author: SAMUEL, Judge.

text:
    Raymond A. MIX, Petitioner-Contestant, v. Avery C. ALEXANDER, Respondent-Contestee, and Orleans Parish Democratic Executive Committee, Nominal Respondent.
    No. 7304.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 1975.

      See also, La.App., 318 So.2d 125.
    James A. McPherson, New Orleans, for appellant.
    Nelson, Nelson & Lombard, Ltd., John P. Nelson, Jr., New Orleans, for appellee.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOU-TALL, SCHOTT, BEER and ZACCA-RIA, JJ.
   SAMUEL, Judge.

Raymond A. Mix (hereinafter referred to as plaintiff), as an elector and candidate for the office of representative from the Ninety-third Legislative District, brought this suit under LSA-R.S. 18:396, objecting to the candidacy of Avery C. Alexander (hereinafter referred to as defendant) for that office on the ground the defendant was not qualified to be a candidate because he had not been actually domiciled in the Ninety-third Legislative District for the full year preceding the time of qualification as required by the Louisiana Constitution of 1974. The petition alleges defendant claims as his domicile 2921 Philip Street, New Orleans, which is within the Ninety-third Legislative District; but that address is a single family dwelling occupied for at least three years by one Braulin Brock, Jr. and his family; and in fact the defendant has and maintains his domicile at 1939 General Taylor Street, New Orleans, which is outside that legislative district.

Defendant answered, generally denying the allegations of the petition, but admitting Braulin Brock, Jr., defendant’s son-in-law, did reside at 2921 Philip Street. The answer also avers the Philip Street address is the defendant’s domicile. In addition, the defendant filed an exception of no right or cause of action, based on plaintiff’s inability to file the present suit as a result of the alleged fact that plaintiff himself has not been actually domiciled ‘within the Ninety-third Legislative District as required by the Constitution and on the plea that the domicile and residency requirements in suit are unconstitutional. Plaintiff then filed a motion to strike the answer on the ground it had not been filed within 48 hours as required by R.S. 18:396, as amended by Act 1 of 1975.

The exception and motion were referred to the merits. Following trial, there was judgment overruling the exception and motion and dismissing plaintiff’s suit. Plaintiff has appealed. In this court defendant concedes he has abandoned his exception.

On the merits the applicable law is Article 3, § 4(A) of the Louisiana Constitution of 1974 which, in pertinent part, requires that, in order to be eligible for membership in the legislature, at the time of qualification the candidate must have “been actually domiciled for the preceding year in the legislative district from which he seeks election”.

Here defendant’s domicile is either 1939 General Taylor Street, outside the appropriate legislative district, or 2921 Philip Street, within the boundaries of that district. Thus, we need only decide whether the defendant was domiciled on General Taylor Street, as contended by plaintiff, or on Philip Street, as contended by defendant.

The evidence offered by the defendant establishes that he purchased the General Taylor property sometime in 1954 and thereafter used the premises as his family home until 1965. The property was extensively damaged in 1965 by Hurricane Betsy, requiring defendant and his wife to move to 2921 Philip Street, the residence occupied and owned by Mrs. Alexander’s daughter and son-in-law, Mr. and Mrs. Braulin Brock, Jr. As a result of insurance problems and the difficulty of obtaining workmen following Hurricane Betsy, it took several years to repair the General Taylor house. The Philip Street property has six bedrooms, three baths, two kitchens and two living rooms. Defendant and his wife occupied one of these bedrooms exclusively.

Both defendant and Mrs. Alexander testified without equivocation they intended to make the Philip Street residence their permanent home. In support of this conclusion the evidence shows defendant and his wife changed their voting registrations to the Philip Street address in 1967, and the defendant maintains the registration of his motor vehicles, and receives bank statements, homestead statements and numerous other mail at that address. In addition, defendant was nominated and/or certified for various political offices from 1971 through 1973 at the Philip Street address and served from that address as a member of the Constitutional Convention which drafted the Louisiana Constitution of 1974. Defendant further offered evidence showing his membership on a Selective Service Board, with the correspondence therefrom being addressed to him at the Philip Street address as late as July 10, 1975; introduced his 1974 personal property tax bill addressed to 2921 Philip Street; and introduced a recent traffic ticket also showing Philip Street as his address. It was established without dispute that the defendant did not file a homestead exemption on the General Taylor property. He contends that property is being held by him in the expectation of renovating it into a multi-unit rental property. The testimony of defendant and his wife generally was corroborated by the testimony of Braulin Brock, Jr., the son-in-law, and Johnny A. Collins, a neighbor on Philip Street.

Plaintiff’s evidence established that the defendant in fact owned the General Taylor property, paid utilities, and maintained an unlisted telephone number in his name there. After the 1965 hurricane, he and his wife resided on General Taylor at least a part of the time, defendant estimating he spent 20% of his time at that address and Mrs. Alexander estimating she spent three out of seven days there. The reason given for spending any time at the General Taylor address was the necessity of giving the house the appearance of being occupied in order to deter potential vandalism and burglaries.

Plaintiff also produced Mrs. Pauline Corley, who rented a residence at the rear of the General Taylor Street property. She testified that during her two year residence there she saw defendant and his wife on various occasions at General Taylor Street. However, she could not testify defendant spent the night there since she only saw him arrive on certain evenings and never saw him leave in the mornings. Generally, she testified to little or nothing more than the defendant freely admitted regarding the fact that he did spend some time at the General Taylor Street address. In addition, her testimony lacks probative value since she always paid the rent for her dwelling to Mrs. Alexander, had no business dealings with the defendant and, as she admitted, spent most of her time at her mother’s home.

Finally, plaintiff produced four notarial acts in which the defendant’s address appears as 1939 General Taylor Street. The acts are dated 1964, 1965, 1967 and 1975. Of course, the acts of 1964 and 1965 are immaterial in this case because he did not move from the General Taylor address until the latter part of 1965. Plaintiff testified that at the time of the passage of the 1967 act, a sale by him of certain real estate not involved in this suit, he gave the notary several addresses and the notary chose to use the General Taylor address. Insofar as concerns the 1975 act, a mortgage of the General Taylor property, the defendant testified he gave the notary no information regarding his home address, and apparently, the notary assumed that address was his home.

Taking the record in its entirety on the merits, it is clear the trial judge acted correctly in dismissing plaintiff’s suit. The evidence falls far short of the proof necessary to disqualify defendant on the ground he is not actually domiciled within the Ninety-third Legislative District.

As has been pointed out, plaintiff’s motion to strike defendant’s answer is based on R.S. 18:396, as amended by Act 1 of 1975, which provides, in pertinent part, that the “person whose candidacy is thus [timely and properly] objected to his forty-eight hours within which to file his answer.” While the record does not contain a return showing the date and time of service of the petition on the defendant, even assuming the answer was filed several hours later than the permissible forty-eight hours as is indicated by counsel, we are of the opinion that the late filing is immaterial in this case.

A reading of the statute in its entirety convinces us the intent of the legislature regarding the time limitations was to shorten the delays allowed for instituting judicial proceedings in election matters and to provide for their necessary rapid and expeditious consummation. We find nothing in the statute to indicate the forty-eight hour limit within which to file an answer is jurisdictional. In our opinion, disqualification does not automatically follow from the failure to file a timely answer. It is necessary that the person objecting to the candidacy prove the allegations of his petition before disqualification can be obtained.

In the instant case plaintiff produced only three witnesses, Mrs. Corley, defendant’s tenant who lived in the rear of the General Taylor Street property, the defendant on cross examination, and a telephone company employee. We have already discussed Mrs. Corley’s testimony "and the defendant’s testimony when called by the plaintiff on cross examination. The telephone company employee only testified to the fact that the defendant had an unlisted telephone at the General Taylor address. In addition, plaintiff produced the notarial acts also already discussed and the acts of purchase of the General Taylor Street property by the defendant and the Philip Street property by Brock, the son-in-law. He offered no other evidence. Thus, without considering any evidence other than that offered by the plaintiff, we are satisfied he failed to carry his burden of proving the allegations of his petition.

For the reasons assigned, the judgment appealed from is affirmed.

MORIAL, J., recused.

Affirmed.

      . Art. 3, § 4(A) reads: “An elector who at the time of qualification as a candidate has attained the age of eighteen years, resided in the state for the preceding two years, and been actually domiciled for the preceding year in the legislative district from which he seeks election is eligible for membership in the legislature.” La.Const. ’74, Art. 3, § 4 (A). For a discussion of intent in connection with the use of the words “actually domiciled” see Louis Charbonnet, III vs James J. Hayes, No. 7297 of the Docket of this court, handed down August 29, 1975.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Vernon B. WOODS v. Paul O. LANGENBECK.
    No. 6691.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1975.
    On Rehearing Sept. 9, 1975.

      Nicaud, Justrabo & Rousset, René R. Nicaud, Alwyn J. Justrabo, New Orleans, for plaintiff-appellee.
    Little, Schwartz & Dussom, A. D. Freeman, New Orleans, for defendant-appellant.
    Before GULOTTA, STOULIG and BOUTALL, JJ.
   GULOTTA, Judge.

This is a suit by a contractor to collect $10,273.37 in extras from the owner growing out of the construction of a residence. The defendant owner seeks damages in reconvention for expenses incurred, in addition to the contract price, to correct deficiencies resulting from unworkmanlike construction. The trial judge rendered judgment in favor of plaintiff contractor for the total amount of the 35 extras claimed. The reconventional demand was dismissed. ' Defendant owner appeals.

Langenbeck claims on appeal that plaintiff failed to produce sufficient evidence to prove with specificity the cost incurred for each extra. Defendant offered no expert evidence to dispute the costs claimed by plaintiff.

Before we discuss the particular items claimed, it is necessary that we set forth the jurisprudential authority pertaining to the sufficiency of evidence required in a case involving a contractor’s claim for extras where the extras are to be paid on a “cost plus” basis. In the case of Sutherlin Sales Co. v. United Most Worshipful, etc., 127 So.2d 253 (La.App., 4th Cir. 1961), the court was confronted with the question of the proof required to show the cost expended for labor in restoring plaintiff’s property, for metal printing plates and for labor to clean up debris resulting from a flood when defendant’s agents opened and failed to close water faucets above plaintiff’s establishment. The issue involved in Sutherlin, as in the instant case, was the sufficiency of the evidence. In awarding a judgment for plaintiff, the court set forth the standard of proof required in such cases as follows:

“It is a well settled principle of law that as a general rule a plaintiff must specifically prove each item of damage in order to recover. However, an exception thereto has been recognized in instances where there is obvious damage, but the quantum is not susceptible of the most accurate proof. Under these circumstances, the trial court must use its own discretion in assessing damages, predicated on the testimony and evidence adduced.
“However, it is also a cardinal rule of evidence that plaintiff must produce the best evidence available to prove his claim.”

The court went on to say further:

“The civil law offers a broad latitude to the trial judge for the individualization of each case in order to reach a just conclusion. The lower court obviously followed this technique in computing the amount of the obvious damages incurred by the plaintiff.
“Therefore, we conclude the trial judge was justified in exercising his discretion in evaluating the quantum awarded to the plaintiff.”

See also Germann v. 557 Tire Co., 167 La. 578, 120 So. 13 (1928).

In Campo v. LaNasa, 173 So.2d 365 (La.App., 4th Cir. 1965), we said on rehearing:

“When there is a right to recovery, but the damages cannot be exactly calculated, the court has reasonable discretion to fix the quantum as best it can based upon all the facts and circumstances of the case.”

In the instant matter, we are confronted with a claim for extras by a contractor based upon a “cost plus basis.” According to the building contract, any extras to be included into the building had to be agreed upon in writing which was not done. The procedure followed was that the owner made requests for certain extras and the contractor complied with those requests without informing the owner of the cost at the time it was agreed to include the extras. It is clear from the record that the extras claimed by the contractor were placed in the building. It is also clear that in an overwhelming number of instances, the owner authorized the inclusion of the extras. There are instances where the contractor claims extras and the owner claims the additional expense was incurred because of unworkmanlike construction on the part of the contractor.

For purposes of clarity it is necessary that we consider each extra claimed individually to ascertain whether or not sufficient evidence was produced by the contractor to support his claim that certain costs were expended by him. There are 35 disputed extras claimed by the contractor, as follows:

(1)

Wallpaper other than called for in the plans and specifications. The basis of this claim is for additional wallpaper included in the foyer and dressing room. The amount claimed and awarded by the trial court is the sum of $366.00. The contractor introduced into evidence an invoice from a wallpaper contractor in the sum of $509.02 for material and labor used in wallpapering the Langenbeck residence. It is plaintiff’s testimony that the cost of the wallpapering job, according to the original plans and specifications, amounted to $143.00. He explained that when that sum, $143.00, is subtracted from the amount of the total cost invoiced to him, the extra amounts to $366.00. The trial judge in his discretion awarded this amount to the plaintiff contractor. Without any contradictory evidence in the record we cannot say that the trial judge erred.

(2)

This extra is for a storage closet in the family room with four nine-inch Byfold doors in the sum of $127.34. The record contains an invoice in the sum of $50.71 from a door company for the four nine-inch doors. Added to this invoice is a memorandum by plaintiff for extra labor in the sum of $50.00; extra materials, $15.29; and extra paint in the sum of $22.00. The total labor and materials cost for this extra is the sum of $138.00, according to the invoice and memorandum. Plaintiff assessed a lesser charge for this extra. The trial judge awarded plaintiff the amount claimed. We cannot say the trial judge erred.

(3)

This item is for eight additional paneled doors and track between the living room and dining room. The amount of this extra is $290.82. We fail to find any invoice supporting the claim for eight paneled doors. Nor do we find in the record any evidence in the nature of memorandum or otherwise to support with some definiteness the claim for labor incurred in connection with this extra. We conclude that the record does not support this claim. This claim is disallowed.

(4)

The basis of this extra is the cost to move a downstairs powder room and for the additional cost of plumbing fixtures such as tubs and water closets. It is the plaintiff’s position that the actual cost of the tubs and water closets installed were more than those authorized in the plans and specifications. The record does not support such a finding. The specifications call for the lavatory, water closet and bathtub to be medium-priced, to be selected by the owner. We cannot ascertain from the record that the bathroom fixtures installed were priced other than “medium-priced fixtures.” Plaintiff’s proof of the additional cost for these fixtures is lacking. However, the record does support plaintiff’s position that additional costs were incurred in moving the downstairs powder room. The cost of this extra must be reduced by the sum of $214.20. The amount of the erroneous award by the trial judge was in the sum of $358.66. Deducting $214.20, which we determine are unproved items, the balance owed to the contractor is the sum of $144.46.

(5)

This claim in the sum of $475.00 is for extra carpentry labor and materials for changing framing on windows, closets, door frames, bathrooms, stripping ceiling in the living room, family room, breakfast room, for accoustical tile and false beam blocking.

From the testimony and the exhibits we are at a complete loss to make head or tails of this extra claim by the contractor. While the Sutherlin case and the other cases cited herein above allow some leeway to the contractor in his proof, nevertheless, we are unable to ascertain or isolate the basis of this claim. It is the contractor’s responsibility to explain with clarity and reasonableness the basis of his claim. The record is so confused on this particular item that we cannot possibly allow this extra.

(6)

This extra is for accoustical tile and false beams in the family room and breakfast room ceilings. It is clear from the record that the beams and accoustical tiles in those rooms were in addition to the ac-coustical tile called for in the specifications. It appears from the specifications that accoustical tile was to be placed in bedroom 1 and the study. Our consideration of the record leads us to a conclusion that plaintiff is entitled to the extras claimed for the additional accoustical tile and for the false beams. However, it appears that the defendant is entitled to a credit for'the accoustical tile in the bedroom which was included in the original specifications. Because we are unable to ascertain the amount of that credit, we cannot allow such a credit since it has not been proved by the defendant. Plaintiff is entitled to the $332.40 claimed for this extra.

(?)

The next extra is for the cost of installation of a window seat. This extra was authorized. The invoice shows that the cost of the window seat and installation is $70.80. The cost of painting and other extras in connection with the installation are reasonable. Plaintiff is entitled to be paid this extra in the amount of $100.22.

(8)

The next item is for the completion of a storage room into a sewing room. Plaintiff claims $332.42 for this extra. Whether this extra is allowable in the amount claimed is a credibility question. The evidence supporting this claim consists of a memorandum of itemized costs by Woods, an invoice from a heating and air conditioning company, and a memorandum from a worker in the sum of $49.20 for labor. We cannot say that the trial judge erred in permitting this extra in the amount claimed. It is significant that this extra also was authorized by the owner.

(9)

This extra is for the installation of an electric roof ventilator. This extra also was authorized by the owner. The amount claimed for this extra is $70.00. The invoices clearly support this claim of the contractor.

(10)

This extra is for kitchen cabinets and kitchen appliances in excess of the allowance. The specifications for Brandom cabinets or equal. The appliances called for in the specifications are G.E. The estimated cost for cabinets and appliances designated in the specifications amounts to $980.00 plus tax according to a witness, Cameron Gamble. According to the “Cameron” invoice and the testimony of Gamble, the total cost for the appliances selected by the owner is $845.50. The total cost of the kitchen cabinets with tax and the appliances selected is $2,096.42. Subtracting the $980.00 allowance from the total cost (i. e., $2,096.42) leaves a balance in extras totalling the sum of $1,116.42. However, the amount claimed is $988.18. While there is a discrepancy between the amount claimed by Woods and the amount of the Cameron invoice, the trial judge allowed an extra in the amount of $988.18. Since this is a lesser amount than that set forth in the invoice, we cannot say that the trial judge erred in allowing an extra in the lesser amount claimed by Woods.

(11)

The extra item claimed by the contractor is for painting unfinished vanities and utility room cabinets. The plans and specifications call for painted cabinets. The owner received painted cabinets as included in the plans and specifications. Proof is lacking that the contractor is entitled to the extra claim in the sum of $150.00. Defendant owner received only that which he contracted for and which was included in the plans and specifications.

(12)

This extra in the sum of $332.30 includes the cost for glazed ceramic tile as a substitute for standard tile. This extra was authorized by the defendant owner, however, an insufficiency of evidence exists because the proof of the difference in cost between glazed tile and standard tile is lacking. The invoice submitted from the tile man does not show the difference in the cost of glazed ceramic tile as compared with standard tile. Woods testified that the tile man told him what the difference in the cost is. This is clearly hearsay testimony and is inadmissible. There is no further proof in the record to support plaintiffs claim for this extra. The trial judge erred when he permitted this extra to be awarded to the contractor.

(13)

This is a claim for carpeting in excess of the allowance in the game room, in the store room and on the stairs. This extra was authorized by the owner. Plaintiff contractor claims the total amount of the extra owed is $648.00. Our consideration of the record does not support the amount of this claim. The carpet invoice introduced into evidence by the plaintiff shows 246 yards of carpet installed. The specifications call for the installation of 213 yards of carpet. Simple mathematics indicates that 33 additional yards of carpeting were laid. At $9.50 per yard installed (called for in the specifications), the total cost for installation of the additional 33 yards amounts to $313.50. The contractor is entitled to an additional cost in the sum of $8.00 and $25.00 for material and additional labor costs incurred with this extra. Plaintiff is entitled to a total amount for this extra in the sum of $346.50.

(14)

This extra is for fire alarm system, switches, television outlets and extra electrical work. This extra was authorized by the defendant owner. The total amount claimed is $373.80. Admittedly, Woods erred in the assessment of the amount of this extra. His list of extras includes $324.80. He is frank to admit in his testimony that this amount is erroneous and that the correct amount is $324.80. We are of the opinion that this extra has been proved by the contractor to the extent of $324.80.

(15)

This extra is for electrical fixtures over the allowance. The amount claimed is $327.41. The electrical fixtures in the house were authorized by the defendant owner. According to the specifications, the allow-anee for electrical fixtures totalled $500.00. Plaintiff’s claim for the excess is supported by invoices in the record. Plaintiff is entitled to recover the sum of $327.41 for the cost of the electrical fixtures in excess of the allowance.

(16)

This extra is for wood jambs and trim on all windows, carpentry labor, materials and painting. This extra was authorized by the owner. The amount of the claimed extra is the sum of $555.00. The trial judge saw fit to allow this award based upon the testimony of Woods. Woods testified that the material for the trim and jambs amounted to $72.50. He further testified that the carpenter labor amounted to $230.-00. Painting, labor and paint costs total $182.41. The cost for the additional five windows added to the structure amounted to $64.09. Since there is no contradictory evidence in the record to dispute this amount and since the work was authorized by the owner, we cannot say that the trial judge abused his discretion in awarding plaintiff the amount of this extra. This is a credibility determination by the trial judge. There is evidence in the record to support his conclusion. However, there exists a mathematical error. The correct amount is $549.00.

(17) and (18)

This extra is for paneling installed in the utility room and closets. The amount claimed is $227.30. It is not disputed that the paneling was installed in the utility room and closets. It does not appear to be disputed that this was, in fact, an extra. The problem is that the invoices in the record are not supportive of the plaintiff’s testimony. The trial judge did not permit a memorandum prepared by the plaintiff to be offered in evidence. Nevertheless, he allowed plaintiff’s claim for this extra. This again is a credibility determination by the trial judge. The testimony of Woods supports the award. Therefore, there is support in the record for the trial judge’s conclusion. We cannot say that he is in error. The same result is applicable to (18), the extra claim for the paneling installed in the study. Plaintiff, therefore, is entitled to recovery for the paneling installed in the utility room and closets in the sum of $227.-30 and for the paneling installed in the study in the sum of $174.73.

(19)

Plaintiff claims $96.00 for the driving of six extra pilings. It is clear that the pilings were driven. However, there appears to be an erroneous computation on the cost of the driving of the piles. The invoice shows $14.50 per piling cost. We compute the amount owed at $14.50 X 6 or $87.00. Plaintiff is entitled to this extra in that amount.

(20)

This claim is for extra brick work for extra brick columns. The amount of this claim is $80.00. There is sufficient proof in the record to show that the additional brick work was authorized and was installed. The amount assessed appears to be reasonable. We find no error in the award in the sum of $80.00.

(21)

This item is for the additional cost for house plans from Southern Blue Print in the sum of $18.43. The additional plans were ordered and the plans were used in connection with the construction of the house. Plaintiff is entitled to recover this amount.

(22)

This is a claim for interest payments for interim financing in the sum of $1,869.91. According to the building contract, stage payments were to be paid to the contractor upon completion of various stages of construction. The defendant owner’s complaint is that plaintiff contractor drew from the Whitney Bank, at his pleasure and at any stage of the construction work, any amounts which he deemed fit and proper. According to defendant, this increased the amount of the interest owed to the lender by him. While there appears to be merit in defendant’s argument, nevertheless, defendant acquiesced in the manner in which plaintiff received these payments. It certainly was within his power not to authorize or permit the bank to make payments until such time as each stage of the contract was completed as specified in the building agreement. Clearly the owner is responsible for interest incurred for interim financing. This amount was adequately proved by plaintiff. We find no error in the trial judge’s award in the amount of the interest charged. However, the trial judge erroneously permitted 15% overhead and profit to be added to the amount of the interest owed. An adjustment is required in the total figure.

(23)

This is a claim for an additional five feet to the width of the driveway. This item was authorized by defendant owner. It is not disputed that additional cement was added. This again a judgment determination on the part of the trial judge. Great weight must be given to the fact that the trial judge inspected the property. We cannot say from the evidence that the trial judge was in error in permitting this award. Plaintiff is entitled to $136.00 for this claim.

(24)

This is a claim for the costs for changing twelve one-foot paneled doors on three four-foot openings, carpentry, labor, materials and paint. The amount claimed is $332.82. We find evidence lacking in the record to support this claim as an extra.

(25)

This is a claim for a six-foot marble top that was substituted for a three-foot top in the downstairs powder room. This extra was authorized by defendant owner. The record supports the plaintiff contractor’s claim for this amount. Plaintiff is entitled to $36.00 claim for this extra.

(26)

This is a claim for the installation of new track on eight doors between the living and dining rooms and four nine-foot doors on the family room closet. This is a claim for labor and for new tracks. The evidence of Woods and the invoice offered in evidence support this claim. This item was authorized by defendant owner. The total claim is for the sum of $52.77. Plaintiff is entitled to recover this amount.

(27) and (33)

This is a claim for the removal of stairs for reframing and sheetrocking under the new stairs. This claim and a claim for extras under item (33) for labor to install stairway furnished by defendant owner will be discussed together. These claims arose as a result of a problem emanating from the plans and specifications. It appears from the record that two sets of steps were constructed by the contractor. However, they were not satisfactory with the owner. Thereafter, the owner obtained a completely different set of stairs from a mill work company. This claim arises for the installation of these stairs as well as for sheet-rocking, for removing the stairs and for re-framing and resheetrocking under the new stairs. The trial judge allowed this claim for extras in the amount of $918.61 for labor to install the new stairway plus $99.00 for the removal of the stairs, reframing and resheetrocking. The total amount allowed by the court for these two claims amounts to $1,017.61. It appears from our consideration of the record that this claim for labor is exorbitant. However, again the trial judge, in his discretion, permitted this award. He inspected the premises. We cannot substitute our judgment for that of the trial judge: The record does contain evidence and statements from Woods and a workman (Eddie O’Keefe) supporting this claim. For us to disallow the amount awarded by the trial judge would be to substitute our judgment for that of the trial judge. This we cannot do.

(28)

This is a claim for $48.72 for replacing obscure glass bathroom windows with clear glass windows. This claim is supported by the invoice. Plaintiff is entitled to the award claimed.

(29)

This is a claim for a raised hearth, slate on the hearth and marble facing. The hearth and slate were authorized by defendant owner. The contractor is clearly entitled to his claim in the amount of $78.00 for this part of the extras. He is not entitled to the additional cost for the marble facing. This is precisely what the plans and specifications called for. Plaintiff is entitled only to the sum of $78.00 for this extra instead of the $133.68 awarded by the trial judge.

(30)

This claim is for sheetrocking and painting the game room walls. Apparently this extra was authorized by defendant owner. This claim is a credibility call and is supported by the testimony of Woods. He testified that the labor and materials cost was $72.00 for the sheetrock work and that the painting costs totalled $53.00. Total cost amounted to $125.00. The record supports the trial judge’s conclusions. Plaintiff is entitled to this award.

(31)

This claim is for the installation of two 18-inch doors between the living room and the kitchen instead of one 36-inch door. The contractor’s testimony is clear on this item. He claims that the two doors cost more than the single door. He assessed an additional cost in the sum of $25.00. This again is a credibility determination on the part of the trial judge. He permitted this award. We find no error. Plaintiff is entitled to this extra in the sum of $25.00. .

(32)

This claim is for repainting the living room, dining room walls, woodwork and vanities. This claim arises from a dispute as to whether or not the repainting was required because of defective workmanship in the original paint job. The testimony does not appear to support a claim for extra. The defendant requested the area to be repainted. Presumably is was repainted because the original paint job was not satisfactory. This claim is clearly not for an extra. The evidence does not support the award. Plaintiff is not entitled to the $150.00 claimed as an extra.

(33)

This claim was discussed in connection with claim (27).

(34)

This is a claim for slate on the front stoop. It appears that the original plans do not call for a slate stoop. This is an extra. The claim is supported by an invoice in the sum of $222.20 for slate and labor furnished. We find no error in the award by the trial judge in the amount claimed. Plaintiff is entitled to the sum of $222.20

(35)

This claim of' $50.00 is for the excess over the allowance for an intercom. The original specifications include an allowance of $175.00 for the intercom system. Plaintiff’s testimony and the invoices attached show an overrage of approximately $68.13. The trial judge awarded plaintiff the sum of $50.00 for this extra. We find no error in the trial court’s ruling. Plaintiff is entitled to the $50.00 claimed.

RECAPITULATION
The total amount of award for extras In the trial court amounts to $10,273.37.
We conclude plaintiff Is entitled to reimbursement for costs expended for extras in the sum of plus 15% of that amount as agreed upon or the sum of 6,387.49, 958.12.
Plaintiff Is entitled additionally to Interest paid In the sum of 1,869.91.
Total extras to which plaintiff Is entitled $ 9,215.52.
Less credits allowed by contractor In the sum of -1,998.17.
Balance owed to contractor on the main demand $ 7,217.35.

RECONVENTIONAL DEMAND

The reconventional demand by the owner is based on the expenses incurred for correction of the claimed deficiencies resulting from the unworkmanlike construction by the contractor. The amount claimed is $19,236.33. The trial judge, in dismissing the reconventional demand in its entirety, relied on the case of Maloney v. Oak Builders, Inc., 224 So.2d 161 (La.App., 4th Cir. 1969), where the court stated:

“It is also well settled that even if the owner proves the existence of the defects or omissions and the cost of repairing them, he is nevertheless barred from recovering the cost thereof if he accepted the work despite the patent defects or imperfections discoverable upon reasonable inspection. Acceptance, however, does not bar the owner from recovering for defects not readily discoverable by ordinary inspection, or for defects which manifest themselves subsequent to the acceptance, or for defects which are explicitly excluded from the terms of the acceptance.” (footnote omitted)

The trial judge concluded that the deficiencies complained of by defendant owner were patent ones, discoverable upon reasonable inspection and that defendant owner accepted the work despite the patent defects or imperfections.

The owner moved into the residence on August 2, 1966. Acceptance was made by the owner on September 21, 1966. Leonard Beller, architect, made an inspection of the premises, at the request of the owner, on June 27, 1967. In a letter dated August 1, 1967, he particularized the specific unworkmanlike defects in the premises. This letter was received by the contractor on November 24, 1967. On October 16, 1969, contractor Woods filed suit claiming the extras sought. The claim in reconvention by the owner was filed on July 22, 1970, and was supplemented on September 20, 1971.

From our appreciation of the particular items listed by defendant owner in reconvention, we are of the opinion that the Maloney case relied on by the trial judge is applicable to the claims made in reconvention except in five instances. On the following five items the owner cannot be charged with failing to discover the defects by reasonable inspection. Accordingly, defendant is entitled to recover on the following claims in reconvention:

(1) The unevenness and gaps in the living room and dining room floors were admitted by Woods not to have been discernible at the time of the inspection. The cost for correction of this item totals $1,630.00. While this amount appears to be exorbitant, there is no contradictory testimony. Defendant owner is entitled to this amount in recon-vention.
(2) The complaint that the ceiling beams in the breakfast room were of unseasoned lumber was not discernible at the time of the acceptance. According to the architect, Beller, this sap bled through at a later time. The cost for correction of this item is $160.00. The owner is entitled to be paid for this claim.
(3) The cost for correction of a hole in the floor next to the door jamb of the master bath could not have been discernible at the time of the acceptance. The owner is entitled to the amount of this claim in re-convention. This cost is $37.50.
(4) The defendant owner is entitled to the cost for the discoloration in the cement work or concrete work in the carport and patio. It was necessary to place a topping of exposed aggregate to correct this problem. It is our understanding that the original plans and specifications included the exposed aggregate finish. This construction was authorized on the same day of the acceptance. This amount also seems exorbitant, but contradictory evidence is lacking. Langenbeck is entitled to recovery of this amount in the sum of $1,057.00
(5) Defendant owner is entitled to recover the sum of $371.00 for replacing a warped front door. The record reflects that the contractor tried to correct this deficiency but was unsuccessful. Plaintiff was aware of this defect prior to acceptance and tried unsuccessfully to correct the problem. Defendant is entitled to recover this amount.
The total amount owed to the contractor for the extras is $7,217.35.
The total amount owed to defendant In reconvention Is - 3,255.50.
Plaintiff is entitled to a judgment In the sum of $3,961.85.

Accordingly, the amount of the judgment of the trial court is amended reducing the award to plaintiff contractor from the sum of $10,273.37 to the sum of $3,961.85.

Defendant is not entitled to attorney’s fees. It is well settled that attorney’s fees are recoverable only when provided for by statute or by contract.

As amended, the judgment is affirmed.

Affirmed and amended.

ON REHEARING

On application by defendant owner Lang-enbeck, we granted a rehearing restricted to the question of the owner’s attorney’s fees.

In the application, Langenbeck points out that he does not quarrel with that part of our opinion which states that attorney’s fees are recoverable only when provided for by statute or by contract. Defendant, however, finds error in our failure to award the owner reasonable attorney’s fees in accordance with the provisions of the contract. That part of the building contract relied on by the owner for the assessment of attorney’s fees against the contractor reads as follows:

“During the progress of the work, if said Contractor should become bankrupt, refuse or neglect to supply a sufficiency of material or of workmen, or cause any unreasonable neglect or suspension of work, or fail or refuse to follow the Plans and Specifications, or comply with any part of this contract, the said Owner, or his agent, shall have the right and power to enter upon and take possession of the premises, and may at once terminate this contract, whereupon all claims of said Contractor hereunder shall cease and the said Owner may provide material and workmen sufficient to complete the said work, after giving forty-eight hours notice, in writing, directed and delivered to said Contractor in person, or at his residence or place of business, and the expense of the notice, and the completing of various works, together with all costs, charges or attorney’s fees incident to the completion or enforcement of this contract shall be a charge and lien against said Contractor and his surety, and may be deducted from the amount due or to become due him, and in such case no scaffolding or fixed tackle of any kind shall be removed, so long as the same is wanted for said work. Said Owner shall not be liable or accountable to said Contractor in any way for the manner in which he may have completed said work, nor shall the remedies and rights above given be construed as a substitute or a waiver of any of the legal rights of said Owner against said Contractor and his surety, growing out of this contract.”

When considering attorney’s fees in the instant case, it is necessary to consider additional facts not set forth in our original opinion. The building contract was entered into on November 12, 1965. The completion date, according to the contract, was June 1, 1966. The acceptance is dated September 20, 1966 and includes the customary language:

“WHEREAS the said Vernon B. Woods has satisfactorily performed everything required of it to be done by said building contract and PAUL O. LANGENBECK, hereby accept the work done under said contract * * * ”

Langenbeck testified that he moved into the residence on August 2, 1966, approximately six weeks prior to acceptance.

In support of his position, Langenbeck relies on the case of Popich v. Fidelity and Deposit Co. of Maryland, 258 La. 163, 245 So.2d 394 (1971). The provisions in the Popich contract, relating to the owner’s attorney’s fees against the contractor, are similar to the provisions relating to attorney’s fees in the instant case. Additional relief for collection of attorney’s fees was provided to the owner against a surety who intervened and was made a party to the contract. After citing the pertinent provisions of the contract relating to attorney’s fees in the Popich case, the Supreme Court said:

“It is readily apparent that Fox [contractor] was under a liability imposed by the contract for attorney’s fees resulting from the default of the builder.”

Although the contract in Popich and in our case contain similar language, we do not find merit in the owner’s suggestion that Popich is authority for the imposition of attorney’s fees in the instant matter. There exists a salient factual difference between Popich and our case. In Popich, before completion, the owner placed the contractor in default and took possession of the premises. However, in the instant case, the job was completed to such an extent that Langenbeck actually moved into the premises and lived there for approximately six weeks before he signed the acceptance. He had accepted the property approximately one month before the list of extras was submitted to him by the contractor (October 17, 1966) and more than a year prior to the date that an amended list of the extras was submitted to him (November 8, 1967).

The pertinent language of the building contract, as we interpret it, provides for the assessment of attorney’s fees against the contractor when the contract has not been completed and the owner takes possession of the premises and completes the job. We are not of the opinion that the provisions for the assessment of attorney’s fees apply when the contract has been accepted and the owner occupies the premises, as in the instant case.

In Gross v. Breaux, 144 So.2d 763 (La.App., 4th Cir. 1962), this court was confronted with the question of attorney’s fees in an agreement which contained lang-guage similar to that contained in our contract. In Gross, as in Popich, the owner had taken possession of the premises and had partially completed the work. The court awarded a judgment in favor of defendant owner on his reconventional demand and additionally awarded attorney’s fees, but made a distinction between the remedy afforded when work is completed and that when work is not completed. The pertinent language is as follows :

“If 'the work was not completed, then, certainly, the defendants were entitled to their remedies as provided by the contract. If the work was completed, the owners are entitled to the remedy of reducing the contract price by an amount sufficient to perfect or complete the work under the authority of the well settled jurisprudence in this State. See Spicuzza v. Ranzino, La.App., 73 So.2d 208; Jones v. Tulsa, La.App., 100 So.2d 799.”

Having concluded that the contract was completed to the extent that the building was occupied and accepted, we hold that the contractual provisions contained in the building contract relating to the owner’s attorney’s fees are not applicable. Langen-beck is not entitled to recover attorney’s fees against contractor Woods. Our original judgment is reinstated.

Original judgment reinstated.

      . See Hebert v. Mayeur and Company, Inc., 296 So.2d 446 (La.App., 4th Cir. 1974) and Diesel Engine Repairs, Inc. v. Point Landing, Inc., 291 So.2d 791 (La.App., 4th Cir. 1974).


author: CULPEPPER, Judge.

text:
    Ben DUPRE, Plaintiff and Appellee, v. SOUTH CENTRAL BELL TELEPHONE COMPANY et al., Defendants and Appellants.
    No. 5117.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.

      Dubuisson, Brinkhaus, Guglielmo & Dauzat by James G. Dubuisson, Opelousas, for defendants-appellants.
    Domengeaux & Wright, by William H. Lambert, Lafayette, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

Plaintiff seeks damages for personal injuries sustained when the automobile which he was driving was struck from the rear by a truck owned by the defendant, South Central Bell Telephone Company, and being driven by its employee, John D. Montgomery. The district judge awarded plaintiff a total of $12,511.50 in general and special damages. The defendants appealed. Plaintiff answered the appeal, seeking an increase in the award.

The principal issue on appeal is whether the trial judge committed manifest error in accepting plaintiff’s version of the accident rather than that of the defendant, Montgomery.

The accident occurred at about 8:30 a. m. on Landry Street in the City of Opelou-sas. At the point of the collision, Landry Street is one-way and contains two lanes for west bound traffic. The street was wet, but it was not raining at the time.

Plaintiff’s version of the accident is that he was driving in the left lane, intending to turn left into the driveway of his home, which is located near the south side of the roadway. He says that he turned on his left turn signal lights and had just commenced his left turn toward his driveway when he was struck from the rear by the truck driven by the defendant Montgomery. The evidence shows the left front fender of defendant’s truck struck about in the center of the rear of plaintiff’s automobile.

The defendant truck driver’s version of the accident is that he was driving in the left lane, and he first noticed defendant’s automobile when it changed from the right lane to the left about 30 feet ahead of his truck. Montgomery says he immediately applied his brakes and turned to the right but was unable to avoid the collision.

Defendant’s first argument on appeal is that in his written reasons the district judge states the pictures of the damage to the two vehicles “compel the conclusion that the accident occurred in the manner recited by Mr. Dupre.” Defendant argues the pictures could support either plaintiff’s or defendant’s version. On this point, we are inclined to agree with the defendant that the pictures in question could support either version.

Nevertheless, the rule of appellate review is that the factual findings of the trial judge will not be disturbed where supported by a reasonable evidentiary basis, Canter v. Koehring Company et al., 283 So.2d 716 (La.S.Ct.1973). In the present case, there is clearly sufficient evidence to support the trial judge’s factual findings. The issue is largely one of credibility as between Mr. Dupre and Mr. Montgomery. The credibility of witnesses is particularly a matter as to which the trier of fact has much discretion.

The defendant also contends the award is excessive. Plaintiff has answered the appeal and contends the award is inadequate.

Briefly, the evidence as to plaintiff’s injuries shows that he was 67 years of age and had substantial pre-existing arthritic changes of the vertebrae. As a result of the accident, he received a straining injury to the musculature of the spine in the cervical and lumbar areas, which aggravated the pre-existing arthritic condition. His physician prescribed treatment with pain relieving drugs and muscle relaxants. Mr. Dupre saw his doctor 169 times over a period of about 17 months. The medical expenses to the date of trial totaled $2,611.50.

The district judge awarded $7,500 in general damages, $2,611.50 for past medical expenses, $2,000 for future medical expenses, and $400 for automobile damage, for a total of $12,511.50. Defendants’ principal complaint about the award is that the $2,000 for future medical expenses is speculative. However, we think that Dr. Ventre’s testimony that plaintiff’s injuries resulting from the accident would continue to cause trouble in the future and plaintiff would incur substantial additional medical expenses, reasonably supports this awar^.

In his answer to the appeal, the plaintiff contends the award of $7,500 in general damages is inadequate. Under all of the circumstances, we are unable to say that this award constitutes an abuse of the great discretion of the trier of fact as to the quantum of awards for personal injuries.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant.

Affirmed.


author: PER CURIAM. MAGER, Judge

text:
    In the Interest of W. O. C., a child.
    No. 75-332.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
    Louis R. Bowen, Jr., Public Defender, and Claire K. Luten, Asst. Public Defender, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

There is sufficient evidence to support the trial court’s finding that appellant used the BB gun in the presence of the arresting officer. Further, we hold that the prohibition in Fla.Stat. § 790.22(1), (1973) creates a criminal offense, subjecting juvenile offenders to arrest and prosecution under Fla.Stat. Chapter 39 (1973). See Fine v. Moran, 74 Fla. 417, 77 So. 533 (1917); Fla.Stat. § 775.08 (1973). The search was valid as incident to a lawful arrest.

Affirmed.

WALDEN, C. J., and DOWNEY, J., concur.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting) :

It is with some reluctance that I must respectfully dissent. Although I am satisfied that the evidence reflects that the appellant used the BB gun in the presence of the arresting officer and that the conduct of the arresting officer was both reasonable and proper, I am of the opinion that sec. 790.22, F.S., does not create a criminal offense subjecting a juvenile to arrest and prosecution. If that be the circumstance, it would naturally follow that the marijuana seized from the person of the defendant pursuant to a search incident to such “arrest” must be suppressed as having been illegally seized.

Section 39.03(1) (b) provides that a child may be taken into custody “For a delinquent act, pursuant to the laws of arrest”. A delinquent act presupposes the commission of an act which is a “violation of law”. Sections 39.10(1); 39:12; 39.31.

An examination of sé¿. 790.22, F.S., reflects that the only offense denominated as a crime is specified in sec. 790.22(2) wherein it is declared to be a misdemeanor for an adult responsible for the welfare of any child under the age of sixteen to knowingly permit such child to “use or have in his possession any BB gun”. The language relating to children under sixteen is set forth in subsection (1) of sec. 790.22, as follows:

“(1) The use for any purpose whatsoever of BB guns, air or gas operated guns, or a firearm as defined in § 790.-001 by any child under the age of sixteen (16) years is prohibited unless such use is under the supervision and in the presence of an adult.”

Clearly, the foregoing merely creates a prohibition against the possession and use of a BB gun by a child; it does not create a criminal offense as does the activity proscribed in sec. 790.22(2). As the Supreme Court has pointed out:

“. . . ‘It is the Legislature, not the court, which is to define a crime, and ordain its punishment.’ ... ‘It is axiomatic that statutes creating and defining crimes cannot be extended by intendment, and that no act, however wrongful, can be punished under such a statute unless clearly within its terms. “There can be no constructive offenses, and before a man can be punished, his case must be plainly and unmistakably within the statute.” ’ ” Bradley v. State, 79 Fla. 651, 84 So. 677, at 679.

The use of the word “prohibited” is not synonymous with “unlawful” so as to give rise to a construction that the activities in question were intended to amount to a crime. Fine v. Moran, 74 Fla. 417, 77 So. 533 (1917).

The basis upon which appellant was arrested and taken into custody was for discharging a BB gun without adult supervision. While we could speculate that the activities and conduct of the appellant might have given rise to his arrest for other offenses, i. e. see sec. 843.02, F.S., see also Porter v. State, Fla.App.1974, 302 So.2d 481, such speculation cannot serve as a basis upon which the search in question can be made valid.

It is therefore my considered opinion that the prohibition in sec. 790.22(1) does not create a criminal offense; the search incident thereto being unlawful, the marijuana seized should have been suppressed. I would therefore reverse the order adjudicating defendant to be a delinquent child which was premised upon the possession of marijuana.


author: PER CURIAM.

text:
    CENTEX HOMES CORPORATION, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 75-309.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.

      See also 291 So.2d 231.
    Williams, Salomon, Kanner & Damian and Gary S. Brooks, Miami, for appellant.
    Stuart Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an interlocutory appeal by Cen-tex Homes Corporation, plaintiff in the trial court, from an order dismissing two counts of a complaint in which Centex sought to enjoin the defendant, Metropolitan Dade County, from enforcing a zoning ordinance against it and to declare such ordinance invalid.

According to the complaint, Centex is the owner and developer of a large tract of land in south-west Dade County known as Winston Park. In September of 1972, prior to the commencement of construction by Centex on the land, the Dade County Commission approved a land use plan for development of the tract. The plan provided for a community of single and mul-ti-family dwellings, including townhouse zoning. In May of 1973, subsequent to the construction by Centex of the single family homes, the county passed Ordinance No. 73-56, in which it reduced the density of townhouses to less than that already approved for the Centex project. Dade County advised Centex that the new standards would be applied to the proposed townhouse section of the Winston Park project, whereupon Centex instituted zoning proceedings before the Dade County Zoning Appeals Board by petition for a variance exempting it from the effect of the ordinance. When the petition was denied by formal resolution of the County Commission, Centex did not take certiorari, but later, after the time for filing a petition for certiorari had passed, filed this action for declaratory decree and injunctive relief.

Dade County moved to dismiss the complaint. The trial court entered an order granting the motion, and dismissed Count I, entitled “Estoppel,” for lack of subject matter jurisdiction, and dismissed with prejudice, Count II, entitled “Invalidity of Ordinance 73-56,” for failure to state a cause of action. Centex then filed this interlocutory appeal.

The crux of the issue presented is whether it is proper, in this case, for Cen-tex to attack the validity or constitutionality of the zoning ordinance itself on the theory of equitable estoppel in a de novo proceeding (keeping in mind the fact that it had previously sought a variance), or whether this action constitutes a direct challenge by Centex to the denial of the petition for a variance, in which case, such challenge is mandated by Dade County ordinance to be brought by petition for cer-tiorari from the resolution of the county commission and not by an equitable proceeding.

Upon review of the briefs of counsel and the record presented in the appellant’s appendix, we are of the opinion that the complaint filed by Centex is a direct attack on the resolution of the county commission, rather than a general challenge to the validity of the zoning ordinance as it pertains to Centex’s property. “Under such circumstances, the rule is that certiorari is the proper method of challenging the county commission’s ruling. . . . The commission’s procedure, i. e., utilizing the resolution as a means of denying the request for rezoning is quasi judicial in nature . . . and certiorari was the proper remedy for review of such quasi judicial proceeding.” Baker v. Metropolitan Dade County, Fla.App. 1970, 237 So.2d 201, 202 and cases cited therein.

Accordingly, the order granting the motion to dismiss is affirmed.


author: McNULTY, Chief Judge.

text:
    Zelma M. GRIFFIN, Appellant, v. Miriam ZINN, Appellee.
    No. 74-1032.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 1975.

      Frank J. Aloia, Adderly, Aloia & Dudley, Cape Coral, for appellant.
    Alan S. Kessler, Miami, for appellee.
   McNULTY, Chief Judge.

In this interlocutory appeal we review the question of jurisdiction in an action "quasi in rem” and briefly revisit Pennoyer v. Neff.

Each of the parties hereto is a citizen and resident of Ohio. Plaintiff-appellee obtained an Ohio judgment on a note executed by appellant in Ohio and seeks herein to establish the Ohio judgment in this state and enforce it against certain property here owned by appellant. No attachment or other process issued out of the trial court seizing the property, but defendant-appellant was personally served with process in Ohio, by an Ohio deputy sheriff, pursuant to the Florida “long arm statute.” Apart from irrelevant formalities the complaint itself merely recites that the plaintiff-appellee has obtained a judgment in Ohio against appellant in a sum certain, which remains unpaid; that defendant-appellant owns real estate in Florida, describing it in an attached exhibit; and it prays for “judgment for damages against the defendant" (italics ours) in the sum aforesaid. No claim is asserted against the property itself.

Defendant-appellant specially appeared to contest jurisdiction and by this interlocutory appeal seeks review of an adverse ruling. We reverse.

To begin with, we summarily dispose of the precise point upon which the trial judge erroneously based his conclusion. As noted, service of process was made on appellant pursuant to the long arm statute, supra, which provides in part as follows:

“Acts subjecting persons to jurisdiction of courts of state:
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
:ji ‡ ‡ ‡ ifc
(c) Owns, uses, or possesses any real property within this state.” (Italics ours.)

The trial judge was obviously of the view that he had in personam jurisdiction over the defendant-appellant pursuant to these provisions simply because an affidavit filed by appellee herein reveals that a part of the consideration for her loan to appellant, which was evidenced by the promissory note on which appellee’s Ohio judgment was based, was appellant’s promise to dispose of her Florida real estate so that the loan might be repaid. The court apparently thought that these circumstances constitute a basis for an action “arising from” the ownership of real property within the contemplation of the aforequoted section. Not so. , The cause of action herein is the Ohio judgment itself, a chose in action, and has nothing to do with the ownership, use or possession of real estate in Florida. The foregoing provision obviously relates only to those cases in which there is a direct affiliation or nexus between the basis of the controversy and the Florida property itself as, for example, when a plaintiff claims damages resulting from the negligent maintenance of Florida property owned by a non-resident. In such case, the cause of action would clearly arise from the ownership of that property within the contemplation of the foregoing statute. The statute is inapplicable here.

Notwithstanding, however, because the paramount question herein is jurisdiction we are compelled to resolve it otherwise. This brings us to the renewal of our acquaintance with Pennoyer v. Neff, supra. That case, of course, was the grandsire of the rule that in these diversity actions a plaintiff may constitutionally enforce an in personam claim against a non-resident defendant only to the extent of proceeding against specific property owned by that defendant in the forum state. In addition to the obvious prerequisite of adequate notice thereof, it laid down as a further requirement to the bringing of such an action that the property be seized prior to judgment by appropriate process of the court.

In the ninety-eight years since that decision, however, while it still seems to be the general rule as well as the rule in Florida, serious doubt has arisen as to whether prejudgment seizure, as a prerequisite to jurisdiction, can survive serious analysis in the light of modern concepts. It would seem that, given authority over the plaintiff and over the subject matter of the action, and having territorial power over the property itself, the right in the forum to exercise that power over the property would depend only upon the due process requirements of giving sufficient notice to the defendant that his property was in jeopardy and affording him a reasonable opportunity to appear and defend. Moreover, since conceptually it is essentially a proceeding against the property, notwithstanding that it is predicated on an in per-sonam, transitory claim against the nonresident defendant, there seems to be no greater reason to require seizure in an action quasi in rem than in one strictly in rem in which it was never required.

We would suggest that practical considerations may dictate for other reasons that preservation of the res is most desirable, particularly with regard to easily disposed of chattels or money accounts which can be “tied up,” as it were, by attachment, garnishment or injunction, thus assuring an efficacious judgment if one is obtained and at the same time avoiding a sterile expenditure of judicial labor. But these considerations should have nothing to do with jurisdiction itself, viz, the right to exercise a conceded power to adjudicate a claimed interest in property territorially within the forum state. Due process “notice” ought be the only catalyst.

In any case, we need not expressly decide now whether in Florida attachment or other process of seizure remains an additional condition precedent to that right. This is so because even in those cases following Pennoyer in which such requirement has been unrecognized, diluted or receded from, it has universally been held nevertheless to be an absolute prerequisite to “jurisdiction” that not only must the property be clearly and specifically described in the required notice to the defendant but also that such notice clearly and expressly set forth that the action is directed against that specific property for the purpose of enforcing the plaintiff’s claim to the extent thereof. In other words, there must be a clear notice that the property is in jeopardy of sequestration or appropriation to satisfy the plaintiff’s claim. This requirement was not met here.

It is true that the property was clearly and specifically described in the complaint served; but it is also clear that it was so described with a view toward satisfying what was erroneously thought to be an ownership requirement for in personam jurisdiction within the purview of the long arm statute, supra, and not to give notice that the action was directed against the property itself. Indeed, as noted, the complaint expressly prays for an in personam judgment. The omission is fatal even if seizure of the property would not be required.

To sum up, it must always be made clear in these actions quasi in rem that it is the described property itself which is the object of the action and, further, that such property is subject to sequestration or appropriation in whole or in part to satisfy the asserted claim of the plaintiff against the non-resident owner thereof. We hold, moreover, that these requirements are not waived by a special appearance nor obviated by actual knowledge acquired as a result of that special appearance.

In view whereof, the order appealed from should be, and the same is hereby, reversed and the cause is remanded with directions that an order be entered dismissing the action for lack of jurisdiction.

BOARDMAN and GRIMES, JJ., concur.

      . (1877), 95 U.S. 714, 24 L.Ed. 565.

      . Section 48.193, F.S.1973.

      . See Annot., 10 A.L.R.3d at 212 et seq. As to Florida, see Gribbel v. Henderson (1942), 151 Fla. 712, 10 So.2d 734; Burkhart v. Circuit Court of Eleventh J. Circuit (1941), 146 Fla. 457, 1 So.2d 872; Webb v. Webb, (Fla.App.3d, 1963), 156 So.2d 698.

      . We say “prejudgement seizure” because many cases have held it sufficient if seizure were effected at any time before judgment, even if not at the commencement thereof. Pennington v. Fourth Nat. Bank (1917), 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713, seems to stand alone in declaring that it must be effected at the commencement of the action.

      . See von Mehren and Troutman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Har.L.Rev. 1121 (1966). See also Note, The Requirement of Seizure in The Exercise of Quasi In Rem Jurisdiction, 63 Harv.L.Rev. 657 (1950).

      . Id. Portending a possible trend in Florida, though perhaps an isolated or distinguishable case, see Klausner v. Ader (Fla.App.3d, 1963), 156 So.2d 193, wherein there was no seizure, merely “notice.”

      . In fact, Pennoyer itself is unclear as to the reasons for requiring seizure in these cases while recognizing that it is not required in proceedings strictly in rem. See also, 63 Harv.L.Rev. 657, n. 5, supra.

      . Wisconsin courts, for instance, never did follow Pennoyer. Full and adequate notice coupled with the territorial presence of the res at commencement of the action are all that was ever required. More or less significantly, the Wisconsin rule has apparently never been constitutionally tested in the federal courts.

      . See Annot., 10 A.L.R.3d, n. 3, supra. See also Nethery v. Nethery (Fla.App.1st, 1968), 212 So.2d 10, and Torchiana v. Torchiana (Fla.App.2d, 1959), 111 So.2d 103.

      . See Burkhart v. Burkhart (1940), 146 Fla. 457, 197 So. 730; Bowmall v. Bowmall (1937), 127 Fla. 747, 174 So. 14, and Webb v. Webb (Fla.App.3d, 1963, 156 So.2d 698.


author: MOE, LEROY H., Associate Judge.

text:
    Howard T. WHITEHEAD and Inez Whitehead, his wife, Appellants, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, Appellee.
    No. 74-373.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 1975.

      George E. Allen, Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, for appellants.
    Barry R. Davidson, McCarthy, Steel, Hector & Davis, Miami, for appellee.
   MOE, LEROY H., Associate Judge.

This is a condemnation case in which the land owners are appealing a jury verdict and judgment entered thereon awarding them $27,000.00 for the land condemned.

The appellee filed a complaint pursuant to the “quick take” provisions of Florida Statute Chapter 74, seeking an easement 265 feet wide across the middle of the appellants’ 80-acre tract of land for the purpose of building, operating and maintaining power lines. An Order of Taking was issued prior to trial, and the appellee acquired its easement by depositing the necessary funds into the Registry of the Court.

The 80-acre tract of land through which the appellee sought its easement was being used by the appellants as a rock and sand quarry. The appellants’ Answer alleged that the strip of land sought to be condemned would be wider than the proposed 265 feet, since the appellants would have to provide lateral support for the easement to keep it from collapsing due to the dredging operations that would be continued near the easement, alleged that they would suffer consequential damages because of the increased cost and inconvenience of operating a quarry on a bisected tract of land, and challenged the appellee’s assessment of the value of the land sought to be condemned.

A pre-trial conference was held and both sides to the controversy filed written pretrial memorandums. Unfortunately for the purposes of this appeal, the pre-trial conference was not transcribed nor did the trial judge enter a pre-trial order in accordance with F.R.C.P. 1.200(c).

The appellants urge four points on appeal. The first point alleges that the appellants are entitled to opening and closing argument in a “quick take” condemnation action brought by a public utility. The trial judge denied the appellants’ request, relying on the case of Parker v. Armstrong (Fla.App.2d, 1960), 125 So.2d 138.

The appellants cite Rice v. City of Fort Lauderdale (Fla.App.4th, 1973), 281 So.2d 36, in support of their position. In that case, the Fourth District Court of Appeal held it was reversible error for the trial court to refuse the land owner the right to open and close to the jury in a “quick take” condemnation action brought pursuant to Florida Statutes Chapter 74, and remanded the case for a new trial on that basis.

However, the Supreme Court of Florida granted certiorari in the Rice case (City of Fort Lauderdale v. Casino Realty, Inc., S. A. Rice et al., Fla., 313 So.2d 649) and in the concurring opinion written by Justice Overton, the Supreme Court recognized the conflict in the District Courts of Appeal caused by the Rice and Parker cases, supra, and held that “under certain circumstances” the land owner was indeed entitled to opening and closing argument in a condemnation proceeding.

The “certain circumstances” were summarized as follows:

“Compensation in condemnation proceedings in this state includes both usual and unique items of damage. The burden of proof varies depending on the specific item of damage. The items of damage in a condemnation proceeding in this state and the party that has the burden of proof are set forth as follows:
Item of Damage
1. Value of the land taken
2. Damage to the land remaining or severance damages
3. Special enhancement to remaining land by improvement
4. Moving expenses
5. Business loss
Party Who Has the Burden of Proof
Condemning authority
Property Owner
Condemning authority
Property owner
Property owner”

An analysis of this case for the purpose of applying the facts and proceedings to the holding quoted above may be beneficial to the parties now before the Court, but is unnecessary since the Florida Supreme Court also stated in its opinion:

“To avoid multiple retrials, this holding is for prospective application only and shall not affect any cause upon which jury trial has commenced or verdict has been rendered, irrespective of whether this issue was properly raised before the trial of that cause.”

We therefore hold that the trial judge did not commit reversible error in refusing to grant the appellants’ request for opening and closing argument to the jury in this case.

The last two points on appeal were succinctly stated by the appellee as follows:

“II. WHETHER THE TRIAL COURT PROPERLY EXCLUDED ATTEMPTS BY WHITEHEAD TO SHOW THAT THE REMAINDER OF HIS LAND COULD NOT BE USED AS A ROCK PIT ON THE GROUND THAT SUCH ISSUE HAD NEITHER BEEN RAISED IN THE PLEADINGS NOR MENTIONED AT PRETRIAL CONFERENCE. (APPELLANTS’ POINTS II and III).
III. WHETHER, WHEN WHITEHEAD CHOOSES TO OPERATE A BISECTED ROCK QUARRY AS A SINGLE QUARRY INSTEAD OF TWO QUARRIES, THE COSTS OF SUCH OPERATION ARE PROPERLY CLASSIFIED AS BUSINESS DAMAGES. (APPELLANTS’ POINT IV).”

In order to resolve these issues, it is necessary to analyze and discuss the pre-trial and trial proceedings.

After selecting a jury, the appellee put on its one witness, a land appraiser, introduced certain items of documentary evidence, and then rested. During cross examination of this witness, the appellants attempted to prove that the business of dredging sand and rock for fill being conducted on their land would be damaged by condemning a strip of land running down the middle of the land. The specific items of damage alleged were moving equipment (specifically a large dragline) from one side of the bisected tract around the easement to the other side, installing a new pumping station on one side of the easement, the added cost of electricity for running the new pump, plus other costs attendant to operating in effect two quarries instead of one. Obviously, all of these elements of damage claimed by the appellant specifically related to their continuous use of the land as a sand and rock quarry after the condemnation in much the same manner as they were doing before the condemnation. It should also be mentioned that the appellee’s witness testified on direct examination, with no objection, and on cross examination, that the highest and best use of the land in question was as a pit or strip mining of rock and sand.

The appellee objected strenuously to the introduction of testimony and evidence relating to those items of damage mentioned above claiming they were “business damages” and as such were inadmissible because they had not been pled by the appellants and “they (the appellants) have not been in business for five years.”

The appellants admitted they were not entitled to “business damages” for the reasons cited by the appellee, but claimed that these specific items of damage were “severance damages” or “cost to cure,” not business damages.

After hearing strenuous argument on this issue from both sides (out of the presence of the jury) considering the applicable law and allowing the attorneys for both sides ample opportunity to support their positions, the trial judge ruled that “the cost of the pump and the moving of the dragline (are) business damages,” and sustained the appellee’s objection.

This Court has considered the entire record on appeal, the applicable law and the reasoning of the trial judge in sustaining the appellee’s objection, and after careful consideration of all factors, combined with the presumption of correctness on appeal of trial court rulings in discretionary matters, we fail to find that the trial court committed reversible error in excluding the testimony and evidence sought to be introduced by the appellants.

The appellants’ first witness was called to rebut the appellee’s expert’s testimony as to the value of the land being condemned and to give his opinion of its value. However, the witness could not qualify as an expert land appraiser. The appellants therefore sought to have him qualified as an expert in the field of operating a rock and sand quarry, and the Court did indeed recognize him as such.

The appellants then attempted to elicit testimony from the witness to the effect that it was not feasible to use the remaining property for a rock pit operation after the powerlines and other structures were built, and on cross examination gave two specific reasons for his opinion, one being the alleged impossibility to blast with dynamite because of the existence of the pow-erlines.

At the close of this witness’ testimony, the appellee moved to strike the portion relating to the inability to blast on the basis of an insufficient factual predicate to support his opinion. The Court denied the motion and recessed the trial until the following day.

When the proceedings resumed the next day, the appellee renewed its motion to strike. During argument on the motion, the appellants stated that the purpose for introducing the testimony was to show that the land would be worthless for rock pit purposes after the condemnation. The ap-pellee alleged “surprise,” because that issue had never been pleaded or discussed at the pre-trial conference as an issue in the case.

The argument on the motion to strike then dissolved into an argument concerning the right of the appellants to offer testimony and evidence that the remaining property could not be used as a rock pit. The Court ruled on the motion as follows:

“I’m going to grant your motion, and I’m going to get on the record why.
This thing has been pending for nearly a year now. At the pretrial conference a while back it was not raised as an issue by the — I mean the inability to use the remainder as a rock pit. It was discussed that the parties would agree on a slope off the easement to provide lateral support for further digging that was going on; that they intended to carry on and the reason they needed the support was stated by counsel for the land owner.
The reason they needed the slope was so their appraiser would be prepared to testify as to damages in view of this amount of lateral support that had to be left. That led the Petitioner to believe that any testimony about the change in highest and best use to the remainder, or stated another way, that the remainder couldn’t be used for a rock pit would not be an issue in the case. It was not injected as an issue in the case until the Court’s ruling that a new purpose and moving the dragline around the power-line three or four times, the testimony showed, would not be in the nature of severance damages, it would be more in the nature of business damages, the land owner took an entirely different approach to it and did catch you by surprise.
The fact that you didn’t depose his witness, even though you knew who he was, I don’t really consider too important because it’s up to you to depose and not to depose. You might want to spend the money or not. That is your choice. I don’t know.
The Petitioner did say that he talked to the man and the man did make no mention about blasting or inability to use the remainder for a rock pit.
However, I am not basing the ruling on that. I’m basing the ruling on the total surprise. It couldn’t have been anticipated a long time ago and was only sought to be raised in the middle of the trial.
Let’s go.”
The jury was instructed accordingly.

With the clarity that hindsight affords, it is suggested by this Court that the better practice is to have pre-trial conferences reported and transcribed if necessary, or to have all matters discussed, resolved and confirmed by an Order of the Court, or both. Compliance with F.R.C.P. 1.200(c), would have precluded much of the controversy that is the subject matter of this appeal.

However, this is not a case of actus curiae neminem gravabit but rather a case of the trial Judge doing what should have been done albeit a bit late. We fail to find that the Court’s ruling as set forth above prejudiced the appellants, and we therefore fail to find reversible error on this point.

For these reasons, the judgment is affirmed.

BOARDMAN, Acting C. J., and GRIMES, J., concur.

      . Pretrial Order. The Court shall make an order reciting the action taken at the conference, the amendments allowed to the pleadings and the agreements made by the parties about any of the matters considered and limiting the issues for trial to those not disposed of by admissions or agreements of the parties. The order shall control the subsequent course of the action unless modified at the trial to prevent injustice.

      . An act of the court should prejudice no one. Where any delay in a suit is caused by the court neither party should suffer for it.


author: MILLS, Judge.

text:
    James Edward TOMERLIN, Appellant, v. DADE COUNTY SCHOOL BOARD, Appellee.
    No. X-138.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1975.
    Elizabeth du Fresne and Tobias Simon, Miami, for petitioner.
    Frank A. Howard, Jr., and Phyllis O. Douglas, Miami, for respondent.
   MILLS, Judge.

The Dade County School Board dismissed Tomerlin, an elementary school teacher, for immoral conduct with his nine year old stepdaughter. He appealed to the State Board of Education who sustained his dismissal. He now seeks a review of this decision. The issue here is whether, under the facts of this case, Section 231.-36(6), Florida Statutes, which permits dismissal of a teacher for immorality, is constitutional.

Tomerlin’s prior record as a teacher was unblemished. He taught children who were under the age of twelve years. After school hours and at his home, Tomerlin performed cunnilingus on his stepdaughter. At the hearing, expert testimony was given that this was an isolated act, which probably would not happen again.

Tomerlin contends Section 231.36(6), Florida Statutes, is void for vagueness. It is not. It regulates the conduct of persons in the teaching profession, and the term “immorality” is sufficiently clear to designate actionable misconduct. It would be impossible for the legislature to set forth and to define every immoral act justifying dismissal of a teacher. Forman v. State Board of Accountancy, 243 So.2d 4 (Fla.App.1971). Any reasonable person should know that the act performed by Tomerlin was immoral, and was prohibited by the statute.

In addition, Tomerlin contends that the statute is unconstitutional unless it is interpreted to connect his immoral conduct with his job performance. Although Tomerlin’s immoral act was done at his home and after school hours, it was indirectly related to his job. His conduct is an incident of a perverse personality which makes him a danger to school children and unfit to teach them. Mothers and fathers would question the safety of their children; children would discuss Tomerlin’s conduct and morals. All of these relate to Tomerlin’s job performance.

The Florida Bar recommended disbarment of an attorney for immoral conduct with his young stepdaughter, based on that part of his oath which provided he would abstain from all offensive personality. The Supreme Court of Florida agreed, and disbarred the attorney. The Florida Bar v. Hefty, 213 So.2d 422 (Fla.1968). In Hefty, the facts and the regulatory part of the oath are similar to those in this case.

A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We look to the teacher to educate and to prepare out children for their adult lives. To fulfill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children.

Under the facts of this case, Section 231.36(6), Florida Statutes, is constitutional.

Certiorari denied.

BOYER, C. J., and McCORD, J., concur.


author: SMITH, Judge.

text:
    William J. McClelland, Appellant, v. Patricia W. McCLELLAND, Appellee.
    No. Y-384.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1975.

      Ferrin C. Campbell, Sr., Crestview, for appellant.
    David H. Levin, Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   SMITH, Judge.

Confronted with an unresolved conflict between decisions of two sister District Courts of Appeal , we are asked to determine whether, in the consideration of a petition for dissolution of marriage and for alimony, child custody and child support, a trial court may hear evidence of allegedly persistent adultery by a respondent husband who seeks no alimony for himself and who does not deny that the marriage is irretrievably broken. Affirming the trial judge, we hold that the court may properly consider such evidence for the light it sheds on the condition of the marriage and on the equities of the necessary financial adjustment to be made between the parties.

The petition for dissolution filed by Ms. McClelland, appellee here, alleged:

“7. Petitioner alleges that the Respondent has been involved in adulterous relationships for many years. The Petitioner has implored the Respondent to cease these activities, and even now he is engaged in an adulterous relationship. Although the Petitioner would gladly reconcile with the Respondent if he would cease his immoral behavior, he has indicated he does not intend to do so, and the Petitioner thus is reluctantly forced to conclude that the marriage is irretrievably broken.”

Responding, appellant William J. Mc-Clelland admitted that the marriage is broken and moved to strike as irrelevant all of the quoted allegations except the last six words. The trial court denied that motion and the husband appealed from the interlocutory order. Appellant’s answer seeks neither alimony [as to which see § 61.08(1), F.S.1973] nor child custody and it does not dispute that the marriage is broken. Appellant therefore complains that a foray into the matter of his alleged adultery is not only irrelevant but also potentially destructive of the legislative goals to promote the amicable settlement of the marriage dispute and to minimize the hurt inflicted by the legal process itself. Secs. 61.001 (2)(b), (c), F.S.1973.

While the trial court might properly be affirmed on the narrow conceptual ground that admissions in an answer cannot make allegations in a petition retroactively irrelevant and subject to striking, we will anticipate the real issue of what evidence may be heard at the final' hearing, as did the trial judge in denying the motion to strike:

“This Court has heard the argument of counsel for the respective parties and has considered the opinion in the case of Pro vs. Pro, 300 So.2nd 288 and the opinion in the case of Escobar vs. Escobar, 300 So.2nd 702. These two cases appear to present divergent views upon the issue, but this Court feels that the opinion of Judge Downey in Pro vs. Pro is more reasonable and that the trial court has discretion to permit a reasonable inquiry into the conduct of the parties including the issue of adultery as it might affect the financial circumstances, property accumulations, division of property and an award of alimony and other related matters. This is not to sanction an unlimited foray into the details of such conduct, but should be held within reasonable bounds.”

It is evident that the principal issue to be determined by the trial judge in this case, should he agree with the parties that the marriage is irretrievably broken, is the nature and the amount of alimony. Because in making these determinations the trial judge will be guided by evidence of the need of the demanding spouse for support and the ability of the other to respond [Thigpen v. Thigpen, 277 So.2d 583 (Fla. App.1st, 1973)], the District Court of Appeal, Third District, held that a trial judge properly excluded evidence of a respondent husband’s adultery when considering whether and in what amount the wife should receive alimony. “Here the wife hoped to obtain alimony,” the Court observed, “by showing her husband’s adultery.” Escobar v. Escobar, 300 So.2d 702, 703 (Fla.App.3rd, 1974). It may be that our Ms. McClelland is similarly motivated and that, while pleading that the marriage is broken for grave cause from which even now she seeks relief short of dissolution, her real intention is to be compensated and to punish her husband financially for his past offenses.

But we must give face value to ap-pellee’s declared reluctance to seek dissolution. Although husband and wife may agree in pleadings that the marriage is irretrievably broken, the statute does not require a circuit judge sitting with the historic discretion of a chancellor to find that to be a fact simply because the parties have said so. Secs. 61.011, 61.052(2)(a), F.S.1973. Such a finding remains a judicial act; and it follows, even in the absence of a pleaded issue on the subject, that the court may consider at least some evidence of whether the marriage is irretrievably broken. The Court must therefore be permitted to learn from the parties the depth of the breach and, inevitably, its cause. See Riley v. Riley, 271 So.2d 181 (Fla.App.1st, 1972).

While there is no contest in this case that Ms. McClelland shall have custody of the minor children, the award of custody is also a judicial act which is not woodenly to be performed as stipulated by the parents. For that act also discretion must be informed; and evidence of a parent’s persistent adultery could be pertinent to the inquiry.

Finally, we agree with the District Court of Appeal, Fourth District, that evidence of adulterous activities may be pertinent to the questions of alimony. Pro v. Pro, 300 So.2d 288 (Fla.App.4th, 1974). The legislative mandate is that the court “consider any factor necessary to do equity and justice between the parties” in respect to alimony. Sec. 61.08(2), F.S.1973.

We do not share appellant’s apprehension that the trial court’s decision will resurrect a system of divorce based on fault and, with it, all of the old agonies of accusation and recrimination. The trial judge in this case cautioned against “an unlimited foray into the details” of the alleged adultery and indicated a determination to restrict the inquiry “within reasonable bounds”. It is unnecessary, undesirable and improper for the trial judge “to sit and hear every jit and jot of testimony offered by a party as to the other’s misconduct” [Oliver v. Oliver, 285 So.2d 638, 641, (Fla.App.4th, 1973)], and there are no circuit judges who, remembering such experiences, will now willingly relive them. “It is enough,” the District Court, Fourth District, held in Oliver in connection with alimony questions, “that he simply get a broad picture and understanding of the relative equities and factors necessary to do justice.”

The interlocutory appeal is dismissed.

RAWLS, Acting C. J., and McCORD, J., concur.

      . Pro v. Pro, 300 So.2d 288 (Fla.App.4th, 1974) and Escobar v. Escobar, 300 So.2d 702 (Fla.App.3rd, 1974).


text:
    John Avery THOMAS, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1543 to 74-1545.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Law Offices of Alex D. Finch, Clear-water, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted of three violations of the Florida Comprehensive Drug Abuse Prevention and Control Act and was given concurrent four-year sentences for each conviction. These judgments are affirmed.

However, the crime prosecuted in case no. 74-4596 (appeal case no. 74-1543) was a misdemeanor, rather than a felony. It was properly triable in circuit court under Fla.Stat., § 26.012(2) (d) (1973), but the sentence could not exceed the one year maximum for a misdemeanor. Therefore, the sentence in that case is hereby reduced to a term of one year, and the court below is requested to correct its records accordingly.

HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.


text:
    Roberto COLLAZO, Appellant, v. Clara Sotelo de COLLAZO, Appellee.
    No. 75-121.
    District Court of Appeal of Florida, Third District.
    Sept. 2, 1975.
    Carlos B. Fernandez, Miami, for appellant.
    Norman Funt, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This is an appeal by ex-husband of an award of the marital residence as lump sum alimony to the ex-wife. He contends that the chancellor abused his discretion in the award thereof in that both parties are equal in their capabilities to earn income. We cannot agree.

Upon a dissolution of marriage, the ex-wife ordinarily becomes the owner of an undivided one-half interest as a tenant in common with her former husband in land owned by the spouses as an estate by the entirety. Nevertheless, upon proper pleadings and sufficient and proper proof, the former husband’s interest in the estate by the entireties can be awarded to the ex-wife as lump sum alimony or to the extent that she establishes a special equity therein. Steinhauer v. Steinhauer, Fla.App.1971, 252 So.2d 825 and see also Latta v. Latta, Fla.App.1960, 121 So.2d 42.

The record in the case before us reflects that the ex-wife substantially contributed to the down payment on the marital home and the maintenance thereof. In addition and more important, she made 40 out of the 49 mortgage payments due on the residence. Based upon the above evidence, the chancellor determined that this sufficiently proved up a special equity in the marital home and properly granted appellant’s interest therein to appellee as lump sum alimony. Cf. Long v. Long, Fla.App.1974, 304 So.2d 483.

No abuse of discretion having been made to appear, the judgment must be and is affirmed. See Linares v. Linares, Fla.App.1974, 292 So.2d 63.

Affirmed.


text:
    In the Matter of the ADOPTION OF Tamara Gail GASKINS.
    No. 75-94.
    District Court of Appeal of Florida, Fourth District
    Sept. 12, 1975.
    Michael Sigman, Orlando, for appellant.
    ' Roy A. Jones, Whitfield, Wright, Leon-hardt & Trickel, Orlando, for appellee.
   PER CURIAM.

The decree of the lower court granting a petition for adoption finding that such adoption is in the best interest of the child arrives at the appellate level with a presumption of correctness; absent a showing of a lack of competent substantial evidence to support the decree, the decision will not be reversed. Smith v. Lyst, Fla.App.1968, 212 So.2d 921. It is impossible for this court to determine whether the trial court abused its discretion because of the absence of a transcript of testimony upon which the trial court findings were based. Royal Flair, Inc. v. Cape Coral Bank, Fla.App.1971, 251 So.2d 895. Accordingly, by reason of the foregoing the final judgment of adoption is affirmed.

Affirmed.

CROSS, MAGER and DOWNEY, JJ., concur.

      . Additionally, the trial court’s order of December 12, 1974, containing certain detailed findings has not been included in the record on appeal.