author: BARKDULL, Judge.

text:
    Eugene HOLMAN, a/k/a James Holman, Jr., Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-1074, 76-1196.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.

      Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, and James Wulchak, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   BARKDULL, Judge.

On January 21, 1976, Holman was charged by information with assault on the occupant of a house, robbery, and aggravated battery. He filed a notice of alibi pursuant to Fla.R.Cr.P. 3.200. At trial, defense presented alibi witness, Frank Ziegler, who stated that the defendant had been with him on the day of the incident on a Metro bus and that he and the defendant went to Goodwill Industries, where he [Ziegler] applied for a job. During the lunch break, the State located a witness from Goodwill who could testify as to the records and who produced the employment application of Ziegler, which showed it was dated January 21,1976, a date different from that alleged to be the date on which the crimes occurred. Immediately thereupon the defense counsel was tendered the witness by the State during the recess, and defense counsel interviewed the witness. The trial court then allowed the State to elicit testimony from the rebuttal witness from Goodwill Industries. The defendant objected to allowing rebuttal witness to testify, based on surprise and in the State not complying with Fla.R.Cr.P. 3.200. The motion was denied and the rebuttal witness identified the employment application, which disclosed that Ziegler had applied for a job on a day different from the day of the alleged crime. The jury thereafter found the defendant guilty of the three charges, and sentence was imposed accordingly. This appeal ensued.

The appellant contends the trial court erred in allowing the rebuttal witness to testify because (a) the State failed to properly notify the defendant of the rebuttal witness pursuant to Fla.R.Cr.P. 3.200, and (b) the witness was a surprise. Alternatively, the trial court should have allowed the defendant to depose the witness. Also, the defendant should have been allowed an hour to prepare a closing argument, necessitated by the testimony of the surprise witness.

The appellant contends that reversal is mandated where the defendant filed a notice of alibi, pursuant to Fla.R.Cr.P. 3.200, and the prosecution failed to file a notice of witnesses who would testify in rebuttal. While the terms of the rule provide that the court may exclude such rebuttal testimony, the rule also provides that the court may waive the requirements of the rule. In other words, the trial court must exercise its discretion under the circumstances of each case.

Fla.R.Cr.P. 3.200 and 3.220 are similar and much of what has been written regarding the latter is equally applicable to the former. It is noted that a discovery rule violation does not necessarily require exclusion of the witness or physical evidence. In Richardson v. State, 246 So.2d 771 (Fla.1971), the following is found:

* * * * * *
“ * * * petitioner’s contention that the State’s noncompliance with the Rule entitles him, as a matter of right, to have a non-listed witness excluded from testifying, or to have a mistrial where it becomes evident during the trial that there existed a witness who probably had knowledge of facts relevant to petitioner’s defense, is not tenable. The Rule was designed to furnish a defendant with information which would bona fide assist him in the defense of the charge against him. It was never intended to furnish a defendant with a procedural device to escape justice. * * * ” [emphasis added]

The Supreme Court of Florida, in Cooper v. State, 336 So.2d 1133 (Fla.1976), stated:

“ * * * failure to obey the Rule should be remedied in a manner consistent with the seriousness of the breach. Relevant evidence should not be excluded from the jury unless no other remedy suffices. * * % Jt
$ 4: ‡ 4: 4: 4;

See, also, Williams v. State, 264 So.2d 106 (Fla. 4th D.C.A. 1972); Kruglak v. State, 300 So.2d 315 (Fla. 3rd D.C.A. 1974).

The key question in any discovery violation is prejudice. Where a defendant is prejudiced by the State’s failure to comply with the rule or failure to produce evidence, it does not matter whether that failure was purposeful or not. Pizzo v. State, 289 So.2d 26 (Fla. 2nd D.C.A. 1974). On the other hand, a violation of a rule of procedure prescribed by the Supreme Court does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant. Sections 59.041 and 924.-33, Florida Statutes (1975); Williams v. State, 316 So.2d 267 (Fla.1975); Richardson v. State, supra; Cooper v. State, supra.

While the case law repeatedly talks about “prejudice” and “harm”, little attempt is made to define these terms. Instead, the opinions either conclude that prejudice has occurred or has not occurred and reverse or affirm accordingly. The State submits that “prejudice” cannot simply mean that the testimony is detrimental to the defense, for that is the purpose of all of the State’s evidence. Indeed, if the evidence was not prejudicial to the defendant’s claim of innocence, the evidence would not be relevant or material to the case, and excludable on that basis. Likewise, defense counsel’s reliance on the failure to list a potential witness cannot be the sole basis for exclusion of that witness, for if that were the test the trial court would not; be permitted to allow a non-listed witness to testify. However, this court has repeatedly noted that the trial court’s decision to allow a non-listed rebuttal witness is a matter of discretion, dependent on the circumstances of the case. Breedlove v. State, 295 So.2d 654 (Fla. 3rd D.C.A. 1974); Rowan v. State, 252 So.2d 851 (Fla. 3rd D.C.A. 1971).

Turning to the facts in this case, the record discloses the victim identified the defendant, through police photographs, at a lineup and at trial as the person who broke into her home, robbed her, and brutally assaulted her. A police expert, specializing in questioned documents, testified that the handwriting on a piece of paper left at the scene of the crime was the same as the handwriting on an employment application filled out by the defendant.

The defendant did not testify, but did call Frank Ziegler to testify as an alibi witness. Mr. Ziegler testified as to being with the defendant on the day in question and that they were both looking for employment. Mr. Ziegler remembered the date in question because he had applied for a job at Goodwill Industries on that date. On direct examination, defense counsel asked:

“Q Did you previously know James Holman?
“A Yes.
“Q For how long have you known him?
“A Several years.
“Q What is your relationship with Mr. Holman?
“A He is a friend of mine.
“Q And what was he doing?
“A Well, he was coming up to the bus stop where I was.
“Q What happened then? What did you do after that?
“A We talked a while, and I waited for a bus, because we was going to look for a job that day.
“Q And do you recall what bus you caught?
“A 23.
“Q Is that an—
“A Metro.
# * * * * *
“Q And if someone were to call Goodwill and ask if you put an application in on that date, would they verify that?
“A They should.”
* * * * * *

After the defense rested, the State Attorney requested a continuance to see if they could locate a rebuttal witness from Goodwill Industries. The court denied the State’s request for an extended continuance, recessed the trial for lunch, and advised the State that the trial would reconvene at 1:30 P.M. whether the witness was there or not. When the trial reconvened at 1:30 P.M., the court had been advised of the presence of the rebuttal witness. The defense objected to the witness testifying since he had not been listed as a rebuttal witness. The motion was denied. The court noted that the defense’s investigation had probably revealed the possibility of such rebuttal because counsel acknowledged that he had made inquiry into the existence of such an employment application at Goodwill Industries. Defense counsel knew pri- or to the trial that Ziegler contended that on the date of the alleged crimes the defendant was with him on a Metro bus, and the reason that he knew the date was December 17,1975 was because he had applied for work at Goodwill Industries. The State had no knowledge that it was because of this alleged job application that the alibi witness tied the bus trip to the day in question, until the responses to questions brought out by defense counsel of the witness Ziegler. There was no withholding by the State as to Goodwill Industries, and it certainly was no surprise to defense counsel.

Defense counsel next moved for a continuance so that he might be able to take deposition of the witness and have it transcribed. The court again verified that defense counsel had already spoken with the witness and offered to give defense counsel additional opportunity to speak to the witness. The court’s offer was rejected and the trial proceeded.

Appellant seeks to analogize the instant cause to that of Smith v. State, 319 So.2d 14 (Fla.1975), and Watson v. State, 291 So.2d 661 (Fla. 4th D.C.A. 1971), wherein it was held to be reversible error to permit a non-listed witness to testify in rebuttal of defendant’s claim of alibi. However, the facts of those cases made it clear that the prosecution had knowledge of the existence of the rebuttal evidence before defendant’s alibi witness took the stand and intentionally withheld disclosure of its rebuttal evidence. In the instant cause it is clear that the prosecution learned of the potential rebuttal evidence only after the alibi witness began testifying.

The trial court, through its discussion with defense counsel, assured itself that defense counsel reasonably anticipated the existence of such a witness, and that counsel had been afforded the opportunity to speak to the witness prior to his testifying. Where defense counsel is shown to have had prior knowledge of the possibility of a witness testifying, even though the witness is not listed by name, it is not error to permit the witness to testify. Cooper v. State, supra; Pizzo v. State, supra; Armbrister v. State, 320 So.2d 466 (Fla. 3rd D.C.A. 1975); Savinon v. State, 277 So.2d 58 (Fla. 3rd D.C.A. 1973).

Finally, defendant asserts that the trial court committed additional error in refusing to allow a continuance so that defense counsel might revise his closing argument. A trial judge is vested with broad discretion in matters of a requested continuance and that, by virtue of his closeness and intimacy with the circumstances of the case, he will not be reversed on appeal unless there is a clear showing of a palpable abuse of this judicial discretion. Moore v. State, 59 Fla. 23, 52 So. 971 (1910); Hall v. State, 70 Fla. 48, 69 So. 692 (1915); Walker v. State, 93 Fla. 1069, 113 So. 96 (1927); Hysler v. State, 132 Fla. 209, 181 So. 354 (1938); Andrews v. State, 134 Fla. 450, 184 So. 88 (1938); Acree v. State, 153 Fla. 561, 15 So.2d 262 (1943); Sikes v. State, 280 So.2d 17 (Fla. 3rd D.C.A. 1973); Mobley v. State, 327 So.2d 900 (Fla. 3rd D.C.A. 1976); Abbott v. State, 334 So.2d 642 (Fla. 3rd D.C.A. 1976).

Moreover, it has often been emphasized that applications for a continuance in a criminal case must be more closely and rigidly reviewed than in a civil case because of the greater temptation to obtain delay in a criminal case. Moore v. State, supra; Hall v. State, supra; Walker v. State, supra; Hysler v. State, supra; Aeree v. State, supra. Specifically, in Moore v. State, supra, it was noted that where testimony should reasonably have been anticipated it will not warrant a continuance for surprise. Therefore, it cannot be said that the trial court abused its discretion in this ruling.

The other points urged as error are found to be without merit. Roberts v. State, 154 So.2d 695 (Fla. 2nd D.C.A. 1963); Collins v. State, 180 So.2d 340 (Fla.1965); Russ v. State, 313 So.2d 758 (Fla.1975); Darden v. State, 329 So.2d 287 (Fla.1976), cert. dism. - U.S. -, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977); G.W.B. v. State, 340 So.2d 969 (Fla. 1st D.C.A. 1976); Section 59.041, Florida Statutes (1975).

Therefore, the convictions here under review be and the same are hereby affirmed.

Affirmed.

      . * * * * * *
      “Pursuant to Rule 3.200 of the Florida Rules of Criminal Procedure, the Defendant hereby notifies the State of Florida that he may rely upon the defense of alibi.
      “At 9:30 a. m. on December 17, 1975, the Defendant was riding on a public bus.operated by Dade County, Florida.
      “The witnesses by whom the Defendant expects to prove this defense are:
      Frank Ziegler”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Joseph Walton WHITE, Appellee.
    No. 76-982.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.

      Richard E. Gerstein, State Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Roy E. Black, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The State of Florida appeals an order granting defendant’s motion for dismissal and discharge from further prosecution because he was denied his right to a speedy trial.

Defendant-appellee, Joseph Walton White, was arrested on April 6, 1972 for rape and three misdemeanor charges — procuring for prostitution, contributing to the delinquency of a minor and making an obscene telephone call. On April 12 White was arraigned on the misdemeanor charges, and on April 28 his counsel’s motion for a psychiatric evaluation of White was granted. On May 31 White was committed to the South Florida State Hospital as a mentally disordered sex offender pursuant to Section 917.13, Florida Statutes (1970) as part of his plea negotiation on the misdemeanor charges. On August 11 White was discharged from the hospital; however, on August 16 he was again adjudged a mentally disordered sex offender and after a hearing on August 28 was committed under the above statute to the South Florida State Hospital. On September 11 White was informed against for rape. After escaping from the hospital and a series of discharges and recommitments, White was finally discharged on December 19, 1975 and adjudged competent to stand trial on the rape information. Following a demand for a speedy trial filed on January 27, 1976, White’s counsel moved for discharge on the ground that White had not been brought to trial for the alleged rape within 180 days of his arrest. This motion for dismissal and discharge was granted and the State appeals. We reverse.

After White’s arrest for rape and the three misdemeanor charges, White’s counsel moved for a psychiatric evaluation and this motion was granted. Thus, the 180 day time limitation in the rule was waived. Chester v. State, 298 So.2d 529 (Fla.3d DCA 1974).

Further, as a result of this psychiatric evaluation, White as part of his plea negotiations was committed to the hospital as a mentally disordered sex offender on May 31, 1972, and the time under the speedy trial rule was tolled as of that date until White was adjudged competent to stand trial on January 15, 1976. See Section 917.20, Florida Statutes (1975) and Grisham v. State, 319 So.2d 130 (Fla.1st DCA 1975).

There being no unreasonable or unnecessary delay attributable to the prosecution in bringing White to trial, the court erred in granting the motion for discharge. We reverse the discharge order and remand the cause to the trial court for further proceedings.

Reversed and remanded.


text:
    Raymond McCLUSTER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1258.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Robert M. Leen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an order of the trial court denying, without evidentiary hearing, appellant’s motion to vacate and set aside judgment of conviction and life sentence which follows a jury verdict of guilty of murder in the second degree.

It is appellant’s contention on appeal that the trial court erred in summarily denying appellant’s Rule 3.850, F.R.Cr.P., motion to vacate and set aside judgment and sentence without the taking of testimony or the benefit of trial transcript.

We have carefully considered the point on appeal in the light of the record on appeal, briefs and arguments of counsel, and have concluded that no reversible error has been demonstrated.

Affirmed.


author: OTT, Judge.

text:
    Maynard L. BARTLEY and Janet A. Bartley, his wife, Appellants, v. Joseph A. CHURCH and Jeannette Church, his wife, Appellees.
    No. 76-1312.
    District Court of Appeal of Florida, Second District.
    July 8, 1977.

      John F. Laurent, Taylor & Laurent, Lakeland, for appellants.
    Kevin K. Broderick, Wendel, McArthur, Broderick & Chritton, Lakeland, for appel-lees.
   OTT, Judge.

We affirm the judgment, entered below in all its particulars with one exception. Ap-pellees/defendants counterclaimed for foreclosure and went into possession of the real property prior to the sale under the judgment. Thus, the appellees were trespassers — albeit unwittingly — from August 12, 1975 (the date the locks were changed), until August 13, 1976 (the date the certificate of title issued). See Martorano v. Spicola, 110 Fla. 55, 148 So. 585 (1933).

The court below granted damages to appellants for trespass in the amount of $500 apparently calculating wrongful possession to be of only two months duration. The measure of recovery is the reasonable rental value (which, according to the testimony, the court properly found to be was $250 a month) during the time of unauthorized occupancy. Anchorage Yacht Haven, Inc. v. Robertson, 264 So.2d 57 (Fla. 4th DCA 1972). Accordingly, the damages for the twelve month trespass should be $3,000.

Appellants are entitled to an offset against the foreclosure judgment entered against them in the amount of $3,000.

Affirmed in part, reversed in part.

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


author: McNULTY, Judge.

text:
    CLERMONT MARINE SALES, INC., Petitioner, v. Binion Gaines HARMON, Respondent.
    No. 77-50.
    District Court of Appeal of Florida, Second District.
    July 8, 1977.

      Wallace W. Tudhope of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P. A., Orlando, for petitioner.
    Leonard H. Baird, Jr., of Hovis & Baird, Clermont, for respondent.
   McNULTY, Judge.

Defendant/petitioner seeks our gracious writ of common law certiorari to review an order of the circuit court, acting in its appellate capacity, which affirmed an order of the county court granting partial summary judgment on liability in favor of plaintiff/respondent. We grant the writ.

Plaintiff/respondent filed a complaint in county court seeking damages for the loss of his boat delivered to petitioner for repairs. The complaint alleged the existence of a bailment contract, the breach thereof by petitioner and consequent damages. Petitioner answered admitting the delivery of the boat and the bailment relationship but denying any negligence. Petitioner further answered alleging that the boat was stolen by unknown third parties.

Plaintiff/respondent filed a motion for summary judgment attaching an affidavit in which he alleged that when he was making inquiry of petitioner as to the whereabouts of his boat that petitioner had informed him the boat had been stolen from the front parking area of petitioner’s premises and “that the chain had been cut.” Petitioner filed no affidavits nor other admissible evidence in rebuttal. The motion was granted and was affirmed by the order under review in this proceeding.

We must, of course, before issuing a writ of common law certiorari, find a departure by the circuit court from the essential requirements of law and resultant irrevocable prejudice to petitioner. Ordinarily, for this test to be met when reviewing an order of a circuit court acting in its appellate capacity, we think legal error on the part of the lower [county] court must first be demonstrated and that such error must be of such magnitude that the aggrieved party has effectively been denied his day in court. Following a demonstration of such error, a failure by the circuit court in its appellate capacity to recognize such error or, though recognizing it a failure properly to remedy it, constitutes “the departure from the essential requirements of law” of which we speak within the context of common law certiorari. Viewed in this light, our granting of the writ does not grant a “second appeal.”

Here, both the county court and the circuit court correctly recognized that in a bailment action, given delivery of the bailed chattel and a failure to return it in accordance with the terms of the bailment agreement, a presumption of negligence on the part of the bailee arises unless he satisfactorily explains such failure or the loss, damage or disappearance of the chattel. The law imposes on the bailee the burden of showing that he exercised the degree of care required by the nature of the bailment.

Additionally, each of the courts below recognized that a movant for a summary judgment must conclusively demonstrate the nonexistence of a genuine issue of material fact. But the county court erred in concluding that there was such a demonstration; and the circuit court erred in agreeing to this and in expressly relying on Ferrell Jewelers v. Southern Mill Creek Products Company, Inc., holding that defendant/petitioner failed to come forth with some evidence which would raise doubts as to the validity of the aforesaid presumption of negligence on the part of the bailee. True it is that Ferrell Jewelers held that a bailor (as movant for summary judgment) is entitled to a summary judgment upon a prima facie showing of entitlement to the benefit of that presumption if the bailee fails to present some evidence in contravention thereof sufficient to “raise doubts as to the validity of the inference” of his negligence. But the existence of a genuine issue of material fact may also appear from the movant’s own evidence, in which ease the movant obviously has not demonstrated the nonexistence of such issue; and Ferrell Jewelers doesn’t deal with this point at all.

Clearly, here, plaintiff/respondent’s own supporting affidavit indicates that the petitioner had chained the boat to some immovable object, necessitating a cutting of the chain before the boat could be taken. Thus, some care was shown to have been exercised by petitioner. The question of whether it was “due care” sufficient to negate negligence was a jury question and summary judgment ought to have been denied.

The net result of oversight of such error of each of the two courts below, critically the oversight by the circuit court in the present posture of the case, was effectively to deny petitioner of its day in court. Such oversight thus constituted the departure from the essential requirements of law necessary for common law certiorari, and the irrevocability of prejudice in the premises is obvious.

In view whereof, we issue our gracious writ of common law certiorari and quash the order and mandate of the circuit court. The cause is remanded with directions that the order of the county court granting partial summary judgment on the issue of liability be reversed and the cause be remanded to the trial court for further proceedings not inconsistent herewith.

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

      . Cf. Goodkind v. Wolkowsky, 151 Fla. 62, 9 So.2d 553 (1942).

      . Cf. Kensington v. Gillman, 284 So.2d 405 (Fla. 1st DCA 1973).

      . See, e. g., Marine Office-Appleton & Cox Corporation v. Aqua Dynamics, Inc., 295 So.2d 370 (Fla. 3d DCA 1974); see also Adelman v.M & S Welding Shop, 105 So.2d 802 (Fla. 3d DCA 1958).

      . 205 So.2d 657 (Fla.1967).

      . Id. at p. 658.


text:
    Nellie RAYAM, Appellant, v. GREYHOUND LINES, INC., a California Corporation, Appellee.
    No. DD-121.
    District Court of Appeal of Florida, First District.
    July 11, 1977.
    Anthony I. Provitola and W. M. Chan-frau, of Provitola & McDermott, DeLand, for appellant.
    Dudley D. Allen, of Milam & Wilbur, Jacksonville, for appellee.
   PER CURIAM.

We have carefully read the record which reflects that the learned trial judge properly and repeatedly admonished counsel for both parties to refrain from the use of leading questions. Although one dissertation as to the reason for leading questions being impermissible might better have been delivered out of the presence of the jury, the language employed by the judge was mild and not couched in such terms as to have prejudiced either party, thus distinguishing Seaboard Coast Line Railroad Company v. Wiesenfeld Warehouse Company, 316 So.2d 567 (Fla. 1st DCA 1975) and Giglio v. Valdez, 114 So.2d 305 (Fla. 2nd DCA 1959). Accordingly, appellant having failed to demonstrate error, the judgment here appealed is

AFFIRMED.

BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.


text:
    STOP TRANSIT OVER PEOPLE, INC., et al., Appellants, v. BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY et al., Appellees.
    No. 77-1465.
    District Court of Appeal of Florida, Third District.
    July 11, 1977.

      Richard N. Friedman, Miami, for appellants.
    Stuart L. Simon, County Atty., and Stephen P. Lee, III, and Robert A. Ginsburg, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Appellants herein brought suit against the Dade County Board of County Commissioners and others to prevent the sale and closing of $48.4 million in Dade County “Decade of Progress” General Obligation Bonds, Series G. The bonds are to be used primarily to implement construction of a “unified transportation system” for Dade County. The major feature of the proposed system will be a 16.5 mile long elevated steel-on-steel railway.

The allegations of the complaint were essentially as follows: (1) that the sale of the bonds would be premature since Dade County does not have a binding legal commitment for federal funds which are necessary to complete the project; (2) 'that the rapid transit system as it is currently planned differs substantially from the originally proposed project, and that the bond sale would therefore constitute a fraud on the public; (3) that due to the negative vote on Dade’s proposed sales tax increase in November of 1976, the County cannot demonstrate that it will be able to meet projected operating deficits. Since this is purportedly a condition precedent to any commitment for federal funds, it was again argued that the sale of bonds is premature; (4) that Dade County does not know how much it will cost to purchase the Florida East Coast Railway right-of-way as well as other properties and businesses which would have to be condemned along the path of the proposed system. Therefore, the sale of bonds at this point in time is arbitrary and unreasonable; (5) that the County Commission did not give adequate public notice of its intention to consider the matter of the bond sale and that the adoption of the resolution authorizing the sale was without effect; (6) and finally, that the adoption of the bond sale resolution was an abuse of the Dade County Commission’s power or discretion.

The trial court dismissed the complaint with prejudice. In his conclusions of law, the trial judge cited the fact that the appellants lacked the requisite standing to maintain the action and that they were guilty of gross laches, inasmuch as they had not filed their action until almost six weeks after the passage of the bond sale resolution. At the time of filing, only two business days remained before the originally scheduled closing date for the sale. The trial court also ruled that it was precluded from reviewing the first four allegations of the complaint, which related to the validity of the bond issue. In support of this ruling, the court observed that Section 75.09, Florida Statutes, prohibits collateral review of bond issues where there has been a court determination upholding the validity of such an issue. Since the Supreme Court of Florida had affirmed the validity of the “Decade of Progress” General Obligation Bond Issue in Merrill v. Dade County, 277 So.2d 783 (Fla.1973), the trial court held that it had no jurisdiction to hear this new challenge to the bond issue. However, the court specifically found that the proposed use of the bond proceeds was “within the scope of the project authorized by the voters and is therefore a proper and legal use.”

The trial court finally held that the County Commission had given due and proper legal notice of their intention to consider the bond sale resolution. Therefore, since the resolution had been properly enacted and the remaining allegations of the complaint concerned the validity of the bond issue, which had already been decided, the entire complaint was dismissed with prejudice.

Although there are preliminary procedural questions at issue here, we will not consider them in light of our belief that the trial court properly ruled on the merits of the complaint. Cf. Terwilligar v. Ballard, 64 Fla. 158, 59 So. 244 (1912). Section 75.09, Florida Statutes, expresses an unequivocal legislative statement regarding the finality of court judgments which rule upon the validity of bond issues.

Counts I, III and IV of the complaint all deal with matters of financial commitment which were equally uncertain when the bond issue was initially sustained by the Supreme Court. The second count of the complaint deals with changes in the proposed rapid transit project. In this regard we will not deign to question the County Commission’s legislative expertise in light of the fact that we agree with the trial court’s conclusion that the proposed system is within the scope of the project which was authorized by the voters of Dade County and affirmed by the Supreme Court in Merrill, supra. We therefore find that the trial judge correctly determined that the Supreme Court’s decision in Merrill is, in the words of Section 75.09, “forever conclusive” as to the matters raised by the first four counts of appellants’ complaint.

There is no claim made here that the County does not have the power to build the proposed rapid transit system. Thus, since we have already ruled that the system as it now stands is within the scope of the project which was authorized by the initial “Decade of Progress” Bond Issue, we hold that the County Commission has not acted in an arbitrary or unreasonable fashion, or abused its discretion in making the alleged plan revisions.

Finally, we hold that the allegations concerning improper notice are without merit.

We therefore find that the trial court properly dismissed appellants’ complaint with prejudice. In view of the fact that this is an expedited appeal and expediency is essential, we are dispensing with the petition for rehearing. The opinion will be final when filed.

Affirmed.


text:
    Stephen R. SONSON and Barbara J. Sonson, Appellants, v. William J. OSWALD and Delores J. Oswald, Appellees.
    No. 77-689.
    District Court of Appeal of Florida, Third District.
    July 12, 1977.
    James F. Pollack, Miami, for appellants.
    Martin Blitstein, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Reversed. See Pan American Surety Company v. St. Ana, 105 So.2d 500 (Fla.3d DCA 1958); All Florida Surety Company v. Vann, 128 So.2d 768 (Fla.3d DCA 1961); Fidelity and Deposit Company of Maryland v. Atlantic National Bank of Jacksonville, 234 So.2d 736 (Fla.3d DCA 1970).


text:
    STATE of Louisiana v. Russell WHITING.
    No. 59227.
    Supreme Court of Louisiana.
    July 1, 1977.
    Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. 'Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Charles COLLINS.
    No. 59261.
    Supreme Court of Louisiana.
    July 1, 1977.
    Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Cleveland LEE.
    No. 59284.
    Supreme Court of Louisiana.
    July 1, 1977.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Glen BAILEY.
    No. 59302.
    Supreme Court of Louisiana.
    July 1, 1977.
    Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Earnest Mitchell LAFITTE, Jr.
    No. 59304.
    Supreme Court of Louisiana.
    July 1, 1977.
    Frederic L. Miller, Peters, Ward & Miller, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Under the appropriate exercise of this Court’s appellate jurisdiction, the assignments of error raised by defendant are without merit. The issue of whether or not the defendant was denied effective assistance of counsel is properly raised by writ of habeas corpus. State v. Ross, 343 So.2d 722 (La.1977); State v. Mouton, 327 So.2d 413 (La.1976).

Defendant’s conviction and sentence are affirmed.


text:
    STATE of Louisiana v. Hampton A. PORTER and Jerome Hall.
    No. 59325.
    Supreme Court of Louisiana.
    July 1, 1977.
    Marion B. Farmer, Covington, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Kenneth M. EDWARDS.
    No. 59327.
    Supreme Court of Louisiana.
    July 1, 1977.
    Mary Olive Pierson and Sheldon D. Bey-chok, Beyehok, Cooper & Pierson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: PER CURIAM:

text:
    STATE of Louisiana v. Alvin F. MALLERY, Jr.
    No. 59331.
    Supreme Court of Louisiana.
    July 1, 1977.
    Peter J. Compagno, George M. Leppert, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM:

Affirmed.


text:
    STATE of Louisiana v. Barbette WILLIAMS.
    No. 59334.
    Supreme Court of Louisiana.
    July 1, 1977.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Ernest BARBER.
    No. 59408.
    Supreme Court of Louisiana.
    July 1, 1977.

      J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Dallas CUSTARD.
    No. 59438.
    Supreme Court of Louisiana.
    July 1, 1977.
    Alan James Boudreaux, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Metairie, for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John HICKS.
    No. 59362.
    Supreme Court of Louisiana.
    July 1, 1977.
    Edward J. Lilly, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Metairie, for plaintiff-appellee.
   PER CURIAM:

Affirmed.


text:
    STATE of Louisiana v. Michael SENTINO.
    No. 59363.
    Supreme Court of Louisiana.
    July 1, 1977.
    Thomas W. Mull, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Thurman WHEELER.
    No. 59374.
    Supreme Court of Louisiana.
    July 1, 1977.
    Jim W. Wiley, Winnfield, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., Kermit M. Simmons, W. Scott Maxwell, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Cepha CUNNINGHAM.
    No. 59375.
    Supreme Court of Louisiana.
    July 1, 1977.
    Jim W. Wiley, Winnfield, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., Kermit M. Simmons, W. Scott Maxwell, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Stanley M. MOSELY.
    No. 59379.
    Supreme Court of Louisiana.
    July 1, 1977.
    Thomas W. Mull, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist.' Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Walter PRICE.
    No. 59403.
    Supreme Court of Louisiana.
    July 1, 1977.
    John M. Lawrence, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: PRICE, Judge.

text:
    AMERICAN BANK & TRUST COMPANY, Plaintiff-Appellant, v. Robert E. BYRON et al., Defendants-Appellees. CUMBERLAND CAPITAL CORPORATION, Plaintiff-Appellee, v. Robert E. BYRON et al., Defendants-Appellees, American Bank & Trust Company, Defendant-Appellant. CUMBERLAND CAPITAL CORPORATION, Plaintiff-Appellee, v. PENNSYLVANIA GENERAL INSURANCE CO., Defendant-Appellee, American Bank & Trust Company, Defendant-Appellant. GAMM, GREENBERG & KAPLAN, Plaintiff-Appellant, v. Robert E. BYRON et al., Defendants-Appellees, American Bank & Trust Company, Defendant-Appellant. PENNSYLVANIA GENERAL INSURANCE COMPANY, Plaintiff-Appellee, v. Robert E. BYRON et al., Defendants-Appellees, American Bank & Trust Company, Defendant-Appellant.
    Nos. 13245-13249.
    Court of Appeal of Louisiana, Second Circuit.
    En Banc.
    Rehearing Denied, June 22, 1977 in No. 13248.
    May 23, 1977.

      Lewis Weinstein, Shreveport, for American Bank & Trust Co.
    Mayer, Smith & Roberts by William L. Lowe, Walter O. Hunter, Jr., Ronald R. Inderbitzin, Shreveport, for Pennsylvania Gen. Ins. Co.
    Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for Gamm, Greenberg & Kaplan.
    Norman R. Gordon and Alex Rubenstein, Shreveport, curators ad hoc, for Robert E. Byron et al.
    Naff, Kennedy, Goodman, Stephens, Donovan & Parnell by Ralph W. Parnell, Jr., Shreveport, for Cumberland Capital Corp.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

The principal issues in these consolidated cases are the apportionment of the proceeds from insurance to the mortgagees named in the loss payable clause of the policy and whether the insured’s attorney has a privilege on these funds.

Robert Byron owed Lot 367, Broadmoor Subdivision, Unit 2, in Shreveport which was encumbered with a first mortgage of $104,500 to Cumberland Capital Corporation, and a second mortgage of $29,025 to the American Bank and Trust Company in Coushatta. The improvements were insured for fire and extended coverage by Pennsylvania General Insurance Company, with Cumberland and American Bank as the loss payees under the policy.

Between February 27 and March 1, 1974, extensive damage was caused to the insured building by vandals. Byron, a Texas resident, was represented by the law firm of Gamm, Greenberg, and Kaplan of Shreveport at the time a claim was made for the damage. The General Accident Fire and Life Insurance Company, as Pennsylvania’s agent, issued a check for $15,023.93, the negotiated amount of the loss, on September 3, 1974, payable to Byron, Cumberland, and American Bank. The check was later delivered to the law firm representing Byron.

On September 17,1974, Cumberland foreclosed against the property by executory process. The property was sold, without benefit of appraisal, to Cumberland on November 6, 1974. On November 8, 1974, American Bank, who had previously obtained a judgment against Byron, filed a garnishment against Pennsylvania General and Gamm, Greenberg, and Kaplan seeking to recover the proceeds of the insurance claim paid on the Byron property.

On November 15, 1974, Cumberland filed suit against Pennsylvania General seeking payment of the proceeds of the insurance claim directly to it and for damages for breach of the insurance contract under which it was named as loss payee. Cumberland contends that because the insurer failed to timely issue its draft payable solely to it, the necessary repairs could not be made promptly, and the property sustained further damage.

On December 11, 1974, Gamm, Green-berg, and Kaplan deposited the insurance check in the registry of the court and filed suit against Byron for attorney’s fees claiming a privilege against the funds deposited.

On December 26,1974, Pennsylvania General filed a proceeding in the nature of a concursus asking the court to direct proper disposition of the insurance proceeds among the various claimants.

On November 13, 1975, Cumberland filed pleadings in its prior suit against Byron alleging that the executory process under which the property was sold was null because the demand for payment was not made as required by law. American Bank filed appropriate pleadings contesting the right of Cumberland to annul the sale by executory process.

These multiple actions were consolidated for trial. The district court rendered judgment rejecting Cumberland’s demands for damages against Pennsylvania General and its action to annul the sale of Byron’s property under executory process. The court awarded Gamm, Greenberg, and Kaplan the sum of $1,000 out of the funds deposited from insurance proceeds, and after allowing payment of curator fees of $150, ordered the remainder of the fund to be paid to Cumberland. The demands of American Bank were rejected entirely.

American Bank appealed contending that the entire proceeds of the insurance should be paid to it as the holder of the second mortgage because Cumberland lost any further claim against its debtor, Byron, at the time it provoked the sale of his property by executory process without benefit of ap-praisement.

Gamm, Greenberg, and Kaplan appealed requesting an increase in the amount allowed them as a privilege on the fund for attorney’s fees.

Cumberland answered the appeals of American Bank and Gamm, Greenberg, and Kaplan specifying as error the failure of the trial court to award it the entire amount of the insurance proceeds. Cumberland has not appealed the judgment rejecting its request to annul its sale by exec-utory process of Byron’s property or from the judgment rejecting its claims for damages against Pennsylvania General. Therefore, these issues are not properly before this court. See La.C.C.P. Art. 2133 and Lumber Products Inc. v. Hiriart, 255 So.2d 783 (La.App. 4th Cir. 1971).

The sole questions for our consideration are:

1) Is Cumberland entitled to be paid by preference the balance owed on its first mortgage which is in excess of the fund on deposit, or has its right been affected by the foreclosure on the mortgagee’s property without benefit of appraisement?
2) Is Gamm, Greenberg, and Kaplan entitled to any part of the proceeds by reason of an attorney’s lien and privilege for services rendered to Byron, or on behalf of Cumberland or American Bank, and if so, how much?

The trial court found Cumberland’s entitlement to the insurance proceeds vested at the time the loss occurred and was not affected by the subsequent sale of the mortgagee’s property without benefit of ap-praisement. We find no error in this con-elusion. At the time of the loss on the property, the mortgage to Cumberland was in full effect as a first mortgage and the insurance contract between Byron and the insurer named Cumberland a third party beneficiary. The occurrence of the loss and the issuance of the draft by the insurer took place prior to the filing of the foreclosure proceeding on the property. Cumberland is not seeking enforcement of any balance owed by Byron, but is claiming the amount owed to it under the terms of the insurance contract.

Gamm, Greenberg, and Kaplan claim a lien and privilege for attorney’s fees under LSA-R.S. 9:5001, which provides:

A special privilege is hereby granted to attorneys at law for the amount of their professional fees on all judgments obtained by them, and on the property recovered thereby, either as plaintiff or defendant, to take rank as a first privilege thereon.

The statute restricts the privilege created to “judgments obtained by them” or “on property recovered thereby.” As no judgment was obtained by the law firm in this instance, the statute has no application.

The trial court apparently awarded attorney’s fees on the basis that some work performed by the law firm for Byron inured to the benefit of Cumberland and American Bank.

The testimony of the attorney who performed the work makes it clear that all work was done solely for their client, Byron, and no contractual relationship existed with the other parties. There is no evidence to show the efforts of the law firm were necessary to obtain payment of the loss by the insurer. Under these circumstances, the trial court was in error in ordering the payment of attorney’s fees by priority out of the funds on deposit. For a comprehensive discussion of the award of attorney’s fees in nonclient situations see Lyons v. City of Shreveport, 339 So.2d 466 (La.App. 2nd Cir. 1976); writ denied 341 So.2d 905 (La.1977).

The judgment awarding attorney’s fees to Gamm, Greenberg, and Kaplan out of the fund on deposit is reversed and their demand for a privilege on the fund is rejected. The judgment is amended to order the fund deposited in the registry of the court be paid to Cumberland Capital Corporation after payment of the curator fee and court costs.

In all other respects, the judgment is affirmed.


author: STOULIG, Judge. LEMMON, Judge,

text:
    SEARS, ROEBUCK AND COMPANY v. Elizabeth REESE.
    No. 8073.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Chaffe, McCall, Phillips, Toler & Sarpy, Peter Frank Liberto, New Orleans, for plaintiff-appellee.
    Russell & DeRussy, Patrick D. Breeden, New Orleans, for defendant-appellant.
    Before LEMMON, STOULIG and BEER, JJ.
   STOULIG, Judge.

This is an appeal from a judgment dismissing as prescribed the reconventional demand of Elizabeth Reese in which she claims Truth in Lending Act penalties against plaintiff, Sears, Roebuck and Company, for an alleged failure to disclose the information required by 15 U.S.C. § 1601, et seq., in a credit transaction. We affirm.

After a pre-argument conference with this court, counsel for both litigants entered into this written stipulation that succinctly states the issue and the undisputed facts pertinent to its resolution:

“Solely for the purposes of this appeal and without prejudice to other issues in this case we stipulate the sale by Sears to Elizabeth Reese was made on November 13, 1974. Sears’ suit was filed October 22,1975. Elizabeth Reese’s incidental demand was filed on or about December 16, 1975, less than 90 days from the filing of Sears’ petition but more than one year from the date of the sale. Elizabeth Reese’s incidental demand was based upon Federal Consumer Credit Protection Act, 15 U.S.C.A. 1601, et seq., and Regulation Z of the Federal Reserve Board, 12 CFR 226.1, et seq., or commonly referred to as the Federal Truth in Lending Act. The sole issue is the applicability of Louisiana C.C.P. art. 1067, Added by Acts 1970, No. 472, Amended by Acts 1974, No. 86, and its relation to Title 15, USC, Sec. 1640(e).”

15 U.S.C. § 1640(e) requires a penalties claim to be brought within one year of the occurrence of the violation. The emphasized portion of this quoted statute leaves no doubt this federally created right must be exercised within the time specified no matter where the claim is filed:

“Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.” (Emphasis ours.)

Appellant would have us apply C.C.P. art. 1067 to revive the demised claim. It provides:

“An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.”

Because Truth in Lending penalties claims derive from an act of Congress, state procedural laws cannot be applied to expand the time limit set in the statute that created the right. In discussing this principle in Atlantic Coast Line R. R. v. Burnette, 239 U.S. 199, 36 S.Ct. 75, 60 L.Ed. 226 (1915), Mr. Justice Holmes, speaking for the Court, said:

“ * * * At all events the act of Congress creates the only obligation that has existed since its enactment in a case like this, whatever similar ones formerly may have been found under local law emanating from a different source. Winfree v. Northern Pacific Ry., 227 U.S. 296, 302, 33 S.Ct. 273, 57 L.Ed. 518, 520. If it be available in a state court to found a right, and the record shows a lapse of time after which the act says that no action shall be maintained, the action must fail in the courts of a State as in those of the United States.” 239 U.S. at 201, 36 S.Ct. at 76.

We hold the claim for Truth in Lending penalties not having been initiated within a year of the occurrence has per-empted. In reaching this result we point out this court’s prior decisions permitting the penalties to be pleaded as an affirmative defense. See Reliable Credit Serv., Inc. v. Bernard, 339 So.2d 952 (La.App. 4th Cir.1976), and Termplan Mid-City, Inc. v. Laughlin, 333 So.2d 738 (La.App. 4th Cir.1976).

In reaching this result we limit our holding to defendant’s reconventional demand and point out the Truth in Lending penalties claim, if valid, may be used as set-off against any judgment obtained by plaintiff after trial on the merits.

The judgment appealed from is affirmed. This matter is remanded for further proceedings.

AFFIRMED.

LEMMON, J., dissents with written reasons.

LEMMON, Judge,

dissenting and assigning reasons.

Sears’ principal demand is $1,328.70, plus 25% attorney’s fees and court costs. Mrs. Reese’s claim for the Truth in Lending penalty amounts to $856.52 (twice the finance charge, up to a maximum of $1,000.00).

Since the principal demand far exceeds the claimed penalty in this case, Mrs. Reese’s entire claim may be asserted. as compensation against the principal demand. I therefore disagree with the affirmation of a judgment which entirely dismisses the reconventional demand as prescribed.

Because this case involves only an incidental demand in reduction of the principal demand, we are not called upon to decide whether Mrs. Reese could utilize C.C.P. art. 1067 to achieve affirmative recovery. . Any decision that she could not do so is unnecessary under the facts of this case (at least in the determination of the exception of prescription prior to trial on the merits), and I would defer such a decision until the issue is squarely presented.

      . Use of such claims as an affirmative defense has been approved in the Reliable Credit and Termplan cases. However, such a claim is not technically a defense, but is more properly asserted as a reconventional demand in reduction of the principal demand.
      For a comprehensive discussion, of the subject, see Dworetzky, Truth in Lending and the Statute of Limitations, 21 Vill.L.Rev. 904 (1976).


author: HEARD, Judge.

text:
    Steve W. SUGULAS, Plaintiff-Appellant, v. The ST. PAUL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5877.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.

      Neblett, Führer & Broussard by Robert B. Neblett, Jr., Alexandria, for plaintiff-appellant.
    Provosty & Sadler by Ledoux R. Prov-osty, Jr., Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendants-appel-lees.
    Before HOOD, FORET and HEARD, JJ.
   HEARD, Judge.

This suit was instituted by the plaintiff, Steve W. Sugulas, for injuries sustained while being given a medical examination at St. Francis Cabrini Hospital in Alexandria. Made defendants are Dr. Judith Buckley and her insurer, The St. Paul Insurance Company, Sisters of Charity of the Incarnate Word of the Diocese of Galveston, doing business as St. Francis Cabrini Hospital and its insurer, Argonaut Insurance Company.

Plaintiff, Steve Sugulas, entered St. Francis Cabrini Hospital in Alexandria in order to undergo tests to determine if he had a kidney stone. On April 11, 1974, defendant, Dr. Judith Buckley, administered an intravenous pyelogram, referred to as an I.V.P., to plaintiff. This procedure involves the physical introduction of a needle into a vein in the patient’s arm, through which a dye is injected. The dye ultimately works its way into the urinary tract, thus enabling the existence of a kidney stone to show on x-ray.

Dr. Buckley applied a tourniquet above the site of the injection and this caused the vein to stand out and become larger and more visible under the skin. However, she missed the vein when she inserted the needle and proceeded to puncture the artery which was located approximately one-half inch below the vein and through a thick layer of muscle tissue. As a result of the arterial puncture, a large hematoma and a false aneurysm developed in the artery, necessitating vascular surgery; and, from this surgery, there is scarring of plaintiff’s arm.

At trial, Dr. Hovnatanian, a vascular surgeon, and Dr. Chadwick, a radiologist, both stated that the procedure followed by the defendant was correct. However, Dr. Hov-natanian stated that he had never accidentally punctured an artery in administering an I.V.P., although he further stated that the more tests one administers, the more probable it is that one will have an accident. Dr. Chadwick, who has given some 5,000 I.V.P.’s stated that he had inadvertently punctured an artery several times, but in those cases, either the person was obese, or the artery was displaced. Neither condition existed in this case.

The trial court found that Dr. Buckley had not been negligent in administering the test and rendered judgment in her favor. Plaintiff appealed.

Plaintiff asserts that the trial court erred: (1) In its failure to apply the doctrine of res ipsa loquitur and failure to shift the burden of proof to the defendant to show freedom from negligence; and, (2) in determining that there was no negligence on the part of Dr. Judith Buckley.

The doctrine of res ipsa loquitur is applied when (1) The accident which occurred is a kind which ordinarily does not occur in the absence of negligence; (2) the accident was caused by an agency or instrumentality within actual or constructive control of the defendant; (3) there is no evidence tending to show the activity which resulted in the injury; and, (4) the use of the doctrine should be limited to “untoward or unusual occurrences during the time of medical supervision.” Calix v. Whitson, 306 So.2d 62 (La.App. 4th Cir. 1974); Haymark and Sons, Inc. v. Prendergast, 268 So.2d 110 (La.App. 3rd Cir. 1972); McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La. 1973). The doctrine may not be involved where from the facts presented it could reasonably be concluded that the damages were caused by the fault of another (besides defendant), or that it resulted from circumstances not involving negligence on the part of defendant, Romero v. Butcher Air Conditioning Company, 255 So.2d 132 (La.App. 3rd Cir. 1971).

In the instant suit, there is a body of evidence tending to show exactly what occurred, and there was no untoward or unusual occurrence during the time of medical supervision. Therefore, the trial court was correct in finding that the doctrine of res ipsa loquitur does not apply.

The standard of care required by a physician, surgeon or dentist was set out by our Supreme Court in Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953) as follows:

“A physician, surgeon or dentist according to the jurisprudence of this Court and of the Louisiana Courts of Appeal, is not required to exercise the highest degree of skill and care possible. As a general rule, it is his duty to exercise the highest degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment in the application of his skill in the case.”

In the instant suit the evidence shows clearly that Dr. Buckley followed the usual and standard procedure for injecting dye into the patient’s vein. The evidence shows that it is a common occurrence for a doctor to miss a vein when he is trying to insert a needle in it and sometimes a needle strikes an artery.

Dr. Buckley testified that she has been performing this type of injection on patients for eight years and that during that time she has performed those injections at the rate of three to eight per day every day except Sunday. Assuming that she has averaged only three injections every day except Sunday, that would amount to more than 900 injections per year. It is apparent that she has performed thousands of I.V.P. injections, that is, she has injected dye into veins several thousand times in the past few years. She stated that she has missed the vein and punctured an artery on other occasions, although she has never before experienced a complication such as resulted in this case.

Two experts testified at the trial. Dr. O’Neal Chadwick testified for the defendant. He specializes in radiology as does Dr. Buckley. He stated that arteries are pierced every day without any significant sequela and that he has inadvertently or unintentionally pierced an artery in the course of administering the I.V.P. He, like Dr. Buckley, had never heard of anyone developing a false aneurysm from the puncture of an artery as the plaintiff did in the instant suit. He stated that he has performed 5,000 I.V.P.’s in the past 15 years and that he inadvertently has punctured arteries probably ten times. He says that he accidentally punctured arteries twice during the past year while he was performing the same type of injections. Dr. Chadwick also says that arteries frequently are very close to the vein and that it is not surprising that in some eases, the doctor punctures the artery when he is trying to inject dye into the vein.

Dr. G. L. Hovnatanian testified in behalf of the plaintiff. Dr. Hovnatanian, however, specializes in general and vascular surgery, but he stated that he has performed very few I.V.P. injections such as was done in this case. He stated that he performed that type of injection over a period of six to seven years while he was serving as a house doctor, but that that was ten years ago. But, even when he performed them, he stated that it was not his duty, and he simply did it occasionally to help out other doctors, and that he only performed that kind of an injection “once in a while”. He further testified that although he never has occasion to perform the injections into veins as did Dr. Buckley, he had done “many penetrations of arteries in order to obtain angiograms, the due test.” He stated that for years he had no mishaps, but that during the past two years, he has had several of these. He concluded that when a person performs several of them a day as did Dr. Buckley, some mishaps will occur. He stated that mishaps occurred in his practice, although he “absolutely did not deviate in my standard technique which is protecting the patient at all times,” but that, “in spite of that the mishap can occur.”

We have found nothing in the testimony of Dr. Hovnatanian which in any way indicates that Dr. Buckley did not exercise the highest standard of skill and care required of any doctor in performing this type of injection.

Counsel for plaintiff argues that an accident of this kind “never happened to Dr. Buckley or Dr. Hovnatanian and had happened most frequently to Dr. Chadwick.” The record shows that Dr. Buckley and Dr. Chadwick both stated that it had happened to them on prior occasions. While it is true that Dr. Hovnatanian said it had not happened to him, he conceded that he had performed that type of injection on only a very few occasions during his entire practice. He conceded that several mishaps have occurred during the past two years in the type of injections he makes into arteries.

Counsel for plaintiff then argues that “none of the three doctors who testified in the trial stated that Dr. Buckley was free of negligence.” We disagree with that statement. It is true that none of them used the words that she was free of negligence, but both Dr. Chadwick and Dr. Hov-natanian made it clear that a mishap of this kind is bound to happen occasionally even to the most skillful doctor. It is also significant, we think, that none of the three doctors said that Dr. Buckley was negligent.

We find no manifest error in the trial court’s finding that Dr. Judith Buckley was free of negligence; therefore, the judgment of the trial court is affirmed. The costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

FORET, J., concurs in result.


author: STOKER, Judge.

text:
    Grover C. WAGLEY, Plaintiff-Appellant, v. Samuel CROSS, Defendant-Appellee.
    No. 5932.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.

      William R. Boone of Edwards & Boone, Many, for plaintiff-appellant.
    Davis & Simmons by Kenneth N. Simmons, Many, for defendant-appellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   STOKER, Judge.

The question to be determined in this appeal is the correctness of the findings and judgment of the trial court in a possessory action. A portion of a residential lot in Many, Louisiana, is involved. Actually each party to this action has asserted a possessory action in his own behalf. Judgment was rendered in favor of Samuel Cross and against Grover C. Wagley maintaining Cross in the possession of the property to be described below and ordering Wagley to assert whatever claims he has to the ownership of the property within sixty days from the date the judgment becomes executory on pain of being precluded thereafter from asserting such a claim. The judgment recognizing and maintaining Samuel Cross in possession was made subject to a preliminary injunction granted by the trial court on November 13, 1975. Grover C. Wagley’s demand to be recognized as possessor and maintained in possession was rejected. Plaintiff-appellant, Grover C. Wagley, appealed and defendant-appellee, Samuel Cross, has answered the appeal.

After trial the trial court found in favor of Samuel Cross, defendant and reconvenor, without giving written reasons, and his oral reasons are not recorded. The evidence is sufficient to support the finding of the trial court that Samuel Cross was entitled to have his possession recognized and maintained. We affirm his action.

As stated, this litigation presents a pos-sessory action by both parties. However, they do not claim the same tract or fractional lot of land, but what each claims overlaps substantially what the other claims. Wagley’s claim to possession rests entirely on civil possession, the recordation of a deed. The claim to possession by Cross rests entirely on corporeal possession. The land in question lies in a subdivision for which there is a recorded plat in evidence as plaintiff’s Exhibit 4 (Tr. 5) known as Flo-rien Giaque’s Second Addition to Many, Sabine Parish, Louisiana.

The judgment in favor of Cross recognizes and maintains him in possession of the following:

Beginning at a point' 195 feet North of the Southeast Corner of Lot Number 232 of Florien Giaque’s Second Addition to the Town of Many,. Louisiana, run thence West a distance of 55.0 feet to a point on an old fence row; run thence South along the said fence row a distance of 55.0 feet to the old Fisher-Many Public Road; run thence Southeasterly along the old Fish-errMany Public Road a distance of 70 feet to a point; run thence North a distance of 82.0 feet to the point of beginning.

The father of Samuel Cross moved to property to the immediate east of the above property in about 1920. Although no peti-tory action is involved, the evidence on behalf of Cross showed that the Cross family had possessed the above described property at various times since 1920 if it was not possessed continuously, since that time. Samuel Cross ultimately acquired his father’s property and for the last twelve years prior to the survey commenced by Wagley had mowed the grass on the above described property every two weeks. Pictures in evidence show a well mowed side yard area bearing all the appearances of having been frequently mowed and maintained as a residential type yard adjacent to a residence. Admittedly this periodic mowing is the only possession exercised by Cross in the period of one year prior to his disturbance by the survey activity of Mr. Leone acting for Mr. Wagley. Upon discovery of Leone performing the survey work and setting stakes, Cross ordered him to leave the property and desist from his work. Leone complied.

There was little or no evidence to establish any physical or corporeal possession by Wagley himself or through his lessee of any of the property specifically in dispute. The trial court evidently resolved this issue against Wagley, and the record does not establish that he committed manifest error. There is no proof that Wagley’s ancestors in title ever exercised corporeal possession of the disputed lot so as to support a claim to possession under Article 3660 of the Louisiana Code of Civil Procedure. The sole basis for Wagley’s claim of possession is the recording of deeds, or a deed, which include the disputed property and possession of a portion of the property described but located outside of the limits of the disputed property.

The possession of Cross is admittedly not buttressed by any title and therefore is based solely on the kind of possession necessary to support acquisitive prescription through thirty years of adverse possession. The trial court evidently resolved the issue in favor of Cross and we cannot say this resolution was manifest error.

The issues in this appeal were exceptionally well briefed and orally argued. Although counsel have been quite persuasive on numerous issues, we will endeavor to dispose of these issues as briefly as possible and see no need to treat in detail the evidence adduced on both sides. We regard the most serious issues presented to be the question of whether the acts of mowing grass by Samuel Cross constituted possession and whether or not he possessed within enclosures. We will proceed to consider the significant issues as we see them.

POSSESSION BY CROSS WITHIN ENCLOSURES

The record indicates that at some time in the course of the litigation the trial judge viewed the property Cross claims he has possessed. Cross introduced in evidence twelve large color photographs taken from numerous points depicting the property from various directions and vistas. The pictures and evidence disclose the following concerning the property of which Cross was recognized and maintained as possessor.

1. The east side (82') merges into the property belonging to Samuel Cross now and which has belonged to the Cross family for many years prior to the acquisition of it by defendant-appellee, Samuel Cross.

2. The north line (55') is marked and bordered by an existing fence. (Nothing north of this line is in dispute.)

3. The west side (55') is marked by what is claimed by Cross to be a hedgerow, or remnant of a fence row. Wagley denies it is such.

4. The south side (70') lies along the old Fisher-Many Public Road which appears to have some identifiable ground feature such as a lower elevation and is bordered with a number of large oak trees planted by Samuel Cross’ father.

The east and north lines have clearly visible enclosures. The Cross residence is just beyond the east line and the property on which the residence is located merges into the disputed property. The fence existing on the north side runs east and west and corners with an existing fence running north from the corner. Plaintiff-appellant’s surveyor testified that if the latter fence were extended south it would coincide with what Cross contends is the west line. Considerable evidence supports the conclusion that a fence did exist once on the west line and that at this time there is a rise in elevation of approximately six inches along the west line. The surveyor testified this was characteristic of old fence lines or fence rows. However, during the period of this litigation there was no fence and there probably has been no fence along this line for thirty years or more. At the time of trial, and as depicted in the pictures D-l through D-12, the “fence row” appears at a distance as an unmowed strip of weeds approximately three feet in width along the west side of the disputed property. West of the west line is residential property (formerly the Medlock home) and the grass on that plot appears to have been well kept and regularly mowed up to a strip of weeds marking the west line.

The photographer who took the several photographs for Cross testified that there was a perceptible rise in the ground along the old fence line on the west side. He stated that there was a difference in elevation between the property on the east side of the line (property in dispute) and that on the west side (Medlock property), and the difference was approximately six inches. (Tr. 91,100 and 101).

There is no doubt that a fence once existed along the western boundary of the property claimed by Cross. The testimony of Cross and his brother established that the fence once enclosed a garden kept by their father. This testimony was corroborated by the testimony of Rev. Recie Medlock, a member of the Sabine Parish School Board. The property to the west of the fence row had belonged to his uncle, Herbert Medlock, until two years prior to the suit. He had known Samuel Cross and his family for forty years and knew the Cross family.

Rev. Medlock remembered the fence and the garden kept by Ray Cross, father of Samuel Cross. He related that as a boy, he and companions were accustomed to raiding the elder Cross’ watermelon patch in his garden on the east side of the fence by slipping through the fence. He stated the fence was in existence up until 1942 or 1943, but was gone when he returned from the Army in 1950. He was familiar with the fact that Samuel Cross had mowed the grass on the east side of the old fence to the fence row up until approximately eight months prior to trial. He identified the place of location of the fence as the line of weeds shown on the photographs introduced by Cross. He testified that Medlock relatives still occupy or maintain the Herbert Medlock property and one of them periodically mows the grass up to the old fence line on the Medlock side of it. The Med-locks have always mowed up to the fence row and stopped there. He never heard of anyone disputing Cross’ possession of the property in question until the dispute between the plaintiff and defendant arose.

Rev. Medlock was also familiar with the old Fisher-Many public road. Other general testimony concerning this road indicates that it had been abandoned when U.S. Highway 171 was realigned through Many. However, it remained as an identifiable land feature bordered by large trees planted by the father of Samuel Cross. This roadway marks the southern boundary of which Samuel Cross claims the possession.

The northern boundary actually has an existing fence along it and the eastern portion of the property merges into the property occupied by the Cross home of which Samuel Cross is owner. Adjacent to the Cross house is a chain link fence running north and south. If it does not mark the eastern boundary of the property in dispute, it runs parallel with it.

We are convinced that the four boundaries of the property in dispute are sufficiently evident to give Grover Wagley notice of the limits of the continuing possession of Samuel Cross. Several other witnesses gave impressive testimony in support of the claims of Cross.

We see no need to burden this opinion with a discussion of legal principles or discussion of cases. What is required to conform to the requirements of law in possessing within enclosures has been extensively discussed recently by this and other appellate courts and the Louisiana Supreme Court. Norton v. Addie, 337 So.2d 432 (La.1976); Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975); Dunn v. Pipes, 325 So.2d 349 (La.App. 2d Cir.1976) and William T. Burton Industries, Inc. v. Cook, 322 So.2d 880 (La.App. 3rd Cir. 1975).

In William T. Burton Industries, Inc. v. Cook, supra, this court cited the landmark case of Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952). Extensive quotation from this case was set forth in connection with the nature and effect of enclosures. We hold that the boundaries established by the evidence produced by Samuel Cross in this case meet the standards set forth in the Richey case and those cited above.

ACTS OF POSSESSION BY CROSS

Although the only acts of possession exercised by Cross consist of his mowing the area in question, this is sufficient. The Louisiana Supreme Court observed in the Liner case that the concept of possession is neither simple nor precise. The quality of possession required in a particular case depends upon the type of land in dispute. 319 So.2d 766, 772. A footnote refers to authorities indicating that the type of corporeal possession considered sufficient is governed by the use to which the land is destined and changes with the nature of the property. In the Cook case it was stated that the particular acts which constitute sufficient possession for acquisition by acquisitive prescription of 30 years vary with the circumstances of the individual case. See cases cited at 322 So.2d 880, 882. In Dunn v. Pipes, supra, parts of residential lots were involved in a possesso-ry action. The prevailing party in that case was found to have exercised the necessary possession, primarily through mowing the grass on the disputed area. Considering that in this case the disputed area consists entirely of an unimproved lot in a residential area, we are of the opinion that mowing the grass on the lot at the frequency of every two weeks by Samuel Cross constituted sufficient acts of possession by Samuel Cross.

In challenging the sufficiency of the acts of continued mowing as constituting possession, plaintiff-appellant focuses special challenge on the word “unequivocal”. He asserts that possession must be “actual, physical, open, public, unequivocal, continuous, uninterrupted” and must show an intent to possess as owner. Plaintiff-appellant maintains that mowing grass on a residential lot is an equivocal act and does not evince an intent to possess as owner. It is urged that to so hold would place ownership or possession of any unimproved property in jeopardy, requiring fencing by the owner or other action to protect it from adjacent owners who might mow the grass simply to improve the appearance of their property.

Considering the totality of the circumstances of this case, we do not feel that affirmance of the trial court’s judgment will set any precedent to the effect that mere mowing grass over a long period of time will, in of itself, enable a person to acquire property by acquisitive prescription. More must be shown, including the fact that it was done as owner by one claiming ownership. In any event, every case must be judged on its own facts. We make no judgment as to whether the possession of Samuel Cross and his father has been continuous and uninterrupted for the more than some fifty years of Samuel Cross’ memory. Nevertheless, there seems never to have been any challenge to it. In fact, Reverend Medlock testified that the original fence on the west actually encroached on what his uncle considered to be his property but made no issue of it. For the year preceding the attempt of plaintiff-appellant to survey the property, if not longer, there was no disturbance of the possession- of Samuel Cross. Under the circumstance, we consider the periodic mowing done by Cross as sufficient acts of possession to justify a judgment that he be maintained in the possession of the property. In so holding we find that Samuel Cross mowed the grass considering himself to be the owner with intention of possessing it as owner.

ACTS OF POSSESSION BY WAGLEY

Plaintiff-appellant, Grover C. Wag-ley, maintains he has shown civil possession of the property in dispute by virtue of recordation of a deed to property which includes the property in dispute and by virtue of his corporeal possession of a portion of the tract included within his title. The deed is dated April 3, 1970, and was recorded-April 10,1970. Wagley claims corporeal possession of a part of what is described in his deed by himself and through his lessee, J. B. Salter. As previously noted, neither Wagley, or anyone possessing for him, has corporeally possessed the property in dispute. On the contrary, defendant-ap-pellee, Samuel Cross, has possessed it corporeally. As a result, any constructive possession Wagley might otherwise claim has been lost.

In a similar situation, and in answer to a similar claim, in Norton, v. Addie, supra, the Louisiana Supreme Court disposed of the claim in the following language:

Defendant maintains that because he holds a deed translative of title any act of possession on part of his land'amounts to constructive possession of the whole and he is presumed to possess to the full extent of his title. La.C.C. arts. 3437, 3498, Narks v. Collier, 216 La. 1, 43 So.2d 16 (1949). However, the constructive possession of Addie and his ancestors in title was lost by the corporeal detention of the property by the Nortons beginning in 1904. By permitting their usurpation to continue without interference, Brown and subsequently Addie, lost constructive possession of the tract. See Robertson v. Morgan, [La.App., 116 So.2d 141], supra, La.C.C. art. 3449. As the Court of Appeal noted, the only physical use of the property by Addie;has been his occasional hunting on it, and this-is insufficient to establish his corporeal possession of the property or to interrupt plaintiff’s possession.

For like reasons we are of the opinion that any constructive possession of any part of the larger property acquired by Wagley or his lessee, even though his deed may include the property in dispute, would avail Wagley nothing. All during the time that Wagley may have been possessing some smaller part of what is described in his deed, Cross was corporeally in possession of the specific property in dispute in this litigation. Hence, if Wagley ever had possession of any character, he lost it.

INTENT OF DEFENDANT-APPELLEE CROSS TO POSSESS AS OWNER

A further challenge plaintiff-appellant makes as to the possession of Samuel Cross is with reference to his intent to possess as owner. It asserted that Cross could not have intended to possess as owner because Cross recognized one T. A. Maxey as owner prior to 1972 and attempted to purchase the property from him. Actually, there was a deed from Maxey to Cross but the latter asserts that the title did not involve the disputed property. We see no need to pass on these issues inasmuch as they transpired more than one year before the disturbance which gave rise to this litigation and the possessory action of Samuel Cross as reconvenor. The evidence as a whole preponderates to establish that Cross did possess as owner.

ANSWER TO THE APPEAL BY SAMUEL CROSS

As the defendant-reconvenor-appellee, Samuel Cross filed an answer to the appeal filed by Grover C. Wagley. In his answer to the appeal Cross asks that the judgment of the trial court be amended as follows: (1) that the preliminary injunction decreed on November 13, 1975 be vacated and set aside, (2) that he be awarded damages as prayed for in Article 18 of his reconventional demand, and (3) that he be awarded damages for frivolous appeal in a sum of not less than $5,000.00.

With respect to the demand for frivolous appeal we feel that the issues were sufficiently serious that the appeal can in no wise be considered frivolous and damages for alleged frivolous appeal will be denied.

In article 18 of his reconventional demand Samuel Cross alleges that he is entitled to damages for mental pain, suffering, anguish, inconvenience and interference with his use and enjoyment of the property in dispute. He claims damages for the trespass upon the property. He further claims attorney’s fees as damages. In an amendment to the reconventional demand Cross asked that he be awarded expert witness fees. Although the trial court did not assign reasons for judgment, it evidently did not consider that Samuel Cross had established entitlement to damages. We do not find that manifest error has been shown in this regard and the demands of appellee in his answer to the appeal seeking damages will be rejected.

The claim of Samuel Cross for an award of expert witness fee is set forth in his brief. Claim is made for the sum of $132.08 for Mr. Adrian Demery who was qualified as an expert photographer and whose bill for services in this amount is in the record. Mr. Demery did not testify as an expert on subjects or facts in dispute. He testified solely for the purpose of laying a foundation for the introduction of his photographs of the property in dispute and various land features depicted in the photographs. The photographs constituted the evidence. Any testimony given by Mr. Demery beyond that which he gave in laying such foundation were no more than observations of a layman and were not expressions of expertise. The costs of the photographs and the services of Mr. Dem-ery were merely part of the cost of preparation for trial by the reconvenor-appellee, Cross, and part of the costs of presentation-of his side of the case. We know of no authority under which such costs may be assessed as costs of the litigation.

Footnote one above sets forth in some detail the procedural history of this litigation. As noted in the footnote, the trial court issued a preliminary injunction on November 13, 1975, in favor of Wagley enjoining Samuel Cross from removing certain surveyor’s stakes placed on the disputed property by the surveyor employed by Wagley, Mr. R. V. Leone. In the judgment signed by the trial judge after trial on the merits, the demands of Wagley were rejected “subject to the preliminary injunction herein decreed on the 13th day of November, 1975.” On the reconventional demand of Cross, his possession was recognized and maintained as to the property specifically described in the judgment with the addition of the following qualifying provision: “The aforesaid possession is subject to the preliminary injunction decreed herein on the 13th day of November, 1975.” The final portion of the judgment ordered Wagley, as the defendant in reconvention, to assert a petitory action to establish his ownership to the property within sixty (60) days from the date or lose his rights to further claim. No doubt the trial court anticipated that it would be required to hear further proceedings between the parties and would be required to adjudicate rights in a petitory action. We presume that he felt that it would be useful to maintain the surveyor’s markers in place until the litigation was finally disposed of.

We note that the final portion of the decree in the judgment of November 13, 1975 makes the following provision: “This injunction shall remain in effect unless modified or vacated by subsequent order of this court, reserving unto the defendant any and all legal rights and remedies which he may have arising out of his reconven-tional demand.” As we construe the judgment rendered and signed after trial on the merits of this possessory action, the trial court did not order and decree that the preliminary injunction be made permanent. Rather, by use of the words “subject to the preliminary injunction decreed herein on the 13th day of November, 1975,” the trial court continued in effect the preliminary injunction with the provision quoted above, permitting it to modify or vacate the preliminary injunction by subsequent order. Had plaintiff-appellant not appealed and had failed to assert a petitory action within the sixty (60) day period allowed, the reason for the maintenance of the surveyor’s stakes in place would have ceased. Then the defendant-appellee and reconvenor could have petitioned or moved the court to lift that portion of its final judgment continuing in force the preliminary injunction, the trial court could have done so and could have set aside and recalled the preliminary injunction.

Inasmuch as affirmance of the trial court’s judgment will mean that the plaintiff-appellant must assert any claim to the ownership of the property in dispute within sixty (60) days from the time the judgment becomes final, the ultimate relief concerning permission to remove the surveyor’s stakes will be within the authority of the trial court; we see no reason to vacate or modify any portion of the trial court’s decree which reeonvenor, Samuel Cross, has denominated a permanent injunction.

For the reasons assigned the judgment of the trial court is affirmed. The relief sought by defendant-reconvenor, Samuel Cross in his answer to the appeal is denied. Costs of this appeal are assessed to plaintiff-appellant, Grover C. Wagley.

AFFIRMED.

      . From the standpoint of pleadings in the case the issues were framed as follows. Grover C. Wagley acted first. He filed a petition simply asking for a temporary restraining order, and ultimately for issuance of preliminary and permanent injunctions to restrain Samuel Cross from interfering with Wagley’s surveyor in placing boundary markers on property described in the petition of which he claimed to be owner. A temporary restraining order was granted on October 16, 1975. In response to the petition Cross filed an answer and a recon-ventional demand requesting (1) a temporary restraining order in his own behalf, and ultimately for preliminary and permanent injunc-tive relief to halt the survey by Wagley, and (2) also praying to have his right to possession recognized and maintained and requiring Wag-ley to file a petitory action within sixty days or lose his rights to assert ownership and (3) for monetary damages for disturbance of his possession. A temporary restraining order was issued on October 22, 1977, commanding Grover C. Wagley to refrain from entering upon the property described in Samuel Cross’ petition and attempting to survey or place boundary markers.
      With the pleadings in this posture, the original plaintiff, Grover C. Wagley, amended and supplemented his petition and asserted his own possessory action and prayed for damages. On November 30, 1975, the trial court heard the rule for a preliminary injunction filed by Wag-ley and took the rule under advisement. On November 13, 1975, the trial court signed a judgment in favor of Wagley granting a preliminary injunction against Cross enjoining the latter from removing certain surveyor’s stakes placed by R. V. Leone, Surveyor. Commencement of the survey by Leone at the instance of Wagley is the event which precipitated this litigation. After trial on the merits, the injunction rendered on November 13, 1975, was continued in effect.
      An exception of no cause of action was filed by Wagley on October 30, 1975, in response to exception to the reconventional demand of Cross. It was overruled on November 24, 1975. An exception of prescription was filed on Wagley’s behalf on June 29, 1976, the date of the trial and was referred to the merits.

      . As the trial court has not provided reasons for judgment, we presume that the exception of prescription was overruled. Plaintiff-appellant filed the exception and no specification of error is set forth in the brief of plaintiff-appellant and the issue is not briefed. However, we perceive no interruption prior to one year to bringing suit which caused the suit of Cross to be prescribed. See Liner v. Louisiana Fund and Exploration Co., 319 So.2d 766, 778-779 (La.1975).

      . Hill v. Richey, supra, contains the following pronouncements concerning enclosures.
      What the court means by “enclosures”, as that term is used in the numerous cases found in the jurisprudence, is that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof. To say that the term means “enclosed only by a fence or wall” would be giving it a very strict and narrow construction, not justified or supported by the articles of the Code as we have hereinabove pointed out, and would lead to absurd consequences in some cases.

      . The type of possession required for a posses-sory action is identical to that required to commence the running of acquisitive prescription. Liner v. Louisiana Land and Exploration Company, supra; Norton v. Addie, supra, and Hill v. Richey, supra. Article 3658 of the Louisiana Code of Civil Procedure requires the possessor to prove that he had possession at the time of the disturbance; that his quiet, uninterrupted possession shall have existed more than a year prior to the disturbance; that suit was instituted within a year of the disturbance.