author: WALDEN, Judge.

text:
    Robert C. KATOSKI, individually and for the Use and Benefit of Liberty Mutual Insurance Company, and State Paving Corporation, individually and for the use and benefit of Liberty Mutual Insurance Company, Appellants, v. FLORIDA POWER AND LIGHT COMPANY, Appellee.
    No. 83-1949.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.

      William R. Hussey, Fort Lauderdale, for appellants.
    Aimee D. Stein, Miami, for appellee.
   WALDEN, Judge.

This is an appeal from an order dismissing a negligence action for failure to prosecute. We affirm.

Involved is the administration of Florida Rule of Civil Procedure 1.420(e):

(e) Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.

It appearing that there was no record activity for a period of substantially more than one year (actually about 16 months), the trial court entered a sua sponte order on July 14, 1983, entitled, “Sua Sponte Motion To Dismiss For Failure To Prosecute Notice of Hearing and Final Order of Dismissal.” It provided a hearing date on August 8, 1983, in case a written showing of good cause as to why the action should not be dismissed was filed at least five days prior thereto. Otherwise, that is to say, if no such good cause statement was filed, the cause would stand dismissed. It further provided:

The mailing of a copy of this Motion, Notice and Order to each of the addresses listed below shall constitute service of notice of said hearing, and the certificate of the secretary of the undersigned Judge of such mailing shall be take [sic] as prima facie proof thereof.

It was certified that copies were mailed to all concerned on July 14, 1983. See Fla.R. Civ.P. 1.080(b). It is not denied by anyone that such copies were so mailed and duly received.

Thereafter, on July 28, 1983, the plaintiff filed an affidavit of good cause, plus other pleadings. The hearing was conducted on August 8, 1983, as scheduled and the order on appeal which dismissed the action was entered on the same date, August 8, 1983.

So, one might say, what is the problem? Its fountainhead is found in the fact that the trial court’s sua sponte Motion to Dismiss, etc., while signed and served on July 14, 1983, was not filed with the clerk until August 8, 1983, and not recorded until August 10, 1983.

Appellants argue that the one year period prescribed by Florida Rule of Civil Procedure 1.420(e) is to be measured by calculating the time between the date of the last record activity and the date of the filing of the motion to dismiss. Thus, they say that they caused to be reflected record activity which prevented dismissal because of their filings on July 28, 1983, which filings pre-dated the filing of the court’s motion to dismiss on August 8, 1983. While this would normally be the rule or modus operandi where the adversary party, in this case the defendant, filed the motion to dismiss, we hold under the circumstances of this case that such approach or me-morializations are not applicable.

The differences that we deem significant are that here the court itself took note of the record inactivity and energized Florida Rule of Civil Procedure 1.420(e). Moreover, and most importantly, the plaintiffs actually received a copy of the court’s order recording the non-activity reflected on the record prior to the time they filed their affidavit of good cause and other pleadings. Their actual receipt of the motion gives them even more notice and greater due process than would be the case if the court (or the adversary party) filed the motion to dismiss and then served a copy on plaintiffs by mail. Thus, we are of the opinion that the plaintiffs here cannot be heard to complain because the sequences here were reversed, that is to say, they actually received a copy of the motion taking note of the non-activity before same was filed, rather than having the motion filed first and thereafter to have same served on plaintiffs by mail.

We hold that no error or abuse of discretion has been demonstrated as to this matter.

Secondarily, appellants urge that they demonstrated good cause so as to foreclose the dismissal. Counsel’s affidavit reflected the following:

1. That over the past five or six months he has been diligently pursuing information through old records of the Department of Transportation, and interviews with some of its personnel, to identify those persons who were present at pre-construction meetings in connection with this construction project, where the needs for the relocation of power lines, phone lines, cables and pipe lines were considered and discussed.
2. That a substantial portion of that investigation might be compared to trying to nail jello to the wall. However, by May of 1983 undersigned counsel had assembled as much information as he felt that those sources could provide.
3. That undersigned counsel was out of town, except for three days, from May 27th to June 28th, and upon his return, had two approximately week long trials scheduled for trial weeks beginning July 12th and July 18th. That both cases, after substantial trial preparation, were continued at the last minute.
4.That this case was on undersigned counsel’s desk to begin scheduling depositions and other discovery at the time of the arrival of the Court’s Sua Sponte Motion to Dismiss.

We hold that the good cause here asserted was insufficient upon authority of F.M.C. Corp. v. Chatman, 368 So.2d 1307 (Fla. 4th DCA), cert. denied, 379 So.2d 203 (Fla.1979).

Affirmed.

HERSEY and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    C.A. HANSEN CORPORATION, Appellant, v. AETNA INSURANCE COMPANY, Appellee.
    No. 83-2200.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.

      William McCarthy and Brett Rivkind of Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, for appellant.
    Thomas D. Lardin of Weaver, Weaver & Lardin, P.A., Fort Lauderdale, for appellee.
   DOWNEY, Judge.

This is a timely appeal from a final judgment allowing Aetna Insurance Company, appellee, to recover $36,691.43 plus costs from another insurer, C.A. Hansen Corporation, appellant, in a subrogation action.

Aetna filed suit as subrogee of A.D. Watson, seeking to collect full reimbursement, or in the alternative a proportionate contribution, of monies paid to A.D. Watson by Aetna under the terms of a marine insurance policy issued by Aetna to Watson covering a 1973, 58-foot, Hatteras motor vessel named “The Christine.” Contribution was sought pursuant to a policy of insurance allegedly obtained by Watson’s agents/representatives from C.A. Hansen covering the same motor vessel. Aetna alleged that at the time of loss dual coverage was afforded to Watson by virtue of each of the policies in question. The complaint described the theft of the motor vessel on or about September 13, 1979, and subsequent recovery of the vessel, which had been damaged in the amount of $68,-800.74. Payment was made by Aetna to Watson in that amount in accordance with the Aetna policy of insurance in effect at that time.

Hansen answered the complaint and the matter was submitted to the trial court for decision without a jury. All of the evidence was submitted by deposition, affidavit and documents; no live testimony was adduced. From a judgment in favor of Aetna for approximately one-half of the damages allegedly sustained by the boat, Hansen has perfected this appeal.

The evidence reflected that A.D. Watson, a resident of St. Louis, Missouri, owned the motor vessel in question and kept it docked behind his Florida home in Fort Lauder-dale. Watson and Gary Clamp had been in a business together buying, repairing and selling boats. At the pertinent times involved herein Clamp was renting Watson’s home in Fort Lauderdale and taking care of the Hatteras. Clamp called Watson and suggested that they should charter the Hatteras for a deep sea diving trip, to which Watson agreed. However, Watson admonished Clamp not to leave port without additional insurance because he thought the present coverage with Aetna only covered coastal waters. Later, Clamp notified Watson that he was having some difficulty obtaining the additional coverage so Watson obtained a rider on his Aetna policy for coverage while operating in the Caribbean.

Meanwhile, Clamp allegedly proceeded to negotiate a charter for deep sea diving with a man named Benson who was advised of the necessity of procuring additional insurance to cover the boat. Benson contacted C.A. Hansen Corporation and obtained coverage in Watson’s name for “anticipated fishing trips in Caribbean waters.” Watson understood from Clamp that the diving trip was going across the state and down toward Mexico, approximately 400 miles out. The next thing Watson heard, about four weeks later, was that the boat had been stolen and it was located in St. Marks, Florida. Watson travelled to St. Marks and found the boat in damaged condition in possession of customs authorities. The damage to the boat was surveyed by a registered firm and Aetna paid Watson $68,800.74 therefor. Aetna then pursued its subrogation rights against Hansen.

During the course of this suit the parties took the depositions of Watson and Benson. Clamp was not heard from because he has disappeared. Watson recounts the facts generally as above described, except lie never met Benson and thus has no personal knowledge of the Benson-Clamp dealing or the purpose and direction of the trip which took the Hatteras to St. Marks from Fort Lauderdale. Watson testified concerning the damage to the boat as compared with its condition about one month prior to the charter. Some of his testimony regarding the boat’s condition is certain and some is vague. By contrast, the deposition of Benson relative to the condition of the boat at the time of the charter is definite and certain. He testified the boat was in better condition when docked at St. Marks than it was when he took it over for the charter. He said the boat was initially in bad condition and that during the six week trip through the Caribbean and Gulf he spent more time repairing the boat than travel-ling.

With regard to the chartering of the boat and procuring the insurance coverage from Hansen, the direct evidence comes from Benson’s deposition and the affidavit of Hansen’s secretary-treasurer. At the time of his deposition Benson was under the protection of the Federal Witness Protection Program, having been granted immunity for testifying about this and other drug smuggling operations. He testified in deposition that he and Clamp decided to engage in drug smuggling during the summer and fall; that from the very beginning Clamp was a party to the smuggling plan. Clamp directed Benson to obtain the insurance coverage, which he did while the boat was broken down in Fort Myers, Florida. The boat left Fort Lauderdale on a trip to the Grand Cayman Islands to transport 6,000 pounds of marijuana to Tallahassee. With Benson and Clamp aboard, they crossed Florida from Fort Pierce to Fort Myers, where Clamp was apparently put off the boat because he was an alcoholic suffering from delirium tremens, and Benson would not allow any alcohol on the boat. From Fort Myers the Hatteras went west and south of Cuba to the Grand Caymans, picked up the contraband and took it to Tallahassee. Shortly thereafter, Benson was apparently caught by law enforcement people.

Benson testified that he called Hansen and ordered the insurance coverage for Watson’s boat. Marilyn Yeager, secretary-treasurer of C.A. Hansen Corporation, stated by affidavit that Watson’s representative gave Hansen the instructions for the insurance to cover the boat for fishing trips to occur in Caribbean waters while Captain F.J. Benson was in control of the boat. On this record we have no difficulty in holding that Hansen would not have bound the coverage had it been advised by Benson that the boat was to be used for smuggling. Thus, the concealment of this fact from Hansen was material and should avoid the contract. Massachusetts Bonding & Insurance Co. v. Hoxie, 129 Fla. 332, 176 So. 480 (1937).

One of the documents offered into evidence at one of the depositions was a lease of the Hatteras between Watson and Benson. Both of them testified their signatures had been forged to the document; neither had ever signed it. According to Benson, the lease had been prepared in case “they were caught, so the boat would be saved from forfeiture for Watson.

The trial court was thus presented with uncontradicted testimony that Clamp, who was either Watson’s partner or agent vis a vis the handling of the Hatteras, was a party to the entire drug venture. Watson directed Clamp to obtain insurance coverage. Clamp directed Benson to obtain it, and Benson obtained the coverage in question here. While Aetna contends there was no agency relationship between Watson and Benson, it is clear that there was because Clamp had full authority to charter the boat and was ordered to obtain the very coverage involved, and Benson obtained the insurance for Clamp. If Watson were the one claiming coverage under the Hansen policy certainly he could not successfully contend that any misrepresentations made by Benson in procuring the policy could not be visited on him. One who deals through an agent in making a contract will not be allowed to retain the favorable and reject the unfavorable part of the contract. Proodian v. Plymouth Citrus Growers Association, 152 Fla. 684, 13 So.2d 15 (1943); C.Q. Farms, Inc. v. Cargill Inc., 363 So.2d 379 (Fla. 1st DCA 1978); Massachusetts Bonding & Insurance Co. v. Hoxie, 129 Fla. 332, 176 So. 480 (1937). Likewise, Aetna, standing in Watson’s shoes as subrogee, cannot assume that position.

Remembering that the trial judge did not see or hear the witnesses in this case, we are not bound in our appellate review by the customary strictures regarding credibility and weight of the evidence. The general rule to the effect that a judgment entered by a trial court on evidence will on appeal be presumed correct until the presumption has been clearly overcome by the appealing party does not obtain to the same degree where the judgment is entered upon depositions, as it would where the trial court has seen and heard the witnesses testify. Sconyer v. Scheper, 119 So.2d 408 (Fla. 2d DCA 1960). See also West Shore Restaurant Corp. v. Turk, 101 So.2d 123 (Fla.1958); Harmon v. Harmon, 40 So.2d 209 (Fla.1949); Baker v. Baker, 388 So.2d 233 (Fla. 5th DCA 1980); Mills v. Ball, 380 So.2d 1128 (Fla. 1st DCA 1980); Mathews v. Kingsley, 100 So.2d 445 (Fla. 2d DCA 1958).

In view of the diminished presumption in favor of the trial court’s ruling, we hold the trial judge misconceived the legal effect of the evidence in this case in ruling in favor of Aetna. Accordingly, the judgment appealed from is reversed and the cause is remanded with directions to dismiss the complaint filed by appellee.

GLICKSTEIN, J., and GUNTHER, BOBBY W., Associate Judge, concur.


author: DELL, Judge.

text:
    Virginia A. JOHNSON, Appellant, v. David E. JOHNSON, Appellee.
    No. 83-2550.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.

      Edward G. Stephany of Marko, Stephany & Lyons, Fort Lauderdale, for appellant.
    John Daniel Nyce, Fort Lauderdale, for appellee.
   DELL, Judge.

Appellant challenges two non-final orders issued as a result of supplemental proceedings to enforce a final judgment of dissolution of marriage.

Shortly after entry of the final judgment, appellant moved to the state of California taking the parties’ minor child and certain items of the husband’s personal property with her. Appellee filed a motion to enjoin appellant from violating his right of access to the child and to establish his right of visitation. He subsequently filed another motion seeking to hold appellant in contempt for failure to comply with the personal property provision of the final judgment. A* master heard the evidence presented by both parties. The trial court approved the master’s finding and recommendations and entered an order directing appellant “to deliver” the items of personal property to appellee; and an order directing appellant to return the minor child to the state of Florida within thirty days.

Appellant asserts that the orders of the trial court constitute a modification of the final judgment and that appellee failed to make a proper showing to support a modification. She contends that the final judgment required appellee “to pick up” the items of personal property and not for her “to deliver” them. She also contends that since the final judgment did not contain a residence restriction that she had the right to remove the child to the state of California. We disagree with appellant on both points.

Appellant’s own actions now prevent appellee from picking up the personal property and the master concluded after hearing the evidence that appellant’s refusal to return the personal property to appel-lee constituted a wilful violation of the final judgment. Appellant has made no showing that the master’s findings were clearly erroneous or that the master misconceived the legal effect of the evidence. Thus, the trial court properly accepted the master’s conclusions. Dent v. Dent, 438 So.2d 903 (Fla. 4th DCA 1983); Sitomer v. Sitomer, 397 So.2d 373 (Fla. 4th DCA 1981). The trial court’s order directing her to deliver the personal property does not constitute a modification of the original final judgment. Instead, we view it as an order properly implementing the terms of the original final judgment and we affirm.

Next, we agree with appellee’s argument that the trial court’s order concerning child custody and visitation falls squarely within the holding of Giachetti v. Giachetti, 416 So.2d 27 (Fla. 5th DCA 1982). In Giachetti, the final judgment contained no explicit prohibition against a change of residence, but required the parties to maintain free access to the children and prohibited them from hampering the natural development of the children’s love and respect for both parents.

Inherent in the visitation privileges granted to a non-custodial spouse by a judgment of dissolution is a command to the custodial spouse that such visitation privileges should not be unreasonably hampered, hindered or destroyed. What circumstances or conditions unreasonably hamper or destroy visitation privileges will vary from case to case, and because, by the very nature of the subject matter there are very few absolutes, the trial court must be allowed wide latitude in determining how the visitation rights of the parties are to be enforced.
Here, while the final judgment did not explicitly prohibit a change of residence, it did require that the parties maintain free access with the children and that nothing be done to hamper the natural development of the children’s love and respect for both parents. The children of this marriage were ages eight and five. The trial court had discretion to determine, under the circumstances of this case, that removal of the children from the state would impair, impede and destroy the non-custodial parent’s right of free access to his children and would hamper the natural development of the children’s love and respect for their father, thus violating the terms of the final judgment, and we cannot hold him in error for so finding. Thus, rather than viewing appellee’s request (to enjoin the change of residence) as a request to modify the judgment, we view it as a request to enjoin the violation by the custodial parent of the terms of the final judgment, and this issue was clearly before the trial judge. Therefore, it was not necessary that the father make a showing of change of circumstances and best interest of the children such as would be required if he were seeking a modification of the judgment on this issue.

Id. at 29 (footnote omitted).

Sub judice the final judgment provided for “shared parental responsibility as contemplated by Florida Statutes.” See § 61.-13(2)(b), Fla.Stat. (1983). Since appellant’s actions contravened the intent of the shared parental responsibility statute, the trial court’s order constitutes an enforcement of the custody and visitation provisions of the final judgment, rather than a modification. Therefore, appellant has failed to demonstrate any error. Further, appellant is not without a remedy. In Gia-chetti, the court provided:

The custodial parent ... has the right to seek a modification of the custody provisions of the final judgment if she can satisfy the traditional requirements applicable to such a proceeding — a showing of a substantial or material change of circumstances and that the requested modification would be in the best interest of the children. Stricklin v. Stricklin, 383 So.2d 1183 (Fla. 5th DCA 1980).

Id. at 29 (emphasis deleted).

See also Costa v. Costa, 429 So.2d 1249 (Fla. 4th DCA 1983).

Accordingly, we affirm the orders of the trial court.

AFFIRMED.

HURLEY and WALDEN, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Lorraine C. CUTCHER, Appellant, v. C.A. WALKER and Charles H. Powers, d/b/a Sadisco of Florida and Florida Farm Bureau Insurance Company, an insurance corporation, Appellees.
    No. AW-115.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1984.

      Michael Broussard of Lawrence, Griffin & Landis, Orlando, for appellant.
    Gordon D. Cherr of McConnaughhay, Roland & Maida, Tallahassee, for appellees.
   ERVIN, Chief Judge.

In this action for personal injuries, appellant, Lorraine Cutcher, seeks review of an order granting summary judgment in favor of her deceased husband’s employers, defendants below. We affirm in part, reverse in part and- remand for further 'proceedings.

Appellees (the employers), doing business as Sadisco of Florida (Sadisco), employed appellant’s husband, John Cutcher, to tow wrecked vehicles to their salvage yard. Included in the husband’s duties was the siphoning of any gas remaining in the wrecks into containers for eventual use in the employers’ tow trucks. Although drivers were expected to perform this task and other truck maintenance during the regular work week, the husband was permitted by the employers to come to the yard on Sundays for such purpose. Appellant routinely accompanied her husband in the truck on his daily towing assignments and on the Sunday trips to the yard, although she was not an employee of Sadisco and received no compensation for assisting her husband. During their Sundays at the salvage yard, the Cutchers, who had no home telephone, would occasionally receive long-distance phone calls at the Sadisco office from their son.

On the pertinent Sunday at the yard, the husband performed various maintenance tasks and siphoned the gas from the wrecked vehicles into a large plastic tank strapped to the truck and several plastic gallon jugs which were then placed on the floor on the passenger side of the truck cab. No call was then expected or received from the Cutcher’s son. Enroute home the truck was involved in a collision with a car that had crossed over into the truck’s lane. The husband apparently pulled the truck off of the roadway in an effort to avoid the oncoming car but it was, nevertheless, struck head on. The collision resulted in an explosion and fire in the tow truck, attributed by investigators to ignition upon impact of some accelerant in the truck cab, apparently the gas in the plastic jugs. The husband died in the fire and the wife, appellant, suffered severe burns. It was later revealed that the driver of the car had a high level of medication in his system and had recently been hospitalized for mental instability. He was unable to recall any of the events of the day subsequent to stealing his parents’ car while they attended church.

Appellant unsuccessfully sought death benefits under the Workers’ Compensation Act. The deputy commissioner (DC), in denying the benefits, found that the accident did not arise out of, and in the course of, the husband’s employment. The DC’s order was affirmed on appeal. Cutcher v. Sadisco of Florida, 430 So.2d 453 (Fla. 1st DCA 1983). Ms. Cutcher then brought the present action against the employers, alleging negligence by her husband attributable to his employers under the theories of re-spondeat superior and the dangerous instrumentality doctrine. Summary judgment was granted in favor of the employers on a ruling that the personal injury litigation was collaterally estopped by the prior determination in the workers’ compensation proceeding and by the negligence of the oncoming driver, Allen, which had severed any causal connection between the husband’s negligence and the wife’s injuries.

Summary judgment is properly entered when the pleadings and other factual showings reveal that there exists no genuine issue of material fact such that the mov-ant is entitled to judgment as a matter of law. Pla.R.Civ.P. 1.510(c). In the instant case, appellant contends that the entry of summary judgment was erroneous in that issues existed as to the material facts of (1) whether the husband was acting in the course of his employment at the time of the accident, (2) whether the appellant’s control and treatment of the truck at the time of the accident was such as to impute the husband’s negligence to her, and (3) whether the husband’s negligent truck operation and handling of the gasoline were contributory proximate causes of appellant’s injuries regardless of Allen’s negligence.

As to the first issue, we are persuaded that the DC’s determination, finding that the accident did not arise in the course of the husband’s employment for purposes of the workers’ compensation claim, collaterally estops relitigation of the issue in an action in law brought under a theory of respondeat superior. Under Florida law, it is clear that a workers’ compensation tribunal has competent jurisdiction to determine whether an accident arose in the course of employment and that such a determination is conclusive in a subsequent suit between the parties. United States Fidelity & Guaranty Co. v. Odoms, 444 So.2d 78 (Fla. 5th DCA 1984). Appellant contends that the scope of “course of employment” is given broader definition in the context of a civil suit than that applicable in the workers’ compensation forum, as exemplified by inclusion of performance of work reasonably incidental to or reasonably expected by the employment position in Florida Standard Jury Instructions in Civil Cases, 3.3(b). We find no merit in this argument as these allegedly additional bases for finding an employees’ actions to be within the scope of employment have been relied upon in workers’ compensation proceedings. Hill v. Gregg, Gibson & Gregg, Inc., 260 So.2d 193 (Fla.1972); Fidelity & Casualty Company of New York v. Moore, 143 Fla. 103, 196 So. 495 (Fla. 1940). The issue of scope of the employment thus appears to be the same in the context of this civil suit as in the prior workers’ compensation proceeding. Accordingly, as there remained no issue of material fact to be determined by the trial court as to those counts predicating the employers’ liability on respondeat superior, we affirm the entry of summary judgment as to those counts.

The trial court additionally entered summary judgment as to the counts premising liability on the dangerous instrumentality doctrine on the basis of the bar of collateral estoppel raised by the DC’s determination that the Cutchers were on a joint personal venture at the time of the accident. The court viewed this finding as imputing the husband’s negligence to the wife, thereby bringing her within an exception to the dangerous instrumentality doctrine, removing her from the class of persons to whom the employers, as owners of the tow truck, may be liable under that doctrine. See Raydel, Ltd. v. Medcalfe, 178 So.2d 569 (Fla.1965).

The test of a joint venture in this context is whether the driver and passenger are jointly operating and controlling the movement of the vehicle with common purpose and community of interest in the enterprise, with equal right to control and direct the conduct of each other. 3 Fla.Jur.2d Automobiles § 296 (1978). See also Florida Standard Jury Instructions in Civil Cases, 3.3(f). To sustain the summary judgment, the DC’s findings or other factual matter before the trial court must show as a matter of law that such a relationship existed. The DC found as to this issue that “[the husband] was on a personal mission” and that “[g]oing to the yard on Sunday was of primary benefit to the decedent and his wife.” The trial judge was also confronted with evidence that the wife occasionally drove the truck and that the couple received personal phone calls at the yard on Sundays. This showing does not resolve all issues so as to establish as a matter of law that there was a joint personal venture. There remain viable issues of material fact as to whether there was some benefit to the employers which would defeat a finding of an exclusively personal venture, and whether the operation of the tow truck could be deemed to be within the couple’s joint dominion at the time of the accident. In light of such unresolved issues, the entry of summary judgment as to employers’ vicarious liability under the dangerous instrumentality doctrine cannot be sustained.

Further bases for summary judgment as to those counts predicated on the dangerous instrumentality doctrine were the trial court’s determination, as a matter of law, that the husband was not negligent in his operation of the tow truck and that his alleged negligence in storing the gasoline in plastic jugs inside the vehicle was not the proximate cause of appellant’s injuries.

Summary judgment in regard to the allegedly negligent vehicle operation is not sustainable in light of conflicting evidence pertaining to the husband’s reaction to the oncoming car. This inconsistent evidence does not resolve the issue of whether the husband’s actions fulfilled the duty of care owed to his passenger and, thus, cannot support the entry of summary judgment.

The trial court also found that, as a matter of law, the driver of the automobile involved in the collision was an efficient, intervening cause of appellant’s injuries, superseding the husband’s negligence in storing the gas. This proximate cause issue is only a question of law where reasonable persons could not differ. Prosser, Laws of Torts § 45 at 289-90 (4th ed. 1971). The very nature of the doctrine of comparative negligence in Florida dictates that the issue of liability will rarely be taken from the jury for the trial judge’s determination. Nunziato v. P & L Auto Parts, Inc., 403 So.2d 1031 (Fla. 3d DCA 1981).

In order to sever the causal link between the husband’s negligent gas handling and appellant’s injuries, the negligence of the intervening actor must be unforeseeable. This determination is dependent upon whether the harm which actually occurred was within the scope of the risk created by the husband’s conduct. Nunziato, 403 So.2d at 1032. Clearly, storage of gasoline within a vehicle creates a risk of burns to the occupants which may be foreseeably actualized by any number of probable occurrences, including sparks, engine heat or collision. Collision is quite plainly not an unforeseeable event in the operation of a motor vehicle, however head-on collision has been viewed as unforeseeable. See e.g., Nunziato. In the instant case, the storage of the gasoline inside of the truck could have produced injuries regardless of the manner of collision and it is doubtful that appellant would have suffered injuries of the nature and severity inflicted upon her absent the presence of the gasoline even in the event of a head-on collision. Under the circumstances presented here, there would appear little reason to find that the resultant injuries were not within the scope of the risk engendered by the husband’s conduct merely because the collision occurred head-on. At the very minimum, whether the fact that the collision occurred in a head-on manner had any effect on the risk created by the husband’s conduct remains a viable issue. This issue of causation is not so clear that reasonable minds could not differ as to its resolution and entry of summary judgment thereto is erroneous.

In summary, we affirm the entry of summary judgment as to counts II and III of the amended complaint, based on collateral estoppel as to employers’ liability under respondeat superior, and reverse as to counts I and IV, based on absence of collateral estoppel as to dangerous instrumentality doctrine and remaining viability of causation issues.

BOOTH and WENTWORTH, JJ., concur.


author: COBB, Chief Judge.

text:
    SUN BANK OF OCALA, as Substitute Trustee, Appellant, v. Bernard J. BRENNAN, IV., and Sybil Ann Brennan, his wife, Appellees.
    No. 83-1051.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.
    C. Ray Green, Jr., of Greene & Green, P.A., Ft. McCoy, for appellant.
    Young J. Simmons of Green, Simmons, Green, Hightower & Gray, P.A., Ocala, for appellees.
   COBB, Chief Judge.

The issue in this ejectment action is whether or not there was substantial competent evidence to support a finding of title in the defendant based upon adverse possession. This, in turn, raises the question of the nature of the occupation of the disputed property by Alfred Smiley, the defendants’ predecessor in title. The plaintiff-appellant argues, inter alia, the absence of the requisite intent of Smiley to adversely possess the land owned by the appellant.

The defendants need not have shown, however, that acquisition of land he did not own was Smiley’s intent when he constructed the fence on the disputed property in 1928, and during the time he maintained it in subsequent years. As stated in Goodno v. South Florida Farms Co., 95 Fla. 90, 116 So. 23 (1928):

[Wjhere the claimant takes possession of land by mistake and holds the same adversely claiming title to the land for a period of seven years, the law is not concerned with the question as to what might have been his intention if he had known he had no title to the land before his possession ripened into title, but the question involved is what was his intention during the period of his holding. The true question is whether, when he acquired possession, he believed it to be his own and intended to and did hold it as his own and against all persons. (Emphasis in original.)

116 So. at 25. See also Gay Brothers Const. Co. v. Florida Power & Light Co., 427 So.2d 318 (Fla. 5th DCA 1983). Smiley held the disputed land under claim of title; his fence was evidence of his intention to keep others off what he thought was his own property.

The remaining factual issues were resolved adversely to the plaintiff below, and we cannot substitute our judgment for that of the jury in regard thereto.

AFFIRMED.

SHARP and COWART, JJ., concur.


author: PER CURIAM.

text:
    Gwendolyn HARRISON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1660.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order which revoked appellant’s probation and imposed concurrent five year sentences for several counts of grand theft and uttering forged instruments is affirmed upon a holding that the record establishes that there were substantial violations of the conditions of appellant’s probation sufficient to support revocation. Miller v. State, 444 So.2d 523 (Fla. 1st DCA 1984); Edwards v. State, 439 So.2d 1028 (Fla. 3d DCA 1983); Chappell v. State, 429 So.2d 84 (Fla. 5th DCA 1983).

We remand, however, to allow the trial court to correct the sentence to reflect that jail time was ordered and served on count III of case number 81-18148 and thus it was error to impose a sentence on that count. Appellant need not be present when the sentence is corrected. In addition, our computations indicate that appellant should be credited with 147 days time already served.

Affirmed with directions.


text:
    Clifton Denis PALMER, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2677.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Bennett H. Brummer, Public Defender and May L. Cain, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Harris v. State, 438 So.2d 787 (Fla.1983); see also Tucker v. State, 417 So.2d 1006 (Fla. 3d DCA 1982); Whitney v. State, 132 So.2d 599 (Fla.1961).


text:
    Eddie WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2967.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. McDonald v. State, 423 So.2d 997 (Fla. 3d DCA 1982); Jones v. State, 387 So.2d 401 (Fla. 5th DCA 1980); Ibbitson v. State, 366 So.2d 499 (Fla. 2d DCA 1979); McClain v. State, 356 So.2d 1256 (Fla. 2d DCA 1978).


text:
    Anne FROMBERG, Appellant, v. SOUTHEAST BANK, N.A., Appellee.
    No. 84-1248.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Eric J. Bergknoff, Hallandale, for appellant.
    Britton, Cohen, Cassel, Kaufman & Schantz and Diane D. Ferraro, Miami, for appellee.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Reliance Forwarding Co. v. Nilson Van & Storage, 387 So.2d 513 (Fla. 5th DCA 1980); von Dunser v. Southeast First National Bank, 367 So.2d 1094 (Fla. 3d DCA 1979).


text:
    Stephen T. SIAS, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1775.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Stephen T. Sias, in pro. per.

      Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed. Duke v. State, 444 So.2d 492 (Fla. 2d DCA 1984); See Sias v. State, 416 So.2d 1213 (Fla. 3d DCA 1982).


author: HOBSON, Acting Chief Judge.

text:
    WINN-DIXIE STORES, INC., a Florida corporation, Petitioner, v. Arthur S. GONYEA and Nancy A. Gonyea, his wife, Respondents.
    No. 84-867.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1984.
    George G. Vaka of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for petitioner.
    Robert J. Kelly of Brandt & Kelly, Dunedin, and Craig C. Villanti, New Port Rich-ey, for respondents.
   HOBSON, Acting Chief Judge.

Petitioner, Winn-Dixie Stores, Inc. (hereinafter “Winn-Dixie”), defendant below in a personal injury action, seeks a writ of cer-tiorari to review a discovery order requiring the defendant to produce statements of eyewitnesses to the incident given to Winn-Dixie’s insurance adjusting firm. We grant the petition and quash the lower court’s order.

This action commenced when the Go-nyeas, husband and wife, filed a complaint alleging that Arthur Gonyea slipped and fell on Winn-Dixie’s premises while a business invitee. As a result, Arthur Gonyea allegedly sustained permanent injuries and Nancy Gonyea sustained a loss of consortium. Winn-Dixie answered. Discovery commenced and on August 22, 1983, the Gonyeas’ first set of interrogatories to Winn-Dixie was served. On August 23, 1983, the Gonyeas served requests for production numbered 1 through 5. Number 5 requested

any and all written, recorded or transcribed statements of any witnesses to the incident mentioned in the complaint, whether eyewitness or witnesses with knowledge of the surrounding facts and circumstances.

Winn-Dixie’s response was served with written objections to requests numbers 3 through 5 on the grounds that the materials requested were work product.

Answers to the interrogatories propounded on Winn-Dixie were served. Interrogatory 15 asked whether or not Winn-Dixie obtained any statements from any witnesses to the accident and, if so, to provide the names and addresses of those persons. Winn-Dixie provided the name of the representative of its insurance adjusting firm as the person taking such statements and the names of Debbie Summers and Jeff Bolda as the persons making such statements. Summers’ and Bolda’s depositions were taken. The Gonyeas filed a motion to compel discovery concerning their request to produce. The motion alleged, inter alia, that Winn-Dixie had failed to respond to the request, and that the Gonyeas required the information to be produced in the interest of justice. The court granted the motion to compel as to request number 5.

A motion for rehearing was filed stating that Winn-Dixie had disclosed the names of all eyewitnesses to the accident and that the Gonyeas had deposed them. Also alleged was that the requested recorded statements were within the definition of work product and, without the Gonyeas making a showing of undue hardship in obtaining the substantial equivalent of the materials, the motion should not have been granted. Further, the motion alleged that because the depositions were taken, the substantial equivalent of the recorded statements had been obtained.

At hearing, the Gonyeas stated that they required the recorded statements of Bolda and Summers because there were inconsistencies in the witnesses’ deposition testimony. The inconsistencies concerned, among other things, whether some of the witnesses recalled having seen water on the floor where Arthur Gonyea allegedly fell and whether they recalled seeing carts being used in the area where the accident occurred. The Gonyeas’ attorney stated that they were unable to obtain this information by any other means. Winn-Dixie’s counsel argued that the materials in request number 5 were work product, and the court agreed. Additionally, he argued that the duty of the movants was to show a need for the materials in the preparation of their case and that they were unable to obtain the substantial equivalent of the materials by any other means. He argued that the depositions were the substantial equivalent of the recorded statements.

An order denying the motion for rehearing was entered finding that “the movants have fairly shown that the specified transcribed statements requested were those made shortly after the incident involved by the defendant’s employees who were easily identifiable as those whose later testimony by way of deposition was conflicting and irreconcilable on material facts, making it impossible to obtain pertinent information for reconciling the factual inconsistencies ... from any other source.” Thus, the court found that the Gonyeas had made the required showing to overcome the work product privilege under rule 1.280(b)(2), Florida Rules of Civil Procedure. This petition for certiorari followed.

Winn-Dixie argues that the trial court’s ruling in this case departs from the essential requirements of law because the Go-nyeas failed to make any showing that the substantial equivalent of materials was unavailable to them. Winn-Dixie further argues that the judge’s ruling was premised on the fact that the deposition testimony of Bolda and Summers was inconsistent and conflicting and that such a foundation is an insufficient basis from which to order production of Winn-Dixie’s work product, citing Dade County v. Monroe, 237 So.2d 598 (Fla. 3d DCA 1970).

The Gonyeas, in turn, first argue that the requested statements were directed to prior statements of witnesses, not those prepared in anticipation of litigation and, as such, should be characterized as business records, not work product. We are not persuaded by this argument and hold that the statements of witnesses taken by Winn-Dixie’s insurance adjuster were “in anticipation of litigation.” See Karch v. MacKay, 453 So.2d 452 (Fla. 4th DCA 1984); Wackenhut Corp. v. Crant-Heisz Enterprises, Inc., 451 So.2d 900 (Fla. 2d DCA 1984); Winn-Dixie Stores, Inc. v. Nakutis, 435 So.2d 307 (Fla. 5th DCA 1983).

The Gonyeas further argue that even assuming the trial court correctly characterized the requested statements as- work product, an exception to the work product rule exists in this case. This exception, the Gonyeas urge, is based on cases defining the type of “necessity” that is required before the work product exclusionary rule can be overcome. The Gonyeas then, in an attempt to meet the second prong of rule 1.280(b)(2), emphasize that the depositions took place over a year after the actual incident, the statements sought were taken before any litigation commenced and the sworn testimony of each of the purported eyewitnesses varied in material respects. Again, although the Gonyeas make a forceful argument, we are compelled to disagree.

Rule 1.280(b)(2) clearly sets forth the criteria for overcoming the work product privilege. The rule provides in pertinent part:

(2) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(3) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including his attorney, consultant, surety, indemnitor, insurer or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means ....

Having found that the subject statements were within the scope of Winn-Dixie’s work product, there remains for our consideration whether the Gonyeas made a showing of the requisite need and inability to obtain the substantial equivalent of the recorded statements. Even assuming the cases cited by the Gonyeas establish the requisite “need” in this case, we agree with Winn-Dixie that the Gonyeas failed to make a showing of their inability to obtain “substantially equivalent” materials. The trial court did not read the recorded statements nor, of course, did the Gonyeas know of the contents of the statements. Thus, there is no way of knowing whether or not the deposition statements are the “substantial equivalent” of the statements taken shortly after the accident by Winn-Dixie’s insurance adjuster. Even if the requested statements were to conflict with the deposition testimony, we hold that such a foundation is insufficient to penetrate the work product privilege under rule 1.280(b)(2). See Dade County v. Monroe.

Accordingly, we grant the petition for writ of certiorari and quash the trial court’s order compelling Winn-Dixie to produce request for production number 5.

PETITION FOR WRIT OF CERTIORA-RI GRANTED.

BOARDMAN and SCHOONOVER, JJ., concur.


author: ORFINGER, Judge.

text:
    FLORIDA FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. BRITT’S, INC., etc., Appellee.
    No. 83-1538.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 1984.
    Michael J. Appleton of Graham, Marlowe & Appleton, Winter Park, and Stephen C. Chumbris of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Petersburg, for appellant.
    Charles R. Stepter, Jr., of Kosto & Rotel-la, P.A., Orlando, for appellee.
   ORFINGER, Judge.

Florida Federal Savings. & Loan Association appeals a final judgment allowing Britt’s Inc., pursuant to section 713.15, Florida Statutes (1983), to repossess certain appliances which had been installed in a residence foreclosed upon by Florida Federal. We find error in the trial court’s determination and reverse.

Florida Federal filed its foreclosure action in March, 1982, naming Britt’s Inc., among others, as a party defendant by virtue of a claim of lien Britt’s had recorded in Orange County. The claim of lien arose in connection with the delivery of certain kitchen appliances by Britt’s to the subject property for installation. These appliances included a cook top, a wall oven, a microwave oven, and an automatic dishwasher. All of the appliances were affixed to the premises by screws and wires so that their removal was easily achieved without damage to the realty.

In response to the foreclosure action, Britt’s filed a cross-claim seeking repossession of the appliances pursuant to section 713.15, Florida Statutes (1983). Summary judgment in favor of Florida Federal was entered in the foreclosure action, excluding the appliances, and the realty was ultimately sold at a judicial sale. Subsequently, in a separate proceeding on Britt’s cross-claim, the trial court found that section 713.15 applied to allow Britt’s to repossess the appliances. Section 713.15 provides:

If for any reason the completion of an improvement is abandoned or though the improvement is completed, materials delivered are not used therefor, a person who has delivered materials for the improvement which have not been incorpo rated therein and for which he has not received payment may peaceably repossess and remove such materials or re-plevy the same and thereupon he shall have no lien on the real property of improvements and no right against any persons for the price thereof, but shall have the same rights in regard to the materials as if he had never parted with their possession. This right to repossess and remove or replevy the materials shall not be affected by their sale, encumbrance, attachment, or transfer from the site of the improvement, except that if the materials have been so transferred, the right to repossess or replevy them shall not be effective as against a purchaser or em-cumbrancer thereof in good faith whose interest therein is acquired after such transfer from the site of the improvement or as against a creditor attaching after such transfer. The right of repossession and removal given by this section shall extend only to materials whose purchase price does not exceed the amount remaining due to the person repossessing but where materials have been partly paid for, the person delivering them may repossess them as allowed in this section on refunding the part of the purchase price which has been paid. [Emphasis supplied].

The sole issue on appeal is whether the trial court erred in finding that the kitchen appliances were not incorporated into the premises under section 713.15 and therefore could be repossessed by Britt’s. Clearly, under the statute if the appliances were incorporated, section 713.15 is not applicable; however, if they were not, section 713.15 provides an equitable means by which a supplier may recover furnished materials and have a superior status over all other creditors. See, Matter of Lowery Brothers, Inc., 589 F.2d 851 (5th Cir.1979).

While the term “incorporated” is neither defined by statute nor in case law, The American Heritage Dictionary of the English Language says it means “united in one body; combined,” and many courts have analogized the application of mechanic’s lien laws, presumably including section 713.15, to the law of fixtures. See, e.g., Fell v. Messeroff 145 So.2d 238 (Fla. 3d DCA 1962). Also see, General Electric Co. v. Atlantic Shores, Inc., 436 So.2d 974 (Fla. 5th DCA 1983), where this court uses the terms “fixture” and “incorporated” interchangeably.

The law of fixtures, however, is not as applicable to the instant case as it could be, because the chief test in determining whether an item is a fixture is the intention of the party making the annexation. Commercial Finance Company v. Brooksville Hotel Co., 98 Fla. 410, 123 So. 814 (1929). That party is not involved in this action. Nevertheless, the parties here do not dispute that the appliances were installed in the premises by screws and wires ready for permanent use. In that condition the appliances could not have become any more “incorporated” into the premises than they were. Even though they could have been easily removed from the premises, there is nothing in the record to suggest that they were intended to be installed for anything other than permanent use. Once installed and ready for use they were “combined” or “united” with the whole of the premises. This, coupled with the fact that the appliances once removed from the premises, would leave gaping holes behind, indicates that the installation of the appliances was such as to cause them to become “incorporated” into the premises. Thus, upon their installation, the appliances were so incorporated into the property that to remove them would have left the -realty less than complete. As a result, the trial court erred in applying section 713.15, to allow Britt’s to repossess the appliances, and final judgment in favor of Britt’s is therefore reversed.

REVERSED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: COWART, Judge.

text:
    Roy RUTLIN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1694.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 1984.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

This is another sentencing case involving a departure from the sentencing guidelines. In In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983), the supreme court provided that “[t]he sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12:01 a.m., October 1, 1983, and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto.”

In 1980, appellant pled guilty to grand theft and was placed on probation. On November 10,1983, appellant pled guilty to violating his probation and filed a written election to be sentenced under Florida Rule of Criminal Procedure 3.701, the sentencing guidelines. Under those guidelines (Form 3.988(f), Category 6), appellant fell into the lowest recommended range: any non-state prison sanction. At sentencing the trial judge sentenced appellant to a two year term of imprisonment stating no reason other than that the guidelines were inapplicable.

By virtue of appellant’s election the sentencing guidelines were applicable. See Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984). In sentencing appellant the trial judge departed from the presumptive sentence under the guidelines without articulating in writing his reasons for deviating as required by Rule 3.701 b6. and dll.

We have recently held that, in the exercise of judicial sentencing discretion and when articulated in writing as required by the rules, a violation of probation may serve as a clear and convincing reason for departure from a guideline sentence. See Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984).

We vacate the sentence and remand for sentencing to the presumptive sentence or to a departure sentence imposed in accordance with the sentencing guidelines.

REVERSED AND REMANDED.

DAUKSCH and ORFINGER, JJ., concur.


text:
    Kathy Lynn JONES, a/k/a Kathy Davis, Appellant, v. STATE of Florida, Appellee.
    No. 84-237.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

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

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


text:
    UNITED STATES AVIATION UNDERWRITERS, INC., Appellant, v. DADE COUNTY BOARD OF COMMISSIONERS, acting as Dade County Port Authority, Appellee.
    No. 84-178.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Carey, Dwyer, Cole, Echart, Mason & Spring and Harriet Lewis, Miami, for appellant.
    Pyszka & Kessler and William M. Doub-erley, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Federal Insurance Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979) (insurer’s duty to defend an action against its putative insured is determined by the allegations of the plaintiffs complaint); Cloud v. Shelby Mutual Insurance Co. of Shelby, Ohio, 248 So.2d 217 (Fla. 3d DCA 1971) (coverage is not excluded as a matter of law where there was an “intentional act” but not an “intentionally caused” injury).


text:
    Louis LIPHETE and Diane Mitial, Appellants, v. Merritt STIERHEIM, as County Manager for Dade County, Florida; Franklin Bystrom, as Property Appraiser for Dade County, Florida; and P. Randy Miller, as Director of the Department of Revenue for the State of Florida, Appellees.
    No. 84-590.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.

      John R. Greenwood and Jonathan Thiele and Ira Kurzban, Miami, for appellants.
    Jim Smith, Atty. Gen. and Barbara Sta-ros Harmon, Asst. Atty. Gen., Robert A. Ginsburg, County Atty., and James K. Kracht, Daniel A. Weiss, Asst. County At-tys., for appellees.
    Before BARKDULL, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Alcime v. Bystrom, 451 So.2d 1037 (Fla. 3d DCA 1984).


text:
    Clyde Lee GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 84-55.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1984.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We reverse the sentencing order of the trial court and remand for a new sentencing hearing. We agree with appellant that there is no proper evidentiary basis in the record upon which to support the trial court’s finding that the victim of the attempted sexual battery was physically injured as a result of the incident. That being so, the appellant is entitled to have the scoring under the sentencing guidelines recomputed.

ANSTEAD, C.J., and HURLEY and DELL, JJ., concur.


author: DIXON, Chief Justice.

text:
    James D. SANDEFUR, O.D. and W.E. Marionneaux, Jr., O.D. v. William A. CHERRY, M.D., Secretary of the Louisiana Department of Health & Human Resources and Bonnie Smith, Medical Services Director of the Louisiana Department of Health & Human Resources.
    No. 84-CQ-0083.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Henry B. Bruser, III, Robert G. Nida, Gold, Little, Simon, Weems & Bruser, Alexander, for plaintiff-appellants.
    Charles L. Patín, Asst. Atty. Gen., Charles E. Daspit, Frank H. Perez, Baton Rouge, for defendant-appellees.
   DIXON, Chief Justice.

Plaintiffs, optometrists licensed to practice in Louisiana, brought this suit in federal court for injunctive and declaratory relief to have the Louisiana Medical Association Plan, its Program Manual and the practices- and procedures thereunder reformed to comply with federal and state law.

The federal district court found in favor of the defendants, and dismissed the suit. Sandefur v. Cherry, 547 F.Supp. 418 (M.D. La.1982). The United States Court of Appeals, Fifth Circuit, certified a question to this court because the case “involves a determinative question of Louisiana law and there are no controlling state law precedents.” Sandefur v. Cherry, 718 F.2d 682, 690 (5th Cir.1983).

Specifically, the plaintiffs argue that the state’s practice of reimbursing ophthalmologists while not reimbursing optometrists for eye care services provided to medicaid eligible persons violates state law. R.S. 37:1066 and R.S. 49:185 both prohibit state officials from directly or indirectly limiting or restricting the freedom of patients to choose the services of an optometrist, physician or surgeon.

The parties to this suit entered into the following joint stipulation of facts and proposed certificate of questions:

“It is hereby stipulated and agreed by and between the parties hereto, for the purposes of the question to be certified to the Supreme Court of Louisiana, that:
1. The record in this case establishes that the State of Louisiana, under its Medical Assistance Plan-Medicaid, makes reimbursement to ophthalmologists for services which are within the scope of practice,of optometrists, but does not make reimbursement to optometrists for performing those services to Medical eligible persons.
2. The question to be certified to the Supreme Court of the State of Louisiana should read:
Do the state employees and officials charged with adoption of the Louisiana Medical Assistance Plan, the Medical Assistance Program Manual, Providers’ Manual and practices and procedures thereunder have discretion under R.S. 37:1066 and R.S. 49:185 to provide therein for provision of all eye care services to Medicaid eligible persons by ophthalmologists and other medical doctors to the exclusion of optometrists, except for routine eye examinations for eligible recipients under the age of 21 in the Early Periodic, Screening, Diagnosis and Treatment program and refractions following cataract surgery for eligible recipients?

Accepting the stipulated facts, and the question as posed, See 721 F.2d 511 (5th Cir.1983), we must answer:

No, the state employees and officials charged with adoption of the Louisiana Medical Assistance Plan, the Medical Assistance Program Manual, Providers’ Manual and practices and procedures thereunder do not have discretion under R.S. 37:1066 and R.S. 49:185 to provide therein for provision (sic) of all eye care services to Medicaid eligible persons by opthalmologists and other medical doctors to the exclusion of optometrists, except for routine eye examinations for eligible recipients under the age of 21 in the Early Periodic, Screening, Diagnosis and Treatment program and refractions following cataract surgery for eligible recipients.

The statutory prohibition, found in both R.S. 37:1066 and R.S. 49:185, against any state employee “directly or indirectly” limiting the choice of an optometrist by a patient removes any opportunity for the state employee to exclude optometrists.

      . “Every person shall have complete freedom of choice to use the services of optometrists licensed under this Chapter where such services are permitted by law, and no state, parish or municipal board or agency, or any officer or employee thereof, shall either directly or indirectly limit or restrict the freedom of any person to choose the services of either an optometrist, a physician or a surgeon.” R.S. 37:1066.
      "Every person in this state needing eye care shall have complete freedom to use the services of an individual licensed under either R.S. 37:1041 through R.S. 37:1066 or R.S. 37:1261 through R.S. 37:1290. No state, parish or municipal board or agency, nor any officer or employee thereof, shall either directly or indirectly limit or restrict the freedom of any person to choose the services of a person so licensed under either authority.” R.S. 49:185.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Louis CRUZ, Jr.
    No. 82-KA-2104.
    Supreme Court of Louisiana.
    Sept. 10, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Louise Korns, Phillip Boudousque, Clarence McManus, Patrick Leitz, Gerald Alonzo, Robert Pitre, Asst. Dist. Attys., for plaintiff-appellee.
    Rebecca Sawyer, New Orleans, for defendant-appellant.
   DENNIS, Justice.

Defendant, Louis Cruz was convicted by a jury of first degree murder, La.R.S. 14:30, but the jury was unable to agree on a penalty recommendation. The trial court in accord with law sentenced defendant to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant appealed.

FACTS

On the morning of August 22, 1981, the body of twenty-two year old Susan Todorov was discovered floating in the Mississippi River in Jefferson Parish near Gretna, Louisiana. The body, clad only in a bra and blouse, was found about 30 feet from shore near a barge dock and other property owned by the J.W. Stone Oil Company. On the batture, between the levee and the water’s edge, were a pair of underpants, a shoe, a matchbook from Gatsby’s Lounge and a pack of Winston cigarettes. On a wharf nearby, there was a woman’s silver chain minus its diamond pendant. Police observed footprints and drag marks, four to five feet from the underwear, leading down to the river. The clothing, shoe and chain were identified as Todorov’s; a set of diamond earrings and a watch she wore when last seen were missing. According to Todorov’s mother, the 4' 10", 85 pound victim could not swim and was terrified of water.

Todorov was last seen alive leaving Gatsby’s Lounge in Gretna with Louis Cruz, the defendant, on the evening of July 19. She had been celebrating her forthcoming marriage with two girl friends, Jo Alice and Penny. Her fiancé stopped by the lounge momentarily that night to swap cars, leaving Todorov his orange Trans Am. According to Jo Alice, while at Gatsby’s the women met and talked with Louis Cruz, the defendant. Jo Alice and Todorov left the bar several times to go to the parking lot. There was evidence that Todorov, Jo Alice and Cruz were smoking marijuana that evening. Once, Jo Alice, Todorov and defendant went to the orange Trans Am together and Jo Alice put her brown purse, containing her wallet and house keys, under the passenger’s seat in the front of the ear.

A Jefferson Parish detective, Officer Rees, saw Todorov, Jo Alice and Cruz standing by the Trans Am outside Gatsby’s at about two in the morning. He spoke with them momentarily, after which the two women rejoined Cruz and all three went back inside the lounge. Jo Alice testified that a few minutes later Todorov left the lounge and Cruz walked out behind her. Officer Rees testified that Todorov and Cruz got into the orange Trans Am and drove away.

Cruz was next seen at 6:00 a.m. at the Sahara Lounge in Belle Chase. A barmaid recognized him when she reported for work and also noticed an orange Trans Am parked nearby. Michael Bellamy testified that he saw. Cruz about 9 a.m. in Belle Chase when Cruz gave Bellamy a ride in an orange Trans Am, which he claimed was a “company” car. Sometime during the ride, Bellamy noticed an object under his feet which he found to be a brown, ladies’ purse that had come from under the passenger’s seat.

Later that day, credit card purchases were recorded in Gretna, Biloxi and Pasca-goula on the accounts of both Susan Todo-rov and her fiancé. The manager of a shoe store in Biloxi recalled one sale. He picked out defendant’s photograph from a line-up and made a positive in-court identification of Cruz as the man who had used the credit card.

Between 10:30 and 11 p.m. on the evening of Thursday, August 20, 1981, Jo Alice was at home putting her child to bed when she heard a noise. She looked up and saw Cruz standing outside at an opened, unscreened window. He shook a set of keys, which she recognized as her own, and told her “I’m going to kill you like I killed her.” Jo Alice saw an orange Trans Am parked outside. She screamed and ran into the room where her sister and brother-in-law were sleeping. When Jo Alice returned with her brother-in-law to the window where she had seen Cruz, both he and the Trans Am were gone.

On Saturday, August 22, 1981, the body of Susan Todorov was recovered from the river. According to Dr. Alvaro Hunt, the pathologist who performed the autopsy, the body was in an advanced stage of decomposition due to the high temperature of the atmosphere and water. There was no evidence of physical wounds or of bruising around the neck to suggest strangulation; no evidence of death by natural disease processes; and no evidence consistent with rape. The sole finding made by the pathologist was that a hemorrhage to two small bones had occurred. These bones, ‘petrous portion of the temporal bones’ are located above and central to the internal ear near the base of the skull; a hemorrhage in this area is “very common” in deaths by drowning. Such a hemorrhage is also consistent with other forms of death, by asphyxia. Dr. Hunt did not perform any tests to determine the presence and amount of alcohol or drugs in her body. He explained that decomposition “precluded ... any satisfactory drug analyses,” for the process of decomposition itself produces alcohol. At the completion of the autopsy, Dr. Hunt concluded that he “was unable to determine the cause of death or the manner in which she died.” During his trial testimony, however, Dr. Hunt stated that the pathological evidence was consistent with a death caused by drowning or asphyxia.

Four days after the autopsy Detective Dennis Dunn of the Gretna Police Department and members of the New Orleans Police Department executed a warrant for the arrest of Louis Cruz. Cruz was transported to the Algiers Police Station, where Dunn verbally advised him of his rights. Dunn asked if he wanted a cigarette and offered Cruz one from his own pack of Winstons. Cruz asked “[w]as that the same cigarettes you found on the river batture?” Detective Dunn then asked defendant Cruz whether he would like to waive his rights and make a written statement. Defendant declined, and requested to speak with an attorney.

Assignment of Error No. 1

Defendant argues that the trial court erred in denying the defendant’s second motion for a new trial despite new evidence presented at a supplementary evidentiary hearing which demonstrated a prejudicial error and defect in the proceeding.

Dr. Hunt, the state’s pathologist, testified at trial that he did not perform any tests to determine the presence and amount of alcohol or other drugs in the victim’s body because its state of decomposition precluded any satisfactory drug analyses. Following decomposition, he said, the body produces its own alcohol and other compounds which interfere with the definitive determination of drugs and drug levels. At the evidentiary hearing on the new trial motion defendant presented testimony by a Tennessee pathologist to the effect that, although a body’s decay makes analysis more difficult, there are tests which afford accurate toxicological measurements even under these circumstances. Dr. Hunt at the evidentiary hearing acknowledged the availability of such tests but testified that they are not as reliable as the Tennessee pathologist claimed. Dr. Hunt stated that the performance of such tests in the present case was unwarranted because of both the body’s decomposition and the circumstances known to surround the crime at the time of the autopsy. Apparently, before the autopsy, Dr. Hunt was informed that Todorov’s body was recovered from the Mississippi River, that she was known to have had a few drinks the night of her death, and that she was not known to have used drugs. Since there were no needle marks on the victim’s arms, and since she was not known to use drugs, Dr. Hunt determined that a screen for drugs would be neither valuable nor appropriate. Both Dr. Hunt and the Tennessee pathologist testified that the final cause of Todorov’s death probably was drowning.

Defendant contends that a new trial should have been granted because he proved that “injustice has been done the defendant” La.C.Cr.P. art. 851, par. 1, and that he “has discovered, since the verdict or judgment of guilty, a prejudicial.error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment_” La.C. Cr.P. art. 851(4). Defendant argues that the “prejudicial error or defect in the proceedings” was Dr. Hunt’s failure to perform all tests available to detect alcohol and drugs in the victim’s body and his failure to reveal his dereliction in his testimony at trial.

If the defendant had proved that Dr. Hunt testified falsely at trial or failed to disclose evidence favorable to the defense, perhaps this would constitute a “prejudicial error or defect in the proceedings” that would mandate a new trial if the failure to learn of the evidence was due to no lack of diligence by the defendant, was not discovered before the verdict or judgment, and resulted in the doing of an injustice to the accused. La.C.Cr.P. art. 851, par. 1, (4); Official Revision Comment (b). This conclusion is subject to question, however, because the ground for a new trial provided by La.C.Cr.P. art. 851(4) includes matters such as jury misconduct, improper separation of the jury without the defendant’s immediate knowledge thereof, and false answers on voir dire examination, Id. Comment (d), and may not embrace false or misleading testimony.

The short answer to the problem posed by defendant, however,, is that the evidence does not show that Dr. Hunt testified falsely or failed to disclose evidence favorable to the defendant. The evidence discloses only a difference of professional opinion between two pathologists as to the efficacy of drug analyses of decomposed bodies. Furthermore, even if the defendant had been able to present the Tennessee pathologist’s viewpoint to the jury at trial it probably would not have changed the verdict or judgment of guilty. There was no evidence that Todorov abusively used drugs or alcohol immediately before she was last seen alive. The circumstances surrounding her death — such as the arrangement of her clothing and jewelry; her missing earrings and watch; the footprints and drag marks; the defendant’s inculpato-ry statements, his possession of the victim’s car and credit cards; and his threat of her companion’s life — indicate rather conclusively that Todorov was placed in the river by another involuntarily and died of asphyxiation or drowning.

Assignments of Error Nos. 2 and 3

Defendant contends there was not sufficient proof that the defendant had the requisite specific intent to kill or inflict great bodily harm upon the deceased and was engaged in the perpetration or attempted perpetration of a specified felony as required by La.R.S. 14:30(1). For essentially the same reasons we concluded that more detailed pathological testimony probably would not have changed the verdict of guilty, we conclude that the evidence was sufficient to support it. Cruz was the last person with whom Todorov was seen alive. Cruz’s place of employment was the scene of her death. Cruz made two inculpatory statements, one expressly confessing and another indicating that he had killed her. Cruz had possession of her car and credit cards shortly after she was last seen alive; he kept them and used them under false pretenses for his benefit for one day while she was missing. Cruz lied to a friend about who owned the car and his authority to use it; he abandoned the vehicle in a project. The arrangement of Todorov’s clothes and jewelry, the missing diamond pendant, earrings and watch, the footprints and drag marks at water’s edge indicated she was robbed and forced into the water by Cruz who desired at least to inflict great bodily harm upon her. Thus, the evidence supports a specific intent homicide while the offender was engaged in simple robbery.

Assignments of Error Nos. 4 and 5

Defendant argues that the prosecution failed to establish the corpus delicti with evidence other than the confession. It is well settled that an accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime had been committed by someone; in other words, without proof of the corpus delicti. State v. Willie, 410 So.2d 1019 (La.1982); State v. Ashley, 354 So.2d 528 (La.1978); State v. Mullins, 353 So.2d 243 (La.1977); State v. Freetime, 334 So.2d 207 (La.1976); State v. Sellers, 292 So.2d 222 (La.1974); State v. Brown, 236 La. 562, 108 So.2d 233 (1959); State v. Calloway, 196 La. 496, 199 So. 403 (1940); State v. Morgan, 157 La. 962, 103 So. 278 (1925).

We have described the direct and circumstantial evidence by which the state proved defendant’s guilt in earlier portions of this opinion. Except for the inculpatory statements, all of this evidence was available for the jury’s consideration in deciding whether the corpus delicti had been established. Without recounting this evidence in detail again, we conclude that it was sufficient to establish the death of Todorov and that her death was caused by the criminal agency of someone.

Assignment of Error No. 6

Defendant contends the trial court erred in failing to give a charge requiring the jury to find that a homicide had been committed beyond a reasonable doubt before considering the defendant’s inculpato-ry statements. This argument is without merit because the defendant neither requested this charge nor objected to its omission.

Defendant also contends the trial court erred in failing or refusing to instruct the jury on the definition of homicide. It appears from the record that defense counsel did not request this instruction as provided by La.C.Cr.P. art. 807. Defendant therefore, in effect argues that the trial court was required by law to give the requested jury charges. This argument is without merit.

Defense counsel objected to the court’s failure to instruct concerning the definition of homicide. The trial judge overruled the objection because the definition of first degree murder, for which the defendant was on trial, does not contain the term “homicide” but rather defines murder as “the killing of a human being.” Homicide, also, is defined in by La.R.S. 14:29 as “the killing of a human being by the act, procurement, or culpable omission of another.” Thus, the trial court’s general charge both adequately instructed the jury as to the law applicable to the case and included the material with which the defense indicated it wished the jury to be specially charged.

For the reasons assigned, each of the assignments of error is without merit, and the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: DENNIS, Justice. MARCUS, Justice

text:
    Mr. & Mrs. Robert Leland REDFEARN, Mr. & Mrs. W. Scott Gibson and Harry T. Howard, III v. Clara Binet, wife/of and Jacques Jules CREPPEL D/B/A Columns Hotel.
    No. 83-C-2188.
    Supreme Court of Louisiana.
    Sept. 10, 1984.

      Brod Bagert, Dwan S. Hilferty, Bagert & Hilferty, New Orleans, for applicants.
    Jarrell E. Godfrey, Jr., L. Havard Scott, III, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for respondent.
   DENNIS, Justice.

Plaintiffs, New Orleans homeowners in the neighborhood of 3800 St. Charles Avenue, instituted this suit to enjoin defendants, Mr. & Mrs. Jacques J. Creppel, owners of the Columns Hotel at 3811 St. Charles Avenue, from operating a hotel, restaurant and bar at that address in violation of the city zoning ordinance. The trial court found that the hotel and restaurant constitutes a valid nonconforming use but that the operation of a barroom or cocktail lounge is an impermissible expansion of that use. Accordingly, the trial court enjoined the hotel owners from operating a bar or cocktail lounge or serving alcoholic beverages except at private parties. The hotel owners appealed suspensively, and the homeowners answered the appeal demanding that the judgment be modified to enjoin not only the bar and lounge but also the hotel and restaurant.

The court of appeal, 436 So.2d 1210, agreed with the trial court that the hotel and restaurant constitute a nonconforming use and that the operation of a cocktail lounge should be prohibited as an improper expansion of the nonconforming use. Additionally, the court of appeal apparently found that the restaurant has been expanded impermissibly beyond its former size and that the use of former sleeping rooms for meetings, parties and receptions also constitutes an improper expansion of the nonconforming use. The appeals court apparently found, however, that the sale of alcoholic beverages in connection with the restaurant is permissible as an accessory use. Ultimately, the court of appeal affirmed an amended judgment of injunction incorporating these terms and conditions but also remanding the case to the trial court for a determination of the size of the restaurant before the Creppels began renovating.

The hotel owners applied for and were granted certiorari by this court. The homeowners did not seek to modify the court of appeal judgment. We affirm in part, reverse in part and remand to the trial court.

The Columns Hotel is located in a Multiple Family Residential District (RM-3) according to the city zoning ordinance. Hotel operation is not a permitted use of property in that district. However, the Columns Hotel was built long before the enactment of zoning regulations designating the neighborhood as a residential district. The evidence reflects that the Columns was in operation as a hotel prior to 1885. Mr. and Mrs. Jacques J. Creppel bought the hotel in 1980 and remodeled the interior. The record reflects that the Creppels effected some changes in the use of the rooms in the building. One first floor bedroom was converted to a bar. Two other bedrooms on the ground level, which had previously been one ballroom, were reconverted to one large room.

The operation of the bar, the catering to parties, receptions and political gatherings in the meeting room, and intensified operation of the restaurant caused increased parking and traffic which led the homeowners to file this suit.

At the commencement of this lawsuit the space within the Columns was devoted to the following uses: hotel (22 bedrooms with 14 baths and one kitchenette); bar or cocktail lounge (one former bedroom); meeting room (two former bedrooms); and restaurant.

In their first assignment of error the relator hotel owners contend that the injunction should not have issued because the Columns Hotel is a legal nonconforming use. As we understand the court of appeal and trial court judgments, however, rela-tors can have no complaint as to the judgments on this score. Both previous courts concluded that the hotel and restaurant constitute a nonconforming use. The only disputed issues before us are whether the lower courts erred in restricting or disallowing expansion of the restaurant, operation of the bar or cocktail lounge and operation of the meeting room as unauthorized changes, expansions or extensions of a nonconforming use.

In their second assignment of error rela-tors argue that the bar, restaurant and meeting room should be permitted without restriction as uses accessory to the nonconforming hotel use. A proper response to these arguments requires a brief examination of the precepts concerning nonconforming uses which have been developed by the jurisprudence and enacted as part of the zoning ordinance.

A use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which it is situated, is commonly referred to as “nonconforming use.” 1 Anderson, American Law of Zoning, § 6.01. Cf. 8A McQuillan, Municipal Corporations 3d ed., § 25.185; Black’s Law Dictionary 948 (5th ed. 1979). The permitted continuation of a nonconforming use is designed to avoid the hardship, injustice and doubtful constitutionality of compelling the immediate removal of objectionable buildings and uses already in the area. Fuller v. City of New Orleans, 311 So.2d 466 (La.App. 4th Cir.1975); City of Lake Charles v. Frank, 850 So.2d 233, 235 (La.App. 3rd Cir.1977); Gauthier v. Village of Larchmont, 30 A.D.2d 303, 291 N.Y.S.2d 584, 586 (1968); 101 C.J.S. Zoning §181. The purpose of zoning ordinances is to confine certain classes of buildings and uses to certain localities. Beerwort v. Zoning Board of Appeals, 144 Conn. 731, 137 A.2d 756 (1958); 1 Anderson, American Law of Zoning 2d § 6.07 ed (1976). Because a nonconforming use is inconsistent with this objective, it should, consistently with the property rights of the individuals affected and substantial justice, be viewed narrowly and have all doubts resolved against continuation or expansion of the nonconformity. City of Lake Charles v. Frank, 350 So.2d 233 (La.App. 3rd Cir. 1977); County of Ada v. Schemm, 96 Idaho 396, 529 P.2d 1268,1270 (1974); Monoco Oil Co. v. Pittsford, 59 Misc.2d 750, 300 N.Y.S.2d 488, 492 (1969); Norton Shores v. Carr, 81 Mich.App. 715, 265 N.W.2d 802, 805 (1978).

The general rule is that the continu-' anee of a nonconforming use is a continuance of the same use and not some other kind of use. Kensington Realty Holding Corp. v. Jersey City, 118 N.J.L. 114,191 A. 787 (1937), aff d 119 N.J.L. 338, 196 A. 691. The established use may be continued; a different use inconsistent with the zoning regulations is not authorized. Wentworth Hotel Inc. v. New Castle, 112 N.H. 21, 287 A.2d 615, 619 (1972); San Diego County v. McClurken, 37 Cal.2d 683, 234 P.2d 972. Most municipalities have enacted ordinances, however, which permit substitution of nonconforming uses under certain circumstances. The New Orleans Zoning ordinances provide that:

Section 4. Change of Use.
If no structural alterations are made, a nonconforming use of a building may be changed to another nonconforming use of the same or more restricted classification. Whenever a nonconforming use of a building has been changed to a more restricted use or to a conforming use, such use shall not thereafter be changed to a less restricted use. The provisions of this section shall not apply to existing industrial uses in the Yieux Carre. Comprehensive Zoning Ordinance of the City of New Orleans, Louisiana, 426 M.C.S., art. 12, sec. 4.

Applying these rules to the evidence in the present case, we conclude that the relators should not be enjoined from expanding the restaurant within the existing building. First, there is no evidence that the relators made any structural alterations, which involve changes in the supporting members of a building, such as footings, bearing walls or partitions, columns, beams, or girders, or any substantial change in the roof or in the exterior walls. New Orleans Zoning Code, supra, Art. 14, sec. 105. Second, the ordinance clearly authorizes a change in the use of space in the building from hotel use to restaurant use. Article 12, section 4 of the Code provides that a nonconforming use of a building may be changed to another nonconforming use if it is not a less restricted use. Under the zoning ordinance hierarchy of uses, restaurant use is not a less restricted use than hotel use. New Orleans Zoning Code Art. 5, sec. 7.2.8 and 7.2.11.

The changes of use from nonconforming hotel use to cocktail lounge and meeting room uses are not authorized by the ordinance’s change of use provision. Cocktail lounge use is clearly a less restricted use than hotel use. New Orleans Zoning Code, Art. 5, sec. 9.2.10. A meeting hall use is also a less restricted use. Article 5, Sec. 10.2.15. The relator hotel owners contend, however, that the cocktail lounge and meeting hall uses are permitted as accessory uses to the nonconforming hotel use. They rely primarily upon the last sentence of the ordinance’s definition of a hotel, which provides:

Hotel. A building containing 20 or more individual sleeping rooms or suites, having each a private bathroom attached thereto, for the purpose of providing overnight lodging facilities to the general public for compensation with or without meals, excluding accommodations for employees, and in which ingress and egress to and from all rooms is made through an inside lobby or office supervised by a person in charge at all hours. Where a hotel is permitted as a principle use, all uses customarily and historically accessory thereto for the comfort, accommodation and entertainment of the patrons, including the service of alcoholic beverages, shall be permitted.

New Orleans Zoning Code Art. 14, sec. 2.64. However, this provision, which applies only “[w]here a hotel is permitted as a principal use,” affords little comfort to the operators of the Columns since the Columns is located in a zone in which hotels are prohibited as a principal use.

To determine whether these are accessory uses we must refer to the ordinance’s general definition of accessory use, which provides:

Accessory Use. A subordinate use which is incidental to and customary or necessary in connection with the main building or use and which is located on the same lot with such main building or use. New Orleans Zoning Code, Art. 14, Sec. 2.2.

This section summarizes and alludes to most of the precepts which have been employed by courts in determining whether a particular use is accessory to either a permitted use or a nonconforming use. Some zoning ordinances permit accessory uses only in relation to permitted, not nonconforming uses. County of Ada v. Schemm, 96 Idaho 396, 529 P.2d 1268 (1974); Anderson, supra § 6.38. The New Orleans ordinance, however, tacitly recognizes accessory uses in relation to both. The traditional purpose of zoning is to reduce or eliminate the adverse effects of one type of land use on another by segregating different uses into different zoning districts. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387-95, 47 S.Ct. 114, 118-21, 71 L.Ed. 303 (1926); 1 R. Anderson, supra §§ 8.14 —.15; Note, “Customary” Requirement For Accessory Uses, 56 B.U.L.Rev. 542, 547 (1976). Accessory uses are permitted exceptions only to the extent that this purpose is not frustrated. When an accessory use would adversely affect a locality, courts have generally interpreted zoning ordinances to prohibit the use. See Pratt v. Building Inspector, 330 Mass. 344, 346-47, 113 N.E.2d 816, 817 (1953); Gray v. Ward, 74 Misc.2d 50, 56, 343 N.Y.S.2d 749, 755 (Sup.Ct.1974), aff’d mem., 44 App.Div.2d 597, 354 N.Y.S.2d 591 (1974). Consequently, when the full definition of an accessory use is spelled out, including the provisions which must be inferred from the basic purpose of the zoning ordinance, we believe it closely resembles Professor Williams’ definition, under which accessory uses must meet the following tests:

1. They must be related to the principal use (usually not explicitly stated, but implied).
2. They must be subordinate and clearly incidental to the principal use (almost always stated).
3. They must also be customarily incidental (almost always stated).
4. They must be located on the same lot as the principal use (almost always stated) — and, occasionally, must also be in the same ownership.
5. They must not alter the character of the area or be detrimental thereto (occasionally stated).

3 Williams, American Land Planning Law § 74.08.

Applying these precepts, we conclude that bar and meeting room uses of the property can be classified as accessory uses of the hotel and restaurant if they meet all of these tests. We further conclude that it is clear that these uses meet some of the tests but that it cannot be determined from this record if all are met.

It is clear from the present record that these uses are related to the principal nonconforming use and that they are located on the same lot. We gather also that within the relevant geographical area these uses are customarily incidental to the operation of a hotel. Whether a bar or a meeting room would be subordinate and clearly incidental to the hotel-restaurant operations or whether they would alter the character of the area or be detrimental thereto, however, are questions regarding which the present record fails to supply an adequate basis for decision. The record does not reflect the size of the floor space of the hotel, restaurant, bar and meeting room. The evidence does not disclose the number of patrons that the hotel and restaurant are expected to serve. These facts must be determined in order to decide the maximum permissible size of a bar or a meeting room which is subordinate, incidental and related to the hotel-restaurant use. Nor can we determine from the present record whether operation of a related, subordinate and clearly incidental bar and meeting room in connection with the hotel would alter the character of the area or be detrimental thereto. A bar or meeting room of sufficient dimensions to serve the hotel restaurant patrons may or may not alter or be detrimental to the character of the area. Because the state of the record makes it improper for this court to decide these and similar questions, and because we have attempted to clarify some of the relevant jurisprudential precepts for the first time, we will remand the case to the trial court for further proceedings.

On the other hand, the record fully supports the court of appeal’s finding that the sale of alcoholic beverages is properly an accessory use to the restaurant operation. Such incidental sale of beverages with meals is customarily incidental to restaurants in the relevant geographical area and is related, subordinate and clearly incidental to the Columns restaurant. This restaurant-related use is located on the same lot and does not alter or do detriment to the area.

In their third assignment of error, relator hotel owners contend that no additional parking spaces will be required by their operation of the bar and the meeting room since the number of new spaces required is less than ten percent. Article 1, sec. 1. Before this calculation can be made, however, the trial court must take additional evidence and determine, among other relevant factors, the following: (a) whether a bar or a meeting room fulfilling all of the requirements of an accessory use will be permitted; (b) the floor space which each principal and accessory use will be permitted to occupy; (c) the space previously occupied by each of the uses of the Columns; (d) whether the principal and accessory uses require an increase of at least 10% over the number of parking spaces previously required.

Accordingly, the court of appeal judgment is affirmed insofar as it recognizes that the hotel and restaurant are legal nonconforming uses, and that service of alcoholic beverages with meals in the restaurant is a proper accessory use but the judgment is otherwise vacated and the case is remanded for further proceedings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I am unable to disagree with the majority that relators should not be enjoined from expanding the restaurant within the existing building. Although the majority correctly holds that a cocktail lounge and meeting room are less restricted uses than a hotel use, I disagree with its conclusion that these uses may be permitted as accessory uses to the nonconforming hotel use. The definition of a hotel provides in pertinent part:

Where a hotel is permitted as a principal use, all uses customarily and historically accessory thereto for the comfort, accommodation and entertainment of the patrons, including the service of alcoholic beverages, shall be permitted. (Emphasis added.)

Clearly, this allows accessory uses only in relation to a permitted principal use, not a nonconforming use. The general definition of an accessory use must be read in pari materia with the definition of hotel.

Accordingly, I respectfully concur in part and dissent in part.