author: BOLIN, Judge.

text:
    Cathy Ellen CARAWAY, Plaintiff-Appellee, v. John David CARAWAY, Defendant-Appellant.
    No. 12708.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.
    Bn Banc. Rehearing Denied Nov. 6, 1975.
    Writ Refused Dee. 19, 1975.

      Campbell, Campbell, Marvin & Johnson by James M. Johnson, Minden, for defendant-appellant.
    Holloway, Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellee.
    Before BOLIN, HALL and DENNIS, JJ-
   BOLIN, Judge.

This appeal involves two suits arising out of the marriage, separation, and divorce of John David Caraway and Cathy Ellen Caraway. Mr. Caraway brought the first suit in which he sought the annulment of a divorce judgment obtained by Mrs. Caraway. The second suit involves a rule brought by the wife against her former husband ordering him to show cause why she should not be given custody-in-fact of their child, why past due child support should not he made executory, and why she should not be awarded alimony. The husband reconvened seeking to be relieved of liability for the past due alimony and to be awarded legal custody of the child. The two suits were consolidated for the purpose of trial in the lower court.

The wife filed an exception of no cause of action to the husband’s petition to annul the divorce decree. The trial court sustained this exception and dismissed the husband’s petition to annul. On trial of the rule the court awarded custody of the child to the wife but refused to make the past due child support executory and declined to give alimony to the wife.

The husband appealed from the dismissal of his petition to annul and from the award of child custody to the wife. The wife answered the appeal and alleged the trial court erred in refusing to make the past due child support executory. We affirm that part of the trial court’s judgment which dismissed the husband’s petition and refused to make the past due child support executory. We reverse the trial court’s award of custody to the wife.

The parties were 'married on May 12, 1972. The couple had one child, Christy Ellen Caraway, who is now three years old. On December 13, 1972, the husband filed suit for a separation from bed and board, and he obtained a default judgment on January 5, 1973. The decree granted temporary custody of the child to the wife and awarded her $50 per month child support.

On November 7, 1973, the wife filed suit for divorce. The attorneys who had represented the husband in his separation suit were now representing the wife in her divorce action. The husband was served personally but did not answer the wife’s petition. A preliminary default was taken on November 27, 1973, and was confirmed on May 7, 1974. The wife was given custody of the child and $40 per week child support under this divorce decree.

On June 14, 1974, the husband filed the present suit to annul the divorce judgment under the authority of Louisiana Code of Civil Procedure Article 2004, which provides in part:

“A final judgment obtained by fraud or ill practices may be annulled.”

The husband made two allegations of ill practices in his petition to annul: First, the attorneys who represented him in his suit for separation from bed and board later represented his wife in her divorce suit; second, after personal service was made upon him on November 8, 1973, his wife assured him she did not intend to go through with the divorce. On May 6, 1974, she informed him the suit was set for trial the next morning. The husband avers he did not feel his wife was being truthful with him and that in any case, he did not have time to employ an attorney to defend him in the matter. Consequently, he did not appear at the trial on May 7, 1974, and a default judgment was entered against him.

Accepting these factual allegations as being true, the trial court nonetheless held that the husband had failed to state a cause of action and dismissed the husband’s petition to annul. We agree with that decision.

Although Mr. Caraway has alleged that the conduct of the attorneys in this case is an ill practice, it is not sufficient grounds to annul the judgment under the authority of C.C.P. Article 2004. The husband does not allege any prejudice to him by the dual employment or any ill practice by the attorneys in obtaining the divorce judgment.

While we do not condone the wife’s action, we find her conduct did not constitute an ill practice sufficient to support a cause of action to annul a judgment. The husband was personally served. He had notice that the case was to be tried on May 7. Mr. Caraway was not uneducated or unfamiliar with legal proceedings. For reasons of his own, he chose not to appear and defend the suit. He will not be relieved of the consequences of that decision. The judgment of the trial court sustaining the exception and dismissing the husband’s petition for failure to state a cause of action is affirmed.

We now turn to the issues presented on appeal from the proceedings in the wife’s rule to show cause. The first issue is the trial court’s refusal to make past due child support executory.

The wife was given legal custody of the child in both the judgment of separation and the divorce decree. However, the husband has had custody-in-fact of the child for practically the entire time the parties have been separated. The judgment of divorce was rendered on May 7, 1974. The wife left the child at the home of the husband and his parents in the first part of June, 1974. The child remained with the husband from that time until trial of the rule on February 18, 1975. The husband did not make child support payments to his wife while the child was in his custody. Under these facts, the trial court refused to make past due child support executory because the child was in the physical custody of the husband and actually supported by him for the period during which the wife seeks past due child support.

The general rule in Louisiana is that a judgment for child support remains in full effect in favor of the party to whom it is awarded until the party held liable applies to the court and obtains a modification. Wallace v. Wallace, 316 So.2d 496 (La.App. 2d Cir. 1975) and Granger v. Granger, 193 So.2d 898 (La.App. 3d Cir. 1967), and cases cited therein. “No discretion is vested in the trial court to make past due support executory once it has been established and properly applied for.” Theriot v. Melancon, 311 So.2d 578 (La.App. 3d Cir. 1975).

However, our jurisprudence does recognize that a wife may waive her rights under a previously awarded alimony judgment. Duplechan v. Duplechan, 270 So.2d 264 (La.App. 3d Cir. 1972).

In Silas v. Silas, 300 So.2d 522 (La.App. 2d Cir. 1974), writs refused, the wife was given custody of the children and child support of $400 per month pursuant to a judgment of separation. Later, the wife voluntarily placed the children in the husband’s custody for a period of eight months. In the wife’s rule to regain custody of the children and to make past due child support payments executory, this court affirmed the trial court’s decision to allow a credit for that period of time during which the children were in the husband’s custody.

In the present case the wife was given custody of the child and awarded $40 per week child support pursuant to a divorce decree. Three weeks after its rendition, she voluntarily placed the child in the husband’s custody where the child remained until trial of the wife’s rule to regain custody and make past due child support executory. On these facts the case is indistinguishable from Silas, supra. Therefore, we hold that where the wife voluntarily places the only child of the marriage in the custody of the husband for an extended period of time, the husband is entitled to credit for such period of time on any past due child support. Accordingly, the judgment of the trial court refusing to make past due child support executory is correct.

The final issue presented in this appeal concerns the trial court’s decision to maintain the wife’s legal custody of the child. The wife has had legal custody of the child under both the judgment of separation and the divorce decree. However, the child has been in the husband’s physical custody for almost the entire time the parties have been separated because Mrs. Caraway has twice abandoned sole responsibility for care of the child to Mr. Caraway.

Prior to the divorce the wife lived with her divorced father, his girl friend and her two children, and her brother. Mrs. Caraway provided the sole means of support for all these persons out of Mr. Caraway’s child support payments and by working part time as a waitress.

Because of difficulties at home, Mrs. Caraway took the child to her husband a few weeks after the rendition of the divorce judgment and then left town. She was later arrested in Natchitoches and Leesville as a runaway. She was sent to the State Girl’s School at Pineville and remained there from September 19, 1974, until January 24, 1975. At trial Mrs. Caraway testified she planned to leave town again as soon as possible to go to Many. She did not know where she would stay or how she would support herself or her child. She admitted she could not care for the child at the time she left her with the husband and his family. She also testified they had given the child better care than she could have. At the time of trial, Mrs. Caraway was 17 years old and unemployed.

The trial court stated in oral reasons for judgment that the wife was immature and that her actions to date had not “indicated that she is stable and so forth to an extent that she can care for a child”. He acknowledged that the child had been well cared for while in the husband's custody. Nevertheless, the court, citing the maternal preference rule, decided the mother should be given another chance to care for the child.

Child custody cases are most difficult and our courts must look to prior decisions of our Supreme Court for guidance. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), enunciated the following principle:

“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958) and jurisprudence therein cited; see also Moosa v. Abdalla, 248 La. 344, 178 So.2d 273.
“(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958); Boatner v. Boatner, 235 La. 1, 102 So.2d 472 (1958); Tullier v. Tullier, 140 So.2d 916 (La.App.1962) (citing numerous decisions of this court to such effect).
“(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So. 2d 424 (1952); Nugent v. Nugent, 232 So.2d 521 (La.App.1970) (citing numerous court of appeal decisions to such effect).
“Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. . . .” (Citations omitted)

The maternal preference rule referred to in Fideo establishes a rebuttable presumption that the best interest of a child is better served by granting custody to the mother rather than the father. This court stated in Welch v. Welch, 307 So.2d 737 (La.App. 2d Cir. 1975):

“However, in actual operation, the maternal preference rule, instead of providing a complete guide for a decision of the custody issue, appears only to establish a presumption that the interest of a child will be better served by placing him in custody of the mother. Furthermore, the presumption appears to be a rebut-table one which must yield to convincing evidence that the greater advantage of the child will be served by entrusting his care to.the father.”

See also Ard v. Ard, 210 La. 869, 28 So.2d 461 (1946) and Murphy v. Murphy, 293 So.2d 909 (La.App. 2d Cir. 1974).

In the instant case, the mother has little to recommend her for custody of the child other than her biological tie of parenthood and professed desire to take care of the child. She has abandoned the child to the husband on two previous occasions; consequently, the child has been in her custody for only a few weeks since she was six months old. Her actions show her to be immature, irresponsible, and unstable. She declares she now wants a second chance to care for her child, but her other testimony does not exhibit any increase in maturity or stability. Her statements and actions have effectively rebutted any maternal preference running in her favor.

In contrast, the husband has shown that he can provide a good home for his daughter. He is employed by the telephone company and makes an adequate salary. He spends time with his child at night. His mother cares for the child during the day and takes the child to church on Sunday. With the exception of a few weeks, the child has lived solely with the father and his parents since she was six months old. The husband has shown that he can provide a better environment for the child than can the wife.

Mrs. Caraway’s conduct shows that she is unfit at this time to have custody of the child. On the other hand, Mr. Caraway has in the past and can in the future provide a stable home environment for his daughter. Accordingly, we reverse the trial court’s judgment awarding custody to Mrs. Caraway.

For the foregoing reasons the judgment appealed from is reversed insofar as it awarded custody of Christy Ellen Caraway to Cathy Ellen Caraway; and it is now ordered that there be judgment awarding the custody of the child to John David Caraway.

It is further ordered that Cathy Ellen Caraway have judgment for child support in the sum of $40 per week from February 21, 1975, through the date of rendition of this judgment.

The judgment is affirmed insofar as it rejects the action of John David Caraway to annul the divorce previously rendered in favor of Cathy Ellen Caraway and denies Cathy Ellen Caraway’s request for past due child support payments accruing prior to the filing of this proceeding.

The judgment is hereby amended to relieve John David Caraway of the obligation of payment of child support to Cathy Ellen Caraway after the date of rendition of this decree.

All costs of these proceedings are assessed equally against plaintiff and defendant.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Conrad STALLINGS, Plaintiff-Appellant, v. W. H. KENNEDY & SON, INC., Defendant-Appellee.
    No. 12693.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.
    Rehearing Denied Nov. 6, 1975.
    Writ Granted Dec. 19, 1975.
    Kidd, Katz & Strickler by Paul Henry Kidd, Monroe, George M. Strickler, Jr., New Orleans, for plaintiff-appellant.

      Snellings, Breard, Sartor, Shafto & In-abnett by George M. Snellings, Jr., Monroe, Bridges, Young, Matthews & Davis by John A. Davis, III, Pine Bluff, for defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ-
   HALL, Judge.

Plaintiff, Conrad Stallings, a cotton farmer, appeals from a summary judgment rendered in favor of defendant, W. H. Kennedy & Son, Inc., a cotton buyer, dismissing plaintiff’s suit for damages arising out of the “impoundment” at a warehouse of plaintiff’s cotton during the course of prior litigation between the parties concerning a forward sale contract. For the reasons expressed in this opinion, we affirm the judgment of the district court.

The essential allegations of plaintiff’s petition can be summarized as follows:

(1) Defendant knowingly, willingly and in bad faith, caused the impoundment at a warehouse, from approximately December 15, 1973 until August 1, 1974, of 441 bales of cotton grown by plaintiff during 1973;

(2) Defendant caused the impoundment of plaintiff’s cotton stored at the warehouse by (a) first writing a letter to the warehouse claiming ownership of the cotton; (b) instituting suit against plaintiff and others seeking to compel delivery of the cotton grown by plaintiff and also cotton grown by others when defendant knew there was no contract between plaintiff and defendant, the record in the previous suit being made a part of the petition by reference; and (c) preventing plaintiff’s removal of the cotton from the warehouse after defendant lost the previous suit by influencing other cotton buyers not to buy the cotton until defendant obtained a full release of plaintiff’s claim for damages;

(3) On December 15, 1973, plaintiff could have sold the 441 bales of cotton, weighing approximately 500 pounds each, for $.85 per pound but when plaintiff was finally able to sell the cotton on or about August 1, 1974, he was able to receive only $.49 per pound.

Plaintiff itemized his damages as follows :

(1) Loss of $.36 per pound $ 79,380.00
(2) Storage and warehouse charges from December 15, 1973 through August 1, 1974 4,500.00
(3) Attorney's fees 27,960.00
TOTAL .$111,840.00

Defendant filed an exception of no cause of action and motion for summary judgment contending that plaintiff’s petition together with the record in the previous suit and together with affidavits filed in support of the motion for summary judgment, disclose there is no genuine issue of material fact and that plaintiff, as a matter of law, is not entitled to recover damages arising out of defendant’s assertion of its alleged legal rights under the contract at issue in the previous suit. The affidavit of the president of the defendant corporation attached to the motion for summary judgment states that the previous suit was filed in complete good faith for the assertion of what defendant believed to be its lawful rights under the forward sale contract for the sale of plaintiff’s 1973 cotton crop, that defendant acted throughout with and on the advice of counsel, that defendant was at no time motivated by any malice or ill will toward the plaintiff and that defendant did nothing to impede or retard shipment of the cotton following rendition of the judgment in the previous suit on June 7, 1974. An affidavit of one of defendant’s attorneys declares that his firm advised and counseled defendant throughout the institution and prosecution of the previous suit and that he had no knowledge at any time of any malice or ill will on the part of defendant.

A counter-affidavit by plaintiff declares than an employee of defendant told another person defendant’s case against him was a loser and that defendant knew it could not win but had to go forward because they had made a claim with the warehouse. The affidavit further states defendant gave notice to the warehouse in December, 1973, when it knew it had no claim to th* cotton and defendant's announced intentior was to starve plaintiff to death, that is, tic up his cotton indefinitely in the warehouse and force him to sell defendant the cotton at defendant’s price. The affidavit further states that after judgment was rendered in the previous suit, defendant refused to release the cotton unless plaintiff would sign a release of his claim for damages and plaintiff was only able to sell the cotton after the ninety day period for appealing had run.

The record in the previous suit reveals that on January 24, 1973, plaintiff signed a document which purported to be a contract to sell to defendant all of the cotton to be produced by him during the 1973 crop year on certain property in Morehouse Parish. On August 27, 1973, plaintiff’s attorney advised defendant that plaintiff denied there was a valid contract and, therefore, did not intend to deliver any cotton to defendant. On September 13, defendant’s attorneys advised plaintiff’s attorney that defendant expected plaintiff to fulfill and perform the contract and had instructed the attorneys to institute such action as may be appropriate to that end.

On December 10, 1973, defendant’s attorneys wrote a letter to Louisiana Cotton Warehouse Co. Inc., where plaintiff’s cotton was stored, advising the warehouse that the cotton production of plaintiff for the year 1973 was under contract of sale to defendant. The letter states that its purpose is to notify the warehouse of the claims to ownership and possession of the cotton and advises that should any conflicting claim be presented to the warehouse it may wish to consult its own attorneys as to such legal measures it might wish to take. The letter calls attention to LSA-R.S. 54:1 et seq., and particularly sections 17 and 18 thereof pertinent to rights of warehouse-men confronted with adverse claims. Kennedy filed suit against Stallings on December 19, 1973, seeking specific performance of the forward sale contract. Stallings denied the validity but not the execution of the contract. A jury returned a verdict in favor of Stallings on June 7, 1974, rejecting Kennedy’s demand for specific performance. The instant damage suit was filed on September 17, 1974.

In granting the summary judgment, the district court in written reasons for judgment, analyzed the basic issue as follows:

“Whatever name or descriptive characterization may be applied to plaintiff’s instant suit, it is clear that the basic factual complaint is: defendant claimed it had a contract for plaintiff’s cotton but didn’t; that pursuant to this claim, defendant sought to compel him to deliver his cotton by filing suit; that in connection with the suit, defendant prevented him from selling his cotton until August 1, 1974.”

The district court held:

“The ‘impoundment’ of the cotton which plaintiff claims is the foundation of this suit was merely the result of defendant’s efforts to assert its good faith claim based on the signed document and advice of competent counsel. Such actions do not give rise to claims for damages. New Orleans Land Co. v. Slattery, 145 La. 256, 82 So. 215; Hurwitz v. Lotz, 172 La. 27, 133 So. 351; Patterson v. Lumberman's Supply Co., [La. App.], 167 So. 471; Loeb v. Johnson, [La.App.], 142 So.2d 518; Blanchard v. Employers Liability Assurance Corp., [La.App.], 197 So.2d 386.”

On appeal, plaintiff contends primarily that the district court erred in treating this action as a suit for malicious prosecution and in holding that in order to recover plaintiff would have to show defendant’s previous suit was filed without probable cause and in bad faith. Plaintiff contends this suit is not one for malicious prosecution of the previous specific performance suit but is a suit for damages for the loss caused by the unnecessary impoundment of plaintiff’s cotton. Plaintiff contends he is entitled to damages without proof of malice or lack of probable cause. Plaintiff further contends that even if it is necessary for plaintiff to show these elements in order to recover, plaintiff has alleged facts constituting bad faith and lack of probable cause and there is a genuine issue of material fact in this regard.

This is an action ex delicto and recovery in this case must of necessity be based on LSA-C.C. Art. 2315 which provides that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” The inquiry is did the action of Kennedy in notifying the warehouse of its claim and in prosecuting its suit for specific performance against defendant amount to “fault?” Did Kennedy act unreasonably under the circumstances ?

As a guide to determining fault, the jurisprudence has developed various categories of tort actions with fairly well-defined rules. Malicious prosecution is such a category. In the interest of unfettered access to the courts for assertion or protection of legal rights, actions for malicious prosecution have never been favored. Among the elements which must concur in order to recover damages for the malicious prosecution of a suit are malice and lack of probable ;ause. Eusant v. Unity In dustrial Life Ins. and S. Benefit Assn., 195 La. 347, 196 So. 554 (1940); Blanchard v. Employers Liability Assurance Corporation , 197 So.2d 386 (La.App.2d Cir. 1967).

These rules applicable to malicious prosecution actions have not been narrowly confined to actions for damages alleged to have resulted from the prosecution of a lawsuit but have been applied to actions for damages alleged to have resulted from a resort to other legal remedies for the protection of rights, such as the inscription of liens and the filing of notices of lis pen-dens.

In Hurwitz v. Lotz, 172 La. 27, 133 So. 351 (1931) plaintiff sued for damages alleged to be recoverable because of defendant’s recordation of a lien affidavit which was canceled as a result of a prior suit. In denying recovery the court held:

“We have repeatedly held that ‘courts cannot inflict damages on a party for resorting in good faith to law for the protection of his rights.’ Bladg v. Giacomino, 170 La. 638, 128 So. 661, 662; Girot v. Graham, 41 La.Ann. 511, 6 So. 815; Brelet v. Mullen, 44 La.Ann. 199 [194], 10 So. 865.
(( 5j{ *
“As the affidavit of defendant was not recorded maliciously and without probable cause, plaintiffs are not entitled to recover the damages herein claimed. Hartz v. Stauffer et al., 163 La. 382, 111 So. 794; Graffagnini v. Schnaider, 164 La. 1108, 115 So. 287.”

In New Orleans Land Company v. Slattery, 145 La. 256, 82 So. 215 (1919), plaintiff sued defendant for damages allegedly resulting from the filing by defendant of a notice of lis pendens in connection with a suit in which defendant was ultimately unsuccessful. Plaintiff did not allege or contend that defendant was liable in damages for filing and prosecuting his suit. The only act complained of was the recording of the notice of pendency of the suit. The court held:

“He was as well within his legal right in recording a notice of pendency of his suit as he was in filing the suit. The situation therefore is the same as if he had not recorded the notice, and the prospective purchasers had been deterred from buying the property in contest by hearing or otherwise learning of the pendency of the suits.
<< * * *
“A plaintiff who has reason to believe that he has a good cause of action is not rendered liable in damages to the person sued by the finding of the court that the plaintiff had not a good cause of action. Henry v. Dufilho, 14 La. 48. An action for damages for slander of title, like a suit for damages for malicious prosecution, cannot be maintained if the act complained of was done without malice and was founded upon probable cause or was prompted by a reasonable belief in a just cause of action.”

Patterson v. Lumberman’s Supply Co., Inc., 167 So. 471 (La.App.2d Cir. 1936) was a suit to cancel a materialmen’s lien and privilege and for damages allegedly resulting from the unlawful recordation of the lien. In denying recovery, the court held “it is well settled by our jurisprudence that unless the person causing the inscription of the lien is actuated by malice or ill will, no recovery lies for his unlawful action.”

In Loeb v. Johnson, 142 So.2d 518 (La.App.1st Cir. 1962) the court denied recovery to a party seeking damages for the alleged wrongful recordation of a disputed construction contract in the mortgage records, where no malice or fraud was proved and the party who recorded the contract was acting in good faith.

The primary act of defendant complained of in the instant suit for damages is the giving of notice of defendant’s claim to title and possession to the warehouse where the plaintiff’s cotton was stored. This notice had the practical effect of causing the warehouseman to withhold delivery to plaintiff until the adverse claims were judicially determined. LSA-R.S. 54:17 provides that if more than one person claim the title or possession of goods the warehouseman may require all known claimants to interplead. LSA-R.S. 54:18 provides that if someone other than the depositor or someone claiming under him has a claim to title or possession of goods and the warehouseman has information of such claim the warehouseman shall be excused from liability for refusing to deliver the goods either to the depositor or to the adverse claimant until the warehouseman has had a reasonable time to ascertain the validity of the adverse claim or to bring legal proceedings to compel all claimants to in-terplead.

The action of defendant is analogous to the filing of a lien or the filing of a notice of lis pendens. It was a resort to law for the protection or assertion of legal rights claimed. Unless there was malice and lack of probable cause on the part of defendant, plaintiff is not entitled to recovery.

The record in the previous suit shows that it was a serious, closely-contested lawsuit. Probable cause is evidenced by the entire record, particularly by the fact that Kennedy was suing on a written contract, the execution of which was not denied by Stallings. Nothing in the record of the previous suit indicated malice—the obvious motive of both parties being economic gain and business profit.

The documents in the record, the record in the previous suit, and the affidavits filed in support of the motion for summary judgment clearly reflect that Kennedy acted throughout with the advice of competent counsel. It is well settled that where a party acts on advice of counsel, the absence of malice is established and the want of probable cause is negated. Eusant v. Unity Industrial Life Ins. and S. Benefit Assn., supra; New Orleans Land Company v. Slattery, supra; Hurwitz v. Lotz, supra.

Plaintiff argues that affidavits cannot negate bad faith, malice or other subjective facts and that a trial is necessary to adjudicate these facts which are in dispute. Normally, malice and bad faith are not susceptible of being proven or dis-proven by affidavits alone. Roy & Roy v. Riddle, 187 So.2d 492 (La.App.3d Cir. 1966). However, the broad-brush conclu-sionary allegation of “bad faith” in plaintiff’s petition, without allegations of underlying facts, is not sufficient to raise genuine issues of material fact bearing on malice or lack of probable cause. The somewhat nebulous statements contained in plaintiff’s affidavit are not sufficient to raise genuine issues of material fact as to malice and probable cause.

There being no genuine issue as to material fact on these issues essential to recovery, defendant is entitled to judgment rejecting plaintiff’s demands as a matter of law.

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

Affirmed.


author: DENNIS, Judge.

text:
    Marguerite M. COLVIN, Plaintiff-Appellant, v. LOUISIANA HOSPITAL SERVICE, INC., Defendant-Appellee.
    No. 12680.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.
    En Banc. Rehearing Denied Nov. 6,1975.
    Writ Refused Dee. 19, 1975.

      Mayer, Smith & Roberts by Jerry Kir-cus, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Shreveport, for defendant-appellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   DENNIS, Judge.

This case presents the question of whether a coordination of benefits clause contained in a group health and accident insurance master policy may be asserted against a contributing member of the group despite the fact that the member was not informed by her certificate of insurance or otherwise notified that the master policy contained such a provision.

Plaintiff, Marguerite Colvin, was hospitalized from April 11, 1973 through April 23, 1973 for surgery. Among other expenses, she incurred a hospital charge of $985.26. She filed a claim based on this charge under two different insurance contracts.

Mrs. Colvin’s husband had been a member in good standing of the Bakery and Confectionery Union at the time of his death on May 1, 1972. As a result of a union negotiated contract, she, as his widow, was entitled to medical benefits for a period of one year following his death payable by the Bakery and Confectionery Union and Industry International Welfare Fund, hereafter referred to as “Bakery Fund”. Pursuant to this agreement, the Bakery Fund paid plaintiff $794.66 as a consequence of the hospital charge.

Plaintiff, as an employee of Willis-Knighton Hospital, was also an insured under a policy of group insurance issued to plaintiff’s employer by defendant, Louisiana Hospital Services, Inc., now Louisiana Health and Service Indemnity Company, hereafter referred to as “Louisiana Health”.

The master policy issued to Mrs. Col-vin’s employer by Louisiana Health contained a rider bearing the title “Coordination of Benefits”. The rider provided that any medical expense, for which insurance was not otherwise excluded, would be paid “to the extent that such item is not covered completely under the other ‘plan’ ”. The term “plan” was defined in the master policy as including “any coverage under labor-management trusteed plans, union welfare plans, employer organization plans, or employee benefits organization plans.”

The only indication of coverage provided Mrs. Colvin by Louisiana Health was a certificate of insurance booklet. The booklet provided that it was intended as a brief summary of the group health plan, that it was prepared for the purpose of presenting general information, and that it was not a substitute for the master policy. The coordination of benefits rider was not mentioned in the certificate of insurance booklet. In fact, it is undisputed that Mrs. Colvin was not notified of the coordination of benefits rider until after she had paid her employee portion of premiums and had incurred the medical expenses at issue in this case.

Relying on the coordination of benefits rider in the master policy, Louisiana Health denied in part Mrs. Colvin’s claim because of the payment to her by the Bakery Fund of $794.66 based upon the same hospital charge. Louisiana Health paid her only $190.60 of her claim based on the hospital charge, which was the portion of the hospital charge not covered under the Bakery Fund plan.

It has been stipulated by the parties that Mrs. Colvin incurred $1,512.76 in actual medical expenses, including the hospital charge, as a result of her surgery, and that she was paid $1,275.66 by the Bakery Fund and $586.10 by Louisiana Health in response to claims based on these medical expenses. Therefore, Mrs. Colvin was paid $349.00 in excess of her actual medical expenses by the two insurers.

Mrs. Colvin brought this suit against Louisiana Health for payment of the entire amount claimed as a consequence of the hospital charge, plus an equal amount as penalty for arbitrary and capricious refusal to pay without probable cause, and $2,500 as a reasonable attorney’s fee. Louisiana Health reconvened for recovery of excessive benefits paid under its policy. The trial court rendered judgment rejecting plaintiff’s claim and awarded defendant $333.00 on its reconventional demand. Plaintiff appealed, and for the reasons hereinafter assigned we reverse.

Defendant relies on the following language in the certificate of insurance booklet: “This booklet is distributed for purposes of presenting general information only. Its contents are not to be accepted or construed as a substitute for the provisions of the Master Contract.”

Louisiana Health argues that the provisions of the master policy prevail because, under the quotation above, the insurance extended to Mrs. Colvin was specifically subject to the provisions of the master policy. We do not agree, however, that the master policy prevails under these circumstances.

The Louisiana Insurance Code, La.R.S. 22:215, in pertinent part, requires an insurer issuing group health and accident insurance to issue to the employer for delivery to the insured employee “an individual certificate containing a statement as to the insurance protection to which he is entitled and to whom payable.” Louisiana Health points out that the statute does not contemplate or require a “full” statement of everything that is in the group policy to which the certificate is an adjunct. However, the purpose of the section is to provide persons insured under group policies with information regarding the coverage afforded. Undoubtedly only an accurate and informative statement will satisfy the statutory requirement. To hold that a description of coverage which omits a significant limitation on that coverage is adequate would thwart the legislative purpose.

In cases involving statutory, master policy, and certificate provisions very similar to those involved here, the California and Wisconsin Supreme Courts held that the provisions of the certificate prevailed. Humphrey v. Equitable Life Assurance Society of America, 67 Cal.2d 527, 63 Cal.Rptr. 50, 432 P.2d 746 (1967); Riske v. National Casualty Company, 268 Wis. 199, 67 N.W.2d 385 (1954). In the California case the certificate’s ambiguous provisions were construed against the insurer so as to afford full life insurance coverage to a disabled employee, assuming arguendo that the provisions of the master policy clearly would have defeated his rights to full coverage. In the Wisconsin decision, the master policy afforded medical benefits only to the “wife” of an employee, whereas the certificate stated that such benefits were payable to the “spouse”.

We agree with these decisions in which the courts rejected the insurer’s argument that the certificate may misrepresent the insurance protection without redress so long as it refers the holder to the master policy. Under such an emasculation of the statute as urged by the insurer the representations of the certificate would merely set a trap for the insured. If the statute is to be credited with any efficacy the insured is entitled to rely on the certificate which the law requires the insurer to give him, at least insofar as the certificate purports to deal with those subjects which the statute commands it to cover, viz., the insurance protection to which he is entitled and to whom payable.

It is true that the California and Wisconsin courts dealt with cases in which the terms of the certificate conflicted with the provisions of the master policy, rather than with a failure to note a significant limitation on coverage as in the instant case. The insured employee, however, is no less misled by the lack of notice of a significant limitation upon his insurance coverage than by an inaccurate description of it.

Although there are some decisions contrary to the holding of the Humphrey and Riske cases, Boseman v. Connecticut General Life Insurance Co., 301 U.S. 196, 203, 57 S.Ct. 686, 81 L.Ed. 1036 (1937); Chrysler Corporation v. Hardwick, 299 Mich. 696, 1 N.W.2d 43, 45 (1941); Germain v. Aetna Life Insurance Co., 285 Mich. 318, 280 N.W. 773, 776 (1938); Seavers v. Metropolitan Life Insurance Company, 132 Misc. 719, 230 N.Y.S. 366, 370 (1928), the weight of authority holds that the terms of the certificate are binding on the insurer. Prudential Insurance Company of America v. Roberts, 358 F.2d 394, 395-396 (5th Cir. 1966); John Hancock Mutual Life Insurance Company of Boston, Mass. v. Dorman, 108 F.2d 220, 222 (9th Cir. 1939); Clauson v. Prudential Insurance Company of America, 195 F. Supp. 72, 78-79 (D.C.Mass.1961); United Security Life Insurance Company v. Harden, 275 Ala. 169, 153 So.2d 246, 247 (1963); Missouri State Life Insurance Company v. Foster, 188 Ark. 1116, 69 S. W.2d 869, 870 (1934). This result is easily justified upon the ground that the individual certificate is the only document which the employee sees or is given at any time and that the insurer, who drafts the instrument in language it selects, cannot thereafter complain that it does not express the intention of the parties. Humphrey v. Equitable Life Assurance Company of America, supra. 1 Appleman, Insurance Law and Practice, 68-70 (1965).

This view, furthermore, is compatible with the general rules of contract construction set forth in our Civil Code:

“Art. 1797. Necessity for consent; proof
“Art. 1797. When the parties have the legal capacity to form a contract, the next requisite to its validity is their consent. This being a mere operation of the mind, can have no effect, unless it be evinced in some manner that shall cause it to be understood by the other parties to the contract. To prevent error in this essential point, the law establishes, by certain rules adapted to the nature of the contract, what circumstances shall be evidence of such consent, and how those circumstances shall be proved; these come within the purview of the law of evidence.”
‡ ‡ + ‡ sfc
“Art. 1958. Interpretation against party responsible for doubt
“Art. 1958. But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the .other party shall be adopted, whether he be obligor or obligee.”

See the concurring opinion of Judge Miller in Ledoux v. Old Republic Life Insurance Company, 233 So.2d 731 (La.App., 3d Cir. 1970) in which the court addressed a similar problem arising out of a limitation on the aggregate amount of coverage afforded by a group life insurance policy which was not noted in the certificates issued to the insured.

The Louisiana Insurance Code, La.R.S. 22:657, provides that failure to pay claims arising under health and accident contracts within thirty days of the date upon which proof of claim is furnished shall subject an insurer to a penalty of double the amount of the benefits due and reasonable attorney’s fees, unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. As set forth in the stipulation of the parties, defendant received on May 1, 1973 the proof of claim form attached to the stipulation and no payment was made on the claim based on the hospital charge until September 9, 1973. At that time plaintiff was belatedly paid $190.-60. In view of the inconsistency between the certificate and the master policy, the division of authorities in other jurisdictions, and the lack of a definitive decision in Louisiana, we conclude Louisiana Health had reasonable grounds for its delay in payment based upon the coordination of benefits rider. But defendant has offered no evidence informing us of any reasonable basis for its excessive delay in payment of the $190.60 which it conceded was due under the master policy. Therefore, plaintiff is entitled to a penalty of this amount because of the tardy payment. We will not assess attorney’s fees against the insurer, however, because the payment was made well in advance of the filing of plaintiff’s suit, and it has not been demonstrated that legal services were necessary to its inducement.

For the foregoing reasons the judgment in favor of Louisiana Health and against Mrs. Colvin is reversed and judgment is rendered in her favor in the amount of $794.66, as recovery of insurance benefits due, and $190.60, as recovery of a statutory penalty, with legal interest thereon from date of judicial demand, and all costs of this proceeding.

Reversed and rendered.


author: PRICE, Judge.

text:
    Robert HOWELL, Plaintiff-Appellant, v. WINN PARISH SCHOOL BOARD et al., Defendants-Appellees.
    No. 12704.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.
    En Banc. Rehearing Denied Nov. 6, 1975.
    Writ Granted Dec. 19, 1975.

      Holloway, Baker, Culpepper & Brunson, by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Charles B. Bice and Kermit M. Simmons, Winnfield, for defendants-appellees.
    Before PRICE, HALL and DENNIS, JJ-
   PRICE, Judge.

Robert Howell has appealed from the judgment of the district court dismissing his suit against the Winn Parish School Board, et al, requesting he be ordered reinstated as principal of Atlanta High School and awarded a monetary judgment for back salary and attorney’s fees.

Howell had been employed by the school board for a sufficient period of time to have acquired tenure rights under LSA-R. S.17:442. He had served as principal of Atlanta High School for several years prior to the time of his dismissal by the board on April 15, 1974. The proceedings leading to plaintiff’s discharge were initiated by E. H. Farr, who was at the time Superintendent of Winn Parish Schools. In a letter to the school board dated March 11, 1974, Farr alleged plaintiff was guilty of willful neglect of his duties as principal and recommended his discharge.

The primary allegation made by Farr in his recommendation is that Howell was absent from his duties as principal of the Atlanta High School between June 11th and June 15, 1973, which was the last work week for school principals. They are required to continue duties for a period of two weeks after the close of the regular school year in accord with a rule established by resolution of the School Board. Farr further alleged the absence of Howell caused him to have to assume the principal’s duties in signing checks in payment of accounts for the previous month and that a student employed in the N.Y.C. program was left unsupervised during this period.

The hearing held by the school board on March 11, 1973, was in compliance with the procedural requirements of the Teacher Tenure Law, LSA-R.S. 17:443, and the board after hearing the evidence presented on behalf of and against Howell voted unanimously to discharge him. He thereafter timely filed this proceeding in the district court for judicial review and seeks reinstatement, back salary and attorney’s fees. He also seeks injunctive relief.

By agreement all issues were tried at the time the rule for a preliminary injunction was set for hearing. The trial court concluded there was substantial evidence to support the board’s finding that Howell was absent for the period in question without permission, affirmed the decision of the board and rejected plaintiff’s demands.

On this appeal plaintiff urges the trial court was in error in affirming the action taken by the school board as the evidence presented did not show plaintiff’s absence was without permission and that the action taken by him did not constitute “willful neglect of duty” as provided in the statute.

The judicial review of a school board’s action terminating a tenured teacher under R.S. 17:443 is limited to a determination of whether the board who possesses executive and administrative authority by law has acted in good faith and upon substantial evidence in making its determination to dismiss the teacher. State v. Jefferson Parish School Board, 206 La. 317, 19 So.2d 153 (1944); Mims v. West Baton Rouge Parish School Board, 315 So.2d 349 (La.App. 1st Cir. 1975).

The record reflects the following evidence was presented to the board at the hearing. Farr testified Howell had requested and was granted a sabbatical leave for the 1973-1974 school year to attend college to work on his master’s degree. It was his understanding Howell was to enroll in the fall of 1973. He further testified that on a routine visit to the Atlanta School on Monday June 11, 1973, he inquired of the whereabouts of Howell and was told by the school secretary he had left school a few days early to register for the summer term at Northwestern State University. Farr also testified he observed the N.Y.C. student sitting in the principal’s office with no duties to perform. Farr further testified construction work was going on at the school which needed to be looked after by the principal. He also testified that no one had authority to sign checks in Howell’s absence and it was necessary that he make arrangements for his signature to be accepted in the place of the principal.

Howell testified he had asked Farr for permission to leave early to register for the summer term of college approximately a week before he left. He contends the discussion took place in the corridor near Farr’s office on a visit made to the office to file his final reports. He further testified he had finished all reports and had an agreement with the agricultural teacher at Atlanta High School, Prentis Ferguson, to act as a principal in his absence. He left the keys to the school the night before his departure with the husband of his secretary, Mrs. Dorothy Collins. Howell also contends he came by the school office during the middle of the week to sign checks and was advised by Mrs. Collins that the superintendent had already signed most of the checks. He contends he did sign two remaining checks at this time.

Farr denied that Howell asked him for permission to be absent for the week in question and testified he would not have granted it as it was not his policy to give permission for an absence of this length of time without board approval.

Plaintiff presented the testimony of a former female employee of the school board who purported to have overheard the conversation in which Farr granted plaintiff permission to be absent. There is evidence showing this employee had been discharged by Farr apparently for reasons unrelated to this matter prior to her appearance as a witness for Howell.

Prentis F'erguson testified he agreed with Howell to serve in his place and assumed plaintiff had obtained authority from the school superintendent for this request.

On the basis of this conflicting testimony regarding permission to be absent, the board apparently chose to believe Superintendent Farr. This is a factual matter involving credibility and the board’s finding on such an issue should not be disturbed unless manifestly erroneous. As we do not find manifest error in the finding of the board, we must resolve whether this constitutes “willful neglect of duty” justifying his discharge under R.S. 17:443.

We have examined all cases cited by counsel in brief and do not find that any are sufficiently analogous factually to define what conduct constitutes “willful neglect of duty.”

Although the evidence does not show any real or serious harm was caused by plaintiff’s absence for the week in question and though his dismissal under the circumstances could be termed harsh, we nevertheless are of the opinion such a dereliction is sufficient to authorize the board to exercise its discretion to terminate the employment.

In the absence of a showing that the board exercised its discretion arbitrarily or unreasonably, this court should not attempt to determine if its decision was wise or unwise. State v. Jefferson Parish School Board, supra.

For the foregoing reasons the judgment appealed from is affirmed at appellant’s cost.

DENNIS, J., dissents without giving written reasons.


text:
    Anna (Annie) Lee GRANT, Plaintiff-Appellant, v. OLIVE GARDENS, INC., Defendant-Appellee.
    No. 12701.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.
    En Bane. Rehearing Denied Nov. 6, 1975.
    Hal V. Lyons and Glen H. Smith by Glen H. Smith, Shreveport, for plaintiff-appellant.
    Johnston, Thornton, Pringle & Greer by James J. Thornton, Jr., Shreveport, for defendant-appellee.
    Before BOLIN, HALL and DENNIS, JJ.
   HALL, Judge.

Plaintiff, Anna Lee Grant, appeals from a judgment of the district court rejecting her demands for workmen’s compensation benefits from her employer, Olive Gardens, Inc. We affirm.

The Issue

The issue presented by this appeal is whether plaintiff’s employment as a nurses aide by the defendant nursing home was hazardous by reason of regular and frequent contact with electrical appliances as a substantial part of her duties so as to entitle her to workmen’s compensation benefits for an injury sustained during the course and scope of her employment.

The Law

LSA-R.S. 23:1035 provides in pertinent part:

“The provisions of this Chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business, or occupation in the following hazardous trades, businesses and occupations:
“ * * * The construction, installation, operation, alteration, removal or repairs of wires, cables, switchboards or apparatus charged with electrical current. * * * ”

In Fontenot v. J. Weingarten, Inc., 259 La. 217, 249 So.2d 886 (1971) the Louisiana Supreme Court held it is “the well-settled jurisprudence that, even though the principal business of the employer is not among the callings which are declared to be hazardous by the act, yet an employee may be considered to come under the act where there are features of the employer’s business which are classified as hazardous under R.S. 23:1035, such as mechanical or electrical appliances or equipment which are used in the business, and the employee, as an integral part of his duties, is regularly and frequently exposed to and brought into contact with such appliances, albeit he is primarily engaged in the nonhazardous part. And in such case the employee is entitled to compensation benefits even though he was injured while working in a nonhazardous phase of his employment.” The court further held that when an employee “is required to operate apparatus charged with electrical current as a substantial part of his employment he is engaged in a hazardous phase of his employer’s business, and is entitled to compensation (when injured in the course and scope of his employment) regardless of the nature of the apparatus or appliance involved, and even though the business of the employer, generally, may not be hazardous within the contemplation of the compensation act.” Compensation benefits were awarded to a stockman in a supermarket whose principal duty was to move goods from a storeroom, mark prices on them, and place them on the store shelves. However, the employee was required to perform the duties of a checker or cashier often enough to justify the conclusion that he regularly and frequently came into contact with and operated an electric cash register and conveyor-counter.

In Shepherd v. Fort Sherwood Apartments, 270 So.2d 298 (La.App. 1st Cir. 1972) writ refused 272 So.2d 375 (1973) the First Circuit, while disagreeing with the Supreme Court decision in Fontenot, followed the decision and awarded compensation benefits to a maid whose primary duties consisted of general cleaning duties in an apartment complex in the course of which she used an electric vacuum cleaner and rug shampooer and also cleaned out electric refrigerators, stoves, washing machines and clothes dryers. She also changed the lint filters on the clothes dryers and used the electric clothes dryers periodically.

In Humphries v. Jones, 260 So.2d 157 (La.App. 2d Cir. 1972) the Second Circuit recognized the rule of the Fontenot case but denied benefits to a hostess in a cocktail lounge whose principal and regular duties were nonhazardous and did not involve the use of electrical appliances but who on two isolated occasions operated an electric cash register and removed ice from an electric ice maker.

A nursing home is not one of the trades, businesses or occupations specifically listed in LSA-R.S. 23:1035 and no evidence was offered at the trial of the case before the court to establish that such business is hazardous in fact. Applicability of the Workmen’s Compensation Act in the instant case is dependent entirely on whether plaintiff established that she was required to regularly and frequently operate electric washing machines and dryers as a substantial part of her employment.

The Facts

The evidence establishes that plaintiff was employed as a nurses aide at the defendant nursing home for approximately seven years prior to the accident. She ordinarily worked the night shift from 10:00 p. m. to 6:00 a. m. On June 11, 1971, in the early morning hours while it was still dark, plaintiff slipped and fell while going out of a door of the main building of the nursing home allegedly as she was on her way to the washroom to take a load of clothes out of the washing machine. She sustained a relatively minor injury to her back for which she was treated by a doctor and discharged within about two months.

The evidence as to whether plaintiff was required to, or did in fact, regularly and frequently operate the washing machines and dryers at the nursing home as a substantial part of her duties is in sharp conflict. Plaintiff testified, with some corroboration by other employees and former employees of the nursing home, that the nurses aide on each shift had the responsibility of washing linens, that she regularly did so every night during her employment at the nursing home, and was doing so at the time she was injured. On the other hand, defendant offered the testimony of its director of nurses, corroborated to some extent by the testimony of other employees, to the effect that washing linens was not one of the duties assigned to nurses aides, that a linen service supplied clean linens, that any washing to be done was done by a housekeeper employed for that purpose, that the nurses aides had been specifically instructed not to do any washing, and that the nurses aides had been instructed not to go out of the main building to the washroom at night because of trouble with vandals in the neighborhood.

In denying defendant’s motion for summary judgment prior to trial of this case, the district court recognized the factual issue involved, holding there was a genuine issue as to a material fact, that is, whether the plaintiff did or did not operate the various electrical, mechanical washing equipment on the premises within the scope of her employment. After trial, in rejecting plaintiff’s demands, the district court stated in reasons for judgment:

“Considering the testimony of the witnesses and their demeanor and judging the credibility of same, the court is of the opinion that plaintiff has failed to carry her burden of proof and has failed to show that defendant is liable to her under the Workmen’s Compensation Statutes of the State of Louisiana.”

Resolution of the factual issue presented in this case depends primarily on the reliability and credibility of the several witnesses who testified. The evaluation by the trial judge of the testimony based on his observation of the witnesses is entitled to great weight. There are enough inconsistencies and weaknesses in the testimony of plaintiff and her corroborating witnesses to justify the trial court’s finding that plaintiff failed to prove the facts essential to applicability of the Workmen’s Compensation statute. There is no manifest error in the decision of the trial court.

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

Affirmed.


text:
    MONROE REDEVELOPMENT AGENCY, Plaintiff-Appellee, v. T. D. L. CORPORATION, Defendant-Appellant.
    No. 12700.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.
    En Bane. Rehearing Denied Nov. 6, 1975.
    Writ Refused Doc. 19, 1975.
    Theus, Grisham, Davis & Leigh, by Robert Lee Curry, III, Monroe, for defendant-appellant.

      Thompson, Sparks, Cudd & Dean, by George B. Dean, Jr., Monroe, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Monroe Redevelopment Agency expropriated property owned by defendant, T. D. L. Corporation, as part of an extensive public works project known as the Monroe Floodwall Gap Project. Plaintiff tendered to defendant $116,000 as compensation for the taking. When defendant refused this sum, plaintiff deposited the amount tendered into the registry of the district court and instituted expropriation proceedings under the authority of Act 215 of 1968; Louisiana Revised Statutes 33 :4621 et seq.; and Louisiana Revised Statutes 19:2 et seq.

After trial on the merits, the court awarded defendant $196,432.45 as just compensation for the property expropriated and cast plaintiff with payment of all court costs including the fees of defendant’s expert witnesses. Defendant appeals, seeking an increase in the award and an increase in the fee of one expert witness. Plaintiff answered the appeal, seeking a decrease in the award for the taking and a decrease in all of the expert witness fees. We amend the award to increase the landscape architect’s fee and as amended the judgment is affirmed.

The property expropriated by plaintiff is a 50-year-old, two-story office building and lot located in downtown Monroe. The property backs up to the Ouachita River and faces the Ouachita Parish Courthouse. The building had been an old hotel which defendant purchased in 1957 and extensively renovated to house the law offices of Theus, Grisham, Davis and Leigh. Originally, the building consisted of two stories with a balcony or mezzanine between the two floors. When the property was renovated in 1957 the interior of the building was completely gutted, leaving only the shell of the structure, and the interior was then redone in two stages.

During the first stage of renovation the floor of the mezzanine area was extended to provide a ceiling for the first floor which was then completed to furnish the needed office space. In 1966 the second floor was partially refurbished for additional office space. At the time of the taking the building consisted of first floor offices, a mezzanine with the same floor space as the first and second floors, and a partially completed second floor. The mezzanine and unfinished portion of the second floor were used as storage space for inactive files, unused books, and old furniture.

During the 14-year interval from purchase to the expropriation defendant built, to one side and the rear of the building, what was described as a lovely patio and ornamental garden consisting of a brick walkway, brick wall, sprinkler system, and a stunning variety of flowering trees, ornamental shrubs, and flowers, enclosed on two sides by a wooden fence. Mr. Leigh, witness for defendant, testified the garden was constructed solely for aesthetic purposes.

Plaintiff contends the property was worth no more than $135,000, of which $33,170 was attributed to land and $101,830 attributed to the improvements. Defendant contends the property was worth $244,613.-08, or $34,475.80 for land, $6,984.85 for the garden, and $203,152.48 for the building. The trial judge, considering the testimony of all the experts but refusing to adopt any one appraiser’s opinion in toto, awarded $34,475.80 for the land and $161,956.65 for the building, a total of $196,432.45. In addition, plaintiff was cast for all costs including the fees of expert witnesses employed by defendant. No award was made for the patio and garden.

On appeal defendant contends: (1) the award for the taking; of the building was inadequate because the trial judge refused to consider the rental value of the mezzanine in the “income” approach and charged an excessive rate of depreciation to defendant’s building under the “cost” approach; (2) it was error to refuse to compensate defendant for the taking of the patio and garden; (3) it was error to refuse to assess as costs the full amount charged by defendant’s expert landscape architect.

JUST COMPENSATION FOR THE BUILDING

The trial judge found the highest and best use of the property was as commercial property with a courthouse-related purpose. The lower court found in written reasons for judgment that there were no truly comparable sales from which to determine the value of the building under the “market data” approach. The “cost” and “income” approaches were used below as guides in reaching a proper award. The lower court did not adopt any one appraiser’s viewpoint entirely but tried to balance the often conflicting factual and opinion testimony of the expert witnesses. All experts readily admitted that both income and cost approaches are heavily dependent on the individual expert’s subjective opinion as to rental value, capitalization rate, depreciation figure, and other factors used in estimating the value of the property. As to the mezzanine, the trial judge noted that the office buildings used as compara-bles, for rental evaluation purposes, included a reasonable amount of storage area in the rent charged for office space. Therefore, the mezzanine should not be included as part of the rentable area.

This court has thoroughly examined the record and the trial judge’s written reasons for judgment. In view of the subjective nature of much of the testimony, we cannot Say the trial judge committed manifest error in his consideration of the evidence and determination of just compensation for the taking.

JUST COMPENSATION FOR THE PATIO AND GARDEN

The trial judge denied compensation for the taking of the patio and garden because “they are considered to be an esthetic improvement, not adding to the value of the land.” We note defendant in the instant case has not argued that the value of the land was enhanced by the presence thereon of shrubbery and landscape improvements under a market data approach; or that the value of the building was enhanced under an income approach. To the contrary, defendant contends the taking of the garden should be considered as a distinct and com-pensable item in addition to compensation due for the taking of the land and building. Defendant bases this argument on the constitutional mandate of “just and adequate compensation” and cites as authority for this contention, Housing Authority of Shreveport v. Green, 200 La. 463, 8 So.2d 295 (1942); State, Department of Highways v. Blair, 285 So.2d 212 (La.1973); and State, Department of Highways v. Crossland, 207 So.2d 898 (La.App.2d Cir. 1968). We find these cases inapposite.

Green and Crossland concerned expropriation of residences for which the market data approach did not afford a basis for a determination of just compensation because of the particular peculiarities of each home. Blair involved a taking of trees and shrubs but, unlike the present case, the trees and shrubs were found to be an integral part of the defendant’s landscaping business.

The main issue in the cases cited above concerned the proper method to measure the value of the thing taken in each. Whether or not the thing taken could properly be considered as an independent item of damage was not at issue in either Crossland or Green. In Blair the supreme court relied on R.S. 48:218 as statutory authority for valuing the plants separately from the land. Defendant does not urge the application of R.S. 48:218 to the circumstances presented herein.

Louisiana jurisprudence has established that purely aesthetic improvements should be considered only as to any enhancement the improvement may have on the value of the property as a whole and such improvements are not to be valued as an independent item of damages. See Dixie Electric Membership Corp. v. McDowell, 280 So.2d 306 (La.App. 1st Cir. 1973) and State, Department of Highways v. Burleigh, 160 So.2d 782 (La.App. 3d Cir. 1964). In the instant case, unlike Blair, the garden had no measurable monetary value apart from its influence on the rental rate of the office building or on the value of the land; as there is no evidence in the record reflecting such an effect, we find no error in the trial court’s denial of compensation for these aesthetic improvements.

EXPERT WITNESS FEES

Defendant argues that the award for the fee of his landscape architect should be increased from $100 to $150, which was the amount charged by that appraiser. The failure to award the amount charged was apparently an oversight, since the trial court stated if the invoice of the architect was admitted in evidence plaintiff would be cast for this amount as an expert witness fee. Plaintiff did not object to the invoice being admitted.

Plaintiff argues on appeal the fees of all defendant’s witnesses should be reduced and in some cases disallowed altogether. From our review of the record we find no abuse of the discretion accorded the trial judge in fixing the fees awarded the expert witnesses under the circumstances presented in this case.

Accordingly, the judgment is amended to increase the award to the landscape architect to $150 and, as amended, the judgment is affirmed at plaintiff’s cost.


text:
    MONROE REDEVELOPMENT AGENCY, Plaintiff-Appellee, v. Frank MERKEL, Defendant-Appellant.
    No. 12689.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.
    En Banc. Rehearing Denied Nov. 6,1975.
    Writ Refused Dec.. 19, 1975.

      Theus, Grisham, Davis & Leigh, by: Robert L. Curry, III, Monroe, for defendant-appellant.
    Thompson, Sparks, Cudd & Dean by: George B. Dean, Jr., Monroe, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ-
   BOLIN, Judge.

Monroe Redevelopment Agency expropriated defendant’s building and lot which it considered necessary in furtherance of its “Monroe Floodwall Gap Project”. Plaintiff deposited with its petition the sum of $123,510 as compensation for the property taken. Defendant answered the suit and waived any right to contest the expropriation and consented to the taking of his property, but denied the amount deposited was either the fair market value of the property or just compensation to defendant for the property being expropriated.

The parties agreed amicably to adjudication of title to plaintiff and withdrawal of the deposit by defendant. On the day of the trial a joint stipulation was filed in which defendant agreed to accept the sum of $60,000 for the expense of moving and relocating and the value of process electrical and plumbing systems, subject to a credit of $27,327 already deposited for the latter property. It was also stipulated the “sole and only issue to be resolved is the just compensation due defendant for the taking of his building and site improvements (with normal service utilities) and for the taking of the immovable fixtures less and except the process electrical and plumbing system.”

In a pre-trial statement, signed by attorneys for both parties, it was stipulated the value of the land expropriated by plaintiff was $35,400, but defendant disputed that the remainder of the deposit constituted fair market value of just compensation for the improvements situated on the property.

After trial, during which expert witnesses for both parties testified at length concerning the value of the building and the other items in contest, the district judge rendered judgment in favor of defendant, Frank Merkel, and against Monroe Redevelopment Agency awarding the sum of $147,209, less a credit for the amount previously deposited and withdrawn from the registry of the court. Additionally, the court fixed the fees of the expert witnesses employed by defendant in the following amounts: Clark Smith, building cost estimator, $500; Russell Doiron, appraiser, $1500; and Thomas Dupree, $1500. Plaintiff was cast with all costs, including the fees of defendant’s expert witnesses.

From this judgment defendant appealed, seeking an increase in the award, and plaintiff answered the appeal, seeking modification of the judgment and reduction of the award to the amount previously deposited by plaintiff. We affirm the judgment.

The trial judge, in his excellent and comprehensive written reasons for judgment, detailed the facts and circumstances of plaintiff’s business as well as the court’s conclusions with regard to the application of the law to respective appraisals. We shall only recount the facts necessary to an understanding of the proceedings.

COMPENSATION FOR BUILDING

Merkel operated an industrial laundry on the property involved, which consisted of a main building constructed of wood and masonry and an attached metal boiler room. The lot, abutting the Ouachita River, contained over 18,000 square feet in the “high bank area” and nearly 17,000 square feet in the “pool stage” area. The estimated age of the building was 60 years and, according to the testimony, had been built to house the Monroe Steam Laundry. Defendant purchased the old laundry building and equipment from the previous owners in November, 1966, for $50,000. According to defendant’s manager, a total of $36,694.72 had been spent in making repairs, alterations and additions to the property prior to the date this suit was filed in March, 1973. A major portion of the labor involved in these renovations had been performed by defendant’s employees.

The subject property is situated on the Ouachita River Bank one block south of the Ouachita Parish Courthouse and some five blocks south of DeSiard Street which is the “main” street of the older part of Monroe, Louisiana. In this area most of the buildings were quite old and many were vacant and were no longer used except for warehousing or storage.

Plaintiff’s appraisers, J. Wayne Medley and W. Dean Carter, using a combination of the three recognized appraisal methods, market data comparison, income capitalization approach, and cost of replacement less depreciation, arrived at a building value of $14,450 and $20,000, respectively. Doiron and Dupree, defendant’s experts, relying principally on reproduction cost less depreciation, reached the respective appraisal figures of $155,388.77 and $159,450.00. Dupree considered the laundry as a special purpose building because of the fact that it was built and operated as a laundry from the time it was first built until the date of expropriation. As observed by the trial judge:

“Even though all appraisers stated they were seeking to determine ‘fair market value’ and all agreed upon the theoretical definition of that term, it is clear from the testimony that throughout each appraisal, the experts relied repeatedly at various stages upon what were referred to as ‘judgments’ or ‘judgment factors.’ Moreover, in actual use, there was a most dramatic difference between the two pairs as to what ‘market value’ really is. Consequently, each result is based upon a mathematical calculation of such imprecise nature and composition that is of little more value than if each had merely stated the result. The gross disparity results primarily from wholly differing concepts of a ‘willing buyer’ and of the ‘cost approach’ ”.

It is apparent from the testimony of plaintiff’s appraisers that they sought to determine what a willing buyer would be interested in paying for the improvements if he considered the location, varying possible uses of the buildings, access, efficiency of arrangement, method of construction, cost of maintenance or repair, potential income and other objective factors.

On the other hand, the testimony of defendant’s appraisers reveals a subjective approach, using either the value to defendant himself or the price a buyer would pay if he wanted the buildings, exactly as they were at the time of taking, for use in the operation of an industrial laundry. Both Doiron and Dupree, defendant’s appraisers, requested a detailed cost estimate of exact reproduction which defendant furnished at considerable expense. Clark B. Smith, an experienced construction cost estimator, testified he had prepared the written estimate which was introduced into evidence and reflected a reproduction cost of $352,802.38. Smith charged defendant $810 for preparing the estimate, used by both of defendant’s appraisers, although Doiron and Dupree applied their individual depreciation adjustments and arrived at slightly different amounts.

We are cognizant, as was the trial court, of the recent expression of the Louisiana Supreme Court in Louisiana, Department of Highways v. Blair, 285 So.2d 212 (1973), that “just compensation” and not necessarily “fair market value” is the goal of these deliberations. Nevertheless, we agree with the lower court that defendant’s appraisers’ calculations are unacceptable as the measure of the value of the improvements in this case.

It is perhaps true defendant’s highest and best use of the property was the use being exercised by him for his own peculiarly adapted laundry operation ; however, the special features of the building had become largely obsolete and defendant had been required to spend almost as much as his purchase price to adapt the improvements to his own method of operation. Many of the original features in the building, such as the cold storage vault, were being used for other purposes and were not shown to have any value other than for uses which would have required no special construction. Thus it would have been unfeasible to incorporate such items in a new building.

The trial judge succinctly summed up his conclusion relative to the value of the building in the following language, with which we agree:

“Without specific detail of calculation, believing that ‘replacement’ is a prefereable guide to ‘reproduction’ in any cost calculation in this case, concluding that the subject improvements are substantially depreciated by physical and functional and economic factors, but being also of the opinion that existing use is a relevant factor, the Court has reached the conclusion that the value of the improvements (building and parking surface) is greater than estimated by plaintiff’s experts but far less than the almost wholly subjective estimates of defendant’s appraisers. Just compensation for these items of property is fixed at $40,000.”

SPECIAL IMMOVABLE FIXTURES

Plaintiff’s witness, Raymond Jones, an employee of an appraisal and consultant firm specializing in appraising machinery, equipment and special purpose fixture properties, was accepted as a qualified expert in this field. He assigned a value of $40,783 for the special laundry equipment. Of the numerous items included in this category, defendant actively contested only the value assigned to shelving, slick rails, bins, boilers' and their foundation, a solvent tank and automatic loading chute and a lint vacuum catch. Although defendant did not dispute the cost figures of plaintiff’s appraiser, except with respect to the loading chute and the lint vacuum catch, he does dispute all depreciation deductions.

Calvin Travis, who had serviced the two boilers in the laundry and had installed safety features and brought them up to specifications, testified for the defendant that the boilers had a future life expectancy of between 20 and 30 years. Plaintiff’s witness had used an average depreciation of between 40% and 45% as opposed to defendant’s plant manager’s opinion that a 22% rate was more appropriate.

The trial judge, balancing the fact that defendant’s expert had overlooked the age factor in arriving at a remaining useful life of the two boilers, but recognizing the controls on the boilers had been replaced in recent years, fixed the total value of the two boilers at $21,708. In addition he fixed the value of the automatic loading chute at $1,400 and the lint vacuum catch at $840, which represented an increase of $3,699 over the value assigned to these three items by plaintiff. The total just compensation for all special immovable items (other than process electrical and plumbing) was fixed at $44,482. We find no manifest error in this award and this portion of the judgment will be affirmed.

EXPERT WITNESS FEES

We next consider the contention of defendant that the lower court erred in failing to award his expert witnesses, Doi-ron, Dupree and Smith, the full amount of the fees charged defendant for their time and expenses as well as time spent in court. Consideration has been given to the rule that the fixing of expert witness fees is within the discretion of the court and no change should be made unless we find abuse of that discretion. We have reviewed the record and the trial court’s reasons for his decision and find no abuse of discretion in fixing the amount of the expert witness fees.

For the reasons assigned, the judgment of the lower court is affirmed.


author: GRIMES, Judge.

text:
    LEESBURG HOSPITAL ASSOCIATION, INC., a Florida Corporation, etc., Appellant, v. Edward W. CARTER, M.D., et al., Appellees.
    No. 75-640.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1975.
    John Edwin Fisher of Akerman, Senter-fitt, Eidson & Wharton, Orlando, for appellant.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellee Carter.
   GRIMES, Judge.

This is an appeal from an order dismissing a third party complaint. The original suit was a malpractice action by Mrs. Pre-vatt against Leesburg Hospital Association, Inc. According to the second amended complaint, shortly following her surgery in the hospital, Mrs. Prevatt’s condition worsened. When the hospital personnel were summoned, they are alleged to have negligently disregarded the results of the tests and readings performed on Mrs. Prevatt and to have failed to call a physician when they knew or should have known her vital signs were becoming critical. As a consequence, Mrs. Prevatt’s . physical condition became compromised to the extent that she suffered a heart attack.

The hospital filed a third party complaint against Dr. Carter asserting that during the hours when Mrs. Prevatt’s condition was worsening he came onto the hospital floor where he examined her and discussed the case both with her and with the nurses on duty. Dr. Carter is then alleged to have abandoned the patient in order to perform surgery on a different patient and to have ignored calls which informed him that Mrs. Prevatt’s condition was worsening. In the meantime it is said that the nurses followed the instructions specifically left by Dr. Carter before he proceeded to surgery. The hospital claimed that the damages sustained by Mrs. Prevatt were the result of the delay between the initial examination of Dr. Carter and his return one and one-half hours later. The third party complaint sought relief against Dr. Carter, who was not an employee of the hospital, on theories of indemnification and contribution.

The third party complaint for indemnification cannot be sustained upon a theory of active versus passive negligence because, if at all, both the hospital and the doctor were guilty of active negligence. Cf. Winn-Dixie Stores, Inc. v. Fellows, Fla.App.1st, 1963, 153 So.2d 45; Armor Elevator Co., Inc. v. Elevator Sales & S., Inc., Fla.App.3d, 1975, 309 So.2d 44. Likewise, the third party complaint does not allege the violation of a duty owed by the doctor to the hospital. Cf. Seaboard Air Line Ry. Co. v. American District Electric Protective Co., 1932, 106 Fla. 330, 143 So. 316; Maybarduk v. Bustamante, Fla.App. 4th, 1974, 294 So.2d 374.

The hospital’s claim for indemnification rests upon the rationale of Stuart v. Hertz Corporation, Fla.App.4th, 1974, 302 So.2d 187, in which it was held that a tortfeasor initially causing an injury has a right to seek indemnification against a physician for aggravating the injury in the course of his treatment. This case is in accord with the majority view on the subject throughout the nation. Annot., 8 A.L.R.3d 639 (1966).

While we agree with the principle of Hertz, we think it inapplicable in the instant case. The original tortfeasor and the doctor in Hertz were not joint tortfeasors as that term is generally understood. See Annot., 8 A.L.R.3d 639 at page 641. In Hertz, both the original tortfeasor and the doctor committed acts against the plaintiff which were demonstrably separable in time and effect. In the case at bar, even if it could be said that the alleged acts of the hospital and the doctor did not precisely coincide in time, nevertheless their acts combined to produce a single injury. The determination of whether two parties are joint tortfeasors should not depend upon split second timing.

When the negligent acts of two parties occur close together in point of time to cause a single injury, the difficulties in proving what portion of the damages were caused by each tortfeasor have led many courts to conclude that both are jointly and severally liable for all damages. See Annot., 100 A.L.R.2d 16 (1965). According to 74 Am.Jur.2d Torts § 62 (1974):

“Modern authority is generally in favor of the principle that joint, or more precisely, joint and several, liability may exist notwithstanding the absence of concerted action on the part of wrongdoers. Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is said to be responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the act of the other tortfeasor.

In Louisville & N. R. Co. v. Allen, 1914, 67 Fla. 257, 65 So. 8, the Supreme Court quoted with approval the following statement:

“ . . . ‘Where, although concert is lacking, the separate and independent acts of negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone might not have caused it. . . .

In Feinstone v. Allison Hospital, Inc., 1932, 106 Fla. 302, 143 So. 251, the same court said that joint and several liability exists in circumstances where “two or more wrongdoers negligently contribute to the personal injury of another by their several acts, which operate concurrently, so that in effect the damages suffered are rendered inseparable.” (Emphasis added.)

We believe that a fair construction of the third party complaint mandates the conclusion that if both the hospital and the doctor were negligent, their respective responsibilities for Mrs. Prevatt’s condition cannot be legally separated so that the hospital could make out a claim for indemnification from the doctor.

At the time the third party complaint was dismissed, the law of Florida precluded contribution among joint tort-feasors. Rader v. Variety Children’s Hospital, Fla.App.3d, 1974, 293 So.2d 778. Sensing the possibility that this rule might soon be changed, the lower court left the door open for amendment “in the event the Florida Supreme Court might alter the present law concerning contribution between joint tortfeasors.” It did not take long for the change to come to pass. The legislature passed the Uniform Contribution Among Tortfeasors Act and specified that it should apply to all causes of action pending at the time of its passage. Fla. Stat. § 768.31 (1975). The Supreme Court confirmed" the applicability of this act in Lincenherg v. Issen, Fla.1975, 318 So.2d 386 (Opinion filed July 30, 1975), and at the same time rejected the principle of apportionment between defendants predicated upon percentage of fault. Since the hospital has stated a cause of action for contribution against the doctor under RCP 1.-180(a), the order dismissing the third party complaint must be reversed.

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


author: MILLS, Judge.

text:
    BOYS WORK INCORPORATED, a Florida Corporation, Appellant, v. J. M. GALE and St. Johns County, Florida, a Political Subdivision of the State of Florida, Appellees.
    No. V-466.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1975.

      Hamilton D. Upchurch of Upchurch & Upchurch, St. Augustine, for appellant.
    Richard O. Watson and Willard Howatt, St. Augustine, for appellees.
   MILLS, Judge.

St. Johns County, cross plaintiff-appel-lee, sued Boys Work, cross defendant-appellant, seeking cancellation of a deed from it to Boys Work. Following trial before the court, the trial court found the deed void, and ordered it cancelled. Boys Work appeals from the adverse judgment. The issue before us is whether St. Johns County had jurisdiction to vacate a public road and deed the property to Boys Work without complying with the procedure required by Section 343.04, Florida Statutes 1941. St. Johns County did not have jurisdiction and we affirm.

In September 1923, Boys Work deeded Lot 45 of Boys Work Subdivision to St. Johns County subject to the restriction that at all times it be used for public road purposes. In January 1946, St. Johns County reconveyed the lot to Boys Work. Though the Minutes of the county commission do not reflect authority to execute and deliver the deed, the clerk’s shorthand notes show that a motion was passed authorizing the chairman and clerk to execute and deliver the deed. Minutes of the February 1946 meeting reflect that the clerk was instructed to request Boys Work to reconvey the lot, as the county commission misunderstood the situation with reference to the use of the road. In response to the Clerk’s request, by letter of 21 February 1946, an officer of Boys Work advised that it would not reconvey the entire lot to St. Johns County, but would deed a 30-foot right of way for use as a public road. In addition, the officer remarked that for many years the road had been closed, sand dunes covered it, and the runway washed away. After receipt of the letter, the minutes of the County Commission are silent, and no action was taken until this litigation was brought in August 1971. Since October 1923, Lot 45 has been marked “county exempt” on the tax assessor’s rolls, and Boys Work has not paid taxes on the lot since it was reconveyed to it in January 1946.

Section 343.04, Florida Statutes 1941, provides:

“No public road can be established, chapged or discontinued except on application to the county commissioners. Such application shall be made by petition duly signed by citizens, freeholders living in the vicinity of the road sought to be established or changed.”

This statute prescribes the rule for discontinuing a public road. It excludes any other method than by the procedure outlined therein. If the statutory procedure is not followed, the county commission lacks jurisdiction to proceed. Baskin v. State, 115 Fla. 392, 155 So. 655 (1934).

As the procedure prescribed by Section 343, Florida Statutes 1941, was not followed, the county commission lacked jurisdiction to execute and deliver the deed of January 1946 to Boys Work, therefore, the deed is void.

Counsel for Boys Work makes a persuasive presentation that the failure of the county commission to follow Section 343.04, Florida Statutes 1941, is cured by Section 336.11, Florida Statutes 1955, and that action by St. Johns County is barred by Section 95.23, Florida Statutes 1971. However, as we hold that the deed is void, we also hold the curative statute and the statute of limitations are not applicable to a void deed. Volusia County v. Del-Air Corp., 157 Fla. 316, 25 So.2d 804 (1946); Reed v. Fain, 145 So.2d 858 (Fla.1962); Brown v. Floyd, 202 So.2d 215 (Fla.App.1967).

Though not raised, we have considered Chapter 712, Florida Statutes, as well as Marshall v. Hollywood, Inc., 224 So.2d 743 (Fla.App. 4th, 1969); Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla.1970); and Reid v. Bradshaw, 302 So.2d 180 (Fla.App. 1st, 1974), and find that Chapter 712, Florida Statutes, is not applicable here as the deed before us was not recorded thirty years before suit was brought challenging its validity.

Affirmed.

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


text:
    CRESCENT BEACH CO. OF FLORIDA and Robert R. Hastings, Appellants, v. John G. CONZELMAN and Virginia W. Conzelman, husband and wife, Appellees.
    No. 75-1004.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1975.
    Harry A. Blair, Chartered, Fort Myers, for appellants.

      Larry A. Echols, Fort Myers Beach, for appellees.
   GRIMES, Judge.

This is an interlocutory appeal from an order granting the mortgagees a summary judgment in a mortgage foreclosure action.

The appellees (Conzelmans) held two mortgages signed by Christine Hastings, a single woman, and Robert R. Hastings, Jr. The mortgages covered adjacent lots in a subdivision. Pursuant to a written agreement, one of the mortgages was subordinated to a mortgage given by the Hastings to the Lee County Bank. The subordination agreement provided that if a default occurred in the mortgage being subordinated, this would also constitute a default in the other mortgage held by the Conzel-mans. Both Conzelman mortgages contained the following provision:

“10. That in the event this mortgage is junior and inferior to any other mortgage and/or lien on the above described real property, and this mortgage is given with knowledge of such superior mortgage (s) and/or lien(s), that said superi- or mortgage(s) and/or lien(s) will be paid by mortgagor in accordance with the terms and conditions thereof, and failure to make said payment (s) will constitute an automatic default in this mortgage.”

Subsequent to the execution of the three mortgages, all of the property was conveyed to Crescent Beach Co. of Florida (Crescent Beach Co.). The principal amount of the note secured by the mortgage to the Lee County Bank was $30,000, all of which was due and payable on September 7, 1974. When this note was not paid, the Lee County Bank, by letter dated December 10, 1974, declared its mortgage to be in default and demanded full payment of the principal and interest. On December 19, 1974, the Conzelmans’ attorney wrote the president of Crescent Beach Co. declaring the two mortgages held by them to be in default by reason of the default in the Lee County Bank mortgage. This letter further advised that the Conzelmans had elected to exercise their option to accelerate both mortgages and demanded payment in full within fifteen days.

When the Conzelmans did not receive the requested payment, they filed suit on January 20, 1975, to foreclose their mortgages. On January 22, 1975, the Lee County Bank mortgage was purchased by certain testamentary trustees, one of whom was the president of Crescent Beach Co. The trustees then advised Mr. Hastings and the Conzelmans that they had extended the due date of the Hastings-Lee County Bank mortgage to July 15, 1975. The foreclosure action was defended upon the ground that since the Lee County Bank mortgage was no longer in default, the Conzelmans had no right to accelerate their mortgages.

The appellants argue that an extension of time for the payment of the Lee County Bank mortgage could be given without the permission of the Conzelmans. Be that as it may, the fact that the extension was given could not avoid the acceleration of the Conzelman mortgages which specifically provided that the superior mortgage (the Lee County Bank mortgage) would be “paid by mortgagor in accordance with the terms and conditions thereof, and failure to make said payment(s) will constitute an automatic default in this mortgage.” When the Lee County Bank mortgage was not paid “in accordance with the terms and conditions thereof,” a default in the Con-zelmans’ mortgages then occurred. Barone v. Waters, Fla.App.3d, 1964, 165 So.2d 442. The extension of time which brought the Lee County Bank mortgage out of default could not have had the effect of vitiating the “automatic default” in the Conzelmans’ mortgages which had already occurred.

There is another reason why the order entered below should be sustained. The mortgagors did not obtain the extension on the Lee County Bank mortgage until over a month after the Conzelmans had declared their mortgages in default and demanded payment in full and two days after the suit to foreclose had been filed. While there are recognized circumstances which permit a mortgagor to cure his default even after the mortgagee has exercised his election to accelerate, none of these circumstances appear in this record. See New England M. L. Ins. Co. v. Luxury Home Bldrs., Inc., Fla.App.3d, 1975, 311 So.2d 160; Campbell v. Werner, Fla.App. 3d, 1970, 232 So.2d 252. Moreover, to the extent that the trial court has discretion in this area, it was exercised adversely to the appellants.

Affirmed.

HOBSON, A. C. J., and BOARDMAN, J., concur.