text:
    CITY OF NORTH MIAMI BEACH, Appellant, v. EASTERN SHORES SALES COMPANY, Appellee.
    No. 75-1898.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1978.
    Burton B. Loebl, Acting City Atty., for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble and J. Frost Walker, III, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on January 25, 1977 (341 So.2d 825) reversing the judgment of the circuit court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed June 1, 1978 (363 So.2d 321) and mandate now lodged in this court, quashed this court’s judgment and remanded the cause for further proceedings.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued on February 10, 1977 is withdrawn, the judgment of this court filed January 25, 1977 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the judgment of the trial court appealed from is reinstated and affirmed. Costs allowed shall be taxed in the trial court (Rule 3.16, Florida Appellate Rules).


source: Caselaw Access Project

author: MILLS, Judge. BOYER, Acting Chief Judge,

license: Public Domain

text:
    MAZDA MOTORS OF AMERICA, INC., Appellant, v. S. C. HENDERSON & SONS, INC., and United States Fire Insurance Company, Inc., Appellees.
    No. EE-356.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1978.

      Adam G. Adams, II, of Adams & Adams, Jacksonville, for appellant.
    Carl K. Staas of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellees.
   MILLS, Judge.

Mazda Motors appeals from a final judgment dismissing its complaint on the ground that its cause of action was barred by the three-year statute of limitations which was in effect at the time its cause of action accrued.

Mazda Motors contends the dismissal of its complaint was error because prior to the expiration of the three-year statute of limitations, the legislature extended the period of limitation to four years, and its complaint was filed within this period of time. We agree and reverse.

A person has no vested right in the running of a statute of limitations unless it has completely run and barred his action. Before the action is barred by the statute of limitations, the legislature may amend the statute enlarging the period of time within which an action may be brought. This is not retroactive legislation and does not impair a vested right. Corbett, et al. v. General Engineering & Machinery Co., et al., 160 Fla. 879, 37 So.2d 161 (1948).

The argument of Henderson & Son and U. S. Fire Insurance Company that the dismissal of the complaint is supported by Foley v. Morris, 339 So.2d 215 (Fla.1976), is without merit. Foley merely states that legislative intention to provide retroactive application of a shortened limitation period must be expressed in clear and explicit language and if there is reasonable doubt concerning the retroactive effect, the benefit of the doubt should be given to the party whose cause of action is dismissed.

The final judgment is reversed. This case is remanded for further appropriate action on the merits.

ERVIN, J., concurs.

BOYER, Acting C. J., dissents.

BOYER, Acting Chief Judge,

dissenting.

I am unable to agree with the interpretation placed by the majority on Foley v. Morris, 339 So.2d 215 (Fla.1976), the language of which appears to me to be controlling.

The facts are not in dispute. Appellant’s cause of action accrued on August 16, 1973, the date of its loss. At that time the applicable statute of limitations was F.S. 95.-ll(5)(c), Florida Statutes 1973. That statute required that actions for damage to personal property be commenced within three years. Appellant’s complaint was filed on October 26, 1976, more than three years after its cause of action accrued. Upon appropriate proceedings, the learned trial judge ruled that the action was barred by the statute of limitations. Appellant contends that enactment by the legislature of Chapter 74-382, Laws of Florida (F.S. 95.11(3)(h) Florida Statutes 1975), which became effective January 1, 1975, the period of limitation on its claim was extended to four years and that therefore its complaint was timely. The issue, therefore, is whether the enactment of Chapter 74-382, Laws of Florida, brought forward into the official Florida statutes as Section 95.11(3)(h), Florida Statutes 1975, which became effective January 1, 1975, operated to extend the period of limitation for the filing of appellant’s claim.

Appellant relies upon three cases involving workmen’s compensation claims, an area of law which has traditionally received liberal consideration by the legislature and courts alike. (Corbett, et al. v. General Engineering & Machinery Co., et al., 160 Fla. 879, 37 So.2d 161 (1948); Walter Denson & Sons v. Nelson, 88 So.2d 120 (Fla.1956) and Garris v. Weller Construction Company, 132 So.2d 553 (Fla.1960)).

Appellee, on the other hand, relies upon a more recent case from the Supreme Court of Florida, Foley v. Morris, supra. No distinction is drawn in the Foley case between statutes which lengthen the period of limitation and those which shorten the period.

If the Supreme Court meant what it said in the Foley opinion, and we must presume that it did, then the language of that case is dispositive sub judice and requires affirmance. I would so hold.


author: BOYER, Acting Chief Judge. SMITH, J.,

text:
    CITY OF PANAMA CITY, Florida, Petitioner, v. The FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.
    No. GG-362.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1978.

      John-Edward Alley and Richard R. Parker, of Alley & Alley, Miami, Rowlett W. Bryant, of Sales, Bryant, Daniels & Thompson, Panama City, and Alley & Alley, Miami, for petitioner.
    Leonard Carson, C. Anthony Cleveland and Anne M. Parker, Tallahassee, for respondent.
   BOYER, Acting Chief Judge.

By this petition for review, the City of Panama City (City) seeks review of an order of the Florida Public Employees Relations Commission (PERC) denying approval of the City’s local option ordinance.

F.S. 447.603 provides that municipalities may adopt local ordinances governing collective bargaining relationships between the municipality and its employees. Prior to becoming law, the municipality must apply to PERC for review and approval as to whether the provisions or procedures in the local ordinance are “substantially equivalent” to the provisions and procedures set forth in the Public Employees Relations Act (PERA). After the local option ordinance becomes law, it operates in lieu of the requirements of PERA.

In December, 1974, the City filed with PERC local ordinance number 912, a local option ordinance governing labor relations between the City and its employees. A public hearing was set to determine the question of substantial equivalency of the ordinance. However, prior to the hearing, the City adopted ordinance number 933, an amended version of ordinance number 912, which the City contends better conforms to the parameters of the concept of substantial equivalency which was espoused by PERC in another local option case. The City attempted to present oral argument on the amended ordinance at the scheduled hearing before PERC, but the Chairman declined to hear arguments, reasoning that the parties had not been given sufficient time to study it. In April, 1976, a hearing was finally held on City ordinance number 933. At that hearing, the Commission rendered an oral decision which approved the ordinance subject to certain modifications and conditions. During a workshop held over a year later, the Commission redetermined the issue of the substantial equivalency of the ordinance. Thereafter, the Commission entered its order denying approval.

The City raises as its first error the question of whether PERC erroneously rejected the City’s local option ordinance by incorrectly construing F.S. 447.603 to require a “substantial departure” standard of review.

Initially, we note that PERC found nine deficiencies in the submitted local option. Of those nine deficiencies enumerated by PERC, only two mention the test of substantial departure and one of those, in the same paragraph, also mentioned the standard “substantially equivalent”. Therefore, it does not appear that PERC used an improper standard of review when throughout the order here appealed the standard of “substantially equivalent” was used.

We approve on the merits PERC’s findings concerning the following eight deficiencies in the submitted local option: A registration procedure which did not recognize previous registration with the Commission, thus subjecting an employee organization to the burden of multiple registration, and required additional registration requirements; an impasse procedure which focused attention on factors significant to impasse resolution not found in the act; a strike penalty clause which erroneously referred to the state act rather than the local ordinance; a certification clause which failed to honor certifications already issued by the Commission; a clause providing that all rules of the local Commission became effective upon City Commission approval, without providing for Commission approval as required by Section 447.603 of the Act and Fla. Administrative Code Rule 8H-7.08; a lack of any provision requiring the local option to accept jurisdiction of cases pending before the Commission and to grant such cases expedited treatment; a clause providing that the local option will become effective upon submission to the Commission, which is contrary to both the mandates of F.S. 447.603 and established case law; and the lack of any provision requiring Commission approval of any subsequent amendment to the ordinance, which is inconsistent with the Commission’s continuous duty to insure that a local option grants public employees rights and procedures substantially equivalent to those found in the act. However, concerning PERC’s finding that “a local Commission consisting of only three members does not secure to public employees rights and procedures substantially equivalent to those provided by the five member Commission with a three member quorum as established by the act” we must reverse. Whether or not there are three members or five members on the Commission does not substantially affect the rights secured by the act.

In its second point, the City contends that PERC, by deviating from its prior holdings without providing explanation or justification for the departure, committed an abuse of discretion. However, concerning this alleged error, we must agree with PERC that where the order here appealed departed from prior Commission rulings, the order fully explained the rationale of the Commission and the factors which compelled the modification of its prior decision. The requirements set forth in McDonald v. Department of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977), in so far as here applicable, were satisfied.

In its third point, the City urges that PERC’s oral decision of April 7,1976, conditionally approving the local option ordinance, should be viewed as a final order approving the ordinance and that since the Commission failed to reduce its order to writing, the Commission should be estopped from later denying the res judicata effect of that oral order. On the other hand, PERC contends that an agency decision is not final until it is reduced to writing under F.S. 120.52(9) and that the Commission’s oral decision was clearly conditional and ambiguous, and was not an unequivocal ruling duly recorded in the Commission minutes. (Shevin ex rel. State v. Public Service Commission, 333 So.2d 9 (Fla.1976)) We are persuaded that the oral decision conditionally approving the local option ordinance cannot be considered as a final order of PERC. It simply was not an unequivocal, unambiguous decision embodied in an official record which would substitute for a written order for the purposes of F.S. 120.-52(9) and F.S. 120.68(1).

Next, the City raises as error PERC’s conclusion that F.S. 447.603 requires approval by PERC of a local option ordinance before it becomes law. That issue was addressed by Judge Grimes of the Second District Court of Appeal in Public Employees Relations Commission v. City of Naples, 327 So.2d 41 (Fla. 2nd DCA 1976) and was fully explored. We quote with approval relevant portions of that opinion:

“Thus, the issue boils down to whether PERC’s approval of the provisions and procedures established by the city’s ordinance is required before the city is entitled to assume jurisdiction of the public employees bargaining procedure.
“The city argues that the statute doesn’t specifically say that PERC’s approval is a condition precedent to the effectiveness of the ordinance. The city suggests that the legislature simply intended that PERC would act as a watchdog whereby it would have the right to attack in the courts any local ordinance deemed to be insufficient. On the other hand, PERC points to the fact that the statute requires the public employer to apply to ‘the commission for review and approval’ of its provisions and procedures. PERC suggests that to adopt the city’s position would permit a local entity to pass an ordinance establishing any kind of provisions or procedures and to place the burden upon PERC to seek to have it set aside.
“On balance, we are persuaded that PERC’s position must prevail. It is obvious that the Tucker Act represents the result of a comprehensive effort to establish an orderly process for the administration of collective bargaining with public employees. There are detailed provisions for determining the employee organization which is entitled to act as bargaining agent for each bargaining unit, and there is a method provided to handle charges of unfair labor practices. Many of the procedures appear to be similar to those followed in labor matters on the federal level. In this complex area of the law, it is important to have reasonably consistent interpretations. Therefore, if public employee relations are in some instances to be supervised on the local level, logic dictates that from the outset the procedures to be followed should be substantially similar to those employed by PERC. “The city contends that its position is consistent with the decentralization philosophy expressed by the constitutional and legislative “Home Rule” provisions. However, Article VIII, Section 2(b) of the Florida Constitution establishes a grant of powers to municipalities ‘except as otherwise provided by law,’ and Fla.Stat. § 166.021(3)(c) (1973) provides that municipalities may enact legislation upon any subject matter except those ‘expressly preempted to state . . . government ... by general law.’ We believe that by the passage of the Tucker Act the legislature has seen fit to preempt to the state the subject of public employee bargaining to the extent that a municipality can have no jurisdiction unless the provisions and procedures of its ordinance have been approved by PERC. The Circuit Court of the Fourteenth Judicial Circuit recently reached a similar conclusion in Police Benevolent Association v. The Municipality of Panama City, Florida, Case No. 74-1363, Order entered September 5, 1975.” (327 So.2d at pages 42 and 43.)

In approving such procedure, we note (as did Judge Grimes in the last above cited case) that PERC’s determination concerning the substantially equivalency of a local option ordinance is subject to judicial review; therefore appropriate protection is afforded to the municipality.

Finally, the City urges as error PERC’s failure to render an order containing separate findings of fact and conclusions of law and its failure to state in writing those findings of fact and conclusions of law within ninety days of its oral order of conditional approval; claiming that such constitutes a material error in procedure which impaired the fairness of the proceeding. PERC contends that its order sufficiently complies with F.S. 120.-57(2)(a)(l) and (2), that although the final order is not a model of perfection, nevertheless it is not violative of F.S. 120.59(1) for failure to separately state the findings of fact and conclusions of law, and that the ninety day requirement of F.S. 120.59(l)(a) is mooted by the issuance of the order which constitutes the basis of this appeal. While agreeing that the challenged order is no model, we are nevertheless persuaded that under the rationale of Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977) it is sufficient.

However, we find merit in the City’s argument that PERC’s failure to render its

order within ninety days of the hearing constituted, under the facts of this case, a material error in procedure which impaired the fairness of the proceeding. The City began seeking approval in 1974 and it was not until June 6, 1977 that PERC finally entered its order. Neither PERA nor the APA were intended by the legislature to be used as tools of frustration. We had occasion to address the issue in G & B of Jacksonville, Inc., etc., v. State of Florida, Department of Business Regulation, etc., 362 So.2d 951, 955 (Fla. 1st DCA 1978), wherein we said:

“Petitioner next challenges the subject order on the basis of timeliness, citing F.S. 120.59 which requires that: ‘The final order in a proceeding which affects substantial interests shall be in writing or stated in the record * * * and it shall be rendered within 90 days * * * after a recommended order is submitted to the agency and mailed to all parties, if the hearing is conducted by a hearing officer * * * ’. The statute further provides that the 90-day period may be waived or extended with the consent of all parties. The record before us establishes no waiver nor consent and obviously the challenged order was not rendered within 90 days after the recommended order was submitted to the agency and mailed to the parties. The violation being clear, our task is to determine its effect. To embark upon a discussion of whether the 90-day period is ‘directory’ or ‘mandatory’ is to beg the question. It is apparent that the legislature intended adherence to the 90-day provision. But what is the consequence of violation and upon whom does it fall? It hardly seems appropriate to interpret the rule differently depending upon whether the parties are an agency and a private citizen or whether conflicting interests of multiple private parties are involved. For example, what would be the consequences of a violation of the 90-day rule were the Public Employees Relations Commission to enter an untimely order in a dispute between an employer and a labor union?
“Our sister court of the Third District in Financial Marketing Group, Inc. v. State, Department of Banking and Finance, Division of Securities, 352 So.2d 524 (Fla. 3rd DCA 1977) addressed the problem but failed to resolve it, saying:
‘As to the first alleged error, we agree that the language of the statute is mandatory and the respondent should have rendered its final order within 90 days after the recommended order was submitted by the hearings examiner. The statute does not provide a penalty for violation of this section, and the petitioners urge that the penalty should be that the licenses, as required by the petitioners, should issue. We certainly agree that the State agencies should follow mandates of the Legislature. We further observe that the regulatory agencies should not frustrate a citizen’s attempt to secure a license to pursue a vocation or profession by inaction. If there were no other basis to reverse the agency’s action under review, we might adopt the penalty suggested by the petitioners and require the issuance of the licenses because of the failure of the respondent to follow the mandatory provisions of Section 120.59, Florida Statutes. * * * ’ (352 So.2d at page 525) [Emphasis added]
* * * * * *
“While agreeing with our sister court of the Third District in Financial Marketing Group, Inc. v. State, Department of Banking and Finance, Division of Securities, supra, that the 90-day period prescribed by the subject statute is mandatory, we conclude that the effect of its violation should be measured by the provisions of F.S. 120.68(8) and that the consequences of a time violation will depend upon whether the fairness of the proceedings or the correctness of the action taken is found to have been impaired. There may well be instances, as suggested in the last cited opinion, in which a violation of the 90-day period by an agency may justify reversal of the agency action. * * * ” (emphasis added)

The case sub judice presents just such an instance. PERC flagrantly disregarded the time provision in the statute and the rights of the City and its employees to have their status timely determined. Clearly the fairness of the proceedings has been impaired.

Accordingly, while substantially agreeing with PERC on the merits, we nevertheless, for the reasons above given, reverse the order here reviewed and remand with directions that the City’s local option ordinance, ordinance number 933, be approved.

The City has requested attorney fees in accordance with F.S. 120.57(l)(b)(9). Although an award of such fees would be justified under the facts of this case (Compare Jess Parrish Memorial Hospital v. Florida Public Employees Relations Commission et al., 364 So.2d 777 (Fla. 1st DCA 1978) in anticipation that PERC will not proceed in accordance with the applicable statutes and the mandate of this case, we exercise our discretion to deny the City’s request.

IT IS SO ORDERED.

BLACK, SUSAN H., Associate Judge, concurs.

SMITH, J., dissents.

SMITH, J.,

dissenting:

I disagree with the court’s decision that, in the circumstances of this case, PERC should be required to approve Panama City’s local option ordinance in consequence of the delay in issuance of PERC’s final order. While PERC’s delay was to some extent inexplicable, Panama City does not claim that it was prejudiced in any particular way. I agree with all else Judge Boyer has written for the court, and would approve PERC’s findings except in reference to the necessity for a local commission of five members.


author: PER CURIAM.

text:
    Diane C. ADKINSON, as administratrix of the Estate of Wendell E. Adkinson, Jr., Deceased, on behalf of Diane C. Adkinson as the natural mother of the Deceased, Wendell E. Adkinson, Jr., Appellant, v. J. Alfred BOWERS, M.D., Children’s Medical Group, P.A., a Florida Professional Corporation, ABC Insurance Co., an unknown insurance corporation; Hope Haven Association, Inc., d/b/a Hope Haven Children’s Hospital, a Florida Corporation, and XYZ Insurance Co., an unknown insurance corporation, Appellees.
    No. KK-148.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1978.
    Mark P. Lang, Orlando, for appellant.
    Noah H. Jenerette, Jr., of Boyd, Jener-ette, Leemis & Staas, and Phillip A. Webb III, of Webb, Swain & Watson, Jacksonville, for appellees.
   PER CURIAM.

This appeal from a non-final order is DISMISSED for lack of jurisdiction. Fla. R.App.P. 9.130. Treating the papers on which the appeal is taken as a petition for writ of certiorari, certiorari is DENIED. No petition for rehearing will be entertained.

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    E. K. McILRATH, Appellant, v. CITY OF JACKSONVILLE, a Municipal Corporation, Appellee.
    No. KK-174.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1978.
    E. K. Mcllrath, pro se.
    Dawson A. McQuaig and Robert G. Brown, Jacksonville, for appellee.
   PER CURIAM.

Upon stipulation of parties, the final order of dismissal is amended as follows: (1) That the Environmental Protection Board’s order of March 13, 1978, is vacated and set aside. (2) That the order of dismissal is otherwise affirmed and each party shall bear his own costs incident to this appeal.

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


author: MILLS, Judge.

text:
    ROMAN SPA, INC., a Florida Corporation, Appellant (Defendant Third Party Plaintiff), v. Marion LUBELL, Appellee (Plaintiff), and Connors Construction Company, Appellee (Third Party Defendant).
    No. X-179.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1978.

      Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellant.
    David R. Lewis of Blalock, Holbrook, Lewis, Paul & Isaac, William M. Howell of Howell, Kirby, Montgomery, D’Aiuto & Dean, Carle A. Felton, Jr., and Noah H. Jenerette, Jr., Jacksonville, for appellee.
   MILLS, Judge.

In Roman Spa, Inc. v. Lubell, 334 So.2d 298 (Fla. 1st DCA 1976), we reversed the final judgment entered by the trial court in favor of Lubell. By its decision in Lubell v. Roman Spa, Inc., 362 So.2d 922 (1978), the Supreme Court reversed our decision, reinstated the judgment and remanded the case to us with directions that we consider the points on appeal originally raised by Spa against the indemnity verdict in favor of Connors. It was unnecessary that we initially consider this issue.

Lubell sued Spa for damages alleging that Spa negligently maintained the ceiling, and that the negligent condition of the ceiling was known by it or had existed for a sufficient length of time that Spa should have known of it. Spa filed a third party complaint against Connors seeking indemnification in the event it was found liable to Lubell. The jury found for Lubell and for Connors. A detailed statement of the case and of the facts can be found in Roman Spa, Inc., supra.

Spa, in its reply brief, states:

“If Roman Spa knew of the defective and dangerous ceiling . . . or if Roman Spa should have known of it because it would have been discovered upon inspection, then responsibility for the condition is Roman Spa’s, not Connors. . . .”
“Connors should have been dismissed from the case at the beginning, or at the close of the case upon the ground that plaintiff had not elected to sue it and it was not, under the facts and theory of the case, liable to Roman Spa.”

We affirm the judgment in favor of Connors.

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


text:
    Booker Thomas LINCOLN, Appellant, v. STATE of Florida, Appellee.
    No. KK-209.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Lincoln seeks review of his conviction for the sale of cocaine. He contends the court committed reversible error by failing to conduct a proper inquiry into a discovery violation by the state. He further asserts that certain comments by the trial court deprived him of his right to a fair trial by coercing the jury to return a verdict.

We find Lincoln’s first point to be without merit. Although the court’s inquiry into the state’s breach of the discovery rules was brief, the inquiry was sufficient to allow the court, in its discretion, to determine that no prejudice to Lincoln resulted therefrom. Richardson v. State, 246 So.2d 771 (Fla.1971).

However, we agree with Lincoln’s contention that certain comments by the trial court necessitate a new trial. After the jury had deliberated about an hour, the jury sent a note to the court indicating “We have a three-three deadlock. What is our next step?” After the jury returned to the courtroom, the foreman of the jury explained: “We were hung. We wanted to know what the procedure was”. In response, the court stated:

“Ya’ll haven’t even talked. Ya’ll haven’t been back there any time at all and ya’ll go in and listen to each other and get back in there and arrive at a verdict.”

Defense counsel objected to this charge. After another hour of deliberation, a verdict of guilty was returned.

The court’s statement to the jury to “get back in there and arrive at a verdict” can hardly be characterized as the standard “alien charge” or “dynamite charge”. It was at least subject to being intimidating to the jurors to return a verdict and it may well have deprived Lincoln of his right to a “hung jury”. Bell v. State, 311 So.2d 179 (Fla. 1st DCA 1975). Accordingly, Lincoln’s conviction is reversed and the case is remanded for a new trial.

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


text:
    Lamar JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. KK-476.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1978.
    Lamar Johnson, in pro. per.
    No appearance for appellee.
   PER CURIAM.

Johnson appeals a summary denial of his motion to vacate judgment and sentence. Fla.R.Crim.P. 3.850. He alleges that his Fourteenth Amendment Due Process rights were violated since the state failed to conduct a pre-trial lineup. He also claims that the state used unnecessarily suggestive procedures by using a second photographic display for an in-court identification. Both grounds for relief should have been raised'when Johnson directly appealed his conviction. Therefore, he is precluded from raising them now. Von Eberstein v. State, 270 So.2d 444 (Fla. 1st D.C.A. 1972). Matters known at the time of trial are not appropriate for collateral attack, and collateral attack will not be used as a substitute for appeal. State v. Matera, 266 So.2d 661, 666 (Fla.1972). Accordingly, the order denying the motion for post-conviction relief is AFFIRMED.

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


text:
    A. W. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. LL-78.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1978.
    A. W. Edwards, in pro. per.
   PER CURIAM.

Appeal from the summary denial of a motion to vacate and set aside sentence, Rule 3.850, Fla.R.Crim.P. A. W. Edwards contends that he was convicted of a crime not charged in the information. The trial court denied the motion on the grounds that the issue should have been raised on direct appeal, that the motion stated only mere assertions and conclusions, and that the records and files refute the claims. We affirm.

Edwards could have raised the issue on direct appeal. Ashley v. State, 350 So.2d 839 (Fla. 1st DCA 1977). He did have the benefit of appellate review and his conviction was affirmed at 349 So.2d 1231 (Fla. 1st DCA 1977).

We note that the trial court’s order did not include attachments to support the statement that the claim was refuted on the merits by the files and records. Rule 3.850 requires such attachments, but since we affirm on an issue of law, not facts, we will not in this case remand for the attachments.

AFFIRMED.

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


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Lydia N. BOUGERE et al.
    No. 63233.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: State of Louisiana through Dept. of Hwys. applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of St. John the Baptist. 363 So.2d 228.

Writ denied.


text:
    Carol Taylor SCHERER v. Douglas SCHERER.
    No. 63239.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Douglas Scherer applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Jefferson. 361 So.2d 923.

Writ denied.


text:
    Mr. and Mrs. Raymond M. RONQUILL, Jr., et al. v. HARVEY COUNTRY CLUB ESTATES, INC., et al.
    No. 63234.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Mr. and Mrs. Raymond M. Ronquill, Jr., et al. applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Jefferson. 361 So.2d 953.

Writ denied.


text:
    Louise LANGENDORF et al. v. The ADMINISTRATORS OF the TULANE EDUCATIONAL FUND.
    No. 63230.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Louise Langendorf, et al. applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans. 361 So.2d 905.

Writ denied.

DIXON, J., would grant the writ.


text:
    Gordon K. KONRAD v. PARISH OF JEFFERSON.
    No. 63225.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Parish of Jefferson applying for writs of certiorari, review, prohibition and mandamus. Parish of Jefferson. 352 So.2d 361.

Writ denied.


text:
    BARNETT ENTERPRISES, INC. v. Thomas J. WARD and Floyd A. Sinclair.
    No. 63224.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Thomas J. Ward and Floyd A. Sinclair applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 361 So.2d 915.

Writ denied.


text:
    LAMBERT BROTHERS, INC. v. Charles W. ZIEGLER, III, et al.
    No. 63223.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Charles W. Ziegler, III and Ziegler Limited Partnership applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans. 361 So.2d 948.

Writ denied.


text:
    Robert M. DUPAS, Jr. v. CITY OF NEW ORLEANS, Travelers Insurance Company and William O. Brown.
    No. 63207.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Robert M. Dupas, Jr. applying for writ of certiorari, Court of Appeal, Fourth Circuit. Parish of Orleans. 361 So.2d 911.

Writ denied.


text:
    WPL MARINE SERVICES, INC. v. WOODS-TUCKER AIRCRAFT & MARINE LEASING CORPORATION.
    No. 63201.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Woods-Tucker Aircraft & Marine Leasing Corp. applying for writ of certiora-ri. Parish of East Baton Rouge. 361 So.2d 1304.

Writ denied.


text:
    STATE of Louisiana v. Henry ANDERSON.
    No. 63194.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Henry Anderson applying for writ of mandamus, prohibition and stay order. Orleans Parish. 362 So.2d 770.

Writ denied.


text:
    WPL MARINE SERVICES, INC. v. WOODS-TUCKER AIRCRAFT & MARINE LEASING CORPORATION.
    No. 63187.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: WPL Marine Services, Inc., applying for writ of certiorari to the First Circuit Court of Appeal. Parish of E. Baton Rouge. 361 So.2d 1304.

Writ denied.


text:
    R. J. GALLAGHER COMPANY v. LENT, INC.
    No. 63167.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Arman V. Melikyan applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 361 So.2d 1232.

Writ denied.


text:
    Camille SHELFO v. LHHRA, PINECREST STATE SCHOOL.
    No. 63158.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Camille Shelfo applying for writ of certiorari to the First Circuit Court of Appeal (Civil Service Commission). 361 So.2d 1268.

Writ denied.


text:
    Lawrence J. AIAVOLASITI v. VERSAILLES GARDENS LAND DEVELOPMENT COMPANY, Edward C. Kurtz, Oliver J. Mayer, Foster Judlin, Louis L. Brothers and Dr. Frank Kruse.
    No. 63217.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Lawrence J. Aiavolasiti applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans. 361 So.2d 964.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Louis V. de la VERGNE v. Hugues J. de la VERGNE II and Charles E. de la Vergne, Jr.
    No. 63164.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Louis V. de la Vergne applying for writ of certiorari to the First Circuit Court of Appeal. Parish of St. Tammany. 361 So.2d 1234.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Milford L. FRYAR v. William F. GUSTE, Jr.
    No. 63149.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Milford L. Fryar applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge. 361 So.2d 1300.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Margie H. PERNICIARO.
    No. 63272.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Margie H. Pemiciaro applying for supervisory writ. Parish of St. Bernard.

Writ granted and remanded to district court to act on motion for new trial.


text:
    STATE of Louisiana ex rel. Lloyd H. LEBAN v. Hon. Frank SHEA, Judge, Section “G”, Criminal District Court, Orleans Parish.
    No. 63285.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Lloyd H. Leban applying for remedial writ. Orleans Parish.

Writ granted. It is ordered that the appeal be lodged within 30 days.


text:
    STATE of Louisiana ex rel. Ray JACKSON v. T. N. ARMISTEAD.
    No. 62750
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Ray Jackson, applying for writs of mandamus and certiorari. Parish of Orleans.

Writ denied.

DIXON and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Gary JEFFERSON.
    No. 63084.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Gary Jefferson applying for remedial writs. Parish of Orleans.

Writ denied. No cause for transfer shown.


text:
    STATE of Louisiana ex rel. Henry MASON v. Frank C. BLACKBURN, Warden, 18th Judicial District Court, Parish of Pointe Coupee, State of Louisiana.
    No. 63214.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Henry Mason applying for writ of habeas corpus. Parish of Pointe Coupee.

Denied.


text:
    STATE of Louisiana ex rel. William DOYLE v. Honorable Israel AUGUSTINE, Judge, Section “I”, Criminal District Court, et al.
    No. 63254.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: William Doyle applying for writ of mandamus. Parish of Orleans.

Writ denied. The application is moot, the trial judge having acted.


text:
    STATE of Louisiana v. Nelson Lee EARIN.
    No. 63257.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Nelson Lee Earin applying for writ of habeas corpus. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Charles Leonard ALEXANDER v. CLERK OF COURT, 3RD JUDICIAL DISTRICT COURT, PARISH OF LINCOLN, C. Paul Phelps, Secretary, Dept. of Corrections.
    No. 63268.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Charles L. Alexander applying for writ of mandamus. Parish of Lincoln.

Writ denied.


text:
    STATE of Louisiana v. Cheryl Booker QUALLS.
    No. 63280.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Cheryl Booker Qualls applying for writs of certiorari, prohibition, and mandamus. Parish of Jackson.

Writ denied.

TATE, J., would grant an evidentiary hearing.


text:
    Glenn J. MAYNE et ux. v. COMMERCIAL UNION INS. CO. et al.
    No. 63296.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Glenn J. Mayne, et ux., applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Calcasieu.

Writ denied.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Johnny Lee TURNER v. 12TH J. D. C., PARISH OF AVOYELLES, State of La. and Mr. Frank C. Blackburn, Warden, La. State Penitentiary, Angola, Louisiana.
    No. 63270.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Johnny Lee Turner applying for writ of mandamus. Avoyelles Parish.

Writ denied.


text:
    L. B. CARRIERE and Larry Zerangue, c/o St. Landry Parish Jail v. Adler V. LEDOUX, Sheriff, St. Landry Parish, Louisiana.
    No. 63300.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Judge Isom Guillory, Jr., applying for consideration under article 672, in the matter of recusal. Parish of St. Landry.

Trial Court’s motion to recuse is denied, because no cause for recusation has been shown therein.


text:
    STATE of Louisiana v. Michael A. WILLIAMS.
    No. 62910.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Michael A. Williams, applying for review of writ of habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Joseph T. LOUIS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63067.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Joseph T. Louis applying for motion to proceed in forma pauperis and application for a writ of habeas corpus and remedial writ.

Writ denied.


text:
    STATE of Louisiana ex rel. Richard TRASS v. STATE of Louisiana, CRIMINAL DISTRICT COURT, SECTION “G”, Honorable Judge Frank J. Shea.
    No. 63068.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Richard Trass, applying for writ of mandamus. Parish of Orleans.

Writ denied. The trial judge has ruled and application is moot.


text:
    STATE of Louisiana ex rel. Ernest LINCOLN v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63118.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Ernest Lincoln applying for writ of habeas corpus. Parish of Rapides.

Writ denied.


text:
    STATE of Louisiana v. Leroy JOHNSON.
    No. 63388.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Leroy Johnson, applying for writs of certiorari, prohibition and mandamus. Parish of East Feliciana.

Denied; the showing made is inadequate to support a finding that the district court erred.


text:
    STATE of Louisiana v. Preston GABRIEL.
    No. 63397.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Preston Gabriel applying for writs of certiorari, prohibition and mandamus and for a stay order. Parish of Acadia.

Stay order and writ denied.


text:
    STATE of Louisiana v. Robert CASTON.
    No. 63126.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Robert Caston, applying for writs of habeas corpus, mandamus, supervisory jurisdiction, remedial writs. Parish of Orleans.

Writ Denied: Mandamus moot. The trial court acted on relator’s application May 26, 1978.


text:
    STATE of Louisiana v. Salina A. FIELDS.
    No. 63143.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Salina A. Fields applying for reconsideration. Parish of Caddo.

Motion to reconsider granted. Writ found timely filed. On the merits, the writ denied.

DENNIS, J., would grant.


text:
    STATE of Louisiana v. Barbara FONTENOT.
    No. 63247.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Barbara Fontenot applying for writ of certiorari. Parish of Richland.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana ex rel. Lloyd A. HESS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63323.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Lloyd A. Hess applying for writ of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Herman DOUGLAS v. Hayden J. DEES, Warden, Dixon Correctional Institute, et al.
    No. 63324.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Herman Douglas applying for supervisory writs of certiorari, prohibition, mandamus and habeas corpus. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Johnnie B. SMITH.
    No. 63328.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Johnnie B. Smith applying for writs of certiorari, prohibition and mandamus. Parish of Natchitoches.

Writ denied.


text:
    STATE of Louisiana v. Haze TRIPLETT.
    No. 63330.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Haze Triplett applying for writ of habeas corpus. Parish of Calcasieu.

Writ denied.


text:
    STATE of Louisiana ex rel. John D. BROWN v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 63333.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: John D. Brown applying for remedial writ. Parish of Orleans.

Writ denied. The relator is not entitled to the relief. Further, his appeal has been argued and submitted.


text:
    STATE of Louisiana v. Larry W. SMITH.
    No. 63341.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Larry W. Smith applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo.

Writ denied and stay order recalled.


text:
    STATE of Louisiana ex rel. John ELMORE, Jr. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63346.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: John Elmore, Jr., applying for writ of habeas corpus. Parish of Ouachita.

Writ denied.


text:
    STATE of Louisiana v. Arron BRUINS.
    No. 63347.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Arron Bruins applying for writs of certiorari and mandamus. Parish of Ra-pides.

Writ denied.


text:
    STATE of Louisiana v. Richard M. BROWN.
    No. 63356.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Richard M. Brown applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish, of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Joseph BROWN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63358.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Joseph Brown applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Johnny W. HINES v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63120.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Johnny W. Hines applying for writ of habeas corpus. Parish of East Baton Rouge.

Application dismissed at applicant’s request. Clerk is ordered to return to applicants their pleading which was inadvertently sent here, though intended for filing in federal court.


text:
    STATE of Louisiana v. Allen CARTER, Jr.
    No. 63299.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Allen Carter, Jr., applying for remedial writs. Parish of Orleans.

Not considered because not first filed in trial court. This application is ordered transferred to district court to be acted on.


text:
    STATE of Louisiana v. John Philip BRIANT, III.
    No. 62686.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: John Philip Briant, III, applying for remedial writs. Parish of Orleans.

“Appeal” treated as writ application. Application denied.


text:
    STATE of Louisiana v. Ronald W. SMITH.
    No. 62851.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Ronald W. Smith, applying for remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Arthur M. DAVIS v. WARDEN OF LOUISIANA STATE PENITENTIARY AT ANGOLA.
    No. 63359.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Arthur M. Davis applying for writ of mandamus. Parish of Orleans.

Writ granted. It is ordered that the relator be remanded to the parish prison pending the disposition of the writ application previously granted by this court.


text:
    STATE of Louisiana ex rel. Myles ALLEN v. 23RD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION.
    No. 63253.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Myles Allen applying for remedial writ and motion to proceed in forma pau-peris. Parish of Ascension.

Writ granted. The trial court is ordered to rule forthwith on application of June 2 as supplemented by the re-submission of September, 1978.


text:
    STATE of Louisiana v. William Donald BROWN.
    No. 63326.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: William Donald Brown applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson.

Writ granted; the district court is ordered to hold a preliminary hearing forthwith or release defendant and cancel bond.


text:
    STATE of Louisiana v. Paul GOODBEER.
    No. 62877.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Paul Goodbeer, applying for writ of mandamus. Parish of St. Martin.

Writ denied. Relator’s appeal is pending in trial court. No. 62904.


text:
    STATE of Louisiana v. Jimmie Lee RANDALL.
    No. 63407.
    Supreme Court of Louisiana.
    Nov. 14, 1978.
   In re: State of Louisiana through William J. Guste, Jr., Attorney General, applying for writs of certiorari, mandamus, prohibition and stay order. Parish of LaSalle.

Writ refused. On the showing made, there is no abuse of discretion.


author:
SCHOTT, Judge.
      BEER, Judge, BEER, Judge,

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. LUTCHER & MOORE CYPRESS LUMBER CO., LTD.
    No. 9044.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Nov. 30, 1978.
    Writs Refused Jan. 12, 1979.

      William W. Irwin, Jr., Johnie E. Branch, Jr., Jerry F. Davis, Bryan Miller, Baton Rouge, Jesse S. Guillot, New Orleans, for State plaintiff-appellant.
    Martin, Himel, Peytavin & Nobile, John L. Peytavin, Lutcher, for defendant-appel-lee.
    Before LEMMON, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

In connection with the construction of Interstate Highway 10 between New Orleans and Baton Rouge plaintiff expropriated 36.574 acres of defendant’s land for the right-of-way and 119.695 acres for temporary servitude for construction purposes.

The tract from which the property was taken consists of approximately 24,000 acres south of Lake Maurepas in St. John the Baptist Parish. The highway traverses a portion of the property which extends to the south from the main body of the property with the result that some 369 acres previously contiguous to the main body of the property are now separated by the highway as can be seen by reference to a map of the property which is made part of this opinion. There is on this map a tract of approximately 608 acres south of the Interstate Highway and southwest of the main tract, which is included in the 24,000 acres of land, owned by defendant.

Defendant originally claimed severance damages to this isolated tract but the evidence did not support this claim and no real issue exists on the point.

At the outset we will address a preliminary dispute between the parties as to the number of acres owned by defendant north of the Interstate Highway after the taking. Despite plaintiff’s contention that the trial judge’s finding of 22,982.398 acres in the remainder north of the highway was incorrect, the record shows that interrogatories propounded to plaintiff early in the proceedings as to how many acres of defendant’s land will remain north of the highway elicited an admission of “23,000 acres, more or less.” This amply supports the trial judge’s finding.

Defendant’s land is a tree swamp subject to tidal overflow. It is uninhabited and contains no improvements with the exception of a few hunting or fishing camps, some temporary roads constructed and used in the course of timber cutting operations and oil and gas exploration, and a shut-in gas well which is capable of production. It is located at the closest point about two miles north of the Airline Highway and the only access from the south before the taking was by way of a shell road adjacent to Mississippi Bayou and by way of Mississippi Bayou itself and the Reserve Relief Canal. On the east the property is adjacent to U. S. Highway 51 but is separated from it by a spoil canal running parallel to the highway.

After a trial at which some 19 witnesses testified throughout 21 trial days, filling 2167 pages of testimony, and over 230 exhibits were filed, the trial court found that the value of the property taken was $250 per acre, and he awarded defendant $9,143.50 for the 36.574 acres taken, together with $18,911.81 for the 119.695 acres upon which the temporary servitude was exercised. He based the latter award on a finding that the servitude area at $250 per acre was worth $29,923.75. He awarded defendant $50 per acre from this area for the value of the timber, deducted this figure of $5,984.75 from the value of the property, and computed an 8% rental value on the difference for 6% years, arriving at a total award for the use of the temporary servitude of $18,911.81. The court found severance damage to the 22,982.398 acres north of the highway and awarded to defendant the sum of $574,560.00, based upon 10% of the $250 per acre value. Finally, the court awarded expert witness fees to defendant for five witnesses it employed and produced at the trial.

Plaintiff appealed and assigned error in the trial court’s finding of the per acre value of defendant’s land, the length of time in which the temporary servitude was exercised, the existence and amount of severance damage to the remainder of the property and defendant’s entitlement to and amount of awards for expert witness fees. Defendant answered the appeal, seeking an increase in the award for the property taken as well as the value of the temporary servitude, an increase in the expert witness fees, damages for timber lost in an area south of the highway, damages for the cost of the restoration of the temporary servitude area to the condition it was in before the project began, damages for the cost of placing a gas pipeline under the highway right-of-way and a revision of the award for the property taken based upon the use of the date of the taking as April, 1972, rather than December, 1967. These issues will be discussed seriatim.

VALUE OF THE PARCEL TAKEN IN FEE SIMPLE

The date of the taking was December 6,1967, when the clerk’s receipt for the amount deposited was issued pursuant to LSA — R.S. 48:442 and title to the property became vested in the plaintiff in accordance with R.S. 48:445. The dispute over the date of the taking arose because on April 14, 1972, plaintiff filed a supplemental and amending petition in which one of the sheets constituting the plan of the property expropriated was replaced with a revised sheet. This sheet showed a revision of the control of access at and near the crossing of the highway by Mississippi Bayou, and the revisions in the engineering are located not on defendant’s property but rather on property of others adjacent to defendant’s. While these changes may have had some effect on the access into defendant’s property by way of Mississippi Bayou or on drainage of defendant’s property, these factors do not concern the taking of defendant’s property but might have to do only with the amount of severance damage to which defendant may be entitled. The filing of this revised map was a simple amendment which related back to the date of the filing of the original petition in accordance with LSA-C.C.P. Art. 1153 and did not change the date of the taking from December 6, 1967.

In connection with the taking plaintiff deposited in the registry of the court the sum of $10,294 in accordance with the certificate of estimate of just compensation signed by Chester A. Driggers and Max J. Derbes, Jr., the independent fee appraisers employed by the state. Driggers evaluated the property at $100 per acre and Derbes at $105 per acre. According to Driggers, the highest and best use of the land was for unmanaged timber growing and recreation uses, including camp sites and hunting sites, and according to Derbes the highest and best use was for mineral leasing and oil exploration, limited revenue from hardwood timber and recreation, as well as speculative value in case the area was ever drained.

In support of their evaluations, both appraisers relied on three sales which they believed comparable, all involving swamp land, one consisting of 14,500 acres in St. James Parish sold on May 10, 1965, for $38.57 an acre, another consisting of 1714 acres in St. John the Baptist Parish on April 20, 1965, for $43.76 an acre, and the third consisting of 18,565 acres in Assumption, Tangipahoa and Livingston Parishes on September 29, 1965, for $40.40 per acre. In connection with the first and third com-parables they were adjusted for time but in each comparable the land involved had better access. The second comparable of 1714 acres in St. John the Baptist was a purchase by this defendant and the property is now a part of the remainder of defendant’s property in this case.

Plaintiff also produced the testimony of Louis C. Peters, a consulting forester with extensive experience in appraising and managing swamp timber lands, who testified that the highest and best use for the property was for timber production, forestry purposes and compatible recreation uses, such as hunting, fishing, trapping and boating. Using the same three comparables as did Driggers and Derbes, he evaluated the property taken at $67.24 per acre.

Defendant called John LeJeune and Kermit Williams, both real estate appraisers. Williams testified that the highest and best use of the property was for timber growth, the mining of minerals such as clay, the possibility of a water well, and potential for residential, recreational and industrial development. He concluded that the property was worth $1,000 an acre. LeJeune thought the highest and best use of the property was for timber growing, mining hard minerals and recreational land, and he concluded that the value of defendant’s property was $1100 per acre. He used many of the comparables used by Williams.

In reaching his conclusion that defendant’s property was worth $250 an acre, the trial judge stated that defendant’s land was similar in all respects to the property involved in State Department of Highways v. Guste, 319 So.2d 468 (La.App. 4th Cir. 1975) in which this court concluded the value of that property was $250 per acre. Both parties to the instant case have taken issue with the trial judge’s reference to, use of and, reliánce upon the Guste case in evaluating the property, and we believe that their position has merit under the circumstances. Nowhere in the transcript of the testimony is the Guste tract mentioned except in one isolated sentence. There was no testimony as to the nature of the Guste property or the opinion of this court concerning such property. In State, Department of Highways v. Bougere, 363 So.2d 228 (No. 8953 on the docket of this court decided this date) we held that the value of the Guste tract could not be considered as controlling even though there was some testimony about the Guste property. In the absence of any testimony concerning the Guste property or case there is no basis for its use in arriving at an opinion concerning defendant’s property.

Having eliminated the Guste decision from consideration as a comparable, we are left to consider the comparable sales discussed by the experts without the benefit of the trial judge’s impression of those compa-rables. It is clear that defendant’s appraisers, in arriving at their evaluations, attached a great deal of significance to the property’s potential for clay mining. As the outset of its case, defendant produced the testimony of E. Paul Bercegeay, an expert in the field of chemical and petroleum engineering with knowledge of geology. He had performed some tests which indicated the presence of clay under the property taken for the highway, and based upon this study defendant’s two appraisers used comparable sales of land for clay mining. On the other hand, plaintiff produced overwhelming testimony to show that the moisture content and the overburden on defendant’s clay deposits made the mining of clay from defendant’s property highly unlikely. The evidence demonstrated that the possibility of clay mining with attendant construction of brick factories on this property was so remote that use of comparables consisting of sales of clay mining property was not supported by the evidence. In his finding, the trial judge specifically held that the mining, manufacturing or transportation of clay products from the remainder of the land was not feasible or practical at the time of trial, and we find that the same can be said of the property taken as of December, 1967.

Some of the comparables used by Williams and LeJeune took place after the date of the taking and are disregarded for that reason. Other sales used by defendants were of properties located on highway frontage, were of higher elevations than the subject property or were otherwise dissimilar to the swamp land involved in the instant case. Defendant relied on a sale by Burgess, et als, to the City of New Orleans on December 20, 1962, for which $750 per acre was paid for 205 acres, but this property was located adjacent to the New Orleans International Airport and was apparently needed for the extension of the runway into St. Charles Parish. Its value as a comparable is questionable because of its location and its special value to the airport. Likewise, a sale by Burgess, et als to the Louisiana Department of Highways on May 17, 1966, for 239 acres at $523 per acre, while significant, must be adjusted significantly because of its proximity to the New Orleans Airport and to railroad tracks.

Mr. Derbes testified that he had appraised this last mentioned property for the state and a portion of the sale was for damages to the remainder of the property, so that the true per acre value of the property near the Jefferson Parish line was $450 while the property near the St. Charles Parish line was $300 per acre. Considering that the subject property is considerably farther away from metropolitan New Orleans than this property a significant adjustment must be made downward from the per acre value paid for the St. Charles Parish property included in the Burgess sale.

Finally, defendant’s appraisers relied on three sales in St. Charles Parish to Lila, Inc. Eliminating one which took place after the date of the taking in the instant case, the other two were sales of 4.28 acres for $1401 an acre and 7 acres for $2500 an acre, both in 1967, shortly before the taking in this case. While this property was under water, the sales were of lots located in a subdivision with dedicated streets and were clearly purchased for speculation. Considering these circumstances and the sizes of the properties they cannot be considered as comparable to the subject property.

We have attached some significance to plaintiff’s comparable sale by White to Lutcher-Moore on April 29, 1965, of 1714 acres in St. John the Baptist Parish for $43.76 an acre, now a part of the remainder of the subject property. Mr. LeJeune discounted the importance of this sale because it was totally landlocked or isolated, being surrounded by lands of Lutcher-Moore, but we have concluded that it was properly considered after making adjustments for time and these factors discussed by Mr. LeJeune. Considering also the other two sales used by plaintiff’s appraisers as com-parables and applying a substantial upward adjustment for speculative development on the basis of the testimony of defendant’s president, we have concluded that the value of the property taken is the $250 per acre assigned by the trial judge on the basis of the Guste tract. This conclusion is bolstered by the testimony of LeJeune and Williams that the value of this property for timber production was in the range of $150 per acre and the jump from that figure to $1,000 to $1,100 per acre was based almost exclusively on the remote possibility that this property could be used for clay mining. Parenthetically, we note that our conclusion is consistent with the result in the Bougere case which involved property of the same type as the subject and located just a half mile to the west of the subject. The three comparable sales used by the state in this case were used by it in the Bougere case.

Defendant took issue with plaintiff’s appraisers on the ground that their evaluation of this property at trial was lower than the amount represented by the initial deposit of $10,294, when computed on a per acre basis for the 36 acres taken. However, the pleadings and the answers to interrogatories filed by the plaintiff show that this deposit was made not simply for the 36 acres taken but also for an estimated temporary servitude of three years’ duration, so that the amount of the deposit does approximate the value of the property as testified to by the plaintiff’s appraisers.

VALUE OF TEMPORARY SERVITUDE

The first issue to be considered here is the duration of the temporary servitude. Plaintiff’s contention is that the servitude extended until May 4, 1970, or two years and five months. Defendant contends that it continued until 1975, or a total duration of seven and one-half years, and the trial court found that it expired on September 9, 1974, for a duration of six and three-quarter years. The trial court’s conclusion was based on an instrument filed by plaintiff with the Clerk of Court of St. John the Baptist Parish on September 13, 1974, entitled “Release of temporary servitude of right-of-way.” In this document plaintiff stated:

“That portion of the project effecting the parcels referred to in the expropriation suit referred to above [this proceeding] was completed and accepted by the Department of Highways on April 28, 1970, and there is no longer any further need for temporary servitude of right-of-way for construction purposes on the parcel referred to in that petition as parcel No. 33 — 2-C-l, which parcel is more particularly described as follows:
‘Therefore, the State of Louisiana, through the Department of Highways, does hereby release to the landowner any rights acquired by the expropriation suit referred to above insofar as parcel No. 33-2-C — 1 is concerned, which parcel is more particularly described as follows . . . ’
* * * * * *
“This instrument is in no way intended to affect in any way rights of the State of Louisiana, through the Department of Highways, acquired insofar as parcel No. 33 — 2 is concerned in the above mentioned expropriation suit. Furthermore, this instrument is not intended to prejudice the rights of any of the parties to that expropriation suit.”

On May 4, 1970, plaintiff had addressed a letter to defendant stating:

“As required by the provisions of Title 48, Section 451, of the Revised Statutes of Louisiana, you are hereby notified that the Department of Highways has made its final acceptance of the construction of the highway project for which your property was expropriated.”

The notice of acceptance of the project sent in May, 1970, was the signal to defendant that it had one year from that date in which to file answer contesting the amount of compensation deposited by the state. In its terms the letter to defendant was clear and unequivocal. The project for construction of the embankment for the highway adjacent to the temporary servitude area was completed and accepted by the Highway Department. Defendant need only to refer back to the petition originally filed in these proceedings, together with the order of expropriation and the clerk’s receipt, to know that the temporary servitude was to last only for the duration of this project. Having received this letter, defendant was entitled to take complete possession of the temporary servitude area to the exclusion of everyone including employees and agents of the Highway Department. Defendant contends that plaintiff continued to use the temporary servitude area and cites a handful of instances in which plaintiff’s employees and agents may have been on the servitude area but we cannot equate these visits with a continuance of the use of the area as a temporary servitude for construction purposes. Some of the visitors were experts employed by the defendant in connection with this pending litigation and others were apparently employees who, on a few occasions, entered the area while the paving of the Interstate Highway was taking place. The facts do not show that this temporary servitude for construction purposes lasted beyond the date of the letter of acceptance in May, 1970.

The trial judge apparently based his conclusion on the filing of the document with the Clerk of Court in September, 1974, but we are unable to conclude that this filing rendered the notice of May 1970, nugatory, and somehow extended the temporary servitude for construction purposes until September, 1974. Whatever reason plaintiff had for filing this document in the record, it specifically recited that it was not intended to prejudice its rights or the rights of defendant. Since, as a matter of law the servitude was already terminated in May, 1970, we fail to see how this document could of itself extend that servitude for an additional four years.

The trial judge’s method of computation of the value of the servitude is not at issue. He took the value of the 119.695 acres and from that deducted the value of timber at $50 per acre. On the remainder he computed a rental value of 8% per annum, then added back the timber value to arrive at the fair market value. Using this method, we compute the fair market value of the temporary servitude as follows: 119.695 acres at $250 per acre $29,923.75, less timber value, 119i695 acres at $50 per acre $5,984.75 for a difference of $23,939.00 annually. 8% of this value for 2-5/12 years equals $4,620.33 plus timber value of $5,984.75 for a total of $10,605.08.

There is an issue with respect to the amount of timber lost in the servitude area. Plaintiff and defendant produced timber experts who testified that they measured and estimated the value of the timber with the plaintiff’s witness estimating $4,548.55 and the defendant’s $16,295.00. We deem this finding to be essentially an evaluation of the credibility of these witnesses, and we will not disturb the trial judge’s finding of $5,984.75 particularly in view of plaintiff’s concession in brief that it will not dispute that figure.

SEVERANCE DAMAGES

In his reasons for judgment the trial judge found severance damage to the 23,000 acres north of the right-of-way by loss of access. He rejected the theory that access before and after the taking would come from Lake Maurepas and instead adopted an approach that the actual development of land in the past historically has extended from the Mississippi River on the south northward into the swamp lands. He concluded that the “loss of access has reduced the fair market value of those acres north of the highway by 10% at the very least and severance damages in that amount will be awarded” at $25 per acre or $574,560.00 (based on 22,982.398 acres).

We are unable to find support in the record for this conclusion. By reference to the map of the property, which is made a part of this opinion, it can be seen that Reserve Relief Canal running from the lake to the south divides the property approximately in half. All of the evidence with respect to access from the south centered around this canal, Mississippi Bayou to the west and a shell road which had run along the bank of Mississippi Bayou into defendant’s property north of the Interstate and west of the Reserve Canal until the project was completed, at which time the shell road was blocked at the Interstate. Although this shell road was a private road over the property of others it did provide some overland access to the western portion of the property. On the other hand, the only access to the eastern half of the property was by Reserve Relief Canal from the south, the waterway along Highway 51 on the east and Lake Maurepas on the north. The fact that this eastern portion was not damaged by a loss of access was agreed to by all of the appraisers. Neither of the plaintiffs’ appraisers assigned any damage whatsoever to the north remainder for lack of access, nor did Mr. LeJeune for the defendant. Mr. Williams, defendant’s other appraiser, assigned $20 per acre damage for loss of access to the western half of the north remainder, but no such damage to the eastern half.

Therefore, we have readily concluded that any severance damage for loss of access to the north remainder must be limited to the western half of the property, but we have also concluded that defendant did not carry its burden to prove entitlement to damages for this entire northwest remainder.

In the first place, Williams was unable to provide a sound basis for assigning $20 per acre damage for loss of access to this entire tract of some 11,623.7 acres west of the Reserve Relief Canal. When asked to break down his $20 figure he stated that this was “a lump-sum judgment factor” based on “the fact that the land would be considerably more difficult to utilize whatever use it would be put to and that a knowledgeable buyer would take that into consideration in buying.” He admitted that he used no sales data in arriving at his conclusion that the property had suffered a $20 diminution in value per acre.

Because of the size and location of this property we are unable to conclude logically that loss of access from the south has somehow uniformly diminished its value on a per acre basis. Anyone wishing to gain access to the property on or near the shore of Lake Maurepas (Sections 12,13,14, 21, 22 and 23) would surely utilize the lake for such access. This condition is unchanged by the construction of the highway. Access to the extreme northwest portion (Sections 15, 16, 19 and 20) is likewise unchanged because such access was and is by way of Bayou Tent, Dutch Bayou and Mississippi Bayou. Several witnesses expressed this view which seems obvious while Mr. Williams offered no testimony which would tend to dispute it.

On the other hand, the evidence does support an award of severance damages in some amount for loss by southern portions of defendant’s property of any possible access to existing developments and traffic arteries south of the tract. It was established that before the project the road on the bank of Mississippi Bayou extended from Airline Highway into Section 33. The blockage of this road by the Interstate has undoubtedly caused some damage to Section 33 as well as 84, and would lend support to Williams’ theory of $20 per acre at least for these and nearby sections.

In the Bougere case, we reasoned that the north half of that property sustained some diminution in value as a result of the expropriation because it was left surrounded by uninhabitable swamp for many miles to the north, west and east with no possibility of access to the south where there seemed to be some reasonable possibility of development. The experts there seemed to agree that a willing purchaser would pay more for the south remainder than for the inaccessible north remainder.

The property taken from Bougere is only one-half mile west of that taken from defendant herein. Some of the north remainder in Bougere is located in Section 32 adjacent to some of defendant’s remainder. By reference to the map it can be seen that this section is divided into four parts with the first one to the west owned by Bougere, the next by defendant, the next by Bougere and the next by defendant. Having concluded that Bougere was entitled to $20 per acre for severance damage to its remainder in Section 32, we are compelled to reach the same conclusion with respect to defendant’s remainder in this section. Logic requires us to extend the same result to the land in Sections 84, 33 and 34.

On the other hand, the rest of defendant’s remainder, i. e., Sections 24, 25, 26, 27, 28 and 35 were considerably farther from existing developments and traffic arteries to the south and logically were not as greatly affected by loss of possible access. All of these except Section 35 are between those sections on the north which we have already concluded are virtually unaffected by the project as far as access is concerned and those to the south which we have concluded were damaged to the extent of $20 per acre. Logic requires that we award $10 per acre for damage to these sections. As to Section 35, it is over a mile away and across Mississippi Bayou from the shell road. On the other hand, on the east it is a stone’s throw from the Reserve Relief Canal. Its access was and continues to be principally from the canal. We have concluded that an award of $10 for Section 35 would be logical and consistent.

We have therefore concluded that defendant is entitled to severance damage computed as follows:

North remainder of section 84 or 400 acres; Two 160 acre parcels in Section 32 or 320 acres; All of Sections 33 and 34, 640 acres each or 1280 acres; for which 2,000 acres we award severance damages of $20 per acre or $40,000.
Sections 24, 25, 26, 27 and 35, or 3200 acres, and approximately one-half of Section 28, or 320 acres, for which 3520 acres we award severance damages of $10 per acre or $35,200. Thus, the total award of $574,560.00 is reduced to $75,200.

The trial judge found that there was no damage to the remainder with respect to the exploration, production or transportation of oil and gas. Defendant produced testimony to show that they would have to expend $25,000 for the construction of a line under the highway in order to bring the gas from their field north of the Interstate to market. On the other hand, this testimony must be considered in light of other testimony that there was already a pipeline running through the north portion of the property, that a line could have been brought along the banks of the Mississippi Bayou under the bridge over the bayou thereby making the construction of a pipeline under the highway unnecessary, and that the size of the reservoir was not such as to make production economically feasible. In view of this conflicting evidence, and considering that defendant had the burden to prove this damage, we cannot say that the trial judge erred in refusing to allow this element.

Defendant has also contended that it is entitled to severance damage because of the highway’s interference with clay mining north of the highway. Our conclusion that defendant was not entitled to compensation for the property taken based on improbable clay mining potential leads to the same conclusion with respect to severance damage. Defendant did not prove with legal certainty that it suffered any damage in this connection.

Other items of severance damage claimed by defendant are those for a timber devaluation zone and the cost of restoring the temporary servitude area to its pre-project condition.

The timber devaluation zone in connection with which defendant claims damages was discussed by its consulting forester, Robert D. Hatcher. This area is in the part of the remainder on the south of the Interstate Highway. In effect, this witness testified that access for timber purposes was from the north, so that the property now deprived of access has suffered its timber to be worth 30% less. The position that this property to the south of the highway is damaged because of loss of access for timber purposes is inconsistent with our award for damages for loss of access to the remainder north of the property, especially considering that one of the primary uses of the property to the north is for timber purposes. Hatcher was the only witness who found any damage to the property south of the right-of-way. We have concluded that defendant did not carry its burden of proof to establish this item of damage claimed.

The procedure employed by plaintiff in connection with this project for the construction of the embankment for the highway was to remove soft organic deposits from the surface of the swamp to a depth of from 18 to 23 feet until a firm pleisto-cene clay deposit was reached to provide a firm support for the embankment. In order to provide an area for the disposal of this material the temporary servitude area was taken to the south of the highway for a distance of 1,000 feet and for practically the entire length of the highway through defendant’s property of over 5,000 feet. After the removal of this material river sand was pumped in to back fill the area of the highway embankment with the result that the elevation was about 9.5 feet above sea level as compared to the 5 feet above sea level which originally existed in the area.

The deposit of this spoil in the temporary servitude area significantly changed the area with respect to elevation and overall environment. The trees previously present were destroyed and on that basis an award was properly made for the timber lost in this area. It is defendant’s contention that it is entitled to have this area restored to its original condition by the removal of the material which was dumped in the area, and evidence was produced to establish defendant’s claim of $1,000,035.00 for this work. Defendant complains that the original petition spoke simply of a temporary servitude right-of-way for construction purposes in connection with the taking and did not adequately inform it of the plaintiff’s ultimate use of this property as an area where this material would be permanently deposited. However, the maps which were annexed to and made part of this original petition clearly labeled the area for “muck disposal” so that the intention from the beginning was clear and there was no deficiency in plaintiff’s pleadings in this respect when they are taken as a whole.

In support of its claim for the cost of restoration of the area, defendant relies upon constitutional principles which prohibit the taking of its property without compensation and without due process. If we were to find this property was, in effect, taken by the Highway Department it seems that defendant would be entitled to no more than the value of the property which, at $250 per acre, would amount to about $30,000. On the other hand, the property was not taken but still belongs to defendant. There is ample testimony in the record to support the conclusion that the buildup of this area with the deposit of this material enhanced rather than decreased its value. It is now high and dry ground as opposed to its previous character as a water bogged swamp. One of the principal arguments for entitlement to restoration was defendant’s theory that the property could be used for clay mining, but in view of our conclusion that the evidence does not support this theory no basis remains for a damage award on this point. We have concluded that the trial judge correctly disallowed this claim by defendant.

FEES OF THE EXPERT WITNESSES

Both sides complain about the trial court’s award. The trial judge made the following awards for defendant’s expert witnesses:

Raymond D. Hodges,

Civil Engineer $3,480.00

Robert D. Hatcher 3,547.53

E. Paul Bercegeay 1,800.00

Kermit Williams 2,200.00

John LeJeune 2,400.00

Plaintiff’s position is that these figures were excessive in that they included in Hatcher’s case fees of personnel employed by him, and in all the other cases time for preparation, including meetings with defendant’s counsel. Plaintiff also contends that the failure of the defendant to prove its case for clay mining and Hatcher’s timber devaluation zone, along with other items, means that the testimony in support of the items did not provide a useful basis to the court for making the award and there is no basis for taxing the fees as costs.

Although defendant answered the appeal seeking an increase in each one of these awards for expert witness fees, in its brief defendant asks that the award in this respect be affirmed.

We recognize the rule that the trial judge has much discretion in fixing expert witness fees, but there is some merit to the argument that much of the time spent by Hatcher, Hodges and Bercegeay was spent in attempting to prove damages for restoration of the muck area, the timber devaluation zone, and the fixing of the property’s value based upon clay mining potential respectively. Hodges was awarded $20 per hour for 174 hours of time. Hatcher $2,947.53 for his trial preparation and Ber-cegeay 50 hours of time in preparation. We have concluded that plaintiff is entitled to a reduction of $500 in the fees of each one of these witnesses.

Accordingly, the judgment appealed from is affirmed but amended so that there is judgment in favor of defendant, Luteher and Moore Cypress Lumber Company and against plaintiff, the State of Louisiana through the Department of Highways, condemning and ordering plaintiff to pay to defendant:

A. The sum of $9,143.50 as the fair market value of the 36.574 acres taken in full ownership, and the sum of $10,605.08 as compensation for the use of and timber loss on the 119.695 acres on which the temporary servitude was exercised, subject to a credit of $10,894.00 with legal interest from December 6, 1967, until paid.
B. The sum of $75,200.00 as severance damage to the remainder north of the right-of-way from December 6, 1967, until paid.
C. All costs including expert fees of $2,980.00 to Raymond D. Hodges; $3,047.53 to Robert D. Hatcher; $1,300.00 to E. Paul Bercegeay; $2,200.00 to Kermit Williams; and $2,240.00 to John Le-Jeune.

AMENDED AND AFFIRMED.

BEER, J., dissents.

BEER, Judge,

dissenting.

Recent decisions tend to indicate that mere “severance,” in and of itself, somehow sets up a sort of res ipsa basis for some liability on the part of the State Highway Department. If I am correct in this observation, I'am all the more concerned about its implications — for even though the order of proof be quite different from the ordinary damage claim, there should be no basic deviation from the traditional burden of proof in these cases. Yet, the thesis seems to persist. There appears to be (at least in my view) a sort of unintended (but almost always existent) knee jerk reaction that severance damage is, somehow, automatic when the boundaries of a tract — any tract —are, in any way, violated.

The decisions, in most instances, seem to cast about for some theory which can give at least conjectural support to a severance damage claim. Such theories can — and often do — become farfetched and, thus, violate the requirements which would ordinarily be imposed to support proof of damage or loss.

In my view, one of the responsibilities of citizenship that goes hand in hand with the ownership of property is some reasonable participation with the state in its overall progressive efforts.

Thus, I accord little or no significance to the damage determining thesis that is premised in the oversimplified concept that anybody who has had their property cut through must, a fortiori, be entitled to collect severance damages from the state. That is not a valid starting point.

I believe that the starting point for the determination of severance damages should be in the form of no nonsense, straightforward evidence of loss, based, as much as possible, on sound expert or lay testimony which comes clearly and concisely to the point; and that failure to adduce such evi-dentiary support should precipitate the same result as failure to carry the burden of proof in any other action for damages.

The pleadings and the order of proof to be followed at the trial should, in my view, be essentially similar to those in all damage suit litigation and failure to carry the burden should precipitate the same result. I find no express or implied shifting of the burden of proof simply because property has been “severed” and, until the legislature, in its wisdom, shall so provide, I believe that the order of proof with respect to such damages should be no less intense, no more conjectural, and no more presumed than any other damage claim.

I bélieve that solid proof of any severance damage is little more than completely conjectural in this record and see no real support for the conceptual premise and/or the mathematical computations which have been used by the majority.

Accordingly, I respectfully, though vigorously, dissent from that portion of the judgment which awards severance damages.

BEER, Judge,

responding to various applications for rehearing.-

I would vote to grant a rehearing, limited to the issue of whether or not Lutcher and Moore Cypress Lumber Company has carried its burden of proof with respect to establishing pertinent facts which form the basis of any award of severance damages.


author: LANDRY, Judge.

text:
    Joe DIXON, Plaintiff and Appellee, v. Calep TURNER, Defendant and Appellant.
    No. 12011.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.

      William T. Adcock, Baton Rouge, for plaintiff and appellee.
    William Jarman, Baton Rouge, for defendant and appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiff (Appellee) seeks recission of a sale of real property consisting of three acres of land with a small house situated thereon. Appellee urges nullity of the transaction on the grounds that the transfer was a donation in disguise and therefore null because it violates La.C.C. Article 1497 in that it divested donor of all his property and was also void because it violates La.C.C. Article 1533 which prohibits a donor from reserving the usufruct of donated property. Without assigning any reasons for judgment, the trial judge rescinded the sale. Defendant (Appellant) has appealed. We reverse upon finding that the transaction was not a donation but a sale given for serious consideration, in which the vendor reserved the usufruct of the property conveyed.

There is no dispute worthy of mention concerning the facts of the case. Appellant is Appellee’s nephew. On June 30, 1964, Appellee used subject property as collateral for a loan advanced by Livingston State Bank in the sum of $2,000.00, which bank took a mortgage on the property in that amount. On July 18, 1964, Appellee and Appellant executed a sale of the property pursuant to which Appellant assumed the outstanding mortgage of $2,000.00. On February 16, 1965, the sale was revised to grant Appellee and his wife a reservation of a lifetime usufruct to the premises. Since this transfer Appellant has paid the mortgage to the bank, kept the property insured and from time to time has made repairs to the residence. Appellee resided in the house on the property, at the time of sale and continuously since. Subject property was the only property owned by Appellee.

Subject property was valued by an expert appraiser at the sum of $5,400.00 as of the date of sale in 1964. Said appraisal was based on the unencumbered value of the premises with no deduction made for reduction in value resulting from the reservation of usufruct subsequently granted the vendor. From the record, it is clear beyond doubt that the parties intended that the $2,000.00 to be paid by Appellant was intended as the purchase price of the naked ownership only.

At the time this particular transaction took place, a donor could not reserve the usufruct of donated property. La.C.C. Article 1533.

The vendor in a sale, as distinguished from a donor, may, however, validly reserve the usufruct of the thing sold. Martin v. Martin, 129 So.2d 56 (La.App. 3d Cir. 1961).

Also pertinent are the provisions of La. C.C. Article 1497, which provides that a donor may not divest himself of all his property but must reserve to himself enough for his subsistence under penalty of nullity of the entire donation. La.C.C. Article 1497.

Appellee’s contention that the transaction is in reality a disguised donation, is based on La.C.C. Article 2464, which states in part:

“It (the price of the sale) ought not to be out of all proportion with the value of the thing; for instance the sale of a plantation for a dollar could not be considered as a fair sale; it would be considered as a donation disguised.”

We find no merit in the contention that the act is a donation for lack of a serious price. Appellant paid the sum of $2,000.00, plus interest, for real property valued at $5,400.00 without diminution of the price because of the vendor’s reservation of a lifetime usufruct in favor of himself and his wife. Subsequent to the transaction Appellant has paid maintenance costs involved in keeping the property.

A price is deemed serious consideration unless it is entirely disproportionate to the value of the thing sold. Hearon v. Davis, 8 So.2d 787 (La.App. 2d Cir. 1942). A price is serious if equal to only one-half of the value of the thing sold. Brooks v. Broussard, 136 La. 380, 67 So. 65 (1914); Bertucci v. Bertucci, 224 La. 364, 69 So.2d 502 (1953).

Appellee failed to provide an appraisal of the naked ownership of subject property. We judicially note, however, that such value would be somewhat less than the unencumbered value of the property as reflected by the record. We conclude that the consideration paid was serious; that the act was a sale and not a donation in disguise and consequently neither La.C.C. Article 1533 nor La.C.C. Article 1497 are applicable herein. We also find the transaction is a valid sale.

It is ordered, adjudged and decreed that the judgment of the trial judge be and the same is hereby annulled, reversed and set aside and judgment rendered herein decreeing and recognizing Appellant, Calep Turner, to be the owner of the following described property, subject to the usufruct reserved by vendor Joe Dixon in favor of himself and his wife:

A certain three acre tract of land situated in the town of Walker, in Section 25, T6S, R3E, the said tract of land to begin at the Northwest corner of the Dan Stewart tract and run South on the West line of Dan Stewart tract to corner on the Northeast corner of Arnold tract; thence West on the North line of Arnold tract 3 acres and corner; thence North one acre and corner; thence East to the Northwest corner of Dan Stewart tract to place of beginning. Bounded on the North and West by Peak, East by Dan Stewart, South by Old Arnold Acre and Peak.

It is further ordered, adjudged and decreed that all costs of these proceedings be paid by plaintiff, Joe Dixon.

Reversed and rendered.