2); State v. Wiggins, 432 So.2d 234 (La.1983).

Defendant’s sentences on the first and second counts of informations 15,-850-81 and 15,989-81 each include two years at hard labor in default of payment of a fine of $7,500. The pertinent part of La.Code Crim.P. art. 884 provides: “If a sentence imposed includes a fine or costs, the sentence shall provide that in default of payment thereof the defendant shall be imprisoned for a specified period not to exceed one year.” Under this provision, the trial judge was not authorized to impose an alternative to a fine that consisted of a term of imprisonment longer than one year. Thus, defendant’s sentences on the first and second counts of informations 15,-850-81 and 15,989-81 are illegal. An illegal sentence may be vacated and corrected at any time. La.Code Crim.P. art. 882; State v. Wiggins, supra. Hence, these sentences must be vacated and the case remanded to the trial court with instructions to the trial judge to resentence defendant in accordance with law.

It should be noted that defendant Contends the trial judge erred in failing to comply with the sentencing guidelines set forth in La.Code Crim.P. art. 894.1. He argues the trial judge did not state for the record the considerations taken into account and the factual basis for imposing fines totaling $30,000. Defendant also contends the trial judge erred in imposing an excessive sentence. He argues fines totaling $30,000 are “grossly disproportionate” to the severity of the crimes, especially considering defendant’s potential ability to pay, the circumstances of the crimes and defendant’s law abiding and productive life prior to these offenses. Because we have determined that the sentences on the first and second counts of informations 15,580-81 and 15,989-81 are illegal as violative of La.Code Crim.P. art. 884, we need not and do not decide these issues relative to these counts. The sentences on the remaining counts (third and fourth of information 15,-989-81), five years at hard labor, suspended, and six months in the parish prison, respectively, are not excessive and therefore will be affirmed.

DECREE

For the reasons assigned, defendant’s sentences on the third and fourth counts of information 15,989-81 are affirmed. The sentences on the first and second counts of informations 15,580-81 and 15,989-81 are vacated and set aside, and the case is remanded to the district court with instructions to the trial judge to resentence defendant on these counts in accordance with law.

WATSON, J., concurs with reasons.

WATSON, Justice,

concurring.

The majority is correct in remanding this matter for a new and legal sentence. Additionally, the sentence given defendant appears excessive under the prior jurisprudence of this court; the fines were apparently imposed without consideration of ability to pay. Cf. State v. Forshee, 895 So.2d 742 (La.1981). However, the trial court should take care in resentencing not to violate the principles of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

I respectfully concur.

      . 433 So.2d 378 (La.App. 3d Cir.1983) and 433 So.2d 382 (La.App. 3d Cir.1983).

      . 440 So.2d 754 (La.1983).

      . It is now established that placing a defendant in jail for inability or failure to pay a fine imposed as a condition of probation is not permissible. Bearden v. Georgia, - U.S. -, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).


author: WATSON, Justice. BLANCHE, Justice

text:
    STATE of Louisiana v. Reginald THOMAS.
    No. 82-KA-1897.
    Supreme Court of Louisiana.
    Feb. 27, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Jim Williams, Lee Melton, Asst. Dist. At-tys., for plaintiff-appellee.
    Vernon Thomas,' Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   WATSON, Justice.

Defendant, Reginald Thomas, was convicted by a jury of two counts of simple robbery. After being adjudicated a fourth offender under LSA-R.S. 15:529.1, he was sentenced to life imprisonment at hard labor. On appeal, defendant makes two arguments for reversal of his convictions and sentence.

FACTS

On the night of April 4, 1981, Richard Barber, age eighteen, and his girlfriend, Laurie Dawson, age sixteen, were driving on Pontchartrain Boulevard in New Orleans when a red Monte Carlo behind them began flashing its bright lights. Barber slowed down and defendant Thomas pulled along side, turned on his inside lights, showed a badge, and motioned for Barber to pull over. Believing Thomas to be a police officer, Barber stopped his pickup truck. Defendant, in street clothes, opened the door on the passenger side where Laurie Dawson was seated and told the couple they would be in serious trouble if they had any drugs in the truck. Defendant Thomas ordered Barber to look away while he began rummaging through the truck’s cab and Dawson’s purse. Barber was then instructed to stand behind the truck while Thomas completed his search. Afterward, Barber was told to drive away without looking back and Barber complied.

Dawson discovered $30 was missing from her purse. ' Barber’s money clip, containing $150, was also missing from the dashboard tray. The police were called when Barber reached his home about thirty minutes later. Both Barber and Dawson identified Thomas as the man who had stopped them and searched the truck.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends there is insufficient evidence of “force or intimidation” to justify a verdict of simple robbery. LSA-R.S. 14:65 provides:

“A. Simple robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.
“B. Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.”

Reviewing the evidence in the light most favorable to the prosecution, the question is whether a rational trier of fact could have found the essential elements of robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The offense of theft is a crime against property, whereas robbery is an offense against the person; the latter has a harsher penalty:

“It is the increased risk of danger to human life caused when a theft is attempted in the face of the victim’s opposition that caused the legislature to differentiate between robbery and mere theft.” State v. Johnson, 411 So.2d 439 at 441 (La., 1982).

See also, State v. Mason, 403 So.2d 701 (La., 1981).

The property taken in a robbery must be sufficiently under the victim’s control that, absent violence or intimidation, the victim could have prevented the taking. State v. Mason, supra; State v. Refuge, 300 So.2d 489 (La., 1974); State v. Verret, 174 La. 1059, 142 So. 688 (1932); LaFave & Scott, Criminal Law (Hornbook, ed. 1972), § 94, p. 696. If a defendant has taken advantage of a situation which resulted from the prior use of force or intimidation, most jurisdictions hold that a robbery has occurred. LaFave & Scott, supra, p. 702; State v. Covington, 169 La. 939, 126 So. 431 (1930).

Dawson testified that defendant “grabbed” her arm (Tr. 23) and she was scared. (Tr. 9-10) Barber said that he pulled over because he thought defendant was a police officer and he was “scared, worried ’cause I didn’t know what he was wanting me for.” (Tr. 30) Also, Barber “was worried about my girlfriend on the side of me.” (Tr. 25) Dawson thought Thomas was a police officer “until he searched through everything”. (Tr. 9) When asked why he did not immediately call the police, Barber responded, “I was scared. I didn’t know what to do. And, he told me to get in the truck and just go, don’t look back.” (Tr. 35) Barber said he was afraid all the way home.

Victims Barber and Dawson were clearly intimidated: first, by defendant’s badge; second, by his threat of trouble; and third, by his general demeanor and aura of authority. Thomas took their money under the guise of searching the vehicle for drugs, an action which might be expected of a police officer. The jury reasonably concluded that defendant made the stop, conducted the search, and misappropriated the money by use of intimidation. The face-to-face confrontation involved the increased risk of bodily harm which distinguishes robbery from theft.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER TWO AND THREE

Defendant contends his sentence is excessive.

Defendant was sentenced to life imprisonment with hard labor under the habitual offender statute as a fourth felony offender. LSA-R.S. 15:529.1 A(3)(a) and (b) provide:

“(3) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then,
“(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life; or
“(b) If the fourth or subsequent felony and two of the prior felonies involved a violation of R.S. 14:34, R.S. 14:62.1, R.S. 14:65, R.S. 14:110(B), or of any crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.”

Defendant’s prior ■ convictions were for crimes other than those enumerated in sub-paragraph (b): (1) theft and receiving stolen things, LSA-R.S. 14:67 and LSA-R.S. 14:69; (2) attempted simple burglary, LSA-R.S. 14:62 and LSA-R.S. 14:27; and (3) theft, LSA-R.S. 14:67. None of these offenses carry a possible sentence in excess of twelve years. Therefore, defendant, as a fourth offender, could have been sentenced from a minimum of twenty years to a maximum of life imprisonment and he received the maximum.

Article I, § 20 of the 1974 Louisiana Constitution prohibits the imposition of excessive punishment. State v. Sepulvado, 367 So.2d 762 (La., 1979). A sentence is unconstitutionally excessive when it is grossly out of proportion to the severity of the offense or inflicts unnecessary'pain and suffering. State v. Reed, 409 So.2d 266 (La., 1982). A sentence within the statutory range may be excessive when considered in light of the individual defendant and the circumstances of his crime. State v. Quebedeaux, 424 So.2d 1009 (La., 1982); State v. Grey, 408 So.2d 1239 (La., 1982); State v. Sepulvado, supra.

At defendant’s third felony sentencing in 1976, the same trial judge presided. The trial court was well acquainted with the defendant. Defendant received a sentence of eight years at hard labor because of his refusal to reform and was warned that a fourth conviction would subject him to life imprisonment. Police suspected defendant of being the offender in the robbery of Barber and Dawson when he was apprehended driving a stolen red Monte Carlo. In sentencing defendant to life imprisonment, the court expressed a desire to protect society from future criminal activity on the part of Thomas, obviously a legitimate concern.

While the guidelines in LSA-C. Cr.P. art. 894.1 must be considered, it is not necessary for every factor in that article to be enumerated. State v. Bradley, 414 So.2d 724 (La., 1982). The trial court is given wide discretion in imposing sentences, which will not be disturbed absent a manifest abuse of discretion. State v. Green, 443 So.2d 531 (La., 1983); State v. Jones, 381 So.2d 416 (La., 1980). There was no manifest abuse of discretion in the sentence imposed. See State v. Siegel, 376 So.2d 492 (La., 1979); State v. Bonanno, 384 So.2d 355 (La., 1980).

These assignments lack merit.

DECREE

For the foregoing reasons, the convictions for simple robbery and the sentence as an habitual offender of defendant, Reginald Thomas, are affirmed.

AFFIRMED.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

The defendant posed as a police officer and threatened the victims with arrest if he found any drugs in their possession. He used this subterfuge or false pretense to search and steal money under their immediate control and possession.

The victims unequivocally testified that at no time did the defendant use any force or violence toward them. The victim Barber testified he pulled over because he thought the defendant was a police officer and that he was “scared, worried, ’cause I didn’t know what he was wanting me for.” When asked to explain exactly what he was afraid of, Barber responded, “That I might get a ticket for something I hadn’t done, or whatever he was stopping me for.” Dawson, the passenger, testified that she initially thought the defendant was a policeman but that she ceased to think so while he was searching through her purse and the truck. Dawson did explain that had the defendant been dressed in a police uniform, she would not have been afraid. However, defendant was dressed in regular clothes.

It is difficult for this writer to recognize that a mere threat to accuse, arrest or prosecute one for an alleged crime in the absence of actual force satisfies the element of “intimidation” in the simple robbery statute. Robbery is traditionally a crime against the person whereas theft is an offense against property. Further, it is well established that the essence of the crime of robbery is the element of either force or intimidation which both prevents the victim from opposing the taking and also poses a risk of danger to human life. See State v. Mason, 403 So.2d 701 (La.1981).

By Act 50 of 1805, the Louisiana legislature adopted the common law definition of robbery as it existed prior to that time. La.R.S. 14:64 Official Comments. As can be seen from a review of the revised statutes, the statutory definition of the essential elements of the offense of robbery has remained unchanged since that time. What is more, the official comments in R.S. 14:64 specifically state that the common-law definition of robbery is correctly stated in the California Penal Code and that it was from that source that this section was adopted. Section 211 of the California Penal Code has remained unchanged since 1872; it provides:

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.

Section 212 of the California Penal Code, which also remains essentially unchanged since 1872, provides that “fear” necessary to support a conviction of robbery must be fear of physical harm to the person or property:

The fear mentioned in Section 211 may be either:
1. The fear of an unlawful injury to the person or property of the person robbed or any relative of his or member of his family; or,
2. The fear of an immediate and unlawful injury to the personal property of any one in the company of the person robbed at the time of the robbery.

According to the doctrinal writers, where the offense of robbery is sought to be proved as a theft accompanied by the use of intimidation or fear, it must be such intimidation as in common experience is likely to create an apprehension of danger to the person. There must also be a causal connection between the victim's fear of harm in the robber’s acquisition of the property. See, LaFave and Scott, Criminal Law, § 94 (Hornbook Edition, 1972)

The victims did not actually give up anything through these means. Although the property was taken from within their possession and immediate control, neither had any idea that anything was taken until they were on the way home and noticed that their money was missing. The search and theft of the money was conducted by and through the subterfuge of a possible arrest if drugs were found and neither victim was aware of the taking or theft during the time of the search.

The defendant is surely guilty of theft. La.R.S. 14:67 states:

Theft is the misapropriation or taking of anything of value which belongs to another, either without consent of the other to the misapropriation or taking, or by means of fraudulent conduct, practices, or representations.

He may also be guilty of extortion. La. R.S. 14:66 states:

Extortion is the communication of threats to another with intentions thereby to obtain anything of value or any acquittance, advantage, or immunity of any description. The following kinds of threats shall be sufficient to constitute extortion:
2. A threat to accuse the individual threatened or any member of his family or any person held dear to him of any crime;

The defendant is definitely not guilty of simple robbery.

In conclusion, this writer suggests that the majority opinion proceeds on a premise which does not truly recognize the gravamen of the offense of robbery as distinguished from that of theft and thus we have become the first, and probably the only, jurisdiction in America to recognize that robbery can be committed without the use or threat of force.

Assuming arguendo, that the defendant’s conviction is valid, this writer dissents from the failure of the majority to remand the ease to the trial court with directions that the trial judge comply with C.Cr.P. art. 894.1.

Thomas was adjudicated a fourth offender and then sentenced under La.R.S. 15:529.1 A(3)(a). This statute provides for a minimum sentence of 20 years and a maximum sentence of life. According to the sentencing hearing, his three prior convictions were (1) theft and receiving stolen things (La.R.S. 14:47, 69); (2) attempted simple burglary (La.R.S. 14:62, 27); and, again, (3) theft (La.R.S. 14:67). Although the sentence as handed down by the trial court was not expressly without benefit of parole, probation or suspension,. La.R.S. 15:574.4 B prohibits parole consideration for a prisoner serving a life sentence unless that sentence has been commuted to a fixed number of years.

La.C.Cr.P. art. 894.1 mandates that a sentencing judge state for the record the considerations taken into account and the factual basis of those considerations in imposing sentence. Although the sentencing judge did briefly comment on the need to protect society as one reason for imposing this sentence, there is not even the barest mention of any mitigating circumstances. Whether any such circumstances exist is unknown, but it appears from the nature of the crimes utilized in the multiple offender hearing that such crimes usually do not involve violence, weapons or pose a danger or threat to human life. It may be that the thefts involved relatively insignificant amounts which may amount to another mitigating circumstance.

Nevertheless, one of the principal reasons given by the trial judge for the imposition of the maximum sentence is that this is what the judge had “promised” the defendant when he had appeared before the same judge on one of his prior convictions. As the judge stated in his reasons, “I never ran out on a promise to a defendant yet.” This writer realizes that the trial judge knew of defendant’s prior convictions and for that reason he made his promise and imposed the maximum sentence. Nevertheless, under our system of justice, we have required that every criminal sentence must be tailored to fit the circumstances of the crime and the individual offender. In this regard, we seem to have ignored the principle that maximum sentences are to be reserved for cases involving the most serious violation of the charged offense and for the worst offender. State v. Quebedeaux, 424 So.2d 1009 (La.1982); State v. Jones, 398 So.2d 1049 (La.1981). See also Solem v. Helm, — U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

This being the case, we, as a reviewing court should have some knowledge of whether the defendant meets this test.

Accordingly, the sentence should be vacated and the case remanded for resentenc-ing before a different judge and in full compliance with C.Cr.P. art. 894.1.

      . Barber had been paid that day.


author: LEMMON, Justice. CALOGERO, Justice,

text:
    PPG INDUSTRIES, INC. v. BEAN DREDGING, et al.
    No. 82-C-2201.
    Supreme Court of Louisiana.
    Feb. 27, 1984.

      Fred H. Sievert, Jr., Robert S. Dampf, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, for applicant.
    Cornelius G. VanDalen, Allen F. Campbell, Deutsch, Kerrigan & Stiles, New Orleans, for respondent.
   LEMMON, Justice.

The issue in this case is whether a dredging contractor who negligently damaged a natural gas pipeline may be held liable for the economic losses incurred by the pipeline owner’s contract customer who was required to seek and obtain gas from another source during the period of repair. Thus, this case brings into focus the broad question of recovery of an indirect economic loss incurred by a party who had a contractual relationship with the owner of property negligently damaged by a tort-feasor. We conclude that while the situation giving rise to the question in this case falls literally within the expansive terms of La.C.C.Art. 2315, in that the dredging contractor’s “act ... cause[d] damage to another”, the customer cannot recover his indirect economic loss. For the policy reasons hereinafter stated in a duty-risk analysis, we hold that the damages to the economic interest of the contract purchaser of natural gas, caused by a dredging contractor’s negligent injury to property which prevents the pipeline owner’s performance of the contract to supply natural gas to the purchaser, do not fall within the scope of the protection intended by the law’s imposition of a duty on dredging contractors not to damage pipelines negligently.

Bean Dredging Company’s dredging operations in the Calcasieu River caused damage to Texaco’s natural gas pipeline. As a result, Texaco was unable to fulfill its contract to supply natural gas to PPG Industries for operation of its manufacturing plant, and PPG had to obtain fuel from another source at an increased cost. PPG filed this suit against Bean, seeking to recover the increased cost of obtaining natural gas. Bean filed an exception of no cause of action, contending that Louisiana has never recognized the right of recovery for negligent interference with contractual relations.

The trial court sustained Bean’s exception of no cause of action. The court of appeal affirmed, relying on Forcum-James Co. v. Duke Transportation Co., 231 La. 953, 93 So.2d 228 (1957). 419 So.2d 23. We granted certiorari. 422 So.2d 151.

When the question of recovery of indirect economic losses caused by a negligent injury to property that interferes with contractual relations has been presented in previous cases, the courts of this state have generally denied recovery without analyzing the problem, taking a mechanical approach to the unreasoned conclusion that the petition fails to state a cause of action for which relief can be granted. Most cases have cited Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), and Forcum-James Co. v. Duke Transportation Co., above, which were relied on by the court of appeal in the present case. See, for example, Desormeaux v. Central Industries, Inc., 333 So.2d 431 (La.App. 3rd Cir.1976), cert. denied 337 So.2d 225 (La.1976); Messina v. Sheraton Corporation of America, 291 So.2d 829 (La.App. 4th Cir.1974).

In Robins, an admiralty case, the charterer of a vessel sought recovery of damages for its loss of use while the vessel was out of service after the dry dock operator negligently damaged its propeller. The Supreme Court denied recovery on the basis that the negligent repairer, who acted unintentionally while unaware of the contract of charter, cannot be held liable unless the party seeking damages had a proprietary interest in the damaged property.

Although knowledge does not seem to be a relevant factor to the determination of the defendant’s liability to the charterer, the case has been cited countless times for the proposition that recovery is generally denied for negligent interference with contractual relations. A better reasoned explanation for the Robins decision was suggested in F. Harper & F. James, The Law of Torts § 6.10 (1956), as follows:

“It is the reluctance of the Court to hold the tort-feasor liable, in addition to the physical damage to the vessel, for the value of two bargains. Under the contract with the owners, the charterers were excused from paying rent while the ship was laid up for repairs. This loss was included in the settlement between the defendants and the owners. Having made good one bargain, the tort-feasor is now asked to make good the still better bargain of the charterer. This, conceivably, could go on and on. The Court drew the line after the first. The multiplicity of actions and the unforeseeable extension of liability may well have influenced the Court in denying the charterer’s claim, as a matter of policy.” (Emphasis supplied.)

Similar policy considerations lead to our decision in the present case. Under the alleged facts, there appears to be no question that Bean is liable to Texaco for the costs of repairing the pipeline and for the direct economic losses sustained by Texaco during the period of repair. However, the rule of law which prohibits negligent damage to property does not necessarily require that a party who negligently causes injury to property must be held legally responsible to all persons for all damages flowing in a “but for” sequence from the negligent conduct.

Rules of conduct are designed to protect some persons under some circumstances against some risks. Malone, Ruminations on Cause-in-Fact, 9 Stan.L.Rev. 60 (1956). Policy considerations determine the reach of the rule, and there must be an ease of association between the rule of conduct, the risk of injury, and the loss sought to be recovered. Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (1972). A judge, when determining whether the interest of the party seeking recovery of damages is one that falls within the intended protection of the rule of law whose violation gave rise to the damages, should consider the particular case in the terms of the moral, social and economic values involved, as well as with a view toward the ideal of justice. See Entrevia v. Hood, 427 So.2d 1146 (La.1983).

There is clearly an ease of association in the present case between the rule of law which imposes a duty not to negligently damage property belonging to another and the risk of injury sustained by Texaco because of the damage to its property. As noted, however, a rule of law is seldom intended to protect every person against every risk. It is much more difficult to associate the same rule of law, in terms of the moral, social and economic values involved, with the risk of injury and the economic loss sustained by the person whose only interest in the pipeline damaged by the tortfeasor’s negligence arose from a contract to purchase gas from the pipeline owner. It is highly unlikely that the moral, social and economic considerations underlying the imposition of a duty not to negligently injure property encompass the risk that a third party who has contracted with the owner of the injured property will thereby suffer an economic loss.

Moreover, imposition of responsibility on the tortfeasor for such damages could create liability “in an indeterminate amount for an indeterminate time to an indeterminate class”. Ultramares Corp. v. Touche, 255 N.Y. 170, 179, 174 N.E. 441, 444 (1931). If any of PPG’s employees were laid off while PPG sought to obtain another source of fuel for its plant, they arguably sustained damages which in all likelihood would not have occurred but for defendant’s negligence. If any of PPG’s customers had contracted to purchase products that PPG could not produce and deliver because of the accident, perhaps they sustained damages which in all likelihood would not have occurred but for defendant's negligence. Because the list of possible victims and the extent of economic damages might be expanded indefinitely, the court necessarily makes a policy decision on the limitation of recovery of damages. See James, Limitations on Liability for Economic Loss Caused by Negligence; A Pragmatic Approach, 25 Vand.L.Rev. 43 (1972).

We conclude that the duty allegedly violated in the present case did not encompass the particular risk of injury sustained by PPG and did not intend protection from the particular loss for which recovery is sought in PPG’s petition.

Accordingly, the judgments of the lower courts are affirmed.

DIXON, C.J., concurs.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I applaud the majority’s applying a duty risk analysis in the consideration of tort recovery for negligent interference with contractual relations, and its abandoning the per se exclusion of such damages which our courts have heretofore adopted on the heels of Robins and Forcum-James.

Where I disagree, is in the majority’s determination that PPG’s economic loss, from added fuel cost, is not a risk encompassed within the duty not to negligently injure Texaco’s pipelines. PPG’s loss of profits; PPG’s employees’ loss of jobs and income; PPG’s customers’ losses, because PPG could not produce and deliver; are all economic losses which might properly be determined to fall outside the scope of the protection intended by the law’s imposing a duty on dredging contractors not to damage pipelines negligently. The same cannot be said for PPG’s added fuel cost.

Bean was dredging the waterway that ran right along the side of PPG’s plant. There were signs along the waterway warning of the existence of the gas pipeline and cautioning against dredging in the area. There were also maps of the water bottom showing the pipelines. 'At the time Bean negligently dredged through the waterway, there could have been no doubt to anyone that the pipeline in question was providing PPG with its fuel to run its plant. The damages suffered by PPG were not unforeseen, at least as far as the added fuel costs go.

If PPG is to be denied its added fuel cost I can perceive no instance in which a non-owner of negligently damaged property may recover from a tortfeasor. In light of the result here it would probably have been better if the majority had simply affirmed the jurisprudential rule established in Robins and Forcum-James which has prevailed so long.

      . Recovery of economic losses for negligent interference with contractual relations is almost uniformly denied in other jurisdictions. See Restatement (Second) of Torts § 766 C comment a (1977). On the other hand, recovery for intentional interference with contractual relations has been permitted in every jurisdiction in this country except Louisiana. Malone, The Work of the Louisiana Appellate Courts for the 1963-1964 Term — Torts, 25 La.L.Rev. 341 (1965). See also W. Prosser, Law of Torts § 129 at 930 (4th Ed.1971). There is considerable sentiment for permitting recovery in Louisiana for intentional interference with contracts, such as by the deliberate inducing of breach of contract. However, that issue is not presented in this case.

      . La.C.C.Art. 2315 provides in pertinent part:
      "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

      . The Supreme Court of Louisiana relied on Robins in deciding the Forcum-James case. The plaintiff in Forcum-James was a contractor who was required by a contract with the Department of Highways to repair a state-owned bridge that had been damaged by the tortfeasor. Plaintiff sued the tortfeasor to recover the cost of the repairs. The court held that the state, as owner, was the proper party to sue for the damage to the bridge and maintained an exception of no right of action as to plaintiff's suit against the tortfeasor. As to plaintiff's damages sustained by reason of having to repair the bridge, the court, relying on Robins, stated that "where a third person suffers damage by reason of a contractual obligation to the injured party, such damage is too remote and indirect to become the subject of a direct action ex delicto, in the absence of subrogation”. 93 So.2d at 230.
      The obvious purpose of the Forcum-James decision was to prevent the tortfeasor from having to pay twice for the same damage, and the court in effect required that suit for the damage to the bridge be filed by either the owner of the bridge or a party subrogated to the rights of the owner. Because evidence of subrogation had been excluded in the trial court, the court remanded for introduction of such evidence.
      The instant case presents a different, but related, problem. In Forcum-James, the cost of repairing the bridge was a loss to be recovered by either one party or the other, but not both. Here, only one party was entitled to recover the cost of repairing the pipeline, but both Texaco and PPG (and perhaps other parties) incurred economic losses during the period of repair that would not have been incurred but for the tort-feasor’s negligence.

      . For purposes of the exception of no cause of action, the court must accept as proved facts the allegations of the petition that Bean negligently damaged the pipeline, that as a result of the accident Texaco was unable to deliver natural gas to PPG in accordance with their contract, and that PPG thereby sustained economic losses.

      . In the article Professor James argues that Robins was illogical in denying recovery for the charterer for lost business resulting from boat damage simply because the charterer did not own the boat. He points out that the injury was neither unforeseeable nor unlimited, that the damages would have been determined had plaintiff been the owner, and that questions of multiple liability, proper plaintiffs, and protection of settlements could be handled by regular procedural devices. Id. at 56.

      . Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927); Forcum-James Co. v. Duke Transportation Co., 231 La. 953, 93 So.2d 228 (1957).


text:
    Mrs. Jan R. CARTER etc. et al. v. Emily DEITZ, etc. et al.
    No. 84-CC-0450.
    Supreme Court of Louisiana.
    March 9, 1984.
   On Application for Supervisory Writs and/or Petition for Mandamus and Stay from the Court of Appeal, Fourth Circuit, State of Louisiana.

GRANTED:

The rulings of the trial court are reversed and vacated.

The defendants, State of Louisiana, Department of Transportation and Development and the Mississippi River Bridge Authority are ordered to produce the statistical compilations identified in the deposition of Anthony Sciambra taken on January 24, 1984, if they can be obtained.

The trial judge is ordered to vacate his order quashing the depositions of the medical records librarians in California, or alternatively, receive certified copies of these documents into evidence.


author: LEMMON, J.,

text:
    Marta R. CARBONELL v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, OFFICE OF MENTAL HEALTH AND SUBSTANCE ABUSE.
    No. 84-C-0345.
    Supreme Court of Louisiana.
    March 16, 1984.
   In re Marta R. Carbonell, applying for Writ of Certiorari or Review to the First Circuit Court of Appeal, Number 83-CA-0186, from Department of State Civil Service, Number 2235.

Denied.

LEMMON, J.,

concurs, but disagrees with the standard stated by the court of appeal for reviewing Civil Service Commission decisions based on taped testimony. The function of the Commission is to find facts; and the reviewing court should not perform the same function again, but should accept those factual findings which are supported by the evidence.


text:
    ENVIRONMENTAL CONTROL COMMISSION v. BROWNING-FERRIS INDUSTRIES CHEMICAL SERVICES, INCORPORATED.
    No. 83-C-2654.
    Supreme Court of Louisiana.
    Jan. 18, 1984.
   In re Browning-Ferris Industries Chemical Service, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 83-CA-0855; Environmental Control Commission, No. D-529-I1, East Baton Rouge Parish.

Case below: 446 So.2d 755.

Granted.

WATSON, J., dissents and would not grant the writ.


text:
    Robert F. BEYER, Jr., William J. Bravender, Jr., Ellis W. Adams, Ronald L. Passons, John A. Liljeberg, Jr., Oscar J. Autin, Kerry Simon and Henry E. Williams v. DAUL INSURANCE AGENCY, INC., and Michael B. Daul, Jr.
    No. 84-CC-0501.
    Supreme Court of Louisiana.
    March 16, 1984.
   In re Daul Insurance Agency, Inc., and Michael B. Daul, Jr., applying writ of cer-tiorari and stay order, to the Twenty-fourth Judicial District Court, Parish of Jefferson, No. 267-187, to the Fifth Circuit Court, No. 84-C-145.

DENIED.


text:
    STATE of Louisiana, ex rel., Dennis PETERS v. Hon. John W. GREENE, Judge, 22nd Judicial District Court, Parish of Washington.
    No. 83-KH-2049.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Dennis Peters, applying for writ of mandamus, Parish of Washington, Nos. 36368 and 36892.

Granted. Out of time appeal to court of appeal is ordered in # 36368.


text:
    Robert SHEPPARD & Clarence Sheppard v. Hon. Carl A. GUIDRY, Judge, Section “ ”, Nineteenth Judicial District Court.
    No. 84-KH-0418.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Robert Sheppard and Clarence Sheppard, applying for Remedial Writs to the Nineteenth Judicial District Court, Parish of East Baton Rouge.

Granted. An out of time appeal is granted to the 1st Circuit Court of Appeal.


text:
    STATE of Louisiana v. Gerald R. BORNING.
    No. 84-KH-0331.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Gerald R. Borning, applying for reconsideration of denied writ of February 17, 1984, 445 So.2d 1227, to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 12-82-241.

Denied.


text:
    STATE ex rel. John Charles STEIN, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0269.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re John Charles Stein, applying for reconsideration, of a denied writ, on February 27, 1984, 445 So.2d 1234, from the First Judicial District Court, Parish of Caddo, Nos. 99-012 HC, 94-047, 94-048.

Denied.


text:
    STATE of Louisiana v. Patrick S. BOYLE.
    No. 84-KK-0121.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Patrick S. Boyle, applying for reconsideration of denied writ of February 27, 1984, 445 So.2d 746, to the Court of Appeal, Fifth Circuit, No. 83-K-759; 24th Judicial District Court, Jefferson Parish, Nos. 77-1279, 77-1464.

Denied.


text:
    STATE of Louisiana v. Charles W. PIXLEY.
    No. 84-KK-0085.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Charles W. Pixley, applying for reconsideration of denied writ of February 27, 1984, 445 So.2d 742, to the Lafayette City Court, No. DT-83-00087; Third Circuit Court of Appeal, No. K83-933, Parish of Lafayette.

Reconsideration denied.


text:
    STATE of Louisiana ex rel. Percy L. TATE v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1024.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Percy L. Tate, applying for reconsideration of writ denied February 16, 1984, 445 So.2d 446, from the Criminal District Court, Parish of Orleans.

Denied. The district court has no record that relator’s application has been filed in that court.


text:
    Michael S. BREAUX v. Eleanor M. BAILEY.
    No. 84-CC-0248.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Eleanor M. Bailey, applying for reconsideration of writ not considered of March 9, 1984, 446 So.2d 321; Court of Appeal, First Circuit, No. CW-83-1453, Parish of Assumption, No. 15,300, 23rd Judicial District Court.

Motion for reconsideration granted. The application is denied.


text:
    Henry HARRIS, Individually and on Behalf of his Minor Children, Shawn H. Harris, Trina M. Harris, Valencia M. Harris, Zina M. Harris and Ellein G. Harris; Vanessa M. Harris, Individually and on Behalf of her Minor Child, Catina Harris; Wayne J. Harris, Individually; Loretta Harris, Individually; and Henry Harris, Jr., Individually v. PIZZA HUT OF LOUISIANA, INC. and St. Paul Fire and Marine Insurance Company.
    No. 84-C-0304.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Henry Harris, Individually and on Behalf of his Minor Children Shawn H. Harris, Trina M. Harris, Valencia M. Harris, Zina M. Harris and Ellein G. Harris; Vanessa M. Harris, Individually and on Behalf of her Minor Child, Catina Harris; Wayne J. Harris, Individually; Loretta Harris, Individually; and Henry Harris, Jr., Individually, applying for writs of certiora-ri or review, to the Fourth Circuit Court of Appeal, Nos. CA-0739, CA 0740, from Civil District Court, Parish of Orleans, Nos. 79-19035, 79-19036, Division E.

Case below: 445 So.2d 756.

Granted.


author: WATSON, J.,

text:
    Arthur E. WILLIAMS, et al. v. ST. PAUL INSURANCE COMPANIES, et al.
    No. 84-CC-0453.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re St. Paul Insurance Companies, et al., applying for supervisory jurisdiction from denial of writs to the Fourth Circuit Court of Appeal, Parish of Orleans, No. C-1842; Civil District Court, No. 78-1482, Division “I”.

Granted. Judgment of trial judge reversed. Objections of relevancy may be made to questions asked of a witness at the time of trial.

WATSON, J.,

concurring. In any event the party is entitled to proffer the witness’ testimony for consideration on appeal.


text:
    STATE of Louisiana ex rel. Lionel DUGAR v. CRIMINAL DISTRICT COURT, SEC. “B”, PARISH OF ORLEANS, STATE OF LOUISIANA.
    No. 84-KH-0216.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Lionel Dugar, applying for remedial writ to the Criminal District Court, Parish of Orleans, No. 258-943.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Kevin FORD v. STATE of Louisiana.
    No. 84-KH-0270.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Kevin Ford, applying for remedial writs, Orleans Parish Criminal District Court, No. 293-078; Court of Appeal, Fourth Circuit, No. K-1174.

Denied. The relator has misconstrued the action of the court of appeal, and must file in the district court for relief.


text:
    Reinhard BAACH v. Glenn D. CLARK; Protective Casualty Insurance Co. and State Farm Insurance Company. Glenn D. CLARK v. Reinhard BAACH.
    No. 84-C-0326.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Reinhard Baach, applying for writ of certiorari to the Fifth Circuit Court of Appeal, Nos. 83-CA-413 and 83-CA-414, from the Twenty-ninth Judicial District Court, Parish of St. John, Nos. 12785 and 13081.

Case below: 442 So.2d 514.

Denied.

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


text:
    STATE of Louisiana v. Jesse PENDERGIST, III.
    No. 84-K-0349.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Jesse Pendergist, III., applying for writ of certiorari, to the First Circuit Court of Appeal, No. 83 KA 0712, Parish of East Baton Rouge, to the Nineteenth Judicial District Court, No. 181169, Section “I”.

Case below: 444 So.2d 306.

Denied.

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


text:
    STATE of Louisiana v. Lawrence J. MILLER, Jr.
    No. 84-KK-0396.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Lawrence J. Miller, Jr., applying for writ of certiorari or review, to the Eighteenth Judicial District Court, Parish of Iberville, No. 1905-83, from the First Circuit Court of Appeal, No. KW-83/1303.

Relator’s application is now timely filed. Upon consideration the application is denied.

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


text:
    STATE of Louisiana v. Mike PAPPAS and Melissa Dauzat.
    No. 84-KK-0408.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re State of Louisiana, Through the District Attorney Harry F. Conniek, applying for writ of certiorari, to the Fourth Circuit Court of Appeal, No. K-1732; to the Parish of Orleans, Criminal District Court, Section “E”, No. 297-303.

Case below: 446 So.2d 523.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Patrick B. JOYNER.
    No. 84-K-0414.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Patrick B. Joyner, applying for writ of certiorari, or writ of review, to the Court of Appeal, Third Circuit, No. CR83-739; to the Thirty-sixth Judicial District Court, Parish of Beauregard, No. CR-811-812-82.

Case below: 445 So.2d 179.

Denied.


text:
    ADOPTION OF Alexa Renee KITLER v. Sheryl Ann KITLER.
    No. 84-C-0420.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Alexa Renee Kitler, applying for writ of certiorari or review, to the Third Circuit Court of Appeal, No. 83-277, from the Fourteenth Judicial District Court, Parish of Calcasieu, No. 82-5733.

Case below: 445 So.2d 202.

Denied.


text:
    STATE of Louisiana ex rel. Kennon C. DOMINGUE v. Hon. John R. MOUTON, Judge, 15th Judicial District Court, Parish of Lafayette, Lafayette, Louisiana.
    No. 84-KH-0423.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Kennon C. Domingue, applying for a writ of mandamus to the 15th Judicial District Court, Parish of Lafayette, No. 43968.

Denied.


text:
    Chris J. ROY v. Guy E. HUMPHRIES, Jr.
    No. 84-C-0427.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Chris J. Roy, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit, No. 83-340; Ninth Judicial District Court, Parish of Rapides, No. 125-685.

Case below: 445 So.2d 130.

Denied. The result is correct.


text:
    STATE of Louisiana v. Ronald Lee KELEMAN.
    No. 84-K-0429.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Ronald Lee Keleman, applying for supervisory and remedial writs to the Second Circuit Court of Appeal, No. 15,575-KA from the Fifth Judicial District Court, Parish of Richland.

Case below: 444 So.2d 1328.

Denied.


text:
    STATE of Louisiana v. Mary Lisa West MURPHY.
    No. 84-KK-0439.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Mary Lisa West Murphy, applying for supervisory writs of review, certiorari, prohibition and mandamus, to the Fourth Judicial District, Parish of Ouachita, No. M:52080; Court of Appeal, Second Circuit, No. 16294-KW.

Denied.


text:
    Ellis HULL v. Rayfield COLMAN, et al.
    No. 84-C-0440.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Ellis Hull, applying for writ of certiorari and/or review to the Fourth Circuit Court of Appeal, No. CA-1044, Parish of Orleans; Civil District Court, No. 81-691.

Case below: 446 So.2d 470.

Denied.

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


text:
    GIBBENS POOLS, INC. v. Mr. & Mrs. John William CORRINGTON.
    No. 84-C-0443.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Gibbens Pools, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. CA 1048; Civil District Court for the Parish of Orleans, No. 81-8447.

Case below: 446 So.2d 420.

Denied.


text:
    James L. WILLIAMS et ux. et al. v. AIRPORT APPLIANCE & FLOOR COVERING et als. and Other Consolidated Cases.
    No. 84-C-0294.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Exxon Corporation, applying for writ of certiorari and review to the Second Circuit Court of Appeal, Nos. 15,879-CA; 15,880-CA; 15,881-CA; 15,882-CA, from the Fourth Judicial District Court, Parish of Ouachita, Nos. 114054; 116710; 117711 and 116711.

Case below: 445 So.2d 764.

Denied.


text:
    James L. WILLIAMS, et ux., et al. v. AIRPORT APPLIANCE & FLOOR COVERING, INC., et al. (and other consolidated cases).
    No. 84-C-0354.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Roberts Consolidated Industries, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Nos. 15,879-CA; 15,880-CA; 15,881-CA; 15,8820-CA; 4th Judicial District Court, Ouachita Parish, Nos. 114054; 116710; 117711 and 116712.

Case below: 445 So.2d 764.

Denied.


text:
    Lou Willie SIMMONS v. Haas WHITTINGTON, Jr., and Betty D. Whittington. Benny BELT v. Haas WHITTINGTON, Jr., and Betty D. Whittington.
    No. 84-C-0334.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Haas Whittington, Jr., and Betty D. Whittington, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Nos. 15876-CA, and 15877-CA; Fourth Judicial District Court, Ouachita Parish, Nos. 82-2687 and 82-3022.

Case below: 444 So.2d 1357; 444 So.2d 1361.

Denied.

BLANCHE, J., would grant the writ.


text:
    Jerome C. BENSON v. Howard Warren SEAGRAVES, Jeff Davis Electrical Cooperative Inc. and United States Fidelity and Guaranty Co.
    No. 84-C-0430.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Jerome C. Benson, applying for writs of certiorari, or review, to the Third Circuit Court of Appeals, Parish of Cameron, No. 82-163, from the Thirty-eighth Judicial District Court, No. 7530.

Case below: 445 So.2d 187.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Geraldine FRUGE.
    No. 84-K-0432.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Geraldine Fruge, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, No. CR 83-333; 31st Judicial District Court, Parish of Jefferson Davis, No. CR. 2247-80.

Case below: 445 So.2d 1293.

Denied.

2


text:
    Dr. James H. STEWART, M.D. v. Harold R. AINSWORTH, Jr., and American Employers Insurance Company.
    No. 84-C-0464.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Dr. James H. Stewart, M.D., applying for writ of certiorari, or writ of review, to the Fourth Circuit Court of Appeal, No. CA-1108; Parish of Orleans, Civil District Court, No. 80-13671.

Case below: 446 So.2d 474.

Denied.


text:
    Honie Ann HERQUET v. Norman P. FORD, Michael Chaisson, Affiliated Foods, Inc., Aetna Insurance Company and Ryder Truck Rental Service, Inc.
    No. 84-C-0446.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Honie Ann Herquet, applying for writ of certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. CA 1167; to the Civil District Court, Parish of Orleans, No. 81-11972.

Case below: 446 So.2d 434.

Denied.


text:
    STATE of Louisiana v. Bruce A. WILLIAMS.
    No. 84-KK-0447.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Bruce A. Williams, applying for writ of review, to the 9th Judicial District Court, Parish of Rapides, No. 205-929; 3rd Circuit Court of Appeal, No. K84-23.

Denied. Result is correct.


text:
    Peggy L. WHEELAHAN v. Mary Ann ELLER and Allstate Insurance Company.
    No. 84-C-0457.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Board of Trustees, State Employes Group Benefits Program, applying for writ of certiorari or review to the Fourth Circuit Court of Appeal, No. CA-1115, from Civil District Court, Parish of Orleans, No. 82-6223, Section “H”.

Case below: 446 So.2d 442.

Denied.

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


text:
    STATE of Louisiana ex rel. Willie E. CHATMAN v. The Honorable CLERK OF COURT, FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO, and/or Caddo Parish Indigent Defender Office, Frances Baker Jack, Attorney.
    No. 84-KH-0465.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Willie E. Chatman, applying for remedial writs to the First Judicial District Court, Parish of Caddo, No. 119225.

Denied.


text:
    STATE of Louisiana v. Philip A. FURINO.
    No. 84-KK-0592.
    Supreme Court of Louisiana.
    March 29, 1984.
   In re Philip A. Furino, applying for writ of certiorari, review, prohibition, mandamus and stay order to the 20th Judicial District Court, Parish of East Feliciana, First Circuit Court of Appeal, No. KW 84/0250.

Denied.


text:
    Wayne R. DUNNE, Individually and as Natural Tutor of/for the Minor Kevin Dunne v. ORLEANS PARISH SCHOOL BOARD and Charles V. and Lynne Cuccia, d/b/a Gay-Lynne School of Dance.
    No. 84-C-0305.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Orleans Parish School Board, applying for writ of certiorari and or review, to the Court of Appeal, Fourth Circuit, No. CA-0985; to the Civil District Court, Parish of Orleans, No. 81-7433.

Case below: 444 So.2d 1317.

Granted.

DENNIS, WATSON and LEMMON, JJ., would deny the writ.


text:
    Arthur QUICK v. MURPHY OIL COMPANY, et al.
    No. 84-C-0391.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Murphy Oil Company, M.J. Leumas, Dave Thomas, and James O’Neal, Jr., applying for writ of certiorari or review to the Fourth Circuit Court of Appeal, No. 13258, from the Twenty-fifth Judicial District Court, Parish , of St. Bernard, No. 38-421.

Case below: 446 So.2d 775.

Writ denied. The result, remanding the case to the district court for further proceedings, is correct. We decline, however, to express an opinion at this stage of the proceeding as to whether the date of “contraction” can be established with sufficient legal certainty to hold that the cause of action arises at that time. Such a determination necessarily requires expert testimony explaining how such time, or period of time, can be established. Until such a record is before the court, the issue cannot be fairly resolved. See Owens v. Martin, 438 So.2d 1114 (La.1984).


text:
    Arthur QUICK v. MURPHY OIL COMPANY, et al.
    No. 84-C-0386.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re John Sonny Chutz, Leonard King, Elliot Smith and Camile Trahan, applying for writ of certiorari, prohibition and mandamus to the Fourth Circuit Court of Appeal, No. 13258 from the Twenty-fifth Judicial District Court, Parish of St. Bernard, No. 38-421.

Case below: 446 So.2d 775.

Writ denied. The result, remanding the case to the district court for further proceedings, is correct. We decline, however, to express an opinion at this stage of the proceeding as to whether the date of “contraction” can be established with sufficient legal certainty to hold that the cause of action arises at that time. Such a determination necessarily requires expert testimony explaining how such time, or period of time, can be established. Until such a record is before the court, the issue cannot be fairly resolved. See Owens v. Martin, 438 So.2d 1114 (La.1984).


text:
    Robert A. OTTERMANN v. Thurman W. GANUS.
    No. 84-C-0416.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Thurman W. Ganus, applying for writ of certiorari or review to the Fifth Circuit Court of Appeal, No. 83-CA-529, from the Twenty-fourth Judicial District Court, Parish of Jefferson, No. 277-606.

Case below: 444 So.2d 726.

Granted.


text:
    DELTA DEVELOPMENT CO., INC. v. George B. JURGENS, III et al.
    No. 84-C-0515.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Delta Development Co., Inc., applying for writ of certiorari and/or review to the Fourth Circuit Court of Appeal, No. CA-1007; 25th Judicial District Court, Parish of Plaquemines, No. 5545.

Case below: 446 So.2d 783.

Granted.


text:
    James Patrick GALES v. DRESSER INDUSTRIES, INC.
    No. 84-C-0509.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Dresser Industries, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 83-CA-0299; 18th Judicial District Court, Parish of Iberville, No. 26082.

Case below: 444 So.2d 225.

Respondent’s motion to recuse is denied. Relator’s writ application is denied.


text:
    STATE of Louisiana ex rel., Bennie Ray CAIN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1362.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Bennie Ray Cain, applying for writ of certiorari and habeas corpus to the First District Court, Parish of Caddo, No. 116623-HC.

Denied.


text:
    Mrs. Doris Jackson HOLMES et al. v. J. POTTHARST, Jr., et al.
    No. 83-C-2417.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Mrs. Doris Jackson Holmes, applying for writ of certiorari and/or review to the Fourth Circuit Court of Appeal, No. CA-0656; Civil District Court, Parish of .Orleans, No. 81-1937, Division “E”.

Case below: 438 So.2d 622.

Denied.


text:
    STATE of Louisiana ex rel. John Charles STEIN, Jr. v. Hon. C.J. BOLIN, Jr., Judge.
    No. 83-KH-2560.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re John Charles Stein, Jr., applying for writ of mandamus, from the Second Circuit Court of Appeal, Parish of Caddo, No. 16090-KH, to the 1st Judicial District Court, Nos. 94-047 and 94-048.

Denied. Moot.


text:
    STATE of Louisiana v. Clay C. FREEMAN.
    No. 84-KO-0160.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Clay C. Freeman, applying for writ of certiorari, to the First Circuit Court of Appeal, No. 83-KA-0482; 16th Judicial District Court, Parish of St. Mary, No. 111221.

Case below: 444 So.2d 243.

Denied.


text:
    ACADIAN HERITAGE REALTY, INC. v. The CITY OF LAFAYETTE.
    No. 84-C-0381.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re The City of Lafayette, applying for writ of certiorari, and/or review to the Third Circuit Court of Appeal, No. 83-242; 15th Judicial District Court, Parish of Lafayette, No. 795222-B.

Case below: 446 So.2d 375.

Denied.

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


text:
    SUCCESSION of Knowles M. TUCKER.
    No. 84-C-0431.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Vivian C. Tucker, applying for writ of review to the Third Circuit Court of Appeal, No. 83-948, from the Sixteenth Judicial District Court, Parish of Iberia, No. 11360.

Case below: 445 So.2d 510.

Denied.

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


text:
    Patricia MORRIS v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 84-C-0442.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re New Orleans Public Service, Inc., applying for writ of certiorari to the Fourth Circuit Court of Appeal, No. CA-1122, from the Civil District Court, Parish of Orleans, No. 81-7038.

Case below: 446 So.2d 457.

Denied.

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


text:
    STATE ex rel. Walter JINKS v. 19TH JUDICIAL DISTRICT COURT.
    No. 84-KH-0449.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Walter Jinks, applying for writ of mandamus, from the Nineteenth Judicial District Court, Parish of East Baton Rouge.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Elvis BROOKS v. Ross MAGGIO, Jr. Warden, Louisiana State Penitentiary.
    No. 84-KH-0475.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Elvis Brooks, applying writ of mandamus to Criminal District Court, Parish of Orleans, No. 261-032, Sec. “G”.

Denied. Moot.


text:
    Raphael J. JONES, III v. Lawrence P. BOURGEOIS.
    No. 84-C-0479.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Raphael J. Jones, III, applying for writ of certiorari or review to the Fourth Circuit Court of Appeal, No. 80-124403; Civil District Court, Parish of Orleans, No. 80-14403.

Denied.


text:
    STATE of Louisiana ex rel. Wayne A. ADAMS v. Hon. Frank SHEA, Judge, Orleans Criminal District, Section “G”, Parish of Orleans, State of Louisiana.
    No. 84-KH-0484.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Wayne A. Adams, applying for remedial writs to the Criminal District Court, Section “G”, Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana v. Curt B. McDonald.
    No. 84-KK-0489.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Curt B. McDonald, applying for remedial writs to the Fourth Judicial District Court, No. 340, for the Parish of Oua-chita, from the Second Circuit Court of Appeal, No. 16306-KW.

Denied.


text:
    C & C INVESTMENTS (Meditrust, Inc. and Carolyn, Ltd.) v. Lazard GOLDBLUM (Lazard, Inc.).
    No. 84-C-0491.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re C & C Investments (Meditrust, Inc. and Carolyn, Ltd.), applying for writ of certiorari or review, to the Fifth Circuit Court of Appeal, Nos. 83-CA-359, 83-CA-459; 24th Judicial District Court, Parish of Jefferson, Nos. 272-916 and 268,794.

Case below: 444 So.2d 642.

Denied.


text:
    William Herbert HILL v. Margaret Ann Hines, wife of William Herbert HILL.
    No. 84-CC-0497.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re William Herbert Hill, applying for writs of review, certiorari, and mandamus, Civil District Court, Parish of Orleans, No. 79-7449; Court of Appeal, Fourth Circuit, No. C-2007.

Denied.

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


text:
    In re Theresa Nichol MURRAY.
    No. 84-C-0500.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Donald K. Murray, applying for writ of certiorari or review, to the Fifth Circuit Court of Appeal, No. 83-CA-514; 29th Judicial District Court, Parish of St. John the Baptist, No. J-1859.

Case below: 445 So.2d 21.

Denied.


text:
    STATE of Louisiana v. Gregory FULLER.
    No. 84-K-0511.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Gregory Fuller, applying for writ of certiorari and/or review to the Second Circuit Court of Appeal, No. 15643-KA; 4th Judicial District Court, Parish of Oua-chita, No. 40882.

Case below: 446 So.2d 799.

Denied.


text:
    Oscar DAVILA, etc., et al. v. SOUTHERN PACIFIC TRANSPORTATION CO., etc., et al.
    No. 84-C-0512.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Parish of Jefferson, applying for writ of review, to the Court of Appeal, Fifth Circuit No. 83-CA-280; 24th Judicial District Court, Parish of Jefferson, No. 229-538.

Case below: 444 So.2d 1293.

Denied.


text:
    STATE of Louisiana v. Zeke DAVIS.
    No. 84-KK-0514.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Zeke Davis, applying for writ of certiorari, prohibition and mandamus to the 21st Judicial District Court, Parish of Tan-gipahoa, Nos. 47474 and 47473; First Circuit Court of Appeal, No. KW-84/0151.

Denied.


text:
    Mr. and Mrs. Earl BOUDREAUX v. ULTRAMAR ENTERPRISES, INC.
    No. 84-OC-0560.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Ultramar Enterprises, Inc., applying for writ of certiorari or review to the Fifth Circuit Court of Appeal, No. 84-CA-93, from the Twenty-fourth Judicial District Court, Parish of Jefferson, No. 272-515.

Denied.


text:
    STATE of Louisiana ex rel. Ronald R. RYALL v. STATE of Louisiana.
    No. 83-KH-1373.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Ronald R. Ryall, applying for remedial writ, Criminal District Court, Parish of Orleans, Section ‘‘I”, No. 287871.

Denied.


text:
    Aline Segura TUCKER v. DISTRICT ATTORNEYS’ RETIREMENT SYSTEM, et al.
    No. 84-C-0404.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Aline Segura Tucker, applying for writ of certiorari or review to the Third Circuit Court of Appeal, No. 83-440, from the Fifteenth Judicial District Court, Parish of Lafayette, No. 82-1158-H.

Case below: 445 So.2d 514.

Denied.

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


text:
    Aline Segura TUCKER v. DISTRICT ATTORNEY’S RETIREMENT SYSTEM and Vivian Crowson Magette Tucker.
    No. 84-C-0428.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re District Attorney’s Retirement System and Vivian Crowson Magette Tucker, applying for writ of certiorari and/or review to the Third Circuit Court of Appeal, No. 83-440; 15th Judicial District Court, Parish of Lafayette, No. 82-1158-H.

Case below: 445 So.2d 514.

Denied.

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


text:
    Elaine Roussel, wife of/and Gaskin James ROUSSEL v. Eartha J. BERRYHILL, et al. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Eartha J. BERRYHILL.
    No. 84-C-0517.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Louisiana Department of Transportation & Development, applying for writ of certiorari, or writ of review, to the Court of Appeal, Fifth Circuit, Nos. 83-CA-533 and 83-CA-534; Parish of St. James, Twenty-third Judicial Circuit Court, No. 13587 and 13626.

Case below: 444 So.2d 1286.

Denied.

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


text:
    STATE of Louisiana v. Junius LAMBERT.
    No. 84-KK-0603.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Junius Lambert, applying for writ of review to the 15th Judicial District Court, Parish of Lafayette, Third Circuit Court of Appeal, No. K84-219.

Granted. Bond reduced to $25,000.00 on the showing made. Applicant may apply for further relief if warranted.

WATSON, J.,

declines to join the order to reduce this apparently excessive bond without obtaining a response from the District Attorney.


text:
    STATE of Louisiana ex rel. Elmo Patrick SONNIER v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 84-KP-0662.
    Supreme Court of Louisiana.
    April 4, 1984.
   In re Elmo Patrick Sonnier, applying for stay of execution, supervisory writs, and writ of habeas corpus, to the Sixteenth Judicial District Court, Parish of Iberia, No. 106918.

Denied. After considering all issues raised and arguments made, we find relator’s contentions to be without merit.


text:
    STATE of Louisiana v. Roy YATES.
    No. 84-KK-0702.
    Supreme Court of Louisiana.
    April 10, 1984.
   In re Roy Yates, applying for writs of certiorari, prohibition and mandamus, and stay order, 24th Judicial District Court, Parish of Jefferson, No. 84-67; Court of Appeal, Fifth Circuit, No. 84-K-182.

Denied.


text:
    STATE of Louisiana v. Cessen JAMES.
    No. 84-KH-0695.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Cessen James, applying for remedial writs to the Ninth Judicial District Court, Parish of Rapides.

Granted for the sole purpose of transferring to the Court of Appeal, Third Circuit.


text:
    STATE of Louisiana v. Timothy Lee HARDESTY.
    No. 84-KH-0204.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Timothy Lee Hardesty, applying for writ of mandamus from the Criminal District Court, No. 266-690, Parish of Orleans.

Granted and transferred to the district court for action.


text:
    STATE of Louisiana, ex rel. Donald Ray ROBINSON v. Ross MAGGIO, Warden, Louisiana State Penitentiary and Graydon K. Kitchens, Jr., Judge, 26th Judicial District Court, et al.
    No. 84-KH-0525.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Donald Ray Robinson, applying for writ of mandamus, 26th Judicial District Court, Parish of Bossier, No. 54874.

Granted and transferred to the district court for action.


text:
    STATE of Louisiana, ex rel. Joe L. COLLINS v. Honorable Stephen A. DUCZER, Judge, Section “A”, 22nd Judicial District Court, Parish of St. Tammany, Covington, Louisiana.
    No. 83-KH-1442.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Joe L. Collins, applying for writ of certiorari, prohibition, mandamus, and ha-beas corpus, to the 22nd Judicial District Court, Parish of St. Tammany, No. 57-721.

Denied in part: Not considered in part. Petitioner’s contention that his guilty plea was induced by an unkept promise that he would receive a maximum sentence of 15 years (15 years for forcible rape and 5 years for possession of stolen things, to run concurrent), instead of the 20 years actually imposed (20 years for forcible rape and 5 years for possession of stolen things, to run concurrent), is not here considered. Petitioner is reserved the right to reassert that claim in this Court after it has been properly presented to the district court. Otherwise, petitioner’s writ application is denied.


text:
    STATE of Louisiana v. Earl E. CLARK and Bret K. Verret.
    No. 84-KK-0579.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Earl E. Clark, et al., applying for writ of review, to the Third Circuit Court of Appeal, No. K-83-1168, 9th Judicial District Court, Parish of Rapides, No. 207813.

Not considered. Not timely filed.


text:
    STATE of Louisiana, ex rel. Pierman SPOTTSVILLE v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1277.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Pierman Spottsville, applying for remedial writ, Ninth Judicial District Court, Parish of Rapides, No. 37581.

Denied.


text:
    STATE of Louisiana ex rel., Garry C. HEATLEY v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-1283.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Garry C. Heatley, applying for writs of certiorari, prohibition, mandamus and habeas corpus, 19th Judicial District Court, Parish of East Baton Rouge, No. 4-7-76-956.

Denied.


text:
    STATE of Louisiana ex rel., Henry ANDERSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1284.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Henry Anderson, applying for writ of certiorari, Criminal District Court, Parish of Orleans, No. 260-387, Sect. C.

Denied.


text:
    STATE of Louisiana, ex rel. Francis M. OXLEY v. Don HATHAWAY, Sheriff, Caddo Parish and William Guste, Attorney General, State of Louisiana.
    No. 83-KH-1367.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Francis M. Oxley, applying for writ of habeas corpus, Parish of Caddo, No. 123841.

Denied.


text:
    STATE of Louisiana ex rel. Charles QUINN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1368.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Charles Quinn, applying for remedial writ to the Criminal District Court, Section “J” Parish of Orleans, No. 251-913.

Denied.


text:
    STATE of Louisiana ex rel. Otis MINGO v. Ross MAGGIO, Warden.
    No. 83-KH-1423.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Otis Mingo, applying for certiorari writ from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 8-80-329, Criminal Section III.

Denied.


text:
    STATE of Louisiana, ex rel. Vecy BATES, Jr. v. James A. KITCHEN, Clerk of Court, Sixth Judicial District, Tensas Parish.
    No. 83-KH-1458.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Vecy Bates, applying for writ of mandamus, Parish of Tensas, Nos. 29-822, 29-823, 6th Judicial District Court.

Denied.


text:
    STATE of Louisiana ex rel. Barbara HICKERSON v. Johnnie JONES, Warden, Hon. Charles R. Ward, Judge, Hon. Miriam Waltzer, Judge.
    No. 84-KH-0198.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Barbara Hickerson, applying for writ of mandamus, to Criminal District Court, Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Wayne Laurence MARTIN v. Mr. Rudolph F. BECKER, III, Judge, Criminal District Court, et al.
    No. 84-KH-0357.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Wayne Laurence Martin, applying for remedial writs to Criminal District Court, Parish of Orleans, No. 267-437.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Michelle Yevette FRAYER v. Lemmie O. HIGHTOWER, Judge.
    No. 84-KH-0474.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Michelle Yevette Frayer, applying for remedial writ to the Fourth Judicial District Court, Parish of Ouachita, No. 39017.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Charles DAVIS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0502.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Charles Davis, applying for writ of mandamus from 31st Judicial District Court, Parish of Jefferson Davis, No. CR-592-79.

Denied. The judgment on relator’s application was rendered on April 5, 1984.


text:
    STATE of Louisiana ex rel. Willie R. WEST v. Frank HOWARD, Sheriff.
    No. 84-KH-0521.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Willie R. West, applying for remedial writs to the Thirtieth Judicial District Court, for the Parish of Vernon, No. 36052.

Denied.


text:
    STATE of Louisiana v. Lonnie L. TAYLOR.
    No. 84-KK-0522.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Lonnie L. Taylor, applying for writ of certiorari, review, mandamus, prohibition and stay order to the Second Circuit Court of Appeal, No. 16350-KW; 4th Judicial District Court, Parish of Ouachita, No. M:52041.

Denied.

DENNIS, J., would grant an evidentiary hearing on the motion to quash.


text:
    Joyce Faciane Wife of and John MARTIN v. SOUTHERN BAPTIST HOSPITAL OF NEW ORLEANS, INC.
    No. 84-C-0523.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Southern Baptist Hospital of New Orleans, Inc., applying for writ of certiorari to the Fourth Circuit Court of Appeal, No. CA-0926, from the Civil District Court, Parish of Orleans, No. 82-6275.

Denied.

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


text:
    Emelda STYLES v. Harold EVANS, Glen Houston and New Orleans Public Service, Inc.
    No. 84-C-0527.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Emelda Styles, applying for writ of certiorari to the Fourth Circuit Court of Appeal, No. CA-0553, from the Civil District Court, Parish of Orleans, No. 80-5156.

Denied.

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


text:
    SPEE DEE OIL CHANGE NO. 2, INC. v. NATIONAL UNION FIRE INSURANCE CO.
    No. 84-C-0530.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re National Union Fire Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. CA-0980; Civil District Court, Parish of Orleans, No. 81-8930.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Johnny Lee YOUNGBLOOD v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1415.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Johnny Lee Youngblood, applying for remedial writ from the Twentieth Judicial District Court, Parish of West Felicia-na, No. 9980-A, Division B.

Denied.


text:
    STATE of Louisiana ex rel. David Lee ALFRED v. Judge KLINE, 20th Judicial District Court, Parish of West Feliciana.
    No. 84-KH-0550.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re David Lee Alfred, applying for writ of mandamus, to the 20th Judicial District Court, Parish of West Feliciana, No. W-72-12-2.

Denied. Moot.


text:
    Mary DANOVE v. CITY OF NEW ORLEANS.
    No. 84-C-0564.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re City of New Orleans, applying for writ of review to the Court of Appeal, No. CA-0799; Parish of Orleans, Civil District Court.

Denied.


text:
    STATE of Louisiana v. Dale P. BERTRAND.
    No. 84-KK-0570.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Dale P. Bertrand, applying for supervisory writs to the Lafayette City Court, No. DT-83-808; to the Court of Appeal, Third Circuit, No. K84-195.

Denied.


text:
    Roch E.E. deMONTLUZIN, III v. Edith Eskrigge, Wife of Roch E.E. de MONTLUZIN, III.
    No. 84-CC-0575.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Edith Eskrigge deMontluzin, applying for Remedial Writs, Civil District Court, Parish of Orleans, No. 79-13722; Court of Appeal, Fourth Circuit, No. C-1971.

Denied.

DIXON, C.J., would grant and remand to the district court to try the rule.


text:
    Iris Moore MILLER and Charles Miller, Jr. v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS, Drs. Brady, Ghiya, Halsey, Cohen, Russel, Bourque and Bromberg.
    No. 84-CC-0584.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Charity Hospital of Louisiana at New Orleans, applying for writ of certiora-ri and mandamus, to the Fourth Circuit Court of Appeal, No. C-1900, Civil District Court, Parish of Orleans, No. 83-2095.

Denied.


text:
    STATE of Louisiana ex rel. Freddie DUHON v. Ross MAGGIO, Jr., Warden, et al.
    No. 84-KH-0616.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Freddie Duhon, applying for supervisory writ to the Fourteenth Judicial District Court, Parish of Calcasieu, No. 5981-74.

Denied.


text:
    STATE of Louisiana ex rel. James M. GRANGER, Jr. v. 20TH JUDICIAL DISTRICT COURT, PARISH OF WEST FELICIANA.
    No. 84-KH-0637.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re James M. Granger, Jr., applying for writ of mandamus to the Twentieth Judicial District Court, No. 8830, Division “B”, Parish of West Feliciana.

Denied. Moot.


text:
    STATE of Louisiana ex rel. John LUWISCH v. STATE of Louisiana.
    No. 84-KH-0643.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re John Luwisch, applying for remedial writs to the Twenty-fourth Judicial District Court, Parish of Jefferson.

Denied. Appeal is pending in the Court of Appeal, Fifth Circuit.


author: SHORTESS, Judge.

text:
    BILLIOT BROTHERS, INC. v. Maurice BERCIER.
    No. 83 CA 0285.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Kim P. Stansbury, Morgan City, F. Pierre Livaudais, Covington, for plaintiff, appellant.
    L. Jay McCreary, Slidell, for defendant, appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

This is an appeal from a judgment which dismissed an action to annul a default judgment brought by Billiot Brothers, Inc. (appellant). Appellant claims that Raymond Billiot, one of its registered agents for service of process, was not personally served with the petition and citation as required by law in the suit entitled, “Maurice Bercier v. Billiot Brothers, Inc.,” Number 70157 on the docket of the 22nd Judicial District Court, St. Tammany Parish, Louisiana. The trial judge dismissed appellant’s action of nullity without assigning reasons. The record reveals that the citation and copy of the petition was served on July 19, 1982, on Billiot Brothers, Inc., through Raymond Billiot by Sgt. D. Slade.

Raymond Billiot testified that he was President of Billiot Brothers, Inc.; that his domicile was in Folsom, Louisiana; that appellant’s principle place of business was in Kenner, Louisiana; that he was not served with a copy of the petition; that the first time he saw the suit papers was at his office in Kenner, as they were included in the mail he brought from home; that he guessed it could have been two weeks to a month after the papers were left at his house before he saw them; that he was not at his residence during the day; that appellant was involved in the swimming pool installation business; that in the summer his work day began around 7:00 a.m. and sometimes lasted until 10:00 or 11:00 p.m., but usually he returned home from work around 6:30 or 7:00 p.m.

Shelia Billiot, Raymond Billiot’s wife, testified that while at home she got a copy of the petition from a deputy she could not identify; that she put the papers on the bar with the rest of Raymond’s mail; that she did not say anything about the papers to him because at that time of the year he worked until 10:00 or 11:00 p.m., and many times she was in bed when he returned home.

Aubrey Billiot, Raymond’s brother and Vice President of appellant corporation, testified that he received the suit papers from Raymond a few weeks or a month ago; and that when he got the papers he forwarded them to his lawyer.

Unfortunately, Deputy Slade was deceased at the time of trial. Shirley Adkins, the lieutenant in charge of the St. Tammany Parish Sheriffs Office Civil Division, testified as to the normal practices and procedures regarding service of process. Lt. Adkins testified that it was not “out of order” for a line to be drawn through “in person” and “at domicile” on the citation form because the return indicated that, “[t]his was served through Raymond Billi-ot. The notation was put right in here.”

A return of citation is prima facie evidence of service. La.C.C.P. arts. 324, 1292; La.R.S. 13:3471(5); Hood Motor Company, Inc. v. Lawrence, 334 So.2d 460 (La.App. 1st Cir.1976), writ denied, 338 So.2d 288 (La.1976); Martinez v. Silverman, 288 So.2d 88 (La.App. 4th Cir.1974); Smith v. Crescent Chevrolet Co., 1 So.2d 421 (La.App. 1st Cir.1941). The return of the officer on the citation is given great weight, and the burden rests on the party attacking it to establish otherwise by clear and convincing evidence. Canterberry v. Slade Brothers, 282 La. 1081, 96 So.2d 4 (1957); League Central Credit Union v. Gagliano, 336 So.2d 931 (La.App. 4th Cir.1976); Spinks v. Caddo-Bossier Services, Inc., 270 So.2d 604 (La.App. 2nd Cir.1972).

The trial judge obviously felt that appellant failed to rebut the presumption of validity given to the return. We agree. Our review of the record reveals that Raymond Billiot denied ever being served, and his wife admitted receiving the service of process. We also note that there was a discrepancy between Raymond and Shelia Billiot’s testimony and that of Aubrey Billi-ot. Shelia Billiot said that she was served during the summer months because she did not discuss the matter with her husband since she was usually in bed by the time he returned at night. The citation indicates that service was made on July 19. Raymond Billiot indicated that a week or two or possibly as long as a month might pass before he took the mail that accumulated at his house to his office. He testified that when he took the mail to the office, went through it, and found the suit, he immediately turned the papers over to his brother, Aubrey. Aubrey Billiot, however, testified that he did not know of the papers until “a few weeks ago. I guess a month ago, something like that.” Additionally, appellant’s petition indicates that a judgment by default was taken on August 23, 1982. This suit to annul was filed on October 13, 1982, and the rule to show cause was originally fixed for October 27, 1982. Raymond Billiot testified that he was served with a copy of the notice of default judgment upon his return from his gall bladder surgery which hospitalized him beginning September 30, 1982. He also testified that he had taken the papers to his office well in advance of his operation.

Considering the entire record, we find that the trial judge was not clearly erroneous in dismissing appellant’s suit. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We affirm the decision of the trial judge. Costs of this appeal are taxed to appellant.

AFFIRMED.

      . A photocopy of the return is attached.

      . The trial was held on November 10, 1982.