author: ERVIN, Judge.

text:
    Howard Evan SMITH, Appellant, v. CRANE CAMS, INC. and Fireman's Insurance of Newark, Appellees.
    No. AF-1.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.

      Frank E. Maloney, Jr., Fort Lauderdale, for appellant.
    Charles Desmond Crowley, Fort Lauder-dale, for appellees.
   ERVIN, Judge.

We reverse and remand the deputy commissioner’s order in this workers’ compensation case involving two purported occupational diseases. The diseases contracted were forms of dermatitis, and' this case is governed by the 1978 Workers’ Compensation Act.

Smith was employed by Crane Cams as a screw machine supervisor. He was required to stand and work in unusually dirty oil. Although he had worked with machines for 17 years at other jobs without incident, he began experiencing problems with his fingertips after only a few months at the employer’s job site. Smith was sent by his employer to Dr. Geoffrey Siegel, who noted black blotches underneath Smith’s nails on his right hand. He diagnosed a bacterial infection known as pseudomonis, which was attributed to the oily conditions at Crane Cams. However, Siegel’s associate, Dr. Horowitz, detected a pseudomonis infection of the toenail bed and onychomy-cosis of the fingernail bed, which is a fungus infection. The onychomycosis was found to be developing secondary to the pseudomonis and was also related to the oily environment at Crane Cams. Horowitz recommended that claimant not return to work for at least four to five months.

During the period that the claimant was undergoing treatment by Horowitz and Sie-gel, his employer sent him to Dr. Burgess for one consultation visit. Dr. Burgess confirmed the existence of the fungus infection, a condition which causes the patient’s nails to separate from the nail beds. He further indicated that the fungus might be causally related as a secondary condition, but was not directly related to the machine oils with which the claimant worked. Burgess felt that the fungus was an ordinary disease of life, often observed in cases involving individuals working in wet or dry conditions.

Dr. Horowitz offered the opinion during his deposition that the fungal infection could happen to anyone, is an ordinary disease of life, and is not normally associated with oily environments. Nevertheless, in direct contradiction to his deposition testimony, Horowitz submitted a chart correlating many dermatological conditions with particular occupations. According to the chart, the onychia fungus is an occupational affliction of machinists caused by grease. Another physician, Dr. Siegel, did not associate the fungus infection with any occupation, but he posited that one holding a job such as that of a machinist, wherein one must immerse his or her hands in water or chemicals, is more subject to onychomycosis.

Regarding the pseudomonis, Dr. Burgess stated that it was a disease more likely to appear in occupations that are irritating to the skin. Dr. Horowitz further amplified upon this testimony, stating that the disease is customarily found in the machinist trade or in jobs, such as baking, bartending or bricklaying, which demand a significant amount of handling of wet objects.

Later, during the hearing, the deputy commissioner heard testimony from two of the employer’s supervisors, who had ten years’ experience with Crane Cams and forty-four years of experience in the trade, respectively. Both agreed they had never observed or heard of problems in their profession with either the pseudomonis bacteria or onychomycosis fungus. Based on the foregoing evidence, the deputy concluded that the disease was not compensable by applying the test required to determine compensability of occupational diseases. We consider that his findings were incomplete, and remand for further proceedings.

As we have observed on numerous occasions, the four prongs of the occupational disease test are:

(1) the disease must be actually caused by employment conditions that are characteristic of and peculiar to a particular occupation;
(2) the disease must be actually contracted during employment in the particular occupation;
(3) the occupation must present a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or the incidence of the disease must be substantially higher in the occupation than in usual occupations; and
(4) if the disease is an ordinary disease of life, the incidence of such a disease must be substantially higher in the particular occupation than in the general public.

Lake v. Irwin Yacht & Marine Corp., 398 So.2d 902, 904 (Fla. 1st DCA 1981).

As to the first criterion, the deputy found no causal relationship between the oily conditions at the work site and the claimant’s fungal infection. The deputy’s order suggests that this finding is based on the lack of testing to determine if oils cause the fungus. However, we have previously discounted the need to conduct chemical tests to establish a causal relationship between a disease condition, such as a bacterial or fungal infection, and conditions at the work site or on the job. See King Motor Co. v. Pollack, 409 So.2d 160, 164-165 (Fla. 1st DCA 1982); Irwin Yacht, supra, at 904-905. Because the deputy erred, a re-evaluation of the evidence is necessary.

Since the first prong of the test requires a causal tie between the pseudo-monis/onychomycosis and “employment conditions that are characteristic of and peculiar to a particular occupation,” we first examine this standard (emphasis supplied). We point out that use of the term “peculiar” does not mean that the hazard or opportunity to contract dermatitis must be unique to the job, or that the disease must be “exclusive to” the particular occupation. It means merely that there must be “an increased risk” to which a claimant is exposed in his or her occupation so as to constitute a hazard or condition distinguishing the job from the broad lines of normal employment. See Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E.2d 189, 198-199 (1979); Irwin Yacht, supra, at 905. As noted by the North Carolina Supreme Court: “A disease is ‘characteristic’ of a profession when there is a recognizable link between the nature of the job and an increased risk of contracting the disease in question.” Booker, supra, 256 S.E.2d at 198.

To date at least two Florida eases have found a sufficient tie between contact dermatitis and occupations involving the use of oil. See Boggs v. Tire King, Inc., 5 F.C.R. 213 (1963) (claimant was a mechanic); Bridges v. Standard Oil Co., Inc. of Kentucky, 1 F.C.R. 213 (1955) (claimant suffered eczematous dermatitis, job unknown). We find that, as a matter of law, working with oil as a machinist meets the “characteristic of and peculiar to” criterion of the four-pronged test. However, the first prong requires also establishment of a causal tie between the characteristic and peculiar employment condition and the disease. The deputy made no finding in this regard concerning the pseudomonis. Such a finding appears to be absolutely essential, since the evidence suggests that the fungal infection may have been secondary to the pseu-domonis bacterial infection. For example, our review of the record reveals that Dr. Siegel testified without contradiction that the pseudomonis infection was causally related to the claimant’s work with machine oils. Moreover, if the testimony of both Drs. Horowitz and Burgess were accepted by the deputy, he could properly conclude that the fungal infection was related to claimant’s use of machine oil. Re-evaluation of this evidence by the deputy for further fact-finding purposes will be necessary.

The second prong of the occupational disease test requires the claimant to establish that the disease was actually contracted during employment. The deputy apparently made no finding on this matter, since he determined that other prongs of the test had not been satisfied, thereby barring compensation. Because a remand is required for re-evaluation of the evidence relating to the other three prongs, we point out that there was evidence before the deputy — as there was as to the first prong— which, if accepted by him, would satisfy the second prong of the test. Thus, the deputy could in his discretion accept the claimant’s testimony relating to the development of the bacterial and fungal conditions. It is without question now that a claimant’s testimony may be competent to prove a causal relationship between work activities and a compensable condition. This rule of law is entirely pertinent to the occupational disease setting in regard to (1) observable or readily ascertainable conditions such as the formation of black blotches underneath the fingernails and the separation of the nails from the nailbeds, or (2) an establishment of the sequence of events leading to such conditions. See Sanlando Utility Corp. v. Morris, 418 So.2d 389, 392 n.2 (Fla. 1st DCA 1982); Square G. Construction Co. v. Grace, 412 So.2d 397, 399 n.2 (Fla. 1st DCA 1982); McCall v. Dick Burns, Inc., 408 So.2d 787, 792 (Fla. 1st DCA 1982); Scotty’s, Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA 1981); Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980).

Regarding the third prong of the test, the claimant must show either that the occupation presents a particular hazard of the disease, distinguishing it from usual occupations, or that a substantially higher incidence of the disease exists in the machinist trade than is found in usual occupations. We contrast this prong of the test with the fourth prong, which requires a showing to be made that a substantially higher incidence of the disease is present in the claimant’s trade than is found in usual occupations, assuming that the disease is an ordinary disease of life. The deputy found that the claimant’s condition was an ordinary disease of life. Drs. Horowitz and Burgess testified that the fungal infection was an ordinary disease of life. To this limited extent we affirm the deputy’s finding, as there is substantial competent evidence to support this finding. Cf. Sunlando Utility Corp., supra, at 391. It is not, however, apparent from the record before us that the pseudomonis infection is considered an ordinary disease of life, since no medical expert so testified. Assuming that there is no medical evidence to suggest that the pseudomonis infection is not an ordinary disease of life, claimant need not present proof supporting the establishment of the fourth prong. Careful re-evaluation of the evidence will be necessary on remand to ascertain whether this is so.

Turning to the issue requiring resolution of the third prong, as to whether the incidence of the pseudomonis and fungal infections is substantially higher in the claimant’s trade than in usual occupations, we note that Dr. Horowitz stated that trades, such as machinists, by their nature involve the type of environment in which pseudomonis bacteria develops. Dr. Burgess apparently agreed that any work involving skin irritation would subject a worker to the risk of developing pseudo-monis. Dr. Siegel testified that a person working as a machinist was much more subject to contract onychomycosis. Although Dr. Horowitz was not prepared to associate this fungus with the machinist trade in his testimony, the chart that he relied upon correlated the occupation of machinist with the onychia fungus. In such a situation, the deputy has the duty to unravel this paradoxical conflict in Dr. Horowitz’s testimony. See Grillo v. Big “B” Ranch, 328 So.2d 429 (Fla. 1976).

There is no dearth of evidence to suggest that the rate of contracting either of these conditions is not substantially higher in the machinist trade than in the usual occupations. Because the deputy found that there was no evidence to satisfy the standard required for both the third and fourth prongs, it is our view that he has overlooked or ignored portions of the record evidence. In Rouse v. Wyldwood Tropical Nursery, 392 So.2d 370, 372-373 (Fla. 1st DCA 1981), we stated that it is normally not necessary for a deputy to explain his findings in regard to contradicting or complicated medical testimony, unless it appears that the deputy has overlooked part of the record. We find no convincing explanation for the deputy’s findings pertaining to the incidence of pseudomonis or ony-chomycosis in the machinist trade. It therefore appears that the findings failed to address critical parts of the medical testimony.

Reversed and remanded for further consistent proceedings.

SHIVERS and WENTWORTH, JJ., concur.

      . Other occupational disease cases of this court applying the four-prong test include: King Motor Co. v. Pollack, 409 So.2d 160 (Fla. 1st DCA 1982), and Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981); cf. Hillsborough County School Bd. v. Bigos, 396 So.2d 848 (Fla. 1st DCA 1981); Florida State Hospital v. Potter, 391 So.2d 322 (Fla. 1st DCA 1981); Cast Crete Corp. v. Duncan, 383 So.2d 245 (Fla. 1st DCA 1980). Not at issue nor addressed in this case is the similar, although distinguishable, “exposure theory” adopted in Festa v. Teleflex, Inc. 382 So.2d 122 (Fla. 1st DCA 1980), rev. denied, 388 So.2d 1119 (Fla. 1980) and also applied in Irwin Yacht, supra.

        . Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E.2d 189, 198-199 (1979); Martinez v. University of California, 93 N.M. 455, 601 P.2d 425, 427 (1979).

      . The North Carolina court’s perceptions are persuasive, because its occupational disease statute uses terminology similar to that of Florida’s. See N.C. Gen. Stat. § 97-53(13).

      . We have not overlooked the fact that there is some evidence to suggest that the incidence of these infections in the machinist trade is not any different than in usual occupations. Two of the employer’s supervisors stated that they had never observed or heard of a condition similar to the claimant’s ailments. Lay testimony of supervisory personnel has been found to be competent in regard to the occupational disease test in at least two other cases See Weiby, supra, at 1119; Potter, supra, at 323.


source: Caselaw Access Project

author: ROBERT P. SMITH, Jr., Chief Judge. SHAW, Judge,

license: Public Domain

text:
    FLORIDA CAST STONE and Royal Globe Insurance Co., Appellants, v. Carl W. DEHART, Appellee.
    No. AF-358.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.

      John S. Smith of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Tampa, for appellants.
    John A. Williamson of Barrs, Williamson & Levens, Tampa, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

The deputy’s order is supported by law and by substantial competent evidence on each of the five points argued by the carrier’s appeal. It' is necessary to discuss only one of those points, by which the carrier contends that the deputy’s calculation of claimant’s average weekly wage, section 440.14, Florida Statutes (1978 Supp.), resulted in an excessive compensation rate. The deputy fixed that rate at $74.31 per week; the carrier devotes five pages of its brief to argument that we should reverse this finding and fix the compensation rate at $61.94 per week. The amount in controversy, then, is $12.37 per week.

The carrier’s argument goes like this: Claimant did not work substantially the whole of 13 weeks immediately before his injury, so the statutory calculation prescribed for such workers is inapplicable. (The deputy agreed.) Because claimant’s job was one of a kind and new at that, there was no “similar employee in the same employment” whose wages might be looked to for guidance. (The deputy agreed.) Because claimant was not a seasonal worker, the calculation appropriate for such cases was inapplicable. (The deputy agreed.) So, the carrier argues, the deputy committed reversible error when he determined claimant’s average weekly wage by dividing the number five, that being the number of weeks claimant worked continuously just before his injury, into the wages earned and paid during that time; the carrier urges that - the deputy should have divided the number seven, that being the number of weeks claimant did at least some work during the 13 weeks .preceding his injury, into the total wages earned in those seven weeks. In those two additional and more remote weeks claimant worked little and earned comparatively little.

In support of its contention the carrier cites Davidson Lumber Company v. Smith, 390 So.2d 1221 (Fla. 1st DCA 1980), itself citing Imperial Frame Corporation v. Santos, IRC Order 2-3043 (Oct. 13, 1976), cert. den., 345 So.2d 423 (Fla. 1977). But it does not appear that the carrier cited those decisions to the deputy, nor that the carrier urged to the deputy that there is but one calculation suitable for determining the worker’s full time weekly wages, section 440.14(4), in cases such as this. See Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982).

At any rate the deputy’s task was, as the deputy rightly stated, to determine the full-time weekly wages of the injured employee, section 440.14(4), by applying the statutory guidelines “reasonably and fairly ... to the facts proven.” Penuel v. Central Crane Service, 232 So.2d 739, 743 (Fla. 1970). In this the deputy was not a cipher or a calculating robot, but was a judge of claimant’s unique employment situation. The deputy’s order traces his reasoning in commendable detail, and he concluded that “the fairest and most reasonable way to determine the average weekly wage is to add the five weeks during which the Claimant worked continuously, although not full weeks, immediately prior to the accident, and divide by five.”

The carrier’s argument on the $12.37 issue does not prevail over the deputy’s assessment of the evidence. The carrier has neither sustained its position as a matter of law nor demonstrated that the deputy did not “reasonably and fairly” apply the statutory guidelines.

AFFIRMED.

ERVIN, J., concurs.

SHAW, J., dissents with opinion.

SHAW, Judge,

dissenting.

The employer/carrier appeal a worker’s compensation order finding claimant permanently totally disabled, calculating his average weekly wage at $123.85, ordering provision of further medical care and awarding attorney’s fees and costs.

Claimant, sixty-two years old at the time of his industrial injury, was afflicted with a pre-senile dementia known as Alzheimer’s Disease, which was not diagnosed until a year and one-half after his industrial accident. Medical testimony reflects that the disease and psychiatric problems resulting from the claimant’s accident are interwoven, making it impossible to distinguish the preexisting disease from the results of the accident, or to facilitate an apportionment or segregation of the effects of the preexisting disease. In such instances, when there is no evidence of the percentage of the total disability attributable to the natural progression of the preexisting disease, the failure of the deputy to apportion is not error. Cover v. T G & Y Store # 1331, 405 So.2d 985 (Fla. 1st DCA 1981).

The employer/carrier’s next challenge is to the deputy’s determination of average weekly wage. Claimant did not work substantially the whole of thirteen weeks immediately preceeding the injury, as contemplated Dy section 440.14(1)(a), Florida Statutes (1979). Sections (1)(b) and (1)(c) are similarly inapplicable since there was no similar employee and claimant was not a seasonal worker. Claimant worked the last five weeks preceeding the accident and during one other two-week period of the thirteen weeks preceeding. The deputy commissioner found that the fairest and most reasonable way to apply the statute was to take the average of the weekly wages claimant earned during the last five weeks before the accident. The employer/carrier argue for adding into the average the additional two-week period during which claimant worked little. Neither method is proper. Averaging past earnings for other than the entire thirteen-week period is impermissible. Simpkins v. Watson, 397 So.2d 432, 434 (Fla. 1st DCA 1981). When the legislatively prescribed retrospective methods are inapplicable, the average weekly wage should be computed prospectively in accordance with section 440.14(1)(d). Id. I would therefore reverse on this issue and remand for reconsideration of average weekly wage.

The employer/carrier raise prematurely the issue of the circumcision and penile implant. Contrary to the appellants’ assertion, the carrier has not been ordered to provide this surgery. The decretal portion of the order directed that the claimant be furnished “such further medical care and treatment as the nature of his injury or the process of his recovery may require in the manner and for the period provided by law.” Only that section of the order is binding on the appellants, not expressions of reasoning found in other parts of the order. See American International Aluminum Corp. v. Perez, IRC Order 2-2413 (October 8, 1973). I find no error in the award and would accordingly-affirm.

The final issue raised by the employer/carrier concerns the award of attorney’s fees. This award should be reconsidered in light of my suggested reversal of average weekly wage.

I would AFFIRM in part, REVERSE in part, and REMAND for proceedings consistent with my dissent.


author: THOMPSON, Judge.

text:
    The COCA-COLA COMPANY, FOODS DIVISION, Appellant, v. Maggie J. HURST, Appellee.
    No. AI-370.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.

      Jesse F. Sparks, Orlando, for appellant.
    Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, Miami, for appellee.
   THOMPSON, Judge.

The employer appeals a workers’ compensation order awarding claimant wage loss benefits from October 14, 1980 through October 31, 1981. The employer argues that the deputy commissioner (deputy) erred in awarding wage loss benefits beyond October 31, 1980 because it was not properly advised that the claim was for wage loss benefits through the date of the hearing. We affirm the order as modified.

It is clear from the record that the employer was aware that the hearing was being held as to wage loss benefits from October 14, 1980 through the time of the November 1981 hearing. However, we modify paragraph (a) of the decretal portion of the order awarding claimant wage loss benefits from October 14, 1980 through October 31, 1981, to be subject to the condition that claimant file properly executed wage loss forms for the period awarded, which forms shall set forth any social security benefits or unemployment compensation the employer is entitled to offset. As modified, the order is AFFIRMED.

MILLS and BOOTH, JJ., concur.


author: PER CURIAM.

text:
    DELTONA CORPORATION and Home Indemnity Company, Appellants, v. Charles R. MORRIS, Sr., Appellee.
    No. AJ-100.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.

      Richard H. Weisberg of Cooper & Riss-man, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, Orlando and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

In this workers’ compensation case, the employer/carrier raises several points relating to the award of wage-loss benefits, and the claimant raises a single issue on cross-appeal challenging the wage-loss award. Only one issue regarding the language of the decretal portion of the deputy commissioner’s order requires discussion. We find the award to be supported by competent, substantial evidence and affirm on all points.

Appellant contends that paragraph one of the decretal portion of the order is ambiguous in that it implies an open-end award, rather than a specific period. The language at issue is: “1. That the employer/carrier ... shall continue to pay same [wage-loss benefits] so long as the claimant is entitled to wage-loss benefits.”

We agree with appellee that such language is customary in a workers’ compensation award and that the decretal portion of the order is entirely appropriate. Appellee cites as an example Dan’s Plumbing v. Smith, 410 So.2d 941 (Fla. 1st DCA 1982), in which this court held the claimant was entitled to wage-loss benefits effective retroactively “from November 18, 1980 through the date of the hearing and continuing so long as those benefits are proper.” Dan’s Plumbing at 942.

Appellant suggests that there is an inconsistency between Dan’s Plumbing and appellant’s authority, Exxon Co., U. S. A. v. Rodriguez, 410 So.2d 571 (Fla. 1st DCA 1982), reversing a wage-loss award based upon alleged similar language in the order as that now before us. In our opinion there is no inconsistency. The Rodriquez opinion does not quote from the deputy’s order so we do not know whether the language in dispute was deemed to imply an open-end award. The relevant portion of Rodriquez is:

The deputy’s order is ambiguous as it erroneously implies an open-end award of wage-loss compensation benefits. This deficiency in the order might have been avoided by counsel’s prompt application to the deputy. Failing such application and opportunity to correct, we must reverse this point in the order and remand for the deputy to delineate the period for which these benefits were awarded.

Rodriquez at 573.

The date of accident in this case is July 14, 1980. Under the 1979 Act, requests for wage-loss benefits must be filed monthly and each claim is a separate claim. At the time the first wage-loss benefit is paid, the carrier generally has no idea of the extent of its future liability for wage-loss benefits. There is nothing in the 1979 statute to prevent a party from requesting serial hearings to determine the appropriate benefit for each period of wage-loss.

Awards of wage-loss compensation benefits to be paid “so long as such benefits are proper” or “so long as claimant is entitled to such benefits” are examples of proper terminology. An order awarding wage-loss benefits to be paid “to the date of hearing and continuing” is improper. The disputed language in the case at hand is sufficiently finite as it necessarily allows for flexibility and encompasses the possibility of a determination of a wage-loss on a month-by-month basis. See § 440.15(3)(b)1, Fla.Stat. (Supp.1980).

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and ERVIN and SHAW, JJ., concur.


text:
    James L. HART, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-302.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.
    James L. Hart, Raiford, pro se, appellant.
    Malcolm S. Greenfield, Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

Appellee’s motion to strike is DENIED. The action of the Florida Parole and Probation Commission is AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and MILLS and LARRY G. SMITH, JJ., concur.


text:
    Patrick Christopher LYNN, Appellant, v. STATE of Florida, Appellee.
    No. AM-78.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.
    Patrick Christopher Lynn, pro se, for appellant.
    No appearance for appellee.
   PER CURIAM.

Appellant seeks review of the lower court’s denial, without an evidentiary hearing, of appellant’s Fla. R. Crim. P. 3.850 motion for post-conviction relief. Appellant has alleged a violation of the “plea bargain arrangement,” and the cause is hereby remanded in this regard for the lower court to either hold an evidentiary hearing, or attach to its order of denial “a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief .... ” See Rule 3.850, Fla. R. Crim. P.

It is so ordered.

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and WENTWORTH, JJ., concur.


author: LETTS, Chief Judge.

text:
    Warrick Richard CHANG, Appellant, v. STATE of Florida, Appellee.
    No. 81-357.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON REHEARING

LETTS, Chief Judge.

The petition for rehearing is granted. The opinion previously issued on July 7, 1982, is withdrawn and this cause is per curiam affirmed.

HERSEY and GLICKSTEIN, JJ., concur.


author:
WATSON, Justice.
      MARCUS, Justice BLANCHE, Justice

text:
    STATE of Louisiana v. Christopher J. REBSTOCK.
    No. 82-K-0910.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 17, 1982.

      Jacob J. Amato, Jr., Gretna, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., for plaintiff-respondent.
   WATSON, Justice.

Defendant, Christopher J. Rebstock, a sixteen year old juvenile, is charged with the second degree murder of twelve year old Lara Deutsch. LSA-R.S. 14:30.1. The trial court denied a motion to suppress his confessions, and a writ was granted to review the ruling. 413 So.2d 510 (La., 1982).

FACTS

On January 10, 1982, Detectives Buras and Hiddings of the Jefferson Parish Sheriff’s office were investigating the murder of Lara Deutsch. She had not returned home after visiting the Rebstocks’ residence. An obscene phone call about a dead girl had also been traced to that residence. The victim’s family gave information which focused the investigation on Christopher Rebstock. He was the prime suspect. About 4:00 o’clock on January 11, the two detectives went to the Rebstock residence. Earl Rebstock answered the door. He and his wife had been up all night because of Lara, a close friend of their daughter. Both were described as being in a state of shock. The detectives said they had evidence leading toward Christopher and wanted to question him.

Earl Rebstock said he mentioned calling attorney Bob Evans, a neighbor, but was told legal help would entail search warrants, subpoenas and an “ugly scene”. (Tr. 99) Also, according to Rebstock, one detective said: “Mr. Evans does not do that kind of work. He works for the Parish at this time.” (Tr. 99) Although Rebstock said the detectives discouraged him from calling a lawyer, he admitted that he could have called one anyway. Detectives Buras and Hiddings said neither the idea of an attorney nor the name of Bob Evans was mentioned.

Mr. and Mrs. Rebstock and their son rode to the detective bureau in Hiddings’ police car. Earl Rebstock testified that they had no choice in the matter and had to go with the officers. He “... did not think that there was any option. ... ” (Tr. 116) Neither officer advised the Rebstocks of their constitutional rights or informed them that they could refuse to go to the detective bureau.

When they arrived, Christopher was placed alone in Biddings’ office, and the officers informed Mr. and Mrs. Rebstock of the information incriminating Christopher. Mr. Rebstock started crying and Mrs. Ann Rebstock became too hysterical to stay in the building. She went outside with Lieutenant Claverie. Ann Rebstock had not realized until then that her son was a suspect. She said her son seemed almost “in a transe (sic)” that day. (Tr. 147) Detectives Buras and Hiddings ¡testified that Mr. Reb-stock requested a private conversation with Christopher, while Mr. Rebstock testified that the officers suggested he talk to his son.

After a short time alone with his son, Mr. Rebstock emerged from the office and stated: “He just told me he killed Laura [Lara].” (Tr. 77) Christopher was formally placed under arrest for murder.

Mr. Rebstock and Christopher agreed that Christopher would give a statement. Detective Buras started reading a rights form to Christopher and his father at 5:30 P.M. Although Christopher signed an ac-knowledgement that he had read his rights, he refused to sign a waiver of those rights. His father would not let him sign that part of the form, because “... his son did not know what he was doing.” (Tr. 73)

Christopher went to a psychologist at one time because of school trouble. At the police station, he told his father:

“... ‘You know, dad, I can’t go back to De LaSalle. You know, I am going to have to go to school somewhere else.’ ...” (Tr. 125)

Earl Rebstock did not think his son understood the enormity of the situation. Despite Christopher’s failure to waive his rights, a recorded confession was taken on the advice of Lieutenant Claverie. The statement began at 5:46 P.M.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that he was arrested when the officers brought him to the detective bureau; that the illegal arrest was made without probable cause or a warrant; and that all evidence obtained as a result is tainted.

A confession or inculpatory statement, which is the direct result of an illegal arrest, should be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 441 (1963); State v. Edwards, 375 So.2d 1365 (La., 1979); and State v. Giovanni, 375 So.2d 1360 (La., 1979).

At the latest, Christopher Reb-stock was under arrest when he was placed in Hiddings’ office. He remained there alone for approximately forty-five minutes. Christopher could not reasonably have believed himself free to leave the police station. State v. Menne, 380 So.2d 14 (La., 1980). He was effectively deprived of his freedom of action. State v. Giovanni, supra. Compare Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). The investigation had focused on Christopher and he was in custody. However, there was probable cause for the arrest. It was not illegal. LSA-C.Cr.P. art. 213(3).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

As argued in this assignment, the trial court clearly erred, perhaps inadvertently, in finding that Miranda rights were given at the Rebstock home prior to the trip to the detective bureau. Defendant was not informed of his constitutional rights until after he had been formally placed under arrest.

This assignment has merit.

ASSIGNMENT OF ERROR NUMBER THREE

It is contended that questioning of Christopher should have ceased when Mr. Rebstock spoke of calling a lawyer on behalf of his son. Interrogation must cease when an attorney is requested. State v. Rodrigue, 409 So.2d 556 (La., 1982); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

The trial court made a factual finding that there was no request for counsel. The evidence was conflicting and the trial court’s factual finding has support. The trial court did not err in finding that counsel was not requested.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR'

This assignment concerns the admissibility of the inculpatory statement made by Christopher to his father, before Christopher was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Counsel for defendant argues that the questioning by the father as an agent of the police violated the son’s constitutional rights.

Regardless of who suggested the encounter between Christopher and his father, Earl Rebstock voluntarily undertook to question his son. There is no question that Christopher was his primary concern. Although Christopher was in custody at the time of the conversation, the police had not yet talked to him. The brief conversation with his father was not an extension of police interrogation. “‘Interrogation’, as conceptualized in the Miranda opinion, must reflect a measure of compulsion about and beyond that inherent in custody itself”. Rhode Island v. Innis, 446 U.S. 291 at 300, 100 S.Ct. 1682 at 1689, 64 L.Ed.2d 297 at 307. Since Christopher and his father had a short private conversation, free from the presence of the police, he was not subjected to interrogation as defined in Miranda, supra. State v. Rodgers, 251 La. 953, 207 So.2d 755 (1968). The statement is admissible.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

The question raised by this assignment is whether Christopher waived his constitutional rights before making his recorded confession.

The prosecution has the burden of proving that a defendant has waived his constitutional rights. Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980). An implicit waiver can suffice. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

Christopher did not confer privately with his father after being advised of his rights. State in the Interest of Dino, 359 So.2d 586 (La., 1978) requires a “meaningful consultation”, 359 So.2d 594, and it is doubtful that one took place here. Christopher confessed his commission of the crime, but, on the advice of his father, expressly refused to waive his constitutional rights. Compare State v. Hudson, 404 So.2d 460 (La., 1981) where the juvenile signed a waiver of his rights.

“. .. Miranda v. Arizona clearly stated the principles that govern once the required warnings have been given.
“ ‘If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490, n.14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938),...’ 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694.” Tague v. Louisiana, 444 U.S. at 470, 100 S.Ct. at 653, 62 L.Ed.2d at 625 (1980).

Despite the lack of a written waiver, proof of the waiver of constitutional rights can be established by other evidence. State v. Lewis, 315 So.2d 626 (La., 1975). However, “[T]he courts must presume that a defendant did not waive his rights; the prosecution’s burden is great.” North Carolina v. Butler, 441 U.S. at 373, 99 S.Ct. at 1757, 60 L.Ed.2d at 292 (1979).

Christopher acknowledged in his confession that he had been advised of his rights but never stated that he waived those rights. A defendant must understand his rights before a waiver can be inferred. North Carolina v. Butler, supra. There is no evidence that Christopher had the requisite understanding and that there was an implied waiver. The state failed to carry its burden of proving that there was a knowing and intelligent waiver of Christopher’s constitutional rights. State v. Brown, 384 So.2d 425 (La., 1980); Dino, supra. The recorded confession must be suppressed.

This assignment has merit.

For the foregoing reasons the ruling of the trial court is affirmed as to Christopher’s inculpatory statement to his father. The trial court’s ruling on the motion to suppress Christopher’s recorded confession is reversed and the matter is remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MARCUS, J., dissents in part and concurs in part and assigns reasons.

BLANCHE, J., dissents and assigns reasons.

LEMMON, J., dissents and will assigns reasons.

MARCUS, Justice

(dissenting in part and concurring in part).

I disagree with the majority’s conclusion that the state failed to meet its burden of proving that defendant knowingly and intelligently waived his constitutional rights. It is not contested that defendant was fully informed of his rights. Defendant’s father was present when defendant was advised of his rights. Both agreed that defendant would give a statement. There is nothing in the record that indicates that considering defendant’s background, experience and conduct, he did not understand that he was impliedly waiving those rights. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Accordingly, I respectfully dissent from the suppression of defendant’s confession; however, I concur in the finding that Mr. Earl Rebstock’s statement to the police of what his son (defendant) told him was admissible.

BLANCHE, Justice

(dissenting).

After talking with his son, Mr. Rebstock advised the officers that his son had told him he had killed the victim. The officers then asked defendant’s father if they could obtain a statement from him, and the father advised that they could. Thereafter, defendant was brought into the room, with his father present, and advised that he was under arrest. Defendant was then given his Miranda rights, which were read from a form. The form was then given to them both, and read by both. In describing the manner in which he read defendant his rights, the officer stated that he would look at the defendant as he was reading the rights, and ask him if he understood. After a reading of the rights, the officer, discerning that both father and son had understood them, then asked the son to sign the acknowledgment at the bottom of the form. Both Christopher and his father acknowledged that their rights had been given them as evidenced by their signatures at the bottom of the form.

At another section of the form, and below the place where defendant and his father signed the acknowledgment that he had read a statement of his rights and that they had also been read to him by the officer, is another form entitled “Waiver of Rights”. That form states, “I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me, and no pressure nor coercion of any kind have been used against me.” Because Mr. Rebstock did not believe that his son knew what he was doing, he refused to let him sign the waiver of rights form.

Confronted with the refusal, Officer Bu-ras and Mr. Rebstock consulted with Detective Claverie, the officer evidently in charge of the investigation. Detective Claverie testified that Mr. Rebstock advised him that he didn’t think his son should sign the waiver. Officer Claverie stated that the essence of what he thought Mr. Rebstock said was that he did not think his son fully understood his rights and, for that reason, he did not want him to sign the waiver. The officer then told Mr. Rebstock as follows: “Mr. Rebstock, if you feel that way, don’t sign it.” Upon conclusion of the colloquy, Officer Buras asked if he should take a statement, and Detective Claverie stated, “Go ahead and take a statement if Mr. Rebstock wants to make a statement.” Thereafter, both left. Officer Buras did take a statement, which was never thereafter objected to by either the defendant or his father.

On one side of the scale, we have the testimony of Officer Buras, who read defendant and his father the Miranda warnings, that they had indicated verbally to him that they understood their rights. -A reading of the acknowledgment states as follows:

Before we ask you any questions, you must understand your rights.
You have the right to remain silent. Anything you say can and will be used against you in court.
You have the right to talk with a lawyer for advice before we ask you any questions and to have him with you during questioning.
If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time until you talk to a lawyer.

On the other side of the scale, we have a father refusing to permit his son to sign the waiver of rights because he did not think he understood them.

This writer is of the opinion that the mere refusal of the father to permit his son to sign the waiver because he thought his son did not understand his rights does not preponderate on that issue. His rights were explained to him by Officer Buras, and both defendant and his father indicated they understood them. Thereafter, Mr. Rebstock had the option to refuse questioning but, nevertheless, agreed to the taking of his son’s statement. Mr. Rebstock is an intelligent person, as is his son who was a 16 year old high school student attending De La Salle High School in New Orleans. It would seem that they would not have difficulty in understanding the simple meaning of rights which were read to them and rights which they, themselves, read.

The sole evidence to indicate that defendant did not understand his rights was the father’s refusal to permit him to sign the waiver of rights form and that, to some extent, is equivocal.

This writer is of the opinion that the trial judge was correct in determining that the defendant understood the explanation given to him of his rights, and in denying the motion to suppress. Finally, this writer observes that the majority opinion makes it difficult in the future for this Court to find that an arrestee understood his rights, especially since so many crimes are committed by borderline retardates.

I respectfully dissent.

      . The caller allegedly related that he was having sex with a dead girl, and that he had cut her up and put her in a plastic bag.

      . The officers testified that Christopher could have remained at his home but did not say he would have been allowed to leave Hiddings’ office.


author: BLANCHE, Justice.

text:
    RELIABLE CREDIT CORPORATION v. Nathan SMITH and Geraldine Smith.
    No. 81-C-3265.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 17, 1982.

      Weldon J. Hill, II, Baton Rouge, for applicant.
    Richard W. Sroges, Michael O. Hesse, Baton Rouge, for respondents.

       Dennis, J. would grant a rehearing.

   BLANCHE, Justice.

This case involves a consumer’s right to recover civil penalties from an extender of credit because of a violation of the Louisiana Consumer Credit Law. Defendants, Nathan and Geraldine Smith, obtained a loan from Reliable Credit Corporation in September 1978 to purchase stereo equipment. The total amount of the secured loan was $4400, consisting of $3335.79 principal and $1104.21 in finance charges. Under the terms of this precomputed consumer credit transaction, the Smiths were required to make 24 consecutive monthly payments of $185, due on the 5th day of each month. The first installment was payable on November 5, 1978.

No payments were made until December 7, 1978 when Nathan Smith went to Reliable’s office and tendered $185 cash to George Vidrine, a representative of Reliable. Because both the November and December installments were due and outstanding, Vidrine imposed a $5 delinquency fee for the November payment and a $46 deferral charge for the December installment.

The Smiths continued to fall behind in their installments, making only sporadic payments. In September 1979, Reliable decided to accelerate the note and sued the Smiths for the unpaid balance, less a rebate for the amount of unearned interest. In their amended answer, Nathan and Geraldine Smith claim that Reliable had violated the Louisiana Consumer Credit Law (LCCL). Defendants also gave written notice by certified mail of these alleged violations. Included in this written notice, which was sent to Reliable and its agent for service of process, was a claim that the December 7, 1978 deferral charge was improperly assessed because the December 5 installment was not 10 days delinquent and the Smiths had not agreed, in writing, to the deferral charge.

Nearly two months after receiving defendants’ written notice of the improperly imposed deferral charge, Reliable attempted to correct its error. The $5 delinquency fee charged on December 7, 1978 was refunded and the $46 deferral charge which had been applied to the December 5, 1978 installment was switched to apply to the initial installment due on November 5, 1978.

The trial court rendered judgment in favor of Reliable in the amount of $3225.58, the unpaid balance on the Smiths’ loan at the time suit was filed. However, the trial judge concluded that Reliable had committed a violation, not in good faith, of the LCCL in wrongfully imposing a deferral charge on the December 5, 1978 installment and permitted defendants to set off the statutorily imposed civil penalties against the amount awarded Reliable on the loan. The civil penalties against plaintiff totalled $3050.61 and consisted of the finance charges actually paid by the Smiths ($717.79), a penalty of three times those charges ($2153.37) and attorney’s fees in the amount of 25% of the finance charges ($179.45). As a result of this set off, the judgment in favor of Reliable was reduced to $174.97.

The court of appeal affirmed the holding of the trial court, La.App., 406 So.2d 231, but amended the award. The appellate court agreed that the Smiths were entitled to a refund of the finance charges actually paid. However, the court concluded that the trial judge incorrectly computed the amount of treble damages and attorney’s fees authorized under the LCCL. Contrary to the trial court, the appellate court reasoned that the penalty of three times the loan finance charge referred to the original charge due under the credit agreement and not those charges actually paid by the consumer. Because the loan finance charge originally agreed to was $1104.21, the court of appeal held that defendants were entitled to recover three times that amount, $3312.63, and not $2153.37 as concluded by the trial judge.

Further, the appellate court was of the opinion that the $179.45 award for attorney’s fees was inadequate because it was not tailored to the amount of time reasonably expended by the Smiths’ attorney. Accordingly, the court raised the amount of attorney’s fees to $1000. These two increases in civil penalties raised the Smiths’ recovery to $5030.42. After setting off this amount against Reliable’s $3225.58 award for the unpaid balance on the loan, judgment was entered in favor of Nathan and Geraldine Smith in the amount of $1804.84.

We granted writs to determine whether the deferral charge was wrongly imposed and, if so, to review the award of civil penalties for a violation of the. Louisiana Consumer Credit Law. Both of these issues present questions that have not been subject to prior judicial interpretation.

The Louisiana Consumer Credit Law, R.S. 9:3510, et seq., was enacted to protect unwary consumers from the harsh impact of credit abuses by providing a comprehensive scheme of rate regulation. By regulating those finance charges that may be imposed in a credit transaction, it is clear that the legislature intended not only to deter unscrupulous credit practices, but also to afford the injured consumer with an affirmative vindication of his rights. See “Symposium: Louisiana’s New Consumer Protection Legislation”. 34 La. L. Rev. 597 (1974-75).

Those instances in which deferral charges may be properly assessed by an extender of credit in a precomputed consumer credit transaction are included in the provisions of the Louisiana Consumer Credit Law. Should the parties to the credit transaction agree, either before or after default and in writing, to defer all or part of an unpaid installment, the extender of credit may impose and collect a charge from the consumer. R.S. 9:3526(A). The parties may also agree in writing at the time the transaction is entered into that the extender of credit may unilaterally impose a deferral charge on an installment not paid within ten days of its due date. R.S. 9:3526(B).

In the present case, the only written agreement between Reliable and the Smiths was found in the loan contract. This provision paralleled R.S. 9:3526(B), and authorized Reliable to unilaterally impose a deferral charge on any installment not paid within ten days of its due date. When Nathan Smith paid the $5 delinquency and $46 deferral charges on December 7, 1978, both the November and December installments were due and outstanding. Because of the clause in the loan contract, Reliable could have unilaterally imposed a deferral charge on the November installment which was 32 days delinquent. However, the credit corporation chose to apply the $5 delinquent fee to the November payment and the $46 deferral charge to the December installment. Since the December installment was not ten days past due at the time the charge was imposed, a written agreement was required, R.S. 9:3526(A). Because no written authorization was given before or after default, the deferral charge was improperly imposed and a violation resulted.

Reliable subsequently attempted to correct its error by refunding the $5 delinquent fee and switching the deferral charge from the December to the November installment. We agree with the lower courts that this later effort by Reliable to correct its unauthorized action was pertinent to the determination of the quality of the violation (good faith vs. bad faith) and not to the question of whether a violation occurred. As noted by the trial judge:

... To hold that a creditor could thereafter still make [untimely] corrective additions and credits to the payment card in order to achieve compliance with the act would seem to render the provisions of the act itself meaningless and unenforceable.

The assessment of civil penalties against Reliable for wrongfully imposing the December 7 deferral charge was based upon the trial court’s finding that the violation was not caused by a good faith error. The pertinent penalty provision, R.S. 9:3552(A)(1), provides:

A. Violations discovered as a result of written consumer complaint
(1) Intentional violations or violations not caused by good faith errors.
(a) If the court finds that the extender of credit has intentionally or as a result of error not in good faith violated the provisions of this chapter, the consumer is entitled to a refund of all loan finance charges or credit service charges and has the right to recover three times the amount of such loan finance charge or credit service charge together with reasonable attorney’s fees. The right to recover the civil penalty under this subsection accrues only after
(i) written notice is given to the extender of credit by certified mail addressed to the extender of credit’s place of business in which the consumer credit transaction arose;
(ii) a copy of such notice is mailed to the extender of credit’s agent for service of process; and
(iii) thirty days have elapsed since receipt of such notice by the extender of credit and the violation has not been corrected.
(b) Except as otherwise provided herein, if the notices provided for in Subsection A(1)(a) of this section have been given by the consumer, the following acts by the extender of credit shall be presumed to be an intentional violation or a violation not resulting from good faith error:
(i) Failure to return or give credit for an overcharge in the loan finance charge or credit service charge or, failure to return a deficiency in the rebate within the time period set forth in Subsection A(1)(a)(iii) of this section when such overcharge or deficiency exceeds the greater of (1) ten percent of such loan finance charge, credit service charge or rebate; or (2) fifteen dollars.

Initially, we note that defendants gave written notice by certified mail of the claimed violation to Reliable and its agent for service of process. Once Reliable received the complaint, it had 30 days to return or give credit for the $46 overcharge in the loan finance charge. Both lower courts erroneously held that, since suit had been filed, the extender of credit could not thereafter return improperly collected charges. This restriction is not contained in the provisions of the LCCL. Further, because the Smiths’ notice of a complaint was mailed after suit had been filed, the lower courts’ mistaken conclusion would preclude the statutory authorization for a correction before “30 days have elapsed since receipt of such notice”. R.S. 9:3552(A)(1)(a)(iii).

However, Reliable did not return or give credit for the deferral charge until nearly 2 months elapsed since it received the Smiths’ written notice. Because Reliable did not take corrective action within the 30 day period, the violation was “presumed” to be intentional, or not resulting in good faith. R.S. 9:3552(A)(1)(b). Reliable urges that an audit by the Department of Financial Institutions shortly before this suit was filed failed to uncover any irregular financial practices on the part of the credit corporation. However, the individual who examined Reliable’s accounts clearly testified that if no complaint was made concerning the imposition of a finance charge he would merely presume that an agreement had been reached. As a result, the auditor could not determine by his examination of Reliable’s records whether the credit corporation attempted to obtain the consumer's consent to a deferral charge and, if so, whether the agreement was “in writing”, as required by the LCCL. Further, Reliable’s financial manager testified that corrective action was not promptly taken because “we had to look up the law and read it.” We find these explanations totally inadequate to overcome the rebuttable presumption established by Reliable’s failure to timely correct the overcharge.

We also agree with the court of appeal’s conclusion that the trial judge’s factual determination of a “not in good faith” violation was amply supported by the evidence. George Vidrine, who handled the Smiths’ loan, had been Reliable’s financial manager for 2 years and had been involved in the financial business for about 14 years. The provisions of the LCCL became effective in January 1973, nearly 6 years before the overcharge in question was imposed. Reliable had employed an attorney to collect the unpaid balance on the loan and was put on notice of a claimed violation by defendant’s amended answer. Finally, it was inexcusable to take nearly two months after receiving the Smith’s complaint to “look up the law” and take proper steps to correct the unauthorized charge. It is overwhelmingly apparent that the factual findings of the trial court were not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). Accordingly, we conclude that the credit corporation’s violation was of the quality that required the imposition of civil penalties.

Though the trial and appellate courts correctly held that Reliable’s wrongful conduct was not in good faith, their holdings differed concerning the amount of civil penalties the Smiths were entitled to recover. The applicable penalty provision of the LCCL provides that the consumer is entitled to receive a “refund of all loan finance charges”, “three times the amount of such loan finance charge” and “reasonable attorney fees.” R.S. 9:3552(A)(1). In interpreting this language, both lower courts held that because the word “refund” was used by the legislature, the Smiths were implicitly entitled to recover those charges actually paid. Accordingly, the trial and appellate courts properly awarded defendants $717.99 under this portion of the penalty statute.

However, the courts differed in their computation of “three times the amount of such loan finance charge” and “reasonable attorney fees.” The trial court reasoned that the Smiths were entitled to recover three times the amount of finance charges actually paid, while the appellate court was of the opinion that treble damages should have been based on the loan charges agreed to at the time the parties entered the loan transaction. We conclude that the wording of this portion of the statute gives greater support to the trial court’s interpretation of the treble damages which a consumer may recover. The language clearly states that a violator not in good faith is subject to a penalty of three times such loan finance charge. Though the term “loan finance charge” is defined as including all charges payable for the extension of credit, it is our opinion that the legislature, by using the word “such”, manifested its desire to base the treble damages on the loan charges previously indicated. Because the before mentioned penalty referred to a “refund”, the triple penalty should also be based on the charges actually paid by the consumer. Accordingly, the trial court’s award of $2153.37 as treble damages was correct and should have been affirmed.

An award of attorney’s fees for a violation of the LCCL must be measured by the time reasonably expended by the consumer’s attorney and not by the amount of recovery. R.S. 9:3552(G). The trial court limited this amount to 25% of the refunded loan charges — $179.45. The court of appeal increased this award to $1000, reasoning that the trial court failed to tailor attorney’s fees to the effort expended by the Smiths’ attorney. We agree with the appellate court that the amount of preparation by defendants’ counsel, the complexity of the legal issues, and the degree of counsel’s expertise required an increase in the trial court’s award of attorney’s fees. Based on the amount of work required in the instant case, we find the appellate court’s award of $1000 appropriate.

As a result of Reliable Credit Corporation’s violation of the Louisiana Consumer Credit Law, defendants, the Smiths, are entitled to receive civil penalties totalling $3871.16. However, because Reliable is entitled to recover $3225.58 on the unpaid balance of the loan, defendants’ award must be set off by this amount.

We realize that the penalties imposed in the instant case are harsh. However, the legislatively mandated sanctions for an intentional or not in good faith violation do not provide for judicial discretion. Apparently, the state legislature was of the opinion that the effectiveness of the LCCL, like other regulatory legislation, hinges on the character of its enforcement provisions. See 34 La. L. Rev. 597, supra.

Accordingly, the holding of the court of appeal is amended by reducing the judgment in favor of Nathan and Geraldine Smith against Reliable Credit Corporation to $645.58, with legal interest from date of judicial demand, and for all costs of these proceedings.

AFFIRMED AND AMENDED.

      . See R.S. 9:3552(A)(1), infra.

      . Relief for the debtor is also found in the Federal Consumer Protection Law (Truth in Lending). The basic difference between the federal and state laws is that the Truth in Lending is a disclosure law whereas the LCCL governs the essentials of the transaction itself. See Consumer Protection in Practice: Securing Debtor’s Rights”, 23 La. Bar Journal 151 (1975-76).

      . It would have been improper for Reliable to charge both the $5 delinquency charge and $46 deferral charge to the November installment. R.S. 9:3525(B) provides in pertinent part: “No such delinquency charge may be collected if the installment has been deferred and a deferral charge has been paid or incurred, provided that the deferred payment is paid within ten days of its deferred date.”

      . A “loan finance charge” includes all charges payable by the consumer as an incident to the extension of credit. R.S. 9:3516(20) (now 21). We note that when the LCCL was originally adopted, deferral charges were expressly excluded from the definition of loan finance charges. However, Act 761, Sec. 1 of 1978, deleted deferral charges from this exception.

      . R.S. 9:3554(A)(2) provides that the Commissioner of Financial Institutions has the power to counsel persons regarding their rights/duties under the LCCL.

      . Joseph Haydel, an auditor for the Department of Financial Institutions, testified that, “As an examiner, if I would look at the card on that date or any other later date, I would have to say to myself since it is there the customer didn’t pay it, there was no complaint made, apparently there was an agreement between the two to defer the payment.”

      . R.S. 9:3552(A)(2)(a) provides that a good faith violator may be required to correct its error without paying civil penalties as long as the violation is correct within 30 days of the consumer’s complaint and the extender has given proper notice of multiple violations. Thus, had Reliable established a good faith violation it may have been shielded from civil penalties even though it failed to respond within 30 days because notice of multiple violations do not appear to be at issue.

      . The court of appeal decision stated that “delinquency and deferral charges are not included in the loan finance charges.” This statement is clearly wrong. See footnote 4.


author: MARCUS, Justice. LEMMON, Justice,

text:
    SUCCESSION OF Stella Lea WILLIAMS.
    No. 81-C-3074.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 17, 1982.

      Sidney E. Cook, of Cook, Yancey, King & Galloway, Shreveport, for applicant.
    Kenneth Rigby, of Love, Rigby, Dehan, Love & McDaniel, Shreveport, for respondents.
   MARCUS, Justice.

Stella Lea Williams died intestate on March 7, 1978, leaving two children, Milton L. Williams and Rachel Beth Williams Kleinpeter. On April 18, 1978, Mr. Williams, desiring that his inheritance vest directly in his son and daughter, renounced his interest in his mother’s succession. On April 25, 1978, pursuant to a joint petition stating that Mr. Williams had renounced the succession of his mother and that his children were representing him, a judgment of possession was signed recognizing Mrs. Kleinpeter and Mr. Williams’ children as the sole heirs of decedent and as such they were placed into possession of all property left by the decedent in the proportions of one-half (½) to Mrs. Kleinpeter and one-fourth (¼) each to Mr. Williams’ son and daughter.

On May 8, 1978, Mrs. Kleinpeter filed a rule contradictorily with her niece and nephew to show cause why the judgment of possession signed on April 25, 1978 should not be corrected to reflect that Mrs. Klein-peter was the sole heir of her mother by virtue of her brother’s renunciation of his interest in the succession. The Williams children answered alleging that Mrs. Klein-peter was estopped to deny her judicial confession made in the joint petition upon which the judgment of possession was based. Mr. Williams intervened alleging that his renunciation was conditioned upon the execution by his sister of the joint petition judicially confessing the interest belonging to his children.

After a hearing, the trial judge, finding that Mrs. Kleinpeter was estopped from seeking nullity of the judgment of possession, rendered judgment in favor of defendants-in-rule and intervener and against plaintiff-in-rule rejecting her demands at her cost. The court of appeal, on original hearing, found that the judgment of possession was contrary to law and therefore null and void but that Mrs. Kleinpeter was “equitably estopped” to accept the succession until Mr. Williams had a reasonable opportunity (fifteen days from finality of the judgment) to revoke his renunciation. On rehearing, the court found that Mrs. Klein-peter by her participation in the petition for possession, “solemnly acknowledged in a judicial proceeding” that she was the co-heir with the Williams children and accordingly was only entitled to one-half of the succession property. On Mrs. Kleinpeter’s application, we granted certiorari to review the correctness of that decision.

The primary issue presented for our determination is whether Mrs. Kleinpeter is precluded from asserting that she is the sole heir of her mother’s succession.

La. Civ. Code art. 2291 provides:

The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
It amounts to full proof against him who has made it.
It can not be divided against him.
It can not be revoked, unless it be proved to have been made through an error in fact.
It can not be revoked on a pretense of an error in law.

Where one makes a judicial declaration and judgment is rendered in accordance therewith, he cannot ordinarily revoke the declaration and attack the judgment under the pretense of having made an error of law. La. Civ. Code art. 2291. Nor does it seem to make any difference that the proceeding in which the declaration was made and the judgment rendered was a consent proceeding. Doll v. Doll, 206 La. 550, 19 So.2d 249 (1944); Succession of Williams, 168 La. 1, 121 So. 171 (1929); Succession of Carter, 149 La. 189, 88 So. 788 (1921); Succession of Rufin, 143 La. 828, 79 So. 421 (1918).

In the instant case, the judgment of possession was rendered in accordance with the declarations of the parties that Mrs. Kleinpeter and her niece and nephew should be recognized as the “sole heirs” of decedent and as such placed in possession of all property left by decedent in .the proportions of one-half to Mrs. Kleinpeter and one-fourth each to her niece and nephew. Although Mr. Williams and Mrs. Kleinpeter were the sole heirs of their mother at the time of her death, Mr. Williams renounced his interest in the succession. By operation of law, his portion devolved to Mrs. Klein-peter as his only co-heir of the same degree. La. Civ. Code art. 1022. Under art. 1024, Mrs. Kleinpeter could not refuse the portion of her brother and keep that part which had fallen to her in her own right because she was bound to accept or renounce for the whole. In the joint petition for possession, however, Mrs. Kleinpeter accepted only that part of the estate that had fallen to her in her own right, impliedly refusing the portion of her brother. That portion went to her brother’s children who took by representation of their father. Under art. 886, however, only deceased persons may be represented. Hence, the judgment of possession was based on erroneous legal conclusions that Mrs. Kleinpeter could refuse her brother’s portion and that Williams’ children could represent him in the succession.

Nonetheless, we consider that Mrs. Klein-peter is precluded from asserting that she is the sole heir of her mother’s succession since she joined in the pleadings on which the judgment of possession was based. On April 17, 1978, the attorney for the succession mailed to Mrs. Kleinpeter the following documents:

1. A detailed descriptive list, the preamble to which stated that Mrs. Kleinpeter, her niece and nephew were the joint petitioners for possession, that the factual allegations of the joint petition were correct, and that they accepted the succession unconditionally.
2. A state inheritance tax return, showing the heirs as Mrs. Kleinpeter, her niece and nephew, with the taxes computed on the basis that Mrs. Kleinpeter was receiving ½ of the estate and the Williams children ¼ each.
3. A cash deed under the terms of which immovable property belonging to the estate was conveyed to Alan G. Pierce. Named as vendors were Mrs. Kleinpeter, the Williams children and Mr. Williams (who with his sister already owned an interest in this property by inheritance from their deceased father).

Mrs. Kleinpeter received these documents on returning from a trip on April 22, 1978. It is disputed whether she also received a copy of the joint petition and the judgment of possession. On April 24, 1978, Mrs. Kleinpeter signed the detailed descriptive list, the state inheritance tax return and the cash deed. Mrs. Kleinpeter’s husband, an attorney of thirty years experience, notarized his wife’s signature where required. Since the loan closing for the transaction involving the property described in the cash deed was scheduled for April 25, 1978, the Kleinpeters brought the signed documents to the office of the succession attorney on that morning. At that time, it is undisputed that the Kleinpeters received copies of all the succession pleadings including the act of renunciation executed by Mr. Williams. The Kleinpeters then went to Mr. Williams’ office where Mr. Kleinpeter expressed concern over title complications that he believed would result from the manner in which the succession was being handled. These concerns were also discussed over the telephone with the succession attorney. The succession attorney explained to Mr. Kleinpeter that all of the parties were competent and free to stipulate to whatever they wanted and thus any title lawyer would approve the title on the basis of the joint petition. He also pointed out that the deed was being executed by all the parties who had or could have had any possible interest in the property. (The detailed descriptive list reflects that the property described in the cash deed was the only piece of real estate in the succession.) After this conversation, the succession attorney proceeded to file the joint petition, with the supporting documents, and to procure the signing of the judgment of possession. That afternoon, the Kleinpeters, Mr. Williams and his daughter (who had a power of attorney for her brother) met with the vendee of the succession property for the loan closing. All necessary papers were signed. At no time during this meeting did the Kleinpeters express any reservations over the manner in which the succession was handled. The attorney handling the loan closing explained to the vendors that the loan proceeds would be distributed later. However, by letter dated April 26, 1978, Mr. Kleinpeter advised the attorney that his wife would not accept any of the proceeds from the sale and the check remitted to her was later returned.

Although Mrs. Kleinpeter claims that she knew nothing of her brother’s renunciation until April 25, 1978, as early as April 22, 1978, Mrs. Kleinpeter was fully aware of the manner in which the estate was to be distributed. On April 24, 1978, she signed the detailed descriptive list stating that she and her niece and nephew were the joint petitioners in the petition and that all the allegations of fact contained therein were true and correct. By signing the succession pleadings, Mrs. Kleinpeter gave the attorney for the succession her implied, if not express, consent to procure the signing of the judgment of possession. Moreover, Mrs. Kleinpeter’s representations in the succession pleadings that she and her niece and nephew were the sole heirs of the decedent were instrumental in obtaining judgment on that basis and had the effect of a renunciation of all rights in conflict with the judgment obtained. Succession of Kranz, 162 La. 546, 110 So. 750 (1926). In all cases in which it is not expressly or impliedly prohibited, parties can renounce what the law has established in their favor, when the renunciation does not affect the rights of others and is not contrary to the public good. La. Civ. Code art. 11. Mrs. Kleinpeter’s renunciation of her right to her brother’s portion did not affect the rights of others since all parties who had an interest in the succession participated in obtaining the judgment of possession. Moreover, there is nothing contrary to public order in the manner in which the estate was distributed. Since Mrs. Kleinpeter judicially de-dared that she was only entitled to one-half of the succession property and judgment was rendered in accordance therewith, she cannot now revoke her declarations and complain that the judgment of possession is erroneous as a matter of law. Accordingly, the judgment of the court of appeal is affirmed.

DECREE

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

LEMMON, J., concurs and assigns reasons.

DIXON, C.J., dissents.

DENNIS, J., dissents with reasons.

LEMMON, Justice,

concurring.

Estoppel is not applicable here, because Williams, in renouncing the succession on April 18, did not change his position to his detriment in reliance on any action or inaction by his sister. Further, Mrs. Kleinpeter made no statement of fact in a judicial proceeding which would constitute a judicial confession.

However, Mrs. Kleinpeter knowingly entered into an agreement with other competent persons, whereby all parties interested in the succession agreed to the distribution of succession property in a manner different than that provided by law. She is now bound by that agreement, which was not contrary to public policy and did not affect the rights of third parties.

      . 405 So.2d 336 (La. App. 2d Cir. 1981).

      . 410 So.2d 1129 (La. 1982).


author: CALOGERO, Justice. WATSON, J., DIXON, C. J., LEMMON, Justice,

text:
    CITY OF BATON ROUGE v. Carlton COOLEY. CITY OF BATON ROUGE v. Charles David HOPE.
    No. 81-K-3069.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.
    Dissenting from Denial of Rehearing Sept. 24, 1982.

      Dennis R. Whalen, Baton Rouge, for relator.
    Ralph E. Tyson, City Prosecutor, Carlos G. Spaht, Kantrow, Spaht, Weaver & Walter, Baton Rouge, for respondent.
   CALOGERO, Justice.

By affidavits filed in the Baton Rouge City Court Carlton K. Cooley and Charles David Hope were each charged with traffic offenses, including second offense D. W. I. When defendants appeared for trial of their separate cases on May 28, 1981, both, through the same attorney, objected to being tried by the Honorable Byron Stringer, judge ad hoc. The “motion on jurisdiction of ad hoc judge” was denied as to each defendant and proceedings stayed pending applications for writs. Defendant applied to the Nineteenth Judicial District Court. Lodged as appeals in that court, the cases were argued orally before the Honorable Carl A. Guidry who denied the appeals as to both defendants and “affirmed the decision of the lower court.” Defendants sought and were granted writs from this Court. 411 So.2d 460 (La.1982).

Judge Darrell White, a duly elected judge of the Baton Rouge City Court, appointed Judge Stringer city judge ad hoc to preside in Section V of the City Court during a temporary absence of Judge White. Judge White made the appointment pursuant to La.C.C.P. art. 4865 which provides:

When a parish or city court judge is unable to preside due to temporary absence, incapacity, or inability, he may appoint a judge ad hoc, who may be another judge or who may be a lawyer domiciled in the parish who possesses the qualifications of the judge he replaces. Appointment shall be by order, which shall reflect the term of and reasons for the appointment, and which shall be entered into the minutes of the court.

Relators do not question that the appointment was made, nor that Judge Stringer presided in City Court following appropriate compliance with and by virtue of an ad hoc appointment made under the above statute. Rather, relators contend that La. C.C.P. art. 4865 is unconstitutional because contrary to Article V, § 22 of the Constitution of 1974. That section of the Constitution provides, in effect, that all judges shall be elected, except as to newly created judgeships or vacancies in judicial office. In the latter situations this Court, for a limited period, “shall appoint a person meeting the qualifications for the office, other than domicile, to serve at its pleasure.”

Arguments in support of the position of respondent, City of Baton Rouge, are that Article V, Section 22 affects only constitutional judgeships; that city court judge-ships have traditionally been, and still are (even under the 1974 Louisiana Constitution) legislatively created judgeships; that the Legislature is not barred constitutionally from prescribing a method for the appointment of temporary replacement or ad hoc, city judges; that the Legislature has made provision for ad hoc judges in city courts by legislation dating back to 1898, and that Chappius v. Reggie, 222 La. 35, 62 So.2d 92 (1952), supports their constitutional argument.

We find it inadvisable, if not improper, to decide this close constitutional issue in a case brought by litigants who are questioning the authority of the judge before whom they have been brought on criminal charges.

Our jurisprudence is of long standing, and has consistently been followed, that a judge acting under color of right has the authority, capacity and right to perform his judicial duties; that such capacity cannot be challenged collaterally (State v. Lewis, 22 La.Ann. 33 (1870); State v. Williams, 35 La.Ann. 742 (1883)); that the acts of a de facto judge, even if he is not de jure, are valid and binding (State v. Sanderson, 169 La. 55, 124 So. 143 (1929); State v. Cullens, 186 La. 976, 123 So. 645 (1929); State v. Phillips, 164 La. 5987, 114 So. 171 (1927); State v. Smith, 153 La. 577, 96 So. 127 (1923); Guilbeau v. Cormier, 32 La.Ann. 930 (1880); New Orleans Canal and Banking Co. v. Tanner, 26 La.Ann. 273 (1874)); that the only method of attack upon the right of a judge to sit ad hoe who exercises the duties of an office under color of appointment or election is by a quo warranto proceeding filed against him (State v. Sadler, 51 La.Ann. 1397, 26 So. 390 (1899); State v. Schuermann, 146 La. 110, 83 So. 426 (1919)).

A very early expression of the foregoing rule is found in State v. Lewis, 22 La.Ann. 33, 34 (1870), in which this Court said: “[T]he capacity and right [of a person who performs the duties of the office of Parish Judge] to perform these duties can not be inquired into collaterally.”

In State v. Williams, 35 La.Ann. 742 (1883), the defendant challenged his conviction, attacking the right of the person who officiated as district judge to act in that capacity. The Court responded:

Such right cannot be assailed in that form. Direct and regular proceedings are indispensable in the name of the State, when the person acts under color of right. It is a mistake to suppose that it is the right or privilege of every citizen to champion, even in informal and collateral proceedings, rights which the State can alone assert. See 33 An. 1413, and authorities there cited.
It is not claimed that the person filling the office of District Judge, and who acted in this case, is a mere trespasser or usurper, without any color of right.
On the contrary, it appears that he was elected under a law expressly passed for the purpose of the election.
The objection to the constitutionality of that law, raised by the defendant, cannot be considered at his instance in this proceeding. 35 La.Ann. 742

City of New Orleans v. Mangiarisina, 139 La. 605, 71 So. 886 (1916), a leading case on the subject, also involved an attack upon the legality of the appointment of a judge, that of the recorder’s court in New Orleans (apparently a predecessor to the present Municipal Court for the City of New Orleans). Defendant in a criminal proceeding protested that the selection of that official by the commission council of the City of New Orleans, rather than by election by the people, rendered that official without authority to try him. This Court rejected defendant’s contention, stating: “But nothing is netter settled than that an accused has no standing for contesting the legality of the appointment of the judge before whose court he is brought for trial. Where the court itself has a legal existence the judge is such de facto, if not de jure.” 139 La. at 614, 71 So. at 889.

The validity of the acts of a judge appointed to sit ad hoc was again before the Court in State v. Schuermann, 146 La. 110, 83 So. 426 (1919). The judges of the Civil District Court for the Parish of Orleans, sitting en banc, appointed a judge ad hoc to sit in place of a judge of the Criminal District Court for the Parish of Orleans during the latter’s disability to act as judge. The appointment was in accordance with Act 117 of 1918 and the contention was made that the statute did not comport with the applicable constitutional provision (Article 130 of the 1913 Louisiana Constitution). This Court again asserted that the appointment could not be attacked collaterally and that the only method of attack upon the right of the judge to sit as judge ad hoc of the Criminal District Court is by a quo warranto proceeding filed against him. The Schuermann Court quoted State v. Sadler, 51 La.Ann. 1397, 1402, 26 So. 390, 392 (1899):

Upon an investigation of the authorities, we find that the prevailing rule is therein recognized to be that the rights and powers of an officer can only be inquired into by suit, to which he is a party, and that on exercising the duties of an office, to which he originally had an unquestioned title, cannot be successfully attacked collaterally. An officer de facto is one who exercises the duties of an office under color of appointment or election to that office, or who has the reputation of being the officer he assumes to be. He differs on the one hand from a mere usurper of an office who undertakes to act as an officer without color or right, and on the other from an officer de jure who is, in all respects, legally appointed and qualified to exercise the office. The rights and powers of a judge de facto can only be inquired into by a suit to which he is a party; that is to say, by quo warranto, at the suit of the state.
The interest of the public requires that somebody should exercise the duties and functions of the various offices pending a litigation concerning them, and no one has a better right to do so than the various officers de facto, who claim to be officers de jure. State v. Durkee, 12 Kan. 314.
... Third persons, from the nature of the case, cannot always investigate the right of one assuming to hold an important office, even so far as to see that he has color of title to it by virtue of some appointment or election. If they see him publicly exercising its authority, if they ascertain that this is generally acquiesced in, they are entitled to treat him as such officer, and, if they employ him as such, should not be subjected to the danger of having his acts collaterally called in question. Petersilea v. Stone, 119 Mass. 465, 20 Am.Rep. 335.

In the case under consideration, Judge Stringer was not a usurper of an office who was acting without color of right. Rather, he was at least a de facto officer with a judicial appointment made in conformity with a statute passed by the Legislature of this state.

Decree

For the foregoing reasons the ruling of the judge ad hoc of the City Court of Baton Rouge denying relators’ motion and the ruling of the Nineteenth Judicial District Court for the Parish of East Baton Rouge affirming that decision are affirmed.

AFFIRMED.

WATSON, J.,

concurs in the result, being of the opinion that this Court should decide the case on the merits and hold that the City Courts are properly authorized by the Legislature to appoint substitute Judges.

DIXON, C. J.,

dissents not being satisfied with the constitutionality of the appointment, nor the holding that there is remedy.

LEMMON, J., dissents.

LEMMON, Justice,

dissenting From Denial of Rehearing.

C.C.P. Art. 4865 is useful, but unconstitutional. La. Const. Art. V, § 22 clearly states that all judges shall be elected, except for a situation involving a vacancy or a newly created judgeship, in which case this court may appoint temporarily a person possessing the qualifications of office to serve until the election to fill the vacancy or the newly created judicial office. In the present case a lawyer, who was not an elected judge, was appointed to a judicial position which was not newly created and in which there was no vacancy. That appointment was therefore clearly violative of the unambiguous terms of the constitution.

The persons who complained about the unconstitutional appointment in this case were persons whose guilt or innocence (and therefore whose freedom or property) depended upon the decision of a person unconstitutionally acting in a judicial office. It is illogical to hold that these defendants did not have a legitimate interest in testing the validity of the appointment. Contesting the constitutionality of the statute, under which a nonelected judge was illegally appointed to try them, was just as important to them as contesting the constitutionality of the statute which defined the crime with which they were charged. The approach taken by this court does not adequately protect the rights of litigants to have their cases decided by judges who have been approved by the electorate or by this court under a specific constitutional power of appointment.

C.C.P. Art. 4685 should be declared unconstitutional, and the convictions by a judge serving under an unconstitutional appointment should be set aside. Defendants should be retried by a judge who was elected to office or constitutionally appointed.

      . La.R.S. 13:1896(B) provides that review in a situation such as this is by appeal to the district court of the parish in which the court of original jurisdiction is located.

      . The full text of Article V, § 22, Louisiana Constitution of 1974 is as follows:
      Section 22. (A) Election. Except as otherwise provided in this Section, all judges shall be elected. Election shall be at the regular congressional election.
      (B) Vacancy. A newly-created judgeship or a vacancy in the office of a judge shall be filled by special election called by the governor and held within six months after the day on which the vacancy occurs or the judgeship is established, except when the vacancy occurs in the last six months of an existing term. Until the vacancy is filled, the supreme court shall appoint a person meeting the qualifications for the office, other than domicile, to serve at its pleasure. The appointee shall be ineligible as a candidate at the election to fill the vacancy or the newly-created judicial office. No person serving as an appointed judge, other than a retired judge, shall be eligible for retirement benefits provided for the elected judiciary.
      (C) End of Term. A judge serving on the effective date of this constitution shall serve through December thirty-first of the last year of his term or, if the last year of his term is not in the year of a regular congressional election, then through December thirty-first of the following year. The election for the next term shall be held in the year in which the term expires, as provided above.

      . Acts 1898, No. 169 established a “Court for the City of Baton Rouge” with the judge to be elected by the Council. The act further provided that “in the absence or disability of the City Judge, [the Mayor] be vested with jurisdiction to try and punish offenders against the city ordinances.” See also: Acts 1902, No. 60; Acts 1906, No. 156; Acts 1910, No. 161; Acts 1910, No. 177; Acts 1924, No. 243; Acts 1930, No. 17; Acts 1936, No. 260; Acts 1944, No. 257; Acts 1958, No. 252.

      . Statutory provisions concerning the writ of quo warranto [See Code of Practice of 1870, Part II, Title I, Chapter 11, Sec. 2, Par. 4 “Of the mandate to prevent and usurpation of office (Writ of Quo Warranto), Articles 867-873] are today incorporated in La.C.C.P. art. 3901, Quo Warranto, and Revised Statutes Title 42 (Public Offices and Employees) Chapter 3 (Right to Office) Sections 71-87. La.R.S. 42:76 relates to “actions to try right of office; ...” and provides that an action shall be brought in the name of the state by the attorney general or by the parish district attorney, with suit to be filed in the district court of the parish in which the case arises “when any person usurps, intrudes into, or unlawfully holds or exercises or attempts to remain in possession of any public office or franchise within this state.”
      Under La.C.C.P. art 3901 “Quo warranto is a writ directing an individual to show by what authority he claims or holds public office. .. Its purpose is to prevent usurpation of office or of powers.” The official revision comment to La.C.C.P. art 3901 recites that the “provision referring to public office was incorporated on the theory that the Intrusion into Office Act, R.S. 42:76 et seq., does not give an individual the right to file suit except when he is claiming the office.”

      . Incidentally, Judge Stringer has since been elected a judge of the Baton Rouge City Court.

      . The competency and qualifications of the temporary appointee in this case are not at issue. However, irrespective of the merits of any particular appointment, one obvious purpose of the constitutional limitation on every appointment is to minimize appointments prompted by improper considerations (such as when a politically influential person desires to have a friend or relative temporarily appointed to a judgeship so that his photograph on the bench can be used in an upcoming campaign for another judicial office).