author: DOWNEY, Judge.

text:
    Anthony LLITERAS a/k/a Antonio Lliteras, Appellant, v. Karolynne M. LLITERAS, and Anthony, Michael, Kristine and Ann Marie Lliteras, minors, by and through their next friend, Karolynne M. Lliteras, Appellees.
    No. 82-145.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Herbert H. Rolnick and Robert D. Hurth, Pompano Beach, for appellant.
    No appearance for appellees.
   DOWNEY, Judge.

Plaintiffs filed suit in the Seventeenth Judicial Circuit to domesticate a New Jersey final decree of divorce that required defendant to pay alimony and child support. The complaint also sought a writ of Ne Exeat. Defendant’s motion to dismiss the complaint was denied and the court deferred action on the Ne Exeat request. Thereupon defendant filed this appeal, ostensibly pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). Plaintiffs have not favored us with a brief.

In his brief defendant states:

“Plaintiffs have filed a Complaint to establish a Foreign Decree as a Florida Judgment alleging that pursuant to a New Jersey Divorce Decree entered on May 3, 1976, they are entitled to immediate monetary relief, to wit: alimony and/or support arrearages.
“The substantive issues of support of alimony were ones in which the obligations of the Defendant had already been set forth by the New Jersey Trial Court as aforesaid.
“The prior adjudication of Defendant’s obligations by the New Jersey Court is tantamount to a ruling of liability in a non-domestic case, since Defendant’s obligations for support and/or alimony are not being re-litigated. Therefor (sic), this Appeal is brought pursuant to 9.130(a)(3)(C)(IV) of the Florida Rules of Appellate Procedure.”

We disagree with defendant’s characterization of the order in question (which simply denied the motion to dismiss) as determining the issue of liability in favor of the Plaintiffs. There are a variety of defenses that a defendant may direct to a complaint to domesticate and enforce a foreign judgment or decree, such as payment, the statute of limitations, a collateral attack on jurisdiction, to name a few.

We also are unable to concur with defendant’s contention that

“due to the summary nature of a Complaint to establish a Foreign Decree, the Trial Court’s denial of Defendant’s Motion to Dismiss — especially with regards to support and/or alimony arrearages-— was a ruling that foreclosed Defendant’s substantive defenses and thus determined Plaintiff’s right to immediate monetary relief. Therefor (sic) this appeal is also brought pursuant to 9.130(a)(3)(C)(III).”

Once again we suggest that whatever substantive defenses defendant has may be asserted in an answer to the complaint.

Accordingly, this appeal is dismissed for lack of jurisdiction.

ANSTEAD and WALDEN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Wayne Richard HORNE, Appellant, v. Ernest Lee ELLIS, George Jonas, Gisele Spence and Industrial Fire and Casualty Insurance Company, Appellees.
    No. 82-310.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Robert P. Kelly of Fazio, Dawson & Di-Salvo, Fort Lauderdale, for appellant.
    Joseph M. Ryan and Philip M. Berman, Pompano Beach, for appellees.
   PER CURIAM.

This is an interlocutory appeal from an order relating to jurisdiction over the person of the defendant. We conclude that the proof offered by the plaintiff was insufficient to authorize substituted service of 'process against the individual defendant and reverse and remand for further proceedings on the authority of Robinson v. Cornelius, 377 So.2d 776 (Fla. 4th DCA 1979).

REVERSED AND REMANDED.

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    CITY OF LEESBURG and U. S. Fidelity & Guaranty Company, Appellants, v. Thomas W. BALLIET, Appellee.
    No. ZZ-278.
    District Court of Appeal of Florida, First District.
    May 12, 1982.

      John R. Gierach of Gierach & Ewald, P. A., Orlando, for appellants.
    Irvin A. Meyers of Meyers, Mooney & Adler, P. A., Orlando, for appellee.
   PER CURIAM.

The employer and carrier appeal a workers’ compensation order awarding compensation for attendant care services which were provided to claimant more than four years prior to the claim for such services. Appellants argue they had no notice of the need for attendant care services. Alternatively, they contend the services rendered were primarily housekeeping services which are not compensable.

Florida Statutes, Section 440.13, provides that an employee shall not be entitled to recover any amount personally expended for remedial treatment, care, and attendance unless the employee shall have requested the employer to provide such treatment or service and the employer failed to do so, or unless the nature of the injury required such treatment, nursing, and services and the employer, having knowledge of such injury, failed to provide the same. In his order, the deputy commissioner did not make a specific finding as to whether the employer or carrier had notice of claimant’s need for attendant care services. It may be that the deputy concluded that the nature of the injury was such as to impute knowledge claimant’s need for attendant care services to the employer and carrier. Silver Springs Sportswear v. Marlin, 389 So.2d 702 (Fla. 1st DCA 1980). We remand this case to the deputy commissioner for an expression of his findings with regard to this notice issue.

As to the second point raised by appellants, it does appear that some of the services listed by the deputy commissioner as the basis for the award of attendant care services included housekeeping services provided claimant by his father. Housekeeping services are not compensable under Florida Statutes, Section 440.13. South Coast Construction Company v. Chizauskas, 172 So.2d 442 (Fla.1965). On remand, the deputy commissioner should distinguish between the types of services provided to claimant and apportion out the non-com-pensable housekeeping portion of the services provided. Pan American World Airways, Inc. v. Weaver, 226 So.2d 801 (Fla.1969).

REVERSED and REMANDED for proceedings consistent with this opinion.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.


author: MILLS, Judge.

text:
    Clarence JONES, Appellant, v. The FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AF-190.
    District Court of Appeal of Florida, First District.
    May 12, 1982.

      Clarence Jones pro se.
    No appearance for appellee.
   MILLS, Judge.

Jones appeals contending the Parole and Probation Commission improperly calculated his presumptive parole release date (PPRD). We agree in part and disagree in part.

We find no error in the Commission relying on presentence investigation reports, or Florida Department of Law Enforcement reports, or FBI records to establish prior convictions.

The record reveals that Jones’ sentence for possession of controlled substance paraphernalia (A#) had expired prior to the imposition of a sentence for possession of cocaine and heroin. It was, therefore, improper for the Commission to aggregate his A # commitment with his other commitments. Florida Administrative Code, Rule 23-19.02(2)(g).

The order is affirmed in part, reversed in part, and remanded with instructions that Jones’ PPRD be calculated in a manner consistent with this opinion.

LARRY G. SMITH and SHAW, JJ., concur.


text:
    HOP N SHOP FOOD STORES and Corporate Group Service, Inc., Appellants, v. Nellie SHORE, Appellee.
    No. AF-245.
    District Court of Appeal of Florida, First District.
    May 12, 1982.
    Jack A. Langdon of Jones & Langdon, P. A., Gainesville, for appellants.
    Steven J. Gray of Green, Simmons, Green, Hightower & Gray, P. A., Ocala, for appellee.
   MILLS, Judge.

The employer/carrier appeal from a workers’ compensation order awarding the claimant wage loss benefits and rehabilitation benefits. We affirm.

The award of wage loss benefits is supported by competent substantial evidence.

The award of rehabilitation benefits is affirmed on authority of Hurricane Fence Industries v. Bozeman, 413 So.2d 822 (Fla. 1st DCA, opinion released 6 May 1982), Case No. AD-488, and because the Division of Workers’ Compensation did not comply with Section 440.49(1), Florida Statutes (1981).

LARRY G. SMITH and SHAW, JJ., concur.


author: SHIVERS, Judge.

text:
    STATE of Florida, Appellant, v. Robert Samuel CRAIG, Appellee.
    No. AF-251.
    District Court of Appeal of Florida, First District.
    May 12, 1982.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellant.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellee.
   SHIVERS, Judge.

State seeks review of the trial court’s order granting Craig’s motion to dismiss the information charging him with possession of a weapon by a prison inmate. Section 944.43, Fla.Stat. (1979). We reverse.

On September 10, 1980, Craig, an inmate in Florida State Prison, was transferred to a new cell. At the time of transfer, prison officials stripped and searched Craig but found nothing unusual. On September 14, 1980, prison authorities conducted a general search of several cells, including Craig’s. During the search, a homemade knife was found imbedded in his mattress. As a result, the State charged appellee with possession of a knife by a prisoner. On May 28, 1981, appellee moved to dismiss, asserting the evidence was merely circumstantial, did not demonstrate appellee knew of the knife’s presence and, therefore, did not exclude every reasonable hypothesis of innocence. The trial court granted the motion. The State then filed this appeal.

The record below indicates appel-lee had exclusive control over the cell and its contents from September 10, 1980, through September 14, 1980. Where the premises on which contraband is found are in the exclusive possession and control of the accused, knowledge of the contraband’s presence and the ability to maintain control over the contraband may be inferred. Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967). Further, the question of whether appellee had knowledge of the knife’s presence is an ultimate fact question which cannot be appropriately resolved on motion to dismiss. Cummings v. State, 378 So.2d 879 (Fla. 1st DCA 1979). Since the facts are sufficient to raise issues which must be resolved by the trier of fact, the order appealed is reversed and the cause remanded with instructions to the trial court to permit the cause to proceed in a manner consistent with this opinion.

REVERSED and REMANDED.

BOOTH and JOANOS, JJ., concur.


text:
    PIONEER ROOFING COMPANY and Lumbermens Mutual Insurance Company, Appellants, v. Robert WILSON and the Division of Workers’ Compensation, Appellees.
    No. AF-377.
    District Court of Appeal of Florida, First District.
    May 12, 1982.
    Summers Warden, Miami, for appellants.
    Jay M. Levy of Silver, Levy & Hershoff, Miami, for appellees.
   MILLS, Judge.

The employer/carrier appeal contending the attorney’s fee awarded claimant was excessive. We affirm.

There was competent substantial evidence to support the amount of the award and the deputy’s order reflects he considered the relevant criteria of Lee Engineering & Construction Company v. Fellows, 209 So.2d 454 (Fla.1968).

LARRY G. SMITH and SHAW, JJ., concur.


text:
    HUNT BROTHERS CONSTRUCTION COMPANY and R. P. Hewitt & Associates of Florida, Inc., Appellants, v. Allen CURRINGTON, Appellee.
    No. AF-413.
    District Court of Appeal of Florida, First District.
    May 12, 1982.
    James T. Earle of Watson, Goldstein, Earle, Douglass & Dubbeld, P. A., St. Pe-tersburg, for appellants.
    H. Richard Bisbee of Martin, Stinnett & Graves, Sarasota, for appellee.
   MILLS, Judge.

The employer/carrier appeal from a compensation order finding that aseptic necrosis of claimant’s right hip was aggravated by his work related injury. We affirm.

There was competent, substantial evidence to support the finding. The employer/carrier offered no other logical cause for the injury.

LARRY G. SMITH and SHAW, JJ., concur.


text:
    PANTRY PRIDE and Alexsis, Inc., Appellants, v. Virginia CARTER, Appellee.
    No. AF-428.
    District Court of Appeal of Florida, First District.
    May 12, 1982.
    John Patrick Joy of Walton, Lantaff, Schroeder & Carson, Miami, for appellants.
    Roger W. LaJoie of Sullivan, Cobb, Sullivan & Orr, Vero Beach, for appellee.
   MILLS, Judge.

The employer/earrier appeal a workers’ compensation order contending the deputy commissioner erred in awarding an attorney’s fee and a penalty to claimant. We reverse

The employer/earrier admitted the compensability of claimant’s injury and began paying disability benefits. They later contested claimant’s entitlement to psychiatric care. This action does not subject the employer/earrier to payment of an attorney’s fee. Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981). This claim for psychiatric care was merely a claim for a benefit incidental to the injury.

The deputy erroneously assessed a penalty against the employer/earrier. Section 440.20(7), Florida Statutes (1980 Supp.), states that the claimant will be deemed to have waived his claim for penalties if not made prior to the conclusion of the prosecution of his claim before the deputy. No claim for penalties was made by claimant. The statute also states that the deputy may raise on his own motion the question of whether a penalty should be awarded or excused. In this case, the deputy did not raise the question at the hearing. He assessed the penalty in his order but without affording the employer/earrier an opportunity to be heard. The imposition of the penalty was erroneous because the employer/carrier were denied due process.

The order is reversed for proceedings consistent with this opinion.

LARRY G. SMITH and SHAW, JJ., concur.


author: SHAW, Judge. LARRY G. SMITH, Judge,

text:
    Lee CHERNEY and Tinya G. F. Cherney, Appellants, v. C. Gary MOODY, Appellee.
    No. AG-126.
    District Court of Appeal of Florida, First District.
    May 12, 1982.
    Lee Cherney and Tinya G. F. Cherney, pro se, appellants.
    Wm. A. Bessent, III, Gainesville, for ap-pellee.
   SHAW, Judge.

Appellants seek review of an order which dismissed with prejudice their amended counterclaim. We treat the appeal as a petition for certiorari and accept jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(2)(A). We REVERSE AND REMAND.

The facts here are relatively simple. Ap-pellee Moody, an attorney, represented appellants Cherneys in a 1977 adoption proceeding. In January, 1980, Moody filed suit in County Court for the collection of fees allegedly owed him for the representation in the 1977 adoption proceedings. The Cherneys, acting for themselves, answered and filed a counterclaim seeking compensatory and punitive damages in excess of $25,-000.00. The counterclaim included as an exhibit a copy of a November, 1977, letter to Moody which dismissed him as their counsel and expressed dissatisfaction with his legal representation. After various procedural actions, including dismissal with leave to amend the original counterclaim and a jurisdictional transfer to Circuit Court, the trial court granted Moody’s motion for dismissal of the amended counterclaim with prejudice on the ground that the counterclaim sounded in legal malpractice and was barred by the two year statute of limitations, section 95.11(4)(a), Florida Statutes (1980).

We begin our consideration by noting our agreement with the trial court’s conclusions that the amended counterclaim sounded in malpractice; that the Cherneys’ letter of November, 1977, clearly evidenced that they were on inquiry notice of the accrual of a cause of action against Moody as of November, 1977, and that this notice commenced the running of the statute of limitations. The Cherneys’ cause of action for legal malpractice, as an independent cause of action, was barred by the running of the two year limitations period by the time Moody filed his suit in January, 1980. See 51 Am.Jur.2d, Limitations of Actions, §§ 61-63; Buck v. Mouradian, 100 So.2d 70 (Fla.3d DCA 1958). The Cherneys’ argument that their counterclaim contains allegations of malicious and willful acts, fraud, concealment and bad faith which are not barred by the malpractice statute of limitations and that they did not know of the malpractice until 1978 is refuted by the contents of their answer, counterclaim, and letter of November, 1977. These pleadings leave no doubt that the Cherneys were on inquiry notice as of November, 1977, of the possible accrual of a cause of action and that this cause of action sounded in legal malpractice. See Padgett v. First Federal S & L Ass’n., 378 So.2d 58, 65 (Fla. 1st DCA 1979) and Kent Electric Co. v. Jacksonville Electric Authority, 395 So.2d 277 (Fla. 1st DCA 1981).

Even though we agree with the trial court that the Cherneys’ claim was barred as an independent cause of action by the expiration of the two year statute of limitations, we nevertheless conclude that it was error to dismiss the counterclaim with prejudice. Under Florida Rule of Civil Procedure 1.110 the forms of actions and technical forms are abolished. This rule is applicable to any claim for relief, including a counterclaim as here, and it is not necessary to state the theory of the case in the pleading: “it is the facts alleged, the issues and proof, and not the form of the prayer for relief, which determines the nature of the relief to be granted.” Chasin v. Richey, 91 So.2d 811, 812 (Fla.1957). It is also well settled that a counterclaim for recoupment may be asserted although barred by the statute of limitations as an independent cause of action. See Payne v. Nicholson, 100 Fla. 1459, 131 So. 324, 326 (Fla.1930). Here, appellant has stated a compulsory counterclaim in recoupment arising from the same transaction and occurrence as the appellee’s complaint, and it was error to dismiss with prejudice.

Appellants’ counterclaim exceeds in amount the jurisdictional amount of the County Court and of the appellee’s suit for fees allegedly owed. This raises the issue of whether the appellants may recover an affirmative judgment above the amount sued on by appellee. There is conflicting authority as to whether a plea of recoupment which is otherwise barred as an independent cause of action may be used to obtain an affirmative judgment or may only be used defensively to reduce the amount the plaintiff demands. We have examined the history of the plea of recoupment in Florida and conclude for the reasons given below that a plea of recoupment may be used to obtain an affirmative judgment even though barred as an independent cause of action by the statute of limitations.

Under common law, the plea of recoupment was defensive in nature, arising from the same transaction or occurrence as the plaintiff’s claim, and did not permit recovery of an affirmative judgment. By contrast, the plea of setoff was of statutory origin, arose from a separate transaction or occurrence than the plaintiff’s claim, and permitted recovery of an affirmative judgment. (Although we differ in our ultimate conclusion, we have drawn upon the excellent examination of the pleas of recoupment and setoff contained in Fla.Jur.2d, Interim Topics, Counterclaim, sections 1— 17.)

The plea of recoupment was converted into an offensive plea and the distinction between recoupment and setoff largely eliminated by chapter 14823, Laws of Florida (1931) which provided that pleas of re-coupment “shall have the same force and effect, and create the same right of recovery to the defendant as pleas of setoff, and form the proper basis for judgment in favor of the defendant in the same manner and to the same extent as pleas of setoff.” In discussing this act, our Supreme Court concluded that

The evident purpose of the statute is to remove the restriction by which the pleader was formerly prevented from recovering the amount established by him over that found to be due the plaintiff.

Jacksonville Paper Co. v. Smith & Winchester Mfg. Co., 147 Fla. 311, 2 So.2d 890, 893 (Fla.1941).

In 1941, the legislature enacted chapter 20426, Laws of Florida (1941) which repealed chapter 14823, Laws of Florida (1931) and amended section 4326 of the Compiled General Laws of Florida (1927), to provide in pertinent part:

(c) Counterclaim Exceeding Plaintiff’s Claim. A counterclaim may or may not diminish or defeat the recovery sought by the plaintiff; shall not be construed as admitting any part of the plaintiff’s claim; and the defendant may claim re-, lief exceeding in amount or different in kind, from that sought in the pleading of the plaintiff.

Also in 1941, the legislature enacted chapter 20719, Laws of Florida (1941) which approved, adopted and enacted the Florida Statutes (1941), prepared by the attorney general under the direction and by the authority of the Florida Legislature. As so enacted, section 52.11(3), Florida Statutes (1941) contains the verbatim text of subsection (c) from chapter 20426 quoted above. Volume II of Florida Statutes (1941), containing the history and annotations of Florida Statutes (1941), was itself adopted by the legislature in chapter 20719. In pertinent part under section 52.11, the annotation quotes Jacksonville Paper Co.- for the proposition that the statute removes the restriction by which the pleader of recoupment was “formerly prevented from recovering the amount established by him over that found to be due the plaintiff.”

The relationship of recoupments and set-offs to section 52.11, Florida Statutes (1941) was examined in Metropolitan Casualty Ins. Co. of New York v. Walker, 151 Fla. 314, 9 So.2d 361 (Fla.1942). In its analysis, the court stated that

[A] study of the subject of seRoffs and recoupments brings us to the conclusion that the feature distinguishing a compulsory from a permissive counterclaim is the one that also distinguishes a recoupment from a set-off. Compulsory counterclaims, under the act, [chapter 20426], are those springing from the same transaction; permissive are those not having that characteristic. The former, therefore, seem to be recognized as presentable by recoupment; the latter by set-off.

Id. 9 So.2d at 362-363. The court went on to say that

In deciding a case involving the construction of Chapter 14823, Laws of Florida, Acts of 1931, we held that this distinction between set-offs and recoupments had not been abolished. Jacksonville Paper Company v. Smith & Winchester Mfg. Co., 147 Fla. 311, 2 So.2d 890.

Id. 9 So.2d at 363.

The subsequent history of section 52.-11(3), Florida Statutes (1941), reveals that it was repealed by chapter 29737, Laws of Florida (1955), but incorporated verbatim, except for punctuation, into Rule of Civil Procedure 1.13(3) by our Supreme Court in 1954. Thereafter, except for recasting and deletion of a phrase not pertinent here, Rule of Civil Procedure 1.13(3) was incorporated into and became the present Florida Rule of Civil Procedure 1.170(c).

Based on the above history of the plea of recoupment, we are convinced that the 1931 legislature created a statutory right to an affirmative judgment on a plea of recoupment and that this statutory right has been preserved through the various adaptations and enactments which have produced the current Florida Rule of Civil Procedure 1.170.

Our views are strengthened by an analogy we see between the situation here and Beekner v. Cawthon, 145 Fla. 152, 198 So. 794 (Fla.1940), wherein our Supreme Court rejected an attempt by a lender to purge a usury-infected contract by awaiting the running of the statute of limitations before filing suit. The court noted that it did not decide whether the debtor could have obtained an affirmative judgment in re-coupment because the issue was not presented, but the court did not hesitate to say that the lenders were the movants and “should not be encouraged in the position that their usurous contract was free of the infirmity of usury because the statutory period, within which the [debtor] ... could have commenced a suit, had elapsed.” Id. 198 So. at 796. Without belaboring the point we feel that an attorney’s fidicuary relationship with a client and the Florida Bar’s Code of Professional Responsibility would be ill-served by a holding which permitted an attorney to avoid a counterclaim for malpractice by awaiting the running of the statute of limitations before filing suit for the collection of fees for legal representation. In the posture of the case, we have not reached the issue of whether any malpractice actually occurred and express no opinion on the merits of the counterclaim.

We agree also with the dissent of Judge Pearson in Horace Mann Ins. Co. v. DeMirza, 312 So.2d 501 (Fla.3d DCA 1975) that the intent of the present rules will be best served by holding that a compulsory counterclaim in recoupment permits the recovery of an affirmative judgment even though barred as an independent cause of action by the running of the statute of limitations.

We recognize this holding conflicts with Horace Mann Ins. Co. v. DeMirza, 312 So.2d 501 (Fla.3d DCA 1975). Accordingly, we certify to our Supreme Court the following question:

DOES THE RUNNING OF THE STATUTE OF LIMITATIONS ON AN INDEPENDENT CAUSE OF ACTION BAR THE RECOVERY OF AN AFFIRMATIVE JUDGMENT IN RECOUPMENT ON A COMPULSORY COUNTERCLAIM.

REVERSED AND REMANDED.

MILLS, J., concurs.

LARRY G. SMITH, J., concurs and dissents with opinion.

LARRY G. SMITH, Judge,

concurring and dissenting.

I would adhere to the decision of the Third District in Horace Mann Ins. Co. v. DeMirza, 312 So.2d 501 (Fla.3rd DCA 1975), which was followed in Diversified Mortgage Investors v. Benjamin, 345 So.2d 392 (Fla.3rd DCA 1977).

As a matter of statutory interpretation, I disagree with the majority’s analysis of the effect of Chapter 14823, Laws of Florida (1931), so far as statute of limitations issues are concerned. This statute provided for the “same right of recovery” for both re-coupment and setoff, and allowed recovery of judgment by way of recoupment “in the same manner and to the same extent” as for setoff. The statute thus creates no greater right of recovery under recoupment, than under setoff. Therefore, if a cause of action, pleaded by way of setoff, would be barred by the statute of limitations, the same cause of action, pleaded by way of recoupment, would also be barred. Later statutes and rules, in my view, do not disclose any intention to mandate the rule adopted by the majority.

On the other hand, the statute contains no language affecting the right to present a recoupment defense to defeat all or part of the plaintiff’s claim, without regard to the statute of limitations.

However, I concur in the majority’s certification of the question to the Florida Supreme Court.


author: RYDER, Judge.

text:
    Kenneth Miles KAYLOR, Appellant, v. Sharon KAYLOR, Appellee.
    No. 81-1912.
    District Court of Appeal of Florida, Second District.
    May 12, 1982.
    Theodore L. Tripp, Jr. of Moorey, Seals & Garvin, Fort Myers, for appellant.
    William P. Buztrey of Harry A. Blair, P. A., Fort Myers, for appellee.
   RYDER, Judge.

Kenneth Kaylor appeals from the terms of a final judgment of dissolution of marriage, alleging that the award to Sharon Kaylor of rehabilitative alimony was not supported by his ability to pay. We agree that the total award exceeds appellant’s ability to pay, and we reverse.

The parties were married in 1973 and had two children. Prior to the marriage, appel-lee worked as a secretary in the real estate business, and had received a real estate sales license. At the time of final hearing, appellee was permanently employed as a real estate salesperson. For the sixteen months prior to the hearing, she received a gross income of $745.00 per month. Appel-lee testified she needed an additional $1,200.00 per month in order to sustain herself and children in their accustomed lifestyle. Appellant worked for an insurance agency for eleven years, with a salary for the last twelve months of $600.00 per week gross, or $462.00 per week net. Appellant owned 20% of the stock in the agency, with his uncle owning the remaining stock. Appellant’s 20% interest in the company was estimated by appellee to be worth $100,-000.00. The only other assets of the parties consisted of the marital home and furnishings.

The court awarded custody of the minor children to appellee, exclusive use and benefit of the house to appellee, and required appellant to pay rehabilitative alimony of $4,800.00 per year for two years, child support of $7,800.00 per year, and one-half the mortgage payments, maintenance, taxes and insurance on the house, amounting to $4,230.00 per year. The trial court also required appellant to provide an automobile to appellee, pay all medical and dental expenses of the children, and provide life insurance to secure the support payments.

Under the final judgment below, appellant’s net income of approximately $2,000.00 per month is decreased by rehabilitative alimony of $400.00, child support of $650.00 and house expenses of $345.00. Of the remaining $600.00, appellant must supply appellee a car, life insurance to secure support, and medical expenses of the children. While disputed testimony indicated that appellant’s interest in the insurance agency might be of substantial value, the minority interest in a small business was not readily marketable for cash. Additionally, the net amount ordered paid to appel-lee, plus her income, exceeds the expenses indicated by her testimony and financial affidavit by $175.00 monthly.

Factors to be considered by the trial court in determining an award of alimony are the needs of the one spouse and the ability of the other to provide funds. Canakaris v. Canakaris. 382 So.2d 1197 (Fla.1980). The final judgment below erroneously took appellant from a position of financial well-being to financial misfortune. See Parham v. Parham, 385 So.2d 107 (Fla.3d DCA 1980); Nicholson v. Nicholson, 372 So.2d 178 (Fla.2d DCA 1979).

The financial aspects of the award below are REVERSED and the case REMANDED for the trial court to fashion an award consistent with appellee’s needs and appellant’s ability to pay. All other aspects of the final judgment are AFFIRMED.

GRIMES, Acting C. J., and OTT, J., concur.


author: PER CURIAM. BERANEK, Judge,

text:
    Barbara S. GAY, Appellant/Cross-Appellee, v. Hugh R. GANTT, Appellee/Cross-Appellant.
    No. 81-1114.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Paula S. Gold of Baskin & Sears, Boca Raton, for appellant/cross-appellee.
    Jane Kreusler-Walsh and Larry Klein, West Palm Beach, and T. N. Murphy, Jr., Deerfield Beach, for appellee/cross-appel-lant.
   PER CURIAM.

AFFIRMED.

LETTS, C. J., and HURLEY, J., concur.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. I believe the trial court employed too stringent a standard in judging the proof of the plaintiff. Plaintiff sued to establish a constructive trust, and the trial court ruled that the standard of proof necessary to establish such a trust was “evidence of such a strong, clear and unequivocal nature so as to remove every doubt as to the existence of the alleged trust from the court’s mind.” Admittedly, there is confusion in the precedents as to the standard of proof necessary in cases of this sort, but I conclude that the standard enunciated by the trial court was entirely inappropriate and resulted in prejudice to the appellant. I would remand for a new trial. See Rigot v. Bucci, 245 So.2d 51 (Fla.1979).


author: PER CURIAM. LETTS, Chief Judge,

text:
    Robert CARNAVIL, et al., Appellants, v. The PINES OF DELRAY ASSOCIATION, INC., etc., Appellees.
    No. 81-2407.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Herbert Stettin of Lapidus & Stettin, P. A., Miami, for appellants.
    David St. John of Powell, Tennyson & St. John, P. A., West Palm Beach, for appel-lees.
   PER CURIAM.

Affirmed.

HERSEY and WALDEN, JJ., concur.

LETTS, C. J., concurs specially with opinion.

LETTS, Chief Judge,

specially concurring:

While I would not express it in as strong terms as have the Appellees, I see no efficacy in this appeal. Were time less of an enemy, I would pause to elaborate and it is tempting to do so. Yet, to succumb would be contributing to that which has already occupied too much time.


author: NESBITT, Judge.

text:
    Charlie MARSHALL, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1177.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.

      Bennett H. Brummer, Public Defender, and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   ON MOTION FOR REHEARING GRANTED

NESBITT, Judge.

The defendant seeks reversal of his conviction for the offenses of: (1) murder in the second degree; and (2) unlawful possession of a firearm during the commission of a felony.

He contends the trial court erred in denying his motion at trial to exclude the testimony of a material witness offered by the state because that witness had twice failed to appear for deposition requested by defense counsel. No attempt was made to demonstrate that the state had willfully procured the witness’ nonattendance or furnished the defendant with a residence address from which the witness could not be properly subpoenaed. The defendant’s counsel had a copy of this witness’ sworn statement and plausibly could anticipate what her testimony at trial would be.

We entirely agree with the state that, under the circumstances presented, the court was not required to make the inquiry that is normally required under Richardson v. State, 246 So.2d 771 (Fla.1971). Without a showing of some wrongdoing on the part of the state, there was no error in the refusal to dismiss the proceeding due to the failure of a witness, subpoenaed by the defense, to appear for discovery purposes. Mason v. State, 375 So.2d 1125, 1127 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980). Nor is the state responsible to keep track of important witnesses so as to be able to produce them for the defendant’s discovery. Knight v. State, 373 So.2d 52, 53 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 761 (Fla.1980).

The defendant received concurrent sentences of fifteen years for his conviction of murder in the second degree and unlawful possession of a firearm during the commission of the homicide. However, because he possessed a firearm during the commission of the second degree murder, a three-year minimum mandatory provision was imposed as to that sentence, as required by Section 775.087(2), Florida Statutes (1979).

In our initial opinion released July 21, 1981, we reversed the defendant’s conviction for the display of a firearm during the commission of a felony based upon the then extant case of State v. Pinder, 375 So.2d 836 (Fla.1979). After our opinion was released, the Supreme Court, in State v. Hegstrom, 401 So.2d 1343 (Fla.1981), receded from State v. Pinder, supra, and upheld the propriety of adjudicating the defendant for separate statutory offenses which arise during the same criminal episode. Consequently, we granted the state’s petition for rehearing based on State v. Hegstrom, supra, and now affirm the defendant’s conviction.

The remaining question is whether the defendant may be sentenced for both the use of a firearm during the commission of second degree murder and second degree murder, with a firearm.

Under Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) and Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), as articulated in State v. Hegstrom, supra, it is clear that the Fifth Amendment presents no substantive limitation on the Legislature’s power to prescribe multiple punishments and double jeopardy seeks only to prevent courts either from allowing multiple prosecutions or from imposing multiple punishments for a single, legislatively defined offense. Nor do we find that the Legislature has proeedurally imposed any such limitation by the adoption of Section 775.021(4), Florida Statutes (1979) except that the defendant may not be sentenced separately where one offense is a lesser included of the other.

The Florida Supreme Court’s decisions in Cone v. State, 285 So.2d 12 (Fla.1973), Johnson v. State, 366 So.2d 418 (Fla.1978), White v. State, 377 So.2d 1149 (Fla.1980), and State v. Monroe, 406 So.2d 1115 (Fla.1981), wherein separate sentences were deemed impermissible, were impliedly based on the finding that the use of a firearm during the commission of a robbery was a lesser included offense of the robbery. Those decisions have failed to recognize that the use of a firearm during the commission of a felony and the commission of a felony by the use of a firearm have common and virtually identical elements. Having proven each and every element of the commission of a felony with the use of a firearm, each and every element of the use of a firearm in the commission of a felony will have been satisfied. Consequently, neither is a lesser included offense of the other. Jenrette v. State, 390 So.2d 781 (Fla.3d DCA 1980).

In the latest of these cases, this court, in Monroe v. State, 396 So.2d 241 (Fla.3d DCA 1981), certified to the Supreme Court the propriety of multiple convictions at a time when State v. Pinder, supra, and Mahaun v. State, 377 So.2d 1158 (Fla.1979) [which seemingly would have found multiple convictions to be impermissible] were extant. We neglected to certify the follow-up question as to whether, if the convictions were upheld, multiple sentences for the use of a firearm during the commission of a felony and the commission of a felony by the use of a firearm would be proper. The Supreme Court decided that multiple convictions were proper but that multiple sentences were not, on the assumption flowing from State v. Hegstrom, supra, that one offense was a lesser included of the other. As a result, the Court summarily decided that multiple sentences were improper.

In order to afford the Supreme Court an opportunity to revisit its decisions in Cone, Johnson, White, and Monroe, and in light of State v. Hegstrom, supra, we certify to the Supreme Court of Florida, as a question of great public importance, the question as to whether trial courts are empowered to impose separate punishments for the separate statutory offenses of the use of a firearm during the commission of a felony and the commission of that same felony by the use of a firearm.

Nonetheless, in obedience to the results mandated by State v. Monroe, supra, we reverse the defendant’s separate sentence for the offense of unlawful possession of a firearm during the commission of a robbery. In all other respects, his multiple convictions and sentences for the offense of robbery are affirmed.

Affirmed in part and reversed in part with directions.

      . Aptly described as “mirror image offenses” by Judge Daniel S. Pearson of this court.

      . Clearly, this does not meet the Supreme Court’s definition of a lesser included offense which states that, “[a] less serious offense is included in a more serious one if all of the elements required to be proven to establish the former are also required to be proven, along with more, to establish the latter.” [emphasis supplied] Borges v. State, - So.2d - (Fla.1982) (Case no. 60,381, opinion filed April 8, 1982).


author: WATSON, J.,

text:
    STATE of Louisiana in the Interest of ANY AND UNKNOWN CHILDREN AT NEW BETHANY HOME FOR BOYS.
    No. 82-K-0807.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Rev. Larry D. Rapier, applying for Writs of Certiorari, Prohibition and Mandamus and Stay Order, Parish of DeSoto, No. 40,566.

Granted. The sentence is set aside. The record does not support the trial court’s conclusion that defendant can still comply with the court’s order of March 17, 1982. The case is remanded to the trial court for further proceedings.

WATSON, J.,

concurs and is of the opinion that the trial court should now sentence the defendant to a definite term for contempt.


author: LEMMON, Justice,

text:
    Mrs. Catherine E. HURST, et al. v. Audrey E. MASSEY, et al.
    No. 82-C-0857.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re: Audrey E. Massey, et al., 411 So.2d 622, applying for Writ of Certiorari or Review, to the Court of Appeal, Fourth Circuit, Parish of St. Bernard, No. 12,738.

Denied.

MARCUS, BLANCHE and WATSON, JJ., would grant the writ.

LEMMON, Justice,

concurring.

Since the petition alleges ultimate facts, there are other more appropriate procedural vehicles for determining defendant’s contentions prior to trial.


text:
    STATE of Louisiana v. Patrick L. GROW.
    No. 81-K-2348.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Patrick L. Grow, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of Iberia. No. 32392.

Denied.


text:
    STATE of Louisiana, ex rel. Clarence BRENTLY v. Honorable Nestor L. CURRAULT, Jr., Judge, 24th Judicial District Court, Parish of Jefferson.
    No. 82-KH-0288.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Clarence Brently, applying for writ of mandamus. Jefferson Parish. No. 72-944.

Denied


text:
    STATE of Louisiana, ex rel. Joe Willie FERRELL v. CLERK OF COURT OFFICE, 24TH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON.
    No. 82-KH-0495.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Joe Willie Ferrell, applying for writ of mandamus. Parish of Jefferson. No. 73-1272.

Denied.


text:
    STATE of Louisiana ex rel. Bruce STOVALL v. CLERK OF COURT ORLEANS PARISH CRIMINAL DISTRICT COURT.
    No. 82-KH-0496.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Bruce Stovall, applying for remedial writs. Parish of Orleans. No. 251-456.

Denied.


text:
    STATE of Louisiana ex rel. William WINGERTER v. Edwin LOMBARD, Clerk of Court, Orleans Parish Criminal District.
    No. 82-KH-0711.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re William Wingerter, applying for remedial writs. Parish of Orleans. No. 256-439.

Denied.


text:
    STATE of Louisiana v. Derek Edward DETRAZ.
    No. 82-K-0716.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Cotton Belt Insurance Company, applying for writ of certiorari. St. Tammany Parish. No. 73523/4/5.

Denied.


text:
    STATE of Louisiana ex rel. Terry FORD v. N. Burl CAIN, Warden, Dixon Correctional Institute.
    No. 82-KH-0750.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Terry Ford, applying for writ of certiorari, to the Criminal District Court. Parish of Orleans.

Denied.

DENNIS, J., would transfer the application for consideration as it seeks post-conviction relief.


text:
    Darryl DUNN v. Pullman KELLOGG and the Insurance Company of North America.
    No. 82-C-0850.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Pullman Kellogg and Insurance Company of North America, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 12704.

Denied.


text:
    STATE of Louisiana, ex rel. Billy Wayne SINCLAIR v. Ross MAGGIO, Jr., Warden, Louisiana State Prison.
    No. 82-K-0851.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Billy Wayne Sinclair, applying for writs of certiorari, and review. Parish of East Baton Rouge. No. 54969.

Denied.

BLANCHE, J., recused.


text:
    STATE of Louisiana, ex rel. Dennis Eugene TEMPLE v. Warden Frank C. BLACKBURN.
    No. 82-K-0854.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Dennis Eugene Temple, applying for writ of habeas corpus. Parish of East Baton Rouge. No. 10-78-428.

Denied.


text:
    Luethel Walker, Wife of and Bernard WALKER v. NEW ORLEANS PUBLIC SERVICE, INC. and George Williams.
    No. 82-C-0856.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re New Orleans Public Service, Inc.,' applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 12761.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana v. Sherill A. COSBY.
    No. 82-K-0866.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Sherill A. Cosby, applying for writs of certiorari, prohibition, and mandamus, 6th Judicial District Court. Parish of Madison. No. 36431.

Denied. Adequate remedy by appeal in event of conviction.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Walter L. BAILEY.
    No. 82-K-0867.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Walter L. Bailey, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 81 — 2589.

Denied. Adequate remedy by appeal.


text:
    STATE of Louisiana v. Vernon E. SWEENEY, Jr.
    No. 82-CK-0868.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Vernon E. Sweeney, Jr., applying for remedial writs of certiorari, prohibition and mandamus. Parish of Tangipahoa. No. J-6562.

Writ denied.


text:
    STATE of Louisiana ex rel. Mike LINDELL v. STATE of Louisiana.
    No. 82-KH-0874.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Mike Lindell, applying for remedial writ. Parish of Orleans.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. James Rubin BLAND v. STATE of Louisiana.
    No. 82-KH-0875.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re James Rubin Bland, applying for writ of habeas corpus. Parish of Sabine.

Denied.


text:
    STATE of Louisiana v. Bernard BROOKS.
    No. 82-K-0879.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Bernard Brooks, applying for writs of certiorari, review, mandamus and stay order. St. Tammany Parish. Nos. 96599 and 96600.

Denied on showing made.


text:
    STATE of Louisiana ex rel. Freddie CLEMENTS, Jr. v. Section “F” Judge Dennis WALDRON.
    No. 82-KH-0891.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Freddie Clements, Jr., applying for remedial writs. Parish of Orleans. No. 272-959.

Denied. A bearing has been fixed in the trial court for May 7, at which the district judge will act on relator’s request for bond pending appeal by either granting and fixing bond or by denying bond.


text:
    STATE of Louisiana ex rel. Keith D. ELLIOT v. David R. BUCKLEY, 251 Florida Blvd. # 306, Baton Rouge, Louisiana 70801.
    No. 82-KH-0893.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Keith D. Elliot, applying for remedial writs. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Reginald ADAMS v. STATE of Louisiana.
    No. 82-KH-0911.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Reginald Adams, applying for writs of certiorari, supervisory, habeas corpus, mandamus and prohibition. Parish of Orleans. No. 277-976.

Writ denied.


text:
    STATE of Louisiana ex rel. Basile MILLER, Waldren A. Fourcard, and David Shelton Am-Vets Post 60 v. Honorable Arthur J. PLANCHARD, Judge.
    No. 82-K-0917.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Basile Miller, Waldren A. Fourcard, and David Shelton Am-Vets Post 60, applying for writs of certiorari, prohibition and mandamus and stay order. Parish of Calca-sieu.

Denied.

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


text:
    Rudolph F. TADDONIO, Jr. v. Sherdeane KINNEY-TADDONIO.
    No. 82-C-0968.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Rudolph F. Taddonio, Jr., applying for supervisory writs. Parish of Orleans. No. 80-7502.

Denied. Adequate remedy by expedited appeal.


text:
    STATE of Louisiana ex rel. Albert DAMOND v. STATE of Louisiana.
    No. 81-KH-1956.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Albert Damond, applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 237-115.

Granted. The trial court is ordered to comply with this Court’s ruling of April 17, 1981, (# 81-KH-0691) by May 7, 1982.


text:
    Joseph JOHNSON, Jr. v. FIREMAN’S FUND INSURANCE CO., et al.
    No. 82-C-0778.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Continental Insurance Companies, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 411 So.2d 538.

Granted.


text:
    Linda B. DODD v. NICOLON CORPORATION, et al.
    No. 82-C-0790.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Linda B. Dodd, applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 409 So.2d 1236.

Granted.


text:
    Ethel Tatman McGOVERN v. Wilson Joseph TATMAN, Sr.
    No. 82-C-0970.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Wilson Joseph Tatman, Sr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 410 So.2d 779.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. James Alton STOKES.
    No. 81-K-2803.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re James Alton Stokes, applying for writ of review. Parish of Terrebonne. No. 79857.

Denied.


text:
    Randy W. SMITH, Individually and as Natural Tutor of the Minor Children, Angela Smith and Randall D. Smith, Janice G. Smith and Eddie L. Smith, Individually and As Natural Tutor of the Minor Children, Kevin L. Smith and Lorie Ann Smith v. STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Irris F. D. Austin.
    No. 82-C-0781.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Louisiana Department of Transportation and Development, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 412 So.2d 685.

Denied.

MARCUS, BLANCHE and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Michael BOURGEOIS.
    No. 82-K-0793.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Michael Bourgeois, applying for writs of certiorari, prohibition and mandamus. Parish of St. Charles, 29th Judicial District Court. No. 77 — 229.

Denied.

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


text:
    STATE of Louisiana v. Mark A. BORDELON.
    No. 82-K-0811.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Mark A. Bordelon, applying for remedial writs. Parish of Avoyelles. No. 43622.

Denied.

BLANCHE and LEMMON, JJ., would grant the writ.


text:
    Albert BELL v. MARRIOTT HOTELS, INC.
    No. 82-C-0837.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Albert Bell, applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit, Civil District Court. Parish of Orleans. 411 So.2d 687.

Denied.


text:
    Joseph E. CAIN v. SCHWEGMANN GIANT SUPERMARKETS, INC.
    No. 82-C-0839.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Schwegmann Giant Supermarkets, Inc., applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 410 So.2d 860.

Denied.

MARCUS, J., would grant the writ.


text:
    Michael, A. BOLLACKER and Ellen Dollacker, His Wife v. James A. SCHIMEK, and United Service Automobile Association.
    No. 82-C-0848.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re United Service Automobile Association, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 411 So.2d 643.

Denied.


text:
    Kenneth J. BROUILLETTE v. Lawrence WARD and United Services Automobile Association.
    No. 82-C-0849.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Lawrence Ward and United Services Automobile Association, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 412 So.2d 138.

Writ denied.


text:
    Charles COCO, III v. RICHLAND GENERAL CONTRACTORS, INC. et al.
    No. 82-C-0853.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Charles Coco, III, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 411 So.2d 1260.

Denied.


text:
    Charles A. DORSEY, et al. v. IBERIA PARISH POLICE JURY, et al.
    No. 82-C-0873.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Charles A. Dorsey, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Iberia. 411 So.2d 1249.

Denied.


text:
    STATE of Louisiana v. Corbie Lynn WILLIAMS.
    No. 82-K-0886.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Corbie Lynn Williams, applying for writs of certiorari, mandamus, prohibition and for a stay order. Parish of Vernon. No. 33421.

Denied.


text:
    William ROBINSON v. ESTATE OF Donald W. HAYNES, et al. and Six Other Consolidated Cases.
    No. 82-C-1007.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re State of Louisiana, Department of Transportation and Development, applying for writs of certiorari, prohibition, and mandamus and supervisory writs and stay order. Parish of Tangipahoa. Nos. 59610, 59972, 60011, 61649, 69650, 69651 and 69652.

Denied.


text:
    STATE of Louisiana v. Keith BROWN.
    No. 82-K-1032.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Keith Brown, applying for writ of certiorari and remedial relief. Parish of Orleans. No. 284 — 107.

Denied.


text:
    Brownie Reed HEBERT v. GULF STATES UTILITIES, et al.
    No. 81-C-0544.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Brownie Reed Hebert, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 395 So.2d 832.

Granted.


text:
    Brownie Reed HEBERT v. GULF STATES UTILITIES et al.
    No. 81-C-0557.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Fidelity & Casualty Co. of New York, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 395 So.2d 832.

Granted.


text:
    STATE of Louisiana ex rel. Evans BROWN v. STATE of Louisiana.
    No. 81-KH-3145.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Evans Brown, applying for remedial writs. Parish of Orleans. No. 253-368.

Denied.


text:
    STATE of Louisiana ex rel. Evans BROWN v. STATE of Louisiana.
    No. 82-KH-0252.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Evans Brown, applying for writs of certiorari, and prohibition. Parish of Orleans. No. 253-368.

Denied.


text:
    STATE of Louisiana v. ENTERTAINMENT SPECIALISTS, INC., d/b/a Glenwood Theater.
    No. 82-K-0722.
    Supreme Court of Louisiana.
    April 30, 1982.
   In re Entertainment Specialists, Inc., d/b/a Glenwood Theater, applying for remedial writ of certiorari (review). Parish of Caddo. No. 120605.

Denied.


author: LOTTINGER, Judge.

text:
    SUCCESSION OF Eros Crosby CRAIN, Jr.
    No. 14745.
    Court of Appeal of Louisiana, First Circuit.
    March 22, 1982.
    Rehearing Denied May 25, 1982.
    Jacqueline Carr, Slidell, for Sharon Haas Crain, appellant.
    Robert Anderson, Covington, for Rebecca Crain Christ and Patricia .Crain McDonald, appellees.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

Appellant, Sharon Haas Crain, appeals the judgment of the trial court removing her as the executrix of the instant succession.

Eros Crosby Crain died testate on August 13, 1977. In his last will and testament the decedent designated his wife, Sharon Haas Crain, as his testamentary executrix. Letters testamentary were issued on March 7, 1978.

Between October 18, 1978, and June 19, 1980, Mrs. Crain, as executrix, requested and obtained court authority to execute acts of corrections, grant a mineral lease, sell an airplane at private sale, and sell immovable property at private sale.

On March 22, 1979, Rebecca G. Crain, a daughter of the decedent from a prior marriage, filed pleadings seeking to remove appellant as executrix for the failure to file an annual account and an inventory of the succession. A hearing date was fixed, but was continued and ultimately not reset.

The record consists entirely of pleadings and exhibits. If there was ever any hearing held on the rule to remove executrix, same was not recorded for transcription. However, it is abundantly clear from the record that a certain amount of conflict and animosity exists between the appellant and the two daughters of the decedent’s previous marriage. Appellant was apparently most reluctant to file an accounting and did not file a sworn descriptive list of assets until March 27, 1981.

On February 19, 1981, various pleadings were filed by appellant’s attorney at that time, indicating that Mrs. Crain no longer wished to serve as executrix, citing health and compelling business interests as her reasons. The attorney then withdrew as counsel of record and on February 20, 1981, Mrs. Crain in proper person filed a statement indicating that an executrix was not needed. Subsequently on March 9, 1981, Rebecca Crain Christ (the former Rebecca B. Crain) petitioned the trial court to be appointed provisional administratrix inasmuch as the appellant had resigned as executrix. The trial court ex parte appointed Rebecca Crain Christ as provisional admin-istratrix and by separate judgment the same day ordered the removal of appellant as executrix. The appellant apparently had a change of heart, or did not wish to see her stepdaughter as provisional administratrix, because she now appeals the judgment ordering her removal as executrix.

Appellant questions whether she can resign if there is not sufficient cause shown in a contradictory hearing. Appellant has cited to this court the case of Succession of Broadway, 114 La. 492, 38 So. 430 (1905). In Broadway, the administrator submitted his resignation on the basis of pressing personal business and ill health. He was allowed to resign. When a son of the decedent petitioned to be appointed administrator the previous administrator filed a petition withdrawing his resignation, stating that his resignation was based solely on the wishes of the heirs, and that certain creditors now objected to his resignation. The Supreme Court concluded that no statutory authority existed authorizing a resignation, that the illness in question was not so serious as to prevent the administrator from performing his job, and that as such the withdrawal of the resignation should have been allowed. We note this case has never been cited in any other case in the state; however, neither has it been overruled.

We have not been cited any statutory authority that allows a succession representative to resign. Interestingly, La.C. C.P. art. 4233 allows a tutor other than a parent to resign under certain circumstances, but a similar provision cannot be found under the succession articles of the Code of Civil Procedure. One must logically reach the conclusion that since specific authority to resign is found under the tutorship articles but none is found under the succession articles that it was never the intention of the redactors of the Code of Civil Procedure to allow a resignation by a succession representative.

Inasmuch as we find that the trial court was in error in accepting the resignation of Mrs. Crain as the executrix, we remand this matter to the trial court with the admonition to the trial judge and counsel for both sides that the rule to remove Mrs. Crain as executrix and any other pending motions should be resolved as quickly as possible.

Therefore, for the above and foregoing reasons, the judgment of the trial court accepting the resignation of Sharon Haas Crain as executrix of the Succession of Eros Crosby Grain is reversed and the cause remanded for further proceedings consistent with the views expressed hereinabove.

REVERSED AND REMANDED.


author: SCHOTT, Judge.

text:
    Donald J. PALMISANO, et al. v. LAKE FOREST BOULEVARD MEDICAL DEVELOPMENT, a Partnership in Contmendam, et al. In Re Donald J. PALMISANO, et al.
    No. 13181.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 12, 1982.
    Alvin A. LeBlanc, Jr., and Jerome M. Volk, Jr., Kenner, for relator.
    Russ M. Herman, Donald Meyer, Frank Rabito, Leo W. Rousselle, New Orleans, for respondents.
   SCHOTT, Judge.

This is before us on an application for Supervisory Writs by Donald J. Palmisano, et al., plaintiffs, as limited partners of defendant, Lake Forest Boulevard Medical Development, a partnership in Commen-dam. They brought their suit against the partnership, the general partner, John L. Mascaro, and a remaining limited partner to dissolve the partnership and to set aside an agreement between the general partner and a third-party listing for sale real estate owned by the partnership. Contemporaneous with the filing of the suit plaintiff filed a notice of its pending action (lis pendens) in the mortgage office pursuant to C.C.P. Arts. 3751-3753. Defendants obtained a peremptory writ of mandamus ordering the notice of lis pendens cancelled, and plaintiffs appealed suspensively. The trial court fixed the suspensive appeal bond at $975,-000 based on evidence that the general partner, defendant, had entered into an ex-ecutory contract to sell half of the property for $650,000, and for the expressed reason that the bond should be one and one-half times this amount. This application questions whether the amount of the suspensive appeal bond is excessive.

C.C.P. Art. 2124 provides in pertinent part as follows:

“. . . . The security to be furnished for a suspensive appeal is determined in accordance with the following rules:
(1) When the judgment is for a sum of money, the amount of the security shall exceed by one-half the amount of the judgment, including the interest allowed by the judgment to the date the security is furnished, exclusive of costs.”
(3) In all other cases, the security shall be fixed by the trial court at an amount sufficient to assure the satisfaction of the judgment, together with damages for the delay resulting from the suspension of the execution.”

Since the judgment appealed from is not for a sum of money Art. 2124(l)'s requirement for a bond of one and one-half times the amount of the judgment is inapplicable. Johnston v. National Sand & Gravel Co., 170 La. 423, 127 So. 889 (1930), interpreting source articles 574 — 577 of the Code of Practice. The amount of the bond is governed by Art. 2124(3) which confers discretion on the trial court to fix an amount sufficient to secure the judgment’s satisfaction and to indemnify the appellee against damages he may sustain from the delay in executing his judgment.

In Ingolia v. Pique, 139 So.2d 34 (La.App. 4th Cir. 1962), this court rejected the notion that the discretion conferred on the trial judge under Art. 2124(3) was something beyond the traditional concept of discretion as “just plain, common sense, rational and reasonable application of judgment and experience to a given situation.” In other words, the trial judge may not be unreasonable or arbitrary in fixing the amount of the bond and his judgment will be modified on appeal if he abuses his discretion.

The Ingolia case is also helpful in its holding that the value of the land involved in a possessory action played no part in determining the amount of the suspensive appeal bond for an interlocutory judgment relating to oil royalties being paid on the land.

In the instant case, the suspension of the judgment cancelling the lis pendens prevents the sale of the land for $650,000 during the appeal, and the question is what damages will defendants sustain as a result. The land is vacant and producing no income. Its conversion into cash would provide defendants with the opportunity to earn interest on the money. Interest is precisely the damages resulting from the loss of the use of money. C.C. Art. 1935.

We have concluded that one year from date would be ample time for the appeal to become final in this case, and the rate of twelve percent interest established by C.C. Art. 1938 is appropriate. Thus, the suspen-sive appeal bond should properly be fixed at one and one-half times $78,000 (12% X $650,000) or $117,000 plus $3,000 for costs or $120,000.

Accordingly, we issue a peremptory writ amending the order of the trial court dated March 22, 1982, and conditioning plaintiff’s suspensive appeal upon their furnishing bond in the amount of $120,000.00.


author: COLE, Judge. LOTTINGER, Judge,

text:
    SCHWEGMANN GIANT SUPER MARKETS and Delchamps, Inc. v. LOUISIANA DAIRY STABILIZATION BOARD.
    No. 14472.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied May 25, 1982.
    John M. Landis, Michael R. Fontham and Walter W. Christy, New Orleans, for plaintiffs-appellants Schwegmann Giant Super Markets & Delchamps, Inc.
    Winston Riddick and Robert S. Leake, Baton Rouge, for defendant-appellee Louisiana Dairy Stabilization Bd.
    Before COVINGTON, LOTTINGER, COLE, WATKINS and CHIASSON, JJ.
   COLE, Judge.

The main issue presented is whether or not La.R.S. 40:931.13 D (also referred to as the amendment to rule 12.9 of the Dairy Stabilization Board) is unconstitutional as a restraint on interstate commerce. After carefully considering the matter we conclude the statute, as applied, is unconstitutional. We therefore reverse the decision of the trial court on that issue.

In order to understand fully this controversy it is necessary that we supply the following background information. The purpose of the Dairy Stabilization Board (herein referred to as the Dairy Board) is set forth in La.R.S. 40:931.8 B as follows:

“The board is hereby empowered and directed to prevent persons, partnerships and corporations from using unfair methods of competition, unfair or deceptive acts or practices and disruptive trade practices in the sale of milk and milk products, and the board, after notice and hearing, shall promulgate rules and regulations implementing the policy and purposes of this Subpart. . . . ”

Under the terms of 931.13 B the Dairy Board is to assess processors licensed by it three cents per hundredweight on all milk equivalents used in the processing of dairy products. The purpose of the assessment is to “obtain funds for the administration and enforcement of the regulations issued by the board.... ”

Plaintiffs are the owners and operators of several supermarkets in the state of Louisiana. Both buy milk products from Dairy Fresh Corporation of Mississippi and Schwegmann also purchases frozen dessert products from Dairy Fresh Corporation of Alabama. These products are sold and delivered to the plaintiffs outside the state of Louisiana and are then sold at retail in plaintiffs’ Louisiana stores.

The legal disputes between Schwegmann and the Louisiana Milk Commission (the predecessor to the Dairy Board) began in 1973 when the federal district court held the Milk Commission could not control the prices paid for dairy products purchased out of state. Schwegmann Bros. Giant Super Markets v. Louisiana Milk Com’n, 365 F.Supp. 1144 (M.D.La.1973), aff’d 416 U.S. 922, 94 S.Ct. 1920, 40 L.Ed.2d 279 (1974).

Another dispute arose when the Louisiana Department of Health and Human Resources refused to issue a permit for the sale of Dairy Fresh products in Louisiana. The state court ultimately ordered DHHR to issue the permits. Schwegmann Bros. Giant Super Markets v. Edwards, 323 So.2d 810 (La.App. 4th Cir. 1975), writ denied, 326 So.2d 503 (1976).

The next dispute (and a matter closely related to the present case) was whether or not the Dairy Board had the power to assess the out-of-state processors under La. R.S. 40:931.13 B. The Dairy Board filed suit seeking declaratory judgment decreeing the assessment and attempts by the Board to license the out-of-state processors were valid exercises of the board’s power. The federal district court ruled against the Dairy Board and stated the assessments were violative of the Commerce Clause of the United States Constitution. The court noted the sale of the products took place outside of Louisiana and the fact that the products were ultimately transported into Louisiana for resale did not give the Dairy Board the right to assess the out-of-state processors. La. Dairy Stabilization Bd. v. Dairy Fresh Corp., 476 F.Supp. 416 (M.D.La.1979), aff’d 631 F.2d 67 (5th Cir. 1980). This decision was very recently affirmed by the United States Supreme Court.

The opinion in the case just cited was rendered on September 20, 1979. On July 9, 1979 (after trial), the Dairy Board issued a notice of intent to amend its rule 12.9 by adding the following provision:

“In the event any processor refuses or fails to obtain a license or refuses or fails to pay this assessment, the Board may, collect same from the licensed buyer of said dairy products as the Agent for said processor or as a user of said products.”

The rule was formally adopted by the Dairy Board on August 28, 1979 and was later incorporated into the revised statutes (as La.R.S. 40:931.13 D) in the 1980 regular session of the legislature. The words of the amended statute read exactly as the words of the rule, the only change being that the “Commissioner,” rather than the “Board” was given the power to collect the assessment. The statute became effective on September 12, 1980.

The plaintiffs filed suit against the Dairy Board, seeking a declaratory judgment decreeing this rule and statute to be unconstitutional as a violation of the Commerce Clause. Plaintiffs further sought injunc-tive relief requiring the Dairy Board to issue all retail licenses applied for by Del-champs which were withheld by the Board due to the failure to pay the assessments. The Board filed a reconventional demand praying the rule be upheld, Delchamps be enjoined from selling dairy products, and both Delchamps and Schwegmann be ordered to pay assessments to the Board in accordance with the rule.

The trial court held in favor of the Dairy Board, finding the rule to be constitutional. In its written reasons the court acknowledged it was “obvious that the amendment to the Rule was adopted to evade the impact of the decision in Louisiana Dairy Stabilization Board v. Dairy Fresh Corporation and Dairy Fresh Ice Cream Corporation,” but found the present situation involved different circumstances. The court noted the assessment was not on the out-of-state processors but was on the “ultimate use of the product in the State of Louisiana.” It observed the rule (and amendment) made no reference to out-of-state processors and would presumably be applied to any retailer buying from an in-state processor who failed to pay the assessment.

The trial court ordered the Dairy Board to grant Delchamps all licenses applied for prior to the effective date of La.R.S. 40:931.13 D (September 12, 1980). It reasoned before that time the Board had no statutory authority for collecting the assessment from the retailer and therefore had no right to withhold the licenses because of the processor’s refusal to pay. Further, the court enjoined both plaintiffs from selling milk products until all assessments from September 12, 1980, were paid. From this judgment the plaintiffs appealed suspensively and the defendant appealed devolutively.

We agree with plaintiffs’ argument that this law does serve as a discriminatory burden upon interstate commerce. We concede that on its face the law seems to apply equally to retailers who purchase from instate processors and retailers who purchase from out-of-state processors. But an examination of the record reveals there was no evidence put forth showing an attempt by the Dairy Board to ever collect this assessment from a retailer who purchases from an in-state processor, and an examination of the law as a whole indicates it is very unlikely there will ever be any attempt to do so.

La.R.S. 40:931.10 A states it shall be unlawful for a processor to buy bulk milk without being licensed as a processor by the commissioner, if that processor operates a plant located in this state. Subsection B states it is unlawful for an in-state processor to sell dairy products without being licensed as a processor. Subsection G specifies any licenses issued may be suspended by the Board for failure to comply with “this Subpart or with the regulations issued by the board.” The matter of assessments of processors is then set forth in 931.13. Reading these statutes as a whole it is clear the Dairy Board has the power to revoke or suspend the license of any in-state processor who fails to pay the assessment and it would be illegal for that processor to continue to sell dairy products without such license. Although 931.13 D gives the Board the option of collecting the assessment from the retailer, common sense dictates the more logical and convenient course of action would be for the Board to suspend or revoke the license of the processor who refused to pay. In any case involving an in-state processor it is very doubtful collection at the retail level would ever be pursued. This highly inconvenient and burdensome method is likely to be employed only in those situations where the Board is unable to collect from the processor, i.e., when the processor is located out of the state.

The gist of plaintiffs’ argument is this statute creates a burden on the retailer dealing with an out-of-state processor that is not borne by the retailer dealing with an in-state processor. The result is that the retailer is discouraged from dealing with the out-of-state entity. We must agree that as the statute is presently applied, the free flow of interstate commerce is discrim-inatorily burdened. A law which burdens the flow of interstate commerce by restricting access of out-of-state suppliers to local markets is invalid. La. Dairy Stabilization Bd. v. Dairy Fresh Corp., supra. The retailers in the state who must bear the assessment are those who buy from out-of-state processors. The plaintiffs are apparently the only two such retailers. Aside from the monetary burden of actually paying the assessment, the retailer undoubtedly bears certain administrative burdens such as providing the Board with various records, scheduling appointments to allow the Board to examine the books, assigning certain personnel to tend to this task, etc. None of these chores need be performed by the retailer down the street who deals with an in-state processor. The long term effect of the current application of subsection D is that any retailer would be discouraged from engaging in interstate commerce because of the added burden involved. Thus, the statute results in local enterprises being favored at the expense of out-of-state businesses. This is certainly the result the commerce clause was designed to prevent. See, Boston Stock Exchange v. State Tax Commission, 429 U.S. 318, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977).

There is another aspect of this case which mitigates against the constitutionality of La.R.S. 40:931.13 D as applied against only those retailers who buy from out-of-state processors. The federal court held clearly the Dairy Board has no right to assess the out of ■ state processor. Yet this amendment, as admitted by the trial court, clearly circumvents that ruling by simply providing a different collection method. (It allows the Board to collect from the retailer rather than the processor.) Since the out-of-state processor is not subject to assessment by the Dairy Board, incongruity is apparent in basing the retailer’s liability on the out-of-state processor’s failure to pay this (unenforceable) assessment.

We would have no quarrel with this amendment if it were to apply across the board to all retailers. But it only applies to retailers who deal with processors who have not paid the assessment, which in all likelihood will always be out-of-state processors. We find it insufficient that the literal terms of the amendment would allow for the collection from a retailer dealing with an instate processor, for reasons discussed above. It is clear to us that the purpose of the rule is to avoid the prohibition set forth by the federal court in Dairy Stabilization Board, supra.

Admittedly, the Dairy Board can assess all in-state retailers but they cannot base the assessment on the failure of an out-of-state processor, over whom they have no power to assess, to pay the same assessment. This result necessarily follows so long as the Dairy Board can enforce payment against the in-state processor thereby eliminating as a practical matter any assessment against their retailers. The present application of the law leaves a discriminatory difference between in-state retailers depending upon whether or not they buy their dairy products from in-state processors or from out-of-state processors. If the Dairy Board chooses to assess directly all retailers in Louisiana without regard to the source of their dairy products, there would be no discrimination. The practical result here, since in-state processors would pay the assessment under penalty of losing their licenses, is that only those retailers who buy from out-of-state processors will have to pay the assessment. It is thereby discriminatory as among retailers. The constitutional focus is on the retailers. A discriminatory analysis under the Commerce Clause must consider similarly situated businesses. See, Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 83 S.Ct. 1201, 10 L.Ed.2d 202 (1963); Best & Co. v. Maxwell, 311 U.S. 454, 61 S.Ct. 334, 85 L.Ed. 275 (1940).

We find untenable the argument of the Dairy Board that the disputed rule and statute are rendered valid because they make no mention of locality of processors and because they apply equally to retailers regardless of whether they purchase from in-state or from out-of-state processors. This argument overlooks the question of whether the provisions have been applied in a non-discriminatory manner. It is apparent from the record they have been applied in a discriminatory fashion against the plaintiffs. Indeed, the Dairy Board does not assert the regulation has ever been applied to a retailer who buys dairy products from within the state. We agree with plaintiffs that so long as the Dairy Board has the power to collect assessments directly from in-state processors the regulations will never be so applied.

We find the assessment has been selectively applied to plaintiffs and such selective application constitutes a discriminatory burden upon interstate commerce in violation of the Commerce Clause of the United States Constitution. Accordingly, we declare and decree La.R.S. 40:931.13 D and the companion amendment to Rule 12.9 of the Dairy Stabilization Board, as applied, to be unconstitutional.

The judgment of the trial court is reversed insofar as it upheld the validity of Rule 12.9 in its application to plaintiffs and insofar as it enjoined and prohibited plaintiffs from selling dairy products until all assessments after September 12, 1980, have been paid. The judgment in all other respects is affirmed. All costs permitted by law are assessed against the defendant.

AFFIRMED IN PART; REVERSED IN PART; and RENDERED.

LOTTINGER, J., concurs and assigns written reasons.

COVINGTON, J., dissents.

CHIASSON, J., concurs for reasons as-, signed by LOTTINGER, J.

LOTTINGER, Judge,

concurring.

I agree with the result reached but only to the extent that the plaintiffs are not required to pay the assessment.

There is no need to determine the constitutionality of La.R.S. 40:931.13 D and the companion amendment to Rule 12.9 of the Dairy Stabilization Board. Courts always avoid determining the constitutionality of a statute or rule when the dispute can be otherwise resolved.

La.R.S. 40:931.13 provides:

“A. In order to obtain funds for the administration and enforcement. of the regulations and production stabilization plans issued by him pursuant to this Sub-part and for the administration and enforcement of that portion of this Subpart for which he is made responsible, the commissioner shall, commencing on August 1, 1974, assess each processor licensed by the commissioner pursuant to this Subpart one and one-half cents per hundredweight on all milk purchased under any production stabilization plan and shall assess each dairy farmer one and one-half cents per hundredweight on all milk sold to a processor regulated by any production stabilization plan.
“B. In order to obtain funds for the administration and enforcement of the regulations issued by the board pursuant to this Subpart and for the administration and enforcement of that portion of this Subpart for which the board is made responsible, the board shall, commencing on October 1, 1976, assess each processor licensed by it three cents per hundredweight on all milk equivalents used in the processing of dairy products.
“C. All assessments authorized in this Section shall be payable monthly on or before the last day of the month following the month during which they accrue.
“D. In the event any processor refuses or fails to obtain a license or refuses or fails to pay this assessment, the commissioner may collect same from the licensed buyer of said dairy products as the agent for said processors or as a user of said products.”

This statute provides for the levying of an assessment against “each processor licensed by the commissioner” based on a hundredweight on all milk purchased. The section in question R.S. 40:931.13 D simply provides that when “any processor refuses or fails to obtain a license or refuses or fails to pay this assessment,” then the commissioner can collect the assessment from the licensed buyer. It appears clear that the assessment is only levied against a licensed processor, and the assessment is only collected from the licensed buyer when the processor “refuses or fails to obtain a license” or if he is licensed “refuses or fails to pay” the assessment.

However, in Louisiana Dairy Stabilization Board v. Dairy Fresh Corporation, 631 F.2d 67 (C.A. 5th Cir. 1980) the U. S. Fifth Circuit affirmed a district court decision declaring unconstitutional as violative of the Commerce Clause of the federal constitution the Louisiana requirements that out-of-state processors obtain licenses. The court pointed out “the invalidation had the effect of relieving the out-of-state defendants [processors] of any obligation to pay assessments . . . . ”

Since the out-of-state processors have no legal obligation to obtain a Louisiana license or pay the assessment, then as to them paragraph D of R.S. 40:931.13 never becomes operative. I am of the opinion that the legislature could have never intended to collect an assessment from a Louisiana licensed buyer when same was not owed by the processor.

Therefore, for the above and foregoing reasons, I respectfully concur but only to the extent that the plaintiffs are not required to pay the assessments.

      . Art. 1, § 8, cl. 3.

      . We note there are obvious advantages (for the Board) in dealing with the assessments at the processing level, where there are relatively few businesses involved, than at the retail level, where there are numerous stores from which to collect the assessments.


author: SAVOIE, Judge.

text:
    Olivia D. DENT v. DEPARTMENT OF CORRECTIONS, LOUISIANA CORRECTIONAL INSTITUTE FOR WOMEN.
    No. 14625.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied May 25, 1982.
    Donna W. Lee, Luse & Lee, Baton Rouge, for appellant.
    Annette R. Seng, Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for appellee.
    Laura Denson Holmes, Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for George Hamner, Director of the Dept, of State Civil Service.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This is an appeal from a judgment of the State Civil Service Commission upholding the firing of the appellant, Olivia Dent, from her position as a prison guard. We affirm the judgment.

Prior to September 7, 1979, Ms. Dent was a classified employee under the Civil Service Rules and Regulations, a “Correctional Security Officer II” working at the Louisiana Correctional Institute for Women. On that day, she was given a formal termination letter over the signature of C, Paul Phelps, Secretary of Corrections. The letter stated that her dismissal was to be effective as of the close of business on September 11, 1979. The stated reason for this action was that she had been discovered asleep at her post on August 25, 1979.

Ms. Dent obtained counsel and timely appealed her dismissal, maintaining that it was “without factual basis, discriminatory, and contrary to Civil Service Rules.”

By letter of November 2, 1979, a month after Ms. Dent’s appeal had been filed, a “Corrected Notice” was served upon her, advising her that she was being dismissed effective November 10, 1979, for having been asleep at her post on August 26th.

It appears that there was only one incident in which the appellant was discovered sleeping. The initial termination letter mistook the date of that incident and so, when the error was discovered, the Department of Corrections chose to treat the earlier notice as completely invalid, pay Ms. Dent’s salary for the intervening period (she had not worked for the Department since her suspension on August 28th) and issue a new termination letter referring to the correct date on which the sleeping incident occurred.

No appeal was filed in response to the new termination letter, Ms. Dent’s attorney apparently relying on the advice of a staff member at the Civil Service Commission that the appeal already filed would suffice. The Department, however, argued before the Commission that this appeal should be dismissed as moot, since Ms. Dent had been technically reinstated to her position, then fired again, and had taken no appeal from the second firing.

On remarkably similar facts in Washington v. Confederate Memorial Medical Center, 147 So.2d 923 (La.App. 1st Cir. 1962) this court clearly expressed its opposition to the use of misleading procedural gambits to deny a civil service employee’s right of appeal:

“It was certainly misleading and confusing to employee to be confronted with two letters of dismissal, each containing the same charges ... We feel that under these circumstances that the appellant was denied her right of appeal”. (At page 925)

We congratulate the Civil Service Commission for its faithful adherence to the principal of the Washington case in hearing and deciding this case on its merits.

A public hearing was held in this case in Baton Rouge on December 18, 1980, before a referee appointed by the Commission. At that hearing there was testimony from Ms. Dent’s superior and two fellow employees (who had been summoned by the superior for the express purpose of witnessing Ms. Dent sleeping) that in the early morning of the day mentioned, she was observed with her head in her arms, unmoving, at her post in the women’s dormitory of the prison. All three testified that Ms. Dent was unaware of their presence in the room until Ms. Dent was touched by the supervisor.

Ms. Dent’s only defense was her denial that she was asleep. This was corroborated by another guard, who also was charged with being asleep. Ms. Dent did not deny having her head in her arms or being unaware of the presence of the others when they first entered the room with her.

No evidence was offered that her firing was a discriminatory application of discipline.

The Commission’s findings of fact were, as follows:

1. Appellant and Ms. Lesia Frison worked the 11:00 P.M. to 7:00 A.M. shift August 25-26, 1979, on Dorm Control. Appellant’s duties included keeping records, opening doors, and watching the halls of the girls’ dorm from the control area. Ms. Dorothy Bateman was the shift supervisor on that night.
2. The control area is a semi-circular desk. Appellant was seated on an adjustable-height stool behind the control area.
3. At approximately 2:00 or 3:00 A. M., Ms. Bateman, as part of her rounds, checked the Dorm Control area and spoke with appellant and Ms. Frison. Ms. Bateman stated that another employee, Ms. Hutchinson, had brought fish for all the employees. Ms. Bate-man said she would heat some fish for appellant and Ms. Frison and bring it to them.
4. At approximately 4:00 A. M., Ms. Bateman returned to the Dorm control area and observed appellant and Ms. Frison apparently asleep. After observing the women for three or four minutes, Ms. Bateman left to get some people to witness the sleeping. By their own testimony, neither appellant nor Ms. Frison was aware that Ms. Bateman had been in the area looking at them.
5. Ms. Bateman went and got Ms. Wright from the front desk and Ms. Hutchinson from the infirmary, and asked them both to come to the Dorm Control area to witness the sleeping women. When Ms. Wright arrived, appellant appeared to her to be sleeping. Appellant was seated on the stool with her head on her arms and eyes closed. Ms. Wright observed her for approximately 45 seconds, during which time appellant made no movement and did not open her eyes. Ms. Wright watched as Ms. Bateman approached appellant and called her name twice, saying “wake-up, wake-up”. Ms. Wright then turned away and did not observe whether or not Ms. Bateman shook appellant. Ms. Hutchinson arrived a couple minutes after Ms. Wright, and observed Ms. Bateman shaking appellant by the shoulder and telling her to wake-up.

Appellant lists four specifications of error:

1. The refusal of the Commission to give Ms. Dent or her witness “any credit”.
2. The conclusion of the Commission that Ms. Dent was asleep.
3. The conclusion that being asleep was sufficient cause for her firing.
4. The “fairness and clearness” of the statement of the misconduct causing her dismissal.

We find the applicable law to be, as follows:

“(1) The standards of appellate review of findings of fact in Civil Service Commission cases necessarily must be the same as those which exist with regard to cases arising in the trial courts. The reviewing court should not disturb the factual findings of the trier of fact in the absence of manifest error. Arnold v. New Orleans Police Department, 383 So.2d 810 (La.App. 4 Cir. 1980), writ denied, 385 So.2d 274 (La.1980); Herbert v. Department of Police, 362 So.2d 1190 (La.App. 4 Cir. 1978).
(2) While a person who has gained permanent status in the classified state service may be subjected to disciplinary action, such as dismissal, if the conduct complained of by the appointing authority impairs the efficiency of the public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged, (Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962), the burden of proving that the action taken against the disciplined employee was proper and warranted falls on the appointing authority. Shelfo v. LHHRA, Pinecrest State School, 361 So.2d 1268 (La.App. 1 Cir. 1978), writ denied, 364 So.2d 122 (La.1978); Stiles v. Department of Public Safety, Drivers’ License Division, 361 So.2d 267 (La.App. 1 Cir. 1978); see also La.Const.1974, Art. 10 & 8.” Dept. of Public Safety v. Rigby, 401 So.2d 1017 (La.App. 1st Cir. 1981) at 1018.

Reviewing the fact findings of the Civil Service Commission for manifest error, we find the conclusion that Ms. Dent was asleep is amply supported by credible evidence. Even if Ms. Dent had not been asleep, she was so inattentive as to be unaware of the entry of her supervisor into the room. Her job was to maintain an alert surveillance of prisoner movements and her failure to do so could seriously have endangered her life, the lives of her fellow workers, and the lives of prisoners.

Her inattentiveness was ample cause for dismissal.

The letter of termination clearly stated that the cause was the sleeping incident on the date mentioned. It could not have been described any more clearly or fairly.

The decision of the Commission is upheld.

Appellant is to pay all costs.

AFFIRMED.