author: THOMAS, Justice.

text:
    John B. FRUCHTL, as a Freeholder and Citizen and Taxpayer of the City of Ormond Beach, a Municipal Corporation, under the laws of the State of Florida, Appellant, v. Leo F. FOLEY and Margaret Foley, his wife, John B. Sterthaus, Jos. R. Ellicott, Jr., City of Ormond Beach, a municipal corporation, under the laws of the State of Florida, E. W. Russell, Jr., Anna Mae Russell, Appellees.
    Supreme Court of Florida. Division B.
    Jan. 25, 1956.

      John B. Fruchtl, in pro. per.
    Alex D. Littlefield, Jr., Daytona Beach, for Leo F. Foley and Margaret Foley.
    Raymond, Wilson & Karl, Daytona Beach, for E. W. Russell and Anna Mae Russell.
    J. Compton French (of Hull, Landis, Graham & French), Daytona Beach, for appellees.
   THOMAS, Justice.

The appellant, a citizen and taxpayer of the City of Ormond Beach lost his suit to have the court declare that certain conveyances and mortgages affecting the title to property in the city were void; to have the court declare that the appellees-Foley and-Russell had no right, or title to the property, and so on. The plaintiff’s motion for summary decree was denied; Foley’s motion for summary decree was granted. The plaintiff is, therefore, appellant here and the defendants are appellees.

We will frequently refer to the land in question as “Block 24.”

In the year 1946 state and city taxes on certain lands in the city, including Block 24, had not been paid and tax certificates had been issued. The mayor and other city officials undertook to interest private persons in buying the property so it could be ¿laced on the tax roll and produce revenue by taxation. Eventually the appellee, Leo F. Foley, and the mayor of the city entered into an arrangement under which the city was to foreclose the certificates we have mentioned and Mr. Foley was to advance $1,550 to assure a bid for that amount when litigation instituted by the city should culminate in the sale of the property by a master. According to a letter addressed by Mr. Foley to the mayor, transmitting the check for $1,550, the suit was to be started immediately. The city, in compliance with the arrangement, commenced a foreclosure proceeding and prosecuted it to a final decree and sale. All the property, except Block 24, was purchased at the master’s sale for $1,400 by appellee-Foley, who had, meanwhile, been requested by the city attorney to omit Block 24 from his bid because that tract might be needed for ai veteran’s project which the city was then sponsoring. The city attorney represented! that if it later appeared that the city would not have use for Block 24, the city would! convey the property to Mr. Foley for the amount of the city’s outlay in obtaining ,it at the sale plus such costs as the • city might incur in holding it between the date of purchase and the eventual transfer to Mr. Foley. Mr. Foley paid into court the amount of his bid and the city evidently returned to him his check for $1,550.

For more than four years the city held the property and in the meantime Mr. Foley was elected to the position of Zone Manager, in November 1951, and the office of mayor, in January 1952. Afterwards, in July 1952, the Zone Managers decided that Block 24 would not be incorporated in the veteran’s project. Two months later the entire matter was presented in an open meeting of the Board of Managers and a resolution, setting out a history of the dealings with reference to Block 24 and authorizing the sale of the block to Mr. Foley for the amount bid for the block by the city, plus city taxes and taxes assessed by Volusia County, totaling $346.77, was adopted. On 28 October 1953 the land was conveyed by appellee-Foley and other officials of the city to Foley, pursuant to the resolution.

The pivotal point is the propriety of the dealings between the city and its mayor. When Mr. Foley bid $1,400 for the property, excluding Block 24, he kept his bargain and presumably that amount was approved by the court as a fair price for- the lots he got; when the bid was made and the original check was returned to him that particular phase of the transaction was closed.

There remained the agreement between the city attorney and Mr. Foley that Block 24 would be conveyed to him at cost if not eventually required in the housing project. This arrangement, entered into at a time when Mr. Foley occupied no position of power and trust in the city government, is advanced as cause for approving the deed conveying the block to him on the theory that negotiations with a city begun by a person in his private capacity may be consummated after he becomes an official. We cannot subscribe to the soundness of the position under the circumstances of this case for many reasons. The so-called agreement with reference to Block 24 had no efficacy. A city’ cannot be bound to convey its property, or become obligated to dispose of property it may obtain, in such an informal manner. The city attorney, whose duties are defined in the city charter, had no power to commit the city to the transfer of Block 24.

Under the charter, Sec. 23 of Chapter 15401, infra, the city attorney acts as legal advisor, prepares instruments affecting the municipality, prosecutes in the Municipal Court and represents, when required by resolution of the City Board of Managers, the city in suits and controversies. So his. duties are those usually performed by city attorneys. The following section of the charter carries the title “Other Duties” and in that section it is provided that in addition to the duties imposed by Sec. 23 “he shall perform such other professional duties as may be required of him by ordinance or resolution of the City Board of Managers, or as prescribed for City Attorneys under the. general laws of the State and which are not inconsistent with this Act and with any ordinance or resolution which may be passed by the City Board of Managers.” (Italics supplied.) ■

Clearly the city attorney was not, functioning , under Sec. 23, supra, in his negotiations with Mr. Foley and he was not authorized by ordinance or resolution to act beyond that field, although he had apparently received oral instructions to make the representation to Mr. Foley about Block 24.

The appellees contend that the eventual resolution of the Board of Managers setting out the history of the dealings with Mr. Foley and authorizing a deed conveying to him Block 24 for the amount of the city’s outlay constituted a “completion” and “furtherance” of an agreement between him and the city. We cannot accept the argument that what was subsequently done raised the arrangement to the dignity of a contract and we cannot agree that the resolution to make the transfer amounted to a ratification of the city attorney’s purported commitment.

Under the charter of the city, Chapter 15401, Laws of Florida, Special ■ Acts of 1931, the legislative body of the City is the Board of Managers composed of Zone Managers. As members of the Board of Managers they exercise power collectively and as Zone Managers they exercise power individually in their respective zones. The Board of Managers elect a mayor from their number. When he entered into the arrangement with the city attorney, Mr. Foley held no official position, so no odium could attach to his negotiating with the city attorney with reference to Block 24. Obviously the city attorney was attempting in good faith to carry out the wishes of the Board of Managers. But the primary question is one of power.

At the time the city decided that Block 24 was no longer needed in the housing project and at the time of the final resolution authorizing its transfer, Mr. Foley was not only a member of the board but mayor of the city and he signed the deed in’ that capacity to himself.

The policy that a city official may not be advantaged personally by dealing with the city he serves is plainly recorded in an amendment of the city charter: “Officers * * * shall . not be interested in the profits or emoluments of any contract, work, or service for the municipality and any such contract in which any officer or employee is or may become interested shall be void.” Sec. 10, Chapter 18750, Laws of Florida, Special Acts of 1937.

We recognized the principle in City of Stuart v. Green, 156 Fla. 551, 23 So.2d 831, and held then that a forbidden contract could not be ratified. The principle harks back to the admonition that “No man can serve two masters * * Matthew VI, 24.

Even if we assume that the original arangement between the city attorney and Mr. Foley was not from its very nature void or “forbidden,” but was only voidable because unauthorized, the subsequent attempt to ratify cannot be approved because of the change in his status, for “ratification [relates] back to the act and is equivalent to prior authority.” City of Minneapolis v. County of Beltrami, 206 Minn. 371, 288 N.W. 706, 708.

We have no doubt that had Mr. Foley been mayor and member of the Board of Managers during the original negotiations between him and the city attorney, any agreement they reached would have been void because opposed to public policy as well as the express prohibition in the charter. And we think that when the Board of Managers undertook to ratify what was attempted to be accomplished by Mr. Foley and the city attorney, at a time when the former was officially taking part, after he had evidently participated in the decision that the property in question was not to be used by the city and would, therefore, become available to him, this action became infected for the same reason and cannot be sanctioned.

At the time of the attempted ratification, the property had become an asset of the city and Mr. Foley was prohibited then from dealing with it to his profit. That a handsome profit would come to him is plain from the record.

Although the resolution authorizing the conveyance sets out the three items for which the city was to be reimbursed — the bid of the city for Block '24, city taxes for 1949, 1950 and 1951, and money paid to redeem from county taxes, the amount of each item does not appear. However, elsewhere in the record it appears that the sum of city taxes was computed as $257.38, the taxes paid Volusia County amounted to $89.39, and the city had paid for Block 24 at the master’s sale $130. So the city’s outlay was $476.77.

The deed from Mr. Foley to appellees-Russell’was dated the day before the deed from the city to him. There were twenty-six lots in Block 24 and he sold ten of them to the Russells for $3,000. According to a stipulation filed in this case $383.58 was paid in cash covering' city taxes, in the sum of $257.38, county taxes, in the sum of $89.39, and closing costs of $36.81. ' A mortgage was given by appellees-Russell to Mr. .Foley and wife for $2,650 and on this was immediately credited a payment of $33.58. We can find no information in the record about reimbursement of the city for the' amount of $130 paid by the city for Block 24.

In summary, the arrangement between the city attorney and Mr. Foley lacked vitality for the reasons we have given, and it could not be vitalized by actions of the Board of Managers in which Mr. Foley, by then disqualified to profit in dealings with the city, participated.

In justice to the parties involved, it should be said that there is no evidence that any action by any of them was not open and aboveboard. Our decision is inspired by the-jealousy with which-this and other courts circumscribe the dealings between an officer of a municipality, acting in his own behalf, and the municipality he serves.

Reversed.

DREW, C. J., and ROBERTS and O’CONNELL, JJ„ concur;


source: Caselaw Access Project

license: Public Domain

text:
    George Trinkle FISHER, Appellant, v. Inez DAVENPORT, Appellee.
    Supreme Court of Florida. Division B.
    Jan. 27, 1956.
    Sam E. Murrell, Sam E. Murrell, Jr., and Robert G. Murrell, Orlando, for appellant.
    Turnbull & Senterfitt, Orlando, for ap-pellee.
   THOMAS, Justice.

The appellant commenced a suit against the appellee seeking a declaration of his rights under a contract for the sale of lands to him and appellee by a person who was not made a party to the suit, and a partition by sale of the contract and the interests of the parties and division of the proceeds.

The chancellor eventually dismissed the cause upon the motion of the appellee directed to the amended complaint.

The parties to this litigation, who were then husband and wife, entered into an agreement, 28 August 1952, to buy a tract of land from one R. H. Stebbins for eight thousand dollars, payable five hundred dollars in cash, five hundred dollars 1 January 1953, and thirty-five dollars on the first day of each month beginning 1 March 1953. At the time the suit was instituted all payments had been made as they fell due.

On 16 April 1954 the appellant and ap-pellee were divorced.

Although the appellant had met the payments required by the contract as each came due, he represented that he would not be able to continue his compliance with the contract in this respect and he expressed the belief that in event of default the seller would, in accordance with the option contained in the contract of sale, terminate the agreement, retain monies paid as liquidated damages, and repossess the premises.

The appellant represented that he and the appellee had been unable to agree either upon a division of the property or a sale' of the contract and that uncertainty had arisen as to his rights.

It is difficult for us to comprehend why he is puzzled about his rights as ‘co-vendee’ in an executory contract for the purchase of land and equally hard for us to understand how he can obtain now a decree of partition of such a contract against the other vendee.

No valid doubt appears from the allegations of the amended complaint, in fact, if the exhibits made a part of the pleading are considered, any suggestion even of doubt is dissipated. Attached is a copy of the decree of divorce incorporating the settlement agreement between the parties and it is plain from both that the appellant and the appellee each would receive a one-half undivided interest in the property being purchased from Stebbins; that upon payment of the entire purchase price the property should be conveyed to both; and that the appellant should “keep up” the payments.

There is no room for doubt of the meaning of appellant’s obligation. He was to pay the balance of the purchase price and he and the appellee were then to become tenants in common, having been divorced-between the date of the contract and date of the conveyance.

Under the circumstances already described, it seems unnecessary further to explore the law relative to the interest that will support a suit in partition although we have been importuned to reconcile the decision of this court in Langford v. Wauchula State Bank, 148 Fla. 236, 4 So.2d 10, with other decisions of this court like the ones in Hobbs v. Frazier, 56 Fla. 796, 47 So. 929, 29 L.R.A.,N.S., 105, and Bell v. Thompson, Fla., 63 So.2d 490. Were we to decide in this case that the appellant is entitled to partition, we would sanction disturbance of the final decree in the divorce case. To repeat, it was ordered in that decree that the appellant should make all remaining payments stipulated in the contract. Inasmuch as he has not been relieved of his obligation by the court which fixed it, we will not sanction his' obtaining such relief here indirectly by suit for partition. Rosenberg v. Rosenberg, 413 Ill. 343, 108 N.E.2d 766; Carolina Mineral Co. v. Young, 220 N.C. 287, 17 S.E.2d 119, 151 A.L.R. 383.

Affirmed.

DREW, C. J., and ROBERTS and O’CONNELL, JJ., concur.


author: THORNAL, Justice.

text:
    Matter of the ESTATE of Lizzie THOMPSON, Deceased. Ethel CHILDS, Appellant, v. Silver SQUARCIA, Executor of the Estate of Lizzie Thompson, Deceased, Appellee.
    Supreme Court of Florida. Special Division B.
    Nov. 16, 1955.
    Rehearing Denied Dec. 20, 1955.

      Kass & Fuller, Miami, for appellant.
    Redfearn & Ferrell, Miami, for appellee.
   THORNAL, Justice.

Appellant Ethel Childs appeals from an order of the Circuit' Court of Dade County affirming an order of the County Judge of Dade County refusing revocation of the last will and testament and codicil of Lizzie Thompson, deceased.

On December 5, 1949, the County Judge of Dade County admitted to probate the last will and testament and codicil of Lizzie Thompson, deceased, and on that date issued letters testamentary to the executor named in the will. On September 16, 1952,' Ethel Childs; alleging herself to be the sole, surviving heir of the decedent, filed before the County Judge a petition seeking revocation of the will and codicil on the ground that the testatrix lacked testamentary capacity when the same were executed. Six months later she amended her petition and further asked for revocation on the ground that the will and codicil were both forgeries. After extended hearings at which he heard many witnesses and examined many exhibits, the County Judge denied the petition to revoke the will. The order of the County Judge was affirmed by the Circuit Court on appeal. It is from this order of affirmance that this appeal was taken.

By his order refusing to revoke the probate of the will and codicil, the County Judge recited his consideration of the exhaustive testimony, depositions and exhibits and specifically found that the documents under attack were executed in full compliance with the laws of Florida, that the testatrix had testamentary capacity when they were executed and substantially denied the assault grounded on alleged forgery. In the order affirming the order of the County Judge, the Circuit Judge who heard the matter recited his own consideration of the voluminous record and properly recognized the limits of his appellate authority by reciting that the matter of the testamentary capacity and the proper execution of the will - and codicil were questions to be determined- by the County Judge, and that on appeal he found that there was substantial, evidence to support the findings of the trial Judge, and that it had not. been made to appear that the County Judge misapprehended the legal effect of the. evidence as a.n entirety.

As is-often the case in 'attacks'on wills-based'on similar contentions, the record on appeal to this Court consists of more than 500 pages of pleadings, testimony an.d exhibits. In many instances the conclusions-reached by the witnesses are in direct conflict as to the physical and mental capacity of the testatrix. In some respects it can be stated that .the conflicts are so well defined that they are irreconcilable. A handwriting expert testified that the signatures-on the questioned documents were not the signatures of the testatrix, while the witnesses to the documents, whose credibility and integrity were not effectively impeached, specifically testified that they actually saw her sign the documents.

Out of this maze of conflict and inferences, we can do little more than the Circuit Judge did by recognizing that it is the responsibility of the trial Judge in the first instance to arrive at a correct factual conclusion and to hold further that his conclusions will not be disturbed, absent a showing that they were not supported' by substantial competent evidence or that he misinterpreted the legal effect of the evidence as a whole.

In passing upon the instant appeal we cannot improve upon the comments and conclusions reached by Mr. Chief Justice Drew in the case In re Baldridge’s Estate, Fla.1954, 74 So.2d 658, 659, from which we quote as follows:

“No useful purpose would be served by a detailed review of the evidence which was taken before the County Judge and the exhibits which he had before him. The trial was conducted by able attorneys and when the evidence was concluded no stone remained unturned. The County Judge, the trier of the facts under the law, had the witnesses before him; he had the opportunity of observing them on the stand, of noting the inflections of their voices, of seeing their facial expressions, and of perceiving their promptness or hesitancy in their answers to questions, their sincerity or lack of sincerity, and untold other matters which cannot be included in a record in an appellate court. Every .judge knows that these intangible and sometimes elusive factors are as essential to the determination of truth as the spoken word. All., of these factors are fed into the trained mind of a trial judge and his conclusions are the essence thereof. Appellate courts simply don’t have the same material to deal with in respect to evidence as does the trial court and that is the reason that this Court has said on innumerable occasions that neither we nor other appellate courts have the right to interfere with the findings of fact of the trial court unless there is an absence of substantial competent evidence to support such findings or the trial court misapprehends the legal effect of such evidence as a whole. In the recent case of In re Kiggins’ Estate, Fla., 1953, 67 So.2d 915, 917, a case strikingly similar to this one, we said:
“ ‘ * * * it is the clear duty of the appellate courts to give effect to the findings made by the trier of facts if there is “substantial competent evidence” upon which his findings rest and if he did not misinterpret the legal effect thereof. In re Eberhardt’s Estate, Fla., 1952, 60 So.2d 271, and the cases therein cited. * * *

See also In re Kiggins’ Estate, Fla.1953, 67 So.2d 915; In re Eberhardt’s Estate, Fla. 1952, 60 So.2d 271; and In re Wilmott’s Estate, Fla.1953, 66 So.2d 465.

Finding no error, the order appealed from is affirmed.

DREW, C. J., and THOMAS and ROBERTS, JJ., concur.


author: PER CURIAM..

text:
    George A. LAWLOR, Appellant, v. Jean A. LAWLOR, Appellee.
    Supreme Court of Florida. Special Division B.
    Nov. 16, 1955.
    Rehearing Denied Dec. 20, 1955.
    Rivkind & Marger, Miami Beach, for appellant.
    Turk & Newman, Miami Beach, for ap-pellee. ;
   PER CURIAM..

Although' the final decree in this case uses the term “res judicata” when it should have been “estoppel by judgment”, the result reached by the chancellor was proper.

Affirmed.

DREW, C. J., and THOMAS, ’ HOB-SON and THORNAL, JJ., concur.


author: PER CURIAM.

text:
    Wilma G. MILLER, Appellant, v. George A. PERRINE, Appellee.
    Supreme Court of Florida. Special Division B.
    Jan. 20, 1956.
   PER CURIAM.

Affirmed.


author: ROBERTS, Justice.

text:
    M. C. JAMES, Petitioner, v. Margaret JAMES, Respondent.
    Supreme Court of Florida. Special Division B.
    Jan. 4, 1956.
    Rehearing Denied Jan. 27, 1956.
    Charles E. Booth, Daytona Beach, for petitioner.
    Duffett & Stanier and Kinsey, Vincent & Pyle, Daytona Beach, for respondent.
   ROBERTS, Justice.

We here review on certiorari an order of the lower court denying petitioner’s motions for a decree on the pleadings and to dismiss a petition filed in the cause by the respondent. Although certiorari is denied for the reasons hereafter stated, an opinion is written so that there will be no misunderstanding by the parties as to the scope and effect of our denial of certiorari. Briefly stated, the facts are as follows:

The petitioner and respondent, Mr. and Mrs! James, were divorced by a decree of the Circuit Court of Volusia County, Florida, in 1948. The decree awarded Mrs. James .$190 per month as alimony, pursuant to, a stipulation therefor made by the parties. Both parties now apparently reside in the State of New York. In 1953, Mr. James petitioned for and obtained in the above-named court a modification of the divorce decree as to alimony payments, by which he was “relieved from the payment of any further sums to the Plaintiff [Mrs. James] as alimony, until the further order of this Court.” The amendatory decree, dated October 8, 1953, was based on a finding of fact therein made that Mrs. James “during the past three years has been living as husband and wife with one Harry Williams,” in Brooklyn, New York. Mrs. James had actual knowledge of the filing of the petition against her by Mr. James through personal service of the petition and a notice of hearing thereon served upon her in Brooklyn by a Deputy Sheriff of the State of New York. She did not, however, appear at the hearing either personally or by an attorney.

Some attempt was made by Mrs. James in 1954 to set aside the amendatory decree of October 1953 on the grounds that she did not receive timely notice of the hearing on the petition and that the facts alleged by Mr. James in his petition were untrue. The record shows that a hearing was had on this application and Mr. James’ motion to dismiss the same, and that an order thereon was entered on January 6, 1955, but the order itself is not in the court file.

Finally, on July 26, 1955, Mrs. James filed the petition which is the subject of this review. She alleged, among others, that she “is not now living with one Harry Williams nor with any other person of the opposite sex in a state of matrimony or otherwise,” and that she “has never held herself out to be Margaret Williams, wife of Harry Williams, nor has she ever lived with the said Harry Williams or with any other man, subsequent to her said divorce, in a' state of matrimony; nor has she ever occupied the same single furnished room with the said Harry Williams.” She asked the court to reinstate her rights to alimony under the original 1948 divorce decree and to vacate the amendatory order of October 8, 1953; that she be awarded temporary alimony and suit money; and that the allowance of alimony be increased from $190, as originally stipulated by the parties, to $250. Counsel for Mr. James filed motions for a decree on the pleadings and to dismiss this petition on several grounds, including res judicata and laches. His motions were denied by the Chancellor, and it is -the order denying these motions that we review-on Mr. James’ petition for the writ of certiorari.

On this review, counsel for Mr. James contends that the petition “is merely asking for a rehearing on a matter that was finally determined against the Petitioner two years prior to its filing,” and that the whole question of alimony is res judicata, requiring a dismissal of the petition. Counsel for Mrs. James contends that, since the amendatory decree expressly stated that Mr. James was relieved of alimony payments only “until the further order of this Court,” there was.no final adjudication of the question of Mrs. James’ right to alimony at some future date, and that the Chancellor may, in his discretion, “allow the ex-wife at a later date to show such change of circumstance as might impel the re-instatement of alimony to her.” As thus narrowed and limited in the brief of counsel for Mrs. James, the issue here presented must be decided in her favor. Clearly, an.order that specifically limits the relief granted only “until the further order” of the court cannot be said to be res ju-dicata of anything except the right to the relief thereby temporarily granted; and we think that, both under the amendatory decree and the public policy of this state with respect to the modification of decrees awarding alimony, Section 65.15, Fla.Stat. 1953, F.S.A., Mrs. James has a right to petition the court for a re-examination of the question of the alimony to which she should be entitled in the future and to persuade the court, if she can, -that her misconduct in the past should not mitigate against her right to recover alimony in the future. Since her petition did not wholly fail to state a cause of action for relief, certiorari should be denied.

But it should be noted that the amendment or rescission <?f what is, in effect, an interlocutory order is not the same thing as vacating, ab initio, an order obtained through fraud, collusion, deceit or mistake. And unless the amendatory order is thus vacated and set aside, Mrs. James cannot in the proceeding sub judice reliti-gate the factual issue adjudicated therein. Parties' are not permitted to litigate the same issue more than once. Brickell v. Graves Inv. Co., 150 Fla. 785, 9 So.2d 733. No argument is here made on the question of whether the allegations of Mrs. James’ petition were sufficient, if proved, to support a decree vacating, ab initio, the amendatory order of October 8, 1953, and no opinion is expressed on this point.

For the reasons stated, certiorari should he and it is hereby

Denied.

DREW, C. J., TERRELL, J., and CRAWFORD, Associate Justice, concur.


text:
    Felton Y. JERNIGAN, Appellant, v. Kathleen HICKS and George R. Hicks, her husband, Appellees.
    Supreme Court of Florida. Special Division A.
    Dec. 2, 1955.
    Rehearing Denied Jan. 20, 1956.
    Fowler, White, Gillen, Yancey & Hum-key, Walter Humkey and Richard Ralph, Miami, for appellant.
    Fleming, O’Bryan & Fleming and Harrison D. Griffin, Fort Lauderdale, for ap-pellees.
   PER CURIAM.

This cause came on to be heard on the motion of appellees to affirm the judgment .appealed from pursuant to 31 F.S.A., Rule . 38 .of the rules of this Court and it appear-. ing to the Court from an examination of the record that said motion' is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument';

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be and the same is hereby granted, and the judgment is

Affirmed.

TERRELL, Acting Chief Justice, O’CONNELL and BUFORD, JJ., and DICKINSON, Associate Justice, concur.


author: HOBSON, Justice.

text:
    MODERNAGE FURNITURE CORPORATION, a Florida corporation, Appellant, v. MIAMI RUG COMPANY, a Florida corporation, Appellee.
    Supreme Court of Florida. Special Division B.
    Nov. 16, 1955.
    Rehearing Denied Dec. 20, 1955.

      L. J. Cushman, Broad & Cassel and Lewis Horwitz, Miami Beach, for appellant.
    Breslow & Gelb, Miami, for appellee.
   HOBSON, Justice.

Appellant, Modernage Furniture Corporation, brought this proceeding below for a declaration of its rights under a contract which it had entered with Miami Rug Company, appellee. The contract, a copy of which was attached to the complaint, commenced with the following recital:

“Whereas, Modernage is engaged in the' business, among other things, of operating two retail furniture stores presently located at 1200 Lincoln Road, Miami Beach, Florida, and at Biscayne Boulevard at 38th Street, Miami, Florida,
“Whereas, Miami Rug Company desires to sell rugs and floor coverings in and through said stores, as hereinafter more fully described.”

It went on to provide terms and conditions under which the parties would conduct the sale of carpets. Critical provisions of the contract for purposes of this case, are as follows:

“(c). Should Modernage establish a branch of its retail business elsewhere in, the State of Florida, it is agreed that Modernage will extend to Miami Rug Company the privilege of first refusal to operate a carpet and floor covering -department in said branch, or branches.
“2. So long as this agreement continues in full force and effect, Miami Rug Company shall have the exclusive right during the term hereof or any renewal period, to sell at retail ca.rpets, rugs or floor coverings in the stores of Modernage and Modernage agrees that it will not compete with Miami Rug Company in the sale of carpets, rugs or floor coverings while this agreement is in full force and effect.”

The complaint alleged that the appellant contemplated establishing a store in West Palm Beach and had decided to operate a carpet department of its own in that store; that appellee contends it is entitled to a rental agreement and that appellant cannot operate its own carpet department in the new store; and that a dispute has thus arisen between the parties as to the interpretation of the contract between them, insofar as it involves the operation of such carpet department. A motion to dismiss the complaint for failure to state an actionable claim was granted by the court below and this appeal is taken from final judgment entered consequent thereupon.

In Rosenhouse v. 1950 Spring Term Grand Jury, Fla., 56 So.2d 445, we approved the following statement made by the Supreme Court of Alabama:

“ ‘The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.’ ” 56 So.2d 445, at page 448.

Thus as we view the case the only question presented on this appeal is whether or not a bona fide doubt as to construction of the contract, of a character sufficient to activate the processes of the court under our declaratory judgment statute, was shown to exist.

The statutory sections with which we are here concerned .read, where pertinent, as follows:

“87.02 Power to construe, etc.
“Any person * * * who may be in doubt as to his rights under a * * contract * * * may have determined any question of construction or validity arising under such * * * contract * * *, or any part thereof, and obtain a declaration of rights, status or other equitable or legal relations thereunder.”
“87.03 Before breach
“A contract may be construed either before or after there has been a breach thereof.”

The provisions of the contract which we have outlined above are in conflict. The “privilege of first refusal” clearly implies, as appellant contends, not a prohibition against the operation by Modernage of its own carpet department but rather that if a third party were to apply for such privilege it would first be offered to the Miami Rug Company. The “exclusive right” granted the Miami Rug Company in the succeeding paragraph, however, appears to prohibit Modernage from operating its own branch. This latter provision might clearly be controlling were it not for the preamble which we have reproduced above, which refers to the two stores which were operated in Miami by Modernage when the contract was entered.

Appellant takes the position that the “exclusive right” of Miami Rug Company to sell rugs in Modernage stores was intended to apply only to the two Miami stores referred to in the contract, and that stores to be subsequently established by Modernage were not within the contemplation of the parties. We can see in the conflict of these provisions the “dispute” alleged in the complaint and can understand that appellant might well have been in doubt as to its rights under this contract. Such provable doubt is sufficient, in our opinion, to bring the case within the quoted statute. It follows that the judgment appealed from should be and it is hereby reversed and the cause remanded for further proceedings not inconsistent herewith.

Reversed and remanded.

DREW, C. J., and THOMAS and THORNAL, JJ., concur.


text:
    Roy L. EASON, Appellant, v. COGGIN & DEERMONT, Co-Partners, Appellees.
    Supreme Court of Florida. Division A.
    Jan. 6, 1956.
   PER CURIAM.

Affirmed.


text:
    Bland WATERS, Appellant, v. STATE of Florida, Appellee (two cases).
    Supreme Court of Florida. Special Division B.
    Jan. 6, 1956.
   PER CURIAM.

Affirmed.


text:
    Samuel LEVIN, Appellant, v. Sarah LEVIN et al., Appellees.
    Supreme Court of Florida. Division A.
    Jan. 6, 1956.
   PER CURIAM.

Affirmed.


text:
    MARSEILLES HOTEL CO., a Florida Corporation, Appellant, v. Herbert LIPMAN and Louis Lipman, as co-partners, d/b/a Associated Ad Service, Appellees.
    Supreme Court of Florida. Division A.
    Jan. 6, 1956.
    Rehearing Denied Feb. 3, 1956.
   PER CURIAM.

Affirmed.


text:
    Lillian FISHBACK et al., Appellants, v. Lillie Mae Wilmott SHARPE et al., Appellees.
    Supreme Court of Florida. Special Division B.
    Jan. 11, 1956.
   PER CURIAM.

Affirmed.


text:
    W. B. PRICE, Appellant, v. William A. HALLOWES, W. L. West and A. D. Newkirk, Appellees.
    Supreme Court of Florida. Special Division A.
    Jan. 11, 1956.
   PER CURIAM.

Affirmed.


text:
    Holston James NEWBOLD, Appellant, v. LAUNDRY WORKERS INTERNATIONAL UNION, LOCAL 222, Appellee.
    Supreme Court of Florida. Special Division B.
    Jan. 13, 1956.
   PER CURIAM.

Affirmed.


text:
    Marjorie TILCHIN, Appellant, v. Seymour TILCHIN, Appellee.
    Supreme Court of Florida. Division A.
    Jan. 18, 1956.
   PER CURIAM.

Affirmed.


author: JjWILLIAM H. BYRNES, III, Chief Judge.

text:
    STATE of Louisiana, v. Hilton LEE and Kwame Wilson.
    No. 2002-K-2073.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2003.
    Harry F. Connick, District Attorney Patricia D. Parker, Assistant District Attorney, New Orleans, LA, for the Plaintiff/Relator.
    Katherine Mattes, Supervising Attorney, Shannon Michaels, Student Attorney, Tessa Warren, Student Attorney, Tulane Law Clinic, New Orleans, LA, for Defendant/Respondent.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge DENNIS R. BAGNERIS, SR., and Judge DAVID S. GORBATY).
   JjWILLIAM H. BYRNES, III, Chief Judge.

The State’s writ application is granted to review the trial court’s ruling that granted the defendant Hilton Lee’s motion to suppress the identification. We vacate our stay order, reverse and remand.

Procedural History

On October 2, 2001, the defendants Lee Hilton and Kwame Wilson were each charged with two counts of armed robbery, charges to which they subsequently pleaded not guilty. The trial court held hearings on their motions to suppress the confession and identifications on January 18, April 19, and July 26, 2002. On September 5, 2002, the court denied the motions as to counts one and two but granted the motion to suppress the identification as to count three. With respect to count three (3) involving the photographic identification of Hilton Lee by the victim, Douglas Hoffman, the State’s writ application followed. On October 29, 2002 this Court issued a stay order. The defense filed a response, and the State supplemented its writ application with the September 5, 2002 transcript on the motion to suppress.

19Facts

The testimony concerning the identification in count three (3) was taken at the July 26, 2002 hearing, where Douglas Huffman testified he was robbed soon after midnight on July 29, 2001. Mr. Huffman stated that he worked as a cook at Arnaud’s Restaurant, and he was walking home from work at the time he was robbed. He testified that he stopped for one drink at a bar, and when he got to the corner of Bourbon and Kerlerec Streets, he heard a noise coming from behind him. He said that he turned and saw a man riding a bicycle toward him. The man wore a bandanna around the bottom half of his face, and he pulled a gun, demanding that Mr. Huffman give him all his money. Mr. Huffman stated that the area was somewhat lit, and he was able to observe the man for approximately thirty seconds. He said the man asked for more money, and when Mr. Huffman replied that he had no more money, the man asked about some people who were walking on the other side of the street and then he left.

Mr. Huffman testified that he went into a nearby bar, and the bartender called the police. Mr. Huffman spoke with officers at the scene, and he indicated he described the robber as being approximately 5'8" tall; he also stated he was 5'7" tall. He stated that he did not mention any distinguishing marks on the robber. On August 9, 2001, he viewed a photographic lineup from which he chose the picture of the defendant Hilton Lee as the man who robbed him. He testified that because he had seen only the top half of the robber’s face, the officer who showed him the lineup gave him a piece of paper to hold over the bottom part of the photographs. He positively identified Lee in court as the man who robbed him.

Detective Daniel McMullen testified that he investigated the robbery of Mr. Huffman. He stated that Hilton Lee became a suspect in this case due to his ^participation in other robberies in the Fifth and Eighth Districts. Detective McMullen stated that he compiled a photographic lineup, which included Lee’s picture, and on August 9, 2001, he contacted Mr. Huffman and had him come to the police station to view the lineup. Detective McMullen related that he showed Mr. Huffman the lineup, and Mr. Huffman chose Lee’s photograph. Detective McMullen denied suggesting to Mr. Huffman which photograph to choose, nor did he force or threaten Mr. Huffman to make him choose Lee’s picture. Detective McMullen testified that the description of the robber given by Mr. Huffman was of a man 5'8" and weighing 150-155 pounds, and there was no mention of any tattoos. Detective McMullen stated that Lee was 5'4" and weighed 130 pounds.

The July 26, 2002 transcript containing the testimony shows that the trial court suppressed the identification on the basis that the victim stated that the perpetrator was a little taller than he was, but the defendant is actually three inches shorter than the victim. Mr. Hoffman did not say that Hilton Lee had any distinguishing marks although he has tattoos on his arms.

The trial court did not find the actual photographic lineup was suggestive. The trial court stated at the July 26, 2002 hearing that:

I don’t see, though, suggestion. I don’t see the suggestion here, in terms of the police officer’s presentation and this in some way being a suggestive lineup. I’m not quite sure that the witness Huffman’s testimony as to ID is reliable.

In State v. Thibodeaux, 98-1673 pp. 20-21 (La.9/8/99), 750 So.2d 916, 932, certiorari denied sub nom. Thibodeaux v. Louisiana, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000), the Louisiana Supreme Court discussed the test for determining the admissibility of an out-of-court identification:

14As a general matter, the defendant has the burden of proof on a motion to suppress an out-of-court identification. La.Code Grim. Proc. art. 703(D). To suppress an identification, a defendant must first prove that the identification procedure was suggestive. State v. Prudholm, 446 So.2d 729, 738 (La.1984). An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980). However, even when suggestiveness of the identification process is proven by the defendant or presumed by the court, the defendant must also show that there was a substantial likelihood of misidentification as a result of the identification procedure. State v. Prudholm, 446 So.2d at 738.
The Supreme Court held in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977), that despite the existence of a suggestive pretrial identification, an identification may be permissible if there does not exist a “very substantial likelihood of irreparable misidentification.” Under Manson, the factors which courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include: 1) the witness’ opportunity to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of his prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. Id. [emphasis added]

See also State v. Simmons, 99-1154, (La.App. 4 Cir. 12/6/00), 779 So.2d 856, writ denied sub nom. State ex rel. Simmons v. State, 2001-0767 (La.11/9/01), 801 So.2d 364, where this court emphasized that a defendant must first establish that an identification procedure was suggestive before an identification can be suppressed.

In the present case, as noted by the State, the trial court found the procedure used at the photographic lineup was not suggestive. There was no basis for the trial court to suppress the photographic identification. Although the victim Mr. Hoffman described the robber as being an inch taller than Mr. Hoffman was, the defendant Hilton Lee is actually three inches shorter than the victim, and Hilton |sLee had tattoos on his arms. However, pursuant to Thibodeaux and Simmons, the difference in height, weight, and the existence of tattoos would not be the basis for suppressing the photographic lineup.

Instead, this would be a basis for the defense at trial to impeach the victim’s credibility as to any in-court identification of the defendant as the man who robbed him. The purpose of a suppression hearing is to determine if the procedures used in the identification was suggestive; it is not to determine if the defendant is guilty of the charged crime. The fact that Lee is shorter than the victim and had tattoos can be used at trial to impeach the victim’s testimony at that time; it has no bearing on the issue of the admissibility of the photographic lineup from which the victim chose the defendant’s picture. The credibility of a witness’ identification is a question for the jury to decide. State v. Williams, 769 So.2d 629, 637 (La.App. 4 Cir.2000).

Accordingly, this Court’s stay order is vacated, the trial court’s ruling is reversed, and the defendant Hilton Lee’s motion to suppress is denied.

WRIT GRANTED: STAY ORDER VACATED; REVERSED & REMANDED.

      . The third person to testify at this hearing was a witness to a different robbery; his testimony is irrelevant to this writ,


author: UGAIDRY, J.

text:
    CITY OF BATON ROUGE, Parish of East Baton Rouge and the Department of Public Works v. Larry BERNARD and the Personnel Board of the City of Baton Rouge, Parish of East Baton Rouge.
    No. 2001 CA 2468.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 22, 2003.
    Rehearing Denied March 10, 2003.

      Irys L. Allgood, Baton Rouge, Counsel for Plaintiffs/Appellants City of East Baton Rouge, Parish of East Baton Rouge and the Department of Public Works.
    Steve H. Benton, Baton Rouge, Counsel for DefendanVAppellee Larry Bernard.
    David A. Hamilton, Baton Rouge, Counsel for Defendant/Appellee The Personnel Board of the City of Baton Rouge, Parish of East Baton Rouge.
    Before: FITZSIMMONS, KUHN and GAIDRY, JJ.
   UGAIDRY, J.

This case involves an employment dispute which resulted in the termination of Larry Bernard, an electrician and classified civil service employee of the plaintiff, the City of Baton Rouge, Parish of East Baton Rouge (referred to for convenience hereafter as the “City/Parish”), a consolidated governmental body. Mr. Bernard invoked a hearing before the City/Parish’s Personnel Board, which voted to reinstate him in his position. The City/Parish then petitioned the district court for review of the Personnel Board’s decision. The district court reviewed the pleadings, evidence, and verbatim transcript of the hearing and upheld the Personnel Board’s decision. From that judgment, the City/Parish has instituted the present appeal. For the reasons articulated below, we must dismiss this appeal pursuant to La. C.C.P. art. 2162.

FACTS AND PROCEDURAL HISTORY

On January 31, 2000, Larry Bernard was a classified civil service employee of the City/Parish, and was performing electrical work related to the construction of a small building on the grounds of the East Baton Rouge Parish Prison. Earlier, Mr. Bernard may have received conflicting directions from his immediate supervisor, Scotty Southall, on more than one occasion, prompting changes in the layout of the conduit for electrical wire. On the date at issue, Mr. Southall was instructed to have Mr. Bernard again move conduit already in place. Mr. Southall relayed those instructions to Mr. Bernard, but was met with a lack of response. Mr. Southall then repeated the instructions and demanded acknowledgment that they were understood. Mr. Bernard suddenly lost his temper, approached his supervisor, and loudly berated him.

Following the incident, Mr. Southall met with his superior, Larry Nicholas. They concluded that there was reasonable suspicion of drug use by Mr. Bernard which might account for Mr. Bernard’s behavior, and completed the required written form documenting the facts underlying their suspicion. They met with and advised Mr. Bernard that he would be required to undergo drug testing under the ^provisions of City/Parish Ordinance 9877. Mr. Bernard refused to submit to the testing, and was instructed to leave the premises. Following that meeting, Mr. Nicholas initiated the required procedure to convene a pre-termination hearing, sending notice to Mr. Bernard by certified mail.

Following the pre-termination hearing with his supervisors, Mr. Bernard was formally terminated effective March 4, 2000. He subsequently instituted an administrative appeal of his termination to the City/Parish’s Personnel Board, which held an evidentiary hearing on June 22, 2000.

At the conclusion of the hearing, the Personnel Board voted 3-1 in favor of Mr. Bernard’s reinstatement. The City/Parish thereupon sought review of the Board’s decision by filing a “Petition for Judicial Review of a Personnel Board Decision and for Suspensive Appeal [sic ]” in the district court. The trial was held on May 21, 2001. No new testimony was submitted, and the evidence was limited to that presented at the prior hearing. On June 29, 2001, the district court signed its written judgment, upholding and confirming the Personnel Board’s decision. On September 21, 2001, the district court signed an order granting the City/Parish a devolutive appeal.

DISCUSSION

It is well settled that an individual’s right of judicial review of administrative proceedings is presumed to exist. Loop, Inc. v. Collector of Revenue, 523 So.2d 201, 202 (La.1987). Under the Louisiana Constitution of 1974, a district court reviewing an administrative tribunal decision pursuant to statute should properly be considered to being doing so under a legislative grant of appellate jurisdiction. Id. at 203 n. 1.

| Jn this case, no specific statute vests the district court with appellate jurisdiction to review the Board’s decision. Even in the absence of such a statute, however, a party may have a right under La. Const. Art. I, § 19 or § 22 to judicial review of administrative decisions adversely affecting his rights. See Walker v. Stewards of Jefferson Downs Race Track, 615 So.2d 403, 404 (La.App. 4th Cir.1993).

Here, both parties in brief cite La. Const. Art. V, § 10 as the basis of this court’s appellate jurisdiction. This provision grants a court of appeal appellate jurisdiction over “all civil matters.” A court’s subject matter jurisdiction may not be conferred by consent, however. La. C.C.P. art. 3. It is the duty of the court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. McGehee v. City/Parish of East Baton Rouge, 00-1058, p. 3 (La.App. 1st Cir.9/12/01), 809 So.2d 258, 260.

In Moore v. Roemer, 567 So.2d 75, 79-81 (La.1990), our Supreme Court held that the term “civil matters” as used in La. Const. Art. V, § 16 indicated an intent by its drafters to include within its meaning “all matters not criminal in nature,” or matters of “private law,” involving the adjudication of disputes between private, non-governmental parties, as opposed to public law. Additionally, the court observed that under the Constitution “matters under the original jurisdiction of administrative bodies are civil matters which would otherwise come under the original jurisdiction of the district court.” Id. at 79. Arguably, therefore, the City/Parish’s cause of action would fall within the grant of appellate court jurisdiction under La. Const, art. V, § 10.

Because it is the City/Parish who attempts to appeal the decision of the Personnel Board, the issue of whether an employee of the City/Parish classified |Rcivil service has a right to appeal a decision of the Personnel Board is not before us.

The City/Parish is a juridical person, not a natural person. See La. C.C. art. 24. As such, its capacity “is governed by provisions in its charter, governing legislation, and customs.” See La. C.C. art. 24 and Comment (d). A juridical person, as a creature of the law and by definition, has no more legal capacity than the law allows.

The City/Parish operates under a home rale charter. The City/Parish has by its own charter limited its recourse as a juridical entity from adverse decisions of its own Personnel Board. The limitation so imposed upon its rights does not violate due process of law under the Louisiana Constitution. Neither the district court nor this court has subject matter jurisdiction over this case. The judgment of the district court is void. La. C.C.P. art. 3. This appeal is dismissed pursuant to La. C.C.P. art. 2162.

APPEAL DISMISSED.

      . Pursuant to the authority of La. R.S. 49:1015, the City/Parish enacted Ordinance 9877 on April 27, 1994.

      . The transcript of the hearing shows that only four of the five Personnel Board members were present, and that Mr. Bernard expressly waived any potential objection to the lack of a full Board on "due process” grounds. Neither the record nor the parties’ briefs suggest why the final vote should be considered 3-2, as claimed by the City/Parish, rather than 3-1. However, this discrepancy was not raised as an issue on appeal by either party.

      . The Louisiana Administrative Procedures Act, La. R.S. 49:965 et seq., cannot apply to vest the district court with jurisdiction to review the administrative decision, as it does not apply to an agency of a political subdivision, such as the City/Parish. See La. R.S. 49:951(2) and La. Const. Art. VI, § 44(2). Likewise, La. Const. Art. X, § 12, vesting original appellate jurisdiction from decisions of the State and City Civil Service Commissions in the Courts of Appeal, cannot apply here. La. Const. Art. X, § 1.

      . Even if the funds with which it pays its civil service employees, or its public fisc in general, are considered "private” property under La. C.C. art. 453, its rights in that regard are still limited by its legal capacity.

      . Parish of East Baton Rouge and City of Baton Rouge Plan of Government, Chapter 9, § 9.05.


author: 11 HARRISON, Judge Pro Tempore.

text:
    STATE of Louisiana, Appellee, v. Kevin Lamont JONES, Appellant.
    No. 36,553-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Rehearing Denied Feb. 27, 2003.

      Hersy Jones, Jr., Shreveport, for Appellant.

      Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, J. Thomas Butler, Donna Hall, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and HARRISON (Pro Tempore), JJ.
   11 HARRISON, Judge Pro Tempore.

Kevin Lamont Jones was charged by amended bill of information with armed robbery while using a firearm, La. R.S. 14:64, 64.3. He proceeded to trial, after which a 12-member jury found him guilty as charged. The District Court sentenced him to 10 years at hard labor, without benefit of parole, probation or suspension of sentence for the armed robbery, and a consecutive term of five years at hard labor without benefits for the use of a firearm in the offense. Jones now appeals, urging seven assignments of error. We affirm.

Factual background

The victim, 70-year-old George Houston, was an employee of the Shreveport Times. About 3:00 a.m. on July 12, 1999, he was delivering papers to coin boxes outside a convenience store on North Market Street in Shreveport. He stopped his van close to the coin box and left the engine running while he carried the papers to the box. As he was doing this, a man (later identified as Myron Epps) came around the corner of the store. Brandishing a .40 cal. pistol, Epps told Houston, “Give it up, b*tch,” and struck him in the head with the weapon several times. Houston’s glasses flew to the ground but he remained on his feet. According to Houston, the two men struggled for a few minutes, as Houston tried to turn the gun on his assailant.

Houston testified that during the scuffle, another man, who had come “off the highway,” came up, hit him and knocked him to the ground. This man, wearing a green sweatshirt with a hood over his head, told Houston, |2“G*d d*mn it, don’t get up.” At this point, Houston heard Epps tell the hooded man, “Let’s go, Kevin.” Epps and the hooded man got into the van, with Epps behind the wheel. Houston tried to come to his feet, but the hooded man shouted at him, “G*d d*mn it, I told you not to get up.” The two drove off. The van, engulfed in flames, was found by Cad-do Parish deputies in Blanchard a few minutes later. Houston’s briefcase and .38 cal. police special revolver were missing from the vehicle.

Houston got a good look at Epps and his pistol. Houston did not know Epps; because the second assailant had a hood over his head, Houston could not recognize him. He reported the offense, and about 4:00 a.m. Shreveport police located Epps and another man walking in the parking lot of an apartment complex on North Market Street; the other man was in a green sweatshirt and blue jeans. Police detained Epps, who was carrying a concealed .40 cal. semi-automatic handgun. The man in the hooded sweatshirt fled, but Epps told them he was Kevin Jones. It turned out that Jones was Houston’s wife’s cousin’s grandson. The police went to Jones’s apartment; he was not home, but officers told his father that they wanted Jones for questioning.

Around mid-morning Jones and his father went voluntarily to the police station to be interviewed by Detectives Donna Lott and Ben Dailey, who tape recorded the interview. The tape begins with Det. Lott advising Jones that he was not under arrest but reading him his rights from a Miranda card which she initialed and dated and Jones signed. She further advised [¡¡him that he did not have to give up those rights, and could refuse to speak. He proceeded to give a statement.

Jones initially denied being involved in the robbery, saying that he was with his girlfriend, Cassandra, all night. However, he was unable to give her last name, apartment or phone number, and he agreed to ride with the detectives to her apartment. When Cassandra’s sister did not verify the alibi, the detectives placed Jones under arrest for armed robbery and Det. Dailey advised him of his Miranda rights, from memory, in the parking lot.

Jones then resumed his statement, admitting he was present when the crime occurred, but insisting that he only happened onto the scene, tried to stop Epps from hitting Houston, and actually pulled the two apart. He admitted he left in the van with Epps, but fled at the first opportunity and went to Cassandra’s apartment. He said that Epps offered him Houston’s revolver, and he refused. He admitted that he and Epps hid the gun, and were together when Epps was arrested. He stated he ran because he had a pending trespassing charge at those apartments. He also led the detectives to the hidden revolver.

Epps and Jones were initially charged in the same bill of information with armed robbery and carjacking; the defendants were later severed for trial purposes. At a preliminary examination in August 1999, Det. Lott testified that Jones had given a statement implicating himself in the crime, but did not mention the tape recording. In discovery responses, the State did not provide notice of a taped statement. Jones filed a motion to suppress his July 12, 1999 statements, urging a Miranda violation and that the | ¿statements were not free and voluntary. The District Court granted the motion to suppress, but on application for supervisory review this court vacated that judgment and remanded the case.

By supplemental discovery, the State provided notice of Jones’s taped statement. On May 31 and June 19, 2001, the District Court held a free and voluntary hearing in which the State adduced evidence as to the Miranda warnings and the taped statement. The court ruled that the taped confession was free and voluntary.

At trial in November 2001, Houston related that two assailants, one of them armed, had struck him and stolen his van. Det. Lott described the circumstances of Jones’s statement and played the tape for the jury.

Jones testified that he walked up to find Epps and Houston fighting. Seeing that Epps was about to shoot the elderly man, Jones broke up the fight but Houston lunged back at Epps and the two went at it again. Jones begged Houston to stop, but every time he pulled them apart, the old man ran back into the fight. While Houston may have fallen, Jones never hit him. Finally, Epps pointed the pistol at Jones and said, “Come on, let’s go.” Jones got into the van with Epps because of the weapon and to defuse the situation; a few blocks away, he told Epps to let him out. He added that Epps came back and tried to give him Houston’s revolver, but he refused it and Epps hid it at another apartment complex. Jones admitted making the taped statement and telling police where the stolen gun was hidden.

On rebuttal, the State introduced a bill of information charging Jones with trespassing on the apartment complex. The State argued this was to | firebut the testimony of Jones’s father (not designated as part of the appellate record) who, according to the State, related that an Officer Evans handcuffed Kevin Jones, took him to the station and arrested him on the criminal trespass charge. The State contended that the bill of information refuted that testimony. The court admitted the document, over Jones’s objection.

As noted, the jury found Jones guilty as charged of armed robbery, and further found that the dangerous weapon used was a firearm. Jones filed a motion for post verdict judgment of acquittal or new trial, which was denied. The court sentenced him to 10 years at hard labor without benefits for the armed robbery, plus a consecutive five years at hard labor without benefits for the use of a firearm, pursuant to R.S. 14:64.3. This appeal followed.

Discussion: Sufficiency of the evidence

By his first two assignments of error, Jones urges the District Court erred in submitting the charge of armed robbery to the jury and in denying the motion for post verdict judgment of acquittal or new trial. By his fifth assignment, which is argued with the first two, Jones urges the District Court erred in refusing to submit a jury charge of carjacking. The thrust of these arguments is that the van and its contents were not “in the immediate control” of the victim; lacking this essential element, the crime could not have been armed robbery, R.S. 14:64. Instead, he urges the evidence supports only a charge of'carjacking, which is defined as the taking of a motor vehicle belonging to another person, “in the presence of that person.” | fi R.S. 14:64.2. He further argues that the evidence is not sufficient to prove that he actually participated with Epps in beating the victim and taking the van. Jones contends there was no evidence to refute his claim that he walked into an ongoing crime, tried to assist the victim, and fled in the van only because Epps threatened him at gunpoint.

The standard of appellate review for sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. The Jackson standard applies both to direct and circumstantial evidence. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64; State v. Taylor, 422 So.2d 109 (La.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1803, 76 L.Ed.2d 367 (1983). A dangerous weapon is any instrumentality which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(3). If property is taken from the victim’s presence by intimidation with a weapon, it is sufficient to sustain a conviction for armed robbery. State v. Refuge, 300 So.2d 489 (La.1974); State v. Long, 36,167 (La.App. 2 Cir. 10/30/02), 830 So.2d 552. To prove robbery, the State must show that the property was sufficiently under the |7victim’s control that, absent violence or intimidation, the victim could have prevented the taking. State v. Thomas, 447 So.2d 1053 (La.1984); State v. Long, supra. All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24.

The reviewing court must defer to the trier of fact’s rational credibility calls, evidence weighing and inference drawing. State v. Mussall, 523 So.2d 1305 (La.1988). It is not the function of the appellate court to assess credibility or re-weigh evidence. State v. Marcantel, supra. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Jackson, 33,-837 (La.App. 2 Cir. 9/27/00), 768 So.2d 767, writ denied, 00-3078 (La.11/2/01), 800 So.2d 864.

At trial, the direct testimony of George Houston established that Jones participated with Epps in taking the van and its contents from Houston, while Epps was armed with a dangerous weapon, a .40 cal. semi-automatic pistol. Viewed in the light most favorable to the State, Jones’s contention that the van and its content were not under Houston’s immediate control lacks merit. Houston had stepped only a few feet away from the van when Epps, armed with a handgun, attacked him. In these circumstances, a motor vehicle may be the object of an armed robbery even though the victim was not literally occupying it at the time. State v. Lofton, 96-1429 (La.App. 1 Cir. 3/27/97), 691 So.2d 1365, writ denied, 97-1124 (La.10/17/94), 701 So.2d 1331; State v. Peters, 553 So.2d 1026 (La.App. 4 Cir.1989). In short, this evidence is sufficient to prove the essential element of immediate control. Moreover, Houston graphically described being struck several times by Epps, and once by Jones so hard that it knocked him off his feet. This is sufficient to prove the essential element of force or intimidation.

In brief, Jones concedes that the jury was free to reject his “good Samaritan” defense. However, he submits there was no evidence that he intended to participate in Epps’s criminal enterprise or knew of Epps’s intent to rob Houston. Jones therefore contends that the jury had no rational basis, under Jackson v. Virginia, supra, to convict him.

Jones testified that he tried, several times, to pull Epps and Houston apart. Houston testified that after Epps was unable to subdue him, Jones came up and landed a heavy blow, knocking him off his feet and enabling the assailants to drive off in the van. On this record, the jury was free to accept Houston’s version of the incident over Jones’s. State v. Jackson, supra. Although Jones denied any intent to participate, Houston noted that Jones “helped his buddy rob me.” Viewed in the light most favorable to the State, this evidence is sufficient to prove, beyond a reasonable doubt, that Jones participated in the armed robbery.

Finally, Jones submits (without elaboration) that since the evidence proves only a caijacking, the District Court erred in refusing to charge the jury as to that offense. For the reasons already discussed, the evidence was sufficient to prove the charged offense, armed robbery. We therefore |9decline to consider whether a jury charge as to any other offense was necessary. These assignments of error do not present reversible error.

Improper closing argument

By his third assignment of error, Jones urges the District Court erred in overruling his objection that the State, in its closing argument, made arguments not based on the facts in the record. He cites the prosecutor’s statement that the van and its contents were within Houston’s immediate control when they were taken. He contends that no such evidence was admitted.

The State responds that it was arguing a permissible alternative view of the evidence, including the testimony of Jones, for the jury to consider.

Argument shall be confined “to evidence admitted, to the lack or evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” La.C.Cr.P. art. 774; State v. Eaton, 524 So.2d 1194 (La.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989). Improper or allegedly prejudicial argument requires reversal when it is probable that the jury’s verdict was influenced by the remarks. State v. Deboue, 552 So.2d 855 (La.1989).

We have closely reviewed the contested portion of the State’s argument in light of the evidence adduced at trial. Houston had taken a few steps from the van, leaving it unattended for the few moments it took to place newspapers in the box. On this evidence, the State was entitled to |1flargue that the vehicle was in his immediate control, since absent the armed violence or intimidation by Epps, Houston could have prevented the taking. State v. Thomas, supra. As noted, a motor vehicle may be the object of an armed robbery even though the victim was not literally occupying it at the time of the taking. State v. Lofton, supra; State v. Peters, supra.

We also note that the District Court instructed the jury that the statements of counsel are not to be considered as evidence:

The lawyers have argued their interpretation of the law, the facts they think they have proven from the evidence and from inferences based on the evidence, and their conclusions from their interpretation of the law and the facts. These opposing view points are presented to you in arguments by the lawyers to assist you in your deliberations. However, the statements of the lawyers must be separated by you from evidence admitted in the case. R.pp. 130-131.

In view of the evidence admitted, the applicable law, and the court’s admonition to place arguments in the proper perspective, this assignment does not present reversible error.

Admissibility of statement

By his fourth and seventh assignments of error, Jones urges the District Court erred in admitting his statement of July 12, 1999. He contends the State offered no proof that he was advised of his Miranda rights and waived them, or that his statement was otherwise free and voluntary. He argues that the detectives led him to believe he would not be charged with robbery if he would tell them what Epps did to the victim. By supplemental memo, Jones also urges (for the first time) that his statement was tainted because detectives lacked probable cause to arrest him on July 12, and any confession obtained as the result of an illegal “seizure” must be ^suppressed. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

The State responds that both detectives testified to giving Jones his Miranda rights, and he also signed a rights card. Moreover, even though the detectives may have initially told Jones that he apparently did not play a large part in the offense, this did not make his statement any less free or voluntary. Finally, the State urges that the argument based on Dunaway is untimely since Jones did not file a motion to suppress on those grounds or argue them to the District Court.

When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. La. C.Cr.P. art. 218.1; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Roddy, 33,112 (La.App. 2 Cir. 4/7/00), 756 So.2d 1272, writ denied, 00-1427 (La.5/11/01), 791 So.2d 1288. Before a confession can be introduced into evidence, the State must affirmatively prove that it was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; C.Cr.P. art. 703 D; State v. Roddy, supra. The State’s burden of proof is beyond a reasonable doubt. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, supra.

The District Court’s findings as to the free and voluntary nature of a confession are entitled to great weight and ■will not be disturbed unless unsupported by the evidence. State v. Johnson, 479 So.2d 344 (La.1985); State v. English, 582 So.2d 1358 (La.App. 2 Cir.), writ denied, 584 So.2d 1172 (La.1991). Because of its superior position to observe the witnesses and assess their credibility, the District Court’s ruling on a motion to suppress is entitled to great weight. State v. Horton, 01-2529 (La.6/21/02), 820 So.2d 556.

Jones’s first contention is that the State failed to prove that he received his Miranda rights and waived them. The audio tape begins with Det. Lott reading Miranda rights to Jones, who signed a rights card, both of which were introduced in evidence at the free and voluntary hearing. Jones clearly stated that he understood his rights, and wished to waive them. The tape was paused when the detectives drove Jones to Cassandra’s apartment; Det. Dai-ley testified that when she did not verify Jones’s alibi, he placed Jones under arrest and gave him his Miranda rights. This was not recorded, but when the tape resumed, Jones confirmed that he had just received his Miranda rights again. On this evidence, the contention that Jones did not receive his Miranda rights is completely without merit.

Jones’s second contention is that he was misled into giving his statement. He argues the detectives told him he would not be charged with armed robbery if he merely told them what Epps did; in fact, as paraphrased by defense counsel at trial, detectives assured him, “we have already determined that you did not have much part in it.” When the tape was played, however, Det. Lott did not agree that Det. Dailey actually made this statement. R.p. 420. Our review of the tape indicates that Det. Dailey actually said, “Kevin, if you’re not the one who did all this and we’ve |13already determined that you didn’t have much part in it, if you saw [Epps] get the money out of the bag, it’s not going to hurt you any further.” The District Court did not find that this made the statement not free or voluntary. No detective ever told Jones he would not be charged with armed robbery; he specifically denied any threats, promises or inducements. In short, we find no abuse of the court’s discretion.

Finally, Jones argues the statements were tainted because he was arrested without probable cause. The State correctly shows that Jones did not urge this in his motion to suppress. Failure to file a motion to suppress evidence prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress. La. C.Cr.P. art. 703 F; State v. Johnson, 595 So.2d 789 (La.App. 2 Cir.1992). Even if the issue were properly presented, we would note that the District Court found probable cause at the preliminary exam on August 13, 1999; Jones has not shown that this was in error.

These assignments of error lack merit.

Evidence of prior conviction

By his sixth assignment of error, Jones urges that District Court erred in allowing the State to introduce into evidence of his prior conviction for trespassing. He contends, without elaboration, that the bill of information was hearsay and highly prejudicial to his ease.

Jones objected to this document as improper rebuttal evidence, hearsay and irrelevant. He did not urge that it was inadmissible other crimes evidence. For this reason, the argument is not properly preserved for 114appellate review. La. C.Cr.P. art. 841 A; State v. Jetton, 32,893 (La.App. 2 Cir. 4/5/00), 756 So.2d 1206, writ denied, 00-1568 (La.3/16/01), 787 So.2d 299. On the issues properly presented, the record supports the District Court’s ruling that the bill of information was to refute Jones’s father’s account of the arrest, and thus was proper rebuttal evidence. State v. Koon, 96-1208 (La.5/20/97), 704 So.2d 756. Although the bill of information was hearsay, it was admissible as a record or report setting forth factual findings resulting from an investigation made pursuant to authority granted by law, La. C.E. art. 803(8)(a)(iii). It was also properly self-authenticating. State v. Donald, 99-3612 (La.12/8/00), 775 So.2d 1054. This assignment lacks merit.

Conclusion

For the reasons expressed, Kevin Lamont Jones’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, DREW, and HARRISON, JJ.

Rehearing denied.

      . The card was dated “7-11-99” by mistake. The actual date was July 12.

      . The court is required to charge the jury as to the law applicable to the case, providing the responsive verdicts. La. C.Cr.P. arts. 802(1), 809. Carjacking is not responsive to armed robbery. La.C.Cr.P. art. 814 A(22). On this record, a jury charge as to carjacking would not appear to be warranted.


author: 11 LEON A. CANNIZZARO, JR., Judge.

text:
    William O. BONIN v. ALERION BANK.
    No. 2002-CA-1513.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 2003.

      William 0. Bonin, New Iberia, LA, for Plaintiff/Appellant.
    Harry J. Philips, Jr., Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, and Ira J. Middleberg, A.J. Herbert, Alan D. Weinberger, Middleberg, Riddle & Gianna, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.).
   11 LEON A. CANNIZZARO, JR., Judge.

This case involves an appeal by the plaintiff from the trial court’s judgment denying his claim that the defendant owes the plaintiff compensation for the defendant’s failure, and the failure of its predecessors, to invest certain trust funds for the benefit of the plaintiff. The plaintiff is one of the beneficiaries of a trust for which the defendant is trustee. For the reasons that follow, the trial court judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

On June 20, 1965, the State Mineral Board of the State of Louisiana (the “Mineral Board”) entered into an Agreement of Trust (the “Trust Agreement”) with National American Bank of New Orleans (“National American Bank”), a national banking corporation domiciled in New Orleans, Louisiana. The Trust Agreement established a trust pursuant to the provisions of La. R.S. 30:188(B)(2). The Mineral Board was the settlor of the trust, National American Bank was the trustee, and the beneficiaries of the trust were the owners of the properties covered |2by the Trust Agreement and any other persons entitled to receive royalties from the properties.

Since the trust was established, National American Bank, the original trustee of the trust, converted to a state chartered bank and changed its name to American Bank & Trust Company. Subsequently, American Bank & Trust Company changed its name to Alerion Bank. Alerion Bank merged into Premier Bank, N. A, and later changed its name to Bank One, Louisiana, N.A., which ultimately transferred its trust functions to Bank One Trust Company, N.A. Bank One Trust Company, N.A. has succeeded to all of the rights and obligations of its predecessor trustees under the Trust Agreement.

The Trust Agreement covers mineral leases affecting a tract of land in St. Mary Parish, Louisiana. Pursuant to the provisions of the Trust Agreement, royalties derived from those leases were distributed to the trust beneficiaries by the trustee under the Trust Agreement. The Trust Agreement established four accounts with respect to the St. Mary Parish mineral leases entitled as follows: “Mineral Board Trustee’s Gonsoulin Account” (the “Gon-soulin Account”); “Mineral Board Trustee’s General Administration Account” (the “General Administration Account”); “Mineral Board Trustee’s Escrow Account” (the “Escrow Account”); and “Mineral Board Trustee’s Gonsoulin Administration Account” (the “Gonsoulin Administration Account”) .

laThe Gonsoulin Account initially consisted of funds, to which the trust beneficiaries were entitled, that were being held by the Mineral Board at the time the trust was created. The Trust Agreement also provided that when royalties on the St. Mary Parish leases were received, those royalties ultimately were to be placed in this account. Ninety percent of the royalties were retained in the account, and the Trust Agreement provided that they were to be distributed to the beneficiaries annually.

The General Administration Account consisted of funds that were being held by the Mineral Board at the time the trust was created for the purpose of administering the leases that were placed in trust. If the funds in the Gonsoulin Administration Account were less than the amount the trustee was entitled to retain for its own account, the deficiency was to be paid to the trustee from the General Administration Account.

The Escrow Account was established so that all future income received by the Mineral Board from the St. Mary Parish leases could be deposited into it. After the income was deposited, ninety percent of the income was transferred into the Gon-soulin Account, and ten percent was transferred into the Gonsoulin Administration Account.

The Gonsoulin Administration Account was established to receive ten percent of the future income from the St. Mary Parish leases after the income had been deposited into the Escrow Account. The funds in this account were used to compensate the trustee for its trust services and to reimburse it for related expenditures.

14At the time the Mineral Board established the trust, the funds it held with respect to the leases covered by the trust were placed in the trust accounts. The royalties owed to the beneficiaries at the time the trust was established were deposited into the Gonsoulin Account, and the funds that had been held by the Mineral Board to administer the leases were deposited into the General Administration Account. All royalties received after the trust was established were initially deposited into the Escrow Account, from which they were then transferred into the Gon-soulin Account and the Gonsoulin Administration Account. Ninety percent of the royalties were transferred from the Escrow Account into the Gonsoulin Account, and ten percent of the royalties were transferred into the Gonsoulin Administration Account. The funds in the Gonsoulin Account were paid to the beneficiaries at least annually, and the funds in the Gon-soulin Administration Account were used to pay the fees and the expenses incurred in administering the trust.

The Trust Agreement provided that the amounts in the General Administration Account were to be “invested in one (1) year time certificates of deposit, paying interest at the rate of four and one-fourth (4 % per cent per annum”. The interest was to be credited to the account. The Trust Agreement was otherwise silent as to the payment of interest on any of the other accounts established pursuant to the Trust Agreement.

On December 9, 1993, Mr. William 0. Bonin filed suit against Alerion Bank alleging that the trustee breached its fiduciary obligations to him by failing to pay interest on the amounts deposited for his benefit into the Gonsoulin Account. Mr. Bonin subsequently supplemented his petition to include as defendants Bank One Trust Company, N.A. and all of its predecessor trustees of the trust.

|fiOn October 11, 1996, Mr. Bonin filed a Motion for Summary Judgment on the Issue of Liability, and on December 2, 1996, the trial court rendered a judgment denying the motion. Mr. Bonin then filed a Motion in Limine and Rule to Show Cause requesting the trial court to issue an order denying the defendant the right to use parol evidence at trial to show the intention of the parties to the Trust Agreement regarding the investment of the trust funds. The motion in limine was denied in a judgment rendered by the trial court on May 8,1997.

This case was tried on April 1, 2002, and a judgment in favor of Alerion Bank was rendered on April 15, 2002. The judgment was subsequently amended on May 9, 2002, to provide for a judgment in favor of Bank One Trust Company, N.A. Mr. Bonin is appealing the trial court’s judgment.

DISCUSSION

The key issue presented on appeal is whether the trustee was obligated to pay interest to Mr. Bonin under the terms of the Trust Agreement. In the instant case, the Trust Agreement expressly provided that the funds held in the General Administration Account were to be invested, and the Trust Agreement specified the investment vehicle to be used. The Trust Agreement was silent regarding the investment of the funds in any of the other accounts established by the Trust Agreement:,

The Trust Agreement also provided that “[t]o the extent not specifically covered herein, this agreement shall be governed when applicable, by the Louisiana Trust Code”. Mr. Bonin, therefore, argues that under the provisions of La. R.S. 9:2090, the trustee was required to invest all idle funds held in the trust |fiaccounts. La. R.S. 9:2090, which is part of the Louisiana Trust Code, requires a trustee to exercise the skill and care a man of ordinary prudence would exercise in dealing with his own property.

The “prudent man rule” set forth in La. R.S. 9:2090 does not, however, require the investment of trust funds if the settlor of a trust does not intend for those funds to be invested. The “prudent man rule” applies to the administration of the trust in accordance with the intent of the settlor.

In In re James C. Atkinson Clifford Trust, 2000-0235 (La.App. 1 Cir.6/23/00), 762 So.2d 775, the Court stated:

In construing a trust, the settlor’s intention controls and is to be ascertained and given effect, unless opposed to law or public policy. Parol or extrinsic evidence may be admitted to aid in construing the trust instrument only if the instrument is ambiguous and uncertain and only to explain, not contradict the instrument. Id. at 3 and at 776.

See also In re Merlin A. Abadie Inter Vivos Trust, 483 So.2d 1292 (La.App. 4th Cir.1986); Lelong v. Succession of Lelong, 164 So.2d 671 (La.App. 3d Cir.1964).

At the trial, Mr. Jerome B. Glynn, a former trust department employee of National American Bank and Alerion Bank, testified that he was in charge of the day-to-day administration of the trust from its inception until his retirement. He testified that he and the officer in charge of the National American Bank Trust Department discussed what they would advise the bank as to the payment of interest on the accounts other than the General Administration Account, for which interest was specifically required by the Trust Agreement. Mr. Glynn testified that he and the officer in charge of the trust department determined that they were not going to pay interest on any of the trust accounts except the General Administration Account, because “we determined that the work we were going to do for the fee that we were going to offer the Mineral Board would not justify us |7charging that low a fee and paying interest too.” Mr. Glynn also testified that the Mineral Board never conveyed to him any criticism regarding the nonpayment of interest to the beneficiaries, although the Mineral Board received routine accountings from the trustee. Finally, Mr. Glynn testified that he attended a Mineral Board meeting in the 1980’s at which there was a discussion regarding the payment of interest on the beneficiary accounts established by the Trust Agreement and that after the meeting, the bank’s position as to the payment of interest on those accounts remained the same as it had always been.

Mr. Edward Boyle, an attorney who represented National American Bank, also testified at the trial. He said that when he had been engaged in negotiations with the Mineral Board in the 1980’s on other issues involving the trust, there were never any discussions regarding the fact that interest was not being paid to the beneficiaries.

Ms. Sandra Bailey, the Deputy Assistant Secretary for the Louisiana Office of Mineral Resources, also testified at the trial. She testified that the Office of Mineral Resources “functions as a staff for the State Mineral Board.” Ms. Bailey testified that she was familiar with the Trust Agreement and that she had familiarized herself with it by researching the Mineral Board records. Based on her research, Ms. Bailey stated that historically the trustee had not paid interest on any of the accounts established by the Trust Agreement except for the General Administration Account. She further testified that she saw nothing in the Mineral Board records indicating that the Mineral Board ever complained to the trustee about the nonpayment of interest on any trust accounts.

In its Reasons for Judgment the trial court considered La. Civil Code art.2045, which provides that the common intent of the parties is to be used to |sinterpret a contract, and La. Civil Code art.2050, which provides that each provision of a contract is to be interpreted in light of the contract’s other provisions so that the contract is given the meaning suggested by the contract as a whole. The trial court considered that the Trust Agreement established a number of separate accounts but contained a provision that provided for the payment of interest on only one of the accounts. The trial court stated in the Reasons for Judgment that “[t]his court interprets the exclusion of similar provisions as to all the other accounts as a lack of intent by the settlor to create such a condition.”

The trial court then stated in its Reasons for Judgment that it had considered the testimony of Mr. Boyle and Mr. Glynn and found that their testimony that interest was not to be paid to the trust beneficiaries in exchange for a reduced fee structure was credible. The trial court held that the parties to the Trust Agreement did not intend for interest to be paid on the Gonsoulin Account.

CONCLUSION

We find that the trial court reached the correct result in concluding that Mr. Bonin was not entitled to the payment of interest on the amounts held in the Gonsoulin Account for his benefit. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

      . La. R.S. 30:188(B)(2) permits the Mineral Board to create one or more trusts and to transfer to one or more trustees the Mineral Board's rights and duties under mineral leases of land that is owned in indivisión by five hundred or more persons for the benefit of the landowners.

      . The Trust Agreement originally affected mineral leases of land in both St. Mary Parish and Jefferson Parish. The mineral production attributable to the Jefferson Parish land has terminated, and the trust provisions affecting leases of that land are not at issue in this case.

      . The Trust Agreement established separate accounts for the leases of the St. Mary Parish property and the Jefferson Parish property. In the Trust Agreement, the accounts related to the Jefferson Parish leases are referred to as the "Boutte” accounts, and the accounts related to the St. Mary Parish leases are referred to as the "Gonsoulin” accounts. The "Boutte” accounts are not at issue in this case. The plaintiff is one of a large number of beneficiaries of the leases of the St. Mary Parish property and receives payments from one of the Gonsoulin accounts.

      .These percentages have been changed pursuant to a recent amendment of the Trust Agreement.

      . Mr. Bonin also cites in his brief La. R.S. 9:2127, which establishes the standard of a care a trustee is to use in investing trust assets.