author: WATSON, Judge. HOOD, Judge

text:
    SUCCESSION OF Adrien NUNEZ ex rel. FIRST NATIONAL BANK OF ABBEVILLE, Plaintiff-Appellant, v. Mary Olga PICKETT et al., Defendants-Appellees.
    No. 5519.
    Court of Appeal of Louisiana, Third Circuit.
    July 8, 1976.
    Rehearing Denied Aug. 18, 1976.

      Roger C. Edwards, Abbeville, for plaintiff-appellant.
    Gary Theall, Abbeville, Reule Bourque, Kaplan, for defendants-appellees.
    Before HOOD, WATSON and PETERS, JJ.
   WATSON, Judge.

Plaintiff, First National Bank of Abbe-ville, filed a petition June 11, 1975, in the Succession of Adrien Nunez to recover $6,862.69 from defendants: Mary Olga Pickett, discharged administratrix of the succession; and her former surety, John Nunez. This amount was alleged to have been erroneously paid to Ms. Pickett by the bank from an account owned by the heirs of another Adrien Nunez. The bank obtained an ex parte order reopening the succession of Adrien Nunez and reappointing Mary Olga Pickett administratrix. Mary Olga Pickett is a nonresident of Louisiana, and a curator ad hoc was appointed to represent her. A judgment had been signed July 20, 1973, sending the heirs into possession ; discharging the administratrix; can-celling her bond; and releasing the surety.

John Nunez pleaded the dilatory exceptions of prematurity and unauthorized use of summary proceeding and the peremptory exceptions of no right of action and no cause of action. ' The curator for Ms. Pickett filed a general denial; declinatory exceptions of insufficiency of service of process and lack of personal jurisdiction; dilatory exceptions of unauthorized use of summary proceeding, nonconformity of the petition with the requirement of LSA-C. C.P. art. 891, vagueness, lack of procedural capacity and improper cumulation of actions; and peremptory exceptions of no cause of action and no right of action.

On November 6, 1975, John Nunez filed a renunciation of mandate in authentic form to revoke his prior recorded appointment as agent for service of process for Mary Olga Pickett. On November 7, 1975, the bank filed a motion and order to have Mary Olga Pickett served through John Nunez. The curator then filed a second declinatory exception of insufficiency of service of process on behalf of Mary Olga Pickett, contending that the original appointment of Nunez as agent was only to satisfy the requirements of LSA-C.C.P. art. 3097(4) and expired when the adminis-tratrix was discharged and ■ that the authentic act whereby Nunez renounced and revoked the appointment was filed prior to the time that service was made.

On trial of the exceptions, the curator made a motion to vacate the order of the court reopening the succession and reappointing Pickett as administratrix. The motion was granted; the order was recalled and vacated. The trial court maintained the declinatory exceptions of insufficiency of service of process and lack of jurisdiction as to Mary Olga Pickett and the peremptory exception of no cause of action on behalf of John Nunez. The action against Ms. Pickett and Nunez was dismissed with prejudice as to the succession hut the right to institute other proceedings was reserved. The other exceptions were declared moot. All costs were assessed against the bank. The bank has appealed. The curator for Ms. Pickett has answered the appeal asking for attorneys’ fees and any other expenses entailed by the appeal.

Motion to Dismiss

A motion to dismiss the appeal was filed by the curator for Ms. Pickett on the ground that the bank deposited a $250 cash appeal bond but failed to pay the filing fee of $25 and the court reporter’s fees of $48.60 in addition prior to the lodging of the appeal with this court. These sums were paid out of the $250 cash bond by the Clerk of Court of Vermilion Parish. Subsequent to the lodging of the appeal the bank deposited an additional sum of $545.-80 with the parish clerk of court. Once an appeal has been timely lodged in the appellate court, the nonpayment of the filing fee within the three-day period fixed by LSA-C.C.P. art. 2126 is no longer fatal to the appeal. Howard v. Hardware Mutual Company, 286 So.2d 334 (La., 1973). Therefore, the motion to dismiss the appeal is denied.

Merits

LSA-C.C.P. art. 3393 provides for reopening a succession for proper cause upon the petition of an interested party aftér discharge of the succession representative. The issue here is whether there is proper cause to reopen the succession and whether the administratrix may be reappointed.

“Proper cause” has been held to be within the discretion of the trial court. Succession of Yancovich, 289 So.2d 855 (La. App. 4 Cir. 1974). Here, as in Yancovich, there are no funds left in the succession to be administered. See also LSA-C.C.P. art. 1067.

In Molero v. Bass, 190 So.2d 141 (La.App. 4 Cir. 1966) writ refused 250 La. 2, 193 So.2d 523, the court concluded that, after a succession representative has been discharged, he is no longer subject to the court’s jurisdiction in that capacity and cannot be recalled under compulsion. The bank contends that Molero can be distinguished because there the alleged creditor did not act timely and the executors made a final accounting. Ms. Pickett did not file a. final account, and it is contended that her failure to do so prevents her legal discharge as administratrix. However, LSA-C.C.P. art. 3391 provides that the heirs may waive a final account. The bank further contends that a final account would have revealed its error, allegedly the result of Ms. Pickett’s malfeasance. The record shows the contrary. The sworn descriptive list of assets in the succession shows two accounts in the name of Adrien Nunez, one with a balance of $6,200.71 and another with a balance of $6,862.69. While the latter account apparently belonged to the heirs of another Adrien Nunez, there is nothing to indicate that Ms. Pickett should have had this knowledge. It is the bank which is charged with knowledge of its customers. The bank’s “ . . . deposit accounts of individual customers of the bank, . . . shall be deemed confidential and shall not be subject to inspection. * * *” LSA-R.S. 6:70. A final account would have added nothing to the information in the sworn descriptive list of assets. The administra-trix was discharged by judgment of July 20, 1973. (TR. 63-64) There is no evidence of malfeasance on the part of the administratrix. The bank asserts it acted without delay upon discovering the error, on or about November 15, 1974, but this was over a year after discharge of the succession administratrix and her surety. Suit was not filed until almost two years had elapsed. The courts of this state no longer have jurisdiction over the nondomi-ciliary former administratrix, Ms. Pickett.

“The judgment discharging the succession representative relieves him of further duty, responsibility, and authority as succession representative.” LSA-C.C.P. art. 3392 (emphasis ours).

•We agree with the reasoning .of the Fourth Circuit in Molero v. Bass, supra, holding that a succession representative cannot be reappointed against his will and that a nondomiciliary, former succession representative is not subject to the jurisdiction of the court absent special circumstances, Here, the succession proceeding terminated with the judgment of possession. No other steps remained to be taken, and no immovable property was owned by the succession at that time. Cf. Middle Tennessee Council,- Boy Scouts of Am. v. Ford, 205 So.2d 867 (La.App. 1 Cir. 1968), where the court was dealing with the status of immovable property in Louisiana.

The bank does not allege fraud or ill practices which would be grounds for nullity of the judgment under LSA-C.C.P. art. 2004. See Succession of Anderson, 323 So.2d 827 (La.App. 4 Cir. 1976).

The trial court was correct in maintaining the exceptions of lack of jurisdiction and insufficiency of service of process as to Pickett.

The bank contends it should be able to proceed against surety Nunez. However, the judgment of possession authorized release of the surety and cancellation of the bond of the administratrix. (TR. 63).

If the succession cannot be reopened and the administratrix reappointed, it follows that the surety cannot be required to assume anew his obligations.

LSA-C.C. art. 3066:

******
“. . . no suit shall be instituted against any surety on any appeal bond, nor on the bond of any administrator, tutor, curator, executor, or syndic, until the necessary steps have been taken to enforce payment against the principal.
* * * * * *

Suretyship in Louisiana is stricti juris. The surety has been discharged, the succession cannot be reopened and no steps have been taken to satisfy the requirements of Article 3066. We find no error in the conclusion that no cause of action is stated against surety Nunez.

For the foregoing reasons, the judgment of the trial court maintaining the declina-tory exceptions of insufficiency of process and lack of jurisdiction as to the defendant administratrix, Mary Olga Pickett, and maintaining the peremptory exception of no cause of action as to the defendant surety, John Nunez, is affirmed.

As ruled by the trial court, the other exceptions are moot.

The curator ad hoc for Mary Olga Pickett, Gary E. Theall, has answered the appeal and has asked for an additional fee for his work in handling the appeal. An additional fee of $350 is awarded and taxed as costs.

All costs are assessed against plaintiff-appellant, First National Bank of Abbe-ville.

AFFIRMED.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

I agree with my colleagues that this suit should be dismissed as to defendant, Mary Olga Pickett, on the ground that the trial court never acquired jurisdiction over her. In my opinion, however, the dismissal should be without prejudice, and I thus disagree with that part of the majority opinion which dismisses the suit with prejudice as to that defendant. I also disagree with the holding of the majority that the suit should be dismissed as to the remaining defendant, John Nunez.

The trial court decided that service of process had not been made on defendant Mary Olga Pickett, and that that court thus never acquired jurisdiction over her. Despite the fact that jurisdiction was never acquired over Pickett, and the fact that the case has never been tried, the trial court nevertheless rendered judgment on its merits as to that defendant, insofar as it was directed against her as administra-trix of the Succession of Adrien Nunez, deceased.

The judgment of the trial court dismisses the suit as to defendant Pickett “with prejudice insofar as this succession proceeding is concerned, reserving, however, unto petitioner, the right to institute further separate and independent proceedings as may be available to it under the law.” In rendering that decree, the trial court determined, in part, the merits of the case. It effectively and finally rejected plaintiff’s demands against defendant Pickett, as administratrix of the succession. The judgment, if allowed to stand, has the authority of the thing adjudged, and thus it constitutes a final judgment on the merits, even though the court never had jurisdiction over the defendant and the case was never tried. See LSA-C.C.P. arts. 1841 and 1842.

My colleagues, after finding that neither the trial court nor this court had jurisdiction over defendant Pickett, state that “there is no evidence of malfeasance on the part of the administratrix,” and at least partly for that reason they affirm the judgment of the trial court which dismisses the suit with prejudice as to Pickett. It is true that “no evidence of malfeasance” was produced, but the majority has overlooked the fact that the case has never been tried, the issue of malfeasance has never been presented to the court, and plaintiff has never been afforded an opportunity to produce evidence as to that issue. It is difficult for me to understand how the majority can hold on the one hand that the trial court never acquired jurisdiction, and find on the other that the court nevertheless has rendered a valid judgment on the merits, finally determining the most important issue presented in the case.

Plaintiff, in its petition, specifically alleges malfeasance and conversion on the part of defendant Pickett. It alleges, for instance, “that Mary Olga Pickett knew or should have known that account No. 690-755 in the name of Adrien Nunez Estate did not belong to the Adrien Nunez of whose succession she was administratrix,” that she nevertheless drew checks on that account completely exhausting it, and “that these acts constitute malfeasance and conversion of the property of petitioner. .” If the case had gone to trial, it is apparent that the principal issue presented would have been whether Pickett’s acts constituted malfeasance or conversion. The majority has decided that there was no malfeasance, and on the basis of that finding it has rendered judgment which will have the authority of the thing adjudged and will preclude plaintiff from again raising that issue, although the case has never been tried and the court has never acquired jurisdiction which would enable it to render such a judgment.

I would concur with the majority in affirming that part of the trial court judgment which sustains the exception to the jurisdiction of the court filed by defendant Pickett, but I would amend that judgment to show that the suit is dismissed without prejudice to plaintiff’s rights as against that defendant.

Turning now to the demands made by plaintiff against John Nunez, the record shows that the issues thus presented were before the trial court solely on exceptions of prematurity and of no cause of action filed by that defendant. The trial court, as I understand the decree, sustained the exception of no cause of action insofar as the suit was directed against Nunez in his capacity as surety on the bond of the ad-ministratix. The entire suit, however, was dismissed as to that defendant. The trial court decreed that “petitioner’s action against said JOHN NUNEZ as surety is hereby dismissed with prejudice in so far as this succession proceeding is concerned, reserving, however, unto petitioner, the right to institute such further separate and independent proceedings as may be available to it under the law.”

The majority affirms that judgment on the ground that defendant Nunez has been discharged as surety, that the succession cannot be reopened and that no steps have been taken to satisfy the requirements of LSA-C.C. art. 3066. I think plaintiff is entitled to maintain this suit against defendant Nunez, regardless of whether defendant has been discharged as surety and whether plaintiff has taken adequate steps to enforce payment against the principal, Pickett, as required by the cited article of the Civil Code.

Plaintiff has been and is now attempting to enforce payment against the principal, although up to this time it has been unsuccessful in doing so. As long as plaintiff is making a good faith attempt to enforce payment by the principal, I feel that it is entitled to maintain this action against the surety. In any event, however, plaintiff’s demands against Nunez should not be dismissed with prejudice at this point, thus preventing, it from ever recovering from the surety even though it should exhaust all possible means of enforcing payment against the person who is primarily responsible.

Aside from the fact that plaintiff should be permitted to maintain this action against Nunez, as surety, I think it also is entitled to maintain the instant suit against that defendant, individually, on the ground of unjust enrichment.

The record shows that John Nunez was an heir of the decedent, Adrien Nunez. After Mrs. Pickett had been appointed ad-ministratrix, all of the heirs filed a joint petition alleging that they accepted the succession unconditionally, that they desired to be placed in possession of the property left by the decedent, and that they consented to the discharge of the administratrix. John Nunez was one of the petitioners, and he executed an affidavit stating that he unconditionally accepted the succession. Pursuant to those pleadings, a judgment of possession was rendered on July 20, 1973, recognizing John Nunez as one of the heirs of the decedent, and placing him in possession of an undivided one-sixth interest in all property left by that decedent. The succession proceedings disclose that Nunez received some assets of the succession.

Although plaintiff alleges in this suit that John Nunez is liable as surety, it prays for judgment “against the defendants in solido” for the full amount of its claim. I think the petition states a cause of action against John Nunez, individually, on the ground of unjust enrichment, and that the pleadings are sufficient to at least entitle plaintiff to maintain the action against Nunez for his proportionate share of the indebtedness allegedly owed to plaintiff by all of the heirs.

I realize that the judgment of the trial court, as well as that of the majority of this court, specifically reserves to plaintiff the right to institute other proceedings against either or both of these defendants, and I assume that those judgments thus do not preclude plaintiff from instituting another suit to recover from John Nunez, individually, on the grounds of unjust enrichment. I feel, however, that since the petition in the instant suit states a cause of action against that defendant, individually, plaintiff should be permitted to pursue its claim in this proceeding, rather than be required to institute another suit to obtain that relief.

I think the judgment appealed from should be amended to decree that the suit is dismissed as to defendant, Mary Olga Pickett, without prejudice to plaintiff’s right against that defendant, either individually or as administratrix. I also feel that the judgment of the trial court should be reversed insofar as it dismisses the suit as to defendant, John Nunez.

For these reasons, I respectfully dissent.

      . LSA-C.C.P. art. 3393:
      “Art. 3393. Reopening of succession
      A. After a succession representative has been discharged, if other property of the succession is discovered or for any other proper cause, upon the petition of any interested person, the court, without notice or upon sucli notice as it may direct, may order that the succession be reopened. The court may reappoint the succession representative or appoint another succession representative. The procedure provided by this Code for an original administration shall apply to the administration of a reopened succession in so far as applicable.
      B. After tacit or express acceptance by the heirs or rendition of a judgment of possession by a court of competent jurisdiction, if other property is discovered, or for any other proper cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be opened or reopened, as the case may be, regardless of whether or not, theretofore, any succession proceedings had been filed in court. The court may appoint or reappoint the succession representative, if any, or may appoint another, or new, succession representative. The procedure provided by this Code, for an original administration, shall apply to the administration of successions tacitly or expressly accepted by heirs and in successions where a judgment of possession has been rendered, in so far as same is applicable.
      C.The reopening of a succession shall in no way adversely affect or cause loss to any bank, savings and loan association or other person, firm or corporation, who has in good faith acted in accordance with any order or judgment of a court of competent jurisdiction in any previous succession proceedings.”

      . LSA-C.C.P. art. 3391:
      “Art. 3391. Discharge of succession representative
      After homologation of the final account, or upon proof that the heirs have waived a final account, the succession representative may petition for discharge.
      Upon the filing of receipts or other evidence satisfactory to the court, showing that the creditors have been paid and that the balance of the property in the possession of the succession representative has been distributed to the heirs and legatees, the court shall render a judgment discharging the succession representative and cancelling his bond.”


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    LOUISIANA LIVESTOCK SANITARY BOARD, Plaintiff and Appellant, v. Jessie JOHNSON, Defendant and Appellee.
    No. 5522.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Rehearing Denied Aug. 18, 1976.

      Burgess E. McCranie, Metairie, for plaintiff-appellant.
    Preston N. Aucoin, Ville Platte, for defendant-appellee.
    Before CULPEPPER, GUIDRY and BERTRAND, JJ.
   CULPEPPER, Judge.

The Louisiana Livestock Sanitary Board seeks a mandatory injunction ordering the defendant, Jessie Johnson, to pen his cattle for brucellosis testing, as provided by LSA-R.S. 3:2221. After a trial on the merits, the district judge denied the injunction on the factual finding that the infected bull in question had been isolated from the remainder of defendant’s herd for a period of approximately eight months prior to the time it was discovered the bull had brucel-losis. From a judgment dismissing its suit, plaintiff appealed.

The issues on appeal are: (1) Does the evidence support the trial judge’s factual finding that the bull in question was isolated from the remainder of the herd for eight months prior to the time it was discovered the bull was infected? (2) Even if the bull was isolated from the herd for the eight months, is plaintiff nevertheless entitled to test the herd ?

This is' one of a series of cases in which the Department of Agriculture of the State of Louisiana has attempted to compel the defendant, Jessie Johnson, to pen his cattle for brucellosis testing. In the recent case of Johnson v. Pearce, La., 313 So.2d 812 (1975), the history of this litigation is described. In that case, Johnson attacked the constitutionality of LSA-R.S. 3:2221 and 3:2223 on the grounds of unlawful delegation of legislative power. Our Supreme Court held the statute constitutional.

The present case was filed on August 10, 1973. The district judge granted defendant’s motion for summary judgment and dismissed plaintiff’s suit in September of 1973. The plaintiff appealed, and this Court reversed and' remanded on the basis that there were genuine issues of material fact which should be tried on the merits, 299 So.2d 378 (3rd Cir. 1974). After the constitutionality of the statute was upheld in Johnson v. Pearce, supra, the present case was tried on the merits.

LSA-R.S. 3:2221 provides in pertinent part:

“A. Any person owning or having charge of any male or female cattle over eight months of age in a herd which has shown evidence of brucellosis infection, or has intermingled with or otherwise been exposed to brucellosis infected animals, upon at least thirty days prior written notification by an authorized agent of the Livestock Sanitary Board shall present and restrain the cattle for identification and testing, * * *
“B. Evidence of infection includes finding one or more reactors to an official brucellosis agglutination test on animals bred on the farm, at livestock auction market, at a slaughter establishment or concentration point, * *

The undisputed evidence shows that the defendant owns a herd of Charoláis cattle located on his Point Blue Farm in Evangeline Parish. The defendant himself testified that in 1970 he purchased two four-year old Charoláis bulls and placed them in his herd. Defendant says that in about March of 1972 he noticed one of these bulls had an enlarged scrotum and was unable to perform properly. Johnson testified he removed the bull from the herd in March or April of 1972 and placed him in a pen of about one-half acre around his barn near the highway. He says he fed the bull, hoping the swelling in the scrotum would subside, but in the event it did not, he planned to sell the bull for slaughter at an increased weight.

There is no dispute that immediately after Christmas of 1972, defendant sold the bull to the Eunice Superette for slaughter. Mr. Edwin J. Ortego, an inspector for the Louisiana Department of Agriculture, was present when the bull was slaughtered on December 29, 1972. He noticed that the bull had a greatly enlarged scrotum, which is a symptom of brucellosis. Ortego called a local veterinarian, Dr. Ben Miller, and they took a blood sample from the bull and placed it in a test tube which they identified as No. 6102. Mr. Ortego personally mailed the tagged test tube to a laboratory of the U. S. Department of Agriculture in Baton Rouge.

Mr. Harlem Evans, a technician at the U. S. Department of Agriculture laboratory in Baton Rouge, testified that he received the test tube, marked No. 6102, and that he tested the blood and it was positive for brucellosis.

It was stipulated that the agents of the Livestock Sanitary Board notified defendant by letter dated March 23, 1973 that an animal from his herd had been found to be infected with brucellosis by a positive slaughter test, and that defendant was requested to pen his cattle for testing on April 3, 1973. The agents went to defendant’s farm on the date appointed, and defendant refused to pen his cattle for testing.

From the above, it is seen that plaintiff has proved all the requisites of LSA-R.S. 3:2221. On appeal, the only defense urged is that the statute is not applicable because the bull was not “in a herd” owned by defendant for a period of eight months prior to the time of the brucel-losis test. As stated above, plaintiff testified that in about March of 1972, the bull’s scrotum became swollen, and he was unable to function, so defendant removed the bull from the herd and isolated him in a pen around his barn next to the highway. He says the bull remained in the pen and was isolated from the herd until the time he was slaughtered in December of 1972. Two of defendant’s close friends, who live in the area near his farm, corroborated this.

Mr. Curtis Brown, an agent for the Louisiana Department of Agriculture, testified that he worked in the area, and that he drove past defendant’s farm two or three times a week during the period from April to December of 1972, and he frequently noticed the big Charoláis bull with the swollen scrotum in the pasture with the remainder of defendant’s herd. Thus, there is a conflict in the testimony as to whether the bull was isolated for eight months before the brucellosis test. The trial judge gave written reasons in which he stated that he believed the testimony of defendant and his two witnesses that the bull had been isolated. On this basis alone, the district court rejected plaintiff’s demands and dismissed its suit.

On the factual issue of whether the bull was isolated from the herd for a period of eight months prior to the slaughter test, there is clearly a reasonable evidentiary basis to support the trial judge’s findinS-

However, even accepting this factual finding as true, we think that under the provisions of the statute in question, plaintiff is entitled to the relief sought.

Under LSA-R.S. 3:2221A, quoted in part above, plaintiff is entitled to test defendant’s herd if it was shown that the herd “has intermingled with or otherwise been exposed to brucellosis infected animals”. Subparagraph B of the statute defines a brucellosis infected animal as one that has shown a positive brucellosis test at a “slaughter establishment.” Even under defendant’s own testimony, the bull in question intermingled with his herd from the time he purchased the bull in 1970 until he isolated it in March of 1972. The proof is also clear that the bull was infected when it was tested in December of 1972. This is sufficient to show that the herd was exposed to a brucellosis infected animal. The fact that this exposure occurred eight months before the animal was tested does not prevent the application of the statute.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that this case be remanded to the district court for the issuance of a mandatory injunction ordering the defendant, Jessie Johnson, to pen and restrain his herd of cattle located at his Point Blue Farm in Evangeline Parish, for the purpose of brucellosis testing and identifying as provided by the statute, LSA-R.S. 3:2221, on a date and at a time to be fixed by the district court, as provided by law and the views expressed herein. All costs in the trial and appellate courts are assessed against the defendant-appellee.

REVERSED AND REMANDED.


author: COVINGTON, Judge:

text:
    John Prewitt NELSON, Jr. v. Sally Stafford NELSON.
    No. 10787.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      Ashton L. Stewart, Baton Rouge, for appellant.
    Donna M. Lee, Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This is an appeal by the plaintiff-defendant in rule, John Prewitt Nelson, Jr., from a judgment of the Family Court, East Baton Rouge Parish, Louisiana, awarding the defendant-plaintiff in rule, Sally Stafford Nelson, the sum of $750.00 per month for the support of their minor child, Douglas Nelson, and making the child support retroactive to the date of the judgment of divorce, May 31, 1974.

The question of child support arose out of the separation and divorce actions between the parties. At the time of the divorce, the Family Court pretermitted fixing child support, because the question of temporary child support was then under consideration by this Court of Appeal and the parties agreed to await the decision of the appellate court. On December 16, 1974, this court rendered judgment affirming the lower court’s award of temporary child support. Shortly thereafter, a rule was filed by the plaintiff in rule to set child support after divorce. After hearing the rule, the Family Court fixed child support at $750.00 monthly.

We have reviewed the testimony and other evidence in this matter, and conclude that the trial judge’s award is fair to both parties and reasonably fits the needs of this young child, who was 7V2 years old at the time of the hearing.

The evidence shows that the father of the child has extensive property holdings and investments, and that he has a net worth of one million dollars. His financial ability to pay the child support awarded is established by the evidence. The appellant, in considering his financial condition and circumstances concludes that he only has $700.00-$800.00 “free income;” and thus that the award is excessive.

It is not only “free income” of the father that is to be considered in setting child support, it is the totality of the father’s financial ability and circumstances. See Bernard v. Bernard, 300 So.2d 499 (La. App., 3 Cir. 1974).

The appellant also contends that the mother as well as the father is obligated to support their children. No one disputes this rule; it is well settled. See Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (1956).

Article 227 of the Louisiana Civil Code sets forth the obligation of both father and mother to support their children. This duty to support the children of the marriage extends to whatever is “necessary for the nourishment, lodging and support” of the children and is to be granted in “proportion to the wants of the person requiring it, and the circumstances” of the persons who are obligated to pay it. LSA-C.C. arts. 230 and 231; Frazier v. Frazier, 318 So.2d 625 (La.App., 2 Cir. 1975). The record does not show any gainful employment by the wife that can be depended on and does not show any financial ability to contribute anything toward the child’s support at this time.

Moreover, the courts have recognized other ways in which a mother can satisfy her obligation of child support.

In Fall v. Fontenot, 307 So.2d 779, 781 (La.App., 3 Cir. 1975), the court said:

“Certainly, when the mother provides housing, cooks food, washes clothing, and does the many other day to day services for a child, this to some extent satisfies the mutual obligation of supporting children contemplated by LSA-C.C. art. 227, perhaps over-emphasized by Manuel v. Broderson, supra. (298 So.2d 333, La. App.)”

The appellant contends the main issue is the “needs” of the child, and that the trial judge disregarded “the law relative to burden of proof” in fixing the amount of child support. The appellant places great emphasis on an itemization of the “needs” of the child as showing that the award was excessive. Poydras v. Poydras, 155 So.2d 221, 224 (La.App., 1 Cir. 1965); 1 A.L.R.3d 317. A careful reading of the Poydras case reveals that the court did not solely rely on the itemization of “needs” to fix the child support. If Poydras can be construed to mean that the “needs” of the child must be itemized with particularity, then we would say that Poydras overemphasized the “itemization of the needs” of the child as a requisite for child support. An “itemization of needs” of the child is merely one way of; showing the needs of a child. A “child’s needs” just does not lend itself to a “by-the-numbers” approach for resolution. There is no magic mathematical formula available to solve the problem. See Fall v. Fontenot, supra, 307 So.2d at 781. There is not any one approach that is satisfactory in all cases. A case for child support, as the Poydras court recognized, and as we recognize “. . . must, of necessity, be determined on its own facts and circumstances . . .”, Harris v. Harris, 127 So.2d 747 (La.App., 3 Cir. 1961); see also Litton v. Litton, 299 So.2d 458 (La.App., 2 Cir. 1974).

In fixing child support, the trial judge is vested with wide discretion; only manifest abuse of the discretion will move the appellate court to disturb the award of the trial judge. Fellows v. Fellows, 267 So.2d 572, 575 (La.App., 3 Cir. 1972). We find no abuse of this discretion. We affirm at appellant’s costs.

AFFIRMED.


author: PONDER, Judge.

text:
    Dick THOMAS et al. v. APPALACHIAN INSURANCE COMPANY.
    No 10817.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      John Dale Powers and Chas. S. McCowan, Jr., Baton Rouge, for appellant.
    Howard P. Elliott, Jr., Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

On May 15, 1975, Chester L. Parson filed suit in United States District Court, Western District of Louisiana, Shreveport Division, against Dick Thomas (Thomas), a Louisiana state trooper; alleging that on April 26,1974, Thomas “knowingly, intentionally, and maliciously” used unnecessary and unreasonable force in unlawfully arresting plaintiff for driving while intoxicated and driving with a suspended license, thereby causing severe injury to his left shoulder. Plaintiff prayed for $150,000 in punitive damages, $3,464 for past medical expenses and $10,000 for future medical expenses.

Appalachian Insurance Company, the general liability insurer for the State Police, filed an answer for Thomas denying any wrongdoing on his part and setting up numerous exceptions and defenses. Appalachian, however, subsequently took the position that it owed no duty to defend Thomas because plaintiff’s medical expenses would be taken care of by the Federal Government, as plaintiff is a disabled veteran of the armed forces; that the only damages left would be punitive damages which are excluded by the language of the subject policy; and, that in any event, intentional acts are excluded by the language of the subject policy.

Trooper Thomas and his employer, the State of Louisiana, through the Department of Public Safety, Division of State Police (State), filed the instant suit in state district court seeking a declaratory judgment determinative of Appalachian’s obligation to defend the federal court action. Plaintiffs have timely appealed dismissal of their suit.

However, we dismiss Thomas’s appeal since no bond for his appeal was ever filed. La.R.S. 13:4581, allowing appeal by state agencies, without bond does not include him within its terms, nor do we know of any other legislation permitting his appeal without bond.

The issues presented by this appeal are:

1. Does the subject policy afford coverage for the alleged actions of Thomas?

2. What is the effect of plaintiff’s petition seeking only punitive damages?

3. What is the effect of plaintiff’s medical expenses being paid by the Federal Government?

ISSUE NUMBER ONE

The policy obligates Appalachian under Coverage A and B to “pay on behalf of insured all sums which the insured shall become legally obligated to pay as damages because of . bodily injury ... caused by an occurrence and arising out of . . operations in performance of official duties.” “Occurrence” as used in Coverages A and B is defined as “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured. ” (Emphasis supplied)

The trial judge in written reasons stated that since “the allegations of plaintiff’s petition are that the acts, conduct and behavior of the defendant was performed knowingly, intentionally and maliciously,” they could not constitute “an occurrence within the definition ... in the policy and thus, there is no coverage.”

We disagree. The exclusion as to “bodily injury or property damage neither expected nor intended from the standpoint of the insured” applied only to Coverage A and B of the policy. Coverage C, not mentioned by the trial court in its written reasons, provides that “Subject to the terms, conditions and limitations hereinafter mentioned, [Appalachian agrees] to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of claims for false arrest, assault and battery ... or other claims growing out of the performance of the duties of law enforcement officers or their employees, during the currency (sic) period of this policy.” Clearly, plaintiff’s claim is one “growing out of the performance of the duties of [a] law enforcement” officer. In brief defendant adduces the argument that the Federal Court suit is a civil rights action, not a claim for false arrest or assault and battery and therefore does not come within Coverage C. We need not make this fine distinction since the claimed offense clearly comes within the phrase “other claims growing out of the performance of the duties of law enforcement officers.” Therefore, the subject policy affords coverage of the claim asserted by plaintiff and accordingly, Appalachian owes a duty to defend Thomas.

ISSUE NUMBER TWO

Appalachian, however, contends that because plaintiff prays for only punitive damages, and the policy excludes coverage as to such damages, it has no duty to defend its insured since it would not be liable for any damages.

We cannot accept Appalachian’s contentions. Admittedly, plaintiff’s petition only prays for punitive damages and, generally an insurer’s duty to defend suits brought against its insured is determined by the allegations of plaintiff’s petition. Clemmons v. Zurich General Accident & Liability Insurance Company, 230 So.2d 887 (La.App.1st Cir. 1969). However, an insurer must defend its insured unless plaintiff’s petition unambiguously excludes coverage. Clemmons, supra; Benoit v. Fuselier, 195 So.2d 679 (La.App. 3rd Cir. 1967).

We cannot say that plaintiff’s petition unambiguously excludes coverage for damages allegedly caused plaintiff. The petition alleges a claim within the scope of the Civil Rights Act, Title 42 of the United States Code, Section 1983. Although plaintiff prayed for punitive damages only, the federal district court is not restricted to such an award. The plaintiff may be granted any relief the court believes he is entitled to, even if he has not demanded such relief in his pleading. Federal Rule of Civil Procedure 54(c); Hawkins v. FrickReid Supply Corporation, 154 F.2d 88 (5th Cir. Court of Appeal 1946); Smoot v. State Farm Mutual Automobile Insurance Company, 299 F.2d 525 (5th Cir. Court of Appeal 1962). Plaintiff’s petition contains allegations, which if proven, would amply support the federal courts granting of compensatory damages. ,

An insurer should not be allowed to es- i cape its responsibility to defend on a mere technicality based on the type of relief prayed for by a plaintiff, where the insured can be held liable for other damages under the petition. Furthermore, the obligation of the insurer to defend is broader than its liability for damage claims. See Oceanonics, Inc. v. Petroleum Distributing Company, 280 So.2d 874 (La.App. 3rd Cir. 1973), affirmed, La., 292 So.2d 190 (1974); Employers Commercial Union Ins. Co. v. Bertrand, 306 So.2d 426 (La.App. 3rd Cir. 1975).

Appalachian contends that United States v. Pelzer Realty Company, Inc., D.C., 377 F.Supp. 121 (1974) disallows compensatory damages where they have not been pleaded in a civil rights action. We have carefully considered this case and conclude that it does not support the proposition contended by Appalachian. After remand from the Court of Appeal, and after trial of the claim had already been concluded in the district court, pursuant to the remand, the United States for the first time raised the issue of damages. The district court did not deny damages because there was no prayer for damages, as Appalachian contends; instead, they were denied because no proof of damages was offered in the trial.

There is another and deeper-lying reason why Appalachian has a duty to defend. As expressed in Pelzer Realty Company, supra: “While allegations of damages do not constitute the cause of action, they are essential in a bill of complaint.” In the federal suit, plaintiff has stated a cause of action that comes within the terms of the coverage afforded, especially the obligation to defend. The exclusion of punitive damage in the obligation to pay the damages awarded will be pertinent if that eventuality occurs.

ISSUE NUMBER THREE

Because we find an obligation to defend on other grounds, we find it unnecessary to discuss the effect of plaintiff’s medical ex-' penses being paid by the Federal Government.

Accordingly, for the above and foregoing reasons, the judgment of the court below is hereby reversed; and judgment is hereby granted in favor of plaintiff-appellant, the State of Louisiana through the Department of Public Safety, Division of State Police, declaring and recognizing Appalachian Insurance Company’s duty to defend Thomas in suit number 750413 filed in the United States District Court, Western District of Louisiana, Shreveport Division. Defendant-appellee is to pay all costs of these proceedings.

REVERSED AND RENDERED.

      . Because we find coverage under Coverage C, we do not have to decide whether or not the exclusion against “bodily injury or property damage neither expected nor intended from the standpoint of the insured” excludes coverage and necessity to defend when plaintiffs petition alleges an intentional injury and when the insuror aids the insured in filing. an answer denying the allegations of plaintiffs petition.

      . The instant policy contains the following provision:
      “Supplementary Payments — Applicable to Coverage C
      “The Company also agrees to pay for the amount of any ‘costs’ (which expression shall mean all investigations, adjustments and legal expenses) incurred in the investigation, adjustment and defense of any claims, suits or proceedings which may be brought against the Insured within the coverage of this policy even if such claims, suits, or proceedings are groundless, false or fraudulent.”

      . The court stated at pages 123, 124:
      “To allow litigation of the damage issue after r the trial offends the Defendants’ Seventh Amendment rights to a jury trial. Curtis v. Loether, supra. [415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260]
      “Independent of the right to a jury trial, other considerations bar the granting of damages at this stage of this proceeding. Rule 54(c) of the Federal Rules of Civil Procedure has been consistently construed to allow a judgment granting relief inconsistent with the pleadings if the party “is entitled” thereto. While this rule has been generally utilized by the courts and implicitly approved, Publishers’ Association of New York City v. New York, etc., Printing, etc., Union (D.C.), 246 F.Supp. 293; Rank v. Krug (D.C.CaI.1950), 90 F.Supp. 773; Kahan v. Rosenstiel (3 Cir. 1970), 424 F.2d 161, cert, den., 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290, on remand (D.C.), 315 F.Supp. 1391, the constitutionality thereof under the Due Process Clause would be questionable, in the mind of this Court, if it were construed to allow a plaintiff to surprise a defendant and obtain relief under a claim the defendant had not been called upon to defend.”


author: SARTAIN, Judge.

text:
    ALLSTATE INSURANCE COMPANY v. Randall C. MONTALBANO.
    No. 10803.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Ralph Brewer, Baton Rouge, for appellant.
    Leslie J. Clement, Jr., Thibodaux, Richard B. Nevils, Baton Rouge, for third party defendant-appellee Amer. Sou. Ins.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

This suit involves an interpretation of the liability provisions of an insurance contract where the insured, on a borrowed, uninsured motorcycle, struck and injured a pedestrian, David Randow. The insured, Randall C. Montalbano, borrowed the motorcycle from Ronnie Saurage. Montalbano had a policy of liability insurance with American Southern Insurance Company (American Southern) covering his 1973 Volkswagen. Randow had a policy of liability insurance, including uninsured motorist protection, with Allstate Insurance Company (Allstate). Allstate paid Randow the sum of $2,283.50 and as subrogee of the latter sued Montalbano for reimbursement. Montalbano third partied American Southern, who had denied coverage.

This appeal arises from a judgment in the trial court sustaining American Southern’s motion for summary judgment. We affirm.

The policy in question sets forth the following definitions:

“INSURING AGREEMENTS
“I. Coverage A — Bodily Injury Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.
* * * * * *
IV. Automobile Defined, Trailers, Private Passenger Automobile, Two or More Automobiles, Including Automatic Insurance:
“(a) Automobile. Except with respect to division 2 of coverage C and except where stated to the contrary, the word ‘automobile’ means:
(1) Described Automobile — * * *
(2) Trailer — * * *
(3) Temporary Substitute Automobile
(4) Newly Acquired Automobile— * *

Appellant also relies on Section V of the policy which in general relates to use of “any other automobile” subject to certain exceptions which are not pertinent here.

Appellant contends that a motorcycle is a vehicle within the purview of R.S. 22:6(3) which provides:

“(3) Vehicle. Insurance against loss or damage to any land vehicle or aircraft or any draft or riding animal or to property while contained therein or thereon or being loaded or unloaded therein or therefrom, and against any loss or liability resulting from or incident to ownership, maintenance, or use of any such vehicle or aircraft or animal.
Insurance against accidental death or accidental injury to individuals including the named insured while in, entering, alighting from, adjusting, repairing, cranking, or caused by being struck by a vehicle, aircraft, or draft or riding animal, if such insurance is issued as part of insurance on the vehicle, aircraft, or draft or riding animal, shall be deemed to be vehicle insurance.”

and reasons that the term “motor vehicle” in the above statute encompasses a motorcycle because it is operated by power developed within itself and is used for the purpose of carrying passengers and material. Thus, he concludes that under the broad provisions of the policy (“Insuring Agreements,” I and IV, above), liability coverage should be afforded in the premises. He further argues that, failing to obtain such an interpretation, the policy itself is ambiguous and should be construed more strongly against the insurer as the author of the contract. Atlas Lubricant Corporation v. Federal Insurance Co. of New Jersey, 293 So.2d 550 (4th La.App., 1974).

Throughout its provisions defining coverage to be included under the policy, the policy refers to “automobile” without specifically including or excluding two-wheeled motorcycles. Defendant American Southern did expand coverage to include vehicles which are not usually considered as automobiles according to the popular understanding of the term by including trailers and semi-trailers within the policy’s provisions. However, to maintain, as plaintiff suggests, that this specific inclusion necessarily leads to the inclusion of other vehicles riding on two wheels and which are not usually included within the definition of “automobile”, such as motorcycles, is an improper and unwarranted expansion of the term.

The fact that the policy itself lists other vehicles which are included within its coverage, i. e., trailer, substitute automobile, and newly acquired automobile, can not in itself be construed to mean other vehicles which are not named or otherwise defined therein. Where a policy of insurance contains a definition of any word or phrase, this definition is controlling. Hendricks v. American Employers Insurance Company, 176 So.2d 827 (2nd La.App., 1965), writs refused, 248 La. 415, 179 So.2d 15 (1965).

In Labove v. Traders & General Insurance Co., 219 So.2d 614, the Third Circuit passed on the question of whether the terms “non-owned automobile” as defined in the policy in question included two-wheeled motorcycles. The policy set forth definitions of automobiles which did not specifically include or exclude two-wheeled motorcycles but which did include trailers of two or four wheels. The language of the policy referred to the “insured”, “substitute” and “non-owned” vehicles which were to be covered as simply “automobiles or trailers”. Although in one place the policy in Labove referred to a “private passenger automobile” as a “four wheel private passenger automobile” for purposes of coverage of “owned automobiles” and the policy did not limit the definition of “non-owned” vehicles to four wheel vehicles, the court held:

“. . . from a reading of the policy as a whole this Court finds no ambiguity as to whether the policy would afford protection arising out of the operation of an automobile as opposed to a motorcycle. We believe it would do violence to reason and the ordinary acceptation of the meaning of words to extend the provisions of this policy to motorcycles, where it was obviously intended to cover automobiles. * * *”

Labove was followed in Gremillion v. State Farm Mutual Automobile Insurance Co., 302 So.2d 712 (3rd La.App., 1974), writs denied, La., 305 So.2d 134 (1974). There, Mrs. Gremillion was riding as a guest passenger with her husband on a borrowed, uninsured motorcycle. Because of the negligence of her husband she was permitted recovery for general damages under the uninsured motorist provisions of the general liability insurance policy; but she was denied medical payments benefits under the same policy for the reason that the “non-owned motorcycle is not included in the definition of a non-owned automobile.” In each instance that the courts have been called upon to equate a motorcycle with an automobile for the purpose of construing applicable provisions of an automobile insurance policy, the courts have declined to do so. Laporte v. North American Acc. Insurance Co., 161 La. 933, 109 So. 767 (1926), Labove v. Traders & General Insurance Co., above, and Gremillion v. State Farm Mutual Insurance Co., above.

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


author: EDWARDS, Judge.

text:
    John E. MARCHAND v. UNITED COMPANIES MORTGAGES AND INVESTMENTS OF HAMMOND, INC. and Al Alack d/b/a AV Realty.
    No. 10808.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      Robert L. Kleinpeter, Baton Rouge, for appellant.
    Sam J. Dileo, Jr., Hammond, Kenneth E. Barnette, Baton Rouge, for appellees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

John E. Marchand (vendee) sued United Companies Mortgage and Investments of Hammond, Inc., (vendor) for recision of the sale of immovable property, and in the alternative for diminution of price. Vendor filed a third party demand against A1 Alack, d.b.a. AV Realty. The trial court ordered the recision and granted judgment on the third party demand against Alack in the amount of court costs assessed against vendor.

Vendor appeals the judgment granting recision, and Alack answers the appeal insofar as the judgment granted recovery against him by the vendor for court costs.

We reproduce the trial court’s finding of fact, which correctly summarizes the evidence adduced:

“From the testimony at the trial, it appeared that United Companies had repossessed a parcel of property upon which was situated a house. Representatives of this company thereupon asked Mr. Alack to make an appraisal of the property, and gave him only a Mortgage Certificate, introduced in evidence as Exhibit P — 1, showing the description of the parcel as Lot 18 of the Parker subdivision. The Mortgage Certificate does reflect a mortgage on a parcel in Section 29 which sets forth dimensions of the property, however, the description of Lot 18 on the top of the Mortgage Certificate describes it as being in Section 28. The manager of United, Mr. Clements, told Mr. Alack that the property looked like it was approximately one acre, but he did not give Mr. Alack any specific measurements. He went to the property on one occasion with Mr. Alack and showed him approximately the front comers. He stated he did not know the depth and told Mr. Alack that he should get a survey. Another representative of United, Mr. Carl J. Tumi-nello, went to the property with Mr. Alack to make interior measurements of the house, but he testified that he did not know the dimensions of the land and did not furnish them to Mr. Alack.

“Pursuant to the request, Mr. Alack prepared an appraisal of the property, marked as Joint Exhibit # 3. Though he was never furnished with any of the dimensions of the property, he requested his partner, Mr. Anthony Vicarro, Jr., who apparently had never seen the property and also was furnished no dimensions thereof, to draw a sketch of the property on the reverse side of the appraisal. The sketch shows the property measuring 100 feet by a depth of 435.6 feet, which would therefore constitute one acre.

“The plaintiff, a newcomer to the area, contacted Mr. Alack advising that he wanted a place in the country to raise his children. Mr. Alack did not have a listing on the property in question, but recalled that he had done this work for United in making the appraisal. He called United and found out that the property was still available for sale. At this point Mr. Alack apparently showed the plaintiff the appraisal which he had made together with the drawing on the reverse side thereof showing the dimensions of the property as 100 by 435.6 feet. Mr. Alack took the plaintiff to the property and pointed out the approximate corners thereof, pacing off the portion on the street and pointing in the general direction that the lines extended in depth. The plaintiff testified that he would not have brought the property error to his attention.

“The plaintiff contacted Mr. Alack the next day who in turn contacted Mr. Clements who came to Mr. Alack’s office for a discussion. Mr. Clements offered to make the plaintiff a loan through United Companies to enable him to purchase the lots next door in order to give him the area which he desired.”

The trial court concluded that there was error in the mind of plaintiff as to the thing intended to be conveyed, that this error was caused by the negligence of the realtor Alack in having a sketch prepared without checking the actual dimensions of the lot, and that there was no showing that the error was made with the knowledge of the vendor United.

However, the trial court erred in ordering recision under the facts found.

In a well reasoned opinion while on the Third Circuit (Cole v. Lumbermens Mutual Casualty Company, 160 So.2d 785), Judge Tate summarized the applicable law as follows:

“An error of fact is that ‘which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.’ LSA-C.C. Art. 1821. It is not every error that will invalidate a contract, only an error as to some point ‘which was a principal cause for making the contract’, including error ‘as to the motive for making the contract’. LSA-C.C. Art. 1823.
“As to error in the motive, LSA-C.C. Art. 1824 provides: ‘The reality of the cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive being that which determines the will, if there be no such cause where one was supposed to exist, or if it be falsely represented, there can be no valid consent.’ Further, ‘The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration which the contract would not have been made.’ LSA-C.C. Art. 1825.
“Likewise, and it is important to note the words italicized by this court: ‘No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.’ LSA-C.C. Art. 1826. Additionally, “* * * wherever the motive is apparent, although not made an express condition, if the error bears on the motive, the contract is void. * * *’, LSA-C.C. Art. 1827.
“See, for excellent discussion, Smith, A Refresher Course in Cause, 12 La.Law Rev. 2, 29 (1951).”

There is no question that vendee proceeded in this matter under an error of fact — he thought he was purchasing an acre of land when in fact he got much less. Further, it is clear from the testimony that the principal cause, or motive, for vendee’s purchase was to acquire an acre of land, rather than simply a lot of any or average size. Regardless, though, of the importance of this criterion to the vendee, there is no evidence that the vendor was apprised of this motive. Nor can it be presumed that from the nature of the transaction the vendor knew it. The apparent motive in buying a house and lot is to acquire a suitable and adequate place in which to live. The testimony and evidence establishes that the property conveyed fit that purpose. Further, the price paid was fair considering the value of the property.

For the foregoing reasons, the decision of the trial court ordering the recision of the sale is reversed, and vendee’s suit is dismissed at his cost. The judgment is accordingly reversed as to the award of court costs on the third party demand of vendor.

Appellee is taxed with costs of this appeal.

REVERSED AND RENDERED.


author: JONES, Judge.

text:
    Joseph A. MICIOTTO et al., Plaintiffs-Appellants, v. James W. COX, Sr., et al., Defendants-Appellants.
    No. 12941.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.
    Patrick W. Looney, John M. Brown, Shreveport, for plaintiffs-appellants.
    Richie & Kernaghan by Edward 0. Ker-naghan, Shreveport, for James Cox et al., defendants, third party plaintiffs-appellants.
    Cook, Clark, Egan, Yancey & King by Edwin L. Blewer, Jr., Loret J. Ross, Shreveport, for Kenny Kuperman, defendant, third party plaintiff-appellee.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Shreveport, for State Farm Mut. Auto. Ins. Co., and Wayne Curtis, defendants-appellees.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for KSLA^ TV and Insurance Co. of North America, third party defendants-appellees.

      Simon, Carroll, Fitzgerald & Frazer by Richard A. Fraser, Jr., Shreveport, for KWKH Kennonwood, third party defendant-appellee.
    Before BOLIN, MARYIN and JONES, JJ.
   JONES, Judge.

Richard Miciotto was killed in an accident on July 8, 1973 while riding in a dune buggy driven by James Cox, Jr. The dune buggy collided with a car being driven by Kenny Kuperman. The parents of Richard Miciotto and his brothers and sister sued James Cox, Sr., individually and as administrator of the estate of his minor son, James Cox, Jr., James Cox, Jr., and Kenny Kuper-man. The principal defendants filed numerous third party actions against various other parties, several of whom were dismissed prior to the trial on the merits.

After trial on the merits, judgment was rendered in favor of defendants rejecting the demands of plaintiffs. A judgment to that effect was signed on July 16, 1975. The part of that judgment dealing with the principal defendants reads as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein, rejecting the demands of Plaintiffs, and in favor of Defendants, James W. Cox, Sr. and Kenny Kuperman.”

The remainder of that judgment dealt with the disposition of all third party demands, which, of course, were all rejected. According to the certificate on the judgment, notice of judgment was mailed to plaintiffs on July 18, 1975.

On September 3, 1975, an amended judgment was signed by the trial court pursuant to C.C.P. art. 1951. On its own motion, the court amended the original judgment with respect to the wording of the decrees disposing of two of the third party demands. The name of the insurer of one of the third party defendants was inserted in place of its insured and the name of an additional third party defendant who was apparently inadvertently omitted from the original judgment, was added. The decree disposing of the principal demands was repeated without change in the amended judgment. Notice of this judgment was mailed on September 5, 1975.

Orders of devolutive appeal were obtained by plaintiffs on November 21,1975. Motions to dismiss the appeal as untimely have been filed by James Cox, Sr., individually and as administrator of the estate of his minor son, and Kenny Kuperman. We sustain the motions to dismiss the appeal.

Orders of devolutive appeal were obtained by defendants James W. Cox, Sr., individually and as administrator of the estate of James W. Cox, Jr., and James W. Cox, Jr. insofar as said trial court judgment dismissed their third party actions against State Farm Mutual Automobile Insurance Company and Wayne Curtis.

Code of Civil Procedure, Article 2083 defines those judgments that are appeala-ble:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

Article 1951 of the Code of Civil Procedure provides for permissible amendments to judgments by the trial court.

“A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.”

The amendment made in the judgment signed on September 3,1975 was, according to C.C.P. art. 1951, an amendment of the final judgment signed on July 16, 1975.

C.C.P. Art. 2087 provides the time delays for taking a devolutive appeal:

“Except as otherwise provided by law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within ninety days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.”

No motion for a new trial was filed by plaintiffs. The seven days for that application and the ninety days for perfecting a devolutive appeal elapsed before any action was taken by plaintiffs. Since the order of appeal was obtained and the appeal bond was filed after the applicable delays, the motions to dismiss the appeal must be sustained.

Having found that the appeal of plaintiffs on the principal demand is untimely and that we are without jurisdiction, we conclude that defendants’ appeals with respect to the third party defendants must be dismissed.

For the foregoing reasons, the appeals are dismissed.


author: BY THE COURT:

text:
    STATE of Florida, Petitioner, v. Warren M. ADAMS, Jr., and Betty M. Yarborough, Respondents.
    No. 47276.
    Supreme Court of Florida.
    July 21, 1976.
    Robert L. Shevin, Atty. Gen., Charles Corees, Jr., and Robert J. Landry, Asst. Attys. Gen., for petitioner.
    William F. Casler and Enrique Escarraz, III, St. Petersburg, for respondents.
   BY THE COURT:

Upon a petition for the writ of certiora-ri, the decision of the Second District Court of Appeal reported at 310 So.2d 782 is before us to resolve a conflict with the decision of this Court in Slater v. State, 316 So.2d 539 (Fla.1975). In this case the district court held that where a person is convicted on separate counts of felony-murder and robbery growing out of the same transaction, the robbery merges with the felony-murder. It therefore vacated the sentence imposed upon the judgment of guilty of robbery. We held in Slater that these were two separate crimes for which separate sentences could be imposed, if both had been separately charged and the jury returned a guilty verdict as to each. To resolve this apparent conflict we granted the writ and dispensed with oral argument.

Having considered the parties’ briefs we find no new circumstances which would cause us to reconsider our decision in Slater. That portion of the decision below which vacates the sentence for robbery is reversed, and this case is remanded with instructions to reinstate the robbery sentence imposed by the trial court.

OVERTON, C. J., and ROBERTS, BOYD, ENGLAND and SUNDBERG, JJ., concur.

ADKINS and HATCHETT, JJ., dissent.


author: PER CURIAM.

text:
    Theodore BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 45700.
    Supreme Court of Florida.
    July 21, 1976.
    Phillip A. Hubbart, Public Defender, and Kathleen Gallagher, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected probable jurisdiction in this Court. We issued the writ and have heard argument of the parties. After hearing argument, and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the writ of certiorari must be and it is hereby discharged.

It is so ordered.

OVERTON, C. J., ROBERTS, ADKINS and ENGLAND, JJ., and CHAPPELL, Circuit Court Judge, concur.


author: ROBERTS, Justice. ENGLAND, Justice

text:
    James E. CARTER and Employers Surplus Lines Insurance Company, Petitioners, v. Nellie Mae SPARKMAN, Respondent.
    No. 48039.
    Supreme Court of Florida.
    May 5, 1976.
    Rehearing Denied Aug. 3, 1976.

      Heskin A. Whittaker, of Whittaker, Pyle & Stump, Orlando, for petitioners.
    Walter Stockman of Stockman & Grass, Cocoa Beach, for respondent.
    Robert L. Shevin, Atty. Gen., and Barry Silber and Donald D. Conn, Asst. Attys. Gen., for amicus curiae.
    John E. Mathews, Jr., and Jack W. Shaw, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, and John E. Thrasher, Daytona Beach, for the Fla. Medical Ass’n, amicus curiae.
   ROBERTS, Justice.

This cause came to us on certificate of questions from the Circuit Court in and for Brevard County. However, since the trial court had already ruled on the questions posited by it, this Court chose ■ to treat the certificate as a petition for writ of certiorari pursuant to Article V. Section 3(b)(3) and Article V, Section 2(a), Constitution of Florida. Cf. Burnsed v. Seaboard Coastline Railroad Company, 290 So. 2d 13 (Fla.1974).

The facts pertinent to the disposition of this cause, contained in the Circuit Court’s certificate, are as follows;

“1. On July 18, 1975, Plaintiff filed suit in this Court against Defendants, JAMES E. GARTER, and ARGONAUT INSURANCE COMPANY, said suit against Defendant CARTER being based on the alleged negligence of said defendant in treating Plaintiff for a fracture of the proximal head of the fifth metatarsal bone of her right foot.
“2. On July 31, 1975, Defendant CARTER moved this Court to dismiss said suit on the grounds that this Court lacked jurisdiction of the subject matter of the suit and of Defendant ARGONAUT, alleging inter alia that Plaintiff had not complied with § 5 and 6 of Chap. 75-9, Fl.Sts. (1975) entitled ‘Medical Malpractice Reform Act’, which became effective on July 1, 1975 creating new § 768.133 of the Florida Statutes, which statute mandatorily requires cases such as the instant case to be filed pursuant to such newly created statute as a Medical Liability Mediation Claim,. to be heard first before a liability mediation panel whose presiding member and judicial referee shall be a circuit judge; that Plaintiff had not complied with such newly created statute by first filing her claim thereunder. Defendant CARTER further indicated his special appearance to contest the jurisdiction of'this court over Defendant ARGONAUT, by alleging that Defendant CARTER’S insurer was in fact EMPLOYERS SURPLUS LINES INSURANCE COMPANY.
“3. On August 8, 1975, Defendant’s Motion to Dismiss was heard before this Court. Plaintiff opposed Defendant’s Motion on the grounds that the newly created statute was unconstitutional under Amendments 5 and 14 of the United States Constitution; Article 1, §§ 2, 9 and 21 of the Florida Constitution, and Article 5, §§ 2 and 13 of. the Florida Constitution specifying that the newly created statute deprived Plaintiff of the due process of the laws, and of the equal protection of the laws, and that the newly created statute expressly and illegally controverts the 1968 holding of the Florida Supreme Court in the case of Shingleton vs. Bussey, 223 So.2d 713. It was Plaintiff’s position that:
“a. The new statute, making it mandatory for a Plaintiff to first submit to mediation before filing a suit for relief in a court of law, while at the same time a defendant physician was allowed the option of submitting his defense to such claim to mediation (§5, Chap. 75-9, Laws of 1975, 4th Legislature of Florida; FI. St. 768.133(2) (emphasis supplied), was a denial of due process and the equal protection of the laws under the United States and Florida Constitutions.
“b. The requirement of the new statute that in any civil medical malpractice action, the trial on the merits shall be conducted without reference to insurance, insurance coverage or joinder in the suit of the insurer as a co-defendant, was likewise unconstitutional under the above cited constitutional references.
“c. The new statute did not treat Plaintiff and Defendant herein equally thereby denying Plaintiff her basic rights under Article 1, § 2 of the Florida Constitution.
“d. The new statute restrained Plaintiff from timely access to the Courts' thereby violating Article 1, § 21 of the Florida Constitution.”

The trial court denied the motion to dismiss, agreed with plaintiff’s contentions, and specifically found that Section 768.133, Florida Statutes (Chapter 75-9, § 5, Laws of Florida) is unconstitutionally violative of Amendments 5 and 14 of the Constitution of the United States, Article I, and Sections 2 and 9 of the Constitution of Florida in that it denies the plaintiff her basic constitutional rights to due process and equal protection of the law; that said section constitutes class legislatiomdesigned solely for the defendant physicians in suits for their malpractice based on negligence by requiring plaintiff to first submit to mediation before filing a suit for damages in a court of law while at the same time the physician is allowed the option of submitting his defense to such claim by not being required to plead to such a claim; that it violates Sections 2 and 13, Article; Y, Constitution of Florida, in that the Legislature in creating .said statute infringed on the constitutional rights of the Supreme Court to regulate practice and procedure in the courts of Florida. Section 768.133 as contained in Chapter 75-9, Section 5, Laws of Florida, with which the trial court is concerned, sub judice, also provided:

“(10) In the event any party rejects the decision of the hearing panel, the claimant may institute litigation based upon the claim in the appropriate court. Furthermore, in any civil medical malpractice action, the trial on the merits shall be conducted without any reference to insurance, insurance coverage or join-der in the suit of the insurer as a co-defendant.”

However, apparently pursuant to Section 11.242(5), the Statutory Revision Division transferred this Section to Section 768.134, Florida Statutes.

Although we find that the several constitutional attacks on the validity of Sections 768.133 and 768.134(1), Florida Statutes, relative to medical liability mediation panels are without merit, we find that the contention that the act violates constitutional equal protection guarantees merits discussion and necessitates an effective construction of the act so as to resolve the doubts of constitutionality in favor of the act.

It is incumbent on this Court when reasonably possible and consistent with constitutional rights to resolve all doubts as to the validity of a statute in favor of its constitutional validity and if possible a statute should be construed in such a manner as would be consistent with the constitution, that is in such a way as to remove it farthest from constitutional infirmity.

In oral argument much was said contending that the physician under the Florida Medical Consent Law has the “best of two worlds” in that he has a choice between participating in the administrative hearing or not participating; whereas, the plaintiff who is claiming damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, hospital, or health maintenance organization against whom he believes there is a reasonable basis for a claim, must submit his claim to an appropriate medical mediation panel before he may file a claim in the state courts. If both plaintiff and physician participate in the mediation proceedings, the result becomes admissible into evidence (Section 768.134(2), Florida Statutes), but the statute is silent as to the admissibility of non-participation by the physician. Contention was made that such an arrangement violates the equal protection clause of the Constitutions of the United States and of Florida. We agree and construe the statute to mean that in the event the physician fails to participate in the administrative hearing after plaintiff has done so, such fact is admissible into evidence in any subsequent civil medical malpractice trial. We realize that certain items of expense in relation to the mediation attempts will be incurred, but it would naturally follow that such expenses to the extent of reasonableness would become a part of the costs of the judicial proceedings, taxable against the losing party.

Although courts are generally opposed to any burden being placed on the rights of aggrieved persons to enter the courts because of the constitutional guaranty of access, there may be reasonable restrictions prescribed by law. Typical examples are the fixing of a time within which suit must be brought, payment of reasonable cost deposits, pursuit of certain administrative relief such as zoning matters or workmen’s compensation claims, or the requirement that newspapers be given the right of retraction before an action for libel may be filed. /

Cases are legend which hold that the police power of the state is available in the area of public health and welfare, and we must, therefore, consider matters pursued under the law sub judice as being separate and distinct from those generally flowing from the marketplace. At the time of enactment of the legislation in question sub judice, there was an imminent danger that a drastic curtailment in the availability of health care services would occur in this state. The Legislature’s recognition of the crisis in the area of medical care and the need for legislation for the benefit of public health in this state is evidenced by the Preamble to Chapter 75-9, Laws of Florida, as follows:

“WHEREAS, the cost of purchasing medical professional liability insurance for doctors and other health care providers has skyrocketed in the past few months; and
“WHEREAS, it is not uncommon to find physicians' in high-risk categories paying premiums in excess of $20,000 annually; and
“WHEREAS, the consumer ultimately must bear the financial burdens created by the high cost of insurance; and
“WHEREAS, without some legislative relief, doctors will be forced to curtail their practices, retire, or practice defensive medicine at increased cost to the citizens of Florida; and
“WHEREAS, the problem has reached crisis proportion in Florida, NOW THEREFORE,”

The Legislature felt it incumbent upon itself to attempt to resolve the crisis through exercise of the police power for the general health and welfare of the citizens of this State and accordingly enacted Chapter 75-9, Laws of Florida, to effectuate that purpose. The statutes involved here deal with matters related directly to public health and obviously have for their purpose an effort^ tp have the parties mediate claims for malpractice thereby reducing the cost of medical malpractice insurance and ulti-\ / mately medical expenses.

Even though the pre-litigation burder cast upon the claimant reaches the outei limits of constitutional tolerance, we do no: deem it sufficient to void the medical malí-practico law. i

By Section 768.133(10) of Chapter 75-9, Laws of Florida, which in relevant part provides:

“Furthermore, in any civil medical malpractice action, the trial on the merits shall be conducted without any reference to insurance, insurance coverage, or join-der of an insurer as a co-defendant in the suit.”

The Legislature intended to bar only “any reference” to the joinder of insurers rather than the joinder itself.

“References” to insurance or insurers during the course of trial is a purely procedural matter having to do with the conduct of trial proceedings. To- the extent the Legislature has attempted to control “references” during the course of trial in this provision, it has acted beyond its power.

In view of the apparent wisdom of continuing the policy expressed in the questionable portion of this statute, we adopt the substance of this portion of Section 768.134(1), Florida Statutes (1975), as a rule of procedure for all medical malpractice trials conducted or in process under the statute.

“Rule 1.450(e)—In any civil medical malpractice action, the trial on the merits shall be conducted without any reference to insurance, to insurance coverage, or to the joinder of an insurer as co-defendant in the suit.”

Having carefully considered all other points on appeal, we find them to be without merit.

Accordingly, we hold that Sections 768.133 and 768.134, Florida Statutes, both being progeny of Chapter 75-9, Laws of Florida, as constructively construed are constitutional. The order of the trial court is reversed and the cause is remanded for proceedings consistent herewith.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., concurs with an opinion, with which OVERTON, C. J., and SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, Justice

(concurring).

I concur with the majority in its general attempt to sustain the validity of' the medical liability mediation panel statute against a variety of constitutional attacks. As my colleagues have done, I start with the notion that the Legislature is free to enact legislation necessary to deal with a public health crisis which it perceives within the state, and I accept fully as a premise to our review that the legislative solution to the perceived problem must be sustained if it is reasonably related to the purpose sought to be achieved. I have no problem in concluding that the Legislature quite reasonably approached the public health crisis in Florida by seeking to remove from the court system of the state those medical malpractice cases which are patently frivolous or clearly meritorious, and those which are subject to settlement after the parties have been brought together with a disinterested mediator. In fact, it is likely that the Legislature will more frequently attempt to accommodate the resolution of individual disputes without the use of the judiciary in areas where other forums or procedures can readily provide adequate dispute adjustment.

Starting from these premises, I find it t necessary to analyze separately the several arguments presented against the validity of Florida’s medical liability mediation panel statute.

1. Sparkman argues the constitutional invalidity of this statute on the basis ' of the privileges and immunities clause and ithe due process clause of the Fourteenth Amendment to the United States Constitution. Her suggestion that the act abrogates her “privilege” to select a judicial forum rather than a mediation panel is not persuasive. A judicial forum is available after the mediation panel has completed its work or been terminated, and it has, never been a constitutional “privilege” to file a lawsuit in a judicial tribunal in the first instance. See, among others, Florida Welding & Erection Svc., Inc. v. American Mutual Ins. Co., 285 So.2d 386 (Fla.1973), requiring an exhaustion of administrative remedies. Nor can I accept Sparkman’s! suggestion that she has been denied “liberty . without due process of law” be-1 cause of the statutory restriction placed on ! malpractice suits prior to the institution of j civil litigation in a court of law. The act 1 specifically tolls the statute of limitation upon filing a claim with the mediation panel, so there can be no loss of substantive rights to a plaintiff by reason of being required to go before a mediation panel before filing a complaint in court. In fact, under the statute, a claim is first filed with the mediation panel through the clerk of the circuit court, the same place a complaint for any other lawsuit would normally be filed. The mediation panel becomes, in essence, akin to a required pre-trial settlement conference, a procedure common in many jurisdictions at the onset of litigation.

2. Sparkman argues that the mediation panel denies her access to the courts of Florida in violation of Article I, Section 21 of the Florida Constitution. It troubles me that persons who seek to bring malpractice lawsuits must be put to the expense of two full trials on their claim, assuming the medical defendant chooses to put plaintiff, to her proof before the panel. Obviously, this procedure favors the medical defendant over a certain category of claimants who have limited resources. The only reciprocal benefit given plaintiffs under the statute is the ability to have the mediation panel’s decision admitted into evidence at the later trial, a benefit which is only valuable if the plaintiff prevails before the mediation panel and in any event is fully equated by the reciprocal evidentiary right given to the defendant. While I find the inequity in this procedure harsh to a large and undefined class of litigants, I cannot in good conscience invalidate the statute on that basis. A disparity of resources has-always heen-an Imbalance in litigation which the courts are relatively powerless to adjust. Accordingly, although I might have preferred a more delicate balance for this type of litigation, I cannot conclude that the Legislature was unreasonable in setting a procedure for this class of lawsuit which has widened existing disparities.

/

3. Sparkman argues that judges may not serve on medical mediation panels by reason of Article V, Section 13 of the Florida Constitution, directing that judges shall devote full time to their judicial duties. I do not agree. The responsibilities of judges assigned to mediation panels are “judicial duties” even though they are exercised before litigation is formally commenced with a “complaint”. We essentially held as much when we adopted procedural rules for panel proceedings. Moreover, since the institution of mediation panel proceedings is effected in the circuit court, I have no difficulty concluding that the statute does not thwart the constitutional directive regarding the activity of judges. There are undoubtedly areas and activities into which the Legislature may not thrust judges, but I view the role assigned in this legislation as being within constitutional tolerances.

4. Sparkman argues that the rules of procedure set out in Section 768.-133, Florida Statutes (1975), are improperly adopted inasmuch as Article V, Section 2(a) of the Florida Constitution directs that “[t]he supreme court shall adopt rules for the practice and procedure in all courts ..” Carter counters this argument with reference to the near unanimous vote of both houses of the Legislature in adopting this statute, suggesting that the vote totals comply with the last sentence in Article V, Section 2(a), which allows the Legislature to repeal court-promulgated rules by general laws enacted by a two-thirds vote of the members of each house. I must agree with Sparkman that mere vote totals on the passage of legislation do not comply with the constitutional requirements for a repeal of court rules. To read the last sentence of Article V, Section 2(a) as authorizing a repeal of court-promulgated rules every time the Legislature votes by more than two-thirds of the members in both houses would create chaos. I cannot believe that the constitutional provision does not require knowledge and specific intent on the part of each chamber that their action is intended to override the judgment of the Supreme Court as to a specific rule of practice or procedure. See In re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973). That requisite specificity of intent is required when the Legislature overrides the Governor’s veto of any legislation or appropriation. The separation of powers directed in Article II, Section 3 of the Florida Constitution, as well as the comity necessary to make the separation work effectively, necessitates an individual and direct vote to override a specific rule of court.

I must agree with Carter, however, that no problem under the constitutional scheme of rule-making is presented in this case. Section 768.133(6) provides that procedural rules for mediation panels are to be established by this Court, and we have already adopted rules necessary to the conduct of these proceedings. All legislative interest in matters of procedure having been deferred to the Court and the Court having acted, there can be no legislative incursion into the constitutional domain of the judiciary in the area of rulemaking.

OVERTON, C. J., and SUNDBERG and HATCHETT, JJ., concur.

      . This Court in Boyer v. Orlando, 232 So.2d 169 (Fla.1970), declined to answer the question certified because the question certified by the Circuit Court had already been answered by it. This Court said, “Florida Appellate Rule 4.6 is not a substitute for appeal and questions already ruled upon below cannot be certified here.”

      . This provision now appears as Section 768.134(1), Florida Statutes (1975).

      . Cf. In Re Clarification of Florida Rules of Prac. & Proc., 281 So.2d 204 (Fla.1973).

      . Article II, Section 3, Constitution of Florida; Article V, Section 2(a), Constitution of Florida.

      . Cf. In Re Transition Rule 21, 316 So.2d 38 (Fla.1975), Rule 1.010, Rules of Civil Procedure, Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974), Kluger v. White, 281 So.2d 1 (Fla.1973).

      .The Legislature has already diminished the role of the judiciary iu Florida in the areas of marriage dissolution (Chapter 71-241, Laws of Florida, relating to “no fault” divorce), probate (Chapters 74-106 and 75-220, Laws of Florida adopting the Uniform Probate Code), and tort litigation arising from motor vehicle mishaps (Chapter 71-252, Laws of Florida, relating to “no fault” insurance). See also papers presented by Chief Justice Warren Burger and others at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, held in St. Paul, Minnesota on April 7-9, 1976.

      . Section 768.133(4), Fla.Stat. (1975).

      . Section 768.133(1) (b), Fla.Stat. (1975).

      . See, for example, U.S.Dist.Ct.Rule 14 B (S.D.Fla.).

      . My concerns are assuaged by the Court’s determination that expenses incurred in the mediation panel proceeding, including the expert witness fees and travel expenses which are so costly in this type of litigation, are to be taxable costs on later trial if the plaintiff prevails.

      . In re Transition Rule 21, 316 So.2d 38 (Fla.1975).

      . Article III, Section 8(c), Florida Constitution.

      . See fn. 6 above.


author: BOYD, Judge. SUNDBERG, Justice

text:
    The CITIZENS OF the State of FLORIDA, Petitioners, v. William T. MAYO et al., Respondents. Petition of TAMPA ELECTRIC COMPANY.
    No. 47729.
    Supreme Court of Florida.
    June 23, 1976.
    Woodie A. Liles, Public Counsel, Lake-land, Fla., C. Earl Henderson, Associate Public Counsel and Donald W. Weidner of the Law Office of Frederick B. Karl, Tallahassee, for petitioners.
    William L. Weeks, Prentice P. Pruitt and Donald R. Alexander, Tallahassee, for respondents.
    D. Fred McMullen, Lee L. Willis and James D. Beasley of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Tampa Electric Co., intervenor.
   BOYD, Judge.

We here review the petition for certiorari by Public Counsel for the Citizens of Florida objecting to Orders of the Public Service Commission granting interim rate increases to Intervenor-Respondents Tampa Electric Company.

By Order No. 6539 the Public Service Commission granted an interim rate increase to Tampa Electric Company and later entered Order No. 6681 which affirmed and made final Order No. 6539. Reconsideration was denied by Order No. 6717.

Public Counsel argues that the Commission has exceeded its lawfully delegated authority under Section 366.06(4), Florida Statutes, by these Orders and that consequently the Orders are void. In Citizens v. Mayo (re: Gulf Power Co.), Fla., 330 So.2d 1 opinion filed May 5, 1976, we defined the Commission’s role in awarding interim rate increases under that statute, and this case is governed by that decision.

In this case, unlike Citizens v. Mayo, the Commission held an interim rate increase hearing in which all intervenors and the public were permitted to participate fully. There is here, then, no procedural defect in the manner in which the Commission proceeded, as there was in that case.

There is competent and substantial evidence in the record to show that the Commission properly found that the rate of return existing when the interim increase was granted was substantially less than the last minimum fair rate of return authorized by the Commission, as well as evidence that the financial integrity of the Company was in danger.

Accordingly, the above Orders of the Public Service Commission are affirmed and certiorari is denied.

It is so ordered.

OVERTON, C. J., and ROBERTS and ADKINS, JJ., concur.

SUNDBERG, J., concurs with an opinion.

SUNDBERG, Justice

(concurring).

I concur in the result reached by the majority in the instant case. The majority opinion, however, does not specifically respond to the assertion by Public Counsel that the Public Commission erred in utilizing a “year-end rate base” as opposed to an “average rate base”. Public Counsel concludes that the Commission’s use of the former criterion results in an unlimited exercise of discretion by the Commission and, therefore, it has exceeded its lawfully delegated authority under Section 366.06(4), Florida Statutes. Petitioner asserts that use of the year-end rate base inflates the calculated revenue requirements of the utility, thereby enabling the utility to achieve a disproportionate return. He points out that use of the year-end rate base method is appropriate only under circumstances of extreme inflation and growth and inappropriate when used to determine what return the utility is actually achieving on its actual investment.

Upon a review of the record, particu-lary the evidence of an extreme growth factor present in this particular proceeding, I conclude that Public Counsel has failed in his burden of demonstrating that the Commission acted unreasonably under the circumstances of the instant request for interim relief. See Citizens of Florida v. Mayo, 316 So.2d 262 (Fla. 1975).

      . 366.06 Rates; procedure for fixing and changing.—
      (4) Pending a nnai order by the Commission ’ in any rate proceeding under this section, the commission may withhold consent to the operation of all or any portion of the new rate schedules, delivering to the utility requesting such increase within thirty (30) days, a reason or written statement of good cause for withholding its consent. Such consent shall not be withheld for a period longer than eight (8) months from the date of filing the new schedules. The new rates or any portion not consented to shall go into effect under bond at the end of such period, but the commission shall, by order, require such utility to keep accurate áccount in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid, and upon completion of hearing and final decision in such proceeding shall by further order require such utility to refund with interest at a fair rate, to be determined by the commission in such manner as it may direct, such portion of the increased rate or charge as by its decision shall be found not justified. Any portion of such refund not thus refunded to patrons or customers of the utility shall be refunded or disposed of by the utility as the commission may direct; however, no such funds shall accrue to the benefit of the utility.

      . Public Counsel’s arguments appearecT" in briefs filed with the Court before we published our decision in Citizens v. Mayo. All of his contentions concerning interim rate procedures, and the Commission’s authority for interim awards, have been resolved in that opinion.