text:
    Jimmy MICKEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1482.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.

      Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Jimmy Mickel appeals his convictions of three counts of armed kidnapping and two counts of armed robbery. We affirm, finding no error in the trial court’s refusal to charge the jury on the defense of duress.

This case arose from a double homicide at a Waffle House on March, 11, 2002. Barbara Nunn, an eyewitness who survived the shooting, worked at the restaurant with Christine De La Rosa, a waitress, and Willy Absolu, a cook. Nunn knew Mickel from working with him at the Waffle House. Nunn and Mickel often discussed a nightclub where Mickel held a second job as a doorman. Nunn went to the club several times and Mickel let her in for free.

At 4:30 a.m., Mickel and Gerhard Ho-jan entered the Waffle House. Nunn was familiar with Hojan as Mickel’s sidekick. She described Hojan as a “gofer,” who did everything Mickel told him to do. When Mickel worked at the Waffle House, Hojan often sat in a booth, waiting for Mickel to finish his shift.

Mickel and Hojan sat down in a booth, ordered, and ate. When they finished, Mickel stood up and walked out of the restaurant. Hojan went to the cash register to pay. Before handing over the check, Hojan looked outside to Mickel in the parking lot. De La Rosa reached to take the bill from Hojan. At that point, Nunn heard a clicking sound.

Nunn turned and saw Hojan pointing a gun at De La Rosa. De La Rosa pleaded with Hojan, saying, “I have a six month old son named Kyle. I want to see him again.”

Mickel reentered the restaurant, walking quickly, hugging the wall, and heading toward the restrooms. Though Hojan and Mickel did not speak, Nunn felt that Mick-el was in control. She testified that Mick-el was the mastermind who thought of everything, while Hojan waddled behind like a dog on a leash.

Hojan ordered Nunn, De La Rosa, and Absolu to the back of the restaurant. The three employees headed single file through the kitchen. As they went through the swinging door, Nunn saw Mickel using long bolt cutters to break the lock on the storage area. Nunn surmised that Mickel brought the bolt cutters with him, because she had never before seen bolt cutters in the restaurant. After Mickel broke the lock, the door opened and everyone walked into the storage area. Nunn asked if they were going to be okay. Mickel did not respond. Hojan told the three employees to go into the back freezer. The trio complied and the freezer door closed.

Soon, Hojan returned to the freezer and asked for the employees’ cell phones. None of the employees had cell phones, so Hojan left. When he returned, he told the employees to put their money on the shelf. Nunn placed about $40 on the shelf, De La Rosa put down between $140 and $160, and Absolu said he had no money on him. Hojan took the cash and left, closing the door behind him.

When Hojan returned to the freezer, he told the victims to get on their knees and put their hands on then.* heads. Absolu and De La Rosa complied but Nunn did not. She tried to talk Hojan out of shooting them, but he kept telling her to turn around. Hojan shot Nunn and she fell. Nunn opened her eyes and before closing them again, she saw De La Rosa get shot.

The next thing Nunn remembered was knocking away Absolu’s foot or leg. She crawled through the freezer and peeked outside to see if Mickel or Hojan were still around. Nunn went out the back door and made it across the parking lot to a gas station, where the attendant called 911.

The police searched the Waffle House shortly after the shooting. They found the bodies of Absolu and De La Rosa in the freezer. De La Rosa had gunshot wounds to the neck and breast. Absolu had gunshot wounds to the head, neck, and arm. A black metal drop box was dangling behind the cash register, with its padlock cut off. There were three other cut padlocks, two empty cash drawers, and coins and coin wrappers scattered in one of the offices. A crime scene technician collected five bullet casings from the cooler. An expert witness testified that (1) a gun found in Hojan’s truck fired the bullets that killed the victims, and (2) at least two of the locks were cut by bolt cutters retrieved from Hojan’s truck.

At 6:40 a.m. on the morning of the shooting, Hojan entered a convenience store and used cash, with much of it in small change, to purchase two money orders for $411.56 each. This transaction was captured on a videotape; the tape showed Mickel walking around a truck parked at the gas pumps outside.

Later that morning, Mickel and Hojan went to a Wal-Mart to shop for shoes. They each bought a pair and discarded the shoes they had worn at the Waffle House.

After his arrest, Mickel gave a taped statement to the investigating detectives. His version of the events was that when he woke up at 3:00 a.m., Hojan said he was hungry and wanted a waffle. Mickel and Hojan drove to the Waffle House. After they finished eating, Hojan got up to pay and Mickel went outside. When he turned back, Hojan was pointing a gun at the blonde waitress. Mickel went back inside as Hojan directed the employees to the back of the restaurant. Mickel claimed that Hojan then told him to get the bolt cutters from the car. Mickel heard several thumps, which he said did not sound like gunfire, but rather like boxes being moved.

In the statement, Mickel said he went outside to the truck, got the bolt cutters, came back inside and cut the padlocks to the manager’s office and the cash drawer inside. He placed the money in a white plastic bag that Hojan held. The men left through the back door. Hojan and Mickel drove back to their house. On the way, there was some conversation about the employees knowing who Mickel and Hojan were and Hojan told Mickel, “I took care of them.”

Mickel said that he was shocked about what happened, and scared that he and Hojan would get in trouble because they had pulled a gun and robbed the place and Hojan had killed people. Mickel claimed he only went along with the robbery “to be cool.”

Mickel’s fiancée, law student Shannon Murphy, testified that she lived with Mick-el and Hojan for almost two years. She said that Hojan and Mickel were good friends and that Hojan used to follow Mickel around like a big puppy. Murphy lent Hojan one of her textbooks about serial killers. Hojan and Mickel were at the trailer when Murphy went to bed on the night of the shootings.

Murphy heard about the Waffle House incident the next day at school. Unable to reach Mickel by phone, she did not talk to him until she arrived home around 8:00 p.m. She found Mickel sleeping; he had been sleeping all day. Murphy asked if he had heard about the Waffle House shootings. Mickel said he had but wanted to talk later because he was half asleep.

Mickel neither testified at trial nor put on any evidence. He requested an instruction on duress or necessity, arguing that Hojan was just trying to “get cool, so [he] could get [Hojan] to go away from [the victims];” that Mickel was a 165-pound skinny defendant and Hojan was a 350-pound armed bouncer who had been reading books about serial killers. The trial court denied the request.

The jury acquitted Mickel of the murder and attempted murder counts and found him guilty of three counts of armed kidnapping and two counts of armed robbery.

The trial judge ordered a Pre-Sentence Investigation. The PSI recited the circumstances surrounding the crimes and detailed, among other things, Hojan’s statement to the police:

[Hojan] stated that he walked out of cooler again, and that’s when the defendant told him, “We can’t leave any witnesses.” Hojan stated that is when he walked back inside the cooler and then shot them both. He stated that when survivor Nunn was shot and fell to the floor, the other girl, referring to Christina De La Rosa, “was screaming and she started like trying to climb underneath the racks and I shot her twice.”

The PSI also stated that Mickel never expressed any remorse for the victims or their families, and that he blamed his situation on the court and on State Attorney Michael Satz. A copy of the PSI was furnished to Mickel before sentencing.

At sentencing, Mickel requested a sentence below the guidelines minimum of 18.5 years.

The judge, after reviewing the PSI, hearing comments from the victim’s families, considering the evidence at Mickel’s trial, and considering the state’s recommendation, stated:

There is no question having sat through both Mr. Hojan’s trial and your trial that you were the mastermind behind this entire thing. You manipulated Mr. Hojan. He was there, he did your bidding, and the three times that he left that freezer and went back to your location, there was no question what was going on at that point. You were telling him, no witnesses, no witnesses, no witnesses, and he went back and he went forth, and he went back, and he pulled the trigger and that pull of the trigger was a cold, calculated, premeditated act that was precipitated by your direction. No question about that.

The court sentenced Mickel to five consecutive life sentences.

Mickel claims that the trial court reversibly erred in not granting his requested instruction on duress as to the robbery and kidnapping charges. We hold that Mickel was not entitled to a jury instruction on duress because the evidence at trial did not support that defense.

A defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense, such as duress, “if there is any evidence to support such instruction.” Campbell v. State, 577 So.2d 932, 935 (Fla.1991). “The trial judge should not weigh the evidence for the purpose of determining whether the instruction is appropriate.” Smith v. State, 424 So.2d 726, 732 (Fla.1982). The trial court should examine the evidence in the light most favorable to the defendant to decide whether the necessary elements of the defense have been placed before the jury.

To be entitled to a charge on the defense of duress, the defense version of the evidence must demonstrate six elements:

1) the defendant reasonably believed that a danger or emergency existed that he did not intentionally cause; 2) the danger or emergency threatened significant harm to himself or a third person; 3) the threatened harm must have been real, imminent, and impending; 4) the defendant had no reasonable means to avoid the danger or emergency except by committing the crime; 5) the crime must have been committed out of duress to avoid the danger or emergency; and 6) the harm the defendant avoided outweighs the harm caused by committing the crime.

Driggers v. State, 917 So.2d 329, 331 (Fla. 5th DCA 2005) (citing Fla. Std. Jury Instr. (Crim.) 3.6(k)); see Hall v. State, 136 Fla. 644, 187 So. 392 (1939); Aljak v. State, 681 So.2d 896 (Fla. 4th DCA 1996); Koontz v. State, 204 So.2d 224 (Fla. 2d DCA 1967). A threatened harm that is “impending” is not only one that is “temporal, i.e. about to take place, but includes whether there is, no matter the lapse of time, a reasonable opportunity to escape the compulsion without committing the crime.” Wright v. State, 402 So.2d 493, 497 n. 6 (Fla. 3d DCA 1981). An “imminent” danger is one which cannot be guarded against by calling for the protection of the law. Id. Thus, the defense does not apply where a defendant has an opportunity to escape the compulsion without committing the crime. Id.; see Gahley v. State, 567 So.2d 456, 459 (Fla. 1st DCA 1990); Corujo v. State, 424 So.2d 43, 44 (Fla. 2d DCA 1982).

Even under Mickel’s version of events, the evidence demonstrates that he had many opportunities to escape Hojan’s supposed compulsion, such as when he walked outside after eating, when he went to the truck to retrieve the bolt cutters, or during the times when Hojan went into the freezer. See Pflaum v. State, 879 So.2d 93, 95 (Fla. 4th DCA 2004). In his statement to the police, Mickel conceded that he was not in the restaurant when Hojan first pulled the gun; instead of leaving the area for help, he went back inside. There was no evidence that Hojan ever threatened or coerced Mickel by word or deed. Mickel told the police that he had gone along with the robbery “to be cool.” This case is unlike those that required a duress instruction, where defendants described in detail the acts that compelled their commission of crimes. See Aljak, 681 So.2d at 897; Koontz, 204 So.2d at 225-26.

The fact of the triple shooting does not support the duress instruction. Mickel told the police that he did not know at the time of the crimes that Hojan had shot the victims; this would mean that, as far as Mickel knew, the victims were locked in the freezer. Miekel’s statement to the police that he was “scared” refers to his conversation with Hojan in the truck as they were leaving the Waffle House. His apprehension concerned his fear of getting caught, not a fear of Hojan that compelled him to participate in the robbery scheme.

Mickel next claims that the trial court improperly relied on evidence presented at his co-defendant’s trial, and not at his trial, to sentence him to life in prison. Hojan’s statement implicating Mickel was described in the PSI. Furnished to the defense during discovery, the statement was the basis for the severance of the trials. Mickel had been given a copy of the PSI. The trial court properly considered the information and “afforded [Mickel] an opportunity to rebut or impeach the information.” Vining v. State, 827 So.2d 201, 210 (Fla.2002).

Affirmed.

WARNER and HAZOURI, JJ., concur.

      . Gerhard Hojan was Mickel’s co-defendant. Prior to trial, Mickel moved to sever his trial from Hojan’s, asserting that Hojan had made an incriminating statement to the police that inculpated Mickel. The trial court granted the motion.

      . The defense of duress is also called “compulsion” or "coercion.” See, e.g., Koontz v. State, 204 So.2d 224 (Fla. 2d DCA 1967); Wayne R. Lafave and Austin W. Scott, Jr., Handbook on Criminal Law (1972) § 49 n. 1.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Daniel STEVENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-529.
    District Court of Appeal of Florida, Second District.
    June 9, 2006.
   NORTHCUTT, Judge.

Daniel Stevens appeals the summary denial of his motion seeking the return of property allegedly seized from his residence. We reverse and remand for further proceedings.

On July 5, 2005, in circuit court ease 01-CF-002023, Stevens filed a motion seeking the return of a Packard Bell computer, model A-950-TWR, serial #P089033110, that Hillsborough County sheriffs deputies seized when searching his residence pursuant to his wife’s signed consent. The circuit court summarily denied Stevens’ motion as untimely.

A trial court’s jurisdiction over a criminal proceeding includes inherent authority over property seized or obtained in connection with the proceeding and thus held in custodia legis. White v. State, 926 So.2d 473 (Fla. 2d DCA 2006); see also Eight Hundred, Inc. v. State, 781 So.2d 1187, 1191-92 (Fla. 5th DCA 2001). This authority continues beyond the termination of the prosecution, thus enabling the court to direct the return of the property to its rightful owner. Id. However, section 705.105(1), Florida Statutes (2004), provides that title to unclaimed evidence or personal property that was lawfully seized pursuant to a lawful investigation and that is in the custody of the court or clerk as part of a criminal proceeding, or seized as evidence by and in the custody of a law enforcement agency, vests permanently in the law enforcement agency sixty days after the proceeding is concluded.

When denying Stevens’ motion, the circuit court attached to its order the August 17, 2001, judgment and sentence and April 10, 2003, amended sentence in circuit court case 01-CF-005068, the Hillsborough County Sheriffs Office waivers/affidavits, and the Hillsborough County Sheriffs Office property receipt. The court determined that on February 26, 2001, the computer was seized during the deputies’ search of Stevens’ home. But the court concluded that Stevens’ motion was untimely under section 705.105 because his criminal proceeding ended on April 10, 2003, when his original sentence was amended.

A review of the Hillsborough County Sheriffs Office property receipt reflects that, indeed, the computer was seized as evidence on February 26, 2001. Therefore, the circuit court correctly concluded that the computer was seized as evidence. However, the August 17, 2001, judgment and sentence and April 10, 2003, amended sentence entered in circuit court case 01-CF-005068 and referenced in the circuit court’s order to support its finding that Stevens’ motion was untimely do not refute Stevens’ claim that the computer was seized in circuit court case 01-CF-002028. The court failed to attach any records pertaining to the latter case. Therefore, the attachments to the order do not conclusively refute Stevens’ claim.

If, on remand, the circuit court again summarily denies Stevens’ motion, it must attach portions of the record demonstrating that the motion was untimely. Otherwise, the court must entertain the motion on its merits. See Cloud v. State, 801 So.2d 964 (Fla. 2d DCA 2001); Hughes v. State, 768 So.2d 512 (Fla. 2d DCA 2000).

Reversed and remanded for further proceedings.

STRINGER and SILBERMAN, JJ., Concur.


author: DAVIS, Judge.

text:
    Russell BOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2468.
    District Court of Appeal of Florida, Second District.
    June 9, 2006.
    James Marion Moorman, Public Defender, and Cynthia A. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Russell Bowers appeals the trial court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Bowers alleged five grounds of ineffective assistance of trial counsel. We affirm the trial court’s order on four of the grounds without discussion but reverse as to one issue.

Bowers was charged with burglary of a structure and grand theft. Following conviction after a jury trial, Bowers was sentenced to fifteen years in prison for the grand theft and to a consecutive five-year term for the burglary. This court affirmed his conviction and sentence, noting that “the only issue of arguable merit is whether Mr. Bowers’ trial counsel provided ineffective assistance in a manner that can be conclusively determined from the face of the record” and concluding that any ineffectiveness claims were “more appropriately raised in a [rule 3.850 motion].” Bowers v. State, 850 So.2d 617, 617 (Fla. 2d DCA 2003).

Accordingly, Bowers alleged in his post-conviction motion that his trial counsel had rendered ineffective assistance by eliciting numerous details of Bowers’ prior criminal record during his direct examination of Bowers. Most of these details concerned matters about which the State would not have been entitled to inquire. At the post-conviction evidentiary hearing, trial counsel testified that Bowers’ credibility had been at issue at trial. The State had presented Joe Boyer, who was originally supposed to be Bowers’ alibi witness but who ultimately accused Bowers of the crimes. As such, the question of Bowers’ guilt came down to whom the jury believed — Bowers or Boyer.

Trial counsel suggested at the postcon-viction hearing that it was his trial strategy to have Bowers admit all the details of his criminal record in the hope that such candid testimony on these matters would influence the jury to accept his testimony regarding the burglary and grand theft. The postconviction court accepted this explanation and denied Bowers’ rule 3.850 motion, finding that trial counsel’s actions were reasonable strategic decisions that are not subject to collateral attack. We disagree.

To obtain postconviction relief for ineffective assistance of trial counsel, Bowers must allege and show that trial counsel’s performance was deficient and that such deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective assistance when the issue involves a strategic decision made by trial counsel, the movant must show that the strategy was “unreasonable.” Florida v. Nixon, 543 U.S. 175, 189, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). To be reasonable, the strategy must be based on informed professional judgment. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). “There is a strong presumption of reasonableness that must be overcome, and strategic or tactical decisions by counsel made after a thorough investigation are ‘virtually unchallengeable.’ Downs [v. State, 453 So.2d 1102, 1108 (Fla.1984) ]. Nevertheless, ‘patently unreasonable’ decisions, although characterized as tactical, are not immune. Roesch v. State, 627 So.2d 57, 58 n. 3 (Fla. 2d DCA 1993).” Light v. State, 796 So.2d 610, 616 (Fla. 2d DCA 2001).

In our review, we must defer to the trial court’s factual findings that are supported by competent, substantial evidence. Id. at 615. However, the legal conclusions of the trial court are reviewed de novo. Id. Here, the trial court’s order determined as a matter of fact that Bowers’ counsel’s decision to question Bowers regarding his prior criminal convictions amounted to trial strategy. Because this finding is supported by trial counsel’s post-conviction hearing testimony, the issue we must resolve is whether the trial court erred in determining that the strategy was reasonable.

At the beginning of his direct examination of Bowers, trial counsel inquired into Bowers’ prior convictions. Answering his attorney’s specific questions, Bowers informed the jury that he had been convicted of breaking and entering when he was nineteen and of receiving stolen property when he was twenty-three. He further admitted that at the time of the trial, he was on probation for possession of marijuana. Upon the completion of direct examination, the prosecutor requested a bench conference to advise Bowers’ counsel that he had omitted two convictions for carrying a concealed firearm. The trial court granted defense counsel’s request to reopen the direct examination, at which time Bowers told the jury that he had been convicted in Michigan on concealed firearm charges and that he had been adjudicated a habitual offender. In response to counsel’s questioning, Bowers also testified that he had been sentenced to time served on the breaking and entering charge; trial counsel then specified that time served was thirty days in county jail.

During cross-examination, the Assistant State Attorney went into further detail, obtaining Bowers’ confirmation that he had four prior felony convictions and one misdemeanor conviction. The prosecutor then characterized the breaking and entering charge as a burglary. Although Bowers did not agree, the prosecutor showed him a copy of the charge, which read “breaking and entering building with the intent to commit larceny.” Bowers then admitted that he had been to prison on some of the charges. Bowers’ counsel did not object to any of these questions.

By taking the stand to testify, Bowers’ prior criminal record became subject to disclosure. See § 90.610, Fla. Stat. (2000). However, absent trial counsel’s direct examination, that disclosure would have been limited to the number of felony convictions or convictions for misdemeanors involving dishonesty or false statement. See Burst v. State, 836 So.2d 1107, 1108 (Fla. 3d DCA 2003). In fact, it is accepted strategy for defense counsel to elicit this limited information from a defendant on direct examination in an attempt to “steal the thunder of the impeachment” away from the State by preventing it from inquiring into these matters on cross-examination. Lawhorne v. State, 500 So.2d 519, 521 (Fla.1986).

However, the information that Bowers’ counsel elicited from Bowers far exceeded that which the jury was entitled to know. Had trial counsel not volunteered the information, the nature of the charges would not necessarily have been admissible. See Livingston v. State, 682 So.2d 591 (Fla. 2d DCA 1996) (stating that a prosecutor may not cross-examine a defendant about the specific nature of his or her prior convictions if the defendant correctly answers the prosecutor’s questions as to the number of the defendant’s prior convictions resulting from the commission of any felonies or any misdemeanors involving dishonesty or false statement). By informing the jury that Bowers had been convicted of grand theft and breaking and entering, trial counsel impugned his client’s credibility in front of the jury. See Dodson v. State, 356 So.2d 878, 879 (Fla. 3d DCA 1978) (“Crimes [involving theft] as distinguished from acts of violence ‘are universally regarded as conduct which reflects adversely on a man’s honesty and integrity.’ ” (quoting Gordon v. United States, 383 F.2d 936 (1967))). Furthermore, once trial counsel introduced the breaking and entering charge, the prosecutor was able to successfully characterize it as a burglary charge — a characterization that was highly damaging to Bowers, who was on trial for burglary.

In that there was no physical evidence linking Bowers to the instant crime, and in that the State’s case rested solely on Boyer’s testimony, informing the jury of Bowers’ prior convictions on similar offenses was prejudicial to Bowers’ defense and, as such, was not a reasonable defense strategy. Likewise, informing the jury that Bowers had been previously designated as a habitual offender, a fact that would not have otherwise been known by the jury, prejudiced Bowers’ integrity with the jury by making it clear that Bowers had previously served time in prison. Finally, the jury never would have been advised of Bowers’ misdemeanor conviction for marijuana possession or of the fact that he was on probation for that charge at the time of the trial had trial counsel not volunteered the information. Such knowledge would hardly enhance Bowers’ credibility with the jury.

Even if we were to conclude that counsel’s strategy of being completely candid about Bowers’ prior record was somehow reasonable, counsel’s execution of the strategy defeated the intent. The plan was that Bowers’ candor regarding these prior convictions would impress the jury to such an extent that it would accept the remainder of his testimony at trial as true. However, because counsel did not properly prepare for the examination by determining all the details prior to trial, he created the opposite perception. At the outset of the direct examination, the jury watched as counsel asked Bowers about his prior convictions. At the end of Bowers’ direct examination, the prosecutor requested a bench conference. Following this bench conference, counsel came back to ask Bowers additional questions regarding his criminal record, eliciting that Bowers also had been convicted on concealed weapons charges and had been sentenced as a habitual offender. Because counsel did not set forth for the jury Bowers’ complete criminal history in his attempt to make Bowers appear candid, he actually made it appear as if Bowers intentionally had tried to omit this additional information. Additionally, trial counsel inquired about the jail time and probation that Bowers had served but did not ask about prison time. By allowing this information to be introduced on cross-examination, rather than on direct examination, counsel created the perception that Bowers was not totally forthcoming about his prior history.

As such, we conclude that counsel’s strategy to bolster his client’s credibility with candor was “patently unreasonable.” See Light, 796 So.2d at 616. Accordingly, Bowers has demonstrated ineffective assistance of counsel under Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and is entitled to his requested postconviction relief.

Reversed and remanded for a new trial.

SILBERMAN, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: STRINGER, Judge.

text:
    LEE COUNTY, Florida, Appellant, v. Tina BROWN, individually and on behalf of others similarly situated; First Home Builders of Florida, a Florida partnership, on its own behalf and on behalf of other general contractors similarly situated; Lee Building Industry Association, Inc., a Florida corporation, on its own behalf and on behalf of its members and others similarly situated; and Patricia Shatto, individually, and on behalf of others similarly situated, Appellee.
    No. 2D05-2711.
    District Court of Appeal of Florida, Second District.
    June 9, 2006.

      Gregory T. Stewart and Harry F. Chiles of Nabors, Giblin & Nickerson, P.A., Tallahassee; and David M. Owen, Lee County Attorney, and John S. Turner, Assistant County Attorney, Fort Myers, for Appellant.
    Jeffrey R. Garvin, Theodore L. Tripp, Jr., and Elisa W. Worthington of Garvin & Tripp, P.A., Fort Myers, for Appellees.
   STRINGER, Judge.

Lee County seeks review of the final summary judgment, in which the trial court found that a school impact fee ordinance constitutes a facially unconstitutional impairment on construction contracts. Because there are circumstances under which the school impact fee ordinance would be valid, the trial court’s determination that it is facially unconstitutional is erroneous. Accordingly, we reverse and remand for further proceedings.

In November 2001, the Lee County Board of County Commissioners adopted Lee County Ordinance No. 01-21 (“the Ordinance”). Pursuant to the Ordinance, a person who applies to Lee County or to any municipality within Lee County for issuance of a building permit, mobile home move-on permit, or mobile home park development order for the purpose of making a residential improvement to the land for one of the uses specified in the Ordinance must pay a school impact fee. The Ordinance imposes a school impact fee of $2232 for single-family residences; $691 for mul-ti-family residences, duplexes, two-family attached homes, or townhouses; and $425 for mobile homes. The Ordinance became effective December 1, 2001.

Lee County subsequently adopted Ordinance No. 01-22, which amended the Ordinance to allow those applicants who had submitted their applications for building permits prior to December 1, 2001, and who were issued building permits prior to March 1, 2002, to avoid paying the school impact fee.

The Ordinance thus requires payment of the school impact fee prior to the issuance of building permits after December 1, 2001, but exempts those whose permit applications had been submitted prior to December 1, 2001, and were issued prior to March 1, 2002. The school impact fee is assessed regardless of when the contracts for the sale or development of land were executed.

On behalf of a class of persons who had executed such contracts prior to December 1, 2001, but had not qualified for the exemption, Tina Brown, First Home Builders of Florida, and Lee Building Industry Association, Inc., (“Plaintiffs”) filed an action seeking a declaratory judgment that the assessment of the school impact fee constitutes an unconstitutional impairment of their contract rights under the contract clause in article I, section 10 of the Florida Constitution, both facially and as applied. Plaintiffs subsequently filed their first amendment to the complaint, which joined Patricia Shatto as a named plaintiff. The trial court eventually certified a class/subclass, with Shatto as the sole class/subclass representative, defined as: “All parties who have paid or been assessed an impact fee pursuant to the Lee County school impact fee Ordinance (01-21) in order to obtain a building permit, mobile home move-in permit or mobile home park development order.”

The trial court granted summary judgment in favor of Plaintiffs based on its finding that the Ordinance was facially unconstitutional as an impairment of contracts in violation of the contract clause. The trial court held that the Ordinance placed an impermissible burden on contracts executed prior to December 1, 2001, and, therefore, was facially unconstitutional as to all Plaintiffs who had executed contracts prior to December 1, 2001. The court reasoned:

Citizens cannot be charged reasonably with notice of the consequence of impending legislation before the effective date of that legislation. Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077, 1080 (Fla.1978). Furthermore, rights existing under a valid contract enjoy protection under the Florida Constitution. Green v. Quincy State Bank, 368 So.2d 451 (Fla. 1st DCA 1979).

The trial court did not reach Plaintiffs’ as-applied challenge under the contract clause.

On appeal, Lee County argues that the Ordinance is not facially unconstitutional because it does not impair each and every contract executed prior to its effective date. Lee County also asserts that the contract clause is not applicable when the government establishes regulations pursuant to its police powers. Alternatively, Lee County asserts that the trial court erred in failing to apply the balancing test adopted by the Florida Supreme Court in Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1979), to determine whether the Ordinance constitutes an unconstitutional impairment of Plaintiffs’ contract rights.

Plaintiffs argue that the Ordinance is facially unconstitutional regardless of whether it impairs each and every contract executed prior to its effective date because it does not contain a savings clause exempting all contracts in existence prior to its effective date. Plaintiffs also argue that, in Florida, contract rights enjoy nearly absolute protection from governmental interference irrespective of whether the interference is pursuant to the government’s police powers. Plaintiffs assert that the trial court properly applied the per se analysis as explained in Dewberry. Plaintiffs also assert that, even if the Pom-ponio balancing test did apply, the Ordinance would fail to satisfy it.

We reverse on a variation of the first basis argued by Lee County. We conclude that the trial court erred in determining that the Ordinance is facially unconstitutional because circumstances exist under which the statute could be validly applied to require payment of the school impact fee prior to issuance of building permits.

“[A] determination that a statute is facially unconstitutional means that no set of circumstances exists under which the statute would be valid.” See Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005); State v. Bales, 343 So.2d 9, 11 (Fla.1977). The trial court determined that the Ordinance “retroactively places an impermissible burden on those contracts which were executed prior to December 1, 2001, and clearly constitutes an impairment of contract which is facially unconstitutional.” However, this finding only suggests that the Ordinance is unconstitutional as applied to contracts that were executed prior to December 1, 2001. The court did not find, and Plaintiffs have not argued, that the Ordinance cannot be constitutionally applied to those contracts executed after the effective date of the Ordinance, which will encompass the greater part of the Ordinance’s application. Thus, the trial court misapplied the standard for determining the facial constitutionality of the Ordinance.

Lee County argues that the Ordinance is not facially unconstitutional because it does not impair each and every contract executed prior to its effective date. This argument is based on the fact that several of the contracts specifically provide for the payment of impact fees or state that payment of impact fees is not governed by the contract. This argument is well taken, but for purposes of determining the facial validity of the Ordinance, our review is not limited to those contracts executed prior to the effective date of the Ordinance.

We are aware that the First District in Department of Revenue v. Florida Home Builders, 564 So.2d 173 (Fla. 1st DCA 1990), declared an analogous law facially unconstitutional. In Florida Home Builders, the First District held that the chapter law that provided for a construction tax unconstitutionally impaired contracts executed before May 1, 1987, but not completed by June 30, 1989. 564 So.2d at 176. The provision at issue imposed a tax on prime contractors for “sales, use and other transactions on the sale and use of services.” Id. at 174. The provision was effective on April 23, 1987, and exempted those whose contracts had been signed prior to May 1, 1987, and whose performance was fully rendered prior to June 30, 1989. The construction tax was otherwise assessed for contracts executed prior to May 1, 1987. The court held that the tax law was facially unconstitutional in violation of the contract clause “[w]ith regard to contracts entered into prior to May 1, 1987 but not completed by June 30, 1989” because it added “an unknown, uncon-templated cost” to the contracts. Id. at 174-75. It based its holding on a prior finding by the supreme court in In re Advisory Opinion to the Governor, 509 So.2d 292 (Fla.1987), that a previous version of the same law was facially unconstitutional. Id.

We do not agree with the First District’s conclusion in Florida Home Builders that its determination that the construction tax was unconstitutional as to “contracts entered into prior to May 1, 1987 but not completed before June 30,1989” is a determination of the law’s facial validity. The court did not declare the tax law unconstitutional in its entirety or void; in fact, it expressly held that the tax law was constitutional “as it affects those contracts entered into between May 1, 1987 and the effective date of [the chapter law], July 1, 1987” because the enactment of the chapter law placed contractors on notice that they should consider the tax burden when executing new contracts. Id. at 176. We think the First District’s reliance on the supreme court’s previous decision in In re Advisory Opinion was misplaced because the supreme court was not reviewing a trial court’s determination of constitutionality of the construction tax law but was issuing an advisory opinion regarding the constitutionality of the law. The supreme court was not called upon to determine the law’s facial sufficiency, or whether any set of circumstances exists under which the statute would be valid, but to opine as to whether it violated the contract clause on its face, or without resort to the particular facts of its application. Thus, the supreme court did not make a ruling striking the law as facially unconstitutional.

We therefore reverse the final summary judgment based on our conclusion that the Ordinance is not facially unconstitutional. Because the trial court did not reach the as-applied challenge to the constitutionality of the Ordinance, it will be necessary for the trial court to address that issue on remand. In order to assist the court in making that determination, we address the parties’ disputes regarding whether the contract clause applies and what law applies to determine whether the contract clause has been violated.

Lee County asserts that, pursuant to Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881 (Fla.1974), the contract clause is not applicable when the government establishes regulations pursuant to its police powers. Lee County asserts that we should apply the analysis that the Third District applied in City of Key West v. R.L.J.S. Corp., 537 So.2d 641 (Fla. 3d DCA 1989), which was adopted by the Fourth District in City of Hallandale v. ACMAR Engineering Corp., 560 So.2d 802 (Fla. 4th DCA 1990), to determine whether Lee County properly exercised its police powers in enacting the Ordinance.

Plaintiffs argue that, in Florida, contract rights enjoy nearly absolute protection from governmental interference irrespective of whether the interference is pursuant to the government’s police powers. Plaintiffs argue that City of Key West and City of Hallandale are inapposite because they did not address constitutional challenges regarding the contract clause.

Lee County’s reliance on Palm Beach Mobile Homes is misplaced because the Florida Supreme Court did not declare the contract clause inapplicable but applied a contract clause analysis to determine that legislation enacted pursuant to the government’s police. powers did not violate the contract clause. See 300 So.2d 881. The Palm Beach Mobile Homes court applied what the supreme court later called the “Obligation-Remedy” test in which the court looks not to the effect the legislation has on the contract to determine whether it violates the contract clause, but to “ ‘whether it is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end.’ ” Id. at 887 (quoting Mahood v. Bessemer Prop., Inc., 154 Fla. 710, 18 So.2d 775, 779 (1944)). To the extent that Lee County argues for the application of the “Obligation-Remedy” test, this test has since been rejected by the Florida Supreme Court. See Pomponio v. Claridge of Pompano Condo., Inc., 378 So.2d 774 (Fla.1979).

Lee County’s reliance on City of Key West and City of Hallandale is also misplaced because, as is argued by Plaintiffs, these cases do not address constitutional challenges regarding the contract clause. Instead, they address an argument that the imposition of an impact fee violates the doctrine of vested rights. Thus, Lee County’s argument that the contract clause is not applicable is without merit.

Now that we have determined that the contract clause applies, the question remains whether to apply the balancing test of Pomponio or the per se test of Dewberry, which was espoused by the First District in Florida Home Builders, to determine whether the Ordinance impairs the contract clause as applied. We conclude that both tests are viable, and the determination of which test to use will depend upon the degree of impairment to each individual plaintiff.

A. Florida Home Builders

As we already stated, in Florida Home Builders, the First District held that a construction tax law unconstitutionally impaired contracts executed before May 1, 1987, but not completed by June 30, 1989. 564 So.2d at 176. The court held that the law was facially unconstitutional in violation of the contract clause “[w]ith regard to contracts entered into prior to May 1, 1987 but not completed by June 30, 1989” because it added “an unknown, uncon-templated cost” to the contracts. Id. at 174-75. The First District relied on In re Advisory Opinion, 509 So.2d 292, in which the Florida Supreme Court opined that an earlier version of the same law was unconstitutional because it “ ‘retroactively turn[ed] otherwise profitable contracts into losing propositions.’” Fla. Home Builders, 564 So.2d at 175 (quoting In re Advisory Opinion, 509 So.2d at 314-15). In In re Advisory Opinion, the supreme court relied on its prior holding in Dewberry for the proposition that “[a]ny legislative action which diminishes the value of a contract is repugnant to and inhibited by the Constitution.” 509 So.2d at 314.

Deivberry involved a contract clause constitutional challenge to an anti-stacking insurance statute. 363 So.2d 1077. The effect of the statute in Dewberry was to reduce the plaintiffs uninsured motorist coverage from $200,000 to $100,000, even though the plaintiff had paid a higher premium for stacked coverage. Id. at 1079-80. The supreme court determined that the anti-stacking statute constituted an unconstitutional impairment of the right to contract based on the longstanding rule of law that “[a]ny conduct on the part of the legislature that detracts in any way from the value of the contract is inhibited by the Constitution.” Id. at 1080 (quoting Pinellas County v. Banks, 154 Fla. 582, 19 So.2d 1, 3 (1944)). The Dewberry court also cited to Yamaha Parts Distribs., Inc. v. Ehrman, 316 So.2d 557 (Fla.1975). Dewberry was decided by the Florida Supreme Court in 1978.

B. Pomponio

In 1979, the Florida Supreme Court adopted an approach to analyzing contract clause claims “similar” to the approach of the U.S. Supreme Court. Pomponio v. Claridge of Pompano Condo., Inc., 378 So.2d 774, 779-80 (Fla.1979). The court began its analysis by reiterating its position in Yamaha Parts that “virtually no degree of contract impairment is tolerable in this state.” Pomponio, 378 So.2d at 780. The court went on to note that this statement implied that “some impairment is tolerable, although perhaps not so much as would be acceptable under traditional federal contract clause analysis.” Id.

The court then adopted the balancing test articulated by the U.S. Supreme Court in Allied Structural Steel v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978), to determine just how much impairment is tolerable. This test weighs the degree of impairment against the source of authority under which the law is enacted and the “evil” the law is intended to remedy. Pomponio, 378 So.2d at 780. “Obviously, this becomes a balancing process to determine whether the nature and extent of the impairment is constitutionally tolerable in light of the importance of the state’s objective, or whether it unreasonably intrudes into the parties’ bargain to a degree greater than is necessary to achieve that objective.” Id.

The Pomponio court defined impairment as “to make worse; to diminish in quantity, value, excellency or strength; to lessen in power; to weaken.” Id. at 781 n. 41. The court also noted several factors articulated by the Spannaus court to be considered in applying the balancing test:

(a) Was the law enacted to deal with a broad, generalized economic or social problem?
(b) Does the law operate in an area which was already subject to state regulation at the time the parties’ contractual obligations were originally undertaken, or does it invade an area never before subject to regulation by the state?
(c)Does the law effect a temporary alteration of the contractual relationships of those within its coverage, or does it work a severe, permanent, and immediate change in those relationships irrevocably and retroactively?

Pomponio, 378 So.2d at 779 (footnotes omitted).

In applying this test, the Pomponio court determined that a statute that provided for the deposit of rents into the court registry during litigation concerning obligations under condominium leases was unconstitutional. Id. at 782. The court noted that the law was enacted pursuant to the State’s police powers to promote the health, safety, and welfare of its citizens. Id. at 781. The “evil” the law sought to address was “the protection of unit owners from the lessor’s foreclosure for non-payment of rent during the pendency of the litigation.” Id. The court discounted this “evil” by stating that it was not aware of a threat of “massive condominium foreclosures” in Florida and held that the police power had not been wielded using the least restrictive means possible. Id. at 781-82.

C. Reconciling Florida Home Builders and Pomponio

Despite the Florida Supreme Court’s adoption of the federal standard for analyzing contract clause challenges to government action in Pomponio, neither the First District in Florida Home Builders nor the supreme court itself in In re Advisory Opinion applied the Pomponio balancing test or even cited to the case. This court has explained that the Pomponio balancing test is not applicable when the legislation results in an immediate dimin-ishment in value of the contract that “is repugnant to our constitutions.” See Sarasota County v. Andrews, 573 So.2d 113, 115 (Fla. 2d DCA 1991).

■In Andrews, the law at issue provided that the recording of an order imposing a fine by an administrative board becomes a lien that is superior to all other liens except those for taxes. Id. at 114. The law then subordinated a mortgagee’s mortgage lien to the County’s lien. Id. at 115. The trial court entered a final summary judgment determining that the offending portion of the law was an unconstitutional impairment of the contract clause as applied to the mortgagee. Id. at 114.

The County argued that summary judgment was improper under Pomponio because the mortgagee did not present evidence to show that it would suffer economic loss as a result of the subordinated lien. The County argued that the land might be of sufficient value to support both liens. This court affirmed the trial court’s determination based on the supreme court’s holding in Dewberry and In re Advisory Opinion that legislation that results in an immediate diminishment in value of the contract “is repugnant to our constitutions.” Andreivs, 573 So.2d at 115.

In doing so, this court declined to apply the balancing set forth in Pomponio:

[T]he priority provision has worked an immediate impairment on [the mortgagee’s] preexisting mortgage lien. The nature of priority is such that [the mortgagee] is automatically at a substantially greater risk of losing its investment if it has only a second, as opposed to a first, priority lien. Furthermore, mortgages held by commercial institutions are frequently sold on the secondary market, and the subordination of [the mortgagee’s] lien impairs the marketability of its mortgage....
Under the ordinance’s scheme ... [the mortgagee] has no practical power to protect its security interests in property from being impaired and possibly eliminated. The only way it can preserve its contracted-for position as first lien holder is to pay off the County’s lien, which it represents to be now close to double its own lien.... This would require an additional investment that [the mortgagee] neither contracted for nor could have anticipated when it made its loan to the Andrews before the ordinance was enacted.

Id.

D. Application

Under Andrews, it would be proper for the trial court to rely on the per se test of Dewberry and Florida Home Builders and decline to apply the Pomponio balancing test if it determines that the Ordinance results in an immediate diminishment in value of the contract that “retroactively turns otherwise profitable contracts into losing propositions” and therefore “is repugnant to our constitutions.” This determination will differ for the individual plaintiffs, depending upon whether their contract contemplates the payment of the impact fee and the number of impact fees the plaintiff must pay. If the court does not determine that the application of Deio-berry and Florida Home Builders is proper, it should apply the Pomponio balancing test to determine the constitutionality of the Ordinance as applied.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ., Concur.

      . The complaint also alleged that the school impact fee failed to satisfy the dual rational nexus test as adopted by the supreme court in Contractors & Builders Ass'n of Pinellas County v. City of Dunedin, 329 So.2d 314 (Fla.1976). The parties entered into a joint stipulation that bifurcated, for trial, the dual rational nexus claim from the impairment of contract claim. In March 2004, the trial court held a bench trial on the validity of the school impact fee under the dual rational nexus test. The trial court entered a partial final judgment in favor of Lee County, holding that the school impact fee satisfied the dual rational nexus test and, therefore, was valid. This court subsequently affirmed the trial court's holding in a per curiam opinion. See Brown v. Lee County, 912 So.2d 1223 (Fla. 2d DCA 2005) (table opinion).

      . See Pomponio v. Claridge of Pompano Condo., Inc., 378 So.2d 774, 776 (Fla.1979).


author: POLEN, J.

text:
    Fidel LEYVA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1859.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Carey Haughwout, Public Defender, Margaret Good-Earnest and David Casals, Assistant Public Defenders, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing and Motion to Withdraw Mandate

POLEN, J.

Appellant, Fidel Leyva, has filed a motion for rehearing and a motion to withdraw this court’s mandate issued on April 17, 2006. We deny Leyva’s motion for rehearing, but withdraw our previously entered mandate to make the following correction to the previously issued opinion.

In our opinion issued in Leyva v. State, we affirmed Leyva’s conviction for attempted sexual battery, and his sentence of twenty years in prison. 925 So.2d 393 (Fla. 4th DCA 2006). We reversed Ley-va’s conviction for lewd and lascivious conduct and his accompanying fifteen-year sentence. Id. Leyva’s motion for rehearing argues that, based on this court’s reversal of his lewd and lascivious conviction, his total sentencing points are lower, and that the record does not conclusively show that the trial court would have imposed the same sentence using the corrected score-sheet. We find merit in Leyva’s assertion, and remand to the trial court to allow it to consider re-sentencing Leyva for attempted sexual battery using a corrected score-sheet. See Jones v. State, 901 So.2d 255 (Fla. 4th DCA 2005).

SHAHOOD and TAYLOR, JJ., concur.


author: KIMBALL, Justice.

text:
    Lloyd BADEAUX & Laura M. Badeaux v. SOUTHWEST COMPUTER BUREAU, INC.
    Nos. 2005-CA-0612, 2005-CA-719.
    Supreme Court of Louisiana.
    March 17, 2006.
    Rehearing Denied June 23, 2006.

      Charles C. Foti, Jr., Attorney General, Tina Vieari Grant, Charlene Patterson, Assistant Attorneys General, for appellant in No. 2005-CA-0612.

      Guglielmo, Marks, Schutte, Terehove & Love, Carey J. Guglielmo, Stephen D. Cronin, Baton Rouge; Underwood Law Firm, Beryl Denise Torrence; Calogero Law Firm, Raquelle M. Badeaux-Phillips, Gerald J. Calogero, New Orleans, for appellee in No. 2005-CA-0612.
    Charles C. Foti, Jr., Attorney General, Tina Vicari Grant, Charlene Patterson, Assistant Attorneys General; Calogero Law Firm, Gerald James Calogero, New Orleans, Requelle M. Badeaux-Phillips; Underwood Law Firm, Beryl D. Torrence, for appellant in No. 2005-CA-0719.
    Guglielmo, Marks, Schutte, Terhoeve & Love, Carey J. Guglielmo, Stephen Dale Cronin, Baton Rouge, for appellee in No. 2005-CA-0719.
   KIMBALL, Justice.

|) This matter was appealed directly to this court because of a district court’s judgment declaring La. R.S. 18:1463 unconstitutional. Because we find plaintiffs’ petition did not adequately present a cause of action for defamation under La. R.S. 18:1463 and because the petition did not adequately present a cause of action for general defamation, we conclude that plaintiff should have been granted leave to amend the petition to state a cause of action for the general tort of defamation, without consideration of the constitutionality of La. R.S. 18:1463. Accordingly, we find the district court’s declaration of unconstitutionality was premature.

Facts and Procedural History

On February 5, 2004, Lloyd and Laura Badeaux (“plaintiffs”) filed a petition for damages against Southwest Computer Bureau, Inc. (“Southwest”). In their | j>,petition, plaintiffs alleged that on October 2, 2003, Southwest mailed out an anonymous letter to Lafourche Parish residents and registered voters that contained “libelous and/or fraudulent statements and/or intentionally misleading statements about Lloyd Badeaux that were malicious and in reckless disregard as to the truth.” Plaintiffs asserted that Southwest acted independently or as an employee of an unknown person in the mailing of the letter. Plaintiffs also alleged that Southwest’s actions damaged their reputation and business and caused them emotional harm and a loss of consortium. The petition additionally alleged that Southwest and the unknown person disseminated the anonymous letter to Lafourche Parish residents and registered voters “recklessly and negligently in violation of La. R.S. 18:1463.”

LWhile it appears Lloyd Badeaux was a candidate in the 2004 Lafourche Parish presidency race, the petition itself does not allege his candidacy status.

|B0n March 29, 2004, Southwest filed an answer and exceptions of no right of action and no cause of action. In its answer, Southwest generally denied the allegations of plaintiffs’ petition, and, alternatively, alleged that the pertinent provisions of La. R.S. 18:1463 unconstitutionally impinged upon its constitutional right of free speech and expression. In its exceptions, Southwest asserted that plaintiffs’ petition asserted neither a right of action nor a cause of action against it. Southwest’s memorandum in support of the exceptions largely focused on the provisions of La. R.S. 18:1463 and their alleged unconstitutionality. The Attorney General was served with notice of the constitutional challenge to La. R.S. 18:1463, and filed a response.

Plaintiffs opposed the exceptions, arguing their petition stated a cause of action for defamation that does not rely on the allegedly unconstitutional statute. Additionally, plaintiffs argued they relied on La. R.S. 18:1463 to show Southwest’s actions were negligent per se, and that the statute does not unconstitutionally infringe upon the right of free speech.

After a hearing on Southwest’s exceptions, the district court issued a judgment sustaining the exceptions of no right of action and no cause of action and declaring La. R.S. 18:1463 unconstitutional. Consequently, it dismissed plaintiffs’ claims with prejudice. In its oral reasons for judgment, the district court stated:

Well, in your petition, you allege that Southwest Computer Bureau, Incorporated was in violation of Louisiana Revised Statute 18[:] 1463. A plain reading of the statute obviously shows that you have no civil remedy in this particular case under these particular allegations, and the Court does agree with the courts in the past that the anonymous letter portion of its is unconstitutional, so, therefore, I’m ... going to grant the exception.

| fiFollowing this judgment, both the State, through the Attorney General, and plaintiffs filed motions for new trial, which were denied by the district court.

Subsequently, the State moved for a suspensive appeal returnable to this court, and plaintiffs moved for a devolutive appeal returnable to the Court of Appeal, First Circuit. The district court granted both motions. After review, the court of appeal ordered transfer of plaintiffs’ appeal to this court based upon the district court’s ruling that La. R.S. 18:1463 is unconstitutional. This court, which has appellate jurisdiction over these matters pursuant to La. Const, art. V, § 5(D), consolidated the plaintiffs’ appeal with the State’s appeal.

Discussion

At the outset, we note that the issues presented in this case arise in the context of Southwest’s exceptions of no right of action and no cause of action. Although these two exceptions are often confused or improperly combined with the same exception, the peremptory exceptions of no right of action and no cause of action are separate and distinct. La. C.C.P. art. 927(A)(4) and (5); Industrial Cos., Inc. v. Durbin, 02-0665, p. 6 (La.1/28/03); 837 So.2d 1207, 1212. This court has recognized that one of the primary differences between the exception of no right of action and no cause of action lies in the fact that the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant. Id.

The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. C.C.P. art. 927; Turner v. Busby, 03-3444, p. 4 (La.9/9/04), 883 So.2d 412, 415. The exception of no right of action serves to question |7whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.

In contrast, an exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Industrial Cos., 02-0665 at p. 6, 837 So.2d at 1213. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Id. In reviewing a district court’s ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the district court’s decision is based only on the sufficiency of the petition. Id. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Id. at p. 7, 837 So.2d at 1213; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1018 (La.1993). If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1236 (La.1993). Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Industrial Cos., 02-0665 at p. 7, 837 So.2d at 1213.

In the instant case, we find plaintiffs have established a right of action in their suit. They clearly belong to the class of persons that has a legal interest in the subject matter of the litigation at issue.

However, plaintiffs have failed to state a cause of action for damages under La. R.S. 18:1463 because the statute exclusively provides injunctive relief and grants no other civil remedy to plaintiffs. La. R.S. 18:1463(D)(1) states: “An affected | ^candidate or voter shall be entitled to an injunction to restrain future violations of Subsections B and C of this Section.” (emphasis added). La. R.S. 18:1463(E) states: “Whoever violates any provision of this Section may be punished by a fine not to exceed five hundred dollars or be imprisoned for not more than six months, or both.” In their petition, plaintiffs seek damages, which are not recoverable under La. R.S. 18:1463. Even if the petition sought injunctive relief, plaintiffs would not be entitled to injunctive relief in this case because the election is over and plaintiff is no longer an affected candidate. The district court in its oral reasons for judgment stated that “[a] plain reading of the statute obviously shows that you have no civil remedy in this particular case under these particular allegations.”

Thus, the district court could have resolved the issue of whether plaintiffs stated a cause of action for defamation under La. R.S. 18:1463 on nonconstitutional grounds and should have done so. Als this court has previously stated, “We have consistently held that courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, the resolution of this is essential to the decision of the case or controversy.” Cat’s Meow, Inc. v. City of New Orleans, 98-0601, p. 16 (La.10/20/98), 720 So.2d 1186, 1199 (citations omitted).

Nevertheless, plaintiffs contend their petition alleges facts sufficient to establish the general tort of defamation without resort to the provisions of La. R.S. 18:1463. We disagree and remand the case to allow plaintiffs leave to amend the petition to state a cause of action for the general tort of defamation.

Defamation is a tort involving an invasion of a person’s interest in his reputation and good name. Costello v. Hardy, 03-1146, p. 12 (La.1/21/04), 864 So.2d 129, 139; Sassone v. Elder, 626 So.2d 345, 350 (La.1993). Generally, to | aprevail in a defamation action, plaintiff must prove: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Costello, 03-1146 at p. 12, 864 So.2d at 139. In other words, “plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages.” Sassone, 626 So.2d at 350. If any one of the required elements is not sufficiently proven, the cause of action fails. Costello, 03-1146 at p. 12, 864 So.2d at 140.

In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court held that the First Amendment limits the right of a public official to recover damages for defamation. See Trentecosta v. Beck, 96-2388, pp. 11-12 (La.10/21/97), 703 So.2d 552, 560; Bussie v. Lowenthal, 535 So.2d 378, 380 (La.1988). Moreover, a candidate for public office is held to the same standard as a public official for defamation purposes. State v. Defley, 395 So.2d 759, 761 (La.1981) (citing Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971)).

Our code of civil procedure sets forth a system of fact pleading. Cox. v. W.M. Heroman & Co., 298 So.2d 848, 855 (La.1974). La. C.C.P. art. 854 provides that “all allegations of fact of the petition ... shall be set forth in numbered paragraphs.” The Code further provides that a petition must contain “a short, clear, and concise statement of ... the material facts of, the transaction or occurrence that is the subject matter of the litigation....” La.C.C.P. art. 891(A). To plead “material facts,” the petitioner must allege more than mixed questions of law and fact, such as that the defendant breached the contract or acted unreasonably. Frank L. Maraist & Harry T. Lemmon, 1 Louisiana Civil Law Treatise Civil Procedure § 6.3, at 102 (1999). Rather, “[t]he Code requires' the pleader to state what act or omission he or she will 11nestablish at trial.” Id.

Thus, to plead material facts, a petitioner alleging a cause of action for defamation must set forth in the petition with reasonable specificity the defamatory statements allegedly published by the defendant. Fitzgerald v. Tucker, 98-2313, p. 7 (La.6/29/99), 737 So.2d 706, 713. It is not necessary for a plaintiff to state verbatim the words on which he bases his cause of action, but he must allege a state of facts or condition of things which would show fault under article 2315. Acme Stores v. Better Bus. Bureau of Baton Rouge, 225 La. 824, 74 So.2d 43, 44 (1954). Plaintiff in a defamation suit must name the individual offenders and allege separate acts of defamation as to each, including specific defamatory statements. Juneau v. Avoyelles Par. Police Jury, 482 So.2d 1022, 1027 (La.App. 3d Cir.1986).

In the instant case, plaintiffs’ petition alleges that the letter mailed by Southwest to Lafourche Parish residents and registered voters contained “libelous and/or fraudulent statements and/or intentionally misleading statements” about Lloyd Badeaux that were “malicious and in reckless disregard as to the truth.” The petition additionally alleges that Southwest’s actions damaged their reputation and business and caused them emotional harm and a loss of consortium.

The allegations that the letter contained “libelous and/or fraudulent statements and/or intentionally misleading statements” are conclusory, and the alleged defamatory statements are not set forth with reasonable specificity. The petition does not describe the nature of the defamatory statements contained in the anonymous letter. Thus, we find that these allegations, liberally construed, are insufficient to state a cause of action for defamation.

When a petition fails to state a cause of action, but may be amended to cure the defect, the court shall grant plaintiff leave to amend. La. C.C.P. art. 934. See \ Wirthman-Tag Construction Co., LLC v. Hotard, 00-2298, pp. 5-6 (La. 4 Cir. 12/19/01), 804 So.2d 856, 860-61; Grooms v. Lafayette Parish Government, 628 So.2d 1224 (La.App. 3 Cir.1993). If the petition’s allegations are merely con-clusory and fail to specify the acts that establish a cause of action, then the district court should permit plaintiffs the opportunity to amend the petition. HMC Management Corp. v. New Orleans Basketball Club, 375 So.2d 700, 707(La. App. 4 Cir.1979). Therefore, plaintiffs should be afforded an opportunity to amend their petition to state a cause of action for the general tort of defamation.

In contrast, when the grounds of the objection of no cause of action cannot be removed, then plaintiffs need not be given an opportunity to amend. Treasure Chest Casino, LLC v. Parish of Jefferson, 96-1010, pp. 5-6 (La.App. 1 Cir. 3/27/97), 691 So.2d 751, 755. In the instant case, plaintiffs do not state a cause of action under La. R.S. 18:1463 because the statute provides plaintiffs with no remedy, and they cannot cure the defect by amending the petition. Thus, plaintiffs need not be given leave to amend the petition as to the cause of action under La. R.S. 18:1463.

Decree

For all the above reasons, we find plaintiffs have not stated a cause of action for defamation under La. R.S. 18:1463 and have not stated a cause of action for the general tort of defamation. However, this case is remanded to the district court to allow plaintiffs to amend their petition to state a cause of action for the general tort of defamation. Therefore, the district court’s judgment granting Southwest’s exceptions of no right of action and no cause of action is reversed. The district court’s declaration of unconstitutionality was premature and is therefore vacated.

REVERSED IN PART; VACATED IN PART; and REMANDED.

       Retired Judge Robert J. Klees, assigned as Associate Justice Ad Hoc, for Chief Justice Pascal F. Calogero, recused; and Retired Judge Lemmie O. Hightower, assigned as Associate Justice Ad Hoc, for Associate Justice John L. Weimer, recused.

      . La. R.S. 18:1463 provides in its entirety:
      A. The Legislature of Louisiana finds that the state has a compelling interest in taking every necessary step to assure that all elections are held in a fair and ethical manner and finds that an election cannot be held in a fair and ethical manner when any candidate or other person is allowed to print or distribute any material which falsely alleges that a candidate is supported by or affiliated with another candidate, group of candidates, or other person, or a political faction, or to publish statements that make scurrilous, false, or irresponsible adverse comments about a candidate or a proposition. The legislature further finds that the state has a compelling interest to protect the electoral process and that the people have an interest in knowing the identity of each candidate whose number appears on a sample ballot in order to be fully informed and to exercise their right to vote for a candidate of their choice. The legislature further finds that it is essential to the protection of the electoral process that the people be able to know who is responsible for publications in order to more properly evaluate the statements contained in them and to informatively exercise their right to vote. The legislature further finds that it is essential to the protection of the electoral process to prohibit misrepresentation that a person, committee, or organization speaks, writes, or acts on behalf of a candidate, political committee, or political party, or an agent or employee thereof.
      B.(l) No person shall cause to be printed or assist in the distribution, transportation, or transmission by any means of any facsimile of an official ballot or cause to be printed, distributed, transported, or transmitted any unofficial sample ballot with the number of a candidate unless the name of the candidate to whom the ballot number was assigned is correctly listed on the ballot.
      (2)No person shall cause to be printed or assist in the distribution, transportation, or transmission by any means of any facsimile of an official ballot, or cause to be printed, distributed, transported, or transmitted any unofficial sample ballot containing a photograph, or likeness of any person which falsely alleges, with an intent to misrepresent, that any person or candidate, or group of candidates in an election is endorsed by or supported by another candidate, group of candidates or other person.
      C.(l) No person shall cause to be distributed, or transmitted, any oral, visual, or written material containing any statement which he knows or should be reasonably expected to know makes a false statement about a candidate for election in a primary or general election or about a proposition to be submitted to the voters.
      (2) Paragraphs (1) and (3) of this Subsection shall not apply to:
      (a) Statements which merely express support for or opposition to a candidate or proposition.
      (b) Statements on bumper stickers, lapel pins and stickers, lawn signs, hat bands, badges, ribbons, or to balloons, matchbooks, pens, pencils, and similar paraphernalia.
      (c) Radio and television broadcasters who broadcast paid political announcements or paid advertisements that include the voice or picture of a candidate for public office.
      (3) If an individual, association, organization, committee, or corporation is responsible for or causes the distribution or transmission of any statements relative to candidates or propositions which do not fully disclose the name of the individual or the name of the association, organization, committee, or corporation, and the full and correct name and address of its chairman or other chief administrative officer and whether or not such individual, association, organization, committee, or corporation supports or opposes such candidate or proposition, such individual, association, organization, committee, or corporation shall report all expenditures incurred in relation to the publication, distribution, transportation, or transmission in accordance with R.S. 18:1491.7, 1495.5, or 1501.1.
      (4)(a) No person shall misrepresent himself or any committee or organization under his control as speaking, writing, or otherwise acting for or on behalf of any candidate, political committee, or political party, or any employee or agent thereof.
      (b) No person shall willfully and knowingly participate in or conspire to participate in a plan, scheme, or design to misrepresent himself or any committee or organization under his control or under the control of any other participant in the plan, scheme, or design as speaking, writing, or otherwise acting for or on behalf of any candidate, political committee, or political party, or any employee or agent thereof.
      (c) A radio or television broadcaster who broadcasts a paid political announcement or advertisement, the content of which the broadcaster had no input in or control over, is not subject to the provisions of this Paragraph.
      D.(l) An affected candidate or voter shall be entitled to an injunction to restrain future violations of Subsections B and C of this Section.
      (2) In the event a permanent injunction is granted, reasonable attorney fees shall be allowed the petitioner by the court which shall be taxed as costs to be paid by the defendant.
      E. Whoever violates any provision of this Section may be punished by a fine not to exceed five hundred dollars or be imprisoned for not more than six months, or both.

      . In fact, plaintiffs have stated that Lloyd Ba-deaux was a candidate in an election for president of Lafourche Parish at all times during Southwest’s alleged tortious conduct, and have conceded that their petition fails to mention this fact. Plaintiff has suggested that the court should allow them leave to amend their petition to allege this fact.


author: TRAYLOR, Justice.

text:
    STATE of Louisiana v. Jack S. SPEARS.
    No. 2005-K-0964.
    Supreme Court of Louisiana.
    April 4, 2006.
    Rehearing Denied June 23, 2006.

      Charles C. Foti, Jr., Attorney General, Robert W. Levy, District Attorney, Pamela Anne Stewart, Assistant District Attorney, for applicant.
    Culpepper & Carroll, Bobby L. Culpep-per, Theresa Culpepper Carroll, for respondent.
   TRAYLOR, Justice.

hWe granted this writ application to determine whether the court of appeal erred in finding that the evidence at trial was insufficient to sustain the verdict of guilty. For the reasons which follow, we reverse the ruling of the court of appeal.

FACTS and PROCEDURAL HISTORY

In 1999, Karen Walker Kirkham and Richard Joe Kirkham, Jr., were engaged in a chicken raising operation in Choud-rant, Louisiana. Late that year, the Kirk-hams decided to expand their operation. To that end, Mr. Kirkham contracted with defendant Jack S. Spears, doing business as Spears Construction Company, Inc., to build two turnkey chicken houses for the price of $196,000. The Kirkhams obtained a mortgage to finance the construction. The contract specified that payment would be made in five draws, each draw being based upon the completion of a certain stage of construction.

As the construction progressed, the first three draws, totaling $147,000, were paid without difficulty. Problems arose with the payment of the fourth draw of $29,000, which was to be paid upon delivery of certain required equipment. Defendant ^delivered some, but not all, of the required equipment, but demanded payment, nonetheless. After first refusing to authorize the draw because all of the equipment was not present, the Kirkham’s finally agreed to authorize the draw in mid-April, because Spears walked off the job. Spears returned to the job, but by the end of April, construction on the chicken houses had ceased.

Defendant was arrested for the crime of Misapplication of Payments, a violation of La. R.S. 14:202, on May 19, 2000. A jury unanimously convicted defendant of the charge on October 30, 2003. The trial court denied motions for post-verdict judgment of acquittal, in arrest of judgment, and for new trial. Defendant appealed. The court of appeal found that the evidence was insufficient to support the conviction and reversed, ordering that defendant be acquitted. This appeal followed.

DISCUSSION

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virgi-nia⅜ 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Captville, 448 So.2d 676, 678 (La.1984). That standard dictates that to affirm the conviction the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that the State proved all elements of the crime beyond a reasonable doubt. State v. Johnson, 03-1228, p. 4 (La.4/14/04), 870 So.2d 995, 998; Captville, 448 So.2d at 678. Further, when the conviction is based on circumstantial evidence, La. R.S. 15:438 sets forth the rule that “assuming every fact to be proved that the evidence tends to prove, in order to convict, [the circumstantial evidence] must ^exclude every reasonable hypothesis of innocence.” However, La. R.S. 15:438 does not establish a stricter standard of review than the more general rational juror’s reasonable doubt formula; rather it serves as a helpful evidentiary guide for jurors when evaluating circumstantial evidence. State v. Toups, 01-1875, p. 3 (La.10/15/02), 833 So.2d 910, 912; State v. Chism, 436 So.2d 464, 470 (La.1983).

When evaluating circumstantial evidence, the trier of fact must consider the circumstantial evidence in light of the direct evidence, and vice versa, [and] the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.

Chism, 436 So.2d at 469.

Finally, constitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Mussall, 523 So.2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of eredi-bility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law. Johnson, 870 So.2d at 998; Toups, 833 So.2d at 912.

Misapplication of payments by a contractor is prohibited under La. R.S. 14:202, which provides, in pertinent part:

A. No person, contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims for material and labor due for the construction or under the contract.

|4As stated by the court of appeal, the essential elements of the crime are: (1) the existence of a contract to construct, erect, or repair a building, structure, or other improvement; (2) the receipt of money on the contract; and (3) a knowing failure to apply the money received as necessary to settle claims for material and labor due under the contract.

Here, there is no dispute as to the first two elements the State was required to prove, the existence of the contract and the receipt of the money. Only the third element, a knowing failure to apply the money received to settle claims, was at issue.

The State did not provide direct evidence of the misapplication of the money received under the contract, but did produce circumstantial evidence of the same. Mr. and Mrs. Kirkham testified as to (1) the amount of money, $176,000, paid under the contract; (2) the existence of six liens for unpaid labor and supplies involved in the construction of the chicken houses; (3) the amount that they paid to settle the liens, more than $47,000; and (4) the amount that they had to borrow to complete the project, almost $50,000.

Debbie Spears, bookkeeper for Spears Construction and defendant’s wife at the time of the incident, testified (1) that Spears Construction received the $176,000 paid under the contract and deposited the funds into a Spears Construction account; (2) that of the $176,000 received under the contract, only slightly more than $57,000 had been paid for labor and materials for the Kirkham project; (3) that Greg Spears was the supervisor of the job and that his salary would have to be added to the itemized $57,000; and (4) that a certain percentage of overhead would have to be added to the itemized amount.

|,In short, the testimony showed that defendant received $176,000 and paid out $57,000, a difference of approximately $119,000. While a certain percentage of that $119,000 may be assumed to have gone for supervisor salaries and overhead, the evidence, if believed, is enough to support a finding that more than $10,000 was misapplied. The defendant may hypothesize that more than $109,000 of the funds he received to construct the chicken houses was spent on overhead and/or supervisor salaries during the three months that the project was underway, but that hypothesis is certainly not a reasonable one, and the jury just as certainly cannot be faulted for rejecting it.

Proving misapplication of the funds, however, is not enough. The State was required to prove that the misapplication was made knowingly. Specific intent may be inferred from the circumstances and actions of ■ the defendant. State v. Graham, 420 So.2d 1126, 1127 (La.1982). Whether a defendant possessed the requisite intent in a criminal case is for the trier-of-fact to determine, and a review of the correctness of this determination is guided by the Jackson v. Virginia standard. State v. Huizar, 414 So.2d 741, 751 (La.1982).

The Kirkhams testified that they attempted to contact the defendant by telephone some forty to fifty times, but that the defendant would not respond. They further instructed their lawyer to send to the defendant a letter stating that if he would simply finish the job, there would be no legal repercussions. The defendant responded by calling the Kirkhams and stating that the letter was “ridiculous.” This high-handed attitude, coupled with the fact that up to two-thirds of the funds were misapplied, could have allowed a reasonable jury to infer that the defendant acted knowingly.

Finally, because the State’s case against defendant was by and large proved by | fidrcumstantial evidence, the evidence must have excluded every reasonable hypothesis of innocence. The State deliberately presented evidence which tended to disprove three possible such hypotheses. First, the Kirkhams testified that they received four other bids for the project, two of which were within $2000 to $3000 of Spears’ bid, tending to prove, if believed, that defendant’s failure to complete the project was not the result of a bid which was too low. Next, the Kirkhams testified that the only change order to the contract amounted to only $600, tending to prove, if believed, that defendant’s failure to complete the project was not the result of excessive change orders. Lastly, the State produced evidence that the last workers on the job had left by late April, that defendant was not arrested until May 19, and, as stated earlier, that the Kirkhams’ lawyer had sent defendant a letter requesting that he complete the job, all of which tends to prove, if believed, that defendant’s failure to complete the project was not the result of any action by the Kirkhams.

We find that the State’s evidence was sufficient to convince a rational jury that all elements of La.R.S. 14:202(A) were proven beyond a reasonable doubt and that all reasonable hypotheses of innocence were excluded.

DECREE

For the foregoing reasons, we reverse the ruling of the court of appeal and remand the case to the court of appeal for consideration of the defendant’s remaining assignments of error pretermitted on original appeal.

REVERSED AND REMANDED.

      . The issue of whether Spears Construction Co., Inc., was a valid corporation is not before the Court.

      . State v. Spears, 39,302 (La.App. 2 Cir. 3/17/05); 896 So.2d 1280.

      . Writ granted. State v. Spears, 2005-0964 (La. 12/16/05); 917 So.2d 1085.

      . The trial judge allowed the liens to be introduced into evidence, but only as evidence that the liens had been filed, and not as proof of the amount owed.

      . Rec. Vol. VI, pp. 107-8.


author: PER CURIAM.

text:
    CULPEPPER & CARROLL, PLLC v. Connie D. COLE.
    No. 2005-C-1136.
    Supreme Court of Louisiana.
    April 4, 2006.
    Rehearing Denied June 23, 2006.

      Southern University Law Clinic, Virginia Banks Listach, Supervising Attorney, Connie D. Cole, for applicant.
    Culpepper & Carroll, Bobby L. Culpep-per, Theresa Culpepper Carroll, Jones-boro, for respondent.
   PER CURIAM.

|! Connie Daniel Cole seeks review of a judgment of the court of appeal affirming an award of attorney’s fees to his former counsel. For the reasons that follow, we reverse the judgment of the court of appeal.

FACTS AND PROCEDURAL HISTORY

Connie Daniel Cole retained attorney Bobby Culpepper of the law firm of Cul-pepper & Carroll, PLLC to represent him in a contest of his mother’s will. Mr. Cole requested that the firm handle the matter on a one-third contingent fee basis, and Mr. Culpepper agreed to do so. On September 20, 2000, Mr. Culpepper sent Mr. Cole a letter in which he confirmed that he would accept the representation on a contingent fee basis of one-third “of whatever additional property or money we can get for you.”

After negotiation between Mr. Culpep-per and counsel for the estate of Mr. Cole’s mother, Mr. Cole was offered property worth $21,600.03 over and above what he would have received under the terms of the decedent’s will. Mr. Culpepper thought the compromise was reasonable and recommended to Mr. Cole that he accept lathe offer. However, Mr. Cole refused to settle his claim for that amount, believing he was entitled to a larger share of his mother’s succession as a forced heir. When Mr. Culpepper refused to file suit in the matter, Mr. Cole terminated his representation. Mr. Cole then proceeded in proper person to challenge his mother’s will, but he was unsuccessful and recovered nothing.

On April 12, 2004, Mr. Culpepper filed a “Petition on Open Account” on behalf of the Culpepper law firm. The suit was filed in Ruston City Court against Mr. Cole, seeking the sum of $6,950.01, plus legal interest, together with 25% on the principal and interest as additional attorney’s fees. Attached to the petition were Mr. Culpepper’s invoice for attorney’s fees and a demand letter to Mr. Cole seeking the payment of “the entire balance of $6,950.01 that you owe Culpepper & Carroll, PLLC.”

Mr. Cole, appearing in proper person, answered the law firm’s petition and denied that he owed any money. Mr. Cole explained in his answer that “Mr. Culpep-per did this on a contingency fee basis,” that Mr.. Culpepper “quit the case,” and that Mr. Cole paid court costs but Mr. Culpepper “would not go to court.”

Following a trial on the merits, at which both parties testified, the city court rendered judgment in favor of the law firm, awarding the sum of $6,950.01, plus legal interest from the date of judicial demand until paid, together with 25% on the principal and interest as additional attorney’s fees, and costs. In oral reasons for judgment, the city court judge stated that a “contingency fee was present” based on the record, including the testimony in open court and the written admission in Mr. LCole’s answer that there was a contingent fee arrangement. The court noted that “work was accomplished” by Mr. Culpep-per and further noted that, according to the testimony, the settlement would have produced a better result than if the case had gone to trial on the issue of forced heirship. Thus, the court was satisfied that the law firm met its burden of proof.

Mr. Cole appealed the city court’s judgment, and in a 2-1 ruling, the court of appeal amended the judgment and affirmed. Culpepper & Carroll, PLLC v. Cole, 39,438 (La.App. 2nd Cir.3/9/05), 896 So.2d 341. The majority agreed that a valid contingent fee contract existed between Mr. Cole and Mr. Culpepper, and found that by refusing to sign the “favorable settlement” negotiated by Mr. Cul-pepper before he was discharged, Mr. Cole was in effect depriving Mr. Culpepper of the contingent fee he had already earned. Accordingly, the court of appeal affirmed the award to Mr. Culpepper of $6,950.01 in attorney’s fees, plus legal interest. However, the court of appeal found that the money owing in this case does not derive from an open account, but rather from a contractual obligation in the form of a contingent fee agreement. Based on this reasoning, the court of appeal amended the trial court’s judgment to delete the award to the law firm of 25% additional attorney’s fees plus costs under the open account statute.

Judge Caraway dissented. He recognized that a contingent fee contract existed in this case, but found that because there was ultimately no recovery in the case, no fee was due to Mr. Culpepper. Judge Caraway further observed that to allow an attorney to collect a fee when the client rejects a settlement offer and later recovers nothing “ignores multiple and serious concerns embodied in the rules of professional conduct.”

|4Upon Mr. Cole’s application, we granted certiorari to review the correctness of the court of appeal’s ruling. Culpepper & Carroll, PLLC v. Cole, 05-1136 (La.6/24/05), 904 So.2d 746.

DISCUSSION

As a threshold matter, we note the trial court made a finding of fact that a contingent fee contract existed between Mr. Cole and Mr. Culpepper. Based on our review of the record, we find no manifest error in this determination.

Having found a contingent fee contract exists, we now turn to the question of whether Mr. Culpepper is entitled to recover any attorney’s fees under this contract. Pursuant to the parties’ agreement, Mr. Culpepper is entitled to one-third “of whatever additional property or money” he obtained on behalf of Mr. Cole. It is undisputed that Mr. Cole recovered no additional property or money as a result of the litigation against his mother’s estate. Because Mr. Cole obtained no recovery, it follows that Mr. Culpepper is not entitled to any contingent fee.

Nonetheless, Mr. Culpepper urges us to find that his contingency should attach to the settlement offer he obtained on behalf of his client, even though his client refused to accept that offer. According to Mr. Culpepper, he did the work for which Mr. Cole retained him, and he is therefore entitled to one-third of the amount offered in settlement, notwithstanding Mr. Cole’s rejection of the settlement offer.

With the benefit of hindsight, it would have been in Mr. Cole’s best interest to accept the settlement offer obtained by Mr. Culpepper. However, it is clear that the decision to accept a settlement belongs to the client alone. See Rule 1.2(a) of the Rules of Professional Conduct (“A lawyer shall abide by a client’s decision whether |Kto settle a matter.”). Therefore, regardless of the wisdom of Mr. Cole’s decision, his refusal to accept the settlement was binding on Mr. Culpepper.

To allow Mr. Culpepper to recover a contingent fee under these circumstances would penalize Mr. Cole for exercising his right to reject the settlement. We find no statutory or jurisprudential support for such a proposition. Indeed, this court has rejected any interpretation of the Rules of Professional Conduct which would place restrictions on the client’s fundamental right to control the case. See, e.g., Saucier v. Hayes Dairy Prods., Inc., 373 So.2d 102 (La.1979) (on rehearing) (“But the Disciplinary Rule implicitly recognizing the client’s absolute right to discharge his attorney is stripped of effect if the client’s exercise of that right is conditioned upon his payment of the full amount specified in the contract.”).

In summary, we find that Mr. Cul-pepper did not obtain any recovery on behalf of Mr. Cole. In the absence of a recovery, it follows that Mr. Culpepper cannot collect a contingent fee for his services. Accordingly, we must reverse the judgment of the court of appeal awarding a contingent fee to Mr. Culpepper.

DECREE

For the reasons assigned, the judgment of the court of appeal is hereby reversed. All costs in this court are assessed against plaintiff.

      . See Succession of Brown, 39,035 (La.App. 2nd Cir. 10/27/04), 886 So.2d 633, writ denied, 05-0030 (La.3/18/05), 896 So.2d 1006.

      . This sum represents one-third of the $21,600.03 in property Mr. Cole would have received had he accepted Mr. Culpepper's settlement recommendation, less a credit of $250 for costs paid by Mr. Cole in advance.

      . As Judge Caraway aptly observed, "One-third times zero equals no contingency fee.” His mathematic acumen is impeccable in this instance.

      . As an alternative to his claims under the contingent fee contract, Mr. Culpepper also seeks attorney's fees under the theory of quantum meruit. Because there was no recovery by the client, it follows there is no basis for quantum meruit recovery. See generally O’Rourke v. Cairns, 95-3054 (La. 11/25/96), 683 So.2d 697; Saucier v. Hayes Dairy Prods., Inc., 373 So.2d 102 (La. 1979) (on rehearing).