author: FRANK D. UPCHURCH, Jr., Judge.

text:
    James W. HOOPER and Gertrude K. Hooper, Individually and d/b/a James W. Hooper & Gertrude K. Hooper Partnership, and James A. Hooper, Managing Trustee, Appellants/Cross-Appellees, v. William E. BRENEMAN, Jr., Clarence Jones, Hugh Mockler, Fred Leiser, William Barnett, Helen Chandler and Marie Gillen, Individually, and as General Partnership, d/b/a Brevard Weiner Franchise # 4, Appellees/Cross-Appellants.
    No. 81-1186.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1982.

      Charles Holcomb of Holcomb, Theriac & Steinberg, Merritt Island, for appellants.
    Joseph S. Gillin, Jr. of Storms, Krasny, Normile, Dettmer & Gillin, P. A., Melbourne, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants appeal from a final judgment whereby appellees were permitted to recover $20,000 which they had deposited with appellants as part of a land sales contract.

Appellee Breneman on behalf of himself and the other appellees had filed suit against appellants seeking specific performance of the contract or, in the alternative, damages for the alleged breach of their agreement to sell. Appellees cross appeal the portion of the final judgment denying specific performance. The contract between appellants and Breneman was executed on April 17, 1979, and provided that the purchase price of $150,000 was to be paid by Breneman as follows: $20,000 deposited upon execution of the contract, $10,-000 by April 27, 1979, and the remaining $120,000 due upon closing on May 2, 1979. Breneman also had the right to extend the closing date from month to month for a period of twelve months, provided that he pay $1,125 for each month’s extension and a pro rata share of the real estate taxes.

The contract further provided that:

[Sjhould [Breneman] fail to pay such extension fees and taxes monthly during any extension time of this contract he shall forfeit all monies paid to [the Hoop-ers] under this Contract and this Contract shall be null and void.

Breneman failed to make the $10,000 payment due on April 27, 1979, or the monthly extension fee payable on July 2, 1979. On July 13, Breneman brought a check to Mr. Hooper postdated to July 20 and advised that insufficient funds were in the account but promised that he would make it good by July 20.

Hooper heard nothing from Breneman through July 21. On that date he instructed his attorney to write a letter cancelling the contract. The letter was sent by certified mail but Breneman failed to pick it up despite notification from postal authorities. On July 27, Breneman deposited $12,000 in his account and left a check at Hooper’s office for $11,170.49 to cover the amounts past due. On August 10, appellants’ attorney returned the check and informed Breneman that the contract was void. On August 24, Breneman again tendered a check for $11,170.49 plus $1,170.49 (the extension fee due August 2) and suggested a closing date thirty days later. Breneman admitted at trial that insufficient funds existed in his account to cover this check. The check was also rejected by Hooper.

The court found that the elements of Breneman’s claim for specific performance were not proven by the evidence. The court also found, however, that a forfeiture of the $20,000 deposit to appellants shocked the judicial conscience of the court and awarded Breneman a judgment for $20,000.

We affirm the trial court’s denial of specific performance. There was competent and substantial evidence to support a finding that Breneman had repeatedly breached the terms of the agreement.

The only remaining question is whether the trial court correctly found that subsequent circumstances established that it would be unconscionable to allow appellants to retain the $20,000 as liquidated damages. Paragraph G of the contract specifically recognizes that the $20,000 deposit may be retained to compensate appellants for damages suffered on account of a default by Breneman:

DEFAULT BY BUYER: If the buyer fails to perform any of the covenants of this contract within the time specified, the deposit this date paid by the buyer aforesaid may be retained by or for the account of the seller as consideration for the execution of this contract and in full settlement of any claims for damages and all parties shall be relieved of all obligations under the contract, and each party shall execute a separate release of the other party at this time; or the seller, at his option, may proceed at law or in equity to enforce his legal rights under this contract, including, but not limited to, the right to bring a suit for specific performance.

There is little doubt but that this is a valid liquidated damages provision since the damages flowing from a breach of the contract were not readily ascertainable at the time the contract was executed. See Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972); Valenti v. Coral Reef Shopping Center, Inc., 316 So.2d 589 (Fla. 3d DCA 1975). Even so, as recognized in Hutchison, equity may relieve against a forfeiture if it appears unconscionable in light of the circumstances existing at the time of breach. Hutchison, 259 So.2d at 132.

One of the factors in determining unconscionability is the amount of money being retained vis a vis the total contract price. McNorton v. Pan American Bank of Orlando, 387 So.2d 393 (Fla. 5th DCA 1980); Bruce Builders, Inc. v. Goodwin, 317 So.2d 868 (Fla. 4th DCA 1975). In Bruce Builders, the Fourth District noted that:

[I]n Beatty v. Flannery, [49 So.2d 81 (Fla. 1950) ], retention of a $3,000 deposit on a $30,000 contract created no pangs. And in O’Neill v. Broadview, Inc., [112 So.2d 280 (Fla. 2d DCA 1959)] forfeiture of a $1,500 deposit on a $10,440 contract could be tolerated. However, in Hook v. Bomar, 320 F.2d 536 (5th Cir. 1968), loss of a $30,000 deposit on a $95,000 contract was found unconscionable. In the case at bar, the contract was for $73,800, and the deposit [$7,200] was only sligjitly more than 4% of that sum. Thus, based upon precedent the amount is not shocking to ‘the court’s conscience.’

317 So.2d at 870.

In McNorton, this court held that retention of fifty percent of the purchase price paid as a deposit was sufficiently shocking to state a cause of action for its recovery. 387 So.2d at 397. Here, however, the deposit of $20,000 amounts to only 13.3% of the total purchase price.

Under the circumstances of this case, we cannot agree that the forfeiture was unconscionable. Appellant’s property was kept off the market from April through August, 1979. Hutchinson, 259 So.2d at 132. Breneman was acting as a general partner for a limited partnership and was undoubtedly a knowledgeable and experienced businessman. There is nothing in the record to reflect that appellants overreached or in any way misled Breneman regarding the transaction.

Therefore, we conclude that the trial court erred in requiring appellants to restore the entire deposit to the defaulting buyers and REVERSE the award.

AFFIRMED in part and REVERSED in part.

ORFINGER, C. J., and COWART, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Novella Nora TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1310.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1982.
    James B. Gibson, Public Defender, Ronald K. Zimmet, Chief Asst. Public Defender and Brian R. Hanson, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Green v. State, 414 So.2d 1171 (Fla. 5th DCA, 1982).

DAUKSCH, FRANK D. UPCHURCH, Jr. and COWART, JJ., concur.


author: COBB, Judge. FRANK D. UPCHURCH, Jr., Judge,

text:
    Karl F. WENZ, Jr., Appellant, v. Martel COLLINGS, f/k/a Martel Wenz, Appellee.
    No. 81-1490.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1982.

      Fred Denius of Fred Denius, P. A., India-lantic, for appellant.
    James R. Dressier, Cocoa Beach, for ap-pellee.
   COBB, Judge.

This is an appeal from an order of the trial court modifying a child support provision and granting a partial attorney’s fee to the movant below, Martel Codings. The background leading up to the entry of the trial court’s order was: Karl and Martel Wenz entered into a property settlement agreement in 1972, which provided for Karl Wenz to pay $125.00 per month for each of two minor children until they reached eighteen years of age. Subsequently, this agreement was incorporated into the judgment of dissolution.

In March, 1981, Martel, who had subsequently married a man named Codings, filed a petition for modification citing, inter alia, the fact that one child had reached majority, an approximate 25% increase in her ex-husband’s income subsequent to dissolution, and the increased needs of the remaining minor child occurring subsequent to the entry of the original judgment. The order herein appealed, which provided for an increase in child support to $300 per month for the remaining minor child, was entered by the trial court following a hearing on October 5, 1981.

Both Karl Wenz and Martel Codings filed financial statements before the trial court at the modification hearing. Karl Wenz placed his average gross income at $800 per week, and listed his assets at $103,345 with liabilities of $60,000. Since the dissolution, his gross salary had increased from $30,036 to $41,600. Martel Codings, who was earning approximately $6,500 to $7,000 per year at the time of the dissolution of her marriage to Karl, had a present gross income as a mathematician of approximately $18,500. Additionally, she received economic benefits and advantages from her remarriage to Codings, who has an approximate annual income of $20,000.

The increase of child support ordered by the trial court means that the father, who now has the legal obligation to support only one minor child rather than two, is obligated to provide $3,600 per year toward the support of the remaining minor daughter. His present gross annual income is in excess of $41,000. Under these circumstances, together with evidence indicating an increased need on the part of the minor child, we cannot find that the trial judge abused her discretion in granting the modification petition. See Petersen v. Petersen, 392 So.2d 298 (Fla. 4th DCA 1980).

The award of partial attorney’s fees to the ex-wife, however, is another matter. As stated in Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980), “the purpose of section 61.16, Florida Statutes, was to ensure that both parties will have similar ability to secure competent legal counsel.” In the instant case, the evidence is clear that the parties had similar abilities to secure competent legal counsel insofar as their respective financial positions stood at the time of the modification hearing. No award of an attorney’s fee was necessary to avoid “an inequitable diminution” of the ex-wife’s economic status or security. See Canakaris, 382 So.2d at 1205. This is not a situation comparable to that in Patterson v. Patterson, 399 So.2d 73 (Fla. 5th DCA 1981), wherein one party was forced to seek enforcement of a court order by the delinquency of the other party.

Accordingly, we affirm the order of the trial court insofar as it increased the award of child support for the minor daughter of the parties, and we reverse the award of a partial attorney’s fee to the ex-wife.

AFFIRMED in part; REVERSED in part.

DAUKSCH, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents in part with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting in part.

I respectfully dissent in part. I do not think that the award of partial attorney’s fees in this instance was an abuse of discretion. See, e.g., Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980). The husband’s assets and income were more than twice those of the wife. I would affirm the order of the trial court in toto.


author: DAUKSCH, Judge.

text:
    ACCREDITED SURETY & CASUALTY COMPANY, INC., Appellant, v. Frederick W. LEONHARDT, Appellee.
    No. 82-410.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1982.
    Eric A. Latinsky, of Richard L. Wilson, P. A., Ormond Beach, for appellant.
    Philip J. Chanfrau, Jr., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a judgment in garnishment proceedings. Appellant alleges the trial judge, a county judge, had no authority to sit as a circuit judge in this circuit court case. Appellee has confessed error in this regard. The judgment is reversed and this cause remanded for proper proceedings.

REVERSED AND REMANDED.

COBB and COWART, JJ., concur.


text:
    PALM BEACH HEIGHTS DEVELOPMENT AND SALES CORPORATION, a Florida corporation; Palm Beach Investment Properties, Inc., a Florida corporation, Appellants, v. Armand LODEN and Julie Loden, et al., Appellees.
    No. 81-1683.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.
    Marvin B. Nodel of Mann Dady Corrigan & Zelman, Miami, for appellants.
    Martha C. Warner of Warner, Fox and Seeley, Stuart, for appellees.
   PER CURIAM.

Having duly considered all of the arguments raised by the parties, we are of the opinion that the only error committed by the trial court was the award of costs to appellee without motion or supporting affidavit. See Burnett v. Burnett, 197 So.2d 854 (Fla. 1st DCA 1967). Accordingly, we affirm the final judgment except as to the award of costs, which we reverse and remand for consideration upon the filing of such motion and affidavit.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

GLICKSTEIN, DELL and WALDEN, JJ., concur.


text:
    Gerald ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1821.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review the only error we find involves the failure of the trial court to make specific findings of fact regarding the necessity to retain jurisdiction over the first third of appellant’s sentence for purposes of parole review. Section 947.16(3)(a), Florida Statutes (1981); Mobley v. State, 409 So.2d 1031 (Fla.1982).

Accordingly, appellant’s conviction and sentence are affirmed but this cause is remanded to the trial court with directions to either strike the provision retaining jurisdiction or to enter an order setting out those findings of fact required by Section 947.16(3)(a).

ANSTEAD and HERSEY, JJ., and OWEN, WILLIAM G, Jr. (Retired), Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Nancy P. McVEY, Appellant, v. Harlan C. McVEY, Appellee.
    No. 81-1854.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.

      Errol S. Willes, Fort Pierce, and Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellant.
    Roger W. LaJoie of Sullivan, Cobb, Sullivan & Orr, Vero Beach, for appellee.
   DOWNEY, Judge.

The parties in this twenty-seven year marriage had five children, one of whom is a minor. During most of the marriage the husband operated groves in the citrus industry. In the last four years, however, he has been trying to establish a nursery business without much success. His efforts have produced little or no income. The wife’s income from her gift shop business is approximately $17,000 per year.

The final judgment under review awarded the wife exclusive possession of the jointly owned marital home and custody of the minor child. The court found a special equity in favor of the husband as to certain real property in Fort Pierce and directed the wife to convey her interest therein to the husband. The wife was awarded title to the gift shop business, which she has operated exclusively for the past eighteen years. The final judgment also awarded the husband rehabilitative alimony in the amount of $500 per month for five years and required the wife to pay $750 toward his attorney’s fees. The wife contests these last two items on appeal.

No doubt, one does not start a profitable nursery overnight. However, the husband has been engaged in the nursery operation without profit for four years. The five year rehabilitative alimony period would extend this gestation period of the nursery to nine years. We have no difficulty with the concept of using rehabilitative alimony as a vehicle to get an impecunious spouse started in a business or profession so that he or she may become self-supporting and independent. However, we believe that allowing nine years for the husband to establish the nursery is an unreasonable period. On the facts of this case we believe two years of rehabilitative alimony is all that is indicated. The record reflects that appellee and his counsel felt pretty much the same way in the trial court. The husband testified that he was only “a couple more years” away from turning the nursery into a self-supporting commercial operation. In closing argument, his counsel stated that the wife “should be made responsible for some rehabilitative support for him until this nursery starts to be producing. He said [referring to the husband] it was a year or a year and a half.”

Accordingly, we find no error in the partial allowance of attorney’s fees, but reverse the five year award of rehabilitative alimony and remand the cause with directions to reduce the period of rehabilitative alimony to two years from the date of the judgment.

AFFIRMED IN PART; REVERSED IN PART, and remanded with directions.

ANSTEAD and BERANEK, JJ., concur.


text:
    STATE of Florida, Appellant, v. Richard John GEGA, Appellee.
    No. 82-133.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., for appellant.
    No appearance by appellee.
   PER CURIAM.

We reverse the trial court’s order dismissing Count I of the State’s criminal information upon authority of State v. Alford, 395 So.2d 201 (Fla. 4th DCA 1981) citing with approval, Cummings v. State, 378 So.2d 879 (Fla. 1st DCA 1979), cert. denied 386 So.2d 634 (Fla.1980).

Reversed and Remanded.

GLICKSTEIN, DELL and WALDEN, JJ., concur.


text:
    PALM BEACH NEWSPAPERS, INC., a Florida corporation, Daniel J. Mahoney, Jr., Thomas A. Kelly and Gary Blankenship, jointly and severally, Petitioners, v. Joe I. PARKER, Respondent.
    No. 82-291.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.
    Talbot D’Alemberte and Thomas R. Julin of Steel, Hector & Davis, Miami, and Florence Beth Snyder, West Palm Beach, for petitioners.
    Thomas A. Burford of Burford and Still, P. A., West Palm Beach, for respondent.
   PER CURIAM.

By petition for certiorari, Palm Beach Newspapers, Inc., asks this court to review the trial judge’s denial of its motion for summary judgment in a libel suit.

Petitioner must demonstrate both a departure from the essential requirements of law, and the lack of an adequate remedy by appeal. We conclude the trial court did not depart from the essential requirements of law by denying summary judgment and that petitioner has failed to demonstrate the lack of an adequate remedy by appeal. Gadsden County Times, Inc. v. Home, 382 So.2d 347 (Fla. 1st DCA 1980). We deny certiorari.

Petitioner points out that since Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Florida Supreme Court has not announced the standard of fault applicable to a media defendant in a libel suit brought by a private individual. Petitioner contends that because no clear law exists to govern the case sub judice that we should announce a standard of fault. The trial court, at petitioner’s request, certified this question to us.

Florida Rule of Appellate Procedure 4.6 (1962) and its predecessors provided for certification by a trial court to “the Court” of a question of law determinative of the cause and without controlling precedent in this state. After the creation of the District Courts of Appeal, this rule was interpreted to permit certification by the trial courts to the District Courts. The 1977 revision of the Florida Rules of Appellate Procedure, as amended in 1980, provides for discretionary jurisdiction in the Supreme Court to pass upon questions certified by the District Courts. Fla.R.App.P. 9.030(a)(2). No similar provision appears in Rule 9.030(b) governing the jurisdiction of the District Courts of Appeal. We conclude that subject matter jurisdiction to answer certified questions does not exist in this court under the present rules, and decline to answer the question.

PETITION FOR WRIT OF CERTIORA-RI DENIED.

BERANEK, HURLEY and DELL, JJ., concur.


text:
    Philip T. HORNE, Appellant, v. Geraldine Marie HORNE, Appellee.
    No. 80-591.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.
    Irwin L. Langbein, West Palm Beach, for appellant.
    Robert W. Horrell, Lake Worth, for ap-pellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellee/former wife’s motion for rehearing and substitute the following opinion for the opinion which we published on November 25th, 1981.

Appellant/former husband contests the validity of an order entered pursuant to Florida Rule of Civil Procedure 1.540(b) wherein the trial court vacated for lack of jurisdiction a previously entered order which modified a provision of a final judgment of dissolution of marriage.

The final judgment awarded the wife exclusive use and possession of the marital home until the parties’ minor child attained majority. Because the appellee remained in the home after the parties’ minor child attained majority, the appellant filed a “Motion for Enforcement of Property Provision of Final Judgment.” The trial court granted appellant’s motion and found that the husband was entitled to one-half the rental value of the home. The trial court further ordered the sum of $65.00 per month charged against the appellee’s interest in the home for so long as she occupied the home prior to its sale. The appellee did not appeal from this order but later moved to set it aside pursuant to Florida Rule of Civil Procedure 1.540(b). The court granted her motion and vacated its September 12th, 1977 order.

The appellant contends that the trial court erred when it set aside the September 12th, 1977 order because that order only enforced the terms of its final judgment. We disagree. When the trial court ordered the appellee’s interest in the marital home charged for one-half of the reasonable rental value of the property it effectively modified a property provision of the final judgment of dissolution.

Therefore, the question is whether the trial court had jurisdiction to modify a property provision of a final judgment in which it did not expressly retain such jurisdiction.

In Covin v. Covin, 403 So.2d 490 (Fla. 3d DCA 1981), the trial court entered an order directing the sale of a marital home without a reservation of jurisdiction in the final judgment of dissolution for such action. The holding in Covin, supra, is dispositive of the case sub judice:

[Tjhere is no statutory authority for the court to retain jurisdiction to enter post-judgment orders determining the property rights of the parties. Sistrunk v. Sistrunk, 235 So.2d 53 (Fla. 4th DCA 1970). Generally, a court has no jurisdiction to modify property rights after an adjudication of those rights has been made in the judgment of dissolution. Mason v. Mason, 371 So.2d 226 (Fla. 2d DCA 1979); Pruitt v. Pruitt, 370 So.2d 813 (Fla. 3d DCA 1979).
Property rights not adjudicated on dissolution can be determined at a later time if jurisdiction to do so has been specifically retained, Galbut v. Garfinkl, 340 So.2d 470 (Fla.1976). The court also retains jurisdiction to enforce any executory provisions contained in a final judgment of dissolution. Hoskin v. Hoskin, 349 So.2d 755 (Fla. 3d DCA 1977); Sapp v. Sapp, 275 So.2d 43 (Fla. 2d DCA 1973); cf. Mason v. Mason, 371 So.2d 226 (Fla. 2d DCA 1979).

Covin, supra, at 492.

Here, as in Covin, the trial court did not retain jurisdiction with respect to the marital residence. Therefore, the trial court had no jurisdiction to enter its September 12th, 1977 order and the order was void for lack of subject matter jurisdiction. Accordingly, we affirm the trial court’s order vacating the September 12th, 1977 order.

AFFIRMED.

HERSEY, HURLEY and DELL, JJ., concur.

      . The final judgment provides:
      The wife is awarded the exclusive use and occupancy of [the marital home] until the child attains his majority or is otherwise emancipated. The wife, during her exclusive occupancy, shall pay the monthly mortgage installments, together with taxes and insurance.


text:
    In re ESTATE OF Moe SENZ, Deceased.
    No. 81-1591.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.

      Robert A. Ware of English, McCaughan & O’Bryan, Fort Lauderdale, for appellants Carole Turke and Joyce Winston, beneficiaries.
    Howard A. Setlin of Therrel, Baisden, Stanton, Wood & Setlin, Miami Beach, for appellee Arthur S. Levy.
   DOWNEY, Judge.

This proceeding involves an effort by a widow and the beneficiaries of an estate and a testamentary trust to remove the named personal representatives and trustees.

Moe Senz died in October, 1977, leaving Bertha Senz, his widow, and two daughters, Joyce Winston and Carole Turk. In his last will and testament Moe created a marital trust and a residuary trust for the benefit of his widow and daughters. His nephew, a certified public accountant, and his attorney, were named personal representatives of the estate and trustees of the trusts. Dissatisfied with the fiduciary administration, the widow and her daughters filed a petition to remove the nephew and the lawyer, citing numerous examples of mismanagement and negligence on the part of the fiduciaries. In his final judgment, the trial judge found the petitioners had failed to prove sufficient grounds for removal under Section 733.504, Florida Statutes (1981). He further found that “There have been no allegations nor testimony of self-dealing, divided loyalties or those additional criteria which would lead this Court to exercise its discretion in removing the respondents as Personal Representatives or Trustees.” Accordingly, the court denied the petition for removal but required the personal representatives, prior to discharge, to take certain action, which will be referred to hereafter. From that final judgment the daughters perfected this appeal.

On appeal, the daughters make much of the trial judge’s comments at trial, which reprimanded the fiduciaries for the manner in which they administered the estate and trust. After the judge’s critical comments, the daughters were no doubt surprised when he ultimately denied their petition for removal. The tendency of counsel to rely upon a judge’s remarks made during court proceedings for some substantive weight bears out the biblical adage that an over-speaking judge is no well tuned cymbal. This leads us to observe that unnecessary critical or laudatory comments by judges should be avoided since they are often seized upon as having some judgmental impact. Generally speaking, such remarks do not constitute findings or holdings of the court and should not be considered as such. The court usually speaks through its written orders and judgments.

If the trial judge’s comments during trial were our only concern, we would necessarily affirm his denial of the petition for removal. However, the record reflects that many of the judge’s conclusions were justified, and the final judgment sets forth a number of those same conclusions as court findings. The evidence demonstrates numerous instances of mismanagement of the estate, e.g.: 1) Senz and his wife had a safety deposit box containing various items of valuable property. The nephew insisted that he take over the contents and gave the widow no receipt. Among the contents were some bearer bonds that belonged to the widow. These bonds were improperly included as assets of Moe’s estate. 2) Other bonds belonging to the estate contained coupons which the personal representatives did not clip and collect in some instances for over a year. 3) A large certificate of deposit matured and was reinvested at a rate of interest below available interest rates. 4) A non-probate asset involving an interest in a partnership that was supposed to pass to the widow was included as an asset of the estate. 5) The estate income tax return improperly excluded an item of $10,000. 6) Distributions to Winston and Turk were consistently late, sometimes causing the income belonging in one taxable year to be reported in another. 7) The personal representatives activated the marital trust established in the will prior to the expiration of the time for the widow to make her statutory election to take dower. Her subsequent election to take dower nullified this action. However, the personal representatives charged the estate for said services. 8) The two personal representatives did not communicate adequately with each other and thus were not always apprised of what was going on. 9) Finally, as a result of the fiduciaries’ conduct communication between them and beneficiaries went from bad to worse resulting in friction giving rise to this removal effort.

The final judgment acknowledged all the foregoing instances of mismanagement. In addition, while foreswearing any insinuation that the fiduciaries were guilty of dishonesty or self-dealing, the trial judge found that the nephew was “totally inept in handling of this estate,” that lines of communication between the parties had collapsed and that the beneficiaries had lost all confidence in the personal representatives. With reference to the mismanagement of the estate, the final judgment ordered the personal representatives to:

a) Transfer to the widow the partnership interest referred to above.
b) Deliver the bearer bonds taken from the safety deposit box to the widow.
c) “Make appropriate adjustments, as necessary, as a result of the transfer of the interest in [the partnership] and the bearer bonds to Bertha Senz,” the widow.
d) File an amended income tax return for 1977 to reflect the ommitted item of $10,000; any penalties, interest or costs to be borne by the personal representatives.

The trial court and the fiduciaries cite In re Estate of Murphy, 336 So.2d 697 (Fla. 4th DCA 1976), to support the court’s denial of the removal petition. However, a cursory reading reveals that the Murphy mismanagement was minimal compared to this case. Therefore, in Murphy the court was only required to accommodate a slight mismanagement of the estate in honoring the testator’s right to name the personal representative of his estate. In the present case the tension between the testator’s right to name his representatives and the court’s interest in assuring the proper administration of the estate and trust is much greater. Thus, when we consider this record in the light of the interests to be protected, the trial court’s refusal to remove the fiduciaries appears to be an abuse of discretion.

For the foregoing reasons, we reverse that aspect of the final judgment denying the petition for removal of the personal representatives and trustees and remand the cause with directions to grant the petition for removal.

REVERSED AND REMANDED, with directions.

LETTS, C. J., and WALDEN, J., concur.

      . The marital trust was activated but later terminated because the widow elected to take dower. Thus only one trust is presently involved.


text:
    CITY OF BASTROP v. Paul D. JUDKINS.
    No. 82-K-1340.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Paul D. Judkins, applying for writ of review or certiorari. Bastrop Municipal Court, Parish of Morehouse. Nos. 39927 and 41665.

Denied.


text:
    CITY OF BASTROP v. Paul D. JUDKINS.
    No. 82-K-1341.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Paul D. Judkins, applying for writ of certiorari, or review. Parish of More-house, City Court of Bastrop. Nos. 39927 and 41655.

Denied.


text:
    Mrs. Bernice M. BOHM v. Michael H. O’KEEFE, et al.
    No. 82-O-1554.
    Supreme Court of Louisiana.
    June 22, 1982.
   In re Gerald P. Fedoroff, applying for application for recusal. Parish of Orleans. No. 82-9510.

Trial judge recused in this case.


text:
    STATE of Louisiana v. Susan WALSH.
    No. 82-K-1144.
    Supreme Court of Louisiana.
    June 23, 1982.
   In re New Orleans Municipal Court Judges, applying for reconsideration and rehearing of granted writ of June 4, 1982. Parish of Orleans. 414 So.2d 1255.

Denied.

WATSON, J., dissents from refusal to grant a hearing.


text:
    STATE of Louisiana v. Edgardo ARRIAGA.
    No. 82-K-1623.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Edgardo Arriaga, applying for writ of certiorari (writ of review). Parish of Orleans. No. 288-587.

Denied. Adequate remedy on appeal.


text:
    STATE of Louisiana, ex rel., Kim Paul KOHLER v. CLERK OF COURT, 22ND JUDICIAL DISTRICT COURT, ST. TAMMANY PARISH.
    No. 82-KH-1088.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Kim Paul Kohler, applying for remedial writs. Parish of St. Tammany. No. 80683.

Denied.


text:
    STATE of Louisiana ex rel., Kim Paul KOHLER v. 22ND JUDICIAL DISTRICT COURT, ST. TAMMANY PARISH.
    No. 82-KH-1078.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Kim Paul Kohler, applying for writ of mandamus. Parish of St. Tammany. No. 80683.

Granted. Out-of-time appeal ordered.


text:
    COLONIAL BANK v. MARINA SEAFOOD MARKET, INC., et al.
    No. 82-C-1243.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Colonial Bank, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 413 So.2d 1001.

Writ Granted.


text:
    L. Russell KEENE, II v. Warren S. WILLIAMS, et al.
    No. 82-C-1353.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re First Federal Savings and Loan Association of Alexandria, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 412 So.2d 202.

Granted.


text:
    Kay Beatrice JEFFREYS Individually and as Tutrix of the Minor Loxi Karin Jeffreys v. John D. MIXON, et al.
    No. 82-C-1406.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Kay Beatrice Jeffreys Individually and as Tutrix of the Minor Loxi Karin Jeffreys, applying for writ of certiorari or review, Second Circuit, Court of Appeal. Parish of Caddo. 415 So.2d 332.

Granted. The summary judgment is reversed and set aside. Whether the car owner is a “resident” is a disputed fact question.


text:
    AETNA CASUALTY AND SURETY COMPANY v. Jeanne S. NERO and Christopher KNIGHTEN and Kenneth Knighten v. Jeanne S. NERO, et al.
    No. 82-C-1431.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Jeanne Nero, applying for writ of certiorari or review, First Circuit Court of Appeal. Parish of East Baton Rouge. 415 So.2d 390.

Granted.


text:
    Andrea ENTREVIA v. A. E. HOOD, Jr.
    No. 82-C-1437.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re A. E. Hood, Jr., applying for writ of certiorari and prohibition, First Circuit, Court of Appeal. Parish of Tangipahoa. 413 So.2d 954.

Granted.


text:
    STATE of Louisiana v. Tommy WREN. Consolidated With: STATE of Louisiana v. Vincent ORLANDO.
    No. 82-K-1619.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Tommy Wren and Vincent Orlando, applying for supervisory and remedial writs of review, Rapides Parish. Nos. 200647, 200648, 200647B, 200648B.

Granted.


text:
    STATE of Louisiana ex rel. Billy Ray BROWN v. STATE of Louisiana.
    No. 81-KH-1964.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Billy Ray Brown, applying for remedial writs. Parish of Orleans. No. 273-727.

Motion to withdraw appeal granted.


text:
    STATE of Louisiana ex rel., Michael JOHNSON v. Honorable Edwin A. LOMBARD, Clerk, Criminal District Court Orleans Parish.
    No. 81-KH-1963.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Michael Johnson, applying for writ of mandamus. Parish of Orleans. No. 263-303.

Denied.


text:
    STATE of Louisiana ex rel. Charles NELSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2428.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Charles Nelson, applying for writ of habeas corpus. Parish of Orleans. No. 238-702 “E”.

Denied.


text:
    STATE of Louisiana ex rel., Louis WASHINGTON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary and Criminal District Court, Parish of Orleans.
    No. 80-KH-2836.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Louis Washington applying for remedial writ. Parish of Orleans. No. 249-103.

Denied. Appeal pending.


text:
    STATE of Louisiana v. Michael MUSSON.
    No. 82-K-1547.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re State of Louisiana, through the Assistant District Attorney, Philip A. Pross-nitz, applying for writ of certiorari. Parish of Orleans. No. 287-549.

Denied.


text:
    STATE of Louisiana v. Glen HOLMES.
    No. 82-K-1548.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Glen Holmes, applying for writ of certiorari, prohibition and mandamus. Parish of Sabine, 11th Judicial District Court. No. 30225.

Denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    MILLETTE ENTERPRISES, INC. and Herman W. Bartels v. The STATE of Louisiana Through the DIVISION OF ADMINISTRATION and the Board of Trustees of the State Employees Group Benefits Program and Continental National Insurance Company.
    No. 82-C-1403.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re The State of Louisiana, et al., applying for writ of certiorari or review, First Circuit Court of Appeal. Parish of East Baton Rouge, 417 So.2d 6.

Denied.

CALOGERO, J., to grant the writ.


text:
    STATE of Louisiana, ex rel., Keith ADAMS v. STATE of Louisiana, Parish of Orleans.
    No. 82-KH-1667.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Keith Adams, applying for writ of habeas corpus, Orleans Parish.

Denied. Relator must first file in the district court.


text:
    In re Alex Chalmers HOPE, Jr.
    No. 82-O-1426.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Alex Chalmers Hope, Jr., applying for admission to the Louisiana State Bar Association.

Writ denied.


text:
    STATE of Louisiana v. Kenneth Wayne WELCH.
    No. 82-K-1694.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Kenneth Wayne Welch, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of Lafayette. No. 44258.

Denied.


text:
    SUCCESSION OF Regis F. BREAUX.
    No. 82-C-1525.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Marina Rivera Breaux, applying for writs of certiorari, prohibition and mandamus. Parish of Lafayette. No. 82-0044.

Denied. Stay order recalled.

DIXON, C. J., and CALOGERO and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Eugene D. GREEN and Linda A. Green.
    No. 82-K-1550.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Eugene D. Green and Linda A. Green, applying for supervisory and remedial writs. Parish of Orleans. No. 286-773.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Charles Edward TATE.
    No. 82-KH-1562.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Charles Edward Tate, applying for remedial writs. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Clifton DUNCAN.
    No. 82-K-1574.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Clifton Duncan, applying for supervisory writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 1-80-95.

Denied.


text:
    STATE of Louisiana ex rel., Thomas PICKENS v. LOUISIANA PAROLES, 19TH DISTRICT COURT.
    No. 82-KH-0081.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Thomas Pickens applying for writ of mandamus. Parish of East Baton Rouge. No. 3-80-168, Sect. IV.

Denied.


text:
    STATE of Louisiana, ex rel., Carol RICHARDSON v. Johnnie JONES, Warden, Louisiana Correctional Institute for Women.
    No. 82-KH-0226.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Carol Richardson, applying for writs of certiorari and habeas corpus. Parish of Orleans. No. 257-125.

Denied.


text:
    Gloria Handley HOLLEY, et ux. v. ROYAL GLOBE INSURANCE COMPANY, et al.
    No. 82-C-0249.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Gloria Handley Holley and Due Wayne Holley, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 407 So.2d 32.

Denied. The result is correct.

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


text:
    STATE of Louisiana v. Ray JACKSON.
    No. 82-AW-1377.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Ray Jackson, applying for remedial writs, Orleans Parish. No. 245-863.

Denied.

DIXON, C. J., would grant the writ.


text:
    Laura Elaine Johnson SMITH v. William C. JOHNSON and Margie Smith Johnson.
    No. 82-C-1407.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re William C. Johnson and Margie Smith Johnson, applying for writs of certio-rari or review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 415 So.2d 291.

Denied.

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


text:
    Lynn B. DEAN v. Honorable William J. GUSTE, Jr., Attorney General of the State of Louisiana, Honorable John F. Rowley, District Attorney for the Parish of St. Bernard and the St. Bernard Parish School Board.
    No. 82-C-1429.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Lynn B. Dean, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 414 So.2d 862.

Denied.


text:
    Elbert A. SMITH v. LUMBERMEN’S MUTUAL CASUALTY CO., et al. Mark BIALY v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 82-C-1430.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re State of Louisiana, through the Department of Transportation and Development, applying for writ of review, Third Circuit, Court of Appeal. Parish of Rap-ides. 414 So.2d 1281 and 414 So.2d 1273.

Denied.

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


text:
    Joan Burnet REESE v. Rickey D. REESE.
    No. 82-C-1438.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Rickey D. Reese, applying for cer-tiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 414 So.2d 843.

Denied.


text:
    STATE of Louisiana v. Leon Allen BEVERLY, AKA Barry T. Dorff.
    No. 82-K-1108.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Leon Allen Beverly, Aka Barry T. Dorff, applying for writ of certiorari, review, prohibition, and mandamus. Parish of Ouachita. No. 38726.

Denied.

DENNIS, J., would grant the writ.


text:
    In re Widless Joseph BRUNET and Aline Kahl Brunet.
    No. 82-C-1626.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Widless Joseph Brunet and Aline Kahl Brunet, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 393 So.2d 222, 408 So.2d 433 and 415 So.2d 465.

Denied.


text:
    STATE of Louisiana v. Vivian Lee X KAHEY and Sherral Dianne X Kahey.
    No. 82-KH-1663.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Vivian Lee X Kahey and Sherral Dianne X Kahey, applying for writs of cer-tiorari, prohibition, mandamus and stay order. Sabine Parish. No. 28281.

Denied.


text:
    STATE of Louisiana In the Interest of ANY AND UNKNOWN CHILD AT NEW BETHANY HOME FOR BOYS.
    No. 82-K-1448.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Rev. Larry D. Rapier, applying for writs of certiorari, prohibition and mandamus. Parish of DeSoto. No. 40566.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Freddie WILLIAMS.
    No. 82-KH-1668.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Freddie Williams, applying for remedial writs. Parish of Orleans. No. 282-686.

Denied.


text:
    STATE of Louisiana v. Donald YOUNG.
    No. 82-KH-1671.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Donald Young, applying for remedial writs. East Baton Rouge Parish. No. 11-81-235.

Denied. The trial court has acted.


text:
    Harold L. JOHNSTON v. MOREHOUSE PARISH POLICE JURY, et al.
    No. 82-C-1689.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Harold L. Johnston, applying for supervisory writs and stay order. Parish of Morehouse. No. 81-641.

Denied.


text:
    STATE of Louisiana ex rel. Lloyd LEBAN v. STATE of Louisiana.
    No. 82-KH-0080.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Lloyd Leban, applying for supervisory and remedial writs. Parish of Orleans. No. 251-274.

Denied. Moot.


text:
    STATE of Louisiana v. Richard Earl JOHNSON.
    No. 82-K-1699.
    Supreme Court of Louisiana.
    July 6, 1982.
   In re Richard Earl Johnson, applying for writs of certiorari. Parish of St. Martin. No. 69588.

Granted for the limited purpose of transferring to the Court of Appeal, Third Circuit, for consideration.


text:
    STATE of Louisiana, ex rel. J. C. SANDERS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0390.
    Supreme Court of Louisiana.
    July 6, 1982.
   In re J. C. Sanders, applying for writ of habeas corpus, mandamus, certiorari/or review. Ouachita Parish. No. 39552.

Denied.


text:
    STATE of Louisiana ex rel. Jimmy Ray GALLOW v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0101.
    Supreme Court of Louisiana.
    July 6, 1982.
   In re Jimmy Ray Gallow, applying for writ of habeas corpus. Evangeline Parish. Nos. 18-117 and 18-118.

Denied.


text:
    STATE of Louisiana v. William THOM, Sr.
    No. 82-K-1707.
    Supreme Court of Louisiana.
    July 6, 1982.
   In re William Thom, Sr., applying for supervisory writ. Parish of Jefferson, 24th Judicial District Court. No. 80-884 “G”.

Denied.


text:
    STATE of Louisiana v. Kenneth NORMAND.
    No. 82-K-1719.
    Supreme Court of Louisiana.
    July 9, 1982.
   In re Kenneth Normand, applying for writ of certiorari, prohibition and mandamus. Parish of Avoyelles, 12th Judicial District Court. No. 49391.

Granted for the limited purpose of transferring to the Court of Appeal, Third Circuit for consideration.


text:
    STATE of Louisiana v. Tony Curtis JOHNSON.
    No. 82-KH-1728.
    Supreme Court of Louisiana.
    July 9, 1982.
   In re Tony Curtis Johnson, applying for remedial writs. Parish of East Baton Rouge, 19th Judicial District Court.

Denied. Relator must first apply to the district court for appeal bond.


text:
    STATE of Louisiana v. Vernon SIMMS.
    No. 82-KH-1727.
    Supreme Court of Louisiana.
    July 9, 1982.
   In re Vernon Simms, applying for writ of mandamus. Orleans Parish. No. 282-741.

Denied.


text:
    STATE of Louisiana v. Lisa GIGLIO.
    No. 82-K-1737.
    Supreme Court of Louisiana.
    July 12, 1982.
   In re Lisa Giglio, applying for writ of certiorari, prohibition, mandamus and stay order. Parish of Orleans, Criminal District Court. No. 289-068.

Granted for the limited purpose of transferring to the Court of Appeal, Fourth Circuit, for consideration.


text:
    STATE of Louisiana v. Joseph WILLIAMS.
    No. 82-K-1734.
    Supreme Court of Louisiana.
    July 12, 1982.
   In re Joseph Williams, applying for writs of certiorari, review, prohibition, mandamus and stay order. Parish Court for the Parish of Ascension. No. 57722.

Granted for the limited purpose of transferring to the Court of Appeal, First Circuit, for consideration.


text:
    Daniel Patrick BRIGGS v. UNITED SERVICES AUTOMOBILE ASSOCIATION. Olivia A. SINGLETON v. Warren PICKETT, et al. Bobbie J. SMITH v. GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. Mrs. Dan EPPS v. LOUISIANA JOINT UNDERWRITERS OF AUDUBON INSURANCE COMPANY. Rickey L. DURISON, et al. v. PREFERRED RISK MUTUAL INSURANCE CO., et al. Thelma Murphy ALLEN, et vir. v. LUMBERMENS MUTUAL CASUALTY CO., et al.
    No. 82-C-1741.
    Supreme Court of Louisiana.
    July 12, 1982.
   In re Honorable Judges of the Ninth Judicial District Court, applying for writ of certiorari and mandamus, Third Circuit, Court of Appeal. Parish of Rapides. Briggs v. United Services Automobile Ass’n, 416 So.2d 377; Allen v. Lumbermens Mut Cas. Co. and Durison v. Preferred Risk Mut. Ins. Co., 416 So.2d 380; Epps v. Louisiana Joint Underwriters of Audubon Ins. Co. and Smith v. Great Atlantic & Pacific Tea Co., Inc., 416 So.2d 381; Singleton v. Pickett, 416 So.2d 382.

Denied.


text:
    STATE of Louisiana v. David Junior BURGESS.
    No. 82-K-1753.
    Supreme Court of Louisiana.
    July 13, 1982.
   In re David Junior Burgess, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. M 48336.

Granted for the limited purpose of transferring to the Court of Appeal, Second Circuit, for consideration.


text:
    Terri GROS v. Michael GROS.
    No. 82-C-1751.
    Supreme Court of Louisiana.
    July 14, 1982.
   In re Michael Gros, applying for remedial writs and stay order. Lafourche Parish. No. 45698.

Execution of sentence stayed pending further consideration and orders of this Court.


text:
    STATE of Louisiana v. Ernel PORCHE and Alvin Spurlock.
    No. 82-K-1784.
    Supreme Court of Louisiana.
    July 16, 1982.
   In re State of Louisiana, applying for writs of certiorari and mandamus. Parish of Orleans. No. 288-870.

Granted for the limited purpose of transferring to the Court of Appeal, Fourth Circuit, for consideration.


text:
    STATE of Louisiana v. Charles T. WILLIAMS.
    No. 82-K-1791.
    Supreme Court of Louisiana.
    July 16, 1982.
   In re Charles T. Williams, on behalf of himself and Orlando Wilson and Calvin Wilson, applying for writs of certiorari, prohibition, stay and protective order. Parish of Orleans. No. 288-660.

Not considered. The application is transferred to the Court of Appeal for consideration.


text:
    STATE of Louisiana v. Albert D. FARRAR.
    No. 82-K-1781.
    Supreme Court of Louisiana.
    July 16, 1982.
   In re Albert D. Farrar, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 284-483.

Granted. The trial judge is ordered to sign the motion for appeal and to set a return date.


text:
    STATE of Louisiana v. Lawrence E. COCKERHAM.
    No. 82-K-1716.
    Supreme Court of Louisiana.
    July 22, 1982.
   In re Lawrence E. Coekerham, applying for writs of certiorari or review. Parish of Concordia. No. 82-K-1716.

Writ granted for the limited purpose of transferring to Court of Appeal for consideration. Relator has been convicted but not yet sentenced, nor has appeal yet been taken. Further, this writ application is not from a conviction and sentence occurring before July 1. Art. V, Sec. 5, paragraph (E), La.Const.1974.


text:
    STATE of Louisiana v. Albert D. FARRAR.
    No. 82-K-1781.
    Supreme Court of Louisiana.
    July 22, 1982.
   In re Albert D. Farrar, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 284-483.

Based on information that the motion for appeal was signed before this Court issued its order on July 16, the order is recalled, and the writ is denied as moot.


text:
    CALLAIS CABLEVISION, INC. v. HOUMA CABLEVISION, INC.
    No. 82-C-1869.
    Supreme Court of Louisiana.
    July 23, 1982.
   In re Houma Cablevision, Inc., applying for writs of certiorari, prohibition, mandamus or any other appropriate supervisory or remedial writ. Parish of Terrebonne. No. 66824.

Denied.


text:
    STATE of Louisiana v. Samilea JACOBSON, Elizabeth Mae Strain, Peggy Sue Spurlock, Bianca Gayle McCrary and Cara Marie Stevenson.
    No. 82-K-1875.
    Supreme Court of Louisiana.
    July 23, 1982.
   In re Samilea Jacobson, et al, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge. No. 9-81-830.

Writ granted solely for the purpose of transferring to the Court of Appeal for consideration.


text:
    STATE of Louisiana v. Roland J. BROTHERS, Jr.
    No. 82-K-1872.
    Supreme Court of Louisiana.
    July 23, 1982.
   In re Roland J. Brothers, Jr., applying for writs of certiorari, prohibition and mandamus. Parish of Lafayette. No. 88530.

Granted for the limited purpose of transferring to the Court of Appeal for consideration.


text:
    COSMAR, INC., et al. v. WATERWORKS DISTRICT NO. 2 OF the PARISH OF IBERVILLE, LOUISIANA and the Parish of Iberville.
    No. 82-C-1874.
    Supreme Court of Louisiana.
    July 27, 1982.
   In re Cosmar, Inc., et al., applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of Iberville. 414 So.2d 819.

Granted. (See order attached). Consolidate with 82-C-1360 and 82-C-1361.


author: SCHOTT, Judge.

text:
    Wendell H. GAUTHIER v. ALLRIGHT NEW ORLEANS, INC. d/b/a Allright Auto Parks.
    No. 12836.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied Aug. 19, 1982.
    Patrick J. McCabe, Gauthier, Murphy, McCabe & Breslin, Kenner, for plaintiff-ap-pellee.
    C. Monk Simons, III, New Orleans, for defendant-appellant.
    Before SCHOTT, KLEES and WARD, JJ.
   SCHOTT, Judge.

This is a claim by plaintiff, Wendell H. Gauthier, for the value of tires, wheels and hub caps stolen from his automobile while it was on defendant’s lot. This was an unattended self-park lot where the customer would park his automobile in a space and deposit 50 cents in a meter, which provided him with a receipt. The issue is whether the parking lot operator is liable to its customer under these circumstances. From a judgment in favor of plaintiff defendant has appealed.

The case was tried on stipulated facts. Plaintiff left his car on defendant’s lot at about 7:30 PM on March 7, 1978. The receipt produced by the meter after plaintiff deposited his money contained the following:

“NOTICE
THIS CONTRACT LIMITS OUR LIABILITY — READ IT
WE RENT SPACE ONLY. NO bailment is created and we are not responsible for loss of, or damage to, car or contents. This ticket is sold subject to space being available and is not transferable.”

When plaintiff returned to the lot some two and a half hours later, his tires, wheels and hub caps were missing from his car.

The trial court concluded that the legal relationship between the parties was that of a deposit governed by LSA C.C. Art. 2926 et seq. Once this relationship is established the depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property, C.C. Art. 2937, and if there is loss of or damage to the property deposited a presumption is raised that the loss resulted from lack of due care on the part of the depositary and the burden is on the depositary to exonerate itself from fault. Coe Oil Service, Inc. v. Hair, 283 So.2d 734 (La. 1973).

However, defendant contends that the trial judge erred in failing to apply this court’s reasoning in St. Paul Fire & Marine Ins. Co. v. Zurich Ins. Co., 250 So.2d 451 (La.App. 4th Cir. 1971). There the court acknowledged the general rule that parking lots are treated as compensated depositaries against whom negligence need not be proved in case of vehicle loss or theft but recognized the following exception:

“This rule is rigidly enforced. It is, however, subject to a limited exception, recognized both at common law and in Louisiana, in favor of certain lots whose operations are restricted and structured so as to make it clear that the patron-motorist merely leases parking space rather than making a deposit of his car.”

Thus, defendant would have us conclude that the relationship between plaintiff and defendant was a mere lease of space and that the rules of deposit do not apply. Defendant argues that the notice on the receipt was specifically designed to produce this result.

The St. Paul case is not controlling because its lease of space approach was specifically disapproved by the Supreme Court in the Coe case in footnote 2 on page 738. Furthermore, even if defendant could, as a matter of law, limit its liability by contract with its customer so that the relationship would be merely a lease of space and not a deposit, no such contract was confected under the facts of this case. When plaintiff received his receipt he had already parked his automobile and deposited his money. The contract of deposit was complete. This is so whether there was an express consent to the deposit consisting of the continuing offer by the defendant to receive a deposit of automobiles and plaintiff’s acceptance of that offer by parking his car and depositing his money in the meter or a consent by defendant implied under the circumstances. C.C. Art. 2933. There is no evidence in this case that defendant had any sign on display in its lot which purported to limit its liability or change its legal position from depositary to merely a lessor of space (known to the customer) before he parked his automobile and paid his money.

Finally, defendant contends that the circumstances of this case require us to limit plaintiff’s recovery under some theory of assumption of risk on his part in view of the fact that he paid so little to park his automobile compared to what he would have paid in an attended parking lot and considering that he knew the lot was unattended when he selected defendant’s lot. One answer to this argument is the fact that the sign in the lot prominently required the customer to buy a ticket from the machine and place it on the dash-board of the automobile face up, and warned against free parking anytime. The parking receipt repeated the warning to place the ticket face up on the dash-board of the automobile. Surely this implied that defendant would police its lot to be certain that all customers purchased tickets. In effect, the lot would not be unattended.

In any event, we are persuaded in part by the following reasoning of a New York Court in Garlock v. Multiple Parking Services, 103 Misc.2d 943, 427 N.Y.S.2d 670 (1980) in which the court discussed some previous New York cases which were favorable to parking operators based on the low parking rates they were charging:

“What the developing line of precedent has created, is the absurd situation where, the less an operator spends, the less likely he will be found liable for damages or loss of a vehicle. Thus, even though he may be charging (in the Buffalo-Erie County metro area today) up to three dollars per day, per car, for long term parking, or 50 cents per hour, per car (with an average of ten cars per space, per day) in a short term lot, we are not holding him responsible for the care of the property left with him. Therefore, he saves money by putting in a ‘ticket spitter’ instead of an attendant; or posts disclaimer notices which some courts have found significant as evidence of a supposed implied contractual understanding; or by not fencing his lot; or by not providing adequate lighting; or by not providing a guard for security; or by any combination of these factors. The net result is that he saves further sums because he is not found liable for damages or loss to vehicles.”

We have concluded that a deposit was entered into between plaintiff and defendant. Under our law defendant had the burden to prove that it used the same diligence that it uses in preserving its own property and it failed to carry its burden of proof. Accordingly, the judgment is affirmed.

AFFIRMED.


author: WATKINS, Judge.

text:
    Carolyn WELLS v. DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY. Frances FOSTER v. DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY. Shirley THOMPSON v. DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY. (Two cases)
    Nos. 14691-14694.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    On Rehearing June 29, 1982.

      John R. Rarick, St. Francisville, for appellant Wells.
    Annette R. Seng, Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for appellees.
    Laura D. Holmes, Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for George Hamner, Director, Dept, of State Civil Service.
    Jesse L. Means, Jr., St. Francisville, for appellants Foster and Thompson.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

These are consolidated cases appealed from a determination of the State Civil Service Commission upholding the discharge of Carolyn Wells, Frances Foster and Shirley Thompson from the positions they held at Louisiana State Penitentiary under the Department of Corrections as employees at the Agri-Business Commissary. The dismissals resulted from allegations of stealing cigarettes made with respect to each of the three discharged employees.

As stated in the opinion of the Civil Service Commission, the testimony of the three discharged employees was found not to be credible. The determination of the Civil Service Commission rests upon this point.

The matter was heard by a referee, as specifically permitted by Article X, Section 12 of the Louisiana Constitution of 1974. The recommendations of the referee in evaluating the credibility of the witnesses are not contained in the record. However, it is possible that the opinion, which does turn upon the credibility of witnesses and finds the testimony of the three discharged employees not to be credible, was the work of the referee, not of the Civil Service Commission.

The opinion states:

“A public hearing was held on March 27,1980, in Baton Rouge, before a referee appointed by the Commission. The sound recordings of the proceedings, the documents offered into evidence and the record have been furnished to the Commission for its consideration.”

Under the holding of this Court in Goudeau v. Department of Public Safety, 349 So.2d 887 (La.App. 1st Cir. 1977), the members of the Commission must read and examine the transcript of testimony as made up before the referee, before arriving at an opinion or determination. Furthermore, the opinion of the Commission must indicate that due reading and examination has taken place. Here, the opinion of the Commission merely indicates that the sound recordings and the record (presumably without a transcript of testimony) were furnished to the Commission for its consideration; it does not state the Commission read and considered the transcript of testimony. Counsel for one of the discharged state employees has stated both in brief and in oral argument that the transcript of testimony had not even been prepared when the Commission’s decision was filed. This assertion is not challenged by opposing counsel, nor does the record indicate the date of filing of the transcript. Furthermore, although the matter turns on the credibility of witnesses, the referee’s evaluation of testimony (assuming the opinion itself is not that of the referee, which would be the outgrowth of highly improper procedure) is not in the record and is unknown to us. If the referee’s evaluation of credibility was made known to the commissioners, it was required to be placed in the record. See Goudeau, supra. If the referee’s evaluation of testimony was not made known to the commissioners, so that the Commission arrived at a determination solely on the cold record, then the value of the Commission’s opinion as to the credibility of witnesses is rendered of little worth. So that a discharged employee will receive a full and fair review of his discharge, we hold that if a referee is used in a Civil Service Commission hearing and the discharge of the employee turned upon the credibility of witnesses, the recommendations of the referee must be included as part of the record of the proceedings.

As we stated in Goudeau v. Department of Public Safety, supra, a referee appointed by the State Civil Service Commission has only the authority to take testimony, and has no decisional power whatsoever. Since the decisional power is vested only in the Commission, it is incumbent upon it to carefully review the transcript of testimony in all cases, and to complete the record by indicating in its opinion that it has done so.

This matter is remanded to the Civil Service Commission for further proceedings not inconsistent with the views expressed herein. All costs to await a final determination of the matter.

REMANDED.

ON REHEARING

The Civil Service Commission takes the position that after the decision in Goudeau v. Department of Public Safety, 349 So.2d 887 (La.App. 1st Cir. 1977) was rendered, a new rule numbered 13.20 was adopted by the Commission which, the Commission argues, makes the reasoning and holding of Goudeau no longer applicable.

Rule 13.20 was amended to add the following two paragraphs:

“13.20 Referees
“(b) The proceedings before a referee shall be recorded and the recordings preserved until all delays for appeal have lapsed, but shall be transcribed only upon order of the Commission or the Director.
“(c) Upon conclusion of the proceedings, the referee shall provide the Commission the pleadings, exhibits, and the recordings of the proceeding.”

The rules of the Civil Service Commission have the effect of law. Article X, Section 10(A)(4), Louisiana Constitution of 1974. However, Rule 13.20 does not in any way upset the basic rationale in Gou-deau, which is that a referee has no decision-making authority, and that the transcript (whether written or in the form of a taped transcription) must be read or heard by the Commission. The Commission cannot merely have access to the record; it must review the record. We note that Article X, Section 12 of the Louisiana Constitution requires the Civil Service Commission to “hear and decide” the cases before it. To pass the case on to a referee, with only a general and loose supervision, is not to “hear” the case within the contemplation of the constitutional provision. The Commission argues it is impractical to require the Commission to review all cases because of the volume of the caseload. But the plain language of the Louisiana Constitution cannot be ignored.

We note that in Bordelon v. Louisiana Dept. of Corrections, 398 So.2d 1103 (La.1981), which involved commissioners of the Nineteenth Judicial District Court, a position loosely analagous to referees for the Civil Service Commission, the district judge himself is required to make “a de novo determination” of any disputed point. At the very least, the members of the Civil Service Commission must review disputed points, de novo, before rendering a decision. In the present case, although the case turns on the credibility of witnesses and the testimony is highly conflicting, there is no showing that the members of the Commission undertook or fulfilled their constitutional responsibility to review the record, even on disputed points. Hence, the determination of the Commission rests upon an unsound and improper procedure, and was properly overturned.

The original opinion of this court is reinstated, and the matter remanded to the Commission for proper review.


author: BOUTALL, Judge.

text:
    Eileen Betty WARREN v. HOST INTERNATIONAL, INC., and Hartford Accident & Indemnity Company.
    No. 5-211.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied Aug. 17, 1982.
    Paul P. Rutledge, Metairie, for defendants-appellees Host Intern., Inc. & Hartford Acc. and Indem. Co.
    Robert R. Faucheux, Jr., Reserve, for Eileen Betty Warren, plaintiff-appellant.

      Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

An employee sues her employer seeking additional workman’s compensation benefits for a work-related accident. The trial court dismissed her suit and she appeals. We affirm.

On October 26, 1979, Eileen Warren was employed as a bartender for Host International, Inc., at New Orleans International Airport in Kenner, Louisiana, when someone accidentally knocked a cash register over causing Warren to fall against a wall injuring herself. She was taken to East Jefferson General Hospital for treatment of possible injuries to her knee, ankle and back. In consequence of the accident, Host International’s insurance company, Hartford Accident and Indemnity Company, paid her workmen’s compensation benefits for a period of ten weeks plus her medical expenses. Warren brought suit seeking that she be found to be either permanently totally disabled or partially disabled.

The dispute in this case is over the manner in which the accident occurred and the extent of the injuries suffered by Warren. She testified that a worker named Fred White knocked the cash register over causing it to strike her knee and ankle. Warren testified that she was then forced up against the wall located behind the bar injuring her back. An inconsistency develops concerning Warren’s version of the accident because in a previous deposition she claimed that she was forced to the floor as a result of being hit by the cash register. Warren also claims that she has not been able to work for Host International or for any other employer due to the severity of her injuries. Host International questions these claims made by Warren and in response offers the testimony of Fred White and its personnel director, Mrs. Gina Terre-bonne. Fred White testified that Warren fell against the wall when he knocked the cash register over but that he did not see the cash register strike her at any point. Terrebonne testified that she had to force Warren to go to the hospital after the accident because Warren told her that she did not want to go because it was a waste of time and that she had a date that night. In addition, Terrebonne testified that she could see no cuts, abrasions or any other physical evidence which would indicate that the cash register hit Warren.

In her attempt to show the nature of her injuries, the plaintiff offered the testimony of a chiropractor while the defendant submitted the depositions of several physicians. The chiropractor, A. J. Hutchinson, first saw the plaintiff the day after the accident and on numerous occasions thereafter over the next few weeks. He testified that the accident apparently had caused some nerve irritation due to a tilting of the vertebrae in the lower back region and that after proper treatment he released her from corrective care on January 30, 1980. Dr. Irving Re-dler, an orthopedist, was deposed and stated that he performed a neurologic examination of the plaintiff on December 28, 1979, and found nothing abnormal. Dr. Redler believed that plaintiff did not show any functional or residual impairment as a result of the accident and that she would not require any further orthopedic treatment. Relying on Dr. Redler’s report, Hartford stopped paying compensation benefits a few days later. The deposition of Dr. Fortunato J. Padua, a general practitioner, revealed that Dr. Padua saw the plaintiff on January 18, 1980, and that the plaintiff complained of pain in her lower back, foot, knee and abdominal pains which she attributed to the accident in question. After examining her, Dr. Padua believed that the plaintiff could possibly have a lumbar sprain but that he did not see any need for him to render her any further treatment. The plaintiff also saw Dr. Raul Reyes, a general surgeon, on May 27, 1980. The deposition of Dr. Reyes indicated that he believed that the plaintiff may have suffered from a lumbar sprain and that he expected her to recover within a few weeks upon receiving proper medical treatment.

After listening to the testimony offered and reviewing the depositions submitted, the trial court dismissed plaintiff’s suit without reasons. It is our belief that there is nothing in the record which would suggest that the trial court was in error in its assessment of the facts or the extent of the injuries that the plaintiff-appellant may have suffered. The medical testimony indicates that the plaintiff was capable of returning to work in the early part of January of 1980, but that she has made no attempt to return to work or seek other gainful employment. In accordance with our belief that the plaintiff was adequately compensated for any injuries which she may have incurred, the trial court’s action dismissing plaintiff’s suit is affirmed.

AFFIRMED.


text:
    Mary Ann BERNARDI v. Lionel A. BERNARDI, Jr.
    No. 5-3.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied Aug. 17, 1982.
    Louis A. Heyd, Jr., New Orleans, for Mary Ann Bernardi, plaintiff-appellee.
    Gerald A. Stewart, New Orleans, for Lionel A. Bernardi, defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This appeal is taken by a defendant who issued a promissory note pursuant to a supplemental community property settlement. The plaintiff brought suit seeking to enforce the note and the trial court determined that the note and supplemental agreement were valid and enforceable. The defendant appeals.

Mary Ann and Lionel A. Bernardi were married in 1954 and later received a judicial separation on January 30,1978. During the existence of the community, they acquired interests in certain properties including interests in corporations known as V-6 Corporation, Lion’s Share Corporation and Tarpon Marine, Inc. After their separation, both parties entered a community property agreement on April 4,1978, to dispose of all of the property considered to be a part of the community. In that agreement it was stated:

“... this contract of community settlement is not under any circumstances subject to review, but is intended to be complete and final.”

Although their intention was clear, it became necessary to enter into a second community property agreement to dispose of interests in several corporations not considered in the initial agreement. In accordance with the second agreement, Lionel Bernardi issued a promissory note for $11,-500.00 to Mary Bernardi for her rights and interests in Tarpon Marine and Lion’s Share. This note was secured by a mortgage on a piece of property owned by Lionel Bernardi. This second agreement, note and mortgage are the subject of this appeal.

The appellant argues that the above quoted language in the first agreement precludes both parties from entering into any additional agreements concerning the community property regime. In addition, he argues that the note is invalid for want of consideration and that the mortgage is also invalid on the basis that he is not the perfect owner of the property in question. We do not agree and affirm the judgment appealed.

The first agreement was an attempt by both parties to divide the assets of the community equitably. Because of interrelated debt and security given therefor, interests in these corporations were not able to be fully determined with preciseness but only conditionally, making a second agreement necessary to fully dispose of these unresolved interests. There is nothing in the law or jurisprudence which would prohibit these parties from entering into this supplemental agreement. Accordingly, this court finds that the agreement reached by the parties supplementing the initial agreement is a valid one and should be enforced.

As to the promissory note in question, consideration for the note was given by Bernardi acquiring his wife’s interests in these corporations and by the equitable disposition of the entirety of the community property regime. Although these corporations were in debt at the time of this agreement, there was some value to the corporations, and, of course, they could have been profitable instead of becoming more of a liability. One is not relieved of his obligations simply because he made a bad bargain. Additionally this supplemental agreement is only a part of the final and equitable disposition of the community properties, and relates to the entire transaction.

The appellant also argues that he is not the perfect owner of property on which the mortgage is based. He argues in 1959 he supposedly acquired a piece of real estate from his father by Notarial Act of Cash Sale. Instead, he claims that his father actually donated the property to him and that his wife knew of this. This court dispenses with this argument by relying on the public records. Since 1959, the public records have shown that Mr. Bernardi has had legal title to the property in question. Due to the public records doctrine, he is considered the owner of the property thereby making the properly executed mortgage valid.

There is also some question made by the appellant that the plaintiff did not meet her burden of proof as to the consideration for the note. We note that the trial court considered all the documents stipulated to and received in evidence and found that the agreements, note and mortgage were all properly executed. The trial court did not consider the motivation for the execution of these documents but only that they were binding on the parties. We believe that the documents more than carry the plaintiff’s burden of proof and that the consideration for these documents was the equitable distribution of the community property regime and the vesting of complete control and ownership in the respective properties apportioned to each party.

In accordance with the above question, the decision by the trial court is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Lawrence MOTT, Jr. v. RIVER PARISH MAINTENANCE, INC., et al.
    No. 5-8.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied Aug. 17, 1982.
    Abbott J. Reeves, Gretna, and Thomas L. Watson, New Orleans, for Lawrence Mott, Jr., plaintiff-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, Esmond Phelps, II, Dodge Hobson, New Orleans, for Avondale Shipyards, Inc., and River Parish Maintenance, Inc., defendants-appellees.

      Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff Lawrence Mott, Jr., appeals a district court judgment in favor of defendants David Krementz, Avondale Shipyards, Inc. (Avondale), and River Parish Maintenance, Inc. (R.P.M.), and against the plaintiff, maintaining their exceptions of no right of action and dismissing those defendants from the plaintiff’s suit in tort. The court stated it was of the opinion the plaintiff’s exclusive remedy was in workmen’s compensation.

Plaintiff filed suit against the above named and other defendants alleging damages due to personal injuries he sustained on August 2,1979 while working for R.P.M. and as he was operating a tractor on the premises of Avondale. The plaintiff also alleged Avondale had engaged R.P.M. to clear the levee of weeds in and around the plant and that plaintiff had been engaged in spraying a herbicide along the levee when the hose carrying liquid ruptured, spraying the toxic substance on plaintiff’s legs, chest, back, neck and hands, causing severe chemical burns thereto.

After that incident, the petition further states plaintiff’s supervisor told him to drive the tractor to the shop and while proceeding there he swerved the vehicle to avoid a speeding motorcycle, causing the tractor to overturn with injuries resulting to plaintiff.

Plaintiff’s original petition in Paragraph VIII avers:

“Said accident occurred through the negligence of defendant RPM, whose negligence is imputed to the defendant, Avondale. Such negligence consisted of but was not limited to the following:
A. Permitting and/or suffering the plaintiff, a minor, to operate a motor vehicle used for commercial or industrial purposes in violation of La.R.S. 23:161(10);
B. Permitting or suffering plaintiff, a minor to work in an operation involving exposure to dangerous or poisonous chemicals, in violation of La.R.S. 23:161(12);
C. Allowing plaintiff to operate substandard and defective equipment;
D. Ordering plaintiff, who was obviously injured to drive a damaged vehicle to the shop for repair.”

David Krementz was subsequently joined as a defendant by amended petition, plaintiff alleging that Krementz was plaintiff’s immediate supervisor at R.P.M., and alleging further in Article 4 of said amended petition:

“The original petition is hereby amended to add the two following paragraphs:
‘XVI
Said accident occurred through the negligent and intentional acts of David Krementz, plaintiff’s immediate supervisor at RPM, the liability for which acts is also imputed unto defendant, RPM, under the theory of respondeat superior. Said negligent and intentional acts consisted of but were not limited to:
A. Knowingly permitting and/or suffering plaintiff, then a minor child, to operate a motor vehicle used for commercial or industrial purposes in violation of La.R.S. 23:161(10);
B. Knowingly permitting and/or suffering plaintiff, then a minor child, to work in an occupation involving exposure to dangerous and poisonous chemicals, in violation of La.R.S. 23:161(12);
C. Allowing plaintiff to operate substandard defective equipment;
D. Ordering plaintiff who was obviously injured to drive a damaged vehicle to the shop for repair.
XVII
Said accident occurred through the negligent and intentional acts of Camille J. Chauvin, plaintiff’s supervisor at Avondale, the liability for which acts is also imputed unto defendant Avon-dale under the theory of respondeat superior. Said negligent and intentional acts consisted of but were not limited to the following:
A. Knowingly permitting and/or suffering plaintiff, then a minor child, to operate a motor vehicle used for commercial or industrial purposes, in violation of La.R.S. 23:161(10);
B. Knowingly permitting and/or suffering plaintiff, then a minor child, to work in an occupation involving exposure to dangerous and poisonous chemicals, in violation of La.R.S. 23:161(12);
C. Allowing plaintiff to operate substandard and defective equipment;
D. Willfully failing to investigate the first accident in which plaintiff sustained chemical burns, which investigation could have prevented the later and more serious accident.’ ”

In a second amended petition, plaintiff further alleges that:

“Plaintiff wishes to amend his original petition to add the following paragraph:
‘VIII(a)
Said accident occurred through the negligence of defendant, Avondale, in the following particulars:
A. Failing to erect stop and/or yield signs at the intersection of the road on its property where the accident occurred or otherwise to supervise traffic on the said road in such a manner as to render it safe and passable.
B. Failing to properly supervise its employee, whose reckless and excessive speed in the operation of the trail bike owned by Avondale was a proximate cause of the accident herein.’ ”

The judgment of January 19, 1981 from which plaintiff appeals states in part: “Before the Court are:

(1) Exceptions of no right or cause of action filed by defendant David Kre-mentz;
(2) An exception of no right of action and/or motion for summary judgment filed by defendant Avondale Shipyards, Inc.; and
(3)An exception of no right of action and/or motion for summary judgment filed by defendant River Parish Maintenance, Inc.
“After considering the pleadings, arguments of counsel and the statutes and jurisprudence of this State,
IT IS ORDERED that all exceptions of no right of action be and they are hereby maintained, dismissing the above listed exceptors-defendants from this action, the Court being of the opinion that petitioner’s exclusive remedy is in workmen’s compensation.”

The peremptory exception of no right of action raises questions of whether a remedy afforded by law can be invoked by a particular plaintiff, whereas the peremptory exception of no cause of action questions whether the law affords any remedy to plaintiffs under allegations of their petitions. Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La.App. 3d Cir. 1981)

“The peremptory exception of no cause of action tests the sufficiency in law of plaintiff’s petition to allow recovery by anyone against the defendants. The exception is triable solely on the face of the petition and any annexed documents or exhibits, with all well-pleaded allegations of fact conceded as true. No evidence may be admitted to support or controvert the exception. The exception must be overruled unless the allegations affirmatively established that under no facts admissible under the allegations of the petition does plaintiff have a cause of action, and any doubts must be resolved in favor of the sufficiency of the pleading to state a cause of action. * * * ” Wheelahan v. State, etc., 376 So.2d 576, 577 (La.App. 4th Cir. 1979).

It is our opinion that the trial court should not have maintained the exception of no right of action but should have dismissed the plaintiff’s suit as to Krementz, Avondale and R.P.M. on the failure of the petition and the amended petitions to state a cause of action.

LSA-C.C.P. art. 927 provides that failure to state a cause of action may be noticed by either the trial or appellate court of its own motion.

The plaintiff argues on appeal that he was employed by R.P.M. as a laborer and only to that extent should be considered an employee of the company, citing the provisions of LSA-R.S. 23:161, which forbids the employment of minors to drive motor vehicles or spray dangerous dyes and chemicals.

LSA-R.S. 23:161 states that minors shall not be employed, permitted or suffered to work (among other ways) as driver of any motor vehicle used for commercial or industrial purposes, in spray painting or in occupations involving exposure to lead or its compounds or to dangerous or poisonous dyes and chemicals.

In Messer v. Bagwell Coatings, Inc., 283 So.2d 279 (La.App. 1st Cir. 1973), the court stated the Workmen’s Compensation Act is the exclusive remedy, as against the employer, of a minor injured in the course and scope of his employment, even though the minor was illegally employed in a hazardous business or in contravention of a prohibitory law such as LSA-R.S. 23:161.

In the present case, therefore, it was not error for the district judge to conclude that the plaintiff’s sole remedy as against R.P.M. was in workmen’s compensation, in spite of the employer’s violation of the child labor laws. Moreover, the case of Boyer v. Johnson, 360 So.2d 1164 (La.1978), cited by the plaintiff, is inapplicable to the present case on this issue because that case was an executive officer suit brought against the president of the employer company personally in tort under the provisions of LSA-R.S. 23:1101 (prior to its 1976 amendment) which at that time allowed an officer of the employer corporation to be held liable in tort by his own personal fault, notwithstanding the employer’s immunity.

The plaintiff also seeks to hold his employer and defendant David Krementz, who was his supervisor, liable in tort by alleging that those defendants committed certain intentional torts, allowing recovery under the present provisions of LSA-R.S. 23:1101.

In view of the petition and amended petitions it is impossible to conclude that an intentional tort was committed in this case as none of the allegations show that any defendant desired to bring about the physical results of his act or believed they were substantially certain to follow. Bazley v. Tortorich, 397 So.2d 475 (La.1981). Accordingly the suit against R.P.M. and Kre-mentz did not state a cause of action under LSA-R.S. 23:1101 and was properly dismissed by the district court judge.

Neither can we conclude that the plaintiff’s petition establishes a cause of action against Avondale. In this regard LSA-R.S. 23:1061 states:

“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
“Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

In the case of Johnson v. Greater Baton Rouge Airport Dist., 368 So.2d 206 (La.App. 1st Cir. 1979), the airport district had an oral agreement with a man named Hicks to mow certain grassy areas at the airport, and in return he was allowed to keep the hay produced by the mowing operation. The driver employed by Hicks, a sixteen year old, was injured while operating a tractor with the mowing equipment. The court held the mowing was an integral part of the airport’s business, trade or occupation because it was a necessary part of routine maintenance, relying on the deposition of the airport maintenance supervisor. It also held, therefore, that the airport district was entitled to avail itself of the statutory employer defense, as provided by LSA-R.S. 23:1061, and attendant exclusivity of the compensation remedy to defeat the tort claim for the operator’s injuries. Avondale is, under the provisions of LSA-R.S. 23:1061, a statutory employer and, therefore, entitled to claim exclusivity of the workmen’s compensation remedy to defeat the plaintiff’s tort claim against that defendant for his injuries. Accordingly, this suit against Avondale was properly dismissed by the trial judge.

Accordingly, under the authority granted this court under LSA-C.C.P. art. 927, we notice that plaintiff’s petition and amended petitions fail to state a cause of action against the defendants David Krementz, River Parish Maintenance, Inc., and Avon-dale Shipyards, Inc., and plaintiff’s suit in tort as to these defendants is dismissed at plaintiff’s costs, plaintiff’s exclusive remedy being in workmen’s compensation.

AMENDED AND AFFIRMED.

      . In our concurring opinion rendered in the case of McDonald v. Boh Bros. Const. Co., Inc., 397 So.2d 846 (La.App. 4th Cir. 1981), we also noted that in Bazley v. Tortorich, supra, it appeared that the earlier interpretation by courts of appeal of the meaning of “intent” in LSA-R.S. 23:1032, as amended by Act 147 of 1976, had either been overruled by the Supreme Court or so broadened as to effectively do away with the earlier definition of the courts of appeal. We also noted, however, that in doing away with the earlier definition, unless we include in the definition “should have known that the results would follow,” there exists a distinction without a difference. We added the “should have known” standard is preferable in that it is an objective standard. Although our sympathies may be with the plaintiff in the present case, we are bound to follow the ruling of the Supreme Court as expressed in the Baz-ley case.