author: SHIVERS, Judge.

text:
    John SIELICKI, Appellant, v. NEW YORK YANKEES and U. S. Fidelity & Guaranty Insurance Company, Appellees.
    No. RR-95.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1980.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellant.
    Summers Warden, Miami, for appellees.
   SHIVERS, Judge.

Appellant/claimant John Sielicki, a New York Yankees baseball player, was denied a workmen’s compensation claim on the grounds that he failed to show his disability resulted from an accident on April 7, 1978, the last day he played for the Yankee organization. We find claimant is entitled to compensation and reverse.

Appellee maintains the claim was properly denied because no unusual, unexpected damage occurred suddenly to appellant. While we agree that he did not prove a compensable accident, as that term is used in non-repeated trauma cases, such proof is not necessary to this claim. Since Keller Building Products of St. Petersburg v. Shirley, IRC Order 2-3263, cert. denied 362 So.2d 1054 (Fla.1978) (which implicitly overruled earlier cases on this issue), injuries resulting from repeated trauma have been compensable as well as those resulting from accident or exposure to deleterious substances.

In Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980) we held that for a claimant to recover under repeated trauma, he must show: (1) prolonged exposure; (2) the cumulative effect of which is injury or aggravation of a preexisting condition; and (3) that he has been subjected to a hazard (trauma) greater than that to which the general public is exposed. Claimant has proven his injury was the result of repeated trauma.

Claimant, a left-handed pitcher, contracted with the New York Yankees to play baseball during the regular 1978 season and to participate in spring and exhibition games. Because the Yankees had purchased a workmen’s compensation insurance policy, the professional athlete exclusion under § 440.02(l)(c)3, Fla.Stat. (1977) is not applicable. § 440.04(2), Fla.Stat. (1977).

While pitching for the San Francisco Giants in 1974, claimant underwent surgery to his left elbow, which relocated the ulnar nerve. In 1975 he reinjured his left elbow while playing for the Giants and had a half cast on his left arm for approximately ten days. He was back pitching at the end of the 1975 season, pitched professionally all of the 1976 season and all of the 1977 season. Although during the 1977 season claimant had some bicipital tendonitis which was treated by a muscle relaxant, and a rotator cuff strain in his left shoulder at the end of that season, he did not have elbow trouble during the 1976 and 1977 seasons.

In March 1978, Sielicki reported to the Yankeé spring training camp in Dania, Florida. Between the time he reported to spring camp and April 7, 1978, he had pitched nine innings in exhibition games. Prior to pitching on April 7, claimant noticed muscle spasms in his left forearm. He pitched three innings in an exhibition game on April 7 in Dade County against the Baltimore Orioles. Nothing unusual happened while claimant pitched on April 7. The tightness in the elbow did not appear until the next morning. On the morning of April 8,1978, claimant reported to the Yankee trainer that he felt tightness in his left elbow and was experiencing muscle spasms in his left arm. Shortly thereafter a Yankee vice-president called claimant into his office and unconditionally released (fired) him.

Appellees presented no testimony. Undisputed testimony from four doctors, each of whom is a specialist, is that claimant has suffered a disabling physical injury, ulnar neuritis. Claimant now has weakness in his left hand, loss of motion in his arm, pain, and occasional numbness in the arm. Those doctors who expressed opinions on claimant’s prognosis concurred that claimant will never professionally pitch again; that he is now unemployable as a professional pitcher. The medical testimony related the ulnar nerve neuritis to the strain of pitching.

Dr. Bodell stated claimant had ulnar nerve neuropathy and a problem with nerve compression and nerve irritation. Dr. Garrick, a sports medicine specialist, testified that claimant’s muscle spasms were the result of attempting to throw too hard too early in the season and that the muscle spasms irritated the ulnar nerve. Dr. Leone related the ulnar neuritis to claimant’s pitching on April 7, 1978. In his opinion, the 1974 surgery was successful since claimant was able to professionally pitch competitively in 1976, 1977 and 1978. Dr. Ehlert felt that claimant reinjured himself by continuing stress, in his profession, on his left arm.

The facts here meet the requirements of Festa, supra, for a repeated trauma recovery.

REVERSED and remanded for further proceedings consistent herewith.

ROBERT P. SMITH, Jr. and BOOTH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Oscar SAMBRINE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1319.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 1980.
    Philip Carlton, Jr., Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and HUBBART, JJ.
   ORDER ON MANDATE

PER CURIAM.

Whereas, the judgment of this court was entered on February 14,1978, 355 So.2d 825 (Fla. 3d DCA 1978) affirming the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 386 So.2d 546 (Fla.1980), by its opinion and judgment filed July 24, 1980 and mandate now lodged in this court, quashed this court’s judgment with directions.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on March 22, 1978 is withdrawn, the judgment of this court filed in this cause on February 14, 1978 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed and the cause is remanded to the trial court for a new trial. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Appellate Procedure Rules).


text:
    Larry Eugene BLEHM, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2323.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Horton v. Mayo, 153 Fla. 611, 15 So.2d 327 (1943); Rouse v. State, 44 Fla. 148, 32 So. 784 (1902). See, Akers v. State, 370 So.2d 81 (Fla. 1st DCA 1979).


text:
    SONNY TRANSMISSION, INC., a Florida Corporation, and Norman Brooks, Appellants, v. AC-DC, INC., a Florida Corporation, and William Ladd, Appellees.
    No. 79-2326.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Lawrence & Daniels and Adam Lawrence, Haber, Kaplan & Rapoport, Miami, for appellants.
    Richard W. Wasserman, Miami Beach, for appellees.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Fain v. Cartwright, 132 Fla. 855, 182 So. 302 (1938); Warfield v. Drawdy, 41 So.2d 877 (Fla.1949); Buckley Towers Condominium, Inc. v. Buchwald, 340 So.2d 1206 (Fla. 3d DCA 1977); Wackenhut Protective Systems, Inc. v. Key Biscayne Commodore Club Condominium I, Inc., 350 So.2d 1150 (Fla. 3d DCA 1977); Feinman v. City of Jacksonville, 356 So.2d 50 (Fla. 1st DCA 1978); Florida Rules of Civil Procedure, Rule 1.430(b).


text:
    Daniel SEPLER, Appellant, v. Annalee EMANUEL et al., Appellees.
    No. 79-2331.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellant.
    Smathers & Thompson and John W. Keller, III, Miami, for appellees.
    Before SCHWARTZ and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN (Ret.), Associate Judge.

The question presented by this appeal is: May the holder of a note which provides for an attorney’s fee without specifying a percentage of the principal in event of enforcement be allowed a 10% fee without proof of the reasonableness of the amount of the fee? The trial judge held that Section 687.-06, Florida Statutes (1977), authorized the assessment of an attorney’s fee of 10% of the principal in every case where no more than 10% was requested by the successful plaintiff. Section 687.06 is as follows:

687.06 Attorney’s fee in enforcing no-nusurious contracts; proviso; insurance premiums; attorney’s fee provided in note.-This chapter shall not be so construed as to prevent provision for the payment of such attorney’s fees as the court may determine in cases brought before the court to be reasonable and just for legal services rendered in enforcing nonusurious contracts, either at law or in equity. This chapter shall not be construed so as to prohibit mortgagees from contracting for or collecting premiums for insurance actually issued on the property mortgaged, with the usual loss payable or mortgage clause attached thereto; provided further, that it shall not be necessary for the court to adjudge an attorney’s fee, provided in any note or other instrument of writing, to be reasonable and just, when such fee does not exceed 10 percent of the principal sum named in said note, or other instrument in writing.

The appellant here was the defendant in the trial court to a suit to collect a promissory note in the principal amount of $70,-000.00. The defendant paid the principal amount in discharge of all liability except that of the attorney’s fee for enforcement. The note'provided that the maker agreed to pay “all costs and expenses including, but not limited to attorney’s fees”. The plaintiff moved for a summary judgment upon the amount of the fee and the court without proof of reasonableness entered judgment for 10% of the principal.

We hold that Section 687.06, Florida Statutes (1977), does not authorize judgment for 10% of the principal unless that amount is specified in the note. See Cooper Grocery Co. v. Citizens Bank and Trust Co., 62 Fla. 142, 56 So. 435 (1911); Thorpe v. National City Bank of Tampa, 274 F. 200 (5th Cir. 1921). An agreement by a party to pay an attorney’s fee of an unspecified amount is an agreement to pay a reasonable attorney’s fee. See Farnell v. Farquhar Mach. Co., 94 Fla. 887, 114 So. 506 (1927); Boyette v. Reliable Finance Company, 184 So.2d 200 (Fla.2d DCA 1966); Trustees of Cameron-Brown Investment Group v. Tavormina, 385 So.2d 728 (Fla.3d DCA, 1980), and Annot. 18 A.L.R.3d 733, 736 (1968). Thus, to sustain this judgment it would be necessary to hold that the quoted statute provides that in every case where there is an agreement to pay a reasonable attorney’s fee, a fee of 10% is reasonable. Such a reading of the statute would be stretching its terms from an application to cases where “an attorney’s fee provided in any note when such fee does not exceed ten percent of the principal sum . . . ” to an application to cases when “an attorney’s fee is provided in any note . and the amount requested by the plaintiff is only 10%”.

It is often the case that where there is an agreement to pay a reasonable attorney’s fee, it is shown that a fee of more than 10% is reasonable. Plaintiff would retain that right but deny to the defendant an opportunity to be heard when the defendant could show that a fee of less than 10% was reasonable. In our view such an interpretation of the statute would render it unconstitutional. The statute as written simply provides that where a party agrees to a fee of 10% or less, that fee need not be proved reasonable.

The judgment is reversed and the cause remanded.


author: NESBITT, Judge.

text:
    Antonio INDOMENICO, etc. et al., Appellants, v. STATE FARM MUTUAL AUTO INSURANCE COMPANY, Appellee.
    No. 80-160.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.

      Ser, DeCardenas, Levine, Busch & Allen and Elliott Heywood Lucas, Miami, for appellants.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The issue before us is whether uninsured motorist benefits provided in the policy issued to a parent will afford coverage to a minor residing in his household who was involved in an accident, with an uninsured motorist, while the minor was operating a motorcycle on which no policy of insurance had been issued. We agree with the trial court’s ruling which held that the minor was not entitled to coverage and affirm.

Although the motorcycle operated by the minor was not separately covered by a policy of insurance, the minor’s father owned three vehicles which were covered by three separate policies issued by the appellee, State Farm Mutual Auto Insurance Company.

Prior to the adoption of the anti-stacking statute, Section 627.4132, Florida Statutes (1977), the effect of our holding in Valdes v. Prudence Mutual Casualty Company, 207 So.2d 312 (Fla. 3d DCA 1968) would have permitted recovery. However, under State Farm Mutual Automobile Insurance Company v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979), we observed:

A reading of Section 627.4132 clearly evidences a two fold purpose: (1) to prohibit the stacking of coverages, and (2) to restrict an insured to the coverage contained in the policy covering the vehicle which he was operating at the time of the accident. McLellan v. State Farm Mut. Auto Ins. Co., 366 So.2d 811, 812 (Fla. 4th DCA 1979).

374 So.2d at 1081.

Like the claimant in State Farm Mutual Automobile Insurance Company v. Kuhn, supra, plaintiff here seeks to circumvent Section 627.4132, Florida Statutes (1977), by arguing that his motorcycle is not a “vehicle.” We agree with Standard Marine Insurance Company v. Allyn, 333 So.2d 497 (Fla. 1st DCA 1976), where the court correctly observes:

The statutory definition of a “motor vehicle” found in the Financial Responsibility Act is far more consonant with the public policy of this state as to uninsured motorist than the “PIP” definition in the instant policy . . . [footnote omitted]

333 So.2d at 499.

Under Section 627.4132, Florida Statutes (1977), an insured or named insured is protected only to the extent of the coverage on the “vehicle involved in the accident.” The term “vehicle” referred to in Section 627.4132, Florida Statutes (1977), is broader than the term “motor vehicle” contained in the Florida Automobile Reparations Reform Act. §§ 627.730-627.741, Fla.Stat. (1977). Standard Marine Insurance Company, supra. The questioned policy in this action involves a much broader definition of a highway vehicle and is consistent with Section 324.021(1), Florida Statutes (1977). In the instant case, the policy involved defined a highway vehicle to include: “a land motor vehicle or trailer other than a vehicle operated on rails or crawler heads, or a farm type tractor or equipment . . . .” The policy definition, as written, plainly embraces a motorcycle. If a vehicle owned by the insured or named insured is involved in the accident, Section 627.4132, Florida Statutes (1977), mandatorily limits an insured or named insured to the coverage on the vehicle involved in the accident.

Under the situation presented in this case, the Legislature has chosen to have insurors provide uninsured motorist coverage for vehicles upon which they have issued a policy of insurance. However, if, as in this case, plaintiff is injured while driving a vehicle which he owned but chose not to insure, he may not now seek recovery from his insuror based on coverage he may have on other vehicles which he owns.

We find appellant’s argument with respect to the last sentence in Section 627.-4132 to be irrelevant simply because only one named insured was involved in the three separate policies. Kokay v. South Carolina Insurance Company, 380 So.2d 489 (Fla. 3d DCA 1980).

We note that the present anti-stacking law has been changed by Chapter 80-364, Laws of Florida, effective October 1, 1980. This change removes uninsured motorist coverage from the ambit of Section 627.-4132.

Affirmed.

      . By this information, we do not construe Chapter 80-364, Laws of Florida, either as to content or its applicability. See Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla. 1978).


text:
    Robert CAKORA, a minor, by his father and next friend, Robert A. Cakora, and Robert A. Cakora, Individually, Appellants, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 80-481.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Keyfetz & Poses, Miami, for appellants.
    Robert A. Ginsburg, County Atty. and Jack M. Sobel, Asst. County Atty., for ap-pellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The trial court entered a final summary judgment in favor of the county on the sole basis that the duty of care owing to Cakora as set forth in Section 375.251, Florida Statutes (1977), was not violated. Subsequent to the entry of this judgment, we held in Metropolitan Dade County v. Yelvington, 389 So.2d 1113 (Fla. 3d DCA 1980), that Section 375.251, Florida Statutes (1977), is not applicable to counties. Finding no other basis upon which to uphold the entry of the trial court’s judgment, we reverse.

Reversed and remanded.


text:
    Anthony DE LOACH, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1062.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.

      Anthony De Loach, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The defendant appeals from a summary denial of his motion to vacate, made pursuant to Florida Rule of Criminal Procedure 3.850, his conviction of first degree murder.

The contention advanced is that the trial court denied the defendant an evidentiary hearing so as to enable him to establish the ineffective assistance of his court-appointed counsel on the alleged ground that his counsel did not specifically advise him with respect to the element of premeditation in his prosecution for first degree murder.

Having examined the record, we determine that the flaw in defendant’s argument is that he ignores the fact that he was indicted for first degree felony (burglary or robbery) murder. It is well established that the commission of a homicide in conjunction with the intent to commit a felony supplants the premeditation or malice aforethought classically required in a first degree murder prosecution. Fleming v. State, 374 So.2d 954, 956 (Fla.1979); Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977). Since the state did not have the obligation to show premeditation, the fact that the defendant was not advised with respect to it is irrelevant.

Further examination of the plea colloquy demonstrates that: (1) the defendant’s guilt was established under his admitted version of the facts; (2) his negotiated plea to the first degree felony murder indictment was in exchange for a concurrent life sentence to run with the sentences imposed on the burglary and robbery counts; (3) his plea was freely and voluntarily made; and (4) his court-appointed counsel was satisfied with the plea.

Affirmed.


text:
    Carl EIERLE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1370.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Carl Eierle, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850, this court having required response by the State and having considered the record presented and the State’s response and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


text:
    MIAMI BEEF COMPANY, INC., a Florida Corporation, Appellant, v. SEARCH AND RECRUIT INTERNATIONAL, a corporation, Appellee.
    No. 80-1547.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Jerome M. Rosenblum, Hollywood, for appellant.
    Kavanaugh & Leiby, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

The appellee’s motion to dismiss the appeal on the ground that it was untimely filed is granted. The order appealed from is an order denying appellant’s motion to quash service of process. Such an order is interlocutory and a motion to reconsider its entry is not authorized by Florida Rule of Civil Procedure 1.530(a). Thus, the filing and pendency of a motion for reconsideration does not toll the time for taking an appeal. See Wagner v. Bieley, Wagner & Associates, Inc., 263 So.2d 1 (Fla.1972); “M” Enterprises, Inc. v. Baumgartner, 362 So.2d 282 (Fla. 1st DCA 1978); Southwest Electric Supply, Inc. v. Banfield, 302 So.2d 810 (Fla. 2d DCA 1974); Home News Publishing Company v. U—M Publishing, Inc., 246 So.2d 117 (Fla. 1st DCA 1971).


text:
    Edward LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1693.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Edward Lewis, in pro. per.

      Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellant seeks review of the summary denial of his motion under Florida Rule of Criminal Procedure 3.850 to vacate the judgments and sentences imposed upon him. The appellant’s motion was denied by the trial court on the ground that it was legally insufficient on its face. We affirm that ruling without prejudice to the appellant to seek relief in the trial court by the filing of a motion in substantial compliance with the requirements of Florida Rule of Criminal Procedure 3.850.

Affirmed.


text:
    George N. HARRINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1719.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    George N. Harrington, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. See: Mitchell v. State, 167 So.2d 27 (Fla. 2d DCA 1964); Johnson v. State, 183 So.2d 862 (Fla. 3d DCA 1966); Wedenfeller v. State, 355 So.2d 193 (Fla. 1st DCA 1978).


author: PER CURIAM. ANSTEAD, Judge,

text:
    Robert B. ATKINS, Appellant, v. Margaret O’Connor ATKINS, Appellee.
    No. 78-2201.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.

      Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant.
    Joel M. Weissman and James R. Rich of Christiansen, Jacknin & Myers, P. A., Palm Beach, for appellee.
   ON MOTION TO ENFORCE MANDATE

PER CURIAM.

We previously reversed a final judgment in this cause, Fla.App., 380 So.2d 522, allowing the appellee wife rehabilitative alimony. We held that the wife was not entitled to any type of alimony. Appellant then moved in the trial court to vacate the rehabilitative alimony provision contained in the final judgment. He also sought restitution for the alimony paid pending the appeal as fixed by the trial court pursuant to Florida Rule of Appellate Procedure 9.600(c). The trial court denied the motion to vacate the subject portion of the final judgment and also refused to award appellant restitution, since it felt appellee was entitled to alimony of some sort if not rehabilitative alimony. The trial court has not entered an order vacating the alimony portion of the final judgment.

We have for consideration now appellant’s motion to (a) enforce the mandate and (b) require restitution.

In our judgment appellant is not entitled to restitution. Alimony paid pendente lite is not recoverable by the person paying same even if the award is eventually found to be erroneous. Pendente lite payments of alimony are to sustain the party while the litigation ensues, otherwise the needy party could not participate. No authority for restitution of those payments had been cited, and we hold they are not recoverable. While it would be perfectly appropriate for the trial court to enter an order vacating the portion of the final judgment providing for rehabilitative alimony, such an order is not necessary, since our opinion reversing has effectively eliminated that provision from the judgment.

Accordingly, the motion to enforce the mandate is denied without prejudice to renew said motion upon entry of any further orders inconsistent with our decision.

DOWNEY and MOORE, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

Since the trial court has not yet entered any orders, I would simply deny the motion of the appellant.


author: SHARP, G. K., Associate Judge.

text:
    Caler JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 78-228/T4-53.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.

      Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, G. K., Associate Judge.

This is an appeal from a conviction of larceny of a motor vehicle. The defendant contends that the trial judge erred in interrupting the defendant’s testimony concerning his defense to the charge and prohibiting its consideration by the jury. Defendant was arrested when he appropriated an automobile which the Orlando Police Department had requested be left on Interstate 4. Surveillance was set up by the police to watch the vehicle and the defendant was apprehended after he pulled up to the vehicle with a truck and pushed it off the interstate into his gas station.

During trial the defendant attempted to establish his defense by stating that an unknown man came by his gas station and told him that his car had broken down on Interstate 4 in front of the Court of Flags and to go down and get it and fix it. The trial judge interrupted the defendant and asked who the person was and what he looked like. Thereafter the judge stated, “Mr. Prosecutor, are you going to object on the grounds of hearsay?” After the prosecution objected, the judge sustained the objection, stating in front of the jury “you cannot have incompetent evidence before the jury and that is the rankest form of hearsay that there is.”

The trial court’s interruption of the defendant’s testimony without an objection having first been made by the prosecutor was error. Often one side will allow the opposition to introduce inadmissible testimony so as to attack it on cross-examination. A trial judge may interrogate a witness to clarify an issue. Andrews v. State, 172 So.2d 505 (Fla. 1st DCA 1965).

The trial judge should avoid making any remark directly to, or within the hearing of the jury, which conveys any intimation as to what view the judge takes of the case, or as to what opinion the judge holds as to the weight, character or credibility of the testimony. Flicker v. State, 374 So.2d 1141 (Fla. 5th DCA 1979); Raulerson v. State, 102 So.2d 281 (Fla.1958); Parise v. State, 320 So.2d 444 (Fla. 3d DCA 1975). In this case, the judge conveyed his disbelief of the defendant’s defense directly and clearly by his interruption of the testimony and his characterization of it as “the rankest form of hearsay that there is”. It was clearly prejudicial to the appellant. Thereafter the jury could not properly weigh the defense testimony.

Accordingly, the conviction and sentence are REVERSED and the case REMANDED for a new trial.

REVERSED AND REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.


author: SHARP, Judge.

text:
    Harold Herbert HUNTE, Appellant, v. STATE of Florida, Appellee.
    No. 79-400/T4-418.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Hunte appeals his conviction of possession of an illegal weapon (a short barrelled shotgun) contrary to section 790.221, Florida Statutes (1979). He also challenges the validity of “condition eleven” of the conditions of probation imposed by the court at sentencing. This condition required him to submit to a “search of your person, residence, or automobile, by any law enforcement officer or your probation officer without a search warrant.”

Hunte pled nolo contendere to the charges, reserving his right to appeal the denial by the trial court of his motion to suppress physical evidence-the shotgun. A police officer stopped Hunte because Hunte was driving a car with an expired license tag. While approaching Hunte’s car and talking with Hunte the officer saw what appeared to him to be a weapon under Hunte’s car seat, and sticking partially out in front of the seat. The officer testified it had a “squared stock with a rather rough looking hammer like on a pistol hammer.” He arrested Hunte, searched him, and then searched the car and obtained the shotgun. Clearly the search was incident to a lawful arrest, and the weapon was in plain view. The trial court’s denial of the motion to suppress was proper. Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975).

That part of the condition of probation which requires Hunte to submit to a warrantless search of his person, residence or car by anyone other than his probation officer is invalid. Grubbs v. State, 373 So.2d 905 (Fla.1979); Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980); Wood v. State, 378 So.2d 110 (Fla. 5th DCA 1980); Smith v. State, 383 So.2d 991 (Fla. 5th DCA 1980).

That condition is hereby stricken.

In all other regards, the judgment is affirmed.

AFFIRMED in part.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . § 901.21(2), Fla.Stat. (1979).

      . State v. Forrest, 305 So.2d 292 (Fla. 2d DCA 1974), cert. denied 325 So.2d 189 (Fla.1975). See also Stevens v. State, 354 So.2d 111 (Fla. 3d DCA 1978).


text:
    STATE of Florida, Appellant, v. Ray Earl FETHEROLF, Appellee.
    No. 79-496/T4-432.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief Asst. Public Defender, Appellate Div., West Palm Beach, for appellee.
   SHARP, Judge.

The trial court dismissed a criminal information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), because there were no material disputed facts and the undisputed facts did not establish a prima facie case of guilt against the defendant, Ray Earl Fetherolf. The State of Florida appeals. We reverse.

The defendant was charged with sexual battery upon a child older than 11 but less than 18 years of age and lewd assault on a female child under 14 years of age. The alleged victim is the defendant’s daughter. She gave investigators two statements in her own handwriting. The statements were notarized and dated October 10, 1978 and October 26, 1978. They detailed the defendant’s commission of the acts charged. Shortly after making the October 10, 1978 statement, the child was placed in Orange County’s “home” for dependent children, Great Oaks Village. The defendant was arrested but released on bail. The child remained in Great Oaks Village. On November 27,1978, the child gave a deposition in which she disclaimed her original statements; said the police officers had told her what to say; and expressed a desire to go home.

The defendant’s motion to dismiss was based on the child’s deposition. In response, the state filed a sworn traverse under Rule 3.190(d) denying the truth of the child’s statements given at deposition, and attaching her earlier statements given under oath. The lower court’s dismissal was based on the well-entrenched rule applicable at trials in Florida, that a witness’ prior inconsistent statement cannot be used as substantive evidence, but can only be used for the purpose of impeachment. Because the alleged crime took place prior to July 1, 1979, the “new” Evidence Code § 90.801(2)(a) would not be applicable to the trial of this case, and we do not reach the question of whether or not the statements would be admissible as substantive evidence under the Code.

However, this case does not turn on whether the statements are admissible at trial, or whether the defendant would be entitled to a judgment of acquittal after a trial at which the statements were admitted. The child in this case may conceivably testify still differently at a trial, or she may adopt her first statements. It is improper to speculate about what may occur at a trial which has yet to happen, at this stage of the case.

To counter a motion to dismiss, the state need not produce evidence sufficient to sustain a conviction. The proceeding is not designed to create a trial by affidavit or a “dry run” of a trial on the merits. Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977). The factual allegations in the state’s traverse need not be based upon personal knowledge nor “shored up” by an affidavit by the victim. State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975).

The state here vouched under oath for the veracity of the victim’s first statements, and attached them to the traverse. The state is entitled to the most favorable construction of its traverse and attachment, analogous to the summary judgment procedure afforded by the Rules of Civil Procedure. They create material disputed facts. It is not proper at this stage for the court to determine factual issues, consider weight of conflicting evidence, or credibility of witnesses. Because the state’s sworn traverse is this case was sufficient it was error to dismiss the information.

We reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

        .Rankin v. State, 143 So.2d 193 (Fla.1962); Smith v. State, 379 So.2d 996 (Fla. 5th DCA 1980); Hill v. State, 355 So.2d 116 (Fla. 4th DCA 1978).

      . State v. Davis, 243 So.2d 587 (Fla.1971).

      . State v. J.T.S. and G.R.W., 373 So.2d 418 (Fla. 2d DCA 1979).


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

text:
    Leola S. PAUL, Appellant, v. OSCEOLA COUNTY, a Political Subdivision of the State of Florida, and Helen Blakeman, Appellees.
    No. 79-1151/T4-572.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    George L. Winslow, Jr., Orlando, for appellant.
    Murray W. Overstreet, Jr., Kissimmee, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals an order dismissing her second amended complaint with prejudice for the wrongful extermination of her seven-toed cat. We reverse. The point raised on appeal is whether the county is immune from suit for the wrongful act of the county’s animal control center.

Appellant was the owner of a seven-toed cat, aptly named “Big Foot.” “Big Foot” (perhaps to pass on to future generations his unique paw characteristic) strayed. He was later found dead by the side of a road. Appellant claimed that an employee of the animal control center had negligently killed the cat prior to the expiration of the three-day waiting period required by county practice and then placed the cat by the side of the road to cover up the center’s action.

The value of a cat, even one with seven toes on both front feet, would not seem to justify the expense to the harassed taxpayer to put in motion the wheels of justice which have churned away in this suit. However, the point addressed is unique and we are mindful that anyone who has enjoyed the companionship and affection of a pet will often spend far in excess of any possible market value to maintain or prolong its life; therefore, the motive for redress is equally strong.

Appellees moved to dismiss the complaint on the following grounds:

(1) the complaint failed to state a cause of action against the appellees by failing to state a cause of action which would prevail against a private person; and
(2) the complaint failed to state a cause of action against the appellees by failing to state a breach of a special duty of due care owed to the appellant rather than a duty owed to the public in general.

However, the matter is controlled by Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). See also Wojtan v. Hernando County, 379 So.2d 198 (Fla. 5th DCA 1980). Therefore, it was error for the court to rule that the complaint was insufficient because the county was immune from suit.

While not argued by. appellees or a basis for the court’s decision below, count I of the complaint includes as a part of the claim for damages, the following: “[Mjental and emotional pain and suffering” as a result of the negligent conduct of plaintiff. We address this because our reversal and remand may be interpreted as an approval of this portion of the complaint. In Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950), annot. 17 A.L.R.2d 766 (1951), the supreme court acknowledged its commitment to the rule that there could be no recovery for mental pain unconnected with physical hurt in an action arising from negligent breach of a contract when simple negligence was involved. The court then remarked that the rule would not, however, be extended to cases purely in tort “where the wrongful act is such as . reasonably [to] imply malice, or where . . . from great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessment of exemplary or punitive damages.” Kirksey at 189. In LaPorte v. Associated Independents, Inc., 163 So.2d 267 (Fla.1964), the supreme court stated, in resolving a conflict with Kirksey:

[T]he restriction of the loss of a pet to its intrinsic value in circumstances such as the ones before us is a principle we cannot accept. Without indulging in a discussion of the affinity between ‘sentimental value’ and ‘mental suffering’, we feel that the affection of a master for his dog is a very real thing and that the malicious destruction of the pet provides an element of damages for which the owner should recover, irrespective of the value of the animal because of its special training such as a Seeing-Eye dog or a sheep dog.

Therefore, absent an allegation of malice or intentional destruction of the cat, count I is insufficient to support a claim for damages for pain and suffering. However, since this point has never been raised in the trial court, we think appellant should be given the opportunity to make the proper allegations in amended pleadings prior to any dismissal with prejudice.

REVERSED and REMANDED.

COBB and SHARP, JJ., concur.


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

text:
    In the Interest of T. A. A., a minor child. James R. AUFFANT, Guardian Ad Litem/Appellant, v. James C. SHOULTZ, Director of Orange County Correctional Facilities, and Mel Colman, Sheriff of Orange County, Florida, Appellees. Barbara ALLIN, Appellant, v. James C. SHOULTZ, Director of Orange County Correctional Facilities, and Mel Colman, Sheriff of Orange County, Florida, Appellees.
    Nos. 79-211, 79-214.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.

      James R. Auffant, Orlando, pro se, and guardian ad litem for minor child.
    Warren H. Turner, Jr., Orlando, for appellant Barbara Allin.
    Hal Uhrig, Orlando, for appellees.
   PRANK D. UPCHURCH, Jr., Judge.

Appellant appeals an order of the Circuit Court for Orange County dissolving a temporary injunction and dismissing a complaint which sought to prevent the Sheriff of Orange County and the Director of thé Orange County Correctional Facilities from separating appellant from her infant child while she was in prison.

In July of 1979, appellant was imprisoned to serve a term at Orange County Correctional Facility. She gave birth to a child at Florida Hospital on August 31, 1979. On September 1, 1979, a temporary injunction was issued prohibiting the separation or removal of the child. On September 6, 1979, the injunction was dissolved and the complaint dismissed by the order appealed.

In May of 1980, appellant’s sentence was commuted; she was placed on probation and reunited with her child. Therefore, the subject of this appeal, i. e., the propriety of the trial judge in dissolving the temporary injunction which had prohibited county officials from separating appellant from her child, has been rendered moot. Issues which have become moot will not be decided by the courts unless questions presented are of general public interest and importance. Dehoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (1943). Here the issue is not of general public interest and importance and as no practical result can be attained by reviewing this decision, the appeal is dismissed.

ORFINGER and COBB, JJ., concur.


author: COBB, Judge.

text:
    Kathy McGUIRE, Petitioner, v. Eric NELSON, Respondent.
    No. 80-435.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    As Amended Sept. 24, 1980.
    Flora Daun Fowler, Central Florida Legal Services, Inc., Daytona Beach, for petitioner.
    James T. Nunn of Nunn & Burnett, Or-mond Beach, for respondent.
   COBB, Judge.

Petitioner is the tenant of respondent. Respondent filed suit to evict petitioner for non-payment of rent. Petitioner answered and raised several defenses alleging violations of the Landlord And Tenant Act. However, petitioner failed to deposit the disputed accrued rent into the registry of the court as required by section 83.60(2), Florida Statutes (1979). Therefore, the county court entered an amended final judgment allowing the respondent to take possession of the premises.

Petitioner appealed to the circuit court and raised two points on appeal. In the first point, petitioner contended that the county court erred in failing to entertain one of petitioner’s defenses which involved petitioner’s interpretation of section 83.-56(5), Florida Statutes (1979). In the second point, petitioner contended, for the first time, that section 83.60(2), Florida Statutes (1979) denies access to the courts and is therefore unconstitutional. Respondent moved to dismiss the appeal as frivolous and moved for an attorney’s fee pursuant to section 57.105, Florida Statutes (1979). The reason advanced for dismissing the constitutional argument was that the argument could not be raised for the first time on appeal. Although the constitutional argument was raised for the first time on appeal, petitioner contended that the county court’s enforcement of the particular statute amounted to denial of access to the court which was fundamental error and could be raised for the first time on appeal. The circuit court found that the appeal failed to raise any justiciable issue of law or fact and granted both motions.

Petitioner is now before us seeking review of the circuit court’s order. Since the circuit court was sitting as the appellate court, we cannot review the merits of the case as a second appeal. The petitioner must demonstrate to this court that the circuit court exceeded its jurisdiction or departed from the essential requirements of the law in its order or proceedings. In this case, the merits were never reached. We think the circuit court improperly avoided its responsibility to review the county court’s amended final judgment. While we express no opinion on the correctness of the petitioner's argument, we do not believe that the appeal totally failed to raise a justiciable issue and we think that by denying the petitioner the opportunity to have her appeal heard on the merits, the circuit court departed from the essential requirements of the law.

QUASHED and REMANDED.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


text:
    John W. MIKOS, etc., et al., Appellants, v. RINGLING BROS.-BARNUM & BAILEY COMBINED SHOWS, INC., etc., Appellee.
    No. 78-489.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1980.
    John C. Dent, Jr. of Dent, Pflugner, Rosin & Haben, Sarasota, for appellants.
    Granville H. Crabtree, Jr. of Crabtree, Butler, Syprett & Meshad, Sarasota, and Sheldon V. Ekman of Reavis & McGrath, New York City, for appellee.
   PER CURIAM.

Reversed. See Mikos v. Ringling Bros.-Barnum & Bailey Combined Shows, Inc., etc., 368 So.2d 884 (Fla. 2DCA 1978), cert. denied, 378 So.2d 348 (Fla. 1979).

SCHEB, C.J., and HOBSON and CAMPBELL, JJ., concur.


author: DANAHY, Judge.

text:
    Thelma JENKINS, as Administratrix C.T.A. of the Estate of Merton Earle Jenkins, Deceased, Appellant, v. ARAB TERMITE AND PEST CONTROL OF FLORIDA, INC., et al., Appellees.
    Nos. 79-1989, 79-1990.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1980.
    Julian Clarkson and Warren M. Goodrich of Holland & Knight, Tampa, for appellant.
    Clifford L. Somers of Miller, McKendree & Somers, Tampa, for appellees.
   DANAHY, Judge.

In this wrongful death case, the jury returned a verdict against appellee and in favor of appellant for compensatory damages in the amount of $50,000 and punitive damages in the amount of $125,000. On appellee’s post-trial motions, the trial judge entered an order granting a new trial as to all issues unless appellant agreed to a re-mittitur of $75,000 of the punitive damages award. The trial judge expressed the reasons for his decision as follows:

Whereas the amount of the verdict for compensatory damages was in the opinion of the Court extremely high, the Court does not feel that under existing law the Court can order a remittitur of any part thereof. However, the amount of the punitive damages awarded by the jury clearly shocked the judicial conscience of the Court, as under the facts of the case the acts of the defendant lacked the degree of maliciousness and/or outrageous, disregard for the decedent’s rights required to sustain the amount of the punitive damages verdict. Wackenhut Corp. v. Canty, [Fla.] 359 So.2d 430, at p. 436; Hutchinson v. Lott, [Fla.App.] 110 So.2d 442. The evidence before the jury did not demonstrate that degree of malice, wantonness, oppression or outrage on the part of the defendant which would justify the degree of punishment inflicted by the punitive damages assessed. The damages assessed equal 13.3% of the defendant’s net worth. This is a high percentage of net worth and not proper under the facts of this case. As in the Wackenhut case, the fault of the defendant justifying punitive damages was essentially a lack of supervision and training. In Wackenhut the punitive damages award was 2% of net worth.

Appellant asserts that the above stated grounds for ordering a remittitur, or in lieu thereof new trial on all issues, are improper under the holding of our supreme court in Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla. 1978). Appellant argues that under Wackenhut, a trial judge may consider the egregiousness of a defendant’s conduct only for the purpose of determining whether there is a legal basis for an assessment of punitive damages; that is, whether the issue of punitive damages should be permitted to go the jury. Appellant contends that once that determination is made, the assessment of the degree of the defendant’s misconduct for purposes of awarding punitive damages is solely within the province of the jury and a trial judge may not, as the trial judge did in this case, substitute his own opinion in this respect for that of the jury. We agree, and reverse.

Post- Wackenhut, there is only one permissible ground for a determination by a trial judge that a punitive damages award is excessive; that is, that the amount of the award bears no relation to the amount the defendant is able to pay and results in economic castigation. The trial judge in the case before us merged two factors in explaining his opinion that the punitive damages award was excessive-the degree of appellee’s misconduct and the ratio of the punitive damages award to appellee’s net worth. The degree of misconduct consideration was improper under the Wacken-hut holding. A ratio to net worth of 13.3%, without more, does not establish economic castigation.

We reverse with directions to enter final judgment for appellant in accordance with the jury’s verdict.

REVERSED.

HOBSON, Acting C. J., and RYDER, J., concur.

      . A trial judge may, of course, make a post-trial determination that the defendant’s conduct did not amount to fraud, malice, wantonness, or outrage, so that the issue of punitive damages should not have been submitted to the jury. A-T-O, Inc. v. Garcia, 374 So.2d 533 (Fla.3d DCA 1979).


author: OTT, Judge.

text:
    Joseph E. SIMANONOK and Patricia A. Simanonok, husband and wife, Appellants, v. O. E. RANDLE, Jr., as Pollution Control Director for Manatee County, Florida, Appellee.
    No. 80-50.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1980.

      Larry Helm Spalding of Lewis & Spald-ing, Sarasota, for appellants.
    Robert A. Farrance of Mulock & Far-rance, Bradenton, for appellee.
   OTT, Judge.

Joseph and Patricia Simanonok, husband and wife, appeal a contempt order asserting that it is violative of the double jeopardy clause of the Florida and U. S. Constitutions. We agree.

Appellee, O. E. Randle, as Pollution Control Director for Manatee County, brought an action in 1977 to require the Simanonoks to connect their property to the county sewer system. The circuit court granted the requested relief and ordered the Simano-noks to comply within thirty days. They failed to do so and in 1979 appellee moved the court for an order of contempt. The court ordered that Joseph Simanonok be imprisoned for thirty days unless he complied with the court’s original order within thirty days. The Simanonoks again refused and the court ordered Joseph Simanonok into custody. He served the thirty days, but remained firm in his refusal to connect to the sewer system.

Appellee then filed a second motion for contempt. The Simanonoks resisted the motion on the ground of double jeopardy. A hearing was held and Joseph Simanonok was again found in contempt. The second contempt order fined the Simanonoks an amount equal to all costs and expenses of the suit and appellee’s attorney’s fees. The order further provided that Mr. Simanonok could purge himself of the contempt if, within ten days, he paid one half of the assessed costs and connected to the sewer system. This appeal followed.

The first contempt order did not provide a method whereby Simanonok could purge himself of the contempt while in jail. The thirty day sentence was strictly punishment for failure to comply with the previous court order. The second order, while stating that he could purge himself of the contempt, in reality only provided a method whereby Mr. Simanonok could purge himself of one half of the fine. Both contempt orders, therefore, sought to punish Mr. Si-manonok for his failure to comply with the court’s 1977 order. Where the purpose of a contempt order is to punish, it is generally regarded as criminal contempt. In re S.L.T., 180 So.2d 374 (Fla. 2d DCA 1965).

Joseph Simanonok was twice punished .for criminal contempt for failure to comply with the court’s order that he connect to the sewer system. The second contempt order violated his constitutional right not to be twice punished for the same act.

Accordingly, the second order of contempt dated December 10, 1979 is reversed. However, nothing in this opinion prevents the circuit court from properly applying coercive measures to enforce compliance with its orders.

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


author: BOARDMAN, Acting Chief Judge.

text:
    John E. LERRO, Petitioner, v. DEPARTMENT OF PROFESSIONAL REGULATION, Respondent.
    No. 80-1125.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1980.
    Paul D. Hardy and C. Steven Yerrid of Holland & Knight, Tampa, for petitioner.
    Kenneth G. Oertel, Tallahassee, for respondent.
   BOARDMAN, Acting Chief Judge.

John E. Lerro, the harbor pilot in command of the vessel Summit Venture at the time of its tragic collision with the Sunshine Skyway Bridge in Tampa Bay on May 9 of this year, petitions for review of the temporary suspension of his harbor pilot’s license on June 17 by the Department of Professional Regulation (DPR). We affirm the suspension order.

Lerro apparently assumes that the DPR’s action was predicated upon the results of a probable cause hearing held by the State Board of Pilot Commissioners Marine Casualty and Probable Cause Panel on June 10, for he claims that this hearing was unlawfully initiated and that the panel’s recommendation of probable cause was not supported by competent, substantial evidence. However, the propriety of the probable cause hearing is not before us. The DPR did not purport to rely solely on the evidence adduced at that hearing, nor was it required to. It was merely required under Section 120.60(7), Florida Statutes (1979), to show compliance in its order with the requirements imposed by Section 120.-54(9) on agencies making emergency rules. The order recited specific facts and reasons for finding an immediate danger to the public health, safety, or welfare necessitating the emergency suspension of Lerro’s license, as required by Section 120.54(9)(a)3, and we believe those reasons are sufficient to support the DPR’s order. We have found no statutory requirement for a formal hearing of any kind prior to the entry of an emergency order such as this.

At the oral argument before this court, the issue of whether under Section 120.54(9)(c) the DPR’s emergency order would expire at the end of ninety days absent earlier formal suspension or revocation of Lerro’s license was raised, and the parties were subsequently requested to submit memoranda of law addressing this question by 5:00 p. m. on Thursday, September 11. Having received and reviewed the memoranda submitted by both parties, we conclude that Section 120.54(9)(c) is not applicable to emergency license suspension orders, since it does not pertain to the making of an emergency rule or order, but only to the period of time that an emergency rule remains effective. We therefore hold that the order remains in effect pending the formal suspension or revocation hearing and final disposition thereof. See Saviak v. Gunter, 375 So.2d 1080 (Fla. 1st DCA 1979), and Tauber v. State Board of Osteopathic Medical Examiners, 362 So.2d 90 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979).

Accordingly, the DPR’s order temporarily suspending Lerro’s license is AFFIRMED.

OTT and RYDER, JJ., concur.

      . We do not, of course, express any view on whether Lerro’s actions leading up to the collision in fact constituted negligence or whether the evidence that is ultimately presented at the formal hearing will be sufficient to support any formal disciplinary action that then may be taken.

      . The formal proceedings were promptly instituted, as required by Section 120.60(7), Florida Statutes (1979), and as the order itself stated that they would be, and the formal hearing is presently scheduled for October 20 of this year.


author: GRIMES, Judge.

text:
    Cletus PHILLIPS and Eleanor Phillips, his wife, et al., Petitioners, v. Samuel C. CUTLER and Doris M. Cutler, his wife, and Karl E. Bigelow d/b/a Venetian Mobile Home Park, Respondents.
    No. 80-1308.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1980.

      John T. Allen, Jr., St. Petersburg, for petitioners.
    Charles J. Bartlett of Icard, Merrill, Cul-lis, Timm & Furen, Sarasota, for respondents.
   GRIMES, Judge.

Petitioners seek a writ of certiorari to review an order of the circuit court which transferred their action to the county court. They assert that the transfer was contrary to the essential requirements of law and resulted in irreparable harm for which the remedy of appeal would be inadequate. We agree and grant their petition.

Petitioners, who are residents of a mobile home park owned by respondents, alleged that respondents were seeking to remove them from the park because they refused to sign a lease which contained provisions unacceptable to them. Contending that respondents were violating Chapter 83, Florida Statutes (1979), they sought a declaratory judgment and an injunction against their removal from the park.

Declaratory and injunctive relief are classic equitable remedies, and Section 26.-012(2)(c), Florida Statutes (1979), gives the circuit courts exclusive jurisdiction over all cases in equity. Furthermore, Section 86.-011, Florida Statutes (1979), specifically vests jurisdiction over declaratory actions in the circuit court. While Section 83.60, Florida Statutes (1979), does permit the raising of equitable defenses to certain landlord possessory actions, there is no such action yet pending. Also, the right to raise equitable defenses is not the equivalent of the right to seek declaratory and injunctive relief.

It is clear then that the transfer of the cause by the circuit court was a transfer to a court without subject matter jurisdiction and that this violated the essential requirements of law. Moreover, the error resulted in irreparable harm to petitioners because there is not an adequate remedy by appeal from this type of order. See Norris v. Southern Bell Telephone & Telegraph Co., 324 So.2d 108 (Fla.3d DCA 1975); Easley v. Garden Sanctuary, Inc., 120 So.2d 59 (Fla.2d DCA 1960). Accordingly, we quash the transfer order and remand the case to the circuit court for further proceedings.

BOARDMAN, A. C. J., and RYDER, J., concur.


author: CAMPBELL, Judge.

text:
    Robert William DOUGHERTY and Kenilworth Insurance Company, Appellants, v. John D. ANDERSON and Bettye Anderson, Appellees.
    No. 80-873.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1980.
    Robert E. Bugg of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Tampa, for appellants.
    H. Shelton Philips of Kaleel & Kaleel, P.A., St. Petersburg, for appellees.
   CAMPBELL, Judge.

Dougherty and his insurance company appeal from an order granting summary judgment as to liability in a rear-end collision case. The order does not address appellees’ request for punitive damages. We construe the order as not granting liability for punitive damages. The order is affirmed as construed.

SCHEB, C. J., and HOBSON, J., concur.


text:
    Joseph A. BLAINE, Appellant, v. Lola CICHOCKI, Appellee.
    No. 79-1766.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    James A. Baccus, Miami, for appellant.
    Lola Cichocki, in pro. per.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Delgado v. Strong, 360 So.2d 73 (Fla.1978); Wells v. Freedman, 342 So.2d 983 (Fla. 3d DCA 1977); Sharp v. Dixon, 252 So.2d 805 (Fla. 4th DCA 1971); Stewart v. Nangle, 103 So.2d 649 (Fla. 2d DCA 1958).

Affirmed.


text:
    VANLEIGH CONTRACT CORPORATION, Appellant, v. ANDREW M., INC., Appellee.
    No. 79-2184.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Horton, Perse & Ginsberg, Ivan S. Benjamin, Miami, for appellant.
    Douglas D. Stratton, Miami Beach, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. §§ 672.401, 672.703(5), 672.709(1)(a), Fla.Stat. (1979); Geiser v. Permacrete, Inc., 90 So.2d 610, 613 (Fla.1956); Board of Public Instruction of Dade County v. Fred Howland, Inc., 243 So.2d 221 (Fla. 3d DCA 1970), cert. denied, 248 So.2d 167 (Fla.1971); 3 Fla.Jur.2d Appellate Review § 294 (1978).


text:
    William A. TAYLOR, Appellant, v. Sara Nan TAYLOR, Appellee.
    No. 79-71.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.

      G. W. Hedman, Melbourne, for appellant.
    Harry C. Poe, Jr., Melbourne, and Larry Klein, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr. and SHARP, JJ., concur.


author: UPCHURCH, JOHN J., Associate Judge.

text:
    AMERICAN NATIONAL BANK & TRUST COMPANY OF FT. LAUDERDALE, Appellant, v. Romolo EGIDI, Jr. and Dorothy Egidi, his wife, Appellees.
    No. 79-304.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.
    George P. Roberts, Jr. of Fleming, O’Brien & Fleming, Fort Lauderdale, for appellant.
    Leo Greenfield, North Miami, for appel-lees.
   UPCHURCH, JOHN J., Associate Judge.

Counterdefendant American National Bank asserts that the judgment on counter-plaintiff Egidi’s counterclaim cannot stand since the bank had prevailed in an earlier adjudication of affirmative defenses based upon the same facts and legal theories that formed the basis of the counterclaim.

American National brought separate actions against Mr. Egidi and Mr. and Mrs. Egidi alleging that an installment loan, secured by a boat, and a demand note, were in default. The bank obtained a writ of replevin in the installment loan case, repossessed the boat, and sold it. Subsequently Egidi filed affirmative defenses based upon the bank’s alleged wrongful replevin, and a counterclaim seeking damages based upon the same transactions. The eases were consolidated and the bank moved for summary judgment. The trial court entered final summary judgment for the balance due on the two notes, less a credit for the bank’s sale of the boat pursuant to the writ of replevin. The court stayed execution pending the outcome of the counterclaim, which proceeded to a jury trial and a verdict in favor of Egidi.

The issue is whether the judgment on the counterclaim can stand undisturbed in light of the court’s earlier adjudication of the affirmative defenses to the opposite effect.

Under the doctrine of estoppel by judgment, the parties are estopped from thereafter litigating issues that are common to two causes of action and actually adjudicated in the prior litigation. Smith v. Florida, East Coast Railway Company, 151 So.2d 70 (Fla.3d DCA 1963), writ discharged 162 So.2d 663 (Fla.1964); Simco Operating Corp. v. City National Bank of Miami Beach, 341 So.2d 232 (Fla.3d DCA 1977), cert. denied 348 So.2d 952 (Fla.1977). This is similar to the familiar principle of res judicata in that a matter once judicially decided is finally decided. Res judicata is applicable as a bar to an action where the same issue was presented as a defense in an earlier suit resulting in a judgment adverse to the party bringing the subsequent claim. Butler v. Richard Bertram & Company, 281 So.2d 227 (Fla.3d DCA 1973).

Included in the court’s summary judgment in favor of the bank was an adjustment for the proceeds of the boat’s sale. Egidi’s affirmative defenses had denied the bank’s right to possession of the boat. Thus the summary judgment implicitly rejected defendant’s affirmative defenses as it approved the bank’s possession and sale of the boat, and accounted for these activities in its calculation of the sums due the bank from Mr. and Mrs. Egidi. The right of possession was resolved in favor of the bank upon entry of the final summary judgment. The doctrines of estoppel by judgment and res judicata prohibit relitigation of that issue in the context of a counterclaim which raises the same facts, issues, and transactions previously set to rest when the affirmative defenses were resolved.

The judgment below is reversed and this cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    David SOLOMON, d/b/a Briarwood Village, Appellant, v. Frank GENTRY and Estelle Gentry, his wife, Appellees.
    No. 79-2071.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.

      Harry A. Schroeder of Brennan, McAli-ley, Hayskar & McAliley, West Palm Beach, for appellant.
    Wallace B. McCall of Johnson, Ackerman & Bakst, P.A., West Palm Beach, for appel-lees.
   ON CLARIFICATION

PER CURIAM.

This appeal poses a question of first impression in Florida. The issue is whether a landlord may be liable to a tenant for breach of an implied warranty of fitness for a specific purpose. We hold that no such warranty arises under a lease of real property and reverse.

The facts before the trial court were that appellees, after renting and moving into their mobile home with the intention of remaining for a period of six to twelve months, discovered that the heating unit was not functioning properly. Subsequently, after the landlord had the unit repaired, a fire, originating somewhere within the heating unit, broke out and destroyed the entire contents of the home. The trial court held landlord liable for damages in the amount of $6,643.00, apparently concluding that the landlord breached an implied warranty that the mobile home be fit for the purpose intended. This sum was the value of tenants’ furnishings.

The trial court’s decision, if we assume that the mobile home is properly classified as a chattel, is consistent with the holding of W. E. Johnson Equipment Co. v. United Airlines, Inc., 238 So.2d 98 (Fla.1970) in which the Supreme Court of Florida stated that as a general rule there is an implied warranty that a chattel be fit for the purpose intended. However, we must analyze first the classification of the mobile home as a chattel and thereafter the resulting liability of the landlord.

The court in Rompon Properties, Inc. v. Langelier, 341 So.2d 1068, 1069 (Fla.2d DCA 1977) stated that:

The characterization of property as chattel or fixture is a fact. question to be determined according to the testimony and other evidence presented. The trier of fact considers three factors: annexation of the property to the realty, adaptation of the property to the use of the realty, and the intent of the party making the annexation.

Upon consideration of the factors enumerated above, we acknowledge that a mobile home may be classified either as a chattel or real property, depending upon the particular facts involved. We further acknowledge that such classification will ultimately determine the landlord’s liability. By way of preliminary thesis, appellees argue that they were mere transient occupants of the mobile home, thereby precluding application of the Florida Residential Landlord and Tenant Act, Section 83.42(3) and 83.43(2)(b), Florida Statutes (1979). If this were the case, the argument goes, ap-pellees’ interest in the mobile home could not properly be classified as a leasehold interest. In light of the facts that: 1) the mobile home was not readily transportable in that it apparently was on blocks with the wheels removed; 2) the intent of the parties was to rent the mobile home and slab for use as a residence for a period of indefinite duration (as opposed to its use as a chattel involving a daily rental situation); and 3) the mobile home was sufficiently affixed to the ground with proper sewer and plumbing connections, we find that the mobile home in this context must be treated as real property and not as a chattel.

Concluding, as we have, that the mobile home attained the status of real property, we next address the issue of whether the landlord is liable under a warranty concept. Although implied warranties of fitness and merchantability have been held applicable to sales of new homes by the builder, Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972), aff’d 264 So.2d 418 (Fla.1972), we are aware of no case extending this concept to used homes involving remote purchasers. The Second District specifically refused to do so in Strathmore Riverside Villas Condominium Association, Inc. v. Paver Development Corp., 369 So.2d 971 (Fla.2d DCA 1979), cert. denied 379 So.2d 210 (Fla.1979), and such implied warranties have never been extended to leasehold estates in Florida.

Accordingly, since we do not intend at this time to further extend the implied warranty of fitness for a specific purpose to leasehold estates in real property, we reverse that part of the judgment finding the landlord liable for breach of an implied warranty of fitness and remand for such further proceedings as may be appropriate.

REVERSED AND REMANDED.

LETTS, C. J„ HERSEY and GLICK-STEIN, JJ., concur.


text:
    BOSTON OLD COLONY INSURANCE COMPANY, Appellant, v. Raul GUTIERREZ, Appellee.
    Nos. 77-508, 77-761.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 1980.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.
    Sams, Anderson & Ward and Francis W. Sams, Miami, for appellee.
    Before BARKDULL, HENDRY and HUBBART, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this, court was entered on July 11, 1978 affirming the final judgment of the circuit court of Dade County, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed April 10, 1980, 386 So.2d 783, and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the judgment of this court filed July 11, 1978 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b) Florida Appellate Rules).


text:
    John GIBSON, Appellant, v. AVIS RENT-A-CAR SYSTEM, INC., and Frank Arata, Jr., Appellee.
    No. 77-1150.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 1980.
    Richard Baron, Miami, for appellant.
    Robert L. Dubeé, Richard M. Gale, Miami, for appellee.
    Before BARKDULL, HENDRY and HUBBART, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on August 22, 1978 (362 So.2d 960) affirming' the final judgment of the Circuit Court of Dade County, in the above styled cause, and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed May 15, 1980, 386 So.2d 520 and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on October 18, 1978 is withdrawn, the judgment of this court filed August 22, 1978 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the final judgment of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b) Florida Appellate Rules).


text:
    Eva Mae THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1530.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1980.
   PER CURIAM.

Affirmed on the authority of Chambers v. State, No. 80-1126 (Fla. 2d DCA Sept. 12, 1980); see also Cuyler v. Sullivan, - U.S. -, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

BOARDMAN, Acting C. J., and OTT and DANAHY, JJ., concur.


text:
    STATE of Louisiana v. Willie Ray WALKER.
    No. 67197.
    Supreme Court of Louisiana.
    Sept. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Terry L. Lindsay, Asst. Dist. Atty., for plaintiff — appellee.
    B. J. Woods, Mecom, Scott & Woods, Shreveport, for defendant-appellant.
   PER CURIAM.

Affirmed.

WATSON, J., dissents.


author: SAMUEL, Judge.

text:
    SUCCESSION of Clifton Anthony DONOHUE.
    No. 11127.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Sidney D. Torres, III, and Stanford L. Raborn, Chalmette, for Cleone A. Donohue, Charlotte Donohue Orlando and Cynthia Donohue Bourgoies, appellees.
    Abbott J. Reeves, Gretna, for Irene Keller, defendant.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   SAMUEL, Judge.

Irene Keller, the alleged surviving spouse of the deceased herein, Clifton Anthony Do-nohue, opposed a “First Petition for Partial Possession” filed by the children of the deceased and the administratrix of the succession. The administratrix filed exceptions to the opposition, including exceptions of no cause of action.

Following a hearing, the exceptions were maintained and the opposition was dismissed. Irene Keller appealed from that judgment. The order of appeal grants her a suspensive appeal, or alternatively, a de-volutive appeal and further states “It is further ordered that a stay be granted in this matter.”

Subsequent to taking the appeal Irene Keller sought and obtained an order permitting her to prosecute the action in forma pauperis. The children of the deceased, including the administratrix of the succession, filed a motion to dismiss the appeal based on the fact that no appeal bond has been furnished. We grant the motion insofar as it applies to the suspensive appeal.

In pertinent part, Code of Civil Procedure Article 5185(4) provides:

“When an order of court permits a party to litigate without the payment of costs, until this order is rescinded, he is entitled to:
(4) The right to a devolutive appeal, and to apply for supervisory writs.
He is not entitled to a suspensive appeal, or to an order or judgment required by law to be conditioned on his furnishing security other than for costs, unless he furnishes the necessary security therefor.” LSA-C.C.P. Art. 5185(4).

Thus, under the specific wording of the above quoted portion of Article 5185, a party proceeding in forma pauperis has a right to a devolutive appeal without furnishing an appeal bond, but he is not entitled to a suspensive appeal without furnishing the necessary security therefor.

For the reasons assigned, the motion to dismiss is granted insofar as the suspensive appeal is concerned and that suspensive appeal is denied; the stay granted in the order of appeal is annulled and set aside; and the motion to dismiss is denied insofar as it applies to the devolutive appeal.

MOTION GRANTED IN PART; DENIED IN PART.

      . Stuart v. Capri Construction Company, Inc., La.App., 285 So.2d 306; Bass v. Service Pipe Trucking Company, Inc., La.App., 267 So.2d 63.


author: COVINGTON, Judge.

text:
    Danny Ray BRADY, Sr. v. Sue Jean BRADY.
    No. 13398.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.
    Daniel R. McGovern, IV, New Orleans, for plaintiff, appellee.

      Jacqueline Carr, Slidell, for defendant, appellant.
    Before COVINGTON, LOTTINGER and COLE, JJ. .
   COVINGTON, Judge.

This is an appeal from a judgment of the trial court granting the plaintiff-appellee, Danny Ray Brady, a divorce from the defendant-appellant, Sue Jean Brady, on the grounds of living separate and apart for one year. The judgment also found “mutual fault with regard to the pleading of separation.” We amend and affirm as amended.

The plaintiff initiated the original action for separation from bed and board predicated on abandonment without lawful cause on September 25, 1978. The defendant filed an answer in the nature of a general denial on October 23, 1978.

Thereafter, on December 4, 1978, the defendant filed an amended answer and re-conventional demand, seeking separation in her favor, custody of the two minor children, child support and alimony pendente lite. The primary basis on which the wife sought separation in her favor was cruel treatment. She also included as a basis: abandonment by her husband “leaving her with an eviction notice for September 20, 1978, forcing her to vacate the marital domicile at # 2940-B Camilia, and move to her mother’s residence where she has been forced to reside.” The plaintiff answered the reconventional demand on December 27, 1978, denying the material allegations. Subsequently, the plaintiff filed a supplemental and amending petition setting out that the parties had not lived together since September 4, 1978, and that pursuant to LSA-R.S. 9:301, as amended by Act No. 360 of 1979, which became effective September 7, 1979, the plaintiff was entitled to a di-' vorce.

The matter came on for trial pursuant to previous assignment, and the trial court granted a judgment of divorce in favor of the plaintiff. The court also made a finding of mutual fault with regard to the separation. The defendant has appealed this judgment.

The defendant claims on appeal that the trial judge erred in allowing the matter to go to trial when the defendant had not been served with, or answered, the supplemental petition. The record shows that the defendant made no objection to proceeding with the trial despite the status of the pleadings; she actively participated in the trial of the cause.

A party permitting a case to go to judgment without objecting to the procedure or excepting to the pleadings can not question, on appeal, the propriety of the proceedings. Stafford v. National Fire Ins. Co. of Hartord, 164 La. 409, 114 So. 78 (1927).

Garry v. Zor, Inc., 181 So.2d 828 (La.App. 4 Cir. 1966), cited by the defendant, is inapplicable because in Garry the party questioning the validity of the judgment had not only not filed pleadings but also had made no appearance in the matter. We find that the defendant, by appearing in these proceedings and actively participating therein, waived her objections to the want of process and the propriety of the proceedings.

The record reveals that at the trial on September 10, 1979, both parties admitted under oath that they had lived separate and apart without reconciliation since September 4, 1978. The law is settled that when the statutory period is shown (now only one year under LSA-R.S. 9:301), the court has no discretion, but must grant the divorce as prayed for. See Otis v. Bahan, 209 La. 1082, 26 So.2d 146 (1946).

The appellant also argues that the trial court erred in finding “mutual fault” in its judgment, because fault is not an issue in a divorce proceeding based on LSA-R.S. 9:301, as amended, unless the wife demands alimony. We agree.

In discussing LSA-R.S. 9:301 (when the separation term was two years instead of the present one year) the Court in Nieto v. Nieto, 276 So.2d 362, 365 (La.App. 4 Cir. 1973), said:

“The issues before the court were a divorce on the grounds of separation of two years as provided in R.S. 9:301, together with ancillary matters of custody and child support. The wife did not seek alimony for herself, either pendente lite or permanently, nor is there a request for such alimony. We said in the case of Zarrilli v. Zarrilli, 129 So.2d 568 (La.App. 4th Cir. 1961) that evidence of fault in a divorce suit predicated on two years of separation wherein the wife was not seeking alimony was immaterial and that there was no justiciable issue posed for the trial court to consider when the wife simply sought preservation of her rights for future alimony. Recently, in the case of Wagner v. Wagner, 248 So.2d 96 (La. App. 4th Cir. 1971) we stated that it is manifest that under LSA-R.S. 9:301 fault is not an issue to be determined in considering whether or not a divorce should be granted but appears only if the wife should ask for alimony. Accordingly, we conclude that no issue of fault was presented in this case, and that if it be considered that the statement of fault was made in connection with the right to alimony (which we do not believe it to be) such a finding would be in error.”

It is thus manifest that under LSA-R.S. 9:301 fault is not an issue to be determined in considering whether or not a divorce should be granted. Vignes v. Vignes, 311 So.2d 615 (La.App. 1 Cir. 1975); Wagner v. Wagner, 248 So.2d 96 (La.App. 4 Cir. 1971).

This is not a case where separation is sought pursuant to LSA-C.C. art. 141, as enacted by Act No. 495 of 1976, “although both spouses are mutually at fault in causing the separation.” Hence, we find that the trial court erred in making a finding of “mutual fault” in his judgment.

For the foregoing reasons, the judgment of the trial court is amended to exclude the finding of fault or mutual fault on the part of either party to this action; and, as amended, the judgment is affirmed. The costs of this appeal are to be borne equally by appellant and appellee.

AMENDED AND AFFIRMED.


author: LOTTINGER, Judge.

text:
    L. J. HARDING v. Johnny COLEMAN.
    No. 13410.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Robert W. Stratton, Baker, for defendant-appellant Johnny Coleman.
    William C. Bradley, Baker, for plaintiff-appellee L. J. Harding.
    John Engelsman, Baker, for third party defendant-appellee James P. Cox.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

The plaintiff brings this breach of contract action claiming that a building constructed for him by the defendant was defective in a number of ways. The trial court found that a number of defects were proven, including an unlevel concrete slab and improperly installed insulation.

Although the plaintiff introduced no evidence to show how much the various defects would cost to repair, the trial judge determined on his own that the plaintiff sustained a loss of $12,372.00. He held further that since the plaintiff had withheld $6,372.00 of payments to the defendant, the defendant’s total liability to the plaintiff for the defects was $6,000.00.

The defendant specifies a number of errors on appeal, but the primary issue is whether the trial court correctly awarded damages in light of the fact that no evidence concerning the cost of repairing the defects was introduced at trial. The plaintiff admits that he failed to prove the cost of repair, but he submits that the trial court had discretion under La.C.C. art. 1934 to assess an appropriate amount of damages.

While the trial judge certainly has wide discretion in awarding damages, there must be some reasonable evidence in the record upon which he bases his award. Proof of defect in construction is only a prerequisite to proof of damages. After proving a defect, the plaintiff must plow forward with proof of extent of damages-in this case, the cost of repairing the defects.

From a careful review of the testimony, we agree with the trial court’s findings concerning the various defects in the building. We disagree, however, with his assessment of damages because there was a dearth of evidence in the record to support a damage award. We will remand this case for the narrow purpose of receiving evidence concerning the cost of repairing the defects proven at trial by plaintiff.

Therefore, for the above and foregoing reasons, the decision of the trial court finding that certain defects existed in the building’s construction is affirmed; the decision of the trial court awarding the plaintiff a total of $6,000.00 in damages is reversed; and the case is remanded for further proceedings consistent with this decision. Costs of this appeal are assessed to defendant-appellant.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


author: COLE, Judge.

text:
    Eddie Joseph RODRIGUE, Jr. v. Duffy BREAUX, Jr., Sheriff, et al.
    No. 13415.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Larry P. Boudreaux, Thibodaux, counsel for plaintiff-appellant Eddie Joseph Rod-rigue, Jr.
    Jerome J. Barbera, III, Thibodaux, counsel for defendants-appellees Duffy Breaux, Jr., Sheriff & Lafourche Parish Sheriffs Office.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This appeal involves a workmen’s compensation suit brought by a deputy sheriff employed by the Lafourche Parish sheriff’s office.

The petition of Eddie Joseph Rodrigue, Jr., alleges that on August 30,1978, while in the course and scope of his employment as a deputy sheriff, he sustained injuries which entitle him to workmen’s compensation benefits as provided by law. Made defendants were Duffy Breaux, Jr., the sheriff of the Parish of Lafourche, and the Lafourche Parish Sheriff’s Office.

Those defendants filed the peremptory exception raising the objections of no cause of action and no right of action. The exception was sustained by the district court. The plaintiff has appealed that judgment. We notice ex proprio motu the objection of nonjoinder of an indispensable party, which may also be raised by the peremptory exception. La.C.C.P. art. 927.

Deputy sheriffs are employees of the state of Louisiana. Foster v. Hampton, 381 So.2d 789 (La.1980). In Vernon Michaelman v. Sheriff J. Al. Amiss, Warden Rodger Aucoin, The Parish of East Baton Rouge, and the State of Louisiana, 381 So.2d 789 Number 12774 on the docket of this court, rendered May 5, 1980, we said:

“In our original opinion in this case, reported at 376 So.2d 1029 (La.App. 1st Cir. 1979), we held that the State is not the employer of a deputy sheriff and, therefore, is not vicariously liable for his torts. We found that a contrary statement by our Supreme Court in Foster v. Hampton, 352 So.2d 197 (La.1977), was pure dictum. Foster v. Hampton has since revisited the Supreme Court, and that court has reaffirmed its position that the State is the employer of a deputy sheriff. The case at bar has been remanded to this court for reconsideration in light of that reaffirmation.
******
“We see no significance in the factual or financial distinctions made by the State. When the Louisiana Supreme Court renders a decision dealing with the same subject matter as that of another case pending before it, the court’s policy is to remand the pending case to the Court of Appeal for reconsideration in light of the case already decided by the Supreme Court. We are convinced the Supreme Court intends that a deputy sheriff be recognized as an employee of the State regardless of the factual situation.” (Emphasis added.)

The State of Louisiana, as the employer of the plaintiff, is an indispensable party to this workmen’s compensation proceeding. We remand to permit plaintiff to amend his petition to name the State of Louisiana as a party defendant and thereafter for reconsideration in light of Foster and Michaelman, supra.

While we find it unnecessary to consider the contention of plaintiff that La.R.S. 23:1034 is unconstitutional as sought to be applied, we fail to understand how a declaration of unconstitutionality would avail plaintiff of the relief he seeks. To the contrary, it appears such a result would only invalidate the eligibility of criminal deputy sheriffs for the parish of Orleans for workmen’s compensation benefits, not extend eligibility to deputy sheriffs throughout Louisiana. It now seems more appropriate to consider the classification of a deputy sheriff as an “employee” and his apparent joint employment by two or more employers. See La.R.S. 23:1031. Cf. La. R.S. 23:1034. If a deputy sheriff is no longer to be considered a “public officer” within the contemplation of Section 1034, as enunciated in prior jurisprudence, the 1977 amendment adding workmen’s compensation coverage, for criminal deputy sheriffs of Orleans parish is superfluous.

Plaintiff is allowed thirty days from receipt of the record by the Clerk of the Seventeenth Judicial District Court to amend his petition. The judgment appealed is vacated to allow compliance with these reasons. La.C.C.P. art. 2164. Costs of this appeal are taxed one-half to plaintiff and one-half to defendants.

VACATED AND REMANDED.


text:
    Alfred Henry SAMPAY v. MORTON SALT COMPANY and Continental Casualty Company.
    No. 13419.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Writ Granted Sept. 26, 1980.
    Bernard J. Bagert, Jr., and Michael R. Zsembik, New Orleans, counsel for plaintiff.
    William M. Bass, Voorhies & Labbe, Lafayette, counsel for defendants.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is an appeal from a summary judgment rendéred in favor of Morton Salt Company, an employer whose alleged employee had been previously released from the litigation in a personal injury settlement agreement with the plaintiff. Morton claimed that the release of the alleged employee constituted a release of the employer, whose liability under La.C.C. art. 2320 is merely vicarious or secondary. The trial court agreed, and the plaintiff timely brought this appeal.

Plaintiff received serious personal injuries on October 26, 1972, when the van in which he was a guest passenger was struck from the rear by a truck driven by James E. Davis. The plaintiff alleged, among other things, that Davis was an employee of Morton Salt Company at the time the accident occurred. Plaintiff further alleged that Davis was acting within the course and scope of his employment when his truck rear-ended the van. We will assume, without deciding, that Davis was Morton’s employee.

Following some initial pretrial sparring, the plaintiff settled his claims with Davis and some of the other defendants, releasing them from any further liability as a result of the October 26, 1972, accident. In the settlement agreement, the plaintiff expressly reserved his rights against Morton Salt Company and Continental Casualty Company, Morton’s liability insurer. The plaintiff did not, however, agree to hold Davis harmless from any damages he might be required to pay as indemnity to his employer.

Morton and Continental subsequently filed an exception of no right and/or cause of action which was sustained by the trial court. This court, however, in an unpublished opinion, reversed the trial court on the narrow ground that the trial court had considered evidence in upholding the exception of no cause of action. See La.C.C.P. art. 931. After remand, the trial court dismissed the exceptions. Morton and Continental then filed the motion for summary judgment. They claimed that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law because the release of their alleged employee constituted a release of them.

Morton and Continental base their motion for summary judgment on the ground that the plaintiff released them from the secondary liability under Article 2320 when he released the employee, whose liability was primary. They cite Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (La.1969); and Caldwell v. Montgomey Ward & Company, Inc., 271 So.2d 363 (La.App.2nd Cir. 1972).

The plaintiff claims that the facts in Mar-ionneaux, especially the facts concerning the release given by the plaintiff in that case, are distinguishable from the facts in the case at bar, and that a different rule should be applied. The plaintiff in Marion-neaux not only released the employee and reserved his rights against the employer, but agreed additionally to hold the employee harmless from any damages the employee might be required to pay as indemnification to the employer. (The vicariously liable employer who has been required to pay damages for the tort committed by his employee has a cause of action for indemnity against the employee.)

In discussing the reservation of rights against the employer, the court in Marion-neaux said enforcement of the plaintiff’s action against the employer would produce unseemly consequences because the employer would be able to sue the employee for the amounts the employer was required to pay to the plaintiff. The employee, in turn, would be able to sue the plaintiff under the hold harmless indemnity agreement for all sums he had to pay to the employer. The result, as the plaintiff in this case notes, would be a “vicious circle,” since the employer would be able to recoup from the plaintiff indirectly all damages he had to pay to the plaintiff directly. The plaintiff herein claims that such a “vicious circle” would not occur under the facts of this case, because the plaintiff has not agreed to indemnify the employee for any sums the employee may be required to pay as indemnification to Morton.

While the plaintiff has certainly distinguished the release he granted from the release granted in Marionneaux, he has not convinced us that the underlying rationale of Marionneaux should be disregarded. As we see it, Marionneaux was based on the proposition that an employer is only secondarily liable for the torts committed by his employee. The employer is not a joint tort-feasor. There is but one cause of action given the plaintiff. When plaintiff compromises with the primary tortfeasor, the wrong has been repaired, and the release inures to the benefit of the employer. Williams v. Marionneaux, supra. This rationale should apply whether or not the plaintiff agrees to indemnify the employee from any damages the employee is required to pay to the employer.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: ELLIS, Judge:

text:
    Philip K. HAMILTON v. Carol Ann HAMILTON.
    No. 13379.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rykert O. Toledano, Jr., Covington, for plaintiff, appellee.
    Floyd J. Reed, New Orleans, for defendant, appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

Judgment was rendered herein awarding Mrs. Carol Ann de Boxtel Hamilton, plaintiff in reconvention, a separation from bed and board from her husband, Philip K. Hamilton, Sr. Mrs. Hamilton was further awarded custody of two minor children born of the marriage, child support in the amount of $250.00 per month and $200.00 per month alimony. Mrs. Hamilton has appealed, alleging the inadequacy of the award for alimony and child support.

The record shows that Mr. Hamilton has a gross income of $1,300.00 per month, from which is deducted $218.56, including social security, state and federal income tax and $45.87 for hospitalization insurance, which covers the children. His net pay per month is, therefore, $1,035.57. Mr. Hamilton testified to living expenses of $330.00; automobile expense of $249.45, including his car payment, gas, oil, maintenance and insurance; medical expense, including treatment of a child at a mental health clinic, and payments on a past due medical bill of $55.00; and retirement of community debts of $121.39. The total of these monthly expenses is $755.84.

Mrs. Hamilton was not working at the time of the trial. She filed a “Comprehensive Household Expense List” showing total needs of $1,909.40.

The trial judge found that Mr. Hamilton had a net income of $1,035.00 per month; and monthly expenses of $755.00. He found that Mrs. Hamilton had reasonable expenses “in the neighborhood of $1,200.00.” After pointing out that there was obviously not enough to go around with the parties living under two roofs, he made a total award of $450.00, apportioned as hereinabove set forth.

Mrs. Hamilton claims that the court should have used Mr. Hamilton’s gross income as the basis for the alimony award, rather than his net income, citing Penney v. Penney, 357 So.2d 53 (La.App. 4th Cir., 1978); and argues that the award made was therefore inadequate.

Mrs. Hamilton is incorrect in her assertion that the gross income of her husband must be considered as the basis for an alimony award. All of the circumstances of the financial situation of the parties must be considered, and gross income is one of the circumstances. See Meyer v. Meyer, 371 So.2d 1304 (La.App. 4th Cir. 1979).

In this case, evidence as to both the gross and net income of Mr. Hamilton was before the Court, as well as the living expenses claimed by each party. Considering all of these factors, we cannot find that the trial judge abused the broad discretion accorded him in such matters.

The judgment appealed from is therefore affirmed at the cost of Mrs. Hamilton.

AFFIRMED.


text:
    Donna Marie Giusti PARKS v. Joe Brown PARKS.
    No. 13448.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Phil E. Miley, Baton Rouge, counsel for plaintiff-appellee Donna Marie Giusti Parks.
    Sumpter B. Davis, III, Baton Rouge, counsel for plaintiff-appellee Joe Brown Parks.
    Before ELLIS, CHIASSON • and PONDER, JJ.
   This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, EX PROPRIO MOTU, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    FLORIDA GEORGIA TRACTOR COMPANY v. Pat KALINOSKI, D/B/A Patricks Excavating Co. et al.
    No. 13546.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Michael Oglesbee, Denham Springs, for appellant.
    James E. Durbin, Denham Springs, and William Haley, Lake City, for appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

ON MOTION TO DISMISS

On November 27,1979, judgment in favor of plaintiff was signed herein, and notices of judgment were mailed to all parties on November 29,1979. Motion for appeal was filed on February 19, 1980.

Allowing for the seven-day delay for applying for a new trial, and the 60-day delay thereafter for applying for a devolutive appeal, the appeal delays expired on February 8, 1980. See Articles 1913, 1974 and 2087, Code of Civil Procedure. The motion for appeal was too late.

The appeal herein is therefore dismissed at defendant’s cost.

APPEAL DISMISSED.