author: JOANOS, Judge.

text:
    HOBBS CONSTRUCTION AND DEVELOPMENT, INC., Appellant, v. PRESBYTERIAN HOMES OF the SYNOD OF FLORIDA and Leon County Health Facilities Authority, Appellees.
    No. AS-222.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1983.
    Bill R. Hutto, Panama City, for appellant.
    David A. Monaco of Cobb & Cole, P.A., Daytona Beach, for appellees.
   JOANOS, Judge.

In this interlocutory appeal, Hobbs Construction and Development, Inc. (Hobbs) contends the trial court erred in granting partial summary judgment to Presbyterian Homes of the Synod of Florida (Presbyterian Homes) and Leon County Health Facilities Authority (Leon County) on their counterclaim alleging Hobbs’ claim of lien to be fraudulent. We affirm.

Hobbs entered into a construction contract with Presbyterian Homes and Leon County to build a continuing care health facility, Westminster Oaks. The parties had a cost-plus contract with a guaranteed maximum price of $7,250,000.00 and provisions for changes in work with prior written approval by change orders. For purposes of this appeal, the parties adopt $7,268,-206.00 as the guaranteed maximum rate. Hobbs filed a claim of lien, with sworn support that the total value of work performed was $8,043,142.09, with an outstanding balance of $677,023.15. Presbyterian Homes and Leon County counterclaimed that the lien was fraudulent under § 713.-31, Fla.Stat. (1981).

The deposition of Hobbs’ chief engineer, Wenick, showed how Hobbs compiled the lien. Included were $150,524 for delays; $134,009 for additional field overhead expenses; $237,093 for overtime labor; $21,-441.63 for markup on overtime labor; and $1,139.24 as interest on a withheld payment at a 16.5% rate of interest.

Wenick revealed that the above amounts were not authorized by the contract and that they were not the subject of any change order or change order application.

The trial court found that Hobbs should not have included in the claim of lien the amounts not authorized by the contract or change orders; such inclusion amounting to a willful exaggeration, and therefore a fraudulent lien within the meaning of Section 713.31(2), Florida Statutes.

Section 713.31(2)(a), Florida Statutes (1981), provides that any mechanic’s lien in which the lienor has willfully exaggerated the amount or has compiled the claim with such willful and gross negligence as to amount to a willful exaggeration shall be deemed a fraudulent lien. The determination that a lien is fraudulent is a complete defense to enforcement of the lien. Section 713.31(2)(b), Fla.Stat. (1981).

A contractor, such as Hobbs, who complies with the provisions of the Florida Mechanics’ Liens Law, Chapter 713, Fla.Stat., has a lien on the improved real property for any money that is owed to him for labor, services, materials, or other items required by, or furnished in accordance with, the direct contract. Section 713.05, Fla.Stat. (1981). The “direct contract” is the agreement between owner and any other person for improving real property. Section 713.-01, Fla.Stat. (1981). Under subsection 713.-01(3) “contract price” is

the amount agreed upon by the contracting parties for performing all labor and services and furnishing all materials covered by their contract and shall be increased or diminished by the price of extras or change orders as herein defined, or by any amounts attributable to changes in the scope of the work or defects in workmanship or materials or any other breaches of the contract ...

As noted, the contract between Hobbs and Presbyterian Homes had a guaranteed maximum price. Under sections 9.1.7 and 9.1.8 of the contract, there is the provision that the cost of any item not specifically and expressly included in other parts of the contract, as well as costs in excess of the guaranteed maximum cost, would not be reimbursed. By the plain language of the contract, Hobbs knew that it would be paid a maximum amount as affected by change orders. Any claims exceeding the guaranteed maximum cost would need to be substantiated by valid change orders, changes in the scope of the work, defects in material or workmanship or breaches of the contract.

Hobbs argues that section 713.08(l)(c), Fla.Stat. (1981), would allow it to claim the “value” of its labor, services or materials, rather than be restricted to the contract price. This argument ignores section 713.-06(1), Fla.Stat. (1981), which provides that

[t]he total amount of all liens allowed under part I [Mechanics’ Liens] for furnishing labor, services, or material covered by any certain direct contract shall not exceed the amount of the price fixed by the direct contract ....

Hobbs further argues that it compiled the lien with particularity and if the lien is not recoverable under Chapter 713, then Hobbs would be accountable for a mistake of law, not an intentional wrong or gross negligence. Unfortunately the Mechanics’ Lien Law is not to be taken lightly as a tool to force improper payments from owners of improved property. “[0]ne of the purposes of the Mechanics’ Liens Law is to assure to the owner, in an arm’s length transaction, that so long as he complies in good faith with its provisions he will be able to construct a specific improvement on his property for a given contract price.” Miller v. Duke, 155 So.2d 627 (Fla.1963).

Hobbs included in its claim of lien those amounts which could not be justified by change orders or the terms of the contract. This supports the trial court’s determination of a willful exaggeration, resulting in an unenforceable fraudulent lien.

Accordingly, the trial court’s partial summary judgment is AFFIRMED.

WIGGINTON and ZEHMER, JJ., concur.


source: Caselaw Access Project

author: BOOTH, Judge.

license: Public Domain

text:
    CONWAY MEATS, INC., d/b/a Denver Beef, Appellant, v. ORANGE AVENUE PARTNERSHIP, Appellee.
    No. AO-332.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1983.

      Thomas J. Jones of Holland & Knight, Tallahassee, for appellant.
    Joseph R. Boyd and Michael L. Berry of Boyd & Smith, Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from orders denying a motion to dissolve a temporary restraining order, granting a motion to implead Conway Meats, Inc. (Conway), and denying the motion of Conway for a protective order. At issue is the sufficiency of appellee’s showing for the restraining order, impleader and discovery against Conway, and compliance with Florida Rule of Civil Procedure 1.610.

On June 4, 1982, appellee Orange Avenue Partnership (OAP) obtained a judgment for $11,267 against Beef Giant, Inc., d/b/a Beef City (Beef Giant), a company which had disappeared leaving no assets to satisfy the judgment. On August 24, OAP filed a motion for proceedings supplemental to execution and a motion for impleader of Conway, including an order enjoining Conway from disposing of its assets. On August 25, after a hearing on the motions, at which neither Beef Giant nor Conway was present, the trial court entered an order requiring Conway to show cause why it should not be joined and its property applied to satisfy OAP’s judgment against Beef Giant, and issued a temporary restraining order enjoining Conway from alienating or transferring any real or personal property.

Conway filed a motion to dissolve the temporary restraining order on the grounds that (1) the motion papers were facially insufficient under Florida Rule of Civil Procedure 1.610(b) in that there were no verified pleadings or affidavits showing immediate threat of irreparable injury, no written certification by OAP’s attorney of efforts to notify Conway, and no statement of reasons why notice should not be required; (2) the motions were not supported by a bond conditioned upon payment of costs and damages, as required by Rule 1.610(c); (3) OAP failed to allege or prove any of the four essential elements required by Florida law for granting injunctive relief; and (4) the allegations of the motion were insufficient and unsupported by any proof of facts to show that Conway ever had any transactions with or assets of Beef Giant. Conway’s motion to dissolve the temporary restraining order was denied.

On September 14, 1982, Conway filed a response to the order to show cause why it should not be impleaded and its property applied to OAP’s judgment against Beef Giant. This response included sworn affidavits by the president of Conway and Beef Giant, Bob Brueggemeyer, and the manager of Conway, Gene Scott, asserting that Conway and Beef Giant were corporate entities and that Conway had never acquired any assets or equipment owned by Beef Giant. Conway also filed a motion for a protective order to prevent the deposition of Brueggemeyer without a subpoena, since Conway alleged that Brueggemeyer was not a resident of Florida and that Conway had not yet been impleaded. On September 27, the trial court granted OAP’s motion to implead Conway and denied Conway’s motion for protective order as to Brueggemeyer’s deposition, directing that OAP could depose Brueggemeyer both as president of Conway and as president of Beef Giant.

At the time the motion to dissolve the temporary restraining order came on for hearing, appellee had presented no verified pleadings or affidavits alleging irreparable harm, nor had it shown that its remedy at law was inadequate. The evidence in this case was insufficient to support the extraordinary remedy of a temporary injunction, and the procedural requirements of Florida Rules of Civil Procedure 1.610 were not met, in that the order did not state the specific injury to be avoided, why such harm would be irreparable, or the reasons for granting the temporary restraining order without notice to appellant, nor was the bond conditioned for the payment of costs and damages sustained by appellant as required. For these reasons, the injunction must be reversed.

On the issue of impleader, this court in Robert B. Ehmann, Inc. v. Bergh, 363 So.2d 613 (Fla. 1st DCA 1978), sets out the procedures to be followed in determining whether to implead a third party as a defendant in supplementary proceedings in aid of execution of judgment. It is the responsibility of the party seeking the supplementary proceedings to have the trial court follow the Ehmann procedures, which include an examination of the judgment creditor, who should establish a prima facie case, by testimony under oath, that the proposed third party defendant holds assets subject to its claim. If the examination of the judgment creditor establishes the judgment creditor’s claim to property in the hands of a third party, the trial court should then issue an order to show cause setting forth the findings of specific assets or transactions to which the third party can respond in writing prior to further hearings. In the instant case, the only ultimate facts both alleged and proved in OAP’s motion to implead Conway were that OAP had an unsatisfied judgment against Beef Giant and that Beef Giant and Conway had the same officers, shareholders, and resident agents. OAP’s accusation that certain unspecified assets were transferred from Beef Giant to Conway was not substantiated by evidence in the record. The order granting OAP’s motion to implead is reversed.

We must also reverse the order denying Conway’s motion for a protective order since Conway was not properly implead-ed. Contrary to appellant’s assertions, its president can be required to appear in Florida for deposition if he is properly implead-ed. However, since we find that Conway was not properly impleaded, Mr. Brueggem-eyer cannot be required to travel to Florida for a deposition as president of Conway Meats, Inc. This holding does not foreclose appellee’s right to depose Mr. Brueggemeyer as president of Beef Giant, Inc., the judgment debtor, or to properly move for impleader, based upon sufficiently supported factual allegations, in the future.

The cause is reversed and remanded for proceedings consistent herein.

MILLS and SHIVERS, JJ., concur.

      . See, Oxford International Bank and Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54 (Fla. 3d DCA 1979).


author: LARRY G. SMITH, Judge.

text:
    Gregory L. BALL, Appellant, v. Candace H. BALL, Appellee.
    No. AR-230.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1983.
    Gene T. Moss, Moss & Edwards, Jacksonville, for appellant.
    Roy E. Dezern, Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

The sole issue meriting discussion on this appeal is whether the trial court properly adjudged appellant in contempt of court for failure to pay certain obligations specified in the final judgment of dissolution. We reverse.

We hold that the contempt order, insofar as it relates to the husband’s non-payment of the debts payable to American National Bank and to Visa, was improperly entered. First, the order is fundamentally defective in that it fails to contain an affirmative finding of appellee’s present ability to pay, or willful failure to do so, or that he previously had the ability to comply with the judgment but divested himself of that ability through his fault or neglect designed to frustrate the intent and purposes of the judgment. Andrews v. Walton, 428 So.2d 663 (Fla.1983); Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Carlyle v. Carlyle, 438 So.2d 176 (Fla. 1st DCA 1983) opinion filed September 22, 1983; Robbins v. Robbins, 429 So.2d 424, 430 (Fla. 3rd DCA 1983).

Secondly, the judgment provisions calling for payment of the bank and Visa debts cannot be enforced by contempt. The facts are that before the dissolution, the husband borrowed $28,000.00 from Barnett Bank for business purposes. Stocks and bonds owned solely by the wife, acquired by inheritance from her family, were pledged as collateral. The judgment ordered the husband to pay this note and secure the release of the wife’s securities. The husband was also ordered to pay the current balance owed on the Visa account, and to save the wife harmless. After the divorce the husband made a payment of approximately $14,000.00 (part of the purchase price for the pre-divorce sale of his business) on the Barnett note. Subsequently, also after the divorce, the parties borrowed $15,000.00 from American National Bank to pay off the Barnett Bank note, and the wife’s securities were again pledged to secure this new loan. The husband either failed to pay the Visa account, or incurred additional charges which were unpaid, resulting in a claim for payment being made against the wife.

These debts which the final judgment ordered the husband to pay were not connected in any way to his duty to provide child support or alimony to the wife. We find that the circumstances here rule out the use of the contempt power to enforce payment. State ex rel. Cahn v. Mason, 148 Fla. 264, 4 So.2d 255 (Fla.1941); Woods v. Butler, 418 So.2d 295 (Fla. 3rd DCA 1982); Schminkey v. Schminkey, 400 So.2d 121 (Fla. 4th DCA 1981); Chapman v. Lamm, 388 So.2d 1048 (Fla. 3rd DCA 1980); State ex rel. Reno v. Richardson, 348 So.2d 62 (Fla. 1st DCA 1977); Corbin v. Etheridge, 296 So.2d 59 (Fla. 1st DCA 1974).

Appellee contends, however, that she waived any claim for alimony in reliance upon the husband’s agreement and the final judgment requiring him to pay these obligations. The stipulation between the parties, upon which the final judgment was based, contained a provision whereby each party waived any other claims for money, support, or maintenance from the other. The final judgment contains no reference to these waiver agreements, nor is support or alimony mentioned in any manner. We note that in Schminkey, supra, where the court reversed a contempt order for nonpayment of a bank loan, another provision of the final judgment requiring the conveyance of real property was expressly stated to be “in lieu of alimony.” 400 So.2d at 121. In a footnote the court indicated that where a requirement to pay a debt to a third party is “a form of alimony or family support,” it may be enforced by contempt. Id. at 122. Although the court did not articulate its reason for pointing to the provision with respect to the real property transfer, one may infer that the court found the absence of an express “in lieu of alimony” reference with respect to the bank loan (where such a provision appeared with reference to the real property transfer) as indicative of an intent that it was not to be so considered.

From our review of the cases it appears necessary to look to the circumstances of the particular debt under consideration, as well as the specific provisions of the judgment itself, in order to determine the character of the obligation as one for alimony or family support, or a settlement of property or financial obligations. Here, the provision requiring the husband to pay the bank loan and secure the release of the wife’s stock had little effect other than to memorialize and make certain the fact that the entire bank debt was to be considered the sole obligation of the husband after the divorce, and that the stocks and securities were to remain solely owned by the wife and be restored to her when the loan was paid. We are unable to accept the implication, advanced by appellee, that by making this agreement for restoring the wife’s securities to her the parties considered that payment of the loan to the bank would be considered as in the nature of alimony to the wife. The evidence is unrefuted that the loan proceeds were used in the husband’s business ventures, as to which the husband retained sole ownership. Further, it is clear from the record that the husband had made an agreement for sale of a business venture before the divorce, but had not received payment of the full purchase price. It is also apparent that the husband was relying upon proceeds from sale of the business to pay the bank loan (a part payment was so applied, as above stated), but this plan was thwarted by the buyer’s subsequent default and bankruptcy.

We conclude that in the absence of evidence to indicate otherwise, the bank loan payment provision must be viewed as a part of the adjustment of the parties’ property and financial matters, unconnected with family support obligations, and must fall into the category of a property settlement agreement. We thus distinguish this case from Zuccarello v. Zuccarello, 429 So.2d 68 (Fla. 3rd DCA 1983), and Brisco v. Brisco, 355 So.2d 506 (Fla. 2nd DCA 1978). In Zuccarello, although the stipulation incorporated in the final judgment recited that the wife waived all alimony claimed, the husband’s undertaking to pay her $20,000.00 in 120 monthly installments was held “not a mere debt,” but that it rather served “to discharge an obligation to support” the wife. 429 So.2d at 69. The payment of this obligation was therefore held enforceable by contempt. In Brisco, an alimony award was found subject to modification (by reduction of the amount payable) because the agreement upon which the final judgment depended was found by the court not to be “a pure property settlement agreement not subject to modification.” 355 So.2d at 508. Cf. Pujals v. Pujals, 414 So.2d 228 (Fla. 3rd DCA 1982), characterizing a judgment provision (based on agreement) giving the wife the right to occupy the marital home with the parties’ minor son until the home was sold as “no more than an aspect of child support.” 414 So.2d at 230. By contrast, there is nothing in the circumstances of the present case to indicate that the order requiring payment of the loan and restoration of the wife’s property to her could properly have been subject to modification, notwithstanding a provision of the final judgment purporting to reserve jurisdiction for modification purposes.

In view of our reversal of the finding of contempt for non-payment of the bank loan and Visa account, the amount of attorney’s fees awarded to appellee’s attorney must be reconsidered by the trial court. The attorney’s fee award is therefore reversed, as to the amount, and the court may enter such further order as may be appropriate after notice and hearing.

AFFIRMED in part and REVERSED in part, and REMANDED for further proceedings.

WENTWORTH and JOANOS, JJ., concur.

      . It is, therefore, unnecessary for us to consider whether the parties’ post dissolution substitution of the American National Bank obligation for the Barnett Bank obligation was a novation sufficient to discharge the original obligation. See generally, Sans Souci v. Division of Florida Land, etc., 421 So.2d 623 (Fla. 1st DCA 1982).

      . See, Zuccarello v. Zuccarello, supra, in which the court found the purposes and effect of the payment provision itself controlling, rather than an express waiver of alimony provision. Applying similar reasoning, we conclude that the reservation of jurisdiction for modification here was effective only as to those particular provisions subject to modification, and could not have the effect of subjecting the property settlement provisions between the parties to redetermination by the trial court so as to convert such provisions into obligations for payment of alimony. See, McEachin v. McEachin, 154 So.2d 894 (Fla. 1st DCA 1963).


author: PER CURIAM. WENTWORTH, Judge,

text:
    Dieter Gunther PROTZ, Appellant, v. Donna Ruth Zetrouer PROTZ, Appellee.
    No. AR-296.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1983.
    Allison E. Folds of Watson, Folds, Stead-ham, Stroull, Christmann & Brashear, Gainesville, for appellant.
    Paul G. Wright of Anderson & Wright, Gainesville, for appellee.
   PER CURIAM.

AFFIRMED.

LARRY G. SMITH and JOANOS, JJ., concur.

WENTWORTH, J., dissents with written opinion.

WENTWORTH, Judge,

dissenting.

I would reverse and require consideration of the husband’s motion filed within 120 days after the judgment of dissolution in this case. The judgment expressly provided that its reservation of jurisdiction over certain issues “shall become null and void” after 120 days “[sjhould neither party petition the Court for the determination of such issues:”

... it is ordered .... That the Court retains jurisdiction of this cause ... to determine the following issues for a period of 120 days following the entry of the Judgment .... Should neither party petition the Court for the determination of such issues thereafter such issues shall be deemed to have been waived and this provision shall become null and void: ... (e.s.)

Ordinary rules of construction clearly permitted the parties to read the judgment in a way that gave meaning to all of its terms in relation to others, in a way that did not nullify the specific proviso which conditioned the 120-day lapse on the absence of petition by either party. This case is simply not comparable to those in which the period of reserved jurisdiction is not so defined. Locke v. Locke, 383 So.2d 273 (Fla. 3d DCA 1980). There appears to me to be no issue presented as to the trial court’s general authority to reserve jurisdiction, or to its authority to define that reservation in terms that permit completion of the exercise of jurisdiction over an authorized motion filed within the stated time.


author: PER CURIAM.

text:
    Conway BROCK a/k/a C.C. Brock and Margaret Zebedee Brock, Appellants, v. C. BROCK a/k/a Cad Brock, Appellee.
    No. AR-326.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1983.
    Bonnie K. Roberts, Bonifay, for appellants.

      William K. Jennings, Fort Walton Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Osborn v. King, 194 So.2d 912 (Fla. 2d DCA 1967) and Bittner v. Walsh, 132 So.2d 799 (Fla. 1st DCA 1961).

MILLS, THOMPSON and WIGGINTON, JJ., concur.


text:
    Glenn L. POHLMAN, M.D.; Vinod D. Deshmukh, M.D.; Jacksonville Neurological Clinic, P.A.; Joseph J. Lowenthal, M.D.; Lowenthal & Puestow, P.A.; Melvin Greer, M.D.; Edward Valenstein, M.D.; David Yocum, M.D.; and Florida Physicians Insurance Reciprocal, Appellants, v. John E. MATHEWS and Gwendolyn G. Mathews, his wife, Appellees.
    No. AR-398.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1983.
    John F. Corrigan and Lori E. Terens of Ulmer, Murchison, Ashby, Taylor & Corri-gan, Jacksonville, for appellants Joseph J. Lowenthal, M.D., Lowenthal & Puestow, P.A. and Florida Physicians Insurance Reciprocal.
    Pattillo & McKeever, Ocala, for appellants Glenn L. Pohlman, M.D., Vinod D. Deshmukh, M.D., Jacksonville Physicians Insurance Reciprocal.
    R.J. Beckham of Beckham & McAliley, Jacksonville, for appellees.
   JOANOS, Judge.

In this medical malpractice action, the appellants, Dr. Pohlman and others (“the physicians”), prevailed and therefore sought to recover approximately $384,684.00 in attorneys’ fees from the Mathews pursuant to Section 768.56, Florida Statutes. The Mathews moved the lower court to declare Section 768.56 unconstitutional as denying equal protection of the laws, due process of law, and access to the courts in violation of Article I, Section 21 of the Florida Constitution. The circuit judge found the provision ' unconstitutional for the reasons urged, noting in her order that counsel had agreed to limit consideration to the facial constitutionality of Section 768.56, without considering the validity of the section as applied.

On appeal, the physicians contend the provision is not facially unconstitutional as it does not violate equal protection or due process or deny access to the courts. With regard to the equal protection and due process questions, the physicians argue the proper standard of review is the rational basis test, under which the statute is valid if it or the classifications it creates bears a reasonable relationship to a legitimate legislative objective. They assert Section 768.-56 bears a reasonable relationship to the legitimate purpose of protecting the availability of health care services to Floridians in the wake of the medical malpractice insurance crisis. As to the question of denying access to the courts, appellants argue the provision does not result in the abolition of a statutory or common law right of action without providing an adequate alternative, thus there has been no denial of access to the courts. The Mathews argue that the proper standard of review of the equal pro-tectional challenge is strict scrutiny because a fundamental right — that of access to the courts — is involved. They argue alternatively that even applying the rational basis test, the provision and the resulting classifications do not bear a reasonable relationship to the legislative purpose. Further, they contend the provision has such a “chilling effect” as to effectively abrogate the right to sue, thus it denies access to the courts.

With regard to the claims that the provision violates equal protection and due process, we agree with the physicians and with the recent Fourth District case to which we have been referred, Florida Medical Center, Inc. v. Von Stetina, 436 So.2d 1022 (Fla. 4th DCA 1983), that the rational basis test applies and that the distinction drawn between medical malpractice litigants and other tort litigants bears a reasonable relationship to a legitimate government purpose. As noted in Von Stetina, the Florida Supreme Court has previously approved this distinction in dealing with other sections of the Medical Malpractice Act, see for example Pinillos v. Cedars of Lebanon Hospital Corp., 403 So.2d 365 (Fla.1981). We conclude that Section 768.56 does not violate equal protection. Nor does it infringe on due process, because the provision for attorney’s fees to the prevailing party bears a reasonable relationship to the legislative objective. See also Davis v. North Shore Hospital, (Fla. 3d DCA 1983) [8 FLW 2488] and Young v. Altenhaus, (Fla. 3d DCA 1983) [8 FLW 2489],

The test for determining whether there has been a violation of Article I, Section 21, Florida Constitution, was set forth in Kluger v. White, 281 So.2d 1 (Fla.1973):

Where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the right of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

We conclude that the assessment of fees to the prevailing party does not abrogate the right to sue and does not deny access to the courts even though we recognize that it may affect the decision to bring a lawsuit.

Therefore we reverse the lower court’s determination that Section 768.56 on its face unconstitutionally denies equal protection, due process, and access to the courts. We do think, however, that the case presents a question of great public importance and therefore certify to the Florida Supreme Court the following question:

DOES SECTION 768.56, FLA.STAT. VIOLATE CONSTITUTIONAL GUARANTEES OF EQUAL PROTECTION, DUE PROCESS, OR ACCESS TO THE COURTS?

REVERSED AND REMANDED for further proceedings in light of this opinion.

LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    Kenneth W. SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. AT-184.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1983.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Tuff v. State, 408 So.2d 724 (Fla. 1st DCA 1982).

ERVIN, C.J., JOANOS, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


author: MILLS, Judge. ZEHMER, Judge,

text:
    William J. McCOMBES, Appellant, v. Kay L. McCOMBES, Appellee.
    No. AQ-121.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1983.

      Joel M. Cohen, Pensacola, for appellant.
    No Appearance for appellee.
   MILLS, Judge.

In this appeal from the contempt order entered against him below, the former husband contends that he was not subject to being held in contempt by the trial court and, alternatively, that the trial court failed to make sufficient findings on the issue of his ability to pay. We agree with this latter contention and vacate the order of contempt.

The parties to this appeal were divorced on 2 November 1979. In the final judgment of dissolution, the former wife was awarded the marital home as lump sum alimony. Subsequent to the final judgment, however, the parties entered into an agreement, ratified by the trial court, whereby the former wife was to receive $21,000 as lump sum alimony in lieu of the lump sum award made in the final judgment. This $21,000 was to be paid by the former husband in biweekly installments of $150 each. The former wife filed a motion for contempt after he fell behind on these installment obligations.

In its order of contempt, the trial court found: (1) that the former husband failed to meet his obligations during the period from 1 June 1981 through 31 December 1981; (2) that he had the ability to pay during this time period; (3) that for this period he was in arrears in the amount of $1,500; and (4) that he had no ability to pay from 31 December through the date of the hearing on 7 October 1982. The trial court found the former husband to be in willful contempt for failure to pay the $1,500 and ordered his incarceration for 30 days unless he payed the arrearage within six months of the hearing date.

The former husband contends that the post-judgment agreement which the parties entered into was in fact a property settlement agreement which is not enforceable by contempt. We agree that property settlement agreements are not enforceable by contempt. Howell v. Howell, 207 So.2d 507 (Fla. 2d DCA 1968); Carlin v. Carlin, 310 So.2d 403 (Fla. 4th DCA 1975). However, we cannot agree that this post-judgment agreement was a property settlement agreement.

The trial court here made an award of the marital home to the former wife as lump sum alimony. The post-judgment agreement merely changed the form of that award, substituting an award of $21,000, payable in installments, for the award of the marital home. The award of lump sum alimony was not thereby converted into a “property settlement agreement.” Thus, the trial court could properly enforce its award of lump sum alimony by way of a contempt proceeding.

However, the contempt order here is defective because the trial court failed to make an affirmative finding that the former husband had the present ability to pay and willfully refused to do so. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Ponder v. Ponder, 438 So.2d 541 (Fla. 1st DCA 1983). A finding that the contemnor formerly had the ability to pay is insufficient.

Accordingly, the order of contempt is vacated.

SHIVERS, J., concurs.

ZEHMER, J., concurs in part and dissents in part with opinion.

ZEHMER, Judge,

concurring in part, dissenting in part.

I fully concur in the majority opinion that the order of contempt must be reversed and vacated because of the trial court’s failure to find that the husband had the ability to pay. I dissent from the majority’s conclusion that the provision for lump-sum alimony in the postjudgment agreement is enforceable by civil contempt. The majority has, in my view, misconceived the correct rule of law applicable to this latter issue and has failed to apply the correct rule of law.

The majority opinion is based in part on the erroneous assumption that the award of the marital home as lump-sum alimony was not for purposes of equitable distribution of marital property but as alimony in the nature of support and, thus, enforceable by contempt. It is perfectly clear that an award of the marital home as “lump-sum” alimony can legally effect an equitable property distribution. The final judgment made explicit support provisions requiring the husband to pay rehabilitative alimony and child support, and reserved jurisdiction “to award either further temporary or permanent alimony as may be appropriate.” The final judgment also made explicit provisions for property settlement; it awarded the marital home to the wife, provided that the adjacent vacant lot should be held by the parties “as a joint tenancy,” and declined to award the wife any interest in certain corporate stock owned by the husband. Contrary to the majority, I would treat the award of the home to the wife as equitable property distribution.

Regardless of the purpose for awarding the marital home as lump-sum alimony, however, the postjudgment agreement must be treated under the law as a final property settlement agreement not enforceable by contempt. There is no basis in law or fact for the conclusion that the husband’s postjudgment agreement to pay $21,000 lump-sum alimony in installments “merely changed the form” of the earlier award and “was not thereby converted into a ‘property settlement agreement,’ ” as stated in the majority opinion at page 3. No legal authority is cited to support this novel holding, and it is directly contrary to the manifest purpose of the agreement, as shown by undisputed evidence in the record and applicable Florida decisions.

In a postjudgment order entered May 2, 1980, which recited that “the parties have entered into an agreement concerning the disposition of the marital horns, temporary custody of the minor children of the parties, and certain marital debts of the parties,” the circuit court ratified and confirmed the postjudgment agreement here involved and made it an order of the court. That agreement, dated April 3, 1980, recites that the agreement was made by the parties because the final judgment “dissolved the marriage between these parties and purported to settle their respective property interest ” (emphasis supplied) and “the [wjife was awarded the former marital home as lump-sum alimony but is finding it difficult, if not impossible, to either maintain said former marital home or to sell it.” The agreement then provides, in part, that the parties have mutually agreed that:

1. In lieu of the lump sum alimony awarded in the above-referenced final decree, the Wife shall accept the sum of Twenty One Thousand Dollars ($21,-000.00) as lump sum alimony. Said sum shall be paid in bi-monthly installments of One Hundred Fifty Dollars ($150.00) each on the first and fifteenth days of each month (said payment to include principle and interest), commencing the 1st day of April, 1980, for a period of forty eight (48) months, with the final payment of principle and interest then due on the forty ninth (49th) month, interest to be incurred at the annual rate of ten percent (10%). The former marital home of the parties which was awarded to the Wife as lump sum alimony shall be conveyed by the Wife to the Husband ....
As security for the indebtedness, the Husband agrees to execute a mortgage concurrent with the signing of the deed, encumbering for said indebtedness the property conveyed herewith and in addition, all and singular his stock contained in Scuby Subs, Incorporated. The indebtedness provided for herein may be paid off at any time without penalty and all collateral shall be released.
3. Except as contained herein, each party hereby irrevocably waives any right, claim or alimony, each from the other, (emphasis supplied.)

What could be a more classic property settlement agreement? The husband, having previously conveyed the marital home to the wife pursuant to the final judgment of dissolution, agreed to pay her $21,000 for the home and release of her marital rights to any further alimony, the stated sum to be evidenced by a note secured by the home and other property and payable, with interest, in bimonthly installments. Unlike traditional alimony provisions for support, the husband’s obligation to make these periodic payments does not terminate upon his or the wife’s death; neither does it terminate upon the wife’s remarriage. The court did not retain jurisdiction to modify or amend future alimony provisions, lump-sum or otherwise. In addition, the parties irrevocably waived and terminated any other right or claim to further alimony — a well-recognized expression settling marital property rights. The agreement clearly created a fixed debt evidenced by a note payable without qualification or condition in exchange for complete settlement of the wife’s marital property rights.

Not only does the document itself clearly evidence the parties intent to make a final “property settlement agreement,” but the wife so testified and the trial judge so characterized it. The wife, in answer to questions about the postjudgment agreement, testified:

Q. And in that agreement, you agreed to take this mortgage and note in lieu of lump sum alimony; is that right, as part of your property settlement?
A. Yes, and part of it was supposed to be fifty-two shares of the business, also I believe if he failed to make payment.
Q. All right. Well, this was your property settlement then or part of your property settlement with Mr. McCombs; is that right?
A. Yes.

Consistent with the wife’s testimony, the trial judge also recognized that this was a property settlement agreement, but in disregard thereof impermissibly attempted to import into the post judgment agreement the enforcement provisions from the original final judgment:

THE COURT: I think I’m going to have to consider it, it’s a property settlement agreement, of course, but in the terms of it the former marital home which was awarded the wife as lump sum alimony shall be conveyed by iif- wife to the husband which was in, exchanging the alimony over to the home, but it still says in the final judgment that it is to be complied with in all respects, (emphasis supplied.)

In Underwood v. Underwood, supra, the Court stated, 64 So.2d at 288:

At the very outset we dispose of the legal effect of the use of the word ‘alimony’ in the agreement and decree. It is not what it is called but what it is that fixes its legal status. It is the substance and not the form which is controlling. In the case of International Trust Co. v. Liebhardt, 111 Colo. 208, 139 P.2d 264, 147 A.L.R. 700, the court held that the use of the word alimony was not conclusive and that it was substance and not form which guided the court. So far as agreements of the kind under consideration is concerned, where periodic payments are to be made the wife for the period of her life and is not limited to the joint lives of the parties, the legal effect of such payments are that they constitute property settlements and not alimony. By its very nature, alimony is limited to the lifetime of the husband. See Spear v. Spear, 158 Md. 672, 149 A. 468, from which we quote with approval in Vance v. Vance, supra; Emerson v. Emerson, 120 Md. 584, 87 A. 1033; Newbold v. Newbold, 133 Md. 170, 104 A. 366; Dickey v. Dickey, 154 Md. 675, 141 A. 387, 58 A.L.R. 634; North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A.L.R. 1061.
The plain language of the agreement itself is wholly inconsistent with the idea that the financial arrangements are alimony.

To like effect is Howell v. Howell, 164 So.2d 231 (Fla. 2d DCA 1964).

Accordingly, use of the term “lump-sum alimony” in the postjudgment agreement does not negate the parties’ creation of a legally valid and binding property settlement. Alimony, in the true sense, means “nourishment” and “sustenance.” Fort v. Fort, 90 So.2d 313, 315 (Fla.1956). Because of public necessity that dependents be supported, the contempt power of the court may be used in this sense only to enforce payment of alimony. Cobb v. Cobb, 399 So.2d 479 (Fla. 1st DCA 1981). The husband’s agreement to pay a lump sum in periodic payments in exchange for the wife’s relinquishment of valuable property rights such as support alimony are usually treated as a property settlement even though called “alimony” in the agreement. Underwood v. Underwood, 64 So.2d 281 (Fla.1953). Such a property settlement is not enforceable by contempt. Carlin v. Carlin, 310 So.2d 403 (Fla. 4th DCA 1975); Burke v. Burke, 336 So.2d 1237, 1238 (Fla. 4th DCA 1976). To do so violates the constitutional prohibition that “no person shall be imprisoned for debt.” Fla. Const., Art. 1, § 11; Burke v. Burke, supra.

Believing that the majority has misconceived the applicable rules of law and reached a legal conclusion in conflict with the cited cases on the same question of law, I dissent.

      . Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

      . Underwood v. Underwood, 64 So.2d 281 (Fla.1953); Howell v. Howell, 164 So.2d 231 (Fla. 2d DCA 1964).


author: THOMPSON, Judge.

text:
    Colleen Wadsworth THOMPSON & Allstate Insurance Company, Appellants, v. Lois Preston FUNNY & Johnny Funny, Appellees.
    No. AR-109.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1983.

      S. Thompson Tygart, Jr., Jacksonville, for appellants.
    Gerald R. Power, Jacksonville, for appel-lees.
   THOMPSON, Judge.

This is an appeal from an order granting a new trial in a personal injury action. Appellants contend the order granting a new trial should be reversed because it was based on the trial court’s erroneous conclusion that certain jury instructions should not have been given. We reverse.

Appellees, Lois and Johnny Funny, filed a complaint against appellants, Colleen Thompson and her insurer, Allstate Insurance Company, for damages they allegedly sustained as the result of a collision between an automobile driven by Lois Funny and an automobile driven by Colleen Thompson. The complaint alleged the action was not subject to the tort exemptions of § 627.737, Fla.Stat. in that Lois Funny “sustained a permanent injury within a reasonable degree of medical probability.” At the charge conference appellants were permitted, over appellees’ objection, to add the language “other than scarring or disfigurement” to the language “a permanent injury based on reasonable medical probability,” which appeared in appellants’ written requested jury instructions. Accordingly, the jury instructions and verdict tracked the language of § 627.737(2)(b), Fla.Stat., which lists as one of the no-fault thresholds “[permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.” The jury found that as a result of the instant accident Lois Funny did not receive a permanent injury, within a reasonable degree of medical probability, other than scarring or disfigurement.

The trial court granted appellees’ motion for new trial. The trial court reasoned that in light of Dr. Todd’s testimony, which indicated Lois Funny had scarring in her muscle tissue as a result of the accident, the jury could have easily been misled to appel-lees’ prejudice by the addition of the language “other than scarring or disfigurement.” The trial court concluded that although the language in question is contained in § 627.737(2)(b), it should not have been included in the instructions. We disagree. The language “other than scarring or disfigurement” is included in the applicable statute, is borne out by the evidence, and was not misleading. Accordingly, the addition of this language was proper and was not grounds for a new trial.

The order granting a new trial is reversed and the case is remanded to the trial court to enter judgment in favor of the appellants.

MILLS and WIGGINTON, JJ., concur.


text:
    Roy Lee WHITE, Appellant, v. FULFORD FOREST PRODUCTS and Professional Administrators, Inc., Appellees.
    No. AR-443.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1983.

      Jean A. Bice of Pattillo & McKever, P.A., Ocala, for appellant.
    Charles Vocelle of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, P.A., Lake City, for appellees.
   PER CURIAM.

The deputy commissioner’s order is affirmed because there is competent, substantial evidence in the record to support his finding that claimant did not suffer an injury arising out of and in the course of his employment. We disagree, however, with the deputy’s finding that claimant’s claim was barred by the doctrine of Martin Co. v. Carpenter, 132 So.2d 400 (Fla.1961). There is no competent substantial evidence in the record to show that claimant intentionally misrepresented his physical condition when applying for the job of fish camp manager.

AFFIRMED.

WENTWORTH, NIMMONS and ZEH-MER, JJ., concur.


text:
    David HALL, Appellant, v. STATE of Florida, Appellee.
    No. AS-7.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1983.

      R. Larry Morris of Emmanuel, Sheppard & Condon, Pensacola, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

In this appeal, we are asked to determine whether the statutory presumption of impairment contained in Section 316.1934, Florida Statutes (Supp.1982), impermissibly shifts the burden of proof to a defendant to prove his innocence and whether, under the facts of this case, a violation of the rule in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), has occurred. We find no error and affirm Hall’s conviction for driving under the influence of alcoholic beverages in violation of Section 316.-193, Florida Statutes (Supp.1982).

After his car was observed weaving along a public road, Hall was stopped and arrested for driving under the influence of alcoholic beverages. Deputy Bodry of the Es-cambia County Sheriff’s Department read Hall his Miranda rights at the scene of the arrest. Approximately one hour and twenty minutes after the arrest, another officer asked Hall a series of questions contained in a questionnaire known as the Alcoholic Influence Report. He did not advise Hall of his Miranda rights again before asking these questions. At the conclusion of this series of questions, the officer administered an intoxilyzer test. The results showed that Hall had a blood alcohol level of 0.14%.

At trial, the jury was given the following charge in accordance with the Florida Standard Jury Instructions in Misdemeanor Cases:

If you find from the evidence . .. [t]hat the defendant had .10% or more by weight of alcohol in his blood, it is prima facie evidence that the defendant was under the influence of alcoholic beverages to the extent that his normal faculties were impaired.

Hall contends that this instruction shifted the burden of proof to him to prove his innocence. We disagree. In State v. Kahler, 232 So.2d 166, 168 (Fla.1970), it was held:

Criminal acts declaring one fact prima facie evidence or presumption of another are frequent. Their purpose is not to relieve the State of the burden of proof, but to allow the establishment of a prima facie case. Constitutional guarantees are not violated as long as there is a rational connection between the fact proven and the ultimate fact presumed and reasonable opportunity is afforded to rebut the presumption.

There is a rational connection here between the fact proven (that Hall’s blood alcohol level was 0.14%) and the ultimate fact presumed (that Hall was under the influence of alcoholic beverages to the extent that his normal faculties were impaired). Moreover, it is clear that Hall was not denied an opportunity to rebut the State’s prima facie case. Section 316.-1934(2)(c), Florida Statutes (Supp.1982).

Nor did the trial court err in admitting into evidence Hall’s responses to the questions contained in the Alcoholic Influence Report. It was unnecessary to read-vise Hall of his Miranda rights when he had just been advised of them such a short time before. State v. Williams, 386 So.2d 27 (Fla. 2d DCA 1980).

AFFIRMED.

SHIVERS, J., concurs.

ZEHMER, J., concurs specially with an opinion.

ZEHMER, Judge,

concurring specially.

I concur in the affirmance of Hall’s conviction, partly for reasons not stated in the majority opinion. I agree with the majority that the Florida standard jury instruction objected to by Hall did not impermissi-bly shift to him the burden of proving his innocence. The burden does not shift under the jury instruction which states that evidence of .10% or more blood alcohol content is “prima facie evidence” of being under the influence because the instruction does not create a conclusive presumption to that effect.

The trial court, however, read to the jury the entire standard jury instruction on chemical tests, which follows:

If you find from the evidence:
1. That the defendant had .05% or less by weight of alcohol in his blood, he is presumed not to be under the influence of alcoholic beverages to the extent his normal faculties are impaired. F.S. 322.-262(2)(a).
You may disregard this presumption if it has been rebutted by other evidence.
2. That the defendant had in excess of .05% but less than .10% by weight of alcohol in his blood, there is no presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that his normal faculties were impaired.
Such fact, however, may be considered with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent his normal faculties were impaired. F.S. 322.262(2)(b).
3. That the defendant had .10% or more by weight of alcohol in his blood, it is prima facie evidence that the defendant was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. F.S. 322.262(2)(c).

No explanation of the legal meaning or effect of the term “prima facie evidence” was given. Since the instruction had explained to the jury that it could “disregard” the presumption in paragraph 1, “if it has been rebutted by other evidence,” and that it could consider the evidence of .05% up to .10% blood alcohol content by weight with other competent evidence in determining if defendant was under the influence, the failure to explain the meaning and effect of the instruction that blood alcohol content measuring .10% or more is “prima facie evidence” of influence might well have suggested to the jury that such evidence was, in fact, conclusive proof of guilt that could not be rebutted by other evidence consistent with innocence. Judges and lawyers know, or should know, what “prima facie evidence” means, but I think it is asking too much to expect the average juror to know without some explanation. For this reason, I believe this standard jury instruction in criminal cases should be modified or amended to explain to the jury what legal effect it should give to “prima facie evidence” in order to avoid misleading the jury, which could result in serious prejudicial error.

In this case, Hall did not request any modification or amendment of the instruction, which is his burden. The sole basis of his objection was the untenable ground on which we affirm. The evidence in the record before us was sufficient to support a finding of guilt without regard to the blood test. Accordingly, I concur in affirmance because this appellant has failed to carry the burden of showing reversible error.

      . Even Florida Standard Jury Instruction No. 4.11, in civil cases regarding violation of traffic regulations as evidence of negligence, defines what is meant by the term “evidence of negligence,” in contrast to civil instruction 4.9, which states that violation of a nontraffic penal statute is negligence (formerly referred to as negligence per se).

      . 32 Fla.Jur., Trial, §§ 142-144.


author: SHIVERS, Judge.

text:
    James HURD and Earnest Hurd, Appellants, v. STATE of Florida, Appellee.
    No. AS-106.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1983.

      Leo A. Thomas, of Levin, Warfield, Mid-dlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellants.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Brothers James and Earnest Hurd appeal their convictions and sentences for grand theft. We agree with appellant James Hurd that the trial court erred in failing to grant his motion for judgment of acquittal. We also agree with appellants that no waiver of jury trial appears in the record. Therefore, we reverse and remand.

Earnest Hurd was charged in Count I of an information with theft of a color television valued between $100 and $20,000. James Hurd was charged in Count II of the information with theft of two rifles valued between $100 and $20,000. Appellants were tried before the court without a jury on January 21,1983. No written or oral waiver of a jury trial appears in the record. The evidence adduced at trial, viewed in a light most favorable to the State, shows that Edward Turner burglarized a trailer in Pensacola, Florida, stealing a jar of change, two rifles, a box of ammunition, and a color TV. Shortly thereafter, he placed the stolen merchandise in bushes close by and told his friend Culliver about the merchandise and its location. Turner asked Culliver to find someone to buy the merchandise. Later that night, Culliver came back with a friend who was driving an El Camino. Turner identified Culliver’s friend, the man driving the El Camino, as Earnest Hurd. The El Camino drove around the block one time with its lights out before returning to the spot where the stolen goods were secreted. Turner and Culliver loaded the stolen goods into the El Camino while Earnest Hurd remained in the driver’s seat. After-wards, they went to Earnest Hurd’s house where Turner sold the TV to Earnest Hurd and the rifles to James Hurd. The TV was sold for $35 and both rifles for $22.

The trial court denied motions for judgment of acquittal made by each appellant at the close of the State’s case and after all the evidence. The trial court found both appellants guilty as charged. James Hurd was sentenced to one year probation, and Earnest Hurd was sentenced to two years probation.

The trial court erred in denying the motion for judgment of acquittal as to James Hurd. The evidence, taken in a light most favorable to the State, shows only that Turner sold James Hurd two rifles for $22. This evidence is insufficient to support a conviction for grand theft. There is no evidence from which guilty knowledge on the part of James Hurd can be inferred. Specific intent is an element of the crime of grand theft under Section 812.014, Florida Statutes (1981). State v. Allen, 362 So.2d 10 (Fla.1978). The circumstantial evidence sub judice is insufficient to exclude a reasonable hypothesis of innocence in regard to James Hurd’s intent. Cf. Stuckey v. State, 414 So.2d 1160 (Fla. 3d DCA 1982); Cellman v. State, 371 So.2d 181 (Fla. 3d DCA 1979); McWatters v. State, 375 So.2d 624 (Fla. 4th DCA 1979).

The trial court also erred in conducting the trial without a jury. No waiver of the right to a jury trial appears in the record. A defendant’s knowing, voluntary, and intelligent waiver of jury trial must affirmatively appear in the record. Johnson v. State, 411 So.2d 1023 (Fla. 2d DCA 1982); Viggiani v. State, 390 So.2d 147 (Fla. 3d DCA 1980); Powers v. State, 370 So.2d 854 (Fla. 3d DCA), cert. denied, 379 So.2d 209 (Fla.1979); Tosta v. State, 352 So.2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So.2d 885 (Fla.1978). Appellee’s contention that appellants waived a jury trial in the instant case because defense counsel announced preparedness for trial and did not object when the nonjury trial commenced is without merit. In Tosta, the defense counsel not only announced preparedness for trial but affirmatively informed the court that the defendants desired a nonjury trial. As in the instant case, in Tosta no inquiry was made of the defendant, nor did he sign a written waiver of his right to a jury trial. Speaking for the court, Chief Judge Alderman (now Chief Justice) stated:

We do hold, however, under the circumstances of this case, where there was no written waiver by the defendant and nothing in the record to show the defendant’s concurrence in his counsel’s waiver, or that he understood what was meant by waiver of a jury trial, that there was no valid waiver.

352 So.2d at 527. Accordingly, appellants’ convictions are reversed and sentences vacated. This cause is remanded for a new trial for appellant Earnest Hurd and with directions to discharge appellant James Hurd.

REVERSED and REMANDED.

MILLS and ZEHMER, JJ., concur.


text:
    NEW SOUTH INVESTMENTS, INC., Appellant, v. Albert I. HAIMES and Harold B. Haimowitz, Appellees.
    No. AS-150.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1983.
    John F. Callender of Turner, Ford & Cal-lender, Jacksonville, for appellant.
    Ellis E. Neder, Jacksonville, for appellees.
   PER CURIAM.

New South Investments, Inc. appeals an order dismissing, with prejudice, its second amended complaint for a real estate broker’s commission. We reverse.

The second amended complaint for a real estate broker’s commission sufficiently alleges a cause of action as required by Rule 1.110(b), Fla.R.Civ.P. Accordingly, the order of dismissal is reversed and the cause is remanded for proceedings consistent with this opinion.

MILLS, THOMPSON and WIGGINTON, JJ., concur.


author: DIXON, Chief Justice.

text:
    CAMERON TELEPHONE COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION and Southern Message Service, Inc. GULF CENTRAL INTERNATIONAL, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION and Kaplan Telephone Company, Inc.
    No. 83-CA-0037.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    Rehearings Denied Dec. 9, 1983.

      Carlos G. Spaht, Kantrow, Spaht, Weaver & Walter, Baton Rouge, for defendant-appellant.
    Patrick A. Juneau, Jr., Voorhies & Labbe, Lafayette, for plaintiff-appellant.
    Ashton R. Hardy, James P. Popham, Joan C. Wetzel, Fawer, Brian, Hardy & Zatzkis, New Orleans, for intervenor-appellant.
    Marshall B. Brinkley, Tom F. Phillips, Lytle C. Turnely, James L. Ellis, Baton Rouge, Guy Holdridge, Crawford, St. Am-ant & Holdridge, Gonzales, Stenn Alexander, for defendants-appellees.
    Glenn W. Alexander, Jerry G. Jones, Jones, Jones & Alexander, Cameron, for plaintiff-appellee.
    William R. Boles, Jr., Boles & Mounger, Monroe, for intervenor-appellee.
   DIXON, Chief Justice.

This appeal from the Nineteenth Judicial District Court is to review two rulings of the Louisiana Public Service Commission.

1. Background

A brief review of the “land mobile communications” business and technology is necessary to understand the rulings of the commission and the positions of the parties in this case.

Telephone service is normally provided by direct wire connection between the subscriber and the telephone company. The telephone company operates telephone exchanges which allow connections to be made between subscribers. Connections are also made between exchanges to allow subscribers access to other telephone subscribers throughout the world. Such telephone companies are called “land line telephone carriers.”

The direct wire connection may be replaced with radio communication, allowing the subscriber to have a mobile telephone with two-way communication with the telephone company. Alternatively, the subscriber could arrange for one-way communication from the telephone company to a “beeper” which may allow voice communication in addition to the beep tone. Mobile telephone service and radio paging are forms of “land mobile communications.”

Land mobile communications can be provided by both land line telephone companies and by independent companies known as “radio common carriers” which are in turn connected to the land line telephone company. Though land line telephone companies and radio common carriers operate on different ranges of radio frequencies assigned by the Federal Communications Commission, the service provided to the customer is essentially the same.

With one-way (paging) service the subscriber desiring to contact the subscriber wearing the beeper calls the designated number for the particular beeper. The call is routed to the telephone company’s transmitter (in the case where the land line company provides the service) or to the radio common carrier’s transmitter (in the case where the radio common carrier provides the service) and the signal is sent. If the beeper is within the range of the transmitter, the signal is received. The process is essentially the same for mobile radio service, except that the call can originate from mobile telephones and sustained communication is achieved.

2. Regulation

While the FCC licenses the use of specific frequencies for land mobile communication operators, regulation of market entry, service and rates has been left to the states. In Louisiana, the land mobile communications industry is regulated by the Louisiana Public Service Commission.

Article 4, § 21 of the Louisiana Constitution of 1974 provides for a public service commission which:

“... shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law.”

Telephone companies are public utilities under the jurisdiction of the Louisiana Public Service Commission. See South Central Bell Telephone Co. v. Louisiana Public Service Commission, 352 So.2d 999 (La.1977); R.S. 45:1161, 1164. Telephone companies are also subject to the provisions of R.S. Title 45, Ch. 8 (45:781 et seq.)

Telephone service in Louisiana is served in some areas by South Central Bell, one of the Bell Operating Companies owned by AT & T, and in other areas by various independent telephone companies. Telephone companies are granted exclusive franchises to provide services within their assigned territories and therefore do not compete with one another for customers.

The public service commission regulates radio common carriers under the provisions of R.S. Title 45, Ch. 12 (45:1500 et seq.).

“The Louisiana Public Service Commission shall exercise over and in relation to radio common carriers the powers conferred by this Chapter.” R.S. 45:1500.

Radio common carrier is defined in 45:1501(C):

“The term ‘radio common carriers’ when used in this Chapter includes every corporation, company, association, partnership and persons and lessees, trustees, or receivers, appointed by any court whatsoever owning, operating or managing a radio common carrier or public ‘for hire’ radio service engaged in the business of providing a service of radio communications between mobile and base stations, between mobile and land stations, including land line telephone, between mobile stations or between land stations, but not engaged in the business of providing a public land line message telephone service or a public message telegraph service.” (Emphasis added).

R.S. 45:1501(D) continues:

“Notwithstanding any provisions or R.S. 45:781 through 45:790 [telephones and telegraphs] inclusive, or any provision of this Chapter, the term ‘radio common carrier' as used in this Chapter shall not be construed to mean a company operating under the provisions of Title 45, Chapter 8, of the Louisiana Revised Statutes, and no such radio common carrier shall have any of the powers, rights or duties provided for and prescribed by said Title 45, Chapter 8.” (Emphasis added).

R.S. 45:1502 provides that rates and service shall be just, reasonable and not unduly preferential, and that the public service commission has the authority to issue rules, regulations and orders to govern rates and service.

R.S. 45:1503 requires a radio common carrier to obtain a certificate of public convenience and necessity before beginning operations in a new area (except for expanding an adjacent area not served by another radio common carrier). A radio common carrier holding a certificate is protected from competition from other radio common carriers by R.S. 45:1503(C):

“The commission shall not grant a certificate for a proposed radio common carrier operation or extension thereof which will be in competition with or duplication of any other radio common carrier unless it shall first determine that the existing service is inadequate to meet the reasonable needs of the public and that the person operating the same is unable to or refuses or neglects after hearing on reasonable notice to provide reasonable adequate service.”

Because land line telephone companies are specifically excluded from the provisions of the radio common carrier statute, the commission has not required land line telephone companies to request a certificate of public convenience and necessity to construct or operate land mobile communication facilities within their geographical area. However, the commission had indicated that where a land line telephone company seeks to operate land mobile communications equipment outside of its geographical area (for example, a south Louisiana telephone company intending to offer radio services in north Louisiana), a certificate from the commission would be required. See Order No. U-13727-A, James D. and Larry D. Garvey, d/b/a Radiofone v. Lafourche Telephone Company, April 19,1979.

Neither of these two interpretations of the exclusion of land line telephone companies from the radio common carrier statute is challenged in this appeal. Rather, in the two orders presented for review, the land line telephone companies’ transmitters, located within their geographical areas, have effective ranges which extend beyond the borders of the companies’ land line service areas. It is the competition for customers outside the land line service area that prompted the complaints to the public service commission.

3. The commission’s orders

A. Southern Message Service, Inc. v. Cameron Telephone Company.

On December 26, 1979 Southern Message Service, Inc., a radio common carrier holding a certificate for the Lake Charles Area, filed a complaint with the commission alleging that Cameron Telephone Company, a land line telephone company serving areas of Cameron and Calcasieu Parishes (but not Lake Charles or Sulphur, which are served by South Central Bell), “has plans in progress for the constructing of a transmitter for a one way paging radio telephone service at Carlyss, Louisiana, in Calcasieu Parish which will provide a radio telephone paging service in the Lake Charles and Sul-phur area to customers outside its wire area and in the area which plaintiff has a Certificate of Public Convenience and Necessity to serve.” Cameron answered the complaint admitting that it had applied to the FCC for a construction permit to build transmitting facilities at Carlyss, “the location of which facilities is wholly within the service area authorized by [the public service commission]. Cameron Telephone Company intends to operate this paging system from its authorized service area and to provide service to the public within the radius of its service capabilities.” The transmitter was planned for the 200 foot tower already existing at Carlyss.

The complaint was assigned Docket No. U-14506 and notice of the hearing was sent to the parties and published in the Louisiana Public Service Commission Official Bulletin No. 170, February 15, 1980 styled “In re: Alleged encroachment into territory served by complainant by constructing a radio transmitter at Carlyss, La., that will provide radio paging service into Lake Charles and Sulphur, La.” A hearing was held, and the commission thereafter issued Order No. U-14506 which read in part:

It is the opinion of the Commission that Cameron is a public land line telephone company as stated In LRS 45:1501 C and D and under this statute, is not required to seek a certificate of public convenience and necessity to construct facilities within its exchange service area. It appears that the construction of an antenna at Carlyss will create competition to SMSI in a land line telephone company area presently assigned to South Central Bell Telephone Company at Lake Charles and Sulphur. It is therefore
ORDERED that the respondent discontinue activities to provide radio common carrier services in territory outside of the geographical limits of its land line telephone system and that the respondent be notified that it may file application for a radio common carrier certificate pursuant to the provisions of LRS 45:1500, et seq.”

Cameron Telephone requested and was granted a rehearing. The commission amended its Order No. U-14506 in Order No. U-14506-A:

On rehearing, the Commission sustained the complaint of Southern Message Service, Inc. as it relates to a land line telephone company providing radio common carrier or paging service outside the geographical limits of its service area with the provision that land line telephone companies may provide radio common carrier and paging service to any person residing or domiciled within the geographical limits of the land line telephone company service area or subscribing to land line telephone service from the telephone company providing the radio common carrier or paging service without having received a certificate of public convenience and necessity from the Commission. It is therefore
ORDERED that the complaint be sustained with the stipulation quoted above.”

Cameron Telephone was thereby permitted to construct its transmitting facilities at Carlyss, but it was limited to serving its land line customers or persons residing or domiciled within the land line area unless it received a certificate from the commission. Unsatisfied with the amended order, Cameron Telephone Company filed a petition to set aside the commission’s order sustaining the complaint of Southern Message Service, Inc.

B. Gulf Central International, Inc. v. Kaplan Telephone Company

On April 21, 1980, after the commission had issued Order No. U-14506, Gulf Central International, Inc., the holder of a radio common carrier certificate for Abbeville, Louisiana, filed a complaint with the commission alleging that Kaplan Telephone Company was conducting radio common carrier services beyond its land line area. Kaplan answered the complaint, stating that its transmitter was located in the center of Kaplan and served customers both inside and outside the land line boundary, but that those outside the Kaplan area had to make a toll call to use the service. Ka-plan contended it did not solicit customers outside its area and that it would be difficult to police users to determine if they were in or out of the boundary.

The complaint was assigned Docket No. U-14645 and notice of hearing was published in the Official Bulletin No. 201, April 24, 1981 styled: “In re: Alleged operation of radio common carrier services outside authorized land line telephone area.” After a hearing, the commission issued Order No. U-14645. In the order, the commission reviewed its previous orders concerning territorial disputes between land line telephone companies and radio common carriers in which it had limited telephone companies to operating facilities only within their land line boundaries and to serving only customers residing or domiciled within those boundaries or subscribing to their telephone service.

The commission then considered the statements it had made in its previous orders that a land line telephone company would have to seek a certificate of public convenience and necessity in order to provide services outside of its service area:

The definition of ‘radio common carrier’ in R.S. 45:1501-C excludes businesses providing a public land line telephone message service, or a public message telegraph service. Because of this exclusion, the Legislature apparently did not intend for telephone companies to obtain a certificate from the Commission in order to provide radio telephone communications in conjunction with their land line telephone operators. We do not believe, however, and so reaffirm our previous decision, that such exclusion would apply to facilities of a land line telephone company constructed outside its service area, or within its service area but at a location remote from an exchange office and on the periphery of its land line telephone system wherein the radio transmission facilities could not reasonably be presumed to have been designed to serve principally its land line telephone subscribers.”

The commission determined that the land line boundary was not the appropriate standard for defining the service area of a radio-telephone system operated in conjunction with a land line telephone system, since radio waves could not be restricted to geographical boundaries.

It is, therefore, the conclusion of the Commission that the location of the radio transmitting tower effectively establishes the service area of the radio-telephone communications system operated by a land line telephone company, and that such services may be provided to any subscriber who believes that the effective range of the transmission will meet his needs. Since the radio-telephone communications are an integral part of the land line telephone system, the transmitting tower should be located at an exchange office or in close proximity thereto. Under these circumstances, such radio-telephone communications by a land line telephone company is exempt under the Radio Common Carrier law. These restrictions should provide adequate protection for the radio common carrier from an unwarranted intrusion into territory previously certificated to the radio common carrier by the Commission.”

The order further stated that existing towers in operation were “grandfathered”, but new or additional services would have to comply with the requirements of the order or be covered by a certificate from the commission.

Cameron Telephone moved in the district court to remand its case to the commission for further proceedings consistent with the commission’s order in Kaplan. The commission amended its Order No. U-14506-A to conform to its Order No. U-14645. Southern Message Service, Inc. and Gulf Central International, Inc. appealed their respective orders to the district court where the cases were consolidated. The Louisiana Telephone Association and East Ascension Telephone Company intervened, uniting with defendants, and Radiofone, Inc., a radio common carrier, intervened, joining with plaintiffs. In written reasons, the district court found the commission’s orders were proper regulation of land line telephone companies and were not made in an arbitrary, capricious or abusive manner. From this decision plaintiffs sought a devolutive appeal to this court.

4. Issues on appeal

Each of the three plaintiffs raises the issue of the commission’s interpretation of the radio common carrier statute (R.S. 45:1500 et seq.) which allows land line telephone companies to provide radio services to customers outside their geographic land line areas. In addition, these applicants raise various issues relating to the manner in which the commission’s orders were issued, including lack of adequate notice of the commission’s change of policy and the denial of equal protection created by a dual standard applicable to telephone companies and radio common carriers. Finally, Southern Message Service, Inc. contends the commission deprived it of procedural due process of law in amending Order No. U — 14506 after remand from the district court without providing notice or opportunity for Southern Message to be heard.

5. Merits

We take up first Southern Message Service, Inc.’s contention that it was deprived of procedural due process by the failure of the commission to conduct a hearing after remand of the Cameron Telephone order from the district court. The commission had held hearings on the complaint filed by Southern Message both after the complaint had been originally filed and after the commission granted Cameron Telephone’s request for a rehearing. The litigants had the opportunity at both hearings to present whatever evidence they felt appropriate. There is no contention that due process had been violated up to this point.

After the case had been taken to the district court, the commission issued its order in the Kaplan Telephone case, reversing its position in the Cameron case. Cameron Telephone, plaintiff in the district court suit, moved to remand the case to the commission for further consideration in light of the commission’s Kaplan decision, which was granted by the district court after hearing. Without a hearing before the commission, the commission amended its previous order in the Cameron case.

In support of its position, Southern Message relies on jurisprudence wherein administrative actions taken without the opportunity for a hearing were found to violate procedural due process. Tafaro’s Investment Co., Inc. v. Division of Housing Improvement, 261 La. 183, 259 So.2d 57 (1972) (no hearing afforded property owner prior to making repairs to bring building up to code standards and placing lien on property for such costs); Parker v. Board of Barber Examiners, 84 So.2d 80 (La.App.1955) (disapproval of plaintiff’s school without hearing); Vaughan v. Housing Authority of New Orleans, 80 So.2d 561 (La.App.1955) (heirs not made party to suit could not be deprived of ownership rights acquired upon death of deceased).

We find these authorities inapplicable to Southern Message’s situation. It was afforded two full hearings on its complaint to the commission. In remanding the case to the commission, the district court acted in a manner analogous to that required where new evidence is introduced in the district court. R.S. 45:1194 provides for remand to the commission of the transcript of any new evidence taken in the district court. Thereafter the commission has fifteen days in which to consider the evidence and it may alter, modify, amend or rescind its previous decision. R.S. 45:1195 provides that if the commission changes its decision, the “amended order shall take the place of the original order complained of and judgment shall be rendered thereon [by the district court], as though made by the commission in the first instance.” See White v. Louisiana Public Service Commission, 259 La. 363, 250 So.2d 368 (1971).

The district court did not remand the present case due to any deficiency in the record. Rather, the court was informed of the commission’s subsequent Order No. U— 14645 and remanded the matter “for further proceedings and orders consistent” with that decision. Neither the above mentioned revised statutes nor the district court’s order requires a hearing be held by the commission after a remand. Furthermore, the United States Supreme Court in Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 374, 59 S.Ct. 301, 307, 83 L.Ed. 221 (1939), reviewing a remand order of the Court of Appeals, indicated that the consequences of the remand order would depend on the purpose for the remand and the state of the record:

“Such a remand does not dismiss or terminate the administrative proceeding. If findings are lacking which may properly be made upon the evidence already received, the court does not require the evidence to be reheard.... If further evidence is necessary and available to supply the basis for findings on material points, that evidence may be taken.... ”

No additional findings of fact were required of the commission because of the district court’s remand, as a complete record had been made in the prior hearings. It was therefore within the commission’s discretion to rely on the existing record in reconsidering its order in light of its position in the Kaplan case. We find no abuse of the commission’s discretion or denial of due process in the procedure followed subsequent to the remand order.

All three plaintiffs raise the issue of the commission’s interpretation of the radio common carrier statute, R.S. 45:1500 et seq. Plaintiffs contend that the statute, by excluding land line telephone companies from its scope, prohibits land line telephone companies from operating radio common carrier services outside their land line areas, regardless of the location of the transmitting equipment. They argue that when the legislature passed the statute in 1968, it was with the knowledge that land line companies were not permitted to serve anyone other than their telephone customers, and, with that understanding, there was no need for such companies to apply for certificates from the commission. They contend that the legislative intent in providing for the commission to issue certificates was to avoid duplication and waste of resources, as evidenced by the requirement of showing inadequate service before a certificate would issue. Allowing telephone companies to compete for customers outside their areas without having to make such a showing, it is argued, is contrary to the legislative intent.

The telephone companies and the commission argue that the commission’s interpretation of the radio common carrier statute’s exemption of land line telephone companies from its scope is reasonable and consistent with the legislative purpose in exempting those companies. They argue that the legislative intent was to allow land line companies to provide the full range of telephone services, including radio services, to its customers without any barriers to market entry. To ensure that the radio services provided are designed to serve essentially the telephone companies’ customers, the commission has required towers to be located at or near exchange offices. The public interest is then served by allowing anyone who feels the range of the transmitter meets his needs to make use of the service.

Under the settled jurisprudence of this court, the decisions of the commission are to be accorded great weight and are not to be disturbed unless found to be clearly erroneous, unsupported by the evidence, or an abuse of power. Southern Message Service, Inc. v. Louisiana Public Service Commission, 426 So.2d 606 (La.1983); Monochem v. Louisiana Public Service Commission, 253 La. 1047, 221 So.2d 504 (1969). The decision required of the commission in these complaints involves complex matters having far-reaching effects on the radio communications industry, which it is mandated to regulate in the public interest. Where the special expertise of the commission is called into play, the courts should act slowly in substituting their own views for those of the expert body. Monochem v. Louisiana Public Service Commission, supra.

Plaintiffs’ arguments that the passage of the radio common carrier statute with its exemption for land line telephone companies prohibited land line companies from offering radio service beyond their boundaries is not supported by a reading of the statute. The statute on its face deals only with radio common carriers. It does not limit in any way the operations of land line telephone companies. However, the commission has not accepted the statute as completely exempting land line telephone companies. Rather, the commission has interpreted the statute as exempting land line companies from the certification requirements only when the company is dealing essentially with its own customers, that is, when operating facilities within its geographical boundaries. This view has been consistently held by the commission, as conceded by all parties to this litigation. This interpretation is a reasonable one, since where a land line telephone company seeks to operate outside its boundaries, it is no longer advancing the public policy of providing a full range of communications services to its customers. Therefore, the public policy evident in the radio common carrier statute against unnecessary competition and duplication of services supersedes the literal exemption granted to land line telephone companies. For this same reason, the commission has required that land line companies’ transmitting towers may not be located at the edge of the land line boundary without certification. By limiting the location of uncertified towers, the commission has sought to provide adequate protection for a radio common carrier serving the area outside that land line company’s boundaries.

The change in the commission’s interpretation and application has come in the identity of those whom the land line telephone company is authorized to serve without certification. In the initial Cameron order, as amended on rehearing, the commission limited Cameron Telephone Company to serving only its customers or persons residing or domiciled in the land line area. The commission included no such limitation in its Kaplan order.

Gulf Central International, Inc., the complainant in the Kaplan case, attempted to show that Kaplan had used an Abbeville answering service and foreign exchange lines in connection with its paging services to eliminate toll calls for those using the pager service, and that pagers were being distributed out of that agency. Proof of these allegations was insufficient. Kaplan Telephone Company readily admitted, however, that it was providing paging services to customers residing outside the land line area. Kaplan’s president testified:

“My intent, sir, is to serve as a telephone company any request we are authorized to serve. We are not authorized to refuse service to anyone within whatever the government — under our regulations. If somebody walks into my office, and they want service, and we have it available or we are authorized to give them service, we’re not supposed to refuse them. That has been the ruling of the Commission for years, the Public Service Commission.”

The commission also heard testimony from several of Kaplan’s beeper customers who did not live in the land line area. A welder testified that he did 90% of the welding work for the Kaplan area farmers, and that they had to use his beeper number to get in touch with him when they needed him. Representatives of a contractor and two trucking companies testified that they used Kaplan beepers to reach their employees while they are in the Kaplan area.

The commission therefore had before it evidence to support its conclusion that the public interest is served by allowing those who feel the range of the transmitter suits their needs to be permitted to make use of Kaplan Telephone Company’s paging services. Each of the witnesses called by Kaplan testified that his business would be adversely affected if he were not permitted to utilize Kaplan’s service. The commission has not acted arbitrarily in allowing other than land line customers to use land line company paging services. See Southern Message Service, Inc. v. Louisiana Public Service Commission, supra; Louisiana Power & Light Co. v. Louisiana Public Service Commission, 358 So.2d 623 (La.1978).

Plaintiff Radiofone’s argument that the orders of the commission violate equal protection of the laws is without merit. Radiofone insists that since a radio common carrier is required to obtain a certificate to serve the same area that a land line company may serve without a certificate, it is deprived of constitutional guarantees. The radio common carrier statute’s entry requirements are applicable only to radio common carriers, and are applicable only when entry is sought into a geographic area already served by another radio common carrier. Whether the local land line telephone company is providing radio services in the area is irrelevant in determining whether services provided by radio common carriers are presently adequate. Likewise, a land line telephone company may, under the restrictions included in the commission’s orders, serve an area outside their boundaries regardless of whether a radio common carrier has been certified to serve that same area.

Radiofone relies on Frost v. Corporation Commission of Oklahoma, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483 (1929), in which an Oklahoma provision requiring corporations to secure a certificate of public necessity before being permitted to operate a cotton gin but exempting collective farmer associations from showing such a public need was found to violate equal protection. The court found that the only distinction between the two types of organizations was the form of the business, which was not related to the purpose of the legislation, and was therefore not sufficient to support the different treatment accorded them. In this case, though radio communications provided by radio common carriers and land line telephone companies are essentially the same, there are real and substantial differences between the two types of companies. In enacting the radio common carrier statute, the legislature was careful about maintaining the distinction between them, both by excluding land line companies from the statute and in providing that “no such radio common carrier shall have any of the powers, rights or duties provided for and prescribed by said Title 45, Chapter 8.” R.S. 45:1501(D). Frost v. Corporation Commission, supra is clearly distinguishable.

Whenever there is less than full competition for customers, there will be differences in the treatment of market competitors. Plaintiffs have not borne their burden of showing the differences here are of constitutional proportions.

Having rejected plaintiffs’ arguments that the orders of the commission in the Kaplan and Cameron cases are invalid, we now turn to plaintiffs’ contentions that the orders should be vacated because the procedure employed by the commission in adopting the rule expressed in the orders did not properly protect the rights of radio common carriers and the general public. Plaintiffs suggest the rule should have been considered by the commission only after a full hearing on the issue following notice to those whose rights would be affected.

Louisiana Constitution article 4, § 21(B) provides that the commission “. .. shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties ...” Our task on review is to consider the “reasonableness” of the commission’s procedure. See Louisiana Consumers’ League v. Louisiana Public Service Commission, 351 So.2d 128 (La.1977).

Radiofone contends that the reversal of the established practice of the commission of limiting land line telephone companies to their geographical areas should not have been made in the format of an adjudicatory hearing. Rather, it is suggested that the commission should have followed its own Rule 47 which provides for formal public hearings where the commission finds that procedure appropriate. Failure to conduct such a hearing, it is argued, constitutes an abuse of the commission’s discretion.

We are not persuaded that the commission in fact had a long standing established practice of limiting land line telephone companies to serving only their own customers with radio services. The prior rulings cited by Radiofone deal with the use of facilities outside the land line area. Only in the Cameron and Kaplan cases was the issue whether nonsubscribers could be served by facilities within the geographical boundaries of the land line telephone companies. As to the form of the commission’s procedure, there is no requirement that the public service commission develop rules governing the subjects under its jurisdiction through formal rule making rather than on a case by case basis. The variety of possible situations, as evidenced by the radio common carrier industry itself, often requires the more flexible procedure utilized by the commission in regulating this industry. The commission is in the best position, having regular contact with the subjects and problems in the industries under its jurisdiction, to determine the best method of rule development. We find no abuse of the commission’s discretion in regulating the radio common carrier industry on a case by case basis.

Consistent with the case by ease method of rule making employed by the commission, it has complied with the due process requirements applicable to the parties in the cases below. There was adequate notice and a hearing held. Through publication in the Official Bulletin, others would be apprised of the general subject matter of the proceeding, and their intervention would have been permitted under public service commission rules. Radiofone’s arguments in brief, that it was a “party” whose rights were affected without notice and opportunity to be heard, would be applicable only if Radiofone had made itself a party through intervention before the commission.

6. Conclusion

The Louisiana Public Service Commission Orders No. U-14506-A and U-14645 are affirmed. Nothing in this opinion should be construed as prohibiting the commission from continuing in its efforts to develop appropriate rules for the regulation of the land mobile communications industry or to prohibit the radio common carrier industry from continuing its challenge to the present rules before the commission.

LEMMON, J., dissents.

      . Commissioner Schwegmann, concurring in the order, was of the opinion that there should be no restriction on the land line telephone company in the location of its radio transmitting tower. There were no other dissents or concurrences.

      . “If, upon the trial of any suit brought to contest any decision, act, rule, rate, charge, classification, or order, of the commission, the plaintiff introduces evidence which is found to be different from that offered upon the hearing before the commission, or additional thereto, the court, before proceeding to render judgment, unless the parties to such action stipulate in writing to the contrary, shall send a transcript of such evidence to the commission, and stay proceedings in the suit for fifteen days from the date of such transmission. Upon the receipt of the transcript, the commission shall consider the evidence, and it may alter, modify, amend, or rescind its decision, act, rule, rate, charge, classification, or order, complained of in the suit and shall report its action to the court within fifteen days from the receipt of the transcript.” R.S. 45:1194.

      . “If the commission rescinds the order complained of, the suit shall be dismissed; if it alters, amends or modifies the order, the altered, modified, or amended order shall take the place of the original order complained of and judgment shall be rendered thereon, as though made by the commission in the first instance. If the original order is not rescinded or changed by the commission, judgment shall be rendered by the court upon the original order.” R.S. 45:1195.