author: DANIEL S. PEARSON, Judge.

text:
    DORCHESTER DEVELOPMENT, INC., Appellant, v. Tema BURK, Schwartz & Nash, a Professional Association, formerly known as Schwartz, Nash, Heckerling, Tescher and Kantor, a Professional Corporation, a Florida Corporation, Donald Eaton, Jane Levin and Jay Bee Associates, Appellees.
    No. 83-712.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.

      Robert A. Glassman and John R. Farrell, Miami, for appellant.
    Schwartz & Nash and Dale A. Hecker-ling, Miami, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

Dorchester Development, Inc., a developer of a condominium project, appeals from a summary judgment entered in favor of, among others, the purchasers of certain condominium units, which judgment rescinded the agreements to purchase and ordered the refund of the purchasers’ deposits.

There are no disputed facts. In January and February 1980, Dorchester entered into separate but identical contracts with each of the purchasers. In June and July 1981, the condominium units were completed. The purchasers, upon being notified of this fact, requested rescission under the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq. (1982). The Act, in pertinent part, prohibits a developer from making use of any means or instruments of transportation or communications in interstate commerce, or of the mail’s, in connection with the sale of any real property such as that here involved, unless, inter alia, a printed property report meeting the requirements of Section 1707 of the Act is furnished to a purchaser in advance of the signing of any contract or agreement for sale by the purchaser. 15 U.S.C. § 1703(a)(1)(B). The Act further provides that if no property report is furnished in accordance with the statute, the purchaser, at his option, may revoke the contract within two years of its execution. 15 U.S.C. § 1703(c).

Dorchester concedes that no property reports were furnished to the purchasers. Its position below was, and on appeal is, that the instant transactions come within an exemption to the Act, which states that the Act’s provisions are inapplicable to

“[t]he sale or lease of any improved land on which there is a residential, commercial, condominium, or industrial building, or the sale or lease of land under a contract obligating the seller or lessor to erect such a building thereon within a period of two years.” 15 U.S.C. § 1702(a)(2) (emphasis supplied).

Dorchester argues that it is within the exemption because the contracts gave the purchasers the option to rescind if the condominiums were not completed within two years, that is, by November 30, 1981. The contracts provide in pertinent part:

“4. ESTIMATED COMPLETION DATE. Seller estimates that the unit will be completed and ready for occupancy by Buyer on or before March 31, 1981. However, the expression of an estimated time of delivery on the part of the Seller is made as an accommodation to Purchaser to assist Purchaser in formulating future plans, but it shall not be considered as time which is of the essence of this Agreement and it shall be subject to amendment by Seller should Seller’s progress or plans be altered by conditions unforeseen by or outside the control of Seller, and any such amendment shall not require formal or specific notice by Seller to Purchaser. Purchaser understands and agrees that Seller can neither imply or guarantee a firm completion and availability date for the unit, such advance projections being, and by their nature having to be, approximations only. Seller shall make reasonable effort to meet or to accelerate estimated construction schedule, but Seller shall not be obligated to make, provide or compensate for any accommodations to Purchaser as a result of delayed or accelerated completion.
“17. In the event that the unit is not completed by November 30, 1981, it shall be optional with Purchaser as to whether to extend the date for closing or to cancel this Agreement and receive back a refund of the deposit and all interest earned thereon in which event this Agreement shall become null and void and of no further effect.”

Dorchester contends that the contracts, specifically paragraph 17 thereof, effectively obligate it to erect the condominium by November 30, 1981, that is, within a period of two years. The purchasers argue that nowhere in the contract is there a requirement that Dorchester complete the building and that this omission is fatal to Dorches-ter’s position. We agree with the purchasers.

The provision of paragraph 17 of the contract is not, as we read it, the functional equivalent of an obligation to erect the condominium building' within a period of two years so as to bring Dorchester within the exemption. The obligation which a seller must undertake in order to come within the exemption of the Act is, by the Act’s plain language, to erect the building within two years. However, the sole obligation which Dorchester undertook was to give the purchasers an option to cancel the contracts and receive back their deposits in the event the condominium units were not erected by November 30, 1981. This latter obligation is no different than the obligation which the Act itself imposes upon Dorchester by virtue of Dorchester’s failure to furnish property reports to the purchasers.

A construction contract obligating the seller to complete the called-for building by a time certain is not the equivalent of a contract, as here, which limits the purchaser to the right to the return of his deposit in the event the building is not constructed by a certain time. Where the seller is obligated to complete by a time certain, the purchaser is not limited, as here, to the remedy of rescission, but he may affirm the contract and seek damages. See Marshall v. Karl F. Schultz, Inc., 438 So.2d 533 (Fla. 2d DCA 1983) (where contractor breaches a contract by failing to complete an improvement, owner’s measure of damages is the difference between the contract price and the reasonable cost to complete the improvement and damages for delay in the completion of the improvement measured by its rental value during the period of delay); Mazzotta v. Bornstein, 104 Conn. 430, 133 A. 677 (1926) (contractor will be held accountable in damages for delay even if delay in performance is not deemed so material as to allow owner to rescind contract); Richard Deeves & Son v. Manhattan Life Ins. Co., 195 N.Y. 324, 88 N.E. 395 (1909) (where contractor fails to complete building contract by time specified, owner’s waiver of right to terminate contract does not waive owner’s claim for damages caused by contractor’s delay). See also Ocean Ridge Development Corporation v. Quality Plastering, Inc., 247 So.2d 72 (Fla. 4th DCA 1971); 17A C.J.S. Contracts § 502(4) (1963). Since the Act is to be construed to effectuate its remedial purpose of protecting the land sale consumer, McCown v. Heidler, 527 F.2d 204 (10th Cir. 1975); Nargiz v. Henlopen Developers, 380 A.2d 1361 (Del.1977), we can hardly conclude that a contract which has the effect of limiting the purchaser’s remedies conforms to the requirements of the Act.

Nor does Mosher v. Southridge Associates, Inc., 552 F.Supp. 1226 (W.D.Pa.1982), upon which Dorchester primarily relies, lend any support to its position. In Mosher, the agreement for sale provided that:

“in accordance with the Interstate Land Sales Full Disclosure Act ..., the Developer acknowledges its unconditional obligation to complete and deliver the Unit to Buyer within not more than twenty-four (24) months from the execution of this Agreement.” 552 F.Supp. at 1228.

Although the agreement in Mosher also provided that the buyer understood that the developer could not guarantee a firm completion or availability date, and accorded the buyer-an option to rescind if the unit was not completed on time, the court found:

“The clear language used by the parties indicates that while the date of delivery cannot be agreed upon with precision it must, nevertheless, precede the expiration of twenty-four months from the date of the agreement. The second quoted paragraph is merely a damage provision in the event the defendant failed to meet its time obligation. It cannot be read so as to render the obligation conditional against the very terms of its expression in the agreement.” 552 F.Supp. at 1229.

Therefore, because the contracts in the present cause do not contain an unconditional commitment by Dorchester to complete the condominium units within two years, Dorchester is not exempt from the provision of the Act requiring that it furnish a property report to the purchasers in advance of the signing of the contract. Accordingly, since no property report was furnished, the purchasers had a statutory right to rescission and the refund of their deposits. -The judgment of the trial court is

Affirmed.

      . Dorchester correctly does not rely on the fact that the units were actually completed within two years. As the court said in Nargiz v. Henlopen Developers, 380 A.2d 1361, 1364-65 (Del.1977):
      “Henlopen Developers ... points to the fact that although the contract did not expressly require it, the appellant’s condominium unit was actually completed within two years from the date of the contract. If the purpose of the Interstate Land Sales Full Disclosure Act is to protect purchasers against fraudulent land development schemes and if the Act is satisfied that no fraud is likely if the sales agreement obligates the seller to erect a building on the land within two years, then Henlopen Developers fails to see where there can be any fraud present when the bargained-for construction is completed within two years. It suggests that to permit the appellant to escape from the contract without penalty under these circumstances is to interpret the Act so as to permit a purchaser to perpetrate a fraud upon a developer who has acted in good faith.
      “While this may appear to be true, the fact remains that the federal Act exists and, as we have held, applies to this transaction. To be exempt under § 1702(a)(3) from providing the property report and still avoid the purchaser’s statutory right to withdraw, the seller must be obligated under the terms of the sales contract to erect a building within two years. The contract imposed no such obligation here, and the language of the statute makes it clear that no such obligation can be implied.”

      . 15 U.S.C. § 1703(c) provides:
      “(c) In the case of any contract or agreement for the sale or lease of a lot for which a property report is required by this chapter and the property report has not been given to the purchaser or lessee in advance of his or her signing such contract or agreement, such contract or agreement may be revoked at the option of the purchaser or lessee within two years from the date of such signing, and such contract or agreement shall clearly provide this right.” (emphasis supplied).

      . Dorchester relies as well on a series of unreported trial court decisions which were included, along with the underlying contracts, in an appendix to its brief. The appellees stipulated to the accuracy of the decisions and contracts and agreed that this court could review them. They are of absolutely no help to Dorchester, not merely because they are not binding on us, but because in each the developer-builder, as in Mosher, unconditionally undertook to complete the unit within two years.

      . Dorchester’s appendix, see n. 3, supra, included the contract between Mosher and South-ridge Associates, Inc. The contract includes a provision which was not mentioned in the opinion of the district court. The provision reads: “If for any reason whatsoever Developer should default in the performance of any of the obligations to be performed by Developer pursuant to this Agreement, Developer’s liability hereunder shall be limited to the return of any and all monies paid by Buyer. No action for specific performance of this Agreement shall lie in favor of Buyer.” This provision, had it not been overlooked by the district court, would likely have caused a different result.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CORAT INTERNATIONAL, INC., a Florida corporation, Appellant, v. SAUDI NATIONAL LINES, Appellee.
    No. 83-732.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.

      Maland & Turetsky and Robert C. Ma-land, Miami, for appellant.
    Holland & Knight and Michael T. Moore and George Mencio, Jr., Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Assuming, arguendo, that the ap-pellee deviated from the bill of lading by stowing the appellant’s goods above rather than below deck, such a deviation does not relieve the appellant of the requirement of the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq. (1976), that suit against the appellee be “brought within one year after delivery of the goods or the date when the goods should have been delivered.” 46 U.S.C. § 1303(6) (1976). Francosteel Corp. v. N.V. Nederlandsch Amerikaansche, Stoomvart-Maatschappij, 249 Cal.App.2d 880, 57 Cal.Rptr. 867, cert. denied, 389 U.S. 931, 88 S.Ct. 293, 19 L.Ed.2d 282 (1967). See Hellyer v. Nippon Yesen Kaisya, 130 F.Supp. 209 (S.D.N.Y.1955); Potter v. North German Lloyd, 50 F.Supp. 173 (N.D. Cal.1943); Singer Hosiery Mills of New York, Inc. v. Canard White Star Limited, 199 Misc. 389, 102 N.Y.S.2d 762 (N.Y.Munic. Ct.1951). But see Cerro Sales Corporation v. Atlantic Marine Enterprises, Inc., 403 F.Supp. 562 (S.D.N.Y.1975). Since it appears on the face of the complaint that the appellant’s suit was brought well after the statute of limitations expired, the trial court was eminently correct in dismissing the complaint. See Roehner v. Atlantic Coast Development Corp., 356 So.2d 1296 (Fla. 4th DCA 1978).

Affirmed.


text:
    CARMEN F. ZOLLO, INC., a foreign corporation, Appellant, v. MIAMI FOOTWEAR CORPORATION, a Florida corporation, Appellee.
    No. 83-1107.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Jones & Zaifert, Fort Lauderdale, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack and S. Daniel Ponce and Dina V. Cellini, Miami, for appellee.
    Before NESBITT and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Eder v. Yvette B. Gervey Interiors, Inc., 407 So.2d 312 (Fla. 4th DCA 1981); Yelen v. Cindy’s, Inc., 386 So.2d 1234 (Fla. 3d DCA), pet. for review dismissed, 394 So.2d 1154 (Fla.1980).


author: FERGUSON, Judge.

text:
    Aaron SANDS, Appellant, v. Lucy WOOTEN, Vernancha Dawson, William Dawson, Ellen Mackey, Miriam Bonaparte, Sarah Allen, Jullenia Sands and Alfred Sands, Appellees.
    No. 83-1790.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Brigham, Moore, Muir, Gaylord, Schuster & Sachs, and J. Christie Wilson, III, Miami, for appellant.
    Wallace, Engels, Pertnoy & Solowsky and Alfred I. Hopkins, and William Aaron, Miami, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

This appeal is from a judgment on the pleadings entered for defendants/cross-claimants in an eminent domain proceeding.

On April 19, 1965, the then county probate court entered an order distributing the estate of Theophilus Sands, consisting of a single family dwelling, to his son Aaron Sands who is the appellant. The appellees, who are sisters and brothers of Aaron, had executed waivers in February, 1965 whereby they ostensibly disclaimed any right to the estate of their father and requested the court to order distribution of the entire estate to Aaron.

In 1982, the county commenced eminent domain proceedings against the property now occupied by Aaron, his sister Vernan-cha and her husband, William Dawson. The county named as defendants the sisters and brothers as well as Aaron. Appellees, sisters and brothers, cross-claimed asserting that by executing the 1965 waivers they did not intend to convey title to real estate, but rather simply did it “as a convenience to enable Aaron to consummate a mortgage refinancing transaction respecting the premises.. .. ”

After a hearing the court granted appellees’/cross-claimants’ motion for judgment on the pleadings. The sole ground for the ruling is set forth in paragraph three of the judgment:

3.- The instruments styled “Waiver of Rights to Estate” executed by the Cross-Plaintiffs and filed in the Estate of Theo-philus Sands, being Case No. 65568-B in the County Judges Court in and for Dade County, Florida, each lack two subscribing witnesses as required by Florida Statutes, Sec. 689.01, and therefore were ineffective to release the proprietary interests of the Cross-Plaintiffs in favor of the Cross-Defendant in and to the above-described [sic] property.

The claimed inefficacy of the waiver instruments does not go to the court’s jurisdiction and cannot be relied upon to collaterally attack a judgment eighteen years later. See In Re Estate of Kant, 272 So.2d 153, 156 (Fla.1972); In Re Begg’s Estate 152 Fla. 277, 12 So.2d 115 (Fla.1943) (where the court has jurisdiction of the subject matter and the parties, the judgment or decree entered is binding and not subject to collateral attack even though errors or irregularities of procedure exist). If the waivers, which were incorporated into the order of distribution, were legally defective, the aggrieved parties-in-interest were obligated to file a timely motion for rehearing or motion to amend judgment, or to take an appeal within thirty days. Having failed to do either they are now precluded from setting aside the order. See Aoun v. Aoun, 428 So.2d 707 (Fla. 3d DCA 1983); Barrios v. Draper, 423 So.2d 1002 (Fla. 3d DCA 1982); Fiber Crete Homes, Inc. v. Division of Administration, Department of Transportation, 315 So.2d 492 (Fla. 4th DCA 1975); Keller v. Belcher, 256 So.2d 561 (Fla. 3d DCA 1971), cert. denied, 280 So.2d 682 (Fla. 1972).

Reversed and remanded for further proceedings.

      . No less than two grounds were argued, to the trial court and here, in support of the motion: (1) the instruments purporting to waive interest in the estate are without legal efficacy, (2) the county court was without jurisdiction to enter an order distributing the estate of the deceased. We rule only on the first ground because it is the only stated basis for the judgment.
      . We have suggested strongly nonetheless that the second ground is also baseless. In Grapes v. Mitchell, 159 So.2d 465 (Fla.1963), a factually similar case heavily relied upon by appellees, the court did not invalidate the distribution even though the waivers were defective, but instead imposed a resulting trust after a factual finding that it reflected the parties’ intent. Another case relied upon by appellees, In Re Estate of Feldman, 109 So.2d 407 (Fla. 2d DCA 1959), is distinguishable. In Feldman it was the fact that real property claims were based on an extrinsic instrument (a settlement agreement in a contested will case), itself the subject of a dispute in the county probate court, which divested that court of jurisdiction over the subject matter. In the instant case the county probate court was not without jurisdiction to order distribution where, at the time the matter was before the probate judge, all the potential beneficiaries were in agreement that there were no disputed claims.


author: PER CURIAM. FERGUSON, Judge

text:
    Arsenio GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2438.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Arsenio Garcia, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and FERGUSON, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed. See Messer v. State, 439 So.2d 875 (Fla.1983); Palmes v. State, 425 So.2d 4 (Fla.1983); Thompson v. State, 410 So.2d 500 (Fla.1982).

FERGUSON, Judge

(concurring).

It cannot be determined from the motion or the scant record provided whether an appeal was taken from the conviction and sentence. Nevertheless, the issue presented is one which should have been raised on a direct appeal. For this reason I concur in the result.


author: ANDREWS, ROBERT LANCE, Associate Judge. GLICKSTEIN, Judge,

text:
    Alexander WESTBROOK, Appellant, v. STATE of Florida, Appellee.
    No. 82-1465.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Dorothy M. Walker of Walker & Vetrick, Belle Glade, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANDREWS, ROBERT LANCE, Associate Judge.

This is an appeal from a conviction of attempted first degree murder and a sentence of thirty years.

The facts surrounding the stabbing of the victim involve a web of alleged or actual homosexual relationships or of promises of such relationships at the Glades Correction Institute. There is no dispute that appellant stabbed the victim, as counsel stipulated to that fact.

In order to understand the holding of this case, one must first know the appellant’s past history. Appellant, Alexander West-brook, is not one of society’s greatest treasures, and it may well be that the appellant should spend the rest of his natural life segregated from the world, for its protection.

The appellant’s father committed suicide, his mother allegedly followed his father sometime later in the same act and appellant had, on at least one occasion, attempted suicide himself. The evaluation of the appellant at Avon Park Correctional Institute reflected that the appellant talked with his deceased father and requested that his deceased mother be placed on his visiting list.

At least one of the court-appointed psychologists, Doctor J. Patrick Peterson, in a letter to defense counsel, dated May 25, 1982, indicated:

Dear Miss Walker, this is to confirm the details of my involvement in the above referenced case, as discussed with you by telephone earlier this date.
As I stated to you, I will be able to visit the Palm Beach County Jail and evaluate the defendant on the morning of Thursday, May 27th, and I will be able to provide you some preliminary oral feedback regarding the evaluation by telephone the next day. However, it will not be possible for a written report containing my final conclusion to be prepared and delivered in time for a June 1 trial date, especially in consideration of the intervening legal holiday.
Furthermore, inasmuch as this defendant is known to have been previously incarcerated/hospitalized in various facilities and institutions throughout the State of Florida, it is my professional opinion that no definite statement regarding his prevailing mental state at any particular point in time can be offered in the absence of complete medical records regarding these earlier episodes.
As I also indicated to you, I am presently awaiting the Court Order by which I will be authorized to evaluate the defendant at the jail and also by which the Court will authorize payment of the professional fees involved by Palm Beach County. Once having received this authorization, I will proceed as described. Yours, J. Patrick Peterson, Ph.D.

At one point, the trial judge himself was concerned about the eagerness of the State to proceed to trial and expressed the following:

THE COURT: Well, you know, we have been through this for six or seven days now, Mr. Barlow. I am really torn and concerned about the State’s eagerness to go to trial. She has a record here replete with her concerns and it looks like it’s a lot more than just delaying — [emphasis added].

Appellant’s trial began on June 4, 1982; the rest is history. Verdict was returned by the jury on June 4, 1982, and the cause proceeded immediately to sentencing.

The merits of appellant’s claim of insanity are not an issue in this appeal. The issue is one of lack of opportunity to inquire into appellant’s background and of sufficient preparation time.

The State argues that the conviction and sentence should stand inasmuch as there was no unseemly rush to judgment. We reject the State’s contentions. The transcript of the hearings demonstrates an atmosphere of intentional speed and disregard for even the most fundamental concepts of due process.

Once again, it is necessary to point to the basic premise set out in Valle v. State, 394 So.2d 1004 (Fla.1981):

“Justice requires, and it is the universal rule, observed in all courts of this country, it is most sincerely to be hoped, that reasonable time is afforded to all persons accused of crime in which to prepare for their defense. A judicial trial becomes a farce, a mere burlesque, and in serious cases a most gruesome one at that, when a person is hurried into a trial upon an indictment charging him with a high crime, without permitting him the privilege of examining the charge and time for preparing his defense. It is unnecessary to dwell upon the seriousness of such an error; it strikes at the root and base of constitutional liberties; it makes for a deprivation of liberty or life without due process of law; it destroys confidence in the institutions of free America and brings our very government into disrepute.”

Id. at 1007 (quoting Coker v. State, 82 Fla. 5, 7, 89 So. 222, 222 (1921)).

We conclude that in the atmosphere that existed before the trial court, this cause was expedited in such a manner that it denied appellant his basic rights to a fair trial and that the action of the trial judge constituted an abuse of discretion.

REVERSED AND REMANDED FOR NEW TRIAL.

HERSEY, J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specialty-

I concur in the holding in this case, and agree with the reasoning by which it was reached. However, conscience dictates that I add a few words to forestall possible misunderstanding of our attitude toward the appellant.

The appellant may well be a reprehensible figure. He is surely a pathetic one. But the true measure of the level of civilization a society has reached is how its justice system treats the least of its members.

Our attention to this case is not in spite of appellant’s unsavory history, but because of it. Those upon whom Fortune has smiled can look out for themselves; we must look out for those who have known only Her frowns. Nor is this merely a matter of noblesse oblige; for there, but for the grace of God, goes any of us.

The appellant has traveled a life’s path paved with adversity. It may be that in the end the judicial system will seal his fate. If so, it will be only after he has had a fair chance to show why it should not be. The effective aid and assistance of counsel entails more than appointment of a competent member of the bar for an indigent accused. Counsel must have a reasonable time in which to prepare her case. Here, this includes a reasonable time for the court-appointed psychological expert to obtain and evaluate the records from which appellant’s mental health history can be reconstructed.

The Sixth Amendment cannot be satisfied pro forma.

      . Reproduced as transcribed by court reporter, with emphasis added.


text:
    STATE of Florida, Appellant, v. Harry G. METCALF, James Metcalf, Grady Aycock and Burry Stanford, Appellees.
    No. 82-1030.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    Milton E. Grusmark, P.A., Miami, for ap-pellees.
   PER CURIAM.

We reverse and remand for further proceedings upon authority of State v. Kaufman, 430 So.2d 904 (Fla.1983), certified by the Fifth District.

REVERSED and REMANDED.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


author: HURLEY, Judge.

text:
    William H. KOCH, Appellant, v. WALLER & COMPANY, INC., a Florida Corporation, Multiple Images, Inc., a Florida corporation, Mal Camins and Edward Wignall, Appellees.
    No. 82-2248.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.

      L. Louis Mrachek of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellant.
    L. Martin Reeder, Jr., of Steel Hector Davis Burns & Middleton, Palm Beach, for appellee-Waller & Co., Inc.
   HURLEY, Judge.

This appeal challenges a final judgment which confirmed an arbitration award and found that William H. Koch, in his individual capacity, is jointly and severally liable with others for $101,842.67. We conclude that Mr. Koch, by failing to raise an objection in the arbitration proceedings, waived his right to contest personal liability in the circuit court and, therefore, we affirm.

Mai Camins, Edward Wignall and William H. Koch signed a contract with Waller and Co., Inc. (Waller) to perform construction work on a retail store or gallery in Palm Beach. In the two places where his name appeared on the contract, Mr. Koch added the designation, “Pres. Multiple Images, Inc.” Eventually, difficulties developed among the parties and, pursuant to a provision in the contract, Waller sought arbitration. Utilizing a form provided by the American Arbitration Association, styled “Demand for Arbitration,” Waller specified the following as the parties upon whom demand was being made: “Multiple Images — Mai Cumins, Edward Wignall and William H. Koch.” The demand also stated the following:

You are hereby notified that copies of our Arbitration Agreement and of the Demand are being filed with the American Arbitration Association at its Miami Regional Office, with the request that it commence the administration of the arbitration. Under Section 7 of the Arbitration Rules, you may file an answering statement within seven days after notice from the Administrator.

Camins, Wignall and Multiple Images, all represented by the same attorney, filed an answering statement; Koch did not. (Counsel indicated at oral argument that, under the applicable rules, the failure to file an answering statement constituted a denial of the allegations contained in the demand for arbitration.) Later, by affidavit, Mr. Koch admitted that he was “familiar with all papers filed in the arbitration proceedings ... and was personally in attendance throughout the arbitration proceedings.” Incidentally, the record contains a letter from a proposed arbitrator who, well before the arbitration hearing, disqualified himself because he was a friend of Mr. Koch and the arbitrator believed that it would be “difficult to serve impartially as an arbitrator in a case in which he is a defendant." (Emphasis supplied.) The record further reflects that during the arbitration proceedings, Mr. Koch never objected to, nor raised the issue of his status as an individual defendant.

At the conclusion of the arbitration proceedings, an award was entered in favor of Waller against Multiple Images, Mal Ca-mins, Edward Wignall and William H. Koch. Accordingly, Waller filed an action in the circuit court to confirm the arbitration award. Koch responded by filing an objection in which, for the first time, he raised the defense that he had signed the contract in a representative capacity and, therefore, was not personally liable. The trial court ruled that Koch had waived this defense. The court reasoned that “[t]he waiver results because Koch fully participated in the arbitration proceeding without ever raising the defense that he was not personally liable .... ” Hence, the court found that Mr. Koch, in his individual capacity was jointly and severally liable with Messrs. Camins and Wignall and with Multiple Images (now in bankruptcy) for $101,-842.67. Koch appealed.

Arbitration clauses are placed in contracts to ensure the availability of a convenient and efficient forum for the expeditious resolution of disputes. Indeed, “[sjpeed is one of the great advantages of commercial arbitration.” Necchi Sewing Machine Sales Corp. v. Necchi, S.p.A., 369 F.2d 579, 582 (2d Cir.1966). To achieve this end, most states have enacted statutory schemes which regulate arbitration and guarantee due process. “Arbitration laws are passed to expedite and facilitate the settlement of disputes and avoid the delay caused by litigation. It was never intended that these laws should be used as a means of furthering and extending delays.” Radiator Specialty Co. v. Cannon Mills, Inc., 97 F.2d 318, 319 (4th Cir.1938). Appellant’s position in the case at bar is a prime example of dilatory posturing which runs afoul of the spirit and express provisions of Chapter 682, the Florida Arbitration Code.

Chapter 682 provides two methods by which a party may contest arbitration. Either during or prior to the commencement of the arbitration proceedings, a party may apply to the circuit court for a stay on the ground that “no agreement or provision for arbitration . .. exists between the party making the application and the party causing the arbitration to be had.” Section 682.03(4), Florida Statutes (1981). Alternatively, a party may apply to the circuit court to vacate an arbitration award when “[tjhere was no agreement or provision for arbitration ... ■ unless the matter was determined in proceedings under section 682.-03 and unless the party participated in the arbitration hearing without raising the objection.” Section 682.13(l)(e), Florida Statutes (1981). The latter provision should be read in the disjunctive: a party may move to vacate unless the court has already ruled on the issue or the party participated in the arbitration and failed to object.

In the case at bar, Mr. Koch seeks to avoid the waiver provision of section 682.-13(l)(e), Florida Statutes (1981), by contending that he participated in the arbitration proceeding only in his representative capacity as president of Multiple Images, Inc. He claims that he had no reason to suspect that the arbitration proceeding had anything to do with his personal liability and, thus, he asserts that the proceedings in the circuit court presented the first opportunity to raise the defense of a lack of personal liability. The facts do not support these contentions. First, the demand for arbitration, with which Mr. Koch was admittedly familiar, plainly listed the corporation and three individuals (including Koch) as defendants. Second, a proposed arbitrator recognized that Mr. Koch was a defendant and expressly disqualified himself on that basis. Third, Mr. Koch failed to avail himself of the stay provision in section 682.-03(4), Florida Statutes (1981). Fourth, Mr. Koch appeared at the arbitration hearing and failed to object to or otherwise contest personal liability. Thus, he falls squarely within the ambit of section 682.13(l)(e), Florida Statutes (1981), and is foreclosed from contesting personal liability because he “participated in the arbitration hearing without raising the objection.” Cf. Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966).

Accordingly, the judgment is

AFFIRMED.

BERANEK, J., concurs.

ANSTEAD, C.J., dissents without opinion.


text:
    Norris OAKLEY, Appellant, v. Eugenie OAKLEY, Appellee.
    No. 82-2629.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Norris Oakley, Hollywood, pro se appellant.
    Burt E. Eisenberg of David Friedman, P.A., Hollywood, for appellee.
   PER CURIAM.

This is an appeal from that portion of a final judgment of dissolution requiring sale of the marital home and division of the proceeds. We determine that the trial court lacked subject matter jurisdiction to order the sale and reverse.

Sale of property held by tenants by the entireties being pursuant to partition, this relief was not sought by either party’s pleadings in this case. As established by Defreitas v. Defreitas, 398 So.2d 991, 992 (Fla. 4th DCA 1981), a “trial court lacks jurisdiction to hear and determine matters which are not the subject of appropriate pleadings and notice.” In addition to requiring appropriate pleadings, Florida courts have also mandated compliance with the due process steps found in Chapter 64 of the Florida Statutes. E.g., Bonifay v. Bonifay, 383 So.2d 755 (Fla. 4th DCA 1980); Sanders v. Sanders, 351 So.2d 1126 (Fla. 2d DCA 1977). The instant trial court lacked both imperatives, and thus exceeded its jurisdiction.

LETTS, GLICKSTEIN and WALDEN, JJ., concur.


text:
    Adrienne YEAKLE, Appellant, v. Robert B. YEAKLE, Appellee.
    No. 83-351.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Michael F. Erdheim, New York City, and Dennis Usdan, Plantation, for appellant.
    John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appel-lee.
   PER CURIAM.

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

BERANEK, DELL and WALDEN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Keith Anthony RUVOLO, Appellee.
    No. 83-439.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

We find the allegations contained in the information charging appellee with burglary sufficient to meet the standard set forth in State v. Waters, 436 So.2d 66 (Fla.1983). We recognize that the Supreme Court had not issued its opinion at the time the trial court dismissed the information.

REVERSED and REMANDED.

BERANEK, DELL and WALDEN, JJ., concur.


text:
    STATE of Florida, Appellant, v. John GRANT, Appellee.
    No. 83-925.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellant.
    Melvin S. Black, Miami and Robert M. Axelrod, Meriden, Conn., for appellee.
   PER CURIAM.

Affirmed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Waksal, 709 F.2d 653 (11th Cir.1983); United States v. Berry, 670 F.2d 583 (5th Cir.1982); McNamara v. State, 357 So.2d 410 (Fla.1978); State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979).

LETTS, BERANEK and GLICKSTEIN, JJ., concur.


author: WALDEN, Judge.

text:
    Peter F.K. BARABAN, Appellant, v. Irving SUSSMAN, Trustee, et al., Appellees.
    No. 83-1134.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Dale F. Webner of Williams, Salomon, Kanner, Damian, Weissler & Brooks, Miami, for appellant.
    Barry N. Greenberg of Robinson & Greenberg, P.A., Miami, for appellee-Suss-man.
   WALDEN, Judge.

This is an appeal from an order denying the defendant’s motion to dismiss for insufficient service of process.

The Sheriff being unable to serve Defendant, Baraban, the Plaintiff applied to the trial court for appointment of a private process server under the provisions of Fla. R.Civ.P. 1.070(b). The trial court appointed James A. Morton. Thereafter, service was made by Dane Obradavich, an employee of James A. Morton.

Defendant, Baraban, filed a motion to dismiss the complaint on several grounds. One ground was the insufficiency of service of process because, among other things, “the purported process server was not properly appointed.”

We have two things to say.

FIRST

Florida Rule of Civil Procedure 1.070(b) provides, “Service of process may be made by an officer authorized by law to serve process but the court may appoint any competent person not interested in the action to serve the process.” (Emphasis supplied). As seen, there are two criteria to be met in appointing a private process server, the person must be competent and disinterested in the action. Presumptively the trial court made such determination in appointing James A. Morton. However, no such determination was made with reference to Dane Obradavich as she was not appointed. We do not know if that person is competent or interested in the action. Further, we can in nowise interpret the appointment of Morton to mean and to include Morton’s employees, agents or designees as alternate private process servers.

It is necessary to follow the provisions of the mentioned Rule in order to effectively obtain the appointment of an elisor (process server). See Petition of Stoll, 309 So.2d 190 (Fla. 1st DCA 1975) and Exchange National Bank of Chicago v. Rotocast Plastic Products, Inc., 352 So.2d 145 (Fla. 3d DCA 1977). Moreover, strict compliance with service of process procedures is required. Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla.1977).

We hold that service of process upon Defendant, Baraban, made by Dane Obra-dovich was a nullity and that same should be quashed.

SECOND

Without laboring the matter we feel that the classic and preferable manner of presenting a defense of insufficiency of service of process under Florida Rule of Civil Procedure 1.140(b)(5) is by a motion to quash such allegedly insufficient service of process rather than by a motion to dismiss the complaint. However, in Lendsay v. Cotton, 123 So.2d 745 (Fla. 3d DCA 1960) it was held that a motion to dismiss, as well as a motion to quash, is appropriate to question the trial court’s jurisdiction based on insufficiency of service of process. We agree, remembering that the rules shall be construed to secure the just, speedy and inexpensive determination of every action. Fla.R.Civ.P. 1.010. Here, the content of the motion to dismiss was explicit in its attack on the process and it cannot be said that plaintiffs have been in anyway prejudiced by the fact that movant asked for dismissal of the complaint rather than for service of process to be quashed. Of course, insufficient service merits only a nullification and not the dismissal of the complaint.

Thus we reverse and remand with instructions to quash the service of process made by Dane Obradavich upon Defendant, Baraban.

Reversed and remanded.

GLICKSTEIN and HURLEY, JJ., concur.


text:
    Eugene Garton ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1654.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Eugene Garton Adams, pro se, appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Bruce M. Lee, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant, incarcerated under a sentence of 144 years, seeks review from the summary denial of his Fla.R.Crim.P. 3.850 motion to vacate sentence. The appeal is pursuant to Fla.R.App.P. 9.140(g), which requires that this court reverse for an evidentiary hearing “unless the record shows conclusively that the appellant is entitled to no relief.” After considering the record and the specially requested brief of the State, we find an evidentiary hearing to have been necessary. The matter is thus remanded for a hearing.

REMANDED.

ANSTEAD, C.J., and BERANEK and DELL, JJ., concur.


author: OTT, Chief Judge.

text:
    John E. NETTLES, Truck Insurance Exchange, and Incorporated Carriers, Ltd., Appellants, v. Corkleigh E. WHITE, Appellee.
    No. 83-478.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1983.

      E.N. Fay, Jr., of Mann & Fay, Chartered, Bradenton, for appellants.
    Terence Matthews, Bradenton, for appel-lee.
   OTT, Chief Judge.

Appellants contend that the trial court lacked in personam jurisdiction over them and thus erred in denying their motions to quash process or to dismiss. We agree as to appellants Truck Insurance Exchange and Incorporated Carriers, Ltd., and reverse as to them, but we affirm as to appellant Nettles.

Appellee sued appellants in a three-count complaint seeking damages arising out of a motor vehicle collision which occurred in Florida. Appellee concedes that his initial attempt to effect service of process upon the three nonresident appellants was improper and, therefore, failed to confer jurisdiction upon the trial court. Thus, the only issue before this court is whether appellee obtained valid service of process over appellants through alias summonses issued under Florida Rule of Civil Procedure 1.070(b).

The Florida long-arm statute, section 48.193(l)(b), Florida Statutes (1981), confers jurisdiction of Florida courts over one who commits a tortious act within this state. Under section 48.194, Florida Statutes (1981), personal service of process must be perfected upon nonresidents subject to Florida’s long-arm jurisdiction. P.S.R. Associates v. Artcraft-Heath, 364 So.2d 855 (Fla. 2d DCA 1978).

Appellee’s complaint alleged that Nettles, an employee of Incorporated Carriers, Ltd., committed the tortious acts of negligence, assault, and battery while driving a motor vehicle within the State of Florida. Appellee attempted to serve Nettles by having the sheriff of Cook County, Illinois, deliver the alias summons and a copy of the complaint to any person residing at Nettles’ usual place of abode who was fifteen years of age or older. § 48.194, Fla.Stat. (1981), § 48.031(1), id. The affidavit accompanying the Cook County Sheriff’s return states that service was effected by delivery to “Ms. Nettles, FW 35, a person of his family of the age of 13 years or upwards.”

Nettles contends that this affidavit does not establish that the alias summons and complaint were delivered to a person fifteen years of age or older as required by section 48.031(1). Appellee responds that the notation “FW 35” logically means that Ms. Nettles was “female, white, age 35.” We cannot say that the trial court abused its discretion in concluding that Ms. Nettles was fifteen years of age or older as indicated by the “FW 35” notation.

Appellant Truck Insurance Exchange, who purportedly insured Nettles at the time of the accident, is subject to jurisdiction under section 48.193(l)(d), Florida Statutes (1981), only if it contracted “to insure any person, property, or risk located within this state at the time of contracting.” Because appellee’s complaint failed to allege sufficient facts to show that Truck Insurance Exchange had insured a driver or his vehicle located within the state at the time of contracting, the trial court should have quashed service of process on the insurer. Esberger v. First Florida Business Consultants, Inc., 338 So.2d 561 (Fla. 2d DCA 1976). We should note that appellee did not try to obtain jurisdiction by serving the Insurance Commissioner as agent for service of process.

The trial court also erred in failing to quash service of process on appellant Incorporated Carriers, Ltd. Section 48.194 requires that the foreign officer serving process on an out-of-state defendant file an affidavit stating the time, manner, and place of service. The statement filed by the constable of Dallas County, Texas, was not sworn to and, therefore, does not satisfy the statutory affidavit requirement.

We AFFIRM the trial court’s order as to appellant Nettles but REVERSE as to appellants Truck Insurance Exchange and Incorporated Carriers, Ltd., and REMAND for further proceedings consistent with this opinion.

GRIMES and SCHOONOVER, JJ., concur.


text:
    Janelle R. WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1034.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1983.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant Janelle R. Watson was charged by information with grand theft, in violation of section 812.014, Florida Statutes (1981), after she allegedly shoplifted merchandise from a local department store. Following a jury trial, appellant was convicted as charged, placed on five years probation, and ordered to pay a $750 fine. This appeal followed timely.

The sole issue on appeal is whether the trial court erred in failing to give appellant’s requested jury instruction on the offense of petit theft. We affirm.

A security officer for the department store testified that the value of the stolen merchandise was $250.96. This testimony remained unrebutted and undisputed. Thus value was not an issue at trial. Under these circumstances, where the evidence adduced at trial could not reasonably support the conclusion that the stolen property had a value of less than $100, the trial court did not err in refusing to give the requested instruction. See State v. Hudson, 373 So.2d 666 (Fla.1979) (citing State v. Paffy, 369 So.2d 340 (Fla.1979)). See also In re Florida Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981).

AFFIRMED.

OTT, A.C.J., and BOARDMAN and SCHEB, JJ., concur.


author: DIXON, Chief Justice.

text:
    Goldie H. KIZER v. Jack S. BURK
    No. 66874.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      Roger M. Fritchie, Durrett, Hardin, Hunter, Dameron & Fritchie, for defendant-applicant.
    Robert L. Kleinpeter, Kleinpeter, Klein-peter & Kleinpeter, for plaintiff-respondent.
   DIXON, Chief Justice.

Goldie Kizer brought this declaratory judgment action to terminate defendant’s rights under a “Surface Lease and Agreement to Buy and Sell,” to relieve plaintiff from any further obligation under the contract, and for supplemental relief. There was judgment for the plaintiff in the trial court, and the Court of Appeal affirmed. Writs were granted on defendant’s application.

Plaintiff’s husband, Roland Kizer, and Jack Burk were friends of long standing, both mature businessmen. In the course of frequent social encounters it was agreed that a farm in East Feliciana Parish, owned by Goldie Kizer, would be leased to Burk for three years and sold to him at the end of the lease. On August 27,1976 a contract for the lease and purchase of the 276 acre farm, prepared by Roland Kizer, was executed by Roland and Goldie Kizer and Jack S. Burk. A copy of the lease is attached in an appendix.

Among other obligations of the contract, it provided: “The LESSEE further agrees that the cultivation of the crops and the maintenance of the pasture will be done in a good and workmanlike manner and LESSEE will carefully and faithfully guard and protect the said premises.” At the time of the sale, vendors were to reserve one-half of the minerals.

This suit was filed on February 7, 1978. The abrogation of the agreement was sought for two reasons: Jack Burk had executed a timber deed on the Kizer farm on December 27, 1976, for which he had been paid $11,300, and had executed an oil and gas lease on the property on October 21, 1977.

On the representations of defendant that the timber sale and oil and gas lease were not inconsistent with the objectives of the lease, were consistent with the basic objectives of the particular contract, and were executed with the knowledge, acquiescence or subsequent approval of the parties, we granted the application for review.

The record does not support defendant’s contentions. Although defendant’s actions were consistent with his own plans for the development and financing of the farm, he presumed too much, and did not have the owner’s consent when he dealt with property which was not his own, nor did the owner ratify defendant’s actions in any way.

Kizer did not know of the timber sale until some neighbors told him of its removal in April of 1977. Kizer wrote to Burk for an explanation. Burk explained that he felt that he had the right to dispose of the timber, since he planned to clear the land so it could be in full production at the time of the purchase, when there would be substantial payments due on the purchase price and interest. Recognizing his lack of ownership of the timber, Burk suggested that he either turn the money over to Mrs. Kizer and receive a diminution in the purchase price when the sale would be completed, or keep the funds and pay interest on them until that time. There were further discussions, but no clearly determinable agreement. Kizer testified that he thought it was decided that Mrs. Kizer should take the funds; Burk thought that no determination had been communicated to him. The funds were not returned, and the “land clearing” was never completed.

As with the problem of the timber proceeds, so went the problem of the mineral lease. There was correspondence, conversation, talk of different offers, but no agreement. Burk eventually executed the mineral lease without the Kizers, even though he would own no mineral interests until the sale was made.

Under the provisions of the Civil Code, a tenant is required to utilize the leased property as a good administrator, according to the use for which it was intended by the lease. C.C. 2710(1). The landowner may obtain dissolution of the lease if the lessee makes another use of the premises than that for which it was intended, or if the lessee fails to fulfill his obligations under the lease. C.C. 2711, 2729. The lease may itself provide the purpose for which the premises are to be used and for restrictions on the use of the premises, but in the absence of such provisions, the court may look to the surrounding circumstances, such as the nature of the situation, and previous use of the property. Tullier v. Tanson Enterprises, Inc., 367 So.2d 773 (La. 1979); Comment, The Louisiana Law of Lease, 39 Tul.L.Rev. 798, 856-859 (1965).

Initially it should be noted that the sale of the timber was clearly beyond the authority granted under the agreement. At the time of the agreement and the timber sale, C.C. 465 provided:

“Standing crops and the fruits of trees not gathered, and trees before they are cut down, are likewise immovable, and are considered as part of the land to which they are attached.”

Therefore, the standing timber on the leased property must be considered as a part of the leased estate. The agreement clearly did not give the lessee the power to alienate any part of the leased premises. To the contrary, the lessee agreed to faithfully and carefully guard and protect the premises. A lease is a synallagmatic contract whereby the owner of the thing leased grants to the lessee the enjoyment of the thing for a certain time. C.C. 2669, 2674. It does not give the lessee the power to alienate all or part of the leased thing. C.C. 2719.

We agree with the trial court and the Court of Appeal that the sale of the standing timber was an unintended use of the premises. In addition, we note that the sale without authority of the timber which the lessee did not own can hardly be reconciled with the defendant’s duty, under the lease provisions, to faithfully and carefully guard and protect the leased premises, since he in fact alienated a part of the premises. Therefore, the plaintiff was entitled to a dissolution of the contract because of the defendant’s actions. C.C. 2711, 2729.

Furthermore, the plaintiff did not waive her right to complain of the breach, or consent to the unintended use of the premises, by accepting the rent installment due on September 1, 1978. In Illinois Central Gulf R. Co. v. International Harvester Co., 368 So.2d 1009 (La.1979), this court noted that the Civil Code and statutes of this state do not provide for any legal presumption of consent to arise from a lessor’s silence and acceptance of rent. We noted a number of cases from which it might appear that a lessor condones a violation of a lease by accepting rent, but concluded that those cases involved a determination that the lessor either impliedly consented to a modification of the lease or forgave a breach thereof. Among those cases were Arms v. Rodriguez, 232 La. 951, 95 So.2d 616 (La.1957) and Major v. Hall, 251 So.2d 444 (La.App.1971), cited by defendant in the instant case. After a careful review of the facts, however, we conclude that the lessor in the instant case did not consent to the use of the premises made by the defendant, or forgive him the breach.

The record indicates that, far from having consented to the timber sale, or forgiven it, at the time the 1977 rental payment was accepted the plaintiff, through her husband, was making efforts, consistent with his friendship with the defendant, to have the matter settled and her interest protected. We cannot say that merely because Mr. Kizer sought to have the matter settled amicably without resort to legal proceedings, that the plaintiff consented to the sale of the timber, or that she forgave the defendant for the breach of contract.

From a reading of the lease and purchase agreement provisions it is clear that the parties intended that the contract to sell at the termination of the lease be conditioned on the faithful performance of the obligations under the lease. C.C. 2026. The performance of those obligations was therefore a suspensive condition of the contract to sell. Since the condition failed to occur and the defendant breached the agreement, the plaintiff is under no obligation to sell the property to the defendant.

For the reasons assigned, the judgment of the Court of Appeal is affirmed. Costs are to be paid by defendant-appellant.

APPENDIX

SURFACE LEASE AND AGREEMENT TO BUY AND SELL

This AGREEMENT made and entered into on the 27th day of August 1976, by and between GOLDIE H. KIZER, born Hause, married but once and then to Roland C. Kizer, who joins herein individually and to aid and authorize his wife, both of the full age of majority and residents of the Parish of East Baton Rouge, State of Louisiana, hereinafter referred to as “Lessors and/or Vendors” and JACK S. BURK, married to and living with Martha Cook Burk , born Cook . of the full age of majority and a resident of the Parish of East Baton Rouge, Louisiana, hereinafter referred to “Lessee and/or Vendee.”

The LESSORS, in consideration of the agreement and covenants herein made by the LESSEE, do hereby lease, let and rent to the LESSEE, who takes and hires the following described land, to wit:

A certain parcel of land, lying and being in the first ward, Parish of East Felicia-na, State of Louisiana, containing Two Hundred Seventy-six and three-fourths (276¾) acres, together with all the buildings and improvements thereon, bounded North, now or formerly, by B.F. Appleby, East, now or formerly, by A.C. Watson, South, now or formerly, by A.C. Watson and Public Road, and West, now or formerly, by Mrs. C. Appleby, ONE HUNDRED TWENTY-FIVE (125) ACRES, more or less, bought by Theo. McCarstle from heirs of Stephen K. McCarstle and ONE HUNDRED TWENTY-FIVE (125) ACRES more or less acquired by Theo. McCarstle by act of donation from his father, and being the same property acquired by W.L. Hause from Theo. McCarstle by Notarial Act dated March 29th, 1919 and recorded in Notarial Book N-2 Folio 25 of the conveyance records of the Parish of East Feliciana, State of Louisiana.

The term of this lease shall be Three (3) years beginning on the first day of September, 1976, and ending on the 31st day of August, 1979.

The rent for this lease shall be the sum of TWELVE THOUSAND DOLLARS ($12,-000.00), payable in the following manner: Four Thousand Dollars ($4,000.00) on the first day of September, 1976, and Four Thousand Dollars ($4,000.00) on the first day of September of each of the next succeeding Two (2) years. Failure to pay the rent as herein stipulated or to comply with any of the terms and conditions of this lease, after Ten (10) days’ notice in writing by the LESSORS to the LESSEE of such failure shall, ipso facto, at the option of the LESSORS mature this lease or cause all remaining installments to become due and payable, as well as all damage incurred by the LESSORS. Such written notice is to be addressed to the LESSEE at 6088 Moss Side Lane, Baton Rouge, LA 70808.

The LESSEE further agrees that he will not sublease, assign or relinquish the said premises without the written consent of the LESSORS, nor will the LESSORS owe the LESSEE any repairs, either ordinary or extraordinary, during the term of this lease, the leased land having been inspected by LESSEE.

The LESSEE further agrees that the cultivation of the crops and the maintenance of the pasture will be done in a good and workmanlike manner and LESSEE will carefully and faithfully guard and protect the said premises.

LESSEE shall occupy the leased premises at his own cost and risk and hereby agrees to hold LESSORS free and harmless from any damages whatsoever, including but not limited to that caused by flood or overflow as well as damage, to persons or property arising out of LESSEE’S enjoyment of the leased premises and shall indemnify LESSORS against any expense, loss, cost, damage, claim, action or liability paid, suffered or incurred as a result of any breach by LESSEE, his agents, servants, employees, customers, visitors or licensees of any covenant or condition of this lease, including, without limitation, acts of omission of any subtenant, agent, servant, employee, customer, visitor or licensee of any such tenant or subtenant.

As a further consideration hereof, the VENDORS agree to sell and the VENDEE agrees to buy at the termination date of this lease, August 31, 1979, the land above described which is herein rented, the VENDORS to reserve one-half (½) of the oil, gas and other minerals.

The act of sale is to be passed before VENDEE’S Notary Public on the first day of September, 1979.

The consideration of said sale is to be the sum of TWO HUNDRED TWENTY-ONE THOUSAND FOUR HUNDRED DOLLARS ($221,400.00), of which amount Twenty-one Thousand Four Hundred Dollars ($21,400.00) is to be paid in cash, and the balance or credit portion amounting to the sum of Two Hundred Thousand Dollars ($200,000.00) is to be represented by one (1) promissory note of equal amount bearing interest at the rate of 8% per annum from date of said note until paid and being due and payable at the main office of the Fidelity National Bank of Baton Rouge, Baton Rouge, Louisiana, in Eight (8) equal yearly installments of Twenty-five Thousand Dollars ($25,000.00) each, together with the interest on the unpaid balance, the first installment being due and payable on or before the first day of September, 1980 and a like installment being due and payable on the first day of September of each of the succeeding seven (7) years thereafter, said note to be secured by a mortgage on said land importing a confession of judgment and containing a pact de non alienando and the other usual Louisiana security clauses, including a provision for attorney fees of 10% in the event of default of any covenant of said mortgage by VENDEE.

Tho consideration herein set forth is based upon the Consumer Price-I-ndex of 1-7-1.1-as-compiled by the -U.S. Dopartmont of-Labor-for the month-of July, 1976, and anything- to the contrar-y-notwithstanding, it is agr-eed between the-parties hereto that should the Consumer Price Index-increase by as much as 25 points before the date-the act of sale is passed, then and in that event the sales price-and the installment payments shall be increased-to the extent that the — Consumer—Price—Index—exceeds—25 points: — In no event shall-the sales price-be reduced.

Taxes for the year 1979 are to be prorated as of the date of the execution of the act of sale.

Either party to this agreement shall have the right to specific performance in the event of failure by the other to perform.

THUS DONE AND PASSED in duplicate originals on the day, month and year first above written, in the presence of Carolyn Hembree and Patrick F. McGrew. competent witnesses who hereunto sign their names with the said appearers and me, Notary Public, after reading of the whole.

WITNESSES:

/s/ Carolyn Hembree Carolyn Hembree

/s/ Patrick F. McGrew Patrick F. McGrew

/s/ Goldie H. Kizer GOLDIE H. KIZER

/s/ Roland C. Kizer ROLAND C. KIZER

/s/ Jack S. Burk JACK S. BURK

/s/ Roland C. Kizer, Jr._ Roland C. Kizer, Jr. - NOTARY PUBLIC

      . Although we do not disagree with the Court of Appeal in holding that the unauthorized mineral lease by Burk, who had not yet acquired any mineral ownership, was a detrimental use of the leased premises, it is unnecessary to decide that issue.


author: BLANCHE, Justice.

text:
    JOHN BAILEY CONTRACTOR, INC. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 83-C-0502.
    Supreme Court of Louisiana.
    Oct. 17, 1983.

      Emmett C. Sole, Stockwell, Sievert, Vic-cellio, Clements & Shaddock, Lake Charles, for applicant.
    James A. Smith, Smith & Wise, Lake Charles, James B. Frederick, Jr., Marshall W. Wroten, Sharon F. Lyles, L. Gordon King, Asst. Gen. Counsels, Baton Rouge, for respondent.
   BLANCHE, Justice.

Plaintiff sued to recover from the Department of Transportation and Development (DOTD) for the construction of a temporary detour road in connection with the construction of approaches to a new bridge on Highway 27 at Bayou Choupique in Cal-casieu Parish. Following trial on the merits, the judge rendered judgment in favor of Bailey for the sum of $30,000 against F. Miller & Sons, Inc., and DOTD, in solido. In his oral reasons for judgment, the trial judge found that the plaintiff could not recover under the contract, but that he was entitled to relief under the theory of equitable estoppel. On appeal, the Third Circuit reversed, holding that equitable estoppel did not apply. The issue of recovery under the contract was not raised in either this Court or the Court of Appeal. This Court, believing that a proper resolution of the case could not be made without a consideration of certain contractual provisions, ordered the parties hereto to submit supplemental briefs on the following issue:

Does the following contractual provision entitled “Maintenance of Traffic” (No. 104.04) which states in pertinent part:
“No direct payment will be made for providing for and maintaining traffic, except payment for temporary signs, barricades, traffic markings and detours.” (emphasis ours),
apply so as to provide for a detour road not included in the original project plans. 425 So.2d 326.

We affirm the Third Circuit in its ruling that equitable estoppel does not apply in this case, and we also hold that the plaintiff is not entitled to recover under the terms of the contract.

FACTS

In 1976 DOTD notified general contractors that it would receive bids for the construction of approaches to a new bridge on Bayou Choupique. Included in that notification were a set of plans for the project. The plans provided, in part, for a detour road to be built on the north side of Bayou Choupique, that item being listed as S-2 as one of over fifty different line items included in the contractors’ bids. The plans did not provide for a detour road on the south side of the bayou. The bid submitted by F. Miller & Sons, Inc. was accepted by DOTD and a contract accordingly entered into by those parties. The agreement consisted of the “Louisiana Standard Specifications for Roads and Bridges, dated 1971” (a document which is over 700 pages long) and over 30 pages of amendments to the Standard Specifications.

About five days after Miller entered into the contract with DOTD, it entered into an agreement with plaintiff subcontracting part of the work on the project. In this subcontract, Bailey agreed to assume all obligations owed DOTD by Miller; the subcontract incorporated by reference all provisions of the contract Miller had with the State.

Sometime after construction had commenced, it became apparent that a decision would have to be made concerning the maintenance of traffic on the south side of the bayou. A discussion was held between the project engineer of DOTD, employees of Miller, John Bailey, and others. Three options were discussed: (1) Maintaining traffic by using one lane while working on the other, (2) widening one shoulder so two-way traffic could be maintained by using one lane and the shoulder while work proceeded on the other lane, and (3) constructing a temporary detour road. This last was generally agreed upon as the safest alternative under the particular circumstances of this project.

Bailey built the south detour road at a cost of approximately $30,000, for which he billed Miller. Both Miller and DOTD refused to pay, arguing that under the contract Bailey had the duty to maintain traffic and that this detour road fell within the scope of that duty. This suit followed wherein Bailey sought relief under the contract and, in the alternative, under the doctrine of equitable estoppel.

THE CONTRACT

In the supplemental brief ordered by this court, plaintiff contends that the last sentence of Sec. 104.04 of the contract clearly entitles him to demand direct payment for the construction of the south detour road. DOTD, on the other hand, contends that the one sentence must not be taken out of context, but must be construed in light of the remainder of Sec. 104.4, as well as with other parts of the contract as a whole. Sec. 104.04 reads in its entirety:

§ 104.04 MAINTENANCE OF TRAFFIC
Reasonable provisions for local traffic throughout the length of the project and the life of the contract must be made by the contractor, at his own expense, during construction.
When required on the plans or in the special provisions, the contractor may also be required to provide for through traffic, at his own expense, over the entire project or any designated portion thereof.
If the engineer directs special maintenance for the benefit of the traveling public, then the contractor will be paid therefor at unit prices in the contract or as provided in Subsection 104.03. The engineer will be the sole judge of work to be classified as special maintenance.
The contractor shall provide for and maintain through and local traffic at all times and shall conduct his operations in such manner as to cause the least possible interference with traffic in the vicinity of this project.
In order to maintain traffic, the contractor shall construct temporary detours as provided under item S-2, elsewhere herein.
No direct payment will be made for providing for and maintaining traffic, except payment for temporary signs, barricades, traffic markings and detours. (emphasis added.)

The entire contract in question, as mentioned earlier, consists of over 700 pages of “Standard Specifications” and 30 pages of amendments tailored to this particular project. Part of the contract is the “Schedule of Items,” completed as per the Miller bid. It is important to note that the “Schedule of Items” included Item 713(1), a lump sum for “Temporary Signs and Barricades”; Item 729(14), for eight “Hazard Marker Assemblies”; Item S — 3, a lump sum for “Temporary Traffic Markings”; and Item S-4, for one “Roadway Barricade.”

The Civil Code mandates that all clauses or parts of contracts be interpreted “one by the other, giving to each the sense that results from the entire act.” LSA-C.C. Art. 1955. Likewise, the courts have long held that,

A cardinal rule in the construction of contracts is that the contract must be viewed as a whole and, if possible, practical effect given to all its parts, according to each the sense that results from the entire agreement so as to avoid neutralizing or ignoring any of them or treating them as surplusage, (citations omitted; emphasis added.) Lambert v. Maryland Casualty''Company, 418 So.2d 553, 559 (La.1982), reh. den. See also, Polozola v. Garlock, Inc., 343 So.2d 1000, (La.1977); Long-Bell Petroleum Col, Inc. v. Tritico, 216 La. 426, 43 So.2d 782 (1949), reh. den.; Fitzgerald v. Hyland, 199 La. 381, 6 So.2d 321 (1942).

Although plaintiff contends that the last sentence of Sec. 104.04 provides for direct payment for the south detour road, that sentence must be read and interpreted in a manner which would give effect and meaning to the other provisions of the contract. Courts will not impute to the parties the use of language without meaning or effect. American Mfg. Corp. v. National Union Fire Ins. Co. of Pittsburg, 203 La. 515, 14 So.2d 430 (1942), reh. den., and cases cited therein; Solomon v. Hickman, 219 So.2d 330 (La.App. 1st Cir.1969); Lambert v. Maryland Casualty Company, supra.

If the contract intended to provide for the direct payment for all detours, temporary signs, barricades, and traffic markings, then the provisions requiring the contractor to maintain traffic at his own costs would be meaningless surplusage. Considering the fact that all of the items included as exceptions in the last sentence of Sec. 104.04 were included in the “Schedule of Items” section of the contract, we conclude that it was the intent of the parties that the contractor would not receive direct payment for maintaining traffic other than for those items specifically called for and included in the “Schedule of Items.”

The law also directs the courts to look to the conduct of the parties in order to interpret contractual provisions. LSA-C.C. Art. 1956. In this case, the conduct of the parties in building the south detour road supports the conclusion that it was to be the contractor’s own expense for maintaining traffic. It is obvious that some provision for maintaining traffic had to be made, since the entire old road bed was to be torn out and replaced, a fact which Bailey knew from the outset since that company was the one responsible for removing the old roadbed. A discussion was held to consider alternative means for maintaining traffic, and it was generally agreed that the construction of a temporary detour was the most acceptable option. Mere agreement by the project engineer with this conclusion could not have been considered an order for extra work for which Bailey would be entitled to extra compensation, nor did Bailey comply with the contractual provisions regarding compensation for work or material not clearly covered in the contract or ordered by the engineer.

EQUITABLE ESTOPPEL

The Court of Appeal properly held that plaintiffs reliance on the theory of equitable estoppel is unfounded. Although estop-pels are not favored in the law, we have applied the doctrine of equitable estoppel when the ends of justice so require. The Third Circuit correctly applied the jurispru-dentially developed doctrine of equitable es-toppel, and we quote from their opinion:

[The] Supreme Court in American Bank and Trust Company v. Trinity Universal Insurance Company [251 La. 445], 205 So.2d 35 (La.1967) made the following observations concerning equitable estop-pel:
Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. Founded upon good faith, the doctrine is designed to prevent injustice by barring a party, under special circumstances, from taking a position contrary to his prior acts, admissions,, representations, or silence.
The three elements required for application of equitable estoppel are: (1) A representation by conduct or work; (2) Justifiable reliance thereon; and (3) A change of position to one’s detriment because of the reliance. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975).

It is well-recognized that a party having the means readily and conveniently available to determine the true facts, but who fails to do so, cannot claim estoppel. Easterling v. Employers Liability Assurance Corp., 203 So.2d 852 (La.App. 4th Cir.1967); Shirey v. Campbell, 151 So.2d 557 (La.App. 2nd Cir.1963). In this case, DOTD’s project engineer acquiesced in the construction of the south detour road, but did not specifically order or direct it. DOTD officials testified that no mention of payment was ever made because they believed the construction of the detour fell within Miller’s (thus Bailey’s) duty to maintain traffic. There being no order, either express or implied, to build the detour, there was no representation for Bailey to have relied upon.

DEGREE

For the reasons set forth above, the judgment of the Court of Appeal is affirmed.

AFFIRMED.

DIXON, C.J., concurs.

CALOGERO, WATSON and LEMMON, JJ., dissent.

      . Also named defendant in the suit was F. Miller, Inc., the general contractor on the project.

      . When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.

      . The sections of the contract dealing with “Extra Work” for which a contractor is entitled to compensation clearly indicate that an order be issued by the project engineer and the work completed as per the specifications in that order.
      § 101.25 EXTRA WORK. An item of work not provided for in the contract as awarded but found essential to the satisfactory completion of the contract within its intended scope.
      § 104.03 EXTRA WORK. The contractor shall perforrri unforeseen work for which there is no price included in the contract whenever it is deemed necessary or desirable in order to complete fully the work as contemplated. Such work shall be performed in accordance with the specifications and as directed, and will be paid for as provided under Subsection 109.04.
      § 109.04 EXTRA WORK AND FORCE ACCOUNT WORK. Extra work performed in accordance with the requirements and provisions of Subsection 104.03 will be paid for at the unit prices or lump sum stipulated in the order authorizing the work, or the Department may require the contractor to do such work on a force account basis, to be compensated in the following manner:
      The facts are clear that no order for the detour was given, much less any direction or specification as to how the temporary road was to be constructed. It is true that DOTD approved the road, inasmuch as they were ultimately responsible for the public safety in all phases of the project.

      . The contract provided specific procedures for a contractor to follow if he believed he were entitled to compensation beyond that provided for in the agreement:
      § 105.17 CLAIMS FOR ADJUSTMENT AND DISPUTES. If, in any case, the contractor deems that additional compensation is due him for work or material not clearly covered in the contract or not ordered by the engineer as extra work, as defined herein, the contractor shall notify the engineer in writing of his intention to make claim for such additional compensation before he begins work on which he bases the claim. If such notification is not given and the engineer is not afforded proper facilities by the contractor for keeping strict account of actual cost as required, then the contractor hereby agrees to waive any claim for such additional compensation.


author: BLANCHE, Justice .

text:
    STATE of Louisiana v. Raymond PERIQUE. STATE of Louisiana v. Christopher E. LEWIS.
    Nos. 83-KA-1039, 83-KA-1048.
    Supreme Court of Louisiana.
    Oct. 17, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, Joanne Marier, Clifford R. Strider, III, Asst. Dist. Attys., for plaintiff-appellee.
    Craig Colwart, Dwight Doskey, Tilden H. Greenbaum, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
   BLANCHE, Justice .

These two cases were consolidated on appeal because they involve an identical issue: the constitutionality of R.S. 13:1570 A(5), which permits certain juveniles charged with certain enumerated offenses to be tried and sentenced as adults.

FACTS

On February 15, 1982, Christopher Lewis, then 16, was arrested along with a sixteen year-old female and two adults for the offense of armed robbery. Lewis was later charged by bill of information with armed robbery. The sixteen year-old female was referred by petition to the East Baton Rouge Parish Family Court and handled through the special juvenile procedures. Through counsel Lewis filed a motion to quash the bill of information pending against him. The trial court granted the motion to quash on the grounds that, as applied to Lewis, the statute vesting the criminal district court with jurisdiction resulted in an unconstitutional denial of due process and equal protection of the laws.

On December 17,1981, Raymond Perique, also sixteen at the time, was charged by bill of information with two counts of armed robbery. Counsel for the defense filed several pre-trial motions, including a motion to quash the bill of information, alleging that the Criminal District Court of Orleans Parish lacked jurisdiction in the matter. The defendant contended that La.R.S. 13:1570, which forms the basis of jurisdiction, unconstitutionally deprived the defendant of due process and equal protection of the laws by allowing the decision to treat a juvenile offender as an adult to be made without a hearing. The trial court denied the motion, whereupon Perique entered a plea of guilty, reserving his right to appeal the ruling on the motion to quash.

THE ISSUE

In State v. Leach, 425 So.2d 1232 (La. 1983), this Court addressed the facial constitutionality of the statute in question and upheld it against an equal protection challenge. At issue in these consolidated cases is the constitutionality of the statute as applied by the district attorney. Both defendants rely primarily upon Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), in their contention that because there are no statutory guidelines which a district attorney must follow in. deciding whether to proceed against these youthful offenders by petition in juvenile court or by bill of information (or grand jury indictment) in district court, the defendants have been deprived of their constitutional rights of due process. According to defendants, the lack of such standards renders the present statute invalid for the same reasons the Court held that a prior juvenile transfer statute was unconstitutional. State in the Interest of Hunter, 387 So.2d 1086 (La.1980).

Additionally,. Christopher Lewis contends that the statute, though fair on its face, is administered so exclusively against a particular class of individuals as to result in an unconstitutional denial of equal protection.

JUVENILE COURT JURISDICTION

In Hunter this Court held that the juvenile transfer statute in question was unconstitutionally vague because it failed to set forth standards for the juvenile judge to follow to determine in individual cases which fifteen and sixteen year-olds accused of designated crimes should be transferred to criminal district court or should remain in the juvenile court system. That decision was based, however, on the “general rule” of non-criminal treatment for juveniles:

Because it is implicit in the juvenile court scheme that non-criminal treatment is to be the rule, see State v. Everfield, 342 So.2d 648 (La.1977), and that adult criminal treatment is the exception which must be governed by the particular factors of individual cases, the waiver of jurisdiction is a critically important action determining vitally important statutory rights of the juvenile which may be taken only after a hearing that measures up to the essentials of due process and fair treatment. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); see also In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); United States ex rel. Turner v. Rundle, 438 F.2d 839 (3rd Cir.1971); State v. Everfield, supra.

State in re Hunter, 387 So.2d 1086, 1088.

This general rule of non-criminal treatment of juveniles was clearly founded upon Art. 5, § 19 of the La.1974 Constitution as it read prior to 1979:

Section 19. Except for a person fifteen years of age or older who is alleged to have committed a capital offense or attempted aggravated rape, the determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be exclusively pursuant to special juvenile procedures which shall be provided by law. However, by law enacted by two-thirds of the elected members of each house, the legislature may (1) lower the maximum ages of persons to whom juvenile procedures would apply and (2) establish a procedure by which the court of original jurisdiction may waive such special juvenile procedures in order that- adult procedures would apply in individual cases.

Except for those individuals fifteen and older accused of a capital offense or attempted aggravated rape, the La. Constitution prior to 1979 mandated non-criminal, juvenile treatment for anyone under seventeen accused of a crime. The Legislature was given the limited authority to lower the maximum age for juvenile treatment and to establish procedures for waiver, (i.e., transfer), of juvenile jurisdiction.

This constitutional scheme underwent a serious change by virtue of a 1979 amendment enacted by the vote of the people of Louisiana. Art. 5, § 19 now reads:

Section 19. The determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be pursuant to special juvenile procedures which shall be provided by law. However, the legislature may (1) by a two-thirds vote of the elected members of each house provide that special juvenile procedures shall not apply to juveniles arrested for having committed first or second degree murder, manslaughter, aggravated rape, armed robbery, aggravated burglary or aggravated kidnapping, and (2) by two-thirds vote of the elected members of each house lower the maximum ages of persons to whom juvenile procedures shall apply, and (3) by two-thirds vote of the elected members of each house establish a procedure by which the court of original jurisdiction may waive special juvenile procedures in order that adult procedures shall apply in individual cases. The legislature, by a majority of the elected members of each house, shall make special provisions for detention and custody of juveniles who are subject to the jurisdiction of the district court pending determination of guilt or innocence.

Thus, it can no longer be said that noncriminal treatment of juveniles is the general rule mandated by the constitution, since the constitution now permits the legislature to enact a statute exempting any juvenile arrested for any of the seven enumerated offenses from “special juvenile procedures.”

“DE FACTO” TRANSFER

Pursuant to its constitutional authorization, the Legislature enacted the statute at issue. Notably, the Legislature did not enact a statute which tracked the language of the constitutional provision. Rather, three classes were created: (1) those fifteen and over charged with first or second degree murder, manslaughter, or aggravated rape; (2) sixteen-year olds charged with armed robbery, aggravated burglary, and/or kidnapping; and (3) all others under seventeen accused of crime. State v. Leach, supra. La.R.S. 13:1570 is a jurisdictional statute, and the juvenile courts have been given jurisdiction only over those juveniles who do not fall within either of the first two categories above. The fifteen or sixteen year-old charged with one or more of these offenses is subject to the exclusive jurisdiction of the district courts.

It is true that this court has held that until a bill of information is filed or a grand jury indictment returned against a juvenile, he is subject to juvenile rather than adult procedures. State v. Lacour, 398 So.2d 1129 (La.1981). Defendants contend that, this being the case, there is a de facto transfer of jurisdiction when the district attorney files a bill of information charging, as in these cases, commission of armed robbery. They argue that the statute which permits this “effective transfer” by bill of information is unconstitutional because it does not set forth guidelines or standards which the district attorney must follow in deciding whether to charge by bill of information or by seeking an indictment. Defendants argue that this result is dictated by Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

In Kent the U.S. Supreme Court invalidated the transfer of a sixteen-year-old into the adult system by the juvenile court because there had been no hearing and the court had stated no reasons for the transfer. The decision in Kent, however, was based upon the rule of non-criminal treatment of juveniles evinced by the Juvenile Court Act of the District of Columbia:

The theory of the District’s Juvenile Court Act, like that of other jurisdictions, is rooted in social welfare philosophy rather than in the corpus juris. Its proceedings are designated as civil rather than criminal. The Juvenile Court is theoretically engaged in determining the needs of the child and of society rather than adjudicating criminal conduct. The objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment. The State is parens patriae rather than prosecuting attorney and judge. 383 U.S. at 554, 86 S.Ct. at 1054 (footnotes omitted).

The statute in question in Kent vested original and exclusive jurisdiction over the child in the juvenile courts, with provisions for transfer proceedings. This jurisdiction conferred upon juveniles special rights and protections including being shielded from publicity and confinement with adults, and juveniles could be detained only until the age of 21. Based on these and other statutory preferences, the Court noted:

It is clear beyond dispute that the waiver of jurisdiction is a ‘critically important’ action determining vitally important statutory rights of the juvenile. 383 U.S. 541, 556, 86 S.Ct. 1045, 1055.

For this reason, the Court concluded that a hearing and a statement of reasons were necessary to meet the constitutional requirements of due process.

The situation in the case at bar, however, is easily distinguishable from that in Kent. In this case, there are no statutory rights of which defendants are being deprived. Once a sixteen-year-old is charged with armed robbery, the question is not one of “transfer” of jurisdiction. Rather, the juvenile court is automatically divested of jurisdiction. This divestiture is not a matter of discretion on the part of the juvenile court or the district attorney, but is controlled by the statute defining the jurisdiction of the juvenile courts, La.R.S. 13:1570 A(5).

Since the defendants are not being deprived of “important statutory rights,” the question is not one of due process, but of whether La.R.S. 13:1570 A(5) is a valid exercise of the State’s police powers. We have already held that classifications by age and seriousness of the offense are not arbitrary or capricious, and that the classifications bear a rational relationship to the legitimate state interest of protecting the public from serious, violent felonies. State v. Leach, supra. Further, since the legislative intent is clearly that those fifteen and sixteen year olds charged with the enumerated offenses be treated in all respects as adults, we see no reason to depart from the rule that the district attorney has “entire charge and control of every criminal prosecution instituted and pending in his district, and determines whom, when and how he shall prosecute.” La.C.Cr.P. art. 61; State v. Collins, 242 La. 704, 138 So.2d 546 (La. 1962); see also, Hall v. City of New Orleans, 385 So.2d 1253 (La.App. 4th Cir.1980), writ denied, 393 So.2d 739 (La.1980).

EQUAL PROTECTION

The argument that the manner in which this statute is applied deprives the defendant Christopher Lewis of the equal protection of the laws is equally unpersuasive. Defense counsel relies upon the holding of the United States Supreme Court in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), that a statute fair on its face may still be unconstitutional if “... it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances...” 118 U.S. 356, 374, 6 S.Ct. 1064, 1073.

Lewis claims invidious discrimination, alleging that the state has shown a pattern of prosecuting sixteen-year-old black males accused of armed robbery by charging them as adults, while treating all other sixteen-year-olds accused of the same offense as juveniles. This claim is based upon statistics admitted into evidence by stipulation. This evidence shows that, in a three year period prior to Lewis’ arrest, over a hundred black male juveniles have been referred to the juvenile court for the offense of armed robbery; four black female juveniles were similarly referred, as were thirteen white male juveniles. During the same period, four juveniles were charged as adults for this offense, and all were black males.

While there are many considerations that go into determining whether a statute is being administered unconstitutionally, we have before us on review only this limited statistical evidence. Considering that the vast majority of black male juveniles have been accused of armed robbery in East Baton Rouge Parish have been referred to the juvenile courts, we refuse to second-guess the district attorney’s reasons for exercising his broad discretion in deciding to charge these four sixteen-year-olds as adults. On the basis of such limited evidence, we are unable to find any illegal discrimination in the administration of this statute.

DECREE

For these reasons, we affirm the trial court’s denial of Raymond Perique’s motion to quash the bill of information. In the case of Christopher Lewis, we reverse the trial court’s granting of the motion to quash and remand to that court for further proceedings.

WATSON, J., concurs; the statistics submitted on the claim of denial of equal protection do not prove anything.

       BAILES, J. sitting for Justice Marcus.

      . La.R.S. 13:1570 provides, in pertinent part:
      Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
      A. Concerning any child whose domicile is within the parish or who is found within the parish:
      ⅝? ⅜8 ⅝⅞ S}C ⅜
      (5) Who violates any law or ordinance, except a child who, after having become fifteen years of age or older is charged with having committed first degree murder, second degree murder, manslaughter, aggravated rape, or a person who, after becoming sixteen years of age or older, is charged with having committed armed robbery, aggravated burglary, or aggravated kidnapping. Once such a child has been charged with having committed any offense listed in this Paragraph, the district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense, and a plea to, or conviction of, a lesser included offense shall not revest the court exercising juvenile jurisdiction of such a child.

      . La.R.S. 13:1571.1, as amended by Act No. 460 of 1978. This statute was later amended by Act No. 482 of 1980 to provide the necessary guidelines.

      . As we have previously explained, “charged with” means formally charged by bill of information or grand jury indictment. State v. Lacour, 398 So.2d 1129 (La.1981); see also, State ex rel. Coco, 363 So.2d 207 (La.1981).

      . The District of Columbia’s Juvenile Court Act contained a transfer provision very similar to the Louisiana statute declared unconstitutionally vague by this Court in Hunter, supra. The statute at issue in Kent read:
      “If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases.”
      D.C.Code § 11-914 (1961), now § 11-1553 (Supp. IV, 1965).