author: ERVIN, Judge. BOOTH, Judge,

text:
    Allan Jay MELLMAN, Petitioner, v. Honorable John A. RUDD, Judge, Second Judicial Circuit, and Harry Morrison, State Attorney, Second Judicial Circuit in and for Leon County, Florida, Respondents.
    No. WW-22.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1980.
    Rehearing Denied Nov. 17, 1980.

      J. Leonard Fleet and Richard E. Brown, Hollywood, for petitioner.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for respondents.
   ERVIN, Judge.

Mellman filed in this court a suggestion for writ of prohibition, contending his right to speedy trial was violated by the state’s failure to try him within 180 days following his arrest. We issued a show cause order, and, having considered respondents’ reply, now issue the writ prohibiting them from proceeding to trial.

Petitioner was arrested for conspiracy to possess and to sell more than 10,000 pounds of cannabis. On the day following his arrest, he executed a contract with the state in which the parties agreed he would receive transactional immunity provided, among other things, he give all information requested for the purpose of aiding the investigation and detail his involvement with all persons connected with the offenses. Subsequently, upon determining that petitioner had breached the terms of the agreement, the state filed an information against him charging him with the crimes for which he had been arrested and for which it had contracted to grant him immunity. Once 180 days had expired from the date of his arrest without trial, petitioner moved for discharge. The motion was denied, the court holding that the contract of immunity created a disability for speedy trial purposes, that such time was tolled without motion by either party for the duration of the contract and that trial time would again run from the state’s discovery of the breach.

Florida Rule Criminal Procedure 3.191(d)(2) enumerates the exceptions to the rule permitting an extension of trial time. Those exceptions are narrowly confined to the grounds provided under (d)(2) since it provides “any other delay shall be unexcused.” Additionally, the subsection prescribes two means by which an extension is accomplished-by waiver and by order. If the delay is attributable to an exceptional circumstance, as provided by (d)(2)(H), the time for trial may be extended only by order entered before the expiration of such time. State ex rel. Smith v. Rudd, 347 So.2d 813 (Fla. 1st DCA 1977). A contract of immunity would not appear to fall within any category of exceptional circumstances delineated in 3.191(f)-although on at least two occasions, the courts have found exceptional circumstances other than those provided in subsection (f). See State v. Felton, 348 So.2d 1214 (Fla. 4th DCA 1977); State ex rel. Canup v. Langston, 341 So.2d 1069 (Fla. 2d DCA 1977). Even if we were to hold the execution of such a contract is an exceptional circumstance, subsection (d)(2)(H) may not be relied upon to justify an extension of trial time because the state failed to move for an order extending the time before it had expired.

Nor may the state rely upon 3.191(d)(2)(iii) to vindicate its failure to seek a stay tolling the time. That provision is for the benefit of the accused “upon good cause shown” and clearly does not apply to a contract of immunity.

The lower court found that a contract of immunity creates a disability for speedy trial purposes and, similar to a disability caused by a commitment for psychiatric evaluation, no order extending trial is required. Those disabilities described in subsection (d)(2)(iv) apply to proceedings. The execution of a contract for immunity is not a proceeding. Additionally, it is questionable whether the conditions described under (d)(2)(iv) permit an extension without an order. For example, an interlocutory appeal filed by the state does not automatically arrest the running of trial time. It is necessary that an order be entered. See State v. Williams, 350 So.2d 81, 82-83 (Fla. 1977); State v. Villavicencio, 381 So.2d 256 (Fla. 4th DCA 1980). Here, because no order was entered and no proceeding held, that subsection similarly provides no authority to extend the time for trial.

The only possible provision which could conceivably apply to the facts before us is a stipulation signed “by the party against whom the stipulation is sought to be enforced, . ... ” Fla.R.Crim.P. 3.191(d)(2)(i). Yet (d)(2)(i) is also inapplicable since the contract of immunity did not explicitly state that the rule’s speedy trial limits would be enlarged during the contract’s duration. A defendant’s right to a speedy trial is fundamental. Flournory v. State, 322 So.2d 652 (Fla. 2 DCA 1975). It cannot be waived on a silent record. Id. For example, the silence of a defendant or his counsel at a proceeding where a trial date is set beyond a speedy trial period is not waiver. State v. Ansley, 349 So.2d 837 (Fla. 1st DCA 1977). Moreover, the only stipulation that need be in writing or otherwise incorporated in the record in order to have binding effect on the parties is one which waives speedy trial. Codie v. State, 313 So.2d 754, 756 (Fla.1975).

The necessity for an explicit waiver of speedy trial time is well illustrated by Johns v. State, 340 So.2d 528 (Fla. 2d DCA 1976), which held that the defendants’ stipulation waiving their right to speedy trial “until such time as their eligibility for pre-trial intervention (PTI) has been determined ...” had the effect only of tolling that portion of the trial time which had elapsed from the date of the agreement until the time the state determined the defendants’ eligibility for the program. Once the state exercised its discretion to grant or deny participation, the “meter then took up where it left off.” 340 So.2d at 529. Thus, a stipulation is not “tantamount to a waiver altogether unless specifically denominated as such.” Id. By analogy, Section 944.-025(2), Florida Statutes (1979), provides as a precondition to a defendant’s eligibility for a pretrial intervention program that he “knowingly and intelligently waive his right to speedy trial for the period of his diversion.”

In the absence of an express waiver or an order extending the time for trial, the state’s right to try the petitioner for offenses for which he was immunized is measured strictly by the time limitations of Rule 3.191. That time having expired, the writ is made absolute and respondents are prohibited from taking any further action in this cause.

SHAW, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

The trial court correctly held that the speedy trial rule was tolled while the agreement for immunity was in effect and that, after the defendant breached the agreement, he could be tried. The case of Davis v. State, 383 So.2d 620, (Fla. 3d DCA), supports the well-reasoned decision below. I would discharge the writ.

      . Trial court’s order of May 28, 1980, in pertinent part:
      The contract, in effect, set forth the following: that the State would confer transactional immunity upon the defendant in exchange for his complete cooperation in the continued prosecution of the remaining co-defendants. .. .
      Mr. Mellman, however, chose not to abide by the conditions of this contract. Believing himself to be immune, Mr. Mellman attempted to turn the tables on the State, and to the advantage of his co-defendants. His offer to “sell” his testimony to these co-defendants not only destroyed the good faith foundation of the contract, but also vitiated any consideration supplied to the contract by Mr. Mell-man as his credibility as a prosecution witness was thereby impeached, and his usefulness to the State nullified.
      Trial court’s order of June 12, 1980, in pertinent part:
      [W]here special “disabilities” have set in, e.g. where a defendant is committed for psychiatric evaluation or where a plea bargaining agreement is present [there may be tolling of Rule]. The logic behind this appears to be that it is not equitable to force either side to trial during the course of this disability, as these disabilities usually arise by mutual agreement or by order of court, and the adversary nature of the proceeding has been tolled during this period. The purposes of speedy trial are well served by this rule as the defendant is neither forced to languish in jail nor exposed to an unnecessarily dilatory administration of justice.
      This Court finds that a contract of immunity creates a disability for speedy trial purposes, i.e. that speedy trial will be tolled without motion of either party for the duration of the contract. This tolling is necessary to prevent a defendant from signing the contract, waiting 180 days, renouncing the agreement, and then claiming the protection of speedy trial.
      In the case, sub judice, speedy trial was tolled until the time the prosecution learned of Mr. Mellman’s breach of the contract and will be held to run starting from that date. Accordingly, the 180 days contemplated by FRCr.P. 3.191 has not yet lapsed and Defendant’s Motion for Discharge is DENIED.


source: Caselaw Access Project

author: BOARDMAN, Acting Chief Judge.

license: Public Domain

text:
    Sharon J. WEYANT, Petitioner, v. J. E. RAWLINGS, Jr., M. D., Palms of Pasadena Hospital, Inc., and Florida Patient’s Compensation Fund, Respondents.
    No. 80-1035.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1980.
    William F. Blews, St. Petersburg, for petitioner.
    Donald V. Bulleit of Fowler, White, Gil-len, Boggs, Villareal & Banker, St. Peters-burg, for respondent J. E. Rawlings, Jr.
   BOARDMAN, Acting Chief Judge.

Sharon J. Weyant petitions for writ of certiorari to review an order denying her motion to compel discovery. We grant the writ and reverse.

Petitioner filed a complaint alleging medical malpractice on the part of respondents J. E. Rawlings, Jr., M.D., and Palms of Pasadena Hospital, Inc. The complaint alleged negligence on the part of Rawlings in failing to properly diagnose and treat petitioner’s cancerous condition.

After Rawlings had filed his answer, which admitted that he had seen petitioner as a patient in August, 1978, at which time petitioner complained of chest pains, petitioner deposed Rawlings. At deposition, Rawlings admitted that he had some knowledge regarding changes in tissue and cellular structure caused by Hodgkin’s disease. Petitioner than asked: “What is your understanding then regarding any change in the cellular structure of an individual who has Hodgkin’s disease?” Rawlings was directed by his counsel to refuse to answer this question.

Subsequently, petitioner inquired into Rawlings’ familiarity with the various stages of Hodgkin’s disease, and again Rawlings admitted limited knowledge on this subject. However, when petitioner then asked: “Are you able to tell us whether there is any difference in the clinical symptoms that a patient would present based upon what stage of Hodgkin’s disease the patient was in?” Rawlings was again directed by his counsel not to answer.

At this point, the deposition was adjourned, and the parties went before the trial judge for a ruling on petitioner’s motion to compel Rawlings to answer the two above questions. The trial judge ruled that Rawlings would not be required to answer the questions. This petition for writ of certiorari followed timely.

Rule 1.280(b)(1), Florida Rules of Civil Procedure, provides that a party may obtain discovery of

any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party .... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The discovery rules are to be liberally construed so as to permit any form of discovery within the scope of the rules. National Convenience Stores, Inc. v. Embrey, 375 So.2d 358 (Fla. 4th DCA 1979); Argonaut Insurance Co. v. Peralta, 358 So.2d 232 (Fla. 3d DCA), cert. denied, 364 So.2d 889 (Fla.1978).

At the hearing on the motion to compel, Rawlings argued that the questions objected to were improper due to petitioner’s failure to lay a predicate, and the trial judge agreed. However, Rawlings did not raise this objection at the time of deposition and thus waived any objections on this basis. Fla.R.Civ.P. 1.330(d)(3)(B).

Furthermore, failure to lay a proper predicate was not a sufficient basis upon which to deny petitioner’s motion to compel, even if such an objection had not been waived. Rule 1.280(b)(1) specifically states that discovery is not subject to objection on the ground that the subject matter of the discovery will not be admissible at trial, provided the matter to be discovered appears reasonably calculated to lead to the discovery of admissible evidence. See Brooks v. Owens, 97 So.2d 693 (Fla.1957).

Contrary to the trial judge’s apparent conclusion, petitioner’s questions were not intended to elicit the standard of care and treatment prevailing in the community, but constituted an attempt to determine the extent of Rawlings’ personal knowledge in order to avoid surprise at trial. See Bowen v. Manuel, 144 So.2d 341, 343 (Fla. 2d DCA 1962).

The challenged questions were certainly capable of leading to admissible evidence. While Rawlings is a general practitioner rather than a specialist in the treatment of Hodgkin’s disease, petitioner should nevertheless be allowed to inquire into Rawlings’ knowledge of the subject, the better to ascertain whether he possessed the skill and learning commonly possessed by other general practitioners. Hill v. Boughton, 146 Fla. 505, 1 So.2d 610 (1941).

While we have not found a Florida case factually similar to the case at bar, Myers v. St. Francis Hospital, 91 N.J.Super. 377, 220 A.2d 693 (App.Div.1966), is somewhat analogous. In Myers, the plaintiffs in a medical malpractice action served interrogatories upon the defendant physician inquiring into his qualifications, education, and experience. The defendant objected to these interrogatories, and the trial court granted the plaintiff’s motion to compel the answers. The appellate court affirmed, noting that pretrial discovery should be liberally permitted, and observed that:

In every malpractice action defendant’s possession of the required knowledge and skill ordinarily possessed and exercised in similar situations by the member of the profession practicing in his field is clearly in issue under substantive law and the pleadings ....
Defendant will undoubtedly take the witness stand and testify that the acts he performed were entirely necessary and proper. Plaintiff is entitled to have defendant answer interrogatories Nos. 6 through 33 and 72 so that he may be in a position to cross-examine the doctor with respect to his qualifications and experience.

91 N.J.Super. at 387, 220 A.2d at 698. But see Decker v. Pohlidal, 22 Pa. D. & C.2d 627 (1960) (where the court held that the information sought was equally available to the other party).

Similarly, in the instant case, Rawlings may testify at trial that he recognizes all symptoms of Hodgkin’s disease which are commonly recognized by general practitioners. Petitioner should be entitled to probe the state of his expertise prior to trial.

Finally, we cannot agree with the trial court’s apparent assumption that Rawlings was improperly being asked in the challenged questions to express his expert opinion. Whether or not Rawlings qualifies as an expert, he may be required to give opinions in an action against him for malpractice “since fact and opinion are inextricably intermingled on the fundamental issue as to whether defendant-doctor departed from accepted standards in diagnosing and treating plaintiff’s injuries.” Decker v. Pohlidal, supra at 640.

Accordingly, the petition for writ of cer-tiorari is granted, the trial court’s order denying petitioner’s motion to compel discovery is vacated, and the cause is remanded with directions to enter an order granting petitioner’s motion to compel.

GRIMES and RYDER, JJ., concur.


author: GRIMES, Judge.

text:
    H. Stockton MASSEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-1234.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1980.

      Robert A. Young of Trakas & Young, P. A., Winter Haven, and William Dayton of Dayton & Dayton, P. A., Dade City, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This appeal involves the legality of a ninety day sentence which the trial court ordered appellant to serve in weekend increments.

The court originally placed appellant on eleven months’ probation as a result of several traffic-related misdemeanors and resisting arrest without violence. It later revoked probation on the resisting arrest without violence charge and sentenced him to ninety days in jail “to be served on weekends from Fridays at 6:00 p. m. through Sundays at 6:00 p. m. to begin May 11, 1980.” This court affirmed the revocation.

When appellant failed to report on the seventeenth weekend, the trial court adjudicated him guilty of indirect contempt and sentenced him to thirty days in jail. It also ordered the suspension of the ninety day sentence during the thirty day incarceration. Appellant filed a motion for postcon-viction relief attacking the legality of the ninety day sentence and the subsequent order of contempt. This is an appeal from the denial of that motion.

A defendant may attack an illegal sentence by a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Skinner v. State, 366 So.2d 486 (Fla.3d DCA 1979). Therefore, we must decide whether the court could legally impose an intermittent sentence.

There is nothing in our statutes which purports to authorize an interrupted sentence. While there are no Florida decisions directly on point, our courts have on several occasions observed that a prisoner is entitled to pay his debt to society in one stretch rather than in bits and pieces. Segal v. Wainwright, 304 So.2d 446 (Fla.1974); Ex parte Bosso, 41 So.2d 322 (Fla.1949); State v. Coleman, 149 Fla. 28, 5 So.2d 60 (1941). The Supreme Court of Arizona has held that a defendant convicted of a misdemeanor for which the maximum penalty was one year in jail could not be given a sentence of ninety days to be served in interrupted periods. State v. Bigelow, 76 Ariz. 13, 258 P.2d 409 (1953). The Supreme Court of Nebraska reached a similar conclusion in State v. Jurgens, 187 Neb. 557, 192 N.W.2d 741 (1971). In light of these authorities, we hold that, except where the defendant consents, the court cannot impose an interrupted sentence.

We hasten to point out that our decision does not conflict with State v. Williams, 237 So.2d 69 (Fla.2d DCA 1970), because there the court imposed the requirement of intermittent incarceration as a condition of probation. Also, because we conclude that the sentence was illegal, we do not consider appellant’s further argument that the court lost jurisdiction to hold him in contempt after it sentenced him and placed him in the hands of those charged with the responsibility of his custody. See Ex parte Turner, 73 Fla. 360, 74 So. 314 (1917).

Since appellant’s sentence was illegal, we remand the case with directions that the court resentence appellant, with credit for all jail time, including any time served under the contempt order. Since fractions of days are counted as full days at common law, appellant is entitled to three days’ credit for each of the weekends he has served. State v. Jurgens.

REVERSED and REMANDED.

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


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Jeff E. TURNER.
    No. 67826.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    William Noland, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Hortence M. Patterson, New Orleans, La., Asst. Dist. Atty., for plaintiff - respondent.
   CALOGERO, Justice.

Jeff E. Turner was charged by affidavit with being a fugitive from the State of Oregon. The matter was allotted to the Magistrate Judge of the Criminal District Court and a hearing scheduled. Defendant made a motion to quash attacking the allotment of the case to the Magistrate Judge rather than to a District Court Judge, and attacking the jurisdiction of the Magistrate Judge to hear and render a determination in this extradition proceeding. The Magistrate Judge denied defendant’s motion to quash, found the extradition papers to be in compliance with the statute and ordered defendant extradited.

Defendant thereupon filed in this Court an application for writs challenging the rulings below, particularly the denial of the motion to quash.

Initially impressed by defendant’s arguments in support of his motion to quash, we granted relator writs with an order directing that relator be afforded his extradition hearing before a “judge” in accordance with Article 267 of the Code of Criminal Procedure, by implication one other than the Magistrate Judge. Because of this ruling we found it unnecessary to address the issue of whether defendant’s extradition papers were in proper order.

Thereafter the state filed an application for rehearing contending that the Magistrate Judge for Orleans Parish has the authority and jurisdiction to hear extradition matters. We granted a rehearing to reconsider our ruling on this issue.

Defendant argues that an extradition hearing cannot be held before the Magistrate Judge. He relies primarily upon C.Cr.P. art. 267 and its Official Revision Comment (b) in support of his argument. They provide as follows:

“C.Cr.P. art. 267.
“A person arrested upon the governor’s warrant shall not be delivered over to the agent appointed by the executive authority to receive him unless he shall first be taken before a judge, who shall inform him of the demand made for his surrender, of the crime with which he is charged, of his right to procure legal counsel, and of his right to an extradition hearing. If the prisoner or his counsel states that he desires an extradition hearing, the judge shall assign as early a day as practicable for the hearing, to be held in open court. At least one full day shall intervene between the assignment and the day fixed for the hearing. Notice of the time and place of the hearing shall be given to the district attorney of the parish in which the hearing is to be held. If an extradition hearing is not requested, the prisoner shall be delivered promptly to the agent of the demanding state.
“Official Revision Comment
“(b) The accused must be presented before a ‘judge,’ defined in Art. 261 as any judge of a district court with criminal jurisdiction, rather than before a ‘committing magistrate’ as provided in former R.S. 15:163. This provides greater assurance of competent investigation into the validity of the extradition demand. Jus-, tices of the peace, who have jurisdiction as committing magistrates in all cases not capital or necessarily punishable at hard labor, do not ordinarily have the experience or training to adequately specify and safeguard the rights of the accused, and city judges are ordinarily without experience in such matters.” (Emphasis provided.)

The state contends that defendant was properly given a hearing before a “judge.” They argue that the case was not heard by a “committing magistrate” but rather by the judge of the Magistrate Section of the Criminal District Court of Orleans Parish. The state further argues that this judge of the Magistrate Section has much broader powers and jurisdiction than does a simple committing magistrate and is in fact a “judge” within the contemplation of C.Cr.P. art. 267 and the comments that follow it. In support of these contentions, the state relies on R.S. 13:346 which created the judgeship in question.

R.S. 13:1346 provides:
“A. Two-thirds of all the members elected to each house concurring, and in addition to the number of judges now provided by Article VII, Section 82 of the Constitution of Louisiana, as the same was augmented and increased by Act No. 108 of 1948 as reenacted in Chapter 5 of Title 13 of the Louisiana Revised Statutes of 1950, and as was augmented and increased by Act No. 221 of 1968 as reenacted in Chapter 5 of Title 13 of the Louisiana Revised Statutes of 1950, there is hereby created one additional judge of the Criminal District Court for the Parish of Orleans, who shall receive the same salary payable by the State of Louisiana as is now paid to the other judges of said court in the same manner as such salary is paid to said judges. This salary may be supplemented by the city of New Orleans in an amount not to exceed the supplemental salary which the city of New Orleans is authorized to pay the other judges of said court. The initial term of office of the additional judge provided for herein shall begin on September 1, 1972 and shall expire on December 31, 1982. The additional judge shall be elected by the qualified electors of the parish of Orleans at the congressional election to be held on the first Tuesday next following the first Monday of November, 1974 for the term expiring December 31, 1982, however the governor shall fill the office by appointment for the beginning of said initial term until the said election. The successors to the additional judge after the initial term of office shall be elected by the qualified electors of the parish of Orleans in the manner provided by law for other judges of the Criminal District Court for the parish of Orleans for terms of twelve years.
“B. The additional judge created herein shall have and possess all of the powers, duties, jurisdiction, rights, prerogatives, and qualifications as are now prescribed by the constitution and laws of this state relative to judges of the Criminal District Court for the Parish of Orleans, except as provided herein.
“C. In addition to the sections of the Criminal District Court for the parish of Orleans now existing, there is hereby created the Magistrate Section of the Criminal District Court for the Parish of Orleans, and the additional judge created herein shall be known as the Magistrate and shall preside over the Magistrate Section. Said judge shall have jurisdiction to act as committing magistrate in felony and misdemeanor charges and to hold preliminary examinations, with the authority to bail or discharge, or to hold for trial, in all cases before the Criminal District Court for the Parish of Orleans, and shall have the power to adopt all necessary rules with respect thereto.
“D. The additional judge created herein shall hold court in the same building as is provided for the other judges of said court by the city of New Orleans, and with the approval of the judges of the Criminal District Court for the Parish of Orleans, acting en banc, may hear preliminary motions, accept pleas in misdemeanor cases, hear and render judgments in other matters, including misdemeanor cases, preliminary to the trial on the merits, and conduct trials of misdemeanor cases and sign and issue search and arrest warrants upon probable cause being shown in accordance with law. Said judge shall have the right to appoint a stenographer and minute clerk as provided by law, and the criminal sheriff for the parish of Orleans shall appoint a crier and deputy sheriff for said section of the court created herein as provided by law.
“E. The Criminal District Court for the Parish of Orleans, including the Magistrate of the Magistrate Section of said court, acting en banc, shall prescribe rules and procedures not inconsistent with the constitution and laws of this state to be followed in all matters to be presented before the Magistrate Section.” (Emphasis provided.)

The question thus presented is whether the holder of the judgeship created by R.S. 13:1346 is a “judge” within the contemplation of C.Cr.P. art. 267.

Article 267 of the Code of Criminal Procedure is contained in Title VI of the Code, a section devoted to extradition proceedings. Also contained in that section is Article 261. Section (5) of Article 261 specifically defines “Judge” as “any judge of a district court with criminal jurisdiction.” Clearly this definition encompasses the holder of the judgeship created by R.S. 13:1346, for the Magistrate Judge is a judge of the Criminal District Court for the Parish of Orleans, a district court with criminal jurisdiction.

R.S. 13:1346 specifically provides “there is hereby created one additional judge of the Criminal District Court for the Parish of Orleans, who shall receive the same salary payable by the State of Louisiana as is now paid to the other judges. ...” The statute sets out the initial term of office of “the additional judge," provides that the “additional judge ” shall be elected and further provides that “[t]he successors to the additional judge after the initial term of office shall be elected by the qualified electors of the parish of Orleans in the manner provided by law for other judges of the Criminal District Court for the parish of Orleans for terms of twelve years.” It is clear from the language of the statute that the legislature intended and did in fact create a judgeship, with the person holding it being a judge of the Criminal District Court.

It should also be noted that the statute was enacted with “two-thirds of all the members elected to each house concurring,” as was required by Article VII, Section 87, of the 1921 Constitution, for the creation of a judgeship. While we are mindful of the fact that the statute provides that this judge “shall preside over the Magistrate Section,” it also provides “[t]he additional judge created herein shall have and possess all of the powers, duties, jurisdiction, rights, prerogatives, and qualifications as are now prescribed by the constitution and laws of this state relative to judges of the Criminal District Court for the Parish of Orleans, except as provided herein.” Nowhere thereafter does the statute deny this judge the power or jurisdiction to preside over extradition proceedings. To the contrary, the judge is authorized to exercise full jurisdiction over all matters preliminary to trial for with the approval of the other judges of the Criminal District Court acting en banc, he “may hear preliminary motions, . . . hear and render judgments in other matters . . . preliminary to trial on the merits, .. . and sign and issue arrest warrants upon probable cause being shown in accordance with law.”

Defendant contends that because the Magistrate Judge does not have the exact same powers and jurisdiction as the other judges of the Criminal District Court because of the limitations set out in R.S. 13:1346(C) and (D), he does not have the authority or jurisdiction to hear extradition proceedings. We disagree.

As stated above, the statute creates a judgeship, the holder of which is a judge of a district court with criminal jurisdiction as is required by C.Cr.P. arts. 267 and 261. The statute does not exclude from the Magistrate Judge’s powers or jurisdiction the authority to preside over extradition proceedings, but rather, authorizes such action by providing that the Magistrate Judge may, with the approval of the other judges acting en banc, “hear and render judgments in other matters . . . preliminary to the trial on the merits.”

Furthermore, our interpretation here is not inconsistent with the concerns expressed by the legislature in enacting C.Cr.P. art. 267, as set out in the Official Revision Comments to that statute. The legislature removed jurisdiction over extradition proceedings from committing magistrates, and placed it in “judges” to provide “greater assurance of competent investigation into the validity of the extradition demand.” From a reading of the comments, it appears that the legislature was concerned that committing magistrates, like Justices of the Peace who deal only with misdemeanor cases, might not have the experience to preside over extradition proceedings involving felonies. The Magistrate Judge has jurisdiction to act as a committing magistrate in felony cases, to hold preliminary examinations in felony cases, with the authority to bail or discharge or to hold for trial, and with the approval of the other judges of the Criminal District Court for Orleans Parish, to hear preliminary motions in felony cases, hear and render judgments in other felony matters that are preliminary to trial on the merits and may sign and issue search and arrest warrants in felony cases upon probable cause being shown in accordance with law.

Since we hold that the Magistrate Judge is a judge within the meaning of C.Cr.P. art. 267 and that he has jurisdiction to preside over defendant’s extradition hearing, we must now turn our focus to defendant’s assignments of error concerning the extradition proceedings themselves.

Defendant’s first contention is that there is not an authenticated copy of the indictment against him by the executive authority making the demand. Defendant does not elaborate on this argument, and in our review of the record we have found an indictment against defendant by the State of Oregon, the executive authority making the demand, authenticated by the Governor of Oregon. Thus we find defendant’s argument here lacks merit.

Next, defendant argues that he was not properly afforded his rights under C.Cr.P. art. 267, to be “taken before a judge, who shall inform him of the demand made for his surrender, of the crime with which he is charged, of his right to procure legal counsel and of his right to an extradition hearing.”

The court minutes reflect that the proceedings were instituted by an affidavit which clearly set out the specifics of the allegations against defendant. Additionally, this was defendant’s second extradition hearing and the minutes to the first hearing indicate that defendant was informed of his constitutional rights. Defendant does not contend that he was not properly informed of his rights but only that the minutes concerning this second hearing do not state that he was so informed. Defendant was represented by counsel throughout the proceedings and there is nothing in the record to indicate that defendant was prejudiced in any way. Therefore, we find that this argument by defendant lacks merit.

Finally, defendant contends that the affidavit by a New Orleans police officer, which initiated the proceedings against him was amended on the day of the trial by the district attorney. Defendant contends that the district attorney cannot amend an affidavit by this police officer and further, that after the amendment, he should have been given at least one full day before his hearing in accordance with' C.Cr.P. art. 267. However, defendant does not inform us of the manner in which the affidavit was allegedly amended and thus we assume these contentions are not serious. From our own review of the documents filed in the record and the minutes of the lower court proceedings, we can find no evidence of any amendment to the affidavit. This argument also lacks merit.

Decree

For the foregoing reasons we find that the Magistrate Judge of the Criminal District Court for the Parish of Orleans, whose office was created by R.S. 13:1346, does have the authority and jurisdiction to preside over extradition proceedings, and further, that the necessary papers do accompany the demand for defendant’s extradition and the extradition was properly ordered. Accordingly, this Court’s original ruling is reversed, the rulings of the trial court denying defendant’s motion to quash and ordering defendant extradited are affirmed and the case is remanded to the District Court.

TRIAL COURT JUDGMENT AFFIRMED; CASE REMANDED.

      . The indictment attached to the Governor’s warrant charges defendant with the crime of failure to appear in the first degree. ORS 162.-205. The crimes he is alleged to have committed for which he did not appear are rape and kidnapping.

      . As explained in oral argument by counsel for the state, the allotment procedure for extradition cases in the Criminal District Court for Orleans Parish operates essentially as follows: Extradition matters are “classed” as misdemeanors with various other matters, and cases in this class are allotted variously to the Magistrate Judge, the ten other Judges and the four Commissioners. When, however, one of the Commissioners is allotted an extradition matter, it is automatically reallotted, or assigned to the Magistrate Judge.

      . Judge Andrew G. Búcaro was sitting by appointment of this Court as Magistrate Judge Ad Hoc in the temporary absence of Judge Gerard J. Hansen.

      . By virtue of R.S. 13:1346 and R.S. 13:1347, the person holding the judgeship created by R.S. 13:1346 is known as the Magistrate Judge and is to preside over the Magistrate Section of the Criminal District Court which consists of the Magistrate Judge and four Commissioners.

      . For instance, he may not hear full trials in felony cases and some of his powers are only with leave of the other Criminal District Court judges acting en banc.

      . That the Magistrate Judge may hear and render judgments in all preliminary matters in felony cases is clear from a reading of the statute prior to its most recent amendment. The statute provided in part that the Magistrate Judge “may hear preliminary motions, pleas and other matters preliminary to trial on the merits ...” with no distinction between felony cases and misdemeanor cases. In response to this Court’s ruling in State v. Brady, 310 So.2d 593 (La. 1975) which held that the Magistrate Judge did not have the authority to conduct trials in misdemeanor cases, the legislature amended the statute to include specific provisions allowing the Magistrate Judge to hold such trials and also added references to misdemeanor cases throughout R.S. 13:1346(D) so that it would be clear that all provisions did apply to misdemeanor matters. In doing so, the counterpart to the above language in the amended statute is “may hear preliminary motions, accept pleas in misdemeanor cases, hear and render judgments in other matters, including misdemeanor cases, preliminary to trial on the merits, and conduct trials of misdemeanor cases. . . . ” We do not believe that this Legislative broadening of the Magistrate Judge’s powers, to include trial in misdemeanor cases, was intended to or did in fact affect the prior statutory authority with reference to preliminary matters in felony cases.


text:
    STATE of Louisiana v. Thomas MURPHY.
    No. 80-K-1837.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Thomas Murphy applying for Supervisory Writs and Writ of Habeas Corpus, Parish of Orleans, No. 255-268, Sect. “B”.

Granted. The trial court’s denial of the petition as not stating a cause of action is reversed, and the trial court is ordered to conduct an evidentiary hearing on the petition. The trial court is also ordered to permit the filing of the other petition offered by relator, as long as that petition (as relator alleges) asserts a related claim in the same case and requires only one hearing.


text:
    STATE of Louisiana v. James E. COPELAND.
    No. 80-K-2452.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re James E. Copeland, applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order, Parish of Livingston, No. 3035.

Granted. The trial judge is authorized to obtain and make available reasonable funds for the investigation and defense of this case, or grant a continuance until such funds are available.

MARCUS, BLANCHE and LEMMON, JJ., dissent.


text:
    PARISH NATIONAL BANK v. C. E. LANE.
    No. 80-C-2443.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re C. E. Lane, applying for Remedial Writs and Stay Order, Parish of Washington, No. 46,735-C.

Writ granted. All proceedings stayed pending further orders of this Court.


author: MARCUS, BLANCHE and WATSON, JJ.,

text:
    STATE of Louisiana v. Reginald WILSON.
    No. 80-K-2461.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Reginald Wilson, Applying for Writs of Certiorari, Prohibition, Mandamus, and a Stay Order, Parish of Orleans, No. 278-598.

All proceedings stayed pending further orders of this Court. Transcript of hearing on motion to suppress to be sent to this Court.

MARCUS, BLANCHE and WATSON, JJ.,

dissent from stay order and would deny writ as there is an adequate remedy by review in event of conviction.


text:
    STATE of Louisiana v. Arthur Lee GIBSON.
    No. 80-K-2341.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In Re: Arthur Lee Gibson, applying for Writs of Certiorari, Prohibition and Mandamus, Parish of Caddo, No. 114,591.

Writ granted in part and denied in part. Excessive sentence on theft conviction set aside. Otherwise writ denied. Remanded for resentencing on theft offense.


text:
    STATE of Louisiana ex rel. Michael HERBERT v. Judge Frank SHEA, Orleans Criminal Judicial District Court.
    No. 66646.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In Re: Michael Herbert, applying' for writ of mandamus, Parish of Orleans, Number unknown.

Writ denied. It appears that the petition alleged to have been filed with trial court on September 13, 1979 was not received. Relator must file again in trial court.


text:
    STATE of Louisiana ex rel. Thomas E. TARR v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67334.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In Re: Thomas E. Tarr applying for mandamus relief, Parish of East Baton Rouge, Number unknown.

Writ denied. The District Court states that the petition for the guilty plea transcript was never filed. Relator must file again in that court.


author: DIXON, C. J.,

text:
    STATE of Louisiana v. Peter GAGLIANO.
    No. 80-K-1850.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In Re: State of Louisiana through the District Attorney, Harry F. Connick applying for Writ of Certiorari, Parish of Orleans, No. 277-096, Sect. G.

Denied.

DIXON, C. J.,

is of the opinion that the District Attorney waived any complaint by suggesting the penalty which he now opposes. A declaratory action in the civil court is Open to the District Attorney to contest the validity of the statute.

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


author: SCHOTT, Judge. CHEHARDY, Judge,

text:
    Wendell E. TANNER et al. v. TRAVELERS INSURANCE COMPANY et al.
    No. 11048.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    On Rehearing Oct. 9, 1980.

      H. Martin Hunley, Jr., and David S. Kelly, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for plaintiffs-appellants.
    Harry R. Morgan and Paul L. Billingsley, Luling, for defendants-appellees.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   SCHOTT, Judge.

Plaintiffs, Wendell E. Tanner, Thomas A. Lussen and L. H. Olivier, have appealed from a judgment which dismissed their suit against Joseph E. Champagne to annul a previous judgment against Champagne, dismissing his earlier suit against Travelers Insurance Company as of non-suit and without prejudice. The present suit by appellants was dismissed on exceptions of no right or cause of action filed by Champagne. As a result of the earlier dismissal of Champagne’s suit against Travelers Champagne has instituted this suit against appellants who were his attorneys in the Travelers’ suit, alleging that the dismissal of his suit against Travelers was the result of negligence or malpractice on the part of appellants. The principal issue is whether appellants have a right of action to assail the judgment in favor of Travelers dismissing Champagne’s suit against it.

Champagne, represented by appellant Tanner, filed a tort suit on December 10, 1970. On July 2, 1973, Champagne discharged Tanner as his counsel and retained Thomas A. Lussen and L. H. Olivier, the other appellants, to represent him. On April 18, 1974, judgment was rendered in that suit dismissing Champagne’s case as of non-suit and without prejudice on the basis that appellants had failed to appear at a hearing on a rule to show cause issued by the district court ex proprio motu because of appellant’s failure to attend the previously scheduled pre-trial conference in the case. On August 9, 1977, Champagne instituted a malpractice suit against appellants and their professional liability insurer. Therein Champagne alleged that while his suit was pending he attempted to contact his attorneys on numerous occasions to no avail, and in March, 1977, contacted his present counsel to check on the proceedings and determine their status, whereupon in the latter part of March, 1977, he was advised by his present counsel that his suit against Travelers had been dismissed on April 18, 1974. Champagne further alleged that he lost his cause of action because of the negligence of appellants in the handling of his lawsuit against Travelers.

Appellants responded to the petition with an exception of prematurity on the ground that Champagne had not alleged an attempt to reinstitute the suit or that he had been met by any plea in bar of his suit. Thereafter, appellants repeatedly called upon Champagne to reinstitute his tort suit, offering to do this work at their expense. When Champagne refused to take such action appellants filed the present suit to annul the judgment of April 18, 1974. Champagne responded with exceptions of res ju-dicata and no right or cause of action, and the trial court maintained the exceptions of no right or cause of action dismissing appellants’ suit.

Because of our ultimate disposition of the judgment on the exception of no right of action there is no necessity for us to address the issue of whether plaintiffs’ petition states a cause of action. However, plaintiffs’ suit appears to be based on the provisions of LSA C.C.P. Art. 2002(2) which provides that a final judgment shall be annulled if it is rendered

“against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;”

Appellants take the position that in the action of nullity they were not notified of the rule to show cause why Champagne’s suit against Travelers should not be dismissed. In effect, they contend that Champagne, as the defendant in that rule, was not served with process, i. e., not notified so that the judgment dismissing his suit based on that rule should be annulled. We pre-termit a discussion of this aspect of the case, and pass to the exception of no right of action because it is dispositive of the case.

The exception pf no right of action is defined as “no interest in the plaintiff to institute the suit.” C.C.P. Art. 927(5). The issue is whether these attorneys who have now been made defendants in a malpractice case as a result of their alleged negligence in allowing the judgment to be taken dismissing Champagne’s suit against Travelers confers upon them an interest to institute the suit to annul that judgment of dismissal. The jurisprudence is of little assistance in solving the special problem before us, although numerous-cases have held that one may have a right of action to attack an absolutely null judgment even though he was not a party to it. For instance, in Ludeau v. Jacob, 191 La. 427, 185 So. 458 (1938) the court said:

“A judgment absolutely null may be attacked by anyone against whom it is sought to be enforced.
The nullity may be invoked by any person who would be affected by the judgment. Bernard v. Vignaud, 1 Mart., N.S., 1, 8; Quine v. Mayes, 2 Rob. 510; Williams v. Clark, 11 La.Ann. 761; Simpson v. Hope, 28 La.Ann. 557; and Andrews v. Sheehy, 122 La. 464, 47 So. 771.”

In Andrews v. Sheehy, supra, the court quoted with approval from Alter v. Pickett, 24 La.Ann. 513 (1872) as follows:

“It is a well settled rule of jurisprudence, founded upon justice and common sense, that the absolute nullity of a judgment may be invoked before the tribunal where the attempt is made to enforce it, and by any person whose interests may be affected by the judgment.

In Bernard v. Vignaud, supra, the court said:

“Therefore, a judgment rendered against a person, without citing him in the ordinary manner, without his appearing, or any thing deemed by law equivalent to citation or appearance, is utterly void, and imports such absolute nullity, that anyone the least interested in opposing its effects may have such nullity pronounced.” (Emphasis supplied)

In determining whether appellants have a sufficient interest to seek the nullity of this judgment, we are persuaded by the court’s decision in Ludeau v. Jacob that although nullity may be invoked by any person who would be affected by the judgment, under the pleadings and facts of the case those appellants were not affected by the judgment and could not maintain their suit. We reach the same conclusion in the instant case.

Appellants claim to be affected by the judgment dismissing Champagne’s suit because it makes them vulnerable to Champagne’s malpractice suit against them. In order to assess this position, we must consider what Champagne must prove in order to prevail in his malpractice case. In Tassin v. Labranche, 365 So.2d 31 (La.App. 4th Cir. 1978) this court said:

“When a client sues an attorney for damages because of alleged mishandling of litigation, the client bears the burden of proving the neglect was the proximate cause of the client’s loss. It is incumbent upon the client to prove by a preponderance of the evidence, that except for negligence on the part of the attorney, the litigation would have resulted in a decision most favorable to him.”

Thus, in order for Champagne to prove his case against appellants he must show that except for negligence on the part of appellants the litigation would have resulted in a decision in his favor. The reason why Champagne has lost his case against Travelers up to now is because of his failure to reinstitute his own tort claim against Travelers. Nothing precluded him from refiling his suit after it was dismissed without prejudice, and indeed appellants offered to refile the suit in Champagne’s behalf at their expense. Thus, even if appellants were negligent in suffering Champagne’s case to be dismissed that dismissal was not the cause of Champagne’s loss of his suit, but rather his subsequent failure to reinsti-tute his suit.

Champagne contends, however, that appellants’ negligence consisted not only in their causing his suit to be dismissed but also in their failing to notify him of that dismissal requiring him to obtain other counsel who learned about the dismissal three years after it had taken place. Champagne contends that the lapse of time from the date of dismissal until the date that he was advised thereof made it impossible for him to successfully prosecute his case which arose out of an incident occurring in January, 1970. In other words, Champagne contends that had appellants notified him of the dismissal of his suit immediately after it occurred, in April, 1974, he would have been motivated to refile his suit because it was then possible for him to prosecute the suit successfully, but because he had no knowledge of the dismissal until March, 1977, he lost his ability to prosecute his case successfully because of the passage of time.

If this be the case appellants’ vulnerability to Champagne’s malpractice action dose not result from Champagne’s suit being dismissed in April, 1974, but rather appellants’ failure to make this known to Champagne before March, 1977. Thus, even if appellants succeeded in annulling the judgment of dismissal and reinstituting Champagne’s suit this would have no effect on Champagne’s cause of action based on the passage of time before he learned that his suit was dismissed. Under this theory, the nullity of the dismissal becomes moot and appellants have no interest in asserting this action of nullity.

Accordingly, the judgment maintaining the exception of no right of action and dismissing appellants’ suit is affirmed.

AFFIRMED.

CHEHARDY, J., dissented and assigned reasons.

CHEHARDY, Judge,

dissenting.

I dissent for two reasons. Appellants have stated a cause of action. As a matter of law appellants were not properly cited because any pleading filed subsequent to the original petition must be served through the sheriff if a court appearance is required. LSA-C.C.P. arts. 1311 through 1314. Additionally, appellants, in my opinion, do have a sufficient interest to seek the nullity of this judgment. I agree with the writer of the majority opinion that “The jurisprudence is of little assistance in solving the special problem before us * * *” but do not agree that the holding in Ludeau v. Jacob, 191 La. 427, 185 So. 458 (1938), is applicable to the case before us.

ON REHEARING

We granted rehearing in order to reconsider whether plaintiffs have a right of action to annul a judgment dismissing an earlier suit brought against Travelers Insurance Company by Joseph E. Champagne when represented by plaintiffs. From the facts and procedural posture of the case, as set forth in our original opinion, which we reiterate to that extent, it is clear that the success of Champagne’s malpractice action against the present plaintiffs depends at least to some extent on the validity of the judgment which dismissed his suit against Travelers.

The nullity of a judgment may be brought by any person who would be affected by the judgment. Ludeau v. Jacob, 191 La. 427, 185 So. 458 (1938), and cases cited therein. The nullity of a judgment may be invoked by any person whose interests may be affected by the judgment. Andrews v. Sheehy, 122 La. 464, 47 So. 771 (1908), Alter v. Pickett, 24 La. Annual 513 (1872). In Bernard v. Vignaud, 1 Mart., N.S., 1 (1823), the court said that “anyone the least interested in opposing [the judgment’s] effects may have such nullity pronounced.” Even though as a practical matter the nullity of the judgment may not affect the ultimate outcome of this case we are satisfied that plaintiffs are affected by the judgment and have at least some interest in having the judgment nullified, such as to confer on them a right of action.

Having reached this conclusion, we must now address the exception of no cause of action which was also maintained by the trial court. We have concluded that plaintiffs have a cause of action under the provisions of LSA C.C.P. Art. 2002(2) which provides that a final judgment shall be annulled if it is rendered

“against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;”

Champagne was the defendant in a rule to show cause why his case against Travelers should not be dismissed. Plaintiffs alleged that Champagne was served with no notice of the trial of that rule, yet his case was dismissed. We have concluded that the cited and partially quoted article does confer on plaintiffs a cause of action to annul that judgment dismissing Champagne’s suit.

We are also confronted in these proceedings with a motion by plaintiffs to re-cuse the trial judge, Honorable Thomas J. Malik on the ground that he would be a fact witness adverse to plaintiffs on the merits of the nullity action. Although it was unnecessary for us to address this issue in our original opinion it now becomes necessary to do so since the case will be remanded for trial.

The motion stemmed from the trial judge’s comments during the trial on the exceptions now on appeal in which he expressed his appreciation of disputed factual matters occurring in his court when Champagne’s suit was originally dismissed against Travelers and from the following statement Judge Malik incorporated into his “amended judgment on Exception” dismissing plaintiffs’ suit:

“The exception of no right or cause of action filed by defendant, JOSEPH E. CHAMPAGNE, is maintained. The judgment plaintiffs sought to annul in this action was properly rendered, following notice to plaintiffs pursuant to the rules of this Court. Also, prior to the judgment of dismissal complained of by plaintiff, this Court personally called and spoke with plaintiffs regarding their failure to appear at a hearing. Accordingly, adequate notice was furnished. Accordingly, defendant exceptor JOSEPH E. CHAMPAGNE is dismissed from plaintiff’s suit.” (Italics ours)

While the only issues before the court were the exceptions of no right or cause of action the trial judge erroneously directed his attention to the merits of the nullity action by considering whether Champagne had been properly served with the rule to show cause why his suit against Travelers should not be dismissed. At one point the judge stated that he called plaintiff Tanner on the telephone “looking for excuse as to why they were not present, and it was Mr. Tanner’s statement to me that they either lost track of their client or they had abandoned the suit.”

At another point in the trial on the exceptions the judge called the clerk of court to the witness stand and took some testimony from him with respect to the mailing of the rule against Champagne to plaintiffs.

The merits of the nullity suit are not before us, and the record containing the judgment sought to be annulled is not a part of the present record so that we do not express any opinion as to the sufficiency of service of the rule against Champagne under the provisions of C.C.P. Arts.1313 and 1314. However, it appears that the trial judge will consider notice by mailing and perhaps actual knowledge on the part of plaintiffs of the assignment for trial of the rule against Champagne to be relevant to plaintiffs’ case to annul the judgment on the rule. Under these circumstances the trial judge will be witness adverse to plaintiff on facts which he apparently deems significant and relevant. As a material witness in the cause he should be recused as its judge. C.C.P. Art. 151.

Accordingly, the judgment of December 19, 1978, amended on December 27, 1978, maintaining exceptions of Joseph E. Champagne and dismissing plaintiffs’ suit is reversed and set aside and there is judgment in favor of plaintiffs Wendell E. Tanner, Thomas A. Tassen and L. H. Olivier and against Joseph E. Champagne, overruling his exception of no right and no'cause of action.

The judgment of March 15, 1979, denying plaintiffs’ motion to recuse Honorable Thomas J. Malik is reversed and he is re-cused from this case.

The case is remanded to the district court for further proceedings. The costs of this appeal are taxed against Joseph E. Champagne and other costs are to await the outcome of this case.

REVERSED AND REMANDED.

      . This simply amended the judgment now on appeal to correct some technical errors.


author: CHIASSON, Judge.

text:
    Frank LISTER, et ux. v. TEXACO, INC., et al.
    No. 13450.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.
    Writ Refused Oct. 6, 1980.
    Macrino R. Trelles, Jr., Baton Rouge, for plaintiffs.
    John Blackwell, New Iberia, for Texaco, Inc. & American Motorists Ins. Co.
    Francis Emmett, New Orleans, for St. Paul Fire & Marine Ins. Co.
    Porteus R. Burke, New Iberia, for Commonwealth Ins. Co. & Berard Boats, Inc.
    Peter E. Duffy, Metairie, for La. Wildlife & Fish.
    J. Phil Haney, New Iberia, for Berard Boats, Inc. & Commonwealth.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is a claim for damages filed by plaintiffs-appellants, Frank and Alice Lister, against defendants-appellees, Berard Boats, Inc., the owner of the M/V Kathleen; Texaco, Inc., the charterer of the vessel at the time of the accident; and their insurers, St. Paul Fire & Marine Insurance Company, American Motorists Insurance Company and Commonwealth Insurance Company, for an accident occurring on navigable waters as a result of the alleged negligent operation of the crewboat Kathleen.

Appellants allege that Mrs. Alice Lister sustained injuries when she fell in their fifteen foot fishing boat; that the fall and injuries were caused by the failure of the Kathleen to slow down when it passed within twenty feet of their fishing boat; and that the resulting wake generated by the Kathleen caused their fishing boat to be tossed about, threw Alice to the deck of the boat and severely injured her.

After trial the jury returned a special verdict in favor of Berard Boats, Inc. and its insurer finding that the Kathleen was not involved in the accident.

The trial judge found in favor of Texaco, Inc. and its insurers holding that Texaco was not owner pro hac vice of the Kathleen.

On appeal appellants contend that the jury verdict is manifestly erroneous and not substantiated by a reasonable evaluation of the credibility of the evidence; that, even under Federal standards, the verdict is clearly erroneous because the jury committed error in weighing the credibility of the witnesses and the preponderance of the evidence; and that the trial court erred in applying the limited scope of review of fact as set forth in Benoit v. Fireman’s Fund Ins. Co., 361 So.2d 1332 (La.App. 3d Cir. 1978) in deciding appellants’ motion for a new trial.

In reasons for judgment on the motion for a new trial, the trial judge, Honorable Robert E. Johnson, thoroughly, exhaustively and in a most capable and accurate manner reviewed the conflicting evidence before the jury and correctly ruled as to the sufficiency of the evidence to justify the jury’s verdict. We approvingly quote therefrom and adopt as our findings the following:

“The testimony of one of the plaintiffs, Frank Lister, and that of his nephew stated that the ‘Kathleen’ was the boat that caused the wave-wash that resulted in the damages. The evidence shows that on this particular date, Texaco had two boats working, viz., the ‘Kathleen,’ and a smaller crew boat. Only the ‘Kathleen’ was owned by Berard Boats. The Texaco foreman who had charge of the boats is uncertain whether it was the Berard crew boat or the other smaller crew boat which was doing the work at around four o’clock that afternoon. The Texaco foreman’s best recollection is that it was the larger Berard boat. He was not at all sure, however. The captain of the Ber-ard boat, Elward Bourque, testified that he had left at about 12:00 or 1:00 PM, that day. He is unsure that he left the area; but, he recalls, according to his testimony, that he had quit operating boats around 12:00 or 1:00 PM. It was within the province of the jury to believe Bourque, if they chose, or to believe the plaintiff and his nephew if they chose. “Other evidence which the jury had before it is the evidence of the plaintiff, Frankie Lister. His testimony was that the ski boat they were in was no further away from the east bank of the Atchafa-laya, that is, the bank abutting Morgan City, than twenty-five feet from that bank. The testimony of the various witnesses who testified is that the Berwick bank of the Atchafalaya, that is, the west bank, is from one-half to three-quarters of a mile from the Morgan City side. This point, apparently, was of considerable importance to the jury. They came back into the courtroom and requested that Frank Lister’s testimony as to the distance his boat was from the east or Morgan City bank be repeated to them after they had been deliberating an hour or so already. By stipulation of counsel a passage from Lister’s deposition was read to the jury. In this passage, Lister stated that his small boat was within twenty-five feet of the Morgan City or east bank at the time the crew boat passed near the bass boat causing the wave action which resulted in Mrs. Lister being injured.
“The evidence shows that there is no logical, explainable reason why the Kathleen should have been that close to the east bank of the Atchafalaya. The river, as stated, is from one-half to three-quarters of a mile wide. The crew boat involved (whichever one it was) departed the west bank in Berwick to go south a few miles, and, thence, in a westerly direction to Texaco’s Bateman Lake Landing. There is no explainable reason, in the opinion of the Court, for the crewboat to have travelled all the way to the opposite or Morgan City side.
“Plaintiffs’ testimony is that the damages occurred while the crewboat was headed south. If we accept plaintiffs’ testimony as to his proximity to the east or Morgan City bank, then for the crew boat involved to have rocked plaintiffs’ boat, it would have had to go almost directly east, from one-half to three-quarters of a mile, drive alongside plaintiffs’ boat in a southerly direction, and then turn westerly and travel, from one-half to three-quarters of a mile, to get back near the westerly bank. This is where the crew boats path would, and should have been, if it had left Berwick and had gone by the shortest route to Texaco’s Bateman Lake Landing.
“Plaintiff’s counsel argues that the presence of a number of boats docked at the west bank, in Berwick, might explain the big detour the vessel is alleged to have taken in order to go to the east bank, or Morgan City side, and cause the damage. It is suggested that defendants’ boat took this course in order to avoid having to slow down while passing moored boats on the Berwick side.
“Defendants countered with evidence that boats were docked only for an area of approximately 1,000 feet on the west bank in Berwick. They argued that it would take a very short period of time for the crew boat to clear the area where the boats were docked (and where the crew boat would have to drive slowly). After this, the crew boat could open up, if desired.
“Considering plaintiffs’ testimony that he was within twenty-five feet of the east or Morgan City bank, it is most difficult for the Court to believe that the crew boat involved (whether Kathleen or otherwise) would have left the west bank; crossed across the Atchafalaya; and caused the injuries complained of herein. “Defendants suggest, and the evidence does bear out, that the Listers, in their bass boat, were fishing during the morning at an area near which the Kathleen was operating. The Kathleen was delivering crew members and cargo from the docks in Berwick to the Texaco Bateman
Landing. The latter area, the evidence shows, was the areas where the Listers were fishing in their boat. This, the defendants suggest, is how the Listers got the name of the crewboat.
“In addition to the foregoing, the jury had before it the testimony of the foreman for Texaco who had charge of directing the chores that the two crewboats were to perform. The evidence also discloses that the area of the Atchafalaya River, between Berwick and Morgan City, is an area that carries a great deal of water borne traffic. The defendants maintain that the crewboats working for Texaco had no business being anywhere in the area except along the Berwick side (which was the western bank of the At-chafalaya) in carrying out their duties. To have deviated and gone across to the eastern bank, where plaintiffs said the accident occurred, would have been a waste of time and fuel. The plaintiffs suggest that the driver of the Kathleen did this in order to go faster in the river. A consideration of the distances that would have had to be travelled to get to the east bank, and to get back to the west bank, would indicate to the Court that a deviation such as this was not logical or probable. In addition to this, we have Bourque’s testimony that he had tied up the Kathleen at or about noon that day. Bourque was the only operator of the Kathleen. As stated previously, the accident allegedly occurred about 4:00 P.M.
“The Court feels, after listening to the evidence which was presented to the jury herein, that this jury was faced with a difficult decision. In the Court’s opinion, the question of whether or not the plaintiffs had proven that Mrs. Lister’s injuries were caused by the Kathleen was a close one. The Court cannot say that the judgment appears clearly contrary to the law and the evidence. The Court cannot say that the interests of justice require that a new trial be had herein. If the Court were to be permitted use of the yard stick, ‘clearly wrong’, as set forth by the Supreme Court in, Arceneaux v. Domingue, 365 So.2d 1330, in evaluating the findings of the jury, this Court could not say that the jury’s findings were clearly wrong....”

We hold there are probative facts of record that reasonably support the jury’s finding and we find no manifest error.

No complaint is made by appellants in their brief as to the trial judge’s ruling that Texaco was not owner pro hac vice of the Kathleen. Further, our holding herein absolves all defendants of any liability and renders moot the correctness of said ruling.

As to our scope of review, the law seemingly requires application of the federal law. Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971) and Benoit v. Fireman’s Fund Ins. Co., supra. We do not need to decide this issue extensively briefed by appellants because we find that the judgment of the trial court withstands both the state test and the federal test.

For these reasons the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


author: SAMUEL, Judge. REDMANN, Judge,

text:
    Jerry L. KERR v. JEFFERSON TRUCK LINES, and Insurance Comp, of North America.
    No. 11169.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1980.
    Rehearing Denied Nov. 17, 1980.

      Gordon Hackman, Boutte, for plaintiff-appellant.
    McGlinchey, Stafford & Mintz, William F. Bologna, New Orleans, for defendants-ap-pellees.
    Before SAMUEL, REDMANN, and SAR-TAIN, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit, for total and permanent disability benefits under the Louisiana Workmen’s Compensation Act, against his employer and its compensation insurer. Defendants answered in the form of a general denial and filed an exception of prescription. Counsel for all litigants voluntarily submitted the exception for adjudication on memoranda filed by them. Following such submission, there was judgment maintaining the exception and dismissing plaintiff’s suit. Plaintiff has appealed.

Insofar as it is pertinent to the issue presented on appeal, the record consists only of the pleadings and memoranda in support of, and opposition to, the exception. The petition alleges plaintiff received injuries to his back and head caused by pipe falling off a truck and striking him while he was in the course and scope of his employment with defendant. The accident occurred on June 8, 1972 and plaintiff was paid compensation benefits from June 15, 1972 to July 27, 1972. The petition further alleges that as a result of those injuries plaintiff was hospitalized and in October, 1973 his physicians discovered he suffered disc injuries requiring surgery. The suit was filed April 19, 1974.

In this court appellant contends the matter has not prescribed because the October, 1973 hospitalization was a latent manifestation of the June, 1972 accident. Alternatively, appellant contends he should have been given an opportunity to amend his petition as provided by Code of Civil Procedure Article 934.

The applicable law, Revised Statute 23:1209, provided as follows:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have begun within two years from the date of the accident.” (Emphasis ours).

Relative to appellant’s first contention, our jurisprudence is that where the employee knows of the injury at the time of its occurrence and is aware that he has a valid compensation claim, a later medical diagnosis of disability, standing alone, does not cause the statutory one year prescription to begin to run at the time of such a diagnosis.

Here, appellant was aware of his injury at the time of its occurrence and in fact received compensation therefor. Because he claims his 1973 condition as diagnosed was a late development or manifestation of his 1972 injury, he had the right and obligation to offer evidence to prove that claim on the hearing of the exception of prescription and no such evidence was offered; as stated above, the exception was submitted on memoranda. Thus, the record is devoid of any evidence which would support a finding of delayed development or manifestation. The trial court judgment carries with it a presumption of correctness, our attention has not been called to any error therein, and we find none. Appellant’s first contention therefore is without merit.

Nor, for two reasons, do we find merit in appellant’s second contention. First, Code of Civil Procedure, Article 934 does state in pertinent part: “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” However, appellant has not pointed out to us with any degree of sufficient certainty how the objection of prescription may be removed by amendment of the petition. Second, and more important, as we have said above, appellant has had a full opportunity, as well as an obligation, to introduce evidence on the trial of the peremptory exception to controvert that exception. In our view, C.C.P. Art. 931 gives a plaintiff one opportunity, not two, to correct his petition when he is able to do so. Here, the appellant has had more than the equivalent of such an opportunity.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., dissents with written reasons.

REDMANN, Judge,

dissents, deeming this case controlled by Bolden v. Georgia Cas. & Sur. Co., La. 1978, 363 So.2d 419.

      . We note the 1975 amendment to R.S. 23:1209, which became effective September 1, 1975, is inapplicable in this case and, even if applicable, appears to make no change except in the case of partial disability which is not present here.

      . Hobley v. Phoenix of Hartford Insurance Company, La.App., 233 So.2d 589; Guillory v. Maryland Casualty Company, La.App., 227 So.2d 620.

      . LSA-C.C.P. Art. 931; Chin See Fun v. Louisville & N. R. Co., La.App., 344 So.2d 8; Calzavara v. Biehl and Company, La.App., 220 So.2d 552.