text:
    Peter MANNING, Appellant, v. STATE of Florida, Appellee.
    No. 83-2343.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.
    Rehearing Denied Jan. 30, 1985.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant “affirmatively selected” to be sentenced by the trial court under the sentencing guidelines. See § 921.001, Fla.Stat. (1983); Fla.R.Crim.P. 3.701. On appeal he challenges for the first time the constitutionality of the application of the above cited statute to the facts of his case. Only challenges which allege facial unconstitutionality of a statute raise a question as to subject matter jurisdiction and are therefore arguable, as fundamental, for the first time on appeal. Thus, the instant challenge was waived by the failure to raise it in the trial court. Trushin v. State, 425 So.2d 1126 (Fla.1983); Alexander v. State, 450 So.2d 1212 (Fla. 4th DCA 1984).

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Fleming Blackwell COOLEY, III, Appellant, v. Carolyn Jean COOLEY, Appellee.
    No. 84-1006.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.
    Rehearing Denied Jan. 30, 1985.
    John J. Byrne of Price & Byrne, Fort Lauderdale, for appellant.
    Robert M. Curtis and Gerald M. Morris of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

HERSEY, HURLEY and BARKETT, JJ., concur.


text:
    Kevin SMITH, Appellant, v. IMPORT BIRDS, INC., Appellee.
    No. 84-2037.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.
    C. Kent Miller, Lake Worth, for appellant.
    Robert C. Hackney, West Palm Beach, for appellee.
   PER CURIAM.

Defendant moved to quash service and to vacate a default entered against him in circuit court. The motions were denied. Defendant appeals, arguing that the statutory method of substituted service on a non-resident has not been complied with pursuant to § 48.161, Florida Statutes (1984). Unless the plaintiff has strictly complied with Section 48.161, the circuit court does not have jurisdiction. Orange Motors of Coral Gables, Inc. v. Rueben H. Donnelley Corp., 415 So.2d 892 (Fla. 3d DCA 1982); Panter v. Werbel-Roth Securities, Inc., 406 So.2d 1267 (Fla. 4th DCA 1981); George Fischer Ltd. v. Plastiline, Inc., 379 So.2d 697 (Fla. 2d DCA 1980). Plaintiff failed to file his affidavit of compliance by the return day of the process. Plaintiff bears the initial burden to demonstrate compliance with the statute. Once the defendant makes a prima facie showing of failure to comply, the burden again shifts to the plaintiff to demonstrate the statute’s applicability. Plaintiff failed to carry his burden of proof. We therefore find that the trial court erred when it denied defendant’s motions. Shiffman v. Stumpff 445 So.2d 1104 (Fla. 4th DCA 1984).

Reversed and remanded with directions to quash service and to vacate default.

HURLEY, WALDEN and BARKETT, JJ., concur.


text:
    CITIBANK, N.A., National Bank of Detroit, People’s Trust Company, Broad Street National Bank of Trenton and Equibank, Petitioners, v. Wallace R. PLAPINGER, Respondent.
    No. 84-2504.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 1985.
    Shutts & Bowen and Eric B. Meyers and Debra L. Greenberg, Miami, for petitioners.
    Alfred Aronovitz, Miami, for respondent.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We grant the petition for writ of certio-rari and, as requested, quash that portion of the trial court’s order of October 22, 1984, which denied the petitioners’ motion to compel the production of the respondent’s federal income tax returns and financial records of various general partnerships in which the respondent is a general partner. Clearly, the respondent’s financial resources are relevant to the litigation below, namely, proceedings in aid of execution of a judgment entered against the respondent. Just as clearly, the documents sought are reasonably likely to disclose such assets. See Tennant v. Charlton, 377 So.2d 1169 (Fla.1979); Medel v. Republic National Bank of Miami, 388 So.2d 327 (Fla. 3d DCA 1980); Donahue v. Hebert, 355 So.2d 1264 (Fla. 4th DCA 1978). Thus, there being no claim that the respondent needed protection from harassment or an overly burdensome inquiry, or the like, the documents were discoverable. The trial court’s view that these documents were not discoverable because “privileged” finds absolutely no support in the law.

Certiorari granted.


author: ORFINGER, Judge.

text:
    Gene MEDINA, Appellant, v. Sheila Margaret MEDINA, Appellee.
    No. 83-1749.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 1985.
    Francis E. Pierce, Jr., Orlando, for appellant.
    Sheila Margaret Medina, appellee, pro se.
   ORFINGER, Judge.

In the final judgment dissolving the marriage between the parties, the trial court specifically reserved jurisdiction “for the purpose of determining the amount of Attorneys Fees [sic] to be awarded from the Husband to the Wife.” From a subsequent order awarding certain of the husband’s personal property to the wife as partial payment of attorney’s fees, the husband appeals. We reverse.

Attorney’s fees may be awarded to a party only under three circumstances: 1) pursuant to a contract; 2) pursuant to a valid statute; and 3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property. McElhiney v. Ash Properties, Inc., 411 So.2d 291 (Fla. 1st DCA 1982). Here, the authority to award attorney’s fees to the wife arises by virtue of § 61.16, Florida Statutes (1983) which provides:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.
The “Order Awarding Attorney’s Fees” makes no determination of a reasonable amount to be awarded as attorney’s fees. A paragraph in the proposed order was drawn in such form as would have made this determination, but the paragraph was stricken.

The order appealed from is thus erroneous because it fails to determine the amount of the reasonable attorney’s fee to be awarded the wife. It is also erroneous because it purports to make a further distribution of property between the parties when the court no longer had jurisdiction to do so. The final judgment reserved jurisdiction only to determine the amount of the fee to be awarded.

We therefore reverse the order appealed from insofar as it purports to award the husband’s property to the wife as partial payment of attorney’s fees, and remand the cause to the trial court for further proceedings not inconsistent herewith. We find no merit to appellant’s remaining points, and as to those issues, the order appealed from is affirmed.

AFFIRMED in part, REVERSED in part and REMANDED.

SHARP and COWART, JJ., concur.

      .The operative portions of the order, in full, are as follows:
      1. Deleted.
      2. That the wife is awarded and the husband is directed to convey as partial compensation for the above [sic] reasonable attorney’s fees all of his right, title and interest in the following described personal property, including but not limited to the following:
      1. His boat including its motor, trailer and other auxiliary equipment or attachments thereto.
      2. Husband’s motorcycle.
      3. Station wagon.
      4. All personal property located at [marital home] .... including but not limited to the husband’s laboratory equipment and all various and sundry tools belonging to the husband.
      5. The Court especially reserves jurisdiction regarding issues relating to the wife’s interest in that certain Grand Prix automobile and that certain Corvette automobile both titled in the husband’s name.


author: COWART, Judge.

text:
    CARTER REALTY COMPANY, etc., et al., Appellants, v. ROPER BROS. LAND CO., INC., etc., Appellee.
    No. 83-1807.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 1985.

      Douglas A. Lockwood, III, of Peterson, Myers, Craig, Crews, Brandon & Mann, P.A., Winter Haven, for appellants.
    George E. Adams of Adams, Hill & Ful-ford, Orlando, for appellee.
   COWART, Judge.

This case involves venue in an action for breach of a contract provision for the payment of money where no place of payment is specified.

Both parties are real estate brokerage firms. Carter Realty, whose office for transaction of its customary business is in Polk County, Florida, had a brokerage agreement to sell land in Polk County. Carter Realty orally agreed to share the sales commission with Roper Bros., whose office for transaction of its customary business is in Orange County, Florida, if Roper Bros., as a cooperating broker, procured a purchaser. The parties did not agree as to the place of payment of any money that might become due to Roper Bros, under the oral cooperation agreement. Roper Bros, procured a purchaser and the resulting sales contract was executed in Polk County and the land sale was closed there at which time Carter Realty collected the whole sales commission. Roper Bros, filed an action in Grange County against Carter Realty for its agreed share of the sale commission. The trial court denied Carter Realty’s claim of improper venue and Carter Realty appeals.

Notwithstanding the fact that the commission paid by the owner to Carter Realty was created by the land sale contract that occurred in Polk County and notwithstanding all other factors relating to Polk County, this action is on the debt that Carter Realty allegedly owes Roper Bros, as the result of Roper Bros, performance under the oral coorporation agreement. Without regard to where the original brokerage agreement may have obligated the land owner to pay the brokerage commission to Carter Realty, the money allegedly due Roper Bros, is under the oral cooperation agreement between the parties to this action and there was no express agreement as to where that money was to be paid when due.

The venue of a cause of action for breach of contract is in the county where the cause of action accrued. The cause of action for breach of contract accrues where the alleged breach occurs. The breach occurs where the defendant fails to perform the covenant allegedly breached. Where the alleged breach is a failure of a defendant to pay money due under the contract the breach occurs where the defendant was obligated to pay and deliver the money. Money due under a contract creates a debt- or-creditor relationship between the parties. If no place of payment is agreed on, the debtor must seek the creditor and the money due is deemed payable at the creditor’s residence or office where it transacts its customary business. See Saf-T-Clean, Inc. v. Martin-Marietta Corp., 197 So.2d 8 (Fla.1967); Williams v. Aeroland Oil Company, 155 Fla. 114, 20 So.2d 346 (1944); Baruch v. W.B. Haggerty, Inc., 137 Fla. 799, 188 So. 797 (1939); Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); Crescent Beach, Inc. v. Jarvis, 435 So.2d 396 (Fla. 5th DCA 1983); Excel Ins. Co. v. Brown, 406 So.2d 534 (Fla. 5th DCA 1981). See also Windsor v. Migliaccio, 399 So.2d 65 (Fla. 5th DCA 1981); Sheffield Steel Products, Inc. v. Powell Brothers, Inc., 385 So.2d 161 (Fla. 5th DCA 1980), review denied 392 So.2d 1378 (Fla.1980).

Carter Realty cites St. Laurent v. Resort Marketing Assoc., Inc., 399 So.2d 362 (Fla. 2d DCA 1981), and Knowles v. Imperial Lumber Company, Inc., 238 So.2d 487 (Fla. 2d DCA 1970). The breach in St. Laurent allegedly occurred when the defendant renounced a partially completed service contract by ordering the plaintiffs employees to cease performing under the contract. That action sought damages for loss of future profit and recovery of commissions and other sums due on sales already completed. In St. Laurent the agreement provided a place of payment for the money owed, and therefore is distinguishable from the instant case. In Knowles the defendant general contractor did not breach an agreement to pay money due the plaintiff materialman, who was a material supplier to a subcontractor. The defendant general contractor allegedly breached an agreement with the material-man plaintiff to make progress payments due the subcontractor on the subcontract, by checks payable jointly to the subcontractor and the plaintiff materialman. That alleged breach occurred when and where the general contractor made and delivered the progress payment checks to the subcontractor alone.

AFFIRMED.

ORFINGER and SHARP, JJ., concur.

      . See § 47.011, Fla.Stat.


author: SCHEB, Judge.

text:
    Sarah M. McLEAN, Appellant, v. Jack C. McLEAN, Appellee.
    No. 84-482.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1985.

      Ronald P. Teevan Strohauer & Teevan, P.A., and John D. Fernandez, Clearwater, for appellant.
    A.T. Cooper, III, Cooper & Cooper, Largo, for appellee.
   SCHEB, Judge.

Sarah McLean appeals a partial summary judgment and final judgment allowing Jack McLean, her former husband, recovery on a promissory note that she had executed during their marriage. She raises two points: First, that the note was obtained under duress; and second, that the doctrine of res judicata bars her ex-husband’s' action on the note. We find no merit to either argument, but we discuss her contention that res judicata bars her ex-husband’s recovery.

In 1982 the wife petitioned to dissolve the parties’ marriage. She alleged that they owned no real property jointly and that the personal property that she and her husband did own had been amicably divided between them. The husband denied these allegations.

On May 10, 1983, the trial court entered a final judgment dissolving the marriage. The court’s findings were limited to determining that the marriage was irretrievably broken, that the husband was to indemnify the wife against any loss occasioned by their filing a joint tax return for 1982, and that each party had agreed to be responsible for his or her own debts. The judgment made no provision for support or for division of property.

Before the dissolution the wife borrowed money from the husband so that she could live apart from him. She signed a $5,100 noninterest bearing demand promissory note representing a consolidation of several smaller notes, which she had given the husband for sums he had advanced to her. The dissolution proceeding did not involve the note.

After dissolution, the husband demanded payment of the note, and when the wife did not repay him, he brought suit against her. In her answer, the wife alleged that the husband obtained the note while their dissolution case was pending. She filed affirmative defenses that she was under duress when she executed the note, and that the doctrine of res judicata barred action on it. In response, the husband pointed out that the final judgment provided that each was responsible for individual debts.

The trial court granted a partial summary judgment for the husband on the res judicata issue. The matter then proceeded to trial on the issue of duress. The husband testified that the wife asked to borrow the money and offered to sign a note in return for the loan. He asserted that she said she would pay him at the time of the dissolution. The wife testified it was the husband’s idea to write the note. She claimed that she was under a great deal of stress when she signed the note and felt that she needed to get away from the husband. The trial judge found that there was insufficient evidence to support a finding of duress in the note’s execution. He entered a final judgment awarding the husband $5,100 plus post-judgment interest at the rate of twelve percent.

We agree with the trial judge that there was insufficient evidence to support a finding of duress. See Cooper v. Cooper, 69 So.2d 881, 882-83 (Fla.1954). Thus, we now address the wife’s contention that the trial judge erred in rejecting her defense of res judicata.

A party relying on a former judgment as res judicata of an issue must plead and prove the judgment. The mere reference to a prior controversy is insufficient to raise the res judicata issue. See Betts v. Betts, 63 So.2d 302 (Fla.1953) and Thomas v. Ashley, 170 So.2d 332 (Fla. 2d DCA 1964), cert. denied, 177 So.2d 205 (Fla.1965). Here, the wife pled and proved that the dissolution of the parties’ marriage was reduced to a final judgment; however, both parties admitted that the claim on the promissory note was not litigated in the dissolution action. Consequently, the only issue is whether the husband was required to litigate his right under this cause of action in the dissolution proceeding.

Theoretically, all disputes between the parties in a dissolution action should be settled once and for all by the final judgment. No doubt the supreme court had this in mind in Cooper v. Cooper when it held that a final decree of divorce settles all property rights of the parties whether or not they were introduced in the litigation and bars any action thereafter brought by either party to determine the question of property rights. Accord Diejuste v. Davis, 400 So.2d 981 (Fla. 4th DCA 1981); Simon v. Simon, 293 So.2d 780 (Fla. 3d DCA 1974). But see Aoun v. Aoun, 428 So.2d 707 (Fla. 3d DCA 1983); Haas v. Haas, 421 So.2d 664 (Fla. 3d DCA 1982); Vandervoort v. Vandervoort, 277 So.2d 43 (Fla. 3d DCA), cert. denied, 287 So.2d 682 (Fla.1973) (stating that where property rights are not in issue before a court in a dissolution proceeding the parties may litigate those matters in a separate suit).

Notwithstanding their lack of harmony, we believe that both lines of authority require us to affirm on this point. Under Cooper and the supporting cases, the husband’s ownership of the promissory note was settled by the final judgment of dissolution even though it was never considered at the time. Therefore, he is now entitled to prosecute his claim which arises out of the note. Under the conflicting authorities of the Third District Court of Appeal, the husband can now sue on the note since he never raised it at the time of the dissolution judgment. In either event, the-husband was not obligated to make demand under the note and resolve his claim in the course of the dissolution proceed: ings. We express no opinion on what our ruling might have been if the wife’s obligation had matured at the time of dissolution and the husband’s claim had not been based on a written instrument.

Accordingly, we affirm the trial court’s order allowing Jack McLean to recover the $5,100 on the promissory note. The trial court, however, erred in awarding interest on the judgment at the rate of twelve percent, since the note itself was payable on demand without interest. See § 55.03(1), Fla.Stat. (1983). Thus, we vacate the portion of the order allowing Jack McLean twelve percent interest on the note and direct the trial court to enter an amended judgment for $5,100.

GRIMES, A.C.J., and CAMPBELL, J„ concur.


author: GRIMES, Acting.Chief Judge.

text:
    Danny Paul MOOSBRUGGER, Appellant, v. STATE of Florida, Appellee.
    No. 84-740.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1985.

      Jesse J. Bennett, Jr., Bennett & Bennett, P.A., Winter Haven, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting.Chief Judge.

The state filed an information charging appellant:

[T]hen and there being a public servant, to-wit, a deputy sheriff with corrupt intent to obtain a benefit for himself knowingly did refrain from performing a duty imposed upon the said DANNY PAUL MOOSBRUGGER by law, to-wit, in that he did fail to turn in a stolen two-way radio into the Polk County Sheriffs Department evidence room and fill out a report regarding the recovery of the radio and failed in any way to report the recovery of said stolen two-way radio to any law enforcement agency once he was informed the radio was stolen, in violation of Section 839.25, Florida Statutes.

The appellant was found guilty and placed on probation.

Appellant now contends that section 839.25(l)(a), Florida Statutes (1983), the statute under which he was convicted, is unconstitutional. This statute reads as follows:

(1) “Official misconduct” means the commission of one of the following acts by a public servant, with corrupt intent to obtain a benefit for himself or another or to cause unlawful harm to another:
(a) Knowingly refraining, or causing another to refrain, from performing a duty imposed upon him by law; or ....

While this point was not argued in the trial court, the facial validity of a statute may be raised for the first time on appeal. Trushin v. State, 425 So.2d 1126 (Fla.1983).

In State v. Jenkins, 454 So.2d 79 (Fla. 1st DCA 1984), our sister court recently held this very statute unconstitutional. In that case, the state sought to prosecute a property appraiser for failing to assess back taxes on certain property. The court reasoned that the language of subsection (a) was at least as vague and open to arbitrary and capricious application as subsection (c) of the 1977 statute which was struck down by the supreme court in State v. DeLeo, 356 So.2d 306 (Fla.1978). We agree. There is simply no way of determining which of the myriad of public servants’ duties are “imposed ... by law.” The words of DeLeo in referring to subsection (c) are equally applicable to subsection (a).

“The crime defined by the statute, ..., is simply too open-ended to limit prosecuto-rial discretion in any reasonable way. The statute could be used, at best, to prosecute, as a crime, the most insignificant of transgressions or, at worst, to misuse the judicial process for political purposes. We find it susceptible to arbitrary application because of its ‘catch-all’ nature.”

454 So.2d at 81.

We reverse the judgment of conviction and declare section 839.25(l)(a) to be unconstitutional.

SCHEB and SCHOONOVER, JJ., concur.


text:
    John S. MATHEWS, Appellant, v. Linda H. MATHEWS, Appellee.
    No. 84-881.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1985.
    R. Michael Robinson of Law Offices of Robinson & Plata, St. Petersburg, for appellant.
    Carl T. Boake of Law Offices of Wallace, Finck & Boake, P.A., St. Petersburg, for appellee.
   PER CURIAM.

John Mathews appeals a final order finding him in arrears on child support payments and also finding him in contempt. He raises several points on appeal but only one has merit.

The final order required the husband to pay $243.50 as a contribution towards the medical bills of one of his children. However, there is no indication in the record that he was ever required to pay any of his children’s medical bills. Accordingly, we strike that portion of the final order requiring payment of $243.50 as a contribution towards medical bills. We affirm the order in all other respects.

SCHEB, A.C.J., and CAMPBELL and LEHAN, JJ., concur.


text:
    Dell D. THIBODEAU, Appellant, v. George L. THIBODEAU, Appellee.
    No. 84-1483.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1985.

      Michael M. Ingram of Crabtree, Sanchez, Parker & Ingram, P.A., Sarasota, for appellant.
    No appearance for appellee.
   PER CURIAM.

We reverse the trial court’s order granting an ex-husband’s petition for modification of alimony and reducing the amounts of permanent periodic alimony payments to be made to the ex-wife. The only evidence in support of the petition, which was filed five months after entry of the final judgment, was that the husband’s income came principally from mortgage brokerage commissions, that such income was irregular, and that his commissions had decreased because of the increase in mortgage interest rates. There was no showing of any permanent reduced needs of the ex-wife.

The foregoing evidence constituted an insufficient basis for the reduction in alimony. The evidence also showed that the ex-husband’s irregular income was a common occurrence in the past and was a circumstance contemplated at the time of the final judgment. Sufficient permanency of the decreased amount of the ex-husband’s income was not established. See Chastain v. Chastain, 73 So.2d 66 (Fla.1954); Withers v. Withers, 390 So.2d 453 (Fla. 2d DCA 1980), petition for review denied, 399 So.2d 1147 (Fla.1981).

Reversed and remanded for proceedings consistent herewith.

SCHEB, A.C.J., and CAMPBELL and LEHAN, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    MORRIS-EDGE MASONRY, INC., Appellant, v. TONN & BLANK, INC., Santa Lucea Development Corporation, American Druggists Insurance Company, Sunshine Kitchens, Inc., Stuart Paint & Supply, Ace Roofing & Tile, Inc., Gulfstream Tile, Erb Building Systems, Pyramid Mechanical Contractors, Inc., Graybar Electric Company, Inc., and Builders Home & Supply, Appellees.
    No. 84-461.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1985.

      Stephen B. Rakusin of Stephen B. Raku-sin, P.A., Gainesville and Russell J. Ferraro, Jr., of McManus, Stewart & Ferraro, P.A. Stuart, for appellant.
    Stephen C. Page and David P. Ackerman of Gunster, Yoakley, Criser & Stewart, P.A., Stuart, for appellees.
   GLICKSTEIN, Judge.

This is an appeal from a sua sponte order of consolidation that had the effect of transferring appellant’s action to another county, thus depriving it of its chosen venue. Accordingly, we have jurisdiction to consider the appeal at this time. See Wagner v. Nova University, Inc., 397 So.2d 375, 377 (Fla. 4th DCA 1981).

We reverse the order because appellant’s counsel never had notice of the trial court’s intention to consider consolidation sua sponte. Appellant was deprived of due process of law. See Devoe & Raynolds (sic) Co., Inc. v. KDS Paint Co., 382 So.2d 126 (Fla. 4th DCA 1980). On remand a change of venue may or may not be proper. That issue, however, has never been heard by the trial court after due notice has been furnished to counsel who would oppose such change.

DOWNEY and HURLEY, JJ., concur.


text:
    SUN ART PAINTING CORPORATION, Appellant, v. PAPPALARDO CONSTRUCTION COMPANY, Grantham Enterprises, Inc., a Florida corporation, et al., Appellees.
    No. 84-1141.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1985.
    John C. Dotterer, Palm Beach, for appellant.
    Mikel D. Greene of DeSantis, Cook, Gas-kill & Silverman, P.A., North Palm Beach, for appellee Pappalardo.
   PER CURIAM.

Reversed upon authority of American Cast Iron Pipe Company v. Foote Brothers Corp., 458 So.2d 409 (Fla. 4th DCA 1984), and remanded with directions to allow appellant reasonable attorney’s fees.

DOWNEY, HERSEY and WALDEN, JJ., concur.


text:
    HOME INSURANCE COMPANY OF ILLINOIS, an Illinois corporation, Petitioner, v. SENTRY INSURANCE A MUTUAL COMPANY, a Wisconsin mutual insurance company, and Travel Tours International, Inc., a Florida corporation, Respondents.
    No. 84-2091.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1985.
    Finley, Kumble, Wagner, Heine, Under-berg, Manley & Casey, Miami, and Hoff-mann & Burris, P.A., Ft. Lauderdale, for petitioner.
    Jose I. Astigarraga of Steel, Hector & Davis, Miami, for respondent-Sentry Insurance and Michael Schiffrin of Schultz & Hollander, Miami, for respondent-Travel Tours.
   PER CURIAM.

Home Insurance Company of Illinois, via petition for writ of common law certiorari, seeks the review of an order denying its motion to dismiss, saying that it represents a departure from the essential requirements of law. We accept jurisdiction upon authority of Van Bibber v. Hartford Acc. & Indem. Ins. Co., 439 So.2d 880 (Fla.1983); Stel-Den of America, Inc. v. Roof Structures, Inc., 438 So.2d 882 (Fla. 4th DCA 1983); and Beta Eta House Corp. v. Gregory, 230 So.2d 495 (Fla. 1st DCA 1970).

It was error to allow the joinder of a liability insurer in an action prior to the entry of judgment against the person who is insured under the terms of the liability policy.

We quash the order in question upon authority of Van Bibber and Section 627.7262, Florida Statutes (1982).

Certiorari granted.

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.


text:
    The EDWARD B. FREEMAN CO., Petitioner, v. Roxine FAGEN, Daniel Fagen, her husband; Marine Warehouse, Inc., and Aetna Insurance Company, Respondents.
    No. 84-2333.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1985.

      Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for petitioner.
    Guillermo J. Farinas, Palm Beach, of James F. Liftman, P.A., Stuart, for respondents Roxine Fagen and Daniel Fagen.
   PER CURIAM.

By petition for writ of certiorari petitioners ask this court to review the trial court’s order in this personal injury action allowing inquiry into the valuation of defendant’s ownership interest in certain business property.

Inasmuch as respondents are not seeking punitive damages, and since they have made no showing that the sought-after information is relevant to this litigation, we grant the writ and quash the trial court’s order on the authority of Equifax Corporation v. Cooper, 380 So.2d 514 (Fla. 5th DCA 1980), and Fla.R.Civ.P. 1.280(b)(1).

HERSEY, HURLEY and BARKETT, JJ„ concur.


author: LETTS, Judge.

text:
    Carlos Serrato BUSTOS, Petitioner, v. The Honorable J. Leonard FLEET, Respondent.
    No. 84-1825.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1985.
    William T. Laswell of William T. Laswell, P.A., Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for respondent.
   ON MOTION FOR REHEARING

LETTS, Judge.

We grant the rehearing motion. Our opinion filed November 28, 1984 is substituted by the following:

The Writ of Prohibition is granted on the authority of State v. Littlefield, 457 So.2d 558 (Fla. 4th DCA 1984). Nevertheless, because the issue presented here arises frequently and has considerable impact on the administration of justice, we certify the following question of great public importance:

IS THE CONVENIENCE TO THE STATE OF TRYING CODEFENDANTS TOGETHER A SUFFICIENT REASON IN AND OF ITSELF TO EXTEND AN OBJECTING DEFENDANT’S SPEEDY TRIAL TIME AND DENY A MOTION TO SEVER WHEN A DELAY IS NECESSARY TO ACCOMMODATE A CO-DEFENDANT?

This cause is remanded with instructions to discharge the petitioner.

HERSEY and DELL, JJ., concur.


author: DIXON, Chief Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Raymond PEACOCK et al.
    No. 84-KA-0223.
    Supreme Court of Louisiana.
    Dec. 6, 1984.
    Concurring Opinion Dec. 7, 1984.
    William Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Clifford R. Strider, Anne Lambert, William R. Campbell, Jr., Joanne Marier, Asst. Dist. Attys., for plaintiff-appellant.
    Paul Bonin, Carla A. Failla, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Defendants Raymond Peacock and Barbara Dearman, along with Peacock Inn, Inc., were charged with obscenity, a violation of R.S. 14:106. The bill of information alleged that the defendants “did wilfully and unlawfully participate or engage in, or manage, sale, produce, present, perform, promote, exhibit, advertise, sponsor or display hard core sexual conduct, to-wit: an untitled motion picture film which depicts hard core indecent sexual conduct with the intent to primarily appeal to the prurient interest of the average person and the hard core sexual conduct is presented in a patently offensive way and taken as a whole lacks serious literary, artistic, political, or scientific value ...”

The charges were based on the practice of the Peacock Inn of providing its patrons with “adult” movies. The patrons were required to sign an agreement that no one under seventeen years of age would view the movie and to pay an additional fee of three dollars. The movies were then transmitted to the television set in the patrons’ room by means of a video cassette player activated by the desk clerk. Undercover police officers rented rooms at the Peacock Inn on two separate occasions and viewed some of the tapes. Based on this information, the officers had a search warrant issued. They executed the warrant, seized the tapes and arrested the defendants.

Defendants filed a pretrial motion to quash the bill of information. They argued, among other things, that the depiction of video tapes on a television screen in a motel room did not meet the statutory requirement of “public portrayal.” The district attorney stated during the hearing on the motion that the only issue before the court was whether the tapes were publicly portrayed, arguing, of course, that they were./ The trial court ruled that the public portrayal requirement was not met and granted the motion to quash. The state applied to the court of appeal for a writ of certiorari. The court of appeal granted the state’s writ on original hearing and then recalled its order on rehearing, noting that the state had a proper remedy by appeal pursuant to Article 912(B)(1) of the Code of Criminal Procedure.

Article 912(B)(1) provides the state with the right to appeal an adverse ruling on a motion to quash. There is, however, no appeal direct to this court. As Article 911 indicates, an appeal is “the exercise of the right of the state or the defendant to have a judgment or ruling reviewed by the proper appellate court....” The latest amendment to Art. 5, § 5(D) of the Louisiana Constitution vests this court with appellate jurisdiction in only two instances: when a law or ordinance has been declared unconstitutional, or when a defendant has been convicted of a capital offense and a death penalty has been actually imposed. Further, this court has consistently held that under the Constitution of 1974, the state has the right of appeal to the supreme court only when a law or ordinance has been declared unconstitutional.

The intermediate appellate courts, under Art. 5, § 10(A) as amended, have appellate jurisdiction over “all criminal cases triable by a jury except as provided in § 5, Paragraph (D)(2) of ... Article 5.” The defendants in the case at bar were arrested in May of 1982, which was prior to the effective date of Act 843. However, amended Subsection (E) of § 5 states that the determinative date is not the date of the offense but rather the date that the order of appeal is signed. Since the trial court ruled on this motion subsequent to July 1, 1982, the Constitution vests appellate jurisdiction in the court of appeal not the supreme court.

However, since the court of appeal has made its views on the merits known on its original hearing, and since this case has already been briefed and argued in this court, judicial economy will best be served by exercising our supervisory jurisdiction. La. Const. Art. 5, § 5(A).

Before arriving at the merits of the case, however, it is necessary, due to some confusion about the obscenity statute, to review some history of obscenity law.

The pertinent provisions of R.S. 14:106, as it existed at the time of the offense, read as follows:

“A. The crime of obscenity is the intentional:
(1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.
(2) Participation or engagement in, or management, production, presentation, performance, promotion, exhibition, advertisement, sponsorship, or display of, hard core sexual conduct when the trier of fact determines that the average person applying contemporary community standards would find that the conduct, taken as a whole, appeals to the prurient interest; and the hard core sexual conduct, as specifically defined herein, is presented in a patently offensive way; and the conduct taken as a whole lacks serious literary, artistic, political, or scientific value.
Hard core sexual conduct is the public portrayal, for its own sake, and for enus-ing (sic) commercial gain of:
(a) Ultimate sexual acts, normal or perverted, actual, simulated or animated, whether between human beings, animals, or an animal and a human being; or
(b) Masturbation, excretory functions or lewd exhibition, actual, simulated or animated, of the genitals, pubic hair, anus, vulva, or female breast nipples; or
(c) Sadomasochistic abuse, meaning actual, simulated or animated, flagellation, or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals, or female breast nipples, or in the condition of being fettured (sic), bound, or otherwise physically restrained, on the part of one so clothed; or
(d) Actual, simulated, or animated touching, caressing, or fondling of, or other similar physical contact with a pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals, or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or
(e)Actual, simulated, or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured, or marketed for such purpose.
(3) Sale, allocation, consignment, distribution, dissemination, advertisement, exhibition, or display of obscene material, or the preparation, manufacture, publication, or printing of obscene material for sale, allocation, consignment, distribution, advertisement, exhibition, or display.
Obscene material is any tangible work or thing the trier of fact determines (a) that the average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest, and (b) depicts or describes in a patently offensive way, hard core sexual conduct specifically defined in Paragraph (2) above, and (c) the work or thing taken as a whole lacks serious literary, artistic, political, or scientific value.
(4) Requiring as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, or publication to a purchaser or consignee that such purchaser or consignee also receive or accept any obscene material, as defined in Paragraph (3) above, for resale, distribution, display, advertisement, or exhibition purposes; or, denying or threatening to deny a franchise to, or imposing a penalty, on or against, a person by reason of his refusal to accept, or his return of, such obscene material.”

The obscenity statute has been amended a number of times since its original enactment in 1884 in an attempt by the legislature to define obscenity more precisely. The most recent revision appears in Acts 1974, No. 274. Act 274 was the legislature’s response to our opinion in State v. Shreveport News Agency, Inc., 287 So.2d 464 (La.1973), which held that R.S. 14:106, as it then existed, did not meet the standards set forth by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

In that case a majority of the United States Supreme Court rejected previous attempts by that court to define obscenity and formulated a new three part test:

“The basic guidelines for the trier of fact must be:
(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id. 413 U.S. at 24 [93 S.Ct. at 2615].

These standards were incorporated into the rewritten version of 14:106 by the legislature in Act 274. A majority of this court subsequently held in State v. Amato, 343 So.2d 698 (La.1977), that the new 14:106 did indeed conform to the constitutional safeguards laid down in Miller v. California, supra.

Although the present statute might appear to be a mass of redundancies, careful reading of the statute reveals an underlying and logical scheme. Subsection (1) prohibits the exposure of certain parts of the body “in a public place or place open to the public view.” This section is intended to cover situations such as in State v. Muller, 365 So.2d 464 (La.1978), where a person exposes his genitals.

Subsection (2) outlaws the “participation or engagement in or management, production, presentation, performance ... of hard core sexual conduct” when such conduct appeals to the prurient interest, is presented in a patently offensive way and lacks serious literary, artistic, political, or scientific value. Hard core sexual conduct is defined in subsection (2) as the “public portrayal, for its own sake, and for ensuing commercial gain of: ultimate sexual acts, ... masturbation, ... sadomasochistic abuse, ... animated touching,” etc. Subsection (2), as evidenced by its language, is intended to cover live stage shows and performances in which the actors actually perform the proscribed acts in front of an audience.

Finally, subsection (3) forbids the “sale ... exhibition or display of obscene material ...” Obscene material is defined as a “tangible work” which appeals to the prurient interest, lacks serious literary, etc. value, and depicts in a patently offensive way hard core sexual conduct as “specifically defined in Paragraph (2) above.” This subsection is obviously intended to cover sales, etc. of pornographic books, magazines, tapes, movies, or any other “tangible work.”

Although the bill of information in the instant case is broad enough to cover offenses defined in both subsections (2) and (3), under the undisputed facts, the offense could be prosecuted only under subsection (3), that is, “the exhibition or display of obscene material.”

As mentioned previously, the litigants and the trial court are under the impression that in order to obtain a conviction for a violation of subsection (3), the state must prove that the hard core sexual conduct was “publicly portrayed” as subsection (2) seems to require. If this is true, then the sale of a pornographic movie by a merchant to a customer for use in the customer’s private home would not be encompassed by the statute. Although we use the term “legislative intent” with great circumspection, we do not believe that an overall reading of the statute indicates a legislative intent to exclude such sales from the coverage of the statute.

Although the mere possession of obscene material is not and has never been a criminal offense, the sale and display of obscene material has been an object of legislative prohibition since, at least, 1884.

Under the prior versions of the statute, there was no requirement, or even the mention of, public portrayal. The mere sale or exhibition of obscene material for private consumption was clearly prohibited. However, the addition of the term “public portrayal” in Act 274 could be construed to have added a new requirement.

But the general rule of statutory construction, that “the mere fact of statutory amendment manifests the legislative intent to effect change which alters legal rights and disabilities,” is not applicable here. There is no evidence that the legislature rewrote R.S. 14:106 in order to add a public portrayal requirement to the prohibition against the sale and display of obscene material. Rather it is clear that the sole purpose of Act 274 was to “constitutionalize” 14:106 by incorporating into it the standards set forth in Miller v. California, supra. Further, there is no language in Miller which can be interpreted to require that obscene material involve a public portrayal.

R.S. 14:106(A)(3) prohibits the distribution and display of obscene material which “appeals to the prurient interest” (106(A)(3)(a)) and “depicts or describes” (106(A)(3)(b)) offensively hard core sexual conduct “specifically defined in Paragraph (2) above” and which lacks serious value. (R.S. 14:106(A)(3)(c). Hard core sexual conduct in R.S. 14:106(A)(2) is “the public portrayal, for its own sake, and for ensuing commercial gain of” acts described in subsections (a)(b)(c)(d) and (e).

To interpret this statute literally is difficult. Literally, the statute prohibits the sale, distribution or advertisement of tangible works depicting hard core sexual conduct only if the “conduct is the public portrayal” of specified sexual acts. (106(A)(3)(b)) refers to hard core sexual conduct as “specifically defined in Paragraph (2) above,” which defines hard core sexual conduct as “public portrayal” of certain acts.) Yet, 106(A)(3) prohibits the “exhibition or display” of obscene material.

Penal statutes must be strictly construed against the state. Nevertheless, they must be “given a genuine construction, according to the fair import of their words ... in connection with the context, and with reference to the purpose of the provision.” R.S. 14:3.

Applying this rule of construction, it is clear that the purpose of 106(A)(3) is to prohibit the distribution of tangible works depicting or describing the sexual acts described in 106(A)(2)(a)(b)(c)(d)(e).

Consistently with the long history of the attempted prohibition against the distribution of obscene material in Louisiana, we find no convincing argument or evidence that only the sale of films and magazines for “public portrayal” is illegal.

Whether or not the room in the Peacock Inn is public or private is irrelevant to this case. The defendants here are charged with the exhibition and display of obscene material, a crime.

Since there is no public portrayal requirement for a violation of subsection (3), the trial court’s grant of the defendants’ motion to quash, based on its determination that a public portrayal of the tape was not demonstrated, is reversed.

Accordingly, the case is remanded to the district court for further proceedings consistent with this opinion.

DENNIS, J., concurs with reasons.

WATSON, J., concurs and assigns reasons.

LEMMON, J., concurs for the reasons assigned by DENNIS, J.

DENNIS, Justice,

concurring.

I respectfully concur.

The activities in the present case are not protected by any privacy right emanating from the Fourth Amendment or from the “penumbra” of that and other amendments. In Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), the court held that mere private possession of obscene material in one’s home cannot be a crime. However, every case since Stanley has explicitly limited it to its holding. In United States v. 12 200-Ft. Reels of Super 8MM. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), the court stated

[Claimant contends that, under Stanley, the right to possess obscene material in the privacy of the home creates a right to acquire it or import it from another country. This overlooks the explicity narrow and precisely delineated privacy right on which Stanley rests.
* * ⅜ ⅜! * *
We are not disposed to extend the precise, carefully limited holding of Stanley to permit importation of admittedly obscene materials simply because it is imported for private use only.... We have already indicated that the protected right to possess obscene material in the privacy of one’s home does not give rise to a correlative right to have someone sell or give it to others.... Nor is there any correlative right to transport obscene material in interstate commerce. 93 S.Ct. at 2668-69 (Citations omitted.).

See also United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973). The court has reaffirmed these holdings in Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), where the court stated “Stanley did not create a right to receive, transport, or distribute obscene material, even though it had established the right to possess the material in the privacy of the home.” 97 S.Ct. at 1767 (citations omitted). Therefore, although it would have to be admitted that a hotel patron has a right to privacy similar to a person’s right to privacy in his own home, see Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), the right is not extended to give other persons a right to provide obscenity for viewing in a place of privacy. The defendants here are the hotel and its operators. Since the defendants were not the occupants of the room, they cannot raise the limited protection of Stanley. The defendants conduct in providing the obscene movies is without constitutional protection regardless of the patrons’ rights.

The decisions of the United States Supreme Court indicate that either public portrayal or commercial exploitation of otherwise obscene material is sufficient to deprive the material of constitutional protection. Obscenity does not have to be shown in public before it can be prohibited; it is enough that it is in commerce and available to the public, even if purchasers view it only in private. In Paris Adult Theatres I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), the court stated:

Commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the public falls within a State’s broad power to regulate commerce and protect the public environment.
In this case we hold that the States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accomodation. 93 S.Ct. at 2641-42 (emphasis added).

In United States v. Orito, supra, the court stated:

[T]he Government has a legitimate interest in protecting the public commercial environment by preventing [obscenity] from entering the stream of commerce. 93 S.Ct. at 2678.

In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the court indicated that selling obscene materials to individual members of the public could be prohibited regardless of whether the material was also exhibited in public. The court said:

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. 93 S.Ct. at 2615-16 (Emphasis added).

Thus, it is clear that public portrayal, in the sense of actually exhibiting the material in public, is not required before the otherwise obscene (under Miller) material is without First Amendment protection. Commercial exploitation of the obscene subject matter is enough to remove it from the protection of the First Amendment and to give the state the power to regulate it.

The defendants argue that the statute requires not only commercial exploitation of otherwise obscene materials but also public portrayal of them before the exploiter can be punished. This would mean that otherwise pornographic books and films could be commercially exploited without limitation because the purveyors would need only make certain that their customers not peruse or view their products in a public place.

La.R.S. 14:3 requires that we extend no crime definition by analogy so as to create crimes not provided for by statute; however, it also requires that, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with deference to the purpose of the provision.

The statutory provision at issue, La.R.S. 14:106 A(3) is loosely worded because it is based upon a lack of precision in the Miller opinion wherein the court referred to “film or pictures exhibited or sold in places of public accommodation” under the catch-all term of “public portrayal”. Nevertheless, a genuine construction of the statute with reference to its purpose, the fair import of its words, and the use common sense, indicates that it was not the aim of the legislature to suppress the commercial exploitation of only publicly exhibited obscenity. The objective of the lawmakers was to prevent all pornographic materials from entering the stream of commerce regardless of whether they are exhibited publicly. The reference to the definition of hard core sexual conduct clearly applies only to the sexual behavior itself and not to its public display. This is a genuine and reasonable construction of the statute and does not create a crime for which it does not provide.

      .According to the state’s brief, both defendants filed a motion to quash and the two cases were consolidated by the trial court for the purpose of the hearing. Both defendants were present. At the end .of the hearing defense counsel moved to adopt Ms. Dearman’s motion in the Peacock case. The state had no objection if defense counsel would submit the motion in writing. The defense was to file the second motion to quash and the court agreed to give the same ruling. However, only Ms. Dearman’s motion to quash appears in the record.

      . See Acts 1980, No. 843, § 1, which amended § 5 and § 10 of Art. 5.

      . State v. Johnson, 342 So.2d 863 (La.1977); State v. James, 329 So.2d 713 (La.1976).

      . Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).

      . See Acts 1884, No. Ill, § 1; 1934, No. 110, § 1; 1942, No. 43, Art. 106; 1950, No. 314, § 1; 1958, No. 388, § 1; 1960, No. 199, § 1; 1962, No. 87, § 1; 1968, No. 647, § 1; 1970, No. 167, § 1; 1972, No. 605, § 1; 1972, No. 743, § 1; 1974, No. 274, § 1.

      . State v. Muller, 365 So.2d 464, 466 (La.1978).

      .The author is of the opinion that a hotel room is clearly a private place. Once rented, a hotel room becomes clothed with constitutional protections. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).


author:
WATSON, Justice.
      DIXON, Chief Justice LEMMON, Justice, MARCUS, Justice BLANCHE, Justice

text:
    STATE of Louisiana v. Scott LINGLE.
    No. 84-KK-1636.
    Supreme Court of Louisiana.
    Jan. 14, 1985.

      Robert Glass, Glass & Reed, New Orleans, for defendant-applicant.
    William Guste, Atty. Gen., Harry F. Con-nick, Dist. Atty., E. Sue Bernie, Asst. Dist. Atty., for plaintiff-respondent.
   WATSON, Justice.

The question in this murder case is defendant’s right to production of the state’s crime scene technician’s report. Scott Lin-gle was indicted on March 18, 1982, for the second degree murder of Janet McCleod. After extensive pretrial discovery, Lingle’s first trial ended in mistrial on January 31, 1984, when the jury could not reach a verdict.

Pending the second trial, defense counsel obtained a subpoena duces tecum directing Officer Gilbert Luke of the New Orleans Police Department Crime Laboratory to produce the crime scene technician’s report which he had prepared. LSA-C.Cr.P. art. 719. The state’s motion to quash the subpoena was granted because the trial court found no intent by the state to use the report at trial. A writ was denied by the Court of Appeal on the ground that LSA-C. Cr.P. art. 723 prohibits the inspection of such a report. This court granted an alternative writ requiring the district attorney either to respond to the subpoena duces tecum or have the trial stayed and the writ application granted. 456 So.2d 1388 (La., 1984).

The crime scene technician’s report prepared by officer Luke lists the photographs and physical evidence obtained at the scene. It also contains fingerprint information. There are diagrams indicating the dimensions of the house and yard where the murder occurred and the precise location of all evidence found at the scene.

Discoverable reports under Article 719 include those resulting from “physical or mental examination”, as well as “scientific tests or experiments.” The issue, therefore, is whether the report subpoenaed contains results of such examinations, tests or experiments which are either (1) intended for use at trial, or (2) exculpatory.

An underlying issue is whether discovery in criminal cases is to be strictly construed. The short answer is that criminal justice requires a fair construction, one that does not hide or conceal relevant evidence, and also does not afford an opportunity to raise false or specious defenses.

In State v. Walters, 408 So.2d 1337 (La., 1982) the state’s argument for a strict construction of the discovery articles in the Code of Criminal Procedure was rejected. Production of the names and addresses of potential state witnesses was approved under the peculiar circumstances of the case. The court observed: “... a mainstay of concepts of fundamental fairness, due process, and the constitutional right to counsel [has been] that defendant and his attorney have the opportunity to prepare adequately for trial_” 408 So.2d 1337 at 1340. See also Jencks v. U.S., 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 103 (1957). Walters recognized the Federal Code of Criminal Procedure as the source provision for the Louisiana discovery articles.

One purpose of Louisiana’s criminal discovery is to afford the defendant a chance to prepare adequately for trial and to eliminate unwarranted prejudice which could arise from surprise testimony. State v. Walters, supra; State v. Toomer, 395 So.2d 1320 (La., 1981). Indeed, the object of all of our criminal laws is to achieve justice:

“The provisions of this Code are intended to provide for the just determination of criminal proceedings. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay.” LSA-C. Cr.P. art. 2.

The objective recordation of the crime scene as it physically existed before being dismantled is necessary for defense preparation while discovery of its contents will not hamper the state’s case. The statutory interpretation urged by the state must be rejected in favor of a fair construction. The terms “physical or mental examination” and “scientific tests and experiments” in Article 719 include this crime scene technician’s report.

The state contends that it does not intend to use the report at trial although the diagrams were introduced at the first trial. The “intended for use at trial” language has been interpreted under the Federal Rules to include documents to be marked as evidence as well as those relied on or referred to by any government witness. U.S. v. Countryside Farms, Inc., 428 F.Supp. 1150 (1977). LSA-C.Cr.P. art. 725 requires defendant to disclose reports of physical examinations intended for use at trial and those “... prepared by a witness whom the defendant intends to call at the trial when such results or reports relate to his testimony.” 'The duty to disclose information by the defense may not be more burdensome than the reciprocal duty placed on the state. Thus the “intended for use at trial” language in Article 719 must be read to include the requirement of Article 725 that reports be disclosed if related to the witness’ testimony at trial. Luke testified at the first trial and it is likely that he will be called at the second trial and requested to testify about the examination he recorded in the crime scene technician’s report. Therefore, consideration of whether the evidence is exculpatory is not necessary.

The Court of Appeal refused to supply the report for the additional reason that it was a “work product” of the prosecutor’s case. The “work product” limitation in pretrial criminal discovery is provided in LSA-C.Cr.P. art. 723. It contains a list of the articles to which the limitation does not apply. Strict interpretation would render Article 719 meaningless. The Federal Rules are drafted to limit the “work product” exception. “[I]t has no application whatsoever to a statement of defendant, defendant’s prior record, or reports of examinations and tests since their discovery is authorized by subdivisions (A), (B) and (D) of Rule 16(a)(1).” Wright, Federal Practice and Procedure 2d, Vol. 2, § 254, p. 71. The Article 723 work product limitation does not apply to the discoverable results or reports provided the defense in Article 719.

For the foregoing reasons, the quashing of the order is set aside and the state is ordered to comply with the subpoena duces tecum.

DIXON, C.J., and LEMMON, J., concurs and assigns reasons.

MARCUS and BLANCHE, JJ., dissents and assigns reasons.

CALOGERO, J., recused.

DIXON, Chief Justice

(concurring).

I respectfully concur.

Only because of our finding that this “crime scene report” is “necessary for defense preparation” do I agree that it is subject to discovery; it is, for that reason, discoverable under C.Cr.P. 718. I cannot subscribe to the interpretation of “physical examination” in C.Cr.P. 719 adopted by the majority.

LEMMON, Justice,

concurring.

The report at issue, consisting of photographs and diagrams of the crime scene and the list and location of evidence obtained at the scene, is a method used by the district attorney to record and preserve the scene of the crime for use by investigators and expert witnesses. The defense has no access to the scene of the crime, which is completely under the control of the state until the scene is dismantled. Therefore, the only way for the defense to obtain the critical information for use by his investigators and experts is to request the state to produce this immutable documentation of physical data reconstructing the scene. Since there is no other source for this information, fundamental fairness requires the state to disclose this information.

MARCUS, Justice

(dissenting).

I disagree with the majority that the terms “physical or mental examination” and “scientific tests and experiments” in La.Code Crim.P. art. 719 includes the crime scene technician’s report. Moreover, art. 719 applies only when the state intends to use the report at trial, which is not the case here. Article 725 applies when the “court grants relief sought by the defendant under Article 719.” It does not apply when defendant is not entitled to relief under art. 719. Article 723 is the controlling provision in reference to discovery of the crime scene technician’s report in the instant case. It provides with certain exceptions not pertinent here, “this Chapter does not authorize the discovery or inspection of reports, memoranda or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case.” The language could not be clearer. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

The majority points out that this Court must give a fair construction to the words of C.Cr.P. article 719 and then proceeds to hold “the terms “physical or mental examination” and “scientific tests and experiments” in Article 719 include the crime scene technician’s report.” There is no explanation for the holding and this writer is unable to supply one.

A fair reading of the phrase “physical or mental examination” indicates that the phrase refers solely to a physical or mental examination of the person. The information in the crime scene technician’s report involves neither the physical or mental examination of anyone. Further, the report does not contain the results of any scientific tests or experiments. The interpretation given by the majority violates the clear wording of the statute.

The report is also not discoverable under C.Cr.P. 723 as it is the work product of a state agency prepared in connection with an investigation and does not fall within the exceptions outlined in that statute.

I respectfully dissent.

      .LSA-C.Cr.P. art. 719 provides:
      "Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of physical or mental examination, and of scientific tests or experiments made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. Exculpatory evidence shall be produced under this article even though it is not intended for use at trial.”

      . LSA-C.Cr.P. art. 723 provides:
      “Except as provided in Articles 716, 718, 721, and 722, this Chapter does not authorize the discovery or inspection of reports, memoran-da, or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case; or of statements made by witnesses or prospective witnesses, other than the defendant, to the district attorney, or to agents of the state.”

      . LSA-Const., Article V, § 5(A).

      . State v. Walters, 408 So.2d 1337 at 1339.

      . In contrast, the subjective report developed through investigative interpretation and examination of witnesses would not be discoverable. See State v. Martin, 376 So.2d 300 (La., 1979).

      . The commentary to the A.B.A. standards relating to discovery and procedure before trial, § 2.1(a)(iv) (approved draft of the Federal Rules, 1970, pp. 66-67) justified disclosure under Rule 16(a)(1)(D) because it is "... practically impossible for the adversary to test or rebut at trial without an advance opportunity to examine it closely ... [A]nd it is virtually impossible for evidence or information of this kind to be distorted or misused because of its advance disclosure."
      Federal Rules of Criminal Procedure, Rule 16(a)(1)(D) provides:
      "(D) Reports of Examinations and Tests. Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph any results fr reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief, at the trial.”

      .The burden placed on the state is minimal because "... the threat of discovery would not seem to hinder the prosecution's efforts to obtain technical data, which will often be essential to the government’s case, and the defendant will frequently be unable to duplicate this work." Developments in the Law-Discovery, 74 Harv.L. Rev. 940, 1061 (1961).

      . The disjunctive “or” indicates that "physical examination” is not limited by any other language.

      . LSA-C.Cr.P. art. 725 provides:
      “When the court grants the relief sought by the defendant under Article 719 it shall, upon the motion of the state, condition its order by requiring that the defendant permit or authorize the state to inspect and copy, photograph or otherwise reproduce any results of reports, or copies thereof, of physical and mental examinations and of scientific tests or experiments, of a similar nature, made in connection with the case, that are in the possession, custody, or control of the defendant, and that the defendant intends to use as evidence at the trial or were prepared by a witness whom the defendant intends to call at the trial when such results or reports relate to his testimony.”

      . In Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) the court was concerned with an Oregon rule forcing the defendant to divulge alibi witnesses while not requiring reciprocal disclosure by the state. Resting its decision on fundamental fairness in the Due Process Clause of the Fourteenth Amendment, the court held the state could adopt a rule of reciprocity but could not enforce the one-sided rule; discovery must be a two-way street.

      . Federal Rules of Criminal Procedure, Rule 16(a)(2) provides:
      "Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), and (D) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. § 3500.”

      . If the crime scene could be left intact, a court certainly would order the state to permit a defense expert, under court-supervised conditions, to review and examine the scene and to conduct tests. See State v. Migliore, 261 La. 722, 260 So.2d 682 (1972).

      . La.Code Crim.P. art. 718 provides subject to the limitation of art. 723 that the court shall permit inspection of objects which are within the possession, custody, or control of the state and which are favorable to the defendant and which are material and relevant to the issue of guilt or punishment. No such showing has been made here. Additionally, the photographs and other physical evidence to which the report refers were made available to defendant prior to trial.


author: LEMMON, Justice.

text:
    Donna Bates SNIDER v. Gloria M. MURRAY, Kemper Insurance Companies and State Farm Insurance.
    No. 84-C-0797.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
    Julie Mobley Lafargue, Lunn, Irion, Switzer, Johnson & Salley, Shreveport, for defendant-applicant.
    Roland J. Achee, Nelson & Achee, Ltd., Shreveport, Herman L. Lawson, Mansfield, Edward Chevallier, Self & Burkett, Many, for respondents.
   LEMMON, Justice.

We granted certiorari to resolve a conflict in the circuits concerning the application of Louisiana law on underinsured motorist coverage to an insurance policy which was issued and delivered in another state covering a vehicle registered or principally garaged at the time in that state, when the named insured under the policy moved to Louisiana after issuance of the policy and was involved in an accident with an underinsured motorist. in this state.

The policy holder in this case was Jerry Snider, who was killed in an automobile accident in Louisiana on July 28, 1979. In separate wrongful death actions, his widow and his children from a previous marriage sued the alleged tortfeasor and her liability insurer, as well as Snider’s uninsured motorist carrier. Prior to trial, plaintiffs settled with the tortfeasor and her liability insurer for the policy limits of $10,000. The case then proceeded to trial against Snider's uninsured motorist carrier, who stipulated that the released tortfeasor was solely liable for the accident.

The evidence established that the policy containing the uninsured motorist coverage in dispute was issued and delivered in Texas by a Texas agent to Snider, who was domiciled in Texas at that time. The policy listed a vehicle which was then principally garaged in Texas. Snider moved to Louisiana on May 4, 1979, and he and his wife and children were domiciled here when the accident occurred, as was the tortfeasor who caused the accident. The contract provided uninsured and underinsured motorist coverage with limits of $10,000, but contained the following limiting provision:

“(c) Any amount payable under the terms of this insurance because of bodily injury or property damage sustained in an occurrence by a person who is an insured shall be reduced by:
H< # % # # *
“(2) the amount recovered or recoverable from the insurer of an underinsured motor vehicle.” (Emphasis supplied.)

Because plaintiffs had recovered $10,000 from the insurer of the underinsured motorist, application of the above policy provision would reduce the policy’s underinsured motorist coverage to zero. On the other hand, La.R.S. 22:1406 D(l), if applicable, requires underinsured motorist coverage at least equal to the limits of bodily injury coverage and would permit recovery of an additional $10,000.

The trial court declined to apply the policy limitation and rendered judgment in favor of plaintiffs against Snider’s uninsured motorist insurer. The insurer appealed, arguing that excess recovery was clearly precluded under the Texas policy. The court of appeal affirmed, reasoning that Louisiana law applied under an “interest analysis” theory because Louisiana's interest outweighed that of Texas. The court went on to hold that Louisiana law would permit excess recovery under the policy. 448 So.2d 1383. We granted certiorari to resolve the conflict between this decision and that of other circuits on the same question of law. 453 So.2d 57.

On similar facts in cases involving almost identical policies, the Third and Fourth Circuits have reached results different from the one in the present case, concluding that La.R.S. 22:1406 D(l) does not purport to affect policies written and delivered in other states covering vehicles garaged or registered elsewhere. See Abel v. White, 430 So.2d 202 (La.App. 4th Cir.1983) and Richard v. Beacon National Ins. Co., 442 So.2d 875 (La.App. 3rd Cir.1983). Analyzing the relevant statute in the Abel case, the Fourth Circuit reasoned as follows:

“La.R.S. 22:1406 D(l) (as amended by Acts 1974 No. 154) was the pertinent Louisiana law. It provided that no automobile policy ‘shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state ... ’ unless the policy provided uninsured and underin-sured motorist coverage ‘in not less than the limits of bodily injury liability provided ... ’ (unless the insured waives that coverage in writing). The Louisiana statute therefore does not purport to affect plaintiffs policy, delivered in Texas to insure an automobile registered and garaged in Texas.
* ⅜ ⅜ ⅞: * sfc
“It was not the courts’ ‘interpretation’ [of uninsured motorist coverage in a policy] that introduced underinsured motorist insurance in Louisiana; it was the legislature’s enactment of La.Acts 1972 No. 137 and Acts 1974 No. 154 amending R.S. 22:1406 D. That statute, as we have pointed out, expressly applies to policies delivered in Louisiana to insure vehicles registered or garaged in Louisiana. The statute does not purport to apply to policies delivered elsewhere to insure vehicles registered and garaged elsewhere. The correct result is therefore that of Powell v. Warner, 398 So.2d 22 (La.App. 4th Cir.1981): ‘uninsured’ motorist coverage in an insurance policy that was not governed by Louisiana law when issued does not become ‘underinsured’ motorist coverage because the insured is present in Louisiana when an accident occurs.
“It may be more evident that a valid out-of-state contract that does not provide uninsured motorist coverage cannot in Louisiana be ‘interpreted’ to include that coverage and is not by La.R.S. 22:1406 D obliged to provide that coverage merely because the insured visits or moves to Louisiana. The principle is the same with underinsured motorist coverage; an out-of-state policy that does not provide that coverage is not by La.R.S. 22:1406 D amended to provide that coverage upon the insured’s visiting Louisiana and cannot, under the Louisiana jurisprudence, be ‘interpreted’ to provide it (through ‘uninsured’ motorist coverage).
“Whether or not the choice of law rule derivable from C.C. 10, 2d para., would allow Louisiana law to impose uninsured and underinsured motorist coverage upon out-of-state insurance policies, Louisiana law does not do so.” 430 So.2d at 205-06.

We agree with the Abel decision. Perhaps Louisiana law applies in this litigation, as the Second Circuit concluded, because the accident happened in Louisiana where both Snider and the tortfeasor were then domiciled. However, even if Louisiana law is the choice of laws to be applied, the only Louisiana law which requires underinsured motorist coverage in the amount of the bodily injury liability limits is La.R.S. 22:1406 D(l), and that statute by its express terms purports to affect only an automobile policy “delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state”. There is no dispute that the policy in the present case was neither “delivered” nor “issued for delivery” in this state. Therefore, plaintiffs cannot avail themselves of La.R.S. 22:1406 D(l) to impose that statute’s underinsured motorist requirements upon the policy issued in Texas for delivery in Texas to a Texas resident. Perhaps the Legislature could have enacted a law which under modern conflict of laws theories would affect insurance policies written in other states when the accident occurs in Louisiana, but the Legislature did not include such a provision in La.R.S. 22:1406 D(l).

For the above reasons, the judgment of the court of appeal is reversed as to State Farm Mutual Automobile Insurance Company, and plaintiffs’ suit against that defendant is dismissed.

DIXON, C.J., and DENNIS, J., dissents.

      . La.R.S. 22:1406 D(l) provides in pertinent part:
      "D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
      "(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits.”

      . This accident occurred after the 1977 amendment to La.R.S. 22:1406 D(l). However, the 1977 amendment merely provided that applications for uninsured motorist coverage become a part of the policy. The substance of the statute remained unchanged as to the issue in this case.

      . Plaintiffs argue that Section 1406 D(l) should apply because Snider’s car was garaged in this state at the time of the accident. However, Section 1406 D(l) clearly makes delivery or issuance for delivery in Louisiana the critical criteria, and the phrase “with respect to any motor vehicle registered or principally garaged in this state” is a limiting term to the requirement of delivery or issuance for delivery in this state.

      . La.R.S. 22:1406 D(l) may be contrasted to the Direct Action Statute, La.R.S. 22:655, which confers a right of direct action against an insurer on an insurance policy (1) when the policy was issued or delivered in Louisiana or (2) when the accident or injury occurred in Louisiana "whether the policy of insurance sued upon was written or delivered within the State of Louisiana or not". La.R.S. 22:1406 D(l) by its terms does not apply unless the policy was delivered or issued for delivery in this state, regardless of where the accident occurred.


author: DENNIS, J.,

text:
    Beverly Vicknair, Wife of/and Floyd VICKNAIR v. HIBERNIA BUILDING CORP. & United States Fidelity and Guaranty Co.
    No. 84-C-2123.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   IN RE: Broadmoor Corporation, Applying for Writ of Certiorari and/or Review; to the Court of Appeal, Fourth Circuit, Number CA-1473; Parish of Orleans Civil District Court Div. “A” Number 77-16405

Granted. The judgment of the Court of Appeal is vacated and set aside; the case is remanded to the Court of Appeal for decision.

DIXON, C.J., dissents from the order.

DENNIS, J.,

dissents from the order and would deny the application, thereby allowing the case to be partially retried in the district court in the interest of justice.


author: DIXON, C.J.,

text:
    Joseph S. MAUMUS v. NEW ORLEANS POLICE DEPARTMENT.
    No. 84-C-2029.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   IN RE: New Orleans Police Dept., Applying for Writ of Certiorari and/or Review to the Court of Appeal, Fourth Circuit, Number CA-1558, 457 So.2d 37; Parish of Orleans Civil Service Commission City of New Orleans Div. “ ” Number 1998.

Denied.

DIXON, C.J.,

would grant the writ and reverse for reasons stated by the dissenting court of appeal judge.

LEMMON, J., would grant the writ.


author: CIACCIO, Judge. BYRNES, Judge,

text:
    WASCO, INC. v. ECONOMIC DEVELOPMENT UNIT, INC.
    No. CA 1664.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 22, 1984.
    Rehearing Denied Jan. 24, 1985.
    Writ Denied March 22, 1985.
    Catherine Maureen Blackburn, New Orleans, for appellant.
    Louis B. Merhige, New Orleans, for ap-pellee.
    Before BYRNES and CIACCIO, JJ., and L. JULIAN SAMUEL, J. Ad Hoc.
   CIACCIO, Judge.

WASCO, INC., a Louisiana Corporation, sued ECONOMIC DEVELOPMENT UNIT, INC., a non-profit, community services organization, seeking damages for breach of a janitorial services contract. Judgment was rendered against defendant, Economic Development Unit, Inc., in the amount of $25,000.00 plus $5,000.00 attorney’s fees, which judgment was suspensively appealed. Economic Development Unit, Inc.’s appellate counsel did not represent the defendant in the trial below.

On appeal defendant-appellant argues:

1) The trial court abused its discretion in not allowing appellant to introduce the testimony of any of its witnesses.

2) Plaintiff failed to meet its burden of proving entitlement to damages for breach of contract.

3) The trial court erred in awarding damages of $25,000.00 and in awarding $5,000.00 as attorney’s fees.

Appellant seeks either a remand of the case to allow the introduction of the testimony of its witnesses or a reversal on the merits.

FACTS

On March 3, 1978, plaintiff-appellee, WASCO, INC., a corporation wholly owned by Spencer Washington and his wife, and defendant-appellant, ECONOMIC DEVELOPMENT UNIT, INC., a non-profit community services corporation (hereinafter “E.D.U.”) entered into a written contract whereby WASCO, Inc. agreed to provide management and janitorial services for certain commercial real estate owned by E.D.U. The term of the contract was from March, 1978, through December, 1982. On November 8, 1978, the contract was amended to delete management services; WAS-CO, INC. was to provide janitorial services only at a monthly rate of $3500.00. Provision was made for termination or suspension by E.D.U. upon written notice of twenty-one days.

On the night of May 11, 1979, a fire occurred in the offices of Total Community Action, Inc. (hereinafter T.C.A.) which were located in the building which formed the basis of the contract. Mr. Spencer Washington (the President of WASCO, Inc.) and two WASCO employees were subsequently arrested on suspicion of aggravated arson in connection with that fire.

By letter dated August 3, 1979, E.D.U. informed WASCO that it “ha[d] no alternative, but to indefinitely suspend your maintenance contract with E.D.U. A determination will be made to resume services based on the outcome of the alleged charges filed against you by the District Attorney’s Office. This suspension has an effective date as of Friday, August 31, 1979.”

Plaintiff performed no further services nor did it make any formal protest of the contract termination until September 23, 1981. On October 19, 1981, WASCO filed suit seeking $640,000.00 as damages for breach of contract by E.D.U. E.D.U., through its trial attorney, filed an answer in which it denied that it breached the contract with WASCO. On May 3, 1982, a set of Interrogatories to E.D.U. was filed by WASCO. On May 24, 1982, WASCO filed a Motion to Compel Answers to Interrogatories. That matter was heard on October 22, 1982. E.D.U.’s attorney made no appearance on behalf of his client. The Court ordered E.D.U. to answer the interrogatories prior to November 8, 1982, in default of which, “defendant shall not be allowed to utilize any of the information not produced, at trial.”

The interrogatories remained unanswered. The matter proceeded to trial on April 28, 1983. After plaintiff presented its case, the trial judge refused to allow defendant's witnesses to testify because E.D.U.’s trial attorney had failed to answer WASCO’s interrogatories. The trial was conducted essentially as a default except that defendant’s counsel was allowed to proceed with the cross-examination of plaintiff’s witnesses.

Because we reverse this judgment on other grounds, we do not address the correctness of the action of the trial judge in prohibiting the introduction of any evidence by defendant.

Assuming, arguendo, that E.D.U. unilaterally breached the contract without legal cause and, therefore, is liable for any damages resulting therefrom, including loss of profits, did WASCO sustain the burden of proof required for such an award? We find it did not.

In Al Smith’s Plumbing & Heating Service, Inc. v. River Crest, Inc., 365 So.2d 1122 (La.App. 4th Cir.1978), this court held as follows:

“Lost profits are recoverable in an action for breach of contract where the amount can be proved with reasonable certainty. George W. Garig Transfer v. Harris, 226 La. 117, 75 So.2d 28 (1954). Loss of profit awards may not rest on speculation or conjecture (citations omitted) unless direct evidence is not available to establish this element of damage.”

In the recent case of F & F Transfer, Inc. v. Tardo, 425 So.2d 874 (La.App. 4th Cir., 1988) we stated:

The allowance of loss of profits as an element of damages is more liberal in actions purely in tort, as opposed to actions for breach of contract. See: C.C. Art. 2815. Shreveport Laundries v. Red Iron Drilling Co., 192 So. 895 (La.App., 2nd Cir., 1939). In such cases, the loss of profits is recoverable as an element of damages, if they are proven with reasonable certainty. Mire v. Timmons, 155 So.2d 265 (La.App., 2nd Cir., 1959). That is, the plaintiff must show that the loss of profits is more probable than not. Jordan v. Travelers, 257 La. 995, 245 So.2d 151 (1971).
A claim for loss of profits will not be supported by mere estimates of loss. Shreveport Laundries v. Red Iron Drilling Co., supra. This is especially true in those cases in which corroborative evidence is shown to be available and is not produced. Peoples Moss Gin Co., Inc. v. Jenkins, 270 So.2d 285 (La.App., 3rd Cir., 1972). Although the absence of independent corroborative evidence is not always fatal, the lack of even a minimal degree of detail and specificity in the plaintiffs testimony, regarding the issue of lost profits, would preclude recovery of this item of damages. Casadaban v. Bel Chemical & Supply Co., Inc., 322 So.2d 854 (La.App., 1st Cir., 1975)

In cases where direct evidence is not available to establish the exact extent of loss caused by a breach of contract, resort to customary or forseeable profit as a measure of damage is proper. Folds v. Red Arrow Towbar Sales, 378 So.2d 1054 (La.App. 2nd Cir., 1979); Al Smith’s Plumbing & Heating Service, Inc. v. River Crest, Inc., supra

There is no presumption that a corporation will make a profit solely because of the existence of a contract. Loss of profits, as an element of damages, must be proved in accordance with the principles earlier enunciated.

In support of WASCO’s claim for damages for breach of contract, WASCO offered the testimony of Spencer Washington, its President, and copies of two acts of sale of immovable property. The properties were alleged to have been lost by foreclosure because of E.D.U.’s breach of contract causing WASCO to have insufficient revenues to pay the mortgage notes.

No business records of WASCO were introduced in support of its claim for damages. When questioned by the Court, Mr. Washington stated that “all the records were seized by the Federal Government” and that WASCO’s income tax returns for 1978, 1979 and 1980 “were still pending”, and that returns for 1981 and 1982 were filed. The 1981 and 1982 tax returns were not offered into evidence nor did plaintiff offer any corroborating documentary evidence.

No evidence of any attempt to recover the allegedly missing records was introduced. WASCO offered no evidence of correspondence requesting the return of the records. No one was deposed or subpoenaed to testify as to the whereabouts of the records or to substantiate WASCO’s claim of their unavailability. WASCO failed to seek the issuance of a subpoena duces tecum addressed to the U.S. Attorney or any other U.S. government employee ordering the production of the missing records before or at trial. Under these circumstances we find that WASCO failed to show that corroborative evidence of the claimed loss of profits was unavailable.

In lieu of the business records of WASCO, plaintiff relied upon the testimony of Mr. Washington. He testified that WASCO had approximately five or six employees in 1978 and that the weekly payroll was approximately $300.00 to $500.00. He declined to estimate the exact cost of janitorial supplies; stating that some of the supplies were purchased once every six months. He concluded by estimating a profit margin on the contract of sixty per cent (60%).

Although Spencer Washington testified that WASCO retained the services of a prominent C.P.A., the accountant was not called as a witness to testify on behalf of WASCO or to furnish information from his records in lieu of the missing records.

WASCO did not offer any expert testimony to establish the anticipated profits that would be customary in the janitorial service industry as a measure of damages in lieu of the proof that would normally be supplied by its missing business records.

Our examination of the record discloses that the award of damages was based solely upon the uncorroborated testimony of Spencer Washington. His testimony dealt in generalities, estimates and speculation, including his estimate of a corporate profit margin on this contract of sixty percent (60%). Since the unexpired term of the contract was forty months with a monthly fee of $3,500.00, the claimed sixty (60%) percent margin of profit would have amounted to $84,000.00. WASCO offered no evidence of its margin of profit on any other contracts that it performed during the period 1979-1982, or to the date of trial.

The trial judge rejected Mr. Washington’s sixty (60%) percent profit estimate and then substituted his own conjecture that “$25,000.00 is a reasonable amount of damages to be awarded to plaintiff.” This would have been a margin of profit of 17.86%. The trial judge, in his reasons for judgment, offered no explanation, formula, or evidentiary basis for his selection of this profit margin in assessing his award of damages, nor did the trial court cite any authority for the award of attorney’s fees in the sum of $5000.00 in the absence of any provision for attorney’s fees in the contract.

Our review of the record discloses that the trial judge was clearly wrong in awarding a judgment for loss of profits in this case, as such an award is purely speculative and unsupported by any competent evidence. WASCO may not substitute for the records it failed to produce, an uncorroborated estimate as to its loss of profits as proof of such loss. We further find that the lack of competent evidence of damages is such as to preclude any award, even under the holding in Jordan v. Travelers Insurance Co., supra, relative to the degree of certainty required to support an award of monetary damages.

Accordingly, the judgment of the trial court is reversed; plaintiff to pay all costs of these proceedings.

REVERSED.

BYRNES, J., concurs in part and dissents in part.

BYRNES, Judge,

concurring in part and dissenting in part.

While I agree with the majority that the proof offered by appellee was insufficient to justify an award of damages, in my opinion, the interests of justice demand that this case be remanded for the taking of additional evidence concerning this issue.

CCP Art. 2164 mandates that an “appellate court shall render any judgment which is just, legal and proper upon the record on appeal.” Under the authority of this article appellate courts may remand a case to the trial court for the taking of additional evidence when it is necessary to reach a just result. Winn State Bank & Trust Co. v. Browning, 453 So.2d 286 (La.App. 2nd Cir.1984) and the cases cited therein.

In this case it is impossible to determine if the trial judge erred without additional evidence on the issue of damages. I would therefore remand this case to the trial court for the introduction of such proof.