author: SIMON, Justice. PER CURIAM.

text:
    229 La. 798
    Ray VOWELL v. MANUFACTURERS CASUALTY INSURANCE COMPANY et al.
    No. 42033.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.

      Hobbs & Yeates, Minden, for plaintiff-relator.
    Gravel, Humphries, Sheffield & Man-sour, Alexandria, for intervenor.
    Jackson, Mayer & Kennedy, Shreveport, for defendants-respondents.
   SIMON, Justice.

Ray Vowell instituted this suit for damages in the sum of $155,000 for personal injuries sustained by him as a direct result of an accident which occurred on U. S. Highway 80, five miles west of Minden, Louisiana, on December 11, 1951, at about 5:30 a. m., involving, a Chevrolet pickup panel truck and a Chevrolet truck and semitrailer loaded with lumber. The lumber truck was owned by W. L. Bennett of Rus-ten, Louisiana, and at the time of the accident was being operated by Ernest Lynn. Plaintiff was a passenger in the pickup truck, which was owned by his employer, George W. Fowler, and which at the time of the collision was operated by another •employee, Francis A. Graham. Other occupants in the pickup- truck were Jack Salmon and Roland Dyck. Plaintiff, Vow-ell, was sitting in the cab of the pickup truck between Graham and Jack Salmon. Roland Dyck was riding in the “doghouse” in the back of the truck. All were employees of George W. Fowler and at the time of the accident were on their way to work and in the scope and in the course of their employment. All received injuries.

Vowell and each of the other occupants of the pickup truck instituted separate suits against W. L. Bennett, the owner of the lumber truck, and his insurer, Manufacturers Casualty Insurance Company, for damages for personal injuries incurred by them as a result of the accident.

The Coal Operators Casualty Company intervened in the suits brought by Vowell, Dyck and Salmon, alleging that it was the workmen’s compensation insurer of George W. Fowler, employer of said parties, and that as a result of the accident it had been obliged to pay them compensation and medical expenses as set forth in their respective suits, and, accordingly, prayed for reimbursement of compensation payments out of whatever judgments may be rendered in favor of plaintiffs.

The defendants W. L. Bennett and Manufacturers Casualty Insurance Company filed joint answers to each of plaintiffs’ petitions and denied that Ernest Lynn was guilty of any negligence. They contended that the sole and proximate cause of the accident was Graham’s negligent operation of the pickup truck. Alternatively, they pleaded contributory negligence on the part of plaintiffs.

The lower court consolidated.these cases for purposes of trial but rendered separate judgments in favor of each plaintiff: in favor of Vowell in the total sum of $20,-700, in favor of Roland Dyck in the total sum of $5,500, in favor of Jack Salmon in the total sum of $2,600, in favor of Francis Graham in the total sum of $500. In, the suits filed by Vowell, Dyck and Salmon the district court further decreed that the Coal Operators Casualty Company be reimbursed with the respective amounts of compensation payments made to plaintiffs, all as set forth in intervenor’s petition.

Appeals were taken to the Circuit Court of Appeal, Second Circuit, which court also consolidated these cases for purpose of appeal and reversed the judgments of the district court, thereby absolving the. defendants of liability for negligence on the part of Ernest Lynn.

The Court of Appeal concluded that the sole and proximate cause of the accident was the negligent operation of the pickup truck at an unsafe speed under prevailing weather conditions. It further concluded that the operator of defendant’s lumber truck was free of any act of negligence. The claims of all plaintiffs were dismissed.

Plaintiffs applied for writs, which were granted by this court in each case. The matters are now before us for review.

The main issues before us are: (1) Whether Lynn, the driver of defendant’s lumber truck, was guilty of negligence. (2) Whether Graham, the driver of the pickup truck, was guilty of any negligence contributing to the accident so as to bar his recovery. (3) Whether plaintiffs Vowell, Salmon and Dyck as guest passengers were contributorily negligent so as to bar recovery for injuries sustained by them as a result of this accident.

The record discloses that Graham approached the scene of the accident at a speed of approximately 40 miles per hour. On rounding a small curve and starting up a slight incline in the roadway, he observed a white panel milk truck with its reflectors, tail and clearance lights burning. He also observed that this milk truck was parked on the right shoulder of the roadway with its two left wheels on the outer edge of the blacktop or paved portion of the highway, a position which did not obstruct traffic in the right lane. When Graham reached a point approximately 75 -feet from the milk panel truck he saw for the first time the lumber truck parked in his lane of traffic, without lights, reflectors, flares or other warning signals. Graham had also observed approaching traffic in the left lane of traffic. Realizing the imminent •danger of'passing the lumber truck on the left because ’of the approaching eastbound traffic, he immediately applied his brakes, but was unable to stop the truck in time to avoid colliding into and jamming his truck under the rear of the parked lumber truck.

Though 'the driver of the lumber truck contends that he was unable to pass the milk truck to its left without hazard to oncoming eastbound traffic, we find that he stopped his truck in the right lane of traffic and remained there for at least 4 or 5 minutes, parked parallel and alongside of the milk truck. No effort is made by him to explain this prolonged stay in the center of the highway. There is no evidence that the eastbound oncoming traffic was so heavy or steady as to warrant such a delay. On the other hand, we find evidence in the record to show that there was sufficient room on the highway for the lumber truck to pass the milk truck and still remain in its proper lane.

There is no question that the lumber truck completely blocked the right lane of traffic; the controversy is whether the lumber truck was stopped without any taillights. The evidence disclosed by the record as to this important phase of the case is accurately stated in the written opinion of the trial judge as. follows:

“I am convinced that the lumber truck came upon this parked milk truck and saw an oncoming vehicle and fearing that there was insufficient room for such a situation came to a stop approximately parallel with the milk truck. I am, also, convinced that the lumber truck did not have any tail lights burning at the time of the collision with the rear end thereof. There is conflicting evidence on this important point of the case, but I am bound to believe Mr. Graham’s view, in light of all the other factors of the case. • Of all the witnesses, who testified in the case, Mr. Graham was the one most impressive to me. Where there is a hopeless conflict in testimony, it becomes the trial judge’s painful duty to carefully consider all of the evidence and then be satisfied of a true version of same. As for myself, I am satisfied that the tail lights were not burning on the lumber truck at the time of the accident.

• “The pick-up truck was traveling about 40 miles per hour, when the driver saw the parked milk truck. He then saw an oncoming car,' which prevented him from seeing the lumber truck, which was directly in his lane of traffic, until he was so close that the accident was unavoidable. He collided with the rear of the truck, causing personal injuries to all of the plaintiffs.”

An examination of the evidence in its entirety convinces us that the trial court was correct in its conclusion that the driver of the lumber truck was negligent in stopping on the highway, completely blocking a lane of traffic, with inadequate or no visible signals warning approaching traffic of its presence, and that such negligence was the sole and proximate cause of the accident. The evidence clearly preponderates to support plaintiff’s contention that the lumber truck was without lights or other signals and therefore not observable until too late to avoid the accident.

Graham was traveling at a speed well within the legal limits and was exercising such due care and caution as was warranted by the then prevailing conditions of time and weather. The plainly revealed position of the white panel milk truck and . the lights of the approaching eastbound traffic were caution enough to him that he was bound to remain in his own lane of traffic. There was nothing whatever to cause him to anticipate any hazard on the open highway in the vicinity of the milk truck such as this unlighted, parked lumber truck. When he first saw the parked timber truck he did all he could do to avoid the accident. He immediately applied his brakes. Had he swerved to the left of the timber truck he would have collided with approaching eastbound traffic. Had he swerved to the right of the timber truck he would have collided into the rear of the white panel milk truck. Faced with this emergency created by the timber truck, he did all that could have been done under the circumstances in an effort to avoid the accident.

Our rule that a motorist traveling on the public highways after dark or during a rainstorm, fog, or other abnormal condition, which prevents him seeing ahead, except imperfectly, and for a short time and distance, must guard against striking objects in the road with which he may be suddenly confronted, constitutes- an exception to the general rule that a motorist may assume that the road is safe for travel even at night. But that exception to the general rule is itself subject to the exception that a motorist traveling by night is not charged with the duty of guarding against striking an unexpected or unusual obstruction, which he had no reason to anticipate he would encounter on the highway. Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L.R.A.1917F, 253; Kirk v. United Gas Public Service Co., 185 La. 580, 170 So. 1.

The case of Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377, involved a truck parked on the dirt shoulder of the paved highway, with one of its front wheels resting on the shoulder and the other front wheel and both rear wheels resting on the pavement. The body of the truck extended at an angle across the right traffic lane about 5 feet from its outer edge, with no lights or flares to warn motorists of its presence. The plaintiff was proceeding along this partially blocked traffic lane when the parked truck suddenly loomed up out of the darkness; and because of traffic approaching from the opposite direction he had no alternative than to apply his brakes, but being then too close was unable to avoid running into the rear end of the parked truck. We held that the plaintiff was not negligent in failing to see the truck sooner than he did under the then prevailing circumstances.

In the case of Dodge v. Bituminous Casualty Corporation, 214 La. 1031, 39 So.2d 720, we affirmed the decision of the Court of Appeal holding free from negligence the motorist traveling on a straight highway at 45 miles per hour on a dark evening, unable to see a darkened truck until he was almost upon it and unable to take the risk of going to his left due to approaching traffic, and with no reasonable alternative but to collide with the parked truck. 33 So.2d 95.

In the case at bar. the location of the milk truck and the fact of the eastbound oncoming traffic afforded nothing, to ■indicate.an obstacle in the nature of the timber truck which was presented to Graham. We readily agree with the trial judge that the facts in this case lend themselves to a conclusion which exonerates the plaintiff Graham from the charge of contributory negligence.

Plaintiffs Vo well, Dyck and Salmon as passengers in the pickup truck are entitled to recover against the owner of the lumber truck, since it has not been shown that they were in any manner whatsoever contrib-utorily negligent.

Contributory negligence is, as its phrase signifies, negligence which contributes to the accident, that is, negligence having causal connection with it and but for which the accident would not have occurred. Insofar as the rights of a guest in an automobile are concerned, it is well settled that in actions against third persons, the guest riding in an automobile has the right to rely to a reasonable extent on the care and proper operation of the car by the driver. The guest is not called upon to be on the same alert and to have seen what the driver should have seen. It is only when there is danger so apparent that he, as well as the driver, should have seen it that he becomes negligent also if he fails to give warning or to protest if the driver’s negligence continues. Churchill v. Texas & Pac. Ry. Co., 151 La. 726, 92 So. 314; Lorance v. Smith, 173 La. 883, 138 So. 871; Delaune v. Breaux, 174 La. 43, 139 So. 753; White v. State Farm Mutual Auto Ins. Co., 222 La. 994, 64 So.2d 245, 42 A.L.R.2d 338; Herget v. Saucier, 223 La. 938, 67 So.2d 543.

After the rendition of judgment herein, but prior to a formal signing of the judgment in the consolidated cases, the defendants filed an exception of no cause or right of action, contending that the contract of insurance entered into by W. L. Bennett and Manufacturers Casualty Insurance Company limits the liability of the insurer to the maximum sum of $10,000 for one person and $20,000 for any one accident and that the demands of plaintiffs in each of the above consolidated cases be dismissed insofar as said demands exceed the terms and limits of this contract. The trial court properly overruled the exception.

Act 55 of 1930, as amended by Act 541 of 1950, LSA-R.S. 22:655, authorizes a direct action against the insurer of the insured. The act specifically provides, “ * * * The injured person or his or her heirs, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy * * *, and said action may be brought against the insurer alone or against both the insured and the insurer, jointly and in solido. * * * Nothing contained in this Section shall be construed to affect the provisions of the policy or contract * * (Italics ours.)

This right of an injured party to join the automobile liability insurer in an action against the insured for damages is purely remedial and does not affect substantial rights under the insurance contract nor impair its obligations. The insurer herein stands in the shoes of the insured to the extent or limit of its policy, and to this extent we will amend the judgment in favor of plaintiff Vowell.

The judgment of the trial court specifically provides that the liability of the defendant Manufacturers Casualty Insurance Company is limited to its maximum liability of $10,000 for one person and $20,000 for one accident, and we are convinced that the defendant is adequately protected thereby.

Accordingly, for the reasons assigned, the judgment of the Court of Appeal is reversed, annulled and set aside, and the judgment of the trial court is reinstated and affirmed.

On Application for Rehearing.

PER CURIAM.

We find no merit in the application for a rehearing. However, counsel for defendants, Manufacturers Casualty Insurance Company and W. L. Bennett, direct our attention to the fact that we inadvertently reinstated the judgment in favor of Mrs. Adele Bollier Vowell in the sum of $20,700, which was in excess of the limit of liability of Manufacturers Casualty Insurance Company under its policy of insurance. We shall therefore amend and reinstate the judgment of the District Court so as to conform to the opinion of this court, recognizing the limit of liability of the insurance carrier for any one person to be $10,000.

It is, therefore, ordered that the judgment of the District Court herein, in favor of Mrs. Adele Bollier Vowell and against defendants, W. L. Bennett and Manufac-urers Casualty Insurance Company, in solido, in the full sum of $20,700, with legal interest from judicial demand until paid and all costs, be amended to the extent that the solidary judgment, insofar as it runs against Manufacturers Casualty Insurance Company, be limited to the sum of $10,000, with legal interest from judicial demand until paid and all costs. As thus amended, the judgment of the District Court is reinstated and affirmed.

The application for a rehearing is denied.


source: Caselaw Access Project

author: SIMON, Justice.

license: Public Domain

text:
    229 La. 814
    Jack SALMON v. MANUFACTURERS CASUALTY INSURANCE COMPANY et al.
    No. 42034.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.
    Hobbs & Yeates, Minden, for plaintiff-relator.
    Gravel, Humphries, Sheffield & Mansour, Alexandria, for intervenor.
    Jackson, Mayer & Kennedy, Shreveport, for defendants-respondents.
   SIMON, Justice.

Plaintiff and relator herein, Jack Salmon, instituted this suit for damages for personal injuries suffered in the accident of December 11, 1951, on U. S. Highway 80, involving a truck in which he was a passenger and a timber truck which was stopped on the highway at the time of the accident. Our findings on the issues of fact and law given in the case of Vowell v. Manufacturers Casualty Insurance Co., 229 La. 798, 86 So.2d 909, are equally applicable to the instant case, and our decision therein is controlling here.

Accordingly, for the reasons assigned, the judgment of the Court of Appeal is reversed, annulled and set aside, and the judgment of the trial court is reinstated and affirmed.


text:
    229 La. 815
    Roland DYCK v. MANUFACTURERS CASUALTY INSURANCE COMPANY et al.
    No. 42035.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.
    Hobbs & Yeates, Minden, for plaintiff-relator.
    Gravel, Humphries, Sheffield & Mansour, Alexandria, for intervenor.
    Jackson, Mayer & Kennedy, Shreveport, for defendants-respondents.
   SIMON, Justice.

Plaintiff and relator herein, Roland Dyck, instituted this suit for damages for personal injuries suffered in the accident of December 11, 1951, on U. S. Highway 80, involving a truck in which he was a passenger and a timber truck which was stopped on the highway at the time of the accident. Our findings on the issues of fact and law given in the case of Vowell v. Manufacturers Casualty Insurance Co., 229 La. 798, 86 So.2d 909, are equally applicable to the instant case, and .our decision therein is controlling here.

Accordingly, for the reasons assigned, the judgment of the Court of Appeal is reversed, annulled and set aside, and the judgment of the trial court is reinstated and affirmed.


text:
    229 La. 816
    Francis A. GRAHAM v. MANUFACTURERS CASUALTY INSURANCE COMPANY et al.
    No. 42036.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.
    Hobbs & Yeates, Minden, for plaintiff-relator.
    Jackson, Mayer & Kennedy, Shreveport, for defendants-respondents.
   SIMON, Justice.

Plaintiff and relator herein, Francis A. Graham, instituted this suit for damages for personal injuries suffered in the accident of December 11, 1951, on U.S. Highway 80, involving a truck driven by him and a timber truck which was stopped on the highway at the time of the accident. Our findings on the issues of fact and law given in the case of Vowell v. Manufacturers Casualty Insurance Co., 229 La. 798, 86 So.2d 909, are equally applicable to the instant case, and our decision therein is controlling here.

Accordingly, for the reasons assigned, the judgment of the Court of Appeal is reversed, annulled and set aside, and the judgment of the trial court is reinstated and affirmed.


author: MOISE, Justice.

text:
    229 La. 817
    Paul C. WEILBAECHER, Jr. v. Emery JEE.
    No. 42719.
    Supreme Court of Louisiana.
    March 26, 1956.

      Milton H. Cohen, New Orleans, for defendant-appellant.
    Herman & Herman, A. I. .Kleinfeldt, New Orleans, for plaintiff-appellee.
   MOISE, Justice.

This is an appeal from an interlocutory judgment.

Plaintiff brought his action predicated on a written contract, wherein, it was agreed that he would receive one-third of the net proceeds of a certain contracting business conducted by defendant in this city. He prayed for an accounting and for a rule nisi, which would order the dé-fendant to show cause why an expert should not be appointed to audit the books to determine the exact amount due plaintiff. In order to obtain this objective, he asked that the-, books be sequestered. This rule to sequester was made absolute, and the books were sequestered.

After hearing, the court issued the -following order:

“It is ordered, adjudged and decreed that the rule be made absolute to the extent of ordering a Judicial Sequestration of all books, vouchers and records and that same be delivered to the Civil Sheriff for the Parish of Orleans, State of Louisiana, until the further orders of this Court;
“It is further ordered, adjudged and decreed that the defendant be allowed thirty (30) Days to answer.”

The result of a judicial sequestration is to place the property under the eye of the court, and in the instant case the court properly determined that such books be delivered to the Civil Sheriff for the Parish of Orleans, State of Louisiana, until further orders of the court itself.

There is no impropriety in this motion. In fact, it is.the court wisely exercising its discretion in the matter. In order to determine the merits of this cause, the books must be audited and an accounting made. Placing the books in the' custody of the Sheriff gives a fair deal and equal opportunity to both parties. A slight discomfort might be caused defendant, but no permanent injury could be inflicted upon him.

See Articles 538 and 539 of the Louisiana Code of Practice.

In the cases of In re Byrne, 193 La. 566, 191 So. 729; Reeves v. Barbe, 200 La. 1073, 9 So.2d 426; Three Way Finance Co., Inc., v. McDonald, 213 La. 504, 35 So.2d 31, 32, we held:

“* * * ‘The law does riot' favor the interrupting of "judicial proceedings by appealing from interlocutory decrees. Hence comes the. rule that an appeal is not allowed from such a decree unless it is one which may cause irreparable injury.’ * * *”

In the case of Ludwig v. Calloway, 191 La. 1000, 187 So. 4, 6, the district judge, ex proprio motu, rendered an interlocutory order judicially sequestering certain movable property. Such was appealed to this Court, and we held:

“To have allowed the defendant a suspensive appeal would have defeated one of the purposes of the suit, and by the court maintaining custody and possession of the property, the matter was kept status quo so that neither party would gain advantage over the other.”

The mandate of the law will be followed by a dismissal of the appeal.

Appeal dismissed, at appellant’s cost.


author: PONDER, Justice. PER CURIAM.

text:
    229 La. 821
    Amos B. JANTZ, I. E. Stephens and Glen G. Goodwin v. The LONG BELL PETROLEUM COMPANY, Inc. et al.
    No. 42097.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.
    Plauche & Stockwell, Lake Charles, fox plaintiffs-appellants.
    Jesse Andrews, Houston, Tex., W. E. Slagle, Kansas City, Mo., LeCompte, Hall & Coltharp, De Ridder, for defendant-ap-pellee.
   PONDER, Justice.

After a careful study of the record in this case, the oral arguments advanced on this appeal and the briefs filed in support thereof, we háve arrived at the conclusion that the trial judge has correctly-stated the facts, the law applicable thereto and correctly disposed of all the issues raised; and we, therefore, adopt his opinion as the opinion of this Court, viz.:

“These three plaintiffs, respectively, instituted these three jactitory actions, each one, respectively,- claiming to be the owner of the tract of land described in his petition and allege that defendant is slandering plaintiffs title by claiming to be the owner of the oil, gas and other minerals in, on and under the lands described in the petition.

“The defendant (the same in each case) alleging that plaintiff does not now have and has not had, possession of the minerals relating to the respective tracts of land, filed, in limine, in each case, an exception of lack of or want of possession in plaintiff and prayed that plaintiffs suit be dismissed at his costs, all as provided by Act 241 of 1946, now incorporated in LSA-R.S. 13:-5063.

“The three cases, for the purpose of the trial of the exceptions, were consolidated, with the agreement that separate judgments be rendered, in either parish of the district, in chambers or in open court, in vacation or in term time, and that orders of appeal be granted to the party cast, without the necessity of formal motion, the successful litigant waiving notice of judgment and notice of appeal.

“The exceptions are now before the court for decision, they having been submitted on briefs, the last of which was filed August 10, 1954. '

“The facts, as disclosed by the records, are:

“By deed dated December 29, 1931, Long-Bell Lumber Sales Corporation, conveyed to Long-Bell Minerals Corporation all of the oil, gas and other minerals in, on and under and that may be produced from a large tract of land, situated in Beauregard Parish, and described in the deed, amongst which was that described in these three petitions, the deed being filed in evidence and marked ‘E-l’.

“By instrument dated February 27, 1936, filed in evidence by exceptor, and marked ‘E-2’, Long Bell Minerals Corporation and Long Bell Petroleum Company, Inc., were merged, the name of the surviving corporation being ‘The Long Bell Petroleum Company, Inc.’ The effect of this instrument of merger was that the minerals corporation ceased to exist and its holdings, including the servitude created by the deed of December 29, 1931, (‘E-l’) became vested in the Long Bell Petroleum Company, Inc.

“It was stipulated (See Exhibit ‘E-7’) that The California Company, as the lessee of the Long Bell Petroleum Company, Inc., under lease dated February 15, 1939, filed in evidence and marked ‘E-3’, drilled a well to a depth of 10,692 feet, at which depth there was a reasonable hope of discovery, on

“Ey2 of SW% of SE¡4 Section 23, Township 4 South, Range 9 West,

in a good faith effort to produce oil, gas or other minerals which well was abandoned as dry in August of 1939. The land on which this well was drilled is a part of the large tract on which- the servitude was established by the deed ‘E-l’, dated December 29, 1931, as are the three tracts described in these three suits and the land on which this well was drilled and the land described in these three cases are contiguous, that is, one can pass from this drill site to the lands in the' tracts described in these three law suits without passing over any land other than as is described in Exhibit ‘E-l’.

■ “The same stipulation admits another well wa.s drilled by the same lessee, on

“SE14 of NE}4, Sec. 12, Twp. 5 South, Range 10 West,

and abandoned as dry in December, 1939, the well being drilled to a depth of 10,712 feet, under a lease dated December 15, 1939, filed in evidence marked ‘E-4’. The same additional admissions were made as to the good faith, etc., as were made as to the well described in the preceding paragraph hereof and the same thing may be said as, to the contiguity of the drill site and the respective tracts of land described in the respective petitions.

“The stipulation also admits that on December 11, 1946, Barnsdall Oil Company (Now Sunray Oil Company) completed a producing well on

SWJ4 of NE)4 of Sec. 1, Twp. 6 South, Range 10 West,

the well being drilled under a lease from this defendant and The Long Bell Lumber Company, dated April 22, 1946, filed in evidence and marked ‘E-5’. The forty-acre tract upon which this well was completed forms part of the large tract upon which the servitude was established by exhibit ‘E-l’, dated December 29, 1931, and, like the two drill sites hereinabove mentioned, is contiguous to the three tracts described in these three law suits. Exhibit ‘E-6’ is the assignment of the lease under which Barnsdall drilled this producing well to Sunray Oil Corporation.

“The uncontradicted testimony of the witness, Pleimann, Chief Clerk of Sunray Oil Corporation, shows that the well described in the preceding paragraph is still producing oil.

“The plaintiffs in the three suits acquired the lands described in their petitions, respectively, by deed executed by Long-Bell Farm Land Corporation and The Long Bell Petroleum Company, Inc., to the respective plaintiffs, or to the. immediate-grantor of these plaintiffs, all more than two (2) years prior to the institution of these suits, except that Mr. Jantz acquired one of his forties (SE1/4 of NE14 Sec. 4, Twp. 4 S, R 9 W) from Jonas Unruh, by deed dated September 21, 1953, (see ‘J-4’), Unruh having acquired it by deed^dated January 15, 1942, executed by Long-Bell Farm Land Corporation and The Long Bell Petroleum Company, Inc., see exhibit ‘Jantz-2’, the instrument covering Mr. Stephens’ title having been , filed in evidence and marked ‘S-l’, and the deeds filed in connection with the Goodwin title being marked ‘G-l’ and ‘G-2’.

“Each of the deeds which were exécuted by Long-Bell Farm Land Corporationband The Long Bell Petroleum Company, Inc., to the respective plaintiffs, or their authors in title, contained the following clause:

“ ‘There is hereby expressly reserved unto the Long Bell Petroleum Company, Inc., its successors and assigns, all of the oil, gas and minerals beneath the surface of all of the land above described, with full and exclusive rights and authority to exercise all reasonably necessary means for the prospecting, exploring and developing of such oil, gas and other minerals, including such right of access to the use of the surface of said land as may be necessary or incidental to this reservation; provided, however, that the Vendee, or his heirs or assigns, shall not be required to remove any buildings or other improvements placed or made upon said land, and provided further that in the exercise of said reservation reasonable compensation shall be made for damage caused to said land and improvements- and growing crops thereon, and reasonable rentals shall be paid for such of said land, if any, as may be used exclusively for such purposes.’

“It is proper to note here that the above quoted reservation is exactly the same as that contained in the deeds involved in the case of Long Bell Petroleum Co. v. Tritico, and quoted in the opinion in that case [216 La. at page 431], at page 784 of 43 So.2d.

“As to the Goodwin land, he testified (Tr. 10) that he has had his tract fenced since October, 1949, and that no wells have been drilled on it. His actual possession, of the-land he claims is not disputed.

“Plaintiff, Stephens, testified (Tr. 15) that he has paid the taxes on the land ever since he bought it; that shortly after he-bought it some eleven years ago, he ‘pushed’ the stumps off it and ‘it has. just been-laying out and I have been trying to raise a few pines on it’. ‘I intend to farm it in the-future’. In answer to the court’s question as to what he had done with the land during the past year, the plaintiff answered ‘Noth■ing, I haven’t done nothing, other than trying to raise a few pines on it and avoid fires’, and he said that consisted of ‘well, keeping watch on it to see that no fires broke out on my side of the road’. However, he did initiate an actual possession which may be continued by constructive or civil possession. (Succession] of Shelley [La.App.], 180 So. 452.)

“The Jantz suit involves the minerals in three forties — SEJ4 of NW]4 and SW}4 of NW%, Sec. 3, and SEJ4 of NEi/4, Sec. 4, all in Twp. 4 S, Range 9 West.

“Mr. Jantz acquired the SE]4 of NE[4 of Sec. 4 from Jonas Unruh, by deed dated September 21, 1953, see exhibit ‘Jantz-4’, Unruh having acquired, it by virtue of a deed executed by Long Bell Farm Land Corporation and Long Bell Petroleum Company, Inc., dated January 15, 1942, see exhibit ‘Jantz-2 ’.

“The other two forties of the Jantz were acquired in deeds executed by the two above named corporations directly to Jantz, one dated August 18, 1937 (Jantz-1) and the other dated May 15, 1947 (Jantz-3).

“Mr. Jantz testified that he had had the two forties he purchased from the corporation under fence for about ten (10) years, while the forty he purchased from Unruh is not fenced. Since he acquired the Unruh 40 in September, 1953, Mr. Jantz’s son-in-law built a house on that 40 and lives on it. The court maintained exceptor’s objection to plaintiff, Jantz, attempt to show Unruh’s possession, because no allegation of Unruh’s possession was contained in the petition (Ledet v. Ledet [La.App.], 192 So. 551), and Jantz had testified that such possession as he had exercised had been subsequent to his purchase on September 21, 1953.

“From the facts appearing in the record the court believes that both Goodwin and Stephens had, at the time of the institution of the suits and had had for more than two years, sufficient actual possession of their respective tracts of land to enable them to maintain the jactitation or slander of title action as to the land, itself, were possession of the land, alone, involved, and the .same thing can be said as to the two forties of the Jantz tract purchased directly from the two corporations, but as to the other forty, purchased from Unruh, Mr. Jantz could not maintain either a possessory action or action in jactitation, since he has not had the required possession.

“However, the slander of title claimed does not concern either tract of land, as such, and the possession of the land, itself, as the court sees it, is immaterial except to the extent that such possession may effect the possession of the underlying minerals or the mineral servitude, the object actually involved in the suits, the court not being permitted to consider the question of title, in a jactitory action except to the extent necessary to determine whether, plaintiff is really in possession as owner. International Paper Co. v. Louisiana Central Lumber Co. [202 La. 639], 12 So.2d 659.

“It has often been argued and, with some degree of logic, that the jactitory action should not lie to vindicate possession of mineral rights, which, under our law, is a servitude, for the reason that the action is founded on actual physical possession, a mineral right being incapable of such possession. However, the court long ago set thát issue at rest. The rule which the court applies in determining whether one has possession of a mineral right is based on Article 3432 of the LSA-Civil Code, which provides in part, as follows:

“ ‘The possession of incorporeal rights, such as servitudes and other rights of that nature, is only a quasi possession, and is exercised by the species of possession of which these rights are susceptible.’

And it has been held, in construing this article, that possession by the exercise of rights under a mineral servitude prevails over a landowner’s claim to possession by virtue of the fact that, he has a deed which is translative of title even to both land and minerals. Connell v. Muslow Oil Co., 186 La. 491, 172 So. 763; Lenard v. Shell Oil Co., 211 La. 265, 29 So.2d 844. And the same cases hold that the possession which the mineral owner acquires through the exercise of his.mineral rights excludes the landowner from the possession of the min-erais under any part óf tire land covered'by the mineral owners’ title.

“The Lenard case, particularly, is appropriate to the main facts in this case. In that case the owner of a very large tract of land (80,000 acres) sold it, reserving the minerals. The land purchaser sold 30 acres of the 80,000 (the 30 acres being a part of a 20,000 aeré continuous tract) acres to Lenard, before any well was drilled on the large tract, making no mention of the minerals. Subsequent to the sale of the land to Lenard, lessees of the mineral owner drilled several dry holes on the large tract, at points distant from the Lenard 30 acre tract. After the lapse of 10 years, no operations having been conducted on the 30 acre tract, Lenard brought a slander of title action against the mineral owners, claiming possession of the minerals, by virtue of his possession of the land (and under a deed making no mention of a mineral reservation) but the Supreme Court, through the Chief Justice, held that the drilling on any part of a continuous tract, constitutes exercise of the servitude on the whole, citing Lee v. Giaque, 154 La. 491, 97 So. 669; Frost Lumber Industries v. Republic Production Co. [5 Cir.], 112 F.2d 462, loe. cit., page 465, and that the exercise of the servitude on part of the large acreage constituted such possession as to preclude the possession of the minerals claimed by the plaintiffs in the 30 acre tract.

“In the Lenard case, Chief Justice O’Niell cited the case of International Paper Co. v. Louisiana Central Lumber Co., 202 La. 621, 12 So.2d 659 [660], upon which defendant, in these cases, mainly and this court believes, justifiably, relies.

“In that case, Chief Justice O’Niell was again the organ of the court. Citing a long line of cases, he pointed out that:

“ ‘A jactitation suit, or an action for slander of title, can be maintained only by one who is in actual possession as owner, and only against one who is not in possession, of the property the title to which is sought to be quieted.’ (Emphasis added.) . ■

- “It was also pointed out by the Chief Justice that in such a suit the title or ownership of the property involved, whether corporeal or incorporeal, is not in contest, and is not to be considered by the court except to the extent necessary to .determine whether the plaintiff is really in possession as' owners.

“I quote further from the International Paper Company case ([12 So.2d] page 662) as follows:

“ ‘The plaintiff depends upon the rule that one who has possession of the surface of a tract of land as owner may maintain a jactitation suit against one who slanders the possessor’s title by claiming mineral rights in the land. But that rule has its qualifications, one of which is that if the possessor of the land holds under a deed which on its face excepts the mineral rights, or if the so-called slanderer holds a recorded deed for the mineral rights, the possessor of the surface of land — in order to maintain his jactitation suit — must allege and make a prima facie showing that the outstanding .claim of the slanderer for the mineral rights has been extinguished by the prescription of ten years liberandi causae. In such a case the possessor of the surface as owner of the land cannot maintain a jactitation suit against a defendant who has a recorded deed for the mineral rights if the defendant is actually and adversely possessing or exercising the mineral rights. Mineral rights and mineral leases are by Act Z05 of 1938 “defined and classified as real rights and incorporeal immovable property, and may be asserted, protected and defended in the same manner as may be the ownership or possession of other immovable property by the holder of such rights”. It is declared in article 3432 of the Civil Code that possession of in- • corporeal property, such as servitudes, is had by the exercise of such rights. See Connell v. Muslow Oil Co., 186 La. 491, 172 So. 763; Allison v. Maroun, 193 La. 286, 190 So. 408; and In re Mt. Forest Fur Farms of America, Inc., 122 F.2d 232, where the United States Circuit Court of Appeals for the Sixth Circuit reviewed extensively the law of Louisiana recognizing that mineral rights are subject to actual possession, adverse to the possessor of the land itself, by the exercise of such rights.’

“It seems clear to this court that, unless there is some factual situation in these three cases to distinguish them from the Lenard case and the International Paper Company case, so as to make the law of those cases inapplicable to the present cases, the judgments here must be the same as they were in those cases, that is that plaintiffs have not possession of the mineral rights in the respective tracts and that defendant has, hence, that plaintiffs cannot maintain these jactitory actions.

■ “Counsel for plaintiffs, defendants in the exception, contend that exceptor should have set up in the exception of want of possession, the facts upon which it relies to show (1) that defendant is in possession and (2) that plaintiffs are not in possession. This court does not understand such to be a requirement of the law.

“Until the passage of Act 241 of - 1946, LSA-R.S. 13:5063, the question of possession in such actions as those could be placed at issue merely by denying the allegation of possession, or even by a general denial. Apparently the only purpose of the 1946 Act was to force the trial of the issue of possession, when such an issue was to be raised, to be had in limine.

“The exceptions in these cases, filed in limine litis, as the statute requires, denied plaintiff’s possession of the minerals, and, therefore ‘raises and pleads such defense by means of and in an exception filed in limine litis,’ to quote from the statute.

“The court is of the opinion that this phase of plaintiffs’ defense to the exceptions is without merit.

“Plaintiffs’ counsel also contend, in effect, in their brief, that when defendant joined with Long-Bell Farm Land Corporation in the execution of the deeds to the respective plaintiffs, a new or separate servitude was thereby created as to each tract covered by the separate deeds, and that the land conveyed by those separate deeds became thereby no longer subject to the servi-tudes created on the large tract of which these smaller tracts form parts, by the deed dated December 29, 1931 (E-l). To agree with this view would necessitate the court’s overruling of the Supreme Court’s holding (on rehearing) in the case of Long-Bell Petroleum Company, Inc. v. Tritico, 216 La. 426, 43 So.2d 782, 792, and that, of course, a district court cannot do, even if it had any desire to do so, which this court doesn’t have. In the Tritico case, the Supreme Court held that the reservations appearing in the deeds involved in that case, which deeds were executed by the same grantors as in the deeds here under consideration, and contained identically the same mineral reservation, were without effect and were placed in those deeds, for the protection of the vendees against any damages and inconveniences they might suffer through use of the servitude and as a protection to Long-Bell Farm Corporation under its warranty. Chief Justice Fournet, said, in that case:

“ ‘It is our opinion that the clause contained in the two deeds was intended for the protection of the vendor Long-Bell Farm Land Corporation under its warranty, and also for the protection of the vendees against damage or inconvenience they might suffer through the use of the servitude. Hence the reason for the appearance of the Petroleum Company in those deeds.’

“Counsel also argue that if an entirely new servitude was not created by the deeds under which these three plaintiffs acquired their respective tracts, the servitude created by the deed of December 29, 1931, (E-l) was thereby divided, in the sense that the original servitude became a separate one as to each of those individual tracts. In support of this particular postulation, they cite the cases of Elson v. Mathewes, 224 La. 417, 69 So.2d 734, and Spears v. Nesbitt, 197 La. 931, 2 So.2d 650. The facts of the cited cases render the opinions in those cases inappropriate here.

“In the Elson case, decided by Mr. Justice Hamiter as the organ of the Supreme Court, the facts were these: Mathewes, owning a 91 acre contiguous tract, sold one-half the minerals to Elson, thus creating a servitude on the 91 acres, and a few days thereafter, Elson sold one-half of his one-half mineral interest to Investors Royalty Co., Inc. Before the lapse of ten years, Mathewes leased his one-half mineral interest in the whole 91 acre tract to Arkansas-Louisiana Gas Co., and a year later Elson executed a similar lease, covering only 40 acres of the 91 acre tract to the same lessee. Thereafter, by means of a pooling and unit-ization agreement a drilling unit, comprising 640 acres, known as the Dowling Unit, was formed. The unit did not include the 51 acre tract (of the original 91 acre tract) but covered only the 40 acre tract which Elson had included in his lease. Production was obtained on the Unit (but no well was drilled on or production obtained from the 40 acres included in the Unit involved in the law suit, nor on any part of the 91 acre tract) and continued until July 1, 1946. The Court said [224 La. 417, 69 So.2d 735] :

‘Because of this 10-year nonuse plaintiffs’ mineral servitude would have prescribed in its entirety in 1947 had it not been for the pooling and unitization counterparts signed by the parties in 1944 (in effect a joint contract) which, among other things, stated: “ * * * This agreement is executed with the specific purpose and intent on the part of each of tire parties hereto to acknowledge the ownership of each and all of the parties hereto of their respective interest in and to the oil, gas distillate, condensate and other minerals and mineral rights in the lands pooled herein, so as to interrupt the running of the liberative prescription of nonuse, applicable under the laws of Louisiana to mineral servitudes, and each monthly payment of any of the royalties or other benefits hereunder, shall be considered and accepted by all parties as new acknowledgment made with the purpose and intent of interrupting said prescription as to all rights of all of the parties hereto under all the servitudes.” As a result of such agreement, particularly the quoted provisions, it is certain that prescription as to that part of the servitude covering the 40 acres situated within the unit was interrupted in 1944.’

“It is quite obvious from the quoted part of the opinion why the Court held as it did, and its reasoning, manifestly correct, could not possibly apply to the cases here being considered.

“The Spears case, decided by then Associate Justice Fournet, now The Chief Justice, is equally without application here. In that case certain mineral interests were conventionally pooled, it being agreed that each was to receive royalties from production obtained anywhere on the pooled tract, in proportion to* the ownership of each in the whole pool.

“Equally without merit is the contention that each time defendant leased a portion of the land covered by the servitude on the whole, it thereby created a separate servitude, covering only the leased acreage. The decision of the Supreme Court in Hunter [Co.] v. Ulrich, 200 La. 536, 8 So.2d 531, answers that proposition adversely to counsel’s contention.

“From the foregoing, the court concludes, that :

“(1) A mineral servitude was established in favor of Long Bell Minerals Corporation, the predecessor in title of this defendant, on December 29, 1931, by the deed of that date, on all of the lands therein described, including the three tracts herein under consideration.

“(2) The drilling on and/or production from said lands has maintained that servitude until the time of the trial of these exceptions, as to all of the lands described in said deed that are contiguous to the lands upon which said wells were drilled and/or said production obtained, amongst which are the three tracts involved in these three law suits.

“(3) The exercise of the servitude as to the lands on which the drilling was done and/or the production obtained, constitutes possession of the servitude, as to all of the lands subject thereto, to the exclusion of those purchasing small tracts of said main body, especially in deeds containing reservation of mineral rights.

“(4) In order to maintain the jactitory action, plaintiff must be in possession of the property, the possession of which is sought to be vindicated.

“(5) Neither of the plaintiffs is in possession of the mineral rights in the tract described in his suit.

“In view of the foregoing, it is evident that defendant’s exception of lack or want of possession must be maintained in each of these cases and plaintiff’s suit dismissed at his cost. * *

For the reasons assigned, the judgment is affirmed at appellants’ cost.

HAMITER, J., concurs in the decree.

FOURNET, C. J., absent.

On Application for Rehearing.

PER CURIAM.

In an application for a rehearing, counsel contend, among other things, that our holding in this case seriously affects the jurisprudence established in Spears v. Nesbitt, 197 La. 931, 2 So.2d 650; Ohio Oil Co. v. Ferguson, 213 La. 183, 34 So.2d 746 and Elson v. Mathewes, 224 La. 417, 69 So.2d 734.

Counsel are in error in this contention. We have merely held here, in line with International Paper Co. v. Louisiana Central Lumber Co., 202 La. 621, 12 So.2d 659, that a jactitory action may not be maintained as to mineral rights when there is outstanding of record a mineral servitude covering the land of which the plaintiff is in physical possession as owner, unless the servitude has prescribed because of nonuser. It appearing in this case that there has been a user of the original servitude, the jactitory suit must fail. However, this does not mean that our decision should be construed as holding that the contention raised by appellants relative to a reduction of the area of the servitude by the acts of the defendant may not be well founded. This question is open for determination in other litigation between the parties.

The application for a rehearing is refused.


author: REGAN, Judge.

text:
    Miss Georgia BERGERON v. SEWERAGE & WATER BOARD OF NEW ORLEANS et al.
    No. 19460.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.

      Graham & Graham, New Orleans, for plaintiff-appellant.
    George Piazza, New Orleans, for Sewerage & Water Board of New Orleans, defendant-appellee.
    Henry B. Curtis and Alvin J. Liska, New Orleans, for City of New Orleans, defendant-appellee.
   REGAN, Judge.

The plaintiff, Miss Georgia Bergeron, the owner and operator of a motor vehicle, instituted this suit against the defendants, Sewerage & Water Board of New Orleans and the City of New Orleans, endeavoring to recover the sum of $19,647.51 for personal injuries, property damage, medical and other incidental expenses incurred by her as a result of an accident on January 13, 1947, at 7:30 a. m., when her automobile was unavoidably driven into a three or four inch depression in Gayoso Street near its intersection of Banks Street, causing her to lose control thereof and run into a tree.

Defendants answered and, in substance, denied that they were guilty of any negligence in the premises and then asserted that the proximate cause of the accident was the excessive speed at which the plaintiff was traveling: in the alternative, defendants pleaded the contributory negligence of the plaintiff.

From a judgment in favor of the defendants dismissing plaintiff’s suit she has prosecuted this appeal.

Counsel for the plaintiff conceded in oral argument before this court, predicated on the facts revealed herein that no liability existed insofar as the City of New Orleans was Concerned and he, therefore, abandoned his case as to this defendant.

The record reflects that plaintiff, accompanied by Mrs. Louis Smith, was driving in Banks Street towards the lake, intending to take Mrs. Smith to her home in S. Gayoso Street between Banks and Palmyra Streets; when she reached Gayoso Street she braked the speed of her vehicle to ten miles per hour in order to facilitate the execution of a broad right turn, necessitated by the existence of a truck which was parked adjacent to the right curbing of Gayoso near Banks Street; she then accelerated the vehicle and had driven approximately fifteen feet when the left front wheel of her car rolled into a depression causing her to lose control thereof and run into a tree which was approximately thirty-seven feet removed from the depression resulting in the personal injuries and property damage which is the subject matter of this litigation.

It appears that on December 14, 1946, a maintenance crew of the Sewerage & Water Board caused a “cut” to be made in S. Gayoso Street for the purpose of repairing a leak in a water main. It was located approximately fifteen feet from the property line of Banks and S. Gayoso Streets and extended two and a half feet into the street and two and a half feet into the gutter bottom. The “cut” measured five feet in width by five feet in length. On December 16, 1946, the job was finished and the “cut” or hole was backfilled in conformity with a standard method used by the Sewerage & Water Board. On December 17, 1946, this “cut” was finally “dressed”, that is, the earth was packed down, the top of the excavation was replaced with hard filling together with a large quantity of crushed rocks. The crew who finished the “dressing” left a crown over the “cut” of approximately four to six inches to compensate for any possible subsidence.

James T. Bond, general foreman in charge of paving for the Sewerage & Water Board, related that he visited the scene of the accident on January 13, 1947, a short time after it had occurred and found that subsidence had developed which was concave shaped and sloped from street grade at the edges to a maximum depth of three inches at the center. His testimony was confirmed by several other employees of the Sewerage & Water Board and the fact that the “cut” was concave shaped and had subsided three to possibly four inches was not disputed by the plaintiff.

Plaintiff contends that the defendant was negligent in permitting the depression described hereinabove to exist for approximately thirty days without the erection of a “barrier” or “redlighting” the hazard in order to adequately warn and safeguard vehicular traffic.

Defendant, on the other hand, insists that the concave subsidence of this “cut” or depression to three or four inches in this shell or gravelled street did not constitute that degree of negligence which would compel tlie Sewerage and Water Board to respond in damages to the plaintiff for physical injuries and property damage allegedly incurred in consequence thereof.

The only question posed for our consideration is one of fact and that is whether a depression of three or four inches, resulting from repair work performed in Gayoso Street, constitutes actionable negligence on the part of the defendant?

A careful analysis of the evidence adduced herein, considered from the plaintiff’s most favorable aspect thereof, reveals that if a concavity existed it was not in excess of three or four inches beginning at the perimeter thereof and sloping towards the center. Predicated upon these established facts our jurisprudence is embellished with innumerable cases decided by both the Supreme and Appellate Courts of this State to the effect that the defect herein complained of affords no actionable negligence.

If the existence of such a defect was deemed to be evidence of negligence on the part of the defendant, then there is scarcely any street wherein water, sewerage or drainage repair or maintenance work is performed which would be reasonably safe thereafter and when accidents of this sort occurred the municipal corporation would be treated, to all intents and purposes, as an insurer thereof. The law does not prescribe a measure of duty so impossible of attainment, or a rule of liability so unjust and severe. It imposes upon municipal corporations the obligation of guarding against hazards that can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care; but when an accident occurs by virtue of some slight defect, such as existed herein, from which danger was not reasonably to be anticipated, and which, according to common experience, was not likely to occur, it is not charged with negligence.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: ORFINGER, J. PLEUS, J., PER CURIAM. SHARP, W., J.,

text:
    Jason Thomas SHORTES, Appellant, v. Leon M. HILL and Twila C. Hill, Appellee.
    Nos. 5D02-2571, 5D02-3564.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2003.
    Opinion Denying Rehearing Oct. 3, 2003.
    Sidney L. Syna, Melbourne, for Appellant.
    Robert R. Berry of Eisenmenger, Berry & Peters, P.A., Melbourne, for Appellee.
   ORFINGER, J.

Jason T. Shortes appeals a final judgment on his counterclaim in favor of Leon M. Hill and Twila C. Hill. We affirm without comment. Shortes, and his attorney, Sidney Syna, also appeal an order assessing attorney’s fees against them pursuant to section 57.105, Florida Statutes (2001). We reverse.

Following overly contentious litigation concerning what should have been a relatively simple mortgage foreclosure proceeding, the trial court awarded section 57.105 fees in equal shares against Shortes and Syna for work performed by the Hills’ attorney in defense of Shortes’s counterclaim. The order awarding fees made no express finding that Shortest counterclaim was not supported by material facts, or by the application of then-existing law to the material facts as required by section 57.105(1). Further, the order is not supported by substantial, competent evidence. The Hills’ attorney did not testify as to the number of hours spent in defense of the counterclaim or the fee agreement with his client as required. See Wiley v. Wiley, 485 So.2d 2 (Fla. 5th DCA 1986). While the Hills’ attorney proffered his time records, because Shortes objected to this procedure, without supporting testimony from the attorney, the affidavits should not have been considered by the trial court. “A finding that a party is entitled to recover attorney’s fees under section 57.105 must be based on substantial, competent evidence presented at the hearing on attorney’s fees or otherwise before the court and in the record.” Mason v. Highlands County Bd. of County Comm’rs, 817 So.2d 922, 923 (Fla. 2d DCA 2002). Having failed to prove entitlement to fees in the trial court, the Hills are not entitled to a second hearing. Wiley, 485 So.2d at 3.

What makes this otherwise unremarkable case noteworthy are the vitriolic comments about the trial judge contained in the appellate brief filed by Sidney L. Syna, Shortes’s attorney. Some of Syna’s more notable comments were:

There is also no question that plaintiffs pursued collection efforts against this defendant on a personal liability basis both before suit and continued to do so in the lawsuit for more than one year, from April 2, 2000 to June, 2001. Was this the pursuit of madness to a friendly court?
It’s true that there was no record made or presented as to the proceedings of the December 14, 2001 court hearing. However, it is submitted that something far off and out of line had to be involved to block what should have been a clear and obvious decision.

(emphasis added). These comments, without any record support, appear to make unsubstantiated charges of collusion or impropriety against the trial judge. Such charges, if unsupported, are unprofessional.

Rule 4-8.2(a) of the Rules of Professional Conduct provides:

(a) Impugning Qualifications and Integrity of Judges or Other Officers. A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office.

Rule 4-8.2 is intended to preserve confidence in the judicial system and prevent disrespect for the law, not to protect judges from criticism. As the supreme court explained in The Florida Bar v. Ray, 797 So.2d 556, 558-60 (Fla.2001):

[Etjhical rules that prohibit attorneys from making statements impugning the integrity of judges are not to protect judges from unpleasant or unsavory criticism. Rather, such rules are designed to preserve public confidence in the fairness and impartiality of our system of justice. See Kentucky Bar Ass’n v. Waller, 929 S.W.2d 181, 183 (Ky. 1996).... Because members of the Bar are viewed by the public as having unique insights into the judicial system, the state’s compelling interest in preserving public confidence in the judiciary supports applying a different standard than that applicable in defamation cases. For this reason, we, like many other courts, conclude that in attorney disciplinary proceedings under rule 4-8.2(a), the standard to be applied is whether the attorney had an objectively reasonable factual basis for making the statements. See United States Dist. Court v. Sandlin, 12 F.3d 861, 864, n. 1 (9th Cir.1993).
Our resolution of this case does not limit an attorney’s legitimate criticism of judicial officers; we simply hold that an attorney must follow the Rules of Professional Conduct when so doing. Although attorneys play an important role in exposing valid problems within the judicial system, statements impugning the integrity of a judge, when made with reckless disregard as to their truth or falsity, erode public confidence in the judicial system without assisting to publicize problems that legitimately deserve attention. See State ex rel. Oklahoma Bar Ass’n v. Porter, 766 P.2d 958, 969 (Okla.1988) (“Members of the Bar possess, and are perceived by the public as possessing, special knowledge of the workings of the judicial branch of government. Critical remarks from the Bar thus have more impact on the judgment of the citizen than similar remarks by a layman would be calculated to have.”).

Syna further wrote that the trial judge’s ruling was “cockeyed and absurd” and demonstrated a “most startling absence of legal knowledge and irrational decision .... ” (emphasis added). The Oath of Admission to the Florida Bar requires lawyers to “maintain the respect due to courts of justice and judicial officers” and to “abstain from all offensive personality.” Syna’s comments fall far below that standard and are demeaning and patently unprofessional. Such statements, made without any supporting facts, embarrass and denigrate our profession. Therefore, pursuant to the mandate in 5-H Corp. v. Padovano, 708 So.2d 244 (Fla.1997), we direct that the Clerk of this Court provide a copy of this opinion to the Florida Bar.

AFFIRMED IN PART, REVERSED IN PART.

SHARP, W., concurs.

PLEUS, concurs and concurs specially, with opinion.

PLEUS, J.,

concurring and concurring specially.

I concur wholeheartedly with Judge Or-finger’s comments concerning the unprofessional conduct of Sidney L. Syna. In my view, the trial court would be justified in holding Syna in contempt. It is my hope The Florida Bar will take prompt and decisive action.

ON MOTION FOR REHEARING

PER CURIAM.

We deny Jason T. Shortes’s motion for rehearing but direct that the Clerk of this Court provide a copy of the motion to The Florida Bar.

DENIED.

PLEUS and ORFINGER, JJ., concur.

SHARP, W., J., concurs specially, with opinion.

SHARP, W., J.,

concurring specially.

I agree the “Appellants’ Motion for Rehearing of Court’s Opinion of August 1, 2003,” filed by Shortes’ appellate attorney, Sidney L. Syna, should be denied. However, I submit that in so doing, more background should be stated, particularly in view of this court’s decision to refer Syna’s rehearing motion to The Florida Bar.

Shortes appealed from a final summary judgment denying relief on his counterclaim against the Hills, and granting attorney’s fees to the Hills for defense of the counterclaim. As to the latter issue, this court reversed the award of attorney’s fees on the grounds that the trial judge made no findings that the counterclaim lacked merit, and that the Hills failed to prove their entitlement to fees (time spent by their attorney in defense and their fee agreement with their attorney, etc.).

Thus, Shortes and his attorney partially prevailed on this appeal. However, it does not serve their cause, in their motion for rehearing, to repeat some of the same castigations of the two trial judges below which were stated in their appellate brief, or to add inferences similarly attacking this court’s ruling in this case.

Trial judges as well as appellate judges can make mistakes and misstate the law without being collusive or corrupt. Attorneys should limit their pleadings and briefs to addressing the legal errors. It is unprofessional to make or imply such charges, no matter how clearly wrong the ruling. While I agree with Shortes and his attorney that the trial court erred early in this case by not dismissing the Hills’ count in the foreclosure suit asserting Shortes’ personal liability on the promissory note executed by Shortes’ father, it is not clear from this record that Shortes properly raised this issue. In any event, the trial court ultimately dismissed that count long before this appeal was taken.

I also agree that had Shortes filed a motion for attorney’s fees based on section 57.105 seeking recovery for costs and fees relating to the defense of the personal liability claim, he could likely have been awarded fees. Shortes filed a two-count counterclaim against the Hills, one count of which asked for an award of attorney’s fees, because there was no legal basis for the Hills to establish Shortes’ personal liability on the promissory note involved in the foreclosure action. Thus, Shortes properly pled his claim for fees pursuant to Caufield v. Cantele, 837 So.2d 371 (Fla.2002).

But, this count does not state a cause of action against the Hills. A party must file a motion for attorney’s fees pursuant to section 57.105, Florida Statutes (2001). Further, Shortes also failed to file a timely motion for attorney’s fees and costs in compliance with Florida Rule of Civil Procedure 1.525.

The other count pled in Shortes’ counterclaim also failed to state a cause of action for harassment or invasion of privacy. See Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278 (Fla.1985); Ponton v. Scarfone, 468 So.2d 1009 (Fla. 2d DCA 1985). Shortes also argues, on appeal, that this count states a cause of action under section 559.72(9). Because it was not presented to the trial court, we should not, and did not, consider this issue on appeal. In sum, there was some mis-lawyering on both sides of this “over-litigated” foreclosure lawsuit, but nothing justifies the unprofessional behavior of the attorney for Shortes in this appeal.

      . The Hills' appellate counsel did not represent them in the proceedings below.

      . The appellee's appellate attorney was not their trial counsel.


author: KELLY, Judge.'

text:
    Stanley D. STOVALL, Appellant, v. Sergeant William COOPER, Michael Gallemore, Assistant Warden, and James V. Crosby, Jr., Secretary, Department of Corrections, Appellees.
    No. 2D02-4606.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2003.
    Rehearing Denied Oct. 10, 2003.

      Stanley D. Stovall, pro se.
    Beverly Wood Gibson, Assistant General Counsel, Tallahassee, for Appellees.
   KELLY, Judge.'

Stanley D. Stovall appeals from the non-final order granting the motion to transfer venue to Leon County. We affirm.

Stovall is an inmate at Polk Correctional Institution. After exhausting his administrative remedies, Stovall filed what he has styled as a complaint for declaratory relief against two employees of the prison, Sergeant William Cooper and Michael Gallemore (assistant warden), and against the Secretary of the Florida Department of Corrections, Michael W. Moore. His complaint alleges that the Department, through its employees, violated his constitutional rights. Specifically, he alleges that the appellees refused to conduct a full investigation regarding why he was deprived of an “above satisfactory” rating during one month, which would have entitled him to two additional days of gain time for that month.

Stovall filed his complaint in Polk County. The appellees moved to transfer venue to Leon County where the Department maintains its headquarters. The trial court granted the motion to transfer venue, and Stovall appealed from that order.

As a threshold matter, it appears that Stovall sought the wrong remedy, something the Department noted in its motion to transfer venue but which the trial court never addressed. Reduced to its essence, Stovall’s action seeks to accomplish nothing more than to secure two additional days of gain time, although Sto-vall vehemently denies that is what he is seeking. When alleging a deprivation of gain time, prisoners who have exhausted all administrative channels must seek their remedy in circuit court by way of a petition for an extraordinary writ. Hall v. Wainwright, 498 So.2d 670 (Fla. 1st DCA 1986). If a prisoner’s sentence would have expired had the Department properly awarded gain time, habeas corpus is the proper remedy. Searcy v. Singletary, 590 So.2d 1034, 1034 n. 1 (Fla. 2d DCA 1991). Otherwise, a petition for a writ of mandamus is the proper method for review of the Department’s denial of gain time. Singletary v. Powell, 602 So.2d 969 (Fla. 1st DCA 1992). Because Stovall did not allege that he is entitled to immediate release, his petition for declaratory judgment must be treated as a petition for a writ of mandamus.

The issue then becomes whether the trial court correctly transferred Stovall’s petition for a writ of mandamus to Leon County. If we were to follow this court’s prior case law, we would be required to hold that the trial court erred in transferring venue. This court has previously held that a petition for a writ of mandamus should be filed in the county where the prisoner is housed. See Mayberry v. State, 685 So.2d 1326 (Fla. 2d DCA 1996); Newsome v. Singletary, 637 So.2d 9, 11 n. 1 (Fla. 2d DCA 1994); Searcy, 590 So.2d at 1034 n. 1. Under these cases, venue would lie in Polk County where Stovall is incarcerated. However, we have concluded that these cases were incorrectly decided with regard to the determination of venue and that there is no basis to override the Department’s privilege of having the action brought where it “resides.” See § 47.011, Fla. Stat. (2001).

There is no specific venue statute applicable to petitions for writs of mandamus. Accordingly, the general venue statute, section 47.011, applies. That section provides:

47.011 Where actions may be -begun.— Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.

“In the case of state agencies, the county of ‘residence’ is where the agency’s headquarters are located.” See Dickinson v. Fla. Nat’l Org. for Women, 763 So.2d 1245, 1247 (Fla. 4th DCA 2000); see also Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 363-64 (Fla.1977). Thus, under the general venue statute, Leon County is a proper venue.

Leon County is also the proper venue in this case under common law. “It has long been the established common law of Florida that venue in civil actions brought against the state or one of its agencies or -subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision maintains its principal headquarters.” Carlile, 354 So.2d at 363. “Absent waiver or application of an identified exception, the home venue privilege appears to be an absolute right.” Jacksonville Elec. Auth. v. Clay County Util. Auth., 802 So.2d 1190, 1192 (Fla. 1st DCA 2002).

Thus, the impact of this court’s prior line of cases holding that a petition for a writ of mandamus should be filed in the county where the prisoner is housed is to effectively override both the common law home venue privilege as well as the general venue statute in cases where inmates seek mandamus relief against the Department. We have found no justification for this result and believe that this court’s position on this issue in the past is erroneous.

It appears that in this court’s mandamus cases, cited above, this court relied on the reasoning used in cases involving petitions for writs of habeas corpus. In habeas cases, trial courts only have the authority to rule upon petitions for writs of habeas corpus filed by a prisoner detained within the court’s territorial jurisdiction. See Raley v. State, 675 So.2d 170 (Fla. 5th DCA 1996). The respondent to a habeas petition must have “actual custody and [be] in a position to physically produce the petitioner.” Alachua Reg’l Juvenile Det. Ctr. v. T.O., 684 So.2d 814, 816 (Fla.1996). Because it is not a requirement that the prisoner be physically produced in a mandamus proceeding, the reasoning in habeas cases does not apply to writs of mandamus. Moreover, habeas petitions are governed by chapter 79, Florida Statutes. Section 79.09, Florida Statutes (2001), provides that “[b]efore a circuit judge the petition and the papers shall be filed with the clerk of the circuit court of the county in which the prisoner is detained.” There is no comparable provision pertaining to mandamus relief.

The likely source of the error, which is perpetuated in later cases, appears to come from Searcy, which states in a footnote that a petition for writ of mandamus should be filed in the circuit court in the county in which the prisoner is housed. See Searcy, 590 So.2d at 1034 n. 1. However, in support of this position, Searcy cites Hall v. Wainwright, 498 So.2d 670 (Fla. 1st DCA 1986), which does not state this proposition. Hall only states that prisoners must seek their remedy in circuit court through the filing of an extraordinary writ. It does not state in which county the petition should be filed.

In contrast to cases in which a prisoner seeks habeas relief against the Department, there is no legal justification to override the general venue rules, and in particular, the Department’s home venue privilege in cases in which a prisoner seeks mandamus relief against the Department. Accordingly, we recede from our earlier cases to the extent that they hold venue in a mandamus proceeding lies in the county where the prisoner is housed, and we affirm the trial court’s order transferring venue to Leon County.

Affirmed.

ALTENBERND, C.J., and FULMER, WHATLEY, NORTHCUTT, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, COVINGTON, CANADY, VILLANTI, and WALLACE, JJ., Concur.

      . James V. Crosby, Jr., has since replaced Michael W. Moore as Secretary of the Florida Department of Corrections.

      . In Ms appeal, Stovall argues that the "sword-wielder” exception to the home venue privilege applies. The "sword-wielder” exception to the State’s home venue privilege exists where an unlawful invasion of a constitutional right is directly threatened in the county where the suit is instituted. Parties seeking relief from alleged threats to their personal and property rights by the operation of unconstitutional acts of a State agency may bring suit in the county where the alleged wrongs are threatened or alleged to have been committed. Graham v. Vann, 394 So.2d 178, 179 (Fla. 1st DCA 1981). Although Sto-vall has couched his grievance as a constitutional issue, he has failed to point to a specific constitutional right that has been violated. Basically, his argument is that he was not evaluated as highly as he thought he should have been- according to the Department’s rules. Therefore, as the State maintains, the sword-wielder exception does not apply.

      . This court is in conflict with other districts on this issue. The First, Third, Fourth, and Fifth Districts have stated that venue for a mandamus proceeding seeking an award of gain time is in the circuit court in Leon County under the home venue privilege. See Harris v. State, 713 So.2d 1106 (Fla. 4th DCA 1998); Barber v. State, 661 So.2d 355, 356 n. 2 (Fla. 3d DCA 1995); Singletary v. Powell, 602 So.2d 969 (Fla. 1st DCA 1992); Curry v. Wainwright, 419 So.2d 744 (Fla. 5th DCA 1982). But see Grant v. State, 837 So.2d 1075 (Fla. 4th DCA 2003) (holding that the remedy for a defendant who was not given the proper gain time is to file a petition for a writ of mandamus in the county where he is incarcerated); Ashley v. Singletary, 706 So.2d 1373 (Fla. 1st DCA 1998) (same); Green v. State, 698 So.2d 575 (Fla. 5th DCA 1997) (same).


author: PER CURIAM.

text:
    Nicholas CAPETTA, Appellant, v. David C. LEAHY, Supervisor of Elections, Miami-Dade County, Florida, individually and jointly with the City of Homestead, Mayor Roscoe Warren in his official capacity as Mayor of the City of Homestead, individually and jointly with the other Members of the City Council; Vice-Mayor Steven D. Losner; Councilman Steven C. Bateman; Councilman Eddie Berrones; Councilman Jeffery D. Porter; Councilwoman Judy Waldman and individually and jointly with Weiss Serota Helfman Pastoriza & Guedes, P.A.; Richard Jay Weiss, Esq., and David M. Wolpin, Esq., Appellees.
    No. 3D02-3359.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Rehearing and Rehearing En Banc Denied Nov. 19, 2003.
    O. Oliver Wragg, Miami, for appellant.
    Weiss Serota Helfman Pastoriza Guedes Cole & Boniske and Edward G. Guedes, Miami, and Jose S. Talavera, for appellees.
    Before SCHWARTZ, C.J., and COPE, J., and NESBITT, Senior Judge.
   PER CURIAM.

Nicholas Capetta appeals a final judgment denying relief in his action to enjoin an election on charter amendments to the City of Homestead Charter. We find no error and affirm the trial court’s judgment. The accompanying petition for writ of prohibition is denied.

Affirmed; petition denied.