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

text:
    In the Interest of R. V. P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 80-294.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.
    Carol Hewett and James Derefor of Central Florida Legal Services, Inc., Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahasssee, Gregory C. Smith, and Barbara Ann Butler, Asst. Attys. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, a juvenile, appeals from a delinquency order committing him to the custody of the Department of Health and Rehabilitative Services.

The basis for the petition alleging delinquency was that appellant had attempted to commit robbery. Appellant was arraigned and pleaded not guilty. The docket sheet recites that counsel was offered to appellant but that he waived his right to counsel. No written waiver appears. Appellant contends that his mother declined the Public Defender and indicated her intention to retain other counsel.

Prior to arraignment, a predisposition report prepared by a counselor with the Department of Health and Rehabilitative Services was filed with the court. The record is silent as to whether a copy was furnished to appellant or his mother.

At the hearing, appellant appeared without counsel. After the alleged victim, a child, testified, the court then inquired of appellant, “[d]o you wish to tell your side of this thing.” Appellant answered, “Yes, Sir,” and proceeded to deny being near the victim when a co-defendant demanded the victim’s money. Appellant admitted that he approached the victim at one point and grabbed him. Appellant was subsequently cross-examined by the state attorney.

The court then proceeded to the disposition phase without specifically finding appellant delinquent. An order was entered adjudicating appellant delinquent and committing him to the custody of HRS for an indeterminate period.

The first point raised is whether the court violated appellant’s due process rights by failing to appoint counsel to conduct his defense.

While the United States Supreme Court has never held the full panoply of federal constitutional rights in criminal trials to be applicable to delinquency proceedings, McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), the Court has specifically declared that a juvenile is entitled to assistance of counsel. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In that case, the court stated:

A proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child requires the guiding hand of counsel at every step in the proceedings against him. (Emphasis added.)

87 S.Ct. at 1448.

Section 39.071, Florida Statutes (1979), was enacted to effectuate this right and provides, in part:

A child shall be entitled to representation by legal counsel at all stages of any proceedings under this part.... If a child appears without counsel, the court shall advise him of his rights with respect to representation of court-appointed counsel.

Florida Rule of Juvenile Procedure 8.290(c) provides that in the absence of a valid waiver, a child in a delinquency case is entitled to the appointment of counsel. Subsection (d)(5), states:

If a waiver is accepted at any stage of the proceedings, the offer of assistance shall be renewed by the court at each subsequent stage of the proceedings at which the child appears without counsel. (Emphasis added.)

It is extremely doubtful that any child of limited experience can possibly comprehend the importance of counsel. Therefore, a juvenile judge must make certain that the child or his parents understand not only the child’s right to counsel, but also that any waiver is intelligently and validly made. The circumstances of any waiver should be made a part of the record.

Here, the transcript fails to show that the judge offered assistance of counsel to appellant before commencement of the adjudicatory hearing or the dispositional phase despite appellant’s appearance without an attorney. This clearly violates the mandate of Florida Rule of Juvenile Procedure 8.290(d)(5).

Florida Rule of Criminal Procedure 3.111(d)(5), which is identical to the above rule, requires that counsel be offered at each stage of adult criminal proceedings where the defendant appears without counsel. This means that a defendant is entitled to an offer of counsel at every critical stage of a proceeding: arraignment, trial, conviction, and sentencing. Machwart v. State, 222 So.2d 38 (Fla. 2d DCA 1969). A juvenile, especially in view of his limited experience, is entitled to no less. See A.Z. v. State, 383 So.2d 934 (Fla. 5th DCA 1980).

The second point raised was whether the trial court erred in asking appellant if he wished to testify without informing him of his fifth amendment privilege against self-incrimination.

The fifth amendment privilege was recognized by the Supreme Court in In re Gault as being applicable to the states in delinquency proceedings via and due process clause of the fourteenth amendment. Gault at 87 S.Ct. 1454. See also In re T.A.F., 252 So.2d 255 (Fla. 1st DCA 1971); Fla.R.Juv.P. 8.190(f).

One may waive the privilege against self-incrimination but any such waiver must be based upon knowledge and intelligent choice. Cochran v. State, 117 So.2d 544 (Fla. 3d DCA 1960). In Cochran, the defendant, who was not represented by counsel, was told by the trial judge: “All right, Mr. Cochran, tell me any statement you like now.” The appellate court reversed the conviction since the record failed to show that defendant had been advised or was possessed of the knowledge of his privilege. The defendant, the court declared, was testifying in ignorance of his right not to do so. The rationale of Cochran is that the trial court has a duty to inform a defendant, who is not represented by counsel, of his privilege not to testify and the failure to inform defendant of this right precludes an effective waiver of the privilege.

In the case before us, appellant testified in response to the judge’s invitation to do so without any attempt being made to advise him of his right not to do so. The fact that he voluntarily took the stand is clearly not an effective waiver. In addition, the fact that the instant case is a juvenile case and Cochran was an adult criminal case does not permit a different result. In Gault, the Supreme Court emphasized the similarity between adult criminal proceedings and juvenile proceedings, both of which may lead to a deprivation of liberty.

The third question was whether the trial court erred in the dispositional phase of the proceedings.

Section 39.09(3)(j), Florida Statutes (1979), provides:

The predisposition report shall be made available to the child’s legal counsel and the state attorney upon completion of the report and at a reasonable time prior to the disposition hearing.

The state suggests that this provision is inapplicable since appellant was not represented by counsel. However, numerous courts have held that where written reports are submitted to and considered by the court without an opportunity for their review by a parent prior to the hearing, a denial of fundamental due process occurs. A.Z. v. State; In The Interest of Baby Boy S, 349 So.2d 774 (Fla. 2d DCA 1977). In the case before us, the state failed to establish that a copy of the predisposition report was furnished to appellant’s mother.

We therefore conclude that the proceedings under review did not meet the minimal requirements of due process.

REVERSED and REMANDED for a new proceeding.

ORFINGER and SHARP, JJ., concur.

      . A tape recording of the arraignment was destroyed after thirty days in accordance with Florida Rule of Juvenile Proceedings 8.220(g).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bobby Wayne THOMASON, Appellant, v. STATE of Florida, Appellee.
    No. 80-383.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.

      James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Appellant Bobby Wayne Thomason appeals from an order revoking his probation and sentencing him to one year imprisonment on a previous battery conviction. Appellant pleaded nolo contendere to the charge that he violated his probation. On this appeal, he contends that the lower court erred in finding him to be in violation of his probation.

The Public Defender has filed an An-ders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On June 3, 1980, this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been submitted.

Appellant’s plea of nolo contendere without an express reservation of the right to appeal bars a direct appeal from the lower court's order. § 924.06(3), Fla.Stat. (1979); Fla.R.Crim.P. 3.172; Fla.R.App.P. 9.140(b). See Wells v. State, 390 So.2d 808 (Fla. 5th DCA 1980). Therefore the motion of the Public Defender to withdraw is granted and this appeal is DISMISSED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: DAUKSCH, Chief Judge.

text:
    Peter PETNUCH, Jr., Appellant, v. Kevin Charles SMITH (a minor) and George Charles Smith, Appellees.
    No. 80-399.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.
    Gary H. Neely, Daytona Beach, and Norman Peter Laskey of Duffett, Seps & Ak-ers, Ormond Beach, for appellant.
    William A. Parsons of Gosney, Carmeron, Parsons & Marriott, P. A., Daytona Beach, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from an order by the trial court determining it had no jurisdiction in this matter. It was the judgment of the trial court that after the plaintiff’s complaint was dismissed with leave to amend and the twenty days for amendment expired; the case stood dismissed and the trial court no longer had jurisdiction.

An order dismissing a complaint with leave to amend is a non-appealable non-final order which does not terminate the proceedings in the trial court. Because it is a non-final order, the trial court was in error in its determination it had lost jurisdiction, so we reverse the order regarding jurisdiction. Appellant has asked us to rule on the order dismissing the complaint with leave to amend. As was earlier said, this is not an appealable order. Hancock v. Piper, 186 So.2d 489 (Fla.1966).

The jurisdiction order is reversed and this cause remanded for the court’s ruling on appellee’s motion to dismiss with prejudice.

REVERSED AND REMANDED.

COBB and SHARP, JJ., concur.


author: SHARP, Judge.

text:
    ACCREDITED SURETY & CASUALTY CO., INC., and A-1 Bail Bonds, Appellants, v. STATE of Florida and Harold T. James, Appellees.
    No. 80-528.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.
    Robert Kramer, of Gary Smigiel, P.A., Daytona Beach, for appellants.
    No appearance for appellees.
   SHARP, Judge.

This is an appeal from an order estreat-ing or forfeiting a Surety’s bond. The Surety company appeals the estreature before entry of a final judgment pursuant to section 903.27, Florida Statutes (1979). The estreature of a bond is not a “final” order because the judicial labor may be appealed. Fla.R.App.P. 9.130. Because this court lacks jurisdiction to hear the appeal it is

DISMISSED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.


text:
    Cameron Lee WARRING, Appellant, v. STATE of Florida, Appellee.
    Case No. 80-583.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, and Cynthia Karl-Stamm, Certified Legal Intern, Dayto-na Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence pursuant to appellant’s plea of guilty. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On August 14, 1980, this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. Any question of the voluntariness of a plea should be presented to the lower court by a rule 3.850 motion. The motion of the Public Defender to withdraw is granted and the appeal is hereby DISMISSED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: COBB, Judge. DAUKSCH, Chief Judge,

text:
    DOLAN TITLE & GUARANTY CORPORATION, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY and Stephen R. Magyar, Appellees. HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. DOLAN TITLE & GUARANTY CORPORATION and Stephen R. Magyar, Appellees.
    Nos. 80-793, 80-812.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.

      Robert W. Olsen, Orlando, for Dolan Title & Guaranty Corp.
    Norman L. Hull, Orlando, for Hartford Acc. & Indem. Co.
    Thomas M. Burke of Rumberger, Kirk, Caldwell & Cabaniss, Orlando, for Stephen R. Magyar.
   COBB, Judge.

These are two timely consolidated appeals from a final judgment in favor of Hartford Accident & Indemnity Company (Hartford) against defendant Dolan Title & Guaranty Corporation (Dolan Title). Dolan Title appeals the trial court’s finding of negligence on its part in preparation of a check at a real estate closing, and in denying Dolan Title’s cross-claims against Magyar; while in the cross-appeal Hartford appeals the trial court’s denial of recovery against Magyar.

In January of 1973, John Arena was appointed guardian of his incompetent wife, Rosina Arena. Hartford was surety on two guardianship bonds procured by Steven Magyar, an attorney, in the process of seeking court permission for the sale of a residence owned by John and Rosina Arena as tenants by the entirety. Prior to this, John Arena contracted to sell the residence to buyers represented by Magyar. Dolan Title, as title company and closing agent, received a contract for sale and purchase signed by John Arena as seller, with instructions to prepare the necessary title papers to close under the terms of the contract.

At the closing, the entire proceeds of the sale were delivered to John Arena in a check made payable to John Arena individually and with no indication of his capacity as guardian for his incompetent wife, even though the order of the probate court had specifically provided that one-half of the proceeds of the sale must go to the guardianship. Thereafter, John Arena deposited the check in an account in the names of John Arena and Philip Maira, his nephew; these funds were transferred to a New York bank and deposited in the same type of account; in February of 1974 the funds were withdrawn by Maira and the account was closed. John Arena predeceased the ward, his wife, in February of 1974; Rosina died in May of 1974.

The personal representative of the ward and the heirs of Rosina Arena brought suit against Hartford on its guardianship bonds. That suit was settled in November of 1976, for an amount less than the loss claimed, in consideration for an assignment of the rights of the estate against Dolan Title for negligence.

Hartford commenced the present action in November of 1976 against Dolan Title for negligence; and against Magyar for negligence, and further asserting claims based on theories of third-party beneficiary and subrogation. Dolan Title cross-claimed against Magyar. A clerk’s default was entered against third-party defendant Maira.

Trial was held before the court without a jury. The court found Hartford authorized to maintain a suit against Dolan Title by virtue of the release and assignment; that Hartford was not entitled to maintain any direct action against Magyar, since it received no assignment of that right; that John Arena retained Magyar to represent the guardianship in proceedings then pending in the Circuit Court of Orange County, Florida, to petition and receive an order of sale of certain jointly-held properties owned by the guardian and the incompetent; that Magyar filed such a petition for leave to sell the real estate; that Magyar caused an inventory to be filed in the guardianship proceedings and secured from the circuit court an order authorizing sale, which order contained specific directions as to the manner in which the net proceeds from the sale should be disbursed, that is, one-half to John Arena, individually, and one-half to John Arena as guardian; that Dolan Title was the closing agent for the sale of the property and received a letter from the broker outlining matters incident to the closing and, in particular, in paragraph 1, advising Dolan Title that there was a guardianship proceeding and that there would be an order for sale required before the closing could take place; that Dolan Title was negligent in the handling of its closing by failing to make one-half of the net proceeds from the sale of the home payable to John Arena as guardian of the estate and person of Rosina Arena, incompetent, and that such negligence on the part of Dolan Title was the direct proximate cause of the loss to the estate; that Dolan Title knew or should have known of the condition of the order of sale as set forth by the circuit judge in his order authorizing sale; that Magyar did attend the closing and made no objection to the form of the check issued for the proceeds of the sale and did not object to the check being drawn to John Arena for the entire proceeds, nor insist upon the check being made payable jointly to John Arena individually and as guardian of the estate of Rosina Arena, nor insist that the net proceeds be distributed in two separate equal checks; that Magyar did request that the check first drawn for the net proceeds be redrawn so that certain items of expense incurred in seeking the order from the probate judge, including his own attorney’s fees, be deleted and separate checks drawn to those individuals; that Magyar, having filed an appearance in the probate proceedings as attorney for the guardian of the estate of Rosina Arena without filing an indication of his limited type appearance was deemed to have filed a general appearance as additional attorney for the guardian and could not limit his responsibility unilaterally and could be relieved from further responsibility to the estate only by court order, which was never sought or entered; that if the check for the net proceeds from the closing had been made either jointly to John Arena individually and as guardian, or a check for one-half of the proceeds had been made to John Arena as guardian, then the estate would have been protected from the unauthorized disbursal of the funds by virtue of the fact that a guardianship account required the signatures of two individuals, one of which was the attorney (not Magyar); that both Dolan Title and Magyar were negligent and, therefore, Dolan Title was not entitled to indemnification from Magyar; that Do-lan Title was entitled to a cross-judgment against the third-party defendant, Maira, in the event it paid off any judgment rendered in the cause; that Hartford was entitled to recover from Dolan Title a sum equal to that paid for settlement of Rosina Arena’s estate’s claim on the surety bonds, plus costs. After the trial court entered its findings of fact and directed the attorney for Hartford to prepare final judgments in accordance with that order, Dolan Title moved for rehearing and stated that it was entitled to contribution, pursuant to the Uniform Contribution Among Tortfeasors Act, against defendant Magyar. This motion for rehearing was denied.

Dolan Title raises the following three points on appeal:

(1) Was the failure of Dolan Title to prepare the closing check payable to “John Arena, Individually and as Guardian of the Estate of Rosina Arena, Incompetent” com-pensable negligence to support a judgment in favor of Hartford?

(2) Did the lower court err in denying Dolan Title’s cross-claim against Magyar for negligence?

(3) Did the court err in denying Dolan Title’s claim for contribution against Magyar after finding both parties negligent?

Dolan Title argues that it was not negligent in preparing and delivering the disbursement check payable only to John Arena individually, and that the trial court erred in finding Dolan Title’s negligence to be the direct proximate cause of the loss of the monies to the estate on the grounds that the criminal act of embezzlement by the fiduciary guardian was not reasonably foreseeable. Dolan Title cites the general rule that there is no duty to protect against the criminal conduct of third parties, unless the criminal acts are reasonably foreseeable. See Prosser Law of Torts § 33 at 173-176 (4th ed. 1971). Hartford argues that a closing agent who undertakes to supervise a closing is obligated to do so in a reasonably prudent manner, Florida Southern Abstract & Title Co. v. Bjellos, 346 So.2d 635 (Fla. 2d DCA 1977); and that there can exist a legal causal connection between a person’s negligent failure to take reasonable precautions and damages resulting from a third party’s criminal acts. See Vining v. Avis Rent-A-Car Systems, 354 So.2d 54 (Fla.1978); Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla.1976); Orkin Exterminating Co., Inc. v. Culpepper, 367 So.2d 1026 (Fla. 3d DCA 1979). Hartford argues that in light of the statutes requiring a guardian to post a bond and the nature of the fiduciary relationship between the guardian and ward, that Dolan Title knew or should have known of the temptation which exists for a person who has complete control over the property of another. Hartford argues this knowledge required Dolan to take reasonable precautions to safeguard the proceeds of the real estate transaction and to comply with the terms of the court’s order authorizing sale. Magyar argues that Dolan was negligent, see Bjellos, but that neither Dolan nor Magyar was the proximate cause of the loss or damage to Hartford.

The Florida Supreme Court in Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980) stated:

The question whether the harm that occurs was within the scope of the risk created by the defendant’s conduct may be answered in a number of ways.
First, the Legislature may specify the type of harm for which a tortfeasor is liable.... Second, it may be shown that the particular defendant had actual knowledge that the same type of harm has resulted in the past from the same type of negligent conduct.... Finally, there is the type of harm that has so frequently resulted from the same type of negligence that “ ‘in the field of human experience’ the same type of result may be expected again.” (citations omitted) (emphasis in original).

386 So.2d at 522-523. We are faced with the third situation. As outlined in Firestone Tire & Rubber Co., Inc. v. Lippincott, 383 So.2d 1181 (Fla. 5th DCA 1980):

A foreseeable consequence is one which a prudent man would anticipate as likely to result from an act.... The consequences that a prudent man would anticipate as likely to result from an act are those consequences that happen so frequently that they may be expected to happen again and are, therefore, probable consequences.... Foreseeable consequences are not “what might possibly occur.” (citations omitted).

383 So.2d at 1182. We hold that John Arena’s misappropriation of funds was not reasonably foreseeable; that his acts were merely possible and not probable. Although the question of whether an intervening cause is foreseeable is for the trier of fact, Gibson v. Avis Rent-A-Car System, Inc., there was insufficient evidence to support the conclusion that Arena’s misappropriation was foreseeable. Magyar testified that John Arena never acted in any fashion or made any statement that led Magyar to believe that he would conduct himself in any manner other than what was required by Arena’s undertaking as guardian. There was no evidence that Arena gave any sign that he would misappropriate the funds of his ward, until he did so. Although a bond is required and temptation is present, a guardian is one the law has entrusted, after hearing and court appointment, with the custody of the person or property, or both, of an incompetent. Before exercising his authority as guardian, every guardian takes an oath that he will faithfully perform his duties as guardian. The “probable” is that a guardian will live up to his oath. Compare, Pacelli v. Kloppenberg, 65 Ill.App.3d 150, 22 Ill.Dec. 250, 382 N.E.2d 570 (Ill. 1st DCA 1978).

As to Dolan Title’s Points II and III, we need not reach these issues in light of our holding in regard to foreseeability. Since Hartford was not entitled to recover from Dolan Title, Dolan Title will have no claim for indemnification or contribution against Magyar in this action.

Cross-appellant Hartford raises the issue of whether the trial court erred in denying Hartford’s action against Magyar under either a third-party beneficiary or subrogation theory. We hold the trial court committed harmless error in this regard. Magyar could not be liable for the same reason Dolan Title could not — a lack of foreseeability or proximate cause. The lack of an assignment would not prevent Hartford from maintaining a common-law sub-rogation action against Magyar. See North v. Albee, 155 Fla. 515, 20 So.2d 682, 157 A.L.R. 490 (1945); Dantzler Lumber & Export Co. v. Columbia Cas. Co., 115 Fla. 541, 156 So. 116, 95 A.L.R. 258 (1934); 73 Am. Jur.2d Subrogation § 111 (1974). Subrogation on the part of Hartford to the rights of the estate of Rosina Arena pro tanto the amount paid on the guardianship bond would not prejudice the estate of Rosina Arena in seeking the difference. See Dantzler Lumber & Export Co.

Accordingly, that portion of the judgment in favor of Hartford Accident & Indemnity Co. against Dolan Title & Guaranty Corporation is reversed, which renders moot Dolan Title's second and third points on appeal as to indemnification or contribution from Magyar. As for Hartford’s cross-appeal, we affirm as harmless error the trial court’s refusal to entertain Hartford’s claim against Magyar.

REVERSED.

SHARP, J., concurs.

DAUKSCH, C. J., concurs in part, dissents in part, with opinion.

DAUKSCH, Chief Judge,

dissenting in part; concurring in part:

I respectfully dissent. I think Dolan’s having negligently issued the check without the guardianship safeguards was a proximate cause of the injury. It was not the proximate cause because other factors enabled the theft but the law does not require sole proximate cause in order to assess responsibility. I would affirm the trial judge’s findings and conclusions of law on this point.

I concur with the majority in regard to Hartford’s right to sue Magyar. Of course, that does not mean we decide the outcome of the suit.


text:
    The CITY OF NEW SMYRNA BEACH, a municipal corporation; George E. Mussin, Lillian A. Bent, Marlin B. Roberts, John J. Havelock and William R. Raines, City Commissioners of the City of New Smyrna Beach; and Robert G. Ferren, City Planner of the City of New Smyrna Beach, Appellants, v. INNKEEPERS MOTOR LODGE, INC., a Georgia Corporation, Appellee.
    No. 80-833.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.
    Charles A. Hall, New Smyrna Beach, and Charles J. Hardee, III, Daytona Beach, for appellants.

      Thomas S. Hart of Kinsey, Vincent, Pyle, Williams & Tumbleson, Daytona Beach, for appellee.
   PER CURIAM.

This appeal is dismissed for the same reason it was dismissed last year. City of New Smyrna Beach v. Innkeepers Motor Lodge, Inc., 385 So.2d 177 (Fla. 5th DCA 1980).

ORFINGER, COBB and SHARP, JJ., concur.


text:
    Felton LYLES, Appellant, v. STATE of Florida, Appellee.
    No. 81-148.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.
    Felton Lyles, Clermont, pro se.
   PER CURIAM.

AFFIRMED.

See Hollingsworth v. State, 394 So.2d 580, (Fla. 5th DCA 1981).

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


text:
    Sharon B. WHITEHEAD, as the Personal Representative of the Estate of Jimmy Ray Whitehead, Appellant, v. Clayton E. LINKOUS, M. D., and Sacred Heart Hospital of Pensacola, Inc., Appellees.
    No. WW-299.
    District Court of Appeal of Florida, First District.
    March 18, 1981.
   ORDER

On 16 March 1981, this Court received a copy of an order from the Circuit Court of Escambia County purporting to grant a Motion to Extend Time for Filing of Appellant’s Reply Brief. Rule 9.600(a), Fla.R. App.P., provides that the lower tribunal has concurrent jurisdiction to render orders on procedural matters only so long as the record has not been transmitted. Since the record was received by this Court on 13 February 1981 and the Motion was filed on or after 20 February 1981, the trial court had lost jurisdiction of the cause prior to the filing of the Motion for Extension of Time. Accordingly, the Motion should properly have been filed in this Court for a ruling by this Court.

However, rather than delay this cause in order to emphasize the procedural requirements of the Appellate Rules, this Court will for this one occasion adopt the order of the circuit court as its own and accept the Appellant’s Reply Brief as timely on 20 March 1981. In the future, however, the Court may reject a brief as untimely when a motion for extension of time has not been granted by the proper court.


author: ROBERT P. SMITH, Judge. MILLS, Chief Judge,

text:
    I. Irving WEINTRAUB, Appellant, v. Clara L. WEINTRAUB, Appellee.
    No. SS-138.
    District Court of Appeal of Florida, First District.
    March 18, 1981.
    Selig I. Goldin of Goldin & Cates, Gaines-ville, and Guyte McCord, III of Spector & Tunnicliff, Tallahassee, for appellant.
    Huntley Johnson of Cushman & Johnson, Gainesville, for appellee.
   ROBERT P. SMITH, Judge.

The principal issue on this appeal from a final judgment of marriage dissolution is whether the parties’ antenuptial agreement, executed just before their marriage in 1965, was properly invalidated by the chancellor on the ground that the husband, interposing the agreement in bar of alimony, did not disclose the nature and extent of his resources to his wife-to-be before she executed the agreement, nor did she otherwise have that knowledge. We interpret the chancellor’s order not as allocating the burden of proof, for which the order might be criticized, but as finding the facts on substantial competent evidence. The chancellor held the agreement valid but for the husband’s nondisclosure, and the parties here treat the terms of the agreement, if it is valid, as conclusive on the question of alimony.

The common law disclosure requirement enforced by the chancellor was eliminated for certain purposes, at least, by a 1974 amendment to Section 732.702, Florida Statutes (1979):

(2) Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage. (Emphasis added.)

The effect of this amendment was to eliminate those common law restrictions on “contractual arrangements relating to death,” Section 732.702(1), which were expressed by Del Vecchio v. Del Vecchio, 143 So.2d 17, 20 (Fla. 1962):

A valid antenuptial agreement contemplates a fair and reasonable provision therein for the wife, or, absent such provision, a full and frank disclosure to the wife, before the signing of the agreement, of the husband’s worth, or, absent such disclosure, a general and approximate knowledge by her of the prospective husband’s property ....

See also Posner v. Posner, 233 So.2d 381 (Fla.1970); and Roberts v. Roberts, 388 So.2d 216 (Fla.1980).

The rule enforced here by the chancellor is but one version of common law principles which have long protected disadvantaged spouses from the effects of agreements entered hastily, in ignorance, and in contemplation of marriage. See Note, “Public Policy, the Courts, and Antenuptial Agreements Specifying Alimony,” 23 U.Fla.L. Rev. 113 (1970). The 1974 legislation does not in terms vitiate the Del Vecchio rule as it applies in marriage dissolutions or other proceedings between living spouses or former spouses, so to validate agreements barring alimony irrespective of whether the disadvantaged spouse was informed before signing of the other's financial resources. In that circumstance we do not by implication extend the statutory incursion upon the common law. Rather we agree with the District Court of Appeal, Third District, that the statutory dispensation of preagreement disclosure applies only in proceedings subject to the probate code. Topper v. Stewart, 388 So.2d 1270, 1271 (Fla.3d DCA 1980) (dictum). The chancellor’s judgment will therefore be affirmed.

Nevertheless, because by our ruling the same premarital agreement which in dissolution proceedings is invalid for nondisclosure may be held valid if not litigated until death, and because our adherence to common law precedent may be thought to encourage divorce rather than faithfulness in marriage unto death, we certify to the Supreme Court that we have passed on a question of great public importance, Article V, Section 3(b)(4), Florida Constitution, namely:

Does Section 732.702(2) validate premarital agreements otherwise invalid under Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962), when the agreement is questioned on grounds of nondisclosure in a marriage dissolution or other proceedings affecting property during the lifetimes of the spouses?
AFFIRMED.

WENTWORTH, J., concurs.

MILLS, C. J., concurs in part and dissents in part, with opinion.

MILLS, Chief Judge,

concurring in part and dissenting in part:

Just before the parties were married in 1965 they executed an antenuptial agreement. After the wife filed for dissolution of marriage and claimed alimony, the husband pleaded the antenuptial agreement as an affirmative defense to the claim for alimony, asserting that he had made a full and complete disclosure of assets and liabilities. She replied that there had been no disclosure of assets and liabilities at the time of the execution of the agreement and of the marriage. After trial, the final judgment found that the agreement was invalid for lack of disclosure.

The issues raised in this appeal are (1) whether Section 732.702, Florida Statutes (1977), is applicable to dissolution of marriage proceedings and (2) if not, whether the trial judge improperly paced the burden of proof on the husband.

I agree with the majority that Section 732.702 is not applicable to dissolution of marriage proceedings. I reach this conclusion based on the fact that Section 732.702 is contained within Part VII of Chapter 732, which is entitled, “Contractual Arrangements Relating to Death.” (emphasis added) and 732.702 itself is entitled, “Waiver of Right to Elect and of other Rights,” and specifically relates to rights of surviving spouses where death has occurred. In addition, this statute was enacted into law as part of the Probate Code, Chapter 74-106, Laws of Florida, which was “[a]n act relating to affairs of decedents, missing persons, minors and certain others.”

My decision as to the inapplicability of 732.702 is consistent with that of the Third District Court of Appeal in Topper v. Stewart, 388 So.2d 1270 (Fla.3d DCA 1980). See also Drafting Marriage Contracts in Florida, The Florida Bar Continuing Legal Education (1977), § 2.18 and Appendix B, page 149.

I join with the majority in certifying the question to the Supreme Court.

Having held that Section 732.702 is inapplicable to this case, then the question raised is whether the trial court improperly placed the burden of proof of disclosure on the husband.

Under the case law regarding antenuptial agreements and the requirement that the spouse seeking the agreement disclose his or her assets prior to securing the other party’s signature, the husband here had the burden to go forth with evidence of disclosure only if the agreement on its face does not appear to have made provision for the wife proportionate to the husband’s means. Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962); Posner v. Posner, 257 So.2d 531 (Fla.1972). The final judgment specifically recites that the agreement was “patently valid.” Thus, the burden was on the wife to go forth with evidence of nondisclosure.

In this case, however, the determination of where the burden lay does not lead easily to a conclusion as to whether the trial court properly or improperly placed the burden of establishing disclosure or nondisclosure; for the relevant paragraph of the final judgment states:

That the antenuptial agreement pled by the Husband in bar of the Wife’s claim to alimony is patently valid. However, there is an absence of evidence that the Husband disclosed to the Wife (or that she otherwise had specific knowledge of) the nature or extent of his assets and resources prior to the execution of the agreement. Therefore the antenuptial agreement must be held invalid as a matter of law. Del Vecchio v. Del Vecchio, 143 So.2d 17, Posner v. Posner, 233 So.2d 381, and 257 So.2d 530.

If the wife did not carry her burden of initially showing nondisclosure, then it appears that the trial court placed an improper burden on the husband because an absence of evidence on his behalf would not require a finding of invalidity. On the other hand, this paragraph could be read to mean that the wife did meet her burden and, because of the absence of evidence of disclosure by the husband, the agreement must be found to be invalid.

If the former is an accurate interpretation of the judgment, then this cause should be reversed and remanded for reconsideration in light of the ruling on the proper placement of the burden of proof. If the latter is an accurate interpretation, then the cause should still be reversed and remanded because the trial court overlooked evidence in the record that the husband did disclose to the wife the nature or extent of his assets and resources prior to the execution of the agreement.

While I realize that the husband’s testimony was contradicted by the wife’s testimony and that his testimony on deposition was, arguably, impeached to some extent at trial, the fact is that the judgment relies on an absence of evidence. Because there is no absence of evidence and because the trial court overlooked the husband’s testimony, in my judgment, this case should be reversed and remanded for consideration in light of this finding. A determination of the credibility of the witnesses is clearly the responsibility of the trier of fact, and I do not here wish to intrude on the prerogative of the trial court.


text:
    George A. WHITTLE, Appellant, v. WHITTLE & SONS JANITOR SERVICE and Commercial Union, Appellees.
    No. TT-331.
    District Court of Appeal of Florida, First District.
    March 18, 1981.

      Stephen J. Pajcic, III, and William A. Bald of Pajcic, Pajcic, Dale & Bald, Jacksonville, for appellant.
    Martin J. Mickler of Bullock, Sharp & Childs, Jacksonville, for appellees.
   PER CURIAM.

The claimant appeals a workers’ compensation order alleging the deputy commissioner erred in using wages of a similar employee in determining claimant’s average weekly wage. We agree and reverse.

The claimant, who owned and operated his own janitorial service, injured his left shoulder while running a floor buffer on February 5, 1976, and suffered a 10% permanent physical impairment of the body as a whole.

In his application for hearing, the claimant alleged he was entitled to an increase in the compensation already paid and additional permanent disability because of a loss of wage earning capacity, in excess of the physical impairment rating. The deputy ruled that claimant had not suffered a diminution of wage-earning capacity in excess of 10% and denied claimant’s claim for additional current disability. That ruling is not contested.

As to claimant’s average weekly wage, Florida Statute § 440.14(1) (1975), the statute in effect at the time of the injury, read:

If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of thirteen weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the said thirteen weeks.

Moreover, an examination of Florida Statute § 440.14(2) (1975) indicates it read as follows:

If the injured employee shall not have worked in such employment during substantially the whole of thirteen weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such thirteen weeks shall be used in making the determination under the preceding subsection.

In the instant case, testimony is present that claimant had been employed in his own janitorial service for some 80 weeks before the accident. Therefore, it was improper for the deputy to use the wages of a similar employee to determine claimant’s average weekly wage.

Florida Statute § 440.14(4) (1975) read:

If any of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used, except as otherwise provided in subsection (5) or (6).

In this case, neither Florida Statute § 440.-14(3), (5), or (6), is applicable. An examination of the record indicates that claimant’s business was a small operation, with the record providing sufficient evidence for the deputy to determine claimant’s average weekly wage.

Accordingly, the order below is REVERSED and this cause REMANDED for a proper determination of claimant’s average weekly wage under Florida Statute § 440.-14(1) or Florida Statute § 440.14(4).

McCORD, SHIVERS and JOANOS, JJ., concur.


author: ROBERT P. SMITH, Judge.

text:
    SOUTHEASTERN PUBLIC SERVICE CO., d/b/a: Farrens Tree Surgeons, Inc., and A. I. A. Company, Inc., Appellants, v. James W. ALLEN, Appellee.
    No. WW-457.
    District Court of Appeal of Florida, First District.
    March 18, 1981.
    James B. Thompson of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., St. Petersburg, for appellants.
    Richard A. Bokor, Tampa, for appellee.
   ROBERT P. SMITH, Judge.

The record lacks substantial competent evidence supporting the deputy commissioner’s order finding that appellee Allen sustained a compensable 30 percent permanent impairment due to loss of wage earning capacity. On the face of the deputy’s order it appears that Allen made no work search adequate to sustain the granting of benefits greater than for the 10 percent anatomical disability accepted by the carrier. Exxon Co. v. Alexis, 370 So.2d 1128 (Fla.1978).

REVERSED.

McCORD and ERVIN, JJ., concur.


text:
    Dorothy NASH, Appellant, v. HOLIDAY INN AT CALDER and Employer Insurance of Wausau, Appellees.
    No. WW-494.
    District Court of Appeal of Florida, First District.
    March 18, 1981.

      R. Cory Schnepper, of Ser, DeCardenas, Levine, Busch & Allen, Miami, for appellant.
    Steven Kronenberg, of Adams, Kelley & Kronenberg, Miami, for appellees.
   PER CURIAM.

The claimant here urges that the deputy commissioner committed reversible error in failing to include her gratuities in arriving at her average weekly wage. The deputy commissioner stated in his order:

“In the absence of competent, substantial evidence regarding the exact amount of the gratuities, such gratuities cannot be included in computing the claimant’s average weekly wage.” (emphasis supplied)

Section 440.02(12), Florida Statutes, states that wages shall include “... gratuities received in the course of employment from others than the employer, only when such gratuities are received with the knowledge of the employer.” Claimant offered the only testimony regarding the amount of gratuities, testifying that she had received between $20.00 and $30.00 per week in tips. The evidence also indicates that her employer knew she was receiving tips, instructed her that she need not report these tips, and, in fact, had no reporting provision. It is true that the deputy commissioner does not have to accept the highest figure or even the lowest figure testified to by the claimant. However, in the absence of testimony to the contrary, we believe the deputy commissioner was in error in not considering claimant’s testimony regarding gratuities in computing her average weekly wage. See Magic City Bottle & Supply Company v. Robinson, 116 So.2d 240, 241-242 (Fla.1959); Top of the Home Restaurant v. Mourino, IRC Order 2-3490 (July 26, 1978). See also Torres v. Eden Roc Hotel, 238 So.2d 639 (Fla.1970). Accordingly, we must remand for reconsideration on this point.

Claimant also urges entitlement to additional temporary total disability benefits, which were voluntarily paid by the employer/carrier from December 14, 1978, to June 25, 1979. On June 26, 1979, she began employment with the Michael-Ann Russell Jewish Community Center. After working there for approximately three weeks, she terminated her employment and was not able to secure work again until November 3, 1979. Upon these facts she urges that she is entitled to additional temporary total disability benefits for this interim period. We disagree. There is no evidence which indicates she was unable to work due to her physical incapacity during the time she quit her job with the Michael-Ann Russell Jewish Community Center and the time she found new employment. The absence of such evidence precludes her from obtaining additional temporary total disability benefits. Westco Aluminum, Inc. v. Johnson, IRC Order 2-2400, (September 25, 1973), cert. denied 289 So.2d 738 (Fla.1974).

Affirmed in part; reversed and remanded for further proceedings consistent with this opinion.

SHIVERS and WENTWORTH, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


text:
    Howard A. HAGANS, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-409.
    District Court of Appeal of Florida, First District.
    March 18, 1981.
    Howard A. Hagans, in pro. per., for appellant.
    No Appearance, for appellee.
   PER CURIAM.

The trial court properly denied Hagans’ petition for jail time credit since Section 921.161(1), Florida Statutes (1979) is not applicable to time spent in county jail by a defendant pending the completion of his trial for escape. Adams v. Wainwright, 275 So.2d 235 (Fla.1973); Danforth v. State, 316 So.2d 304 (Fla. 1st DCA 1975); Barger v. State, 310 So.2d 764 (Fla. 2d DCA 1975). Affirmed.

McCORD, ROBERT P. SMITH and ERVIN, JJ., concur.


text:
    Edward N. CLAUGHTON, Jr., Appellant, v. Beverly A. CLAUGHTON, Appellee.
    No. 77-2620.
    District Court of Appeal of Florida, Third District.
    March 26, 1981.
    Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appellant.
    Paige & Catlin and H. James Catlin, Jr., Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 27, 1978 (361 So.2d 752) reversing the judgment of the Circuit Court for Dade County, Florida in the above styled cause, and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed October 23, 1980 (393 So.2d 1061) and mandate now lodged in this court quashed a portion of this court’s judgment,

NOW, THEREFORE, It is Ordered that the mandate of this court issued in this cause on September 6, 1978 is withdrawn, t,he opinion and judgment of this court filed June 27,1978 insofar as it is in conflict with or fails to conform to the views expressed in the said opinion and judgment of the Supreme Court of Florida foresaid is withdrawn and vacated, and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, and the cause remanded to the trial court for further proceedings not consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedures).


text:
    Vivienne BROWN and Arthur Brown, Appellants, v. Eugene Nicholas TAN et al., Appellees.
    No. 81-578.
    District Court of Appeal of Florida, Third District.
    March 27, 1981.
    Levine, Reckson, Reed & Geiger and Allen P. Reed, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and John R. Kelso, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed.


author: ELLIS, Justice Ad Hoc. DIXON, Chief Justice CALOGERO, Justice, DENNIS, Justice, LEMMON, Justice.

text:
    Dr. Doyle F. PHILIPPE v. BROWNING ARMS COMPANY et al.
    No. 66001.
    Supreme Court of Louisiana.
    May 19, 1980.
    Dissenting Opinion Sept. 24, 1980.
    On Rehearing March 2, 1981.

      John A. Lieux, Gonzales, A. Kennon Goff, III, Goff, Goff, Levy & Hearn, Ruston, for plaintiff-respondent.
    Raymond Morgan Allen, Allen, Gooch & Bourgeois, Lafayette, for defendants-applicants.
   ELLIS, Justice Ad Hoc.

Dr. Doyle F. Philippe filed this suit to recover damages for personal injuries suffered when his shotgun accidentally discharged and severed his right thumb. The trial court found that the cause of the accident was a defect in the design and manufacture of the safety mechanism of the shotgun, and rendered judgment in favor of plaintiff for $900,067.00. On appeal, the Court of Appeal amended the judgment to award $25,000.00 in attorneys’ fees, and otherwise affirmed. Defendants have applied for writs of certiorari, assigning as error, inter alia, the award of attorneys’ fees and the award of $800,000.00 in loss of future earnings. We granted certiorari to review the ruling of the Court of Appeal in both respects.

In ruling on plaintiff’s demand for attorneys’ fees herein, the Court of Appeal summarized plaintiff’s argument, and its holding as follows:

“Plaintiff, in his answer to this appeal, alleges the trial court erred in failing to award him reasonable attorney fees under Civil Code Article 2545, which provides:
The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.
“He contends that since a manufacturer is presumed to have knowledge of the defect and since the defect in the shotgun was not declared to him, this article should apply and allow him to recover reasonable attorney fees in addition to damages for pain and suffering and loss of future earnings. Although this article is contained in the section of the Code dealing with redhibition, plaintiff claims it may be applied in cases where personal injury damages alone are sought. He reasons that since Louisiana courts employ fact pleading rather than requiring a litigant to plead the ‘theory of the case’, he is entitled under the facts actually proven to whatever relief the law allows, and it makes no difference whether the suit is technically termed an act in redhi-bition or one in tort. Plaintiff argues that any time a plaintiff buyer shows he has suffered damage caused by a defect in a product manufactured by the defendant, the relief provided in article 2545 is available to him regardless of whether his petition includes a demand for the return of the purchase price of the defective product.
“We agree. In Harris v. Bardwell, 373 So.2d 777 (La.App. 2d Cir. 1979), this court recently stated there is no difference in ‘damages’ as contemplated by Civil Code Article 2315 and ‘damages’ under Article 2545. There we noted that recovery for damage caused by a defective product smacks of both contract and tort and that recovery may be had under either theory. Although these statements in that case may be dicta since the plaintiff had sought recovery under both theories, we find they are a correct statement of the law. See also Albritton v. McDonald, 363 So.2d 925 (La.App. 2d Cir. 1978); Townsend v. Cleve Heyl Chevrolet Buick, Inc., 318 So.2d 618 (La.App. 2d Cir. 1975); C. T. Boudreaux Lumber Co. v. Sherrwood Homes, 371 So.2d 326 (La. App. 4th Cir. 1979).
“We have held that article 2545 does not exclude personal injury damages which are factually and legally caused by the defective product. See Harris, supra. This permits an award of attorney fees despite the fact that plaintiff’s petition does not demand rescission of the sale. Whenever plaintiff’s petition alleges facts sufficient to entitle him to redhibition (defect, damage and causation), he is also entitled to recover reasonable attorney fees under article 2545 regardless of whether his suit is labeled in tort or in redhibition.
“The trial of this case took six days and required extensive discovery and pre-trial preparation. We award $25,000.00 as reasonable attorney fees.”

It is, of course, true that Louisiana has a fact pleading system, and that recovery may be had under any legal theory which is justified by the well pleaded facts in the petition. See Articles 862, 891, 1841, Code of Civil Procedure. It is likewise true that the same set of facts might give rise to more than one cause of action, based on more than one legal theory.

If, as in this case, one is injured by a defective product which one has purchased, there arises a redhibitory action, for the rescission of the sale, and a tort action for the personal injuries suffered. See Articles 2520 et seq. and 2315 et seq., Civil Code. Article 2545 of the Civil Code, which is found in the section thereof dealing with the redhibitory action, provides:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

If, as argued by plaintiff, and as found by the Court of Appeal the “damages” contemplated by the above article include those for personal injuries and loss of future income which are caused by the defective product, then plaintiff would be entitled to attorneys’ fees under Article 2545. Defendants, however, argue that the redhibitory action, which is founded on the breach of an implied warranty, is purely an action in contract, and that damages in a contract action are limited by Article 1934 of the Civil Code to “the amount of the loss he has sustained, and the profit of which he has been deprived....” They point out that the courts of this state have consistently interpreted Article 1934 so as to preclude the recovery of non-pecuniary damages in suits arising in contract. Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976). This same line of reasoning would appear to preclude the award of other types of personal injury damages, including loss of future earnings, in a redhibitory action. This court has held that, in cases in which one is injured by a defective product, the duty of the manufacturer is fixed by that part of the Civil Code dealing with sales, but that recovery for the injury arises under Article 2315. See Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978). It would therefore seem obvious that, although a plaintiff is not required to restrict himself to one theory for recovery, the courts must, in many cases, characterize the cause of action so as to determine the appropriate standard for recovery.

Admittedly, there is nothing in the language of Article 2545 itself which would preclude the award of damages for personal injuries, and appropriate attorneys’ fees as well. However, that article is only part of the series of articles dealing with the redhi-bitory action. These form a scheme by virtue of which the purchaser of a defective product can recover the purchase price and expenses of the sale, and, in the case of the bad faith seller, such damages as relate to the transaction, as well as reasonable attorneys’ fees in connection therewith.

His right to recover for personal injuries, which are caused by the same defect, arises under Article 2315, et seq., which do not provide for the recovery of attorneys’ fees. See Gordon v. General Motors Corporation, 323 So.2d 496 (La.App. 3rd Cir. 1975); Reeves v. Great Atlantic & Pacific Tea Co., 370 So.2d 202 (La.App. 3rd Cir. 1979).

We therefore hold that in this case, in which rescission of the sale was not sought by plaintiff, but only damages arising from his personal injuries, attorneys’ fees under Article 2545 are not payable.

As to the second assignment of error, defendants argue that the trial court erred in awarding $800,000.00 for loss of future earnings. Defendants contend this award to be an abuse of discretion of the trier of fact; contrary to the jurisprudence and to the facts established at trial.

The trial court was supplied with expert testimony from three economists. Each one produced different sets of figures based upon various combinations of factors. When superimposed upon a time continuum, these calculations produced figures which were less or greater than the amount awarded. The trial court states that it was most impressed by the testimony of Dr. Chisholm who related that the fairest computation would be based on a three per cent annual productivity increase, a four per cent annual inflation rate, and a seven per cent discount rate. The court went on to note that a deduction was made from his final figure of $970,000.00, owing to mitigation by Dr. Philippe, who had found a position as dental consultant with the State.

The trial court made no deduction for the contributions made to his earnings by Dr. Philippe’s wife, who was her husband’s receptionist, dental assistant, and general record keeper, and who never drew a salary. One of the economists, Dr. Boudreaux, who relied on the Survey of Dental Practice published by the American Dental Association, figured her contribution in accord with the general ratio of dentists’ payments to employees per dollar cash receipts or income. This ratio of 16-16!/2% placed the value of Mrs. Philippe’s contribution to the dental practice at approximately $11,700.00 in 1976.

Mrs. Philippe was not injured in the accident. She can continue to work in the future, and therefore her contribution to the income of the couple should be subtracted from his earnings in order to project a more accurate picture of his past and future earning loss.

For the foregoing reasons, the decision of the Appellate Court is affirmed in part and reversed in part. The decision of the trial court to deny attorneys’ fees is reinstated. The case is remanded to the Court of Appeal to determine the proper award for loss of future earnings, in accordance with the reasons expressed herein.

Affirmed in part; reversed in part.

WATSON, J., concurs without written reasons.

DIXON, C. J., dissents with reasons.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Civil Code article 2545 clearly provides that the seller is answerable in damages, in addition to “repayment of the expenses, including reasonable attorneys’ fees ...”

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion insofar as it holds that plaintiff is not entitled to recover attorney’s fees. I believe that the Court of Appeal was correct on this issue. La.Civ.Code art. 2545 allows such a recovery in this case.

DENNIS, Justice,

dissenting.

I dissent for the reasons assigned by DIXON, C. J., and CALOGERO, J.

ON REHEARING

LEMMON, Justice.

In this products liability case we granted applications for rehearing by both sides in order to reconsider (1) our reduction on original hearing of the trial court’s award of damages in the amount of $800,000 for impairment of earning capacity and (2) our denial of attorney’s fees against the manufacturer.

Impairment of Earning Capacity

At the time of the February 21, 1976 accident, in which plaintiff lost the thumb of his dominant hand, plaintiff was a 42-year old dentist who had been practicing his profession since 1960. After the accident he could no longer practice dentistry, since the loss of his thumb deprived him of the manual dexterity essential for that profession. In January, 1977 plaintiff obtained employment as a consultant in dentistry earning $25.00 per hour, but he could work only a limited number of hours each week, since the available consultation work was allotted on the basis of seniority.

To establish the measure of his damages sustained because of impaired earning capacity caused by defendant’s fault, plaintiff presented evidence consisting of the estimated amount of earnings he would reasonably have been expected to receive from the date of the accident over the remainder of his working life if he had not been injured, minus the estimated amount of earnings he had actually received since the accident and can reasonably expect in the future in the consulting work he is still able to perform despite his physical impairments. The evidence also presented various factors involved in adjusting that portion of the figures which are attributable to the period after the date of trial, since those figures are projections into the future.

Dr. John Chisholm, an expert in economics, presented his calculations on behalf of plaintiff. As a basis for calculating the amount of future earnings plaintiff would reasonably have been expected to receive in dentistry, the expert determined plaintiff’s annual earnings in 1973, 1974, 1975 and 1976 (the 1976 figure was estimated for the year based on earnings through the date of the accident) and used a figure of slightly over $45,000 per year. As a basis for calculating the amount of future earnings plaintiff might reasonably expect to receive in consultation work, the expert used plaintiff’s actual earnings in 1977, or $10,000. The expert then calculated that the difference in earnings projected through age 63.5 would be $765,093, and through age 69 would be $1,036,077. Using these figures to estimate plaintiff’s net economic loss over the remainder of his expected work life, the expert applied three factors which he considered appropriate for an accurate projection: (a) a 3% annual increase attributable to an increase in productivity; (b) a 4% annual increase attributable to an increase in price levels; and (c) a 7% discount, representing the appropriate factor to reduce the net economic loss figure (theoretically to be lost over a period of years in the future) to present value. When the amounts attributable to these figures were added and subtracted, the adjusted estimate of net economic loss through age 63.5 was $716,908 and through age 69 was $970,165.

Defendants also offered an expert in economics, Dr. Boudreaux, who presented his estimate of plaintiff’s economic loss calculated by a similar method. Dr. Boudreaux used $42,000 as the basic figure for annual earnings in dentistry (compared to Dr. Chisholm’s use of $45,000). The expert, however, reduced the figure by 17% to $30,-300, explaining that most dentists have an expense for employees of almost 17% and that plaintiff would have incurred this expense, except that his wife worked for him without salary. Dr. Boudreaux reasoned that since the base figure of $42,000 was attributable to the efforts of both spouses, only 83% of the base figure was attributable to plaintiff’s efforts.

The second principal difference between this expert’s calculations and those of Dr. Chisholm was Dr. Boudreaux assumed that only a 5% annual increase was appropriate and then only for the first ten years. His 7.3% discount rate compared favorably to the 7% used by Dr. Chisholm.

The trial judge, in an excellent written opinion, evaluated in detail the evidence bearing on plaintiff’s loss due to impaired earning capacity. The judge was most impressed with Dr. Chisholm’s testimony, considering the factors used by that expert as the fairest method of calculation and rejecting Dr. Boudreaux’s opinion on appropriateness of considering price increases and on the leveling off of a professional man’s earning cycle.

Expressly taking into consideration all of the factors discussed by all three experts in economics, the trial judge awarded $800,000 for this item of damages. The court of appeal affirmed that award, but this court on original hearing set aside the award and remanded to the court of appeal to determine the proper award by subtracting from “the income of the couple” an amount attributable to the contributions of the wife, who was not injured in the accident and who “can continue to work in the future”.

We erred in that portion of our decision on original hearing. When the trial court determined the amount of damages sustained by this tort victim, it was appropriate to consider all pertinent factors discussed by the experts as those factors bear on the probability of this victim’s earnings over his work life expectancy.

Although most dentists employed dental assistants, this dentist did not, because his wife performed the services. The evidence clearly supported the probability that this method of operation would have continued during the remaining years of plaintiff’s practice if his professional career had not been ended by defendants’ fault. Accordingly, we cannot say the trial judge erred in his apparent conclusion that this expense, which this dentist had not incurred in the recent past, would likely not be incurred by this dentist in the future had he continued practicing.

One of the appropriate factors to be considered in setting damages for impairment of earning capacity is the. probability or improbability that plaintiff would have earned similar amounts during the remainder of his work life, but for the injury. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968). While evidence of the wife’s working without salary and of the employment practices of other dentists was relevant and appropriate for consideration, a rational trier of fact could conclude on the evidence in this record that this dentist, with his method of operation, would have earned similar amounts during the remainder of his work life. Moreover, impairment of earning capacity cannot be calculated with mathematical certainty, and sound judicial discretion must be exercised after all proper considerations are weighed. McFarland v. Illinois Cent. R. R., 241 La. 15, 127 So.2d 183 (1961).

In the present case the trial judge weighed all proper considerations and he may have concluded that plaintiff’s expected remaining work life was beyond 63.5 or that the appropriate price increase factor was more than 4%. We cannot say on this remand that the judge’s award for impairment of earning capacity constitutes an abuse of his “much discretion”. C.C. art. 1934(3).

Defendants also attack on rehearing the trial court’s rejection of its argument on mitigation of damages.

Invoking the doctrine of avoidable consequences, defendants contend that plaintiff had a duty to mitigate his loss by obtaining full-time employment outside his chosen field. Defendants argue that plaintiff limited himself to part-time employment in dental consultation only because he was receiving disability benefits from private insurance.

In the determination of an injured person’s net economic loss caused by impairment of earning capacity, one of the factors to be considered is the availability of reasonable employment opportunities for which the claimant is suited by education, experience and physical capacity. Defendants were not restricted in their presentation of evidence (and argument) that plaintiff, with exceptional intelligence, could have entered the field of dental sales (in which successful salesmen earned more than many dentists), or could have been reeducated in another field, or could have gone into full-time real estate work. Defendants were also allowed to establish that plaintiff was receiving disability insurance benefits. Nevertheless, the judge apparently concluded that plaintiff had acted reasonably by remaining in his chosen field and by working in the only capacity he was physically able to perform, for as many hours as consulting work was available.

On this record the trial court could properly have concluded that defendants failed to prove that other reasonable work opportunities were actually available to a person of plaintiff’s education, training, experience and physical ability, or that plaintiff refused to take advantage of such opportunities. Indeed, the court expressly found that plaintiff showed strong motivation in continuing his professional career under adverse circumstances not of his own making. We conclude that the trial court did not err in finding that plaintiff acted reasonably and in good faith to minimize the damages he sustained through defendants’ fault.

Attorney’s Fees

On reconsideration we further conclude that we erred on original hearing in denying attorney’s fees against the manufacturer.

The manufacturer of products introduced into commerce has the obligation to produce a product which is reasonably safe for its intended use. Weber v. Fidelity & Cas. Ins. Co., 259 La. 599, 250 So.2d 754 (1971). Breach of this obligation gives rise to a cause of action in favor of the purchaser of the product not only to demand the return of the purchase price, but also, because the manufacturer is presumed to know of defects in its products, to demand all damages caused by the defect and reasonable attorney’s fees. C.C. art. 2545; Rey v. Cnccia, 298 So.2d 840 (La.1974).

In the present case on original hearing this court, noting that plaintiff had only demanded tort damages and had not demanded rescission, held that attorney’s fees under C.C. art. 2545 were not recoverable. That analysis represents a return to the requirement of pleading the theory of the case, which we reject on rehearing.

Our decision on rehearing also records with basic concepts of tort responsibility. While C.C. arts. 2315 and 2316 are the fountainhead of tort responsibility, the court which determines tort responsibility in a particular case must decide the applicable standard of conduct by consulting the many other codal articles, statutes and laws which provide for certain responsibilities according to the person involved or to the relationship or activities involved. Langlois v. Allied Chem. Corp., 258 La. 1067, 249 So.2d 133 (1971).

The appropriate standard of conduct in this case is derived from the codal articles on sales, since the cause of action of the purchaser of a defective thing may be enforced against both the seller and the manufacturer of a thing. Media Production Consultants v. Mercedes-Benz of N. A., Inc., 262 La. 80, 262 So.2d 377 (1972). One of the obligations imposed on the seller (manufacturer) is the warranty against hidden defects of the thing sold. C.C. art. 2476. When the thing sold has a redhibito-ry defect, the seller (manufacturer) “who knew not of the vices of the thing” is only liable for the return of the price and the expenses of the sale. C.C. art. 2531. However, the seller (manufacturer) who knows of the vice of the thing and fails to warn is also answerable for damages and reasonable attorney’s fees. C.C. art. 2545.

There is no compelling reason to require a person injured by a defective product he has purchased to proceed either in contract or in tort. The seller’s (manufacturer’s) act of delivering a defective thing, when he knows of the defect, gives rise to delictual, as well as contractual, liability. S. Letvenoff, Louisiana Civil Law Treatise — Obligations, Book 2 § 252 (1975); see also W. Crawford, Products Liability— The Cause of Action, 22 La.B.J. 239 (Mar. 1975).

We conclude that the right and the extent of recovery by the purchaser of a thing against the seller or manufacturer is governed by the codal articles providing for responsibility in the seller-purchaser relationship, as applied through C.C. art. 2315. Since C.C. art. 2545 clearly provides for recovery of damages caused by a defective product and for reasonable attorney’s fees, we conclude the court of appeal correctly made such award. We further conclude that the amount of the court of appeal’s award of attorney’s fees ($25,000) did not constitute an abuse of discretion.

DECREE

The judgment of the court of appeal is affirmed. All costs are assessed to defendants.

DENNIS, J., concurs.

WATSON, J., concurs as to the issue of impairment of earning capacity but dissents from the award of attorney fees.

MARCUS and BLANCHE, JJ., dissent, adhering to opinion on original hearing.

      . According to a 1970 study by the U.S. Department of Labor of the length of working life of men and women, a man plaintiff’s age (42) at the time of the accident had a work life expectancy of 21.5 years, while one at age 63 had an additional work life expectancy of 6.4 years. The expert conceded that the work life expectancy of professional men with no mandatory retirement age was less predictable and depended on the individual.

      . The expert defined productivity as the measurement of the output of a person in goods and/or services over a given period of time. Statistics compiled by the U.S. Department of Labor revealed that productivity for all levels of work increased between 1950 and 1975 at an average annual rate of 2.7%. The expert attributed increases in productivity to individual improvements achieved through work experience and to technological improvements, reasoning that a 3% factor was appropriate for persons in professional occupations.

      . Noting that price levels had increased annually since 1945, the expert reasoned that price level increases would continue over the pertinent period, giving rise to increases in earnings to defray increases in the cost of living (a consideration totally unrelated to productivity). The expert recommended the use of a 4% factor, but classified that figure as “very conservative”, since the percentage increases in the four years prior to trial were 6.5, 4.8, 7 and 12.2%. The tables introduced at trial exhibited the expert’s alternative calculations using a 6% and a 7% factor (the higher factors increasing the adjusted estimate of net economic loss).

      . The expert opined that 7% was appropriate, being the current rate of return on a safe investment over a long term. He testified that he generally used a 5% or 6% factor (the higher the factor, the lower the figure representing the net economic loss at present value), but deemed 7% reasonable in this case, because plaintiff had some previous successful investment experience. The tables introduced at trial exhibited the expert’s alternative calculations using a 6% factor.
      We note that the expert applied the discount factor to the entire amount of estimated economic loss, even that attributable to the period of time between the accident and the trial, on which the discount factor is not usually applied in such calculations.

      . Stated otherwise, a fund of $716,908, invested at 7% on February 21, 1976, would generate $35,000 annually, growing at a rate of 3% plus 4% per year, and the entire fund would be used up in 21.5 years. This fund thus represents the amount of money needed for investment to replace a net annual income loss of $35,000 over a 21.5-year period, with adjustments for annual increases in productivity and in prices for goods and services.

      . We note that 17% of $42,000 is $7,140, whereas Dr. Boudreaux’s 17% reduction from that figure amounted to $11,700.

      . For three and one-half years prior to the accident plaintiffs wife served as his dental assistant and receptionist, and also helped with the bookkeeping, but did not draw a salary. During this period plaintiff had virtually no other expense for employees, but he did pay other assistants prior to his wife’s working with him, and he conceded he would have had to hire someone else if she did not perform the services.

      . Dr. Boudreaux used 5% as the estimated annual increase in earnings he would reasonably expect for a dentist during the ten years after trial, at which age he would expect the earnings of a professional to level off.
      He did not consider an increase attributable to a rise in prices of goods and services, because he believed the upward trend in prices would be reflected both in income and expenses. (Dr. Chisholm had applied the inflation factor to the amount of income which exceeds expenses.)
      Dr. Boudreaux’s opinion that a dentist’s earnings should be expected to level off as he reaches the mid-50’s was vigorously rebutted by Dr. House, the senior economist for the American Dental Association. Dr. House also testified that 68 was the median age through which dentists could be expected to continue their practice. He also opined that anticipated increases in the prices of goods and services should be included in time series studies.

      .The evidence overwhelmingly established that the happily married parents of six children were extremely satisfied in this relationship, in which they shared the husband’s love and devotion to dentistry, and that they looked forward to sharing this relationship on a permanent basis. It is therefore more probable than not that this dentist in the future would not have incurred the usual expense of an employee’s salary.

      . Plaintiff argues persuasively in this court that if plaintiffs wife owned as her separate property the office in which he practiced and if she had contributed the building without rent in the past and was likely to do so throughout his professional career, it would be inappropriate in calculating plaintiffs expected future earnings to deduct arbitrarily an expense item for rent (which plaintiff had never incurred and was unlikely to incur in the future) simply because other dentists generally incurred this expense.

      . Plaintiff had invested to some extent in real estate while practicing full-time dentistry.

      . The doctrine of avoidable consequences bars recovery of those damages which occurred after the initial injury and which might have been averted by reasonable conduct on the part of the plaintiff. W. Prosser, Law of Torts § 65 at 422 (4th ed. 1971). The standard is that of a reasonable man under like circumstances.

      . This holding apparently limited recovery of attorney’s fees, in cases in which the plaintiff demands both return of the purchase price and damages against the bad faith seller or manufacturer, to those fees attributable to recovering the purchase price. Plaintiffs failure in the present case to demand return of the purchase price (to which he was clearly entitled) certainly would not defeat his entitlement to attorney’s fees for recovering damages, if he were otherwise entitled to such fees.

      . The approach of allowing recovery against the manufacturer upon proof that the product was defective (unreasonably dangerous to normal use) and that the injury was caused by the defect is the functional equivalent of the common law’s strict liability in tort. D. Robertson, Manufacturer’s Liability for Defective Products in Louisiana Law, 50 Tul.L.Rev. 50, 57 (1975). Liability is strict in the sense that proof of knowledge of the defect is not required. The manufacturer’s “fault” is the creation of an unreasonable risk of injury by placing the product in commerce.

      .The long-standing jurisprudence of this state imputes knowledge of defects in a product to the manufacturer of the product. See, for example, Doyle v. Fuerst & Kraemer, 129 La. 838, 56 So. 906 (1911). The Weber case extended the presumption of knowledge of a defect to cases in which the defect caused personal injuries.
      The primary purpose of the presumption, of course, is to prevent a manufacturer from placing into the stream of commerce a thing which is not' reasonably safe for its intended use. Another consideration is the public policy of placing the burden of accidental injuries caused by products upon those who market the products and can treat the cost of insuring against these injuries as a cost of production. Restatement (Second) of Torts § 402 A, comment c.