author: DANAHY, Judge.

text:
    Jacquelyn Bates DROZINSKI et al., Appellants and Cross-Appellees, v. Lorraine J. STRAUB, Appellee and Cross-Appellant.
    No. 79-163.
    District Court of Appeal of Florida, Second District.
    May 9, 1980.

      Philip W. Dann of Baird, Robinson & Dann, and E. Paul Dietrich, St. Petersburg, for appellants and cross-appellees Jacquelyn Bates Drozinski, Peter Nemec, Laurie Ellen Bates and John B. Nemec.
    R. Grable Stoutamire of Macfarlane, Ferguson, Allison & Kelly, Clearwater, for appellant and cross-appellee Bank of Clear-water, as personal representative of the estate of Barbara M. Nemec, deceased.
    Emil C. Marquardt, Jr., and Stephen 0. Cole of McMullen, Everett, Logan, Mar-quardt & Cline, P.A., Clearwater, for appel-lee and cross-appellant.
   DANAHY, Judge.

We have occasion in this case to reconsider the question whether the guardian of an incompetent succeeds to and may exercise the incompetent’s unrestricted right to withdraw funds from an account in a financial institution standing in the joint names of the incompetent and another.

In Cape Coral Bank v. Kinney, 321 So.2d 597 (Fla. 2d DCA 1975), we answered that question in the affirmative as to a joint account in a savings and loan association, based on the provisions of Sections 665.271 and 665.301, Florida Statutes (1979), which are substantially the same today as they were at the time of our decision in the Cape Coral Bank case. Those statutes apply to joint accounts in savings associations. Comparable statutory provisions apply to joint accounts in banks and trust companies. §§ 656.33 and 659.29, Fla.Stat. (1979). We are persuaded that none of these statutes supports the result which we reached in the Cape Coral Bank case. We, therefore, recede from our decision in that case and rule that except to the extent necessary to obtain funds for the incompetent’s care and support, the guardian of an incompetent joint depositor may not withdraw funds from a checking or savings account standing in the joint names of the incompetent and another.

Two joint savings accounts are involved in the case before us, one at Bank of Indian Rocks (the bank) and the other at First Federal Savings and Loan Association of Largo (the federal). The provisions of Chapter 659 (the Banking Code, .Second Part) govern the bank; the provisions of Chapter 665 (the Savings Association Act) govern the federal.

Both of the accounts in question originally stood in the name of Barbara Nemec. In 1973 Nemec changed the accounts to joint accounts in her name and that of appellee. Two years later Nemec was declared incompetent and Bank of Clearwater was appointed guardian of her property. The guardian instructed the bank and the federal to transfer the accounts to the guardian, and both institutions did so.

Barbara Nemec died four months after having been declared incompetent and Bank of Clearwater qualified as personal representative of her estate. In that capacity it continued to hold the proceeds of both joint savings accounts as assets of Nemec’s estate.

Appellee, who was both a close friend of Barbara Nemec and related to her by marriage, filed a petition in the probate proceedings pertaining to Nemec’s estate claiming ownership as surviving joint owner of $42,000 in United States savings bonds, Series H, standing in the names of appellee and Barbara Nemec as co-owners at the time of Nemec’s death. Appellee also claimed the proceeds of the two savings accounts by right of survivorship, contending that Nemec’s guardian had no authority to appropriate the funds in those accounts as guardianship assets. Appellee prevailed with respect to the savings bonds, but the trial judge ruled against her as to the savings accounts. A final judgment on appel-lee’s petition was entered accordingly and this appeal followed.

Appellants, who are the personal representative of Nemec’s estate and four of the six beneficiaries under her will, contend that the trial judge erred in ruling that appellee was entitled to the savings bonds. We find no merit in that contention. By cross-appeal, appellee argues that the trial judge erred in denying her petition with regard to the joint savings accounts. We agree and reverse that portion of the judgment before us for review.

In the absence of a statute providing otherwise, the rule is that the guardian of an incompetent cannot withdraw funds in an account held jointly by the ward and another except for the ward’s necessities, since a withdrawal under other circumstances would be the exercise of a personal right of the ward. Howard v. Imes, 265 Ala. 298, 90 So.2d 818 (1956). Howard v. Imes, supra, generally regarded as the leading case announcing that rule, prompted an annotation on the subject in 62 A.L.R.2d 1091 (1958). An examination of later cases confirms that the rule remains generally recognized today.

This court applied the rule in an analogous situation in First Nat'l Bank of Tampa v. First Fed. Sav. & Loan Ass’n of Tampa, 196 So.2d 211 (Fla. 2d DCA 1967). In that case the trustee of a Totten trust became incompetent and her guardian withdrew the entire balance in the trust account. Noting that the incompetent had sufficient funds for her own use so that it was not necessary to invade the Totten trust account for her support, medical care, etc., this court affirmed the decision of the trial judge that the guardian return the funds to the Totten trust account to abide the demise of the incompetent.

The First District Court of Appeal reached the same result in a case involving joint accounts in two savings associations. In re Guardianship of Williams, 313 So.2d 411 (Fla. 1st DCA 1975). In that case, both of two joint depositors became incompetent. The trial judge ruled that the moneys on deposit in the savings accounts held by them jointly should be divided equally between their guardians. Our sister court reversed on the ground that a guardian’s authority to use the proceeds of his ward’s joint account is limited by the necessity of the ward. The court reasoned that, therefore, the trial judge could not authorize a termination of the joint accounts and division of the' proceeds between the estates of the two incompetents. The court observed that each owner should continue to have the right of survivorship should the other joint owner die; and in the meantime, either guardian should have the right to draw on the account for the necessities of its ward. The court reversed with directions to reinstate the joint accounts with right of sur-vivorship.

This court departed from the rationale of the First Nat’l Bank of Tampa case and the Williams case by its holding in Cape Coral Bank v. Kinney, supra. In the latter case the guardian of an incompetent requested withdrawal of all the moneys in its ward’s joint account at First Federal Savings and Loan Association of Ft. Myers. The federal, apparently fearing a claim on behalf of the other joint depositor, refused to pay the money to the guardian and the guardian then filed a suit seeking a declaration of its right to the funds. The trial judge dismissed the suit on motion of the other joint depositor. Reversing, this court said:

The record reflects that the bank as the duly appointed guardian of. Mrs. Arro-wood had made a proper request for withdrawal from the savings account at a time when the passbook was in First Federal’s possession. Fla.Stat. § 665.301 (1969). Standing in the shoes of its ward as a joint owner of the account, the bank had the right to withdraw the funds. Fla.Stat. § 665.271 (1969). The request for withdrawal should have been honored by First Federal.

Most states, including Florida, adopted statutes years ago providing generally that when a bank account is maintained in the names of two or more persons in such form that the moneys in the account are payable to either or the survivor or survivors, the moneys in the account may be paid to any one of such persons during their lifetime or to any one of the survivors of them after the death of any one or more of them. Such statutes were regarded by most courts as being designed primarily to regulate and protect banks and thus not necessarily conclusive of the ownership of deposited money. E. g., Seymour v. Seymour, 85 So.2d 726 (Fla.1956); Cerny v. Cerny, 152 Fla. 333, 11 So.2d 777 (Fla.1943); Moskowitz v. Marrow, 251 N.Y. 380, 396, 167 N.E. 506, 511 (N.Y.1929) (Cardozo, C. J., concurring); Note, Disposition of Bank Accounts: The Poor Man’s Will, 53 Col.L.Rev. 103, 110 (1953). That view is still current. Constance v. Constance, 366 So.2d 804 (Fla. 3d DCA 1979); contra, In Re Estate of Bonness, 13 Wash.App. 299, 535 P.2d 823 (Ct.App.1975).

Over the years statutes of this kind have been expanded beyond their original bank protection purpose so that they now contain provisions touching upon ownership rights in joint accounts. The Florida legislature enacted Section 665.271 (pertaining to joint accounts in savings associations) and Section 659.291 (pertaining to joint accounts in banks) in 1971. Those statutes were said to be intended to eliminate uncertainties surrounding survivorship rights. Note, Survivorship Rights in Joint Accounts, 24 U.Fla.L. Rev. 476, 476 (1972). The statutes represent two different approaches; Section 665.271 combines in one section provisions protecting savings associations and provisions pertaining to ownership rights in joint accounts. The section provides:

When a savings account, other than a convenience account as provided in s. 665.272, is maintained in any association or federal association in the names of two or more persons, whether minor or adult, in such form that the moneys in the account are payable to either or the survivor or survivors, then, in the absence of fraud or undue influence, such account and all additions thereto shall be the property of such persons as joint tenants. The moneys in the account may be paid to or on the order of any one of such persons during their lifetimes or to or on the order of any one of the survivors of them after the death of any one or more of them. The opening of the account in such form shall, in the absence of fraud or undue influence, be conclusive evidence in any action or proceeding to which either the association or the surviv- or or survivors is a party of the intention of all of the parties to the account to vest title to such account and the additions thereto in such survivor or survivors. By written instructions given to the association by all the parties to the account, the signatures of more than one of such persons during their lifetime or of more than one of the survivors after the death of any one of them may be required on any check, receipt, or withdrawal order, in which case the association shall pay the moneys in the account only in accordance with such instructions, but no such instructions shall limit the right of the survivor or survivors to receive the moneys in the account. Payment of all or any of the moneys in such account as provided in this section shall discharge the association from liability with respect to the moneys so paid, prior to receipt by the association of a written notice from any one of them directing the association not to permit withdrawals in accordance with the terms of the account or the instructions. After receipt of such notice, an association may refuse, without- liability, to honor any check, receipt, or withdrawal order on the account pending determination of the rights of the parties. No association paying any survivor in accordance with the provisions of this section shall thereby be liable for any estate, inheritance, or succession taxes which may be due this state. (Emphasis added)

Section 665.301 provides that when a savings account is held in a savings association by a person who becomes incompetent and an adjudication of incompetency has. been made by a court of competent jurisdiction, the association may pay or deliver the withdrawal value of such savings account and any earnings that may have accrued thereon to the guardian for such person upon proof of his appointment and qualification. We relied on this section for our conclusion in Cape Coral Bank v. Kinney, supra, that the guardian of an incompetent had the unrestricted right to withdraw all the funds from a joint account held by the incompetent and another. We believe that interpretation was incorrect. Even assuming that Section 665.301 applies to such a situation (that is, that a savings account standing in the name of an incompetent and another person is held by the incompetent), Section 665.301, we believe, has no purpose other than to protect the savings association which pays or delivers the withdrawal value of the savings account to the guardian of the incompetent. We do not believe this section goes beyond protection of the savings association to confer ownership on the guardian of the incompetent joint depositor.

Section 659.29 offers a short combination of 665.271 and 665.301, providing as follows:

Bank or trust company deposits, or any part thereof, or any interest therein made in the names of two or more persons, payable to either, or payable to either or the survivor, and deposits made to an account standing in the names of two or more persons payable as hereinabove mentioned, may be paid to, or pursuant to the order of, either or any of said persons or. to, or pursuant to the order of, the guardian of the property of any such person who is incompetent, whether the other or others be living or not and whether the other or others be competent or not; and the check or other order for payment of any such person, or the re-' ceipt or acquittance of the person so paid, shall be a valid and sufficient release and discharge to the bank or trust company for any payment so made. (Emphasis added)

We think it clear that Section 659.29 does nothing more than protect the bank which pays funds from a joint account to the guardian of an incompetent joint depositor, and does not confer ownership rights on such a guardian.

In sum, in our view, neither Section 659.29 nor Sections 665.271 and 665.301 in combination alter the rule announced in Howard v. Imes, supra. We hold that the guardian of the property of an incompetent may withdraw funds from a joint checking or savings account in the name of the incompetent and another only to the extent necessary for the incompetent’s support and care. There being no such necessity in the case before us, the guardian’s unauthorized withdrawal of the entire balance in the savings accounts jointly owned by Barbara Nemec and appellee did not have the effect of terminating appellee’s survivorship rights in those accounts. Accordingly, upon Nemee’s death, appellee became sole owner of the funds representing the proceeds improperly withdrawn from the accounts by the guardian and is entitled to have those funds paid to her from Nemec’s estate, where the funds are presently held. Accord, In Re Wszolek Estate, 112 N.H. 310, 295 A.2d 444 (1972).

Appellants offer an alternative argument. They contend that the guardian’s withdrawal of the funds from the joint accounts was permitted by the provisions of Section 744.444, Florida Statutes (1975). That section, which has since been amended, authorized a guardian of the property, without obtaining court approval, to:

(9) Elect whether to dissent from a will or to exercise any other choice that the ward might exercise himself if sui juris or competent, and perform the act or acts or execute the documents as may be necessary or proper to exercise, consummate, or execute any power of appointment or other power that the ward might have lawfully exercised, consummated, or executed if sui juris or competent, as the best interests of the ward require.

The legislature has eliminated most of the foregoing provision, so that Section 744.-444(9) presently permits a guardian only to elect whether to dissent from a will or assert any other right or choice available to a surviving spouse in the administration of a decedent’s estate.

We decline to interpret Section 744.444(9) in its 1975 version as conferring on a guardian the right to withdraw all of the funds from a joint account held in the joint names of the ward and another. We reach that conclusion by considering the juxtaposition in subparagraph (9) of the word “choice” and the words “power of appointment, or other power.” We believe that the choice referred to is the choice whether to exercise a power of election or appointment.

We reverse that part of the final judgment declaring that appellee has no interest in the funds representing the proceeds of the joint savings accounts at Bank of Indian Rocks and First Federal Savings and Loan Association of Largo, and direct that the trial judge enter judgment for appellee with respect to those funds. In all other respects the final judgment is affirmed.

AFFIRMED IN PART AND REVERSED IN PART, WITH DIRECTIONS.

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

      . In re Estate of Thompson, 539 S.W.2d 650 (Mo.Ct.App.1976), affords an example of a statute construed as providing otherwise.

      . Section 656.33, Florida Statutes (1979), the third joint account statute (applying to industrial banks), contains no language expressly touching on ownership rights:
      Bank deposits, or any part thereof, or any interest therein made in the names of two or more persons, payable to either, or payable to either or the survivor, may be paid to either of said persons whether the other be living or not; and the receipt or acquittance of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made.

      . We are aware that joint accounts are frequently established with one joint owner placing funds in an account with an understanding that the other joint owner is to utilize those funds during the depositor’s life to provide for the depositor’s needs. If the depositor is subsequently declared incompetent, the possibility exists that, under the general rule as restated in this case, the nondepositing joint owner may withdraw all of the funds from the account prior to a judicial determination of needs, thus frustrating the depositor’s intent. To prevent this scenario the trial judge, on declaring the depositor incompetent, could entertain an application to restrain the nondepositing joint ownér from withdrawing any funds pending a determination by the court of the parties’ intent in establishing the account.-
      In 1977 the legislature enacted Section 659.-292, Florida Statutes (1979), creating convenience accounts and thereby eliminating one of the policy considerations underlying Cape Coral Bank, i. e., the need to insure that a depositor’s funds are available to the guardian of the depositor to provide for his needs. In 1979 the legislature enacted a similar statute applicable to savings associations. § 665.272, Fla.Stat. (1979). The convenience account enables a principal to deposit money and designate an agent with the right to make deposits and to withdraw funds from or draw checks on the, account. The statute contemplates payment of any balance to the guardian of the principal’s property in the event of incompetency or to his personal representative in the event of death. Thus, during the principal’s incompetency, the funds can be used for his benefit; yet, the principal avoids the risk of the balance being paid to an unintended beneficiary upon incompetency or death.


source: Caselaw Access Project

author: OTT, Judge.

license: Public Domain

text:
    ACCREDITED SURETY AND CASUALTY COMPANY, INC., Appellant, v. The STATE of Florida, for the Use and Benefit of HILLSBOROUGH COUNTY, Florida, Appellee.
    No. 79-746.
    District Court of Appeal of Florida, Second District.
    May 9, 1980.
    Gerry Gordon, P.A., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

The question before us is whether a surety on a bail bond is discharged when the accused is subsequently arrested again on the same charge. In this action the trial court concluded that the surety was not discharged and ordered the forfeiture of the bond. We hold that the trial court erred and reverse.

On June 7, 1978 Margaret Arenas was arrested on a charge of robbery. Bail was set and the accused was released from custody upon the posting of a surety bond by the appellant. The bond secured the appearance of the accused before the court on August 29. On July 6, 1978 the accused was arrested on two counts of robbery, one of which was the same as that for which she had been previously arrested and for which appellant had posted bond. The ac-' cused was released on her own recognizance on both charges and appearance was again set for August 29, 1978. She failed to appear and an order of forfeiture of the original surety bond was entered against the appellant.

A bail bond is a three party contract between the state, the accused and the surety. The surety guarantees the state that the accused will appear at subsequent proceedings. The rule in this and several other states is that the surety is discharged if the accused is rearrested on the same charge or for the same offense. Ex parte Cribbs, 109 Fla. 286, 146 So. 912 (1933); Cash et al. v. State, 73 So.2d 903 (Fla.1954); Commonwealth v. Stuyvesant Insurance Co., 366 Mass. 611, 321 N.E.2d 811 (1975); State v. Gonzalez, 69 N.J.Super. 283, 174 A.2d 209 (1961); Commonwealth v. Skaggs, 152 Ky. 268, 153 S.W. 422 (1913).

The rule is predicated on the theory that the release of an accused on bond commits him to the exclusive custody of the surety. Rearrest on the same charge removes the accused from the surety’s control, thereby releasing the surety from its obligation to ensure the accused’s appearance. The return of the accused to the state’s custody constitutes a breach of the surety contract, and the court cannot create a new obligation on the part of the surety by attempting to “continue bail” under the previously posted bond.

The rationale of the custody theory is that the person having the accused in custody is in the best position to secure his appearance. The state’s discretion to either require the accused to post a new bond or to release him on his own recognizance is unquestioned. However, if the state elects to release on recognizance, then the state assumes the risk that the accused may not appear for subsequent proceedings.

It follows that when Arenas was arrested on the robbery charge for which the appellant had posted bond, the surety agreement was breached because appellant was deprived of the exclusive custody of the accused. Appellant’s obligation was thereupon extinguished. The subsequent release of Arenas on her own recognizance constituted a new contract to appear between only her and the state. Appellant was not a party to that new contract and therefore was not liable for Arenas’ failure to appear. Accordingly, the final judgment of the circuit court ordering the forfeiture of appellant’s $10,502 surety bond is reversed.

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


author: GRIMES, Chief Judge.

text:
    Gary L. PATMORE, Appellant, v. STATE of Florida, Appellee.
    No. 79-1327.
    District Court of Appeal of Florida, Second District.
    May 9, 1980.

      Jack O. Johnson, Public Defender, and Douglas A. Lockwood, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

Gary L. Patmore pled nolo contendere to charges of loitering and possession of marijuana, reserving the right to appeal the denial of his motion to dismiss the loitering charge and the denial of his motion to suppress the marijuana. This appeal followed.

Appellant was walking near 4th Street in St. Petersburg at about 9:00 p. m. one evening when a police car followed by a police van passed him. He reacted peculiarly, turning around and walking hurriedly away. Eventually he broke into a run. The police were looking for suspects in an armed robbery, and because of appellant’s reaction to the car, they suspected that he might have been involved in the robbery. The officers in the van chased him and observed him drop a bag which was later found to contain marijuana. They arrested him and took him to the scene of the robbery where witnesses exonerated him. Nonetheless, the officers then charged him with loitering and possession of marijuana.

Appellant argues that the state failed to make a prima facie case for loitering. Two elements must be present in order to sustain a conviction for loitering. First, the accused must be prowling or loitering in a place, at a time, or in a manner not usual for law-abiding citizens. Second, there must be conduct on the part of the accused which warrants a justifiable and reasonable concern for the safety of persons or property in the vicinity. State v. Ecker, 311 So.2d 104, 106 (Fla.1975). In order to establish the second element, the police must, prior to making an arrest, provide an opportunity for the accused to dispel any concern by requesting him to identify himself and explain his presence, unless the circumstances are such that it is impractical for the police to give him this opportunity. S. F. v. State, 354 So.2d 474 (Fla. 3d DCA 1978); L. L. J. v. State, 334 So.2d 656 (Fla. 3d DCA 1976); § 856.021(2), Fla.Stat. (1979). The statute is designed to proscribe conduct posing a reasonable threat to the public safety, but it may not be constitutionally applied as a catchall for vaguely undesirable conduct. See generally 28 U.Fla.L.Rev. 250 (1975). Appellant’s actions may have given the police reasonable grounds to suspect him of the robbery, but they did not satisfy the requisite elements for loitering. Accordingly, the court should have granted the motion to dismiss the loitering charge.

Though he has not pursued the matter on appeal, appellant did argue to the trial court that it should suppress the marijuana as the “fruit of the poisonous tree.” There is no merit in that contention. The police had sufficient articulable suspicions to stop appellant for questioning pursuant to Section 901.151, Florida Statutes (1979), and the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When he fled and abandoned the bag containing the marijuana, he lost his right to the Fourth Amendment protection of that bag. No search occurs when police retrieve property which a suspect has voluntarily abandoned in an area where he has no reasonable expectation of privacy. State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979).

We reverse the judgment and sentence for loitering and affirm the judgment and sentence for possession of marijuana.

HOBSON and CAMPBELL, JJ., concur.


author: PER CURIAM.

text:
    Henry O. WILSON, Appellant, v. Mary Kathryn WAHL, formerly Mary Kathryn Wilson, Appellee.
    No. 79-1466.
    District Court of Appeal of Florida, Second District.
    May 9, 1980.
    Glenn E. Brown of Brown & Mettler, Tampa, and George W. Phillips, Tampa, for appellant.
    Samuel Robert Mandelbaum, Tampa, for appellee.
   PER CURIAM.

On this appeal we reverse an order dismissing the appellant’s complaint for the issuance of a writ of replevin. The complaint contains the necessary allegations required by Chapter 78, Florida Statutes (1977), for the issuance of an order to show cause why the property should not be taken from the possession of the defendant and delivered to the plaintiff.

It appears that the order of dismissal was entered because there was another action pending between the parties in another division of the same court involving questions of law and fact common to those raised by the complaint in the case at bar. Under these circumstances, we think the administration of justice is best served by an order which averts the piecemeal handling of the claims between the parties. An order which consolidates the actions, rather than the order which dismissed the instant action will effect that desired result. Ray v. Pentlicki, 375 So.2d 875 (Fla. 2d DCA 1979); In re Guardianship of Bentley, 342 So.2d 1045 (Fla. 4th DCA 1977); Fla.R.Civ.P. 1.270.

Accordingly we reverse the order and reinstate the complaint for further proceedings consistent with this opinion.

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


text:
    Martin K. ALPERT, Appellant, v. DEPARTMENT OF BANKING AND FINANCE, DIVISION OF FINANCE, Appellee.
    No. 79-1860.
    District Court of Appeal of Florida, Second District.
    May 9, 1980.
    John W. Bakas, Jr., of McWhirter & Ba-kas, Tampa, for appellant.
    Michael A. Gross, Tallahassee, for appel-lee.
   PER CURIAM.

The Department of Banking and Finance revoked appellant’s license as a mortgage broker on two grounds. We affirm on the basis of the Department’s finding that appellant, by a course of conduct, demonstrated negligence or incompetence in performing acts for which he was responsible under Chapter 494, Florida Statutes (1979).

In view of our disposition, we find it unnecessary to pass on the other ground on which the Department revoked appellant’s license.

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


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

text:
    TOLBERT ENTERPRISES, INC., et al., Appellants, v. Clarence L. FLEMING, Spence Brothers Properties, Inc. and Earl L. Thompson, Appellees.
    No. OO-155.
    District Court of Appeal of Florida, First District.
    May 12, 1980.
    William K. Jennings, Fort Walton Beach, for appellants.

      Daniel C. Campbell, Law Office of Ferrin C. Campbell, Sr., P. A., Crestview, for ap-pellees.
   ROBERT P. SMITH, Jr., Judge.

A landowner appeals from a final declaratory judgment allowing, as against appellant’s reliance on restrictive deed covenants, a recreational vehicle park with camping facilities on Santa Rosa Island in Okaloosa County. The trial court correctly determined that the Board of County Commissioners, successor to the Island Authority, had power under the restrictive deed covenants to authorize use of privately held lands for facilities deemed necessary and proper by the Board of County Commissioners “to serve the recreational needs of the tourists and vacationists” on the island. A recreational vehicle park with camping facilities, as proposed by appellee Fleming, was a use which the Board of County Commissioners had discretion to permit. The Board’s action in granting a building permit was therefore within the Board’s competence, and its later attempted retraction of that action was based upon the Board’s misconception that it previously acted illegally. The circuit court was therefore correct in sustaining the Board’s exercise of discretion, previously exercised, and in restoring the building permit issued to appel-lee Fleming.

AFFIRMED.

BOOTH and SHAW, JJ., concur.


author: ERVIN, Judge.

text:
    Quentin Wayne ATKINS, Appellant, v. STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES and National Loss Control Service Corp., and State of Florida, Department of Military Affairs, Appellee.
    No. QQ-196.
    District Court of Appeal of Florida, First District.
    May 12, 1980.

      Malcolm Lewis Kneale, Miami, for appellant.
    Robert H. Gregory and Summers Warden, Miami, for appellees.
   ERVIN, Judge.

Appellant Atkins filed a workmen’s compensation claim against both the Department of Highway Safety and Motor Vehicles and the Florida Department of Military Affairs after he ruptured an intervertebral disc while lifting a water tank in the course of his duties at the Florida National Guard summer camp at Camp Blanding, Florida, in 1977, alleging he was employed by either one at the time of his injury. He was already a national guardsman when he became employed with the appellee Department of Highway Safety, etc., as a highway patrolman, and the Florida Highway Patrol, a state employer, was required to give him up to 17 days leave of absence “without loss of pay, time or efficiency rating ...” to attend compulsory maneuvers such as the two-week summer camp. Section 250.-48, Florida Statutes (1977); 32 U.S.C. § 502a(2). The judge of industrial claims dismissed the claim against the Florida Highway Patrol, ruling that Atkins’s injury did not arise out of or in the course of his employment as a highway patrolman. He also held that he had no jurisdiction over the claim against the Department of Military Affairs and that Florida’s Compensation Act did not apply to national guardsmen injured in active duty during the compulsory two-week encampment, because Title 32 of the United States Code governs compensation claims for such injuries. Atkins appeals both rulings, and we affirm.

The two-week national guard summer camp had no connection with Atkins’s employment as a Highway Patrolman. Neither membership in the Guard nor attendance at summer camp was a condition of his employment. The Highway Patrol, as a state employer, was required by state law to pay him for the two-week period.

Although it has not yet been decided in Florida, the question of whether a National Guardsman is to be compensated under a state’s compensation act for injuries received while on active duty has been decided both affirmatively and negatively in other states. See 1B Larson, Workmen’s Compensation Law, § 56.34, 9-264 n. 94, 9-265 n. 95. Under the particular circumstances before us, we agree Atkins was not an employee of the Department of Military Affairs of the State when he was injured. Attendance at the two-week summer camp is mandatory for national guardsmen under 32 U.S.C. § 502a(2). Compensation for injuries received during such training is provided by 32 U.S.C. §§ 318, 319. Moreover, the federal government pays national guardsmen for attendance at such maneuvers. See 37 U.S.C. § 204c.

We point out that Atkins was not in “active service” in this state as that term is defined in Section 250.27; therefore, he was not entitled to pay from the state under Section 250.23. Nor was he entitled to reimbursement from the state under Section 250.19. Thus, Atkins had no state remedy for injuries, whether under Chapter 440 or under Chapter 250. Compare, Andrews v. State of Arizona, 53 Ariz. 475, 90 P.2d 995 (1939). Whether Atkins would be entitled to workmen’s compensation from the state had his injury arisen out of and in the course of employment during active service for the state as defined in Section 250.27 is not an issue before us and one which is not decided in this opinion. The order of the judge of industrial claims is

AFFIRMED.

SHIVERS and SHAW, JJ., concur.

      . Section 250.34(1), states that members of the state militia who are “injured or disabled while in the active military service of the state under competent orders . . ” are entitled to medical remedies and compensation.


author: SHAW, Judge. BOOTH, Judge,

text:
    METROPOLITAN DADE COUNTY, BOARD of COUNTY COMMISSIONERS, Appellants, v. Theodore WYCHE, Appellee.
    No. QQ-282.
    District Court of Appeal of Florida, First District.
    May 13, 1980.
    Stuart L. Simon,- Miami, and Burt L. Saunders, Homestead, for appellants.
    R. Scott Boundy of High, Stack, Lazenby, Bender, Palahach & Lacasa, Miami, for ap-pellee.
   SHAW, Judge.

The appellee, Theodore Wyche, was kicked in the right side by an unruly inmate of Jackson Memorial Hospital in Dade County, Florida on November 12,1976. Appellants and appellee agree that there was immediate pain and that the appellee was treated at the hospital emergency room the day following the injury for vomiting and pain. There was no diagnosis of hernia and appellee, upon his release from the hospital, continued to work despite occasional pain in the right inguinal area. Several weeks pri- or to March 2, 1978 the pain became more acute; appellant was examined by Dr. Rod-man and operated on for a right inguinal hernia.

Appellants’ initial point on appeal challenges the deputy commissioner’s finding that the claimant suffered a compensable hernia. Appellants allege that the hernia did not appear suddenly as required by § 440.15(6)(b), Florida Statutes, or immediately following the accident and is therefore not compensable under the Florida Workers’ Compensation Law. Appellants refer us to Frohman Gear Company v. Fellows, 149 So.2d 557 (Fla.1963). The facts in Frohman are even more dramatic than those presented by the instant appeal. The claimant in Frohman felt a ripping or tear in his groin area accompanied by a “burning-cool sensation.” Six months later the claimant noticed a bulge or protrusion and within a year after he noticed the swelling he consulted his family doctor who testified that it was his opinion that the hernia Was caused by the alleged accident of March, 1959. A second medical witness testified that it was highly unlikely that the alleged accident caused the hernia. The deputy, however, accepted the opinion of the family doctor and awarded benefits. The Florida Industrial Commission affirmed, but the Supreme Court reversed the award. In so doing, the Court recognized the special safeguards which the Legislature saw fit to throw around hernia claims and concluded:

In the instant case, the hernia, according to the claimant, did not appear until six months after the alleged accident and was so diagnosed by a physician twelve months later. It cannot be said to have “appeared suddenly” or “immediately followed the accident”, and, certainly, it cannot be said to have appeared “so soon after the injury that it would not be possible to attribute it to any other cause.”

The Frohman rationale appears to control the instant cause in that there has been no showing that the hernia for which the claimant seeks benefits suddenly appeared or immediately followed the accident. As in Frohman it cannot be said that a hernia appeared so soon after the injury that it would not be possible to attribute it to other causes. Our reading of Frohman compels the conclusion that the claimant has not proved the essential requirements of a compensable hernia. See Sears, Roebuck and Co. v. Moreno, 382 So.2d 1319. (Fla. 1st DCA 1980).

The deputy’s order finding the hernia compensable is reversed and the claim is dismissed thereby mooting all remaining issues.

ROBERT P. SMITH, Jr., J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I dissent. Crews v. Town of Bay Harbor Islands, 378 So.2d 1265 (Fla. 1st DCA 1979).


author: MILLS, Chief Judge.

text:
    DORIC FOOD COMPANY and Fireman’s Fund Insurance Company, Appellant, v. Elza Rayford ALLEN, Appellee.
    No. QQ-345.
    District Court of Appeal of Florida, First District.
    May 13, 1980.

      C. Thomas Ferrara of Pitts, Eubanks & Ross, Orlando, for appellant.
    Edward H. Hurt and Donna L. Bergh, Orlando, for appellee.
   MILLS, Chief Judge.

Doric Food Company and Fireman’s Fund Insurance Company appeal an order of the Judge of Industrial Claims rejecting their Martin v. Carpenter defense and awarding workers’ compensation benefits to Elza Rayford Allen. We reverse.

Martin v. Carpenter, 132 So.2d 400 (Fla.1961), is the landmark case involving an employer-carrier’s defense against an otherwise compensable injury on the ground that the employee fraudulently procured employment by misrepresenting her physical condition. In that case, the Supreme Court held that compensation would be precluded under the following conditions:

“. . .if there is shown to be a causal relationship between the injury and the false representation and if it is shown that (1) the employee knew the representation to be false, (2) the employer relied on the false representation, and (3) such reliance resulted in consequent injury to the employer.”

In the instant case, Allen admits that there were false representations and they were knowingly and intentionally made. He was untruthful on his employment application; his medical history questionnaire; and, initially, on deposition in this claim.

As for the employer’s reliance on the false representation, the unrebutted testimony is that the woman who took Allen’s application scheduled an appointment for a pre-employment physical examination for him based on the answers in the application. She testified that had Allen answered the questions concerning prior back injuries and prior compensable injuries honestly, she would not have scheduled the examination but would have referred the application to her supervisor. Also unrebutted was the testimony of the doctor who had examined Allen twice. He stated that he performed only a cursory examination based on the representations in the medical history questionnaire and, he asserted, if Allen had ever indicated a prior back injury, he would have performed a more thorough examination.

There was also testimony by the Doric supervisor, Robert E. Miller, that he would not have hired Allen if he had known of the prior back injury. The record reveals an attempt by Allen to rebut the supervisor’s testimony with testimony by a rehabilitation counselor. That witness stated that while he was looking for employment for another client who had a back injury, he contacted Doric Food and talked with Miller about employment possibilities for his client. Miller told him that he had never hired anyone with a back injury; but since the counselor told him there was some program which would allow him to keep his workers compensation rates low even if he hired someone with a prior back injury, he was willing to discuss the employment possibilities for the rehabilitation counsel- or’s client.

This testimony does not rebut Miller’s contention that he never would have hired someone with a prior back injury under the circumstances at issue here. In fact, it underlines the policy reasons announced in the Martin v. Carpenter decision:

“First, this Court, and others, have in construing the Act determined that there is a presumption that the ‘employer takes the employee as he finds him.’ Davis v. Artley Const. Co., 1944, 154 Fla. 481, 18 So.2d 255, and Borden’s Dairy v. Zanders, Fla.1949, 42 So.2d 539.
“Except as limited by Sec. 440.151(1)(b) and Sec. 440.02(19) F.S.A. this presumption makes the employer responsible for compensation benefits to an employee who at the time of employment suffered a disease or bodily infirmity which is accelerated or aggravated by a compensable injury. In other words the presumption places on the employer the risks attendant upon hiring an infirm employee.
“This presumption makes it wise that an employer determine before employment what state of health an employee enjoys in order to avoid the risks which are resultant from hiring an infirm employee. We do not think the misrepresentations of an employee should be allowed to defeat the efforts of the employer to protect himself from this presumption and the assumed risks.
“Second, by Sec. 440.15(5), F.S.A. our legislature, in an effort to encourage the employment of those afflicted or disabled in some way, has created a special disability, or second injury, fund which allows an employer to be reimbursed for compensation paid an employee for disability due to a pre-existing condition. To have resort to this fund, however, the employer probably must either have had knowledge of the pre-existing condition when he hired the employee, or have continued the employment after obtaining knowledge thereof.
“Thus, an employee who misrepresents a condition which is causally related to a subsequent claim for benefits not only robs the employer of making a choice as to whether he will or will not hire the employee with the risks attendant thereon, but also denies the employer resort to the special disability fund.”

In the instant case, .the Judge ruled: . . the employer did not rely primarily on said application in hiring the claimant, but relied instead on the physical examinations of Dr. Crow (Brevard County Board of County Commissioners v. Robinson, IRC Order 2-2718, January 31, 1975; Storey v. Dade Drydock Corporation, IRC Order 2-1467, June 30, 1965).” We disagree with this conclusion.

Firstly, the test is only whether the employer relied on the false representation, not whether it relied primarily on the false representation. Secondly, the record supports even the more difficult test of primary reliance because it clearly establishes that Allen would not have been hired or even have been given the pre-employment physical but for his misrepresentations. City of Homestead, Dade County v. Watkins, 285 So.2d 394 (Fla.1973). Furthermore, the cases cited by the Judge in support of this finding are inapplicable to the facts of this case. In Robinson the Industrial Relations Commission refused to apply the Martin v. Carpenter doctrine because the doctor who performed the physical examination was the same doctor who had treated the claimant for a previous back injury and workers’ compensation claim and his knowledge of the prior back injury was imputed to the employer. In Storey the IRC held that the highly visible five-inch scar on the claimant’s back indicated previous back injuries and that knowledge was also imputed to the employer. Here, there was no prior relationship between Dr. Crow and Allen and there were no visible signs of previous back injuries.

The final issue is whether there was a causal relationship between the injury and the false representation. The Judge concluded the legal test was the relationship between the falsification and the accident and applied this test in resolving to deny the employer-carrier’s Martin v. Carpenter defense. This was error. For this reason this cause must be reversed and remanded with directions that the Judge (now Deputy Commissioner) reevaluate the Martin v. Carpenter defense in light of this opinion and apply the proper causal relationship test.

The third issue on appeal is without merit.

REVERSED and REMANDED with directions.

ERVIN and SHIVERS, JJ., concur.


text:
    Robert Lee McCRAE, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 79-1925.
    District Court of Appeal of Florida, Third District
    May 13, 1980.
    Kaplan, Sicking, Hessen, Sugarman, Ro-senthal & DeCastro and Robert A. Sugar-man, Miami, for appellant.
    Robert A. Ginsburg, County Atty. and Amy N. Dean, Asst. County Atty., for ap-pellee.
    Before HUBBART, NESBITT, and DANIEL PEARSON, JJ.
   PER CURIAM.

The order of the circuit court dismissing the appeal is reversed and the appeal reinstated on the reasoning and authority of Murray v. Metropolitan Dade County, 382 So.2d 884 (Fla. 3d DCA 1980).

Reversed and remanded.


text:
    Julian RAMIREZ a/k/a Julian Rodriguez, Appellant, v. The STATE of Florida, Appellee.
    No. 80-325.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Julian Ramirez, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ 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:
    Raymond RHOME, Appellant, v. The STATE of Florida, Appellee.
    No. 80-852.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Raymond Rhome, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and PEARSON, DANIEL, 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.


text:
    Arthur SMITH, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 80-892.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Arthur Smith, Jr., in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, 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 this motion is affirmed.


author: MILLER, ROBERT P., Associate Judge.

text:
    Andrew John HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 78-291/T4-58.
    District Court of Appeal of Florida, Fifth District.
    May 14, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, App. Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Joy B. Shearer, Asst. Atty. Gen., and Michael W. Strickland, Legal Intern, West Palm Beach, for appellee.
   MILLER, ROBERT P., Associate Judge.

This is an appeal from an order of the Circuit Court of Orange County withholding adjudication of guilt and placing defendant on probation for the crime of sexual battery.

The victim, a twelve-year-old girl, reported that she was sexually battered on October 3, 1976. Two months later, she saw appellant walking down the street and identified him as her assailant.

Over objection, the mother and father of the victim were permitted to testify to certain of her statements. The mother was allowed to testify that when the daughter arrived home after the incident in a disheveled, frightened condition, she told her “that a boy had pulled her off her bicycle and had taken her clothes down.” The father was allowed to testify to his daughter’s identification of the appellant when they happened to pass him on the street two months after the incident.

The victim was present and testified at the trial to both the attack and her subsequent identification of appellant.

The parties in their briefs restrict their argument to whether or not such testimony would fall into either the res gestae exception to the hearsay rule or the rules relating to the admissibility of prior consistent statements to rebut impeachment evidence implying recent fabrication. However, since the testimony in each instance is clearly admissible for other reasons it is not necessary for this court to determine its admissibility as a prior consistent statement or as a res gestae statement.

The testimony of the mother was in effect the child’s reporting of a sex crime immediately after the event. Such a report has long been recognized as admissible in evidence by the courts of this state. Our Supreme Court in Ellis v. State, 25 Fla. 702, 6 So. 768 (1889), in a rape case, stated:

The female outraged should seek the first opportunity to complain, and the fact that she does complain goes to the jury as evidence. ...

The court in that case went on to hold, however, that the detailed circumstances of the offense were not admissible under such rule. For recent decisions see Irvin v. State, 66 So.2d 288, 294 (Fla.1953); Gray v. State, 184 So.2d 206 (Fla. 2d DCA 1966); Thomas v. State, 220 So.2d 638 (Fla. 3d DCA 1969); and Purdy v. State, 343 So.2d 4 (Fla.1977). As additional authority for and explanation of the admissibility of such statement, see 3 Underhill’s Criminal Evidence § 758 (5th Ed. 1957); also 2 Wharton’s Criminal Evidence § 313 (13th Ed. 1972).

The testimony of the father which appellant contends was hearsay was her identification of appellant in his presence. Such testimony of a person who witnesses an extra-judicial identification of the accused by a victim is admissible when the victim is present, testifies at the trial and is subject to cross-examination by the accused. State v. Freber, 366 So.2d 426 (Fla.1978). See also 5 West’s Florida Practice § 801.1 (1977) and cases cited therein. Although not controlling of this case, it should be noted that this rule has been codified into the new evidence code. See § 90.801(2)(c), Fla.Stat. (1979).

Appellant having failed to demonstrate error, the order of the trial court placing the appellant on probation is affirmed.

COBB and UPCHURCH, JJ., concur.


author: UPCHURCH, Judge.

text:
    Edwin F. GORDON, Appellant, v. George M. BARLEY, Jr., as General Partner of the Barley Limited Partnership; Commercial Bank at Winter Park, as Trustee for Evans Central Florida Cardiology Group, P. A., Pension Trust, and as Trustee for Evans Central Florida Cardiology Group, P. A., Profit Sharing Trust; Charles A. Black; Jacob Perlow; and Tucker Frederickson, Appellees.
    No. 80-131.
    District Court of Appeal of Florida, Fifth District.
    May 14, 1980.
    John W. Kearns, Miami, for appellant.
    David B. King, Orlando, for appellees, Barley, Barley Ltd. Partnership, Black, Per-low & Frederickson.
    J. Gordon Arkin, Orlando, for appellee, Commercial Bank.
   UPCHURCH, Judge.

Appellees, George M. Barley, Jr., and Commercial Bank at Winter Park, have filed a motion to dismiss the appeal of appellant, Edwin F. Gordon.

In an action seeking a declaration of rights as to his status in a limited partnership, appellant filed a notice of lis pendens encumbering certain real property of the partnership (appellees). The trial court, upon motion by appellees, dissolved the notice of lis pendens in an order issued July 31, 1979. Appellant filed a motion for rehearing which the trial court denied on January 8, 1980. Appellant then instituted this appeal on January 30, 1980.

Appellees now move to dismiss the appeal because of appellant’s failure to file the appeal within thirty days of the date of the order dissolving the notice of lis pendens on July 31, 1979. Appellees contend that a motion for rehearing was not authorized in the instant situation under Rule 1.530, Florida Rules of Civil Procedure, and therefore under Rule 9.020(g), Florida Rules of Appellate Procedure, the time period for filing a notice of appeal was not tolled since this rule only applies to authorized motions for new trial and rehearing.

Appellant relies upon Rule 9.130(b), Florida Rules of Appellate Procedure, which speaks of filing the notice of appeal “within 30 days of rendition of the order to be reviewed.” Appellant argues that since he filed a timely motion for rehearing the order being appealed was not rendered, according to Rule 9.020, Florida Rules of Appellate Procedure, until “disposition thereof” on January 8, 1980.

Rule 1.530(a) and (b), Florida Rules of Civil Procedure, govern motions for rehearing in trial courts and was interpreted in Home News Publishing Co. v. U-M Publishing, Inc., 246 So.2d 117 (Fla. 1st DCA 1971), as authorizing the filing of motions for rehearing on matters heard without a jury only to judgments rendered by the court and not to interlocutory orders. The Florida Supreme Court, in Wagner v. Bieley, Wagner and Associates, Inc., 263 So.2d 1 (Fla.1972), agreed with this interpretation and quoted the following passage from Home News:

A literal interpretation of the rule would seem to indicate that a motion for rehearing may be directed only to final judgments rendered by a court, since that is the only judicial action specified in the rule authorizing the filing of such a motion. If the rule-making authority had intended to authorize the filing of a motion for rehearing directed to an interlocutory order, it could easily have so provided. Unless the filing of a motion for rehearing to an interlocutory order is authorized by a rule of the court promulgated by thé rule-making authority, then its filing is improper and would not toll the rendition date of the order or the running of the time for seeking appellate review of the order complained about.

See also Florida East Coast Railway Co. v. Southern Sanitation Service, Inc., 370 So.2d 1200 (Fla. 4th DCA 1979) wherein the court stated that a motion for rehearing directed to an interlocutory order will not suspend rendition of that order and thus has no effect on the time for filing a notice of appeal.

While these cases were decided under the former appellate rules, the result in the instant case is identical. Here, appellant’s position is that this is an interlocutory appeal brought pursuant to Rule 9.130(a)(3), Florida Rules of Appellate Procedure, from the trial court’s order dissolving the notice of lis pendens. Subsection (b) of Rule 9.130 provides that jurisdiction for review of orders under this rule “shall be invoked by filing . notice . . . within 30 days of rendition of the order to be reviewed.” Likewise a petition for common law certiorari must be filed within thirty days of rendition of the order to be reviewed. Rule 9.100(c), Florida Rules of Appellate Procedure. Rule 9.020(g), Florida Rules of Appellate Procedure, defines rendition of an order as:

The filing of a signed written order with the clerk of the lower tribunal. Where there has been filed in the lower tribunal an authorized and timely .motion for new trial or rehearing . . . the order shall not be deemed rendered until disposition thereof.” (Emphasis added)

Therefore, a motion for rehearing must be both timely and authorized in order to fall within the tolling provision of Rule 9.020(g). As Home News and its progeny have held, though, under Rule 1.530(a) and (b), filing of a motion for rehearing is not authorized for interlocutory orders. Hence, such a motion would not fall within Rule 9.020(g) and would not toll the rendition date of the order. Therefore, since appellant failed to file his notice of appeal within thirty days of the rendition of the order of the trial court (July 31, 1979), his appeal should be dismissed as untimely, whether viewed under Rule 9.130(a) or under the rules governing common law certiorari.

The motion to dismiss is granted.

DAUKSCH, C. J., and COBB, J., concur.

      . While there are no reported cases under the revised appellate rules discussing appeal of such orders under 9.130(a), case law holds that orders dissolving a notice of lis pendens were reviewable as interlocutory appeals under former Rule 4.2. See Dominguez v. Lopez, 346 So.2d 627 (Fla. 3d DCA 1977); De Mapia v. Equitable Development Corp., 302 So.2d 418 (Fla. 1st DCA 1974); Appellant points to the Committee Notes to Rule 9.130 which state:
      Allowable interlocutory appeals from orders in actions formerly cognizable as civil actions are specified, and are essentially the same as under former Rule 4.2.
      In addition, the notice of lis pendens in the instant case was apparently dissolved, inter alia, because the pleading did not establish that the action was founded on a duly recorded instrument. Section 48.23, Florida Statutes, provides that in such cases “the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.” Rule 9.130(a)(3)(B) provides that properly reviewable non-final orders include those which:
      [Gjrant, continue, modify, deny or dissolve injunctions
      Alternatively, review of the instant order is available via common law certiorari if the order is viewed as departing from the essential requirements of the law. Sunrise Point, Inc. v. Foss, 373 So.2d 438 (Fla. 3d DCA 1979). See Rule 9.040(c), Fla.R.App.P.
      We need not determine, however, whether this appeal is appropriate under Rule 9.130(a) or via common law certiorari since it is untimely under the rules governing each.


text:
    GRAHAM TRUCKING LINES, INC., a Florida Corporation, Appellant, v. C & D TRUCKING SERVICE, INC., a Florida Corporation, Appellee.
    No. 79-1437/T4-628.
    District Court of Appeal of Florida, Fifth District.
    May 14, 1980.
    Sam E. Murrell, Orlando, for appellant.
    James E.. Foster of Fishback, David, Dominick & Bennett, Orlando, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Town of Davie v. Hartline, 199 So.2d 280 (Fla.1967).

DAUKSCH, C. J., COBB, J., and BOOTH, JOHN W., Associate Judge, concur.


author: DAUKSCH, Chief Judge.

text:
    Jewel H. WELTZ et vir, Appellants, v. George MANN et al., Appellees.
    No. 79-235.
    District Court of Appeal of Florida, Fifth District.
    May 14, 1980.
    Michael Lake of Bogin, Munns & Munns, Orlando, for appellants.
    Reinald Werrenrath, III of Akerman, Senterfitt & Eidson, Orlando, for appellees.
   DAUKSCH, Chief Judge.

On appeal is an order dismissing a claim for punitive damages against various persons, the appellees. Appellant has filed an “interlocutory” appeal urging us to take jurisdiction. We have no jurisdiction because the order is not one of those non-final orders within the limits of Rule 9.130(a)(3), Florida Rules of Appellate Procedure. More particularly, it is not an order under Rule 9.130(a)(3)(C)(IV) as apparently appellant urges it is. This is an order deciding the issue of liability against a party seeking affirmative relief. We shall decide the matter on plenary appeal, if it is properly raised.

This appeal is dismissed, sua sponte.

COBB and UPCHURCH, JJ., concur.

      . These appeals are properly called Appeals from Non-Final Orders. Rule 9.130, Fla.R.App.P. (1977).


text:
    Don Charles ABEL, Appellant, v. STATE of Florida, Appellee.
    No. 79-794.
    District Court of Appeal of Florida, Second District.
    May 14, 1980.
    Jack 0. Johnson, Public Defender, David A. Davis, Asst. Public Defender, and Richard A. McKinley, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The court revoked appellant’s probation based on violations of four conditions of his probation, i. e., failure to file monthly reports with his probation supervisor, failure to pay $10.00 per month toward his supervision costs, changing his residence without his supervisor’s consent, and failure to work diligently at a lawful occupation and support his dependents to the best of his ability. The court had adjudicated appellant insolvent six weeks prior to his revocation hearing as well as one year before, just prior to his trial on the offense underlying the probation. At the revocation hearing, the state presented no evidence bearing on appellant’s ability to pay, nor did the court make a specific finding of ability.

Accordingly, the finding of violation of the condition requiring appellant to contribute $10.00 per month toward the costs of his supervision is stricken from the order of revocation. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979). The order, judgment, and sentence are affirmed in all other respects.

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


text:
    Ronnie Lee SPENCER, Appellant, v. STATE of Florida, Appellee.
    No. 79-1840.
    District Court of Appeal of Florida, Second District.
    May 14, 1980.
    Jack 0. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Ronnie Lee Spencer appeals from the sentence imposed by the trial court upon the appellant’s guilty plea to three counts of burglary and involuntary sexual battery. The appellant contends that the trial court erred in failing to give the appellant credit for time served in the state mental hospital where the appellant had been committed as a mentally disordered sex offender. We agree with the appellant and remand this case with instructions that the trial court award the appellant credit time for time spent in the treatment program. Kirouac v. State, 371 So.2d 201 (Fla. 2d DCA 1979).

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


author:
BLANCHE, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. MAIN MOTORS, INC.
    No. 64849.
    Supreme Court of Louisiana.
    Nov. 12, 1979.
    Concurring Opinion May 23, 1980.

      Herschel C. Adcock, Adcock, Dupree & Shows, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Ralph L. Roy, Asst. Dist. Attys., for plaintiff-appellee.
   BLANCHE, Justice.

The defendant, Main Motors, Inc., was found guilty of violation of La.R.S. 47:1641, willful failure to collect or truthfully account for or pay over state sales tax. The defendant was sentenced to pay a $1,000 fine and costs. From this verdict, Main Motors appeals.

Main Motors, Inc. is a new car dealership. In addition to the sale of cars, which comprises the bulk of its business and on which the buyer pays the sales tax to the vehicle commissioner, the defendant makes certain other sales to which the state sales tax is applicable. To report the tax due, the defendant is required to file a sales tax return and remit therewith the tax collected to the collector of revenue.

Main Motors was audited by Revenue Agents of the Louisiana Department of Revenue and Taxation for the period of January 1, 1974 through July 31, 1977. The audit was conducted to determine if Main had properly collected, reported and remitted the State sales tax due the Department on the company’s taxable sales.

During the course of the audit, the revenue agents performed an invoice by invoice examination of Main Motors’ counter tickets and repair orders for a selected' three month period of each year covered by the audit. For each of these months, the examination revealed systematic discrepancies in the way Main collected, accounted for and paid state sales taxes. More particularly, the audit demonstrated that in the case of certain tax exempt sales, Main treated the sales as taxable, collected a sales tax and then turned around and reported the sales as tax exempt and failed to remit the taxes wrongfully collected. Additionally in the case of certain taxable sales, Main Motors collected no tax and reported these sales to the Department as tax exempt.

In assignments one, three and four, the defendant contends the trial court erred in denying its motion for acquittal at the close of the state’s case, in finding the defendant guilty and in denying its motion for a new trial. La.R.S. 47:1641 provides in full as follows:

“Any person required under this subtitle to collect, account for, or pay over any tax, penalty or interest imposed by this subtitle, who willfully fails to collect or truthfully account for or pay over such tax, penalty or interest, shall in addition to other penalties provided by law, be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.” (emphasis added)

First, the defendant argues that the court below erred because the evidence did not show a willful failure to pay the tax. Rather, it maintains that the errors discovered in the state’s audit were due to innocent mistakes on its part.

The Louisiana Constitution limits this Court’s review of criminal convictions on appeal to questions of law. Louisiana Constitution Art. 5 § 5(C). Therefore, it is only when there is a total lack of evidence of an essential element of a crime that a question of law is presented. State v. Procell, 365 So.2d 484 (La.1978); State v. Tyler, 342 So.2d 574 (La.1977); State v. Williams, 354 So.2d 152 (La.1977). Proof of willful behavior is similar to proof of intent: it requires that the mind of the defendant be probed. For this reason, willfulness may be shown by indirect evidence. See La.R.S. 15:445. Thus, although willfulness, like intent, is a question of fact, it need not be proven as a fact but may be inferred from the circumstances of the transaction. La.R.S. 15:445; State v. Procell, supra; State v. Garner, 241 La. 275, 128 So.2d 655 (1961). The audit of Main Motors reveals that every month’s records showed that the defendant reported excessive deductions. The percentages of wrongful deductions disallowed varied from 57% to 99%. Neither did defendant claim ignorance on its part as to which sales were or were not taxable. The evidence also reveals that the defendant’s own personnel coded the sales as exempt or nonexempt; thus, it can not claim computer error. We therefore conclude that the record reveals a systematic improper reporting of exemptions. This evidence amply supports the trial court’s conclusion that the defendant’s acts were willful.

The defendant argues that the state did not show what tax, if any, was owed and thus failed to prove an essential element of the crime. This argument is also without merit since the statute makes criminal the willful failure “to collect or truthfully account for or pay over . . .”. Thus, the evidence need not show the exact amount owed but only that the defendant failed to collect or truthfully account for or pay over taxes. There is more than “some evidence” on this crucial element of the offense.

Defendant also contends that the prosecution was premature since it preced-. ed any civil proceeding by the Department of Revenue. The statute provides for criminal prosecutions “in addition” to any civil proceeding which should be brought. There is nothing in the statute to intimate that criminal proceedings may not be brought prior to or concurrent with civil proceedings,

For these reasons, the above assignments of error are without merit.

In defendant’s second assignment, it argues that R.S. 47:1641 and 1642 are unconstitutional since the willful behavior prohibited in R.S. 1641 requires a harsher punishment than the more heinous crime of failing to report taxes with the intent to defraud prohibited by R.S. 1642. This assignment is without merit because the two sections proscribe different behavior and thus, there is a rational basis for the difference.

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

DENNIS, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

I respectfully concur in the majority opinion, but feel that the issues deserve a more detailed treatment, especially concerning the argument that La.R.S. 47:1614 is unconstitutionally vague.

The defendant argues that if the statute permits the institution of a criminal action prior to a determination of the taxes due in a civil proceeding, it violates due process. He contends the statute fails to provide notice to a defendant of the nature of the charges against him when it permits, the state to institute prosecution without a pri- or'determination in a civil proceeding that a certain amount of taxes are due according to an established assessment procedure. In the first place, this argument fails because the statute proscribes the conduct of willfully failing to account for any tax imposed by the subtitle; the exact amount of the tax need not be proven. Under a similar law, the federal authorities may likewise proceed with criminal charges without a prior civil assessment. Merten, Merten’s Law of Federal Income Taxation, Vol. 10, § 55A.05. Furthermore, the state bears the affirmative burden of showing, beyond a reasonable doubt, that the defendant owes a tax under the statute and willfully failed to account for it. Because of this, the defendant has the opportunity to contest whether taxes, are in faet due and whether he willfully failed to account for them. He receives as much (if not more) protection from arbitrary assessment in the criminal trial as in a civil proceeding, given the state's burden of proof. Therefore, the defendant suffers no prejudice by the institution of criminal proceedings prior to civil adjudication.

The defendant argues, finally, that La.R.S. 47:1641 and 1642 are unconstitutional because' there is no rational basis for the penalty distinction. Since the statute under which the defendant was convicted, section 1641, does not present a cruel, unusual, or excessive sentence, the defendant has no constitutional basis upon which to complain here. Even if we were to review sentences on the basis of a comparison of statutes in this manner, I would not find this distinction between sections 1641 and 1642 to be irrational. The state may properly provide greater penalties for taxpayers who are charged with the duty to collect and remit taxes to the state, thus acting in the capacity of agents of the state, and who violate this duty.

Accordingly, I concur in the majority opinion.

       Chief Judge PAUL B. LANDRY, Jr., Retired, is sitting by assignment as Associate Justice Ad Hoc in place of TATE, J. upon this case.


author:
      DIXON, Chief Justice.
     EDWARD A. de la HOUSSAYE, III, Justice Ad Hoc,

text:
    DELTA BANK & TRUST COMPANY v. Frank LASSITER, Commissioner of Financial Institutions, State of Louisiana.
    No. 66156.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.

      Ben C. Toledano, Gerald J. Gallinghouse, Porteous, Toledano, Hainkel & Johnson, New Orleans, Carlos G. Spaht, Kantrow, Spaht, Weaver & Walter, Baton Rouge, for plaintiff-applicant.
    Joseph H. Kavanaugh, Kavanaugh & Talley, R. Gordon Kean, Jr., Sanders, Downing, Kean & Cazedessus, Sidney M. Bach, New Orleans, for defendants-respondents.
   DIXON, Chief Justice.

This is an action by the Delta Bank & Trust Company, the sole existing bank in Plaquemines Parish, challenging the action of the Commissioner of Financial Institutions in granting, without a hearing, conditional approval of the application of the Mississippi River Bank Group for a certificate of authority to organize a bank in Plaquemines Parish. Delta Bank, a state chartered banking institution, is seeking writs of mandamus directing the commissioner to hold a hearing on the application. The Mississippi River Bank Group intervened on the side of the commissioner. The trial court ordered a stay of the decision and order of the commissioner pending final disposition of the issues. The commissioner filed exceptions of unauthorized use of summary proceedings and no cause and no right of action. The trial court denied the plaintiff’s prayer for mandamus, sustained the defendant’s exception of no cause of action, and ordered a full trial de novo to review the decision of the commissioner. The First Circuit Court of -Appeal denied the plaintiff’s application for writs. This court granted writs to review the action of the lower courts, and ordered that the commission order be stayed pending disposition.

According to the trial court’s written reasons for judgment, applications for authority to organize banks in Plaquemines Parish were filed by both the Mississippi River Bank Group and the First Citizens Bank Group. In May of 1979 Delta Bank contacted the commissioner to register its opposition to the application of the Mississippi Group, and requested a hearing on the matter. An informal meeting was scheduled to be held on July 19,1979. Prior to that date an informal hearing was held on June 28, 1979 to consider First Citizens’ application. The commissioner then notified Delta Bank that the meeting for July 19 was to be canceled, and, instead, he would honor requests for personal appointments and grant interested parties the opportunity to submit written material relevant to the matter. Delta protested the canceling of the meeting by letter dated July 12, 1979. On August 9, 1979 the commissioner informed First Citizens that its application had been rejected and informed the Mississippi Group that its application had been accepted. The plaintiff then instituted this action.

The issue presented is whether the commissioner is required to grant a hearing to opponents of the application before issuing a certificate of authority to organize a bank.

In support of its. argument that such a hearing is required, Delta Bank cites Buras v. Board of Trustees of the Police Pension Fund of the City of New Orleans, 367 So.2d 849 (La.1979). In that ease this court held that the Board of Trustees of the Pension Fund of the City of New Orleans was a state agency, and, therefore, the provisions of the Administrative Procedures Act, R.S. 49:951, et seq. were applicable to the board’s determination that a former police officer had not been disabled so as to render his retirement necessary. This court further concluded that the board had failed to follow the provisions of the act and remanded the case to the board for further proceedings in compliance with the act.

Delta Bank now argues that the commissioner is also a state agency, and that the Administrative Procedures Act likewise requires him to hold a hearing on the Mississippi Group’s application. We agree that the commissioner is a state agency, as that term is defined for purposes of the act, and that the provisions of the act must be applied to him. From an examination of the act, however, we conclude that it contains no provision requiring the commissioner to hold a hearing in these circumstances.

The portion of the act pointed to by the plaintiff as requiring a hearing is R.S. 49:955(A), which provides:

“In an adjudication, all parties who do not waive their rights shall be afforded an opportunity for hearing after reasonable notice.”

That provision creates a right to a hearing only in an adjudication. R.S. 49:951, the definitional portion of the act, provides, in part:

“As used in this Chapter:
(1) ‘Adjudication’ means agency process for the formulation of a decision or order.”

Prom that provision it is clear that a hearing is provided for only when the agency action is one for the formulation of a “decision or order.” And on that point the act is not silent, for R.S. 49:951 further provides:

“(3) ‘Decision’ or ‘order’ means the whole or any part of the final disposition (whether affirmative, negative, injunc-tive, or declaratory in form) of any agency, in any matter other than rulemaking, required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing, and including non-revenue licensing, when the grant, denial, or renewal of a license is required by constitution or statute to be preceded by notice and opportunity for hearing.”

To reiterate, the Administrative Procedures Act provides for a hearing only in an adjudication. An adjudication is a proceeding resulting in an order or decision. A decision or order is, for purposes of the act, a disposition required by constitution or statute to be made only after notice and a hearing. Therefore, unless there is some provision in the constitution or statutes requiring a hearing, an agency disposition is not a “decision” or “order” as defined for purposes of the act. And unless a proceeding results in a decision or order, it is not an adjudication as defined in the act. It is apparent, then, that an adjudication for purposes of the act means an agency proceeding that, results in a disposition that is required to be made (by constitution or statute) after notice is given and a hearing is held. Unless some statute or the constitution require a hearing and notice, an agency action is not an adjudication for purposes of the act. Since the act provides for hearings only if there is an adjudication, it follows that unless a hearing is required by some statute or the constitution, the provision of the act as to hearings does not apply.

In light of the above discussion we conclude that the Administrative Procedures Act does not create an independent right to a hearing before any state agency can take any action. It merely sets forth the procedures to be followed if the agency is required to hold a hearing by the constitution or the statutory authority under which the agency is acting.

The commissioner’s power to issue certificates of authority is contained in R.S. 6:241, which provides:

“No banking association shall commence business or open branch offices until it has procured from the commissioner a certificate of authority which shall not be granted until the association has furnished to him satisfactory proof that it has complied with all requirements concerning the adoption and recordation .of its charter and that one hundred percent of the subscribed capital has been paid up in lawful money.
In default of these requirements the directors and managers of the banking association shall in solido be fined not more than five hundred dollars, to be collected by the attorney general, who, for his services in collecting these amounts, shall receive twenty percent of the amount collected. Any increase of capital stock by amendment shall be paid up within thirty days after having been subscribed. Each banking association shall notify the commissioner of every alteration of or amendment to its charter, whether to increase its capital or otherwise. These provisions apply to savings banks except as otherwise provided in R.S. 6:234.
Before issuing a certificate of authority to any banking association or savings bank, the commissioner shall examine the qualifications, responsibility, and standing of the persons organizing the association or bank. If he finds that the public interest will not be subserved by permitting such persons to organize the association or bank, he shall refuse to issue the certificate.”

Neither that statute nor any other to which our attention has been directed require that the commissioner hold a hearing before issuing certificates of authority.

The plaintiff argues, however, that due process requires that it be given a hearing before a certificate can be issued to a competing bank. If that is the case, a hearing is required by constitution, and the disposition is then an adjudication for purposes of the Administrative Procedures Act, and a hearing must be held pursuant to the act.

The Fourteenth Amendment of the Federal Constitution provides, in part, “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . .Article 1, § 2 of our state Constitution provides: “No person shall be deprived of life, liberty, or property, except by due process of law.” As can be seen, the obvious, but sometimes overlooked, initial requirement in any due proces claim is that the claimant show the existence of some property or liberty interest which has been adversely affected by state action. See e. g., Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

To determine if the Delta Bank is entitled by the due process clauses to a hearing on the application of a potential competitor, we must look to see if the action of the commissioner in granting the application would infringe on any property or liberty interest held by Delta Bank. We conclude that it does not.

A banking association such as the Delta Bank is authorized, after obtaining a certificate of authority from the commissioner, to commence business and to exercise such powers as are granted by R.S. 6:237 and other statutory provisions relative to the powers of a bank. Whether or not a bank’s interest in exercising those powers is termed a property or liberty interest, we do not believe that that interest is taken away merely by the granting to another entity of the sáme powers. The Delta Bank’s authority to engage in the banking business is in no way abridged by the action of the commissioner in approving the application of another banking association, since the banking laws cannot be construed to give Delta Bank any right to the exclusive power to operate a bank in Plaquemines Parish, nor any right to choose its competition. We therefore hold that due process does not require that the commissioner hold a hearing at the request of opponents to an application for a certificate of authority to operate a bank.

Our holding is completely consistent with federal jurisprudence in the area. The federal courts of appeal have consistently held that due process does not require that opponents to an application for a bank charter be given a hearing. First National Bank of Smithfield, North Carolina v. Saxon, 352 F.2d 267 (4th Cir. 1965); Webster Groves Trust Co. v. Saxon, 370 F.2d 381 (8th Cir. 1966); Bridgeport Federal Savings & Loan Association v. Federal Home Loan Bank Board, 307 F.2d 580, cert. den., 371 U.S. 950, 83 S.Ct. 504, 9 L.Ed.2d 499 (1962).

Because there is no statutory or constitutional requirement that the commissioner hold a hearing for the benefit of opponents to approval of applications for certificates of authority to organize a bank, we hold that the provisions of the Administrative Procedures Act relative to hearings have no application to the disposition by the commissioner of such an application.

Our holding is consistent with the intent of the legislature in enacting the Administrative Procedures Act. The clear language of the act provides for a hearing to be held only when such a hearing is required by constitution or statute. We can find no indication in the act or the jurisprudence of this state that by enacting the Administrative Procedures Act the legislature intended that all action by any state agency, no matter how discretionary, should be preceded by notice and a hearing.

The plaintiff commenced this suit with an application for writs of mandamus to be directed to the commissioner to comply with the provisions of the Administrative Procedures Act relative to hearings before issuing to intervenor a certificate of authority to organize a banking business. According to C.C.P. 3863, “[a] writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law . . .” Since there is no legal requirement that the commissioner hold a hearing of the type sought by the plaintiff, there was no error in the trial court’s denial of the plaintiff’s application for writs of mandamus.

While denying the plaintiff’s application for writs of mandamus, the trial court granted the plaintiff’s alternate request for a trial de novo to review the propriety of the commissioner’s action in granting the intervenor’s application. The trial court felt that such a trial de novo was called for in order to insure that the plaintiff had a meaningful right to review the commissioner’s action. In so doing the trial court erred.

It is well settled that the right of judicial review of administrative proceedings is presumed to exist. It has been held that such review is necessary to the validity of administrative proceedings under our legal system and traditions. Buras v. Board of Trustees of the Police Pension Fund of the City of New Orleans, supra; Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971). The scope of review of administrative agencies in the performance of a discretionary duty is restricted to a determination of whether the agency’s action can be deemed to have been unreasonable, arbitrary or capricious, or whether it amounted to an abuse of power. Kansas City Southern Ry. Co. v. Louisiana Public Service Commission, 254 La. 160, 223 So.2d 132 (1969); Stevens Concrete Pipe & Products, Inc. v. Burgess, 252 La. 136, 209 So.2d 733 (1968). In the absence of a showing of such an abuse of discretion it is not the province of the judiciary to substitute its judgment for that of the administrative agency or to interfere with the agency’s exercise of its discretion. Stevens Concrete Pipe & Products, Inc. v. Burgess, supra; Lewing v. DeSoto Parish School Board, 238 La. 43, 113 So.2d 462 (1959). Therefore, to state a cause of action for review of an administrative action, the aggrieved party must allege facts on which the reviewing court can conclude that the administrative agency abused its discretion. The plaintiff failed to do so in this case, and therefore failed to state a cause of action for review.

The commissioner is empowered to issue a certificate of authority to organize a bank after examination of the qualifications, responsibility and standing of the persons organizing the bank, unless he finds that the public interest will not be sub-served by permitting such persons to organize a bank. The commissioner is thereby granted much discretion in deciding to grant an application. In order to overturn his decision it must be shown that he abused that discretion.

In ruling on the peremptory exception of no cause of action, the court must presume the correctness of the well pleaded allegations of fact in the plaintiffs petition, and must determine if the fact of the petition presents a case which legally entitles the plaintiff to the relief sought. Plaquemines Parish Commission Council v. Perez, 379 So.2d 1373 (La.1980); Hero Lands Co. v. Texaco Inc., 310 So.2d 93 (La.1975); Rebinan v. Reed, 286 So.2d 341 (La.1973). Although the correctness of the plaintiff’s well pleaded allegations of fact is assumed, the correctness of its conclusions of law is not conceded for purposes of a ruling on an exception of no cause of action. Breaux v. Laird, 223 La. 446, 65 So.2d 907 (1953); Trumbaturi v. Katz & Besthoff, 180 La. 915, 158 So. 16 (1934); Federal Land Bank of New Orleans v. Mulhern, 180 La. 627, 157 So. 370 (1934).

C.C.P. 891 provides that a petition “shall contain a short, clear, and concise statement of the object of the demand and of the material facts upon which the cause of action is based . . .” From that language it is clear that a court when considering an exception of no cause of action must consider only the facts alleged by the plaintiff, and that a mere statement of a conclusion of law will not state a cause of action. See, Fact Pleading v. Notice Pleading, the Eternal Debate, 22 Loyola L.Rev. 47 (1976).

After a careful examination of the plaintiff’s petition for mandamus and its amending and supplemental petition, we must conclude that those pleadings are completely devoid of any factual allegations that would support a conclusion that the commissioner abused his discretion. The plaintiff does make the claim that the commissioner’s action was “arbitrary and capricious and characterized by abuse of discretion and [a] clearly unwarranted exercise of his authority,” and that it was “manifestly erroneous in view of the reliable, probative, and substantial evidence which he refused to consider,” and that it is therefore entitled to a review. Those claims amount to no more than an assertion of conclusions. There are no specific facts pleaded to show why or how the commissioner’s action was arbitrary. There is no indication as to the nature of the “reliable, probative, and substantial” evidence which the plaintiff claims the commissioner refused to consider. In fact, the plaintiff’s petition sets forth no facts whatsoever indicating that the inter-venor is not a well qualified applicant for a certificate or that the approval of the application was not subservient to the public interest. In the absence of a statement of the material facts upon which it bases its claim, the plaintiff’s pleadings do not set forth a cause of action for review of the commissioner’s action in granting the Mississippi Group’s application for a certificate to organize a bank in Placquemines Parish. We hold therefore that the trial court erred in granting the plaintiff’s prayer for a trial de novo to review the commissioner’s action.

For the reasons assigned, the action of the trial court is affirmed insofar as the trial court sustained the defendant’s exception of no cause of action to the plaintiff’s application for writs of mandamus, and reversed insofar as it granted the plaintiff a trial de novo to review the commissioner’s approval of the defendant’s application for a certificate of authority to organize a banking institution.

The case is remanded to the district court for further proceedings in accordance with C.C.P. 934; relator is cast for all costs in this court.

EDWARD A. de la HOUSSAYE, III, J., concurs and assigns reasons.

EDWARD A. de la HOUSSAYE, III, Justice Ad Hoc,

concurring.

The majority decision correctly holds that there is no provision of any statute or constitution which requires the Commissioner to hold a hearing to hear objections to the issuance of a certificate of authority to organize a bank. It would thus appear that the solution to the problem faced by petitioners herein must be obtained from, the legislature, rather than the judiciary.

I concur.

       Honorable Edward A. de la Houssaye, III, participated in this decision as an Associate Justice Ad Hoc.

      . The First Citizens Bank Group, which intervened on the side of Delta Bank, has not applied to this court for writs.

      . We do not hold that the Administrators Procedures Act is in no case applicable to the activities of the commissioner. For example, regulations enacted and promulgated by the commissioner under his power to regulate the functions of banking associations are subject to the act. See, R.S. 6:237.

      . Our holding is consistent with the manner in which the federal courts have interpreted the federal Administrative Procedures Act. That act has been held to provide for a hearing only if one is required by the constitution or some statute outside the act itself. Clardy v. Levi, 545 F.2d 1241 (9th Cir. 1977); First Bank & Trust Co. v. Smith, 509 F.2d 663 (1st Cir. 1975); Sisselman v. Smith, 432 F.2d 750 (3d Cir. 1970).

      . In Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), the Supreme Court of the United States held that the Comptroller of the Currency is not required to hold a hearing on applications for bank charters, even at the instance of a party who has actually applied for a charter. The court did not directly address the issue of due process, but the clear implication of the holding was that there is no due process problem with the comptroller’s power to grant or deny such applications in his discretion without a hearing.

      . The same result was reached by the Court of Appeal in First National Bank of Abbeville v. Sehrt, 246 So.2d 382 (1st Cir. 1971), writs refused 258 La. 909, 248 So.2d 334 (1971). The court held that neither the Administrative Procedures Act nor due process require that an opponent to the issuance of a certificate of authority be afforded a hearing. See also, First Federal Savings & Loan Association of Concor-dia v. Smith, 327 So.2d 657 (1st Cir. 1976), writ refused 329 So.2d 431 (La.1976). The federal courts have similarly held that the Comptroller of the Currency need not hold a hearing before issuing a bank charter. See Camp v. Pitts, supra, note 4, and cases cited in the text at note 4.

      . This request was presented in the plaintiffs amending and supplemental petition.

      . “. . . the failure to disclose a cause of action ... to institute the suit, may be noticed by either the trial or appellate court of its own motion.” C.C.P. 927.

      . Because the commissioner’s action was not an adjudication for purposes of the Administrative Procedures Act, the provisions of the act relative to review of adjudications do not apply. See, R.S. 49:964.

      . “When the grounds’ of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend,, the action shall be dismissed.” C.C.P. 934.