author: CUTRER, Judge. WATSON, Judge

text:
    Sidney GUILLORY, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
    No. 5346.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 1976.
    Rehearing Denied March 11, 1976.
    Writ Refused April 30, 1976.

      Don L. Broussard, Lafayette, for defendant-appellant.
    Pucheu & Pucheu by Jacque B. Pucheu, Sr., Eunice, for plaintiff-appellee.
    Before MILLER, WATSON and CUT-RER, JJ.
   CUTRER, Judge.

This workmen’s compensation suit was filed by the plaintiff, Sidney Guillory, against Travelers Insurance Company, who is the workmen’s compensation insurer of the plaintiff’s employer, L. R. M. Company, Inc. Prior to the trial on the merits it was stipulated that the only issues before the court were whether the plaintiff was disabled and the extent of his disability. Judgment was rendered in favor of the plaintiff finding him entitled to compensation for total and permanent disability, Defendant has appealed from that judgment. We affirm.

The accident which resulted in the present litigation occurred on February 1, 1974. Plaintiff, while working as a laborer for his employer, was in the process of unloading railroad rails when one of the rails fell on his right hand. The accident took place in West Lake, Louisiana, and plaintiff went to Lake Charles the day of the accident to have the hand examined. His employer was notified of the accident. Compensation was paid by the insurer from February 1, to May 16, 1974. The termination of payments on that latter date was made pursuant to a report to the insurer from Dr. William L. Meuleman, who examined plaintiff on May 1, and determined, according to a letter from the insurer to plaintiff’s attorney, that the plaintiff was able to return to work. Suit was filed on June 5, 1974, and payments were resumed by the insurer July 22. This second series of payments was paid until February 22, 1975. The trial was held on May 21, and judgment was rendered on July 10, in favor of plaintiff, awarding him compensation in the amount of $65.00 per week beginning February 1, 1975, and continuing for the duration of his disability not to exceed 500 weeks, plus medical payments up to the sum of $12,500.00, subject to a credit for any compensation or medical payments already made.

Defendant alleges two errors on the part of the trial court: that the court erroneously found that plaintiff had sustained the burden of proving his total and permanent disability, and that the court erroneously relied on the testimony of physicians who testified with regard to matters outside the field of their expertise. The basis for defendant’s contentions of error on the part of the trial court come from three prior cases cited and discussed in brief by defendant. Those cases are Jackson v. International Paper Company, 163 So.2d 362 (La.App. 3rd Cir. 1964); Boutte v. Mudd Separators, Inc., 236 So.2d 906 (La. App. 3rd Cir. 1970), and Straughter v. Cesco, Inc., 262 So.2d 126 (La.App. 1st Cir. 1972).

In lackson, plaintiff sustained an injury to his back while employed by defendant as a laborer at defendant’s sawmill. Plaintiff alleged disability as a result of post traumatic neurosis. In affirming the trial court’s rejection of plaintiff’s demands, this court noted the rule that when compensation claims are predicated upon traumatic neurosis or conversion reaction the court must proceed with utmost caution and exercise extreme care in view of the nebulous characteristics of such condition. The evidence presented at trial indicated a disagreement among the medical experts as to whether the plaintiff was disabled because of the traumatic neurosis. Most had agreed that the plaintiff was exaggerating his symptoms and attempting to mislead the examining physicians. Taking this factor into consideration the trial judge’s dismissal of plaintiff’s action was affirmed by this court.

In Boutte, plaintiff was injured when involved in a head-on collision while in the course and scope of his employment. One of the issues raised on appeal was plaintiff’s contention that he should be found disabled as a result of traumatic neurosis The basis for this claim was plaintiff’s continued complaints of chest pains when his physician could not find the reason for these complaints. The physician suggested that plaintiff see a psychiatrist. Plaintiff subsequently did see a psychiatrist for examination, which was conducted during a single one-hour session. The psychiatrist concluded that the plaintiff was suffering from traumatic neurosis. In his written reasons for judgment the trial judge thoroughly considered this issue and concluded that traumatic neurosis was not proved. The trial judge stated that the examination by the psychiatrist was “simply too short to be used for such conclusive diagnosis.” This court stated the general rule with regard to the nebulous character of traumatic neurosis and the need for the courts to proceed with utmost caution in scrutinizing the evidence presented in support of the claim. The trial judge’s finding was affirmed.

In Straughter, the sole issue before the court was that of continuing disability of a workmen’s compensation claimant. Plaintiff alleged that his disability was the result of conversion hysteria. The trial judge’s judgment awarding plaintiff benefits for total and permanent disability was reversed by the Court of Appeal. Only one doctor was of the opinion that the plaintiff was still disabled at the time of the trial and it was his opinion that the continuing disability was solely the result of conversion hysteria. The court concluded that the testimony of that one doctor, standing alone except for the support of lay evidence, was insufficient to support a claim for disability predicated upon conversion hysteria.

Defendant argues that the above • cited cases indicate that in cases involving disability based on conversion hysteria or traumatic neurosis, “utmost caution” must be exercised when a psychiatrist has examined the plaintiff and found him to be suffering from conversion hysteria. Since the plaintiff was never examined by a psychiatrist, and since those concluding that plaintiff is disabled due to conversion hysteria are medical experts lacking any training in psychiatry, defendant argues that plaintiff has failed to meet the burden of proving his disability. This argument is without merit.

The conclusion that plaintiff was disabled at the time of the trial is a factual conclusion based on the evidence presented to the trial judge. In order to reverse the judgment in favor of plaintiff we must find manifest error in the conclusions reached by the trial judge. We find that the evidence produced in this case adequately supports the factual conclusion that plaintiff was still disabled at the time of the trial.

The deposition of Dr. Sylvan J. Manuel, plaintiff’s family physician and a general practitioner in Eunice, indicated that he first saw the plaintiff in connection with the injury to his right hand on February 5, 1974, five days after the accident. Plaintiff related the accident to him and Dr. Manuel’s examination of the hand revealed bruises of the whole right hand and wrist. Dr. Manuel gave plaintiff medication to relieve the pain and swelling. Treatment of the hand injury by Dr. Manuel had continued on a regular weekly or biweekly basis from that date up to the day before the taking of the deposition, May 15, 1975. Dr. Manuel diagnosed the plaintiff’s problem as conversion hysteria, “when the mind thinks you’re hurt and you’re really not hurt and its a mental thing.” Plaintiff continued to suffer from pain and swelling of his right hand, and the hand had a tendency to sweat, which Dr Manuel stated was typical in the case of conversion hysteria. Dr. Manuel concluded that plaintiff was suffering a 15% disability of the body as a result of the injury and that with the hand in its present condition plaintiff could not return to work. First, he would require psychiatric care and rehabilitation.

Dr. Manuel referred the plaintiff to Dr. Darrell L. Henderson, a plastic and reconstruction surgeon in Lafayette. The deposition of Dr. Henderson indicated that he first saw plaintiff on June 17, 1974. He stated that plaintiff was not using his hand at all when he first examined him, and the right hand was perspiring a good bit. Close examination of plaintiff’s hand revealed that the inability to use the hand was not completely within the hand. When told to move the hand, plaintiff was unable to comply. But by working with him, Dr. Henderson stated that plaintiff could begin to make a fist. The inability of plaintiff to readily use his right hand was caused, according to Dr. Henderson, by an abnormal muscle pattern in which the plaintiff was contracting both the flexor and ex-tensor tendons of the forearm at the same time when he attempted to move his fingers. Plaintiff 'had no grasp or pinch of the right hand, and muscular re-education was necessary. Dr. Henderson, like Dr. Manuel, concluded that plaintiff was suffering from an overlying conversion hysteria which was greatly increasing his amount of functional disability of his hand and was preventing him from working at his ordinary job. He related this conversion hysteria to the injury sustained on February 1, 1974, because he could find no evidence that he had suffered this type of problem prior to that accident. Plaintiff attended physical therapy treatment sessions at the Physical Therapy .Clinic of Eunice, where he underwent ultrasound and wax treatments, as well as performing prescribed exercises designed to re-educate his muscles. Dr. Henderson stated that he wrote the insurer on February 17, 1975, of his intentions to discharge plaintiff from further medical treatment in hopes that he would return to work and overcome his disability by working with, his hand on the job. However, he last saw plaintiff on April 21, 1975, and plaintiff had made no improvement. 'Any attempt to return to work had been futile. He concluded that plaintiff had a 10 to 15 percent permanent-partial disability of the right hand.

The deposition of Dr. William L. Meule-man, an orthopedic surgeon in Lafayette, was taken and introduced into evidence. Dr. Meuleman examined the plaintiff at the request of defendant. This examination took place on May 1, 1974, and lasted for approximately fifteen to twenty minutes. He stated that plaintiff was complaining of diffused pain and numbness in his right hand, and when requested to make a fist, he was unable to do so. Examination of the hand revealed no physical injury. Dr. Meuleman ruled out conversion hysteria because of the lack of sweating or maceration at the time of the examination.

Defendant relies heavily both at the trial level and before this court on the testimony of Dr. Meuleman. His conclusion, unlike that of Drs. Manuel and Henderson, is that the plaintiff was not suffering from conversion hysteria. We note, however, that he examined the plaintiff only one time and this examination lasted only fifteen or twenty minutes. In contrast, both Drs. Manuel and Henderson examined and treated plaintiff over a period of months. Dr. Manuel saw plaintiff on a regular weekly and biweekly basis from February 5, 1974 through May 15, 1975. Dr. Henderson saw plaintiff regularly from June 17, 1974 through April 21, 1975. It is apparent from the record and the judgment rendered by the trial judge that he relied on the testimony of Drs. Manuel and Henderson, who concluded that plaintiff was disabled as a result of conversion hysteria, and disregarded the conclusion of Dr. Meuleman, who reached an opposite conclusion, but who had seen plaintiff for only a brief period of time on only one occasion. We find no error on the part of the trial judge in the conclusion he reached in this case.

Defendant has alleged on appeal that the trial judge committed error in permitting the introduction of the testimony of Drs. Manuel and Henderson with relation to their diagnosis of conversion hysteria. We find this contention to be without merit. Both doctors stated in their depositions that the diagnosis of conversion hysteria is within the competency of medical doctors. This is opposed to the treatment of conversion hysteria, which is more within the field of expertise of the psychiatrist according to their testimony. It should be noted that even the defendant’s expert, Dr. Meuleman, stated that almost any physician could make a diagnosis of conversion hysteria. We conclude that no error was committed by allowing the introduction of the experts’ testimony as to the diagnosis of conversion hysteria.

For the reasons assigned, the judgment of the trial court is affirmed at defendant-appellant’s costs.

Affirmed.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge

(dissenting):

I dissent from the majority’s affirmance of a workmen’s compensation award for total and permanent disability resulting from conversion hysteria because there is no psychiatric testimony to support the diagnosis. In Carter v. Avondale Shipyards, Inc., 308 So.2d 472 (La.App. 4 Cir. 1975), the court reiterated the rule that a claim of psychiatric disability must be viewed with extraordinary care. This court stated in Andrus v. Rimmer & Garrett, Inc., 316 So.2d 433 (La.App. 3 Cir. 1975):

“Any claim based on traumatic neurosis or psychological overlay must be substantiated by competent psychiatric opinion.” 316 So.2d 436

Dr. Sylvan J. Manuel, plaintiff’s family and treating physician, testified in deposition that plaintiff Guillory is totally unable to do manual labor:

“. . . strickly because of the con-versional [sic] hysteria.” (TR. 21)

Dr. Darrell L. Henderson, plaintiff’s other treating physician, said in his deposition :

“It is my strong recommendation that psychiatric consultation be obtained for a more definitive diagnosis as to the possibility of a conversion hysteria . .” (TR. 53)

Dr. Henderson thought plaintiff’s difficulty resulted from conversion hysteria rather than malingering but:

. . this should be decided by an expert in the field such as a psychiatrist.” (TR. 60)

Both treating doctors agree that plaintiff’s difficulties should properly be diagnosed and treated by a psychiatrist.

I cannot agree to affirm the trial court judgment in the absence of psychiatric testimony. A remand for the purpose of obtaining psychiatric testimony may be the best disposition.

I respectfully dissent.


source: Caselaw Access Project

author: CULPEPPER, Judge. MILLER, Judge

license: Public Domain

text:
    PEOPLES FURNITURE AND GIFT, Plaintiff and Appellee, v. CARSON HICKS/FRIEDRICHS REFRIGERATION, INC., Defendant and Appellant.
    No. 5309.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1976.
    Rehearing Denied March 4, 1976.
    Writ Granted April 7, 1976.

      John G. Williams, Brittain & Williams, Natchitoches, for defendant and appellant.
    Edwin Dunahoe, Natchitoches, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and MILLER, JJ.
   CULPEPPER, Judge.

This is a redhibitory action. The plaintiff-purchaser, Peoples Furniture and Gift, Inc., filed suit against the vendor, Carson Hicks, and the manufacturer, Friedrichs Refrigeration, Inc., to rescind the sale of an air conditioning unit, and to recover the purchase price of $4,734.32, together with damages and attorney’s fees.

The district court rendered judgment against Friedrichs rescinding the sale and ordering the return of the purchase price, but rejected plaintiff’s claim for damages and attorney’s fees. Plaintiff’s demand against Hicks was also rejected. Fried-richs appealed. Plaintiff answered Fried-richs’ appeal, asking that the judgment be modified so as to grant damages and attorney’s fees. Plaintiff also filed a separate appeal, seeking judgment against Hicks.

The substantial issues are: (1) Did the defendants misrepresent to plaintiff that the air conditioning unit was of 20 tons capacity? (2) Did defendants waive their right to require that plaintiff tender return of the unit before trial? (3) Is plaintiff entitled to judgment against the manufacturer, Friedrichs, for the return of the purchase price, plus damages and attorney’s fees? (4) Is plaintiff entitled to judgment against the dealer, Hicks, and, if so, is Hicks also liable for damages and attorney’s fees? (5) Are the defendants entitled to credit for plaintiff’s use of the air conditioning unit during 3 summers?

The general facts are that plaintiff was operating a furniture and gift store in a large metal frame building, with glass across the front, located in Natchitoches, Louisiana. Several air conditioning units were installed in the building. Plaintiff decided to replace a 10-ton unit with a larger unit in order to furnish more adequate cooling. They contacted Mr. Carson Hicks, who was in the business of selling, installing and servicing air conditioning equipment in Natchitoches. Mr. Hicks in turn contacted Friedrichs Refrigeration, Inc., who sent their sales representative, Mr. Robert Neale, to Natchitoches to assist Hicks in inspecting the premises to determine their air conditioning needs and in preparing a bid to submit to plaintiff.

In May of 1972, Mr. Hicks and Mr. Neale met with Mr. John Wingo and Mr. Paul Fleming, owners of the plaintiff corporation, and they inspected the building. There is a conflict in the testimony as to the representations made by Neale on that occasion. Mr. Wingo, Mr. Fleming and Mr. Hicks testified that Neale stated a new 20-ton model being manufactured by Friedrichs would adequately cool the building. Neale testified that he did not represent the new model was a 20-ton unit but stated only that it would do a better job than the 10-ton unit which was being replaced. Neale also says he told them they would have to continue using the other units and should also insulate the ceiling and put an awning over the glass front of the building.

Pursuant to these negotiations, Hicks prepared a written offer to plaintiff to furnish and install a “20 ton Friedrich air conditioner” for the price of $4,734.32. Although they had received two other bids, plaintiff accepted the one by Hicks. Friedrichs shipped the unit to Hicks and he installed it in June of 1972.

Mr. Fleming and Mr. Wingo testified the unit never did properly cool the building, although they used the other air conditioning units also. They complained to Hicks that the building was “hot as the devil”. In addition, Fleming, Wingo and Hicks testified as to certain defects in the units. The lubricating system for the compressor had to be changed by adding additional oil lines. It was necessary to replace two expansion valves, which change the liquid to vapor in the cooling process. Finally, in June of 1974, the compressor locked and was replaced by Friedrichs. The evidence shows that the Friedrichs service personnel assisted in these maintenance problems.

Mr. Fleming and Mr. Wingo testified that it was not until the compressor was replaced in 1974 that they learned the unit was not of 20 tons capacity, but instead was only 16 tons. They filed this suit on November 25, 1974. Fleming and Wingo testified that this smaller capacity unit never did properly cool the building and that if they had known it was only a 16-ton unit they would not have purchased it.

MISREPRESENTATION AS TO TONNAGE OF UNIT

The first issue is whether the defendants misrepresented to plaintiff that the air conditioning unit was of 20 tons capacity. As stated above, Mr. Fleming, Mr. Wingo and Mr. Hicks testified that on the occasion in May of 1972 when Mr. Neale inspected the building with them, Neale stated that the unit to be furnished was of 20 tons capacity and that it would adequately cool the building. This testimony is strongly corroborated by the fact that the written bid prepared by Hicks describes the unit as a “20 ton Friedrich air conditioner”. In his written reasons, the district judge stated that he accepted the testimony of Mr. Fleming and Mr. Wingo on this question. The evidence is clearly sufficient to support this finding of fact that Neale did misrepresent the capacity of the unit.

DEFENDANTS’ WAIVER OF TENDER

Friedrichs contends plaintiff cannot maintain this redhibitory action because it did not tender or offer to tender the unit to the seller before filing' suit, citing Port Finance Company v. Campbell, 94 So.2d 891 (La.App., 1st Cir. 1957) and other cases to the same effect. This issue was first raised in defendants’ district court brief after trial. Jurisprudence has established the rule in redhibitory actions that the seller waives his right to tender where he does not specially plead this objection before trial. Woodward-Wight & Company v. Engel Land & Timber Company, 123 La. 1093, 49 So. 719 (1909); McLain v. Cuccia, 259 So.2d 337 (La.App., 4th Cir. 1972). The rationale of this rule is that the seller should not be permitted to take his chance on a trial of the merits, and, when defeated, urge for the first time the purchaser’s failure to tender. Furthermore, a tender is not required where the position taken by the seller demonstrates that a formal offer to return the thing sold would have been vain and useless. Slay v. Ater, 305 So.2d 691 (La.App., 3rd Cir. 1974). See also the general discussion of tender in Robertson, Manufacturers’ Liability For Defective Products in Louisiana, 50 Tul.L.Rev. 50, at pg. 96.

Applying these rules to the present case, we find that after plaintiff filed this redhibitory action defendant did not specially plead the lack of tender as an objection to the suit. Instead, defendant answered denying any defect in the unit and praying that plaintiff’s suit be dismissed. Under these circumstances, it would have been a vain and useless thing for plaintiff to have tendered the unit before trial, since defendant would have refused to accept it. We therefore hold defendants waived their right to tender. However, we shall protect defendants’ right to return of the unit by amending the trial court judgment so as to require this as a condition precedent to the execution of the judgment for the return of the purchase price plus damages and attorney’s fees.

RECOVERY AGAINST FRIEDRICHS, THE MANUFACTURER

In Media Production Consultants, Inc. v. Mercedes-Benz of North America Inc., 262 La. 80, 262 So.2d 377 (1972), our Supreme Court established the rule that both the manufacturer and the dealer may be held liable in solido to the purchaser in a redhibitory action. See also Rey v. Cuccia, La., 298 So.2d 840 (1974) in which our Supreme Court followed Media. For a general discussion see Robertson, Manufacturers Liability For Defective Products in Louisiana, 50 Tul.L.Rev. 50, at pg. 78, et seq.

LSA-C.C. Article 2547 provides:

“A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations.
“It may, according to the circumstances, give rise to the redhibition, or to a reduction of price, and to damages, including reasonable attorneys’ fees, in favor of the buyer.”

Under the facts stated above, the manufacturer, Friedrichs, made a declaration to plaintiff that the unit possessed a quality which Friedrichs, as manufacturer, is presumed to have known it did not possess. Under the circumstances, this misrepresentation gives rise to an action in redhibition. LSA-C.C. Article 2520 provides that the seller may rescind the sale “on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed the buyer would not have purchased it, had he known of the vice.” Plaintiff’s owners testified that the 16-ton unit was useless to them because it would not cool the premises, and that they would not have purchased it had they known it was not a 20-ton unit.

We conclude that Friedrichs is liable for the return of the purchase price plus damages and attorney’s fees. The purchase price was $4,734.32. Plaintiff borrowed this amount from a local bank. The record shows the credit life insurance, recording fee and finance charges for this loan totaled $1851.28. Plaintiff is entitled to this amount as damages. In addition, we think the circumstances of this case justify an attorney’s fee in the sum of $1500. The judgment appealed must be amended so as to award these damages and attorney’s fees in addition to the return of the purchase price.

RECOVERY AGAINST HICKS, THE DEALER

The next issue concerns the liability of Hicks, who actually sold the unit to the plaintiff. LSA-C.C. Article 2529 provides : “A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to redhibition, if this quality was the principal motive for making the purchase.” In the present case, Hicks was in good faith in declaring to the plaintiff at the time he sold and installed the unit that it had a capacity of 20 tons. Hicks testified he did not learn until 3 or 4 months after the sale, when he finally received the rating of the unit from Friedrichs, that it was only a 16-ton unit. Nevertheless, under the clear provisions of Article 2529, Hicks is liable for the return of the purchase price. See the very similar case of Atlantic Gulf Supply Corporation v. McDonald, 175 So.2d 6 (4th Cir. 1965) where a 7yi-ton air conditioner was sold on the good faith representation that it was a 10-ton unit.

Since Hicks was in good faith, he is not liable for damages or attorney’s fees under LSA-C.C. Article 2547. The judgment appealed must be amended so as to award plaintiff judgment against Hicks in solido with Friedrichs for the return of the purchase price.

CREDIT FOR PLAINTIFF’S USE OF UNIT

The final issue is whether the defendants are entitled to a credit for plaintiff’s use of the unit. Plaintiff used the unit each summer from the time of its installation in June of 1972 through 1974. However, as stated above, Mr. Fleming and Mr. Wingo testified it never did adequately cool the building.

In the case of Breaux v. Winnebago Industries, Inc., 283 So.2d 763 (1st Cir. 1973) the court pointed out, with citation of authorities, that there is no established rule for determining the amount of credit in these situations. In the present case, we have little evidence on which to base an assessment of the amount of credit to be allowed. We know that the price of the unit plus installation was $4,374, and Mr. Neale testified the compressor has a guarantee of 5 years and the unit should perform satisfactorily for about 10 years. Plaintiff used the unit during 3 summers, and, although it did not adequately cool the building, plaintiff undoubtedly received some benefit from it. Plaintiff still has the unit and it is in good operating condition. We will, by amendment of the trial court judgment, order plaintiff to return it to defendants. In an attempt to make an equitable decision under the circumstances, we will allow defendants a credit of $600 against the purchase price for plaintiff’s use of the unit for 3 summers.

THE DECREE

For the reasons assigned, the judgment appealed is amended so as to increase the award against Friedrichs Refrigeration, Inc. from the sum of $4,734.32 to the sum of $8,085.60, less a credit of $600. The judgment is further amended so as to cast Carson Hicks in solido with Friedrichs for the return of the purchase price in the sum of $4,734.32, less a credit of $600, together with legal interest from date of judicial demand until paid. Furthermore, as a condition precedent to the execution of this judgment against defendants, plaintiff is ordered to return the air conditioning unit to the defendants. Otherwise, the judgment appealed is affirmed. All costs in the district court, as well as the costs of this appeal, are assessed against the defendants in solido.

Affirmed, as amended.

MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(dissenting).

I respectfully submit the circumstances of this case allow only a “reduction of price” and damages, including reasonable attorneys’ fees under LSA-C.C. article 2547. People’s Furniture received good service from this unit for more than two years. When they filed this suit they were selling their business. Under “the circumstances of this case” a reduction of price is indicated.

Although I have serious reservations, I can agree there is no manifest error in the trial court’s determination that Friedrichs’ sales representative (Neale) misrepresented the 20 horsepower unit to be a 20 ton unit. Nevertheless the Friedrichs unit was never intended by itself to cool the premises. As noted in the majority opinion, additional insulation and awnings were required. Furthermore, the new unit was to be operated in conjunction with all other units already installed. Fleming and Hicks so testified in the first 40 pages of the transcript: — (Emphasis added.)

Fleming:—
Q. Tell me what went on when you all inspected the premises, what were you told?
A. Mr. Neale and Mr. Hicks and I walked to the front of the store. They talked about how they could bounce the air off the front window, and with a twenty ton unit, with our present units, would adequately cool the building.
Q. Do you recall him stating to you that there was no way that the unit he was selling you would adequately cool your building, that you had to do other things to cool your building?
A. I had to run my othe'r air conditioners with it.
Hicks:—
Q. Mr. Hicks, what did, to the best of your knowledge, what did Mr. Neale tell you would be required to cool the building over there, People’s Furniture?
A. With the air conditioners that they have in there, they say that it was 42 tons, I believe was what . if all of them was running.
Q. Were you ever informed by Mr. Neale that this unit in itself would take care of the cooling needs of People’s Furniture?
A. Not exactly take care of all of it, no sir.
Q. Were you informed differently?
A. The information we gave over there was to—
Q. I want to know what you were informed. Were you informed by Mr. Neale that this machine, this unit that you were buying, would not take care of the cooling?
A. Not by itself, no.
******
Q. My question is, were you informed that the unit that was being sold, in conjunction with the ones they already had in the building, would provide all the air condition which they required?
A. They didn’t say all of it.
Q. It would provide an adequate amount ?
A. Provide an adequate amount with the other four units they had in there running.

Although this testimony establishes beyond doubt that Friedrichs’ unit was to be operated in conjunction with four other units, People’s Furniture never so operated it. Hicks disconnected one roof-top unit and used that wiring to connect the Fried-richs unit (Tr. 43) and testified that another roof-top unit was not working (Tr. 20-1).

I cannot agree that Hicks was in good faith in, relying on representations by Friedrichs’ salesman. Hicks testified he knew the unit being sold to People’s Furniture was a new model, just off the line. He knew the unit had not been rated. He had eight years of sales experience in air conditioning and could not make a firm representation of tonnage until the unit was rated.

Hicks agreed with Neale that the unit was never expected to furnish adequate cooling for the building unless the other units were operating. When the unit was rated three or four months after it was installed at People’s Furniture, Hicks received literature notifying him the 20 horsepower unit was rated to deliver 16 tons of air conditioning. But Hicks did not relay that information to People’s Furniture. They learned of the discrepancy not from Hicks who has been held to be in good faith, but from Friedrichs’ employees who have been held to have misrepresented the unit. People’s Furniture learned of the tonnage shortage a year and a half after Hicks received the rating information. Hicks knew complaints of inadequate performance had been made in the interim.

Hicks’ knowledge the unit was unrated at the time he submitted his bid stating he would furnish a 20 ton unit, and his subsequent behavior establish he did not rely on Friedrichs, whatever the basis for his action may have been.

On this basis Hicks should be held soli-darily liable with Friedrichs.

The issue of Friedrichs’ waiver of tender is irrelevant to the award of a reduction of price.

I would grant People’s Furniture a 30% reduction in price. The tonnage supplied was 20% short of the purchaser’s understanding of what it was purchasing. The additional 10% is assessed as costs related to installation of additional airconditioning to make up the shortage.

LSA-C.C. art. 2547 specifically authorizes damages and attorney fees where there is a reduction in price. A 30% reduction in price gives rise to an award of 30% of the finance charges as damages. With the success of its claim, People’s Furniture is entitled to a reasonable attorney’s fee which I agree is properly fixed at $1,500.

I respectfully submit the trial court award should be reduced as a reduction in price in the amount of $1,420.30, together with an award of 30% of People’s Furniture’s $1,851.28 in finance charges — $555.-38, and $1,500 as attorney’s fees.' In my opinion, People’s Furniture is entitled to a judgment of $3,475.68.

I respectfully dissent.


author: SMITH, Judge.

text:
    Grady GIBSON, Plaintiff-Appellant, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant-Appellee.
    No. 12818.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Holloway, Baker, Culpepper & Brunson by D. G. Brunson, Jonesboro, for plaintiff-appellant.
    Norman L. Sisson, Robert J. Jones, Jonathan C. Harris, Sharon P. Frazier by Robert J. Jones, Baton Rouge, Johnson & Johnson by Don H. Johnson, Monroe, for defendant-appellee.
    Before BOLIN, PRICE and SMITH, JJ-
   SMITH, Judge.

This is an appeal from a judgment sustaining an exception of res judicata to an action brought by plaintiff against the Department of Highways for damages alleged to have occurred to two tracts of land belonging to him in Lincoln Parish resulting from the widening of a state highway in that parish.

The appellant’s principal reason for asserting error in the ruling of the trial court is a variance in the description of the properties in the pleadings in the prior suit on which the exception is based from the instant action.

The Department of Highways in its brief sets forth an explanation which establishes that the two pieces of property are the same as involved in the prior action and that a typographical error must have occurred in reference to a quarter section in the original petition in this case. The preamble to the property description contained in article two of the original petition shows the property to be in the Southwest Quarter (SW ¡4) of the Southeast Quarter (SE J4) and again in article one of the amended and supplemental petition the property is referred to as being in the Southwest (SW) of the Southeast Quarter (SE 54). Therefore it is obvious that the properties are identical and there is no basis for appellant to claim that the plea of res judicata should not have been sustained.

The only other assignment of error is the assertion that the trial court erred in sustaining a plea of judicial estoppel. By reference to the judgment rendered, it is apparent that only an exception of res ju-dicata was sustained by the trial court.

The Department of Highways did not answer the appeal which was devolu-tive in form; but asked for damages for a frivolous appeal in its appeal brief, styled “petition for damages for frivolous appeal.” This pleading was not filed until January 6, 1976. Under the provisions of LSA-C.C.P. Art. 2133 such relief must be asked for in answer to the appeal filed within fifteen days of the return date or filing of the transcript which was not done in this instance. Therefore, we are not called upon to decide this issue. Brewster v. Michigan Millers Mutual Insurance Company, 274 So.2d 213, (La.App., 2nd Cir., 1973).

For the reasons assigned, the judgment of the trial court is affirmed. Appellant is assessed with costs.

Affirmed.


author: ROBERTS and SUNDBERG, Justices.

text:
    Petition of POST-NEWSWEEK STATIONS, FLORIDA, INC. FOR CHANGE IN CODE OF JUDICIAL CONDUCT.
    No. 46835.
    Supreme Court of Florida.
    Jan. 28, 1976.
    Talbot D’Alemberte, Steel, Hector & Davis, Miami, for petitioner.
    Joseph C. Jacobs, Ervin, Varn, Jacobs & Odom, Tallahassee, for the Florida Association of Broadcasters, Inc.
    Parker Lee McDonald, Chairman, Orlando, for the Florida Conference of Circuit Judges.
    Richard C. McFarlain, Asst. Director, Tallahassee, for The Florida Bar.
    Robert Eagan, State Atty., and Donald A. Lykkebak, Asst. State Atty., for the State of Florida.
    Ellis S. Rubin, Ellis Rubin Law Offices, P. A., Miami, for Rommie L. Loudd.
    A. Broaddus Livingston, Chairman, Tampa, and Larry S. Stewart, Chairman-Elect, Miami, for Trial Lawyers Section of The Florida Bar.
    C. Gary Williams, Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Society of Professional Journalists, Sigma Delta Chi, Southeast Region and Greater Miami Chapter, intervenor.
    Richard E. Gerstein, State’s Atty., and N. Joseph Durant, Jr., Chief Asst. State’s Atty., for Florida Prosecuting Attorneys Association.
    Harold Peter Barkas, Miami, for the Academy of Florida Trial Lawyers, amicus curiae.
   INTERLOCUTORY DECISION

ROBERTS and SUNDBERG, Justices.

Post-Newsweek Stations, Florida, Inc. filed a petition for modification of Canon 3A(7) of the Code of Judicial Conduct of the State of Florida to the extent of allowing the televising of judicial proceedings and for the adoption of a rule in relation thereto proposed by the petitioner. In our Order, May 21, 1975, this Court denied that portion of the petition which seeks approval of the substitute of Canon 3A(7) proposed by the petitioner but granted the portion which seeks a reexamination of the Canon for the purpose of making the Court’s own revision, if such should be deemed appropriate.

The petition for change is opposed by (1) -The Florida Bar, (2) the Conference of Circuit Judges, (3) the Trial Lawyers Section of The Florida Bar, (4) Chairman of the Judicial Qualifications Commission expressing a personal view, and (5) others. Pursuant to the entry of our Order on May 21, 1975, the Court received various materials both pro and con in relation to the subject and observed a television video tape film prepared under the auspices of the Supreme Court of the State of Washington. Upon examination of all the foregoing, the Court determined that an on-site experimental program conducted under the auspices of this Court whereby one televised courtroom trial of a criminal case and one such trial of a civil case to be heard by the Circuit Court of the Second Judicial Circuit of Florida would be of assistance to this Court in the final disposition of the matter. To that end and for that purpose, this Court, by its Order of December 18, 1975, called for a conference of all counsel to convene at 10:30 A.M. on Thursday, January 15, 1976, in the Supreme Court Building to discuss the feasibility of such program. The Court’s Senior Justice, B. K. Roberts, was designated as its conferee with. directions to preside over the conference above referred to. Later, Justice Alan Sundberg was added as a co-conferee by the Chief Justice.

Upon inquiry from this Court, prior to the January 15, 1976, conference, Honorable Ben C. Willis, Chief Judge of the Circuit Court of the Second Judicial Circuit of Florida in and for Leon County, Florida, agreed to make a courtroom available for the two experimental trials and to personally conduct them.

The conference of counsel met on January 15, 1976, as directed, supra, and heard two hours of discussion by all interested parties. The conferees have made their report to the Court.

Now, therefore, as an exception to Canon 3A(7) of the Judicial Code of Florida for experimental purposes, Honorable Ben C. Willis, Chief Judge of the Second Judicial Circuit of Florida, he having accepted the assignment, is authorized to proceed with the trial of one criminal case and one civil case allowing television coverage, subject to the hereinafter mentioned guidelines, but with the Court vesting a wide discretion in the learned trial judge in the regulation of the television coverage and operation and the providing of such additional guidelines as he, in his discretion, may deem appropriate. The authority herein granted is subject to the following specific guidelines:

1. The parties to the litigation, jurors and witnesses must consent to the televising of their participation in the trial.

2. The television equipment in the criminal case shall be fully screened from view but in the civil case, with the consent of the parties, the television equipment may be in the open.

3. The trial judge shall have full authority to terminate the televising of all or any part of the proceedings which he deems would be an effective interference in the administration of the justice of the cause.

4. At the conclusion of each trial, the television film or tape shall be delivered to the trial judge for transmittal by him to this Court for filing as an exhibit in these proceedings. Neither the television film nor any copy thereof shall be used in any public newscast without prior permission of this Court.

5. The Supreme Court, either by a committee of its Justices or other monitors, from an unobtrusive location in the courtroom, will observe the proceedings and at the conclusion of each trial, the Court, through its designee or designees, will interview such of the participants as it deems appropriate, for their individual reactions in order to assist in determining the total effect of television coverage upon the conduct of the trials.

6. At the conclusion of the trials, request is made that the trial judge provide the Court with his analysis of the experiment.

It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and HATCHETT, JJ., concur.


author: ROBERTS, Justice.

text:
    Clyde L. HEATH, Clerk of Circuit Court of Broward County, Florida, Petitioner, v. Wada Sue BECKTELL, Respondent.
    No. 47240.
    Supreme Court of Florida.
    Jan. 14, 1976.
    Philip S. Shailer, State Atty., and Jon H. Gutmacher, Asst. State Atty., for petitioner.
    Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, for respondent.
   ROBERTS, Justice.

This cause is before us on certiorari granted to review the decision of the District Court of Appeal, Fourth District, which affects a class of constitutional officers, thus vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Constitution of Florida.

On November 18, 1974, the Chief Judge of the Seventeenth Judicial Circuit entered an administrative order which provides, as follows:

“THIS MATTER having come before the undersigned Chief Judge upon the written presentation of Philip S. Shailer, State Attorney of this Circuit, advising the Court of the facts contained herein-below; and the Court finding that the Clerk of this Court (and also in his capacity as Clerk of the County Court) has been issuing subpoenas duces tecum for discovery depositions in criminal cases upon praecipe of the various assistant public defenders and other defense counsel; and the Court finding no authority in Rule 3.220(d), RCrP, for a discovery deposition subpoena to additionally compel that the witness bring with him any reports, documents, or other evidence of whatever kind or form; and the Court further finding that subsection (a)(1) of that same Rule 3.-220 provides the manner and means by which the defense may discover materials in criminal cases; and the Court further having received the response of the Public Defender in opposition to the State Attorney’s presentation in this regard and finding same to cite no legal authority to the contrary; and the Court further having been advised that the Judges of the Criminal Division of the Circuit Court are unanimously in accord with the State’s legal position and with the Administrative Order herein entered, it is thereupon accordingly
"ORDERED AND ADJUDGED:
“1. That the Clerk of the Courts of this Circuit, and his Deputy Clerks, shall forthwith cease issuing, and they are hereby prohibited from issuing, subpoe-naes duces tecum for discovery depositions in criminal cases upon praecipe of defense counsel. Any subpoena for discovery deposition which additionally seeks to compel the witness to bring with him any reports, documents, or other evidence shall, upon presentation for issuance by defense counsel, be declined and returned to him or his office.
“2. Nothing herein shall preclude the issuance of such a duces tecum subpoena for discovery deposition when ordered by a Judge after Motion, Notice and Hearing thereon pursuant to subsection (a) (5) of Rule 3.220, in which event the praecipe and proposed subpoena duces tecum, when presented to the Clerk for issuance, shall have attached thereto a true copy of the Court’s Order directing the issuance of same.”

Respondent was the defendant in a criminal case in Broward County. She was acquitted of the criminal charges against her before the decision of the District Court here under review was rendered. The instant cause revolves around the following facts. After being informed against, respondent filed and served the State Attorney with notice of taking the deposition of Lt. Farinato of the Broward County’s Sheriff’s Department, and also attempted to file a praecipe for the issuance of a subpoena duces tecum directed to Lt. Farinato commanding him to bring with him to the deposition certain statements of the defendant. Petitioner, Clerk of the Circuit Court of Broward County, refused to accept the praecipe for filing and refused to issue a subpoena duces tecum. Respondent then filed, a petition for writ of mandamus with the District Court of Appeal, Fourth District, in which she requested the court to require petitioner to accept the filing of the praecipe and to issue the subpoena.

Meanwhile, pursuant to normal discovery channels of Rule 3.220(a) (1)(iii), Florida Rules of Criminal Procedure, respondent was able to obtain the information which he sought.

Specifically declining to rule as to whether the legal position taken in the administrative order is correct or not, the District Court of Appeal, Fourth District, granted the peremptory writ of mandamus requiring that upon proper filing of a notice to take a deposition and upon tender of a proper praecipe for issuance of witness subpoena duces tecum, Heath receive and file same and issue said subpoena.

Initially we find that the District Court erred in granting the petition for writ of mandamus. Under the circumstances of this cause, mandamus was not an appropriate remedy. Mandamus is an original proceeding to enforce a clear legal right to the performance of a clear legal duty, and will not ordinarily issue when other legal remedies are available. Sub ju-dice respondent failed to show a clear legal right to the issuance of the writ and, further, failed to show that no other adequate remedy existed. The Clerk would have placed himself in jeopardy of contempt of court by refusing to obey the administrative order of the Chief Judge of his circuit and, accordingly, the action requested by respondent which contradicted the administrative order could not be considered a ministerial duty of petitioner so as to be subject to requirement of performance through a mandamus action. Cf. Somylo v. Scott, 45 So.2d 502 (Fla.1950); Dickey v. Circuit Court, Gadsden County, 200 So. 2d 521 (Fla.1967). Not only was relief available to respondent through ordinary discovery methods set out in Rule 3.220, Florida Rules of Criminal Procedure, but also respondent could have simply made application with the trial judge for the matter requested.

Obviously, the administrative order was intended as a construction of a statewide rule and, as such, we find the construction expressed therein to be appropriate and correct.

Accordingly, the decision of the District Court is quashed and the cause remanded with directions to dismiss the petition for writ of mandamus.

It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and SUNDBERG, JJ., concur.


author: BY THE COURT.

text:
    Petition of the COMMITTEE ON STANDARDS OF CONDUCT FOR JUDGES.
    No. 48796.
    Supreme Court of Florida.
    Feb. 3, 1976.
    Supplemental Order Feb. 23, 1976.
    As Amended March 31, 1976.
   BY THE COURT.

Pursuant to the authority conferred in Article V, sections 2(b) and 15, Fla.Const., there is created a Committee on Standards of Conduct Governing Judges, to be composed of three district court of appeal judges, four circuit judges, two county court judges, and one practicing member of The Florida Bar. The purpose of the Committee shall be to render written advisory opinions to inquiring judges concerning the propriety of contemplated judicial and non-judicial conduct.

1. The judges on the Committee shall be selected by their respective court conferences. The Bar member shall be selected by The Florida Bar’s Board of Governors.

2. The members of the Committee shall elect a chairman and a vice-chairman, and each shall serve for a term of one calendar year. A majority vote of all of the members of the Committee shall be required to elect the chairman and vice-chairman.

3. The chairman shall advise each of the chief judges of the several circuits as to the duties and obligations of the Committee, and he shall preside at all meetings. The vice-chairman shall preside in the absence of the chairman and exercise all powers delegated to him by the chairman.

4. A quorum for the transaction of any committee business, whether in a meeting or by circulated writing, shall be six members of the Committee. A majority of the members shall be required to concur in any advisory opinion issued by the Committee.

5. The Committee shall render advisory opinions to inquiring judges relating to the propriety of contemplated judicial and non-judicial conduct, but all opinions shall be advisory in nature only. No opinion shall bind the Judicial Qualifications Commission in any proceeding properly before that body. An opinion of the Committee may, however, in the discretion of the Commission, be considered' as evidence of a good faith effort to comply with the Code of Judicial Conduct; provided that no opinion issued to one judge or justice shall be authority for the conduct, or evidence of good faith, of another judge or justice unless the underlying facts are identical. All opinions rendered by the Committee shall be in writing, and a copy of each opinion, together with the request therefor, shall be filed with the Clerk of the Supreme Court and with the chairman of the Judicial Qualifications Commission. All references to the name of the requesting judge shall be deleted.

6. No judge on the Committee shall participate in any matter before the Committee in which he has a direct or indirect interest.

7. Any determination of the propriety or impropriety of particular conduct by the Judicial Qualifications Commission shall supersede any conflicting opinion of the Committee.

8. Opinions of the Committee may be published, and compiled, by The Florida Bar.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND, SUND-BERG and HATCHETT, JJ., concur.

SUPPLEMENTAL ORDER

Supplementing our order creating a Committee on Standards of Conduct Governing Judges, we direct that the present members of such committee, who previously were appointed by their respective judicial conferences and the Board of Governors of The Florida Bar, shall serve until their successors are duly selected by their representative organizations.

It is so ordered.

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


author: PER CURIAM.

text:
    In the Matter of the use by the trial courts of the STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES.
    No. 48491.
    Supreme Court of Florida.
    Feb. 4, 1976.
   PER CURIAM.

This matter comes on to be heard on the report of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, and its petition to amend and supplement the instructions previously prepared by the committee. The Court generally approves the theory and technique of charging juries in criminal cases as recommended by the committee and embodied in its proposed instructions.

The Court hereby authorizes the publication and use of such instructions, but without prejudice to the rights of any litigant objecting to the use of one or more of such approved forms of instructions. The Court recognizes that the initial determination of the applicable substantive law in each individual case should be made by the trial judge and that it would be inappropriate for the Court at this time to consider the recommended instructions with a view to adjudging that the legal principles in the recommended instructions correctly state the law of Florida. Similarly, the Court recognizes that no approval of these instructions by the Court could relieve the trial judge of his responsibility under the law properly and correctly to charge the jury in each case as it comes before him. This order is not to be construed as any intrusion on that responsibility of the trial judges.

The Court is confident that the forms of instructions recommended by the committee state as accurately as a group of experienced lawyers and judges could state the law of Florida in simple understandable language. Accordingly, it is ordered by the Court:

1. The Standard Jury Instructions in Criminal Cases submitted to this Court on December IS, 1975 are authorized to be published and distributed to the judiciary and members of the Bar of this state in accordance with the copy that is attached.

2. Florida Rule of Criminal Procedure 3.98S, Standard Jury Instructions, shall apply to these amended instructions.

3. The Supreme Court Committee on Standard Jury Instructions in Criminal Cases is continued as a committee of this Court for the immediate purpose of reviewing errors and inaccuracies and recommending to this Court amendments and revisions as experience may prove beneficial.

4. The members of the Bench and Bar who shall constitute the continuing committee shall be reappointed or appointed by the Chief Justice and serve at his pleasure without compensation.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND, SUND-BERG and HATCHETT, JJ., concur.


author: OVERTON, Justice.

text:
    ORANGE COUNTY, a political subdivision of the State of Florida, Petitioner, v. CITY OF ORLANDO, a Municipal Corporation, organized and existing under the laws of the State of Florida, Respondent.
    No. 47192.
    Supreme Court of Florida.
    Jan. 28, 1976.
    Steven R. Bechtel of Mateer, Harbert, Bechtel & Phalin, Orlando, for petitioner.
    James A. Fowler, Asst. City Atty., for respondent.
   OVERTON, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the Fourth District Court of Appeal reported at 309 So.2d 16 (Fla.App. 4th 1975). The decision appears to conflict with Smith v. Ayres, 174 So.2d 727 (Fla.1965), and does conflict with Town of Mangonia Park v. Homan, 118 So.2d 585 (Fla.App.2d 1960), although it is in accordance with Caldwell v. Losche, 108 So.2d 295 (Fla.App.2d 1959). We have jurisdiction to harmonize these decisions.

Petitioner Orange County commenced this action against respondent City of Orlando for injunctive and declaratory relief from annexation ordinances of the City of Orlando. The District Court held that equitable relief was improper since petitioner had an adequate remedy at law available in a quo warranto inquiry into the legality of such municipal action, citing Caldwell v. Losche, supra. The opinion distinguished Smith v. Ayres, supra, and Town of Mangonia Park v. Homan, supra, on the grounds that the quo warranto issue was not raised in either of those cases.

While the District Court so distinguished Town of Mangonia Park v. Homan, supra, the court in that case did consider the appropriateness of a quo warranto proceeding and declined to dismiss the equitable action upon that ground. Direct conflict is therefore apparent.

We agree with the opinion of the Fourth District Court of Appeal in the instant case for the reasons expressed therein, and affirm. Petitioner has an adequate remedy at law in quo warranto. In the event quo warranto is not available, i. e., the Attorney General refuses to allow quo warranto to proceed, then an action for injunctive and declaratory relief would be proper.

The conflict previously appearing in opinions of the District Courts and this Court having been dispelled, the writ heretofore issued is discharged.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD and ENGLAND, JJ., concur.

      . Art. V, § 3(b)(3), Fla.Const.


text:
    Donald D. BAKER, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent.
    No. 48409.
    Supreme Court of Florida.
    Jan. 28, 1976.
    Donald D. Baker, in pro per.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   ROBERTS, Justice.

Petitioner filed a petition for writ of ha-beas corpus seeking credit for time served in county jail prior to sentencing. This Court issued the writ and required a return.

The respondent, through the Attorney General, has promptly responded to the writ of habeas corpus and states that petitioner’s claim that he should have been given credit for time served in county jail prior to sentencing has merit. Section 921.161(1), Florida Statutes. Respondent agrees that pursuant to Section 921.161, Florida Statutes, as amended by Chapter 73-71, Laws of Florida, effective May 28, 1973, petitioner is entitled to credit for time served in county jail from October 7, 1973 to April 26, 1974, a period of 201 days and requests that this Court’s order issue directing the trial judge to enter a corrected sentence showing credit for the above-indicated jail time and ordering the Department of Offender Rehabilitation to recompute petitioner’s time according to the corrected sentence.

Accordingly, we find that petitioner is entitled to credit for the time spent in county jail prior to sentencing and respondent is directed to grant credit to petitioner for the aforedescribed 201 days spent in county jail and to recompute petitioner’s release date in accord therewith.

It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and SUNDBERG, JJ., concur.


text:
    THE FLORIDA BAR. In re Ralph A. JOHNSTON.
    No. 48574.
    Supreme Court of Florida.
    Jan. 28, 1976.
    Alvin S. Sherman, Miami Beach, Bar Counsel, and John ,A. Weiss, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    Thomas W. Kenworthy, Coral Gables, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

The Florida Bar served two Complaints, May 8, 1975 and June 25, 1975 alleging as follows:

COMPLAINT, May 8, 1975
“1. The Respondent, Ralph A. Johnston is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, have been fulfilled.
3. Shortly after an accident with Robert Patrick Payton on October 3, 1970, Albert King retained Respondent to represent Mr. King in various legal matters arising out of the accident.
4. Respondent performed services in Mr. King’s behalf until July 28, 1972, after which Respondent took no further action in the matter until he received notice, on or about August 27, 1974, that Mr. King had filed a complaint with The Florida Bar.
5. At no time between July 28, 1972, and August 27, 1974, did Respondent inform Mr. King that he was withdrawing from Mr. King’s case.
6. On October 3, 1974, the day before the statute of limitations ran on Mr. King’s accident, Respondent filed suit against Insurance Company of North America, National Premium Budget Plan Corporation, and Kenneth Greenberg, individually, d/b/a 183rd Street Auto Tag Agency and as agent for Insurance Company of North America.
7. Although the driver of the other car involved in the accident with Mr. King, Robert Patrick Payton, and his corporate employer in whose behalf Mr. Payton was operating the car, were known to Respondent, he failed to join them in the suit or file separate suit against them in his client’s behalf and his client has therefore lost all right of recourse for his damages from these parties.
8. By reason of the foregoing, Respondent has violated Disciplinary Rules 6-101 (A) (3), 7-101 (A) (2) and 7-101 (A) (3) of the Code of Professional Responsibility.”
COMPLAINT, June 25, 1975
“1. The Respondent, Ralph A. Johnston, is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, have been fulfilled.
3. On or about December 31, 1973, Raymond T. Fay paid $500 by cashier’s check to Respondent for the purpose of retaining Respondent to represent Mr. Fay and his sister, Diane M. Seiling, concerning certain legal matters arising out of their deceased father’s estate.
4. Respondent deposited the $500 check on January 14, 1974.
5. Subsequent to retaining Respondent, Ms. Seiling and Mr. Fay tried on numerous occasions to contact Respondent concerning the status of the matters he was handling for them. Respondent failed to return their telephone calls and refused to receive registered letters they sent to him.
6. As of May 1, 1975, Respondent has not taken any action on behalf of his clients, Ms. Seiling and Mr. Fay, regarding the matters for which he was hired to handle.
7. By reason by the foregoing, Respondent has violated Rule 11.02(3) (a) of the Integration Rule, and Disciplinary Rules 1-102(6), 6-101(A)(3) and 7-101 (A)(1) and (2) of the Code of Professional Responsibility.”

The Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline is granted and Ralph A. Johnston is hereby suspended for 89 days, effective 45 days from this date, with automatic reinstatement at the end of said suspension.

Costs in the amount of Three Hundred Sixty-One Dollars ($361) are hereby taxed against respondent to be paid to The Florida Bar within thirty days from this date unless such time is extended by the Board of Governors of The Florida Bar for good cause shown.

It is so ordered.

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


text:
    THE FLORIDA BAR. In re Richard J. BEAMISH, III.
    No. 48482.
    Supreme Court of Florida.
    Jan. 28, 1976.
    David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, petitioner.
    Richard J. Beamish, III, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

On July 22, 1975, the Seventeenth Judicial Circuit Grievance Committee “A” filed its report finding in part as follows:

“The accused attorney failed to file Federal income tax returns for the years 1969, 1970 and 1971 and plead guilty to a violation of Section 7203 (a misdemean- or) to wilfully and knowingly fail to file such return for the taxable year 1971. The Committee deems that the accused is guilty of Violation of Canon I in that he has failed to maintain high standards of professional conduct and that his wilfull failure to file Federal income tax return, as evidenced by his plea of guilty, constitutes illegal and morally reprehensible conduct.”

More specifically, Mr. Beamish’s conduct violates Disciplinary Rule 1-102 (A) (4) of the Code of Professional Responsibility and Integration Rules 11.02(3)(a) and (b).

The Petition for Approval of Conditional Guilty Plea is granted and Respondent, Richard J. Beamish, III is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $100 are hereby taxed against Respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR. In re Jules R. ISRAEL.
    No. 48051.
    Supreme Court of Florida.
    Oct. 8, 1975.
    Bernard Wolfson, Coral Gables, and John A. Weiss, Tallahassee, for The Florida Bar, petitioner.
    Joseph A. Gassen, of Jepeway, Gassen & Jepeway, Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline. The salient facts of the case are as follows.

On October 19, 1973, Mrs. Martha Anne Dixon retained Respondent, Jules R. Israel, a member of The Florida Bar, as her counsel after being advised by Albion Realty Company that they were about to initiate mortgage foreclosure proceedings against her. Mrs. Dixon was three payments behind on her mortgage at that time. At the October 19, 1973, meeting with Respondent Mrs. Dixon executed an agreement whereby Respondent agreed to advance $855.64 to either Mrs. Dixon or to her mortgage company to bring her mortgage payments up to date. As part of the agreement Mrs. Dixon signed over to Respondent a quitclaim deed for her property as security for Respondent’s fees and advances. As part of the agreement Mrs. Dixon agreed to pay Respondent $200 per month, the balance above her $158 per month mortgage payment to be applied to attorney’s fees and to the funds Respondent advanced to bring her mortgage payment up to date. Respondent brought Mrs. Dixon’s mortgage payments current and continued making her monthly payments thereafter.

During early 1974 Mrs. Dixon became delinquent in her payments to Respondent. On May 29, 1974, Respondent recorded the quitclaim deed Mrs. Dixon gave him. On September 20, 1974, Respondent filed a complaint in ejectment against Mrs. Dixon demanding she vacate the property she deeded over to Respondent as security. Respondent filed an action in ejectment against Mrs. Dixon despite the fact he knew or should have known that a quitclaim deed held as security for funds advanced is a mortgage and the proper procedure to be followed is a foreclosure suit.

On May 13, 1975, by direction of its Board of Governors, The Florida Bar filed a complaint against Respondent alleging violation of the Disciplinary Rules of the Code of Professional Responsibility.

Respondent admitted that he violated Disciplinary Rule 5-104(A) to the extent that he entered into a business transaction with a client when they had differing interests therein. Respondent tendered this Conditional Guilty Plea for a public reprimand in exchange for the dismissal of all other charges pending against him in this proceeding.

The Petition for Approval of Conditional Guilty Plea is granted and Respondent, Jules R. Israel, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of Two Hundred Thirteen Dollars and Seventy-Five Cents ($213.75) are hereby taxed against Respondent.

It is so ordered.

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


author: BOYD, Justice.

text:
    Hazel E. Wallman BARTH, Petitioner, v. FLORIDA STATE CONSTRUCTORS SERVICE, INC., Respondent.
    No. 46549.
    Supreme Court of Florida.
    Jan. 21, 1976.
    Rehearing Denied March 9, 1976.

      John W. Prunty and Wm. Bruce Israel, of Prunty, Ross, De Loach & Olsen, Miami, for petitioner.
    Sidney L. Syna, of Fink & Syna, Miami, for respondent.
   BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 302 So.2d 476, Fla.App. Our jurisdiction is based upon conflict between the decision sought to be reviewed and Hightower v. Bigoney.

Respondent-Company was engaged by a written contract to furnish certain services to Petitioner’s home, i. e., hydro pressure blasting the home, patching all cracks on the exterior walls, caulking all areas where needed, replacing three iron posts with aluminum ones, applying a perma-dry textured coating to home and fixtures, applying color white with sparkles, applying Plazcote E.O. to roof, and painting of trim doors, fascias, etc. The contract provided for a total payment of $2,935.20, including finance charges, payable in sixty monthly installments. Upon completion of at least 90% of Respondent’s work Petitioner refused to allow Respondent’s employees back on her premises and refused to pay. A mechanics’ lien was filed by Respondent, who subsequently brought an action in equity to foreclose this lien. Petitioner answered, admitting that certain labor and materials had been furnished the premises but denying that they had been . accomplished as alleged; in addition, Petitioner filed a compulsory counterclaim, alleging damages to her property in excess of $5,000.00 caused by the unprofessional and unworkmanlike manner in which the contract was partially carried out. This compulsory counterclaim included a demand for a jury trial. Respondent filed its answer to Petitioner’s counterclaim as well as its reply to her affirmative defenses. Although there is no record that Petitioner objected to a non-jury trial, the case was heard without a jury even though Petitioner’s demand for a jury trial was never withdrawn. After completion of the trial without a jury, judgment was entered in favor of Respondent, awarding it approximately 90% of the claim; having reviewed Petitioner’s motion for new trial, the court ordered that the property be sold to satisfy the judgment. After entering judgment for Respondent the trial court denied Petitioner all relief on her counterclaim, including the demanded trial by jury, all of which was over Petitioner’s objections. After Petitioner’s motion for new trial was denied, she appealed to the District Court of Appeal, Third District, which denied Petitioner’s requested relief, holding that she had waived her right to a trial by jury and citing Hightower v. Bigoney, supra.

Upon careful examination of the record and argument of counsel we are compelled to reverse the decision of the District Court of Appeal for the following reasons.

As set forth in Article I, Section 22, of the Florida Constitution as revised in 1968, “The right of trial by jury shall be secured to all and remain inviolate. . . . ”

In Hightower, supra, this Court stated:
“. . . It is settled that one may by affirmative plea or by silence waive his right to a jury trial but when a litigant timely appears, as he did in this case, and enters a plea for it or claims it in proper manner, that claim and not the chancellor’s discretion is the final word and it is the duty of the court to make provision for it because Section 3 [now Section 22, supra], Declaration of Rights, guarantees it.
******
“In summary, we hold that the filing- of a compulsory counterclaim for relief cognizable at law in an action for equitable relief does not constitute the coun-terclaimant’s waiver to the right to a jury trial of the issues raised by said compulsory counterclaim, provided, jury trial is timely demanded.”

The Hightower case, supra, has been strengthened by current revision of the Florida Rules of Civil Procedure, which provides in part as follows:

"Rule 1.430. Demand for Jury Trial; Waiver.
“(a) Right Preserved. The right of trial by jury as declared by the Constitution or by statute shall be preserved to the parties inviolate.
* * * * * *
“(d) Waiver. ... A demand for trial by jury may not be withdrawn without the consent of the parties.”

In the case sub judice there was never a specific waiver in writing or by announcement in open court that Petitioner intended to waive a trial by jury which she had previously properly requested by her answer and counterclaim. In this regard this case may be distinguished from the decision in May v. Arnold Construction Company, on which the District Court relied, since that case involved a written waiver of a trial by jury together with consent that the case be submitted to the court sitting non-jury.

In light of the authority cited above, it is our view that, once a demand for jury trial has been timely made, it takes affirmative action on the part of a defendant to waive that constitutional right; that the filing of a compulsory counterclaim for relief cognizable at law in an action for equitable relief does not constitute the counter-claimant’s waiver of the right to a jury trial on the issues raised by that compulsory counterclaim, provided jury trial is timely demanded; and that this Petitioner, having received Respondent’s notice of non-jury trial and the order entered thereon, did not waive her constitutional right to a jury trial.

Accordingly, the decision of the District Court of Appeal, Third District, is quashed and the cause remanded with instruction to remand the cause to the Dade County Circuit Court for jury trial of Petitioner’s counterclaim.

It is so ordered.

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

      . 156 So.2d 501 (Fla.1963).

      . 78 So.2d 705 (Fla.1955).

      . Hightower, supra, note 1; Adams v. Citizens Bank of Brevard, 248 So.2d 682, 684 (Fla.App.1971).


author: PER CURIAM. ENGLAND, Justice SUNDBERG, Justice

text:
    THE FLORIDA BAR. In re PETITION TO AMEND CODE OF PROFESSIONAL RESPONSIBILITY.
    No. 47941.
    Supreme Court of Florida.
    Feb. 11, 1976.
    J. Rex Farrior, Jr., Tampa, President; Edward J. Atkins, Miami, President-elect; Samuel S. Smith, Miami Beach, Member of the Board of Governors; David G. McGunegle, Assistant Staff Counsel; and Marshall R. Cassedy, Executive Director, Tallahassee, for The Florida Bar, petitioner.

      Wm. Reece Smith, Jr., Tampa, and William J. Manikas, Tallahassee, for Florida Legal Services, Inc., amicus curiae.
   PER CURIAM.

The Florida Bar, by direction of its Board of Governors, proposes amendments to Canon 3 of the Code of Professional Responsibility concerning the use of non-lawyer personnel by members of The Florida Bar. The proposal is a substantial expansion of EC 3-6 and a completely new Disciplinary Rule 3-104. The objective of the amendments is to more fully define the proper use of nonlawyer personnel by members of The Florida Bar in rendering legal services to the public.

We hereby approve the proposals, with two modifications. The present EC 3-6 is hereby deleted, and the following provision is substituted therefor:

EC 3-6 A lawyer or law firm may employ nonlawyers such as secretaries, law clerks, investigators, researchers, legal assistants, accountants, draftsmen, office administrators, and other lay personnel to assist the lawyer in the delivery of legal services. A lawyer often delegates tasks to such persons. Such delegation is proper if a lawyer retains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product.
The work which is delegated is such that it will assist the employing attorney in carrying the matter to a completed product either by the lawyer’s personal examination and approval thereof or by additional effort on the lawyer’s part. The delegated work must be such, however, as loses its separate identity and becomes either the product or else merged in the product of the attorney himself.
A lawyer may employ nonlawyers to do any tasks for him except (i) counsel clients about legal matters, (ii) appear in court or appear in proceedings which are a part of the judicial process, or (iii) otherwise engage in the unauthorized practice of law; provided, however, the lawyer must become and remain responsible to the client for any work undertaken by nonlawyer office personnel, supervise the work and maintain a direct relationship with the client.
When communicating with persons outside the law office including other lawyers, a nonlawyer must disclose his status as such. The disclosure must be made in a way that avoids confusion. With respect to oral communications, disclosure must be made at the outset of the conversation. It is permissible for nonlawyer office personnel to sign letters on the firm’s stationery as long as the nonlawyer status is clearly indicated. The supervising attorney has the ultimate responsibility for compliance by the nonlawyer with the applicable provision of the Code of Professional Responsibility.

The word “unauthorized” has been inserted in the sixth line of the third paragraph.

We hereby add to the Code of Professional Responsibility Disciplinary Rule 3-104 concerning nonlawyer personnel, which shall read as follows:

DR 3-104 Non-Lawyer Personnel
(A) A lawyer or law firm may employ nonlawyer personnel to perform delegated functions under the direct supervision of a licensed attorney, but shall not permit such nonlawyer personnel to (i) counsel clients about legal matters, (ii) appear in court or in proceedings which are a part of the judicial process, or (iii) otherwise engage in the unauthorized practice of law.
(B) A lawyer or law firm that employs nonlawyer personnel shall not permit any representation that such nonlaw-yer is a member of The Florida Bar.
(C) A lawyer or law firm that employs nonlawyer personnel shall exercise a high standard of care to assure compliance by the nonlawyer personnel with the applicable provisions of the Code of Professional Responsibility. The initial and the continuing relationship with the client must be the responsibility of the employing attorney.
(D) The delegated work of nonlawyer personnel shall be such that it will assist only the employing attorney and will be merged into the lawyer’s completed product. The lawyer shall examine and be responsible for all work delegated to nonlawyer personnel.
(E) The lawyer or law firm that employs nonlawyer personnel shall not permit such nonlawyer to communicate with clients or the public, including lawyers outside his firm, without first disclosing his nonlawyer status.

The words “a high standard of care” have been substituted for “reasonable care” in paragraph (C), and the word “unauthorized” has been inserted in paragraph (A) (iii).

With reference to our modification of EC 3-6, we agree with the suggestion by Florida Legal Services, Inc., that the word “unauthorized” should be inserted prior to the words “practice of law” in the third paragraph of EC 3-6. This makes the phrase conform to the direction of Canon 3, which is:

“A Lawyer Should Assist in Preventing the Unauthorized Practice of Law.”

It also clarifies those matters which lawyers consider the practice of law but for which a layman may be specifically authorized to act. As an illustration, it is not our intent that this new ethical consideration should be construed in a manner which would prohibit legal aid lawyers from employing paraprofessionals to assist in resolving disputes before federal welfare agencies, which allow, by federal law, nonlawyers to represent individuals before the agency. We do intend that such paraprofessionals must perform the work at the direction of the legal aid agency lawyer who accepts the ultimate responsibility for the paraprofessional activity.

Our second modification relates to new Disciplinary Rule 3-104. The original proposal stated: “A lawyer . . . shall exercise reasonable care to assure compliance by the nonlawyer personnel with the applicable provisions of the Code of Professional Responsibility.” We believe a lawyer must exercise a high standard of care to assure compliance by his employees with the provisions of' the Code of Professional Responsibility, and the Disciplinary Rule has been modified accordingly.

The petition for amendment to the Code of Professional Responsibility is granted as modified herein.

It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON and HATCHETT, JJ., concur.

ROBERTS, J., dissents.

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

SUNDBERG, J., concurs in part and dissents in part with an opinion.

ENGLAND, Justice

(concurring).

I applaud the efforts of the Bar to clarify an area of legal services delivery which has been vague and confusing. I concur in the Court’s adoption of the Bar’s work product to achieve that result. I am genuinely concerned, however, that these guidelines for the use of nonlawyer personnel may create more problems than they solve if members of the Bar unfamiliar with the reasons for their adoption view them and apply them as a new authorization for something which has previously been prohibited. I express this general concern now to give notice of my willingness to revisit these rules if in practice they create unanticipated and undesired consequences.

BOYD, OVERTON and SUNDBERG, JJ., concur.

SUNDBERG, Justice

(concurring and dissenting in part).

I dissent only from that portion of the opinion which inserts the word “unauthorized” in the third paragraph of EC 3-6 and in DR 3 — 104(A) (iii). In my judgment it is the obligation of a lawyer employing a non-lawyer to so govern the conduct of the non-lawyer that the non-lawyer shall not engage in the practice of law in performing his or her duties for the lawyer. To utilize the term “unauthorized practice of law” carries an implication which, I believe, will create an undesirable precedent in the regulation of unauthorized practice of law generally. What constitutes the unauthorized practice of law has developed on an ad hoc basis through decisions of this Court and in some instances the respondent in a particular case has been found not guilty of unauthorized practice of law not because the conduct does not constitute an activity historically considered the practice of law, but solely because the area has been pre-empted from regulation by this Court. See, e. g., State ex rel. Florida Bar v. Sperry, 140 So.2d 587 (Fla. 1962), vacated, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), on remand 159 So. 2d 229 (Fla.1963). Recognizing this, Florida Legal Services, Inc., as amicus curiae, sought the change in language adopted by the majority. I am completely in sympathy with the activity in which Florida Legal Services, Inc. wishes to engage, but I would treat that matter separately in the Code so as not to create the implication which I believe is inherent in the modification adopted by the majority.