text:
    LOUISIANA STATE BOARD OF MEDICAL EXAMINERS v. Herbert R. WINDER.
    No. 20837.
    Court of Appeal of Louisiana. Orleans.
    Nov. 4, 1957.

      Frederick J. R. Heebe and Gordon L. Bynum, Gretna, for defendant-appellant.
    Adams & Reese, Robert E. LeCorgne, Jr., New Orleans, for plaintiff-appellee.
   REGAN, Judge.

Plaintiff, Louisiana State Board of Medical Examiners, instituted this suit endeavoring to preliminarily and permanently enjoin defendant, Herbert R. Winder, from practicing medicine in violation of the-provisions of LSA-R.S. 37 Ú261 without initially obtaining a certificate in conformity with the requirements of LSA-R.S-37:1270.

Defendant pleaded the exceptions of (1) res judicata, (2) former jeopardy, (3) no right or cause of action, and (4) vagueness, all of which were overruled, and then answered generally denying the allegations, of plaintiff’s petition.

From a judgment in favor of plaintiff permanently enjoining and prohibiting the defendant from practicing medicine in the. State of Louisiana until the proper certificate is obtained, defendant has prosecuted! this suspensive appeal.

The record reveals that the petition filed by the plaintiff avers that the defendant is holding himself out to the public as being “engaged within Jefferson Parish, Louisiana, in the business of diagnosing, treating,, curing, or relieving any bodily or mental! disease, condition, infirmity, deformity, defect, ailment, or injury in any human being other than himself whether by the use of any drug, instrument or force, whether physical or psychic, or of what other nature, or any other agency or means; or the examining, either gratuitously or for compensation, of any person or material from any person for such purpose whether such drug, instrument, force, or other agency or means is applied or used by the patient or by another person * * * ”; that the foregoing acts constitute the practice of medicine as defined by LSA-R.S. 37:1261; the defendant has never obtained the certificate provided for by LSA-R.S. 37:1270, and that he should be enjoined from said practice and be required to pay a penalty and attorney’s fees in conformity with the rationale of LSA-R.S. 37:1286. Before the trial hereof plaintiff abandoned its claim to penalties and attorney’s fees.

On the trial of the merits, it was proved that the defendant did not possess a certificate or permit authorizing the practice of medicine as is required by the statute. It was also* established as a fact that the defendant was known as Dr. Herbert R. Winder and was engaged in what he termed “electronic therapy,” and it was proved that he received compensation for administering some form of electrical treatment to several individuals and also for prescribing and issuing to these persons tablets, which were analyzed by the Shils-tone Testing Laboratory as “prednisone,” manufactured by Merck & Co., Inc. and sold under the trade name of “delira.” It is also manufactured by Schering Corporation and sold under the trade name of “meticorten.” The evidence conclusively reveals that the defendant engaged in what he chooses to call the practice of “electronic therapy,” which undoubtedly is within the scope of the practice of medicine and is therefore encompassed by the terms of the statute prohibiting the practice of medicine without the possession of a certificate issued by the Louisiana State Board of Medical Examiners.

It is significant that in this Court the defendant has made no effort to resist the issuance of an injunction predicated on the merits of the case — that is, his legal right to practice medicine in conformity with the established law regulating that practice. He has principally endeavored to sustain his right to practice medicine by pleading and relying upon technicalities in the form of the following exceptions: (1) res judicata (2) former jeopardy (3) no right or cause of action (4) vagueness. The first exception directs our attention to the fact that a prior suit was instituted by the same plaintiff on or about October 20, 1949, requesting the issuance of an injunction together with penalties and attorney’s fees against the same defendant in the Twenty-fourth Judicial District Court of the Parish of Jefferson, Louisiana; and in that case after a trial on the merits, the suit was dismissed. Defendant now insists that he cannot be sued again since the same subject matter was previously adjudicated by virtue of a final and definitive judgment, specifically the issue of whether the defendant had obtained a certificate to practice medicine. Certainly, we do not disagree with the general statement of law asserted by the defendant relative to the implications of a plea of res judicata — that is, a matter settled by judgment. However, that general rule has no application to this case for the reason that none of the evidence adduced at the trial to prove the plaintiff’s case was in any way related to the evidence offered in the trial of the former suit; in fact all of the evidence adduced herein encompassed a period of time after October 20, 1949, the date of the institution of the previous suit, and therefore this case forms a separate and distinct cause of action as distinguished from the one formerly instituted by the same plaintiff against the identical defendant.

The exception of former jeopardy is in the ultimate related to the plea of res judicata and was correctly overruled for the same reasons enumerated herein above; .in addition thereto the record discloses that the plaintiff abandoned its claim to penalties •and attorney’s fees as provided for in LSA-R.S. 37:1286.

The defendant pleaded the exceptions of no right or cause of action in.the .Lower Court, which were overruled, and •argued in substantiation thereof entirely ■different reasons than he now asserts in support thereof in his brief before this •court. He now rationalizes that:

(a) The plaintiff’s verified petition was ffevoid of any showing that the President •of the Louisiana State Board of Medical Examiners had been authorized or empowered by the Board to bring this action as required by LSA-R.S. 37:1286.

(b) The plaintiff’s petition and oath were defective and insufficient to support a writ of injunction and did not conform to the rigid requirements of the Louisiana Code of Practice relative to the issuance of conservatory and supervisory writs.

It is our opinion that the exception of want of legal and proper authority to file, institute, and prosecute this action and the want of verification or defective verification are dilatory exceptions,, which must be pleaded in limine litis. The following cases, we believe, confirm this conclusion.

“In Equipment Finance Corp. v. Atkins, 19 La.App. 834, 139 So. 154, the Court of Appeal for the Second Circuit held that an exception directed against the corporate capacity of a plaintiff corporation is dilatory and must be pleaded in limine and that the right to make such a plea is lost by a confirmation of default. See, also, Code of Practice, Art. 333; Reisz v. Kansas City Southern R. Co., 148 La. 929, 88 So. 120; Central Surety & Ins. Corp. v. Canulette Shipbuilding Co., La.App., 195 So. 114; Guaranty Discount & Collection Co. v. McClure, La.App., 172 So. 564; Dunlevy Packing Co. v. Juderman, 1 La.App. 476; and Gillon v. Miller, 15 La.App. 168, 130 So. 672.” Post Office Employees Credit Union v. Frosina, La.App.1955, 77 So.2d 213, 215.

In Louisiana State Board of Medical Examiners v. Stephenson, La.App.1957, 93 So.2d 330, 332, the Court of Appeal for the First Circuit asserted:

“As to the exception of no right and of no cause of action based on the want of verification or defective verification of plaintiff’s original petition filed in the Lower Court, we wish to specifically point out that according to the Pleadings and Practice Act now incorporated in the LSA Revised Statutes of 1950 as 13:3601 (5), Paragraph (b) provides as follows:
“ ‘Want of verification or defective verification must be taken advantage of if at all, in the case of a petition by exception filed in limine litis, and in all such cases the court may in its discretion, allow the verification to be supplied or amended upon terms as to the payment of costs, or otherwise, as it may deem proper.’
See also Bond v. Texas & P. Ry. Co., 181 La. 763, 160 So. 406.
“Defendant-appellant has only seen fit to attack the verification in this appellate court and failed to raise the issue in limine litis. Therefore, for the above and foregoing reasons said exception is overruled.”

The plea of vagueness was neither argued nor briefed before this court, and therefore may properly be considered as abandoned. In any event, we believe that it was without merit.

Obviously, the defendant predicated his case entirely on technical pleadings and revealed to us no fault with the facts as found by the trial judge who, after hearing the witnesses and ordering an analysis of the prescribed tablets, concluded that the defendant was practicing medicine as defined by LSA-R.S. 37:1261 and that he had not acquired the necessary certificate permitting him to engage in this practice and therefore issued an injunction.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

      . “As used in this Part, ‘the practice of medicine, surgery, or midwifery’ means the holding out of one’s self to the public as being engaged in the business of diagnosing, treating, curing, or relieving any bodily or mental disease, condition, infirmity, deformity, defect, ailment, or injury in any human being other than himself whether by the use of any drug, instrument or force, whether physical or psychic, or of what other nature, or any other agency or means; or the examining, either gratuitously or for compensation, of any person or material from any person for such purpose whether such drug, instrument, force, or other agency or means is applied or used by the patient or by another person; * * ”.

      . “No person shall practice medicine or-midwifery in any of its departments unless he possesses a certificate issued! under this Part and duly recorded.”

      . “The board through its proper officer may cause to issue in any competent court a writ of injunction enjoining any person from practising medicine in any of its departments, until such person obtains a certificate under the provisions of this Part. This injunction shall not be subject to being released upon bond.
      “In the suit for an injunction, the board, through its president, may demand of the defendant a penalty of not more than one hundred dollars, and attorney’s fees not to exceed fifty dollars, besides the costs of court. * * * ”


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    SERVICE FIRE INSURANCE CO. OF NEW YORK v. HOUSTON FIRE & CASUALTY INSURANCE COMPANY et al.
    No. 20813.
    Court of Appeal of Louisiana. Orleans.
    Nov. 4, 1957.
    A. J. Marciante, New Orleans, for plaintiff and appellant.
    Bienvenu & Culver, P. A. Bienvenu, New Orleans, for defendants and appellees.
   REGAN, Judge.

Plaintiff, Service Fire Insurance Company of New York, the subrogee insurer of Mrs. Mildred O. Ticoulet, instituted this suit against the defendants, Sidney J. Eusea, and his insurer the Houston Fire and Casualty Insurance Company, endeavoring to recover the sum of $1,275 representing property damage sustained on November 6, 1954, at about 11 P.M. as the result of a collision on U. S. Highway 90 in Paradis, Louisiana, between a 1952 Hudson automobile owned and operated by Mrs. Ticoulet and Eusea’s 1953 DeSoto. Defendants answered and admitted the occurrence ■of the accident, but asserted that the proximate cause thereof was the negligence of Mrs. Ticoulet and, in the alternative, pleaded both the contributory negligence of Mrs. Ticoulet and that she had the last clear ■chance to avoid the collision. From a judgment in favor of defendants dismissing plaintiff’s suit, it has prosecuted this appeal.

The record reveals that Highway 90, as it passes through Paradis, Louisiana, is a two lane highway running east and west, •east toward New Orleans and west toward Houma. At the situs of the collision, Nack’s Bar and Restaurant is located on the north side of the highway, approximately 90 feet from the roadway. Between the restaurant and highway there exists a shell parking area, measuring approximately 156 feet in width. The speed limit applicable to this highway is conceded to be 60 miles per hour.

Mrs. Ticoulet, accompanied by Earl V. 'Brouillette, a guest passenger, was driving Tier vehicle over the shell parking area moving toward the highway and away from the restaurant with the intention of crossing the westbound lane of traffic and then ■executing a left turn in order to proceed toward New Orleans. Sidney Eusea was ■driving his DeSoto sedan in a westerly direction on Highway 90, moving in the general direction of Houma, Louisiana. The .collision occurred between the Ticoulet and Eusea automobiles in the westbound traffic lane on Highway 90.

Mrs. Ticoulet testified that after dining at Nack’s Bar and Restaurant and drinking two bottles of beer with her companion, Earl V. Brouillette, she turned her car around in the parking area of the restaurant, approached the highway, and then stopped at its edge. She looked to her left and observed three cars about two blocks away coming toward her in the westbound lane of the highway. To her right she saw two cars in the eastbound lane, one at a distance of about one-half block and the other about one and one-half blocks. Assuming that she would have time to clear the highway before the westbound cars reached her or that they would in any event be able to stop when they saw her, she then drove on to the highway, intending to wait and permit the first car approaching from her right to pass so that she could enter the eastbound lane of the highway. While in the westbound lane, Mrs. Ticoulet’s car was struck in about its center by Eusea’s automobile. Mrs. Tic-oulet insisted that she had stopped her automobile in the highway, but her companion, Brouillette, in contradiction thereof stated that the car was moving very slowly at the time of the accident.

Eusea testified that on the night of, and during the three hours just prior to, the accident he had stopped at two taverns and had consumed approximately six small bottles of beer. He re-entered his vehicle and drove west on U. S. Highway 90; as he was approaching Nack’s Bar and Restaurant, he saw crossing the road the beam of the headlights of Mrs. Ticoulet’s car which was about 75 feet away and obviously stopped. Then, the Ticoulet car moved on to the highway when he was about 15 or 20 feet away and he no longer possessed the opportunity of avoiding the accident.

The trial judge found as a fact that Mrs. Ticoulet was guilty of gross negligence in endeavoring to cross the highway in the face of an oncoming vehicle, and our careful analysis of the record fails to reveal any error in the factual or legal conclusions reached by the trial judge. LSA-R.S. 32:237, subd. E, provides:

“The driver of the vehicle entering a public highway from a private road or entering a private road from a public highway shall yield the right of way to all vehicles approaching on the public highway and to all pedestrians properly walking thereon.”

The final question posed for our consideration is whether the facts and the environmental characteristics of the accident as disclosed by the record permit the application of the doctrine of last clear chance.

“The doctrine of last clear chance, and the ramifications thereof, i. e., discovered and apparent peril, as we understand it, simply means that the courts will hold a negligent defendant liable to a negligent plaintiff if the defendant, aware of the plaintiff’s peril, or unaware of it only through lack of care, had, in fact, a later chance than the plaintiff to avoid the accident.”

We are of the opinion that the factual context of the record shows that Eusea was not negligent; therefore the foregoing doctrine is inapplicable herein. But assuming arguendo that he was negligent, in that event, he was not afforded the last clear chance of avoiding the accident. He was confronted with a sudden emergency and acted as any reasonable man would have acted under similar circumstances. Plaintiff was required to carry the burden of establishing fault on Eusea’s part by a preponderance of the evidence; not only has it failed in this esssential respect, but it is now perfectly clear to us after a careful evaluation of the record that the damages incurred by the Ticoulet vehicle were caused solely by her gross negligence in suddenly moving from a place of safety into the path of Eusea’s vehicle at a time when it was too late for him to avoid striking her.

The lower court obviously was of the-opinion that the dominant cause of the accident was the impetuous movement of the Ticoulet vehicle from a point of relative safety — that is, the shell parking area of Nack’s Bar and Restaurant, into the path of defendant’s vehicle, which was being operated in the westbound lane of U. S. Highway 90, at a moment when it was too-late from the standpoint of both time and distance for Eusea to do anything to circumvent the impending accident.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

      . Montault v. Bradford, La.App.1955, 79 So.2d 601, 603.


author: McBRIDE, Judge.

text:
    Joseph MAES et al. v. CITY OF NEW ORLEANS.
    No. 21001.
    Court of Appeal of Louisiana. Orleans.
    Nov. 4, 1957.
    Rehearing Denied Nov. 18, 1957.

      Alvin J. Liska, City Atty., and Alden W. Muller, first Asst. City Atty., New Orleans, for defendant-appellant.
    Richard Dowling, New Orleans, for plaintiffs-appellees.
   McBRIDE, Judge.

This is a declaratory judgment suit. The question before the court for determination is whether the supplementary pay of a police officer of the City of New Orleans, granted by the State of Louisiana under Act 323 of 1956, as amended by Act 12 of 1957 (now LSA-R.S. 33:2218.1 et seq.), is to be classified as part of his salary, from which 5 percent thereof shall be deducted and paid over to the board of trustees of the police pension fund in the City of New Orleans in accordance with LSA-R.S. 33:2286.

Plaintiffs are members of the New Orleans police force and as such each receives a fixed salary from the municipality. The abovermentioned act of 1957 amended R.S. 33:2218.2 so as to, provide:

“A. In addition to the compensation now paid by any municipality included in this Sub-part to any police officer, every police officer employed by any municipality which employes one or more police officers who devotes his full working time to law enforcement, shall be paid by the state extra compensation as follows:
“(1) $16.66 per month for each full time municipal law enforcement officer who has completed or who hereafter completes one year of service;
“(2) $33.32 per month for each full time municipal law enforcement officer who has completed or who hereafter completes three years of service;
“(3) $50.00 per month for each full time municipal law enforcement officer who has completed or who hereafter completes six years of service.
“B. In computing the period of service required by Sub-section A service as a police officer in the municipality shall include prior service for those police officers who have returned or hereafter return to such service.”

The plaintiffs direct their suit against the City of New Orleans, and by it seek a judicial declaration to the effect that the City must deduct from the amount received by the officers, members and employees of its police department from the State of Louisiana as supplementary pay, under R.S. 33:2218.1 et seq., an amount equal to 5 percent thereof, and to pay the same over to the police pension fund for the benefit of said fund and those eligible to receive pensions thereunder.

The Legislature, by Act 96 of 1948, provided for a police pension fund for the police department of the City of New Orleans; created a board of trustees thereof for the administration, management, control, and operation of said fund; provided for the pensioning of the officers, members, and employees of the police department, their widows, children, and widowed mothers. The provisions of Act 96 of 1948 are now embraced in the LSA-Revised Statutes of 1950 and are to be found in Title 33, sections 2281 through 2304. It is provided by LSA-R.S. 33:2286 that salary deductions from the salaries of employees of the police department shall be paid into the pension fund, said section reading thus:

“Five per cent of the salaries of the officers, members, and employees of the police department shall be turned over and paid to the board. This levy shall be deducted and collected monthly out of the salaries and paid into the fund.”

The City of New Orleans contends: (1) That the State of Louisiana had not the authority to fix the salary of a classified civil service employee of New Orleans, such as a policeman, and (2) that the supplementary pay provided for by LSA-R.S. 33:2218.1 et seq. is not a salary at all but is merely a “bonus, gift or handout.”

The trial judge was of the opinion that the additional compensation paid by the State to petitioners forms part of their salaries and is amenable to the 5 percent pension fund deduction, and, accordingly, judgment was rendered declaring that such deduction should be made and collected monthly by the City of New Orleans and turned over and paid to the board of trustees of the pension fund as provided by LSA-R.S. 33:2286. The City appealed.

We agree with the conclusions of the trial judge. There is no merit in either of the City’s contentions. We are cognizant of no law, authority, or valid reason why the State of Louisiana by legislative fiat cannot supplement the pay of municipal police officers, as it did, in order to promote the public peace and safety by providing better enforcement of law and particularly the enforcement of state laws by municipal police officers. The additional pay granted by the State is not in the category of a bonus, gift, or handout, but, on the contrary, is a supplementation of the salary of the police officer and cannot be considered in any other light than as part of the salary. The word “salary” is defined by Black’s Law Dictionary: "A reward or recompense for services performed.”

Even the Department of Finance of the City of New Orleans, which makes payment of salaries to the City’s employees, considers the state allowance a part of the salary of a policeman as appears by reference to a check dated September 17, 1956, drawn by the Department of Finance to the order of petitioner Maes, for “salary for period ending 8/31/1956.” The check, which is in evidence, is charged to “Supplemental Salary Account No. 1.” Even if it were doubtful what the meaning of the legislative enactments is, the contemporaneous interpretation thereof by the Department of Finance should be accorded great weight.

Thus having found that the supplemental pay is part of the police officer’s salary, it is proper that the 5 percent deduction be made therefrom monthly and turned over and paid to the board of trustees of the police pension fund in the City of New Orleans in accordance with LSA-R.S. 33 :- 2286.

The City also contended in the lower court, but not in brief or oral argument before us, that Acts 323 of 1956 and 12 of 1957 are unconstitutional in that the proposals to introduce the bills into the legislature were not published in the Official State Journal of the State on three separate days at least thirty days prior to the convening •of the Legislature, in contravention of Art. 19, sec. 25, Const.1921, LSA which provides in part:

“No proposal to amend or effect any change in existing laws or provisions •of the constitution relating to any retirement system in this state shall be introduced into the legislature unless notice of intention to introduce such proposal shall have been published in the official state journal of the state on three separate days at least thirty days prior to the convening of the legislature in regular session. * * ”

The City’s position is that the legislative acts in question had the effect of attempting to amend or change the existing laws relating to the police retirement system in the City of New Orleans. We do not agree with this line of reasoning. The enactments do not tend in any manner to amend or effect any change in the existing laws relating to the police retirement system in vogue in New Orleans. All that might be said is that the acts which grant the local police officers additional pay from the State may have the effect of increasing the amount due some beneficiaries under the pension plan, but this does not amount to an amendment or effect any change in the existing laws respecting the retirement system within the contemplation of the Constitution of Louisiana. The constitutional provisions refer to amendments and changes in the basic systems of retirement.

For these reasons the judgment appealed from is affirmed.

Affirmed.


author: THORNAL, Justice.

text:
    Robert PERRY and Celia Perry, his Wife, Appellants, v. Abraham BECKERMAN and Felix Haizband, Appellees.
    Supreme Court of Florida.
    Oct 18, 1957.
    Rehearing Denied Nov. 26, 1957.
    George dieren, Norman Somberg, Thomas H. Anderson and Anderson & Nadeau, Miami, for appellants.
    Max R. Silver, Daniel Satin and Phillip Goldman, Miami, for appellees.
   THORNAL, Justice.

Appellants Perry, who were plaintiffs below, seek reversal of a final decree for a money award which was adjudicated to be enforceable against the appellants’ homestead, and- which was based on a counterclaim of the appellees Beckerman and Halzband.

To determine the questions raised we must decide whether the claim of the appel-lees was infected with usury as contended by appellants and, if not, the extent of its enforceability against the homestead of appellants Perry and wife.

In October, 1953, appellants entered into a contract with one “Babe” Shargaa. Mr. Shargaa is not a complete stranger to this Court. Shargaa v. State, Fla.1955, 84 So.2d 42. By this agreement Shargaa agreed to construct a ten-unit motel on appellants’ homestead property. The construction contract was revised slightly by a subsequent document executed by the same parties in December, 1953. Appellants Perry by the contract agreed to pay Shargaa $39,500 for-the construction of the motel. In December, 1953, the Perrys also executed to Shar-gaa a promissory note in the amount of $39,500. In addition to building the motel Shargaa agreed by the contract to pay off for the Perrys a mortgage of about $900 and to pay over to them in cash about $1,100. In Jánuary, 1954, the Perrys allegedly executed a mortgage on the homestead property securing the previously signed note. The Perrys signed the mortgage in the presence of only one witness and they did not appear before the Notary Public who on the face of the mortgage took the acknowledgment.

On the day the mortgage was executed, Shargaa sold the note and mortgage to Beckerman for an agreed discount of twenty percent of the face thereof. The note and mortgage bore ten percent interest. Beckerman later assigned a one-half interest in the note and mortgage to the ap-pellee Halzband. For the $39,500 note and mortgage the appellees paid over to Shar-gaa $5,000 which they knew would not be used for the improvement of the Perrys’ property. They also later paid the Perrys the $2,000 in accord with the original contract and ultimately built the motel through a sub-contractor at a cost of about $27,000. Thus, in actuality the Perrys received approximately $29,000 in money and value for the $39,500 note, mortgage and construction contract originally executed with Shargaa.

In May, 1954, before any work was done on the construction of the motel, Shargaa in the meantime having defaulted completely on his agreement, the Perrys executed another separate document authorizing Beckerman and Halzband to complete the motel building on their homestead in accord with the original building contract.

This suit was instituted by the Perrys to cancel the note and mortgage because of alleged usury. Beckerman and Halzband! counterclaimed asking foreclosure of the mortgage and note. They did not ground their counterclaim on any rights they might have under the construction contract. In response to the counterclaim the Perrys,, among other things, asserted that the building was not constructed in accordance with the specifications provided by the contract.

By his final decree, on motion for summary judgment filed by both parties and supported by contesting affidavits and depositions, the Chancellor held the mortgage to be unenforceable against the homestead because it was not witnessed or acknowledged according to law. He held that there was no usury because the note was executed to evidence a debt created by the construction contract rather than for the lending of money. He gave judgment on the note for the face amount thereof, plus interest, costs- and attorneys’ fees, all totaling $45,277.15. By the final decree it was provided that the full amount of the judgment should constitute a lien on all of the property of the appellants including their homestead. Pending the litigation and on the basis of the complaint and sworn answer and counterclaim, but without supporting testimony, the Chancellor appointed a receiver for the property with directions to take charge of the place, collect the rents, including a stipulated rent from the appellants, and otherwise operate and manage the motel business. This final decree and order appointing the receiver are now brought here for review.

The appellants contend that the receiver was erroneously appointed. They insist that the Chancellor committed error in holding that the note and mortgage were free of usury and that he compounded the error by awarding judgment against them particularly with reference to their homestead.

The appellees contend that the note and mortgage were not usurious and that they were entitled to recover the judgment on the note. By cross-assignment they insist that the Chancellor committed error in holding the mortgage itself to be unenforceable against the homestead property.

We first dispose of that phase of the ■decree holding the improperly witnessed mortgage to be unenforceable against the homestead of the appellants. The Chancellor here ruled correctly. Scott v. Hotel Martinique, Fla.1950, 48 So.2d 160; Abercrombie v. Eidschun, Fla.1953, 66 So.2d 875. See also, Zimmerman v. Diedrich, Fla.1957, 97 So.2d 120. Under these decisions the faulty acknowledgment affected ■only the recordability of the mortgage. Lack of two witnesses, however, prevents the enforcement of the mortgage against the homestead absent an estoppel, which is not here apparent.

With the mortgage out of the way we consider the assault on the note based on the charge of usury. The Chancellor was of the view that the note as between appellants and Shargaa, the original appel-lee, evidenced a promise to pay for the construction of the motel rather than the loan •of money. Again we must agree with the Chancellor. Although on the surface the transaction here might appear to be an unconscionable one, we must follow our decisions which hold that the usury statutes condemn usury charges made as an incident to a loan of money. We have held that the same rule does not apply to a transaction representing the purchase price of property. Davidson v. Davis, 59 Fla. 476, 52 So. 139, 28 L.R.A.,N.S., 102; Nelson v. Scarritt Motors, Inc., Fla.1950, 48 So.2d 168; Clark v. Grey, 101 Fla. 1058, 132 So. 832. Similarly here the construction contract was in the nature of a speculative venture in which both owner and builder participated. In lieu of cash the builder agreed to construct the building for a stipulated sum to be repaid in installments over a period of time. There was at the outset uncertainty as to the extent of Shar-gaa’s profit and when the deal was made it was not then definitely ascertainable whether the appellants would receive more or less than they bargained for or the financial extent of the difference either way. Even though it is alleged that the appellants were ill-informed and ignorant in the matter of handling the details of a business transaction of this nature, the fact remains that all parties to the original contract were perfectly competent. The appellants may have entered into a bad bargain but it is not within our province to salvage them by revising or setting aside their contract.

The conclusions which we have heretofore reached leads us to the proposition that a money judgment on the note was in order, subject to a consideration of the extent of its enforceability against the homestead of the appellants. We repeat at this point for coherence that the counterclaim of the appellees was based on the note and mortgage and not on the alleged construction contract. In order to arrive at the ultimate conclusion which we believe to be consonant with applicable authorities, we must also recall that as between the appellants and the appellees, Beckerman and Halzband, the note was acquired by the appellees from Shargaa at a tremendous discount merely to evidence an advance of money to Shargaa to enable him to complete his contract to build the motel. It also seems clear from this record that when portions of the money were advanced to Shargaa the appellees well knew that such portions would not be employed in the fulfillment of the construction contract. It is obvious that at least $7,000 of the advance never went into the motel property. Five thousand dollars of this advance went to Shargaa with the knowledge of the appellees that it would be used to pay off debts of Shargaa not related to the Perry job. In addition $2,000 went to the appellants to pay off another mortgage and as cash.

Section 1, Article X of the Florida Constitution, F.S.A. exempts from forced sale under any process a homestead owned by the head of a family residing in this state. An exception to this exemption is a claim based on an obligation contracted by the homestead owner for the erection or repair of improvements on the homestead real estate. It was the view of the Chancellor below that even as between the appellants and the appellees, the claim of the appellees was covered by the exception to the homestead exemption noted above.

We are compelled to differ with the Chancellor on this point. While an obligation contracted for the erection or repair of improvements on homestead real estate is enforceable against the homestead, such an obligation to be so enforceable must be one contracted directly for labor and materials used in the construction of the improvement. An advance of money borrowed to purchase materials or to pay off labor is not within the scope of the exception to the homestead exemption. In such case the contract is to repay money loaned or expended and it is not in the nature of a contract to pay for the erection of the improvements or for the labor. The reasons for this distinction are well stated in the early case of Lewton v. Hower, 18 Fla. 872. See also, Wilhelm v. Locklar, 46 Fla. 575, 35 So. 6; 40 C.J.S. Homesteads § 105, pp. 546-547. Limiting our consideration, therefore, to the obligation between the appellants and the appellees insofar as the note itself is concerned, we are led to the conclusion that in the purchase of the note, the appellees were merely advancing money to Shargaa supposedly to be used for the fulfillment of the construction contract. Again, bearing in mind that the counterclaim of the appellees was based solely on the note and mortgage, we are forced to the conclusion that the judgment grounded on the note could not as such be enforced against the homestead.

We are not here holding that the appel-lees were not entitled to a general judgment on the note. We are holding that this judgment was not enforceable against the homestead property of the appellants and to this extent the decree will have to be reversed.

In any subsequent consideration of this cause by the Chancellor wherein the construction contract supplemented by the construction agreement between the appellants and appellees should be involved, the parties and the Chancellor are reminded that the appellants are entitled to an opportunity to establish their defense based on the failure of the appellees to build the building in accordance with the specifications of the original contract, as well as other terms of the agreement, express or implied, such as good workmanship.

We further point out that the construction contract carried no provision for attorneys’ fees and that the homestead of the appellants would not be liable for the $2,000 advanced by appellees in the form of cash. In other words it is the sum of this holding that upon a subsequent trial of the cause, the liability of the homestead of the appellants, if any, will have to be grounded on the construction contract supplemented by the written agreement between the parties rather than on the note and mortgage. We take note of the fact in passing that no effort was here made to amend the pleadings of the parties to meet the proofs which developed on the motions for summary judgment.

We have further considered the contention that the receiver was improperly appointed. In this regard the appointment of the receiver apparently was grounded on the defectively executed mortgage. While there were allegations that the property would suffer destruction and deterioration if the defendants were left in possession, these allegations were denied and we find no evidence whatsoever to sustain this conclusion. The receiver was appointed without taking of any proofs and was continued in office even after the court determined that the mortgage was unenforceable. On the basis of the record here apparent we see no foundation for the appointment of the receiver. We hold that such appointment was erroneous and the order appointing the receiver is reversed. In disposing of the matter we find no justification for charging the costs of the receivership against the property or any income therefrom that might have accrued during the receivership.

For the foregoing reasons the general judgment on the promissory note is affirmed but that portion of the final decree providing that the judgment constitutes a lien on the homestead of the appellants and the order appointing the receiver are both reversed.

The cause is remanded for further proceedings consistent herewith.

TERRELL, C. J., DREW and O’CON-NELL, JJ., and PARKS, Circuit Judge, concur.


author: CARROLL, CHAS., Chief Judge.

text:
    John H. CONNELLY, as Executor of the Estate of Sam Raymond, Deceased, Appellant, v. Alleen SMITH, Appellee.
    No. 57-114.
    District Court of Appeal of Florida. Third District.
    Nov. 7, 1957.
    Rehearing Denied Nov. 29, 1957.
    Fogle & Fordham, Miami, for appellant.
    Anderson & Nadeau, Miami, for appellee.
   CARROLL, CHAS., Chief Judge.

This is an appeal from a final decree of the Circuit Court of Dade County quieting title to certain real estate.

One Sam Raymond, shortly prior to his death, executed some thirty deeds to .various persons by which he transferred approximately 1,000 parcels of' real estate. The appellee, Alleen Smith, received a deed made five days before the grantor’s death covering two parcels, which were described in the deed as follows:

“Tract 47, West of Canal, less FEC R/W, Florida Fruit Land Co.’s Subdn., in Section 29, Township 52 South, Range 40, containing 52 acres more or less, according to Plat Book 2 at Page 17, Public Records of Dade County, Florida.
“The South 66 feet of Tract 25 South and West of Canal & Ry. R/W as per Plat Book 2, at page 17, of the Public Records of Dade County, Florida.”

The obvious incompleteness and ambiguity in the part of the description relating to the second of the two parcels involved prompted the controversy.

The grantee Smith sued the executor of the estate of the then deceased grantor, seeking a decree quieting title to the property and in the alternative to reform the deed to show a section, township and range. The allegations of the complaint were as follows:

“1. The plaintiff is the owner of the following described property, situated in Dade County, Florida:
“The South 66 feet of Tract 25 South and West of Canal & Ry. R/W as per Plat Book 2, at page 17, of the Public Records of Dade County, Florida, Section 3, Township 53 South, Range 40 East, Florida Fruit Land Co.’s Subdn.
by reason of a warranty deed executed and delivered by Sam Raymond, a single man, to the plaintiff during his lifetime.
“2. The said deed, when executed and delivered, did not contain any Section, Township or Range reference.
“3. The decedent owned no other property which could be confused with the property above described as shown in Plat Book 2, Page 17.
“4. The defendant claims some right, title and interest in said property.
“5. The plaintiff’s rights in said property are superior to all others, and' the plaintiff has paid the taxes on said property. The claim of the defendant constitutes a cloud on plaintiff’s title.”

The defendant executor answered and denied the plaintiff’s ownership of the property, and averred: “For further answer to the complaint, defendant states that the subdivision referred to in the description above set forth, contains one hundred twenty-one (121) Tract 25’s, said subdivision being a subdivision of approximately one hundred twenty-five (125) to one hundred thirty (130) sections of land that are divided in accordance with various tracts as design nated on the plat; that after the recordation of the deed above described and the return of the deed to the plaintiff, the plaintiff altered said deed and the description contained thereon, by adding ‘Section 3, Township 53 South, Range 40 East, Florida Fruitland Co’s Subn’, and re-recorded said deed; that the deed, as originally recorded, was a nullity as said deed failed to describe any property with certainty.”

The defendant’s answer contained a counterclaim seeking to have the deed declared to be a nullity for insufficient and defective description, and for a decree quieting title in the defendant.

The case was tried before the court. The plaintiff produced a surveyor, a licensed civil engineer, who testified that from the description in the deed he was able to locate two parcels, either one of which could be the property in question. They were section 33, township 52 south, range 40 east, and section 3, township 53 south, range 40 east. The defendant produced a surveyor who had attempted to determine the location of the property from the plat and had been unable to do so. He was asked whether the plat showed “the canal” cutting through any tracts numbered 25. His answer was that the plat showed the canal cutting through a tract numbered 25 in section 17, township 52 south, range 39 east and a tract numbered 25 in section 11, township 53 south, range 40 east. He further testified that his survey did not show a canal cutting through those locations as indicated on the plat, but on the contrary, he found a canal cutting through tracts numbered 25 in the same two sections as so found by the plaintiff’s surveyor. However, those locations where the canal cut across tracts numbered 25, both lie north and east of the canal in question, according to the plat, rather than south and west of the canal as required by the deed description.

The best the surveyors could do was to locate two separate parcels either one of which they said could come within the description. This attempted location of the property by these surveyors was of no help in this case, because they could not locate any one parcel as being the one conveyed. Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656; Martin v. Kitchen, 195 Mo. 477, 93 S.W. 780. The surveyors were directed to look for tracts numbered 25 which were traversed by a canal. They proceeded on the assumption that the description did not refer to a tract 25 lying south and west of a canal, but to the south 66 feet, lying south and west of a canal in a tract 25 which itself might or might not be south and west of the canal. The description furnished no basis for that assumption. For example, the description did not say the south 66 feet lying south and west of a canal in tract 25, etc. The description said the “south 66 feet of tract 25 south and west of canal”, etc. A more reasonable interpretation is that the language places the tract 25 which it referred to as being south and west of the canal — not just the south 66 feet of the tract as being south and west of the canal.

The plat was designated as “Florida Fruit Land Company’s Subdivision No. 1, in Dade County, Florida,” and was dated February 1, 1911. It covered several hundred square miles. It was checkerboarded by sections, and, with some omissions, the alternate sections were cut up into 64 tracts to the section and numbered consecutively. The description in the deed referred to a tract 25 south and west of a canal and railroad right of way, according to that plat.

The plat shows no railroad right of way. It does show three canals. Two of the canals run from northwest to southeast. One of the canals runs east and west. What we will refer to as the first canal commences near the northwest corner of the plat and runs across the north part in a southeasterly direction. It does not traverse any tracts numbered 25, but the plat reveals a total of 101 sections which could be described as lying south and west of that canal in which there were tracts numbered 25. The second canal which runs east and west near the center of the plat need not be considered.

As to the third canal, which crossed diagonally from northwest to southeast in the southern or lower part of the plat, there are a total of 21 sections lying south and west of that canal, in which there are tracts numbered 25. Therefore, according to the plat, a surveyor would find 101 tracts numbered 25 lying south and west of the first canal and 21 tracts numbered 25 lying south and west of the third canal.

The description in question was insufficient because it did not show the section, township and range, and because a surveyor, on the basis of the information it contained, could not point to any parcel as being the one intended to be conveyed.

In Hoodless v. Jernigan, supra, 46 Fla. 213, 35 So. 656, 660, the Court held that a deed with an insufficient description, from which surveyors could not locate the property, was a nullity, saying:

“While it is true, as held by this court in Campbell v. Carruth, 32 Fla. 264, 13 So. 432, that ‘if the description of the land conveyed in a deed is such that a surveyor, by applying the rules of surveying, can locate the same, such description is sufficient, and the deed will be sustained, if it is possible, from the whole description, to ascertain and identify the land intended to be conveyed,’ it is also true that the description of the premises conveyed must be sufficiently definite and certain to enable the land to be identified; otherwise it will be void for uncertainty. See Commyns v. Latimer, 2 Fla. 71; Bellamy v. Bellamy’s Adm’r, 6 Fla. 62; 2 Devlin on Deeds (2d Ed.) § 1010, and numerous authorities cited in note. Also see Buesing v. Forbes, 33 Fla. 495, 15 So. 209. A careful examination of the deed in question discloses that the description therein is so vague and indefinite that a surveyor would not be able to locate the land therein attempted to be conveyed. We are further of the opinion that the attempted description is a nullity, and therefore no land was conveyed thereby. No error was committed by the court in excluding it.”

A deed in which the description is incomplete by not showing the section, township and range, displays a patent ambiguity as distinguished from a latent ambiguity, and as such is not remediable by extrinsic evidence.

In two cases cited below this exact situation arose, and it was held that the failure of a deed to show the township and range, resulting in an inability to locate the property from the description, was a patent ambiguity and that the material which was lacking in the description could not be added or supplied by extrinsic evidence.

In Martin v. Kitchen, supra, 195 Mo. 477, 93 S.W. 780, 781, two deeds were under examination in which the description was “the northwest quarter of section 7 north of Castor river.” There were several sections numbered 7 north of the river, and without a designation of the township and range it could not be determined which was intended. The opinion of the Missouri Supreme Court with reference to that description is enlightening, and appli-_ cable in this case, as follows:

“It may be admitted land may be conveyed by any description sufficient to identify it. It may be admitted, further, that parol proof is admissible to identify the subject of a grant. Marvin v. Elliott, 99 Mo. 616, 12 S.W. 899. And that if ambiguity in a grant be created by extrinsic evidence, it may be dissipated in the same way. But all these principles do not assist respondents in this case. Their evidence falls short of showing that the locus was known in the community by the description, ‘north of Castor river.’ That description might as well suit any land north of Castor river in any section 7 in Stoddard county. In this case there are shown to be several sections 7 in Stoddard county north of Castor river. And, bringing the matter closer home, there was at least one other section 7 in a different township and range in that county through which Castor river actually flowed and which had a northwest quarter north of and adjacent to the said river. In this condition of things with no township or range mentioned in the deeds, we have presented to us a plain and typical case, not of a latent ambiguity which might or might not be dissipated by parol proof identifying the subject of the grant, but of a patent ambiguity making the deeds absolutely void and as of no effect as the basis of a strict legal title. It will not be necessary to go into a consideration of the case law to any extent; for the case at bar is on all fours, in this respect, with Mudd v. Dillon, 166 Mo. loc. cit. 120, 65 S.W. 975 (q. v. with cases there cited). See, also, other cases in point cited in appellants’ brief. This branch of the case may be disposed of with the suggestion that the supplementary parol proof and the documentary proof, other than the two deeds, tended to intensify and deepen the ambiguity, rather than to dissipate it. But in this case such proof was not admissible. ‘Courts never permit parol evidence to be given, first fo describe the land sold, and then to apply the description.’ Ferguson v. Staver, 33 Pa. 411. In Bowers v. Andrews, 52 Miss. 596, referring to conveyances, it was said: ‘But none will deny that' when the mere perusal of the instrument shows plainly that something more must be added before the reader can determine which of several things is meant by it, the rule is inflexible that no evidence can be admitted to supply the deficiency.’ See, also, Haughton v. Sartor, 71 Miss. 357, 15 So. 71.”

Fuller v. Fellows, 30 Ark. 657, also dealt with a description which was defective for failure to state township and range, as to which the Court said:

“ * * * The description must be found in the deed with sufficient certainty to locate the land. Doe ex dem. Phillips’ Heirs v. Porter, 3 Ark. 18; Mooney v. Cooledge, ante.
“That there was no such certainty in the description given of the land intended to be conveyed, is evident. The deed describes certain parts of quarter sections, but altogether fails to give any description of township, range or county. This is a patent omission. * * *
* * * * * *
“There were no ambiguous terms in this deed, nothing to interpret, the terms were all plain, and the description perfect as far as it went. But it was patent, that a further description was necessary. And whilst parol evidence is admissible to explain what is meant by the use of terms, as for instance, if the grant be of a tract called ‘black acre,’ evidence is admissible to show what tract was intended to be conveyed by that description, but where there is a lack of description a neglect to describe, there is nothing which can be explained or made plain by parol evidence, such evidence, if admissible, would add to the description, but not explain that given in the deed.”

Where a plat is referred to in the deed it may be considered a part of the instrument, to aid the description (Bank of South Jacksonville v. Camar, 89 Fla. 296, 103 So. 827). However, that rule is of no help here. Not only does the plat fail to supply the missing data which renders the description insufficient, but an inspection of the plat shows there are over 100 tracts numbered 25 as referred to in the incomplete description. Thus, resort to the plat, as said of outside evidence in the Missouri case, “tended to intensify and deepen the ambiguity, rather than to dissipate it.”

The plaintiff - prayed in the alternative for reformation of the deed. The reformation needed was to supplement the description by adding the section, township and range, all of which were omitted. The complaint failed to-meet the established requirements to make out a case for reformation. See Horne v. J. C. Turner Cypress Lumber Co., 55 Fla. 690, 45 So. 1016, 1018-1019; Interstate Lumber Co. v. Fife, 70 Fla. 178, 69 So. 715, 717; Bexley v. High Springs Bank, 73 Fla. 422, 74 So. 494.

Where a patent ambiguity results from the omission of essential matter from a deed description, courts will not permit parol evidence to be given, first to show what land was meant to be conveyed, and then to create and supply its description. Martin v. Kitchen, supra. In Carson v. Palmer, 139 Fla. 570, 190 So. 720, 722, the Supreme Court said:

“ * * * A patent ambiguity in the description of land is such an uncertainty appearing on the face of the instrument that the Court, reading the language of the instrument in the light of all facts and circumstances referred to therein, is unable to derive therefrom the intention of the parties as to what land was to be conveyed. Compre Resurrection Gold Mining Co. v. Fortune Gold Mining Co., 8 Cir., 64 C.C.A. 180, 129 F. 668; Brannan v. Henry, 142 Ala. 698, 39 So. 92, 110 Am.St.Rep. 55.
“This type of ambiguity may not be removed by parol evidence, since that would necessitate the insertion of new language into the instrument, which under the parol evidence rule is not permissible. Craven v. Butterfield, 80 Ind. 503, where the Court said: ‘Courts never permit parol evidence to be given, first to describe the land, and then to apply the description.’ Fagan v. Walters, 115 Wash. 454, 197 P. 635; Snider v. Robinett, 78 W.Va. 88, 88 S.E. 599.”

We conclude that the conveyance attempted to be made through the description in question was not effective, and the deed was a nullity to that extent. The grantee’s voluntary inclusion in the description in the deed, after its execution and delivery, of a section, township and range, and re-recording of the deed thus altered, furnished a basis and need for the defendant-counterclaimant to be granted the relief prayed for in the counterclaim.

Accordingly, the decree is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HORTON and PEARSON, JJ., concur.


author: PER CURIAM.

text:
    Joseph W. BAILEY, County Judge of Bay County, Florida, and F. L. Bowen, Appellants, v. The STATE of Florida ex rel. Beatrice TOOLE, Appellee.

      No. A-14.
    District Court of Appeal of Florida. First District.
    Oct. 29, 1957.
    James N. Daniel, Chipley, for appellant Joseph W. Bailey.
    Liddon, Isler & Welch, Panama City, for appellant F. L. Bowen.
    Mercer P. Spear, Panama City, for ap-pellee.
   PER CURIAM.

Affirmed on authority of Hewitt v. State ex rel. Robbins, 1931, 101 Fla. 807, 135 So. 130.

STURGIS, C. J., WIGGINTON, J., and O’CONNELL, A. J., concur.


text:
    CITY OF MIAMI, a municipality organized and existing under the laws of the State of Florida, Appellant, v. Randolph C. WILCOX, otherwise and sometimes known as Charles Randolph Wilcox, Appellee.
    No. 57-185.
    District Court of Appeal of Florida. Third District.
    Nov. 1, 1957.
    Rehearing Denied Nov. 29, 1957.
    Richard H. M. Swann, Miami, for appellant.
    Stanley D. Caidin, Miami, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the final decree appealed from pursuant to Rule 3.9c of the rules of this Court, and it appearing to the Court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm final decree appealed from be, and the same is, hereby granted, and the decree is

Affirmed.

CARROLL, CHAS., C. J., and HORTON and PEARSON, JJ., concur.


text:
    Nicholas S. MISLEH and Cleo C. Misleh, his wife, Appellants, v. AMERICAN LAND DEVELOPMENT CORPORATION, a Florida corporation, Appellee.
    No. 22.
    District Court of Appeal of Florida. Second District.
    Nov. 6, 1957.
    Gladstone L. Kohloss and Charles V. Silliman, Orlando, for appellants.
    Irving M. Felder of Felder & Betting-haus, Winter Park, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the decree appealed from and it appearing to the Court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be and the same is hereby granted and the judgment is

Affirmed.

KANNER, C. J., and PLEUS and ALLEN, JJ., concur.


author: ALLEN, Judge.

text:
    William Thomas MADDEX, Appellant, v. The FIRST NATIONAL BANK OF CLEARWATER, as Executor of the Estate of Anna M. Scott, Deceased, et al., Appellees.
    No. 34.
    District Court of Appeal of Florida. Second District.
    Nov. 6, 1957.

      Krentzman & MacKenzie, Clearwater, for appellant.
    Thompson & Cooper, Clearwater, for appellees.
   ALLEN, Judge.

This case is before this Court for a hearing on the motion of the appellees to affirm the judgment below and upon an application by the appellant for oral argument on the motion to affirm.

We see no necessity for oral argument on this motion so the same is hereby denied.

The motion to affirm the judgment is based upon the decision of the Florida Supreme Court in Nock v. Wayble, Fla.1952, 59 So.2d 875, which held that:

“Where husband and wife entered into oral agreement whereunder all property owned by them was to be held as estate by entireties and each was to execute mutual and reciprocal wills devising bulk of estate to specified beneficiary, and such agreement was entered into prior to enactment of Married Woman’s Emancipation Act, agreement was not binding upon wife who survived husband, and wife could revoke will she had executed pursuant to agreement and could execute new will disposing of property differently. F.S.A. § 708.09.”

The Judge of the lower court sustained a mo.tion to dismiss the complaint of the appellant, as. plaintiff below, which complaint involved the validity of a new will by a married woman revoking a previous will allegedly made for a valuable consideration.

It is apparent to this court that the decree of the lower court should be affirmed upon' the authority of Nock v. Wayble, supra, as the will involved in this case was made prior to the Emancipation Act.

The appellant, in his brief, in opposition to the motion of appellees to affirm, states:

“Appellees have completely ignored Point No. 2 as set out in Appellant’s Brief, which is as follows:
“ ‘Can equity impress a constructive trust upon the assets of the estate of a decedent in favor of the beneficiary under will of said decedent, later revoked, containing her specific agreement, made for a consideration, that said will would not be revoked by her?’ ”

An inspection of Nock v. Wayble, supra, shows that that action was brought to have a trust impressed upon the assets of a decedent, which action was based upon the theory that the first will was binding upon the married woman.

We, therefore, hold that the motion to affirm should be, and is, granted.

Judgment affirmed.

KANNER, C. J., and PLEUS, J., concur.


author: PLEUS, Judge.

text:
    CITY OF SARASOTA, Petitioner, v. Kate COLBERT, Respondent.
    No. 100.
    District Court of Appeal of Florida. Second District.
    Oct. 23, 1957.

      Worth Dexter, Jr., of Dexter, Conlee, & Bissell, Sarasota, for petitioner.
    P. T. Paderewski of Rosin & Paderewski, Sarasota, for respondent.
   PLEUS, Judge.

The matter is before us on a petition for a common law writ of certiorari.

Action was filed by respondent as plaintiff against petitioner as defendant seeking to recover on account of negligence causing an accident at a mobile home park operated and controlled by defendant. Answer was filed denying negligence and setting up contributory negligence of plaintiff.

Plaintiff then propounded to defendant a series of written interrogatories seeking to ascertain, inter alia, whether defendant has caused an investigation to he made of the accident; if so whether defendant’s investigators made written reports to defendant ; and if so to furnish copies of such reports to plaintiff.

Objections were duly filed, defendant contending primarily that plaintiff was seeking the “work product” of defendant.

The objections to the above mentioned interrogatories were overruled hut the court in its order specifically exempted the defendant from furnishing plaintiff copies of investigator’s reports “which are the work product of Defendant’s counsel”.

Having grave doubts as to exact meaning and extent of said order, defendant moved to clarify the same and as a result a clarifying order was entered limiting the work product to items obtained after a written claim notice had been served upon the defendant-city pursuant to the provisions of § 196 of the Charter of the City of Sarasota.

Our jurisdiction on common law certiorari is predicated upon prior decisions of the Supreme Court under which we hold that we do have such jurisdiction.

The sole question is whether the court erred in limiting the “work product” disclosure to items obtained only after the notice of claim had been filed; and thus requiring the defendant-city to disclose all such items obtained prior to the filing of such notice of claim.

We know of no reason for drawing such an arbitrary date line in a situation such as this. To do so would be to penalize the diligence of the city in promptly investigating a potential claim even though the notice of claim had not been filed with it. The fact that the charter provision above quoted makes it the duty upon receiving a notice of claim to investigate and lay the matter before the governing authority for action does not deprive the city of its right to investigate prior to formal notice of claim; and upon such investigation to then claim, within the definable area, as part of its work product the items obtained by such prompt investigation.

The purpose of the provision with reference to notifying a municipality is to give it an opportunity to investigate the matter, allow its governing body to determine the question of liability and, if desired or justified, to settle the matter and thus avoid litigation. Olivier v. City of St. Petersburg, Fla.1953, 65 So.2d 71.

If sustained, the action of the court below would penalize the diligence of the municipality and allow a plaintiff to take advantage of plaintiff’s own delay in filing the claim notice at the last moment with the investigation by the city having taken place in the meantime.

Nor do we have any doubt that a municipality can have a “work product” the same as any other litigant. See City of Lake Worth v. First National Bank in Palm Beach, Fla.1957, 93 So.2d 49.

The petition for writ of certiorari is granted and the clarifying order is quashed with directions to the court below to enter its order on defendant’s motion to clarify in accordance with the views herein expressed.

Petition for writ of certiorari granted.

KANNER, C. J., and ALLEN, J., concur.

      . Chapter 23529, Laws of Florida, Special Acts, 1945. Section 196 thereof reads as follows:
      “No suit shall be maintained against the City for damages arising out of its failure to keep in proper condition any sidewalk, pavement, viaduct, bridge, street, waterworks, electric light plant, municipal docks and terminals, or other public place, neither shall any suit be maintained against the Oity arising out of any other tortious action or actions sounding in tort, unless it shall be made to appear that written notice of such damage was within thirty days after the receiving of the injury given to the City Attorney with such reasonable specifications as to time and place and witnesses as would enable the proper City officials to investigate the matter. It shall be the duty of the City Attorney, upon receiving such notice, to thus investigate the matter and lay the facts supported by the evidence before the City Commission in a written report, and the City Commission shall have the right to investigate the matter and it may make such reasonable settlement of any such damages as may be agreed upon by the City Commission.”

      . Kilgore v. Bird, 1942, 149 Fla. 570, 6 So.2d 541; Atlantic Coast Line R. Co. v. Allen, Fla.1949, 40 So.2d 115.

      . See Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1946); Atlantic Coast Line R. Co. v. Allen, footnote 2; Miami Transit Co. v. Hurns, Fla.1950, 46 So.2d 390; Lang v. Harris, Fla.1951, 54 So.2d 120; Seaboard Air Line R. Co. v. Timmons, Fla.1952, 61 So.2d 426.


text:
    Elizabeth L. PANCOAST, Appellant, v. Mary L. PANCOAST, as Successor Trustee of the Sarah N. Pancoast Estate, and R. H. C. Pancoast and Harry M. Pancoast, Jr., et al., Appellees.
    No. 91.
    District Court of Appeal of Florida. Second District.
    Oct. 23, 1957.
    O. K. Reaves of Mabry, Reaves, Carlton, Fields & Ward, Tampa, and William H. Corum, Winter Haven, for appellant.
    Reeves, Allen & Dell, Tampa, and Trin-lcle & Moody, Plant City, for appellees Mary L. Pancoast, R. H. C. Pancoast, and Henry M. Pancoast, Jr.
   PLEUS, Judge.

This was a declaratory action seeking a decree construing the will of Sarah N. Pancoast which will was dated June 3, 1938 and admitted to probate May 3, 1945.

The testatrix who died .April 14, 1945, left surviving her husband Harry M. Pan-coast and three sons, B. K., R. H. C., and Harry M. Pancoast, Jr. Her husband remarried and died intestate September 1, 1954, leaving surviving him his second wife Mary L. Pancoast and two of the three sons, R. H. C. and Plarry M., all of whom were defendants below and are appellees here. The son, B. K. Pancoast, first married and then divorced Pearl Pancoast and by her had two daughters, Florence E. Wilkins and Juanita Secrest, intervenors' in the court below and appellees here. Following his divorce from Pearl, the son, B. K., married Elizabeth L. Pancoast and thereafter died intestate August 29, 1946, leaving as survivors his said two daughters by his first wife and his second wife, Elizabeth, who was the plaintiff below and appellant here.

Motions for summary decree were filed by the plaintiff, the defendants, and the in-tervenors,. and upon such motions being heard, the learned chancellor entered final declaratory decree construing the terms of the will. The same being unfavorable to plaintiff she has appealed.

In view of our holding on the propriety of entering a summary decree in the posture of the case below we do not deem it necessary to deal with the terms of the will and the possible or permissible interpretations that might be placed thereon.

At the outset it is conceded that a declaratory action seeking a decree construing the terms of a will is proper. Section 87.02, Florida Statutes 1955, F.S.A. We concede also that by the express provisions of 30 F.S.A., Rule 1.36, 1954 Rules of Civil Procedure, summary decree may be obtained in a declaratory action.

It must be borne in mind, however, that in order to obtain a summary judgment or decree there must be not only an absence of any genuine issue as to any material fact but also the moving party must be entitled to a judgment or decree as a matter of law. Thus it is that even though all parties involved move for such judgment or decree, the court is not necessarily obliged to..enter the same. Shaffran v. Holness, Fla.1957, 93 So.2d 94.

The language used by the testatrix in the will involved and viewing the entire will immediately raises serious doubts and renders the intention of the testatrix obscure. There being such doubt and obscurity resort was made to the rules or canons of testamentary construction. By employing specific canons and ignoring others the will could be the subject of four or five different interpretations, each carrying its own result as to the disposition of the property and the rights of the parties to this cause. Which of these canons to adopt and whether any may be specifically applicable can therefore be determined only if the terms of the will be read in the light of all the circumstances surrounding the testatrix at the time of its execution. We believe therefore and so hold that the court below should not have entered summary final decree without first requiring the development of all the facts and circumstances surrounding the testatrix at the time the will was executed so as better thereby to determine the intent of the testatrix in using the language she employed and thus finally to determine the correctness of his decree as a matter of law.

The fundamental and controlling axiom is to ascertain and effectuate the intention of the testator- as gathered from what was written in the will. Wallace v. Julier, 1941, 147 Fla. 420, 3 So.2d 711. In order to do this the court should as nearly as humanly possible try to put itself in the place of, or the armchair of, the testator. To accomplish this it is proper to consider all circumstances surrounding the execution of the will, the condition, nature, and extent of the property devised, the testator’s relationship and attitudes toward the members of his family and to the beneficiaries of the will, their financial condition and in general the relationship between all the parties concerned, including, as in this case, the trustee. 57 Am.Jur., Wills, Section 1144. Florida courts have consistently followed this practice. Roberts v. Mosely, 1930, 100 Fla. 267, 129 So. 835; Marshall v. Hewett, 1945, 156 Fla. 645, 24 So.2d 1; Iles v. Iles, 1947, 158 Fla. 493, 29 So.2d 21.

In summary we quote the happy language of Surrogate Wingate in the case of In re Montgomery’s Estate, Sur. Kings County 1938, 166 Misc. 347, 2 N.Y.S.2d 406, 415:

“It must be apparent from this review, unfortunate as such a conclusion may be, that the art of testamentary interpretation is very far from an exact science and that the particular result attained in a given case will largely be determined by the individual predilections or prejudices of the particular perplexed judicial officer who may be called upon to pass judgment on the question. This, in turn, like other human expressions of opinion, will, no doubt, be influenced on occasion by his immediately preceding post-pran-dial activities and his matitudinal repast.
“It is even conceivable that in some minds a suspicion may arise, unjust as this might be, that the vaunted canons of constructions are, in some instances at least, rather apologetics for a determination already reached than rationes decidendi for one in process of attainment.
“In last analysis, therefore, there would seem to be no alternative for a court faced by the necessity of interpreting the terms of a will than to attempt to place himself in the armchair of the testator in question (Boyes v. Cook, L.R.1880, 14 Ch.Div. 53; Fell v. McCready, 236 App.Div. 390, 406, 259 N.Y.S. 512) and, with the background of the disclosed facts respecting his situation, to attempt to determine what he, himself, if in a like situation, would have desired to effect by the language used in the will.”

In the light of the above we approach the propriety of using the summary decree procedural device by pointing out at the outset, that neither the one deposition nor the affidavits referred to in the motion papers in any. manner touched upon or attempted to develop the necessary background facts. For all practical purposes, therefore, the decree below was rendered on the pleadings themselves as if involved was solely a question of law that could be conclusively resolved by resort to and use of one or more of the various canons of construction. By so doing, essential sources of enlightenment as to the intent of the testatrix were not availed of and therefore the doubts and uncertainties were only partially resolved.

We do not mean to hold that following a development of the essential factual background summary final decree would be inappropriate, but we do hold that where the essential inquiry is concerned with one’s intent, although the evidentiary facts may not be in dispute, and such intent can better be arrived at by a consideration of all the facts and circumstances it is error to utilize the summary procedure until there has been a proper development in the record of such facts and circumstances. Obviously the traditional mode would be a formal hearing before the chancellor on the merits or a trial by jury. We do not confine the proper procedure to such mode but leave that to the discretion of the court below and point out that the summary decree procedure is sufficiently flexible to provide for an adequate development of the factual background.

The authorities dealing with kindred problems under the Federal Rules of Civil Procedure rule 56, 28 U.S.C.A., support the correctness of this view. Palmer v. Chamberlin, 5 Cir., 1951, 191 F.2d 532, 540, 27 A.L.R.2d 416. The Court of Appeals held in that case that the court should decline to grant a motion for a summary judgment until the facts and circumstances have been sufficiently developed “to enable the Court to be reasonably certain that it is making a correct determination of the question of law”. That having been done, the proceedings on the motion comprising 385 printed pages of the transcript, the granting of the summary judgment was affirmed.

The case before us is a typical one in which, while there is no genuine issue of fact involved, an inquiry into the facts is desirable to clarify the application of the law. See Stevens v. Howard D. Johnson Co., 4 Cir., 1950, 181 F.2d 390. We believe that it was not only desirable but essential in the case at bar to have an inquiry into the facts and that only upon such proper inquiry can either the court below or this court be in a proper position to determine the intent of the testatrix. At least, we shall have exhausted all means at our command to give us reasonable assurance that the ultimate decision is correct as a matter of law.

We therefore reverse and remand the cause for further proceedings not inconsistent with this opinion.

Reversed.

KANNER, C. J., and ALLEN, J., concur.


author: MICHAEL E. KIRBY, Judge. MICHAEL E. KIRBY, Judge.

text:
    A. Remy FRANSEN, Jr. and Allain F. Hardin v. CITY OF NEW ORLEANS, et al.
    No. 2006-CA-1325.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 2007.
    Correcting Opinion on Rehearing Dec. 12, 2007.
    Rehearing Denied Dec. 18, 2007.

      A. Remy Fransen, Jr., Allain F. Hardin, Fransen & Hardin, A.P.L.C., and Henry L. Klein, New Orleans, LA, for Plain-tiffiAppellant.
    Brian A. Jackson, Shannon S. Holtzman, Jason R. Johanson, Liskow & Lewis, APLC, New Orleans, LA, for Defendants/Appellees (Linebarger, Goggan, Blair, Pena & Sampson and United Governmental Services of Louisiana, Inc.).
    Penya M. Moses-Fields, City Attorney, Robert J. Ellis, Jr., Deputy City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, Lawrence Blake Jones, Assistant City Attorney, New Orleans, LA, and Richard G. Barham, Barham & Warner, L.L.C., Shreveport, LA, for Defendant/Appellee (City of New Orleans, Department of Finance, Bureau of Revenue).
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

| T Plaintiffs, A. Remy Fransen and Allain F. Hardin, appeal the trial court judgment, upholding the constitutionality of City of New Orleans Ordinance No. 18637.

City of New Orleans Ordinance No. 18637, adopted by the New Orleans City Council on March 5, 1998, states as follows:

AN ORDINANCE to provide for interest and increased penalties on delinquent ad valorem taxes and for the payment of costs and attorneys’ fees in connection with the collection of such taxes:
WHEREAS, the City of New Orleans incurs significant delinquencies in the collection of ad valorem tax revenues due to (i) lack of penalties to encourage prompt compliance by the taxpayers with the tax laws and (ii) lack of provision for collection fees, attorneys’ fees, costs, and expenses; and attorneys’ fees and costs to cover the costs of collection; and
| ¡.WHEREAS, the City will be able to increase revenues from ad valorem taxes through the implementation of interest and penalties and in imposing collection fees, attorney fees, costs and expenses on the taxpayer;
SECTION 1. THE COUNCIL OF THE CITY OF NEW ORLEANS HEREBY AMENDS SECTION ISO-46 OF THE CODE OF THE CITY OF THE CITY OF [sic] NEW ORLEANS AND ORDAINS, that Section 150-46 of the Code of the City of New Orleans is adopted and ordained to read as follows:
Sec. 150-46.1 Taxing unit
A taxing unit for purposes of this Section shall mean the City of New Orleans and all jurisdictions for which the Director of Finance for the City of New Orleans collects ad valorem taxes.
Sec. 150-46.2 Penalty and Interest.
(a) A delinquent tax incurs a penalty of three percent of the amount of the tax on the day such tax becomes delinquent.
(b) A delinquent tax accrues interest at a rate of one percent for each month or portion of a month the tax remains unpaid in accordance to LSA-R.S. 47-2101.
Sec. 150-46.3 Additional Penalty for Collection Costs.
(a) All delinquent taxes for prior years, and taxes that remain delinquent on April 1 of the year in which they become delinquent, incur an additional penalty to defray costs of collection if the taxing unit has referred the collection of the delinquent taxes, penalty and interest to an attorney | aor collection agent. The amount of the additional penalty shall be thirty percent of the amount of taxes, penalty, and interest due.
Sec. 150-46.4 Suit to Collect Delinquent Tax
(a) At any time after its tax on property becomes delinquent, a taxing unit or its authorized agent may file suit to foreclose the lien, securing payment of the tax. The suit must be in a court of competent jurisdiction for the parish in which the tax was or is imposed.
(b) A suit to collect a delinquent tax takes precedence over all other suits pending in courts.
(c) In a suit brought under Subsection (a), a taxing unit or its authorized agent may foreclose any other lien on the property in favor of the taxing unit.
Sec. 150-46.5 Recovery of Costs and Expenses.
(a) In addition to other costs authorized by law, a taxing unit or its authorized agent is entitled to recover from the subject property and, in the case of delinquent personal property taxes, against the tax debtor the following costs and expenses in its efforts to collect a delinquent tax:
(1) all usual court costs, including the cost of serving process;
(2) costs of filing for record of notice of lis pendens against property;
(3) expenses of tax sale;
(4) reasonable expenses that are incurred by the taxing unit or its authorized agent in determining the name, identity, and location of necessary parties and in procuring necessary legal descriptions of the property on which a delinquent tax is due; and
(5) in cases where Sec. 150-46.3(a) is not applicable, reasonable attorney’s fees of thirty percent of the total amount of taxes, penalties, and interest due the unit.
(6) reasonable curator fees and expenses.
(b) Each item specified by Subsection (a) of this section is a charge against the property and shall be collectible in the same manner as the taxes, interest, penalties and costs due by the tax debtor and is subject to collection by foreclosure in a suit or as otherwise provided by law and | ¿shall be collected out of the proceeds of the sale of the property.
(c) The Director of Finance or his/her authorized agent, with the approval of the Mayor or the Chief Administrative Officer, is authorized to employ private counsel to assist in the collection of any taxes, penalties, interest or costs and expenses, including attorney’s fees, due or to represent him in any proceeding under this section.
Sec. 150-46.6 Liability of Taxing Unit for Costs.
(a) Except as provided by Subsection
(b) of this section, a taxing unit or its authorized agent is not liable in a suit to collect taxes for court costs, including any fees for service of process, arbitration, or mediation, and shall not be required to post security for the costs.
(b) A taxing unit or its authorized agent shall pay the cost of publishing citations, notices of sale, or
other notices from the unit’s general fund as soon as practicable after receipt of the publisher’s claim for payment. The taxing unit is entitled to reimbursement from other taxing units that are parties to the suit for their proportionate share of the publication costs on satisfaction of any portion of the tax indebtedness before further distribution of the proceeds. A taxing unit may not pay a word or line rate for publication of citation or other required notice that exceeds the rate the newspaper publishing the notice charges private entities for similar classes of advertising.

This Court previously heard another appeal in this case involving only the issue of prescription. Fransen v. City of New Orleans, 2002-2384 (La.App. 4 Cir. 11/19/03), 862 So.2d 142. In that appeal, this Court stated the facts of this case as follows:

Plaintiffs own personal property in Orleans Parish. Plaintiffs concede that for varying reasons they did not pay their property taxes timely. However, once the taxes were paid, plaintiffs allege that they received notice, either through their own inquiry or by correspondence from the Linebarger firm, that they each owed additional penalties, interest and attorney’s fees for making late tax payments.
| sPIaintiff Hardin received a tax bill from the City near the end of 2000. Payment was due on or before February 1, 2001. In April of 2001, Mr. Hardin discovered that the check he had written in December of 2000 had not been mailed. He mailed a check on April 1, 2001. Mr. Hardin alleges that upon receiving the cancelled check for the paid taxes, he noted that the cheek was marked “partial payment.” He telephoned the City’s Department of Finance and was told that his payment of $6,127.81 had been divided into payments for penalties ($133.41), interest ($133.32), attorney’s fees (1,414.13), and the actual taxes owed ($4,446.95). Mr. Hardin was informed that because the total “tax” bill was not satisfied by his first payment, he owed an additional ' $2,338.08, and that the amount would continue to grow until paid. He delivered a check to the City Finance Department on May 31, 2001, with a letter indicating that he was paying the added amounts under protest. Mr. Hardin alleges that he never received any correspondence of any kind from the law firm, but, rather, discovered on his own that he had neglected to pay his taxes. Once discovered, he promptly paid them.
Plaintiff Fransen received a notice on May 19, 2000, from the law firm informing him that his 2000 personal property taxes of $5,301.54 were still outstanding. Enclosed with the letter was a statement indicating that Mr. Fransen owed an additional $1,701.80 for attorney’s fees, and two other charges of $212.06 and $159.05. On May 23, 2000, Mr. Fransen sent a letter to the law firm indicating that he intended to protest the penalty and excessive interest assessed. He sent another letter to the City on that same date complaining about its “attempt to charge usurious interest.” He received a response from the City on June 21, 2000 explaining that $3,811.32 of his check had been applied to taxes, $152.45 to accrued interest, $114.34 to the delinquency fee, and $1,223.43 to attorneys fees. Mr. Fransen again wrote to the City on 7/12/00 contesting its arbitrary distribution of monies he intended to be applied to the actual taxes owed. He also indicated that he considered his base tax liability for the year 2000 to be satisfied. When he received no response, he again wrote to the City’s Finance Department on January 15, 2001, enclosing a check for $2,227.89 for additional amounts he owed for penalties and interest. He indicated that he objected to the “fee” charged by the law firm.
InOn April 1, 2002, suit was filed on behalf of both plaintiffs against the City and the law firm. Plaintiffs complained that the attorney’s fees were in violation of the Rules of Professional Conduct, and that the collection of these additional fees and penalties violated the Louisiana Constitution. In addition to the named defendants, plaintiffs served the state attorney general. On April 29, 2002, plaintiffs amended their original petition to name UGSL as an additional defendant, alleging that this company shared fees with the law firm. A second amending and supplemental petition was filed to add Fransen and Hardin, A.P.L.C., as an additional party plaintiff because of the assessment of penalties, interest and fees for failing to pay the parties’ business personal property , taxes timely.
Fransen v. City of New Orleans, 2002-2384, pp. 1-3 (La.App. 4 Cir. 11/19/03), 862 So.2d 142, 144-145.

In the above-referenced appeal, this Court reversed the trial court’s granting of defendants’ exception of prescription, and remanded the case to the trial court for further proceedings. The current appeal involves a trial judgment rendered on April 11, 2006 on a motion for partial summary judgment filed by plaintiffs, and a cross motion for summary judgment and peremptory exception of no right of action filed by defendants, City of New Orleans, Linebarger, Goggan, Blair, Pena & Sampson, L.L.P. f/k/a Heard, Linebar-ger, Graham, Goggan, Blair, Pena & Sampson, L.L.P. and United Governmental Services of Louisiana, Inc. The plaintiffs asked for partial summary judgment declaring the ordinance at issue unconstitutional, and the defendants asked for summary judgment declaring the ordinance constitutional. The trial court denied defendants’ exception of no right of action, denied plaintiffs’ motion for partial summary judgment and granted defendants’ motion for summary judgment. Pursuant to La. C.C.P. article |71915(B)(1), the trial court designated the April 11, 2006 judgment as final as to the constitutionality of the ordinance only. Plaintiffs now appeal.

On appeal, the plaintiffs argue that the trial court erred in holding that the ordinance is constitutional based on its finding that the Louisiana Constitution does not limit the ways in which the City of New Orleans can collect delinquent ad valorem taxes.

An ordinance is presumed to be constitutional, and the party attacking the constitutionality of an ordinance has the burden of proving that the ordinance is unconstitutional. Randolph v. Alexandria Civil Service Commission, 2004-1620, p. 4 (La.App. 3 Cir. 4/6/05), 899 So.2d 857, 861. The burden of proving the unconstitutionality of an ordinance is by clear and convincing evidence. Id. Municipal acts are to be interpreted to sustain validity if suscep-tibie to reasonable interpretation having legal effect. Id.

The New Orleans Home Rule Charter, enacted prior to the 1974 Louisiana Constitution, grants the City of New Orleans “the right to levy, impose and collect any and all kinds and classes of taxes or license fees that may be imposed that are necessary for the proper operation and maintenance of the municipality, provided same is not expressly prohibited by the Constitution of the State of Louisiana.” See, Acorn v. City of New Orleans, 377 So.2d 1206 (La.1979). Furthermore, Article VI, 4 of the 1974 Louisiana Constitution states as follows:

Every home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect and may be amended, modified, or repealed as provided therein. Except as inconsistent with |sthis constitution, each local governmental subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions.

Plaintiffs contend that the ordinance at issue violates Louisiana Constitution Article VII, § 25, which states, in pertinent part:

Section 25. (A) Tax Sales. (1) There shall be no forfeiture of property for nonpayment of taxes. However, at the expiration of the year in which the taxes are due, the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property on which the taxes are due. The advertisement shall be published in the official journal of the parish or municipality, or, if there is no official journal, as provided by law for sheriffs’ sales, in the manner provided for judicial sales. On the day of sale, the collector shall sell the portion of the property which the debtor points out. If the debtor does not point out sufficient property, the collector shall sell immediately the least quantity of property which any bidder will buy for the amount of the taxes, interest, and costs. The sale shall be without appraisement. A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.
(2) If property located in a municipality with a population of more than four hundred fifty thousand persons as of the most recent federal decennial census fails to sell for the minimum required bid in the tax sale, the collector may offer the property for sale at a subsequent sale with no minimum required bid. The proceeds of the sale shall be applied to the taxes, interest, and costs due on the property, and any remaining deficiency shall be eliminated from the tax rolls.
(B) Redemption. (1) The property sold shall be redeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, five percent penalty thereon, and interest at the rate of one percent per month until redemption.
ls(2) In the city of New Orleans, when such property sold is residential or commercial property which is abandoned property as defined by R.S. 33:4720.12(1) or blighted property as defined by Act 155 of the 1984 Regular Session, it shall be redeemable for eighteen months after the date of recordation of the tax sale by payment in accordance with Subparagraph (1) of this Paragraph.

Plaintiffs argue that the ordinance is a prohibited ex post facto law. We find that plaintiffs lack standing to raise this argument. The ordinance at issue was enacted in 1998, and this lawsuit is a result of penalties paid by plaintiffs for delinquent taxes for the tax years 2000, 2001 and 2002. Thus, the ordinance at issue was in effect prior to the delinquency and assessment of penalties that prompted the instant lawsuit. Furthermore, despite plaintiffs’ contention that their ex post fac-to claim is being made' on behalf of all persons who have been adversely affected by this ordinance and that they are acting as class representatives, there is no indication in the record that this case has ever been certified as a class action. Therefore, plaintiffs’ argument that they have standing to raise the ex post facto argument on behalf of others is unsupported by the record.

Similarly, plaintiffs also lack standing to raise the argument that the ordinance violates federal due process requirements. Plaintiffs argue that taxpayers other than themselves may be deprived of their rights to challenge penalties assessed under the ordinance due to problems allegedly created by this Court’s decision in Affordable Housing v. Kahn, 2000-0611 (La.App. 4 Cir. 4/25/01), 785 So.2d 251, superseded by statute as stated in Fransen v. City of New Orleans, 2002-2384 (La.App. 4 Cir. 11/19/03), 862 So.2d 142. Plaintiffs admit that the Affordable Housing case did not affect their rights and that they have been able to present their challenge in the courts because of the timing of certain | inordinances. However, they claim that some other taxpayers with delinquencies incurred after plaintiffs may be denied their due process rights to challenge the penalties. Not only is plaintiffs’ argument regarding other taxpayers purely hypothetical but, as stated above, the record does not show that this action has ever been certified as a class action. Therefore, plaintiffs are only entitled to assert arguments on their own behalf. Clearly, plaintiffs have not been deprived of their federal due process rights in this case. This argument is without merit.

However, we do find merit in the plaintiffs’ argument that the ordinance violates Article VII, § 25 of the Louisiana Constitution in that it allows the taxing unit or its authorized agent to file suit to collect the delinquent tax, and to recover court costs and attorneys’ fees. Article VII, § 25(A) expressly states that in the event of nonpayment of property taxes, “the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property on which the taxes are due.” (Emphasis ours). We interpret Article VII, § 25(A) of the Louisiana Constitution as prohibiting the tax collector from filing suit against the taxpayer in the event of nonpayment of taxes.

The unconstitutionality of one portion of a law does not render the entire law null in its entirety if the remaining portion is severable from the offending portion. Cox Cable New Orleans, Inc. v. City of New Orleans, 624 So.2d 890, 895 (La.1993). The test for severability of a law which has been declared unconstitutional is whether the unconstitutional portion is so interrelated and connected with the constitutional portions that it cannot be separated without destroying the intention of the legislative body. Id., citing State v. Azar, 539 So.2d 1222(La.), cert. denied, 493 U.S. 823, 110 S.Ct. 82, 107 L.Ed.2d 48 (1989).

|nIn this case, the offending portions of the ordinance are so interrelated with the remainder of the ordinance that they cannot be severed in a way that would allow a meaningful constitutional ordinance to remain. To simply sever the provisions of the ordinance relating to the filing of suit and the recovery of court costs and attorneys’ fees would result in an ordinance allowing the collection of a 30% penalty against delinquent taxpayers without any enforcement provisions. This would render the ordinance meaningless. Therefore, we find that severance of the offending portions of the ordinance is not an option in this case.

Louisiana Constitution Article VII, § 25 provides tax sales as the method of collecting delinquent ad valorem taxes. The exercise of the enforcement provisions set forth in the ordinance at issue would have the effect of eviscerating Louisiana Constitution Article VII, § 25 in that there would be no need for the tax sale and redemption processes authorized by that section. By allowing the taxing unit or its authorized agent to file suit to foreclose any liens on the property to satisfy the payment of taxes, the ordinance essentially strips the taxpayer of the right of redemption after tax sale granted in the Louisiana Constitution. Even though the enforcement mechanism of the ordinance was not exercised in this case, we find the ordinance to be facially unconstitutional due to its inconsistency with Louisiana Constitution Article VII, § 25.

We also find merit with plaintiffs’ argument that while the City’s Home Rule Charter grants it the right “to lay and collect taxes ...,” the 30% penalty assessed against plaintiffs was actually a legal fee disguised as a penalty. Plaintiffs were instructed to pay an amount equal to 30% of their delinquent ad valorem taxes to a law firm working on behalf of the City. The ordinance allows the City to li2empIoy private counsel to assist in the collection of taxes, penalties, interest or costs and expenses. However, Louisiana Constitution Article VII, § 25(B)(1) limits the penalty charged by the City for delinquent ad valorem taxes to 5%, and does not include a provision for attorneys’ fees. The money paid to the defendant law firm by plaintiffs in this case was in the nature of attorneys’ fees. We find any other interpretation to be unreasonable. As such, the assessment of attorneys’ fees in this case was inconsistent with Louisiana Constitution Article VII, § 25.

Accordingly, we reverse the trial court judgment upholding the constitutionality of City Of New Orleans Ordinance 18637. We hereby declare City of New Orleans Ordinance 18637 unconstitutional, and remand this matter to the trial court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

ON APPLICATION FOR REHEARING

MICHAEL E. KIRBY, Judge.

hWe grant rehearing for the limited purpose of correcting a misstatement of fact in our original opinion. Our original opinion includes the statement, “Plaintiffs were instructed to pay an amount equal to 30% of their delinquent ad valorem taxes to a law firm working on behalf of the City.” The record shows that while the defendant law firm sent collection letters to delinquent taxpayers, the letters actually instructed taxpayers to make their checks payable to and mail payments directly to the City of New Orleans. However, this in no way changes the outcome of our original opinion. In all other respects, rehearing is denied.

REHEARING DENIED IN PART; GRANTED IN PART.

      . The record does not indicate that the attorney general answered the petitions or made any appearances in this matter.

      . As stated above, the only issue properly before this Court in this appeal is the constitutionality of the ordinance in question. Although plaintiffs acknowledge this fact at the beginning of their original appeal brief, they make numerous references to tangential issues not properly before this Court in their original brief and two reply briefs. Because the trial court certified the April 11, 2006 judgment as final only as to the issue of the constitutionality of the ordinance, all other issues mentioned in plaintiffs' briefs will not be addressed.