text:
    DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, State of Louisiana, Plaintiff-Appellee, v. Ray MAJORS, Defendant-Appellant.
    No. 83-217.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 5, 1983.
    William Henry Sanders, Jena, for defendant-appellant.
    Robert J. Jones, Baton Rouge, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

Defendant, Ray Majors, appeals a judgment which enjoined him from using the facility located upon his property as an airport, or from otherwise landing or taking off any aircraft from such facility.

Defendant contends that the trial court’s judgment. (1) deprives him of his private property; and (2) conveys authority upon the Department of Transportation and Development that has never been granted to them by the Louisiana Legislature.

We find no merit in defendant’s contention and accordingly affirm.

FACTS

Defendant Majors applied to the Office of Aviation and Public Transportation of the State of Louisiana (hereinafter OAPT) for a permit to construct and operate an airport on his property in St. Landry Parish. The land upon which the proposed airport was to be built had been used by him as a private landing strip since 1962.

The application which the defendant filed resulted in an inspection of the premises by representatives of the Federal Aviation Administration of the U.S. Government (hereinafter FAA) and by representatives of OAPT. As a result of this inspection, it was determined that the premises upon which the facility was to be built were unacceptable for the proposed use and in fact, constituted a hazard to aircraft operators and to the general public in the form in which they were presently being operated.

After this facility was reviewed and considered by both the FAA and OAPT, the former notified Mr. Majors that the facility did not meet its requirements. The OAPT attempted to notify the defendant that it had likewise disapproved his application but Mr. Majors refused delivery of their notice. When the defendant refused delivery, an investigator of the Attorney General’s Office, Department of Justice of the State of Louisiana, Mr. Carl Allen, went to the home of the defendant and personally delivered to him copies of these documents.

Thereafter, this suit was filed by the Louisiana Department of Transportation and Development seeking a temporary restraining order and in due course a preliminary injunction and ultimately a permanent injunction. The temporary restraining order was allowed to expire and the matter proceeded to trial on the merits of the preliminary and permanent injunction. The parties had stipulated that the testimony and evidence relevant to the application for a preliminary injunction would be the same as the application for a permanent injunction, and these matters were therefore consolidated for trial. The trial court subsequently granted the injunction sought by the Department.

MERITS

In seeking reversal, the defendant claims that the continued use by him of his private landing strip violates no state or federal law. We disagree.

La.R.S. 2:14 et seq., pertaining to the regulation of aeronautics, provides that any person who has been aggrieved by an Order of the Department of Public Works must appeal that Order within ten days to the district court. If no appeal is taken within the period fixed, the party against whom the Order was entered, shall have waived the right to have the reasonableness or lawfulness of the Order reviewed by any Court. Here defendant did not appeal the Department’s Order within ten days, hence we are precluded from considering that issue. However, we note for the record that Mr. Majors’ application was rejected because the FAA determined that the unsafe operational conditions of the airport constituted a hazard to the residents adjacent to the facility.

Because administrative procedures prevent us from inquiring into the reasonableness of the Department’s Order, we must divert our inquiry towards whether or not the action taken was a proper function of a State Departmental Agency.

First, there remains no question that the State may delegate its police power to a commission, or administrative board. State v. City of New Orleans, 151 La. 24, 91 So. 533, 539 (1922); Fernandez v. Alford, 203 La. 111, 13 So.2d 483, 489 (1943). In the case at hand this is exactly what the Legislature has chosen to do. In La.R.S. 2:8 the Louisiana Legislature vested in the Department of Public Works the authority to supervise the construction and operation of airports and landing fields. Subsequently La.R.S. 36:509 transferred that authority to the Department of Transportation and Development, the plaintiff herein. Having determined that it is permissible for the Legislature to bestow this power upon the Department of Transportation and Development, we must proceed to determine whether their actions in this case constitute a proper exercise of the police power of the state.

In Schwegmann Bros. v. Louisiana Board of Alcoholic Beverage Control, 216 La. 148, 43 So.2d 248 (1949), the Louisiana Supreme Court, quoting from 11 American Jurisprudence verbo Constitutional Law, Section 267, stated:

‘Although constitutional guaranties cannot be transgressed, it is settled that the possession and enjoyment of all rights are subject to the police power which includes such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Consequently, both persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, welfare, and prosperity of the people of the state; everything contrary to public policy or inimical to the public interest is the subject of the exercise of the power. The return for the sacrifice of private rights, however, should be the attainment of some public object of sufficient necessity and importance justly to warrant the exertion of the power. Regulation to be valid must tend to some ulterior good to which the destruction or curtailment of rights is merely incidental.’ 5⅜ ⅝ ⅜
(Emphasis added by this Court.)

Thus, there is no doubt that Mr. Major’s property is subject to restraint. Accordingly, the only question that remains is whether the restraints imposed achieve the attainment of some public object of sufficient necessity and importance to justify this exertion of power.

The record reveals that the defendant’s facility is located adjacent to the most heavily populated and densely inhabited area of the Town of Melville. The record further reveals that both the OAPT and the FAA determined that the unsafe operation of the facility resulted in aeronautical activities which were potentially hazardous to Melville’s residents. We have no hesitation in finding that the protection of the security and welfare of these citizens constitutes a public object of sufficient necessity to justify the restraints imposed upon the use of Mr. Major’s property.

For the above and foregoing reasons the judgment of the trial court is affirmed, with all costs assessed against defendant, Ray Majors.

AFFIRMED.

      . Defendant claims that under old legislation a “landing strip” was not under the authority of the Department. Regardless of the relevancy of that contention we note that old La.R.S. 2:1(8) now repealed by Acts 1978, No. 131, § 1, eff. June 23, 1978) stated specifically that the use of a “landing strip” “shall.be only as provided from time to time by the Department

      . La.R.S. 2:14-16 provide:
      “Any person against whom an order has been entered may, within ten days after the service thereof, appeal to the district court for the parish in which property affected by the order is located, for the purpose of having the reasonableness or lawfulness of the order inquired into or determined.
      The party taking the appeal shall file a praecipe in the office of the clerk of court for the parish in which the property affected by the order is located, and summons shall thereupon be issued by the clerk and shall be served upon the director of public works. Upon the filing of the praecipe, the appeal shall be docketed for trial not less than ten days nor more than thirty days after the service of the summons and shall be tried by the district court without formal pleadings in term time or in vacation. Upon the trial of the appeal, the court shall hear evidence as to matters concerning the order in question, as to the condition of the property in question and the manner of its operation, and shall enter judgment either affirming or setting aside the order of the department, or the court may remand the matter to the department for further hearing. The filing of the praecipe shall operate as a supersedeas.
      If no appeal is taken from the order of the department of public works within the period fixed, the party against whom the order was entered, shall have waived the right to have the reasonableness or lawfulness of the order reviewed by any court and there shall be no trial of that issue in court in which suit may be instituted for the penalty for failure to comply with the order.”

      . As will be shown, infra, in the body of this opinion, the powers and duties of the Department of Public Works as relates to aeronautics has been transferred to the Louisiana Department of Transportation and Development. See La.R.S. 36:509.

      . La.R.S. 2:8 provides:
      “All proposed airports, landing fields, air schools, flying clubs, air beacons, or other navigation facilities, shall first be approved by the department of public works before they are so used or operated. No airport, landing field, air school, flying club, air beacon, or other air navigation facility, excepting airports and landing fields constructed and operated prior to July 28, 1936, shall be used or operated without the approval of the department and no aircraft, except in case of emergency, shall land upon or take off from any area in the state other than an airport, landing field, or landing strip. No license, rule, order, or regulation promulgated under the authority of this Section or of this entire Chapter shall apply to airports, landing fields, air beacons, air markings, or other air navigation facilities owned or operated by the government of the United States or by this state. The department of public works may issue a certificate of its approval in each case and make reasonable charge therefor.”


source: Caselaw Access Project

author: KNOLL, Judge.

license: Public Domain

text:
    BUILDING SPECIALTIES, INCORPORATED, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendant-Appellants.
    No. 83-234.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 7, 1983.

      Rivers & Willson, Larry W. Rivers, Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellants.
    Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendant-appellee-appellant.
    Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellee.
    Before DOUCET, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

Plaintiffs in these consolidated actions seek property damage (Docket No. 83-234) and damages for personal injury 440 So.2d 989, arising from a collision on September 7, 1981, between a 1980 Chevrolet Chevette owned by John A. Caesar and operated by James H. Clark, and a Superior Dodge motorhome owned by Building Specialties, Inc., and operated by Walter D. Lafargue. The accident occurred in Sabine Parish when the 1980 Chevrolet Chevette ran a stop sign at the intersection of Louisiana Highways 476 and 6 and collided with the motorhome. James H. Clark, the alleged driver of the Caesar vehicle, State Farm Mutual Automobile Insurance Company as the insurer of John A. Caesar, and Fireman’s Fund Insurance Company as the insurer of James H. Clark were made defendants in both suits.

James H. Clark filed a third party demand in both suits against Fireman’s Fund Insurance Company demanding payment for any judgment for which he may be cast and for his attorney’s fee.

With the exception of the third party demand and the amount of damages sustained by Building Specialties, Inc. (which were stipulated) all issues were tried by a jury. In response to specific interrogatories the jury returned a verdict in plaintiffs’ favor and fixed Walter D. Lafargue’s personal injury damages at $1,500.

The trial judge rendered its judgment on the third party demand in favor of third party plaintiff, James H. Clark, and against third party defendant, Fireman’s Fund Insurance Company, awarding attorney fees in the sum of $2,350 plus costs.

Timely appeals were taken on behalf of State Farm Mutual Automobile Insurance Company and Fireman’s Fund Insurance Company.

This appeal presents three issues:

1. Whether the jury erred in ruling that James H. Clark was driving the 1980 Chevrolet Chevette at the time of the accident;
2. Whether the jury erred in holding that the driver of the 1980 Chevrolet Chevette owned by John A. Caesar and insured by State Farm Mutual Automobile Insurance Company had the express or implied permission of the named insured, John A. Caesar, to use said automobile; and
3. Whether the trial judge erred in ruling that Fireman’s Fund Insurance Company had a duty to defend James H. Clark.

DETERMINATION OF DRIVER

There is a dispute as to who was driving the 1980 Chevette at the time of the accident. Throughout his pleadings James H. Clark denied that he was the driver of the vehicle. During the trial he exercised his fifth amendment rights in response to all questions relating to the accident. (There was a pending criminal appeal against Clark for negligent homicide.)

At the time of the accident the only other occupant of the Chevette was Mark Fruge who testified that James H. Clark was the driver. The state trooper who investigated the accident testified that James H. Clark told him at the accident scene and again later at the Sabine Parish Sheriff’s office that he was the driver. Another state trooper testified that when he went to the hospital to obtain a blood sample Clark stated he was the driver of the vehicle.

These testimonies were substantiated by two witnesses to the accident who identified James H. Clark as being at the steering wheel of the Chevette just after the accident.

Fireman’s Fund introduced the testimony of a witness (not present at the accident) who stated that thirty minutes before the accident he observed two young men switch drivers in a white vehicle. This occurred about 10 miles from the accident site. He stated that the person with the longer, lighter colored hair (Mark Fruge) became the driver and the individual with the darker, shorter hair (James H. Clark) became the passenger.

At trial only Fireman’s Fund made the driver identification an issue. State Farm conceded that James H. Clark was the driver of the Caesar Chevette at the time of the accident.

A reviewing court must give great weight to the factual conclusions drawn by the trier of fact, and where there is conflict in testimony reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed. Johnson v. Alexander, 406 So.2d 1378 (La.App. 3rd Cir.1981) writ granted 412 So.2d 88, case reversed on other grounds 419 So.2d 451 (La.1982); Smith v. Town of Logansport, 395 So.2d 888 (La.App. 2nd Cir.1981), writ denied 400 So.2d 1379 (La.1981). Therefore, we affirm the jury determination that James H. Clark was the driver of the Chevette at the time of the accident.

PERMISSION TO DRIVE

The record reveals that Moxie Caesar (the son of John A. Caesar), Mark Fruge, and Mark Matthews rode in a 1980 Chevrolet Chevette to the Toledo Bend area near Many on the evening preceding Labor Day where they were joined by Joey Matthews, James H. Clark, and two girls. They stayed in two trailer homes at Toledo Bend and spent most of the night drinking beer. James H. Clark and Mark Fruge woke up before daylight on Labor Day to go dove hunting. Clark and Fruge first requested the use of the truck belonging to Joey Matthews who declined because he needed it to go fishing. They then sought and received Moxie Caesar’s permission to use the Che-vette. Fruge left the trailer site driving the Caesar vehicle. Fruge drove a short distance to a point at Toledo Bend where he and Clark hunted doves in a goat weed area. Since there were no doves they shot beer cans for about 15 minutes and then drove toward Many and Zwolle. They purchased a bottle of Jack Daniels Whiskey which they consumed to the point of intoxication. For several hours they drove around the Toledo Bend area switching the driver-passenger positions at least once. Their jaunt ended when Clark ran the stop sign at the intersection of highways 476 and 6 and struck the motorhome causing it to cross the centerline and strike another vehicle.

State Farm and Fireman’s Fund contend that the operator of the Chevette at the time of the accident was not an omnibus insured under their respective automobile insurance policies.

State Farm and Fireman’s Fund rely on Rogillio v. Cazedessus, 127 So.2d 734 (La.1961), for support of their contention. Plaintiffs rely on American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969).

Here, the alleged omnibus insured driver, Clark, borrowed an automobile from Moxie Caesar, the twenty-one year old son of the named insured, John Caesar. This automobile was under the general control and supervision of Moxie Caesar. Moxie’s control and supervision was allegedly restricted by John Caesar’s instructions to his son not to let anyone else use the vehicle.

The general rule is that the child of the named insured cannot violate the express restrictions of the named insured by allowing another to use the insured vehicle so as to cause the user to become an omnibus insured. Rogillio, supra; Devall v. State Farm Mutual Insurance Company, 249 So.2d 282 (La.App. 1st Cir.1971); Lee v. Allstate Insurance Company, 274 So.2d 433 (La.App. 1st Cir.1973); Coco v. State Farm Mutual Automobile Insurance Company, 136 So.2d 288 (La.App. 3rd Cir.1961). Appellants stress that the jury’s determination that the driver of the Chevette was using it with the express or implied permission of the named insured was manifestly erroneous and should be set aside.

Initially Moxie Caesar’s use of the Che-vette was not broad, free and unrestricted. His use of the automobile was subject to his father’s instructions that no one other than Moxie was to drive the car. On the other hand Moxie testified that he often let Mark Fruge drive his Chevette. Moxie’s father testified that he had seen Moxie’s girl friends driving the Chevette.

Moxie testified that he used the Chevette as his car. He maintained the vehicle and paid his father $40 a week for the car note. Moxie’s father denied this asserting that he maintained the vehicle and paid the entire car note.

Moxie’s father was firm in his assertion that it was a family policy, extending to the years when Moxie’s older brothers used the family cars, that only family members were permitted to use the cars. Yet in direct contradiction, Mrs. Williams, a friend of John Caesar, stated that although she was not a family member, Moxie’s father loaned her the family autos without restriction.

We find this case is an exception to the general omnibus driver rule. This exception occurs when the first permittee (Moxie) violates the restrictions of the named insured (John) to the knowledge of the named insured who makes no significant protests. In this situation the named insured is said to have impliedly consented to the second permittee’s use and the second permittee is classified as an omnibus insured. Devall, supra; Butler v. Pardue, 415 So.2d 249 (La.App. 2nd Cir.1982).

In the instant case the named insured was aware that his son had allowed others to drive the vehicle. No showing was made that John Caesar significantly protested these violations. We find that the jury was not clearly wrong in conelud-ing that this exception was applicable to the instant case.

Fireman’s Fund also contends that the jury erred in concluding that Clark reasonably believed that he had the express or implied permission of the owner to use the vehicle. Clark was under the impression that Moxie owned the Chevette. Moxie testified he would not have loaned the car to Clark since he did not know Clark that well. He meant to loan the car only to Fruge. Moxie did not communicate this restriction to Fruge. When Fruge asked Moxie for the use of the car, he stated: “Well, I asked Moxie if we could use his car to go [hunting] and he said we could.” Fruge felt justified in asking Clark to drive because Fruge felt he was too drunk to drive. Fruge also stated that on previous occasions, he drove Moxie’s car when Moxie was too drunk to drive. The facts of this case show that Moxie had general unrestricted use of the car and he in turn loaned his car to others unrestricted. We find that the jury was not clearly wrong in concluding that Clark reasonably believed that he had the express or implied permission of the owner to use the car.

The language of the Fireman’s Fund insurance contract regarding non-owned automobiles provides broader coverage than the omnibus clause. Under the Fireman’s Fund policy an insured is protected by the non-owned automobile clause not only when using it with the owner’s permission, but also when reasonably believed to be with the owner’s permission. The contract language “reasonable belief” provides a subjective standard regarding a determination of permission. Coverage is provided under this language as long as the permittee reasonably believed that he had the owner’s permission, whether or not the person granting permission had actual authority to transmit such permission. Johnson v. Aetna Casualty and Surety Co., 274 So.2d 769 (La.App. 3rd Cir.1973).

DUTY TO DEFEND

At the time of the accident Fireman’s Fund had issued an automobile liability policy to Jerald Clark, father of the defendant, James H. Clark, which afforded coverage to James H. Clark. The defendant, James H. Clark, filed a third party demand against Fireman’s Fund when they refused to defend him against plaintiffs’ action.

In American Home Assurance Company v. Czarniecki, supra, the court held that an insurer’s duty to defend its insured is broader than its liability for damage claims. In accord see: ADA Resources v. Don Chamblin & Associates, 361 So.2d 1339 (La.App. 3rd Cir.1978); Lumbermans Mutual Casualty Co. v. Rollings, 355 So.2d 1041 (La.App. 4th Cir.1978); Thomas v. Appalachian Insurance Company, 335 So.2d 789 (La.App. 1st Cir.1976); Clemmons v. Zurich General Accident & Liability Insurance Company, 230 So.2d 887 (La.App. 1st Cir.1969). The allegations of plaintiff’s petition determine the insurer’s duty to defend suits brought against its insured. Clemmons supra; ADA Resources, supra. The insurer is under an obligation to defend its insured regardless of the outcome of the case if, assuming plaintiff’s allegations are true, there is both coverage under the policy and liability to plaintiff. ADA Resources, supra; Benoit v. Fuselier, 195 So.2d 679 (La.App. 3rd Cir.1967). Unless plaintiff’s petition unambiguously excludes coverage, the insurer is under a duty to defend its insured. Thomas, supra; Benoit, supra. Applying these tests to the case at bar, we find the plaintiffs’ petitions alleged sufficient facts against James H. Clark which obligated Fireman’s Fund to furnish a defense for Clark. Fireman’s Fund contends that since Clark did not include State Farm in his third party demand, Clark waived his right to recover any attorney’s fees since State Farm is primarily liable and Fireman’s Fund secondarily liable, thus Fireman’s Fund can only be held accountable after the policy limits of State Farm’s policy are exceeded. Fireman’s Fund relies on American Home Assurance Co. v. Czar-niecki, supra, for its contention. In Czarniecki, both the primary and secondary insurers were sued and both insurers were found to owe a duty to defend the suit. Czarniecki does not stand for the proposition that if the primary insurer is not sued and only the secondary insurer is sued, the attorney’s fees are waived. Notwithstanding Clark’s failure to third party State Farm, we find Fireman’s Fund owed Clark a duty to defend and its failure to defend Clark was a breach of contract entitling him to the award of $2,350 plus costs.

For the foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant-appellants, Fireman’s Fund Insurance Company and State Farm Mutual Automobile Insurance Company, one-half to each.

AFFIRMED.


text:
    Walter D. LAFARGUE, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 83-235.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 7, 1983.
    Rivers & Willson, Larry W. Rivers, Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellant.
    Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendant-appellee-appellant.
    Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellee.
    Before DOUCET, LaBORDE and KNOLL, JJ.
   KNOLL, Judge.

For the reasons stated in the companion case of Building Specialties, Incorporated v. State Farm Mutual Automobile Insurance Company, et al., 440 So.2d 984 (La.App. 3rd Cir.1983), in which a separate decision is being rendered by us this day, the judgment of the trial court is affirmed.

Costs of this appeal are assessed to defendant-appellants, Fireman’s Fund Insurance Company and State Farm Mutual Automobile Insurance Company, one-half to each.

AFFIRMED.


author: YELYERTON, Judge.

text:
    Danny A. DAUZAT, Plaintiff-Appellee, v. GREGORY & COOK, INC., et al., Defendants-Appellants.
    No. 83-249.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 7, 1983.

      Gregory J. LaBorde and Hal J. Brous-sard, of Andrus, Preis & Kraft, Lafayette, for defendant-appellant.
    John Saunders, of Saunders & Walker, Ville Platte, for plaintiff-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   YELYERTON, Judge.

This workmen’s compensation case was presented to the trial court as a claim for partial permanent disability benefits. The trial court awarded benefits for partial permanent disability and also penalties and attorney’s fees. From this judgment defendants have appealed. We reverse.

The case involves only the question of partial permanent disability because of a prescription problem with possible other claims. Plaintiff’s pleadings initially demanded benefits for total permanent disability, but the petition was met with an exception of prescription since more than a year had passed when the suit was filed from the date the injury manifested itself. At the beginning of the trial plaintiff consented to a ruling maintaining the exception of prescription as to any claim for total disability, leaving for the merits only the questions of whether the demand could be proved as to either partial permanent disability or a scheduled loss disability claim. At the trial plaintiff apparently did not pursue the claim for loss of a physical function as no evidence was adduced bearing on that claim. In any event, we note that the scheduled loss disability claim, like the total and permanent disability claim, was prescribed. Wright v. Aetna Life and Cas. Co., 360 So.2d 235 (La.App. 1st Cir.1978), appeal after remand 405 So.2d 1166 (La.App. 1st Cir.1981).

Plaintiff was injured on May 31,1980, on a pipeline construction job near New Iberia, Louisiana, where he was employed by Gregory & Cook, Inc., as a laborer. While guiding a winch line on a road boring machine, he fell twisting his right knee. The accident happened on a day late in the week and plaintiff continued to work that day and the next. During the weekend the knee became swollen and painful. After he reported to work early the following week, he went to see Dr. Gregory Savoy in Mam-ou, Louisiana. The doctor diagnosed a knee strain and gave plaintiff a prescription of antibiotics. He also recommended bed rest with elevation of the leg. Dauzat followed the doctor’s orders. He returned to work the following Saturday, June 8.

Except for these few days following the accident, plaintiff never lost a day of work as a result of the injury. The time that elapsed between the date of the accident, May 31,1980, and the date of trial, September 28, 1982, was a period of some 28 months. During this time plaintiff worked, as he had in the past, whenever work was available. The nature of his employment required that he go from one employer to another on different pipeline jobs. He stayed on the job where he was injured with Gregory & Cook, Inc., for two months after the injury. A week after he left the Gregory & Cook job he went with the Sun Land Construction Company for three months, this job ending on November 10, 1980. From sometime in January to the end of March, 1981, he worked for L.S. Womack. From August 23, 1981, until October 29, 1981, he was on a job for W.L. Golightly. Finally, he did a job with Ashy Pipeline Construction Company that lasted three weeks in November, 1981. He frankly admitted that the reason he was unemployed during the several months preceding the trial date was not because of his injury but because pipeline construction had slowed down.

Plaintiff worked as a pipeline construction laborer on each of these jobs. He was a member of a pipeline construction worker’s union local, and received all of his jobs through the local. He has never withdrawn his name from the union list for job availability, and has accepted every job offered him. At no job did he receive pay less than what he was getting at the time of his injury. There is no indication in the record that his work ability or his employability has suffered because of the accident. To the contrary, he admitted that on every job he did everything he was required to do as a pipeline construction laborer. He admitted that he has told neither his union local nor any employer that his ability to work was impaired; he has never refused a call for work from his union local; and he declared that he was available for work at the time of trial. He never missed a day of work and never left the job before the day was done. He never quit any of the five jobs he held since his injury because of the injury; he left each job only because the job was finished. Plaintiff also admitted that he has never sought work except through his union and that he has not sought any kind of employment other than as a pipeline construction laborer.

The trial court made a finding of fact that plaintiff could not “perform all of the duties which he was customarily engaged in when injured, or duties of the same or similar character, nature or description for which he was fitted by education, training or experience.” La.R.S. 23:1221(3), as amended, provides that an employee is deemed partially disabled if he is unable “to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience ...” The evidence clearly shows from plaintiff’s own testimony that he has been able to perform all the duties and that he has in fact performed all the duties in which he was customarily engaged when injured. There was no other testimony beside plaintiff’s regarding his work performance. Accordingly, the trial court’s finding of fact that plaintiff could not perform all the duties which he was customarily engaged in when injured is clearly wrong. See Augustine v. Courtney Const. Co., etc., 405 So.2d 579 (La.App. 3rd Cir.1981), writ denied 407 So.2d 735 (La.1981).

Plaintiff defends the judgment in his favor by urging that the trial court made a finding supported by the evidence that, though he has worked, he did so in substantial and appreciable pain. The trial court said:

“The Court believes that the plaintiff does suffer pain in his knee at irregular intervals and will probably suffer substantial pain when doing heavy or laborious work, such as a laborer on a board run. He will be limited in his duties since he will not be able to squat, walk on uneven terrain, or lift heavy objects. The Court places heavy reliance on the plaintiff’s work history and his testimony stating that the reason he continued to work was because of the needs of his family.”

Plaintiff’s work history, on which the trial court placed heavy reliance, comes from plaintiff’s testimony alone. While his testimony can be construed to describe substantial and appreciable pain, whether he actually suffered substantial and appreciable pain is not supported by the testimony of his own doctor, who was the only medical expert to testify in the case, nor is it supported by any demonstrative fact in the record. We do not interpret the trial court’s quoted reasons for judgment as meaning that plaintiff worked in substantial and appreciable pain.

Dr. Gregory M. Savoy of Mamou, Louisiana, first saw plaintiff on June 3,1980, four days after the accident. The right knee was swollen and painful. X rays were negative. Dr. Savoy prescribed antibiotics and bed rest, and ordered plaintiff to return in two weeks. Plaintiff went back to work on June 8. He returned to see the doctor, as instructed, on June 18. At this time the knee was no longer swollen, there was no tenderness, there was a full range of motion, and plaintiff was given a release to return to work.

It was not until August 4,1981, almost 14 months later, that plaintiff returned to Dr. Savoy. He was not working at that time. He told the doctor on this occasion that his knee would give out on him while walking and that it would swell and become painful from time to time. The doctor noted no redness on that occasion as he had on the initial visit. However, he prescribed physical therapy and it was his diagnosis that there was some inflammatory process in the joint, probably from a ligament tear, causing the instability and occasional swelling and- pain. The doctor thought that these symptoms suggested that a chronic problem had developed as a direct result of the first injury. There was evidence that shortly before this visit plaintiff had fallen in a hole while working in his garden. He did not tell Dr. Savoy about this fall.

About six months later, on February 5, 1982, plaintiff returned to see Dr. Savoy for the last time. He complained of constant pain that was worse with standing, associated with swelling of the joint. The knee remained unstable. The doctor prescribed an anti-inflammatory agent and pain medication.

The doctor’s deposition was taken for trial purposes. He opined — and this is the only medical opinion in the record — that based on what plaintiff told him the knee would probably give him some trouble the rest of his life. It will not be as mobile as it once was. Plaintiff cannot assume the awkward positions required of heavy laborers. He cannot jump from any height to the ground, even if the distance is only two feet to three feet. He cannot squat or assume other awkward positions. It was his opinion that the injury was permanent. He thought there was an inflammatory reaction present.

Plaintiff himself testified that the pain had become more or less constant and that it was aggravated with any kind of activity. He described the various home remedies he resorted to such as elevation of the leg and use of over-the-counter pain medication. These remedies provided relief. His testimony in this regard was corroborated by that of his wife. Both testified that plaintiff regularly wore trousers to work which Mrs. Dauzat had slit in the right knee area to accommodate the swelling that was usually anticipated to occur each day as the day wore on. However, both testified that plaintiff regularly worked in his garden. Plaintiff said he continued to hunt, though he did not “hunt as far” as he once did.

Dr. Savoy was never asked to express an opinion regarding the nature or degree of plaintiff’s plain. In fact, whether he was of the opinion that plaintiff suffered any pain at all can only be deduced from plaintiff’s complaints to him and the fact that he prescribed pain medication on the last two occasions he saw him. On neither of those two occasions, fourteen months and twenty months, respectively, after the date he was found by the doctor to be symptom free, did plaintiff exhibit any objective findings of the swelling about which he complained. Under these circumstances we cannot find that Dr. Savoy’s testimony was supportive of plaintiff’s claims of substantial and appreciable pain.

Plaintiff testified by deposition before trial that after the accident he worked as a straw boss and thereby avoided the harder work of a pipeline construction laborer. At trial he admitted that most of the time he was employed simply as a construction laborer and that he did whatever the job called for. He also testified there were times when his co-workers helped him and that he “babysat” his knee on every job. The payroll records in evidence reflect that on one job plaintiff worked with as many as twelve people, yet he called not a single co-worker who might have substantiated his testimony.

The claimant has the burden of proving to a legal certainty and by a reasonable preponderance of the evidence that he is disabled. Miller v. Electrical and Pneumatic Services, 434 So.2d 602 (La.App. 3rd Cir.1983). Whether the claimant has carried the burden of proving disability must be determined by examining the totality of the evidence, including both lay and medical testimony. Miller, supra. The claimant who alleges disability because of inability to perform his usual and regular duties without substantial or appreciable pain must establish the existence of that condition by a preponderance of the evidence. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980). A claimant will not be held to be disabled solely because he suffers some residual pain and discomfort when he attempts to work following a work-related accident. The residual pain and discomfort in such circumstance will be disabling only if it is substantial or appreciable pain. Fusilier v. Shurt-leff & Andrews, Inc., 432 So.2d 1106 (La.App. 3rd Cir.1983). Whether a claimant’s pain is substantial enough to be disabling is a question of fact that must be determined according to the circumstances of each individual case. Fusilier, supra.

Since we are not concerned here with a total permanent disability inquiry, but with a partial permanent question only, our task is limited to a determination of whether the worker can perform his former duties without substantial pain. The cases of Culp v. Belden Corp., 432 So.2d 847 (La.1983) and Parks v. Louisiana Health Care Ass’n, 436 So.2d 693 (La.App. 3rd Cir.1983) tell us that in such cases “the pain accompanying routine physical tasks and attempts to return to work must be substantial, serious, intense and/or severe.” We have found that the trial judge was clearly wrong in finding that plaintiff was unable to do his work. If we interpret his reasons for judgment correctly, we think he was right in his finding that plaintiff’s present problem of pain is at “irregular intervals” and that whatever future problem of substantial pain that may present itself is speculative. This is not a sufficient basis on which to make an award of benefits. There is certainly nothing in the trial court’s reasons for judgment on which we can base a presumptively correct factual finding of constant pain. Plaintiff’s trial testimony was that his problem had become “constant pain.” We interpret the trial judge’s decision to be a rejection of plaintiff’s “constant pain” testimony in favor of what the trial court chose to describe as “pain at irregular intervals.”

On the facts of this case we find that plaintiff has failed to prove disability and, for the reasons assigned, we reverse the judgment of the district court and render judgment dismissing his claims at his costs.

REVERSED AND RENDERED. ■


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Bobby Ray BROWN, Defendant-Appellant.
    No. CR83-121.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1983.
    Writ Denied Jan. 16, 1984.

      Robert L. Kennedy and Thomas G. Wilson, Colfax, for defendant-appellant.
    Joseph P. Beck, II, Dist. Atty., and James M. Buck, Asst. Dist. Atty., Colfax, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   DOUCET, Judge.

The defendant was found guilty of manslaughter and sentenced to 18 years imprisonment. Defendant appeals his sentence as excessive.

The uncontroverted facts are as follows: In the early morning hours of February 28, 1981, the defendant, Bobby Ray Brown, and a friend drove to the Shady Grove Cafe and Lounge in Colfax, Louisiana for the purpose of entertaining themselves at the lounge. Shortly after arriving at the Shady Grove, the pair walked next door to another lounge. After staying at the neighboring lounge approximately one-half hour, the defendant decided to return to the Shady Grove.

As he was walking to the Shady Grove, the defendant came upon three men who were arguing in the parking lot. According to the defendant, in a spirit of trying to keep the peace, he tried in a friendly way to stop the argument between the three people. When the argument broke up one of the participants in the argument, Harold Phillips, went into the Shady Grove and got his brother, Chester Phillips, the decedent. The decedent and Harold Phillips met the defendant at the door of the Shady Grove. Harold Phillips grabbed the defendant from behind and the decedent administered a beating to the defendant by striking the defendant repeatedly in the face with his fist. The Phillips brothers continued to administer a beating to the defendant until the defendant collapsed on the ground. At this time the defendant produced a .25 automatic pistol and, at the sight of the pistol, the Phillips brothers fled. According to the testimony of the defendant, he shot Chester Phillips as Chester was motioning towards his pants which the defendant interpreted as reaching for a weapon. However, the jury did not accept that the defendant was acting in self-defense. After firing one shot at Chester Phillips, the defendant fired again in the air as a warning to the other Phillips brother. Chester Phillips died the following day.

After being found guilty of manslaughter, the trial judge, on December 9, 1982, sentenced the defendant to eighteen (18) years imprisonment or three years less than the statutory maximum. The entire transcript of the sentencing is as follows:

“BY THE STATE: No. 37362, State of Louisiana vs. Bobby Ray Brown.

BY THE COURT: Written reasons will be handed down on this matter here. Mr. Brown, you’re up here for sentencing at this time. And the sentence of the Court is that you be imprisoned with the Department of Corrections at hard labor at any institution that they see fit for a period of 18 years. And written reasons will be handed down. He’s with you, Mr. Sheriff. And your motion for bail bond is denied. That’s all. Next matter.”

Subsequently the same day the trial judge assigned extensive written reasons for the sentence ordered. Thereafter, the pre-sentence investigation report was filed into the record on December 16, 1982. The following day, December 17, 1982, defendant’s motion and order for appeal was filed.

Under Article 894.1 of the Louisiana Code of Criminal Procedure, a trial judge must state the considerations taken into account and the factual basis therefore in imposing sentence. While the judge need not articulate every aggravating and mitigating circumstance, the record must adequately reflect that he considered these guide lines in particularizing the sentence to the defendant. State v. Ray, 423 So.2d 1116, 1120 (La.1982). The judge is required to indicate that he has considered not only the factors supporting incarceration but also any factors mitigating against it. State v. Ray, 423 So.2d 1116, 1120 (La.1982); State v. Sepulvado, 367 So.2d 762 (La.1979).

In his written Reasons for Sentence, handed down after the defendant’s sentencing, the trial judge noted, inter alia, the seriousness of the crime, the defendant’s tendency toward trouble with the law, the inability of the defendant to compensate for the loss of life and the risk to society if he were released.

Appellant submits that this appraisal by the trial judge is erroneous. The pre-sen-tence investigation which was ordered by the judge contains a statement by Earl Congre, Chief of Police of the town of Montgomery, (the residence of the defendant) who advised “the subject has caused him no problems and has always been a hard worker.” Additionally, appellant contends the evidence adduced at trial showed that the defendant acted under strong provocation (see La.C.Cr.P. Art. 894.1 B(3)), there were substantial grounds tending to excuse or justify defendant’s crime although failing to establish a defense, (La.C. Cr.P. Art. 894.1 B(4)), the victim of the defendant’s criminal conduct induced or facilitated its commission (Article 894.1 B(5)) and the defendant’s criminal conduct was the result of circumstances unlikely to recur (894.1 B(8)). At the defendant’s post-conviction bond hearing, the defendant’s employer, Leon Henson, testified concerning the defendant’s value to him as an employee, and the defendant himself testified as to the hardship his unemployment was working upon his family and dependents (La.C. Cr.P. Art. 894.1 B(ll)).

In 1963, the defendant was arrested in Texas on charges of “threatening life traffic” and “threat to life”. It is not clear exactly what these charges are and there seems to be some indication that this is a traffic offense. These charges were “not verified”. In June of 1977, the defendant was arrested in Colfax, La. for Disturbing the Peace, Unauthorized Use of a Movable, and Resisting an Officer and was subsequently placed on probation for one year. Several months later, in November of 1977 the defendant was arrested on a murder charge which was never prosecuted by the District Attorney’s Office of Grant Parish, Louisiana. Additionally, the defendant was arrested for aggravated assault and possession of marijuana on November 13, 1979, however, the charges were subsequently dismissed. The trial judge stated “Since Bobby Ray Brown’s criminal conduct was not the result of circumstances unlikely to recur and because Bobby Ray Brown seems to have a propensity to retaliate violently whenever confronted, it does not appear unlikely that Bobby Ray Brown would commit another similar crime.”

Both the Louisiana and United States Constitutions protect individuals against excessive punishment. La. Const. Art. 1 § 20; State v. Sepulvado, 367 So.2d 762 (La.1979); U.S. Const. Eighth Amendment; Solem v. Helm, - U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). See also, Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L. Rev. 1, 63 (1974); and Jenkins, The Declaration of Rights, 21 Loy.L.Rev. 9, 39 (1975). A criminal sentence must be proportionate to the crime for which the defendant has been convicted. Solem v. Helm, supra. The imposition of a sentence which is within statutory limits may nonetheless violate a defendant’s constitutional right against excessive punishment and is therefore subject to appellate review. State v. Sepulvado, supra; Solem v. Helm, supra. A sentence is excessive if it is grossly disproportionate to the severity of the crime. State v. Bonanno, 384 So.2d 355 (La.1980). In Bonanno, it was stated that in determining whether the penalty is grossly disproportionate, the court must consider “the punishment and the crime in light of the harm to society caused by its commission, and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.” Id. at 358. In Solem, the criteria to be employed was set forth as follows:

“In sum, a court’s proportionality analysis under the Eighth amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”

In reviewing a claim of excessive sentencing, the trial judge is to be afforded wide discretion in the imposition of sentences within statutory limits. State v. Abercrumbia, 412 So.2d 1027 (La.1982). Compliance with La.C.Cr.P. Art. 894.1 is an essential aid to appellate review of excessiveness claims. State v. Knox, 425 So.2d 707 (La.1982).

A defendant has the right to present circumstances which mitigate against imposition of a severe sentence and rebut misinformation which the trial court may rely upon in its sentencing decision. State v. Ray, 423 So.2d 1116 (La.1982); State v. Cox, 369 So.2d 118 (La.1979); State v. Trahan, 367 So.2d 752 (La.1978); State v. Ford, 422 So.2d 416 (La.1982); State v. Lockwood, 399 So.2d 190 (La.1981).

A sentence imposed on the basis of assumption concerning the defendant’s criminal record is inconsistent with due process of law. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); State v. Trahan, supra. To avoid a remand to determine the basis for sentence, the trial judge should inform a defendant of the considerations taken into account and the factual basis therefor in imposing sentence and also allow the defendant an opportunity to rebut or explain unfavorable facts. State v. Sepulvado, supra. In this regard, the Supreme Court has recommended that sentencing judges follow the procedure formulated by the American Bar Association Project on Minimum Standards for Criminal Justice inasmuch as it promotes constitutional due process and fairness. State v. Owens, 377 So.2d 316 (La.1979).

However, to guarantee the aforementioned rights to contest allegations in a pre-sentence investigation, defense counsel must request review of the report and, in the event of denial, one must show the report relied upon by the trial judge contained false information prejudicial to the defendant. State v. Boone, 364 So.2d 978 (La.1978); State v. Berain, 360 So.2d 822 (La.1978). A review of the record before us reveals that none of the aforementioned steps were taken to contest the pre-sentence investigation report itself and the trial judge did not abuse his discretion in not disclosing the considerations documented prior to imposition of sentence. Furthermore, prior criminal activity which a trial court may consider in imposing sentence is not limited to prior convictions. State v. Washington, 414 So.2d 313 (La.1982). Thus, no reversible error results from the sentencing procedure.

It should be noted that the common-law right of allocutus (the traditional inquiry by the judge as to whether the defendant has anything to say why sentence should not be pronounced against him) is no longer required in Louisiana, although the procedure appears to be preferred per Sepulvado and progeny. Compare: Comment (c) to La.C.Cr.Pro. Art. 871 with Sepulvado, supra.

The maximum penalty for manslaughter, as provided in La.R.S. 14:81, is 21 years. The record clearly shows an adequate factual basis for the sentence imposed. We cannot conclude the trial judge manifestly abused his discretion in imposing a sentence of 18 years. State v. Douglas, 389 So.2d 1268 (La.1980).

For the reasons assigned hereinabove, the defendant’s sentence is affirmed.

AFFIRMED.

      . Art. 894.1. Sentence guidelines; generally
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C.The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

      . “The American Bar Association Project on Minimum Standards for Criminal Justice has formulated standards which provide safeguards against the imposition of sentences based on erroneous information:
      “4.4 Presentence report: disclosure; parties.
      “(a) Fundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interests and which has not otherwise been disclosed in open court should be called to the attention of the defendant, his attorney, and others who are acting on his behalf.
      “(b) This principle should be implemented by requiring that the sentencing court permit the defendant’s attorney, or the defendant himself if he has no attorney, to inspect the report. The prosecution should also be shown the report if it is shown to the defense. In extraordinary cases, the court should be permitted to except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which has been obtained on a promise of confidentiality. In all cases where parts of the report are not disclosed under such authority, the court should be required to state for the record the reasons for its action and to inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure should be subject to appellate review.
      “(c) The resolution of any controversy as to the accuracy of the presentence report should be governed by the principles stated in sections 4.5(b), 5.3(d), 5.3(f), and 5.4(a).
      “4.5 Presentence report: Time of disclosure; presentence conference.
      “(a) The information made available to the parties under section 4.4 should be disclosed sufficiently prior to the imposition of sentence as to afford a reasonable opportunity for verification.
      “(b) In cases where the presentence report has been open to inspection, each party should be required prior to the sentencing proceeding to notify the opposing party and the court of any part of the report which he intends to controvert by the production of evidence. It may then be advisable for the court and the parties to discuss the possibility of avoiding the reception of evidence by a stipulation as to the disputed part of the report. A record of the resolution of any issue at such a conference should be preserved for inclusion in the record of the sentencing proceeding (section 5.7[a][iii]).”
      Although this exact procedure is not now required by rule or statute, it is recommended to sentencing judges as one which promotes constitutional due process and fairness.l Had such a procedure been followed in the present case, the error found in this review may well have been avoided.”

        State v. Owens, supra.


text:
    STATE of Louisiana v. Joseph SHAHEEN.
    No. K-1564.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 23, 1983.
    Writ Denied Dec. 9, 1983.
    Harry F. Connick, Dist. Atty., Donal D. Winston, Asst. Dist. Atty., New Orleans, for relator.
    Ronald Rakosky, New Orleans, for respondent.
    Before SCHOTT, BARRY and BYRNES, JJ.
   The defendant is charged with selling obscene materials, R.S. 14:106(A)(3). The State filed a Notice of Intent to Introduce Evidence of Similar Acts of Defendant to Prove Knowledge, System and Intent (“Pri-eur” Notice). This evidence consists of the defendant’s four previous convictions for selling obscene movies and books. The trial court denied the motion and the State is seeking writs and a stay order.

The State cannot introduce evidence of other criminal acts unless the evidence is substantially relevant for some other purpose (i.e., independent relevance) than to show a probability that the defendant committed the crime on trial because of his criminal character. State v. Kahey, 436 So.2d 475 (La.1983). LSA-R.S. 15:445 and 15:446 provide that evidence of other criminal acts may be introduced to show intent, knowledge or system. State v. Prieur, 277 So.2d 126 (La.1973).

The State argues that the evidence of similar acts has independent relevance because it is probative of the defendant’s intent to sell obscene material. See LSA-R.S. 14:106(A)(3). The State contends that this evidence will prove that the defendant possessed the requisite intent required in a prosecution for the sale of obscene materials.

In State v. Kahey, supra, the court said that before evidence of other crimes is admitted to prove intent, three prerequisites must be satisfied: (1) the prior acts must be similar; (2) there must be a real and genuine contested issue of intent at trial, and (3) the probative value of the evidence must outweigh its prejudicial effect.

In this case the first prerequisite is satisfied. The prior acts were virtually identical to the instant charge, particularly the convictions for sale of obscene books. There is doubt, however, as to whether the defendant’s intent is “a real and genuine contested issue at trial.” The defendant has not alleged that he was unaware of the nature of the magazine or that he did not possess “guilty knowledge” which is an essential element of the crime of obscenity. It’s possible during trial the defendant may raise certain defenses, whereby “intent” would become a contested issue. The defendant’s plea of not guilty, without more, however, does not make “intent” a real and genuine contested issue. State v. Martin, 377 So.2d 259 (La.1979).

The crucial inquiry is with the third prerequisite. Evidence that this defendant sold obscene material on four previous occasions appears to have little relevance to whether he knew that “Woman on Woman” contained obscene material. The probative value of this evidence is far outweighed by the strong prejudicial effect of this evidence at trial. It appears that the State is attempting to impeach the character of the defendant by introducing evidence of his criminal disposition without the defendant placing his character at issue. This is not permitted by the jurisprudence of this State. State v. Prieur, supra.

The trial judge correctly concluded that these facts are not within the ambit of Prieur.

WRIT DENIED.

      . The State admits that the cover of “Woman on Woman” depicted “ultimate sexual acts” which constitutes obscene material under LSA-R.S. 14:106. It would appear that Sha-heen would not argue (as a defense) that he was unaware that the magazine contained obscene photographs.


author: ROBERTSON, Justice,

text:
    John M. TILLER v. STATE of Mississippi.
    No. 54388.
    Supreme Court of Mississippi.
    Nov. 9, 1983.

      John M. Tiller, pro se.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
   ROBERTSON, Justice,

for the Court:

I.

John M. Tiller has petitioned for leave to withdraw a guilty plea entered to an indictment for armed robbery. Among other things, he alleges that he entered his plea in reliance upon advice from his attorney that he would be eligible while in custody to earn “good time” toward early release as would any other prisoner.

In this state persons convicted of armed robbery have a limited right to earn good time. Such is the result of a legislative enactment effective January 1, 1977. For four years thereafter, however, the Mississippi Department of Corrections (MDC) continued across the board to allow persons convicted of armed robbery to earn good time the same as others. This administration policy was in effect on September 19, 1979, the day Tiller entered his plea.

On January 5, 1981, MDC changed its good time policy. John M. Tiller has been advised that he must serve some two years eight months more than was required under the MDC administrative policy in effect on the day Tiller committed his crime. The advice he alleges he received prior to entering his plea and upon which he alleges he relied, is now seen to have been erroneous. If he can prove what he has alleged, Tiller’s plea as a matter of law was involuntary. We reverse and remand for a hearing on the merits of Tiller’s application.

II.

A.

This matter is before us upon appeal from the Circuit Court’s summary dismissal of Tiller’s application. We glean our facts from a combined reading of Tiller’s application and the State’s brief filed in this Court —indeed, we do not understand the state to contest Tiller’s factual allegations.

John M. Tiller was indicted in the Circuit Court of Hinds County, Mississippi, for the crime of armed robbery committed February 4,1979. Subsequent thereto he and his attorney entered into plea bargain negotiations with the State.

At that time, under an administrative policy of the Mississippi Department of Corrections, “good time” was allowed prisoners convicted of the crime of armed robbery (as well as to prisoners convicted of most other crimes). Good time in a nutshell is a system under which a prisoner by exemplary behavior earns a reduction in his sentence, month by month.

Against this backdrop, a plea bargain was struck. Under the agreement, Tiller was to waive his right to trial by jury and the other rights constitutionally afforded those accused of criminal acts and enter a guilty plea. In exchange, Tiller was to receive a sentence of 25 years, the first eight to be served and the final seventeen to be suspended. At the conclusion of the eight years of confinement, Tiller was to be released on probation for the next five years.

On September 19, 1979, the plea bargain agreement was consummated. Tiller appeared in the Circuit Court of the First Judicial District of Hinds County, Mississippi, the Honorable William F. Coleman, Circuit Judge, presiding. Judge Coleman explained to Tiller that, because his crime was armed robbery, he would not be eligible for parole or work release. The subject of the good time program, sometimes referred to as earned time, was never mentioned during the plea hearing.

It is uncontradicted in the record, however, that (a) at that time persons convicted of armed robbery were in fact participating in the good time program; (b) Tiller had been correctly advised of this fact by his attorney; and (c) Tiller relied upon eligibility for good time in entering his plea.

Tiller’s “time” began to run on February 4, 1979, the date of his arrest. On June 6, 1980, he received a memorandum from the Mississippi Department of Corrections (MDC) advising him, in effect, that if he continued his good behavior he would ultimately earn 1532 days (four years, 71 days) of good time. His eight unsuspended years would be reduced thereby, making him eligible for discharge on September 25, 1983.

Approximately seven months later, on January 5, 1981, to be specific, MDC modified its good time policy. Acting pursuant to an opinion released by the Attorney General of the State of Mississippi, the MDC determined that persons convicted of armed robbery would not be eligible to earn good time until they had served their entire sentence or ten years, whichever was the lesser.

On June 20,1981, Tiller was advised in an official MDC memorandum that he was eligible for no more good time. His release date was extended from September 25, 1983, to May 31, 1986. Significantly, Tiller was allowed to keep the 554 days of good time he had earned between June 15, 1979, and January 5, 1981. He was simply not eligible for any further good time credits.

B.

On October 7,1982, John M. Tiller filed in the Circuit Court of Hinds County, Mississippi, his pro se petition, denominated “Notice of Application to Withdraw Guilty Plea” and “Petition for Writ of Error Cor-am Nobis”. In his petition, Tiller set forth the essence of what we have recited above and asked that the Circuit Court “either permit withdrawal of the [guilty] plea or grant specific enforcement of the plea agreement, as appropriate”.

On November 4, 1982, the Circuit Court dismissed Tiller’s petition summarily. Insofar as the record reflects, no hearing of any sort was held. In the brief two paragraph order entered the same day, the Circuit Judge merely stated:

Having considered the petition, the Court finds that the petition and affidavit fail to demonstrate a reasonable probability to grant the relief requested. Accordingly, the petition is dismissed with prejudice.

In due course, John M. Tiller perfected his appeal to this Court. The matter has been fully briefed and is now ripe for decision.

III.

The courts of this state are open to one incarcerated at the Mississippi State Penitentiary raising questions regarding the voluntariness of his plea or the duration of his confinement. See, e.g., Hill v. State, 388 So.2d 143, 146 (Miss.1980); Watts v. Lucas, 394 So.2d 903 (Miss.1981); Ball v. State, 437 So.2d 423, 425 (Miss.1983). Rule 8.07 of the Uniform Criminal Rules of Circuit Court Practice provides a procedural vehicle which may be invoked by prisoners presenting such issues.

Rule 8.07 requires that the circuit judge examine the petitioner’s papers and that:

(3) If from the showing made in the petition it is manifest that the person whom, or on whose behalf, it is presented is not entitled to any relief, the court can refuse to grant the writ and enter an appropriate order.

On the other hand, unless the application is so lacking in merit as to justify summary dismissal under the standard just noted, the petitioner is entitled to an evidentiary hearing. Sanders v. State, 440 So.2d 278, 284 (Miss.1983).

As we explain below, if Tiller can prove that which he has alleged — that which we understand the State to concede — he is entitled to relief. Accordingly, the Circuit Judge’s summary dismissal was error.

iv.

Tiller first asserts an ex post facto law claim. The State of Mississippi, of course, is without power to enforce against any person an ex post facto law. U.S. Const., art. 1, § 10, cl. 1; Miss. Const., art. 3, § 16 (1890).

A review of statutes in question and their dates of enactment makes clear the inadequacies of this claim. In 1976, Mississippi’s parole statute was amended to provide as follows:

No person shall be eligible for parole who shall on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm. 1976 Miss.Laws, ch. 440, § 79.

In 1980, this statute was amended again to its current form which provides:

(D) No person shall be eligible for parole who. shall on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm until he shall have served ten years if sentenced to a term or terms of more than ten years or if sentenced for the term of the natural life of such person. If such person is sentenced to a term or terms of ten years or less, such person shall not be eligible for parole. 1980 Miss.Laws, ch. 465, § 92; Miss.Code Ann. § 47-7-3 (Supp.1982).

In 1976, Mississippi’s “good time” statute was amended to provide as follows:

No inmate in any event shall have his sentence terminated by administrative good time action until he is eligible for parole as provided in Title 47, ch. 7, Miss. Code of 1972. 1976 Miss.Laws, ch. 440, § 67; Miss.Code Ann. § 47-5-139 (Supp. 1982).

While these laws have been in effect for approximately six years, armed robbery convicts such as Tiller, were allowed to accumulate good time credits toward their sentences until January 5, 1981. On that date an opinion was issued by the Attorney General’s office, the crux of which is as follows:

Since Section 47-5-139(7) does not allow a sentence to be terminated by earned time until an inmate is eligible for parole, it is important to determine when an inmate is eligible for parole to correctly administrate earned time.
Section 47-7-3(d) only applies to those persons convicted of armed robbery or attempted armed robbery on or after January 1,1977. If convicted on or after January 1, 1977, and the sentence received is a term or terms of ten years or less, the offender is not eligible for parole. Since he is not eligible for parole, he is not eligible to receive earned time. Attorney General’s Opinion 156-A, Miss. Department of Corrections, January 5, 1981; State’s Brief, p. 2.

The correctness of this opinion is not challenged, nor could it be. See Cooper v. State, 439 So.2d 1277 (Miss.1983).

A subsequent opinion on the same subject, dated July 2, 1981, provided that the new policy would apply to those who committed the crime of armed robbery after January 1,1978. State’s Brief p. 3. As a consequence of the issuance of these two opinions, prisoners convicted of armed robbery after 1977 who were sentenced to serve less than ten years were administratively barred from earning good time after January 5, 1981, although good time earned prior to that date was not taken away.

In short, the statutory provisions regarding good time have remained unchanged since 1977, well prior to Tiller’s offense. Only the administrative interpretation of those statutes by the Mississippi Department of Corrections has changed. Despite this critical point, Tiller demands release under the MDC’s former erroneous reading of the statute and cites Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).

Weaver was a Florida prisoner. The State of Florida had a “gain time” program, comparable to Mississippi’s earned time or good time program. Weaver pled guilty to a charge of second degree murder arising out of an incident occurring on January 31, 1976. He received a 15 year sentence. Effective January 1, 1979, Florida by statute amended its gain time program. The net effect of the amendment, as applied to Weaver, was that he would be required to serve over two years more than would have been the case under the program in effect in 1976. The Supreme Court sustained Weaver’s claim that Florida was enforcing against him a constitutionally proscribed ex post facto law.

Tiller’s Weaver argument overlooks the fact that here the statute has not changed. Only the administrative interpretation of the law has changed. An erroneous administrative interpretation of a clearly worded statute is simply not a “law” within the scope and contemplation of the ex post facto clauses of the federal and state constitutions.

It is established that judicial reinterpretations of statutes are not “laws” in this context. See Holguin v. Raines, 695 F.2d 372 (9th Cir.1982). In the constellation of authoritative pronouncements of the sovereign, surely administrative interpretations are even lesser lights.

In an analogous context, Taylor v. Mississippi State Probation and Parole Board, 365 So.2d 621 (Miss.1978) holds that

administrative correction of a prior misinterpretation of parole laws as applied to the appellant did not violate the ex post facto clause of the United States or Mississippi Constitutions. 365 So.2d at 622.

On the authority of Taylor, Tiller’s ex post facto claim must fail.

V.

Tiller’s claim that he is entitled to withdraw his guilty plea is another matter. A plea of guilty constitutes a waiver of some of the most basic rights of free Americans, those secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Sections 14 and 26, Article 3, of the Mississippi Constitution of 1890. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279 (1969); Phillips v. State, 421 So.2d 476, 479 (Miss.1982).

Where a plea of guilty has been intelligently and voluntarily entered, it is sufficient to undergird an unassailable final judgment of conviction. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). On the other hand, where the plea is involuntary any judgment of conviction entered thereon is subject to collateral attack. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

This Court has recognized that mistaken advice of counsel may in some cases vitiate a guilty plea. In Baker v. State, 358 So.2d 401 (Miss.1978), this Court stated:

If, as alleged, appellants pleaded guilty under the mistaken advice that they could be subject to capital punishment if convicted at trial, this then, is a factor which may make appropriate a collateral attack ... Such allegation, if true, indicates that defendants were not fully aware of the implications of their plea nor of the true consequences of a trial by jury. Such a circumstance, if properly pleaded and supported by sufficient facts, makes out a case where relief ... may be appropriate. 358 So.2d at 403. [Emphasis added].

See also, Sanders v. State, 440 So.2d 278, 284 (Miss.1983).

This language describes the sort of situation we have before us today. Tiller unequivocally alleges, in proper form as required by Rule 8.07, that his guilty plea was substantially infected by erroneous advice of counsel regarding his eligibility for good time.

The candor of the State’s brief on this point is commendable. At the outset, the State concedes:

At the time that he [Tiller] pled guilty to the crime of armed robbery he was informed that he would be eligible for “earned time” while incarcerated. This information, transmitted to him by his attorney, was one of the reasons he decided to enter a guilty plea.

The Attorney General acknowledges that at the time Tiller entered his plea good time was being allowed persons convicted of armed robbery the same as others, stating:

At the time Petitioner’s plea was entered “earned time” was being granted for those convicted of armed robbery. Appellant’s trial counsel was apparently aware of this, informed his client of such, and Tiller then chose to plead guilty. Given the state of the law at the time counsel was rendering advice, he was absolutely correct in informing his client that he was eligible for “earned time”. [Emphasis added].

Applying applicable substantive rules of law to these facts, there exists more than a reasonable probability that Tiller’s guilty plea and accompanying waiver of rights were constitutionally infirm. Certainly it cannot be said that Tiller’s involuntariness claim is manifestly without merit. See Sanders v. State, 440 So.2d 278 (Miss.1983).

VI.

Technically, we are without power to adjudicate the merits of Tiller’s petition. No hearing has been held below. No adjudication on the merits has occurred there. What—and all—we have power to accomplish is to reverse and remand for an evi-dentiary hearing. Should Tiller prove that which he has alleged, all of the substantive relief he could possibly receive is a vacation of his guilty plea and reinstatement of his not guilty plea. The State would then be free to put Tiller to trial under the indictment and, should he be convicted, demand the maximum sentence allowable by law.

REVERSED AND REMANDED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . In Mississippi, inmates in custody of MDC are grouped into four classes which determine how much, if any, earned time that they may receive. Depending upon his classification, an inmate is entitled to earned time ranging from 0 to 30 days for each month served in reduction of his sentence. Miss.Code Ann. § 47-5-139 (Supp.1982). Rules promulgated by the State Board of Corrections provide for earned time allowances to be awarded to offenders based upon the performance of the offender. Miss. Code Ann. § 47-5-138 (Supp.1982). The earned time accumulated by an inmate is subject to forfeiture if he commits offenses of a serious nature and an offender may also be demoted to a less favorable earned time class if it serves to maintain good discipline and efficiency at the institution. Miss.Code Ann. §§ 47-5-138, 47-5-139. However, demotions or forfeitures affecting an inmate’s earned time cannot vest until the offender has been given an evidentiary hearing before the MDC classification committee. Miss.Code Ann. § 47-5-104 (Supp.1982).

      . Tiller’s papers are denominated as “Notice of Application to Withdraw Guilty Plea” and “Petition for Writ of Error Coram Nobis”. He has filed a supporting affidavit. In substance he is seeking post-conviction relief. Rule 8.07 of the Uniform Criminal Rules of Circuit Court Practice provides a procedure whereby Tiller may present to the Circuit Court the matters set out in his motion. This rule is entitled “Habeas Corpus”. We will treat Tiller’s application as one made under Rule 8.07. See Sanders v. State, 440 So.2d 278, 282 fn. 1 (Miss.1983).


text:
    Roy Randle HARPER v. STATE of Mississippi.
    No. 54515.
    Supreme Court of Mississippi.
    Nov. 16, 1983.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

G. William Palmer, Barnett, Montgomery, McClintock & Cunningham,0 Jackson, for appellant.

Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, DAN M. LEE and PRATHER, JJ., concur.


text:
    Herbert WILLIAMS, Sr. v. STATE of Mississippi.
    No. 54559.
    Supreme Court of Mississippi.
    Nov. 16, 1983.
    Mark W. Prewitt, Prewitt & Courteau, Vicksburg, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   Appeal from Circuit Court, Claiborne County; John E. Ellis, Judge.

AFFIRMED.


text:
    Minnie Lee BRUMFIELD v. Ruby Brumfield SMITH, et al.
    No. 54401.
    Supreme Court of Mississippi.
    Nov. 16, 1983.
    Garland D. Upton, Columbia, for appellant.
    Joseph M. Stinson, Tylertown, Norman B. Gillis, III, McComb, Maria A. Iizuka, Washington, D.C., George Phillips, Dajiiel E. Lynn, Jackson, for appellees.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   Appeal from Chancery Court, Walthall County; Bert H. Jones, Chancellor.

AFFIRMED.


text:
    Karen Michelle PEARSON and Mississippi Board of Health v. Phillip Bryce CLARK.
    No. 54537.
    Supreme Court of Mississippi.
    Nov. 16, 1983.
    J.W. Kellum, Sumner, for appellants.
    Kay Farese Luckett, Luckett Law Firm, Clarksdale, for appellee.
    Before BROOM, P.J., and ROY NOBLE LEE and HAWKINS, JJ.
   Appeal from Chancery Court, Tallahat-chie County; Harvey T. Ross, Chancellor.

AFFIRMED.


text:
    George MANSOUR v. Dan NOBLE and City of Greenville.
    No. 53991.
    Supreme Court of Mississippi.
    Nov. 16, 1983.
    Philip Mansour, Jr., Mansour & Thomas, Greenville, for appellant.
    G. Kenner Ellis, Jr., Robert C. Dean, Miller, Dean & Cordell, Greenville, for appel-lees.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   Appeal from Chancery Court, Washington County; Nat Bullard, Chancellor.

AFFIRMED.


text:
    Jo Ann Sanders SARTOR v. Ronald G. SARTOR.
    No. 53943.
    Supreme Court of Mississippi.
    Nov. 16, 1983.
    Charles T. Yoste, Starkville, for appellant.
    Ben F. Hilbun, Jr., Starkville, for appel-lee.
    Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.
   Appeal from Chancery Court, Oktibbeha County; W.W. Brand, Jr., Chancellor.

AFFIRMED.

PATTERSON, C.J., BROOM, P.J., and BOWLING, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


text:
    James G. MITCHELL, et al. v. CITY OF MERIDIAN.
    No. 53989.
    Supreme Court of Mississippi.
    Nov. 16, 1983.
    Thomas Y. Minniece, Singley, Minniece, Hamill & Wilson, Meridian, for appellants.
    Rick Fortenberry, Sandusky, Bailey, For-tenberry & Stephenson, Meridian, for appel-lee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

AFFIRMED.


text:
    Billy Ray CARLISLE v. Stella Walker BOND and Alison G. Bond.
    No. 54681.
    Supreme Court of Mississippi.
    Nov. 16, 1983.
    Alben N. Hopkins, Lisa P. Dodson, Hopkins, Logan & Vaughn, Gulfport, for appellant.
    No briefs filed for appellees.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   Appeal from Chancery Court, Stone County; William L. Stewart, Chancellor.

AFFIRMED.


text:
    Ronnie E. SMITH v. STATE of Mississippi.
    No. 54715.
    Supreme Court of Mississippi.
    Nov. 16, 1983.
    Ronnie Edward Smith, pro se.
    Bill Allain, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

DENIAL OF PETITION TO RUN SENTENCES CONCURRENTLY AFFIRMED.


text:
    ILLINOIS CENTRAL GULF RAILROAD COMPANY v. Blanche B. SANDERS.
    No. 54004.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Robert W. Brumfield, Brumfield & Austin, McComb, for appellant.
    Keith Starrett, Magnolia, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   Appeal from Chancery Court, Pike County; Bert H. Jones, Chancellor.

AFFIRMED AS MODIFIED.

WALKER and BROOM, P.JJ., ROY NOBLE LEE, BOWLING, HAWKINS and PRATHER, JJ., concur.


text:
    William Lamar HOOKER v. Janie Cobb ROTENBERRY, et al.
    No. 54562.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Jerry H. Blount, Sullivan, Sullivan, Blount & Mooney, Jackson, for appellant.
   Appeal from Chancery Court, Quitman County; Harvey T. Ross, Chancellor.

James Leon Young, Young, Scanlon & Sessums, Jackson, for appellee.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.


text:
    Cheryl Lynn Smith SEAL (Herrera) v. Ronald Lewis SEAL.
    No. 53970.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Richard V. Dymond, Gulfport, for appellant.
    Joe H. Montgomery, Williams, Williams & Montgomery, Poplarville, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   Appeal from Chancery Court, Pearl River County; Michael Sullivan, Chancellor.

AFFIRMED.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS and PRATHER, JJ., concur.


text:
    Mrs. Thelma SULLIVAN v. Homer RUTLAND.
    No. 54041.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Robert C. Grenfell, Jackson, for appellant.
    Crymes G. Pittman, Cothren & Pittman, Jackson, for appellee.
    Before BROOM, P.J., ROY NOBLE LEE and DAN M. LEE, JJ.
   Appeal from Chancery Court, Smith County; J.W. Walker, Chancellor.

AFFIRMED.


text:
    Bobby Nelson WATTS v. STATE of Mississippi.
    No. 54568.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Harry L. Kelley, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.
   Appeal from Circuit Court, Lauderdale County; Henry Palmer, Judge.

AFFIRMED.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, DAN M. LEE and PRATHER, JJ., concur.


text:
    Doretha BUNTON, Widow of the Deceased, Willie Richard Bunton v. Ronald AXLEY.
    No. 54584.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Bruce L. Johnson, Melvin R. Jennings, Jackson, for appellant.
    James M. Anderson, McCoy, Wilkins, Noblin, Anderson & Stephens, Jackson, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   Appeal from Circuit Court, Hinds County; Reuben V. Anderson, Judge.

AFFIRMED.


text:
    Willie Lee FAINE v. STATE of Mississippi.
    No. 54692.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Willie L. Fame, pro se.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   Appeal from Circuit Court, Warren County; Rush M. Clements, Judge.

DISMISSAL OF PETITION FOR WRIT OF ERROR CORAM NOBIS AFFIRMED.


author: EMBRY, Justice. EMBRY, Justice.

text:
    George Teague VAN BUREN v. Samuel H. DENDY, Jr., a/k/a Samuel H. Dendy.
    81-912.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    As Corrected on Denial of Rehearing Oct. 28, 1983.

      D. Coleman Yarbrough and John T. Alley, Jr. of Jones, Murray, Stewart & Yar-brough, Montgomery, for appellant.
    Charles N. Parnell, III of Wood, Minor & Parnell, Montgomery, for appellee.
   EMBRY, Justice.

This case concerns a mortgage foreclosure. Plaintiff, George Teague Van Burén, seeks to redeem from defendant, Samuel H. Dendy, Jr., certain real property situated in Montgomery County. The property previously belonged to Chin Yong Kang. Kang mortgaged it to Exchange National Bank of Montgomery and then defaulted in the terms of the note and mortgage. At the foreclosure sale, Exchange National Bank was the successful bidder.

The bank sold the property to Dendy after sending Kang a letter requesting that he deliver possession of the property within ten (10) days. That letter was dated 13 February 1981; it was sent in compliance with § 6-5-233, Code 1975. The only evidence offered at trial regarding Kang’s vacating the property established that he left on or about 22 March 1981.

Subsequently, Van Burén purchased the redemption rights of Kang and his wife, OK Ryon Kang. He then gave notice to Dendy of his intention to exercise the right of redemption. Dendy took the position that, because Kang had not vacated the property within the ten days required by statute for the preservation of the right of redemption, he, Kang, had forfeited that right.

Van Burén filed suit and then both parties filed motions for summary judgment. These were summarily denied by the trial court on 14 May 1982. Trial was set for 2 June 1982.

On 25 May 1982, Van Burén noticed the deposition of Kang in Chicago. Dendy filed a motion for a protective order, which was granted the day it was filed. Van Burén filed a motion to reconsider or to grant a continuance. That motion was denied and the parties proceeded to trial.

The case was tried, with Van Burén and Dendy as the only witnesses offering testimony. The trial court ruled in Dendy’s favor, finding Van Burén was not seized of any valid or enforceable right of redemption against Dendy. Van Burén appeals to this court from the denial of this motion for new trial.

The issues presented for our review are stated by Van Burén as follows:

I.
“Whether the trial court erred in denying plaintiff’s motion for summary judgment. ...
II.
“Whether the trial court erred in denying plaintiff an opportunity to present the testimony of the mortgagor of subject property by deposition by granting defendant’s motion for protective order and denying plaintiff’s motion for continuance.. ..
III.
“Whether the trial court erred in its final judgment and order....

After careful consideration, we affirm the trial court’s rulings as to these issues.

I.

First, we consider whether the trial court was in error in refusing to grant summary judgment in favor of Van Burén.

It is well established that, in Alabama, it is only appropriate for the trial court to grant a motion for summary judgment where the non-moving party could not prevail under any set of discernible circumstances. Raley v. Royal Ins. Co. Ltd., 386 So.2d 742, 743 (Ala.1980). In this case, there were two unresolved and material issues of fact; whether the Kangs had received notice of demand for possession of the premises as required by § 6-5-233, Code 1975, and whether he vacated the premises within the ten (10) day period provided for in that code section; and whether OK Ryon Kang was married to Chin Yong Kang prior to foreclosure. Van Burén argued that Kangs had vacated within ten (10) days of receiving the written demand. Dendy contended the premises were not timely vacated and the statutory right of redemption was thereby waived. Van Burén did not present evidence of the Kangs’ marriage prior to foreclosure sufficient to resolve any factual dispute as to that issue.

These were the dispositive factual issues in this case and they were unresolved when the motions for summary judgment were considered. Thus, it would have been inappropriate for the trial court to grant either of the motions for summary judgment.

II.

Second, we consider whether the trial court erred in granting Dendy’s motion for a protective order and refusing to grant a continuance. These are decisions that rest within the sound discretion of the trial court and this court will reverse only when we find a clear abuse of discretion. Carbine Constr. Co. v. Cooper, 368 So.2d 541 (Ala.1979).

It seems clear that Van Burén was aware, during the entire course of the proceedings in this action, that Kang’s testimony would be critical to his case and that Kang resided in Chicago, Illinois. This was not a “newly discovered” witness. Van Bu-rén testified that he flew to Chicago to buy Kang’s right of redemption. He therefore certainly knew, long before trial, that Kang no longer resided in Montgomery. During the summary judgment proceedings Van Burén noted, “subject cause involves the right of Chin Yong Kang to redeem property sold at a foreclosure sale, and ... Mr. Kang currently resides in Chicago, Illinois.”

In Mitchell v. Moore, 406 So.2d 347, 349 (Ala.1981), this court set forth guidelines for the consideration of whether the absence of a witness warrants a continuance. One of the requirements is that due diligence must have been exercised by the movant to secure the absent witness or evidence. It is clear that Van Burén did not exercise due diligence in securing Kang as a witness. Thus, under the rule exemplified by Mitchell, his absence did not provide good cause for the trial court to grant a continuance.

Regarding whether the trial court wrongfully granted Dendy’s motion for a protective order, it is settled that the details of the discovery process must be left to the trial court. Stinson v. Liberty Mut. Ins. Co., 395 So.2d 1032 (Ala.Civ.App.1981). In exercising its discretion, the trial court should be guided by the spirit of the rules, which is to permit full discovery so as to save time, effort, and money and to expedite the trial and with a view of achieving justice for each litigant. Campbell v. Regal Typewriter Co., 341 So.2d 120 (Ala.1976). However, the right of discovery is not unlimited, and the trial court has the power to prevent its abuse by any party. Assured Investors Life Ins. Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978).

Dendy’s motion for a protective order states as grounds the following:

“(1) That this ease has been pending since February of 1982, that the Plaintiff has known at all times that the testimony of these deponents would be critical in this trial, but that Plaintiff has postponed the taking of this critical deposition until five (5) days before the trial of this case.
“(2) That the Defendant has been given less than three (3) days notice of the taking of said deposition, which deposition is to be taken in Chicago, Illinois, and which deposition conflicts with a scheduled court appearance for Defendant’s attorney in the Court of another county.
“(3) Defendant’s counsel would submit that the scheduling of this deposition at this time has been done for the purpose of harrassment inasmuch as so little notice was given, and the further fact that said deposition is scheduled to take place at a time coinciding with a National Holiday which will make travel to and from the proposed cite of the deposition extremely difficult for all parties concerned.”

Because there was good cause, as stated in this motion, and evidenced by the record, to find Van Buren’s untimely notice of deposition to be an abuse of the discovery process, the trial court did not err in granting Den-dy’s motion for a protective order.

III.

The last issue presented is whether the trial court erred in its final judgment and order. That court’s order provides as follows:

"... the only evidence offered at trial established Mr. Kang vacated the property on or about March 22, 1981. Defendant offered evidence that Kang was residing in Montgomery in the subject property from February 13, 1981, the date on which the said letter was mailed, to on or about March 22, 1981, when the evidence shows Kang permanently vacated the premises. This evidence was not rebutted by the Plaintiff. This Court takes judicial notice of the presumption of law that a letter properly addressed with sufficient postage, which is unre-turned to the sender whose address is shown on the envelope, is delivered and received by the addressee. This presumption coupled with Defendant’s clear and convincing evidence establishes to this Court that Chin Yong Kang received the letter within a few days of it being mailed, but did not surrender possession of the subject property for at least thirty (30) days. Accordingly, this Court finds that Chin Yong Kang clearly forfeited any statutory right of redemption he had to the property in question due to his failure to surrender possession to the Exchange National Bank of Montgomery or its successor, Defendant Dendy, within the ten (10) day required period as set out in § 6-5-233, Code of Alabama, 1975. This forfeiture is established pursuant to § 6-5-233(c), Code of Alabama, 1975.
“Plaintiff claims he also purchased the right of redemption of OK Ryon Kang to the subject property, and therefore was entitled to proceed with redemption. However, the only evidence of a marriage between Chin Yong Kang and OK Ryon Kang presented to the Court at trial was a marriage which occurred between them in Montgomery County, Alabama in August, 1981. The Court finds OK Ryon Kang would, upon her marriage to Chin Yong Kang, only acquire property rights in property of her husband in which he had a perfected or legal right or in property in which he had a legal interest. Since Chin Yong Kang had forfeited any right of redemption he had in the subject property in March, 1981 prior to his marriage in August, 1981, this Court determines OK Ryon Kang acquired no rights of redemption in the subject property and could, therefore, not transfer any such right to Plaintiff. Accordingly, this Court finds that Chin Yong Kang and OK Ryon Kang had no valid or legal right of redemption in the subject property to transfer to Plaintiff....”

After a careful review of the record we conclude the trial court did not err in its final judgment or order and, with regard to this third issue, we hold its opinion to be correct in every respect.

For the above stated reasons, the judgment appealed from is due to be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.

ON APPLICATION FOR REHEARING

EMBRY, Justice.

OPINION CORRECTED; APPLICATION FOR REHEARING OVERRULED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.