author:
CHEHARDY, Judge.
      SCHOTT, Judge,

text:
    Patricia COOGAN, wife of/and William Stephen Lambert v. The PARISH OF JEFFERSON.
    No. 11007.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Rehearing Denied April 18, 1980.

      Post, Reinhardt & Rougelot, William H. Reinhardt, Jr., Metairie, for plaintiffs-ap-pellees.
    James S. Arceneaux, Parish Atty., Warren E. Mouledoux, Jr., Asst. Parish Atty., Gretna, for Parish of Jefferson, defendant-appellant.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Defendant has appealed from a judgment directing the Parish of Jefferson to change the zoning classification of plaintiffs’ property from R-3 to C-l neighborhood commercial.

The irregular shaped property is composed of Lots 23 and 24 of Square 3, Metair-ie Ridge Nursery bounded by Metairie Road, Narcissus Street, Carrollton Avenue and Dalhia Street. Together the lots measure 90' front on Metairie Road by a depth on Narcissus of 60'8"3'" and a second depth and front on Narcissus Street of 89'2"4' ", a width in the rear on the Carroll-ton Avenue side of 64'9"6' " and a depth on its side line nearest Dahlia Street of 131'5"5'". The property contains 10,794 square feet. On October 25, 1977, Exxon, through plaintiffs’ attorney, filed a rezoning application with the Jefferson Parish Council, asking that this property be rezoned from R-3 to C-2. On August 24, 1977, plaintiffs offered to purchase the property from Exxon Corporation subject to the property being rezoned from R-3 to C-2.

On December 27, 1977, a hearing was held by the Planning Director and the Planning Advisory Board. After the hearing, Exxon changed its request for rezoning from C-2 to C-l. Subsequently, the Planning Director recommended against the C-l zoning change, and the Planning Advisory Board voted for it.

A public hearing was held before the Parish Council on March 18, 1978, with appearances made by plaintiff and representatives of the Forest Hills Civic Association, and the rezoning application was denied. Despite this denial of Exxon’s request for the change, plaintiffs purchased the property on August 21, 1978 and filed the present suit on September 6, 1978. Located in the same square with plaintiffs’ property is a six-story multimillion dollar building, containing a homestead and other nonconforming commercial-use tenants; an apartment complex; and an adjacent parking area. All of the property in this square is zoned R-3 at present with a substantial portion used as nonconforming commercial.

Directly across from plaintiffs’ property is a Shell Service Station, a grocery store, a furniture store, and a number of other commercial establishments, all of which property is zoned C-l.

Forest Hills Subdivision, all of which is zoned R-l, is in the square on the opposite side of Narcissus Street, which forms a boundary of the subdivision and serves as a buffer zone between plaintiffs’ property and. Forest Hills.

On October 2, 1924, Harry Papworth sold the subject property, with no use restrictions in the sale, to Standard Oil Company of Louisiana. A service station was constructed on the premises and used as such until it was abandoned several years ago. In 1966, the Comprehensive Zoning Ordinance was adopted, and the subject property, although still used as a service station, was rezoned from C-2 to R-3, along with the remainder of Square 3.

Early in 1972, the property in the same square adjoining the plaintiffs’ property was torn down to make way for a new building, which now houses Security Homestead on its first floor and the A & P offices on the upper floors. The Parish permitted this nonconforming commercial use, although the property is zoned R-3.

In May of 1974, the Homeowners Association of Forest Hills petitioned the Council to change all lots in Forest Hills Subdivision which were not zoned R-l to R-l.- The Council granted their request.

The issues before us are whether or not the trial court erred in finding that the denial of the plaintiffs’ request for rezoning by the Jefferson Parish Council was unreasonable, arbitrary and capricious and whether or not plaintiffs are parties in interest to the present suit with standing under LSA-C.C.P. 681, to maintain this action.

In the case of Gertler v. City of New Orleans, 346 So.2d 228 (La.App. 4th Cir. 1977), rehearing denied June 7, 1977; writs refused by the Supreme Court of Louisiana, September 23, 1977; regarding the standard of review that an appellate court must adhere to in reviewing the trial court’s decision in such a case, the court said at page 239:

“Although, on one hand, we might disagree with the Board’s findings and, on the other hand, ascribe no manifest error to those findings of the district judge, we are obliged to sustain the Board’s conclusions unless the weight of the evidence in its entirety so strongly preponderates against such conclusions that it compels us to find an abuse of discretion on the part of the Board.”

Gertler, supra, refers to a “board” because it concerned an Orleans Parish case where zoning is determined by the Board-of Zoning Adjustments. In Jefferson Parish, where the present case originated, the Jefferson Parish Council performs this function. The same standard of review, therefore, must apply to the Council’s decisions in these matters.

The plaintiffs in the present case presented several experts who testified regarding the highest and best use of the parcel of the land in question, including William G. Weigand, who was accepted as an expert in the field of real estate appraisals.

In giving his opinion that the highest and best use of this site would be as commercial Weigand testified that the construction of a commercial building at the corner of Narcissus and Metairie Road would not adversely affect the neighborhood surrounding the site; that there is a present and potential market for a commercial building at that spot; and that commercial zoning would be compatible with the existing zoning and usage of this neighborhood.

The testimony of Dennis DeVun, assistant to the Safety Director of Jefferson Parish, establishes that the six-story multimillion dollar building adjoining plaintiffs’ property was permitted a nonconforming commercial use of 15,000 square feet on its first floor to replace an old building which only had 10,700 square feet of nonconforming commercial. DeVun testified that in enforcing the zoning ordinance if somebody came in and wanted to extend a commercial use of a piece of property from 10,000 square feet to 15,000 square feet, he would not grant them a permit.

In response to questioning about Security Homestead’s permit, DeVun continued:

“Q Why was a permit granted here?
A You’d have to talk to the man who issued the permit, sir.
Q You were ultimately responsible, weren’t you?
A Yes, sir, I was responsible for it, that may be true, but I don’t issue the permits. That’s up to my subordinates to check them out.
Q So that you have a piece of property here that is, in effect, a non-conforming use that your office granted the permit?
A If it was given and if it exceeds that amount, yes, sir.
Q Well Mr. DeVun, can you explain why you have a 15,000 square foot non-conforming use when you had a 10,000 square foot non-conforming use?
A No, sir, I can’t answer that. I told you that I couldn’t answer that.
Q Mr. DeVun, can you have a homestead in a R-3 zoning?
A No, Sir, you can’t.
Q Is there a homestead in this building?
A Yes, sir.”

The new building should not have had more square footage than the old building. Considering this allowance by the Parish of an expanded nonconforming commercial use in the same square as plaintiffs’ property, coupled with commercially zoned property along the same side of Metairie Road and across the street, we can see why the trial court concluded that the Council had acted in an arbitrary manner.

Mr. Frederick Miller Guice, also accepted as an expert in the field of real estate appraisals, testified that the highest and best use of this property would be under a neighborhood commercial C-l zoning and that a retail commercial use would not adversely affect the neighborhood.

Perhaps the most persuasive of the plaintiffs’ arguments on behalf of the change to C-l zoning came from Louis C. Bisso, who was accepted as an expert in the zoning field and has been involved in zoning matters for 43 years.

In analysis of the properties along Me-tairie Road that actually front on Metairie Road, as does the subject property, Bisso said:

“Q So that the only piece of property that is residential that is shown on this map that fronts on Metairie Road is the apartment complex, isn’t that correct? The rest of it is used for commercial purposes, isn’t it?
A The existing commercial irrespective of zoning, you are correct.” (Emphasis ours.)

In discussing the relationship of use of the subject property to the Forest Hills Subdivision, he said:

“Q What’s the significance of this street between the subject property and the rear of these residential lots?
A I would say it would act as a tremendous environmental impact barrier to anything that would go on . the subject property.”

In reference to the Jefferson Parish Planning Department’s report, Bisso also said:

“Q Now in that report it is stated that by granting this change that you would be — they would be allowing an intrusion of commercial into an otherwise residential district. Now considering that the homestead office building is, in fact, a commercial use; that across the street is all commercial and that the bulk of the property between Frisco Avenue and the homestead building is commercial, do you believe that to be the case?
A Definitely not. The holding of the property onto Metairie Road commercial on the periphery of the residential unit along the major street, both sides of it in the same generic category, would definitely save illogical extension into a residential area. I do not believe Metairie Road is or could possibly be defined from Avenue A to Frisco as a residential area or residential street.”

Regarding the use of the Security Homestead building and the traffic consideration, Bisso said:

“Q Do you find the homestead office building to be the natural boundary for the commercial space here?
A For two reasons. One, that the existing use is already commercial. Whether it is non-conforming legally or illegal is no concern of mine but it is non-conforming usage and commercial and it balances with the commercial stopping on the other side at Avenue A. It would serve two purposes. And, three, it is in a location where it ought to be, on the periphery of the unit and not in the interior.”

In explanation of why this requested change from R-3 to C-l could not possibly be considered “spot zoning,” Bisso said:

“ * * * Now coming back to Metairie Road, since the other side is commercial I would call a request or a change of this subject property to commercial would be a natural extension of the commercial that is oh one side of the street over to the other side and further down to Avenue A to balance it as I explained it before. Equalize and stabilize. Those are two key words in zoning. So I would definitely not say such a request would not only be spot zoning. I have fought spot zoning my entire life. * * * ”

In conclusion, Bisso said both the Security Homestead Building and the subject property should be zoned commercial because:

“ * * * It's in a commercial environment; it’s on a major street; it has commercial across the street from it; it’s in a commercial environment qualitatively and quantitatively the neighborhood can stand more commercial.”

The Planning Department through its director, Hugh Ford, recommended denial of the changes from R-3 to C-2 commercial for several reasons which are summed up as follows:

1. An illogical extension of a zoning boundary which will likely lead to residential deterioration and requests for additional zoning of a similar nature thereby expanding the problem.
2. This is spot zoning generally unrelated to either existing zoning or developmental patterns of the area.
3. Approval of this request would extend to the applicant development rights denied to others similarly situated in the same area.

The report to the Council for its consideration failed to show that a neutral ground and a service road is located between Me-tairie Road and those residences which abut this service road but face into Forest Hills. Bisso points out that this buffer is important. No such road or neutral ground faces plaintiffs’ property since it is directly on Metairie Road. This fact was also absent in the report. The Planning Advisory Board recommended denial of C-2 zoning but recommended C-l commercial zoning for plaintiffs’ property observing: “The petitioned property is presently surrounded by commercial uses, therefore, the character of the neighborhood will not be materially and adversely affected by any use permitted in a light commercial zoning classification.”

All of the evidence and the record taken in their entirety just do not justify Ford’s recommendation to the Jefferson Parish Council which was obviously misled. Despite the recommendations of Ford, the record establishes that the subject property was commercially used from 1924 until its abandonment a few years ago; is in the heart of a congested commercial area; faces a heavily travelled major traffic artery; and has a rear street serving as a buffer zone between it and the houses in Fprest Hills. Common sense dictates the inescapable conclusion that since practically all the property in the immediate area is already zoned commercial or used as nonconforming commercial, this change of zoning should not lead to additional requests. Furthermore when we consider that the six-story homestead building, used commercially, separates the subject property from the only property used as R-3 in the square the unreasonableness of refusing the change in the zoning of plaintiffs’ property becomes even more apparent.

Reasons 2 and 3 of the Planning Director likewise just do not state the real situation. Actually if there is any spot zoning it is the retention of plaintiffs’ property as R-3 in the midst of this heavy commercial area.

Furthermore it is plaintiffs who are being denied developmental rights allowed their neighbors who are using a six-story building zoned R-3 for a homestead and other nonconforming commercial purposes.

Ford explained that property on which the Security Homestead Building is located was enjoying a legal nonconforming use which is not granted through his office or the Council. He also explained that , if the nonconforming use is interrupted by a one-year period, this nonconforming use will end, and the Security Homestead property will be solely designed as R-3. However, this is a totally unrealistic possibility, considering this neighboring property of plaintiffs is a multimillion dollar development.

According to the testimony of Ford, the report said that this requested change could not be considered reasonable regardless of the surrounding circumstances, simply due to the fact the subject property was located in an R-3 zoning district. Under this criteria, he further admitted that any requested change would have to be considered unreasonable. Ford also admitted that his report said that across Metairie Road from the subject property there were 12 single family structures, three two-family structures and a lot containing a single family structure, when, in fact, there are no such structures in that location, only commercial ones. This is another aspect of Ford’s report that could have been very misleading to the Council.

Moreover, in regard to calling the proposed change of this property from R-3 to C-l zoning as “spot zoning,” Ford himself admitted that this was bad wording in the report because both he and the other experts agreed that this could not possibly be considered spot zoning. However, this is what the report said, and it was this report that was before the Council when it made the decision to deny the requested change.

In Trustees Under Will, etc. v. Town of Westlake, 357 So.2d 1299, 1303 (La.App. 3d Cir. 1978), writ denied, La., 359 So.2d 205 (1978), the court stated:

“Spot zoning is the practice of giving a small parcel of land a different classification from the surrounding area for the benefit of the owners of the small parcel. Cook v. Metropolitan Shreveport Bd. of App., 339 So.2d 1225 (La.App. 2 Cir. 1976), writ denied, 341 So.2d 1123 (La., 1977) * * * ”

This court agrees with all of the experts testifying that the use of the words “spot zoning” in the zoning report was completely erroneous. We also agree with these experts, for their stated reasons, that this change could not even be considered an “illogical” extension of commercial zoning and that the highest and best use of the subject property would be under C-l designation. In regard to our consideration of this issue, the court said in Trustees, supra, at page 1303:

“ * • * * While the highest and best use of a tract of land is not decisive in a zoning case, it is a relevant factor to be considered. * * * ” (Emphasis ours.)

Although the plaintiff who attacks a zoning decision has a difficult burden of proof to bear, we agree with the trial court that plaintiffs have sustained this burden.

The trial court’s overruling of the exception of no cause of action is affirmed. Plaintiffs were the owners of the property at the time the suit was filed in the district court and therefore have that interest in the suit required by LSA-C.C.P. art. 681 which reads:

“Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.”

Considering the evidence and the record in its entirety, the lack of a reasonable basis for the decision of the Council, and the positive arguments put forth by plaintiffs’ experts, it is our opinion that the finding of the learned trial judge that the Jefferson Parish Council acted unreasonably, arbitrarily and capriciously in denying plaintiffs’ request for a zoning change is proper.

Accordingly, the judgment of the trial court, directing the Parish of Jefferson to change the classification of Lots 23 and 24, Square 3, Metairie Ridge Nursery, in Me-tairie, Louisiana, to a C-l commercial zoning classification is affirmed in all respects.

AFFIRMED.

SCHOTT, J., dissented and filed opinion.

SCHOTT, Judge,

dissenting:

The Jefferson Parish Council denied' the request for a zoning change on March 18, 1978, and this suit was not filed until September 6, 1978. Although the suit is styled a petition for injunction the action is nevertheless a petition for judicial review under R.S. 33:4727, which provides that such a petition must be presented to the court within 30 days after the filing of the decision in the office of the Board. The parish did not plead an exception of prescription which cannot be supplied by the court. C.C.P. Art. 927. However, I do not believe this is a matter of prescription but instead is either a question of peremption or one of jurisdiction of the district court over the subject matter which may be noticed by this court on our own motion.

In State v. Board of Zon. Adjust. of City of New Orleans, La., 197 So.2d 691, this court held that the 30-day limitation was one of peremption and not of prescription, and when the 30 days elapsed plaintiff’s cause of action no longer existed and nothing could revive it. The result was a dismissal of plaintiff’s action as having per-empted because of plaintiff’s failure to join two indispensable parties in the suit even though a suit was filed against certain other parties within the 30-day period. The Supreme Court reversed, holding that the two were not indispensable parties. The court concluded that the exception of per-emption was improperly sustained because suit had been brought against the proper parties within the time fixed by law. The Supreme Court did not suggest that the limitation was not peremptive but held that peremption did not run in the case because a timely suit was in fact filed.

In Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971), the Supreme Court held that an action filed in the district court to review an administrative determination was not a judicial appeal but rather an invocation of original judicial jurisdiction. Discussing the proposition at page 206, the court observed that with or without any provisions for judicial review of administrative determination parties would have the right under the constitution to seek review of such matters in the district court, which is the court of original jurisdiction. So, perhaps it is arguable that the legislature cannot curtail the right of a party to seek judicial review by imposing a 30-day period in which to seek judicial review. On the other hand, the argument becomes absurd because if the 30-day period is not peremptive then no time limit would apply to -the filing of such a suit. In the instant ease, if plaintiffs’ application for judicial review filed six months after the council made its decision was not too late, then neither would a year or two years, or five years, be too late.

LSA-R.S. 33:4721 et seq. presents a statutory scheme for' zoning matters which encompasses administrative action followed by timely judicial review. It precludes one from initially filing a suit to accomplish a zoning change without seeking a change administratively. The court’s function is limited to review of the administrati.ve decision. Absent a showing that the 30-day limitation on the invocation of judicial review is unreasonable or somehow denies an applicant of procedural due process the applicant must take judicial action within 30 days or forfeit his right to judicial review. If this reasoning is incorrect and an applicant is not precluded from seeking judicial review of an administrative decision when the time limitation passes the administrative decision is never final.

If the 30-day period is one of peremption plaintiffs have no cause of action for judicial review after that delay. This court may notice a failure to state a cause of action. C.C.P. Art. 927. On the other hand, it may be a question of jurisdiction over the subject matter, i. e., the district court has the power to- review a zoning determination by the Jefferson Parish Council only within the parameters of R.S. 33:4727. If this be the case, the objection is not waived by the failure of the Parish to object. C.C.P. Art. 925.

In Anderson, American Law of Zoning, § 25.24 at page 252, it is stated: to review a decision of a board of adjustment are regarded as mandatory. Failure to initiate proceedings within the time limited by statute results in loss of the right of review. A Massachusetts court explained:

“The time limitations imposed by statute upon the commencement of proceedings
. . The remedy invoked by the plaintiffs is one created by statute which describes those who are entitled to its benefits, the court in which it may be brought, the nature of the proceedings, and the time in which it must be commenced. In terms too plain for argument, it is not available unless the “appeal is filed in said court within fifteen days after such decision is recorded” in the office of the city clerk. The language is mandatory and does not easily permit any extension of time for any reason. Time is not merely a procedural limitation but is an essential part of the remedy. . . . ’
A Maryland court concluded that it had ‘no power or discretion to allow an appeal not filed within the prescribed time in the face of statutory language requiring an appeal to be taken within .a specified time.’ . '. . ”

I would reverse the judgment of the trial court and dismiss plaintiffs’ petition.


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    Kenneth GOODWIN v. Steve STATHES and Employers Casualty Company.
    No. 11053.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Rehearing Denied April 18, 1980.

      Donald F. Deboisblanc, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendants-appellees.
    Before GULOTTA, BOUTALL and CHE-HARDY, JJ.
   CHEHARDY, Judge.

This is a workmen’s compensation case wherein Kenneth Goodwin sues his employer, Steve Stathes, and his insurer, Employers Casualty Company, for injuries he sustained on August 2, 1976 while he was performing his employment duties.

Judgment was rendered by the trial court in favor of the plaintiff and against the defendants individually and in solido in the amount of $85 per week for a period of 400 weeks, subject to any credits allowed the defendants under LSA-R.S. 23:1221(3). It was also ordered that the defendants pay the plaintiff an amount of money equal to the medical expenses incurred by him as a result of the August 2, 1976 injury; however, the plaintiff’s request for attorney fees under LSA-R.S. 23:1141 were denied.

In his reasons for judgment, the trial court judge stated that he found the plaintiff to be “partially disabled” under LSA-R.S. 23:1221(3).

Plaintiff on appeal asks that judgment be increased from “partial” to “total and permanent” disability, for costs of the proceedings, expert fees, and costs of this appeal. Defendants have answered the appeal, asking that the judgment of the trial court be reduced from 400 to 100 weeks.

On August 2, 1976, Goodwin was employed by Stathes and, while attempting to lift a sandbag weighing in excess of 100 pounds he suffered an injury to his lower back. Plaintiff subsequently underwent a surgical procedure called a fusion and has not been employed since the accident.

Dr. Walter Brent, a board certified orthopedist, testified that he did the fusion on the plaintiff’s back on November 29, 1976, and continued to see the plaintiff until December 18, 1978. At that time plaintiff had approximately a 15% to 20% partial permanent disability of the body as a whole. Dr. Brent advised Goodwin that he could not return to heavy work nor could he do any work that would require lifting more than 25 pounds, squatting, heavy climbing or overhead type of work. Dr. Brent also said interior house painting requiring the use of a ladder and overhead work would cause Goodwin substantial pain and would probably “lay him up” afterward; nor did he feel plaintiff could stand or sit all day but would have to have a job where he could alternate sitting and standing. The reason for these recommendations, the doctor said, was that the plaintiff did have objective findings of pain during examinations following increased activities.

Plaintiff was a painter and sandblaster and was usually required to climb ladders to various heights, carrying bags of sand weighing up to 100 pounds and cans of paint weighing sometimes 50 pounds. This is the only type of work Goodwin had ever done and although he had had a similar back injury 13 years ago, he subsequently returned to his work until the August 2, 1976 accident. Plaintiff cannot read or write, can spell only a few three-letter words, can add with some difficulty, does not know the minus sign, cannot multiply or divide, cannot read street signs or maps, and can only drive somewhere if he has been shown the way.

Regarding plaintiff’s physical condition, we note that he cannot stand nor sit for long periods of time without experiencing substantial pain. He cannot run and could not apprehend another person without hurting himself. He admitted he had not tried to get another job since his injury, but said that it was because he did not know what kind of job he could possibly do. From the testimony it appears that Dr. Brent and the therapists, although acknowledging the possibility of his doing some light job, really were in a dilemma, because of his educational and physical limitations, as to just what job Kenneth Goodwin could perform sufficiently to earn a living.

■ Susan Smith, an expert in occupational therapy and vocational evaluation, tested the plaintiff extensively in the areas of walking, climbing, stooping and manual dexterity as these activities would relate to the performance of occupations. We refrain from a detailed explanation of each test she performed and its specific findings; however, she did not consider him fit for work then available such as engraving, lens grinding or repairing guns because of his inability to sit all day. She said his illiteracy would render him unfit to be an engraver and he could not tolerate the long periods of standing that a lens grinder would have to be able to endure. She added he could possibly be an elevator operator because he could change positions, but that there are very few jobs of this sort available. She also felt a great deal of hard work and effort would be required to give him a basic education.

On cross-examination, Ms. Smith said Goodwin could do certain types of jobs, even some painting, but only “if he had sheltered conditions and this would take him out of the competitive labor market.”

Another expert who testified was Judith Depew, who is employed by the Louisiana Office of Employment Securities. She had also administered a number of tests to Goodwin. She concluded she could not say it would be impossible for him to find any kind of work because of the possibility a relative might give him a job or he might be able to watch a store at night, but she said “if you throw him out into a competitive society it’s going to be very difficult because he cannot even fill out an application, and someone would have to pave the way for him with an employer.”- She said, in regard to guard jobs, most of them would require the ability to make out reports and the ability to climb stairs, and not many of these jobs would allow plaintiff to sit for hours in a hard back chair, as required for his back. Regarding other unskilled positions, she said employers usually want the person to be able to do anything that needs to be done in the shop, including lifting heavy objects. Perhaps Ms. Depew’s analysis of plaintiff’s work ability can best be summed up by her statement that: “I can’t think of anything that I could just pinpoint and say, well, he’d be just right for this.”

Deborah Baragona testified for the defense as a rehabilitation counselor at Crawford Rehabilitative Services. An intelligence test administered to Goodwin earned him a score of 75, which is borderline between dull, normal and mentally defective. Regarding the available work she testified that he could work as a lens grinder under certain conditions but was not particularly suited to a guard position, firearms cleaning, painting or engraving. The only job she would recommend for Goodwin is game room attendant, but with the admission that he would have to make change and be able to chase away vandals.

In view of Canter v. Koehring Company, 283 So.2d 716 (La.1973), we must determine from the record and all of the evidence whether the trial court was “clearly wrong” in not finding the plaintiff totally and permanently disabled within the intent of LSA-R.S. 23:1221(2) as amended in 1975, which states:

“Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”

In Dufrene v. St. Charles Parish Police Jury, 371 So.2d 378, 380-81 (1979), this court said:

“Our settled law is that a plaintiff in a compensation case must establish his claim to a legal certainty and by a reasonable preponderance of the evidence. Also pertinent here is the rule that an injured workman is not required to work with substantial pain. Whether the compensation claimant is unable to work without pain sufficiently severe to be considered disabling is a question of fact.
“ * * * We would agree that the employee is not called upon to negate his future employment in each of the many occupations which might be available, but he must show that he reasonably could not do work of a reasonable character available to him.”

In Ashworth v. Elton Pickering, Inc., 361 So.2d 940 (La.App. 3d Cir. 1978), in reversing the trial court’s finding of permanent partial, not total, disability, and decreeing plaintiff to be totally and permanently disabled, the court stated at page 944:

• “We conclude that the plaintiff is unable to engage in any gainful occupation. Unlike Kilbourne [v. Armstrong, 351 So.2d 802 (La.App. 1 Cir. 1977)], the plaintiff has made no admission that there is work which he could perform. On the contrary, he has steadfastly contended that he is unable to engage in any gainful occupation. The testimony indicates that from a solely medical prospective the plaintiff could engage in some light jobs. The workmen’s compensation law, however, is not based solely on a medical prospective. To do so would return us to the evil which the 1975 Legislature intended to eliminate by bringing into focus the reasonable earning capacity of the worker subsequent to the injury. The plaintiff has no reasonable ability to engage in any gainful occupation, in his physical condition. [Emphasis in the original.] This is consistent with the legislative intent to bring into focus the economic realities of the situation. [Emphasis ours.] We make our decision without considering the plaintiff’s education, training, or experience, but we note that the legislature was restrictive in the language it used in the 1975 amendment relating thereto. The amendment states:
‘whether or not an occupation for which the employee, at the time of the injury was particularly fitted by reason of education, training, and experience.’
(Emphasis ours.)
Clearly, the inference is that if the employee could become qualified for an occupation by a reasonable degree of further education, training, or experience, then the lack of the particular education, training, or experience which is required is irrelevant. Conversely,' we believe that the legislature intended that where an employee would become fit for any gainful occupation only by an unreasonable degree of further education, training, or experience, the extreme lack of education, training, or experience would be relevant to our analysis. As noted, however, we find that in the instant case, the plaintiff has no reasonable ability to engage in any gainful occupation based on his physical condition, without regard to his illiteracy and lack of training or experience.”

This court is well aware of the great weight that must be given to the trial judge’s finding of fact. We agree with counsel for defendants-appellees that in view of the decisions the “Trial Court’s resolution of a factual issue may not be reversed on appeal in the absence of ‘manifest error’ ”. That term is said to mean “clearly wrong.” Davis v. Owen, 368 So.2d 1052 (La.1979); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); and Canter v. Koehring Company, supra.

We find that in the instant case the learned trial judge was wrong within the meaning of Davis, supra; Arceneaux, supra; and Canter, supra.

All of the facts considered, we conclude that Kenneth Goodwin by reason of his education, intellectual, and physical limitations cannot compete in the labor market and cannot engage in any gainful occupation and is, therefore, totally and permanently disabled within the meaning of the 1975 amendment to LSA-R.S. 23:1221(2).

For the above reasons we hereby amend that portion of the trial court’s judgment which found plaintiff, Kenneth Goodwin, partially disabled and entitled to the amount of $85 per week for a period of 400 weeks, and it is hereby ordered, adjudged and decreed that the said Kenneth Goodwin is totally and permanently disabled within the meaning of LSA-R.S. 23:1221(2) as amended and is therefore entitled to workmen’s compensation benefits at the rate of 66%% of his wages not to exceed $85 per week for as long as the said disability shall continue. In all other respects we affirm the judgment of the trial court. All costs of these proceedings are to be paid by defendants.

AMENDED AND AFFIRMED.

      . Defendants’ attorney has noted in his answer to appeal that Steve Stathes’ compensation insurer was incorrectly denominated Employers Casualty Company in both the plaintiff’s petition and the court’s judgment and has further noted that Stathes’ compensation insurer is, in fact, Employers National Insurance Company.


author: SCHOTT, Judge.

text:
    Linda Stewart MORRISON v. NEW ORLEANS PUBLIC SERVICE, INC. and the City of New Orleans.
    No. 11336.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 1980.
    Rehearing Denied April 18, 1980.
    Ferdinand J. Kleppner, Metairie, for relator.
    Bruce McConduit, New Orleans, for respondent.
    Herscel L. Abbott, Jr., New Orleans, for New Orleans Public Service.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

This application for supervisory writs is directed to a judgment of the trial court which dismissed plaintiff’s suit for injunc-tive relief on an exception of prematurity. Plaintiff’s petition alleged that she is the owner of property on Hamilton Street in the City of New Orleans; defendants, NOP-SI and City of New Orleans have caused a temporary rerouting of a bus line so that between 20 and 40 buses per day pass her home; and resulting vibrations from this bus traffic have caused and continue to cause damage to her home. She prayed for a temporary restraining order, a preliminary injunction and a permanent injunction prohibiting defendants from operating the buses on Hamilton Street adjacent to her property.

Defendant NOPSI filed various exceptions, including the dilatory exception of prematurity and the peremptory exception of no cause of action.

On memoranda submitted by the parties, the trial court maintained the exception of prematurity and dismissed plaintiff’s suit. No evidence was taken on the exception and the judgment was apparently based on the theory that the Home Rule Charter of the City of New Orleans, of which this court may take judicial notice, confers on the Council of the City of New Orleans the power to regulate ÑOPSI through the passage of ordinances, including the power to designate and change routes for buses. In its response to the subject application for writs, NOPSI has asked this court to take judicial notice of various ordinances of the City of New Orleans, including one passed on July 29, 1976, relative to the route in question. Although NOPSI cites as authority for our taking such notice C.C.P. Art. 1391, that article is confined to the taking of judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States. It does not apply to city ordinances, judicial notice of which is covered by R.S. 13:3712(B). This provides for judicial notice provided certified copies of the ordinances have been filed with the clerk of court. There being no showing of such filings, were are unable to take notice of any of the ordinances referred to.

In the absence of any evidence, we are left with the bald allegations of plaintiff’s petition which do not mention the passage of an ordinance but simply state that NOPSI and the City have temporarily rerouted the busline to pass in front of her house. The record contains no basis to support the exception of prematurity and the suit was improperly dismissed on that basis.

We have considered defendants’ exception of no cause of action by examining the allegations of plaintiff’s petition and accepting them as true for that purpose. She does not allege that any ordinance was passed but simply that the City and NOPSI have rerouted the buses in front of her home with resulting and continuing damage. It is conceivable that she is entitled to injunctive relief under those circumstances, especially considering that she may amend her petition to include allegations of fact (which she argued in her trial court memorandum and her application in this court) that defendants had led her to believe that the rerouting would be temporary when in fact it was permanent and that she relied on their misrepresentation to her detriment.

We recognize that there are available to defendant defenses which might very well defeat plaintiff’s suit, but the exception of no cause of action cannot be substituted for the pleading of defenses and the ultimate disposition of the case after a trial of the merits or perhaps by way of summary judgment. We do not in any way imply that plaintiff should ultimately recover but only that her petition is not vulnerable to the exception of prematurity or no cause of action.

Accordingly, the judgment of the trial court maintaining the exception of prematurity and dismissing plaintiff’s suit is reversed and set aside, the exception is overruled and the ease is remanded to the trial court for further proceedings.

WRITS GRANTED.


author: WALKER, Justice,

text:
    Albert J. ROBERTS et al. v. Mrs. Myrtis Denton ROBERTS, Individually and as Administratrix of the Estate of William E. Roberts, Deceased.
    No. 51608.
    Supreme Court of Mississippi.
    March 12, 1980.
    Nicols, Smith & Henderson, Paul B. Henderson, Pearl, for appellants.
    McLaurin & McLaurin, John C. McLau-rin, Jr., Brandon, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

This case involves a controversy between the widow of William E. Roberts and his brothers and sisters over the widow’s right to inherit from the estate of William E. Roberts, who died intestate in Rankin County, Mississippi, on November 30, 1978.

William E. Roberts and Mrs. Myrtis Den-ton Roberts, administratrix of the estate of the decedent (appellee herein) were married on February 20, 1975, in Rankin County, Mississippi. No children were born to the marriage, nor did William E. Roberts leave any surviving children by a previous marriage. The deceased met his untimely death in an automobile accident in the early morning hours of November 30, 1978, leaving as his sole surviving heir-at-law, his widow, Mrs. Myrtis Denton Roberts. On December 27, 1978, the Chancery Court of Rankin County issued letters of administration to Mrs. Roberts upon her petition and order of the Chancery Court authorizing letters of administration.

Subsequent thereto, the brothers and sisters of the decedent, appellants, filed their petition asking the Chancery Court to adjudicate and determine rights of inheritance to the estate of the deceased. The petition alleged that, notwithstanding the fact that the decedent left a surviving spouse, the petitioners should be considered the sole and only heirs-at-law of the decedent. This contention is based upon the facts (agreed stipulation of facts by the parties) that the appellee and the decedent separated on or about November 6,1978; that no reconciliation ever occurred between them; that they executed and entered into a property settlement agreement on November 21, 1978, and filed a joint bill for divorce on November 28, 1978, less than forty-eight hours before the death of Mr. Roberts. The parties were never divorced. The contention of the appellants in the trial court was that the appellee was barred from inheriting anything from the deceased because of the language contained in the separation and property settlement agreement which the parties executed, a copy of which is attached hereto as Appendix “A.” That agreement, inter alia, divided, with particularity, all of the property, real and personal, owned by the parties, each getting approximately one-half.

In the chancellor’s written opinion, he held that the execution of the property settlement agreement by the parties did not bar the appellee from inheriting from the decedent’s estate and entered a final decree adjudicating the widow, Mrs. Myrtis Den-ton Roberts, as the sole and only heir-at-law of William E. Roberts, thereby denying the claim of the deceased’s brothers and sisters of the estate.

I.

The lower court was of the opinion that the property settlement agreement was made in contemplation of an “irreconcilable difference” divorce, and that the same would not be enforceable as against the widow until and upon the entry of a final decree of divorce. We are of the opinion this was error, because the separation and

property agreement specifically provided, inter alia, that:

This agreement is not entered into for the purpose of procuring a divorce between the parties and is not contingent upon either party procuring a divorce from the other.

II.

In support of their contention that the widow contracted away her right to inherit, the appellants (brothers and sisters of the deceased) cite language in the second paragraph of the. preamble to the Roberts’ agreement which states:

WHEREAS, irreconcilable difference having arisen between them, and they are now living separate and apart and now desire to make a mutually acceptable settlement of their respective rights, liabilities, obligations and property rights arising out of and during the course of their marital relationship; . . .
(Emphasis added).

The appellants urge this Court to adopt the reasoning that the widow’s status as an heir “arises out óf” the marital relationship by virtue of Mississippi Code Annotated section 91-1-7 (1972), and that she is precluded from asserting her status as an heir of the deceased husband to claim the property allotted to him under the property settlement agreement.

As authority, the appellants cite In re Lee’s Estate, 6 Misc.2d 799, 161 N.Y.S.2d 962 (1957), wherein the agreement before the court provided that the parties released any rights they might have “arising out of their marriage relationship.” The court held in that case, that the use of such language effectively barred any right of inheritance which the wife had prior to execution of the agreement. That case is persuasive of appellants’ contention when considered in the light of other language used in the Roberts’ agreement. We doubt, however, that such language, standing alone, would be decisive of the issue.

But, considering the language of the preamble (heretofore quoted) to the Roberts’ agreement, with the language found in Paragraph eight which states: “This agreement shall be binding not only upon the Husband and Wife, but also upon their heirs, successors and assigns”, and together with the provision in Paragraph twelve that “This agreement ... is not contingent upon either party procuring a divorce from the other”, the instrument clearly manifests the parties intention that the property settlement was to be final and binding, not only while they lived, but, also, in the event of the death of one of the parties whether a divorce was obtained or not. Mrs. Roberts received her share of approximately one-half of the couple’s property under the agreement, and she is now precluded by that same agreement from claiming the other one-half as the sole heir of the deceased.

The rules applicable to the construction of written contracts in general are to be applied in construing a postnuptial agreement. Such a contract must be considered as a whole, and from such examination the intent of the parties must be gathered. Such construction should be given the agreement, if possible, as will render all its clauses harmonious, so as to carry into effect the actual purpose and intent of the parties as derived therefrom.

' As to postnuptial agreements, this Court in Kirby v. Kent, 172 Miss. 457, 160 So. 569 (1935), said:

The rule is, as to a postnuptial agreement, that only such rights in the estate of the deceased spouse are barred as are expressly enumerated or reasonably in-ferable from the language employed therein. Clark v. Castner et al., 242 Mich. 608, 219 N.W. 675; 18 C.J. 857. In construing such agreements the purpose must be clear to exclude the surviving spouse from having his or her rights of inheritance in the deceased spouse; and they will be so construed only so far as the agreement clearly requires. (172 Miss. at 466-67, 160 So. at 572). .

We have carefully considered the separation and property settlement agreement entered into between the Roberts and are of the opinion that the provisions of that agreement, which we have discussed above, clearly manifests to us the parties intention to waive each other’s right to inherit from the other, if either should die prior to a divorce being obtained. Consequently, Mrs. Myrtis Denton Roberts is precluded by that agreement from inheriting the estate of the deceased, William E. Roberts.

The decree of the chancery court is therefore reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.

APPENDIX A

SEPARATION AND PROPERTY SETTLEMENT AGREEMENT

WHEREAS, William E. Roberts, hereinafter referred to as “Husband”, and Myrtis Denton Roberts, hereinafter referred to as “Wife”, are now Husband and Wife; and,

WHEREAS, irreconcilable differences have arisen between them, and they are now living separate and apart and now desire to make a mutually acceptable settlement of their respective rights, liabilities, obligations and property rights arising out of and during the course of their marital relationship;

NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual benefits and advantages accruing to each, the undersigned Husband and Wife do hereby solemnly covenant, agree and contract as follows:

1. The Husband shall convey to the Wife and does hereby convey to her all his right, title and interest in the household goods and furnishings accumulated by the Wife prior to the marriage of the parties.

2. The Wife shall have and the Husband shall transfer to the Wife all his right, title and interest in the 1970 Ford Torino automobile of the parties.

3. The Husband shall have and the Wife shall transfer to the Husband all her right, title and interest in the 1969 GMC one-ton truck, 1965 Ford F-100 and 1970 Ford F-100 pickup trucks of the parties.

4. The Husband and Wife shall divide equally the balance on hand in the savings account at Unifirst Federal Savings and Loan Association.

5. The parties acknowledge that the Husband owned a parcel of land and homestead of approximately eight acres in the NW Vi of NE Vi of Section 19, Township 4 North, Range 4 East, Rankin County, Mississippi, all as more specifically described in the deed of trust of record in Deed of Trust Book 266 at page 688 of the land records in the office of the Chancery Clerk of Rankin County at Brandon, Mississippi, prior to the marriage between the parties together with a mobile home situated thereon. Since the marriage between the parties, the parties have built on the Husband’s said property a grocery store and other improvements including furnishings and fixtures and merchandise there situated. The Wife has made contributions from her personal funds to the improvement of the said property and the purchase of the aforedescribed assets located on the aforedescribed property, including money which the Wife had before the marriage between the parties. The Wife waives and disclaims any interest in the said homestead and property, real and personal, of any kind or character, in favor of the Husband; and, the Wife shall sign such quitclaim deeds, bills of sale, or other documents as shall be necessary and appropriate to vest full and complete title in the Husband in the aforedescribed real and personal property free and clear of any claims or interest of the Wife.

6. The Husband and Wife have established, developed and operated a business enterprise known as the “Raleigh Cool Dip" situated in Raleigh, Smith County, Mississippi. For the purpose of such enterprise they have purchased a parcel of property containing two acres more or less according to the deed thereon duly recorded in Deed Book 218 at page 491 of the records of the Chancery Clerk of Smith County at Raleigh, Mississippi, reference to which is made in aid of and as a part hereof. The Husband shall disclaim all right, title and interest in the said business, its furniture, fixtures and assets as well as to the realty and improvements. The Husband shall sign appropriate bills of sale and quitclaim deeds as are necessary to vest in the Wife full title thereto. The Wife does hereby assume and agree to pay all outstanding deeds of trust, notes, debts and obligations on the said business and real property and the Wife shall indemnify, save and hold harmless the Husband from any loss, cost or expense in connection therewith including attorney’s fees, court costs and expenses of litigation in the event that the Wife does' not pay and honor such debts and obligations as and when due.

7. Husband shall pay attorney’s fees and court costs incident to a divorce between the parties on a joint bill on the grounds of irreconcilable differences.

8. This agreement shall be binding not only upon the Husband and Wife, but also upon their heirs, successors and assigns.

9. This agreement constitutes the entire agreement between the parties, and each party acknowledges that there are no other or further agreements not expressly included herein, and that this agreement may be modified, altered or amended only in writing duly signed and notarized by each in the form of this original.

10. Each party represents and acknowledges that he or she has fully read this agreement and carefully considered same and has consulted with counsel concerning it and has signed and executed same only after consultation with and upon advice of counsel.

11. Each party agrees that he or she will sign and execute any further or additional deeds', bills of sale, releases or other legal documents as may be necessary to put into effect the intent and purpose hereof.

12. This agreement is not entered into for the purpose of procuring a divorce between the parties and is not contingent upon either party procuring a divorce from the other. In the event, however, that either party shall apply for or be granted a divorce from the other, then so much or such parts of this agreement as may be appropriate to judicial sanction may be included in any divorce decree granted between the parties; and, further, this agreement shall estop and preclude either party from making other or further demands and claims upon the other not included herein except that such legal action may be taken by either party as is necessary to enforce the terms and provisions hereof, or for modification as by law provided. In the event of a divorce between the parties hereto based upon this agreement, all obligations due hereunder shall be due notwithstanding any delinquency or failure of performance at the time of such decree and not dealt with or embraced in said decree. The parties hereby expressly waive any legal rights they may have to use such a divorce decree to claim a waiver of or exoneration from failures of performance between the time of this agreement and the time of any decree of divorce based on this agreement.

IN WITNESS WHEREOF, Husband and Wife have this day duly affixed their signatures upon duplicate originals, this the 21st day of November, 1978.

STATE OP MISSISSIPPI

COUNTY OP RANKIN

PERSONALLY came and appeared before me, the undersigned authority of law in and for the jurisdiction aforesaid, the within named William E. Roberts who acknowledged that he signed, executed and delivered the above and foregoing Agreement on the day and year therein mentioned,

GIVEN under my hand and official seal of office, this the day of November, 1978.

My Commission Expires:

My Commission Expires Sept. 18, 1982

STATE OP MISSISSIPPI

COUNTY OP RANKIN

PERSONALLY came and appeared before me, the undersigned authority of law in and for the jurisdiction aforesaid, the within named Myrtis Denton Roberts who acknowledged that she signed, executed and delivered the above and foregoing Agreement on the day and year therein mentioned.

GIVEN under my hand and official seal of office, this the “} b day of November, 1978.


text:
    James Lee HOLLEY v. STATE of Mississippi.
    No. 51718.
    Supreme Court of Mississippi.
    March 12, 1980.
    Rehearing Denied April 28, 1980.
    Don H. Evans, W. Joseph Kerley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

. AFFIRMED.


author: SUGG, Justice,

text:
    In the Matter of the Last Will and Testament of Gussie COLLIER, Deceased. Hilda SHAPERO, County Administrator, Administratrix, C.T.A., v. GUARANTY BANK & TRUST COMPANY and Wilma Franklin.
    No. 51760.
    Supreme Court of Mississippi.
    April 2, 1980.

      James T. Bridges, Belzoni, for appellant.
    Farese; Farese & Farese, John Booth Farese, Ashland, for appellees.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   SUGG, Justice,

for the Court:

The question in this case is whether a certificate of deposit should be included among the assets of the estate of Gussie Collier, deceased.

The administratrix filed an action in the Chancery Court of Humphreys County to determine the ownership of the certificate of deposit in question and named as respondents Guaranty Bank & Trust Company of Belzoni and Wilma Franklin. The certificate of deposit was for $4600 and was issued by the Bank on February 14, 1975, payable “To the order of Gussie Collier P.O.D. to Wilma Franklin.”

The Bank filed an answer in the nature of a bill of interpleader admitting that it held the proceeds of the certificate and would pay the proceeds as directed by the court upon surrender of the certificate to it. Wilma Franklin filed an answer to the petition and requested that the court adjudicate her to be the owner of the certificate. In her answer, she did not assert as an affirmative defense that Gussie Collier had given the certificate to her.

Gussie Collier died on December 31, 1977, leaving a will dated January 13, 1970. She devised her house and lot to her son, Roosevelt Jackson, and her sister, Wilma Franklin, as joint tenants with right of survivor-ship. She bequeathed her personal property to her son, one-half of her money to her son, and the other one-half to her three stepchildren.

Mary Carter, cashier of the bank, testified that the abbreviation P.O.D. on the certificate meant payable on death. The interest on the certificate was payable annually and had been paid to Gussie Collier during her lifetime. This witness stated that she delivered the certificate in May, 1977, to Wilma Franklin at the request of Gussie Collier. Wilma Franklin testified over objection that the certificate was given to her by Mary Carter, an officer of the bank, before the death of Gussie Collier.

The trial court held that a valid gift of the certificate was made to Wilma Franklin before the death of Gussie Collier and was not a part of the estate of .Gussie Collier.

The administratrix argues that the evidence is not sufficient to show that Gussie Collier made a valid gift inter vivos of the certificate to Wilma Franklin.

Our cases hold that the following requirements are necessary to constitute a gift inter vivos. There must be a donor competent to make a gift, a voluntary act on the part of the donor with intention to make a gift, the gift must be complete with nothing left to be done, the property must be delivered by the donor and accepted by the donee, and the gift must be irrevocable. Thomas v. Eubanks, 358 So.2d 709 (Miss. 1978); Longtin v. Witcher, 352 So.2d 808 (Miss.1977); Jenkins v. Jenkins, 278 So.2d 446 (Miss.1973); McLean v. Green, 258 So.2d 247 (Miss.1972), and cases cited therein.

Mary Carter and Wilma Franklin were the only two witnesses who testified in this case. Mary Carter testified that Gussie Collier left the certificate at the bank in a plain envelope for safekeeping and that Gussie Collier directed her to deliver it to Wilma Franklin. The attorney for the ad-ministratrix asked the witness, “What was Gussie Collier’s instructions to you when she told you to deliver it to Wilma Franklin?” An objection to the question was interposed, the question was withdrawn, so there is no testimony of any instructions Gussie Collier may have given the witness.

Wilma Franklin testified that she was given the certificate by Mary Carter but this testimony was objected to as being incompetent under section 13-1-7 Mississippi Code Annotated (1972). This section, commonly referred to as the dead man’s statute, prohibits a person from testifying as a witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person.

In Cockrell et al. v. Mitchell, 15 So. 41 (1894), this Court held that the testimony of a claimant that his father had given him personal property was incompetent under the statute because the father was dead at the time the testimony was proffered.

In Duling v. Duling’s Estate, 211 Miss. 465, 52 So.2d 39 (1951), the Executor of the Estate of Lorena Duling petitioned the chancery court to adjudicate the ownership of the contents of her safe deposit box which had been leased by testatrix and her two brothers, Albert and Charles H. Duling. The safe deposit box contained $4,000 in cash, some souvenir spoons and “certain trinkets.” Mary Louise Hutchins was named as one of the respondents and asserted her right to the contents of the safe deposit box claiming a gift from the testatrix. Albert and Charles Duling were also named as respondents and a joint answer was filed by Albert Duling and Kitty R. Duling, the widow and sole surviving heir of Charles Duling, who died after the petition was filed but before an answer was filed. The court held that the testimony of Albert Duling and Mary Louise Hutchins was properly excluded for the reason that Section 1690, Code of 1942 [Section 13-1-7 Mississippi Code Annotated (1972)] provides that a person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person.

We hold the testimony of Wilma Franklin should have been excluded because it was an attempt to establish her claim against the Estate of Gussie Collier which arose during Gussie Collier’s lifetime. With the testimony of Wilma Franklin excluded, is the remaining evidence sufficient to support her claim of a gift inter vivos?

Under our eases, when it is shown that property belongs to a person and another claims the property by virtue of a gift from the owner, such claim is an affirmative defense, and the burden of proof is on the one who claims by gift. Further, when such claim is asserted after the death of the alleged donor, it must be sustained by clear and satisfactory proof. In Stewart v. First National Bank and Trust Co., 192 Miss. 355, 5 So.2d 683 (1942) we stated:

Appellee met the initial burden of showing that the property belonged to Woodson, and unless his title thereto had been divested by gift the executor was entitled thereto. The fact of the gift became an affirmative defense and the burden of establishing same devolved upon appellant as the alleged donee. Stewart v. Graham, 93 Miss. 251, 46 So. 245; Jones v. Jones, 162 Miss. 501, 139 So. 873; Lamb v. Collins, Tex.Civ.App., 93 S.W.2d 490; 24 Am.Jur., Gifts, Sec. 115; 28 C.J. 670. Every element requisite to constitute a gift must be shown (Jones v. Jones, supra), and when such claim is asserted after the death of the alleged donor, it must be sustained by clear and satisfactory proof, 24 Am.Jur., Gifts, Sec. 133. Appellant offered no testimony to meet this burden and her claim cannot be aided by any presumption of gift based upon the mere fact of possession. Fouts v. Nance, 55 Okl. 266, 155 P. 610, L.R.A. 1916E, 283; Maxler v. Hawk, 233 Pa. 316, 82 A. 251, Ann.Cas. 1913B, 559; Haldeman v. Martin, 205 Iowa 302, 217 N.W. 851; Union Trust & Savings Bank v. Tyler, 161 Mich. 561, 126 N.W. 713, 137 Am. St.Rep. 523; Yardum v. Evans, 120 Neb. 699, 235 N.W. 85; 24 Am.Jur., Gifts, Sec. 115; 28 C.J. 669. (192 Miss. at 358, 5 So.2d at 683, 684).

The administratrix met the initial burden of showing that the certificate of deposit belonged to Gussie Collier. After excluding the testimony of Wilma Franklin, the only evidence supporting her claim to the property by gift was that of Mary Carter who testified that she delivered the certificate to Wilma Franklin as directed by Gussie Collier. The witness did not state that Gussie Collier told the witness that she intended to make a gift of the certificate to Wilma Franklin but only to deliver the certificate to Wilma Franklin. In effect, we are asked to infer that Gussie Collier intended to make a gift to Wilma Franklin. This is not the only inference that can be drawn from the testimony. Equally plausible inferences are that Gussie Collier intended for the certificate to be delivered to Wilma Franklin either for safekeeping or to have Wilma Franklin in turn deliver the certificate to Gussie Collier. Also, the claim was asserted after the death of Gussie Collier, and, under our cases, must be sustained by clear and satisfactory evidence. Wilma Franklin did not meet this burden of proof. The evidence is devoid of any expression by Gussie Collier of an intention to make a gift of the certificate to Wilma Franklin. We decline to supply the necessary element of intent to make a gift by inference in this case because equally reasonable inferences may be drawn from the evidence negating an intent to make a gift. Accordingly, we hold a valid gift inter vivos was not established because Wilma Franklin failed to prove by clear and satisfactory evidence that Gussie Collier intended to make a gift of the certificate to her.

The certificate was issued after the Uniform Commercial Code was adopted and met the requirements of section 75-3-104 Mississippi Code Annotated (1972), thus making it a negotiable instrument. Thomas v. Eubanks, 358 So.2d 709 (Miss.1978). All interest payments due on the certificate were made to Gussie Collier during her lifetime, and the certificate did not convey any present interest to Wilma Franklin. The words on the certificate, “P.O.D. to Wilma Franklin” are testamentary in character and constitute an attempt to make a negotiable instrument a will, thus requiring compliance with the statute governing execution of wills before the attempted testamentary disposition would be effective. Section 91-5-1 Mississippi Code Annotated (1972). -

In cases involving the question of whether an instrument is a deed or a will when the instrument did not convey any present interest, we have held that such an instrument is inoperative to convey title unless executed in accord with the statute governing the execution of wills. We have numerous cases involving this question and the case of Buchanan v. Buchanan, 236 Miss. 751, 112 So.2d 224 (1959) summarizes our cases on the question. In Buchanan we stated:

An analysis of our cases on the subject indicates that the rule is that when an instrument purports to be a deed and is in the words and form of a deed and is acknowledged as such, it should be construed to be testamentary in character and inoperative as a deed of conveyance when, and only when, it affirmatively and clearly appears from the language of the instrument itself, giving due consideration to all its provisions, that it was the intention of the person signing it that the instrument itself would have no effect until his death. When the language employed is such that it is consistent with an intention to postpone the enjoyment of the interest conveyed or to vest the interest at a future date upon the happening of some event, the courts should not construe the instrument as testamentary in character and inoperative as a deed of conveyance. (236 Miss. at 756, 757, 112 So.2d at 227).

By analogy, the principle expressed in Buchanan applies to the present case. Wilma Franklin did not receive any present interest in the certificate when it was issued. During the lifetime of Gussie Collier, she was the only person who could negotiate the certificate. This, she did not do. It is patent that the designation “P.O.D. to Wilma Franklin,” was an attempt to make a testamentary disposition of the certificate upon the death of Gussie Collier.

The chancellor, in his opinion, relied on Myers v. Laird, 230 Miss. 675, 93 So.2d 828 (1957) as controlling. Myers has no application to this case because the certificate of deposit involved there was payable in the alternative to Fannie B. Regan or Ellis Brumfield, her brother, and was delivered by Fannie B. Regan to her brother before her death. In the present case, the certificate was not payable in the alternative to two or more persons, so the possession of the certificate by Wilma Franklin, absent a valid gift from Gussie Collier, does not entitle Wilma Franklin to retain the certificate as her property under section 75-3-116 Mississippi Code Annotated (1972).

An instrument payable to the order of two (2) or more persons
(a) if in the alternative is payable to any one of them arid may be negotiated, discharged or enforced by any of them who has possession, of it;
(b) if not in the alternative is payable to all of them and may be negotiated, discharged or enforced only by all of them.

For the foregoing reasons, we hold the certificate was not the property of Wilma Franklin, but was a part of the assets of the estate of Gussie Collier; therefore, we reverse and render.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    STATE of Florida, Appellant, v. Oliver KOEHLER, Appellee.
    No. 53860.
    Supreme Court of Florida.
    June 30, 1978.
    On Rehearing July 27, 1979.
    Michael J. Satz, State’s Atty., Fort Laud-erdale and Patti Englander, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Alan H. Schreiber, Public Defender; and Michael Jeffery Paris, Asst. Public Defender, Fort Lauderdale, for appellee.
    Joseph P. Klock, Jr. and Paul J. Bonavia, of Steel, Hector & Davis, Miami, for Florida Power and Light Co., amicus curiae.
   PER CURIAM.

Affirmed. MacMillan v. State, 358 So.2d 547 (1978).

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ENGLAND, J., dissents.

On Rehearing

PER CURIAM.

Reversed. State v. Petruzzelli, 374 So.2d 13 (Fla., 1979).

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.


author: BOYD, Justice.

text:
    A. D. BESSEMER, etc., et al., Petitioners, v. Robert B. GERSTEN, et ux., Respondents.
    No. 52264.
    Supreme Court of Florida.
    Feb. 28, 1980.
    Rehearing Denied April 25, 1980.

      Thomas M. Ervin, Jr. and E. C. Deeno Kitchen of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee and John E. Aurelius of James, Bielejeski, Lunny & Aurelius, Fort Lauderdale, for petitioners.
    Rod Tennyson of Ombres, Powell, Tennyson & St. John, West Palm Beach, for respondents.
    Jim Smith, Atty. Gen. and Thomas M. Pflaum, Asst. Atty. Gen., Tallahassee, for amicus curiae.
   ON REHEARING

BOYD, Justice.

This Court’s opinion of February 8, 1979 is withdrawn.

This cause is before the Court on petition for certiorari supported by the district court’s certification that its decision passed upon a question of great public interest. Gersten v. Bessemer, 352 So.2d 68 (Fla. 4th DCA 1977). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The issues are whether a developer can impose upon lots in a subdivision encumbrances creating affirmative duties to make cash payments for recreational purposes, to be enforced against a buyer through the mechanism of a foreclosable lien, and whether, where the only act of the buyer showing intent to pledge the property as security is the acceptance of a .deed embodying the covenant and lien provisions, the lien arising from nonpayment will prevail over the buyer’s homestead right, where homestead attached at the time of the buyer’s taking title by deed. We answer these questions in the affirmative.

On February 25, 1969, Robert and Dina Gersten contracted with Behring Corporation for the purchase of a residential house and lot in The Mainland of Tamarac Lakes, Tenth Section, a subdivision then being developed by Behring. The purchase and sale agreement contained the following two pertinent provisions: “Purchaser agrees to pay $26.00 (approx.) monthly maintenance and recreational facility charge to the Seller or assigns. . . The Seller will supply to the Purchaser a Release of Lien Certificate and Warranty Deed, conveying title free and clear of all encumbrances, except easements, restrictions, reservations, and mortgages, if any.”

The first provision above shows an agreement by the Gerstens to pay the recreational facility charge. The second shows that they were put on notice that restrictions of record would not be warranted against by the seller when the time came for conveyance. The purchase and sale agreement did not, however, provide that the duty to pay would be secured by lien.

On January 8, 1970, Behring Corporation filed in the public records a “declaration of restrictions” pertaining to the subdivision in which the lot the Gerstens had agreed to buy is located. Section 8 of this document, entitled “Recreation Land Lease; Liability For; Assignment Lien, Etc.,” declared that each lot owner would be responsible for a share of the rent to be paid for a certain described parcel of land upon which the developer planned to construct recreational facilities for the exclusive use of the residents of the subdivision.

The declaration provided that each lot owner’s share of the rental obligation would be $10.00 per month, or Vm of the total monthly rent of $4760.00. It stated the developer’s intention to enter into a long-term lease of the specified land and to pledge to the prospective lessor the right to receive the payments from lot owners as security for the rent. The declaration provided that the monthly rental obligation would commence in the month following the developer’s recording of a certificate to the effect that the construction of the recreational facilities had been completed. It was further declared that

each owner hereby agrees that Behring Corporation, its successors or assigns, shall have a lien upon such owner’s lot for the aforesaid amount of $10.00 per month until such amount is paid, and that such lien, where the same remains unpaid for a period of thirty days or more, may be foreclosed in equity in the same manner as is provided for the foreclosure of mortgages upon real property.

Finally, section 8 of the declaration stated that its provisions “shall be considered and construed as covenant restrictions, reservations and servitudes running with the land.”

On April 9, 1970, the contemplated lease of the land described as the recreation land in the declaration of restrictions was entered into and recorded. The parties to the lease were July Investment Corporation as lessor and Behring Corporation, as lessee. The lease restricted the use of the premises to the recreational purposes of the subdivision. Paragraph 10 of the lease, entitled “Assignment of Lien Rights,” gave the lessor the right, as security for the payment of rent,' to enforce the liens which Behring Corporation “may acquire by reason of the terms ... of Paragraph 8 of . [the] Declaration of Restrictions.” Thus it was envisioned that the lessor of the recreation land could apply any sums received through enforcement of the liens against the lot owners’ property to the rent owed by Behring under the lease. But Behring Corporation reserved to itself the right to enforce the liens also.

On August 26, 1970, the developer recorded a certificate to the effect that the planned recreational facilities had been constructed. Then, on November 27, 1970, the developer executed and delivered, and the Gerstens accepted, a deed conveying to them the house and lot which they had contracted to purchase.

On December 11, 1975, the executor and trustees of the Estate of Mary A. Bessemer, as successors in interest to the Behring Corporation, brought suit to foreclose the lien against the Gerstens’ property for nonpayment of their share of the recreation land rent in the amount of $52.91.

The defendants responded with a motion to dismiss. They argued that since the developer, as owner of the lot in question, was not obligated to make payments to itself prior to the time when the lot was conveyed to the Gerstens, the notion of the lien as a preexisting encumbrance is conceptually faulty. Although the buyers agreed to pay the recreation facility charge and had notice of this encumbrance through the declaration of restrictions, yet the lien, it was argued, was only to arise, and could only arise, upon nonpayment. Therefore' the lien came into existence only after the Gerstens had taken possession of the premises as their homestead. The Gerstens argued further that the developer had not alleged facts showing that the lien should nevertheless be enforceable on the ground that it was an obligation “contracted for the purchase, improvement or repair” of the homestead property. Art. X, § 4, Fla.Const. Following the denial of their motion to dismiss, the defendants filed an answer which did not dispute the facts alleged showing constructive notice of the affirmative covenant and lien. The trial court entered a final judgment of foreclosure.

The district court of appeal reversed. It correctly stated that liens on real property can be created only by contract and by operation of law. It found that there was no mention of a lien in the contract for purchase and sale, so the agreement there could have given rise to no lien. It held that the declaration of restrictions could not have created a lien because of its unilateral nature. It declined to find that the circumstances justified the imposition of an equitable lien. The court found, rather, that a lien was created contractually when the purchasers accepted the deed incorporating by reference the declaration of restrictions. Thus the court concluded that the lien came into existence at the time of the closing. But since the homestead status of the premises was established at that time also, it was held that the lien could not be enforced.

A developer, in carrying out a uniform plan of development for a residential subdivision, may arrange for the provision of services to the subdivision or for the maintenance of facilities devoted to common use, and may bind the purchasers of homes there to pay for them. In this case, all of the elements of an affirmative covenant running with the land have been established. Of course, we are not directly concerned with whether the covenant to make the payment runs with the burdened land since the party sought to be charged is the actual covenantor.

The respondents do not dispute their promise to pay the recreational facility charge, but argue that there is no enforceable lien. There was no agreement on their part, they contend, manifesting an intent to pledge or charge their property as security for the obligation. The district court held that a lien arose at the time the respondents took title, based on their actual or constructive notice of the lien provision in the declaration of restrictions. The petitioners argue that the lien was created by the filing of the declaration of restrictions, that it was in existence as an encumbrance on the property at the time of the conveyance, and that the respondents took title subject to the lien. The petitioners argue in the alternative that if, as the district court held, the lien came into existence at the time of the conveyance, its existence relates back to the time of the filing of the declaration of restrictions, so that it attached to the ownership interest prior to the creation of homestead status.

We hold that the respondents, in accepting the deed with actual or constructive notice of the lien provision of the declaration of restrictions, manifested the intent to let the real property stand as security for the obligation. An affirmative covenant can be entered into by acceptance of a deed embodying same. Thus a valid contractual lien was created at that time.

We hold further that the creation of the lien by acceptance of the deed relates back to the time of the filing of the declaration of restrictions. Thus, with regard to the time of attachment of the lien, this case is to be treated as if the respondents had taken title subject to a valid pre-existing lien. Since the acquisition of homestead status does not defeat prior liens, Porter-Mallard Co. v. Dugger, 117 Fla. 137,157 So. 429 (1934); Pasco v. Harley, 73 Fla. 819, 75 So. 30 (1917), the lienor’s right prevails over the respondents’ homestead right.

The decision of the district court of appeal is quashed. This cause is remanded to that court with directions to reinstate the trial court’s judgment.

It is so ordered.

ADKINS, OVERTON and ALDERMAN, JJ,, concur.

SUNDBERG, J., concurs in result only.

ENGLAND, C. J., dissents.

      . In general, for a lien to be enforceable against homestead property, its existence must be established as of the time the homestead status was acquired. See, e. g., Avila S. Condominium Ass’n v. Kappa Corp., 347 So.2d 599 (Fla.1977); Quigley v. Kennedy & Ely Ins., Inc., 207 So.2d 431 (Fla.1968); LaGasse v. Aetna Ins. Co., 213 So.2d 454 (Fla.2d DCA 1968), rev’d on other grounds, 223 So.2d 727 (Fla.1969). It is not argued that the purported lien at issue secures an obligation “contracted for the purchase, improvement, or repair” of the homestead property, and therefore the question of whether it comes within the exception provided for by article X, section 4(a), Florida Constitution, is not before us. A lien attaching after the homestead protection has been established can be enforced if it is imposed for fraud or material misrepresentation, Clutter Constr. Corp. v. Clutter, 173 So.2d 761 (Fla. 3d DCA 1965), or if the owner and spouse mortgage the homestead as authorized by article X, section 4(c), Florida Constitution.

      . Wood v. McElvey, 296 So.2d 102 (Fla. 2d DCA 1974); Sloane v. Dixie Gardens, Inc., 278 So.2d 309 (Fla. 2d DCA 1973); Japanese Gardens Mobile Estates, Inc. v. Hunt, 261 So.2d 193 (Fla. 2d DCA 1972); Henthorn v. Tri Par Land Dev. Corp., 221 So.2d 465 (Fla. 2d DCA 1969).

      . There was constructive notice, Vetzel v. Brown, 86 So.2d 138 (Fla.1956), and intent, expressed in the declaration, that the covenant run. See Burdine v. Sewell, 92 Fla. 375, 109 So. 648 (1926); Thompson v. Squibb, 183 So.2d 30 (Fla. 2d DCA 1966). There was privity, of contract and estate, between the covenanting parties, and succession to the interest of the covenantee by the party seeking to enforce. See Vetzei v. Brown; 1 Boyer, Florida Real Estate Transactions § 24.04, at 579-80 (1977). There was a uniform plan of development, Volunteer Security Co. v. Dowl, 159 Fla. 767, 33 So.2d 150 (1947), with benefit to correspond to burden, in that all of the lots in the subdivision wer'e to be charged and benefitted, and the developer bound to provide the facilities. See Osius v. Barton, 109 Fla. 556, 147 So. 862 (1933); Batman v. Creighton, 101 So.2d 587 (Fla. 2d DCA 1958). The covenant enhanced the value or enjoyment of the property, so it touches and concerns the land. Frumkes v. Boyer, 101 So.2d 387 (Fla.1958); Armstrong v. Seaboard Air Line Ry., 85 Fla. 126, 140, 95 So. 506, 510 (1922) (Whitfield, J., dissenting); Maule Indus., Inc. v. Sheffield Steel Prods., Inc., 105 So.2d 798 (Fla. 3d DCA 1958). Moreover the courts of Florida will recognize and enforce covenants without regard to the technical legal requirements for covenants running with the land. See Vetzel v. Brown; Ha-

        gan v. Sabal Palms, Inc., 186 So.2d 302 (Fla. 2d DCA 1966).

      .The party seeking to enforce is the successor to the interest of the covenantee, or person to whom the promise to pay was made. Each lot in the subdivision is burdened by the duty to pay, and benefitted both by the existence of the facilities and by the continuing obligation of owners of the other lots, so that the facilities can be kept in operation. Where appropriate, the right to enforce a covenant belongs to the holder of benefitted land. See Vetzel v. Brown, 86 So.2d 138 (Fla.1956); Volunteer Security Co. v. Dowl, 159 Fla. 767, 33 So.2d 150 (1947). Here, however, it is appropriate for the successor to the interest of the grantor, as the party with the duty of paying rent on- the recreation land, to enforce the covenant against a lot owner.

      . The principle of record notice is fundamental in our law of property. Certain Lands v. Ideal Farms Drainage District, 156 Fla. 774, 778, 24 So.2d 585, 587 (1945); Feemster v. Schurkman, 291 So.2d 622, 626 (Fla. 3d DCA 1974).

      . It is generally recognized that a covenant running with the land can be created by a deed poll, the acceptance of the deed by the grantee amounting to an agreement on his part to fulfill the conditions of the covenant. In Florida it is standard practice for only the grantor to sign the deed, and, although not specifically decided, it would seem to be beyond question that such a deed would be a satisfactory method of creating a covenant.
      1 Boyer, supra note 3, § 24.03, at 574 (footnotes omitted).


author: PER CURIAM.

text:
    In re CERTIFICATE OF JUDICIAL MANPOWER FOR DISTRICT COURTS OF APPEAL, CIRCUIT COURTS, AND COUNTY COURTS, as Required by Article V, Section 9, Florida Constitution.
    No. 58841.
    Supreme Court of Florida.
    March 18, 1980.
   PER CURIAM.

In relevant part, article V, section 9 of the Florida Constitution provides:

If the supreme court finds that a need exists for increasing . . the number of judges ... it shall, prior to the next regular session of the legislature, certify to the legislature its findings and recommendations concerning such need.

For the reasons set forth below, this Court certifies a need for the following new judicial positions, effective August 1, 1980, for the continued, effective operation of the courts of this state.

DISTRICT- CIRCUIT COURT COURT COUNTY COURT

First Appellate District 2

Fourth Judicial Circuit 1

Seventh Judicial Circuit 1 1 (Volusia)

Ninth Judicial Circuit 1

Tenth Judicial Circuit 1

Fifteenth Judicial Circuit 1 (Palm Beach)

Seventeenth Judicial Circuit 3 2 (Broward)

Eighteenth Judicial Circuit 1 (Brevard)

Nineteenth Judicial Circuit .1

TOTALS 2 8 5

Five of the circuit court positions certified were identified in the Court’s 1979 certification as likely to be required this year, if projected population and caseload growth patterns continued. They did.

Requests were received from the appellate districts for five district court judge-ships, and from the judicial circuits for twenty-two circuit court and eight county court judgeships.' These requests were carefully analyzed by the state courts administrator, the chief justice, and the full Court, using essentially the process by which the Court determined the number of new judgeships to certify last year at this time. See In re Certificate of Judicial Manpower for Circuit and County Courts as Required by Section 9, Article V, Florida Constitution, 370 So.2d 363 (Fla.1979). It will be noted that the Court’s recommendation certifies to the legislature twenty less judicial positions than have been requested.

Although not all requests have been met, a phenomenon is discernible which will affect future judgeship certifications. There has been a steady growth in the number of case filings per judge at the circuit level, as the following figures demonstrate.

1973 — 980 cases per judge

1974 — 1,283 cases per judge

1975 — 1,325 cases per judge

1976 — 1,298 cases per judge

1977 — 1,445 cases per judge

1978 — 1,677 cases per judge

1979 — 1,827 cases per judge

While “filings per judge” is not, by itself, a meaningful statistic for certification, it does tend to indicate that the availability of judicial positions has not kept pace with the litigation explosion in Florida. It further suggests that changes in the duties and responsibilities of judicial officers which occur with major law reform efforts, such as recent criminal and juvenile law reforms, should be weighed for their impact on the judiciary.

Our recommendations for new circuit court positions are conservative, and they are predicated to some extent on the prospect of legislative action during the 1980 regular session (i) to repeal the 125-day limit on the use of retired judges, and (ii) to. increase the jurisdictional limit for civil proceedings in county courts. Should these measures fail, the number of judges now certified will be inadequate to maintain reasonably current dockets in several judicial circuits.

FINDINGS

First Appellate District. Effective October 1, 1979, the Industrial Relations Commission was abolished and all pending and future appeals from workmen’s (workers’) compensation cases were assigned to the First District Court of Appeal. The court was given two new judgeship positions to cope with this new responsibility, neither of which was filled until November 1979.

The caseload of this court has increased beyond all expectations, both in the area of workers’ compensation, and in all other categories. With respect to the former, the court received 1,105 unresolved cases from the IRC on October 1, 1979, and has received an average of seventy-eight additional compensation cases in each successive month. We note that, whatever diminution may occur in workers’ compensation appeals, additional duties will devolve on the court as a result of the adoption on March 11 of the jurisdictional amendment to the constitution.

Case filings in other areas, principal among which is administrative law, have steadily grown, to the point that the court is now receiving a projected annual average of 461 cases per judge, not including rehearing requests and motions. The court’s backlog of cases on December 31, 1979, was 2,162 cases. The chief judge, despite demanding administrative burdens, currently attempts to maintain a full calendar of cases.

We noted in our certification last year that appellate judges cannot adequately bear the initial responsibility for review of more than 250 cases per judge, annually. Even with the two new judgeships, the caseload per judge in this district will be well above acceptable levels. We hope that etired district court judges will be able to assist this court, and that adequate staffing is provided for their needs, until the trend of new filings is confirmed over a longer period of time,, at which time it may be necessary to add more permanent judge-ships.

Based on a need for the chief judge to assume full-time, or near full-time, administrative responsibilities, and in light of both the continued growth in the number and complexity of appeals in this appellate district and the additional writing responsibilities placed on district court judges by the March 11 amendment to the constitution, we certify the need for two additional district court judges.

Fourth Circuit. The dominant factors considered by the Court in certifying the need of one additional circuit judge in the Fourth Judicial Circuit (Duval, Clay and Nassau Counties), despite a request for two, are (i) the growth of litigation in the outlying areas of the circuit (Clay and Nassau Counties), (ii) the constitutional limitations on the assignment of additional duties for four, non-lawyer county court judges in the circuit, (iii) the lack of available, assignable retired circuit court judges, and (iv) an increase in felony filings which has required continued assignments of a county court judge to circuit court duties in that area.

Seventh Circuit. The dominant factors considered by the Court in certifying the need for one additional circuit judge and one additional county court judge in the Seventh Judicial Circuit (Volusia, Putnam, Flagler and St. Johns Counties), despite a request for two circuit court judges and one county court judge, are (i) the continuing caseload growth in Putnam and St. Johns Counties, (ii) the increase in criminal matters in Volusia County, and (iii) one of the highest caseload filing incidence in the state.

Ninth Circuit. The probable need for one additional circuit court judge here was perceived in 1979. The dominant factors considered by the Court in certifying the need for one additional circuit court judge in the Ninth Circuit (Orange and Osceola Counties) despite a request for two, are (i) the inability to service continually growing circuit court caseloads, and (ii) the unavailability of retired judges.

Tenth Circuit. The probable need for one additional circuit court judge here was perceived in 1979. The dominant factors considered by the Court in certifying the need for one additional circuit judge in the Tenth Judicial Circuit (Polk, Highlands and Har-dee Counties), despite a request for two judges, are (i) rapidly expanding caseloads and growing backlogs in the juvenile division, (ii) the unavailability of county court judges for temporary assignments to the circuit court, and (iii) the second highest caseload incidence in the state.

Fifteenth Circuit. The dominant factor considered by the Court in certifying the need for one additional county court judge in the Fifteenth Judicial Circuit (Palm Beach County) was an ever-growing population and county court caseload.

Seventeenth Circuit. The probable need for two additional circuit court judges here was perceived in 1979. The dominant factors considered by the Court in certifying the need for three additional circuit judges and two additional county court judges in the Seventeenth Judicial Circuit (Broward County), despite a request for eleven circuit court and three county court judgeships, are the same as last year, plus the special condemnation situation which exists in Bro-ward County.

This circuit has requested three of the eleven additional circuit judges predicated exclusively on projected judicial requirements for condemnation proceedings now commencing and projected to continue for six or seven years. We are unwilling to certify the need for permanent judgeship positions for a non-permanent need. Our recommendation for the creation of three permanent judgeships takes into account this special consideration, including the fact that condemnation proceedings will temporarily increase the caseload and jury trials in this circuit.

Growth in Broward County, which apparently is the second fastest growing county in the United States, is expected to continue, and the need for additional judicial manpower has been thoroughly documented. Retired judges cannot be made available to provide the necessary continuity of manpower which this circuit now needs. Accordingly, we certify the need for three new, permanent, circuit court judgeships at this time. In the event that condemnation matters become too burdensome or further growth in the county continues, the Court may well be required to certify the need in successive years for additional judgeships.

Eighteenth Circuit. The dominant factors considered by the Court in certifying the need for one additional county court judge in the Eighteenth Judicial Circuit (for Brevard County), despite a request for two, are (i) the extensive travel times required to service the wide geographical area covered by the circuit, and (ii) the explosion of population and caseloads in lower Brevard County.

Nineteenth Circuit. The probable need for one additional circuit court judge here was perceived in 1979. The dominant factors considered by the Court in certifying the need for one additional circuit court judge in the Nineteenth Judicial Circuit (St. Lucie, Martin, Okeechobee, and Indian River Counties), despite a request for two, are the same as last year, namely (i) travel times required to service the jurisdiction of the circuit, and (ii) an expansion in population, caseload, and complex litigation resulting from the permanent growth which has taken place in lower Martin County.

In addition to these identified peculiar circumstancés within these circuits, each judgeship request is statistically justified in that the ability of judicial officers in these circuits to perform thoroughly, expeditiously, and fairly their total judicial duties is to some degree presently impaired by the volume of matters now commanding their attention.

CERTIFICATION

Therefore, in accordance with article V, Section 9, Constitution of Florida, we certify the need for the additional district, circuit and county court judgeships indicated above, for a total of fifteen new judicial positions for the appellate and trial courts of the state. This Court certifies that these judicial officers are necessary, and we recommend that they be made permanent by law and funded by the state.

As a final point of consideration we note that 1980 is an election year, so that the possibility of either elective or appointive judgeship positions is present. If vacancies are to be filled by elections in the fall, none of the judicial manpower we have certified will be available until January, 1981, that is, one- full year from the time the needs of these courts were determined. We recommend, therefore, the creation of all judicial positions as of August 1, 1980 (following the close of the qualification period for elective state offices), and to avoid personal hardships and uncertainty for applicants we recommend that the seats created be removed from the elective process in 1980.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, ALDERMAN and McDONALD, JJ., concur.