text:
    Cleveland SINCLAIR, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3450.
    District Court of Appeal of Florida, First District.
    July 12, 2007.

      Cleveland Sinclair, pro se, Appellant.
    Bill McCollum, Attorney General, and Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order by which the trial court denied his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm in part and reverse in part.

The appellant raised three claims of ineffective assistance of trial counsel in his motion. One claim was summarily denied as conclusively refuted by the record and the other two were denied after an evidentiary hearing. Although we affirm the denial of the two claims addressed at the evidentiary hearing, we reverse the summary denial of the other claim because the trial court failed to attach the portions of the record that were referenced as conclusively refuting the claim. See generally, Macon v. State, 751 So.2d 142 (Fla. 1st DCA 2000). On remand, the trial court is directed to attach portions of the record conclusively refuting the claim or conduct an evidentiary hearing.

Additionally, while the motion was pending, and prior to the expiration of the two-year time limitation set forth in rule 3.850(b), the appellant filed an amended rule 3.850 motion. The trial court declined to address this amended motion and entered an order striking it. As the appellee has conceded, the trial court erred in failing to consider the amended motion. See Ramirez v. State, 854 So.2d 805 (Fla. 2d DCA 2003); Gaskin v. State, 737 So.2d 509 (Fla.1999), receded from on other grounds, Nelson v. State, 875 So.2d 579 (Fla.2004). Accordingly, on remand, the trial court is also directed to consider this amended motion.

AFFIRMED in part, and REVERSED in part.

ALLEN, WEBSTER, and BENTON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ST. LUCIE COUNTY FIRE DISTRICT/Florida MUNICIPAL INSURANCE TRUST, Appellants, v. Michael MAXWELL, Appellee.
    No. 1D06-3542.
    District Court of Appeal of Florida, First District.
    July 12, 2007.

      Lamar D. Oxford and Alan D. Kalinoksi of Dean, Ringers, Morgan & Lawton, Orlando, for Appellants.
    David C. Chafin of Law Offices of David C. Chafin, Port St. Lucie, for Appellee.
   PER CURIAM.

We affirm the order on the merits, but remand solely for the purpose of correcting the scrivener’s error as to the award of TTD benefits. The order should reflect the award of TTD benefits for the time between October 1, 2001, to January 7, 2002.

AFFIRMED, REMANDED, for correction of scrivener’s error.

KAHN, LEWIS, and HAWKES, JJ., concur.


author: VAN NORTWICK, J.

text:
    Father, M.E., of S.E.E., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D07-0008.
    District Court of Appeal of Florida, First District.
    July 12, 2007.
    Carole A. Vogel, St. Augustine, and James Pratt O’Conner, Fernandina Beach, for Appellant.
    David F. Elder and Michael A. Tupper of Department of Children and Families, Jacksonville; Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee; Ann Hendricks, Department of Children and Families, Fernandina Beach; Ross Germano, Fernandina Beach; and Annette Lizardo, Guardian Ad Litem Office, Orlando, for Appellee.
   VAN NORTWICK, J.

M.E. appeals a final order terminating his parental rights. The Department of Children and Families (DCF) correctly concedes that the record evidence is insufficient to support termination of M.E.’s parental rights on the basis of voluntary abandonment. Accordingly, we reverse and remand.

S.E.E. was born in prison on September 28, 2005. M.E.’s paternity of the child was not determined until approximately a year after S.E.E. was born. M.E. was incarcerated in the state prison before the child was born and is scheduled to be released in 2008. Before the paternity of the child was known, DCF filed a petition for termination of parental rights. The child’s mother voluntarily surrendered her parental rights.

Upon learning of the child’s existence, M.E. asserted his parental rights and actively opposed the termination proceedings. M.E. also filed a motion for grandparent visitation and requested the trial court to consider his mother for long-term relative placement while he served his sentence. Below, DCF argued that M.E.’s rights should be terminated because, due to his incarceration, he had voluntarily abandoned the child. The trial court denied grandparent placement or visitation, terminated the father’s parental rights, and left S.E.E. in foster care placement. We review this order to determine if the trial court’s findings were based on competent, substantial evidence. C.M. v. Dep’t of Children & Families, 953 So.2d 547, 550 (Fla. 1st DCA 2007).

M.E. argues that he did not abandon the child within the meaning of section 39.806(l)(d), Florida Statutes (2006). Furthermore, he alleges that DCF, and, in turn, the trial court, erred by not considering long-term relative placement. On appeal, DCF concedes that there is an insufficient evidentiary basis for termination of M.E.’s parental rights based on voluntary abandonment. Generally speaking, incarceration alone is insufficient to terminate parental rights. See, e.g., B.C. v. Dep’t of Children & Families, 887 So.2d 1046, 1057 (Fla.2004) (holding that the father’s remaining sentence of four years did not constitute a substantial portion of the period of time before his child reached age 18, as required by statute for termination of parental rights); In re J.B., 923 So.2d 1201 (Fla. 2d DCA 2006) (reversing termination where father sought custody of the child, attempted to maintain contact after imprisonment and had nearly completed his sentence).

We agree that M.E. has not abandoned the child within the meaning of section 39.806(l)(d). As soon as M.E. learned of the child’s paternity,, he took affirmative steps to assert his parental rights and resisted the termination proceedings. Because the record will not support the termination of parental rights on the ground of voluntary abandonment, the order terminating M.E.’s parental rights is reversed, and the cause remanded for further proceedings. Because a remand is required, we need not reach the second issue raised on appeal.

REVERSED and REMANDED.

BENTON, J., concurs, and KAHN, J., concurs in result only.


text:
    Morris B. JOYNER, Petitioner, v. Monica DAVID, Chairman, Florida Parole Commission, Respondent.
    No. 1D06-4769.
    District Court of Appeal of Florida, First District.
    July 12, 2007.
    Morris B. Joyner, pro se, Petitioner.
    Connie Lynn Beach, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of the circuit court’s denial of his petition for writ of mandamus. Specifically, Petitioner challenges the circuit court’s order imposing a lien on his inmate trust account and its determination that the Parole Commission did not violate his due process rights by revoking his conditional release.

There is no statutory authority for imposing a lien when a petitioner is merely challenging the Parole Commission’s revocation of his conditional release. See Crosby v. Fla. Parole Comm’n, 949 So.2d 1181, 1183 (Fla. 1st DCA 2007); Jones v. Fla. Parole Comm’n, 944 So.2d 1244 (Fla. 1st DCA 2006). Therefore, we GRANT the petition for writ of certiorari inasmuch as it contested the circuit court’s order imposing a lien and QUASH such order. However, we conclude that Petitioner’s due process claims are without merit. Consequently, we DENY that portion of the petition alleging due process violations.

KAHN, LEWIS, and HAWKES, JJ., concur.


text:
    D.A., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6324.
    District Court of Appeal of Florida, First District.
    July 12, 2007.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The Appellant asserts that the trial court erred when it deviated from the commitment-level placement recommended by the Department of Juvenile Justice and ordered that Appellant provide a sample of his DNA. We find that the trial court’s deviation was based on an appropriate consideration, the need to protect the community, which was supported by a preponderance of the evidence. See J.L.K. v. State, 894 So.2d 984 (Fla. 1st DCA 2004); Q.L.J. v. State, 714 So.2d 628 (Fla. 1st DCA 1998). However, the trial court erred when it ordered a DNA sample. Section 943.325, Florida Statutes (2006), does not permit the trial court to order Appellant to provide a DNA sample subsequent to a conviction for possession of a firearm by a minor. See § 943.325(1)(b)(4) (DNA collection authorized only for a “felony” violation of chapter 790). Thus, the portion of D.A.’s sentence requiring him to submit DNA blood samples must be stricken. See K.H. v. State, 821 So.2d 1202 (Fla. 5th DCA 2002). The remaining portion of the sentence is affirmed.

AFFIRMED as MODIFIED.

KAHN, LEWIS, and HAWKES, JJ., concur.


text:
    Donald L. KELLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1593.
    District Court of Appeal of Florida, First District.
    July 12, 2007.
    Donald L. Kelly, pro se, Petitioner.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Donald L. Kelly seeks a belated appeal of a judgment and sentence imposed upon his entry of a no contest plea. The basis for Kelly’s claim is his allegation that he was ignorant concerning his appellate rights. Although Kelly faults his trial counsel for failing to inform him of his appellate rights, the transcript of the plea and sentencing proceedings reflects that the trial court itself failed to discharge its duty under Florida Rule of Criminal Procedure 3.670 to advise Kelly concerning those rights. The trial court’s failure to do so entitles Kelly to a belated appeal. See Robinson v. Wainwright, 245 So.2d 867 (Fla.1971); Fleming v. State, 895 So.2d 538 (Fla. 1st DCA 2005).

Accordingly, the petition seeking a belated appeal of the judgment and sentence rendered on or about June 2, 2005, in Alachua County Circuit Court case number 01-2004-CF-5032-A, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). We note that the trial court has already determined that Kelly is indigent for purposes of appeal. Accordingly, the trial court is directed to appoint counsel to represent Kelly in the belated appeal authorized by this opinion.

ALLEN, WOLF, and POLSTON, JJ., concur.


author: THOMAS, J.

text:
    Misty JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4586.
    District Court of Appeal of Florida, First District.
    July 18, 2007.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Bill McCollum, Attorney General, Sher-on Wells and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appel-lee.
   THOMAS, J.

We reverse the trial court’s order revoking Appellant’s probation based on Appellant’s failure to complete 10 community service hours per month. The original probation order stated only that Appellant was to “complete 100 hours of community service through Mothers Against Drunk Driving or a similar organization, approved by your probation officer.” Although the court later amended the order to add 50 additional hours, it imposed all previously ordered conditions.

A trial court commits fundamental error when it finds that a probationer has violated his or her probation based on a term not ordered by the court. See Lippman v. State, 633 So.2d 1061, 1064-65 (Fla.1994) (holding that revocation of probation for a term not originally ordered constituted violation of double jeopardy and fundamental error). While the court may delegate the normal supervision of probationary conditions to the probation officer, only the court may impose the terms and conditions of probation. Rowland v. State, 548 So.2d 812, 813 (Fla. 1st DCA 1989) (holding that probationary condition requiring appellant to “receive alcohol, drug and psychological evaluation and counseling as directed by your probation officer” permitted the probation officer to routinely supervise and monitor evaluation and counseling without unlawfully delegating to the probation officer the judicial responsibility of setting the terms and conditions of probation).

Here, the court never ordered Appellant to complete 10 community service hours per month, and it never delegated anything to her probation officer other than approval of the organization; therefore, we reverse the revocation of Appellant’s probation and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

BENTON and PADOVANO, JJ„ concur.


text:
    Philome LEO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4780.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.
    Philome Leo, Blountstown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We reverse in part the trial court’s summary denial of appellant’s motion for post-conviction relief. We conclude that several claims of ineffective assistance of counsel were not conclusively refuted and require record attachments or an evidentiary hearing.

First, claims 4, 5, 6, and 7 all stated facially sufficient claims of ineffective assistance for failure to call witnesses. See Nelson v. State, 875 So.2d 579 (Fla.2004). These claims were not conclusively refuted by the attachments to the state’s response which were incorporated into the order of denial.

Second, appellant alleges that counsel refused to allow him to testify and threatened and pressured him such that he feared counsel would abandon the case mid-trial if he did not follow counsel’s advice. This, too, is not refuted by the record, because in the court’s colloquy with appellant at trial regarding his “decision” not to testify, no inquiry was made about threats to withdraw. See Tyler v. State, 793 So.2d 137 (Fla. 2d DCA 2001).

Third, appellant also makes a claim that his statement to the police should have been suppressed because of deficient Miranda warnings. See Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004). This, too, is not conclusively refuted by the record.

Finally, appellant alleged that counsel was ineffective for failing to seek dismissal of counts two and three of the information as violative of double jeopardy. We agree that his allegations are legally sufficient as to count three but not as to count two. The claim as to count three requires the attachment of record evidence which conclusively refutes the allegations.

We reverse the summary denial and remand for the trial court to attach portions of the record that conclusively refute the foregoing allegations we have identified as legally sufficient, or for an evidentiary hearing on these allegations. As to the other claims made by appellant, we affirm their summary denial.

SHAHOOD, C.J., WARNER and STEVENSON, JJ., concur.


text:
    Edward J. CASTELLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2495.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.
    Rehearing Denied July 25, 2007.

      Michael Metz of the Law Offices of Richard G. Lubin, P.A., West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion For Rehearing And/Or Certification And Motion For Rehearing En Banc

PER CURIAM.

Edward Castella filed a Motion for Rehearing and/or Certification and Motion for Rehearing En Banc. We deny the motion in all regards. However, we withdraw our previous opinion and substitute this opinion in its place in order to further elucidate our analysis.

Edward Castella was convicted of felony boating under the influence following a stop by law enforcement. He raises two issues on appeal. We affirm in all respects, but write to address the issue challenging the denial of Castella’s motion to suppress evidence resulting from the stop of his boat.

Castella was charged with leaving the scene of a crash (vessel), two counts of boating under the influence (misdemeanor) [related to the crash], and another count of boating under the influence [related to a law enforcement stop]. He was convicted of the boating under the influence count related to a law enforcement stop and acquitted of the other charges.

Castella filed a motion to suppress, and the trial court held a hearing on the motion. At the hearing, Broward Sheriffs Deputy Dunning testified that he was a marine patrol deputy on an off-duty detail on the night of the incident. He and his partner, Broward Sheriffs Deputy Manes, who was also on the off-duty detail, were eating dinner at a restaurant along the intracoastal waterway. Deputy Manes saw a boat moving fast through an idle speed zone, the deputies went to the water, the boat approached, and the unidentified, excited passengers advised that there had been a boat accident with injuries to the south (the scene of which turned out to be about a mile and two minutes of travel away). The passengers identified Castel-la’s nearby boat as being involved in the accident, but did not indicate when the accident had occurred (although it seemed to the officers that it had just happened). Without confirming whether an accident had occurred, the deputies then made contact with Castella, although he was not violating any laws. Castella appeared drunk and unsteady. Manes testified that he saw a cooler and empty beer bottles and cans in Castella’s boat.

Broward Sheriffs Deputy Anthony testified that he was working as part of the DUI Task Force on the night of the incident and was called to the scene of the stop. When Anthony came into contact with Castella, Castella appeared extremely unsteady, with flushed skin, watery eyes, slurred speech, and the odor of alcohol on his breath. Based on his appearance and field sobriety exercises, Anthony concluded that Castella had been boating under the influence. Fort Lauderdale Police Officer Blish, who was also on scene, testified that when he came into contact with Castella, Castella smelled of alcohol, his eyes were bloodshot, and his speech was slurred.

Following the suppression hearing, the trial court made the following ruling on the record:

The Court heard the evidence in the motion to suppress hearing. Deputy Dunning testified that on August 28, year 2004, while he and his partner Deputy Manes were approaching by boat the Roadhouse Grill restaurant, which is immediately south of the Commercial Boulevard bridge on the intracoastal, a boat approached them at high speed. The people that were in the boat were agitated, told them that a boat accident had just taken place and pointed to the vessel of the defendant as being involved in this boat incident.
The deputies approached the defendant’s vessel which it was an open fisherman, they made contact with the defendant’s boat, the defendant was the only occupant of the boat. Defendant appeared to Deputy Dunning as being unsteady, appeared drunk and Deputy Dunning at that point told the defendant to take his boat to the Bayview Medical Center area by water.
The people who gave the information to Deputy Dunning told him that the accident had taken place north of the Commercial Boulevard bridge. The defendant’s boat was traveling south on the waterway and was at the point that these individuals pointed his vessel coming right under the bridge from the location of where the deputy said the — I mean the people said the accident had taken place.
Deputy Manes, who was also with Deputy Dunning at that time, said that when they approached the defendant’s boat, he observed a cooler, he observed empty bottles of beer on the floor of the vessel. He had the impression from the individuals who gave them the information and pointed to the defendant’s vessel that the accident had just happened.
The Court also had the opportunity to observe the video of the sobriety tests that were administered by Deputy Anthony to the defendant and the performance of the defendant on those tests. Finally, the last deputy [Blish] who appeared on Monday at the continuation of the hearing stated that the defendant when approached, smelled — had an odor of intoxicants and raised a suspicion. The Court did some research as to whether what the defense has referred to as tipsters that were not identified are at the same level as an anonymous tipster. The Court finds two cases right on point, Carattini versus State, CARATTINI, which is [7]74, So.2d, 920 [927], 79927, a 2001 case. In this case, a security officer in a retail store was approached by a woman who said three men just ran out of your store carrying a duffle bag full of your clothes. The security officer asked the lady to point who the three men were, she went with him to the parking area, pointed to the three individuals, pointed to the car that the three individuals were getting in to. The security officer did not know the woman who spoke to him and he never got her name or any other identification. Based on the information given by this woman, the security officer called the police who approached the three defendants, they had the merchandise from the store and they were placed under arrest.
The Court in this case of Carattini versus State denied the motion to suppress and states, I think that the circumstances here suggest that the person who gave the information to Officer Jarvis is closer to an identifiable citizen as opposed to an anonymous tipster.
In any event, I think this situation really involves an identifiable citizen who was standing next to Officer Jarvis, who gave Officer Jarvis information face to face, who went outside, pointed out the vehicle to Officer Jarvis and pointed out the person closing the trunk of the car. Now, the reason why that person was not further identified was simply because of the fact that Jarvis had to get about the business of trying to get these people stopped to conduct a further investigation and when he came back, this person who he saw and talked to were simply gone. That make her unidentifiable after the act, but during the course of the events she was certainly identifiable. Had there been more officers in the vicinity, certainly somebody could have gotten her name, address, telephone number etcetera.
I think this is closer to identifiable citizens situation than it is to anonymous tipster that you had in JL versus State, which was apparently just a phone call, never identified, never followed up.
The court of appeals agrees with the trial court, affirms the denial of the motion to suppress and states the totality of the circumstances in this case supports the conclusion that the tip was by a citizen informant entitled to a presumption of reliability rather than by an anonymous source. Although the identity of the informant was never ascertained, that fact is not dispositive. This case presents a classic example of a citizen who becomes eyewitness to a crime in progress.
Supporting the same statement of the law is also Milbin, MILBIN versus State, 792, So.2d, 1272, and that is also a 2001 case from the Fourth District Court of Appeal which stands for the same legal proposition.
In this case, even though the individuals who approached Deputy Dunning and Deputy Manes were not identified by way of obtaining their names or any other information, they gave the information regarding the defendant face to face, they pointed to the defendant and the defendant’s vessel, they gave information as to where the accident had taken place, their actions, their words and demeanor, indicated to the police officers that the accident had just taken place. The boat or vessel of the defendant was coming from the direction of the accident. At that point the police officers had sufficient facts to do an investigate — to stop the defendant to investigate the facts.
Once they approached the defendant, they saw his behavior as unsteady, his appearance as being drunk, the odor, the open bottles of beer, there was reasonable suspicion for his detention, his further failure to conduct the sobriety test, together with the totality of the circumstances gave sufficient probable cause for the arrest in this case.
The motion to suppress is denied.

The trial court also denied Castella’s motion to suppress for the reasons stated on the record in a written form order.

The case proceeded to trial, and the jury acquitted Castella of leaving the scene of a crash (vessel) and the two counts of boating under the influence (misdemeanor) related to the crash, but found him guilty as charged with the boating under the influence count related to the stop by law enforcement. Castella was adjudicated guilty (of felony BUI based on his prior DUI convictions). He then filed a motion for new trial raising the denial of the motion to suppress. The trial court denied the motion for new trial. Castella was then sentenced to five years in prison.

“ ‘The standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo.’ ” Pantin v. State, 872 So.2d 1000, 1002 (Fla. 4th DCA 2004) (citation omitted).

“ ‘To stop and detain a person for investigation, an officer must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.’ ” State v. Gonzalez, 840 So.2d 401, 403 (Fla. 4th DCA 2003) (citations omitted). Whether reasonable suspicion has been established is determined by the totality of the circumstances. Id.

Law enforcement may conduct an investigatory stop of an individual based on a tip providing reasonable suspicion where that tip has been “deemed sufficiently reliable, based on either ‘the surrounding circumstances or the nature of the information given in the tip itself.’ ” Aguilar v. State, 700 So.2d 58, 59 (Fla. 4th DCA 1997) (citations omitted). This determination partially hinges upon the status of the individual providing the tip, whether an anonymous tipster or a citizen informant. On one hand, “[b]ecause an anonymous caller’s basis of knowledge and veracity are typically unknown, these tips justify a stop only once they are sufficiently corroborated by police.” State v. Evans, 692 So.2d 216, 218 (Fla. 4th DCA 1997). On the other hand, the veracity and reliability of a citizen informant are presumed, because such an informant “ ‘is one who is “motivated not by pecuniary gain, but by the desire to further justice,”’” such as by relating details of a witnessed crime to law enforcement as a matter of civic duty; consequently, further investigation and corroboration by law enforcement is not required. Evans, 692 So.2d at 219 (citations omitted); see also State v. Manuel, 796 So.2d 602, 605 (Fla. 4th DCA 2001). Furthermore, “[a] witness who provides information to a police officer through ‘face to face’ communication is deemed to be sufficiently reliable,” so as to generally be classified as a citizen informant. See Milbin v. State, 792 So.2d 1272, 1274 (Fla. 4th DCA 2001).

Turning to the cases cited by the parties, one is relied on heavily by the State (and the trial court) and another is relied on heavily by Castella. The first case, which was cited by the State (and the trial court), is Carattini v. State, 774 So.2d 927 (Fla. 5th DCA 2001). In Carattini, a uniformed officer working off-duty in a department store received a call stating that there were three suspicious people in the store. Id. at 928. As he walked to the area of the report, a female customer approached him and stated that three men had just run out of the store with a duffel bag full of clothing. Id. The customer then pointed out the vehicle to the officer and pointed out one of the men she saw, who was getting into the vehicle. Id. The officer did not know the customer or take her name, but he reported the tip to dispatch. Id. The vehicle was apprehended by other officers and shoplifted jeans were discovered in a duffel bag in the vehicle. Id. Carattini moved to suppress the evidence, but the trial court denied his motion to suppress based on its conclusion that the customer was a citizen informant. Id. at 928-929.

The Fifth District affirmed based on the totality of the circumstances. Id. The court concluded that the customer was a citizen informant in the classic sense, one performing her civic duty to report a crime that she witnessed in progress. Id. at 929-930. The court focused on several factors that made the customer’s tip more reliable than that of an anonymous tipster, including that it was face-to-face, that it was an eyewitness account, that the customer assisted in the officer’s corroborative investigation, and that the exigencies of the situation did not allow the officer time to ascertain the customer’s identity. Id. at 931. In sum, the Fifth District held:

An anonymous telephone call in which alleged criminal activity is reported is a distinctively different situation than that of an eyewitness to ongoing criminal activity who reports his or her first-hand observations to an officer and who assists in an ensuing investigation while the crime is still in progress.

Id. at 931.

The second case, which was cited by Castella, is Solino v. State, 763 So.2d 1249 (Fla. 4th DCA 2000). In Solino, an anonymous motorist driving a white SUV flagged down a law enforcement officer and informed him that a bottle had been tossed out of the window of a green Nissan that had been driving in front of the SUV. Id. at 1249. The deputy did not obtain the SUV driver’s name or the tag number of the SUV, nor did he see a bottle thrown from the Nissan or any traffic infraction committed by the driver of the Nissan. Id. The Nissan was stopped and the driver arrested on outstanding charges. Id. at 1249-1250. Solino filed a motion to suppress that was denied by the trial court. Id. at 1249. This Court reversed, holding that “the driver of the white SUV was nothing more than an anonymous tipster who could not be identified or located and whose information was not corroborated.” Id. at 1252.

We conclude that the issue of suppression in this case hinges on the type of informants involved and their interaction with the deputies who investigatéd Castel-la. In Carattini, the individual who provided information to law enforcement face-to-face was deemed a citizen informant. In Solino, the individual who provided information to law enforcement face-to-face was deemed an anonymous tipster. The question remains whether the individuals who provided information to law enforcement face-to-face in this case are best deemed anonymous tipsters or citizen informants.

We conclude that the individuals in this case who provided information to law enforcement face-to-face are more akin to citizen informants than anonymous tipsters. Unlike in Solino, and the case it relied upon, State v. Rewis, 722 So.2d 863 (Fla. 5th DCA 1998), the individuals reporting information to law enforcement in this case did not allege that the defendant was involved in activity amounting to traffic infractions or criminal offenses, such as throwing a bottle out of an automobile window on the highway or driving a vehicle in a recklessly weaving manner on the highway. Instead, the individuals in this case simply indicated that Castella had been involved in an accident, not that he in any way had caused the accident or committed a criminal or boating infraction. As such, rather than investigating criminal activity based on face-to-face interaction with individuals who left as quickly as they came, law enforcement in the present case undertook its public safety function in the wake of a reported tragedy. As such, based on the face-to-face interaction between the individuals and law enforcement officers in this case, fulfillment of .a civic duty to provide an eyewitness report of a boating accident, and the exigencies of investigating a possible emergency situation, we conclude that, in light of the totality of the circumstances, the individuals in this case were citizen informants upon whose information the deputies were entitled to rely without further corroboration when stopping Castella’s boat.

Furthermore, because of the public safety implications of the situation in this case, the deputies were justified in stopping Castella’s boat even without a reasonable suspicion of criminality (as the citizen informants in no way implicated him in any wrongdoing). As discussed below, this conclusion is based on a principle, the community caretaking doctrine, which although typically applied to war-rantless inventory searches of automobiles that are creating a danger, nuisance, or invitation to vandalism, can also be applied to the stop of a boat without reasonable suspicion for purposes of gathering information to provide assistance to those affected by a potentially life-threatening accident. We affirm on this basis, even though the trial court did not consider and was not asked to consider this doctrine, based on the “tipsy coachman” rule. See Lowery v. State, 766 So.2d 417, 417 (Fla. 4th DCA 2000)(“This court may affirm a trial court decision deemed ‘right for a different reason’ under the ‘tipsy coachman’ rule.”).

The community caretaking doctrine addresses those law enforcement functions that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Instead, searches and seizures under the community caretaking doctrine focus on “concern for the safety of the general public.” Id. at 447, 93 S.Ct. 2523. In addition to automobile searches, the doctrine also encompasses the seizure of individuals “ ‘in order to ensure the safety of the public and/or the individual, regardless of any suspected criminal activity.’ ” Samuelson v. City of New Ulm, 455 F.3d 871, 877 (8th Cir.2006) (citation omitted). Such a seizure is reasonable if it is based on specific articulable facts and a reviewing court determines that the balance between law enforcement’s interest in protecting public safety and the individual’s interest in being free from arbitrary governmental interference favors seizure. Id. Overall, under the community caretak-ing doctrine, law enforcement “may make warrantless searches and seizures in circumstances in which they reasonably believe that their action is required to deal with a life-threatening emergency.” Russoli v. Salisbury Township, 126 F.Supp.2d 821, 846 (E.D.Pa.2000).

Here, under the community caretaking doctrine, the deputies were justified in stopping Castella’s boat in order to obtain any information they could about the accident, its location, and its aftermath in order both to rescue the injured and to protect the general public from dangers resulting from the damaged vessel, such as the potential for explosion, debris, and impediment to travel on the intracoastal. Although Castella’s boat itself may not have represented a danger, it was instrumental to resolving a potential danger caused by the accident scene from which it had just fled. Additionally, based on the specific articulable facts provided by the citizen informants regarding the general vicinity of the accident and the involvement of Castella’s boat in the accident, we conclude that law enforcement could reasonably believe that its interest in protecting public safety by obtaining additional information necessary to manage the aftermath of the potentially life-threatening accident outweighed Castella’s interest in being free from arbitrary governmental interference.

Because the individuals who met with the deputies are classified as citizen informants and the deputies were acting under the community caretaking doctrine, the trial court did not err by denying Castella’s motion to suppress the evidence of BUI discovered during the fully legal and constitutional stop of his boat. Therefore, this case on appeal is affirmed in all respects.

Affirmed.

GUNTHER, STONE and FARMER, JJ., concur.

      . Even if it could be said that law enforcement was possessed of reasonable suspicion to investigate some crime related to the accident or Castella's flight from the accident, which we do not believe is the case based on the totality of the circumstances and the artic-ulable facts known to law enforcement at the time, we would still distinguish Solino ■ and Rewis and find the individuals to be citizen informants. This is because the fact remains that the present case involved a public safety concern not typically present during investigatory traffic stops. Unlike in Solino and Rewis, where there was no indication that anyone was placed directly and immediately in danger by the actions of the drivers throwing bottles or weaving on the highway, there was a demonstrable exigency in the present case resulting from the report of a boating accident suggesting the possibility of life-threatening injuries and immediate dangers to the public resulting from both debris at the accident scene and any unknown risks posed by Castella's boat (as it could have been damaged or he could have been injured or impaired based on his reported involvement in the accident). However, we note that it would be unnecessary for courts to wrangle with legal analysis such as that in this case if law enforcement would make an attempt in all circumstances conceivably possible to comply with the best practice of always obtaining names and contact information from those reporting potential crimes.


author: SIMON, Justice.

text:
    232 La. 1073
    Succession of Virginia Intravi RUSCIANA.
    No. 43095.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.
    Ponder & Ponder, Amite, for defendant-appellant.
    Iddo Pittman, Jr., 'Hammond, for plaintiffs-appellees.
   SIMON, Justice.

Plaintiffs instituted this suit to recover one-half of the alleged enhanced value of separate property belonging to the defendant caused by improvements made thereon by the community existing between the defendant and the decedent and to be sent and put in possession of said property as the heirs of the decedent together with two. minor heirs who come to decedent’s succession by way of representation.

The record discloses that the decedent died intestate on April 14, 1954; that she was married twice, first to Frank Canino who died in the year of 1922, and second to the defendant herein, Philip Rusciana on March 21, 1925. No children were born of the second marriage.

Petitioners are seven of the eight children born of decedent’s first marriage; the eighth child, Katherine Canino Schillace, predeceased the decedent, leaving as her sole heirs two minor children, Angelo and Frank Schillace.

Petitioners alleged that the property left by the decedent consists primarily of the value of improvements on certain real property belonging to the separate estate of the defendant herein; that the total value of said improvements placed thereon by the community was $10,000; and that, therefore, the separate estate of the defendant herein is indebted to the community in the sum of $10,000 or one-half thereof to the estate of decedent in the sum of $5,000.

Defendant filed an exception of vagueness which was maintained, and by order of court plaintiffs filed a supplemental and amended petition and itemized the cost of the alleged improvements, totally the sum of $10,000. An exception of no cause or right of action filed by the defendant was referred to the merits.

In answer the defendant reurged his exception of no cause or right of action based on the ground no probate proceedings had been initiated and the heirs of decedents recognized as such and placed in possession of her estate. Further, that no tutorship proceeding was had in behalf of the minors called to this succession and that, therefore, they had no legal standing before the Court as party litigants. Defendant further denied that his separate property had been enhanced and alleged that on the contrary there had been ameliorations and decreases in valuation thereof.

After trial on the merits the district court rendered judgment recognizing petitioners, together with the two above-named minors, as heirs of the decedent and as such entitled to be put and sent into possession of all of the property belonging to the decedent in the proportion of an undivided one-eighth interest to each of the plaintiffs and an undivided one-sixteenth interest to each of the minors; and in said proportions judgment was rendered against the defendant in favor of said heirs in the sum of $1,653.50, which sum was decreed to be one-half of the enhanced value of defendant’s separate property resulting from improvements made thereon by the community existing between decedent and the defendant.

Defendant has appealed and presents two issues for consideration by us: (1) the capacity of the minors to stand in judgment, and (2) the correctness of the value of the alleged enhancement to the defendant’s separate property by the community existing between him and the decedent.

Plaintiffs contend that since this suit is not a partition suit it is not necessary to make the two minors parties hereto. An examination of plaintiffs’ petition reveals that though the two minors are not designated as parties plaintiffs in the preamble of the petition they are alleged to be forced heirs of decedent; and they are named in the prayer of said petition as the sole heirs of decedent, who, as such, pray to be sent and put in possession of her property in their respective proportions. Further, they pray for a money judgment in favor of all the heirs of decedent, the minors included, and against the defendant. The judgment of the trial court was accordingly rendered.

Article 108 of the Code of Practice provides that minors, persons interdicted or absent, cannot sue, except through the intervention or with the assistance of their tutors or curators.

Thus, the two minors in the instant cáse, being unrepresented, were not legally before the court and, accordingly, the judgment of the trial court as to them is invalid. Psyche v. Paradol, 6 La. 366; Crayton v. Waters, 146 La. 238, 83 So. 540; Scaife v. Jones, 156 La. 5, 99 So. 890; Plaisance v. Blanchard, 228 La. 618, 83 So.2d 648.

Moreover, since the minors are heirs of decedent and their interest in her property would be determined and affected by the decree rendered herein, they are necessary parties to the cause. Hence, we shall remand the case to permit a proper substitution of parties and the rendition of a valid judgment, all in accord with our probate laws. Heirs of Burney v. Ludeling, 41 La.Ann. 627, 6 So. 248; Jamison v. Superior Oil Co., 220 La. 923, 57 So.2d 896; Horn v. Skelly Oil Co., 221 La. 626, 60 So. 2d 65.

To an end to eliminate undue delays in this litigation we shall consider the correctness of the judgment of the trial court relative to the value of the alleged enhancement of the separate property of defendant. In considering this phase of the case we are primarily concerned with the sufficiency of the evidence with respect to the value of the separate property at the time of the inception of the community as well as at the time of its dissolution.

LSA-Civil Code, art. 2408 provides as follows:

“When the separate property of either the husband or the wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one half of the value of the increase or ameliorations, if it be proved that the increase or ameliorations be the result of the common labor, expenses or industry; but there shall be no reward due, if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or to the' chances of- trade.” .

The record discloses evidence to prove the value of the separate property at the time of decedent’s death as well as 14 months later. There is also evidence of the actual cost of some of the repairs and improvements made to the defendant’s prop^ erty at the expense of the community. However, there is no evidence to show the value of the separate property prior to these improvements and more particularly at the inception of the community in order to determine the enhanced value at the time of the dissolution of the community.

In the case of Funderburk v. Funderburk, 214 La. 717, 38 So.2d 502, 505, we held as follows:

“There must be taken into consideration, also, the repairs that were made during the existence of the community to the separate property of the husband, used and enjoyed by them as a home, although the recompense due for such repairs is not based upon the actual amounts expended, as claimed by the plaintiff, but is limited to the enhanced value of the property resulting from such repairs and improvements as of the date of the dissolution of the community. Article 2408 of the Revised Civil Code; Depas v. Riez, 2 La.Ann. 30; Succession of Boyer, 36 La.Ann. 506; Dillon v. Freville, 129 La. 1005, 57 So. 316; Succession of Ferguson, 146 La. 1010, 84 So. 338; Peters v. Klein, 161 La. 664, 109 So. 349; and Succession of Singer, 208 La. 463, 23 So.2d 184.”

Article 906 of the Code of Practice provides that:

“ * * * if the court shall think it not possible to pronounce definitively on the cause, in the state in which it is, either because the parties have failed to adduce the necessary testimony, or because the inferior court refused to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower court, with instructions as to the testimony which it shall receive, to the end that it may decide according to law.”

In the instant case, in view of the absence of such evidence which we deem vital, we are unable to definitely fix the enhanced value, if any, of the separate estate of the defendant. For this additional reason we shall remand the case so that this evidence may be adduced and judgment rendered according to good conscience and the requirements of justice.

Accordingly, for the reasons assigned, the judgment appealed from is set aside and the Case is remanded for further proceedings in accordance with law and consistent with the view expressed herein.. Costs of this appeal shall be paid by appellees and all other costs are to abide the final disposition of the case.

PONDER, J., recused.


text:
    232 La. 1081
    Luther G. CANTERBERRY v. SLADE BROTHERS et al.
    No. 42926.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rebearing Denied June 10, 1957.

      Harvey G. Fields, Armand F. Rabun, Farmerville, for defendants-appellants.
    Madison, Madison, Files & Shell, Monroe, for plaintiff-appellee.
   SIMON, Justice.

On April 19, 1924 plaintiff, L. G. Canter-berry, and his wife executed a promissory note in the sum of $159.04, payable on October 19, 1924, and endorsed in blank. The face of said note bears the following statement: “This note is secured by a mortgage of 55 acres of land in Sec. 19, T. 23 N., Range 1 E. and Sec. 24, T. 23 N., Range 1 W. in Union Parish, Louisiana, and payable at Marion State Bank, Marion, Louisiana.” The note was secured by and identified with an act of mortgage encumbering the following described property situated in Union Parish:

“36 y3 acres in the NW 14 of SW 14 of Section 19, Township 23 North, Range 1 East and 19 acres in the NE 14 of SE J4 of Section 24, Township 23 North, Range 1 West, containing 55 1/3 acres, more or less, together with all improvements situated thereon and thereto belonging.”

The defendant purchased said mortgage note from the Marion State Bank on April 19, 1927 and on December 13, 1928 instituted suit thereon, together with other notes and claims against Canterberry, entitled Slade Bros. v. L. G. Canterberry, No. 9,091 of the docket of the Third Judicial District Court. Judgment was rendered in favor of Slade Bros, and against the said L. G. Canterberry on January 25, 1929, following which a writ of fieri facias was issued and the said mortgaged property seized. After advertisement and proceedings in accordance with law, the property was sold to the defendants, the highest bidder, by the sheriff on March 30, 1929, the said sheriff’s deed bearing the same description as contained in the act of mortgage. The defendants thereupon went into immediate actual, physical and corporeal possession of said property and retained possession thereof to date. They and their tenants have exercised rights of ownership thereof, cultivating portions of the land, using portions for pasture purposes, selling and removing timber and firewood therefrom, maintaining fences along its boundaries, leasing same for mineral purposes, and other such acts. The property was assessed to the defendants who paid annual taxes thereon.

On the other hand, Canterberry was not assessed for and did not pay taxes on said property. He neither attempted to nor exercised any rights of ownership in any manner whatsoever during this period of almost twenty years, nor did he ever challenge or question defendants’ ownership of said property till the magic of oil was discovered thereon in commercial quantities. In fact, the record discloses that Canterberry moved to Richland Parish in January, 1929, and did not return to live in Union Parish until the year 1933. On his return he did not attempt to occupy the property, but voluntarily settled elsewhere in Union Parish.

On March 2, 1950 Canterberry instituted this petitory action against the defendants, Slade Brothers, a partnership, and its individual members who were in actual, physical and corporeal possession of the property conveyed to them by the sheriff’s deed. Plaintiff sought to he recognized as the owner of and as such be put in possession of the subject property, described in his petition as follows:

“Tract A: NW 14 of SW 1/4 of Section 19, Township 23 North, Range 1 East, less and except a strip off the south side thereof 99 yards wide north and south and extending across said forty, containing 31 acres, more or less.
“Tract B: E i/2 of NE 1/4 of SE 1/4 of Section 24, Township 23 North, Range 1 West, less and except a strip off the south side thereof 36^4 yards wide north and south and extending across said subdivision, containing 19 acres, more or less. Said tracts A and B containing together a total of SO acres, more or less.”

Plaintiff delineated the various and sundry deeds forming his chain of title from date of patent, the validity of which deeds are not questioned by defendants.

In his first alternative plea, plaintiff alleged that oil was being produced from “Tract A” under separate oil, gas and mineral leases separately sold and granted to the same lessee by both plaintiff and defendants herein, and that, he, plaintiff, was entitled to maintain as to “Tract A” an action to establish title to real estate under Act 38 of 1908 (LSA-R.S. 13:5062), and by said possessory action to have the title of the land adjudicated to him.

In a second alternative plea, plaintiff cumulated therewith an action of nullity wherein he sought to have the above foreclosure proceedings, its resulting judgment and the sheriff’s deed declared invalid, contending that the description of the land contained in the mortgage as well as in the sheriff’s deed was so indefinite as not to sufficiently and adequately describe or identify the subject property so as to legally convey and transfer title thereto.

Plaintiff further claimed that all proceedings had in the foreclosure suit culminating in the sheriff’s sale were invalid for the alleged reasons that neither the service of the citation and petition in said suit nor the service of notice of seizure in connection with said sale was in fact made upon him.

The defendants filed an exception of improper cumulation of actions, for the purpose of having plaintiff elect as to which remedy, that is, a petitory action or an action to try title, he would pursue. In response to an order by the court, the plaintiff elected to abandon the possessory action, or action to establish title under Act 38 of 1908, and to proceed to prosecute under his other cause of action, namely, the petitory action and the alternative action of nullity.

The defendants further interposed numerous pleas of exceptions, among them being a plea of estoppel, an exception of no cause and no right of action, and special pleas of description, all of which were levelled against the action of nullity, and which were referred to the merits. The exception of misjoinder and non-joinder of parties defendant, and an exception of no cause or right of action directed against the entire petition were overruled.

The defendants, in their answer, represented that they are the true and lawful owners of the subject property, averring the validity of all mesne conveyances, as set forth in plaintiff’s petition as well as in defendants’ answer, and of the adjudication to defendants by the sheriff based upon the foreclosure proceedings. They reiterate the special pleas of prescription and of es-toppel as against the action of nullity and specially plead the prescription of ten and thirty years acquirenda causa. They also aver that even though the property as described in the mortgage deed, the judgment of the court and the sheriff’s deed based upon said foreclosure proceedings may not be a perfect description, that it is susceptible to being definitely and accurately identified from the public records of the Parish as well as on the ground. They further aver that since the instant case does not involve the rights of third parties evidence aliunde the instrument can and should be employed to establish the definite description and location of the property; that at the time plaintiff executed the mortgage he could not have intended to nor did he mortgage any other property than the subject property for the reason that he owned no other property in Union Parish, and that therefore the mortgage and sheriff’s deed forming the basis of defendants’ title are valid in all respects.

In their reconventional demand defendants aver that if there be any question as to the accuracy of the description of the property, that, because of the facts here-inabove set forth, they are entitled to have the description contained in the sheriff’s deed reformed to conform with the intention of the parties and to affect the subject property so mortgaged. In connection with said reconventional demand plaintiff filed the plea of ten years prescription against said demand to reform the sheriff’s deed. *

After trial on the merits the trial court rendered judgment in favor of plaintiff, decreeing him to be the true and lawful owner of the property here in dispute and directing the defendants to deliver possession thereof to the plaintiff. The trial court further decreed the sheriff’s deed to Slade Bros., dated April 22, 1929, recorded in conveyance book 71, page 92, Union Parish, and the sale evidenced thereby made on March 30, 1929 to be null and void and of no effect because of inadequacy of description of the property thereby conveyed. The court also sustained the plea of ten years prescription filed by plaintiff to the reconventional demand of defendants and rejected same in its entirety.

Defendants have appealed and pray to be maintained in their ownership of the property as described in the mortgage and in the sheriff’s deed; and plaintiff has answered and prays that the judgment of the trial court be affirmed.

The record discloses that, insofar as the petitory action is concerned, it was stipulated that the chain of title alleged by plaintiff from the patent of 1859 to the acquisition of Canterberry in 1919 was unassailable and that Canterberry was the lawful owner of the property in dispute up to March 30, 1929, the date of the sheriff’s sale. However, in alleging his chain of title, plaintiff did not include the mortgage, the foreclosure proceedings and the sheriff’s sale, interpreting them as absolute nullities. He contended that he was never divested of title to the subject property.

Thus, the primary issues before us are those raised by plaintiff’s action of nullity.

One of the alleged causes for annulling the foreclosure proceedings and the sheriff’s deed flowing therefrom is that plaintiff was not served with a copy of the petition and citation, nor was notice of the seizure and sale emanating from the writ of fieri facias served upon him.

In the case of Sims v. First Nat. Bank of Ruston, 177 La. 386, 148 So. 505, we said:

“No citation of authority is necessary to show that one may not be condemned without first being given, in the manner prescribed by law, an opportunity to be heard. While courts should exercise care to see that such opportunity is given, they should also exercise equal care to see that the returns of service of legal process by sworn and disinterested officers are not overthrown save upon clear proof that they are false or erroneous, otherwise great uncertainty will surround judicial proceedings * * *. Cf. De St. Romes v. Carondelet Canal & Navigation Co., 24 La.Ann. 331.”

In the case of Logwood v. Logwood, 185 La. 1, 168 So. 310, 311, we said: be invoked, not only by such party, but also by any one interested. Bledsoe v. Erwin, 33 La.Ann. 615; Hamburger v. Purcell, 139 La. 456, 71 So. 765.

“It is settled by ample authority that a judgment rendered against a party who has not been cited and who has not appeared is an absolute nullity, which can

“But it is also well settled that as against á collateral attack on a judgment of a court of general jurisdiction, it will be presumed, unless expressly contrary to what is shown by the record, that legal and proper process was issued in the action and that it was duly and regularly served upon the defendant. Verbo, ‘Judgment,’ 34 C.J. § 842, pp. 541, 552. See, also, Hamburger v. Purcell, supra.”

The record unmistakably shows that personal service of citation was made on Canterberry. This is made manifest by the certification of Sheriff F. W. Murphy, who was deceased at the time of the trial of the instant case, to the effect that-he, in his official capacity, had made personal service on said plaintiff. The genuineness of the sheriff’s signature was fully established in the process of the trial of this controversy. However, plaintiff attacked said return as being false and untrue and to sustain his position testified that he was absent from his home and from the Parish on the day judicial process is shown by the sheriff’s return to have been made.

It is well settled in our jurisprudence that while no valid judgment can be rendered without legal citation, yet, in order that uncertainty and confusion might be avoided as to the validity of judgments, great reliance must be placed on the returns made by sworn officers who are entrusted with the service of process. For this reason, a rule has developed which requires more than the uncorroborated evidence of a single witness to overcome the presumption attached to the correctness of the return on process made by a sworn officer. Logwood v. Logwood, supra; Sims v. First Nat. Bank of Ruston, supra.

The burden of proof to establish by clear and convincing proof the alleged nullity of the official return of service of process has not been successfully discharged by Canterberry.

The contention of plaintiff that no notice of seizure and sale was served upon him is equally without merit. The record also shows that notice of seizure under writ of - fieri facia's was issued by the sheriff’s office on February 15, 1929, addressed to Canter-berry, giving notice of the seizure of the property therein described and that after the lapse of advertisement sale would be made on March 30, 1929. This notice bears the genuine signature of the then Sheriff, F. W. Murphy. It also appears that due advertisement of the sale was made in the official publication of the Parish as required by law; that a mortgage certificate covering the subject property was prepared by the Clerk of Court and furnished to the sheriff; that on the appointed hour and date the sheriff proceeded to and did sell to the highest bidder, namely the defendants, the subject property so seized; and that the sheriff thereupon executed a deed conyeying to defendants the subject property. All of the foregoing formalities complied with the requirements of law.

We now move to CanterDerrys contention that the mortgage foreclosed upon by defendants and the resulting sheriff’s sale and deed are absolute nullities.

The record discloses that on April 19, 1924, the date of the execution of the mortgage, Canterberry owned no real propertj'-in the parish or state other than that which he intended to and did mortgage to the Marion State Bank. Canterberry testified, as he necessarily should have, that he knew the location and acreage comprising the property here in dispute, having lived on and occupied the same, and that it is the same property that he intended to and did mortgage. However, he now contends that the land described in the said mortgage, giving rise to the foreclosure proceedings and culminating in the sheriff’s deed to defendants, is so vague and indefinite that it conveyed no property and, further, failed to divest him of title to the subject property. He further testified that he actually owned even less property than the acreage described in the mortgage and sheriff’s deed.

Nevertheless, we are convinced that the property described in the mortgage and sheriff’s deed, which serve as the basis of defendants’ title, when viewed in connection with other deeds executed prior thereto by Canterberry, can be definitely ascertained and is therefore a definite and adequate description of the property so mortgaged, seized and sold. An examination of these deeds as relied upon by defendants reveals that:

By deed dated November 13, 1917, L. G. Canterberry and Hamp Nale acquired the SE 54 of Section 24, Township 23 North, Range 1 West, and the bJW 54 of SW %, Section 19, Township 23 North, Range 1 East, and the NW 54 of SW 54 of SW 54 of Section 19, Township 23 North, Range 1 East, containing 220 acres, more or less.

By deed dated December 17, 1919 L. G. Canterberry conveyed to Hamp Nale: S % of SE 54 of Section 24, Township 23 North, Range 1 West and a strip 36% yards wide on the south side of N % of said eighty and the NW % of SW 14 of SW % of Section 19, Township 23 North, Range 1 East and a strip 36% yards wide on the south side of NW 14 °f SW 14 °f Section 19, Township 23 North, Range 1 East, containing 110 acres, more or less.

The December 17, 1919 deed was corrected by deed dated January S, 1924, to correctly describe the property conveyed as follows: S Y2 of SE 54) Section 24, Township 23 North, Range 1 West and a strip 36% yards wide North and South by 880 yards East and West on the South side of N % of SE Ya of Section 24, Township 23 North, Range 1 West and NW Y2 of SW 4 of SW 14, Section 19, Township 23 North, Range 1 East and a strip 36% yards wide North and South on the South side of NW }4 of SW 14; Section 19, Township 23 North, Range 1 East, containing 110 acres, more or less.

These two deeds constituted in part a partition between the said Canterberry and Nale who were the common purchasers of the 220-acre tract. *

To further effectuate the partition of their joint acquisition Hamp Nale conveyed to Canterberry the N Yz of SE 54> Section 24, Township 23 North, Range 1 West less and except a strip 36% yards wide on the South side of the said eighty clear across the said eighty from east to west and all NW 54 °f SW 54) Section 19, Township 23 North, Range 1 East, except a strip 36% yards wide on South side of said forty across said forty from east to west, containing 110 acres more or less.

By deed dated September 8, 1920, L. G. Canterberry conveyed to Frost-Johnson Company, Inc. the NW 54 of the SE ;}4 and W % of NE 54 of SE 54 less and except a strip 36% yards wide off the south side thereof, containing 55 acres, more or less.

Thus, as a result of the foregoing transactions by Canterberry it can be easily ascertained that the property owned by him situated in Union Parish, Louisiana, was:

The E % of NE 54 of SE 54 of Section 24, Township 23 North, Range 1 West, less and except a strip 36% yards wide off the south side thereof being 18% acres that the said L. G. Canterberry owned in this particular forty, he having sold off and transferred W 54 of NE 54 of SE '% of said section, township and range, less a strip 36% yards wide off the south side thereof to Frost-Johnson Company, Inc. and thereby leaving him 18% acres in this particular forty. He also owned the NW 54 of SW 54 of Section 19, Township 23 North, Range 1 East, less and except a strip 36% yards wide off the south side of the said forty from east to west containing 36% acres, more or less, or a total in both tracts of 55 acres, more or less.

1'He act of mortgage executed by Canter-berry on April 19, 1924 describes the property mortgaged by him to be, “361/3 acres in the NW 14 of SW % of Section 19, Township 23 North, Range 1 East and 19 acres in the NE 14 of SE 14 of Section 24, Township 23 North, Range 1 West, containing 551/s acres, more or less, together with all improvements situated thereon and thereto belonging.” The identical description of the property as that contained in the mortgage act is contained in the sheriff’s deed herein, save and except that in the latter no reference is made to the total acreage contained in both tracts. However, by a simple calculation of the acreage given to each tract so adjudicated the acreage totals 55% acres.

The record further reveals that on November 12, 1923 Canterberry conveyed to O. A. Bennett 5% acres of land described in the NW 14 of SW 14 Section 19, township 23 North, Range 1 East, and more particularly described as: “Commencing at a point on the west line of the NW 14 of SW 14 Section 19, Township 23 North, Range One (1) East, 36% yards north of the southwest corner of said forty, run thence north 62% yards thence East 440 yards to the east line of said forty; thence south along the east line of said forty to a point 36% yards north of the southeast corner of said forty; thence west 440 yards to the place of beginning, all being in the NW 14 of SW 14 of Section 19, township 23 North, Range 1 East.”

Thus it will be seen that notwithstanding having sold and transferred to Bennett 5% acres of land in Section 19, leaving him an. acreage total of approximately 50 acres more or less in Sections 19 and 24, we find that Canterberry, less than a year later, executed the mortgage on 55% acres, knowingly including therein the 5% acres he had previously sold to Bennett. Thus it is an inescapable conclusion that at the time Canterberry executed the act of mortgage he owned a total acreage in both tracts of approximately 50 acres, more or less.

The principle of law controlling in this matter is pronounced in Snelling v. Adair, 196 La. 624, 199 So. 782, 787, as follows:

“It is a settled rule of law in this state that if a portion of the description of property in a deed is either erroneous or misleading, it is nevertheless susceptible of conveyance if the property intended to be conveyed by the parties can be ascertained with certainty by the aid of such extrinsic evidence as is admissible under the rules of evidence. Thornhill v. Burthe, 29 La. Ann. 639; Bryan v. Wisner, 44 La.Ann. 832, 11 So. 290; Willis v. Ruddock Cypress Co., 108 La. 255, 32 So. 386; Suthon v. Laws, 127 La. 531, 53 So. 852; Suthon v. Viguerie, 127 La. 538, 53 So. 855; Bayard v. Baldwin Lumber Co., 157 La. 994, 103 So. 290; Tircuit v. Burton-Swartz Cypress Co., 162 La. 319, 110 So. 489; Harrill v. Pitts, 194 La. 123, 193 So. 562; 13 Cyc. 627; and 36 Cyc. 591. And ‘a deed, which was sufficient to convey property as between parties thereto * * * would be sufficient * * * basis upon which to rest plea of prescription of 10 years.’ Harrill v. Pitts, supra.

The record is amply fortified with evidence to support our conclusion and further shows that U. S. Roane, a civil engineer, testified to the effect that by a casual inspection of the records, particularly the various deeds of transfer that from the description therein given, he was able to and did fix and determine the identity and location on the ground of the subject property, said plot of survey forming part of the record; that by excluding from the deed of acquisition by plaintiff of the strip of 36% yards wide in the NW % of SW % Section 19, which strip contained 3% acre> would leave a balance therein of 36% acres, less that portion of 5% acres sold to Bennett, or a balance of about 31 acres, more or less; and that in the same manner, by excluding the acreage sold by plaintiff to Frost-Johnson Lumber Co. (NW % of the SE % and W % of the NE % of SE % of Section 23 less the strip of 36^4 yards off the south end), plaintiff was left owning the E y2 of the NE 14 of SE 14 less said strip, containing about 19 acres, or a total acreage owned by plaintiff in both sections of approximately 50 acres as called for by the plaintiff in his petition.

The Supreme Court in the case of Snel-ling v. Adair, supra, quoted with approval from the case of Tircuit v. Burton-Swartz Cypress Co., supra:

“ * * * it suffices if the description be ‘such as to enable the court to determine with certainty, with the aid of such extrinsic evidence as is admissible under the rules of evidence, what property was intended by the parties to be covered thereby. The description need not be given with such particularity as to make a resort to extrinsic evidence unnecessary.’ ”

In the case of Laforest v. Barrow, 12 La. Ann. 148, we said:

“ * * * we think that where a sale of the mortgaged property has been made under an order of seizure and sale, and possession has followed the title, that an error in some of the boundaries ought not to be permitted to defeat the title, where the most important calls in the description are answered, and the identity of the tract is also established aliunde * * * ”

This Court, in the case of Harrill v. Pitts, supra [194 La. 123, 193 So. 565], said that:

“Courts are always liberal in construing the description of property in deeds, so as to sustain, rather than defeat, the conveyance.”

Further continuing we said: “The law does not require that a deed, to support the prescription of 10 years, shall contain such a description that the land can be identified without reference to other records.” See authorities therein cited.

Plaintiff knew the location and description of the property which he encumbered as security for a loan from the bank, this being the only real property owned by him; and as a matter of fact, by his own petition he acknowledged its susceptibility of being adequately described and identified. Immediately following the sheriff’s sale the defendants took actual physical possession of the subject property. Plaintiff relinquished his possession and moved his personal effects with his family to another parish where he lived for four years shortly after the filing of the foreclosure proceedings. From date of the sheriff’s deed the defendants publicly and openly exercised rights of ownership, as above noted, to the present date. During the course of almost twenty years, even after the plaintiff had returned to Union Parish in 1933 and settled on a farm in another section of the Parish, plaintiff did not make a single protest challenging defendants’ public acts of possession as owner, nor assert any right of ownership to the subject property until the filing of this suit in 1950.

Generally speaking, the cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention when consistent with legal principles. The object to be obtained in construing a contract is to ascertain the meaning and intent of the parties as expressed in the language used. We have no difficulty in determining that the intention of Canterberry was to mortgage the only property owned by him. The fact that the description of the property in the mortgage may have been deficient, such vagueness cannot be made to serve as a detriment to the mortgagee and an advantage to the mortgagor who knew the description, location and acreage of the property he mortgaged and upon whose solemn act and representations, publicly declared in authentic acts, the defendants relied in purchasing the property and parting with a valuable consideration therefor. We cannot say that the description of the property contained in the mortgage and sheriff’s deed is so deficient, having regard to its nature, character and location, as to render the mortgage invalid.

The views we have expressed herein dispense with the necessity of inquiring into the merits of the pleas of estoppel and of prescription, and of the alternative plea of reformation advanced by the defendants.

We are convinced that Canterberry, by his own act and its consequences, did intentionally divest himself of property in a manner prescribed by law and that the advent of “oil” prompted his unconscienable demand to he declared the owner of the property encumbered by him at an unsus-picious time.

Accordingly, for the reasons assigned, the judgment of the district court is reversed, annulled and set aside and it is now ordered, adjudged and decreed that there be judgment in favor of defendants recognizing and decreeing them to be the true and lawful owners of the following described land situated in Union Parish, Louisiana, together with all oil, gas and mineral rights and other rights in and to same, subject as prayed for only to the oil, gas and mineral lease granted by them, and, as such, entitled to the full and undisturbed possession thereof:

“Tract A: NW of SW of Section 19, Township 23 North, Range 1 East, less and except a strip off the south side thereof 99 yards wide north and south and extending across said forty, containing 31 acres, more or less.
“Tract B: E of NE J4 of SE J4 of Section 24, Township 23 North, Range 1 West, less and except a strip off the south side thereof 362/3 yards wide north and south and extending across said subdivision, containing 19 acres, more or less. Said tracts A and B containing together a total of SO acres, more or less.”

It is further ordered, adjudged and decreed that plaintiff’s suit be dismissed and all costs of this proceeding be borne by him.


author: HAMLIN, Justice ad hoc.

text:
    232 La. 1104
    Mrs. Marcelle Duconge KENDRICK v. Robert W. KENDRICK.
    No. 42893.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.
    Leo L. Dubourg, New Orleans, for plaintiff-appellant.
    James H. Drury, New Orleans, for defendant-appellee.
   HAMLIN, Justice ad hoc.

Plaintiff appeals from a judgment of the trial court, which dismissed her suit against her husband for divorce on the ground of adultery.

Plaintiff alleged in her petition that since their marriage defendant had been guilty of adultery committed at various times, but particularly on or about November 5, 1955, through November 11, 1955, at 2808 Octavia Street, with a woman residing at that address.

During the course of the trial, plaintiff testified that before their marriage on February 6,1954, defendant told her that he had been going with another woman (the corespondent in this suit) for eight years, but that he did not love her enough to marry her. She stated that after their marriage, he confessed to her that he had had intimate relations with this woman before he married plaintiff.

Plaintiff said that during the first year of their marriage the phone would often ring around 7:30 P. M. and her husband would not permit her to answer; that after speaking on the phone, he would tell her that he was going to visit his sister, who also lived on Octavia Street; that he would then leave the house and be gone for a few hours. Plaintiff testified that she felt that the corespondent called her husband.

After a year of marriage, plaintiff moved from the marital domicile. She testified that her cause for leaving was her husband’s conduct with the co-respondent. Defendant’s testimony is to the effect that his wife moved in order that she might later get a divorce on the ground of living separate and apart for two years.

While on the Gulf Coast in Mississippi during the month of October, 1955, plaintiff endeavored to contact her husband by telephone. When she could not locate him, she called her sister, who rode past the corespondent’s home and saw defendant’s car parked in front of the Octavia Street address. After her return to New Orleans, Louisiana, plaintiff observed defendant’s car parked in front of the co-respondent’s home on October 30,1955, and on November 2, 1955, unbeknown to him.

While plaintiff was a patient in a New Orleans hospital on November 5, 1955, she employed the services of a New Orleans detective agency to observe her husband’s activities. Two agents followed the defendant for seven consecutive nights. Their testimony is to the effect that the defendant visited the co-respondent every night for several hours and then left; that on one occasion he escorted her to the theater; that lights were always burning in the front part of the house, and they observed no indiscreet activities on the.part of defendant and the co-respondent. Under pretense of locating another party, one of the detectives rang the doorbell of the Octavia Street address. He stated that he saw the parties sitting at a table partaking of a soft drink.

The defendant, who was widowed before his marriage to plaintiff, emphatically denied having any intimate relations with the co-respondent. He stated that he met the co-respondent through her father and mother, who had been friends of his first wife and himself before their deaths. He admitted visiting her, but he stated that the visits took place after plaintiff had left the marital domicile and that such events were strictly social. He denied having had phone calls from the co-respondent while he and plaintiff were living together, and stated that the night calls were from business associates.

Several witnesses testified that they knew the defendant and felt assured of his very fine and high reputation with ladies.

The co-respondent, a young unmarried woman, thirty years of age, denied any wrongdoing with the defendant. She also denied that she had made phone calls to his residence. She stated that before her parents died, defendant and his first wife had visited in her home on an average of once a week. She admitted that the defendant had visited her on the named dates, but that it was after she saw the defendant on the streets of New Orleans during October, 1955, and he told her about his wife having left the marital domicile. She testified that their conduct was not immoral; that they sat in her living room and listened to the television. She said that since the deaths of her mother in 1949 and her father in 1951, she lived alone in a highly respectable neighborhood in New Orleans.

The co-respondent’s employer for some fifteen years prior to trial testified in her behalf. He said that she had been with his company for many years and had developed into a “crackerjack” secretary; that she was an extremely fine girl, and that her father had held a responsible position in the banking business. He stated that he had noticed her on office parties, and that her behavior was decorous, being on the aloof side. He also testified that she had been a guest of his wife and himself for dinner' in their home.

The evidence against the defendant is strictly circumstantial. His visits to the co-respondent were not surreptitious, his car always being parked in front of her residence, rather than on a side street some distance away. He entered and left by her front door.

This Court has held that because of the nature of the offense, adultery may be proved by circumstantial evidence as well as by direct evidence; but, such facts must lead to the conclusion that adultery has been committed as alleged in the petition. Coston v. Coston, 196 La. 1095, 200 So. 474; Savin v. Savin, 218 La. 754, 51 So.2d 41; Harris v. Harris, 228 La. 19, 81 So.2d 705; Hayes v. Hayes, 225 La. 374, 73 So.2d 179.

From a reading of the record in this case, we find that plaintiff has not borne her burden of proof, and that the preponderance of the evidence is in favor of the defendant. The trial j udge well stated:

“The jurisprudence, as recently crystallized in the cited cases, is to the effect that, while proof of adultery may be established by indirect or circumstantial evidence, as well as by direct evidence, and a prima facie case for divorce on the ground of adultery may be made by facts or circumstances that lead fairly and necessarily to a conclusion that adultery has been committed, courts must take such evidence as the nature of the case permits, circumstantial, direct or positive, and bring to bear upon them experiences and observations of life, and, weighing all with prudence and care, give effect to its just preponderance. Further, that in these modern times, the mere fact that a man and a woman are alone together does not necessarily presume it is for an affaire d’amour. Harris v. Harris, [228 La. 19], 81 So.2d 705; Savin v. Savin, [218 La. 754], 51 So.2d 41, and the cases therein cited.”

The trial judge saw and heard the witnesses, and he concluded that adultery had not been proved by a preponderance of the evidence. We see no reason for disturbing his finding. Williams v. Williams, 230 La. 1, 87 So.2d 707.

For the reasons assigned, the judgment of the trial court is affirmed.