author: VILLANTI, Judge.

text:
    In re GUARDIANSHIP OF Sallie B. STEPHENS, an incapacitated person. Jabessa Major and David Stephens, Appellants, v. Joe Ellen Rowe, court-appointed guardian of the property of Sallie B. Stephens, an incapacitated person; Lutheran Services Florida, Inc., court-appointed guardian of the person of Sallie B. Stephens, an incapacitated person; Frannie Scaglione; Fredrick Stephens; Steward “Stud” Stephens; John A. Stephens, Jr.; Eunice S. Gipson; April Anderson; and Steve B. Stephens, Appellees.
    No. 2D06-4227.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2007.

      Carl R. Hayes, Tampa, for Appellants.
    Wallace B. Anderson, Jr., Tampa, for Appellee Joe Ellen Rowe.
    No appearance for remaining Appellees.
   VILLANTI, Judge.

Appellants Jabessa Major and David Stephens appeal a final order of the probate court adopting the Report and Recommendation of the General Magistrate, which recommended that Lutheran Services Florida, Inc., be appointed guardian of the property and person of their mother (the Ward). We affirm but write to address why the order of appointment of a nonrelative of the Ward as guardian, as recommended in the Report, was appropriate even though there was at least one family member willing to serve as guardian of the Ward. We have jurisdiction to review this final order. See Fla. R.App. P. 9.030(b)(1)(A).

Jabessa and David, two of the Ward’s nine adult children, argue that the probate court erred in appointing a “public guardian” because it should have appointed a family member as guardian. They argue that the probate court erred by: (1) rejecting Jabessa and David’s exceptions to the Magistrate’s Report and Recommendation and (2) not reopening the matter to consider their petition for guardianship, even though that petition was filed fifty-five days after the final hearing held to determine their mother’s incapacity and guardianship and ten days after the Magistrate issued his Report and Recommendation.

Section 744.312(1), Florida Statutes (2006), styled “Considerations in appointment of guardian,” provides that “the court may appoint any person [] who is fit and proper and qualified to act as guardian, whether related to the ward or not.” (Emphasis added.) Section 744.312(2) adds:

The court shall give preference to the appointment of a person who:
(a) Is related by blood or marriage to the ward;
(b) Has educational, professional, or business experience relevant to the nature of the services sought to be provided;
(c) Has the capacity to manage the financial resources involved; or
(d) Has the ability to meet the requirements of the law and the unique needs of the individual case.

(Emphasis added.) While the wishes of the ward shall be considered in appointing a guardian, they are not controlling. § 744.312(3)(a); Ahlman v. Wolf, 413 So.2d 787, 788 (Fla. 3d DCA 1982).

We review a probate court’s determination regarding the appointment of a guardian under an abuse of discretion standard. See Wilson v. Robinson, 917 So.2d 312, 313 (Fla. 5th DCA 2005). The trial court’s adoption and ratification of a general magistrate’s report and recommendation is also reviewed under an abuse of discretion standard. See Canakaris v. Canakans, 382 So.2d 1197, 1203 (Fla.1980). Because the appointment of a guardian is a discretionary act of the trial court, we review it for reasonableness; the trial court’s determination “must be supported by logic and justification for the result, founded on substantial competent evidence.” In re Guardianship of Sitter, 779 So.2d 346, 348 (Fla. 2d DCA 2000) (citing Canakaris, 382 So.2d at 1203). In other words, an appellate court will not find an abuse of discretion unless “no reasonable person would take the view adopted by the trial court.” Wilson, 917 So.2d at 313 (citing Canakaris, 382 So.2d at 1203); Treloar v. Smith, 791 So.2d 1195, 1197 (Fla. 5th DCA 2001).

In Treloar, as in this case, the probate court appointed a professional guardian of the person and property. 791 So.2d at 1196. On appeal, the ward’s son argued that the trial court erred in denying his petition for appointment as guardian. Id. The appellate court rejected the son’s argument, holding that while section 744.312(2)(a) gave the next of kin first consideration, it did not mandate that a next of kin be appointed guardian. Id. at 1197. The statute specifically provides that the court may appoint a person who is qualified, whether related to the ward or not. Id. The Treloar court held that the record contained competent evidence to support the trial court’s decision to appoint a nonrelative as guardian. Id. We find this logic persuasive because it places the emphasis, as do three of the four statutory factors, on a guardian’s qualifications, which is clearly paramount to the ward’s best interests.

In this case, one of the Ward’s daughters, Frannie Seaglione, filed the original petition for appointment of guardian on October 21, 2003, seeking to be appointed as plenary guardian of her mother. Frannie filed an amended petition on January 16, 2004. On October 21, 2004, David agreed to this amended petition. There is no record evidence that David ever withdrew his consent to Fran-nie’s petition. In fact, he was apparently “surprised and distressed” to learn on the first day of the final hearing that Frannie no longer wished to be the guardian.

On November 7, 2005, the Magistrate held a pretrial conference and issued an order setting a final hearing on December 12, 2005, to determine incapacity and guardianship. That order was timely mailed to Jabessa and to Henry Noble, the attorney of record for David. More important, the order noted that there were “no competing petitions for the appointment of a guardian.” Moreover, based on representations made at the pretrial hearing, the order appropriately required the attorneys, including David’s counsel of record, to inform the court in writing within ten days if anyone would be contesting the incapacity or guardianship petitions. The record does not reflect any such documents being filed.

Thereafter, a final hearing took place. At the beginning of the hearing, on December 12, 2005, only one petition for guardianship was pending — daughter Frannie’s. The parties were unable to complete the hearing in one day, and the hearing was reconvened on February 9, 2006. On December 19, 2005, between the first and second hearing dates, son Fredrick filed his own petition for guardianship. Notably, Fredrick and David were represented by the same attorney.

Over a period of two days, the Magistrate heard extensive testimony from numerous family members. David was present at both hearings and testified. He expressed an interest only to “help as guardian.” While David’s “offer” was not elaborated upon, as explained below, it is apparent from the Magistrate’s Report and Recommendation that the Magistrate considered David’s testimony.

Jabessa was subpoenaed to appear at the final hearing but failed to do so, allegedly because she was ill on both days of the final hearing. She never expressed any interest, orally or in writing or qualified or unqualified, in being appointed guardian. We also note that the Ward was represented by court-appointed counsel who waived her physical appearance at the final hearing. The Ward nevertheless appeared by telephone on the first day of the hearing and confirmed that she did not want to be present at the hearing.

Apparently, the main cause of disagreement at the hearing was who would act as guardian as opposed to whether the Ward was incapacitated. On March 24, 2006, the Magistrate issued a Report and Recommendation, finding the Ward to be incapacitated. The Magistrate then recommended that Lutheran Services be appointed guardian of the property and of the person.

On April 4, 2006, David and three of his siblings and the Ward filed handwritten exceptions to the Magistrate’s Report and Recommendation. This document for the first time alleged that the Ward wanted David to be appointed guardian. However, as is required, the Magistrate’s Report and Recommendation had already adequately considered the Ward’s wishes. The Magistrate specifically found:

Even if that had been proven true by clear and convincing evidence [that the Ward did not want “any outsiders involved in her affairs”], the undersigned would still find that having a neutral, third-party guardian, and not a family member, would be in the Ward’s best interest. That would be the best way to ensure that the guardian is looking out only for the Ward and making decisions that are truly in her best interests and not ones that may be clouded by a family member’s competing self-interest. . . .

Thus it is apparent to us that the Magistrate considered the hearsay assertion that the Ward wished to have David appointed as guardian. Moreover, regardless of the accuracy of this assertion, the Ward’s wishes here would not trump the need for a qualified, neutral guardian, which was the driving force compelling the court’s appointment decision. On April 5, 2006, David and Jabessa filed a petition to be appointed their mother’s co-guardians. However, there is no record evidence that they set, or even tried to set, their petition for hearing as required by section 744.3371(1).

Thereafter, the record reflects that a hearing was held on April 26, 2006, to address the exceptions filed by the siblings, but the record on appeal does not contain a transcript of that hearing. On May 8, 2006, the probate court issued its order adopting the Magistrate’s Report and Recommendation and rejecting the exceptions. Notably, the probate court’s five-page order thoroughly analyzed the exceptions and held that the Magistrate’s findings were supported by substantial, competent evidence. Our independent review of the record on appeal supports the trial court’s assessment. Neither Jabessa nor David moved for rehearing or reconsideration of the probate court’s order nor otherwise contested the qualifications of the appointed guardian on any basis other than its nonrelative status.

Having reviewed the record, and under the circumstances of this case, it is clear that the trial court did not abuse its discretion in appointing nonfamily members as guardians of the Ward and her property. The Magistrate was presented with evidence that the family was “dysfunctional,” that the siblings were unable to get along and cooperate with each other to care for their mother, and that there were serious conflicts about how the family business should be run, inclusive of the Ward’s assets and money in general. Some of the siblings had made choices which could be in conflict, with and- affect the Ward’s financial stability, such as, for example, setting up an irrevocable trust .containing questionable terms. Some of the siblings had created “alliances” to the exclusion of other siblings. They were unable to come together on simple issues, including the core issue concerning their mother’s care. As evidenced by this appeal, they could not even agree on the designation of a guardian. In view of family dynamics, appointing one of the siblings as a guardian for any purpose would clearly not be in the Ward’s best interests. Additionally, because there was substantial, competent evidence supporting the probate court’s rejection of the Appellants’ exceptions and the court’s adoption of the Magistrate’s Report and Recommendation, we are compelled to affirm.

While we recognize that family members, if otherwise qualified, are generally entitled to preference in appointment as guardian over strangers, that preference can be overcome if they, intentionally or unintentionally, engage in conduct detrimental to a ward’s best interests. Moreover, even when a family member has acted with the best interests of the ward in mind, there may well be instances where it would not be an abuse of discretion for the probate court to nevertheless appoint a nonfamily member guardian. Here, but for the trial court’s wise exercise of discretion and refusal to consider solely the first statutory preference favoring family members, the Ward’s estate would likely be jeopardized or, at the very least, suffer financially by family infighting that would necessitate numerous future hearings on even the most mundane of matters. As recognized by the probate court, appointing a family member guardian would create a “tug-of-war” over the Ward and her property. This would not have been in keeping with the Ward’s best interests— the polestar in any guardianship proceeding. See Miller v. Goodell, 958 So.2d 952, 954 (Pla. 4th DCA 2007).

We also realize that family members would naturally believe they should be “entitled” to appointment. However, in the guardianship arena, the legislature has rightly determined that such expectations are not binding on the court. Thus any “preference” for family applies only within certain discretionary bounds. The guardianship statute does not confer upon certain family members an absolute and automatic right to be appointed guardians. See In re Guardianship of R.N.B., 429 So.2d 796, 797 (Fla. 4th DCA 1983) (“Indeed, the statute provides that the court may appoint any person ‘who is. qualified to act as guardian, whether related to the ward or not.’ ” (quoting section 744.312(1), Fla. Stat. (1981))). The best interests of the Ward'—which include choosing a qualified guardian for the Ward-—come first. Family member preference in and of itself is secondary, regardless of how well qualified the family members are.

Finally, we also note that the probate court here had no sua sponte duty to determine that an additional, competing petition for appointment of eoguardians was filed subsequent to the Magistrate’s Report and Recommendation. Jabessa and David cite no authority for this proposition, and under the facts and procedural history of this matter, we discern none. Not only was this latter petition filed untimely, but no interested party ever notified the court of its existence, set it for hearing, or moved to postpone the court’s ruling until the petition was considered. Having reviewed and rejected the Appellants’ claimed errors contained in their exceptions to the Magistrate’s Report and Recommendation, it nevertheless appears that the belated request to be appointed guardians was implicitly considered and overruled by the Magistrate and the probate court. Regardless, it was not an abuse of discretion for the probate court not to otherwise consider this untimely petition.

Affirmed.

CANADY and LaROSE, JJ., Concur.

      . Because many of the parties involved in this appeal have the same last name, we will refer to each sibling by his or her first name.

      . The term "public guardian" as used by Jabessa and David is a misnomer. The guardian appointed by the probate court was a professional guardian, typically chosen from a list of available professionals who are paid for their services from guardianship funds or who serve without compensation when funds are unavailable. The term "public guardian” connotes the concept of a state-funded agency, which may be appointed to represent destitute wards in certain limited instances not relevant to this appeal. See §§ 744.701-.715, Fla. Stat. (2006).

      . The reference to “person” in this context includes individuals or corporate entities that typically represent wards when no qualified family members are available or willing to serve as guardian. See § 1.01(3), Fla. Stat. (2006).

      . Throughout the record, this sibling's name appears as “Fredrick” and "Frederick.” We will refer to him as "Fredrick.”

      . Further, the siblings' exceptions to the Report and Recommendation indicate that one of the Ward's sons claimed that when the Ward was asked if she wanted to appear at the hearing, the Ward said, "No! I don't want anything to do with it!” (R. 309)

      . The property of the Ward includes real estate, Social Security income, automobiles, bank accounts, and a family business named "Big John Alabama Bar-B-Que Inc.” That family business alone allegedly generates one million dollars per year.

      .For reasons not clear from this record, pri- or to the issuance of letters of guardianship, Lutheran Services "resigned” as guardian of the Ward’s property. Thereafter, the actual guardian appointments were split — the court appointed Lutheran Services as guardian of the person and "independently” appointed Jo Ellen Rowe to act as guardian of the property. The Appellants do not argue any lack of notice concerning Rowe's appointment, qualifications, or the Magistrate’s initial recommendation that Lutheran Services be appointed dual guardian. Conceivably, if important, these issues were addressed at the untran-scribed hearing where the probate court heard the exceptions to the Magistrate's Report.

      . Jabessa’s name was included in the signature lines of the exceptions, along with the names of six of her siblings; however, neither she nor two of the siblings listed signed the document. Two additional siblings (John and Frannie) were not listed.

      . We would further note that the appointment of a professional guardian in this case is even more appropriate because such guardians, unlike family members, adhere to objective, national standards under the auspices of the National Guardianship Association, available at http://www.guardianship.org/pdF standards.pdf. Family members, regardless of their good intentions, are not required to adhere to these standards nor do they generally have prior guardian training or experience.


source: Caselaw Access Project

author: CANADY, Judge.

license: Public Domain

text:
    Samuel AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1769.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2007.
    James Marion Moorman, Public Defender, and Maura J. Kiefer, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Samuel Austin appeals his convictions for possession of cocaine, fleeing to elude, and obstructing or opposing an officer without violence. Austin argues that the trial court erred in denying his motion for judgment of acquittal. We reject that argument without further comment. Austin also contends that the trial court erred in denying his motion to suppress the cocaine which Austin asserts was obtained by the police as a result of an illegal traffic stop. For the reasons we explain, we conclude that the trial court correctly refused to suppress the cocaine.

The police attempted to effect a stop of the vehicle driven by Austin based on computer information, which was subsequently determined to be erroneous, indicating that the license plate displayed on the vehicle was assigned to another vehicle. When the officer attempted to stop Austin by activating the siren and flashing emergency lights of the officer’s patrol car, Austin increased his speed and refused to stop. After the officer who had attempted to stop Austin was joined in the chase by another officer, Austin jumped from his still-moving vehicle and ran from the pursuing officers. Ultimately, the officers were successful in collaring Austin by shooting him with a stun-gun. The cocaine at issue was contained in a plastic bag which Austin dropped as he ran from the officers.

It is true that a stop based on the erroneous information concerning the license plate would have been unlawful. See Shadler v. State, 761 So.2d 279 (Fla.2000); State v. White, 660 So.2d 664 (Fla.1995); State v. Murphy, 793 So.2d 112 (Fla. 2d DCA 2001). But that point does not resolve this case.

Austin’s claim for suppression of the cocaine can most readily be rejected on the ground that the cocaine was dropped by Austin before he was seized by the police. The cocaine was obtained without a violation of Austin’s Fourth Amendment right to be secure against unreasonable seizures. “[S]ince [Austin] did not comply with [the officers’ efforts to stop him,] he was not seized until he was [shot by the officers with the stun-gun]. The cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied.” California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); see also State v. Battis, 926 So.2d 427, 428 (Fla. 2d DCA 2006).

In view of the foregoing circumstance, we need not consider the additional factor that Austin’s commission of the offense of fleeing to elude dissipated the taint of any illegality associated with the initial unsuccessful attempt to stop Austin. See United States v. Bailey, 691 F.2d 1009, 1015-18 (11th Cir.1983); Green v. State, 530 So.2d 480, 481 (Fla. 5th DCA 1988) (on motion for rehearing en banc).

Affirmed.

NORTHCUTT, C.J., and SALCINES, J., Concur.


text:
    Howell M. RAMSEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-411.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2007.
   VILLANTI, Judge.

Howell Ramsey’s conviction and life sentence for first-degree murder became final when this court issued the mandate on his appeal in April 1997. Under usual circumstances, Mr. Ramsey would have been required to file any postconviction motions within two years of that date. Thus, when he filed his motion pursuant to Florida Rule of Criminal Procedure 3.850 in June 2005, the postconviction court dismissed it as untimely. The postconviction court also denied Mr. Ramsey’s subsequent motion for reconsideration on the sole ground that “[ejxtradition is not one of the listed exceptions” to the two-year time limit as enunciated in rule 3.850(b).

This is not the usual case, however, and the postconviction court erred when it dismissed Mr. Ramsey’s motion without considering the allegation that he had been imprisoned in New York State from the time that his judgment and sentence became final until June 2003, during which time he was unrepresented by counsel and had no access to Florida law materials. In Demps v. State, 696 So.2d 1296, 1298-99 (Fla. 3d DCA 1997), the Third District held that a defendant incarcerated in an out-of-state prison with no access to Florida legal materials was essentially deprived of access to the Florida courts as provided in article I, section 21, of the Florida Constitution. The court held that

it would be a violation of Demps’ right of access to court under the Florida and federal constitutions to hold that his motion for postconviction relief is time-barred given that he did not have access to Florida legal materials, or a reasonable alternative, for the entire period within which he had to file the motion.

Id. at 1299; see also John v. State, 826 So.2d 496 (Fla. 3d DCA 2002). Other district courts of appeal have followed the sound reasoning of the Demps case in holding that the time for filing a rule 3.850 motion can be tolled. See Lopez-Merced v. State, 949 So.2d 362 (Fla. 5th DCA 2007); Kirk v. State, 707 So.2d 948 (Fla. 1st DCA 1998).

The rationale for permitting the congruence of certain limited, rarely occurring circumstances to toll the time for a prisoner to file a rule 3.850 motion derives from the fundamental right of access to the courts. As the Florida Supreme Court noted when it fashioned the “mailbox rule” in Haag v. State, 591 So.2d 614, 617 (Fla.1992):

Under the Florida Constitution, all persons have a right to equal protection of the laws, particularly in matters affecting life and liberty. Art. I, § 2, Fla. Const. Obviously, this includes a right of equal access to the courts, which serve as the final arbiter of whether life or liberty may be forfeited lawfully.

It stands to reason, as the court observed in Demps, that an uncounseled prisoner held in an out-of-state jurisdiction who is not represented by counsel and who does not have access to Florida statutes, rules, and forms has been deprived of meaningful access to the Florida courts. 696 So.2d at 1298-99.

It appears from the numerous documents that Mr. Ramsey attached to his sworn motion that he was continuously incarcerated in New York State from a time before the mandate on his direct appeal issued until June 26, 2003, when he was returned to Hillsborough County for transfer to a Florida state prison. Those documents also reflect that Mr. Ramsey was represented by counsel for his direct appeal but that this representation was specifically concluded after the affirmance of the appeal. It appears that under all of these circumstances — incarceration out-of-state, lack of access to Florida legal materials, and lack of representation by counsel — the two-year time limit for filing the motion was tolled and did not begin to run until Mr. Ramsey was transferred to a Florida prison. Thus, on the face of Mr. Ramsey’s unrefuted motion and attachments that were before the postconviction court, the two-year time for filing his post-conviction motion had not expired when Mr. Ramsey delivered the motion to prison authorities for mailing on June 16, 2005.

Accordingly, we reverse and remand for further proceedings. If the postconviction court finds that the documents attached to Mr. Ramsey’s motion are insufficient to establish that his out-of-state incarceration tolled the time for filing this motion, it shall hold further proceedings on the timeliness issue. See Lopez-Merced, 949 So.2d at 363; Ballester v. State, 781 So.2d 503 (Fla. 3d DCA 2001); Rolling v. State, 767 So.2d 570 (Fla. 3d DCA 2000). Otherwise, the postconviction court shall consider the motion on the merits.

Reversed and remanded as directed.

WHATLEY and DAVIS, JJ., Concur.


author: BARFIELD, J.

text:
    U.B., JUVENILE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5646.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2007.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Joshua R. Heller and Bryan Jordan, Assistant Attorneys General, Tallahassee, for Appel-lee.
   BARFIELD, J.

In this appeal from an order of restitution following the appellant’s adjudication of delinquency based on charges of burglary and petit theft, we find no abuse of discretion in the trial court’s decision to order $27 as restitution for the loss of stolen beer and gin, included in the charge of petit theft. However, as the state properly concedes, the trial court erred as a matter of law in awarding restitution for the loss of stolen jewelry which was not mentioned in the charging document. No-land v. State, 734 So.2d 464 (Fla. 5th DCA 1999).

The restitution order is REVERSED and the case is REMANDED to the trial court with instructions to enter a corrected order of restitution which does not include values for the jewelry.

DAVIS and LEWIS, JJ., concur.


author: PER CURIAM.

text:
    Benjamin COKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0606.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2007.

      Jonathan W. Dingus, Panama City, for Petitioner.
    Bill McCollum, Attorney General, Trisha Meggs Pate and Anne C. Conley, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Hatchell v. State, 328 So.2d 874 (Fla. 1st DCA 1976).

BROWNING, C.J., BARFIELD and BENTON, JJ., concur.


text:
    Michael SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5958.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2007.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller and Bryan Jordan, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct appeal, Appellant argues that the trial court erred in revoking his probation based upon new law violations that were not charged in the affidavit of violation of probation. However, Appellant neither lodged contemporaneous objection to the revocation nor filed a Florida Rule of Criminal Procedure 3.800(b) motion to preserve this error for appeal. Brannon v. State, 850 So.2d 452, 456 (Fla.2003) (holding that all sentencing errors must be preserved); Jones v. State, 876 So.2d 642, 644-45 (Fla. 1st DCA 2004) (holding that revocation of probation is merely an extension of a sentencing proceeding). Therefore, we affirm the trial court’s revocation of Appellant’s probation.

AFFIRMED.

ALLEN, DAVIS, and BENTON, JJ., concur.


author: TAYLOR, J.

text:
    Jason A. PEASE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4954.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.

      Dan Hallenberg of the Law Offices of Dan Hallenberg, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. -Carney, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

TAYLOR, J.

We grant appellee’s motion for rehearing, withdraw our prior opinion, and substitute the following in its place.

Jason A. Pease appeals the summary denial of his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. His motion alleged that his plea of admission to violation of probation was induced by his trial counsel’s mistaken advice concerning the length of the sentence he would receive. Because appellant’s claims are conclusively refuted by the record, we affirm the trial court’s summary denial of his motion for post-conviction relief.

Appellant pled guilty to charges of aggravated fleeing and eluding, grand theft of a motor vehicle, and aggravated assault on a law enforcement officer in three separate cases (02-9712 CF10A, 02-8610 CF10A, and 02-7693 CF10A). The trial court sentenced him to three years in prison followed by four years of probation. Later, appellant was charged with violating probation. At his probation violation hearing, the court held the following discussion with appellant before accepting his plea to the charges:

The Court: According to this scoresheet based upon the charges, based upon the record, the minimum penalty that you can get if I revoke your probation is 28.5 months.
Do you understand?
The [Appellant]: Yes, sir.
The Court: The most that you can get is 15 years. All of these aggravated fleeing charges carry 15 years. The aggravated assault on a law enforcement officer and two grand thefts each carry five years in jail as the maximum penalty. I just want you to know that you don’t have to do this. You can have a final hearing where the State has to convince me that you did violate your probation. You can question the witnesses. You can bring in your own witnesses. You can raise defenses in the case. If you lost the case, you can appeal. Once you plead guilty, you will give up all of those rights.
Do you understand?
The [Appellant]: Yes, sir.
The Court: Is there anyone that is forcing you or threatening you or promising you anything to make you plead guilty?
The [Appellant]: No.
The Court: How about your lawyer?
Are you satisfied with her?
The [Appellant]: Yes.

The trial court found appellant to be “alert and intelligent,” and said, “He understands the nature of the charges ... the rights that he is giving up. He is satisfied with his lawyer. He understands the consequences of his plea.” The court then revoked appellant’s probation in all three cases and sentenced him to ten years on the second degree felonies, with credit for time served.

Thereafter, appellant filed a motion to vacate his judgments of conviction and sentence on the ground that his guilty plea was not knowingly, voluntarily, and intelligently made. He alleged that his plea was induced by mistaken advice and assurances concerning the sentence he would receive and that this amounted to ineffective assistance of counsel. In his motion, appellant alleged that his attorney advised him that his most serious charges carried a statutory maximum penalty of fifteen years, but she also told him that his sentencing guidelines range was 28.5 months to 66 months in prison. This was erroneous because appellant was not sentenced under the guidelines; he was sentenced under the Criminal Punishment Code. Even so, the trial judge cleared up that misadvice when he correctly advised appellant of the applicable minimum and maximum penalties. Cf. Morgan v. State, 879 So.2d 1243 (Fla. 3d DCA 2004), rev. denied, 894 So.2d 971 (Fla.2005).

Appellant further alleged that his counsel advised him that “the Judge will want to re-instate” probation and that “she could seek and likely obtain a straight 365-day county jail sentence with credit [for] time served and that this outcome would have the benefit of Defendant avoiding any further probation.” Appellant also alleged that counsel told him that “there was no reason” for the judge to sentence him outside the guidelines range and that counsel gave him “affirmative advice that the Judge would be lenient.” We disagree with appellant’s contention that these alleged statements of counsel amounted to assurances by counsel of an actual sentence that the court would impose.

This case is distinguishable from Johnson v. State, 757 So.2d 586, 587 (Fla. 2d DCA 2000). There, the second district reversed summary denial of the defendant’s post-conviction motion because counsel allegedly assured the defendant that he would receive no more that two years of house arrest followed by probation if he entered an open plea. Here, appellant does not allege that his counsel assured him of a certain sentence if he pled guilty to violation of probation. Rather, appellant complains about his counsel’s advice as to the sentence she would try to obtain for appellant and her expectations concerning the sentence the judge might impose.

In Hill v. State, 895 So.2d 1122 (Fla. 4th DCA), rev. denied, 911 So.2d 98 (Fla.2005), the trial court informed the defendant of the maximum penalties he faced and asked him if he understood that the only representation the court was making was that it would not exceed those limits. The defendant acknowledged that he understood this and indicated that no promises had been made in reference to his plea. Id. at 1123-24. He later moved to withdraw his plea, claiming that his attorney had told him that he would receive less than the maximum if he pled. We affirmed the order denying the defendant’s motion to withdraw his plea, stating:

We recognize that the Florida Supreme Court noted in State v. Leroux, 689 So.2d 235, 237 (Fla.1996), that “[tjhere may also be a difference between a ‘promise’ as commonly understood, and an attorney’s expert advice to his client.... Supplying such advice is not necessarily a promise of an outcome.” We conclude, however, that there is a significant difference between claims of misadvice of counsel as to gain time, release dates, or similar matters, and claims of misadvice as to the potential sentence that the court may impose following the plea. The issue in Leroux involved a claim concerning counsel’s advice as to the estimated time for the defendant’s release from prison.
Here, the sentence to be imposed is the primary remaining matter directly before the court at the time of the plea and is patently the subject under inquiry when the defendant is asked whether anyone has made any promises or guarantees in reference to his plea. This view is supported by the court in Leroux explicitly distinguishing Pierce v. State, 318 So.2d 501 (Fla. 1st DCA 1975), and Garcia v. State, 228 So.2d 300 (Fla. 3d DCA 1969).

Hill, 895 So.2d at 1124.

This case is very similar to, though not on all fours with, Hill. Unlike the trial judge in Hill, the judge in this case did not expressly link his question about any promises made to sentencing. Nevertheless, the record refutes appellant’s claim that his plea was rendered involuntary by his counsel’s erroneous advice and assurances as to the actual sentence he would receive. The trial court therefore did not err in summarily denying relief.

Affirmed.

KLEIN and HAZOURI, JJ., concur.


text:
    Clyde Lovette HARRIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3549.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006).

SHAHOOD, C.J., FARMER and TAYLOR, JJ., concur.


author: KELLY, Judge.

text:
    Barbara Jean DORTCH, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2360.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2007.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

Barbara Dortch appeals from her judgment and sentence for felony battery. She argues that the trial court erred in giving an erroneous jury instruction on the justifiable use of force, her theory of defense. She concedes that defense counsel did not object to the instruction, but argues that the error is fundamental. We agree and reverse.

A trial court “should not give instructions which are confusing, contradictory, or misleading.” Butler v. State, 493 So.2d 451, 452 (Fla.1986); see also Gerds v. State, 64 So.2d 915, 916 (Fla.1953) (noting that a defendant has a due process right to have the court correctly and intelligently instruct the jury). Here, the instruction on the justifiable use of force, as read to the jury, was confusing and misleading and effectively negated Dortch’s assertion of self-defense, a disputed issue at trial. See York v. State, 932 So.2d 413, 416 (Fla. 2d DCA 2006) (holding that the giving of an erroneous jury instruction on the defendant’s theory of self-defense affected the validity of the trial). Although Dortch’s counsel did not object to the erroneous instruction, the error was fundamental. See Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985) (stating that “where, as here, a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant’s only defense, it is fundamental error and highly prejudicial to the defendant.”).

Accordingly, we reverse and remand for a new trial.

WHATLEY and SILBERMAN, JJ., concur.


author: SALCINES, Judge.

text:
    Kenneth WAITER, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D06-5545, 2D07-315.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2007.
   SALCINES, Judge.

Kenneth Waiter appeals two orders entered in the same circuit court case number. In the first order, the postconviction court summarily denied Waiter’s motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. In the second order, the postcon-viction court dismissed his amended motion for postconviction relief. We affirm the order with respect to the first rule 3.850motion and reverse the order dismissing the amended rule 3.850 motion.

On March 11, 2003, Waiter was convicted of felony battery. The trial court withheld adjudication and sentenced him to five years’ probation. Waiter did not appeal. Waiter filed the first of these motions for postconviction relief on July 12, 2006, raising two claims attacking his 2003 conviction.

Motions filed pursuant to rule 3.850must be filed within two years “after the judgment and sentence become final in a noncapital case.” See Fla. R.Crim. P. 3.850(b). If the defendant does not file a direct appeal, the time period to file a rule 3.850motion expires two years and thirty days after the sentencing. See De Geso v. State, 866 So.2d 107 (Fla. 2d DCA 2004). Accordingly, Waiter had until approximately April 10, 2005, to file a timely rule 3.850motion. Therefore, the postconviction court correctly found that his July 12, 2006, rule 3.850 motion was untimely.

Subsequently, on November . 8, 2006, Waiter filed an amended motion for postconviction relief pursuant to rule 3.850 raising the identical claims attacking his 2003 conviction. However, in his amended rule 3.850 motion, Waiter stated that his amended rule 3.850 motion was timely filed because he was not aware of the facts related to claim one until approximately November 24, 2004, and claim two until approximately March 8, 2006, both of which were within the two-year period pri- or to his November 8, 2006, rule 3.850 motion. Thus, Waiter contended, these claims should be considered under an exception to the two-year time limit for filing a rule 3.850 motion. In entering the order dismissing the motion, the postconviction court concluded that Waiter’s amended rule 3.850 motion was successive under rule 3.850(f). We disagree.

Florida Rule of Criminal Procedure 3.850(f) grants the postconviction court discretion to dismiss successive rule 3.850 motions:

(f) Successive Motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

However, this discretionary power is not absolute and does not apply when the previous motion was denied not on the merits but as untimely. See Love v. State, 814 So.2d 475, 478 (Fla. 4th DCA 2002); see generally Frew v. State, 947 So.2d 1275 (Fla. 2d DCA 2007); Maybin v. State, 884 So.2d 1174 (Fla. 2d DCA 2004).

In the present case, the postconviction court did not rule on the merits of the first rule 3.850 motion. Therefore, the dismissal of the second rule 3.850 motion was erroneous. Accordingly, we affirm the summary denial of Waiter’s rule 3.850 motion, reverse the dismissal of his amended rule 3.850 motion, and remand for reconsideration by the postconviction court. On remand, the postconviction court must either attach portions of the record to its order demonstrating that Waiter is not entitled to relief or conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, C.J. and CASANUEVA, J., concur.


text:
    In re Mark Steven SMITH.
    No. 2007-B-1845.
    Supreme Court of Louisiana.
    Oct. 3, 2007.
   ORDER

Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Mark Steven Smith, Louisiana Bar Roll number 22867, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

/s/ Chet D. Traylor Justice, Supreme Court of Louisiana


text:
    In re William Dale BEHAN.
    No. 2007-OB-1861.
    Supreme Court of Louisiana.
    Oct. 5, 2007.
   ORDER

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into numerous complaints of serious professional misconduct filed against respondent. The complaints allege that respondent converted client funds, neglected legal matters, failed to communicate with his clients, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and engaged in conduct prejudicial to the administration of justice. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by William Dale Behan, Louisiana Bar Roll number 24959, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of William Dale Behan for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that William Dale Behan shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Jeannette T. Knoll Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Cleon C. FLOYD, Jr.
    No. 2007-K-0216.
    Supreme Court of Louisiana.
    Oct. 5, 2007.
   PER CURIAM.

Granted. The court of appeal erred in vacating defendant’s guilty plea and sentence on grounds that the trial court’s failure to complete the hearing on defendant’s motion to suppress evidence and to rule on the constitutional validity of the search meant that the Crosby reservation made by defendant at the time he entered his plea, see State v. Crosby, 338 So.2d 584 (La.1976), had failed and thereby rendered the plea involuntary. State v. Floyd, 06-0657 (La.App. 5th Cir.12/27/06), 946 So.2d 325. The decision of the court of appeal is reversed, and this case is remanded to the district court for purposes of completing the hearing on the motion to suppress and for a ruling on the merits of the search issue. If the court rules favorably to the defendant on the motion, it shall provide him with the opportunity of withdrawing his guilty plea and pleading anew. In the event of an adverse ruling on his motion, the trial court shall maintain the guilty plea and defendant may again appeal his conviction and sentence to the court of appeal on the basis of his original Crosby reservation. See State v. Walton, 06-2553 (La.6/1/07), 957 So.2d 133; State v. Guillory, 06-2544 (La.6/1/07), 957 So.2d 132.


text:
    STATE of Louisiana v. Janis WALDER.
    No. 2007-K-0198.
    Supreme Court of Louisiana.
    Oct. 5, 2007.
   PER CURIAM.

|! Granted in part; denied in part. The order of the court of appeal remanding the case to the trial court for resentencing is amended to delete the requirement that the court reopen the restitution hearing for purposes of determining “the amount of expenses incurred from the date of the seizure of the animals in question to the date of the transfer of ownership of the animals to the parish” and restricting any order of restitution to that amount. State v. Walder, 06-1239 (La.App. 1st Cir.12/28/06), 952 So.2d 21 (Downing, J.)(Pettigrew, J., concurring in part, dissenting in part; Hughes, J., dissenting).

Although a majority of the judges on the court of appeal panel concurred in the order remanding the case to the district court for resentencing, only Judge Downing subscribed to the views expressed in his opinion as to the appropriate basis for calculating the amount of any restitution ordered under the provisions of La.R.S. 14:102.2(D). Judge Pettigrew viewed that discussion as advisory only and Judge Hughes dissented altogether without written reasons. Because a majority onj^the panel did not agree on the proper basis for calculating a restitution order in the present ease, it did not render a judgment as to that question. See La. Const, art. V, § 8(B)(“A majority of the judges sitting in a case must, concur to render judgment.”). Thus, while the district court may reconsider its order of restitution in light of the observations made by Judge Downing in his opinion, the court is not bound by those remarks and may order restitution in an amount it deems appropriate when resen-tencing defendant. However, defendant may appeal from her resentencing to the court of appeal and the state may seek supervisory review of any restitution order entered by the court in the event of an adverse determination.

KIMBALL and JOHNSON, JJ., would deny.


author: WELCH, J.

text:
    Reverend Jerry JOHNSON, Sr. v. STATE of Louisiana and Kathleen B. Blanco, In Her Official Capacity As Governor of the State of Louisiana, Charles Foti, In His Official Capacity as Attorney General and AL Alter, In His Official Capacity as Secretary of State.
    No. 2006 CA 2024.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.
    Rehearing Denied Aug. 3, 2007.

      Ronald R. Johnson, Baton Rouge, for Plaintiff — Appellant Rev. Jerry Johnson, Sr.'
    William P. Bryan, III, Baton Rouge, for Defendants — -Appellees State of Louisiana, et al.
    Before: KUHN, GAIDRY, and ' WELCH, JJ.
   WELCH, J.

| gPlaintiff, Reverend Jerry Johnson, Sr., appeals a judgment of the trial court sustaining defendants’ peremptory objection raising the exception of no cause of action, and dismissing his petition for declaratory and injunctive relief. We affirm.

BACKGROUND

On March 16, 2006, plaintiff, a black voter residing in the City of Baton Rouge, Louisiana, filed this petition for declaratory and injunctive relief against the State of Louisiana, Governor Kathleen Blanco, Attorney General Charles Foti, and Secretary of State and Chief Election Officer, Al Ater. Therein, plaintiff attacked the present system for electing judges to the Baton Rouge City Court on the basis that it violated the equal protection and due process clauses of the Louisiana Constitution. The challenged provisions, La. R.S. 13:1952(4)(b) and (c) (hereafter sometimes referred to as the “Judicial Election Plan”) provide that the five judges on the Baton Rouge City Court are to be elected from two election districts. Two judges are elected from Election Section 1, and three judges are elected from Election Section 2.

In his petition, plaintiff alleged that in 1993 when the Judicial Election Plan was first enacted, Election Section 1 contained a majority of black citizens and a majority of black voting age population, while Election Section 2 contained a majority of white citizens and a majority of white voting age population. However, plaintiff averred that the most recent United States Census data and records of the Louisiana Department of Elections and Registration show that significant demographic changes occurred in the election districts, with black population increasing in both election sections and white population declining in both election sections. Plaintiff alleged that the limitation of the number of judges in Election Section 1 to two judges unlawfully dilutes black voting strength, ^thereby resulting in a denial or abridgment of his right to vote.

In the petition, plaintiff sets forth four causes of action, all based on state law. In the first two causes of action, plaintiff charged that the Judicial Election Plan violated the principle of “one-person, one-vote,” which recognizes the right of all qualified citizens to vote and protects against the dilution of the weight of a citizen’s vote. See Louisiana Republican Party v. Foster, 96-0314, p. 8 (La.5/21/96), 674 So.2d 225, 230. Plaintiff claimed that the application of the current election system, in light of the changing demographics of the election districts, operated to prevent equalization or proportionality among the Baton Rouge City Court’s election districts. Therefore, he insisted, the Judicial Election Plan violated his right to vote, prohibited him from equally participating in the election process, and from electing judicial candidates of his choice in violation of the Equal Protection Clause of the Louisiana Constitution Article I, § 3 and state law. He charged that La. R.S. 13:1952(4)(b) and (c), which established the system for electing the Baton Rouge City Court judges, amounts to as a statutory voting rights provision that embodies the concept of one-person, one-vote.

In his third cause of action, plaintiff claimed that application of the Judicial Election Plan had the effect of disenfranchising black voters and thus discriminated against him because of his race, in violation of equal protection guarantee clause. La. Const, art. I, § 3. Specifically, he alleged that the current plan intentionally discriminated against black voters by reducing the black population and voting strength of Election Section 1 in order to prevent them from being able to elect other candidates of their choice, by failing to provide for or require the re-drawing of election districts over regular intervals, and by failing to take into account the ^demographic and voting changes in the city’s population. Plaintiff alleged that the State could have remedied the disparate impact on black voters in the City of Baton Rouge and salvage the plan by passing Louisiana House Bill 1013 in 2003 offered by minority members of the House of Representatives to reapportion the election districts to reflect population and voter gains or losses occurring since 1993. Plaintiff asserted that the State, through the Legislature, acted arbitrarily, capriciously and unreasonably, or engaged in invidious action by maintaining the current election plan despite awareness of the changing population in the City of Baton Rouge. Moreover, he alleged that he did not have to prove intentional discrimination to maintain a cause of action under Louisiana’s equal protection clause, but only had to demonstrate vote dilution or that the changes had a disparate impact upon him because of his race. In the final cause of action, plaintiff insisted that by failing to incorporate regular intervals for assessment and implementation of redistricting of the elective offices for the Baton Rouge City Court Judges, the State violated his due process rights protected by the Louisiana Constitution.

By way of relief, plaintiff sought a declaratory judgment determining that Judicial Election Plan is unlawful, null, and void because: (1) the State illegally uses outdated and or inaccurate census data to conduct Baton Rouge City Court judicial elections; (2) the plan illegally dilutes the voting rights of black voters in the City of Baton Rouge; (3) the plan illegally enforces and maintains malapportioned election districts; and (4) the plan violates due process and equal protection guarantees by failing to provide regular intervals to redistrict the judicial offices. Plaintiff asked that the court permanently enjoin the defendants from holding, supervising, or certifying any elections under the Louisiana Judicial Election Plan, set a deadline for authorities to enact and adopt a new redistricting | Rplan for all judicial offices of the Baton Rouge City Court, require the State to reassess and redraw the election sections no less than once every ten years, and order a redistricting plan for Election Sections 1 and 2 that did not dilute black voting strength or violate plaintiffs due process and equal protection rights in the event the State failed to adopt a plan by a deadline established by the court.

The defendants filed an exception of no cause of action, urging that the one-person, one-vote principle relied on by plaintiff in support of his vote dilution claims is not applicable in judicial elections. Thereafter, plaintiff filed a host of motions including, among others, a motion to dismiss the exception of no cause of action, a request for an evidentiary hearing on the exception of no cause of action, motions for expedited hearings and conferences, as well as numerous motions related to discovery requests.

Following a hearing on the motions, the trial court denied all of plaintiffs motions, but granted the defendants’ motion to vacate an order deeming certain facts admitted because of the defendants’ failure to file timely responses to a request for admissions of fact. Thereafter, the court granted the defendants’ exception of no cause of action, dismissing all of plaintiffs claims. This appeal, taken by plaintiff, followed.

DISCUSSION

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Ramey v. DeCaire, 2003-1299, p. 7 (La.3/19/04), 869 So.2d 114, 118. In the context of the peremptory exception, a cause of action is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Id. No evidence may be introduced to support or controvert the exception of no cause of | ^action. La. C.C.P. art. 931. Consequently, a court reviews the petition and accepts well-pleaded allegations of fact as true. The issue at the trial on the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Id.

This court reviews a judgment of the trial court pertaining to an exception of no cause of action de novo. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. Ramey, 2003-1299, at pp. 7-8, 869 So.2d at 119.

In this appeal, plaintiff insists that because census data has shown significant populations shifts in Election Sections 1 and 2, these sections must be redrawn based upon such changes in order to satisfy the one person, one vote requirement. In support of their claim that plaintiff does not have a cause of action, defendants cite federal jurisprudence holding that the principle of one-person, one-vote does not apply to judicial elections.

The principle of one-person, one-vote stems from the jurisprudence of the United States Supreme Court. In a long line of cases, the United States Supreme Court has held that a qualified voter has a constitutional right, under the 14th Amendment’s equal protection clause, to vote in elections without having his vote wrongfully denied, debased, or diluted. Hadley v. Junior College Dist. of Metropolitan Kansas City, Mo., 397 U.S. 50, 52-53, 90 S.Ct. 791, 793, 25 L.Ed.2d 45 (1970). In Hadley, the Supreme Court held that as a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the federal constitution’s equal protection clause requires that each qualified voter must be given an equal opportunity to participate in that election. Moreover, the Court stated, when members of an 17elected body are chosen from separate districts, each district must be established on an equal basis that will insure, as far as practicable, that equal numbers of voters can vote for proportionally equal numbers of officials. Hadley, 397 U.S. at 56, 90 S.Ct. at 795.

This principle has never been held to be required in any and all elections, but rather, has been applied only in national, state, and local elections of officials who exercise “governmental powers.” See Louisiana Republican Party, 96-0314 at p. 8, 674 So.2d at 230, and cases cited therein. The federal courts have squarely held that the concept of one-person, one-vote apportionment does not apply in judicial elections.

In Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972), aff'd, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973), a plaintiff sought an order compelling the Louisiana Legislature to enact a plan of apportionment of judicial districts in accordance with the one-person, one-vote principle. In holding that a plaintiff did not have a cause of action as a matter of law to challenge judicial elections on the basis of one-person, one-vote, the court observed that the primary purpose for the rule is to ensure that each official member of an elected body speaks for approximately the same number of constituents. However, the court stated that judges do not represent people, instead, they serve people. Moreover, the court stressed, a state’s judiciary, unlike its legislature, is not an organ responsible for achieving representative government. Wells, 347 F.Supp. at 455-456. The United States Supreme Court summarily affirmed the district court’s decision. Wells, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973).

Thereafter, in Chisom v. Roemer, 501 U.S. 380, 404, 111 S.Ct. 2354, 2368, 115 L.Ed.2d 348 (1991), the United States Supreme Court held that Section 2 of the Voting Rights Act, 42 U.S.C.A. § 1973, which prohibits voting practices | ¿resulting in a denial of the right to vote on account of race, applies to judicial elections. In so doing, the Court distinguished, but did not repudiate, the holding in Wells. Lower federal courts have subsequently ruled that Wells precludes any one-person, one-vote claim under the equal protection clause when challenging judicial elections. See Field v. Michigan, 255 F.Supp.2d 708, 711 (E.D. Mich.2003), and cases cited therein.

Plaintiff attempts to distinguish the Wells decision by asserting that the equal protection clause of Louisiana Constitution provides broader rights than the federal counterpart. It is true that the rights guaranteed under our state constitution are not always synonymous with federal constitutional rights. Med Exp. Ambulance Service, Inc. v. Evangeline Parish Police Jury, 96-0543, p. 9 (La.11/25/96), 684 So.2d 359, 366. However, we have found no circumstance in which a Louisiana court has interpreted the one-person, one-vote rule more broadly than the federal jurisprudence. Instead, in Louisiana Republican Party, 96-0314 at pp. 11-12, 647 So.2d. at 232, the Louisiana Supreme Court held that neither the United States nor the Louisiana Constitution required the application of the one-person, one-vote principle to the election of state central committee members. In so doing, the court made the same observations as the Wells court: committee members did not perform government functions and did not represent the people in the conduct of their government. Louisiana Republican Party, 96-0314 at p. 10, 657 So.2d at 231.

Similarly, we find nothing in the Louisiana Constitution that would mandate extension of the one-person, one-vote rule, a rule designed to promote proportionate equality among voters and elected officials, to judicial elections. Judicial officers are not representatives of the people, and the function of the judiciary is to administer the law, not to espouse the cause of a particular 13constituency. See Stokes v. Fortson, 234 F.Supp. 575, 577 (N.D.Ga.1964). Therefore, we conclude that plaintiff does not have a cause of action under Louisiana law to contest the election of judges to the Baton Rouge City Court on the basis of the one-person, one-vote principle, and find that the exception of no cause of action was properly granted as to all claims of vote dilution stemming from this challenge.

We next examine plaintiffs second cause of action based on his claim of racial discrimination. Plaintiff maintains he has consistently alleged in his pleadings that the defendants have engaged in purposeful, arbitrary, and invidious discrimination in allowing his vote to be diluted. He cites as an example of intentional discrimination the fact that legislation was introduced in 2003 to alter the current composition of the Baton Rouge City Court, but failed. Plaintiff insists that the failure of the legislature to pass the measures is itself arbitrary and capricious, and intended to foster invidious discrimination. Plaintiff also claims that to assert a cause of action under Louisiana’s equal protection clause based on racial discrimination, he need not show that the State intentionally discriminated against him, rather, he need only allege facts demonstrating vote dilution or that the election system has a “disparate impact” on him on the basis of race.

We disagree. The Louisiana constitutional guarantee of equal protection mandates that state laws affect alike all persons and interests similarly situated. State v. Baxley, 94-2982, p. 6 (La.5/22/95), 656 So.2d 973, 978. Louisiana Revised Statutes 13:1952(4)(b) and (c), which establish that the five Baton Rouge City Court judges will be elected from two election districts, is facially neutral, and does not discriminate against black voters on its face. Our courts have held that a challenger of a statute that does not classify bears the burden of proving that the statute was enacted for a discriminatory purpose. See Baxley, 94-0982 at p. 7 hnu. 12, 656 So.2d at 978 n. 12. The term “discriminatory purpose” implies more than intent as volition or intent as awareness of the consequences. It implies that the decision maker selected or reaffirmed a particular course of conduct at least in part because of, and not merely in spite of, its adverse effects upon an identifiable group. Baxley, 94-2982 at p. 7, 656 So.2d at 978. Disparate impact upon an identifiable group, while relevant, is not dispositive of the issue. That disparate impact must be traced to a discriminatory purpose to support a claim that a statute is unconstitutional under the equal protection clause. Id.

In the petition, plaintiff alleged that the continued application of La. R.S. 13:1952(4)(b) and (c) to the present-day elections for the Baton Rouge City Court judges discriminates against black voters on the basis of their race. The only factual allegations in the petition regarding this claim are that the State of Louisiana failed to modify the Judicial Election Plan when it became aware of the population changes in the City of Baton Rouge and the Legislature’s failure to pass a bill designed to alter the racial composition of the Baton Rouge City Court. Even accepting these allegations as true, the mere fact that the State failed to pass redistricting legislation in light of updated census data is insufficient to state a cause of action for purposeful discrimination. Therefore, we find the plaintiffs petition fails to state a cause of action for intentional racial discrimination under the equal protection clause.

Lastly, we find that plaintiffs petition fails to state a cause of action under the due process clause of the Louisiana Constitution Article I, § 2. To prevail on a due process claim, a plaintiff must show the existence of some property or liberty interest which has been adversely affected by state action. Johansen v. Louisiana High School Athletic Ass’n, 2004-0937, p. 7 (La.App. 1st Cir.6/29/05), 916 So.2d 1081, 1087. We have found no Louisiana case or statute giving a voter the | n right to demand that judicial election districts be reassessed and redrawn at regular intervals, and find that plaintiff has failed to allege facts sufficient to support his claim that his due process rights have been violated.

For these foregoing reasons, we find that the trial court correctly maintained defendants’ exception of no cause of action and dismissed this lawsuit in its entirety. Because of our resolution of this issue, it is unnecessary to address plaintiffs sixteen remaining assignments of error.

CONCLUSION

Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to plaintiff, Reverend Jerry Johnson, Sr.

AFFIRMED.

      . In a supplemental and amending petition, plaintiff averred that he was not asserting a cause of action under the Fourteenth Amendment to the United States Constitution. He also maintained that he was not seeking relief pursuant to Section 2 of the Voting Rights Act, 42 U.S.C. § 1973.

      . We note that generally, when the grounds of an objection pleaded by the peremptory exception may be removed by amendment of the petition, the plaintiff is afforded the right to amend the pleading. La. C.C.P. art. 934. Although the petition may have alleged facts supporting a cause of action under Section 2 of the Voting Rights Act, which does not require a showing of intentional discrimination, Chisom, 501 U.S. at 394, 111 S.Ct. at 2363, plaintiff has steadfastly maintained in this litigation that he has no desire to assert a claim under the federal voting rights act. Accordingly, we find that allowing plaintiff to amend the petition under these circumstances is not warranted.


author: DOWNING, J. PETTIGREW, J.,

text:
    JAMIE LAND CO., INC. v. Dolores Touchstone, Wife of/and Kermit ATWOOD.
    No. 2006 CA 2057.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.
    Rehearing Denied July 9, 2007.
    John A.E. Davidson, Mark Morovich Bonura, Metairie, Counsel for Plaintiff/Appellant Jamie Land Co., Inc.
    Vanessa C. LaFleur, Deborah L. Crain, Deidra LaNella Johnson, Baton Rouge, Counsel for Defendant/Appellee Louisiana Tax Commission.
    Gary Paul Duplechain, Slidell, Counsel for Defendants/Appellees Dolores Touchstone Atwood, Kermit Atwood, and St. Tammany Parish Assessor, Patricia Schwarz Core, Tax Assessor.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

|aJamie Land Co., Inc. (Land) brought an action against Dolores Touchstone, her husband Kermit Atwood, and the Louisiana Tax Commission (LTC), seeking to quiet title to property in St. Tammany Parish. Land acquired the property from a company that had bought it at a tax sale. Subsequently, the LTC annulled the tax sale. On cross motions for summary judgment, the trial court denied Land’s motion, granted the LTC’s motion, declared the tax sale null and void, and declared that title to the property rests with the At-woods. Judgment was signed accordingly.

Land appealed, alleging that the court disregarded La. Constitution Art. 7 § 25, which provides that no tax sale of property shall be set aside except on proof of payment of taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale. Land also alleges that the court erred in annulling its title absent a specific filing of a petition to annul the tax sale.

For the following reasons, we affirm the trial court judgment.

BACKGROUND AND PROCEDURAL HISTORY

The property in question is the Atwoods’ personal home. Prior to 1996 no tax had ever been assessed on the property due to their homestead exemption. In 1996 a tax bill assessment in the amount of $1.63 was sent to an obsolete rural route address. The Atwoods never received notice that taxes were due on the property even though they were still living on the property. The Assessor made no further effort to notify the Atwoods other than running an advertisement in the newspaper. The taxes remained unpaid. On June 24, 1997 the property was sold at a tax sale for the $1.63 taxes due, plus 10 cents interest and $125.00 in costs associated with the |3sale. The Atwoods were unaware the property had been sold, and they continued to reside there.

At some point the Atwoods discovered that the property had been sold at the tax sale. They notified the tax assessor, who arranged for the error to be cured as discussed below. On August 4, 2000, the LTC cancelled the tax sale pursuant to La. R.S. 39:351 and 47:1991. The LTC also directed the St. Tammany Parish Recorder of Mortgages to correct the mortgage records.

On August 9, 2000, just over three years after the tax sale, Land filed an action to confirm and quiet title to the property and to evict the Atwoods. On March 28, 2002, the LTC was added as a defendant. On opposing motions for summary judgment, the trial court ruled in favor of defendants and declared the tax sale null and void. Land appealed.

DISCUSSION

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Cressionnie v. Intrepid, Inc., 03-1714, p. 3 (La.App. 1 Cir. 5/14/04), 879 So.2d 736, 738.

Land argues in its first assignment of error that the Atwood’s right to redeem the property was lost once the three-year period following the tax sale recordation had lapsed. At that point, citing Meares v. Pioneer Production Corp., 382 So.2d 1009, 1017 (La.App. 3 Cir.1980), Land argues that a tax debtor’s only recourse is to file suit and attempt to annul the sale. Land further argues that the tax debtor is the proper party to bring an action to annul the tax sale and not the LTC.

| ¿First it is settled that a claim of absolute nullity can be raised as an affirmative defense. In Cressionnie, 03-1714 p. 4, 879 So.2d at 739, the court clearly ruled that when a tax purchaser sues to quiet title a tax title, that title is put at issue, and the former owner may avail himself of any defense sufficient to defeat the tax title.

Further, Louisiana law however, provides alternative procedures for annulling tax sales in certain circumstances. La. R.S. 47:1837(0) provides that the LTC shall make the necessary inspections, investigations, and studies for the adequate administration of its responsibilities. It specifically provides that in performance of these duties the tax commission shall authorize and direct the collector to correct the assessment on its rolls and the recorder of mortgages to change the inscription of tax mortgages pursuant to La. R.S. 39:351 and La. R.S. 47:1991.

Here, it is uncontradicted that the tax debtor did not receive notice of the tax sale due to an incorrect address even though the correct address was readily ascertainable.

|sDue process requires that the property owner be properly notified before property can be sold for taxes. If notice requirements are not followed, the sale is null and void, or an absolute nullity. See Lewis v. Succession of Johnson, 05-1192 (La.4/04/06), 925 So.2d 1172 and Drury v. Watkins, 546 So.2d 1280 (La.App. 1 Cir. 1989).

In Lewis the court recognized that the requirement that the tax collector take additional reasonable steps to notify a delinquent taxpayer is a longstanding principle and that the tax collector is required to use some diligence to make an effective service, and the failure to do so is fatal to the sale. Lewis, 05-1192 p. 8-9, 925 So.2d at 1177-78. In Drury the court ruled that when a notice is returned unclaimed, the tax official cannot sit back and do nothing, but has a duty to try to notify the property owner. Failure to do so makes the tax sale null and void. Drury, 546 So.2d at 1286.

Both Lewis and Drury rely on Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), in rendering the conclusions. In Mennonite, which was decided after the Meares decision, the U.S. Supreme Court declared that notice by mail or other means is a minimum constitutional precondition to a proceeding that will adversely affect liberty or property interest of any party. Id., 462 U.S. at 800, 103 S.Ct. 2706. The Court further ruled that posting a newspaper notice to the property owner, is not a reasonable means to send notice of a pending tax sale, and that personal service or mailed notice is constitutionally required if such is reasonably ascertainable. Id. at 462 U.S. at 799, 103 S.Ct. 2706.

In support of its arguments Land asserts that pursuant to La. R.S. 47:1991, the property owner, and not the LTC, is the rightful party to initiate this proceeding. Land also maintains that LTC had no such authority to cancel the tax sale without a hearing. Land further argues that the | (¡Assessor’s application to cancel the sale was deficient because there was no affidavit by the tax debtor.

As indicated above, however, La. R.S. 39:351 also provides a procedure by which the LTC can authorize the recorder of mortgages to cancel a sale. Here, based on the uncontradicted affidavits and evidence, the LTC made a determination that the employment of an obsolete address resulted in an erroneous assessment. The LTC then ordered the cancellation of the tax sale of the property. Whether the LTC was in compliance with La. R.S. 47:1991 is unimportant, because we conclude that the LTC did adequately comply with La. R.S. 39:351. Here, pursuant to its duties under La. R.S. 47:1837(C), the LTC made a determination, based on affidavits and other competent evidence that the employment of the Atwoods’ obsolete address resulted in an erroneous assessment. The LTC then ordered the cancellation of the tax sale and the correction of the records pursuant to the statute.

Land additionally contends that our Constitution does not provide for “cancellations” and that any “legislative creation” authorizing such a right is inconsistent with the Constitution. Land argues that a statute cannot lawfully authorize the cancellation of a tax sale once the three-year redemptive period has tolled.

In this regard, Article 7, Section 25 of the Louisiana Constitution, entitled Tax Sales, provides as follows in pertinent part:

(A) (1) There shall be no forfeiture of property for nonpayment of taxes. However, at the expiration of the year in which the taxes are due, the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property on which the taxes are due. ... A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.
⅜ ⅝ ⅜ ⅝ ⅝ ⅝
(B) Redemption. (1) The property sold shall be redeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, ....
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
(C) Annulment. No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale. A notice of sale shall not be served until the final day for redemption has ended. It must be served within five years after the date of the recordation of the tax deed if no notice is given. The fact that taxes were paid on a part of the property sold prior to the sale thereof, or that the part of the property was not subject to taxation, shall not be cause for annulling the sale of any part thereof on which the taxes for which it was sold were due and unpaid. No judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until ten percent per an-num interest on the amount of the price and taxes paid from date of respective payments are paid to the purchaser; however, this shall not apply to sales annulled because the taxes were paid prior to the date of sale.

As we discussed above, however, tax sales without notice to the tax debtor are absolute nullities. Lewis 05-1192, p. 22, 925 So.2d at 1184. Black’s Law Dictionary, (8th ed. p. 1098) defines “absolute nullity” as an act that is void because it is against law and cannot be cured. Our courts have defined an absolute nullity as “an act in a cause which the opposite party may treat as though it had not taken place, or which has absolutely no legal force or effect.” (Emphasis added.) Bordelon v. Medical Center of Baton Rouge, 03-0202, p. 6 n. 4 (La.10/21/03), 871 So.2d 1075, 1080 n. 4. The time limitations set forth in our Constitution do not affect a tax sale that was already an absolute nullity. The failure to adhere to the Mennonite due process requirements was fatal to this sale. Lewis, 05-1192, p. 10, 925 So.2d at 1178. Accordingly, since the tax sale was of no legal force or |seffect, there was nothing to nullify. Therefore, Art. 7 § 25 of the Louisiana Constitution is not implicated. Recognition of an absolute nullity is, definitionally, not the same as nullifying a sale.

Land next argues that its due process rights were violated when the LTC did not give it, the tax deed owner, notice before canceling the sale. We disagree. Land was not without remedy. While it argues that its due process rights were violated, it did exercise its right to due process by bringing this action to quiet title the property.

Accordingly, for the above reasons we conclude that the LTC did not err in finding that an incorrect address to the tax debtor resulted in an “erroneous assessment” and setting aside the tax sale. Further, the trial court did not err in declaring the tax sale null and void ab initio. Appellant’s assignments of errors are without merit. We therefore conclude that the trial court did not err in entering summary judgment dismissing the petition for the reasons stated and recognizing that the title of the subject property rests with the Atwoods.

DECREE

The trial court judgment is affirmed. All costs of this appeal are assessed to petitioner Jamie Land Co., Inc.

AFFIRMED.

PETTIGREW, J., dissents, and assigns reasons.

PETTIGREW, J.,

dissenting.

hi respectfully dissent from the majority-

I am of the humble opinion that the majority has misinterpreted La. R.S. 39:351 and La. R.S. 47:1991. Whatever power and authority is granted to the Louisiana Tax Commission (“LTC”) in these statutes is controlled by, limited by, and subservient to the authority granted in Louisiana Constitution art. VII § 25, dealing with Tax Sales.

The majority in its opinion refers to this case as being one of erroneous assessment. It is not. The issue in this case is one of alleged lack of notice by the taxpayer of an accurate tax assessment. Neither La. R.'S. 39:351 nor La. R.S. 47:1991 deals with lack of notice to the taxpayer. In fact, the statutes do not even mention the phrase “lack of notice of the taxpayer.”

Under paragraph B of Louisiana Constitution art. VII § 25, the property sold shall be redeemable for three years after the date of recordation of the tax sale. The article further states in subparagraph C, “No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale.” This article uses the phrase “shall,” which is mandatory. This article grants the sole power and authority to the courts to annul the sale after the redemption period has expired. Whether the taxpayer received notice of the assessment and whether the sale should be annulled is a function and power of the courts, not the LTC.

In my humble opinion, La. R.S. 39:351 and La. R.S. 47:1991 sets.up a procedure whereby the taxpayer, the assessor, and the LTC may correct an erroneous assessment, double assessment, or an assessment that is a clerical error. It gives the | ^taxpayer an opportunity to avoid being overassessed for his taxes on his property. Our case at hand does not raise such an issue. The taxpayer in this case questioned whether he was notified of the assessment. This could have been corrected by the assessor and the LTC if it had been done within the redemption period. However, once the time frame for the redemption period had expired, it is my opinion that it must be done by the courts in a suit to annul, whether in an original suit or a reconventional demand. Let us note that the last sentence of Louisiana Constitution art. YII § 25A(1) provides “A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.”

In my humble opinion, this case was a procedural nightmare. Jamie Land Co., Inc. (“Land”), through its original petition to confirm and quiet title to real estate; its first supplemental and amending petition; and its second supplemental and amending petition, made the following individuals and or entities defendants: Dolores Touchstone, wife ofiand Kermit Atwood (“At-woods”); the LTC; and Assessor for the Parish of St. Tammany (“Assessor”). The LTC answered, as did the Atwoods. The Atwoods, in their answer, raised the affirmative defense of lack of notice of the assessment and tax sale. I agree with the majority that a claim of absolute nullity can be raised as an affirmative defense. Cressionnie v. Intrepid, Inc., 2003-1714, p. 3 (La.App. 1 Cir. 5/14/04), 879 So.2d at 739. By virtue of their answer, the Atwoods have preserved their claim of absolute nullity of the tax sale. Subsequent to this, Land files a motion for summary judgment against the LTC and the Atwoods. The LTC files a motion for summary judgment against Land, based upon the lack of notice to the Atwoods. The Atwoods do not file their own motion for summary judgment based upon the lack of notice as required by Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). In fact, at the hearing on the motion for summary judgment, on December 20, 2005, the attorneys for the Atwoods specifically state “I am not actually involved in the motion for summary judgment, although I am supporting the position of the Tax Commission.” From a procedural standpoint, the only matters before the trial court was a summary judgment by Land against the LTC Land the Atwoods, and the summary judgment motion by the LTC against Land. Land was not entitled to summary judgment against the Atwoods because Land, in its own petition, admits the Atwoods did not get notice of the tax assessment and tax sale. The LTC is not entitled to summary judgment because once the redemption period (as provided in Article VII § 25B) passed, the LTC no longer had power and authority to cancel the tax sale and, therefore, had no standing. The only parties at this stage of the proceeding that had standing for the relief to cancel the tax sale are the Atwoods, and they had no pending motion. In my humble opinion, the majority’s decision would grant carte blanche authority to the LTC without notice to anyone else to cancel tax sales for the past 100 years. I would therefore reverse the trial court’s judgment in favor of the LTC and remand this matter to the trial court for further proceedings through either a trial on the merits and or by subsequent summary judgment motions, to determine the issue of notice or lack thereof to the Atwoods.

      . There is no evidence in the record indicating how the Atwoods learned of the tax sale.

      . La. R.S. 39:351, entitled Cancellation of Erroneous Assessments, provides the following:
      The Tax Commission, upon determination and notification to the parish or district collector of taxes that an assessment has been corrected, shall authorize and direct the recorder of mortgages of the appropriate parish or parishes to change the inscription of the tax mortgage. If property erroneously assessed has been sold for taxes and adjudicated to a third party, the Tax Commission shall authorize and direct the recorder of mortgages to cancel the sale. However, if the property has been bid for in adjudication to the state, the register of the state land office shall cancel the sale upon his records and direct the appropriate recorder of mortgages to cancel the act or deed of adjudication upon his records.

      . Louisiana Revised Statute 47:1991 entitled Cancellation of Erroneous Assessments, provides:
      A.Upon a statement of the facts made under oath, verified and approved by the assessor of the parish or district in which the property is situated, that the assessment is a clerical error, or an erroneous or double assessment, or that the property is exempt by the Louisiana Constitution from taxation, the affidavit being accompanied by the rendition made by the taxpayer on such property for the current year, where the affidavit explains the clerical error; shows in detail the erroneous assessment; and shows the assessment number in the double assessment; the Tax Commission shall authorize and direct the collector to correct the assessment on the roll on file in his office. Additionally, when such notification is issued, the Tax Commission shall authorize and direct the recorder of mortgages to change the inscription of the tax mortgage.
      B. * * *
      C. In case property erroneously assessed has been sold for taxes and adjudicated to a third party, the Tax Commission auditor shall authorize and direct the recorder of mortgages to cancel the sale.

      . We do not conclude that a purchaser of property at a tax sale can never assert ownership of property for which inadequate notice has been provided to the tax debtor. However, claims based on acquisitive prescription, when appropriate, or other legal bases, are not presented here. Therefore, we specifically do not analyze or decide such claims.


author: DOWNING, J.

text:
    Martin A. SMITH, Jr. v. Brian ALBRECHT, Chris Albrecht and Lyndel Blappert.
    No. 2006 CA 2072.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.

      David Anthony Dalia, New Orleans, Counsel for Appellants Brian Albrecht, Chris Albrecht and Lyndel Blappert.
    Lloyd R. Walters, Slidell, Counsel for Appellee Martin A. Smith, Jr.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

pBrian Albrecht, Chris Albrecht, and Lyndel Blappert, defendants-appellants, appeal a judgment in favor of Martin A. Smith, Jr., an attorney who had filed suit against them to recover attorney fees. The trial court entered judgment against the defendants, ordering them to pay Mr. Smith’s fees together with costs and attorney fees for prosecution of Mr. Smith’s claim. For the following reasons, we affirm the judgment insofar as it awards Mr. Smith his fee, but we reverse and vacate the judgment insofar as it awards attorney fees for the prosecution of Mr. Smith’s claim.

FACTS AND PROCEDURAL HISTORY

The defendants had hired Mr. Smith as their attorney in April 1997 to complete an act of sale and to convert the eight apartments on the purchased property into condominiums. They verbally agreed on a fixed fee of $3,000.00. Later in April, Mr. Smith’s title abstract revealed unacceptable restrictions that could make the title unmarketable. Mr. Smith attempted to cure this defect over the next several months, but was ultimately unsuccessful. In August 1997, Mr. Smith issued an opinion that title to the property was unmarketable.

The defendants then sought to cancel their offer of purchase with the seller, obtain a return of their deposit, and receive reimbursement for their costs and attorney fees. This dispute was settled by the seller refunding the defendants’ deposit, paying them the stated amount of Mr. Smith’s invoice — $2,994.00, and reimbursing certain costs.

Subsequently, in August 2000, Mr. Smith filed an action entitled “PETITION ON OPEN ACCOUNT ...” asserting that the defendants owed |smoney on an open account in the amount of $2,949.00 and praying for a judgment in this amount together with legal interest, costs, and attorney fees.

At the trial of the matter, the trial court awarded $2,949.00 as prayed for. It also awarded interests, costs, and attorney fees in the aggregate amount of $14,413.00 for prosecution of Mr. Smith’s claim against the defendants.

The defendants now appeal, asserting twelve assignments of error. The first five challenge the characterization of the defendants’ financial arrangement with Mr. Smith as being an open account. The sixth and twelfth assignments of error contain assertions that the amount of attorney fees awarded is unreasonable. The defendants claim in their seventh assignment of error that no relief can be awarded because open account is the only theory of relief Mr. Smith argued, and no relief can be granted under this theory. In their eighth and ninth assignments of error, defendants allege the trial court erred in awarding attorney fees for defense of their malpractice claim against Mr. Smith. In their tenth assignment of error, they allege the trial court erred in allowing testimony from another attorney which was subject to the attorney-client privilege. In their eleventh assignment of error, defendants assert that the trial court erred in allowing only one of the three defendants to participate in the trial.

DISCUSSION

We find merit in the defendants’ argument that their agreement with Mr. Smith was for a fixed fee for legal services and not for an open account. Accordingly, we vacate the awards of attorney fees in the amounts of | ¿$12,235.00 and $2,178.00, totaling $14,413.00 for prosecution of Mr. Smith’s claim for his fees. In all other respects we affirm the judgment.

Attorney Fees for Prosecution of Mr. Smith’s Claim

While open accounts can include debts incurred for professional services, see La. R.S. 9:2781 D, it does not follow that contracts for professional services are necessarily open accounts. As this court discussed in Signlite, Inc. v. Northshore Service Center, Inc., 05-2444, p. 5 (La.App. 1 Cir. 2/9/07), 959 So.2d 904, 907, our jurisprudence distinguishes between open accounts and conventional obligations. A conventional obligation is significantly different from an open account. While an open account is a contract, “[a]n ‘open account,’ ..., is an account in which a line of credit is running and is open to future modification because of expectations of prospective business dealings, and services are recurrently granted over a period of time.” Id.

Here, Mr. Smith testified that he verbally agreed to perform the agreed services for a fixed fee. Documentary evidence supports this understanding. Accordingly, while the trial court did not specifically find that an open account existed, it is apparent that it considered the matter to bej^on open account. The trial court was legally wrong in doing so. Therefore, Mr. Smith may not avail himself of La. R.S. 9:2781’s provisions for the recovery of attorney fees for the prosecution and collection of the defendants’ debt.

Under Louisiana law, attorney fees are not allowed except where authorized by statute or contract. Whiddon v. Livingston Parish Council, 04-1126, p. 5 (La.App. 1 Cir. 5/6/05), 915 So.2d 863, 866. Since there is no pertinent statute or any contract providing for the collection of attorney fees, such fees are not awardable here. Accordingly, we will reverse and vacate the judgment insofar as it awards attorney fees for the prosecution of Mr. Smith’s action against the defendants.

Mr. Smith’s Fee

The defendants argue that Mr. Smith is entitled to no fee because the only cause of action he asserts is one on open account. We disagree. “Louisiana remains a fact pleading state and ‘[n]o technical forms of pleading are required.’ La. C.C.P. art. 854[.]” (Other citations omitted.) Gulfstream Services, Inc. v. Hot Energy Services, Inc., 04-1223, p. 7 (La.App. 1 Cir. 3/24/05), 907 So.2d 96, 101, writ denied, 05-1064 (La.6/17/05), 904 So.2d 706. Thus, our threshold inquiry is whether Mr. Smith has pled or raised without objection a cognizable claim for his fees. See Id.

Within his claim on open account, Mr. Smith has consistently asked that he be paid the value of his services. While the defendants claim that they instructed him to stop work when the title defect appeared in April 1997, the trial court found otherwise. Based on the evidence in the record, this finding was not manifestly erroneous. Rather, the record shows that Mr. Smith continued to work diligently to cure the title defect through early August 1997, when he issued an opinion letter concluding that title to the ^subject property was unmarketable. The record shows continued contact between Mr. Smith and the defendants during this period. In its oral reasons, the trial court specifically found that “in an effort to accomplish the request of the clients, I believe that Mr. Smith acted reasonably in attempting to cure the title.” The trial court then found that all Mr. Smith’s actions were reasonable and that, among its other awards, his original invoice was due. It then awarded judgment in the amount of the invoice, $2,949.00.

The pleadings and evidence support a recovery for Mr. Smith in quantum meruit. Louisiana’s civil law recognizes the equitable doctrine of quantum meruit, based on the concept that one who benefits by the labor and materials of another should not be unjustly enriched thereby. Ricky’s Diesel Service, Inc. v. Pinell, 04-0202, p. 5 (La.App. 1 Cir. 2/11/05), 906 So.2d 536, 539. “Under those circumstances, the law implies a promise to pay a reasonable amount for the labor and materials furnished, even absent a specific contract therefor.” Id.

Here, the defendants have benefitted from Mr. Smith’s labor in that they learned the marketability of the property they wished to purchase. Moreover, his title opinion was the basis for the defendants’ recovery of their deposit, costs, and attorney fees, which they declined to pay to Mr. Smith. Accordingly, the trial court did not err in finding that all Mr. Smith’s actions were reasonable and that he was due the amount he billed, which amount was less than the agreed fixed fee. We will affirm the judgment fixing Mr. Smith’s fee at $2,949.00.

Because of our disposition of these matters, we pretermit discussion of the defendants’ other assignments of error. We note, however, that all parties have a fundamental right to participate in their trials.

j .DECREE

For the foregoing reasons, we reverse the judgment of the trial court insofar as it awards attorney fees for the prosecution of Mr. Smith’s claims in two separate awards of $12,235.00 and $2,178.00, totaling $14,413.00. In all other respects, we affirm the judgment of the trial court. Costs of this appeal are to be split, with the defendants paying one-half and Mr. Smith paying one-half.

REVERSED AND VACATED IN PART; AFFIRMED IN PART.

      . This sum does not reflect a $35.00 credit. Mr. Smith actually billed $2,949.00, the amount prayed for in the petition.

      . Also before us is the defendants' “Motion For Reconsideration Of Ex Parte Order." They ask us to reverse our order allowing a correction in Mr. Smith's brief to recognize that Mr. Brian Albrecht was designated as the "contact person" rather than the “contract attorney.” We deny this motion because the distinction is one in phraseology that makes no difference and has no bearing on our resolution of this matter.

      . Louisiana Revised Statutes 9:2781 provides as follows, in pertinent part:
      § 2781. Open accounts; attorney fees; professional fees; open account owed to the state
      A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debtor shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.
      D. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, "open account” includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. “Open account” shall include debts incurred for professional services, including but not limited to legal and medical services. For the purposes of this Section only, attorney fees shall be paid on open accounts owed to the state.