author: DELL, Judge.

text:
    Terence Timothy HARDEN, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-2774, 83-2775.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Rehearing Denied Aug. 22, 1984.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Appellant challenges the trial court’s order denying his motion to withdraw his guilty pleas.

Appellant had pleaded not guilty to charges of burglary and attempted burglary. During the change of plea hearing, appellant’s counsel recited the terms of a plea agreement negotiated with the State, and the court made the inquiries required by Rule 3.172(c), Florida Rules of Criminal Procedure. The State then presented the factual basis of the charges, and the court ordered a predisposition report and a pre-sentence investigation. The court also caused to be filed in the record of each case a document called “Deferred Adjudication and Sentence.” This document appears to be a written recapitulation of the events which occurred at the change of plea hearing. It states that appellant withdrew his not guilty plea and entered a guilty plea, and it states that the court will defer adjudication and sentence pending the predisposition report and the presentence investigation. At no time did the trial judge state that he accepted appellant’s guilty pleas.

This appeal presents the question of what constitutes formal acceptance for purposes of Rule 3.172(f). The rule provides:

No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all inquiries, ad-visements and determinations required by this Rule. Until that time, it may be withdrawn by either party without any necessary justification.

[Emphasis added.]

Until formal acceptance has occurred, the plea binds no one: not the defendant, Hyde v. State, 405 So.2d 445 (Fla. 1st DCA 1981), the prosecutor, State v. Reasbeck, 359 So.2d 564 (Fla. 4th DCA 1978) or the court, State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978).

The State argues that acceptance of the pleas can be inferred from the existence of the Deferred Adjudications in the record. Although these documents state that appellant entered guilty pleas, they do not state that the judge accepted the pleas. It could as easily be argued that the court evidenced its intent not to accept the pleas by deferring adjudication and ordering predisposition and presentence investigation reports. Since the ability of all parties to repudiate a negotiated plea hinges upon acceptance of the plea by the court, the rule wisely requires formal acceptance of that plea, rather than subjective or implied acceptance. We therefore hold that formal acceptance of a plea occurs when the trial court affirmatively states to the parties, in open court and for the record, that the court accepts the plea.

Since the trial court did not formally accept appellant’s pleas before he sought to withdraw them, the court’s refusal to permit withdrawal of the pleas was error. We reverse and remand for further proceedings.

REVERSED and REMANDED.

DOWNEY and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert W. CURTIS and Mary Ann Bergamo, et al., Petitioners, v. ORIOLE HOMES CORP., Respondent.
    No. 83-2377.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Dale F. Webner of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Miami, for petitioners.
    J. Cameron Story, III, and Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for respondent.
   PER CURIAM.

We treat this as a petition for certiorari. Fla.R.App.P. 9.040(c); Pridgen v. Board of County Commissioners, 389 So.2d 259 (Fla. 5th DCA 1980).

The trial court erred in dismissing the complaint as to the multiple plaintiffs leaving only plaintiff, Rose Ellen Scuilla. The addition of parties should have been permitted under Fla.R.Civ.P. 1.250(c). See, also, Fed.R.Civ.P. 20(a) and Condominium Owners Organization of Century Village East, Inc. v. Century Village East, Inc., 428 So.2d 384 (Fla. 4th DCA 1983).

We grant certiorari and quash the Order Granting Motion to Strike dated October 25, 1983.

Certiorari granted.

HERSEY, HURLEY and WALDEN, JJ., concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Orvilla WHILDEN, Appellant, v. H.B.A. CORPORATION d/b/a Broward Convalescent Home and Century Elevator Company, Inc., Appellees.
    No. 83-2436.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.

      Marcia E. Levine of Fazio, Dawson & DiSalvo, Fort Lauderdale, for appellant.
    Richard S. Womble of Fertig, Curtis & Wakefield, P.A., Fort Lauderdale, for ap-pellee, H.B.A. Corp. d/b/a Broward Convalescent Home.
   PER CURIAM.

Affirmed. See Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), affirmed, 452 So.2d 932 (Fla.1984).

DOWNEY and DELL, JJ., concur.

ANSTEAD, C.J., specially concurs with opinion.

ANSTEAD, Chief Judge,

specially concurring:

This is an appeal from a final summary judgment entered against the 71 year old appellant in a personal injury action filed against the appellee-employer on the basis that her sole means of relief is through a workers’ compensation claim. The trouble is, that under the statutory compensation scheme in effect at the time of her injury, the appellant was only entitled to medical expenses. The controlling statute specifically provides that employees aged 65 or beyond who are eligible for federal social security benefits are not entitled to wage loss benefits. Yet the same statute also denies an older claimant the right to recover for her damages, including lost wages and impaired earning capacity, from an employer who negligently caused her injuries. I think this scheme constitutes a blatant example of age discrimination and is patently unconstitutional. In this respect, however, I acknowledge that we are bound by the recent Supreme Court and First District decisions upholding the validity of this scheme. See Sasso.

The constitutionality of the statutory scheme immunizing employers from tort liability is predicated on the fact that the benefits payable to an injured worker constitute a reasonable alternative to the damages otherwise recoverable for the tort. Kluger v. White, 281 So.2d 1 (Fla.1973). In my view, by limiting an older employee’s claim to medical benefits, the legislature has not provided a reasonable alternative to a tort action. In this day of the routine availability of medical insurance in varied form the payment of medical expenses alone hardly constitutes a reasonable alternative to the full-blown damages recoverable in a tort action. Since the statutory immunity hinges on the availability and reasonableness of an alternative recovery, I believe the immunity provision here to be invalid. In my view, the controlling statutory scheme constitutes a denial of appellant’s constitutional right of access to the courts to remedy the wrong done when she was injured through the fault of her employer; and the same scheme is violative of the federal and state law barring age discrimination.

The legislature, fortunately, has recognized this problem and eliminated this discriminatory provision from the current statutory scheme.


text:
    HEALTH CARE PROFESSIONALS, INC., a Florida corporation, Appellant, v. R.G. THEALE and Joanne Theale, Appellees.
    No. 84-84.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Paul A. Sack of Vassallo, Pheterson & Sack, P.A., Lake Worth, for appellant.
    Gerald R. Hart of Spinner & Hart, P.A., Jacksonville, for appellees.
   PER CURIAM.

Affirmed on the authority of Florida Companies v. BFA Corp., 424 So.2d 48 (Fla. 3d DCA 1982).

LETTS, HURLEY and WALDEN, JJ., concur.


text:
    FRANKI FOUNDATION COMPANY, INC., a Delaware corporation, Appellant, v. Jonell MILLER, Personal Representative of the Estate of Joseph B. Miller, deceased, et al., Appellees.
    No. 84-389.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    John P. Kelly of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Jon E. Krupnick of Krupnick & Campbell, F. Blane Carneal of F. Blane Carneal, P.A., and Cathy Jackson Burris of Hoff-mann & Burris, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from a non-final order denying the appellant’s motion for a final judgment of dismissal. To the extent that the motion was predicated upon appellant’s claim that the trial court lacked jurisdiction over the person of appellant, we find no error in the trial court’s denial of appellant’s motion, since it is clear on the record that service of process had properly been obtained against the appellant in earlier proceedings herein. We decline to rule on any of the other issues raised by appellant in this non-final appeal. However, we emphasize, without suggesting any particular outcome, that our affirmance is without prejudice to the appellant to challenge the sufficiency of the pleadings filed by the appellee Miller or to otherwise challenge appellee’s action.

ANSTEAD, C.J., and LETTS and HERSEY, JJ., concur.


text:
    Clarence HART, Petitioner, v. R.V. TURNER, Superintendent, G.C.I., and Louie L. Wainwright, Secretary Florida Department of Corrections, Respondents.
    No. 84-1627.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Clarence Hart, petitioner pro se.
    No appearance required for respondents.
   PER CURIAM.

The Petition for Writ of Habeas Corpus is denied. See Stewart v. Wainwright, 206 So.2d 211 (Fla.1968) and Adams v. Wainwright, 381 So.2d 248 (Fla. 1st DCA 1979).

DENIED.

DOWNEY, HURLEY and WALDEN, JJ., concur.


text:
    Jerry L. COOLEY v. Valerie Van Dyke COOLEY.
    No. 82-C-0769.
    Supreme Court of Louisiana.
    Oct. 12, 1982.
    R. Layne Boyer, Baton Rouge, for respondent.
    Glen A. James, Sulphur, for petitioner.
   JOINT MOTION AND ORDER FOR DISMISSAL

NOW INTO COURT comes Petitioner, Valerie Van Dyke Cooley, through undersigned counsel, and Respondent, Jerry L. Cooley, through undersigned counsel, who jointly move this Court to dismiss this civil action from the docket of this Court for the reason that the parties reconciled on or about May 20, 1982, and have lived together as man and wife since that time rendering this matter moot.

ORDER

IT IS ORDERED THAT this civil action be dismissed from the docket of this Court this 15th day of October, 1982.


author: LEMMON, Justice.

text:
    BLUE RIDGE INSURANCE COMPANY and Willie Dixon v. Robert S. NEWMAN, Patricia Childers Newman and Cambridge Mutual Fire Insurance Co.
    No. 82-C-2904.
    Supreme Court of Louisiana.
    April 2, 1984.
    Rehearing Denied May 25, 1984.
    John W. Perry, Jr., Owen, Richardson, Taylor, Mathews & Atkinson, Ronald R. Thompson, Baton Rouge, for applicants.
    W. Luther Wilson, Taylor, Porter, Brooks, & Phillips, for respondents.
   LEMMON, Justice.

This is a tort suit by Willie Dixon and his subrogated insurer, Blue Ridge Insurance Company, to recover the damages caused to Dixon’s home by the falling of a large tree which had been growing on the adjoining property owned by Robert Newman. Cambridge Mutual Fire Insurance Company, Newman’s homeowner’s insurer, denied coverage on the principal demand and on Newman’s third party demand, asserting the “business pursuits” exclusion of its policy on the basis that Newman used the property for rental purposes.

After trial on the merits, the district court rendered judgment against Newman, but dismissed Cambridge, finding that the exclusion was applicable. On an appeal raising only the coverage issue, the court of appeal affirmed. 423 So.2d 1. We granted certiorari to determine the correctness of the rulings of the lower courts. 427 So.2d 865.

The personal liability coverage of Cambridge’s policy provided as follows:

“This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence.”

The exclusions applicable to personal liability coverage included:

“This policy does not apply:
⅜ * ⅞: * ⅝ ⅜
“d. to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non-business pursuits;”

The policy defined business as follows:

“When used in this policy the following definitions apply:
* * * ⅜ ⅝ *
“d. ‘business’ means
* * * * * *
“(2) the rental or holding for rental of the whole or any portion of the premises by any Insured;”
“but business shall not include:
“(a) the occasional rental or holding for rental of the residence premises for dwelling purposes;
“(b) the rental or holding for rental of a portion of the residence premises for dwelling purposes unless for the accommodation of three or more roomers or boarders;
“(c) the rental or holding for rental of a portion of the residence premises for private garage purposes; or
“(d) the rental or holding for rental of a portion of the residence premises as an office, school or studio.”

Applicability of the “business pursuits” exclusion, of course, depends upon the facts and circumstances of the individual case. Here, Newman’s parents acquired the property in Glen Oaks Subdivision in 1965 and immediately obtained a policy of insurance. Newman's parents thereafter raised their six children in the home on the property.

Newman’s mother died in 1971, and his father moved to Mississippi in 1973, but Newman continued to live there with two of his brothers. In 1974, Newman married his wife, and they resided together in the home and paid the mortgage notes.

In 1976, Newman and his wife moved into a new home. About the same time, Newman’s father moved back from Mississippi, and he lived in the Glen Oaks home with Newman’s younger siblings until 1979. During that period, Newman continued to pay the mortgage notes. In 1978, he acquired the outstanding interest in the property from his father and his siblings. According to Newman, he bought the property as a place for his father to live and as an investment. The insurance policy was changed to reflect the change in ownership.

In October, 1979, Newman’s father moved to Tennessee, and the house became vacant for the first time. According to Newman’s testimony, he wanted to sell the house because of racial changes in the neighborhood. However, in order to have the home available for his father if he decided to return to Baton Rouge, Newman rented the house temporarily to a friend, Mrs. Olivia, with the understanding that she would vacate the property if Newman’s father returned to Baton Rouge.

Newman’s father died in March, 1980 in Tennessee, and Mrs. Olivia moved out of the home in May, 1980. The house remained vacant until the pertinent incident on July 30, 1980. During this period of vacancy, Newman made no effort to rent the property.

The court of appeal, noting that Newman had rented the property 11 of the 15 months after his father moved out, concluded that Newman had rented or held the property for rental continuously, and not just occasionally, from October, 1979 to December, 1980.

The apparent purpose of the “business pursuits” exclusion from personal liability coverage in a homeowner’s policy is to eliminate the high cost of insuring the risks attendant to commercial enterprises, thereby making homeowner’s insurance available at lower rates. There is obviously a lower risk in insuring a building used as a residence than one used for business purposes. This consideration is also reflected in (1) the exception to the business pursuits exclusion, which excepts activities ordinarily incident to nonbusiness pursuits, and (2) the exclusions from the policy definition of business, which exclude occasional rental as well as the rental of a portion of a building used primarily as a residence.

Pretermitting the question of whether the business pursuits exclusion of the policy applies in the instant case, we note that the exclusion expressly excepts “bodily injury or property damage arising out of ... activities therein which are ordinarily incident to non-business pursuits.” Consequently, if the maintenance of a tree on rental property is an activity ordinarily incident to nonbusiness pursuits, the exclusion by its own terms is inapplicable.

In Jackson v. Lajaunie, 270 So.2d 859 (La.1972), a service station operator, while in the process of playing a practical joke, accidentally shot a customer. Although ultimately basing the decision on another exclusion in the policy, this court discussed the applicability of the service station operator’s homeowner’s policy to the occurrence and stated in dicta:

“[T]he business pursuits exclusion was inapplicable because Lajaunie was not engaged in a business pursuit while attempting to play a practical joke on Jackson. Practical jokes are ‘ordinarily incident to non-business pursuits' and are excepted from the exclusion.” 270 So.2d at 863.

In considering activities incident to non-business pursuits, the court in Edwards v. Trahan, 168 So.2d 365 (La.App. 3rd Cir.1964), held that a man who had an accident while driving a hay wagon to haul feed for his own household cattle was engaged in a nonbusiness pursuit, despite the fact that the man was in the hay business.

The tree in the present case, although situated on property which had been rented and was arguably being held for rental by Newman, was not directly related to the renting of the house and was not a necessary incident of the business of renting property. Although the presence of the tree might have made the property more attractive, it is unlikely that Newman’s ability to rent the house was substantially affected by the presence of the tree. Neither the presence of the tree nor its eventual fall was in any way related to any business character of the property.

Moreover, there is no evidence to suggest that the tenant in any way caused the tree to fall; in fact, she had moved out before it fell. Had Newman been living in the house at the time, the tree would have fallen in exactly the same manner, and the insurance policy clearly would have covered the occurrence.

We therefore conclude that Newman’s maintenance of the tree on property which had been used by his family as a residence since 1965 was an activity ordinarily incident to nonbusiness pursuits. Thus, the business pursuits exclusion of the homeowner’s policy does not apply in this instance.

Accordingly, the judgments of the lower courts are amended in part, reversed in part, and recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that judgment be rendered herein in favor of Blue Ridge Insurance Co., and against the defendants, Robert S. Newman, Patricia Childers Newman, and Cambridge Mutual Fire Insurance Company in solido in the total sum of Thirty-Three Thousand Three Hundred Thirty-One and No/100 ($33,331.00) Dollars, with legal interest thereon from date of judicial demand until paid, subject to the limits of the insurance policy; and in favor of Willie Dixon, and against the defendants, Robert S. Newman, Patricia Childers Newman, and Cambridge Mutual Fire Insurance Company in solido, in the total sum of One Thousand Four Hundred Fifty-Five and 0Vioo ($1,455.07) Dollars, with legal interest thereon from date of judicial demand until paid, subject to the limits of the insurance policy;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment be rendered herein in favor of Robert S. Newman and Patricia Childers Newman and against Cambridge Mutual Fire Insurance Company on the third party demand for the amount of the judgment on the principal demand, subject to the limits of the insurance policy;

IT IS FINALLY ORDERED, ADJUDGED AND DECREED that Cambridge Mutual Fire Insurance Company be cast for all costs of this proceeding.

      . After the July, 1980 incident, Newman again rented the property in October, 1980 and collected rent for at least the next three months, as shown by his 1980 income tax return.

      . There is authority from other jurisdictions for this construction of the exception in the business pursuits exclusion provision. In view of the exception relating to activities ordinarily incident to non-business pursuits, the court in Crane v. State Farm Fire & Cas. Co., 5 Cal.3d 112, 95 Cal.Rptr. 513, 485 P.2d 1129 (1971), held that an insured who was caring for a child for compensation along with supervising her own children was covered by her homeowner’s policy.
      In Michigan Mutual Liability Co. v. Ferguson, 15 Mich.App. 298, 166 N.W.2d 525 (Div. 3 1969), an insured, while shoveling snow off the roof of his business place, threw away a broken shovel handle, which hit high voltage electrical lines and caused damage. The court held that even if shoveling snow was a business pursuit, the immediate act of throwing the shovel handle was not. The court explained that the mere fact that the throwing was done on the business property did not make it part of a business pursuit.
      The court, applying state law in Gulf Ins. Co. v. Tilley, 393 F.2d 119 (7th Cir. 1968), held that an insured, who was babysitting for compensation when a child overturned a percolator and burned herself, was entitled to coverage. The court noted that while babysitting might be a business pursuit within the exclusion of the policy, the babysitter’s preparation of hot coffee was an activity ordinarily incident to nonbusiness pursuits.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana, ex rel William J. GUSTE, Jr., et al. v. TEXACO INC., et al.
    Nos. 83-C-1743, 83-C-1756.
    Supreme Court of Louisiana.
    April 11, 1984.
   JOINT MOTION AND ORDER FOR DISMISSAL AND RELEASE OF FUNDS DEPOSITED IN THE REGISTRY OF THE COURT

DIXON, Chief Justice.

On motion of BROADHURST, BROOK, MANGHAM, HARDY & REED, Relator-Appellant, through Peter J. Butler, counsel for Relator-Appellant; ERNEST R. EL-DRED, P.L.C., Relator-Appellant, through Ernest R. Eldred, appearing in proper person; STATE OF LOUISIANA, Intervenor-Appellee, appearing through its Governor, the Honorable Edwin W. Edwards and its Attorney-General, William J. Guste, Jr.; LOUISIANA STATE MINERAL BOARD, Appellee, appearing through its Chairman, T.W. “Tom” McKinney, pursuant to Mineral Board Resolution dated April 10, 1984; THE DIVISION OF ADMINISTRATION, Intervenor-Appellee, appearing through its Commissioner, Stephanie Alexander; THE LOUISIANA DEPARTMENT OF NATURAL RESOURCES, appearing through William C. Huís, Secretary of the Department; and on suggesting to this Honorable Court that this matter has been settled to the satisfaction of all the parties involved, and that Relator-Appellants’ appeal and the intervention should be dismissed, with prejudice, at Relator-Appellants’ cost; and

On further suggesting to this Honorable Court that the $873,000.00 deposited in the Registry of the 16th Judicial District Court, Parish of St. Mary, State of Louisiana, and the interest which has accrued thereon, should be immediately paid to Broadhurst, Brook, Mangham, Hardy & Reed and Ernest R. Eldred, P.L.C., jointly, in accordance with the “Ancillary Judgment Fixing and Awarding Attorneys’ Fees” rendered and signed on December 10, 1981, by the 16th Judicial District Court in the matter entitled “State of Louisiana, Ex Rel William J. Guste, Jr., Et A1 versus Texaco Inc., Et Al” bearing Docket No. 60,407 on the docket of the District Court for the Parish of St. Mary, Louisiana:

IT IS ORDERED, ADJUDGED AND DECREED that this appeal and the intervention be and the same is hereby dismissed, with prejudice, and that the District Court Judge for the 16th Judicial District Court in the Parish of St. Mary, State of Louisiana, order the State Treasurer and the Clerk of said Court to immediately pay to Broadhurst, Brook, Mangham, Hardy & Reed and Ernest R. Eldred, P.L.C., the sum of $873,000.00 previously ordered to be paid by Texaco Inc. to Broadhurst, Brook, Mangham, Hardy & Reed and Ernest R. Eldred, P.L.C., and the interest which has accrued thereon.


author: WATSON, Justice. DENNIS, Justice, BLANCHE, Justice,

text:
    Elgin D. HILL v. COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
    No. 83-C-2611.
    Supreme Court of Louisiana.
    May 14, 1984.
    Rehearing Denied June 14, 1984.

      Robert G. Pugh, Pugh & Pugh, Shreveport, for applicant.
    R. Gray Sexton, Peter G. Wright, Baton Rouge, Commission on Ethics for Public Employees, for respondent.
   WATSON, Justice.

Elgin D. Hill is a licensed cosmetologist and co-owner of a beauty salon, the R & E House of Beauty. She has served for the past twelve years as a member of the Louisiana Board of Cosmetology. In addition to serving on the state board, she is the only Louisiana member of the National Accredited Commission for the Cosmetology Arts and Sciences, an elective position, and has served on other national boards.

In Opinion No. 80-67, the Commission on Ethics for Public Employees directed Ms. Hill to either resign from the Louisiana Board of Cosmetology, or divest herself of her interest in the R & E House of Beauty. Upon her failure to accept one of those alternatives, it was ordered that she be removed from the board by the Governor. The court of appeal, affirmed the decision of the Commission. 442 So.2d 592 (La.App. 1 Cir.1983). A writ was granted to review the order of the Commission and the judgment of the court of appeal. 444 So.2d 1217 (La.1984).

FACTS

Ms. Hill was appointed to the Louisiana Board of Cosmetology in 1972. At that time, she was a partner in a beauty school and a beauty salon. Since board members may not “... be connected directly or indirectly with the ownership of a school licensed in this state .. .’’, Ms. Hill divested herself of the school ownership in an exchange whereby her partner took over the school and Ms. Hill took over the beauty salon.

The members of the Board of Cosmetology include some at large members, and others like Ms. Hill who are appointed by the Governor to represent the congressional districts. She is the member from the fourth congressional district, where her beauty salon is located.

The board employs no less than one inspector from each of the five public service commission districts, and the board members representing congressional districts appoint inspectors with the approval of the Governor. However, the inspectors are civil service employees of the state and beneficiaries of the protections offered by that status. A board member has no authority to discharge an inspector.

In carrying out her duties, Ms. Hill has appointed an inspector, one E.J. Smithers, who to some extent works under her supervision. Although not Ms. Hill’s personal choice, Smithers received the job because he had the highest score on the civil service examination. His primary duty is visiting beauty salons and completing inspection reports. These are brief documents which list only two categories of information concerning each “beauty shop” inspected, the first being proper registration and the second being sanitary conditions.

As summarized by Smithers, the inspector does the following:

“I see that they have a booth operator’s license current, a current cosmetology license; that they have wet and dry sterilizers at each station, that the floors are clean at each station; that their tools and roller implements are kept in sterile cabinets; that their dirty towels are in a covered container and their clean towels are in a closed container of sterile stuff.”
(Tr. 58)

Mr. Smithers, a licensed cosmetologist since 1962, testified that he inspects Ms. Hill’s beauty salon about four or five times every two years; he has never received any complaints about that shop. While he inspects her salon, he indicated that it would be a simple matter for an inspector from a nearby district to substitute for him. It is customary for inspectors to work outside their districts.

Witnesses testified that Ms. Hill is universally regarded as an excellent board member; she discharges her duties thoroughly and efficiently; and there have never been any complaints to the board concerning Ms. Hill or her salon.

The Commission on Ethics, after holding a private hearing and then a public hearing at which five witnesses testified, made the following findings of fact:

“FINDINGS OF FACT
“1. Elgin Hill has served by gubernatorial appointment as a member of the Louisiana State Board of Cosmetology from the Fourth Congressional District since 1972.
“2. Since that time, and to date, the Respondent has continued to own a controlling individual interest in, to manage and operate a beauty salon, known as ‘R & E House of Beauty,’ and in connection with the management and ownership of that salon has periodically applied to and has been granted by the Louisiana State Board of Cosmetology a Certificate of Registration.
“3. ‘R & E House of Beauty’ is located at 1233 Milam Street in Shreveport, Louisiana within the Fourth Congressional District of the Louisiana State Board of Cosmetology.
“4. Additionally, since 1972, Respondent has personally practiced as a cosmetologist and in connection with that practice has applied to the Louisiana State Board of Cosmetology and has been granted a Certificate of Registration as a cosmetologist.
“5. Likewise, Respondent in her capacity as a licensed cosmetologist, operates a ‘booth’ at the ‘R & E House of Beauty’ and discharges her services within the jurisdiction of the Fourth Congressional District of the Louisiana State Board of Cosmetology.
“6. As a full-time salaried member of the Board of Cosmetology, Respondent is required to and indeed does maintain a ‘district office’ and has selected as an office for the duties she enjoys as a member of the Board of Cosmetology a facility in the building she owns at the location housing the ‘R & E House of Beauty.’
“7. There is one inspector employed by the Board of Cosmetology who is responsible for inspections and enforcement of the rules and regulations of the Board of Cosmetology within the Fourth Congressional District. The inspector in question periodically inspects the ‘R & E House of Beauty’ as well as the ‘booth’ of the Respondent in order to insure compliance with pertinent regulations of the Board.
“8. The inspector is subject to general as well as direct supervision by the Board member serving from the Fourth Congressional District in which he discharges his duties, i.e., the Respondent.
“9. Additionally, the inspector’s performance evaluations, applications for merit, step, and other wage increases as well as certifications for leave and attendance are all made by the Respondent.
“10. Though the Respondent frequently accompanies the inspector during his routine inspections, she does not accompany the inspector whenever he is inspecting the ‘R & E House of Beauty’ or the ‘booth’ maintained by the Respondent at the ‘R & E House of Beauty’ and has never been present in the beauty salon at the time the inspections were made.”
(Tr. 11-12)

The Commission on Ethics concluded that “... both the letter and spirit of the Code prohibits ...” Ms. Hill from serving. Although the Commission was hard-pressed to state precisely the nature of the violation, it apparently rested on two facts: that Ms. Hill has some supervisory authority over inspector Smithers; and the R & E House of Beauty is licensed by the Board of Cosmetology. The conclusion is summarized in the opinion of the Commission on Ethics as follows:

“Respondent, (1) by supervising the investigator who is responsible for the inspections of not only the ‘R & E House of Beauty,’ but also the competitors of that establishment, (2) by periodically reviewing and approving the inspections and other activities of this inspector, (3) by having the responsibility for the review and approval or disapproval of the applications for registration submitted on behalf of not only the ‘R & E House of Beauty,’ but by the Respondent, as well as by the competitors of the Respondent and of the ‘R & E House of Beauty,’ (4) and generally, by her actions as an active member of the Board of Cosmetology responsible for the administration of the provisions of the Cosmetology Act, does not only factually, but by operation of law, ‘participate’ in transactions in which both she and the ‘R & E House of Beauty’ have a substantial economic interest.”
(Tr. 16)

ISSUES

The issues to be decided therefore are:

(1)Whether Ms. Hill’s supervision of the inspector, while being a licensed cosmetologist and part-owner of the R & E House of Beauty, constitutes a violation of the Code of Governmental Ethics, LSA-R.S. 42:1101, et seq.
(2) Whether she has responsibility for review and approval of applications for registration by beauty salons, which would constitute a violation of the Code, considering her licensed and ownership status.
(3) Whether service on the Board, while being a registered cosmetologist and part-owner of the R & E House of Beauty, somehow violates the spirit of the Code.

SUPERVISION OF INSPECTOR

The short answer to the issue posed by Ms. Hill’s supervision of the inspector is that there is no necessity for Smithers to inspect the R & E House of Beauty. Other inspectors from nearby districts can easily monitor the salon in which Ms. Hill has an economic interest. As to the inspector’s duties concerning other salons, there is no indication that this creates any impropriety relating to Ms. Hill’s position on the board. The evidence demonstrates the contrary: Ms. Hill and Smithers are dedicated and conscientious persons who carry out their duties with commendable zeal, integrity, and skill. Therefore, since there is no showing of a violation of the Code of Ethics with regard to the supervision of the inspector, the first issue does not form a basis for sanctions against Ms. Hill.

REGISTRATIONS OF THE SALON

The evidence in the record indicates that the R & E House of Beauty has been a licensed shop since 1955 when a Ms. Davis was issued her initial license for a five dollar fee. Thereafter, each year through 1982 the shop has been issued a renewal license, the only variation being that in 1965 the fee increased to ten dollars, in 1974 to fifteen dollars, and in 1980 to twenty dollars. There is a notation that Ms. Hill became a co-owner, although the date is not specified.

It is apparent that the renewal of the shop license, as well as Ms. Hill’s license to practice cosmetology, which is also reflected in the records of the board, is a routine and mechanical thing. There is no showing that the board is required to vote or otherwise exercise authority with respect to the renewal of shop licenses and cosmetologist licenses.

Therefore, by serving on the Board of Cosmetology, while holding a shop license and a cosmetologist license, relator does not violate of the Code of Ethics.

SPIRIT OF THE CODE

The final holding of the Commission on Ethics is that Ms. Hill’s service on the Board of Cosmetology violates the spirit of the Code of Ethics. Regardless of whether such a violation would warrant removal, the various laws pertaining to administrative boards in the State of Louisiana do not support this holding of the Commission.

There is a substantial argument that the laws providing for the Board of Cosmetology require or at least authorize service on the board by a person who is a licensed cosmetologist and/or a shop owner. The statute itself, by providing that board members “shall have been” actively engaged for at least five years prior to their appointment as a cosmetologist or teacher implies that practitioners are to serve on the board. The Commission contends the phrase means antecedent service. The court of appeal held that a board member might be a practicing beauty operator but concluded that it is “inevitable” a board member/shop owner would have a conflict of interest prohibiting service. 442 So.2d 592 at 595. That conclusion is not supported by the record.

Additionally, the law establishing the Board of Cosmetology prohibits ownership or interest in a beauty school. This is the singular prohibited activity; there is no specific prohibition in the statutes against being a cosmetologist or owning a salon. Thus, the law must be interpreted under the legal maxim inclusio unius est exclu-sio alterius. In other words, by barring only beauty school owners from serving on the Board of Cosmetology, the legislature by implication allowed cosmetologists and the owners of beauty salons to serve.

As Judge Sartain stated when concurring in the Louisiana Milk Commission case:

“It is my belief that the principal reason why the Legislature decreed that three members of the Commission are required to be milk processors and one member a milk producer is that the Legislature deemed that these appointees would be possessed of certain expertise in the handling and production of milk. This does not, per se, create a conflict of interest.” Louisiana Milk Commission v. Louisiana Commission on Governmental Ethics, 298 So.2d 285, 291 (La.App. 4 Cir.1974).

Substantiating and lending weight to this observation is the impressive compilation in relator’s brief of the state boards and administrative bodies which mandate professional status as a qualification for appointment. For example, the State Board of Certified Public Accountants requires its members to be certified public accountants, LSA-R.S. 37:73; the State Board of Registration for Professional Engineers and Land Surveyors has similar requirements, LSA-R.S. 37:683 A.; the Louisiana State Board of Optometry Examiners, requires members to be registered optometrists who have practiced for seven years, LSA-R.S. 37:1042 A. In close parallel with the cosmetology board, the five members of the Board of Barber Examiners must be practical barbers who have followed the occupation of barbering for five years, LSA-R.S. 37:341 B. All of these board members have the duties of examining applicants, issuing and renewing licenses and/or revoking licenses.

The Commission on Ethics attempts to distinguish the cosmetology board because the members are paid a salary rather than a per diem for attendance. This attempted distinction has no significance.

The court of appeal’s reliance on Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752 (La.1983) is misplaced. While the cases are alike in that both records demonstrate no suggestion of impropriety and that both Glazer and Ms. Hill were and are highly ethical and dedicated people, the factual context is essentially different. Glazer’s wholly owned corporation was engaged in multi-million dollar sales to companies closely regulated by the Mineral Board of which he was a voting member. The Commission on Ethics found that he had a real and substantial conflict of interest. 431 So.2d 752 at 755. It was not a situation like Ms. Hill’s where the Commission found only a remote possibility of a conflict of interest which it could not pinpoint or document.

The findings and conclusions of the Commission are insufficient to support a violation of the Code of Ethics requiring Elgin Hill to resign.

CONCLUSION

Since the Commission on Ethics incorrectly concluded that Elgin D. Hill was in violation of the Code of Governmental Ethics, it is unnecessary to address certain constitutional questions suggested by counsel. The order that Ms. Hill either divest herself of her ownership interest in the R & E House of Beauty or resign from the Louisiana Board of Cosmetology is reversed and set aside as is the decision of the Court of Appeal affirming that order.

REVERSED.

DENNIS, J., dissents with reasons.

BLANCHE, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

I reluctantly dissent.

If we were free to base our decision on the wisdom of the statute or the equities of this particular case, I would gladly join the majority. However, under the code, it appears there is a conflict of interest. The board member in effect participated in approving her own applications for licenses. Thus, she participated in transactions between the board on which she serves and herself. Renewals of these licenses probably were “routine and mechanical thing[s]” as the majority says, but I do not believe the Code authorizes us to distinguish between transactions involving conflicts of interest on this basis. I reserve judgment, however, on the constitutional issue raised by relator which the majority does not reach and which I have not had an opportunity to examine fully.

BLANCHE, Justice,

dissenting.

R.S. 42:1112 B (2) prohibits a public servant from participating in a “transaction” involving himself and the governmental entity of which he is a member. Relator’s duties as a board member involve the licensing and inspection of her own private business over which she had jurisdiction.

The spirit and purpose of the Ethics Code is to insure that the public employees be independent and impartial so as to instill public confidence in the integrity of the government. With this stated purpose as a premise I would define the foregoing activity of relator as a “transaction” proscribed by the above statute.

I further agree that no specific instance of impropriety as a result of Ms. Hill’s indirect supervision of her own establishment has been demonstrated. But this fact, while commendable, is not relevant to a determination of whether plaintiff violated the statutory prohibition against potential conflicts of interest. Unlike other pub-lie employees, appointed board members do not have the freedom to disqualify themselves from participating in a transaction involving the governmental entity on which they serve and their own private economic interest. La. R.S. 42:1112(0). Instead, a potential board member ought to divest himself of his interests before assuming his governmental office. Therefore, the trial court’s order requiring Ms. Hill to divest herself of her interest in the salon or resign was correct.

I respectfully dissent.

      .LSA-R.S. 37:493 B. provides:
      "Board members, other than the executive secretary, shall have been actively engaged for at least five years prior to their appointment, in this state, in the activities described in the definition of ‘operator’ and/or 'teacher' as set forth in this part. The board members shall not all be graduates of the same school of the art, nor shall any board member be connected directly or indirectly with the ownership of a school licensed in this state.”

      . LSA-R.S. 37:493 A.

      . LSA-R.S. 37:499.

      . LSA-R.S. 37:493 D.

      . LSA-R.S. 37:499 A.

      . This information is taken from certified copies of the records of the Board of Cosmetology, Tr. 109-110.

      . The Commission does not press the matter of Ms. Hill holding a personal license.

      . LSA-R.S. 37:493 B.

      .The inclusion of one is the exclusion of another. Black's Law Dictionary, Fifth Edition, West, St. Paul, C. 1979, p. 687.

      . According to Joel Mumphrey, Chairman of the Cosmetology Board, the salary is not a living wage.


author: CALOGERO, Justice. BLANCHE, Justice

text:
    Albert L. ROY, Jr. v. U.S.A.A. CASUALTY INSURANCE COMPANY.
    No. 84-C-0076.
    Supreme Court of Louisiana.
    June 25, 1984.
    James L. Babin, Lake Charles, for applicant.
    Thomas W. Sanders, Sanders & Foreman, Lake Charles, for respondent.
   CALOGERO, Justice.

In this case, we examine the language contained in a settlement and release executed by an automobile accident/tort victim in order to determine whether the release expressly reserved his right to sue other parties (potentially liable co-debtors, who, for purposes of our consideration are soli-dary obligors) for his damages which are in excess of the recovered limits of the tort-feasor’s liability insurer’s policy. Both lower courts ruled in favor of the ostensibly released co-debtor (a UMI carrier), and dismissed the plaintiff’s suit on a motion for summary judgment, reasoning that the release of one co-debtor in solido released all co-debtors in solido. Upon review and for the following reasons, we reverse, finding an express reservation in the release executed by plaintiff.

Our only concern in this case is whether or not La.C.C. art. 2203 and its requirement of an express reservation can be used by this uninsured/underinsured motorist carrier as a defense against this insured’s claim. To the extent that the UMI carrier is a solidary obligor along with the tortfeasor (if that is indeed the case, and we presuppose for sake of argument in this case that it is so), we do not here find that the UMI carrier was released by the document executed by the victim in favor of the tort-feasor and her insurer, because we find an express reservation therein.

We are not oblivious to the myriad problems attending the legal and contractual relationship of victim, tortfeasor and uninsured/underinsured motorist insurance carrier. We do not, as a consequence, purport to resolve all questions which might emanate therefrom. For instance, we do not in this opinion decide whether or under what circumstances the UMI carrier might somehow be barred from collecting whatever it has to pay, against the uninsured/underin-sured motorist. See Pace v. Cage, 419 So.2d 443 (La.1982) which held that an uninsured motorist carrier cannot recover from a tortfeasor when the insured had completely discharged the tortfeasor before the uninsured motorist carrier made any payment to the insured, because the insured had no rights against his former debtor to subrogate to the insurer. See also Bond v. Commercial Union Assurance Co., 407 So.2d 401, 402 (La.1981) (On Rehearing) wherein all claims were litigated and no releases granted, and we found that the defendant/third party /plaintiff/UMI carrier was entitled to judgment against the tortfeasor because of a conventional subrogation in its policy. Nor do we worry here about whether the victim who releases the tortfeasor and then tries to recover against the UMI carrier is deprived of doing so (aside from any principles of solidary obligation) simply because by releasing the tortfeasor he interfered with any contractual or statutory rights of the UMI carrier to recover monies paid under his policy. La.R.S. 22:1406(D)(4). Finally we do not answer here the question on which we granted writs in five other cases recently, (see note 1 infra) about whether a victim who has released the tortfeasor without any reservation against other parties is then precluded from suing his UMI carrier because of principles of solidary obligation, and particularly La.C.C. art. 2203.

As earlier indicated, all we are going to address in this opinion is whether there is, in the release before us, language which expressly reserves to relator the right to seek further compensation for damages from other parties. With that qualification, we examine the facts and very narrow issue presented in the case before us now.

On January 8, 1981, Mr. Albert L. Roy, Jr. was involved in an automobile accident caused solely by the negligence of Dora G. Melancon. On April 10, 1981, Roy settled his claim with, and granted a release to, Dora Melancon and her insurer Hartford Accident and Indemnity Company, in exchange for ten thousand dollars ($10,000), the maximum limits of her liability insurance policy. Thereafter Roy filed suit against United Services Automobile Association-Casualty Insurance Company (hereinafter USAA-CIC), his uninsured and under-insured motorist insurer, claiming that the amount recovered from Melancon and Hartford as a result of the accident was not adequate compensation for his personal injuries. Pursuant to a Motion for Summary Judgment, USAA-CIC pleaded in a second supplemental and amended answer the prior release and settlement as a bar to relator’s lawsuit on the theory that the release of a solidary obligor (Dora Melan-con and Hartford Accident and Indemnity Company), without an express reservation of rights, resulted in the release of USAA-CIC.

USAA-CIC’s Motion for Summary Judgment was granted and Roy’s suit was dismissed with prejudice. In his reasons, the trial judge found that USAA-CIC was a solidary obligor with Dora Melancon and her insurer and, because Roy did not reserve his rights against USAA-CIC in his settlement and release of Melancon and Hartford, he was barred from any recovery from USAA-CIC.

Plaintiff appealed the dismissal, contending that the release signed by him was restrictive and did not release other soli-dary obligors. The Third Circuit Court of Appeal affirmed the lower court’s decision. 442 So.2d 1303 (La.App. 3 Cir.1983). Following that affirmance, we granted writs. 445 So.2d 430 (La.1984).

Both lower courts found this case controlled by Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982) wherein we found the tortfeasor and UMI carrier were liable in solido, at least for the purpose of allowing an interruption of prescription. In this application, relator does not protest that there is no solidary obligation between the tort-feasor and the UMI carrier. The relator argues instead that the lower courts erred in concluding that the release of the soli-dary obligor did not contain a reservation of rights against USAA-CIC.

The release and settlement agreement executed by Roy, Melancon and Hartford Accident and Indemnity Company reads in pertinent part as follows:

For the sole consideration of $10,000.00, I/We Mr. Albert L. Roy, Jr., residing at 1721 N. Jake Street, Lake Charles, Louisiana, do hereby release, acquit and forever discharge Dora Melancon and Hartford Accident and Indemnity Company from any and all actions, causes of action, claims and demands, damages, costs, loss of services, expenses and compensation on account of or in any way growing out of any and all known and unknown personal injuries and property damage resulting or to result from an accident which occurred on or about January 8, 1981 and do hereby agree to indemnify and save harmless the said Dora Melancon and Hartford Accident and Indemnity Company from all further claims or demands, costs or expenses arising out of the injuries or damages sustained by me/us. It is further agreed that in the event other parties are responsible to me/us for damages as a result of this accident, the execution of this agreement shall operate as a satisfaction of my/our claim against such other parties to the extent of the pro-rata share of the parties herein. (emphasis provided)

It is the italicized portion of the release, above, that relator suggests expressly reserves his right to proceed against another co-debtor in solido (USAA-CIC here) for his damages in excess of the $10,000 settlement. We determine that the italicized portion has the effect of an express reservation against other co-debtors in solido under La.C.C. art. 2203 and the jurisprudence. USAA-CIC was not thereby released. Suit against USAA-CIC will therefore be allowed.

La.C.C. art. 2203 provides:

The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission, (emphasis provided)

Concerning what constitutes an express reservation of rights contained in a release under La.C.C. art. 2203, we said in Cusimano v. Ferrara, 170 La. 1044, 129 So. 630 at 632 (1930):

There is nothing sacramental about the form in which the reservation shall be made, and, since no one is presumed to renounce a right unless it clearly appears that he intended to do so, it follows that it suffices that the intention to reserve the right against codebtors may be in ferred from any expression in the release of one codebtor which negatives the intent to release the other codebt-ors. (emphasis provided)

In Cusimano, there were involved seven indorsers on a note and two separate releases of two co-debtors. One release of one of the co-debtors (Paolo Nicolosi) was made “with full and complete reservation of all my rights against all of the judgment debtors in said suit.” In the other release of one Vincenzo Nicolosi, plaintiff authorized as well the cancellation of a mortgage as to certain property of one V.S. Dantoni, but “in all other respects the said judgment is to remain in full force and effect.” This Court concluded that these releases did not have the effect of releasing Dantoni, stating at 129 So. 630:

We consider all these expressions sufficient to express clearly an intention on the part of plaintiff not to abandon any rights which he had against the several codebtors; and a clearly expressed intention not to abandon a right is a clearly expressed intention to reserve it. (emphasis provided)

See also Honeycutt v. Town of Boyce, 341 So.2d 327 (La.1977) and the cases cited therein. 341 So.2d at 331.

Although this Court has not recently had to decide what manner of expression fits the La.C.C. art. 2203 requirement for reservation of rights against an uninsured/underinsured motorist carrier, the Fourth Circuit Court of Appeal has. In Dobard v. State Farm Insurance Company, 437 So.2d 366 (La.App. 4th Cir.1983), an automobile accident victim, who had settled with the tortfeasor and the tortfeasor’s insurer for the policy limits, sought to collect the balance of her damages from her uninsured/underinsured motorist carrier. The trial court dismissed the case because of an absence of an “express” reservation. The plaintiff appealed to the Fourth Circuit arguing that “her scratching out of the phrase ‘... and all other persons, firms and corporations ... ’ [in her release and settlement with the tortfeasor] negated any intent to release the other co-debtor in solido (State Farm), and was therefore sufficient to meet the codal requirement of LSA-C.C. Art. 2203.” 437 So.2d at 367. The appellate court agreed with plaintiff and reversed, finding:

The altered release does not provide an unconditional discharge of all co-debtors. When plaintiff lined through the catch-all phrase, she expressly limited the release to those specified, thereby making it evident she was not fully compensated by the settlement and would proceed against others. 437 So.2d at 368.

In like manner we now examine the language in this release to see if there is therein “the clearly expressed intention [on the part of the victim] not to abandon a right [to seek further compensation for the accident]” which qualifies as “a clearly expressed intention to reserve it.” Cusimano, 129 So. at 630.

The document is entitled “Release and Settlement of Claim.” As noted earlier in this opinion the first sentence of the release specifically discharged Melancon and Hartford. By its terms, however, only Dora and Hartford (and no one else) are released. Then, immediately following the sentence releasing Melancon and Hartford, there is expressed:

It is further agreed that in the event other parties are responsible to me /us for damages as a result of this accident, the execution of this agreement shall operate as a satisfaction of my/our claim against such other parties to the extent of the pro-rata share of the parties herein. (emphasis provided)

There would be no reason for that language were it intended that the signatory to that agreement [Roy] would thereafter be forever precluded from seeking from “other parties responsible to me/us ... damages as a result of this accident.”

We find that just as the deletion in Do-bard made it evident that the victim was not admitting full compensation by the settlement, and that she might, or intended to, proceed against others, so too the inclusion of the language in the release before us makes it evident that Roy was not admitting full compensation by the settlement and was reserving the right to proceed against others. Applying La.C.C. art. 2203, there is in this release and settlement a clear expression of an intention on the part of the relator not to abandon any rights which he had against “other parties responsible to me.” [In this case it turned out to be his uninsured/underinsured motorist carrier]. There is in this release and settlement, therefore, a clearly expressed intention to reserve plaintiffs rights against co-debtors in solido.

Furthermore the reservation in this case is not just an acknowledgment that there are other possibly outstanding claims against other parties. It also sets out the consequence in the event “other parties are responsible.” The consequence of releasing Dora and Hartford, stated in this agreement, is that in the event damages are received from other parties, by the victim, any claim those other co-debtors might have against the tortfeasor is satisfied “to the extent of the pro-rata share of the parties herein.” This consequence is analogous to a “deduction of the part of him to whom he has made the remission,” the result dictated by La.C.C. art. 2203 when rights have been reserved against solidary co-debtors.

We find, therefore, in the release and settlement executed by Roy with Melancon and Hartford the express reservation of rights required by La.C.C. art. 2203. Consequently plaintiff did not release USAA-CIC when he released Melancon and Hartford.

DECREE

For the foregoing reasons the trial court’s granting the Motion for Summary Judgment on behalf of USAA-CIC and the Court of Appeal affirmance of that judgment are reversed and the motion denied. The case is remanded to the district court for further proceedings.

REVERSED; REMANDED.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

The majority correctly cites Cusimano v. Ferrara, 170 La. 1044, 129 So. 630 (1930), for the proposition that an express reservation of rights against solidary debtors contained in a release may be inferred, in satisfaction of C.C. art. 2203, when the language in the release clearly expresses an intention to so reserve those rights. Unfortunately, the majority then ignores the “clearly expressed intention to reserve it” language in Cusimano, 129 So. at 632, by finding language which acknowledges the possibility of other existing solidary debtors to constitute an intent to reserve rights against those solidary debtors.

The test laid down in Cusimano is whether there is a clear intent to reserve rights exhibited in the release language. Clarity of intent to reserve rights is conspicuous in the instant language only by its absence. La.C.C. art. 2203 dictates that there must be an express reservation of rights against all solidary debtors not meant to be released.

The Cusimano case recognized the inequity and inherent unfairness of requiring stringent, technical language to accomplish a reservation of rights. At the same time, it recognized that the language of C.C. art. 2203 requires more than a mere recognition that other debtors may exist. There must be “a clearly expressed intention to reserve” rights against the solidary debtor. 129 So. at 632. (Emphasis added). A “clearly expressed intention to reserve a right” necessarily requires a clearly expressed recognition that there exists a party against whom that right is to be reserved. The release now before us recognizes only the possibility that other debtors exist. It states: “[IJn the event other parties are responsible to me/us for damages ...”

While I do not agree with Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982), that the tortfeasor and UMI carrier are liable in solido, as of now it is the law of this state and we are compelled to follow it, as that issue is not before us at this time. I do not find it appropriate, however, to weaken the requirement under C.C. art. 2203 of an express reservation simply to obtain a desirable result in a particular case. The requirement of an express reservation under C.C. art. 2203 is an important one to the law of solidary obligations and should not be eroded unnecessarily.

As this writer does not find the language contained in the release to constitute a “clearly expressed intention to reserve a right,” I respectfully dissent.

      . Since granting this application to consider the language in the release and settlement agreement, we have granted writs in five other cases where the tort victim released the tortfeasor without any reservation of rights, and the lower courts have applied Hoefly to bar suit against the UMI carrier. Decedue v. GEICO, 446 So.2d 1216 (La.1984); Dalmado v. Cumis Ins. Society, Inc., 446 So.2d 1216 (La.1984); Halter v. Saavedra et al., 446 So.2d 1217 (La.1984); Roche v. Cumis Ins. Society, 446 So.2d 1217 (La.1984); Carona v. State Farm Ins. Co., 446 So.2d 1217 (La.1984), all set for oral argument on our Docket of June 28, 1984. Because we find that the settlement and release agreement in this case contained an express reservation of rights, we can decide this case independently of these others and without concern for how these cases are ultimately resolved.

      . In so concluding, the Fourth Circuit Court of Appeal also noted that this result comports with the intent of Louisiana’s Uninsured Motorist Statute, La.R.S. 22:1406:
      The insurance statute mandates uninsured motorist coverage unless rejected by the insured. LSA-R.S. 22:1406. Our conclusion is in accord with the logic in the above cases and in furtherance of the avowed legislative aim evidenced by the 1974 Amendment to the uninsured motorist statute: to promote (rather than defeat) full recovery by insureds who have paid premiums for this coverage, (footnote omitted) 437 So.2d at 368.


text:
    SALES TAX COLLECTOR, St. Charles Parish v. DELTA SERVICES INDUSTRIES.
    No. 83-CA-797.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Rehearing Denied Aug. 17, 1984.
    Leon C. Vial, III, Hahnville, for plaintiff-appellee.
    Robert J. Prejeant, Watkins, Walker & Prejeant, Houma, for defendant-appellant.
    Before BOWES and GRISBAUM, JJ., and CLEVELAND J. MARCEL, Sr., J. pro. tempore.
   CLEVELAND J. MARCEL, Sr., Judge Pro Tempore.

This appeal originates in the Twenty-Ninth Judicial District Court, Parish of St. Charles, wherein the Honorable Joel T. Chaisson rendered judgment in favor of plaintiff, Sales Tax Collector, St. Charles Parish, and against defendant, Delta Trans-load, Inc., for the principal sum of Two Hundred Forty-Nine Thousand, Three Hundred Seventy-Five Dollars ($249,375) with interest in the amount of Twenty-Nine Thousand, Nine Hundred Twenty-Five Dollars ($29,925), penalties in the amount of Sixty-Two Thousand Dollars, Three Hundred Forty-Three Dollars and Seventy-Five Cents ($62,343.75), together with attorney’s fees in the amount of 10 percent of the aggregate amount of principal, interest and penalties. Defendant has appealed.

Defendant, Delta Transload, Inc., owns and operates the Delta Transload I, a movable and navigable but non-self-propelled watercraft employed in the midstream handling and offloading of grain. While the Delta Transload I was located in the Lul-ing/Destrehan Area of St. Charles Parish, the sales tax collector of that parish filed suit to enforce a 1982 use tax assessment pursuant to Parish sales and use tax ordinances.

Trial on the merits, held September 29, 1983, centered upon the classification of the Delta Transload I. Defendant argued the Delta Transload I was a “vessel” and should be accorded the exempt status provided by LSA-R.S. 47:305.1 and Exemptions and Exclusions § 3.01(5) of the St. Charles Parish School Board General Sales and Use Tax. The trial court, in ruling the Delta Transload I failed to satisfy the intent and meaning of the term “vessel” contained in those statutes, found “... no legalistics that would conclude that this could be concluded as a vessel which would make it exempt for use tax purposes in St. Charles Parish.”

Defendant has appealed, asserting:

that (1) the trial court erred by misconceiving the nature of the state and local sales tax laws; that

(2) the trial court erred in holding that the Delta Transload I is not, as a matter of law, a “vessel” or “barge” for purposes of the local sales and tax exemption; and that

(3) the trial court erred in assessing penalties and attorney’s fees.

The questions raised by this appeal, however, can be resolved by proper interpretation of the applicable tax statutes and does not necessarily depend upon the status or classification of the Delta Transload I. If this case involved the imposition of a sales tax, then the classification of the Delta Transload I would be essential. However, we are faced with reviewing a judgment which enforced the assessment of a use tax against Delta Transload, Inc.

Appellant argues it is entitled to be exempt from the tax levied because such exemption is granted to them under both LSA-R.S. 47:305.1(A) and the applicable St. Charles Parish Sales and Use Tax Ordinance . Appellant attempts to escape use tax liability by utilizing a sales tax exemption. A closer inspection of the statutes is warranted.

Appellant claims exemption status under LSA-R.S. 47:305.1(A). However, this statute specifically states that the exemption provided by this statute applies exclusively to the tax imposed by LSA-R.S. 47:302(A)(1), the state’s sales tax. LSA-R.S. 47:305.1(A) does not provide tax relief from the state’s use tax imposed under LSA-R.S. 47:302(A)(2). We believe the legislative intent of LSA-R.S. 47:305.1(A) was to prevent the Louisiana shipbuilding industry from being placed at a competitive disadvantage with shipbuilders from neighboring states, the exemption provided by LSA-R.S. 47:305.1(A) applies solely to state sales taxes. Had the legislature intended to exempt certain vessels from the state’s use tax, they would have specifically stated such intention. We will not infer that intent.

Appellant additionally claims exemption status under the Exémptions and Exclusions from Tax of the St. Charles tax ordinances, more particularly § 3.01(5). Section 3.01(5) reads almost verbatim with LSA-R.S. 47:305.1(A) and clearly states that certain vessels or barges are exempt from sales taxes but fails to mention use taxes. A review of other exemptions and exclusions generally provided for under § 3.01 shows that some provisions apply only to sales taxes, some to use tax, and that some include both. These ordinances lead us to conclude that if the St. Charles Parish School Board had intended to exempt such vessels or barges from any use tax, it would be written so. This exemption without doubt applies exclusively to sales tax.

Interest, penalties and attorney’s fees are specifically provided for by the St. Charles Parish General Sales and Tax Ordinances . Appellant has not set forth any argument as to why we should strike the enforcement of those provisions. After reviewing these provisions, we find no reason why such should not be enforced.

Accordingly, for the foregoing reasons, the judgment appealed from is hereby affirmed at appellant’s cost.

AFFIRMED.

      . LSA-R.S. 47.305.1 Exclusions and exemptions, ships and ships' supplies
      A. The tax imposed by R.S. 47:302(A)(1) and R.S. 47:321(A)(1) shall not apply to sales of materials, equipment and machinery which enter into and become component parts of ships, vessels, or barges, including commercial fishing vessels, drilling ships, drilling barges of fifty tons load displacement and over, built in Louisiana nor to the gross proceeds from the sale of such ships, vessels, or barges when sold by the builder thereof.

      . St. Charles Parish School Board General Sales and Use Tax Exemptions and Exclusions from Tax, § 3.01(5)
      The sales of materials, equipment, and machinery which enter into and become component parts of ships, vessels, including commercial fishing vessels, or barges, of fifty tons load displacement and over, built in Louisiana nor to the gross proceeds from the sale of such ships, vessels or barges when sold by builder thereof.

      . LSA-R.S. 47:302(A)(1):
      A. There is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined herein, the levy of said tax to be as follows:
      (1) At the rate of two per centum (2%) of the sales price of each item or article of tangible personal property when sold at retail in this state; the tax to be computed on gross sales for the purpose of remitting the amount of tax due the state, and to include each and every retail sale.

      . LSA-R.S. 47:302(A)(2)
      (2) At the rate of two per' centum (2%) of the cost price of each item or article of tangible personal property when the same is not sold but is used, consumed, distributed, or stored for use or consumption in this state; provided there shall be no duplication of the tax.

      . St. Charles Parish School Board General Sales and Use Tax, Exemptions and Exclusions from Tax, § 3.01(7)
      The sale at retail of seeds for use in the planting of any kind of crops.
      § 3.01(10) The sale or admission tickets by Little Theatre organizations.

      . St. Charles Parish School Board General Sales Tax and Use Tax, Exemptions and Exclusions from Tax
      § 3.01(2) The "use tax” shall not apply to livestock and livestock products, to poultry and poultry products, to farm, range and agricultural products when produced by the farmer and used by him and members of his family.

      . St. Charles Parish School Board General Sales Tax and Use Tax, Exemptions and Exclusions from Tax
      § 3.01(9) The sale or use of any materials, supplies or products for use in connection with any phase of the construction of the Toledo Bend Dam project on the Sabine River.

      . St. Charles Parish School Board General Sales and Use Tax, Remedies for Collection, including Interest, Penalties, etc.
      SECTION 9.01. For the purpose of the enforcement of this ordinance, and the collection of the tax levied hereunder, it is presumed that all tangible personal property, subject to the provisions of this ordinance, imported into the Parish or held in the Parish by any dealer is to be sold at retail, used or consumed, or stored for use or consumption in the Parish, and is subject to the tax herein levied; provided that such presumption shall be prima facie only, and subject to proof furnished to the Collector.
      SECTION 9.02. Failure to pay any tax due as provided in this ordinance, shall ipso facto, without demand or putting in default, cause said tax, interest, penalties, and costs to become immediately delinquent, and the Governing Body is hereby vested with authority, on motion in a court of competent jurisdiction, to take a rule on the said dealer, to show cause in not less than two (2) or more than ten (10) days, exclusive of holidays, after the service thereof, which may be tried out of term and in chambers, and shall always be tried by preference, why said dealer should not be ordered to cease from further pursuit of business as a dealer, and in case said rule is made absolute, the order thereon rendered shall be considered a judgment in favor of the Governing Body, prohibiting such dealer from the further pursuit of said business until such time as he has paid the said delinquent tax, interest, penalties, and costs, and every violation of the injunction shall be considered as a contempt of court, and punished according to law.
      SECTION 9.03. If the amount of tax due by the dealer is not paid on or before the twentieth (20th) day of the month next following for which the tax is due, there shall be collected, with said tax, interest upon said unpaid amount, at the rate of six percent (6%) per annum, or fractional part thereof, to be computed from the first day of the month next following the month for which the tax is due until it is paid; and in addition to the'interest that may be so due there shall also be collected a penalty equivalent to five percent (5%) for each thirty (30) days, or fraction thereof, of delinquency, not to exceed twenty-five percent (25%) in aggregate, of the tax due, when such tax is not paid within thirty (30) days of the date the tax first becomes due and payable, and .in the event of suit, attorney’s fees at the rate of ten percent (10%) of the aggregate of tax, interest and penalty.


author: EDWARDS, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Catherine D. RICHARDSON. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Landry W. RICHARDSON.
    Nos. 83-CA-0506, 83-CA-0507.
    Court of Appeal of Louisiana, First Circuit.
    May 15, 1984.

      Richard N. Burtt, Asst. Gen. Counsel, Baton Rouge, for plaintiff-appellant, State of La., Dept, of Transp. and Development.
    J. Arthur Smith, III, Baton Rouge, for defendants-appellees, Catherine D. Richardson and Landry W. Richardson.
    Before LOTTINGER, EDWARDS and WATKINS, JJ.
   EDWARDS, Judge.

Under Louisiana’s “quick taking” statutes, LSA-R.S. 48:441 et seq., the Department of Transportation and Development (DOTD) filed two expropriation suits, later consolidated for trial, against Catherine D. and Landry W. Richardson to acquire certain highway frontage property necessary for widening Louisiana Highway 67, also known as Plank Road, to a four-lane highway in and around Clinton, Louisiana.

In the first suit (No. A-15,710), filed on April 1, 1980, the DOTD expropriated one parcel of land, parcel No. 5-7, consisting of 131 square feet, in full ownership, reserving in the landowners all rights to any minerals, and another parcel, No. 5-3-C-2-R-2, consisting of 871 square feet, as a temporary construction servitude, and deposited into the court registry $235.00 as compensation for the land taken. In the second suit (No. A-17,422), filed on June 30, 1981, the DOTD took in full ownership, minus the minerals, parcel No. 5-7-E-l, consisting of 1,307 square feet and deposited $690.00 in the court registry.

On January 11, 1981, the landowners filed an answer challenging the value of the land taken and seeking $12,281.00 in compensation and severance damages plus attorney and expert witness fees and costs. On April 1, 1982, they filed an amended answer and reconventional demand alleging that the DOTD had begun construction and had in fact taken on December 1, 1981, an additional 932 square feet of their land, designated at trial as parcel “X”, for which it owed them additional compensation under LSA-R.S. 19:14.

The trial court rendered judgment in favor of the landowners and awarded them $2,571.05 for the four parcels of land — 5-7, $129.69; 5-3-C-2-R-2, $103.47; 5-7-E-l, $1,359.28; and parcel “X”, $978.60 — $5,-923.24 in severance damages for the remainder of the property, and $2,500.00 in attorney fees.

The DOTD appeals, assigning four errors to the judgment. The first three assignments of error involve the same issues as those at trial — the extent of the taking, the value of the land taken, and the amount of severance damages. The fourth assignment of error relates to the $2,500.00 attorney fee.

THE EXTENT OF THE TAKING

The only issue to be resolved here is whether the State owes any compensation for parcel “X”.

At trial, the DOTD argued chiefly that parcel “X” falls within an existing 40-foot right-of-way servitude which the State had acquired by virtue of a right-of-way deed executed by the landowners’ ancestor in title in 1931 and filed in the conveyance records of East Feliciana Parish in 1932. Rejecting this argument, the trial court reasoned that because the 1931 document relied on by the State was not in authentic form, it was an invalid donation, absolutely null, and could not operate to pass title to the State.

On appeal, the DOTD’s principal argument is that the 1931 right-of-way deed, though invalid as a donation of immovable property, nonetheless serves as a valid implied dedication of the 40-foot servitude which the State accepted in 1931. Because we find merit to this argument, we find it unnecessary to discuss the DOTD’s other arguments in connection with this issue.

Since 1938 and the landmark case of Arkansas-Louisiana Gas Co. v. Parker Oil Co., 190 La. 957, 183 So. 229 (1938), Louisiana has consistently recognized two types of dedications, statutory and implied or common law.

A statutory dedication is perfected by substantially complying with the requirements of LSA-R.S. 33:5051, which requires among other things the filing of a map and a formal dedication to public use by the owner of the property. See City of Baton Rouge v. State National Life Ins. Co., 271 So.2d 571 (La.App. 1st Cir.1972). However, failure to file the required map or to include the dedicatory language in the plat will not invalidate the dedication, provided the statute is otherwise substantially complied with. See Garrett v. Pioneer Production Corporation, 390 So.2d 851 (La.1980).

In a common law dedication, on the oth-erhand,

there must be shown a definite intent to dedicate on the part of the landowner and an acceptance by the public. Neither element must be formally expressed but both must be sufficiently clear so as to exclude every other reasonable hypothesis except that of dedication. Our courts have held that dedication to the public may be shown by any evidence which shows intent of the owner to so devote his property. Mere use by the public for the purpose intended by the dedicator can constitute a sufficient acceptance. (emphasis added) (citations omitted).

City of Baton Rouge, 271 So.2d at 576.

Joyce v. Brothers Realty Company, 127 So.2d 756, 759-60 (La.App. 3rd Cir. 1961), best summarizes the “fundamental principles” of dedication, applicable to the present controversy:

We are in agreement with the fundamental principles of dedications that the most definite form of dedication is by a deed setting forth the exact purposes for which the land is conveyed, and a record thereof, together with a plat of the property. The deed may be made to a designated grantee and convey in trust for the public [either full title or a servitude], or may be for a designated purpose, without any grantee. It is also true that no particular form of deed, or deed at all, is necessary for the dedication of land to the public; it suffices that the owner permits the land to be used by the public with the intention of making the dedication. Dedications to public use, and ser-vitudes in favor of the public, are not governed by the strict rules which apply to private property; the visible signs of dedication and open use of the property by the public supply the place of both title and registry. There is no sacramental form to be followed in dedicating property to public use in order that the dedication be effective. Furthermore, it is not necessary that title be in the public, nor is it necessary that the word “dedicate” be used as it is not decisive of the character of the conveyance of the property_(emphasis added) (citations omitted).

According to the principles established in City of Baton Rouge and Joyce, the 1931 document relied on by the State is clear and express evidence of a definite intent to dedicate a right-of-way servitude in favor of the State.

On March 6, 1931, Rufus McKnight, the landowners’ ancestor in title, signed a document entitled “Right of Way Deed,” by which he intended to “dedicate, transfer, assign, set over and deliver unto the State of Louisiana,” a right-of-way servitude over a portion of his property forty feet from the centerline of the old Clinton-Baton Rouge State Highway, now known as Louisiana Highway 67. This deed further stipulated that “It is expressly understood and agreed that this dedication and transfer of the above-described right-of-way is made for and shall be used solely for the construction and maintenance of the said Clinton-Baton Rouge State Highway (Route No. 36), the exact location thereof to be hereafter determined by the State Highway Engineer, and for no other purpose.” The document was signed in the presence of two witnesses and later filed in the conveyance records of East Feliciana Parish on August 8, 1932.

Though lacking authentic form, the document still serves as an express intention to dedicate a servitude to public use. It was made to a designated grantee, for a designated purpose, and though unnecessary, contains express dedicatory language. It was moreover witnessed and recorded, placing all third parties on notice that the property was partially burdened with a servitude.

All that remains then is to find sufficient evidence manifesting a public acceptance of the designated servitude.

From the evidence adduced at trial, the right-of-way was acquired by the State in connection with a 1931 project to resurface the old Clinton-Baton Rouge State Highway, or Plank Road. A.M. McConnell, the landowners’ expert civil engineer and surveyor, testified that prior to the 1931 resurfacing project, the width of the Plank Road right-of-way was 36 feet, or 18 feet from the centerline, as established by an old survey map made in 1838. There is, however, nothing in the record to indicate the actual width of the roadway prior to 1931. According to Ray Ortego, land surveyor for the DOTD, after the acquisition of the 40-foot servitude and the completion of the resurfacing project, the actual width of the new roadway, including the road pavement, the shoulder and the drainage ditch, extended at least 24 feet from the old center-line, or six feet beyond the prior right-of-way established by the 1838 map. Thus, the State actually used at least six feet of the 40-foot right-of-way dedicated to the public for highway purposes.

After completion of the project, the Highway Department also prepared and filed in its Baton Rouge office, a set of “as built” plans. These “as built” plans not only show the actual width of the road that was resurfaced in 1931 but also indicate the 40-foot servitude which the State had acquired over Rufus McKnight’s property.

We note in addition that because the 1931 deed was filed in the public records in 1932, the present landowners had constructive knowledge of the dedication when they acquired the property in 1947, whether they understood the document to be a dedication or not. Incidentally, a survey made in 1975 in connection with a boundary agreement between the Richardsons and an adjacent landowner specifically includes the contested 40-foot servitude and proves that the landowners had actual notice of the dedication as well.

Although acceptance of the dedication by the public can be established by mere use, it is not exclusively established by use. In this case, the 6-foot partial use of the servitude in 1931 and the reference to the servitude in the “as built” plans, prepared after completion of the project, plus the filing of the right-of-way deed in the public records in 1932 together constitute sufficient evidence of public acceptance of the servitude to perfect the dedication.

We reject appellees’ argument that even if the 1931 document effected a valid dedication, the dedication was limited to the use necessary for completion of the 1931 resurfacing project only. Dedications to public use are not governed by the same rules regulating conditional donations and are irrevocable absent a specific reservation of the right of reversion. See Orleans Parish School Board v. Manson, 241 La. 1029, 132 So.2d 885 (1961). The phrase “for no other purpose,” found in the last paragraph of the deed, clearly refers to the designated purpose for which the property was dedicated, namely a highway purpose, and did not limit the use of the property to the particular resurfacing project in 1931.

Accordingly, since parcel “X” falls entirely within the 40-foot servitude to which the State already has title, the DOTD does not owe any compensation for its use.

THE VALUE OF THE LAND TAKEN

All appraisers testified, and the trial court agreed, that the highest and best use of the property was commercial and based their estimates of the value of the land on comparable sales of property in the surrounding area. The DOTD’s two appraisers together estimated the value of the land to be between $19,000.00 and $23,-000.00 per acre. The landowners’ appraiser, Kermit Wayne Williams, estimated the value of the three parcels taken by suit to be roughly between $53,500.00 and $58,-000.00 per acre. They all agreed that the value of the property at the time of the taking should be based on an annual upward adjustment of 12%.

In evaluating this conflicting testimony, the trial judge noted in his reasons for judgment,

The comparables relied on by either side to establish the value of the subject property are to some extent flawed. The Department relied on comparables which were relatively close in time to the dates of the taking but were remote in distance and on the fringe of the growth being experienced in the area. The landowners relied on comparables which were extremely close in physical proximity but rather remote in time. The court feels that the comparables utilized by the landowners with an upward adjustment for time yields the most accurate value of the land. However, the court is not convinced that the 12% per year growth rate used by the defendants’ expert is accurate and feels that a 6% per year upward adjustment in value is the maximum warranted.

While we may have decided this issue differently had we tried the case, we cannot say that the trial court’s acceptance of the landowners’ appraisals is clearly wrong.

The landowners, however, in their answer to the DOTD’s appeal, contend that the trial court’s upward adjustment of 6% rather than 12% is erroneous. We agree. Nothing in the record supports a lower upward adjustment than the 12% agreed on by all the appraisers. A trial court may not substitute its opinion for that of an expert’s when his testimony is based on correct facts and good reasoning. See State, Department of Transportation and Development v. Tynes, 433 So.2d 809, 817 (La.App. 1st Cir.1983).

We accordingly amend the judgment to allow a 12% upward adjustment in the value of the property to the time of the taking.

SEVERANCE DAMAGES

The front of the landowners’ property slopes down to Plank Road in a short but fairly steep dirt embankment. Prior to the taking, there were two points of access through this embankment, a driveway on the south end of the property and a set of concrete steps situated roughly in the middle.

After the taking, the DOTD retained the location of the driveway and steps but constructed along the front of the property an 8-inch barrier curb and a 4-foot high brick wall.

The DOTD’s appraisers testified that because the points of access before and after the taking remained the same, the remaining property suffered no severance damage.

Mr. Williams testified that the construction of the barrier wall and curb diminished the commercial value of the property by a factor of 10%.

Accepting Mr. Williams’ estimate of severance damages, the trial judge reasoned,

If the property were developed commercially, access along its entire front would be extremely desirable. Gaining that type of access has been turned from an easy simple task to an extremely difficult, if not impossible task as a result of the taking. The estimate established by the landowners’ expert of 10% of the value of the remaining property appears reasonable and is accepted by the court.

Severance damage is any depreciation in market value of the remainder of a landowner’s property caused by the taking. Such damages are recoverable and are ordinarily calculated as the difference between the value of the remaining property before and after the taking. State, Department of Highways v. Denham Springs Development Co., Inc., 307 So.2d 304 (La.1975). However, there is no fixed or artificial formula by which such damages must be proved. In fact, the informed and reasoned opinion of an expert, corroborated by the facts in the record, may be sufficient proof of the severance damage loss, especially where it is accepted by the trier of fact. State, through Department of Highways v. Wilson, 372 So.2d 632 (La.App. 1st Cir.1979).

We find no manifest error in the trial court’s factual finding as to severance damages nor in his evaluation of Mr. Williams’ testimony.

The award, however, is based upon a calculation which included the value of the property actually taken with an upward adjustment of only 6% and the amount of compensation awarded for parcel “X”. Deleting the amount of compensation awarded for parcel “X”, and adjusting the growth rate to 12%, the total amount of severance damages is increased from $5,923.24 to $7,433.61.

ATTORNEY FEES

The landowners’ claim for compensation for parcel “X” was based on the general expropriation provisions contained in Title 19. LSA-R.S. 19:8 provides for an award of “reasonable attorney fees” for Title 19 proceedings. Since we have determined that the DOTD does not owe compensation for parcel “X”, the landowners’ claim for attorney fees is limited to 25% of the amount of the excess award as provided in LSA-R.S. 48:453(E). The excess award is calculated by subtracting the amount of the initial deposits ($925.00) from the amount of the final award ($10,-186.52), which now equals $9,261.52. The attorney fees are therefore reduced to $2,315.38.

DECREE

For the foregoing reasons, the judgment of the trial court is amended to reduce the compensation for the amount of land taken from $2,571.05 to $2,002.91, to increase the severance damages from $5,923.24 to $7,433.61, and to reduce the attorney fees from $2,500.00 to $2,315.38. In all other respects, the judgment is affirmed. All costs are to be divided equally between the parties.

AMENDED, AND AS AMENDED, AFFIRMED.

      . The total award of $9,244.29 included certain other specified amounts, which are not contested on appeal, and was subject to a credit of $925.00, the amount previously deposited in the court's registry.

      . The DOTD argues that the State has acquired the right-of-way in a couple of other ways, either through application of the St. Julien doctrine and LSA-R.S. 19:14 or through several suggested periods of prescription. Pretermit-ting discussion of these contentions, we simply note that neither of them are persuasive.

      . Act 630 of 1976, effective October 1, 1976, extends the area acquired as public roads by declaration or by informal dedication to a point one and one-half feet beyond the outside slope of the roadside ditch. Mr. Ortego included this extension in his calculation of the width of Plank Road, making a total of 25.5 feet from the centerline. We decline to apply that statute retroactively in this case and therefore have subtracted that extension from Mr. Ortego’s calculations. See State, Dept. of Highways v. Traina, 347 So.2d 55, 57 (La.App. 2d Cir.1977).

      . The total amount of severance damages equals 10% of the difference between the total value of the property before the taking, estimated by Mr. Williams to be $77,089.00, and the value of the property actually taken, which with an upward adjustment of 12%, minus the amount owed for parcel “X”, now equals $2,752.91. This results in a figure of $7,433.61.