text:
    Lawrence O. WEDGEWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 74-69.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1976.
    James A. Gardner, Public Defender, and Richard W. Seymour, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See United States v. Gaines, 489 F.2d 690 (5th Cir. 1974).

McNULTY, C. J., and HOBSON and BOARDMAN, JJ., concur.


source: Caselaw Access Project

author: OWEN, Judge.

license: Public Domain

text:
    Jackie GLEASON, Appellant, v. LEADERSHIP HOUSING, INC., Appellee.
    No. 74-799.
    District Court of Appeal of Florida, Fourth, District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 24, 1976.

      Hugo L. Black, Jr., Kelly, Black, Black & Kenny, Miami, for appellant.
    Gilbert A. Haddad, Preddy, Haddad, Kutner & Hardy, Miami, for appellee.
   OWEN, Judge.

Appellant, the vendee under a written land-sales agreement, suffered an adverse judgment in his suit for specific performance (later amended to seek damages) apparently because the trial court concluded that the agreement violated the Statute of Frauds due to the insufficiency of the description of the property to be conveyed. We reverse the judgment and hold that the vendor, by its conduct, was estopped to contest the validity of the agreement.

In March 1969, appellant, Jackie Gleason, a renowned entertainer and show business personality, entered into a written contract with the Behring Corp. (predecessor to appellee, Leadership Housing, Inc.). Executed amid much fanfare and publicity, the agreement called for Behring to employ Gleason for a period of five years giving Behring the right to use Gleason’s name to publicize and promote its planned real estate development on a 3,000 acre tract which it owned in Broward County. In addition to lending his name to the promotion, Gleason was required to render services in connection with the designing of a golf course and related golfing facilities and was to continue in his efforts to obtain the promotion and staging of a major outstanding golf tournament on the course to be construed. In exchange, Gleason was to receive a specified monthly salary (the first twenty-three monthly payments of which were to be allowed to accrue and to be paid thereafter on a deferred basis), and was granted (1) the privilege of leasing a residence to be construed on the property by Behring, and (2) the right to purchase a portion of the 3,000 acre tract at a designated “bargain” price. This latter provision is the basis of the present suit and is discussed in more detail hereafter.

The relevant part of the provision relating to the land sale was as follows:

“Within sixty days from the date hereof Behring will sell and convey to Gleason . 732,000 square feet [16.8 acres] of land in fee simple absolute, at a price of 15{! per square foot [$6,534 per acre]. The land will be located in the area where the first high-rise residential buildings in the complex will be constructed, it will be zoned for high-rise residential use, and shall be so located as to be on a street or streets to be installed by Behring at its expense in connection with the initial phase of the development. The selection of the land will be subject to the approval of both parties.”

The agreement also provided that should Behring fail to obtain a financing commitment for the planned development, then':

“[A] 11 rights and obligations under the Employment Contract shall cease and terminate, as shall Behring’s obligation to construct and lease the house to Gleason and the various options to be contained in such lease, and any obligation for accumulated salaries due Gleason shall be extinguished. However, Behring shall in any event be obligated to complete the land sale referred to in Section III above as therein provided, so long as Gleason has for such eight-month period fulfilled the obligations imposed upon him under the terms of this agreement.”

The final paragraph of the agreement provided as follows:

“It is contemplated that the parties will execute more formal agreements of employment, lease with options and land deed and mortgage, embodying all the foregoing terms and such additional terms and provisions as the parties in good-faith negotiations shall agree upon. However, this Memorandum of Agreement shall constitute a binding agreement between the parties until such time as such formal agreements are executed or if no formal agréments are executed.”

From the time the contract was signed, Behring publicized Gleason’s connection with its development and Gleason substantially performed the services required of him, i. e., the designing of a golf course and related facilities and the exerting of his efforts to obtain and stage (at a future date) a major golf tournament for the proposed course. However, Behring was unable to obtain the necessary financing commitment for the development and thus, pursuant to the terms of the agreement, the parties’ respective rights and obligations thereunder terminated with the exception of Behring’s obligation to complete the land sale to Gleason.

Within sixty days after the contract was signed, Gleason’s attorney reminded Behring’s attorney of the contractual obligation to convey the land and sought definitive arrangements concerning selection of the parcel and a closing. In response to this and similar inquiries, Mr. Ken Behring, the principal in Behring Corporation, stated that Gleason “was sitting on a million dollars’ worth of land” and advised that Gleason simply wait until some of the land was zoned for high-rise residential use so as to assure selection of land meeting the contract standards. In June 1970, Gleason’s attorney again reminded Behring’s attorney of Behring’s obligation to convey the land, and again Behring’s attorney confirmed that the obligation existed and stated that Mr. Ken Behring had discussed the obligation with the directors of the company. In November 1971, in response to a similar inquiry, Behring again confirmed its obligation under the agreement and reported that it had just obtained the necessary zoning. Gleason’s attorney was advised that a representative of Behring Corporation would meet with him and drive through the property to select a suitable parcel. During the next six weeks similar representations were made and then on January 28, 1972 Behring actually proposed a tract consisting of 18.3 acres, but not zoned for high-rise residential use. Gleason disapproved this proposed site because it did not meet the zoning standards of the contract. On February 15, 1972, Behring then proposed “Tract 27, being 18 acres more or less,” which land was zoned for high-rise residential use. Gleason also disapproved this proposed site because, while it met zoning standards of the contract, it did not meet the location requirements since it was not in the area where the first high-rise residential buildings in the complex were to be constructed. Although Behring then designated one of its officers to propose another parcel to Gleason, no other site was ever again proposed by Behring. However, at no time prior to the filing of the suit did Behring ever deny its obligation under the contract.

On September 1, 1972, control of the Behring Corporation changed hands and the name of the corporation was changed to Leadership Housing, Inc. This suit was initially filed seeking specific performance of the contract, but later was amended to seek damages. A nonjury trial resulted in a final judgment adverse to Gleason, apparently on the basis of the court finding that the agreement violated the Statute of Frauds and therefore would not support an action for damages.

At the outset we would make the observation, in passing, that a plausible argument could be made to the effect that the land description contained in the agreement was not so vague as to bring the contract within the Statute of Frauds, despite the fact that it failed to denominate a specifically identifiable 732,000 square feet of land. It is readily apparent from the face of the contract that these parties did not intend to define a specific tract of land, susceptible of metes and bounds description. They clearly intended to contract for the purchase and sale of a fungible 732,000 square feet of land — any parcel or parcels meeting the contract standards as to zoning and location would have been adequate to satisfy this intent — and to the extent that the contract standards were specific and certain, the land description could be said to have been as well. It is true that the contract provided that the selection would be “subject to the approval of both parties,” but this could be viewed as a subsidiary matter as to which the law would imply a covenant on the part of the respective parties to agree to a reasonable determination in order that the main promise may be enforced. 1 Williston, Contracts, § 48 at 157 (3rd ed., 1957); Ontario Downs, Inc. v. Lauppe, 192 Cal.App.2d 697, 13 Cal.Rptr. 782 (1961). Additionally, it could be said that such a provision was one which either party could waive and once one party had indicated approval of a particular parcel, that party would not be prejudiced if the other party subsequently acquiesced in the selection. However, our decision in this case does not rest upon any determination that the agreement did not violate the Statute of Frauds. On the contrary, assuming for the purpose of our decision that the agreement was, in fact, in violation of the Statute of Frauds, we hold that appellee is estopped to contest the validity of the agreement under the doctrine of equitable estoppel. 73 Am.Jur.2d, Statute of Frauds, §§ 565 et seq. (1974); 5 Thompson, Real Property § 2528 (1957).

The principles of law upon which we rely were concisely set forth in United Contractors, Inc. v. United Construction Corp., 187 So.2d 695, 701-2 (Fla.App. 2nd, 1966) as follows:

“ ‘Equitable estoppel’ precludes a person from maintaining a position inconsistent with another position which is sought to be maintained at the same time or which was asserted at a previous time; and, as a general rule where a person has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim or right, he cannot afterward assume a position inconsistent with such act or conduct to the prejudice of another who has acted in reliance on such conduct. The doctrine requires of a party consistency of conduct, when inconsistency would work substantial injury to the other party. 31 C.J.S. Estoppel § 108, page 548, et seq.; Rosello v. Hayden, Fla. 1955, 79 So.2d 682; Fairlie v. Scott, 1924, 88 Fla. 229, 102 So. 247; Holly Hill Citrus Growers’ Ass’n v. Holly Hill Fruit Products, 5 Cir., 1935, 75 F.2d 13. The doctrine of estoppel is a part of the common law enforced in Florida, and it should be appropriately applied when the facts in a litigated case justify it. Steen v. Scott, 1940, 144 Fla. 702, 198 So. 489. As stated in Warren v. Tampa Mortgage Investors’ Co., 1933, 112 Fla. 555, 150 So. 738, text 741: ‘[t]he law is too well settled to admit of controversy that one may not accept the fruits of a contract and at the same time renounce, or repudiate, the burdens which that contract places upon him.’ ”

See also, Hodkin v. Perry, 88 So.2d 139 (Fla.1956); O’Bryan v. Linton, 41 So.2d 169 (Fla.1949); 12 Fla.Jur., Estoppel and Waiver, §§ 46, 50 et seq. (1957); 31 C.J.S. Estoppel, §§ 109, 110 (1964); 28 Am.Jur. 2d, Estoppel and Waiver, §§ 59, 60, and 68 (1966).

The facts of this case clearly justify application of the doctrine. Appellee in this litigation has sought to adopt, to Gleason’s prejudice, a position completely inconsistent with that taken by it prior to litigation, and upon which Gleason relied, in that appellee’s predecessor, Behring, continuously over a three-year period led Gleason to believe that the contract was valid and that land meeting the contract standards would be conveyed to him. Gleason continued to rely upon this position to his detriment particularly when he rejected Behring’s proposal to convey to him Tract 27, for had he known that ap-pellee would subsequently shift its position from one of recognition of the obligation to one contesting the validity of the agreement, he could have acquiesced in the selection of Tract 27 as a palatable alternative to the present litigation. Moreover, appellee clearly accepted the benefits of the contract, i. e., the use of Gleason’s name and his efforts toward designing a golf course and securing a major golf tournament to be played thereon at a subsequent date, for all of which Gleason has to date received nothing. It is clear from the terms of the contract that the parties anticipated that while Behring would receive immediately this benefit, Gleason could conceivably receive no benefit whatever other than the “bargain” land sale should the other provisions of the contract self-terminate. At trial, expert witnesses testified that any of the property was worth substantially more than the price called for by the contract. Even Mr. Behring stated, within approximately two months after the contract was signed, that Gleason was “sitting on a million dollars’ worth of property.” Whether Behring got that much value from the use of Gleason’s name and his services up to the time the contract was terminated is not the issue; rather, it is simply that in exchange for receiving such benefit Behring agreed to sell at a bargain price 16.8 acres of land so that Gleason could ultimately realize a gain therefrom. Having thus consistently, prior to this litigation, manifested an intention to honor the contract and having accepted the benefits due it thereunder, appellee is now estopped to deny its validity.

Appellant concedes that the only relief now available to him is an award of damages. We feel that the proper measure thereof should be the value of 16.8 acres located in Tract 27 as of February IS, 1972 (the date that Behring indicated its approval of this parcel as meeting the contract requirements) less the contract purchase price of 15{5 per square foot ($6,534 per acre), plus interest on the amount thus obtained computed from February 15, 1972 to the date of judgment.

The judgment is reversed and this cause remanded for the entry of a judgment in accordance herewith. On remand the trial court, in its discretion, may take further evidence touching upon the issue of damages as it deems necessary or desirable.

Reversed and remanded.

WALDEN, C. J., and CROSS, J., concur.

      . Fla.Stat. § 725.01 (1973).


author: PER CURIAM.

text:
    Henry P. GILMORE, Appellant, v. The ESTATE of F. Churchill MELLEN, Appellee.
    No. Y-208.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1976.
    Thomas G. Morton, Jr., of Parker & Morton, Milton, for appellant.
    Donald H. Partington, of Clark & Part-ington, Pensacola, for appellee.
   PER CURIAM.

Affirmed on authority of Weekley v. Knight, 1934, 116 Fla. 721, 156 So. 625. See also Kilmer v. Carter, 1969, 274 Cal. App.2d 81, 78 Cal.Rptr. 800; Pusey v. Reed, Del.Super. 1969, 258 A.2d 460; and Better Homes, Inc. v. Rodgers, N.D.W. Va.1961, 195 F.Supp. 93.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: SMITH, Judge.

text:
    Larry Thomas McCLAIN, Appellant, v. STATE of Florida, Appellee.
    No. X-347.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

McClain urges on appeal that his insanity defense to the charge of escape was established as a matter of law by testimony of a psychiatrist for the defense. No opinion testimony was offered by the State. There was evidence, however, of the deliberate and stealthy nature of the escape and there was testimony by two lay witnesses for the State of McClain’s normal and lucid conduct the night he escaped. That testimony distinguishes this case from Armstrong v. State, 30 Fla. 170, 206, 11 So. 618, 627 (1892), and presented a jury question on the issue of McClain’s competence to commit the offense. See Byrd v. State, 297 So.2d 22 (Fla.1974). The judgment and sentence are

Affirmed.

BOYER, C. J., and MILLS, J., concur.


text:
    Hilton Alexander MULLINS, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-227, 75-228.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1976.
    Hilton Alexander Mullins, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed.

See Albritton v. Wainwright, Fla.1975, 313 So.2d 763; Singletary v. State, Fla. App. 4th, 1974, 290 So.2d 116.

McNULTY, C. J., and HOBSON and GRIMES, TJ., concur.


author: BOYER, Chief Judge. PER CURIAM.

text:
    Daniel Nelson SILVA, Appellant, v. STATE of Florida, Appellee.
    No. Y-174.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1975.
    Rehearing Denied Feb. 20, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   BOYER, Chief Judge.

Appellant here appeals a conviction of possession of a firearm by a convicted felon and a resulting ten-year sentence.

On New Year’s day, 1975, appellant and Mrs. Brandon (a lady with whom he had been cohabiting since August of 1973) had an argument. Appellant hit Mrs. Brandon in the mouth in the presence of her nine-year-old son, Davey. -Davey ran out of the house screaming that he was going to call the police. Appellant instructed Mrs. Brandon to go get Davey. She did indeed go get Davey but she continued on to a local convenience store where the police were summoned. In her telephone call to the police, Mrs. Brandon informed them that appellant had hit her and that appellant was a convicted felon and had guns in a closet in the house. The evidence revealed that Mrs. Brandon had occupied the home for some six years prior to the time that she and appellant commenced living there. From August of 1973 until New Year’s day of 1975, the premises had been leased under the name of Mr. and Mrs. Silva. The “Mrs. Silva” was in fact Mrs. Brandon. After calling the police, Mrs. Brandon and Davey returned to the house where they waited on the front steps until the police arrived. Mrs. Brandon thereupon' discovered that the door was locked. In order to gain entrance she placed her hand through the jalousies and unlocked the door. The police were admitted by Mrs. Brandon who told the police that appellant’s guns were located in a hall closet. Upon opening the door the police found a shotgun, rifle and pistol. At the trial, Mrs. Brandon testified that the hall closet in which the guns were found contained appellant’s tools, shoes, suitcase and clothes. She had occasion to go in the closet when she cleaned house and her little son Davey made frequent use thereof. However, none of Mrs. Brandon’s personal belongings were kept in the closet.

The only point presented on this appeal which merits our consideration is whether appellant’s constitutional right to immunity from unreasonable searches and seizures may be waived by consent of his spiteful mistress. Stated another way, could Mrs. Brandon, under the facts revealed by the evidence in this case, consent to the entry by the police into the home occupied by her and appellant and further consent to entry by the police into a closet in the home which contained appellant’s belongings only and which was not used (but was frequently entered) by appellant’s mistress, Mrs. Brandon. In support of his contention that a mistress may not give a valid consent when she was acting out of malice, appellant cites to us William Congreve, The Morning Bride, III, viii (1967): “Heaven has no rage like love to hatred turned, nor hell a fury like a woman scorned.” Citing more conventional authorities, appellant acknowledges that the recent decision of the Supreme Court of the United States in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), is closely analogous to the case at bar and does not aid his position. In that case the appellant Matlock was living with a Mrs. Graff in a home owned by Mr. and Mrs. Marshall. Mrs. Graff and Matlock shared an upstairs bedroom. Police who were investigating a bank robbery appeared at the Marshall home and were admitted to it by Mrs. Graff who consented to the search of the house, including the bedroom that she and Matlock jointly occupied. The bedroom and the one closet adjacent to the bedroom were searched and there was found therein a large sum of cash in a diaper bag. In that case the Supreme Court cited Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), for the proposition that warrantless searches may be supported by proof of voluntary consent if the consent was given by a third person who possessed common authority over, or sufficient relationship to, the premises sought to be inspected. Appellant sub ju-dice seeks to distinguish the Coolidge and Matlock decisions on the basis that the closet searched in this case was a hall closet over which Mrs. Brandon exercised no dominion, whereas in the Matlock case the closet was one which was commonly shared by Mrs. Graff and Matlock. Thus, appellant contends, the necessary element of dominion or control was present in Matlock but is lacking in the case sub judice. Appellant further argues that in the Matlock case Mrs. Graff harbored no hostility toward her lover, but in this case the evidence reveals that Mrs. Brandon consented to the closet search out of anger and spite. We do not adopt the distinctions so urged by appellant. The evidence reveals that the entire premises were leased by appellant and Mrs. Brandon and occupied by both. The fact that he had a closet and she had a closet is immaterial. She had unfettered access to the entire premises, as did her child. The fact that she was motivated by spite is also irrelevant.

We are not here confronted with any issue of agency. Mrs. Brandon was not appellant’s agent. She was a lessee of the subject premises with equal right of dominion and control.

We have carefully considered the other points raised by appellant and find them too to be without merit. Accordingly, the judgment and sentence appealed are

Affirmed.

MILLS and SMITH, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Appellant’s petition correctly calls to our attention that our decision does not refer to uncontradicted evidence that, after Mrs. Brandon gave police consent, appellant intervened to forbid them to search the closet where the incriminating guns were found. That salient point was not overlooked in our consideration of the case.

Appellant has also called our attention to the decision of the District Court of Appeal, Second District, in Lawton v. State, 320 So.2d 463 (Fla.App.2d, 1975), and to a seeming conflict between that decision and ours. If that case may not readily be distinguished on the ground that Mrs. Lawton had only a tenuous possessory relationship to the apartment she previously occupied with her estranged husband, we must respectfully disagree with the Lawton decision. We believe Mrs. Brandon derived power to consent from her unquestioned occupancy of and corresponding right to control the premises. That appellant also had such a right did not give him veto power over Mrs. Brandon’s consent. We conceive, in short, that consent thus obtained has efficacy under the principle of United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 993, 39 L. E.2d 242, 249 (1974), not only “as against the absent, nonconsenting” cohabitant but also as against the present, nonconsenting cohabitant. The legality of a warrantless search conducted by consent of a cohabitant should not be made to turn on whether the police successfully guessed that the suspect would be absent when permission to search was requested.

Fourth Amendment considerations of reasonableness may prevent police from relying on the consent of an absent cohabitant over objection of the cohabitant present and in sole possession of the property [Tompkins v. Superior Court, 59 Cal. 2d 65, 27 Cal.Rptr. 889, 279 P.2d 113, (1963)] or from shopping among cohabitants for consent first sought from and refused by him whose effects police desire to search [People v. Mortimer, 46 A.D.2d 275, 361 N.Y.S.2d 955 (1974); Dorsey v. State, 2 Md.App. 40, 232 A.2d 900 (1967)], but those questions need not be decided on this record. The prayer of the petition for rehearing is

Denied.

BOYER, C. J., and MILLS and SMITH, JJ., concur.

      . “Common authority [over the premises] is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes . . . .” United States v. Matlock, infra, 415 U.S. at 171, 94 S.Ct. at 993, 39 L.Ed.2d at 250, n. 7.


text:
    JONTON, INC., etc., Appellant (Defendant), v. FIDELITY MORTGAGE INVESTORS, a Massachusetts business trust, Appellee (Plaintiff).
    No. Y-475.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1976.
    Rehearing Denied March 12, 1976.
    Clyde M. Taylor, Jr., of Taylor, Brion, Buker & Greene, Tallahassee, for appellant.
    Walter Smith, Fort Walton Beach, for appellee.
   PER CURIAM.

We have considered the record, the briefs, and heard oral argument. The record presented to us fails to show that ap-pellee willfully violated Section 687.04, Florida Statutes.

Accordingly, the final judgment is affirmed.

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


text:
    UTICA MUTUAL INSURANCE COMPANY, Appellant, v. Paul Leroy BAKER and Naomi C. Baker, his wife, Appellees.
    No. AA-168.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1976.
    Frank Marriott, Jr., of Goseny, Haas, Cameron & Parsons, Daytona Beach, for appellant.
    Ralph G. Decker, Mel R. Martinex, of Billings, Frederick, Wooten & Honeywell, Orlando, for appellees.
   PER CURIAM.

Having considered the record, briefs, and oral arguments of counsel, and finding that the interlocutory appeal is without substantial merit, it is dismissed pursuant to Rule 4.2, subd. c, Florida Appellate Rules.

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


author: BOYER, Chief Judge.

text:
    The FLORIDA NATIONAL BANK AT GAINESVILLE, Appellant, v. ALFRED AND ANN GOLDSTEIN FOUNDATION, INC., a New York Corporation, Appellee.
    No. Y-531.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1976.
    Rehearing Denied March 11, 1976.

      Fred H. Kent, Jr., of Kent, Sears, Dur-den & Kent, Jacksonville, for appellant.
    Henry L. Gray, Jr., of Chandler, O’Neal, Avera, Gray, Lang & Stripling, Gaines-ville, and J. Lewis Hall, Jr., of Hall & Booth, Tallahassee, for appellee.
   BOYER, Chief Judge.

Appellant issued an irrevocable letter of credit which was dishonored upon presentation. Appellee filed suit seeking damages including attorneys’ fees. The learned trial judge entered a summary final judgment in favor of appellee holding that F.S. 675.115 and F.S. 672.710 afforded a basis for the award of attorneys’ fees although no provision therefor is found in the letter of credit the dishonor of which resulted in the litigation. The sole point on this appeal is the propriety of that holding. The amount of the attorneys’ fees awarded is not in controversy.

The right to recover attorneys’ fees as part of costs did not exist at common law. (Codomo v. Emanuel, Sup.Ct. Fla. 1956, 91 So.2d 653) Attorneys’ fees may not be taxed as costs unless provided for by statute or contract. (Shavers v. Duval County, Sup.Ct.Fla. 1954, 73 So.2d 684) The award of attorneys’ fees being in derogation of the common law, any statute providing for an award thereof must be strictly construed. (Great American Indemnity Company v. Williams, Sup.Ct. Fla.1956, 85 So.2d 619; Gullette v. Ochoa, Fla.App.1st, 1958, 104 So.2d 799) However, in appropriate cases attorneys’ fees may constitute an element of recoverable damages. (Glusman v. Lieberman, Fla.App.4th, 1973, 285 So.2d 29, and cases therein cited).

Construing F.S. 675.115 and F.S. 672.710 in the light of the facts of this case and in the light of F.S. 671.103 and F.S. 671.106(1), we hold that those statutes were not intended to afford a vehicle for the award of attorneys’ fees either as costs nor as “commercially reasonable charges, expenses or commissions”. (See Neri v. Retail Marine Corporation, 30 N. Y.2d 393, 334 N.Y.S.2d 165, 285 N.E.2d 311).

Accordingly, that portion of the summary final judgment here appealed by which attorneys’ fees were fixed and awarded to appellee is reversed.

RAWLS and’McCORD, JJ., concur.


text:
    The POINT DEVELOPMENT CORPORATION OF NAPLES, a Florida Corporation, Appellant, v. PALMS NURSERY & LANDSCAPING CO., INC., a Florida Corporation, Appellee.
    No. 75-1049.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1976.
    Francis W. Sams and Donald M. Dar-rach of Worley, Gautier & Sams, Miami, for appellant.
    Jackson L. Boughner, Naples, for appel-lee.
   PER CURIAM.

Notice of appeal having been filed in an action at law from a nonappealable interlocutory order, we consider the proceedings as a petition for writ of common law cer-tiorari.

After due consideration of the record, briefs, and oral argument, we are unable to find that the petitioner has demonstrated a departure from the essential requirements of law. Accordingly, the petition for writ of certiorari is

Denied.

McNULTY, C. J., and BOARDMAN and SCHEB, JJ., concur.


text:
    Harold Marvin WATSON, Appellant, v. STATE of Florida, Appellee.
    No. Y-237.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We have carefully read the record and briefs. It is well settled that normally an appellate court must confine itself to a review of only those questions which were before the trial court and upon which a ruling adverse to the appealing party was made. (State v. Barber, Sup.Ct.Fla.1974, 301 So.2d 7) Appellant’s counsel, the public defender, has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We have accordingly searched the record to discover any fundamental error and find none. (Please see 28 C.J.S.Supp. Drugs and Narcotics § 208, p. 307, and United States v. Graham, 5th Cir. 1972, 464 F.2d 1073, cert. den. 409 U.S. 987, 93 S.Ct. 341, 34 L.Ed.2d 252 (1973)).

Affirmed.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: SCHEB, Judge.

text:
    COMMERCIAL UNION INSURANCE CO., and Otis Elevator Company, Appellants, v. Sonja STREET, Appellee.
    No. 75-199.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1976.
    Gary M. Witters, of Allen, Dell, Frank & Trinkle, Tampa, for appellants.
    David A. Maney of Gordon & Maney, and Mulholland & Hapner, Tampa, for ap-pellee.
   SCHEB, Judge.

Is res ipsa loquitur an applicable doctrine on which to predicate an elevator company’s liability where the plaintiff is injured as a result of a malfunction of one of its elevators? The trial court held it was, notwithstanding a maintenance agreement stipulating that the hospital was in possession and control. of the elevator, since the evidence revealed the elevator manufacturer was the installer and exclusive maintenance agent. We agree and affirm the judgment on the jury’s verdict for the plaintiff.

Plaintiff, age 61, is employed by St. Joseph’s Hospital. She testified she got on the elevator at the third floor of the hospital and pushed the ground button — that the elevator went “zoom” and went down and bounced. She caught herself on the handrail and the elevator returned to the seventh floor, did not open, then dropped to the sixth floor, and stopped. The door opened and. she got out.

The defendant, Otis, manufactured and installed the elevators in St. Joseph’s Hospital and maintains them under a contract which stipulates that possession and control over the elevator resides exclusively in the Hospital. Mr. Tessier, the Tampa manager for Otis, testified that in response to notice of the plaintiff’s accident, he sent a repairman to the Hospital, who after making a thorough inspection, reported he could not locate any malfunction. Mr. Johns, Otis’s maintenance supervisor, testified the elevator was in compliance with all safety codes and there was no evidence after the accident to indicate there had been any “free fall” at the time of the accident, but he declined to say that the accident could not have happened as the plaintiff testified.

Otis Elevator Company and its insurer, defendants below, contend the trial court erred in instructing the jury that the doctrine of res ipsa loquitur was applicable in face of a maintenance contract between Otis and St. Joseph’s Hospital, which specifically provided that possession and control over the elevator was vested in the Hospital where appellee/plaintiff’s accident occurred. The jury was instructed that the doctrine was applicable to the plaintiff’s cause of action where damages resulted from the injuries she received at the Hospital as a result of its elevator abruptly stopping and falling.

Appellants moved for a directed verdict on grounds there was no evidence that established Otis’s exclusive control of the elevator in question. This motion and a motion for new trial were both denied. The only meritorious question on appeal concerns the propriety of the court’s instruction on the doctrine of res ipsa loquitur under the circumstances of this case. There is a split of authority on the propriety of a res ipsa instruction being given in a case of this type. See 64 A.L.R.3d 950 (1975). Florida courts have not ruled on the point.

Florida courts have established three requirements for the application of res ipsa loquitur:

(1) The instrumentality involved was within the exclusive control of the defendant both as to operation and inspection;
(2) The injury was not the result of voluntary action or contributory negligence on the part of the plaintiff; and
(3)The accident would not have occurred had the defendant used due care.

Cortez Roofing, Inc. v. Barolo, Fla.App.2d 1975, 323 So.2d 45, citing Brooks v. Plant, Fla.App. 2d 1974, 296 So.2d 71.

Res ipsa loquitur is applicable where, as here, the defendant manufactures, installs, and maintains an automatic passenger elevator even though the maintenance contract purports to place control or possession in the building owner. The crucial point is the actual control of the elevator system, rather than the contractual agreement. Otis Elevator Co. v. Seale, 5th Cir. 1964, 334 F.2d 928; Mallor v. Wolk Properties, Inc., Sup.Ct.N.Y.1969, 63 Misc. 2d 187, 311 N.Y.S.2d 141; Bond v. Otis Elevator Co., Tex.1965, 388 S.W.2d 681. A different result might be reached where the elevator was manufactured, installed and maintained by different entities. See Bias v. Montgomery Elevator Co., 1975, 216 Kan. 341, 532 P.2d 1053. We reject the principle set forth in Bryan v. Otis Elevator Co., 1968, 2 N.C.App. 593, 163 S.E. 2d 534, which enables an elevator company to avoid application of the doctrine simply because its maintenance contract provides for control of the elevator by its owner.

There was competent medical evidence to support the plaintiff’s testimony of permanent injuries resulting from the accident. The jury returned a verdict of $27,000 for the plaintiff and while the appellants also contend the court erred in failing to grant their motion for a new trial or a remittitur, we have examined these contentions and find them without merit.

Affirmed.

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


author: McCORD, Acting Chief Judge.

text:
    FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF YOUTH SERVICES, Appellant, v. Joseph R. CROWELL, Circuit Judge, Appellee.
    No. X-426.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1976.
    Mary E. Clark, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Robert Woolfork, Asst. Atty. Gen., for appellee.
   McCORD, Acting Chief Judge.

This is an appeal from an order entered by a judge of the Juvenile Division of the Circuit Court of Escambia County on January 15, 1975, and filed on January 20, 1975, directing that each counselor of the Division of Youth Services, having a child under supervision or on probation in a case assigned to Section H of the Court furnish on or before a certain date a list of the juveniles assigned to that counselor, the terms of the juvenile’s probation and the current status of the juvenile as to probation. The order further directs that each counselor on or before the close of business on Friday of each week furnish a report to the judge on each child under his supervision which shall contain advice as to how the child is progressing on probation and whether or not he has violated any of the terms of his probation. The order further directs that commencing at a time specified, the Intake Department of the Division of Youth Services furnish to the Court a list of all juveniles appearing at the Intake Department during the.prior 24-hour period; that the list include a face sheet, the Intake Dispositional Report, and the Juvenile Offense Report and other supporting data. The order directs that this report be furnished each working day thereafter by 9:00 a. m.

Article I, Section 15(b) of the Constitution of Florida provides that, “When authorized by law, a child as therein defined may be charged with a violation of law as an act of delinquency instead of crime and tried without a jury or other requirements applicable to criminal cases.” The legislature has provided for such through Chapters 39 and 959, Florida Statutes, which set out the authority of the court and the authority of the Division of Youth Services in relation to juveniles. These statutes delineate the authority and duties of each and the procedures to be followed in regard to alleged juvenile delinquency and dependency. An analysis of the two foregoing statutes reveals that the court has not been vested by the legislature with general supervisory jurisdiction over the Division of Youth Services in the manner in which such is being exercised by the order appealed from. Nowhere in these statutes do we find that the court has been given general supervisory authority over the day-to-day operations of Division of Youth Services in the administration of the powers and duties conferred upon it. The order appealed from is, therefore, reversed.

MILLS and SMITH, JJ., concur.


text:
    NATIONAL MOTEL CORP., Appellant, v. Richard A. LAREAU d/b/a Lareau Construction Company, Appellee.
    No. AA-287.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1976.
    Ainslee R. Ferdie, Coral Gables, for appellant.
    John Moxley, Ocala, for appellee.
   SMITH, Judge.

This interlocutory appeal from an order denying a motion to dismiss a complaint will be dismissed as being without substantial merit. Rule 4.2, F.A.R. Stockslager v. Daly Aluminum Prod., Inc., 246 So.2d 97 (Fla.1971), permits filing of a suit to enforce a mechanic’s lien under § 713.22(1), F.S.1973, on Monday following expiration of one year on Saturday, when the courts are closed. No similar purpose would be served by excluding Saturday and Sunday from the preceding five-day period which, under § 713.06(3) (d)l, must intervene after filing of the contractor’s affidavit. Because they are matters of affirmative defense, not yet pleaded, we have not considered appellant’s arguments predicated on lack of consideration and the Statute of Frauds.

Dismissed.

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


author: BOARDMAN, Judge.

text:
    Nora MANIS, Appellant, v. Leamon Lee MILLER, Appellee.
    No. 75-969.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1976.
    Louis L. Suprina, Winter Haven, for appellant.
    Alfred J. Ivie, Jr., Winter Haven, for appellee.
    femes E. Thompson of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, and Frank G. Carrington and William K. Lambie, Evanston, Ill., for amicus curiae, Americans for Effective Law Enforcement, Inc.
    E. J. Salcines, State Atty., Tampa, and James H. Gillis, Sp. Counsel, Tallahassee, for amicus curiae, Florida Pros. Attys. Ass’n, Inc.
    Robert L. Shevin, Atty. Gen., and William S. Stevens, III, Asst. Atty. Gen., Tallahassee, for amicus curiae, Dept, of Legal Affairs, Civ. Div., State of Florida.
    John A. Madigan, Jr., and Jack M. Skelding, Jr., of Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee, for ami-cus curiae, Florida Sheriffs Ass’n.
   BOARDMAN, Judge.

This timely appeal is from a final judgment awarding damages in the amount of $3,586 against appellant, Nora Manis, in a cause of action filed against her by appel-lee, Leamon Lee Miller, for false imprisonment based upon appellant’s identification of appellee that resulted in his arrest for armed robbery. We reverse.

The question presented is whether, under Florida law, the court is required to award damages for a plaintiff against a defendant who has made a good faith, honest mistake as to identity of a party in a criminal procedure, said mistake being one of the factors to the plaintiff’s arrest and imprisonment.

Clearly the question posed is one of substantial public interest and great concern. Prompt and effective law enforcement is directly dependent upon the willingness and cooperation of private persons to assist law enforcement officers in bringing those who violate our criminal laws to justice. Unfortunately, too often in the past witnesses and victims of criminal offenses have failed to report crimes to the proper law enforcement agencies. Private citizens should be encouraged to become interested and involved in bringing the perpetrators of crime to justice and not discouraged under apprehension or fear of recrimination.

Our research has not revealed any legal authority, case law or statutory enactment to support the conclusion of law enunciated by the trial court in paragraph 9 of the final judgment. Paragraph 9 states, in pertinent part, as follows:

9. That Florida law requires that the Court award plaintiff compensatory damages for false imprisonment against a defendant who has made a good faith, honest mistake as to the identity of the party in a criminal proceeding, and said mistake was one of the contributing factors to plaintiff’s arrest and imprisonment. . . .

On the other hand, we have found cases holding to the contrary. In Shires v. Cobb, Or. 1975, 534 P.2d 188, 189-190, the Supreme Court of Oregon, confronted with the same public policy issue as presented here, held:

. . . It is the law in this state (and we have found no cases from other jurisdictions to the contrary) that public policy will protect the victim of a crime who, in good faith and without malice, identifies another as the perpetrator of the crime, although that identification may, in fact, be mistaken. As stated in White v. Pacific Tel. & Tel. Co., 162 Or. 270, 281, 90 P.2d 193, 198 (1939):
“ * * * It was the duty of the defendant company and of its officers and employees to use all legal means to apprehend and convict the guilty persons and, in doing so, if they acted with good faith, the law will protect them against an action for damages although the accusation may in fact be unfounded. This rule is founded on grounds of public policy to encourage the exposure of crime and the punishment of criminals. [Citing authority.]”

See, also, Turner v. Mellon, 41 Cal.2d 45, 257 P.2d 15 (1953). The law of the above-cited cases comports with reason and logic and is applicable to this case.

Upon careful review of the record, briefs of the parties and the amicus curiae briefs, we hold that the trial court committed reversible error in finding in its final judgment that Florida law imposes liability for false imprisonment upon a witness making an honest, good faith mistake in identifying a criminal suspect where the identification contributes to arrest and prosecution of the suspect.

The court wishes to express its gratitude and appreciation to the Attorney General of the State of Florida; Americans For Effective Law Enforcement, Inc.; the Florida Sheriffs Association; and the Florida Prosecuting Attorneys Association, Inc. for filing amicus curiae briefs.

The final judgment rendered in favor of appellee is reversed and the cause remanded with directions to the trial court to enter judgment for appellant.

Reversed and remanded.

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


text:
    Abraham ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. V-461.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1976.

      Stephan P. Mickle, Sp. Asst. Public Defender, of Mickle, Harris & Green, Gaines-ville, for appellant.
    Robert L. Shevin, Atty. Gen., and Enoch J. Whitney, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellant was charged by information for the crime of breaking and entering a building with intent to commit a felony, to-wit: grand larceny, and in a second count for grand larceny. He entered a plea of not guilty to both counts and the case proceeded to trial. At the trial appellant was represented by an attorney of his own choice who was and is a leader in his community, an experienced ■ trial lawyer with more than, twenty years of experience in both State and Federal Courts and well known and respected in legal circles. In short, appellant enjoyed at the trial effective representation of counsel.

The jury returned a verdict of guilty on both counts and defendant was sentenced to ten years for breaking and entering and five years for grand larceny, sentences to run consecutively.

Appellant now presents two points for our consideration as the basis of this appeal :

“WHETHER THE COURT ERRED BY ITS REFUSAL TO GRANT A MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE CHAIN OF CUSTODY AND IDENTIFICATION OF THE EVIDENCE WAS NOT PROPERLY ESTABLISHED TO CONNECT THE EVIDENCE TO THE DEFENDANT.
“WHETHER THE COURT ERRED BY ITS REFUSAL TO GRANT DEFENDANT’S MOTION FOR NEW TRIAL BECAUSE EVIDENCE OF A SIMILAR OFFENSE WAS PRESENTED, SUCH EVIDENCE BEING IRRELEVANT TO THE CRIME CHARGES; AND BECAUSE EVEN IF SUCH EVIDENCE WAS RELEVANT IT BECAME SUCH A FEATURE OF THE TRIAL SO AS TO BE EXTREMELY PREJUDICIAL THUS PREVENTING A FAIR AND IMPARTIAL TRIAL.”

Every word of the record on appeal, including the complete transcript of the trial, the briefs filed hereby by appellant and the State have been read and carefully consid-. ered. Nothing will be added to the jurisprudence of this State by a lengthy recitation or summary of the evidence adduced at the trial. Suffice to say, we have carefully considered the evidence in light of the argument presented by appellant’s counsel both at the trial and in the briefs herein, and we fail to find reversible error. Appellant’s counsel, in his briefs, has done an excellent job with that with which he had to work. However, his arguments in support of the points presented are not sustained by the record. We have also looked for fundamental error and find none. It is true that the cold record reflects commissions and omissions by appellant’s trial counsel which may retrospectively be criticized as errors. However, a careful reading of the record reflects that such were intentionally planned trial tactics which is the prerogative (indeed the duty) of experienced trial counsel.

In summary, our examination of the record reveals that the chain of custody and identification of the physical evidence which was introduced at the trial was sufficient, that such evidence was properly admitted and that the testimony did in fact connect the physical evidence, being the fruits of the robbery, to the defendant. Further, the record revealed that the evidence of another offense, to-wit: another robbery, on the same day and in the same area as the robbery for which appellant was being tried and was ultimately convicted, was admitted without obj ection; and even if there had been objection the evidence was properly admitted because it corroborated the testimony of appellant’s accomplice by establishing appellant’s presence (denied by him) in the area at the time of the robbery and it corroborated the testimony of other witnesses relative to disposition by appellant of the fruits of the robbery for which he was charged.

Appellant now argues that a greater number of pages of the transcript is devoted to testimony relative to the “other robbery” than is devoted to testimony relative to the robbery for which appellant was convicted. He fails to recognize, however, that a substantial portion of that testimony was adduced by appellant’s own counsel on cross examination.

Finding that the record reveals that appellant received a fair and impartial trial free of reversible or fundamental error, we affirm.

RAWLS and McCORD, JJ., concur.


text:
    Joan Elaine SCHEMPP and Margaret M. Schempp, Individually and as trustee of the property of Wilbur Albert Schempp, Appellants, v. Wilbur Albert SCHEMPP, Appellee.
    No. Z-19.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1976.
    Rehearing Denied March 9, 1976.
    Louis Ossinsky, Jr., of Ossinsky & Krol, Daytona Beach, for appellants.
    Burke D. Chester, Daytona Beach, for appellee.
   PER CURIAM.

Having considered the record, briefs and oral arguments of the attorneys for the respective parties and finding no error in the entry of partial summary judgment from which this appeal is taken, the interlocutory appeal is dismissed.

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


author: SCHEB, Judge. McNULTY, Chief Judge

text:
    LAKE PARKER MALL, INC., and Utica Mutual Insurance Company, Appellants, v. Laurenne A. CARSON, as Administratrix of the Estate of Dennis J. Carson, Deceased, Appellee.
    No. 74-1372.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1976.

      John I. Van Voris, of Shackleford, Far-rior, Stallings & Evans, Tampa, for appellants.
    Larry S. Stewart and Ira H. Leesfield, of Frates, Floyd, Pearson, Stewart, Proen-za & Richman, Miami, for appellee.
   SCHEB, Judge.

The appellants were defendants below and appeal a judgment entered against them upon a jury verdict in favor of the plaintiff/appellee in a wrongful death action.

The issues we address here are:

(1) Whether the standard of care imposed on a shopping center which maintains a master switchboard to meter electricity to its tenants is equated with that of an electric utility; and
(2) Whether the shopping center’s failure to maintain a required disconnect switch in operable condition was the proximate cause of an explosion resulting in the death of plaintiff’s decedent.

Carson, plaintiff’s decedent, was a vocational student working during the summer as an electrician’s helper for M & M Electric Co. He died on October 16, 1972, as a result of injuries resulting from a tragic explosion at the electrical switchboard at Lake Parker Shopping Mall in Lakeland where he was installing an electric meter on the preceding August 22nd.

The City of Lakeland furnishes electrical energy to the Mall, a large shopping center which maintains a switchboard containing numerous electrical meters, all owned by the City but installed there by Mall and used for the purpose of measuring electricity consumed by each of its tenants. The tenants are billed directly by the City for electrical energy. Carson’s employer, M & M, was an independent licensed electrical contractor which the Mall hired to install meters and connect electrical service to its tenants. At the time of the accident, Carson, Boek and their supervisor, Ritter, all employees of M & M, were installing a meter to connect electricity to a new tenant. This involved plugging the meter into the switchboard. This is a technical operation, but is similar to plugging an electrical cord into a wall socket. A main disconnect switch called a “Pringle” switch is attached to the electrical switchboard. This is a safety feature required by Fla. Stat. Ch. 553, which adopts the National Electrical Code as setting minimal standards in this field and provides for local enforcement of such standards. If operative, you can throw the switch and effectively disconnect the current which otherwise would flow through the board to the various outlets in the shopping center complex. At the time of the accident this Pringle switch had been defective for about eight months. Watkins, manager of the Mall, was well aware of this and had made several attempts to obtain repairs. Ironically, on the day of the accident a manufacturer’s representative was present to attempt to repair it.

The gravamen of the plaintiff’s cause of action was: First, negligence of the defendant shopping mall in its failure to maintain its electrical facilities in the standard of care required by law, specifically Watkins’ alleged negligence in failing to have the switch repaired in a timely manner ; and second, failure to warn the plaintiff’s decedent of that condition.

To sustain any cause of action predicated on negligence, it is fundamental that the plaintiff must establish:

(1) Existence of a duty on the part of the defendant to protect the plaintiff from the injury or damage of which he complains;
(2) Failure of the defendant to perform that duty; and
(3) Injury or damage to the plaintiff proximately caused by such failure.

See 23 Fla.Jur., Negligence, § 9; Tims v. Orange State Oil Co., Fla.App.2nd, 1964, 161 So.2d 844.

One who hires an independent contractor is not ordinarily liable for injuries sustained by that contractor’s employees in their work. Florida Pub. Co. v. Lourcey, 1940, 141 Fla. 767, 193 So. 847. There is a duty to warn employees of an independent contractor of potential danger when the owner has actual or constructive knowledge of a dangerous condition of his premises. Somers v. Meyers, Fla.App.1st, 1965, 171 So.2d 598. However, it is generally held that the duty is satisfied by notice to the contractor or supervisory personnel. See Fla. Power & Light Co. v. Robinson, Fla.1953, 68 So.2d 406, which quoted approvingly from Storm v. New York Tel. Co., 1936, 270 N.Y. 103, 200 N.E. 659. See also, Gulf Oil Corp. v. Bivins, 5th Cir. 1960, 276 F.2d 753; Crawford Johnson & Co. v. Duffner, 1966, 279 Ala. 678, 189 So. 2d 474; Levesque v. Fraser Paper Limited, 1963, 159 Me. 131, 189 A.2d 375; Hunt v. Laclede Gas Co., Mo.1966, 406 S.W.2d 33; Grace v. Henry Disston & Sons, 1952, 369 Pa. 265, 85 A.2d 118; Citizen’s Utility Inc. v. Livingston, 1973, 21 Ariz.App. 48, 515 P.2d 345.

There was considerable evidence to show Carson knew of the defective Pringle switch and that the switchboard was “hot” at the time of the accident. In fact, the lights in the room where he was working remained on while the work was progressing. If the switch had been operative and the power in the board had been shut off, the lights would have gone off also since the switch controlled the electricity flowing into the entire building. The plaintiff, nevertheless, suggests the jury could have inferred from other testimony that Carson had not been properly notified of the defective switch and did not know the board was energized. Even assuming this, ar-guendo, the Mall had discharged the ordinary legal duty on the part of a landowner since there was undisputed evidence that the principals of M & M had been notified. In fact, Maze, one of the principals in M & M learned of this malfunction several weeks prior to the accident. Ritter, who was supervising the operation at the time of the accident testified that he was knowledgeable about the defective switch. Moreover, meters had been installed previously on the same switchboard by M & M despite their awareness of the defective switch.

Here, however, the plaintiff contends the Mall which maintained its own electrical switchboard did not discharge its legal duties since it was obligated to exercise the highest degree of care to Carson, notwithstanding, he was an employee of an independent contractor. The plaintiff relies principally on Orr v. U. S., 5th Cir. 1973, 486 F.2d 270, which in applying Florida law held that because the United States owned power lines and poles and controlled the distribution of electrical current, it owed a nondelegable high degree of care to employees of an independent contractor working on these facilities. The court there emphasized the high degree of care was necessitated by the danger of high voltage electricity and held the United States liable for having allowed wires to remain in a dangerous condition and having made no attempt to warn the plaintiff employee of an independent contractor of the danger involved in working on the particular pole where he was injured. The plaintiff here analogizes Orr to the situation at the shopping mall and justifies this higher standard of care being imposed on the defendant on grounds that the Mall was in reality a redistribution center for electrical energy which it was supplying to its tenants.

If the standard advocated by the plaintiff is imposed upon the defendant, then, of course, the Mall could become liable also for any negligence of M & M as an independent contractor if M & M failed to make its employees aware of a known danger. More importantly, the defendant might then be held responsible for even permitting Carson to perform work on its switchboard without the necessary disconnect switch being operable. This is true because in that posture the Mall would be held to the same standard of care as an electrical utility and could be charged with certain nondelegable duties. See Fla. Power & Light Co. v. Price, Fla.1964, 170 So.2d 293, wherein the defendant power company was held not liable for the negligence of an employee of its independent contractor Harlan Electric, the court holding, however, that a power company could be held legally responsible to such an employee had there been any evidence of negligence on its part.

The defendant, on the other hand, contends it is held only to the ordinary standard of care. It argues it met this standard when it made M & M knowledgeable about the defective Pringle switch and did nothing further which could have induced the plaintiff’s decedent to believe the Mall’s switchboard had been deenergized. Defendants place reliance on Quinnelly v. Southern Maid Syrup Co., Inc., Fla.App. 2nd, 1964, 164 So.2d 240, which held a complaint by an employee of an independent contractor ' against a landowner did not state a cause of action for injuries sustained while he was working on a construction site near a truck crane where that crane’s boom struck high voltage wires.

We do not think the shopping mall is sufficiently within the ambit of the Orr principle to hold it to the standard contended since the Mall was not actually a generator or bulk seller of electricity. If the Mall fell into these categories, we could presume a degree of expertise in the field of electricity on its part that is difficult to presume here. Many businesses, including small and large shopping centers, apartment houses and mobile home parks have master switchboards installed for the purpose of metering each tenant’s consumption of electricity, but the electricity they consume is usually supplied by and billed by a utility. Should they, too, be held to the standard advocated by the plaintiff? Surely, when work is required involving their switchboards, including meter changes, these businesses, like the defendant shopping mall in this case, expect to rely on licensed electrical contractors. It is inconceivable to us that the Mall should then become liable to the employees of the very expert contractor it relied upon when the contractor had been completely aware of the dangerous condition but nevertheless elected to proceed.

A second and independent ground for reversal, in our judgment, is the plaintiff’s failure to establish that the Mali’s alleged negligence of failing to maintain a Pringle switch in operative condition was the proximate cause of Carson’s injuries and resultant death. The trial judge recognized this problem in denying the plaintiff’s post trial motion when he stated:

A second point raised by the facts and urged by the defendants is that the legal causation of the electrical explosion which injured and caused the death of the decedent was not established by the evidence. While it was shown that the main disconnect switch did not function, there is no direct evidence to connect that defect with the explosion. While the Court concedes this argument, it does appear to the Court that the jury could have believed from the evidence either that the switch could have been thrown to accommodate the workmen, including the decedent, and shut off the power to the board or that the switch mechanism, which included safety device, would have avoided the explosion had those devices functioned properly. (Emphasis supplied)

To establish the required element of proximate cause in a negligence action, there must be evidence of such a direct and continuous sequence of events flowing between the negligent act and the injury complained of that it can be reasonably said the resulting injury was the natural and probable cause of the defendant’s negligent act. Tennessee Corp. v. Lamb Bros. Const. Co., Fla.App.2nd 1972, 265 So.2d 533. The evidence here falls short of meeting that requirement. Even if we were to presume the standard of care contended by the plaintiff, negligence on the part of an electric power company cannot be proximate cause of an injury unless from all the circumstances the injury might have been reasonably foreseen by persons of ordinary intelligence and prudence. Simon v. Tampa Electric Co., Fla. App.2nd, 1967, 202 So.2d 209. It follows therefore, that unless, as a result of the defendants’ alleged negligence of failing to maintain the required disconnect switch, the accident was reasonably foreseeable, there is no basis for holding a party, even a negligent one, liable.

The plaintiff attempted to establish that the defective Pringle switch constituted proximate cause through testimony of its expert, Gentili. He testified that as a general rule you should deenergize the board when working on it unless that is not possible. But he stated that if you are only inserting a meter, it is not necessary to deenergize it. Such testimony could hardly be said to furnish a basis for the jury to have found the defective Pringle switch to be the proximate cause of the accident. There was never any direct testimony to show the defective switch caused the explosion; in fact, no cause was ever established. At the conclusion of the plaintiff’s case when the defendants moved for a directed verdict, the trial court reserved ruling and the defendants presented their case. In our review of the ruling denying such motion, we properly consider all the evidence in the case. 6551 Collins Ave. Corp. v. Millen, Fla.1958, 104 So.2d 337.

During the defendants’ case, Maze of M & M testified the switchboard should be deenergized, if possible, while work was being performed. Ritter, Carson’s immediate supervisor who was present at the accident, testified he would have thrown the switch if it had worked. He did not, however, have the power cut off from the outside even though he knew this was possible. Neither Maze nor Ritter testified that there was any foreseeable danger in plugging a meter into a “hot” board, except that normally incident to working with electricity; and while the accident probably would not have occurred “but for” the hot board, it was nowhere shown that the defective Pringle switch was the reason the board was “hot” nor, in turn, was it indeed shown that the “hot” board caused the explosion. This state of facts points up the inadequacy of the “but for” test of proximate causation; and we find no rational basis in the evidence to support a conclusion that the explosion was a “reasonably foreseeable” consequence of the “defective” Pringle switch any more than it would have been if the switch was in perfect working order but not turned off —a practice not unusual, as agreed by all the experts, particularly when simply installing meters.

Holding as we do that the trial court erred in not granting the defendant’s motion for a directed verdict, it is unnecessary to address the defendants’ remaining points on appeal concerning damages or the points on the plaintiff’s cross-appeal addressed to that same subject.

Reversed.

GRIMES, J., concurs.

McNULTY, C. J., concurs specially.

McNULTY, Chief Judge

(concurring specially).

I must comment on my concurrence with the conclusions of the majority.

I am not prepared to say at this time that this case does not fall within the ambit of Orr v. United States (5th Cir. 1973), 486 F.2d 270. I would be inclined to think it does. It is the control and/or distribution of extraordinarily high voltage electrical current which gives rise to the high degree of care imposed on one who would undertake to handle or use highly dangerous commodities or instrumentalities; and it matters not whether he also manufactures it nor, indeed, whether he handles or distributes it for a profit.

In any case, we need not reach that question since, in my view, even if there were the high duty imposed on appellants as required by Orr, supra, I would agree with the majority that there is no evidence to support a nexus between the defective “Pringle” switch and the explosion which resulted in the tragic death of Dennis Carson.


text:
    POLYCOAT CORPORATION, a Florida Corporation, Appellant, v. CITY NATIONAL BANK OF MIAMI, a National Banking Association, and Somerset Development Corp. of America, et al., Appellees.
    No. 75-1596.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1976.

      Stanley H. Spieler and Moie J. L. Ten-drich, of Spieler & Tendrich, P. A., Miami, for appellant.
    Manuel M. Garcia, Tampa, and Joel D. Kopelman of Abrams, Anton, Robbins, Ris-nick & Schneider, P. A., Hollywood, for appellee — City National Bank of Miami.
   PER CURIAM.

This case comes before us on behalf of the appellant/mechanic lienholder’s objecting to the court below appointing a receiver ex parte and allowing said receiver to serve by filing a letter of credit in lieu of bond. Without going into the facts which is unnecessary at this juncture of the proceedings, we find the appeal of an order appointing a receiver has merit for the following reasons. First, the motion or complaint fails to state sufficient verified allegations or the necessary pleading predicate to entitle appellee to the relief requested. Second, no testimony was taken supporting the appointment of a receiver. Third, notice of hearing on said motion for the appointment of a receiver should have been given appellant since there were no extreme circumstances of irreparable damage.

Accordingly, the order appointing a receiver is hereby reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.

WALDEN, C. J., DOWNEY, J., and SCHULZ, GEORGE E., Associate Judge, concur.


text:
    William C. YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 75-596.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1976.

      James A. Gardner, Public Defender, Sarasota, and William A. Dooley, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgments and sentences are affirmed. We do not pass upon the contention that because the court did not advise appellant of the maximum sentence he could receive, his plea of nolo contendere was not voluntarily made with the full understanding of its significance. See Wade v. Wainwright, 5th Cir. 1969, 420 F.2d 898. A factual basis for the appellant’s plea was established. The trial judge conducted a colloquy sufficient to demonstrate a waiver of appellant’s right to trial by jury and other attendant rights and to convince the court that the appellant’s plea was voluntarily and intelligently entered. Notwithstanding the failure of the record to indicate the appellant was apprised of the maximum sentence for the crime he pled to, the record otherwise establishes the appellant understood the consequence of his plea. Since this is a direct appeal rather than an appeal from the denial of a motion for post-conviction relief, and there is no showing that appellant did not know the maximum sentence and no prejudice has been demonstrated, we do not need to reach the point raised by appellant. See Williams v. State, Fla.1975, 316 So.2d 267.

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


author: MILLS, Judge.

text:
    DIVISION OF FAMILY SERVICES, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, Appellant, v. In the Interest of J. F., a child, Appellee.
    No. X-6.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1976.

      Eva Dunkerley Peck, Chester G. Senf and Duane N. Ivester, Jacksonville, for appellant.
    John J. Kearns, Asst. Public Defender, Gainesville, for appellee.
   MILLS, Judge.

The Division of Family Services appeals from two orders of the Juvenile Division of the Circuit Court of Alachua County which adjudicated a child to be a dependent child, and committed the child to the custody of the Division for placement in Hacienda Girls Ranch at the expense of the Division. Although several issues are raised, the controlling issue is whether a juvenile court may adjudicate a child to be a dependent child where no petition is filed nor notice of a dependency hearing given to the Division of Family Services.

The child pled guilty to a delinquent act. The Court withheld adjudication and placed her on probation under the supervision of the Division of Youth Services. While in the custody of her parents she ran away from home and was charged with violation of her probation. The child pled guilty to violation of probation and was adjudged to be a delinquent child. Disposition of the case was continued pending receipt of a social investigation and recommendation by the Division of Family Services. At the dispositional hearing, the child was adjudged to be a dependent child, although neither written petition nor notice was given to the Division of Family Services, and no evidence of dependency was presented.

Section 39.05(2), Florida Statutes, provides that:

“(2) All proceedings seeking an adjudication that a child is dependent shall be initiated by the filing of a petition by the state attorney, an authorized agent of the division of [family] services, or any other person who has knowledge of the facts alleged or is informed of them and believes that they are true.”

Section 39.05(3), Florida Statutes, provides that:

“(3) The petition shall be in writing and shall be signed by the petitioner under oath stating his good faith in filing the petition . . . .”

Before a child can be adjudicated to be a dependent child, a written petition must be filed. In addition, the Division of Family Services must be given notice and an opportunity to be present at the hearing.

The Court erred in the rendition of the orders before us, not only for the above reasons, but because the only issue before it at the dispositional hearing was the disposition of its delinquency adjudication.

The orders are reversed and this case is remanded for disposition of the delinquency adjudication of the child.

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


author: GUIDRY, Judge.

text:
    George W. PRATHER, Plaintiff-Appellee, v. John VALIEN, Defendant-Appellant.
    No. 5306.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearing Denied March 4, 1976.
    Writ Refused April 27, 1976.

      White & Pitre by Joshua Pitre, Opelous-as, for defendant-appellant.
    Davidson, Meaux, Onebane & Donohoe by Robert L. Cabes, Lafayette, for plaintiff-appellee.
    Before HOOD, GUIDRY and PETERS, JJ-
   GUIDRY, Judge.

This is a boundary action. The plaintiff-appellee, Dr. George W. Prather, instituted this suit against John Valien, defendant-appellant, to have the boundary between their adjacent tracts judicially established. The tracts of land involved are located near the City of Opelousas in the Parish of St. Landry. Following institution of suit the Court appointed Morgan J. Goudeau Jr., a civil engineer and surveyor, to conduct a survey of both tracts and to report thereon. The defendant answered and filed exceptions of no cause or right of action and exceptions of prescription of 10 and 20 years under R.C.C. Articles 853 and 3478. The trial court overruled the exception of no cause or right of action and referred the exceptions of prescription to the merits.

Although, Morgan J. Goudeau Jr. was the court-appointed surveyor, the actual survey and report to the court was made by one of his associates, a Mr. William H. Jarrell Jr. Neither plaintiff nor defendant objected to the substitution of Mr. Jarrell for Mr. Goudeau.

After trial on the merits the lower court found for the plaintiff and against the defendant, overruling the pleas of prescription of 10 and 20 years under R.C.C. Article 853, as well as the exception of 10 year prescription under Article 3478 and fixed the boundary between the properties of the parties at its ideal location, i. e., the line represented on the official survey of Mr. Jarrell between the points “C” and “D”, copy of which is attached to this opinion. We affirm.

Plaintiff and defendant trace their record title to the tracts of land respectively owned by them to a common ancestor, Ed. Lucius Stelly Sr.

By deed dated July 21, 1943 Ed. Lucius Stelly Sr. acquired from Eli Landry a tract of land said to contain 18.32 acres. This 18.32 acre tract was surveyed previous to Mr. Stelly’s acquisition by one R. M. Hollier as evidenced by a plat of survey dated December 9, 1929. Following his acquisition of this tract and by deed dated December 19, 1946 Stelly conveyed to John Valien, defendant-appellant, the following described property:

A certain tract or parcel of land situated about two miles southeast of the City of Opelousas, Parish of St. Landry, containing eight and no/100 (8.00) acres, together with all buildings and improvements located thereon, located in sections 105 and 106, township six south, range four east (T-6-S, R-4-E), and being further designated as being taken out of the northern part of a larger irregular tract of land fully described as property of Eli Landry on a plat of survey annexed to and made part of original entry no. 186556 of record in Conveyance Book Z-6 page 25 in the following manner, to-wit: By commencing at a point which point is formed by intersection of the western boundary line of the larger irregular tract and the southern boundary line of the tract owned by John Valien and proceeding in a southerly direction a distance of five hundred twenty-five and no/100 (525') feet, thence in an easternly direction a distance of six hundred seventy-five and no/100 (675') feet, thence in a northernly direction a distance of five hundred twenty-five feet (525'), thence in a westernly direction a distance of two hundred feet (200'), back to the point of beginning and being bounded on the north by other property of John Valien, on the south by property of vendor, east by property of Mary Newman and west by property of Alpha Mouton and Herman Myles. A sketch of the property herein conveyed is annexed to this sale and the portion outlined in red represents the tract sold in this transaction. Being the same property or part of the same property that vendor herein acquired from Eli Landry on July 23, 1943 under original entry No. 217382 in Conveyance Book 0-7 page 153 of the files of the recorder’s office of St. Landry Parish, Louisiana.

After the sale to Valien and on July 1, 1947 the balance of the tract originally acquired from Eli Landry was sold to Elizabeth Stelly Collins under the following description:

A certain tract of land, irregular in shape together with all the buildings and improvements thereon, and all the rights, ways and appurtenances thereunto belonging, situated about two miles southeast of the City of Opelousas, in the Parish of St. Landry, La., containing Ten & 32/100 (10.32) acres, more or less, situated in Sections One Hundred, five (105) and One Hundred Six (106), Township Six (6) South, Range Four (4) East, and being the southern ten & 32/100 acres, more or less, of the southern irregular portion of the property shown in the plat of survey made by Gerald L. Walter, surveyor, which plat is annexed to and made a part of the deed from Eli Landry to John Valien, dated November 13, 1939, and recorded as No. 186556 in Conv. Book Z-6 at page 25 of the Recorder’s Office of the Parish of St. Landry of St. Landry, La.
This is a portion of the eighteen & 32/100 (18.32) acres, more or less, acquired by Ed. Lucius Stelly, Sr., from Eli Landry on July 21, 1943, by deed recorded as No. 217382 in Conv. Book 0-7 at page 153 of said Recorder’s Office, and has present boundaries as follows: North by a tract of eight (8) acres (being, the northern eight (8) acres of the aforesaid acquisition of Ed. Lucius Stelly, Sr.) sold by Ed. Lucius Stelly, Sr. to John Valien, the present owner on December 19, 1946, by deed recorded as No. 240676 in Conv. Book 1-8 at page 499 of said Recorder’s Office; South, Southwest and West by property of Herman Myles; East by property formerly belonging to Mary Newman, but now owned by Lucius Thomas.

Title to this latter tract then passed under the above description from Mrs. Collins to Cleveland Castille, to Rigby Owen, and finally to George W. Prather, plaintiff-appellee. The sale to Dr. Prather is dated December 23, 1950.

After his purchase in 1946, defendant erected a fence between his property and the remainder of the property of his vendor situated south of his acquisition. At the time Mr. Valien erected his fence Mr. and Mrs. Napoleon Collins were living on the other tract owned by Mr. Stelly. As previously indicated subsequent to the erection of the fence Mrs. Collins acquired the tract, which the plaintiff now owns.

Mr. Jarrell, the court appointed surveyor, testified that Ed. Lucius Stelly’s original tract contains only 14.7951 acres which is 3.5249 short of the described 18.32 acres. The sale from Stelly to the defendant, Valien, describes the tract sold as having dimensions of 525' on the East and West boundary, 675' on the South and 200' on the North boundary. Accordingly Mr. Jarrell determined that based on these dimensions, Mr. Valien would have 4.7151 acres in his tract (See attached plat, indicated as area “A”). Using the fence as the southern boundary (indicated as line “A-B” on plat) of defendant’s property the surveyor indicated he would be in possession of 9.076 acres. Under this latter determination (“A-B” as the boundary line) Dr. Prather would be in possession of 5.7185 acres, which is 4.6015 acres short the plaintiff’s described area of 10.32 acres. Jarrell testified that he could not account for the dif''rence in acreage found by his survey and that found by Mr. Hollier, since marks used by him on three (3) sides of the property corresponded almost perfectly to the previous survey, however, Mr. Jar-rell added that it was not unusual to find the acreage call at variance with the dimensions of the property given. of

Defendant contends that he is entitled to the eight acres recited in his deed. We agree with the trial court’s finding he is not entitled to eight (8) acres in that the property conveyed to Valien was described by metes and bounds, and such dimensions control over an acreage designation. (Basco v. Moorehead, 164 So.2d 599 (La.App. 3rd Cir. 1964). It is well settled in our jurisprudence that the identification of land by acreage or quantity is the lowest ranking of all enumerated standards in describing property. Blevins v. Manufacturing Record Publishing Co., 235 La. 708, 105 So.2d 392 (1957). The land conveyed to John Valien contained both an acreage call, and a metes and bounds description. Clearly the metes and bounds description is superior and controlling and defendant, Valien is only entitled to the property located within that measure, that is the 4.6 acres as determined by the court appointed surveyor. In addition the plat of the property which is attached to the Valien deed specifically sets out the property dimensions without any reference to acreage, and where there is an error or ambiguity with regard to a description in a deed, an attached map relating to the ambiguity or error will control. Eves v. The Morgan City Fund and Shell Oil Co., 252 So.2d 770 (La.App. 1st Cir. 1971).

The trial court held that defendant’s plea of prescription based on C.C. Article 853 was without merit. .We agree. Prior to the filing of this suit there had been no determination by a surveyor, judicially or extra judicially, of the boundary between the two tracts of land owned by the plaintiff and defendant respectively. The evidence indicates that Mr. and Mrs. Collins consented to the defendant’s erection of the fence, but at that time Mr. and Mrs. Collins were only living on the adjacent tract, they were not the record owners of the property. The record owner of the property at the time the fence was erected was Mr. Stelly and the trial court found that there was no agreement as to boundary between defendant and Mr. Stelly. The record clearly supports this finding.

It is true that after the erection of the fence by Mr. Valien, Mrs. Collins purchased the adjacent property upon which she had been living. Thus, Mr. and Mrs. Collins may be said to have actively acquiesced in the location of the boundary; however, this acquiescence by the Collins’ during their short period of ownership, viz: July 7, 1947 to October 20, 1948 cannot serve to bind the successors in title of Elizabeth Stelly Collins.

The law does not permit the fixing of boundaries by an oral agreement except as between the parties themselves (Blevins v. Manufacturing Record Publishing Co., supra; Boudreaux v. Shadyside Company, La.App., 111 So.2d 891) and therefore the plaintiff is unaffected by any unwritten or unrecorded claim or equity. As stated in Boudreaux v. Shadyside, supra:

“Where third parties subsequently purchasing are concerned, a boundary is fixed according to their recorded titles and not according to a differing intention on the part of their ancestors in title at the time that the separate estates were created, Hunter v. Forrest, 183 La. 434, 164 So. 163 ...”
Civil Code Article 853 provides:
“If the boundaries have been fixed according to a common title, or according to different titles, and the surveyor had committed an error in his measure, it can always be rectified, unless the part of the land on which the error was committed, be acquired by an adverse possession of ten years, if the parties are present, and twenty years, if absent.”

In the recent case of Huval v. Dupuis, 302 So.2d 636 (La.App., 3rd Cir. 1974) this court set forth the several lines of cases interpreting this article. The court stated:

“Three separate lines of cases have interpreted this article. According to the first, the ten year prescription applies in instances where there has been no prior survey, but there have been visible boundaries placed there by consent of the parties and actively acquiesced in for many years. Morris v. Prutsman, 7 La.App. 404 (La.App. 1 Cir. 1928), and dictum in Opdenwyer v. Brown, 155 La. 617, 99 So. 482 (1924). According to the second line of cases, the ten year prescrip-' tion applies in instances where the lines have been fixed by survey even though the survey does not comply with C.C. art. 833 formalities, provided the parties actively acquiesce in the surveyed boundary for the requisite period. LaCalle v. Chapman, 174 So.2d 668 (La.App. 3 Cir. 1965), and suggested in Sessum v. Hemperley, 223 La. 444, 96 So.2d 832 (1957). Finally, it has been held that the ten year prescription applies only where the lines are fixed following a survey conducted pursuant to all formalities provided by C.C. art. 833. Harvey v. Havard, 225 So.2d 615 (La.App. 1 Cir. 1969).
All these cases agree that regardless of the manner or method by which the lines are established, the ten year prescriptive period is not applied unless it be shown that the adjacent landowners have actively acquiesced in the location of the boundary. Blanchard v. Monrose, 12 La.App. 503, 125 So. 891 (1 Cir. 1930); Harvey v. Havard, supra; Opdenwyer v. Brown, supra; Sessum v. Hemperly, supra; and LaCalle v. Chapman, supra.

In the present case it makes no difference which of these constructions is correct. Here, there has been neither formal survey nor extrajudicial survey to which both plaintiff and defendant agreed, nor has there been shown any mutual consent to or active acquiescence by plaintiff in the fence constructed by defendant. The mere passive failure by plaintiff and his ancestors in title to object to the location of this fence cannot form the basis for ten year prescription under C.C. Art. 853. (Huval v. Dupuis, supra).

Accordingly we conclude that the defendant’s plea of prescription under C.C. Art. 853 must fall.

Defendant’s plea of acquisitive prescription of ten years under C.C. Art. 3478 et seq. likewise, is without merit. The trial judge in his Reasons for Judgment correctly stated:

“Although defendant has possessed the property in question since 1946, his plea of acquisitive prescription of ten years must fall. The jurisprudence is clear that one may not acquire by prescription of ten years property beyond his record title. See, Blevins v. Manufacturers Record Publishing Co. [235 La. 708,], 105 So.2d 392. In the case under consideration, defendant cannot, in the face of the jurisprudence which holds a description by metes and bounds superior to acreage designation be found to have a deed translative of title to the acreage in contest, instead, for the purposes of ten year acquisitive prescription under LSA, R.S. 3478, the distances recited in his deed and the plat attached thereto must be consulted and prevail over the acreage designated.”

We agree with the trial court’s finding that the plea of ten years acquisitive prescription is not applicable to property not embraced within the deed upon which the plea of prescription is founded.

For the reasons assigned the judgment appealed from is affirmed. All cost of this appeal are assessed against defendant-appellant.


author: SAMUEL, Judge. BEER, Judge

text:
    Albert Joseph COUSIN v. Sally Fuerst, wife of Albert Joseph COUSIN.
    No. 7020.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Robert J. Klees- and Oliver S. Delery, New Orleans, for plaintiff-appellee.
    Garon, Brener & McNeely, Trudy H. Oppenheim, New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and BEER, JJ.
   SAMUEL, Judge.

This is an action by Albert Joseph Cousin seeking a judgment of separation from his wife, Sally Fuerst Cousin, on the grounds of abandonment. Defendant answered, denying plaintiff’s abandonment allegations, and reconvened for a separation in her favor on the grounds of abandonment and cruel treatment.

After trial on the merits, judgment was rendered dismissing both plaintiff’s suit and defendant’s reconventional demand. Defendant has appealed and plaintiff has answered the appeal seeking a judgment of separation in his favor.

Plaintiff admitted he left the matrimonial domicile on February 20, 1974. The next day he was presented with a letter from an attorney acting on defendant’s behalf demanding, among other things, he refrain from entering the matrimonial domicile. Plaintiff testified he nevertheless attempted to return to the matrimonial domicile on several occasions, but his attempts were thwarted by the defendant who locked him out. Defendant denied plaintiff evér attempted to return to the matrimonial domicile.

The trial judge found plaintiff had abandoned defendant pursuant to Article 138(5) of the Louisiana Civil Code, but his exhibition of an intention to return to live with his spouse precluded her obtaining a judgment of separation against him.

The testimony offered by the parties with regard to plaintiff’s intention to return to the matrimonial domicile is conflicting and, particularly in view of the letter from defendant’s attorney, we agree with the trial court’s finding that plaintiff did attempt to return to live with his wife.

Defendant testified regarding various instances of cruel treatment by plaintiff. She testified her husband told her he did not love her and she was fat and ugly. There is evidence that shortly before the alleged abandonment plaintiff told his wife and a next-door neighbor (who admitted she was old and curious) that he no longer wanted to live with defendant and that if she did not leave him, he would leave her. Other instances of alleged cruelty were related as inattention by plaintiff toward defendant in front of relatives and in-laws on a social visit to a local race track, belittling and uncomplementary remarks about defendant, such as criticism of her ability to cook, and absence of sexual intercourse between plaintiff and defendant for approximately four months prior to the abandonment.

Plaintiff, on the other hand, testified the defendant did not cook for him, did not maintain the household in a clean and orderly fashion, and provoked arguments with him. It is needless to say the facts in question are essentially denied by each side.

The trial court concluded that both parties were mutually at fault in causing the separation and neither was entitled to a judgment of separation. We concur in this finding. The evidence shows rather clearly the relationship between the parties deteriorated steadily from the inception of their marriage and establishes the type of fault on the part of each party representative of such a degenerating condition. There is an absence of a preponderance of fault on the part of one party sufficient to justify a judgment of separation in favor of the other.

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

Affirmed.

BEER, Judge

(concurs).

I concur in the result, agreeing that the majority has correctly stated the issues, the current law to be applied, and the result that must be reached.

Yet, I seriously question the wisdom of requiring adjudication of “fault” in this type of domestic impasse. The record makes it clear that the interests of both litigants will be best served by their being separated. Yet the separation which will serve both of them best (and which is obviously in existence for all practical intents and purposes) must be judicially withheld.

I question the social, moral or practical usefulness of a procedure which requires husbands and wives to resort to the judicial process for a measured determination of which spouse has been more or less cruel.

It would, I believe, make far more sense —and result in less disillusionment, frustration and judicial guesswork if abandonment — without any implication of fault on either party — was rebuttably presumed, simply for the purpose of adjudicating separation, after either spouse had intentionally and calculatedly removed himself (or herself) from the matrimonial domicile and remained away for longer than a reasonable “cooling off” period.

Leaving these litigants to stew in their own juices because of “mutuality of fault” signals a need for legislative action to deal with a matter of growing concern in our ever changing society.

      . See Civil Code Article 143, which provides: “Separation grounded on abandonment by one of the parties can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refused to return to live with the other, and when such refusal is made to appear in the manner hereafter directed; provided, however, that separation grounded on abandonment may be the object of a reconventional demand in any suit for separation from bed and board.” LSA-C.C. Art. 143.

      . See Sciortino v. Sciortino, La.App., 188 So.2d 224.


author: GULOTTA, Judge.

text:
    Albert Joseph COUSIN v. Sally Fuerst, wife of Albert Joseph COUSIN.
    No. 7238.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Robert J. Klees, Oliver S. Delery, New Orleans, for plaintiff-appellee.
    Garon, Brener & McNeely, Trudy H. Oppenheim, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and BEER, JJ.
   GULOTTA, Judge.

The sole issue with which we are confronted is whether alimony pendente lite continues in effect pending the wife’s sus-pensive appeal, answered by the husband, from the trial court’s dismissal of petition and reconventional demand for separation from bed and board.

Plaintiff filed suit for separation on the grounds of abandonment. Wife reconvened on the grounds of cruelty and abandonment. On April 17, 1974, alimony pen-dente lite was awarded to the wife in the sum of $200.00 per month. On December 3, 1974, the petition and reconventional demands were dismissed. Defendant-wife filed á suspensive appeal on December 31, 1974. Plaintiff answered the appeal on May 21, 1975. No payment of alimony pendente lite was made by the husband from December, 1974 to April 23, 1975, when a rule for past due alimony and contempt was heard. The stipulated arrearage at the time of the hearing of the rule (April 23, 1975) was $1,000.00. On May 21, 1975, the rule for contempt and past due alimony was dismissed. It is this dismissal which is before us on appeal.

Plaintiff-in-rule, wife, contends that as long as the separation suit is pending and the judgment has not become final, alimony continues to accrue. According to the wife, the judgment of the district court dismissing both suits is not final because of the existence of the pending appeal.

Defendant-in-rule, husband, claims that except in the instances set forth in LSA-C.C.P. art. 2088, the timely filing of an appeal bond, or if no bond is required, the granting of an order of appeal, divests the trial judge of jurisdiction. According to the husband, the filing of the appeal and posting of the appeal bond deprived the trial judge of the jurisdiction to hear the alimony and contempt rule. Defendant-in-rule, husband, further contends that the suspensive appeal stays the execution of the payment of alimony pendente lite until the judgment on the suspensive appeal is rendered. According to the husband, when a suspensive appeal was taken from the dismissal of the petition and reconventional demand for separation, the right of the wife to collect alimony pendente lite was also suspended. In this connection, he cites Schneider v. Schneider, 240 La. 93, 121 So.2d 498 (1960).

We fail to find merit in either of defendant-in-rule’s, husband’s, contentions. It is true that when a suspensive appeal is perfected, the trial judge is divested of jurisdiction of the matter pending on appeal. However, the trial court is not divested, under this Codal provision, of jurisdiction over ancillary matters in the litigation which are not on appeal. See the old case of State ex rel. Malady v. Judge of Seventh District Court of New Orleans, 22 La.Ann. 264 (1870). In the instant case, pending the appeal from the dismissal of the petition and reconventional demand for separation, the trial judge was not deprived of jurisdiction to hear rules for contempt or alimony.

Furthermore, until the appeal has been finally disposed of, alimony pendente lite continues to accrue. See Viser v. Viser, 243 La. 706, 146 So.2d 409 (1962).

Therefore, the trial judge, in the instant case, erroneously dismissed the rule for accumulated unpaid alimony and contempt.

The husband’s contention that a suspensive appeal stays the execution of the payment of alimony pendente lite until the judgment on the suspensive appeal is rendered, as reflected by Schneider v. Schneider, supra, has been repudiated by the adoption of LSA-C.C.P. art. 3943 which became effective January 1, 1961 (subsequent to the Schneider decision). See also Malone v. Malone, 282 So.2d 119 (La.1973).

Accordingly, the May 21, 1975 judgment of the trial court, denying and dismissing the rule for alimony and contempt, is reversed and set aside. Judgment is now rendered condemning defendant-in-rule, Albert Joseph Cousin, to pay to plaintiff-in-rule, Sally Fuerst Cousin, accrued unpaid alimony owed through January 31, 1976 and totalling $2,800.00. Costs to be paid by defendant-in-rule.

Reversed and rendered.

      . This date was obtained from a prior appeal filed in the Court of Appeal, Fourth Circuit, State of Louisiana, and heard on September 5, 1975.

      . LSA-C.C.P. art. 2088 reads as follows:
      Art. 2088. Divesting of jurisdiction' of trial court
      “The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond, or if no bond is required, on the granting of the order of appeal. Thereafter, the trial court has no jurisdiction over these matters except to:
      (1) Allow the taking of a deposition, as provided in Article 1437;
      (2) Extend the return day of the appeal, as provided in Article 2125;
      (3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
      (4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
      (5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
      (6) Grant an appeal to another party;
      (7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal.
      (8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code.”

      .Total includes $1,000.00 stipulated through April 23, 1975 plus $200.00 per month from May 1,1975 through January 31,1976.