author: DENNIS, Justice.

text:
    Roger Dale McGEE v. Walter LEE, Clerk of Court, et al. Roger Dale McGEE v. BOARD OF SUPERVISORS OF ELECTIONS.
    Nos. 57321 and 57323.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      J. Clyde Fontenot, Ville Platte, for plaintiff-appellant.
    J. Jake Fontenot and Donald J. Tate, Ma-mou, for defendants-appellees.
   DENNIS, Justice.

These consolidated cases present election contests under La. R.S. 18:420 (added, Acts of 1975, No. 1). The plaintiff appeals from judgments declaring the statute unconstitutional and dismissing his suits.

The plaintiff in each case, Roger Dale McGee, and Conrad Fusilier, were candidates for the office of justice of the peace in Evangeline Parish. According to the allegations of the petitions, the tabulations following the general election on December 13, 1975 indicated that Fusilier received 1372 votes to 1371 votes for the plaintiff.

The main demand of the petition in each case is for a recount of the absentee ballots in certain precincts of the parish. The only difference in the two suits is that in No. 57,321 plaintiff joined Fusilier and the Clerk of Court of Evangeline Parish as defendants, and in No. 57,323 plaintiff sued for a recount by mandamus against the Board of Supervisors of Elections of Evangeline Parish. After hearings on rules to show cause in both cases, the trial judge dismissed the suits on the ground that the statute relied on by plaintiff, La. R.S. 18:420, was unconstitutional because it sought to require the court to perform a non-judicial function, i. e., the appointment of counters for the purpose of recounting the absentee ballots.

The statute in question, La. R.S. 18 :420, provides as follows:

“A. In elections under this Part all contests shall be made before the courts of the state, as herein prescribed, which courts have the necessary power, authority and jurisdiction to hear, try and determine them.
“B. Any candidate for nomination to any office who claims that but for irregularities or fraud he would have been nominated and/or he would have been entitled to enter a general election and who desires to contest the election, shall present a petition to the judge of the district court of the parish in which the capitol of the state is situated, if the office be that of governor, lieutenant governor, attorney general, secretary of state, state treasurer, superintendent of public education or other state officer. If the office be a municipal, parochial or district office, the. petition shall be presented to the district court of the parish in which the contestee resides. The petition shall set forth specifically and in detail the grounds on which the contest is based and the irregularities or frauds of which complaint is made. In addition to the procedure set forth above, the contestant or the contestee may, on allegation made on information and belief that a proper recount of any absentee ballots in the municipality, district, parish or state, as the case may be, would change the result of the election, require the recount of all or any specified absentee ballots. In order to obtain the recount the candidate shall accompany his petition or answer with a deposit in cash of twenty dollars for each precinct in which a recount of absentee ballots is demanded, which sum shall be used to defray the expenses of the recount, including a reasonable fee to the counters of the absentee ballots. It shall not be necessary in order to obtain the recount to allege or prove any specific fraud or irregularity. Immediately upon the filing of a petition or answer containing such a request for a recount, accompanied by the required deposit, the judge having jurisdiction shall name sufficient counters to conduct the recount, and upon the date set for the trial of the contest as provided in this Part, shall proceed in open court or at the place where the absentee ballots are located to cause the absentee ballots to be recounted and the result of the recount to be announced publicly. Immediately upon the filing of the petition, whether the petition contains an application for a recount as hereinabove provided or not, the judge or, in his absence, the clerk of the court shall issue an order directing the contes-tee to answer the petition within five days after service upon him of a certified copy and order. The contestee shall answer not later than 10:00 a. m. on the fifth day after service, including any intervening Sunday and legal holiday. However, if the fifth day falls on a Sunday or other legal holiday, then it may be filed on the next succeeding legal day. At that time, whether the contestee has answered or not, the court shall proceed without further delay and in a summary manner to try the issue presented. The trial shall be in open court or in chambers, without a jury.
“C. Either party may take evidence relative to the facts specified or to be specified in the petition at any time before the trial, on giving the other party two days notice of the time and place the evidence is to be taken. The evidence may be taken before any officer authorized to administer oaths, who may issue process to compel the attendance of witnesses and the production of documentary evidence of any kind.
“D. The court of original jurisdiction shall render judgment within twenty-four hours after the case is submitted.
“E. The party cast may appeal as in other cases, upon giving bond for a sum to be fixed by the court to cover all costs of court. However, the appeal shall be filed in the court of appeal of appropriate jurisdiction within not more than five days from the rendition of the judgment, and shall be tried on the original record and by preference over all other cases whatsoever. The appellate court shall decide the issue within twenty-four hours after submission.
“F. Upon the perfecting of an appeal the clerk of court shall immediately notify the appellate court in writing. The appellate court shall immediately set the appeal down for hearing, without awaiting the actual lodging of the appeal, and shall hear the appeal at the earliest practicable moment.
“G. If a trial of a case appealed to the court of appeal is desired when the courts are in vacation, the judges composing the court shall meet in special session without delay. No application for a rehearing shall be entertained by any court, but the courts may upon their own motion correct manifest errors to which their attention may be called.
“H. No contest shall be entertained unless brought within two days after the official promulgation of the result of the election.”

La. R.S. 18:420 is part of the open election system adopted by the legislature in 1975. (Acts of 1975, No. 1). It provides a statutory vehicle for disputing the result of a primary election, and is also made applicable to the contest of a general election by La. R.S. 18:841. However, La. R.S. 18:420 was derived almost verbatim from La. R.S. 18:364, which, before adoption of the open election system, provided the basis and procedure for contests of elections held by direct primary for political party nominations of candidates. Therefore, we will be guided by the jurisprudence under La. R.S. 18:364, and its predecessor statutes, in deciding issues arising from election contests involving the open election system.

The trial judge was correct in his view that the legislature could not authorize a court to exercise a power not belonging to the judicial branch of government. La.Const, art. II (1974). However, La. R.S. 18:420 does not constitute an attempt to contravene this constitutional limitation. The statute establishes the court’s jurisdiction to hear, try and determine election contests and sets forth the procedure for such a judicial inquiry. The court’s duty is to ascertain the truth of allegations that irregularities, fraud or incorrect counting of absentee ballots affected the outcome of the election and to declare the correct result of the contested election. Thus the principal function of the court in such a proceeding is clearly judicial, and its role in appointing counters and causing them to recount absentee ballots is incidental to and in aid of this function.

Generally, unless the constitution otherwise provides, the legislature may authorize courts or judges in connection with the exercise of judicial powers, duties, and functions, to appoint officers for the performance of duties which are not strictly judicial. See 16 C.J.S. Constitutional Law § 163. Cf. State v. Sauls, 226 La. 694, 77 So.2d 8 (1954); State v. Jackson, 134 La. 599, 64 So. 481 (1914). While it may be admitted that the act of appointment is not a judicial act in and of itself, in the constitutional sense, no more is it an executive act in that sense, aiding as it does the exercise of the judicial power of the state in its search for truth. People v. Strong, 114 Cal.App. 522, 300 P. 84 (1931).

The main purpose of La. R.S. 18:420 is to authorize the judicial determination of election controversies. The action required of the trial judge in appointing counters and causing them to conduct a recount of absentee ballots is in furtherance of this purpose. Therefore, we hold that the statute does not demand that a court exercise non-judicial power.

Defendant Fusilier has advanced a number of other arguments, but we find in none of them sufficient merit to warrant affirming the decisions of the district court. In answer to defendant’s complaint that the petitions failed to allege fraud or irregularity but merely stated that a recount would alter the result of the election, we point to the settled jurisprudence and the plain wording of the statute that “[i]t shall not be necessary in order to obtain the recount to allege or prove any specific fraud or irregularity.” La. R.S. 18 :420(B). Gremillion v. Rinaudo, 240 So.2d 237 (La.App. 1st Cir. 1970); Brown v. Adams, 9 So.2d 699 (La.App. 2d Cir. 1942).

We also reject the defendant’s contention that one of the suits was premature because it was brought before the official promulgation of the result of the election and not “within two days after the official promulgation” as required by La. R.S. 18:420(H). In Knight v. Ragan, 31 La. Ann. 289 (1879) we rejected this argument, holding that a similar statute prescribed a time after which the suit cannot be brought, but does not prevent the exercise of a legal right before the beginning of the prescribed term.

Defendant also argued that the appeal in these cases was premature because taken before the delays for a new trial had elapsed. However, La.R.S. 18:420(G) provides:

“ * * * No application for a rehearing shall be entertained by any court, but the courts may upon their own motion correct manifest errors to which their attention may be called.”

Although the statute does not specifically bar new trials we think the legislature’s intention was to expedite the disposition of election contests by prohibiting reconsideration at any level of the court system.

Contrary to defendant’s argument, there is no basic inequity in the statute which allows a recount of absentee ballots only, because it is not feasible to recount votes recorded on a voting machine. And for that reason these votes are transcribed under procedural safeguards provided by La.R.S. 18:1193. Lewis v. Democratic Executive Committee, 232 La. 732, 95 So.2d 292 (1957).

Finally, it has been decided, contrary to defendant’s contention, that the absentee statute meets the constitutional requirements of fairness and secrecy. Downs v. Pharis, 122 So.2d 862 (La.App. 3rd Cir. 1960).

Decree

For the foregoing reasons, the judgment in favor of Walter Lee, Clerk of Court, and Conrad Fusilier and against the plaintiff, in No. 57,321, and the judgment in favor of Evangeline Parish Board of Supervisors of Elections against the plaintiff in No. 57,323, dismissing the plaintiff’s suits, are reversed, and both suits are remanded to the trial court for further proceedings according to law and consistent with the views herein expressed. The costs of these appeals are to be paid for by the defendants. Taxation of other costs is to await final disposition of the cases.

REVERSED AND REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Richard ANGELICO.
    No. 57105.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Richard Angelico applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. The application was not timely filed.


text:
    STATE of Louisiana v. Mary Jane JARREAU.
    No. 57596.
    Supreme Court of Louisiana.
    Feb. 27, 1976.
   In re: Mary Jane Jarreau applying for Writs of Certiorari.

Application denied. There is an adequate remedy for review in the event of conviction.


text:
    STATE of Louisiana v. Gary B. FOY.
    No. 57588.
    Supreme Court of Louisiana.
    March 4, 1976.
   In re: Gary B. Foy, applying for writs of certiorari, prohibition and mandamus and for Stay Order.

Writ granted. Conviction not final. See Louisiana Code Criminal Procedure, Art. 901, as amended by Louisiana Acts 1975, No. 331. Trial judge’s order dated February 19, 1976 revoking probation of Gary B. Foy is hereby reversed and set aside.


text:
    STATE of Louisiana ex rel. Joseph V. FOSTER, Jr. v. WARDEN, Angola, Louisiana, LOUISIANA STATE PENITENTIARY and 9th Judicial District Court, Parish of Rapides, State of Louisiana, Alexandria, Louisiana.
    No. 57469.
    Supreme Court of Louisiana.
    March 5, 1976.
   In re: Joseph V. Foster, Jr. applying for Writ of Certiorari and Habeas Corpus.

Writ denied. Relator is not entitled to relief sought.


text:
    STATE of Louisiana ex rel. David SISTRUNK v. Elayn HUNT, Director, Louisiana Dept. of Corrections, Warden, Louisiana State Penitentiary.
    No. 57452.
    Supreme Court of Louisiana.
    March 5, 1976.
   In re: David Sistrunk applying for Writ of Habeas Corpus,

Writ refused. The parole revocation hearings were initiated prior to expiration of his parole term. La.R.S. 15:574.9, subd. C. No showing is made that the parole was not revoked because of the violation of parole conditions. The parole revocation was therefore authorized. La.R.S. 15:574.7; 15:574.9. The contentions made are without merit.


text:
    James Robert LAMBERT et al. v. Henry PADGETT et al.
    No. 57515.
    Supreme Court of Louisiana.
    March 5, 1976.
   In re: James R. Lambert applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 324 So.2d 512.

Writ refused. On the facts found, the result is correct.


text:
    Succession of Antonia Z. CALDAS.
    No. 57516.
    Supreme Court of Louisiana.
    March 5, 1976.
   In re: Mrs. Lorraine D. Martinez, Testamentary Executrix applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 323 So.2d 890.

Writ refused. No error of law.


text:
    Mrs. Joan Sara Spiro, wife of Beuker F. AMANN, Jr. v. SUCCESSION of Mrs. Ruby Spiro, widow of Tobias PICK, et al.
    No. 57517.
    Supreme Court of Louisiana.
    March 5, 1976.
   In re: Mrs. Joan Sara Spiro, wife of Beuker F. Amann, Jr. applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 323 So.2d 899.

Writ denied. On the showing made, sufficient grounds have not been alleged to warrant the granting of this writ.


text:
    Theresa Locicero SARPY v. Aaron Lester SARPY, her husband.
    No. 57526.
    Supreme Court of Louisiana.
    March 5, 1976.
   In re: Theresa Locicero Sarpy, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 323 So.2d851.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    Lynn M. KING v. PAN AMERICAN LIFE INSURANCE CO. et al.
    No. 57535.
    Supreme Court of Louisiana.
    March 5, 1976.
   In re: Lynn M. King applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 324 So.2d 535.

Writ refused. On the facts found, the result is correct.


text:
    STATE of Louisiana ex rel. Don B. PARKER v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57543.
    Supreme Court of Louisiana.
    March 5, 1976.
   In re: Don B. Parker, applying for writ of habeas corpus.

Writ denied. Relator has made insufficient showing to warrant the relief sought.


text:
    Simon SMITH, Jr. v. Robert LOWE, Clerk of Court, Fifth Judicial District Court, Parish of Franklin.
    No. 57576.
    Supreme Court of Louisiana.
    March 5, 1976.
   In re: Simon Smith, Jr., applying for writ of mandamus.

Writ refused. This is a civil action for damages. Application has not been made to the Court of Appeal for relief.


text:
    Gladys MORRISON and Gladys Richardson v. Jake EDWARDS et al. Jory WALTON v. Jake EDWARDS et al. Cora VIRGIL v. Jake EDWARDS and Logan Cab Co.
    No. 57539.
    Supreme Court of Louisiana.
    March 5, 1976.
   In re: Mrs. Gladys Morrison, Mrs. Gladys Richardson, Mr. Jory Walton and Miss Cora Virgil applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 323 So.2d 838.

Writ denied. On the facts found by the court of appeal, there is no error in the result.


text:
    GULF INTERNATIONAL CINEMA CORPORATION v. Henry A. REID, Jr., Sheriff of Calcasieu Parish.
    No. 57548.
    Supreme Court of Louisiana.
    March 9, 1976.
   In re: Gulf International Cinema Corporation applying for Supervisory Remedial Writs.

Writ granted. The exhibitor must he allowed to make a copy of the film for his use upon a showing by the exhibitor that other copies of the film are not available to the exhibitor, failing which the seized film must be returned to the exhibitor pending a judicial determination of the obscenity issue. See Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973).


text:
    Succession of Joseph Isom FUSELIER.
    No. 57638.
    Supreme Court of Louisiana.
    March 9, 1976.
   In re: Donald Fuselier, applying for Certiorari, or writ of review, to the Court of Appeals, Third Circuit, Parish of Evangeline. 325 So.2d 296.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Reginald SMITH.
    No. 57659.
    Supreme Court of Louisiana.
    March 9, 1976.
   In re: State of Louisiana through William J. Guste, Jr., Attorney General, applying for Writs of Certiorari, Mandamus, Prohibition and Request for Stay Order.

Writ denied. There has been no showing of trial court error sufficient to warrant the interference with the orderly processes of the trial court.


text:
    Leon EDWARDS v. CONSOLIDATED UNDERWRITERS.
    No. 57532.
    Supreme Court of Louisiana.
    March 9, 1976.
   In re: Leon Edwards, applying for Cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipa-hoa. 324 So.2d 564.

Application denied. Previous order rescinded as improvidently issued. On the merits, the judgment of the Court of Appeal is not final.


author: SARTAIN, Judge.

text:
    Mrs. Mildred L. REESE et al., Plaintiffs-Appellants, v. SOUTH COAST CORPORATION, Defendant, Third-Party Plaintiff, Appellee and Appellant.
    No. 10525.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Murphy W. Bell, Baton Rouge, for plaintiffs-appellants.
    Charles J. Hanemann, Houma, for defendant-appellee.
    James C. Walker, Jr., Houma, for Third Party Defendant Coastal Dragline Works, Inc.
    Before SARTAIN, BAILES and PICKETT, JJ.
   SARTAIN, Judge.

Plaintiffs-appellants, direct descendants of Grace Butler Carter, bring this appeal from judgment rendered against them in an action for damages brought against defendant, South Coast Corporation (hereinafter referred to as South Coast) as the result of the desecration of Mrs. Carter’s grave allegedly caused by defendant. South Coast denies responsibility for the damage and further filed a third party demand against Coastal Dragline Works, Inc. (hereinafter referred to as Coastal). The trial judge rendered judgment in favor of South Coast dismissing plaintiffs’ claim against it and further decreed the third-party demand of Sourt Coast against Coastal to be moot. We affirm for reasons stated herein.

The record before us shows that defendant South Coast owns property in Terre-bonne Parish near the settlement of Pres-quille, Louisiana. It appears that in April of 1970 South Coast had engaged third party defendant Coastal to clear a certain portion of its lands in that area. Shortly after the completion of the work it was discovered that a crypt located on or near South Coast’s property had become cracked on one of its corners.

The deposition of Charles Denley introduced into evidence shows that he was employed by South Coast during- the time in question and was first made aware of the damaged crypt by John Aubert, an assistant overseer. On the day Aubert reported discovery of the damage, Denley visited the grave site and found one of the upper corners knocked off from the tomb. He instructed Mr. Aubert to get in touch with the decedent’s relatives to discuss arrangements for repair or removal. Aubert reported back to Denley on the same day that he had only been able to contact a grandson of the decedent, Mr. Buck Smith, who indicated he would have to consult with other family members before he could advise Aubert and Denley.

Subsequently, after the passage of approximately ten days and still no response from Smith, Denley himself contacted Smith and visited with Smith in Denley’s office. Smith again indicated that he would have to consult with his family, most of whom it appears lived outside the local area.

While awaiting further instructions from the family (no response was ever forthcoming following Denley’s visit with Smith), Denley was informed by Aubert that vandals had broken into the tomb, removed the body, and left it beside the crypt. Upon hearing of this Denley immediately had a guard posted at the site and on the following morning had Houma Concrete Products repair the grave at South Coast’s expense. He then made no further effort to contact the family.

Carlie Hebert, another employee of South Coast testified at trial that he was field manager for South Coast in the Terre-bonne Division. He stated that Coastal had been engaged to clear portions of South Coast’s land in order to enlarge the headlands so that they would facilitate larger machinery to be employed by South Coast in its agricultural operations. According to his testimony, Coastal was not assisted in any way in this project by employees of South Coast.

Hebert stated that he visited the site of the tomb shortly after the damage was reported to him and found the tomb cracked. He testified that Coastal had been using bulldozers to clear the headlands but had completed their work several days before any damage was discovered. He described the tomb as being some thirteen feet from the lower edge of the headlands and the land upon which the tomb rested elevated approximately two feet over the adjoining fields. At the time he inspected the tomb he noticed brush approximately two inches in diameter piled up near the tomb. He noted further that the weeds and brush around the tomb and its surrounding area were very thick, so thick that he did not attempt to ascertain if there were any other tombs or graves in the area. The tomb itself, he stated, was located under the overhanging branches of a nearby tree. He saw no bulldozer tracks around the tomb and had no idea how the tomb became damaged.

Louis Rogers, an employee of Coastal, testified that he and anothey Coastal employee, Elton Davine, cleared the area here in question in April of 1970. He stated that he saw no tomb while working, but had his bulldozer struck a tomb, he would have known it. He had no personal knowledge of how the damage to the tomb occurred and stated that nothing he was pushing had damaged it.

Elton Davine, the other bulldozer operator employed by Coastal who cleared the land, stated that he, too, had been unaware of any tomb in the area. Like Rogers, he also felt that if he had hit a tomb he would have felt it and if his machine had pushed anything into a tomb he would have sensed it.

Both Davine and Rogers noted that there was a rise at the end of the headlands of at least two feet, and each testified that his bulldozer never went upon it.

Several descendants of Mrs. Carter testified at trial. It appears from their testimony and the death certificate in the record that Mrs. Carter, one hundred two years old when she died, was buried at the grave site in February of 1960. It appears that some of the relatives may have visited the grave annually, but none had been there recently. This is further evidenced by the apparent state of the grave site with respect to the dense underbrush and foliage that surrounded it.

The trial judge upon hearing the evidence concluded in his written reason:

“The evidence establishes that the grave was first discovered by employees of South Coast to have been broken in April of 1970. However, the plaintiffs have not proved by a preponderance of the evidence when the tomb was broken, how it was broken, or by whom it was broken. The plaintiffs have suggested that employees of Coastal Dragline Works, Inc., operating bulldozers in the vicinity, broke the tomb. The plaintiffs have not asserted any action directly against Coastal Dragline Works. Coastal Dragline Works was an independent contractor of South Coast. The evidence does not establish that employees of Coastal Dragline Works broke the tomb. Even if it did, the acts of the employees of Coastal Dragline Works would not be imputable to South Coast.”

On appeal plaintiff argues that recovery should be allowed under La.C.C. Art. 2315 and/or La.C.C. Art. 667. We pretermit any discussion of the applicability vel non of Art. 667 to the particular facts of this case since we conclude the trial judge was correct insofar as his determination that causation has not been established by a preponderance of the evidence here presented.

In order to hold a defendant liable under La.C.C. Art. 2315 or La.C.C. Art. 667 the plaintiff has the burden of proving the defendant’s actions were a cause in fact of the injury sustained. In the present case plaintiffs have offered no direct evidence to establish that defendant South Coast or third party defendant Coastal were in any way responsible for the damaged tomb. Furthermore, while it is true that causation may be proved by circumstantial evidence and that that evidence need not negate all other possible causes, such evidence still must exclude other reasonable hypothesis with a fair amount of certainty. Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395 (1963); Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905 (1973). We find no sufficient degree of certainty in the evidence here presented for it would be pure speculation on our part to surmise how the damage here complained of may have occurred.

For the above and foregoing reasons, the decision of the trial court is affirmed with all costs of these proceedings to be borne by plaintiff-appellant.

Affirmed.


author: PER CURIAM. BOLIN, Judge.

text:
    Lloyd C. FOX, Plaintiff-Appellee, v. The MUNICIPAL DEMOCRATIC EXECUTIVE COMMITTEE OF the CITY OF MONROE and W. L. Howard, Defendants-Appellants.
    No. 12923.
    Court of Appeal of Louisiana, Second Circuit.
    Per Curiam Feb. 26, 1976.
    Feb. 26, 1976.

      Hayes, Harkey, Smith & Cascio by Haynes L. Harkey, Jr., David E. Verlan-der, III, Monroe, for defendants-appellants.
    Robert P. McLeod, Monroe, for plaintiff-appellee Lloyd C. Fox.
    Snellings, Breard, Sartor, Shafto & In-abnett by George M. Snellings, III, Monroe, for defendant-appellee Municipal Democratic Executive Committee of the City of Monroe.
    Before BOLIN, HALL and MARVIN, JJ-
   PER CURIAM.

In order to expeditiously dispose of this case in compliance with Louisiana Revised Statutes 18:396 and 18:420, the court announces the following decision:

The judgment of the lower court is reversed and set aside. Plaintiff’s demands are rejected and the suit dismissed at his cost.

Written reasons for the above ruling will follow in due course.

BOLIN, Judge.

W. L. Howard filed the required documents with the Municipal Democratic Executive Committee of the City of Monroe, Louisiana, to become a candidate for May- or of that city. Lloyd C. Fox filed a suit in the district court objecting to Howard’s candidacy based on the contention that Howard was not a “qualified elector” of the city because he had plead guilty to a felony in April 1975. For written reasons the trial judge rendered judgment in favor of Fox disqualifying Howard and the latter appeals. We reverse.

Howard, a former mayor of Monroe, was indicted in 1972 by a grand jury for various offenses allegedly committed by him while serving as mayor. In April of 197S a bill of information was filed against Howard charging him with a felony (public contract fraud) allegedly committed in 1970. On June 6, 197S, Howard plead guilty to an attempt to commit public contract fraud and was sentenced to pay a fine and to serve ten months in the parish jail. The jail sentence was suspended and Howard was placed on supervised probation for one year, subject to certain conditions which are not relevant to this decision.

It is not seriously contended that Howard is not a “qualified elector” unless the specified felony conviction disqualified him.

The lower court in its written reasons held the Louisiana Constitution of 1921 was controlling:

As it was in effect on December 31, 1974, Article VIII, Section 6 of the “old” Constitution provided, in pertinent part:

“The following persons shall not be permitted to register, vote or hold office ... in this state, to-wit: Those persons who have been convicted within this state of a felony and have not afterwards been pardoned with express restoration of franchise ... by the governor of this state . . .” (underlining supplied).

At that time, R.S. 18:42 declared ineligible to register or vote “those who have been convicted of any crime punishable by imprisonment in the penitentiary, and have not afterwards been pardoned. .” R.S. 18:111 directed the Clerk of Court to report to the Registrar the names and addresses of every person sentenced “for any crime punishable in the penitentiary,” and also directed the Registrar to erase the names of such persons from the precinct register. R.S. IS :572.1 prohibited any person convicted of a crime punishable by imprisonment in the penitentiary and not pardoned from registering, voting or holding office.

The “new” Constitution became effective at midnight on December 31, 1974 (Article XIV, Section 35). Article XIV is entitled “Transitional Provisions.” Section 17 thereof repeals the “old” Constitution “except to the extent provided in this Article . . .” Section 18 provides that laws in force on the effective date are to remain in effect if they were constitutional when adopted and are not in conflict with the “new” Constitution. Section 23 provides:

“All writs, actions, suits, proceedings, civil or criminal liabilities, prosecutions, judgments, sentences, orders, decrees, appeals, rights or causes of action, contracts, obligations, claims, demands, titles and rights existing on the effective date of this constitution shall continue unaffected. All sentences as punishment for crime shall be executed according to their terms.”

Section 26 provides:

“Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”

Without question, the offense for which Howard was sentenced occurred prior to effective date of the “new” Constitution. Although he vigorously contends that he pleaded guilty to a new bill of information filed April 4, 1975, the only logical and reasonable interpretation of the facts is that Howard’s plea (conviction) on that date was the culmination of charges and proceedings begun with the indictment filed October 11, 1972. By its very specific language, the “new” Constitution declares that “proceedings”, “criminal liabilities”, and “prosecutions” existing on its effective date shall continue “unaffected” by its provisions. It specifically declares that it shall not be retroactive with respect to “actions or matters occurring prior to” its effective date.

We cannot agree with the learned trial' judge. The only criminal charge against Howard relevant to this case was the one to which he pleaded guilty. This charge was filed in 1975 and he pleaded guilty and was sentenced in 1975. He qualified as a candidate in 1976. At the time of each of these events, the 1974 Constitution was in effect.

Article I, Section 10 of the Louisiana Constitution of 1974 provides:

Every citizen of the state, upon reaching eighteen years of age, shall have the right to register and vote, except that this right may be suspended while a person is interdicted and judicially declared mentally incompetent or is under an order of imprisonment for conviction of a felony. (Emphasis ours)

This was the controlling provision of law in 1976, when Howard qualified.

The language of the second phrase of the 1974 constitutional provision quoted supra is permissive and not self-operative, meaning that it must be implemented before it can operate to deprive one of his right to vote and thus not be a “qualified elector”. It is unnecessary for us to find whether the implementation must be by legislative act or otherwise. We do hold Article I, Section 10 of Louisiana Constitution of 1974 is one of the fundamental bill of rights guaranteeing every citizen that he “shall have the right to register and vote.” Unless this right is specifically suspended by legislative or other constitutional means (which has not been done in this case), it is not automatically forfeited because a citizen is convicted of a felony.

The former Article VIII, Section 6 of the Constitution of 1921, which operated to deprive one of the right to vote and hold public office upon the mere conviction of a felony, was repealed by Article XIV, Section 17 of’ the Constitution of 1974. Louisiana Revised Statutes 18:42 and 111 were repealed by Article XIV, Section 18, because they were in conflict with the 1974 Constitution on its effective date. La.R.S. 15:572.1 was likewise repealed by Article XIV, Section 18, at least to the extent that it deprived one of the right to vote upon the mere conviction of a felony. The question of whether Howard is eligible to “hold office” is not before us. Therefore, there was no law in effect on February 3, 1976, which restricted Howard’s right to register, vote and seek public office.

In reaching its decision, the district court relied on Article XIV, Sections 23 and 26 of the 1974 Constitution and cases applying those sections since the effective date of the new constitution. Sections 23 and 26 are intended to implement the intent of the Constitution of 1974 expressed in Article XIV, Section 14, which provides :

Nothing in this Part shall be construed or applied in such a manner as to supersede or invalidate or limit or change the meaning of any provision of the foregoing Articles of this constitution, hut only to provide for an orderly transition from the Constitution of 1921. (Emphasis ours)

It is clear from the above section that it was the intent and purpose of the Constitutional Convention to do no more than provide for an orderly transition from the old constitution to the new. We cannot agree that Sections 23 and 26, quoted supra from the trial judge’s opinion, authorize applying the provisions of the old constitution to this case merely because Howard committed the crime prior to the adoption of the 1974 Constitution. It is the conviction and not the date of the crime or the proceedings that forms the basis for the possible suspension of the right to vote.

Having decided Article I, Section 10 of the 1974 Constitution is controlling and that no action thereunder has been taken to suspend Howard’s right to vote, it is unnecessary for us to discuss whether his suspended sentence constituted “an order of imprisonment” under the said section.

For the foregoing reasons the judgment is reversed and plaintiff’s demands are rejected at his cost.


author: LEMMON, Judge. GULOTTA, Judge SCHOTT, Judge LEMMON, Judge

text:
    William H. HENDERSON v. ZONING APPEALS BOARD OF JEFFERSON PARISH.
    No. 6494.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 29, 1975.
    Concurring Opinion In Denial of Rehearing March 16, 1976.
    Writ Refused May 11, 1976.

      Mmahat, Gagliano, Duffy & Giordano, Metairie (Nicholas J. Gagliano), Metairile, for plaintiff-appellant.
    Bruce D. Burglass, Parish Atty., Robert I. Broussard, Asst. Parish Atty., for defendant-appellee, Zoning Appeals Board of Jefferson Parish.
    McDonald, Buchler & Morel, Harold A. Buchler, Metairie, for intervenor-appellee, Metairie Country Club.
    Before REDMANN, LEMMON, GU-LOTTA, BOUTALL and SCHOTT, JJ.
   LEMMON, Judge.

Plaintiff has appealed from a judgment dismissing his suit which questioned the legality of the issuance of a building permit by the Jefferson Parish Safety Department to Metairie Country Club, authorizing the construction of five tennis courts on that portion of the Club’s property adjoining plaintiff’s residence.

There are presently three tennis courts on the Club’s property, the nearest located between 40 and 90 feet on an angle away from plaintiff’s property line. The proposed construction, involving relocation of these courts and construction of two additional courts, will expand the tennis area to within a few feet of plaintiff’s property line, at a point near plaintiff’s frontage on Nassau Drive. The construction will also extend the tennis facilities in the other direction into an existing parking lot located between the present courts and the club house. Twelve parking spaces will be removed from the present parking lot and ten parking spaces will be added in the area adjacent to plaintiff’s property line.

The issues on appeal involve interpretations of the Jefferson Parish Comprehensive Zoning Ordinance. Plaintiff contends that under the zoning ordinance the proposed expansion requires prior approval by ordinance of the Jefferson Parish Council and that the permit was illegally issued without such approval.

The Club’s property is located in an R-l Single Family Residential District and has been used as a club since 1926.

Under the zoning ordinance originally adopted in 1958, “clubs” were listed as a permitted use in R-3 Multiple Family Residential Districts. The zoning ordinance was amended, however, after the decision by this court in Howlett v. Lakeside Country Club, 198 So.2d 402 (La.App. 4th Cir. 1967), in which property owners opposed construction of a clubhouse, swimming pool and tennis courts in an R-l district. The court held that use of the property for that purpose was permitted in R-l districts as a private recreational use under Subsection 2 H of Section VII.

After the Howlett decision the Jefferson Parish Council amended Subsection 2 (listing permitted uses in R-l districts) by adding Subparagraph Cl as follows:

“Cl. Clubs when approved by an ordinance by the Jefferson Parish Council when the Council is satisfied that granting approval will not seriously affect any adjoining property or the general welfare and further, that the Planning Department and the Planning Advisory Board hold public hearings and make recommendations to the Council and that all property owners within 100’ fronting on both sides of the street of such location, shall be notified by certified mail and the entire area shall be posted calling the attention of the public hearing for this purpose.”

When Subparagraph Cl was added, however, Subparagraph H was left unchanged.

I

Plaintiff contends that the proposed expansion constitutes an intended use of property as a club in an R-l district, which is not permitted without council approval after a public hearing in accordance with Section VII 2 Cl.

Use of property for nonprofit clubs or for private recreational facilities perhaps fulfills social and recreational needs of a neighborhood, municipality or metropolitan area, but such use also tends to produce traffic, noise and activity which may not be compatible with the enjoyment of property in a purely residential district.

Many zoning ordinances have approached the problem as to nonprofit clubs either by limiting clubs to only the less restrictive residential zones (as the Jefferson ordinance originally did), or by permitting clubs in the more restrictive districts only through special permit procedures requiring review of the proposed use and approval by a board or by the governing authority (as the Jefferson ordinance now does). See generally 2 Anderson, American Law of Zoning § 9.43 (1968).

As to private recreational uses, many zoning ordinances also require special permit procedures before allowing use of property for tennis courts, swimming pools and golf courses in residential districts. 2 Anderson, American Law of Zoning §§ 1S.06, 11.84 (1968). However, when the Jefferson Parish governing authority amended Section VII of the zoning ordinance by adding Subsection 2 Cl to permit use of property for clubs in R-l districts only after a public hearing and an approving ordinance, the Council did not amend Subsection 2 H, which still allows private recreational uses in R-l districts without an approving ordinance.

The Metairie Country Club is seeking to use a portion of R-l zoned property for a private recreational use as a tennis court. We hold that since Section VII 2 H of the zoning ordinance by its express terms permits this particular use in R-l districts, Council approval for use as a club under Section VII 2 Cl is not required.

We recognize that there is some inconsistency in the zoning ordinance which requires Council approval before using property in R-l districts as a club, while permitting use of such property for a private recreational ilse such as a tennis court. Nevertheless, even if the zoning ordinance is ambiguous in that one section permits a proposed use and another section prohibits such use until a special permit is obtained, the ordinance must be strictly construed in favor of the landowner, since zoning ordinances are in derogation of the rights of private ownership. State ex rel. Time Saver Stores v. Bd. of Zoning Adjustments, 261 So.2d 273 (La.App. 4th Cir. 1972).

The zoning ordinance in the present case restricts the use of property to those uses specifically listed in the ordinance. Since the proposed use for private recreational purposes is one which is listed in that section governing permitted use of property zoned R-l, we must conclude that the proposed use is legal without Council approval.

II

Plaintiff also urges consideration of Subsection 2A of Section XIX, pertaining to nonconforming uses, which provides that “(a)dditions will be permitted to a structure which enjoys a legal non-conforming use only by passage of an ordinance by the Jefferson Parish Council”.

Our decision that the proposed use of the property for private recreational purposes does not constitute nonconforming use is dispositive of this contention. Since the proposed construction is specifically permitted in R-l districts under Subsection 2H of Section VII, it is not necessary for Metairie Country Club to follow procedures specified for additions to nonconforming structures.

Ill

Subsection 2 of Section XVIII, pertaining to off-street parking regulations, provides :

“OFF STREET PARKING REQUIREMENTS:
Off street automobile parking space shall be provided on any lot which any of the following listed uses are hereafter established, and in accordance with the schedule shown. When a use is increased in capacity by the addition of dwelling rooms, guest rooms, floor area or streets, the minimum off street parking shall be provided for such increase.
“USE
“7. Clubs and Lodges 1 Space for each 3 members at time of construction or structural alteration”

Contending that the proposed construction constitutes a structural alteration, plaintiff argues Metairie Country Club with a membership in excess of 1,000 must increase its present 165 parking spaces to comply with the ordinance, and that the building permit should not have been issued until there was a showing that the parking requirements would be met.

Most modern zoning ordinances undertake to prevent further deterioration of parking situations by requiring that plans for new construction or the substantial alteration of an existing building include specific provisions for off-street parking. 2 Anderson, American Law of Zoning § 8.40' (1968). However, Jefferson Parish’s ordinance’s off-street parking requirements by their express terms apply only “on any lot (on) which any of the following listed uses are hereafter established”. (Emphasis supplied) Even accepting plaintiff’s argument that the proposed construction merely expands the existing overall use of the property as a club, we again point out that the permit involved here is not one to establish a new club. Therefore, the off-street parking requirements are expressly inapplicable under the circumstances present in this case.

Furthermore, viewing the proposed construction as a private recreational use, we note that the zoning ordinance expressly-allowing such use in R-l districts necessarily allows the construction of “back stops” or high fences to prevent balls from going on neighboring property.

Finally, the circumstances of this case do not present a situation where “a use is increased in capacity by the addition of dwelling rooms, guest rooms, floor area or seats” so as to require provision of minimum off-street parking for such increase.

IV

Section XVIII 1 C provides:

“Area reserved for off street parking or loading in accordance with the provisions of this section shall not be reduced in area or changed to any other use unless the permitted use which it serves is discontinued or modified except where equivalent off street parking or loading space is provided,” (Emphasis supplied)

Plaintiff argues that the exhibits demonstrate a reduction in the area presently used for off-street parking and that there has not been a sufficient showing that the proposed construction provides equivalent off-street parking space.

The ordinance’s off-street parking requirement for clubs is set in terms of parking spaces. The exhibits in the record indicate that 17 new parking spaces will be provided to replace the 12 parking spaces to be lost in the proposed construction. On the basis of this showing, we find no error in the issuance of the permit because parking area was reduced.

The judgment is affirmed.

Affirmed.

GULOTTA, J., dissents and assigns reasons.

SCHOTT, J., dissents and assigns reasons.

GULOTTA, Judge

(dissenting).

I disagree with the conclusion reached by the majority that the property is not a non-conforming use. The Howlett case, and the majority’s interpretation of Section VII(2) (Cl) notwithstanding, I am of the opinion that the Metairie Country Club occupies the position of a non-conforming use. Section X(2)(G) of the ordinance permits “Clubs and Lodges” in “Multiple Family Residential District — R-3”. A club is defined under Section 111(18) as follows :

“Buildings and facilities owned and operated by a corporation, association, person or persons for a social, educational or recreational purpose, but not primarily for profit or to render a service which is normally carried on as a business.”

As pointed out by the majority, the club has been in operation since 1926. The ordinance was adopted in 1958. If we adopt the view that (2) (Cl) of Section VII applies to establishing a new club, as determined by the majority, a club in existence at the time of the adoption of the ordinance would be permitted under R-3 (Section X(2)(G)). When located in an R-l area, as in the instant case, it enjoys the status of legal non-conforming use.

Metairie Country Club seeks to relocate tennis courts and construct two additional ones. Section XIX (2A) of the ordinance defines addition as follows:

“Additions will be permitted to a structure which enjoys a legal non-conforming use only by the passage of an ordinance by the Jefferson Parish Council, . . .” (italics ours)

Section 111(70) defines structure as follows :

“Anything constructed or erected, the use of which requires a location on the ground, or attached to something having a location on the ground, including but without the generality of the foregoing, advertising signs, billboards, back stops for tennis courts, fences and pergolas.” (italics ours)

It seems rather clear to me that the proposed construction of additional tennis courts is an addition to a structure of legal non-conforming use property requiring the “passage of an ordinance” by the Jefferson Parish Council. I am of the opinion that because no such ordinance was adopted, the permit issued by the Jefferson Parish Safety Department is not valid. Accordingly, I dissent.

SCHOTT, Judge

(dissenting).

Section XVIII 2. entitled “Offstreet Parking Requirements” prescribes as follows :

“Offstreet automobile parking space shall be provided on any lot which any of the following listed uses are hereafter established, and in accordance with the schedule shown. .
“USE
“7. Clubs and Lodges
1 Space for each 3 members at time of construction or structural alteration.” (Emphasis supplied)

Section III of the Ordinance defines “structural alteration” as “any change in the supporting members of a structure” and defines “structure” to include “backstops for tennis courts [and] fences.”

The Club proposes to relocate the existing three tennis courts and to construct two additional courts. This work will involve the removal of the present fences or backstops and the construction of new fences or backstops. From the plain wording of the ordinance this constitutes a structural alteration which cannot be accomplished without providing one space for each three members of the Club.

In the majority opinion the subject provision is said to be inapplicable because the club pre-existed the ordinance which speaks of uses “hereafter, established.” I submit this interpretation stifles the ability of the parish to cope with parking problems. It is understood that a pre-existing use as a club can continue as long as its original size and character remain unchanged without regard to subsequently adopted parking requirements, but there is no basis for holding that the use’s pre-existence entitles the owner to expand its operations with attendant increase in parking demands notwithstanding the parish’s efforts in the meantime to cope with parking problems. In my opinion, the use “hereafter established” is not the existence of the club but the “structural alteration” of its facilities which cannot be accomplished without compliance with the off street parking requirements.

Therefore, I believe that the permit was issued by the Parish Safety Department in violation of the ordinance and the judgment of the trial court should be reversed.

I respectfully dissent.

LEMMON, Judge

(concurring in the denial of application for rehearing).

On application for rehearing, plaintiff contends that this court in Howlett v. Lakeside Country Club, supra, wrongly applied Section VII 2 H to permit construction of a club house, swimming pool and tennis court as a private recreational use by a club. Citing 2 Anderson, American Law of Zoning, § 12.11, pp. 502-503 (1968), plaintiff asserts that “golf course”, for example, has a different meaning from “golf club”, and suggests that Subsection 2 H permits the golf course to be located in an R-l district, while the club house and other such facilities must be restricted to adj acent R-3 districts.

I tend to agree with this interpretation and would probably have voted in Howlett to prohibit construction of the club house in the R-l district. In the present case, however, Metairie Country Club is simply seeking to construct tennis courts in an R-l district, adjacent to its club house, and is not seeking to construct a club house or similar facility in that district. Construction of a “tennis court” (as opposed to a “tennis club”) is specifically permitted by Subsection 2 H.

The true solution to the problem raised in this case is for the Jefferson Parish Council (if that body is so inclined) to amend Subsection 2 H to allow private recreational uses in R-l districts only through special permit procedures, as was done when Subsection 2 Cl was adopted. This solution in the future, however, cannot avail plaintiff in this suit, which is controlled by the present ordinance.

I further agree with plaintiff’s contention that Subsection 2 H (as it now reads) is inconsistent with Section VII’s purpose clause. Nevertheless, Subsection 2 H is in the ordinance and must be given effect. Amendment of the ordinance is the appropriate method of achieving consistency.

As to parking requirements, problems are inherent in requirements based upon the number of employees or number of members at time of establishment of the use, since such numbers are often increased without an increase in building, floor area, or seating. However, the zoning ordinance could (but does not) require additional parking to be provided when the number of employees or members is increased, just as the ordinance requires additional parking to be provided when the floor area is increased.

      . With the Club’s permission plaintiff planted and now maintains trees in this “buffer” area.

      . The plan also shows the addition of seven new parking spaces on the other side of the clubhouse.

      i. Clubs are defined in the zoning ordinance as:
      “Buildings and facilities owned and operated by a corporation, association, person or persons for a social, educational or recreational purpose, but not primarily for profit or to render a service which is normally carried on as a business.”

      . Section VII 2 H provided:
      “2. PERMITTED USES — In R-l Districts only the following uses of property shall be permitted”:

      “H. Private recreational uses such as tennis courts, swimming j)ools, golf courses, operated exclusively for private use and not for commercial purposes.”

      . In this context private recreational use is not limited to use, for example, as a back yard swimming pool by an individual and members of his family and guests. The illustrative inclusion of “golf courses” and the connotation of the word “operated” clearly indicate that the drafters of the zoning ordinance envisioned this private recreational use to include such use by a private, noncommercial association of individuals.

      . The landowner on the other side of plaintiff’s residence could apparently obtain a building permit to construct a tennis court for private recreational use by a noncommercial association of individuals under the authority of Section VII 2 H, without Council approval.

      .In any event we differentiate between the procedure to establish a new club (not involved in this case) under Subsection 2 Cl and the procedure to establish a private recreational use under Subsection 2 H.

      . We further note that Metairie Country Club’s use of its property as a club was never a nonconforming use, either under prior law as expressed in the Howlett case or under the new law (Section VII 2 Cl) which specifically permits the existence of clubs (although a proposed new use for this purpose must be approved by ordinance).

      . Although subject to other interpretations, Section XVIII 2 can reasonably be interpreted to apply only when the property was previously unused or was used for other purposes, as when a new club is being established on vacant ground, required parking spaces would be calculated based on membership at time of construction, and when a new club is being established on property previously used for another purpose, required parking spaces would be calculated based on membership at time of structural alteration.

      . I certainly disagree with the implication in Howlett that the construction was permitted as a “community center . . . used exclusively by the Federal, State or local government for public purposes . . . .”

      . On the basis of similar reasoning I probably would have voted to allow construction of the “tennis court” in Shady Grove, Inc. v. Parish of Jefferson, 203 So.2d 869 (La.App. 4th Cir. 1967).

      .That is, I cannot find a way to construe Subsection 2 H so that it would be consistent with the purpose clause.


author: CUTRER, Judge. MILLER, Judge.

text:
    LAFAYETTE AIRPORT COMMISSION et al., Plaintiffs and Appellees-Appellants, v. J. Maxime ROY et al., Defendants and Appellants-Appellees.
    No. 5326.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1976.
    Rehearings Denied March 4, 1976.

      Logan & DeLaunay by Gerald C. De-Launay, Lafayette, for plaintiff-appellant.
    Morgan J. Goudeau, III, Opelousas, for defendant-appellant.
    Davidson, Meaux, Onebane & Donohoe by Edward C. Abell, Jr., Bailey & Hollier by W. Charles Hollier, Lafayette, for defendants-appellees.
    David F. Hutchins, Lafayette, for plaintiff-appellee-appellant.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

This is an expropriation case involving a 97 acre tract of land expropriated by the Lafayette Airport Commission and the Lafayette Parish Police Jury for extension of runways at the Lafayette Municipal Airport. A prior appeal in this case raised issues as to valuation and leasehold interest. After carefully reviewing the record in this complex case we amended the trial court judgment to substantially increase the award to the landowners. In addition, we reversed the judgment in part to recognize the leaseholder’s interest and award the leaseholder the fair market value of its ownership. On application for rehearing, defendants requested that we make specific awards in relation to expert fees and other costs which plaintiffs were condemned to pay. Noting a lack of evidence in the record on the appropriateness of the claimed fees, we refused to fix those fees.

On October 11, 1972, defendants, Acadi-an Development Corporation and the Roy heirs, lessee and landowners respectively, filed a motion requesting the trial court to fix the expert fees. Depositions of the experts were taken and filed into evidence in order to give the trial court some basis for determining a proper award for these fees. On March 12, 1975, a judgment was signed fixing the expert fees and taxing them as court costs against the Lafayette Airport Commission. An appeal has been taken by the Commission from that judgment.

On February 12, 1975, defendant, Leola Martin Roy, filed a motion in the trial court requesting permission for the Clerk of Court to release to her from the court’s registry $12,180.43, representing principal and accrued interest on the award made in the expropriation proceedings to W. W. Rucks, III, Paula Roy Simon and Margaret Roy Rucks. She claimed as the basis for her right to this money her status as testamentary usufructuary under the will of her husband, C. Willis Roy. On September 11, 1975, a judgment was signed directing the Clerk of Court to pay to Mrs. Roy the aforementioned sum. An appeal has been taken by W. W. Rucks, III, Paula Roy Simon and Margaret Roy Rucks from that judgment. We will deal first with this latter appeal.

USUFRUCT

The circumstances out of which this controversy arose are undisputed. A stipulation of facts was entered into by the parties and presented to the lower court. A brief summary of those facts is as follows: C. Willis Roy (hereinafter referred to as “Decedent”), the husband of Leola M. Roy, died on June 15, 1946, owning an undivided one-tenth interest in acreage in Lafayette Parish, a portion of which is the property expropriated by the plaintiffs. The one-tenth interest owned by decedent constituted his separate property. The decedent was married once. His wife, who survived him, was the plaintiff-in-rule, Leola M. Roy, and of their marriage Charles W. Roy, Jr., Stewart Martin Roy, Ethelyn Roy Gabriel, Paula Roy Simon and Margaret Roy Rucks were the only issue. The decedent left a last will and testament dated August 15, 1940. His succession was opened and judgments of possession were rendered on October 11, 1946 and April 15, 1948. A commercial sand deposit was discovered on the property in 1956, and sand mining operations were commenced in 1957 by Acadian Development Corporation, which held sand mining leases from all owners of the property. Ethelyn Roy Gabriel died in 1959, and at her death she was survived by her daughter, Donna Gabriel Civello, her only heir, who succeeded to ownership of her interest in the property. By deed dated October 5, 1959, as amended on May 27, 1960, Charles W. Roy, Jr., conveyed to W. W. Rucks, III, and Margaret Roy Rucks all of his right, title and interest in and to the property, including all sand, gravel and shell deposits therein, subject to the reservation of certain oil, gas and hydrocarbon mineral rights. Sand mining operations were continuously conducted on the property between 1957 and January 30, 1970, the effective date of the expropriation. At all times prior to January 30, 1970, the property was low and poorly drained and unfit for cultivation, habitation or any surface use other than hunting, fishing and sand mining operations, and except for oil and gas lease bonus and rental payments and sand royalties, the owners of the property never received any revenue or income from the land.

On May 26, 1972, this court rendered a decision in which a total award of $252,087.50, exclusive of interest, was made as compensation for the acreage expropriated and severance damages in connection with a portion of the remaining property. Of the total award, $163,087.50 was allocated to the landowners, and of this amount ten percent, or $16,308.75, represented the one-tenth interest formerly owned by the decedent. Of this amount, $3,261.75 was allocable to Donna Gabriel Civello, $3,261.75 was allocable to Stewart Martin Roy, $3,261.75 to Paula Roy Simon, $3,261.75 to Margaret Roy Rucks and $3,261.75 to W. W. Rucks, III, and Margaret Roy Rucks, jointly.

The dispute exists between Leola M. Roy, on the one hand, and W. W. Rucks, III, Margaret Roy Rucks and Paula Roy Simon, on the other, as to their respective rights to the expropriation award and accrued interest. Under the will of decedent, Leola M. Roy was given a usufruct over the property inherited by decedent’s children. It is the contention of Mr. and Mrs. Rucks and Mrs. Simon, defendants-in-rule, that the testamentary usufruct in favor of Mrs. Roy terminated vldien the property was expropriated, and that as naked owners of the property they are entitled to that portion of the proceeds representing their three-fifths of one-tenth interest in the property. Alternatively, they contend that since the sand mining operations were not in existence at the time the usufruct was created, the usufructuary is not entitled to that portion of the proceeds representing compensation for the expropriated and severed rights of defendants-in-rule to explore for and withdraw sand from the property, and to receive royalty payments and other economic benefits in connection with their lease of such rights to others.

The argument of appellants, Mr. and Mrs. Rucks and Mrs. Simon, with respect to their rights to the compensation for the loss of the right to explore for or withdraw sand from the property is based on LSA-C.C. article 552, which provides as follows:

“The usufructuary has a right to the enjoyment and proceeds of mines and quarries in the land subject to the usu-fruct, if they were actually worked before the commencement of the usufruct; but he has no right to mines and quarries not opened.”

The testamentary usufruct in favor of ap-pellee, Mrs. Roy, was established in 1946. The sand deposit was not discovered on the property until 1956, and the sand mine was not opened until 1957. Under the above provision of the Civil Code, appellee is without any right to explore for or withdraw sand from the property, or to receive or share in the royalty income and other economic benefits from the sand mine. She was without any right to prevent the naked owners or their lessee from entering on the property-and conducting mining operations. King v. Buffington, 240 La. 955, 126 So.2d 326 (1961); Gueno v. Medlenka, 238 La. 1081, 117 So.2d 817 (1960). Therefore, we hold that appellee, Mrs. Roy, was not entitled to withdraw from the court’s registry that portion of the proceeds representing compensation for the expropriated and severed rights to explore for and withdraw sand from the property.

Appellants’ principal argument attacking the ruling of the lower court is that the expropriation of the property subject to the testamentary usufruct constituted a “loss, extinction or destruction” of the property within the meaning of LSA-C.C. article 613, and effected a destruction of the testamentary usufruct by operation of law. We find that the usufruct granted to appellee, Mrs. Roy, was not destroyed. Rather, it was expropriated by the Lafayette Airport Commission and compensation is due as a result of this taking of Mrs. Roy’s interest.

Under LSA-C.C. article 533, usufruct is “the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantages which it may produce, provided it be without altering the substance of the thing.” The petition of the expropriating authority clearly sets out the intention to expropriate not only the naked ownership but all elements of perfect ownership: the right to use, to enjoy and to dispose. LSA-C.C. article 491. The petition specifically includes Mrs. Roy’s usufruct. Since the expropriation included not only the third element of ownership but the first two as well, which were vested in Mrs. Roy, she is entitled to compensation for the taking of her interest by the expropriating authority.

Just compensation for the land expropriated in this case was determined earlier by this court. Once that total amount has been established it is Mrs. Roy’s burden, as a claimant of a portion of that total award, to prove the value of her interest. The record in this case is devoid of any evidence upon which to determine the value of the usufruct. Therefore, no award will be made in this connection.

EXPERT FEES

The errors alleged by plaintiff-appellant in connection with the fixing of the expert fees are as follows: (1) error in awarding an appearance fee to Thomas S. Broyles, an interested party since he was president of Acadian Development Corporation at the time of the litigation; (2) error in awarding an appearance fee to Ralph L. Davenport, an interested party since he was a part owner in the sand mine; (3) error in awarding an appearance fee to W. L. Dailey; (4) error in awarding appraisal and appearance fees to Gilbert Pilcher; and (5) error in awarding appraisal and appearance fees to George Parker, T. M. Wilkes, Allen Angers and Maurice Chap-puis.

In connection with the first two assignments of error, we note the following language from the opinion of this court in State, Department of Highways v. Willet, 322 So.2d 383 (La.App. 3rd Cir. 1975): “Landowners, who incidentally are expert appraisers, are not entitled to fees for appraising and testifying in court proceedings involving their own properties.” The record before us indicates that both Thomas S. Broyles and Ralph L. Davenport fall within the language contained in the Willet case. Davenport was part owner of the sand mine. The quoted language clearly contemplates this situation. Broyles, although not part owner of any of the land or of the sand mine, was president of the lessee, Acadian Development Corporation. As such he is not entitled to compensation for appearing to testify in connection with this litigation. The appearance fees awarded to Broyles and Davenport must be disallowed.

The alleged error in awarding an appearance fee to W. L. Dailey is based on the absence from the record of any testimony or proffer of evidence by a Mr. W. L. Dailey. Our review of the record reveals that a Mr. W. L. Daly did in fact testify at the trial. Certainly this was no more than a clerical error, which does not justify a modification of the lower court’s judgment to disallow this fee.

The alleged error in awarding appraisal, and appearance fees to Gilbert Pilcher, must like the problem with the award to W. L. Dailey, is based on the fact that no such person appeared to testify at the trial. The deposition of Mr. James R. Gilbert, taken in connection with the rule to fix expert fees, indicates that he was employed by Acadian Development Corporation in January of 1971, when he worked for Gilbert & Pilcher, Incorporated, to gather information and prepare to give expert testimony in connection with the expropriation proceedings. He testified by proffer. Again, this problem appears to have arisen from a clerical error. We will allow the award to stand as is.

The alleged errors in connection with the awards to Parker, Wilkes, Angers and Chappuis are based on arguments of inaccuracies and incongruities in their reports and the use of arbitrary figures by one or more of these experts. It is further argued that some of the reports were not used by the court; therefore, no award should be made to the expert for the work done on those reports which were not used.

This expropriation case involved a unique and highly complex appraisal problem. Its unique features required many hours of field work and organization and evaluation of the information gathered in order that the various experts could prepare for presentation of the information to the court. All of the reports were used in varying degrees in the court’s process of determining what compensation was due defendants. The burden is on appellant to demonstrate to this court that the lower court clearly abused its discretion in fixing the fees of expert witnesses. State, Department of Highways v. Hoyt, 272 So.2d 768 (La.App. 3rd Cir. 1972). This burden has not been met.

Appellant has filed an exception of res judicata, arguing that language in this court’s original opinion, which judgment has become final, determined the issue of what court costs were to be paid by appellant. It is argued that our prior opinion relieved appellant from paying all except stenographers’ costs for taking testimony under LSA-R.S. 13:4521.

An application for rehearing was filed by the expropriating authority. This court reviewed the basis for the original decision and affirmed it. At the conclusion this court noted that defendants had requested that we make specific awards in relation to expert fees and other costs which plaintiffs were condemned to pay. We declined to deal with this issue due to a lack of evidence in the record relating to the appropriateness of the claimed fees, and stated that defendants should proceed by rule in the district court to have these costs fixed. There is no basis for the exception; therefore, it is overruled.

For the reasons assigned the judgment of the trial court authorizing the Clerk of Court to release the funds representing compensation to Mr. and Mrs. Rucks and Mrs. Simon for their interests in the expropriated lands to Mrs. Leola M. Roy is reversed. The judgment of the trial court fixing the expert fees and taxing them as court costs to be paid by plaintiffs is affirmed in all respects, except with reference to the awards to Thomas S. Broyles and Ralph L. Davenport, which must be deleted from that judgment. All costs are assessed against appellant, the Lafayette Airport Commission.

Reversed in part; affirmed in part.

ON APPLICATION FOR REHEARING

Before MILLER, WATSON and CU-TRER, JJ.

MILLER, Judge.

Mrs. Roy’s (the usufructuary’s) application for rehearing should be granted. I think we erred in failing to order $652.35 (the value of the land subject to Mrs. Roy’s usufruct, excluding the mineral value not subject to her usufruct) invested for the naked owner’s benefit subject to the award of the interest on the investment to Mrs. Roy.

Our reliance on Mrs. Roy’s “failure to establish the value” of the usufruct is misplaced for two reasons. First, the relevant jurisprudence applies between the claimant and the State, not as between naked owner and usufructuary. Second, the award for the expropriated property was made for the “value of the land.” No distinction was made between the value of the naked ownership and the usufructuary interest. The parties stipulated to the value of the land and simply did not confront this issue. Therefore the value of Mrs. Roy’s usufruct was included in the award made. While I agree she failed to establish the amount of the usufruct’s value, her usufruct did have a value.

There appears to be no statutory solution to this precise problem. The result reached in Succession of Daste, 210 So.2d 521 (La.App. 4th Cir., 1968) [other issues reviewed and amended, Succession of Daste, 254 La. 403, 223 So.2d 848 (1969)], would be appropriate here. There the funds received for the immovable property sold to satisfy succession debts were ordered invested and interest on the investment was awarded to the usufructuary. Mrs. Daste’s usufruct was a particular legacy while the cases relied on considered legal usufructs, but the testamentary usufruct should have equal dignity and rights. Mrs. Roy was given the use and fruits of the expropriated property until her death. Had a transfer of the property occurred in another manner, her rights would have been protected. They should be protected here as well.

LSA-C.C. Articles 1956 and 21 permit this suggested solution.

I respectfully dissent from the refusal to grant a rehearing.

      . Lafayette Airport Commission, v. Roy, 265 So.2d 459 (La.App. 3rd Cir. 1972).

      . This provision has been repealed by legislation passed in 1974; however, this fact does not affect its apjhicability to the facts before the court.

      . Lafayette Airport Commission v. Roy, supra.


author: SCHOTT, Judge. PER CURIAM.

text:
    John McRay MOLLISH v. Doris Ann MOLLISH.
    No. 7480.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 8, 1976.
    Rehearing Denied Feb. 10, 1976.
    Writ Refused March 19, 1976.
    Michael E. Soileau, New Orleans, for John McRay Mollish, plaintiff-appellant.
    Clyde A. Ramirez, New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

This appeal was from a judgment dismissing appellant’s petition for a writ of habeas corpus. The judgment was signed on February 25, 1975, the motion for appeal was filed on April 3, and the appeal bond was filed on June 2. Because the bond was not filed within the thirty day period prescribed by LSA-C.C.P. Art. 3831, a rule was directed to appellant on our own motion to show cause why his appeal should not be dismissed for lack of jurisdiction.

The basis for appellant’s petition for ha-beas corpus was a judgment of a Tennessee court awarding him custody of his child and amending a previous judgment of the same court which had awarded custody to appellee, his divorced wife. The trial court gave full faith and credit to the ear-Her judgment but declined to give full faith and credit to the amending judgment because of jurisdictional deficiencies in the proceedings leading up to the amending judgment. Accordingly, the trial court awarded custody of the child to the mother.

Appellant contends that the real issue in this case is the trial court’s failure to give full faith and credit to a judgment of a sister state and that the delays for appeal provided by Art. 3831 do not apply under these circumstances.

We see no merit in appellant’s argument. His suit was simply a petition for writ of habeas corpus brought pursuant to C.C.P. Art. 3821, et seq. Art. 3831 by its terms applies when a judgment orders the release of a person from custody or places him in the custody of another person. The fact that his claim is based upon a judgment of another state cannot affect our jurisdiction over his appeal from this judgment, since our jurisdiction is controlled by Art. 3831. This court has no power or authority to modify a judgment which has become definitive by the passage of the time fixed by law for taking an appeal. C.C. Art. 3556(31); C.C.P. Art. 1842.

Accordingly, the appeal is dismissed at appellant’s cost.

Appeal dismissed.

ON REHEARING

Before LEMMON, GULOTTA and SCHOTT, JJ.

PER CURIAM.

In his application for rehearing, appellant argues that LSA-C.C.P. Art. 3831 applies only to orders releasing a person from custody or placing the person “in the custody of another person,” whereas in the instant case when the petition for ha-beas corpus was dismissed, the child was not released from appellee’s custody, since she already had custody and she could not be considered “another person” as provided for in the statutes.

In Malone v. Malone, 282 So.2d 119 (La. 1973), C.C.P. Art. 3943, providing for a 30-day appeal time “from a judgment awarding custody of a person or alimony” was construed:

“Noting that some courts have found that judgments which either terminate or deny alimony or custody are not governed by the article, the Court held that this has created confusion which was not intended by the legislature and that the article would apply to all judgments awarding, denying, modifying, terminating alimony or custody.”

The same reasoning applies to our construction of Art. 3831.

The application for rehearing is denied.


author: MILLER, Judge.

text:
    Mary Alice RITCHEY, Plaintiff-Appellee, v. J. Beverly BRIGNAC, Defendant-Appellant.
    No. 5366.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 1976.

      Dragon & Kellner by Robert A. Dragon, Jr., Lafayette, for defendant-appellant.
    Mouton, Roy, Carmouche, Hailey, Bivins & McNamara by John K. Hill, Jr., Lafayette, for plaintiff-apepllee.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Defendant J. Beverly Brignac appeals a judgment awarding $200 per month child support to plaintiff Mary Alice Ritchey for the benefit of their four minor children. We affirm.

Numerous other contests arose between the parties after the June 1967 judgment and before notice of that judgment was mailed to husband as required by LSA-C. C.P. art. 1913. Several contests are pending between the parties at this time, but are not properly before this court and are not addressed.

The parties obtained a final divorce on March 18, 1966, but the judgment did not award child support. In December 1966 and again in February 1967 wife ruled husband into court to fix alimony and child support. The parties presented the issue of child support to the trial court. After taking the matter under advisement, the trial court promptly decided the matter but judgment was not signed until June 29, 1967. Notice of that judgment was not served on defendant husband until September 22, 1975. The appeal was timely perfected in October 1975.

The issues before us relate to: — 1) the use of summary procedure, 2) the use of the term “alimony” to describe the child support awarded to the mother, and 3) the award of $200 per month as child support for the four minor children.

Defendant husband’s objection to the use of summary procedure is raised for the first time on this appeal. The dilatory exception of unauthorized use of summary procedure is waived unless pled in limine. LSA-C.C.P. arts. 926, 928. o Defendant has waived his right to object to the summary nature of the proceeding. He was represented by counsel at 'the hearing where testimony and evidence were received on all issues. His rights were in no way prejudiced.

The second issue is illusory. The judgment states that “alimony” is to be paid to Mary Alice Ritchey. However, the reasons pursuant to which judgment was rendered make clear that the alimony awarded was for child support. The trial court’s written reasons condemned husband to pay wife $200 per month for the support and maintenance of the four minor children.

The “alimony” awarded is that alimony due for child support. LSA-C.C. arts. 229, 230, and 231. It is not the alimony which may be granted pursuant to LSA-C.C. art. 360.

Although no issue has been made concerning the factual basis for and the amount of the award, the testimony and evidence in the record support it. The children’s need and the father’s ability to pay were established.

There is no error or abuse of discretion in the trial court judgment. It is affirmed at appellant’s costs.

AFFIRMED.


author: OVERTON, Justice.

text:
    MILTON KELNER, P.A., a Professional Association, Petitioner, v. 610 LINCOLN ROAD, INC., d/b/a A. Taylor & Sons, a Florida Corporation, Respondent.
    No. 45598.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Rehearing Denied March 30, 1976.
    Milton Kelner, Miami, in pro per.
    Norman F. Solomon, Miami, for respondent.
   OVERTON, Justice.

This cause concerns the method for payment of an attorney employed on a contingency fee contract when he has been discharged without cause.

The Third District Court of Appeal, in its decision in this cause reported at 289 So.2d 12, has certified the following question to us as one of great public interest:

“Whether or not an attorney, discharged without cause by the client when he was to be compensated on a percentage rate upon the happening of a contingency, should be entitled to recover under the terms of the contract or be limited to a quantum meruit recovery?"

We granted certiorari because the issue is one of first impression and is important both to the bar and to the public. We have jurisdiction. Regrettably, the factual situation in the instant case is unique and the question cannot, therefore, be fully answered.

The facts, using the words attorney and client for petitioner and respondent respectively, are as follows.

The client’s jewelry store was robbed of approximately $350,000.00 worth of jewelry, of which $150,000.00 was jewelry held on consignment by the client. The loss was covered by an insurance policy issued by Lloyd’s of London in the amount of $100,000.00. A private adjuster was initially employed by the client to process the claim with Lloyd’s and to effect a settlement of the consignors’ claims. The client contended that a settlement was tentatively effected by the adjuster with the consignors whereby they were to receive 60% of the face amount of the policy and the client was to receive 39%, there being a one percent deductibility clause. At trial the consignors’ attorneys disputed any agreement to accept 60% of the insurance proceeds at this point in the negotiations. Lloyd’s, however, rejected the client’s claim, contending the client’s records and proofs of loss did not comply with the provisions of the policy. As a result, the client employed the petitioner-attorney on a 40% contingent fee contract which reads as follows:

“AUTHORITY TO REPRESENT
“I, the undersigned client, do hereby retain and employ
MILTON KELNER, P. A.
416 Biscayne Building
19 West Flagler Street
Miami, Florida 33130
as my attorney, to represent me in my claim against certain underwriters at Lloyd’s, London, pursuant to Certificates #T8845A and T884SB for the sum of One Hundred Thousand Dollars ($100,000.00) resulting from a theft and burglary that occurred on the 8/9th day of May, 1971.
“I agree to pay all costs of handling including court costs, accountant’s fees, travel expenses, etc. As compensation for their services, I agree to pay my said attorneys from the proceeds of recovery the following fees:
40% of all sums recovered whether by way of settlement, Arbitration or lawsuit
50% if an appeal is taken from the lower court by either side, or if garnishment or any proceeding after judgment has to be brought to collect the judgment or any portion thereof, or if suit is brought after an Arbitration award.
“It is understood and agreed that this employment is upon a contingent fee basis, and if no recovery is made, I will not be indebted to my said attorney for any sum whatsoever as attorney’s fees.
“I hereby give my said attorney the exclusive right to take all legal steps to enforce my claim, and I agree not to settle this claim in any manner without the written consent of my attorney.
“DATED this 16 day of September, 1971.
610 Lincoln Road, Inc. d/b/a
A. Taylor & Sons
By /s/ Abe Taylor
Abe Taylor, President
“The above employment is hereby accepted upon the terms stated therein.
/s/ Milton Kelner__
MILTON KELNER, P.A.”

The attorney received a $1,000.00 cost deposit. He was also subsequently hired to defend three consignors’ suits and received a $750.00 retainer fee for each, or a total of $2,250.00.

The attorney filed suit on behalf of the client against Lloyd’s, which before trial agreed to pay the face amount of the policy. The consignors then agreed to accept $60,000.00 for their claims as assessed in their suits. Based thereon, the attorney tendered the settlement along with a final accounting, which specified that the consignors would receive $60,000.00, the attorney would receive $40,000.00, and the client would receive a refund of $3,250.00 representing the cost deposit and retainer fees for the consignor actions. The $1,000.00 deductibility provision in the policy apparently was overlooked in this accounting.

The client rejected this settlement. The record reflects from the testimony before the jury by the petitioner-attorney that the client had demanded 20% under the table without the knowledge of the consignors. It was unrefuted that the client had taken the position that “If I don’t get anything, no one gets anything.” The client discharged the attorney and employed a substitute attorney who bettered the consignors’ settlement by $9,000.00.

The petitioner-attorney brought this action in the circuit court on the contingency contract. The trial court ruled that this was a valid contract, it was not unconscionable, and there was no overreaching, which holding was affirmed by the District Court.

The real issue concerned the computation of the percentage fee. It was the client’s contention that the contingency contract required him to pay 40% of $39,000.-00 rather than 40% of $100,000.00, as contended by the petitioner-attorney. That issue was submitted to the jury, which resolved the dispute in favor of the attorney.

The following factual and legal conclusions are clearly established in the record: (a) Both the trial court and the District Court found the contingency contract valid and there was no overreaching or uncon-scionability in its execution; (b) it is un-controverted that the attorney obtained full recovery of the insurance proceeds under the policy; (c) both the trial court and the District Court found that the attorney was discharged without cause; (d) the jury found that the fee should be computed on the basis of 40% of $100,000.00, as contended by the attorney, rather than 40% of $39,000.00, as contended by the client.

Upon these facts the Third District Court reversed the trial court and held that the attorney was limited to recovery on quantum meruit and was not entitled to recover under the contingent fee contract. As recognized by the District Court, its ruling was contrary to the weight of authority. Tonn v. Reuter, 6 Wis.2d 498, 95 N.W.2d 261; Knoll v. Klatt, 43 Wis.2d 265, 168 N.W.2d 555; Annot., 136 A.L.R. 232, 245(III)(b), and cases cited therein. The District Court also held that the discharged attorney could only receive his quantum meruit recovery at the time of the successful happening of the contingency to the benefit of the former client rather than at the time of discharge. The District Court cited as authority the newer minority rule as expressed in Fracasse v. Brent, 6 Cal.3d 784, 100 Cal.Rptr. 385, 494 P.2d 9; Martin v. Camp, 219 N.Y. 170, 114 N.E. 46; Ramey v. Graves, 112 Wash. 88, 191 P. 801. Also see the recent decisions in American Trial Lawyers Association v. New Jersey Supreme Court, 126 N.J.Super. 577, 316 A.2d 19 (1974), aff’d 66 N.J. 258, 330 A.2d 350 (1974); Johnson v. Long, 15 Ill.App.3d 506, 305 N.E.2d 30 (1973); and 37 Albany Law Review 364. The Fracasse decision held an attorney discharged with or without cause was entitled to recover only the reasonable value of his services rendered up to the time of his discharge ; provided, however, that the cause of action would not accrue until the stated contingency occurred. The facts in Fracasse, are; however, distinguishable from the instant case because the attorney in Fracasse was discharged prior to obtaining the result specified in the contingency contract. In the instant case the attorney was discharged without cause after he procured 100% of the proceeds from the insurer, Lloyd’s.

The Third District expressed the view that if an attorney is allowed to recover under the contingency contract rather than upon a quantum meruit theory, the practical application “would have a ‘chilling’ effect on a client exercising his right to discharge an attorney, because he might be liable for fees to the discharged attorney even though he made no recovery on his original claim.”

We might agree with this holding if the maximum recovery from the insurance company had not been obtained at the time of the discharge. We recognize that the settlement of the consignors’ claims is interwoven with the representation to recover the proceeds of the insurance policy. The attorney was, however, paid separately to represent the client in the consignors’ actions. Under the peculiar circumstances of this case, where the proceeds of the insurance policy were fully recovered and the real issue of how the contingency fee was to be computed was settled by a jury, we will not disturb the verdict and restrict the computation of the attorney’s fee to quantum meruit. We do agree with the District Court that Goodkind v. Wolkowsky, 132 Fla. 63, 180 So. 538 (1938), applies to a fixed fee contract and does not establish precedent for contingent fee contracts.

Quantum meruit may well be the proper standard when the discharge under a contingent fee contract occurs prior to the obtaining of the full settlement contracted for under the attorney-client agreement, with the cause of action accruing only upon the happening of the contingency to the benefit of the former client. That issue, however, is not factually before us and we do not make that determination in this cause.

In accordance with the final settlement submitted by the petitioner-attorney to the client, the client is entitled to a refund of unexpended costs and the retainer fees as presented in the final accounting by the petitioner-attorney.

The decision of the Third District Court is quashed. The cause is remanded with directions to (a) reinstate the verdict and judgment of the trial court, (b) require an accounting for the costs expended, and (c) require a refund of the retainer fees for the consignor actions.

It is so ordered.

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

      . Article V, Section 3(b) (3), Florida Constitution.


author: PER CURIAM. ENGLAND, Justice

text:
    THE FLORIDA BAR. In re W. Paul THOMPSON.
    No. 47960.
    Supreme Court of Florida.
    Feb. 27, 1976.
    David G. McGunegle, Tallahassee, Assistant Staff Counsel, The Florida Bar, complainant.
    Brooks Taylor, Crestview, for respond-dent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against W. Paul Thompson is presently before us on complaint of The Florida Bar and Report of Referee, F. B. Estergren. Pursuant to Rule 11.06(9) (b) of the Integration Rule of The Florida Bar, the Referee’s Report and record were duly filed with this Court. No petition for review pursuant to Rule 11.09(1), Integration Rule, has been filed.

As summarized in the Referee’s Report, the charges against Respondent are as follows :

“Count I charges Respondent failed to keep his client, Floyd M. Garrett, properly informed of the progress of two cases in which Respondent was representing the client and failed to give a candid opinion on the merits of the case, of lying, evading and misleading the client. The two actions consisted of actions against different insurance companies to recover on hospitalization policies.
“Count II charges Respondent with failing to answer requests by his client, Stallworth Pine Products Company, for information and documents; failing to file a timely appeal in one case and negligently suffering a dismissal of appeal in a second case for failure to prosecute the appeal in a timely manner.
“Count III of the complaint charges Respondent with improperly representing both parties to the same transaction by drafting a note for one, T. J. Lindsay, in connection with a loan made to Clayton’s Restaurant, Inc., while representing both parties.
“Count IV of the complaint charges Respondent with failing to carry out the lawful objectives of his corporate client, Clayton’s Restaurant, Inc., by depleting Clayton’s Restaurant, Inc.’s financial assets for the benefit of a stockholder to the prejudice of Clayton’s Restaurant Inc.’s creditors and failing to represent the client with fidelity and to account for corporate funds received by Respondent as a corporate officer, of lying and being deceitful in committing acts contrary to honesty and good morals in that Respondent as attorney and president of Clayton’s Restaurant, Inc., permitted foreclosure of its property and failed to pay its creditors by depleting the corporate assets through loans to a corporate stockholder.
“Count V of the complaint charges Respondent with engaging in conduct involving dishonesty, fraud, deceit and misrepresentation in that he falsely represented to a non-client, Mr. and Mrs. Louis W. Ferguson, that he had retained sufficient corporate funds of Clayton’s Restaurant, Inc., to pay its notes and mortgages when, in fact, he was disbursing the corporate funds to one, E. N. Davis, Jr., a corporate officer, in the form of loans and investments.”

The Referee carefully summarized the evidence available on each count and made specific and detailed findings of fact based' thereon. Reference to the Court file in these proceedings will inform in greater detail the factual determination and the evidence on which it is founded. Relying on these conclusions, the Referee made the following recommendations:

“RECOMMENDATION OF GUILT — COUNT I
“It is recommended that the Respondent be found guilty as charged in Count I of the complaint, more specifically that Respondent is guilty of violation of Cannon 21 of the Cannons of Professional Ethics and additional Rule 27 adopted by the Supreme Court in 1955 and Section 11.02(3) (a) of the Integration Rule of The Florida Bar.
“RECOMMENDATION OF GUILT — COUNT II
“It is recommended that the Respondent be found guilty as charged in Count II of the complaint, more specifically that Respondent is guilty of violation of Cannon 21 of the Cannons of Professional Ethics and additional Rule 27 adopted by the Supreme Court in 1955 and Section 11.02(3) (a) of the Integration Rule of The Florida Bar.
“RECOMMENDATION OF GUILT — COUNT III
“It is recommended that Respondent be found guilty under Count III of violation of Old Canon and Professional Ethics, Section 6, although there is some evidence to indicate that T. J. Lindsey and the stockholders and officers of Clayton’s Restaurant, Inc., knew Respondent was representing both parties in the drafting of the T. J. Lindsey note but no clear evidence that they gave their express consent to such representation.
“RECOMMENDATION OF GUILT — COUNT IV
“It is recommended that Respondent be found not guilty of the charges in Count IV of the complaint since the evidence is not persuasive that Respondent was acting as attorney rather than as a corporate officer of Clayton’s Restaurant, Inc., in the disbursement of its funds.
“RECOMMENDATION OF GUILT — COUNT V
“It is recommended that Respondent be found not guilty of the charges in Count V except for violation of Rule 11.02(3) (a) of the Integration Rule of The Florida Bar since the evidence is clear that he lied to the Fergusons who had the right to rely upon his integrity as a member of The Florida Bar, even though they were not his clients, when Respondent told them he had sufficient corporate funds to pay the Doudna second mortgage and Lindsey note at a time when he knew he did not have such funds available.
“RECOMMENDATION OF DISCIPLINE
“It is recommended that Respondent be publicly reprimanded and that he be placed on probation for one year during which he shall report quarterly on the progress of proceedings in all litigation, failing which, he should be suspended from practice for ninety (90) days.”

The foregoing considered, the findings and recommendations of the Referee are approved.

Therefore, it is ordered that Respondent, W. Paul Thompson, be and hereby is publicly reprimanded for the misconduct reported herein. The publication of this order and judgment shall constitute public reprimand. Further, Respondent is hereby placed on probation for one year comménc-ing March 1, 1976, during which time he shall be required to file quarterly reports on the progress of proceedings in all litigation; these reports are to be filed with the Clerk of the Supreme Court of Florida with a copy to the staff counsel of The Florida Bar; the first report shall be filed within ninety days subsequent to March 1, 1976. Should Respondent fail to comply herewith, he shall automatically be suspended from the practice of law for ninety days.

Execution is hereby directed to issue against Respondent for all costs incurred in this cause, including those incurred in the Grievance Committee proceedings.

It is so ordered.

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

ENGLAND, J., dissents with an opinion with which OVERTON, J., concurs.

ENGLAND, Justice

(concurring in part and dissenting in part).

I fully concur with the Court that the record supports the referee’s findings of respondent’s guilt as to the misconduct charged. I dissent from the Court’s imposition of discipline. Respondent’s misconduct is wholly imcompatible with the standards of behavior required for an attorney admitted to practice in this state. At a minimum, I would suspend respondent from the practice of law and require, before his readmission to the profession, a demonstration that he better understands an attorney’s responsibilities.

OVERTON, J., concurs.


author: PER CURIAM.

text:
    William BOWEN and Wayne Woodard, Appellants, v. STATE of Florida, Appellee.
    No. 47243.
    Supreme Court of Florida.
    Feb. 26, 1976.
    Richard L. Jorandby, Public Defender and Craig Barnard, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Affirmed. Johnson v. State, 314 So.2d 573 (Fla.1975).

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