text:
    ST. JOSEPH LAND AND DEVELOPMENT COMPANY, Appellant, v. The FLORIDA STATE BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, Appellee.
    No. DD-467.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1979.
    Rehearing Denied Jan. 30, 1979.

      Fred H. Kent, Jr. of Kent, Sears, Durden & Kent, Jacksonville, for appellant.
    Jack Pierce and Wings S. Benton, Tallahassee, for appellee.
   BOYER, Judge.

Appellant, St. Joseph Land and Development Company, a Florida corporation, plaintiff below (hereinafter generally referred to as “St. Joseph”), filed an action for a declaratory judgment against the State of Florida Board of Trustees of Internal Improvement Trust Fund (hereinafter generally referred to as the “Trustees”), appellee, in Circuit Court in and for Gulf County, Florida. The Complaint, which was filed December 4, 1972, seeks a judgment “declaring the location of the boundary lines separating * * * the lands' owned” by St. Joseph and the adjacent submerged lands owned by the Trustees. The Complaint alleges that St. Joseph is the owner of the lands involved and has record title to those lands. St. Joseph further alleges in the Complaint that the descriptions used to convey title to both St. Joseph’s predecessors in title and to St. Joseph were based upon the plats of the original United States survey, including the acreages shown on those plats, and that it had been assessed and taxed on that amount of acreage for in excess of thirty years.

The Trustees filed an answer and an Amended Answer which denied the material allegations of the Complaint and affirmatively sought to dismiss the Complaint. An Order denying dismissal was entered by the Court on February 14, 1973.

The Trustees filed an interlocutory appeal to this court based upon the denial of its Motion to Dismiss. We upheld the Order of the lower Court. (State, etc. v. St. Joe Paper Co. et al, 280 So.2d 40 (Fla. 1st DCA 1973)) The Trustees then sought cer-tiorari in the Supreme Court which was denied. (State, etc. v. St. Joe Paper Co., 285 So.2d 27 (Fla.1973))

Prior to final hearing, St. Joe Paper Company and St. Joseph reached an agreement with the Trustees as to the location of the boundary line on all lands except:

N lh of fractional Section 1 and the N V2 of fractional Section 2, Township 9 South, Range 11 West
All of fractional Sections 23, 26 and 35 of Township 8 South, Range 11 West.

The Court entered its Final Judgment on August 4, 1976. The Settlement Agreement is included and incorporated therein. This is an appeal from that Final Judgment. Only St. Joseph’s land is involved and it is the sole appellant.

The subject land consists of three and one-half miles of waterfront fronting on St. Joseph Bay. Appellant has record title to those lands.

The north V2 of fractional section 1 and the north V2 of fractional section 2 were originally conveyed by the United States to the State of Florida as swamp and overflow lands. After a number of mesne conveyances, St. Joseph acquired title in 1936 and has been in peaceful possession since, having paid the taxes for at least thirty years. The balance of the lands (fractional sections 23, 26 and 35) were conveyed by patent prior to Florida becoming a state. After a number of mesne conveyances St. Joseph acquired title to those fractional sections in 1905 and has been in possession for almost seventy-two years, having paid the taxes for over thirty years.

The descriptions in the patents out of the United States adopt the plat of the United States surveys including the acreages shown on those plats. The description in the subsequent conveyance by the State of Florida also adopts the plat of the United States surveys and the acreages shown on those plats.

St. Joseph claims the number of acres which it purchased, and on which it has been taxed. The Trustees claim that portions of the low, flat, marshy coastal lands are below the mean high water line, and therefore, are owned by the State.

Appellant phrases the points at issue as follows:

I.
DOES ST. JOSEPH LAND AND DEVELOPMENT COMPANY HAVE A RIGHT TO AN ACCURATE DETERMINATION OF THE PRESENT BOUNDARY LINE WHICH SEPARATES ITS UPLANDS FROM THE ADJACENT SOVEREIGN LANDS OWNED BY THE FLORIDA STATE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT FUND?
II.
MUST THE FLORIDA STATE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND BEAR THE BURDEN OF PROVING THE LOCATION OF THE MEAN HIGH WATER WHEN THAT BOARD ASSERTS ITS TITLE TO WATERFRONT LANDS OWNED BY A PRIVATE LANDOWNER FOR OVER FORTY (40) YEARS?
III.
IS THE FLORIDA STATE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND EITHER ESTOPPED OR BARRED FROM CLAIMING LANDS TO WHICH ST. JOSEPH LAND AND DEVELOPMENT COMPANY HAS HAD RECORD TITLE FOR OVER FORTY (40) YEARS?

We will consider the points in the order presented.

We are of the view that, as a general proposition of law, St. Joseph’s first point should be answered in the affirmative, viz: That it does have a right to an accurate determination of the present boundary line which separates its uplands from the adjacent sovereign lands owned by the Trustees. However, under the particular facts of this case, we are not of the view that the learned trial judge erred in failing to make that determination.

In its complaint, St. Joseph affirmatively alleged:

“Defendants are the holders, in trust, of the title of the sovereignty lands adjacent to the lands [owned by St. Joseph] which lie below the mean high tide land.”

That allegation was specifically admitted in the Trustees’ answer. There was accordingly no issue but that the Trustees held in trust the title to the adjacent lands “below the mean high tide line.” In the final judgment here appealed, the trial judge held, resolving conflicting evidence on the issue, “that the line of mean high water can be established with a certain degree of reasonableness and that line of mean high water is the boundary line between the lands owned by the plaintiffs and those owned by the sovereign State of Florida.” St. Joseph takes exception to the qualifying phrase “with a certain degree of reasonableness”. However, upon considering the entire final judgment in the light of the evidence revealed by the record we do not hold the trial judge to be in error by having employed that phrase. We judicially know, as do all reasonable people, that few matters are susceptible of absolute certainty and exactitude. The determination of a fact, therefore, “with a certain degree of reasonableness”, particularly when the fact or matter is one to be proved by a preponderance of the evidence, is sufficient to withstand appellate criticism.

Nor may we hold, on the state of the record in this case, that the trial judge erred in not fixing a determinable course and distance survey line establishing the “mean high water” or “mean high tide” boundary separating the parties’ property. A trial judge (as well as an appellate court) is bound by, and restricted by, the evidence adduced by the parties. In the case sub judice, although the pretrial order refers to “plaintiffs’ survey of the mean high water line” no such survey appears in the record; therefore the trial judge was without evi-dentiary facts upon which to have based an exact course and distance boundary line. His determination that the dividing boundary line is the “mean high water line” is as definite as is permitted by the evidence adduced, and furnishes a sufficient basis for a surveyor to now describe same for future litigation, should such occur. Further, it is relevant to note, as pointed out in appellee’s brief, that the prayer of St. Joseph’s complaint did not request the determination of a course and distance survey line but only prayed for a judgment “declaring the location of the boundary lines separating the above described lands * * * The finding ir the final judgment, we hold, that the “line of mean high water is the boundary line between the lands owned by the plaintiffs and those owned by the sovereign State of Florida” is sufficient, under the circumstances of this particular case, to comply with the prayer of the complaint.

It was the thrust of St. Joseph’s argument in the trial court, and now here, that the meander line reflected on the original government survey must be determined to be the boundary line because, St. Joseph alleged in its complaint and later sought to prove, the mean high water line was impossible of determination. It later modified that position, admitting that the mean high water line was capable of being determined, but took the position that it would require a minimum of 18.6 years in which to do so and that under those circumstances the meander line should be the boundary. The record reveals that St. Joseph did indeed adduce substantial competent evidence in support of that position. However, there was other evidence to the contrary, sufficient to sustain the trial judge’s resolution of that issue.

St. Joseph has called to our attention an opinion of our Sister Court of Third District rendered subsequent to oral argument herein. Although we agree with St. Joseph that that opinion is excellently written and discusses many relevant cases, it is not dis-positive sub judice because of material differences (as reflected by the opinion itself) in issues made by the pleadings, factual distinctions, and physical evidence adduced. Further, a material difference is that in that case the appellate court affirmed the trial judge’s decision rendered on conflicting evidence, whereas we are here sought to reverse.

In summary, we affirm the holding of the trial judge that the mean high water line marks the boundaries between the properties owned by the parties and involved in this proceeding. Our affirmance should not be construed as a holding that appellant is not entitled to have the exact location of that line determined, but only that under the pleadings and proofs revealed by the record on appeal the learned trial judge did not err in failing so to do.

St. Joseph’s second point is not subject to an abstract affirmative or negative response. Instead, the answer depends upon the facts of the particular case. It depends, among other things, on where the burden of proof lies. As an example, were the Trustees attempting to eject St. Joseph from lands claimed by it then the Trustees, being the plaintiffs, would no doubt have the burden of proof, which may, depending upon the circumstances of the particular case, require proof of the location of the mean high water mark. However, sub judi-ce, it was St. Joseph which was the plaintiff and which had the burden of proof. The record on appeal simply reveals that it failed in that regard. Having failed to establish a prima facie case as to the location of the high water line, there was no burden upon the defendant Trustees so to do. The learned trial judge did not therefore err in that regard.

The trial court was concerned with the coastal boundary line of the subject lands owned by St. Joseph. There was no dispute in the lower court regarding the holder of record title to those lands. Rather the dispute focused on whether the coastal boundary would be located at the meander line or the mean high water line.

St. Joseph argues that the description of its lands may be determined by reference to the original government surveys and that under South Florida Farms Co. v. Goodno, 84 Fla. 532, 94 So. 672 (1922), the notes, lines, landmarks and other particulars become part of the patent or deed when lands are conveyed according to the plat of the original government survey: But appellant has apparently misconstrued the significance of the Goodno case insofar as it bears on the case sub judice. Actually that case supports the Trustees’ position by stating that:

“The rule of general application is that, where a patent to public land refers to the field notes and plats of an official survey, which field notes and plats show that the land is bounded by a permanent body of water, and that in making the official survey the waters were in fact faithfully meandered, the water line, and not the meander line, is in general the boundary. * * * But where an official survey meanders not a permanent body of water, but low marsh or similar lands that are adjacent to other lands being surveyed, the meander line is the boundary.” (94 So. at page 675)

St. Joseph’s land, evidence reveals, is bounded by a permanent body of water, St. Josephs Bay or Bay St. Joseph, an inlet of the Gulf of Mexico. The meander line is not a meandering of “impracticable saw-grass marsh” as in the Goodno case, but a meandering of a Gulf bay as a permanent water body. The conclusion to be drawn from the Goodno decision is that the mean high water line is the boundary of St. Joseph’s lands. St. Joseph does indeed have record title to the lands described, but the description and the particular topography limit St. Joseph’s record ownership to the mean high water line.

St. Joseph adds to its argument that it has marketable title to its lands under Chapter 712, Florida Statutes, and that the record shows no adverse claim of the Trustees. Whether St. Joseph has marketable record title to the fractional section lands described has no bearing on the question whether the coastal boundary is located at the meander line or mean high water line.

The question of precisely what portion of the subject lands are below the mean high water line was never really before the trial court nor seriously considered by it. St. Joseph did put on evidence to establish record title to certain coastal lands, but, as already observed, proof of record title to fractional sections which border on a permanent water body is not proof of title seaward of the mean high water line.

The Trustees presented evidence to prove that the mean high water line can be located and that the method for locating that line is not unreasonable to perform pursuant to Chapter 177, Part II, Florida Statutes, the Florida Coastal Mapping Act. The trial court necessarily disagreed with St. Joseph’s expert’s contention that it would take 18.6 years to determine the mean high water line. It was entitled so to do under the state of the evidence reflected by the record on appeal.

St. Joseph relies on Trustees of Internal Improvement Fund v. Wetstone, 222 So.2d 10 (Fla.1969), Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927), and Hardee v. Horton, 90 Fla. 452,108 So. 189 (1925) to suggest that a specific legal description of the mean high water line ought to have been established below, and that failing, that the meander line ought to have been held the proper boundary. However, as already observed above, the pleading issues of this case as well as the facts to be gleaned from the evidence simply renders the holdings of those cases inapplicable here.

Finally, St. Joseph contends that the Trustees are either estopped or barred from claiming lands to which St. Joseph has had record title for over forty years. The problem with that contention is that the record simply does not reflect that the Trustees are in fact claiming any lands to which St. Joseph has had record title.

St. Joseph seems to be arguing that the Trustees are legally estopped from claiming to the mean high water line rather than the meander line because a government survey at the time the land was conveyed to St. Joseph’s predecessor in title indicates the parcel contains a specific number of acres. However, a quantity of land indicated in a government survey cannot control the description since the general rule is that the mean high water line is the boundary even where a meander line is also given. This principle is well-stated in Connery v. Perdido Key, Inc., 270 So.2d 390 (Fla. 1st DC A 1973) wherein the court said:

“Where the original government land office plat shows a tract of land to have as its boundary a body of water, such water course is a natural monument which will constitute the boundary of the land, even if distant or variant from the position indicated for it by the meander line, and will control as a call of the survey over either distances or quantity of land designated in the conveyance or on the government plat. (270 So.2d at page 394)

The acreage based on the meander line is merely an estimate of the land involved and is seldom precise in a government survey. The meander line simply defines the sinuos-ities of the shoreline.

“Meander lines are run in surveying fractional portions of the public lands bordering on navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of land in the fraction subject to sale, which is to be paid for by the purchaser. * * * . . .the watercourse, and not the meander line as actually run on the land, is the boundary.” (270 So.2d at pages 393, 394)

The doctrine of legal estoppel may not be applied against the Trustees based only on the quantity of land recited in a survey attached to an earlier deed.

St. Joseph is correct in stating that the Florida Supreme Court has under various circumstances applied the doctrine of equitable estoppel against the State. However, in none of the cases relied upon by St. Joseph have the facts resembled the case sub judice. In three of the cases, government lands were erroneously conveyed to private parties, after which the private owners held the lands for substantial periods of time and paid taxes on them. (Daniell v. Sherrill, 48 So.2d 736 (Fla.1950); Trustees of Internal Improvement Fund v. Bass, 67 So.2d 433 (Fla.1953); Florida Board of Forestry v. Lindsay, 205 So.2d 358 (Fla. 2nd DCA 1967)). The record does not reveal, on the other hand, that St. Joseph holds title to any lands claimed by the state. The land described in St. Joseph’s deeds extends only to the mean high water line. Nor does Trustees of Internal Improvement Fund v. Claughton, 86 So.2d 775 (Fla.1956), give comfort in the present case. Equitable estoppel operated against the State in the Claughton case because the State had for many years acquiesced to the private ownership of a filled-in and developed tract of land. The land to which the Trustees claim ownership in the case sub judice is, however, only that land which is covered and uncovered by the tides, which has never been filled in or developed, and which the Trustees have always assumed they owned by virtue of its being below the mean high water line and which they have not heretofore conveyed.

Our above holdings renders it unnecessary to discuss the other arguments urged in the briefs. No further points having been presented for our consideration, the final judgment here appealed is

AFFIRMED.

McCORD, C. J., and MILLS, J., concur.

      . Plus, of course, any admitted or stipulated facts or matters of which the court may properly judicially take notice.

      . Florida Bd., etc. v. Wakulla Silver Springs, 362 So.2d 706 (Fla. 3rd DCA 1978).

      . We note, for instance, from page 712 of that opinion, that several surveys were introduced Into evidence before the trial judge in that case.

      .Must the Florida State Board of Trustees of the Internal Improvement Trust Fund bear the burden of proving the location of the mean high water when that Board asserts its title to waterfront lands owned by a private landowner for over forty (40) years?


source: Caselaw Access Project

author: BOYER, Acting Chief Judge. ERVIN, Judge,

license: Public Domain

text:
    SILVER SAND COMPANY OF LEESBURG, INC., Petitioner, v. DEPARTMENT OF REVENUE, Respondent.
    No. GG-33.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1979.
    Rehearing Denied Jan. 30, 1979.

      Stephen P. Kanar of Fishback, Davis, Dominick & Simonet, Orlando, for petitioner.
    Robert L. Shevin, Atty. Gen., Patricia S. Turner, Asst. Atty. Gen., for respondent.
   BOYER, Acting Chief Judge.

By way of petition for certiorari, Silver Sand Company of Leesburg, Inc. (Silver Sand) is seeking review of a final order of the Department of Revenue (Department) assessing against Silver Sand a special fuel tax in the amount of $154,644.50.

Silver Sand is in the aggregate business. Diesel fuel is used in its trucking operation and the State imposes a tax of eight cents per gallon on diesel fuel used on the highways. In 1973, fuel was ■ scarce. Silver Sand needed fuel. An individual, one Car-ruthers, representing Handy Haul-It Truck Rentals, Inc. (Handy Haul-It) told Silver Sand that his company could obtain the needed fuel. Carruthers requested Silver Sand to execute a purchaser’s blanket resale and exemption certificate made out to Radiant Oil Company (Radiant Oil), containing Silver Sand’s dealer license number. Carruthers obtained the certificate from Silver Sand and gave it to NCJ Investment Company (NCJ), a motor oil distributor. NCJ and Radiant Oil are separate entities. However, Joseph Capitano, the President of NCJ, is the son of the owner of Radiant Oil.

Although the exemption certificate was made out to Radiant Oil, Carruthers delivered it to NCJ and proceeded to purchase 1,753,027 gallons of fuel (tax free) from NCJ. NCJ made the invoices out to Silver Sand and Handy Haul-It paid for the fuel. NCJ did not make inquiry of anyone at Silver Sand as to Handy Haul-It’s authority to purchase fuel on Silver Sand’s behalf. Only 882,264 gallons of the fuel purchased by Handy Haul-It from NCJ was delivered to Silver Sand: The other was delivered to several other trucking companies. Silver Sand paid Handy Haul-It according to invoices delivered to it by Handy Haul-It. The invoices didn’t reflect separate itemiza-tions showing that motor fuel taxes were paid. Carruthers represented to Silver Sand that he would pay the taxes and the price paid for the fuel indicated that the price included the tax. Carruthers, on behalf of Handy Haul-It, never paid the Department any of the special fuel tax. (Car-ruthers is now incarcerated for his actions in similar cases relating to other persons.)

The Department assessed a tax against Silver Sand for all of the fuel purchased by Handy Haul-It, although Silver Sand only received 882,264 gallons of that fuel. Silver Sand requested and was given a hearing pursuant to F.S. 120.57. After a hearing, the hearing officer issued his findings of fact and recommended order, finding that Handy Haul-It was not a licensed distributor or dealer of motor fuels; that by agreeing to purchase diesel fuel from Handy Haul-It, Silver Sand authorized Handy Haul-It to obtain diesel fuel on behalf of Silver Sand, and therefore Handy Haul-It was Silver Sand’s agent for the purpose of obtaining fuel on behalf of Silver Sand; and that Handy Haul-It only had authority to purchase fuel for Silver Sand and when it purchased fuel for purposes other than delivery to Silver Sand, it exceeded the scope of its authority. The hearing officer recommended that the Department reduce the assessment against Silver Sand by the amount of tax due on the fuel not received by Silver Sand. The Department accepted certain portions of the hearing officer’s findings of fact, but certain paragraphs of the findings were deleted on the Department’s recommendation that the statements were not findings of fact but conclusions of law. The Department’s substituted final order rules that Handy Haul-It had actual authority to buy all the fuel under the tax exempt certificate and similar apparent authority, and assesses against Silver Sand the full amount of the tax.

The State requires a tax on every sale of special fuel used on the highways. This tax must be remitted to the Department by the selling dealer at the time of the first sale or transfer of title unless a dealer purchases the special fuel. If a dealer purchases the special fuel, he then becomes responsible for collecting and paying the tax. The selling dealer must establish the exempt status of the purchasing dealer by obtaining from the purchasing dealer an exemption certificate containing the name, address, and license number of the purchasing dealer and establishing that the special fuel was purchased for resale. If the purchasing dealer uses special fuel for taxable and nontaxable purposes, the purchasing dealer must furnish a resale certificate to the Department covering all purchases and must then remit the special fuel tax to the Department on special fuel used for nonexempt purposes.

The first error alleged by Silver Sand is that in a proceeding under F.S. 120.57, the Department may not change the findings of fact rendered by the hearing officer and call the change a deletion of legal conclusions. Initially, we note that the findings of fact in question rendered by the hearing officer concerned factual matters and not legal conclusions as characterized by the Department. Indeed, certain portions of the hearing officer’s findings of fact (which portions the Department characterized as legal conclusions) specifically concern matters which the Department, in a pretrial stipulation, stipulated as issues of fact to be determined by the hearing officer. It was error for the Department to delete the hearing officer’s findings of fact and substitute its own findings of fact therefor without stating that the hearing officer’s findings were “not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law” as required by Section 120.-57(l)(b)(9), Florida Statutes 1975. (Campbell v. State, Department of Transportation, 326 So.2d 66 (Fla. 4th DCA 1976).) The Department may not characterize findings of fact as legal conclusions so that it may avoid the requirements of the statute.

The second error alleged by Silver Sand is that the Department, in its final order, applied a statute and an administrative rule enacted after the subject tax liability was assessed. The record sustains that allegation. That error materially affects the legality of the Department’s order.

In its final order, the Department placed the tax liability on Silver Sand based in part on the supposition that since NCJ had a certificate authorizing tax exempt sales, Silver Sand was obligated to pay the tax because Handy Haul-It was not a dealer. In that regard, we quote the following portions of the Department’s final order:

“A ‘dealer’ is defined as ‘any person who holds a valid dealer of special fuel license issued by the Department [Department of Revenue]’ and who deals in special fuels in certain specified manners including the purchase of special fuels in bulk quantities for resale to other dealers. Florida Statutes, § 206.86(8). Dealers are permitted to purchase special fuel without paying the tax, even though they are the first purchaser within the state. Florida Statutes, § 206.87(2). Under these circumstances, the purchasing dealer becomes the state’s agent for the purpose of collecting and paying the tax. Florida Statutes, § 206.87(2), (3). The Rules of the Department of Revenue imposed upon a selling dealer the responsibility of either collecting the tax, or establishing the exempt status of the transaction. Rule 12A-2.03(1) provides in pertinent part:
‘. . . The exempt status of the transaction must be established by the distributor or dealer. Unless the distributor or dealer has obtained from the purchaser a resale or exemption certificate, the sales invoice, with re-speet to any sale for which exemption is claimed, must show the exempt purpose for which the special fuel was not placed into the receptacle connected to the fuel supply system of a motor vehicle. Any dealer of special fuel . who obtains from his purchaser a resale or exemption certificate and, in good faith, sells special fuel to such purchaser tax free shall hot be required to collect from the purchaser any tax levied by Chapter 206 . . . ’
“A purchasing dealer is required to deliver a resale certificate to the selling dealer. Otherwise, the selling dealer is required to collect the tax.”

The Department concluded that Handy Haul-It was not a dealer because it did not hold a special fuel license issued by the Department of Revenue as required by Section 206.86(8), Florida Statutes 1975. That statute defines a dealer as “any person who holds a valid dealer or special fuels license issued by the [Department of Revenue] .”. Therefore the Department reasoned that Silver Sand became the purchasing dealer and the state’s agent for the purpose of collecting and paying the tax. According to the Department, Handy Haul-It was merely the agent of Silver Sand, possessing the apparent and actual authority to act for Silver Sand. However, the events leading to the tax liability in this case occurred between April and December, 1973. Under the definition contained in Section 206.86(8), Florida Statutes 1973, there is no requirement that a dealer have a license issued from the Department.

Also, in the final order, the Department, citing Department of Revenue Rule 12A-203(1), found that NCJ had no tax liability since a dealer who obtains from a purchaser a resale exemption certificate and in good faith sells special fuel to such purchaser tax free cannot be required to collect from the purchaser any tax levied by Chapter 206. However, that rule went into effect in April, 1976. The rule as it existed in 1973 provided:

“Unless the distributor or dealer shall have taken from the purchaser a certificate to the effect that the motor fuel or special fuel was purchased for resale and bears the name and address of the purchaser and the number of his distributor or dealer’s license, the sale shall be deemed taxable.”

Silver Sand contends that the proper application of the 1973 law results in the conclusion that Handy Haul-It was a dealer. Pursuant to Section 206.87(1) and (2), Florida Statutes 1973, and the applicable regulations, if the selling dealer established the tax exempt status of the sale by obtaining from the purchaser a resale exemption certificate, then the dealer who purchased the special fuel without the tax imposed was required to pay the tax on the special fuel used or sold by him and to act as the agent of the State for the collection and payment of the tax. Therefore, Silver Sand contends that the tax liability should have been placed on the dealer who purchased the fuel, Handy Haul-It, because Handy Haul-It was a dealer under the 1973 Statute. Alternatively, Silver Sand contends that the proper application of the 1973 regulation requires the selling dealer (NCJ) to have a certificate addressed to it or the transaction will lose its tax exempt status. Since the hearing officer found that NCJ did not have a certificate of bulk resale addressed to it, Silver Sand contends that NCJ was responsible for paying the tax.

The Department argues that the application of the wrong statute was not material, but it does not, under its discussion of this point, show how application of the 1973 statute results in tax liability on Silver Sand. The Department admits that it cited a 1976 Revenue Rule but contends that the Rule effective during 1973 was not as stringent as the 1976 rule since the prior rule did not require a good faith sale, but only the acceptance of a certificate containing the purchaser’s special fuel tax exempt number. We are not persuaded by the Department’s argument. First, and most important, the exemption certificate was not addressed to NCJ but to Radiant Oil. It is an implausible conclusion that NCJ, even in good faith, could have relied upon the exemption certificate when the exemption certificate was made out to Radiant Oil and in fact contained the name, address and dealer license number of Silver Sand and no information pertinent to the dealer, Handy Haul-It, who actually purchased the fuel.

In its third point, Silver Sand contends the Department erred when it charged Silver Sand a tax on special fuel which Silver Sand did not receive.

The hearing officer found that Handy Haul-It was without actual authority to purchase the fuel under Silver Sand’s tax exemption certificate to sell to others. He found that NCJ had no right to rely upon the tax exempt certificate and the statements by Carruthers of Handy Haul-It as to the extent of his authority, but instead should have made inquiry of Silver Sand or should have sent copies of the invoices to Silver Sand or otherwise done something to determine the extent of the authority of Carruthers and Handy Haul-It. However, the Department deleted those findings and concluded that the facts show Handy Haul-It was the agent of Silver Sand possessing the actual and apparent authority to buy fuel using Silver Sand’s exemption certificate and to sell that fuel to others and that NCJ had the right to rely upon the certificate given to it by Handy Haul-It. The Department made those conclusions, even though the certificate was made out to Radiant Oil and not to NCJ, sales of 2,000,000 gallons of fuel took place without notification to Silver Sand, bad checks were received from Handy Haul-It and were not charged to Silver Sand but rather to Handy Haul-It, and even though NCJ did not fill out its sales invoices in accordance with the requirement of the administrative regulations (the regulations require that NCJ put the tax exempt number on the invoices). We agree with Silver Sand that nothing in Florida law justifies the result reached by the Department.

In support of its contention that NCJ justifiably relied on the tax exemption certificate signed by Silver Sand and is relieved from the tax liability, the Department cited Motorola, Inc. v. Green, 130 So.2d 65 (Fla.1961) which states:

“ * * * if a dealer is delivered a resale certificate properly identified by the Comptroller’s registration number, and he receives it in good faith, he can proceed to deal with the purchaser. He can assume that he has thereby been excused from what otherwise might be a responsibility to collect the tax. * * * We have the view that in so doing he can safely rely on the Comptroller’s designation of the purchaser who executes such a certificate as the one authorized to collect the tax for the State.” (130 So.2d at page 68.)

However, that case is distinguishable. In the Motorola case, the dealer to whom Motorola sold the advertising material was the dealer who provided Motorola with its resale certificate. In this case, the resale exemption certificate was made out to Radiant Oil and executed by Silver Sand, who was not the purchasing dealer. Handy Haul-It was the purchasing dealer.

We are not persuaded that Handy Haul-It acted as Silver Sand’s agent with either actual or apparent authority to buy fuel using Silver Sand’s exemption certificate and sell it to others under the principles of agency announced in Taco Bell of California v. Zappone, 324 So.2d 121 (Fla. 2nd DCA 1976). There is no evidence in this case that Handy Haul-It had the actual authority to purchase the fuel under Silver Sand’s tax exemption certificate and sell it to others. Nor is there any evidence that Handy Haul-It had the apparent authority to purchase the fuel which was delivered to the several other trucking companies since Silver Sand never allowed or caused others to believe that Handy Haul-It had such authority nor did Silver Sand hold Handy Haul-It out as possessing that authority.

As its fourth and final points, Silver Sand contends that it cannot be charged a second time for a tax which it has already paid on fuel received. Concerning this point we quote the following portions of the hearing officer’s findings of fact and conclusions of law:

“882,264 gallons of the special fuel purchased by Handy Haul-It from NCJ was delivered to Silver Sand. This fuel was delivered either in Handy Haul-It’s own truck, or in a truck hired by Handy Haul-It. Silver Sand paid Handy Haul-It directly by check when it received each of the deliveries. Handy Haul-It delivered invoices to Silver Sand. The invoices do not reflect a separate itemization showing that motor fuel taxes were paid. The price paid for the fuel would indicate that the price included the tax. Carruthers represented to officials at Silver Sand that the price included the tax, and that he would pay the taxes.
“5. * * * The law permits a purchaser such as Silver Sand to assure itself that the taxes are included in the price by demanding that the amount of taxes be separately stated on all invoices as is required by Florida Statutes § 206.49. Silver Sand took no steps to assure itself of Handy Haul-It’s, or Carruthers’ veracity or status. Silver Sand was not justified in relying upon Carruthers’ statements that the price included taxes because it took no steps to assure itself as to Car-ruthers and Handy Haul-It’s status, and because the easy remedy set out in § 206.49 was not utilized.
“6. Silver Sand is liable for special fuel taxes on 882,264 gallons of special fuel which it impliedly authorized Handy Haul-It to obtain on its behalf, and which it purchased from Handy Haul-It. Silver Sand is not responsible for the special fuel tax on fuel purchased by Handy Haul-It from NCJ which Handy Haul-It did not deliver to Silver Sand. Handy Haul-It did not have the real authority to make such purchases, and Silver Sand gave Handy Haul-It only the apparent authority to make such purchases from Radiant Oil Company, not from NCJ.”

We must disagree with the hearing officer that the evidence sustains a finding that Handy Haul-It was impliedly authorized to obtain the 882,264 gallons of special fuel on Silver Sand’s behalf. Silver Sand only authorized Handy Haul-It to purchase fuel from Radiant Oil not NCJ.

In any event, the hearing officer did find that Silver Sand paid the tax. F.S. 206.23, 206.49 and 206.87(3) do require that an invoice for sale of special fuel state the special fuel tax as a separate item on the invoice. Those statutes state as follows:

“206.23 Tax; must be stated separately. —Distributors shall add the amount of the gas tax to the price of the motor fuel sold by them and shall state the rate of the tax separately from the price of the motor fuel on all invoices. However, this section shall not apply to retail sales by a retail service station.”
“206.49 Invoice to show whether or not tax paid. — Each distributor, when selling to any other distributor any of the products' taxed under this part, shall render an invoice of such sale to the purchaser, and upon such invoice the distributor rendering such invoice shall plainly state thereon whether or not the tax required will be reported and paid by him, and the purchaser buying and receiving such products may fully rely upon the statement made in such invoice.”
“206.87(3) Upon payment or lawful assumption of the tax by the dealer, the amount of tax paid or assumed shall be added to the sale price of the product sold, and the amount of the tax shall be stated separately from the price of the product on all price display slips, bills, or statements which indicate the price of the product. The delivery of the product sold shall be deemed to be made at the point of destination.” (Florida Statutes 1973)

None of the statutes state what the effect will be if the tax is not separately stated. In fact, under the Statutes, it is the dealer (in this case, Handy Haul-It) who was responsible for separately stating the tax on the invoice. The statutes do not make it Silver Sand’s responsibility to separately state the tax before it pays for the special fuel nor do the statutes say that the tax must be separately stated before the fuel is paid for nor that Silver Sand will be required to pay the tax a seeond time if the tax is not separately stated on the invoice. We. agree with petitioner that the purpose of requiring that the tax be separately stated is for the protection of the purchaser so that the purchaser may prove that he has paid the tax. However, we also agree that separately stating the tax on the amount of the invoice is not the sole means of establishing that a purchaser has paid the tax. Since Silver Sand proved that it paid the tax, we hold that the tax cannot be imposed upon it again even though the tax was not separately stated on the invoice.

Petitioner filed a motion for attorney’s fees pursuant to F.S. 120.57(l)(b)(9). Each case coming before an appellate court of Florida is required to be considered by a panel of three judges and the concurrence of two is necessary to a decision. (See Article V, Section 4(a) of the Constitution of the State of Florida) Cases are confer-enced among the judges comprising the panel before an opinion is prepared. (See Boyer, Appellate Mystique, Vol. 51, No. 8, The Florida Bar Journal, October 1977) So it is that prior to release of an opinion for publication each judge of the panel is acquainted with the views of the others on each issue involved in the case. As to the issue relating to attorney’s fees sub judice, the author of this opinion is of the view that they are appropriate and should be granted; but the other two judges, comprising a majority, are of the view that the motion for fees should be denied.

Accordingly, certiorari is granted and the order here reviewed is reversed. Petitioner’s motion for attorney’s fees is denied.

MILLS, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

I respectfully dissent and would affirm DOR’s order imposing the special fuel tax assessment. It is clear the hearing officer’s recommended order contained legal conclusions in the treatment of the facts which were properly treated as conclusions of law in the Department’s final order. The recommended order included the following findings: (1) Handy Haul-It was Silver Sand’s agent for the purpose of purchasing fuel for Silver Sand; (2) Handy Haul-It had neither actual nor apparent authority to purchase fuel for purposes other than sale to Silver Sand; (3) NCJ Investment Company was not entitled to rely on the exemption certificate since it was back dated and addressed to Radiant Oil; (4) NCJ should have contacted Silver Sand instead of relying on Handy Haul-It to correctly represent its authority. Clearly, DOR took what were legal conclusions, interpreted the legal significance of the same factual background and concluded that NCJ could rely on the exemption certificate and that Handy Haul-It had apparent and actual authority to purchase all of the fuel. Findings regarding the extent of an agency relationship are not findings of fact.

It is true the hearing officer and DOR erroneously applied the wrong statutes and regulations to this case. I agree, however, with DOR that the error was not material. The majority finds a material difference between the statutes of 1973 and 1975 since the definition of “dealer” in the earlier, applicable statute does not require that dealers have a license issued by the Department of Revenue. The majority concludes that Handy Haul-It is a dealer and responsible for the special fuel taxes (notwithstanding that Handy Haul-It was obviously aware it could not obtain the fuel tax-free without an exemption certificate bearing a dealer’s license number). I disagree strongly that the legislature manifested an intent in 1973 that anyone act as a dealer who was not licensed. For example, § 206.89(1), Fla. Stat. (1973), states: “No person shall act as a dealer unless he holds a valid dealer’s license issued by the department.” Additionally, § 206.86(9), Fla.Stat. (1973), as does the definition under the 1975 statute, defines duly licensed dealer as “any dealer holding a valid license issued by the department.” Ch. 206, Fla.Stat. (1973), does not, other than in the definition, make any distinction between “dealer” and “duly authorized dealer.” Thus it would appear that in both the 1973 and 1975 statutes it was intended that “dealer” be synonymous with “licensed dealer.”

Similarly, there is no material difference between the regulation applicable to this cause and that adopted subsequently and cited by DOR in its final order. Both establish that a selling distributor must have an exemption certificate before it can sell fuel free from tax liability. As DOR argues, the newer regulation may be construed more strictly against the distributor since it states the distributor must obtain the exemption certificate and “in good faith” sell to his purchaser. The Department’s interpretation of the regulation is within its range of discretion, and we are not allowed to substitute our interpretation under the circumstances. Section 120.68(12).


author: BOYER, Judge.

text:
    CITY OF JACKSONVILLE, Florida, Appellant, v. JACKSONVILLE ASSOCIATION OF FIRE FIGHTERS, IAFF, LOCAL NO. 1834, and Public Employees Relations Commission, Appellees.
    No. JJ-438.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1979.
    Dawson A. McQuaig, William Lee Allen and Donald R. Hazouri, Jacksonville, for appellant.
    Rodney W. Smith, of Smith & Johnson, Gainesville, for appellee, Jacksonville Association of Fire Fighters, IAFF, Local No. 1834.
    Bruce A. Leinback, Tallahassee, for ap-pellee, Public Employees Relations Commission.
   BOYER, Judge.

The City appeals a final order rendered by the Public Employees Relations Commission (PERC) determining that captains and lieutenants employed by the Jacksonville Fire Department are not managerial employees within the meaning of F.S. 447.-203(4).

We agree and affirm PERC’s order.

For an employee to be considered a managerial employee, his job functions must meet the criteria set forth in F.S. 447.203(4) which states:

“(4) ‘Managerial employees’ are those employees who:
“(a) Perform jobs that are not of a routine, clerical, or ministerial nature and require the exercise of independent judgment in the performance of such jobs, and [who also]:
“1. Formulate or assist in formulating policies which are applicable to bargaining unit employees;
“2. May reasonably be required on behalf of the employer to assist in the preparation for the conduct of collective bargaining negotiations;
“3. Have a role in the administration of agreements resulting from collective bargaining negotiations;
“4. Have a significant role in personnel administration;
“5. Have a significant role in employee relations;
“6. Are included in the definition of administrative personnel contained in s. 228.041(10), except that collective bargaining contracts entered into prior to the effective date of this law shall remain in effect for the period of such contracts, and, upon the expiration of these existing contracts, the provisions of this subpara-graph shall apply; or “7. Have a significant role in the preparation and administration of budgets for any public agency or institution or subdivision thereof.
“(b) Serve as police chiefs, fire chiefs, or directors of public safety of any police, fire, or public safety department. Other police officers, as defined in s. 943.10(1), and firefighters, as defined in s. 633.30(1), may be determined by the commission to be managerial employees of such departments. In making such determinations, the commission shall consider, in addition to the criteria established in paragraph
(a), the paramilitary organizational structure of the department involved. “However, in determining whether an individual is a managerial employee pursuant to either paragraph (a) or paragraph
(b), above, the commission may consider historic relationships of the employee to the public employer and coemployees.”

The record in this case amply supports PERC’s conclusion that captains and lieutenants employed by the Jacksonville Fire Department are not managerial employees. In that regard we quote relevant portions of PERC’s order:

“It is clear that captains and lieutenants perform duties which require the exercise of some independent judgment. The ex-tinguishment of fire, emergency medical treatment, rescue in emergency, and the inspection of buildings for fire hazards all require the employment of some discretion. However, analysis of the managerial status of an employee only begins if it is found that independent judgment is employed by the employee whose duties are at issue. It must also be shown that the employee performs at least one of the duties which fall within the ambit of the criteria listed in subparagraphs 1 through 7 of paragraph (a) of the statutory definition. In the case of fire fighting personnel, consideration must also be given to paragraph (b) of the definition. In this particular fact situation there is no doubt that the bulk of the City’s captains and lieutenants serve as what are typically denominated in a paramilitary fire department organization as ‘company officers.’ However, the ‘command’ duties of company officers must be considered in light of the nature of the paramilitary organization involved.
“The organization of the City of Jacksonville Fire Department is such that the captains and lieutenants herein involved do not fall within any of the categories of personnel described in subparagraphs 1 through 7 of paragraph (a) of the statutory definition of managerial employees. The captains and lieutenants herein derive their authority from their functions as ‘company officers.’ These company officers perform various ministerial and routine functions, have the authority to recommend certain actions, and have certain responsibilities at a combat or emergency scene until relieved by a higher ranking fire department officer (Battalion Chief or Deputy Chief). Although company officers undoubtedly enjoy the support of what may be termed ‘managerial’ officers of the fire department, they do not occupy positions in a paramilitary organization which would clearly and convincingly clothe them with the managerial authority and responsibility required to exclude them from the collective bargaining process.
“No discretion of the kind envisioned by Chapter 447 as managerial discretion is allotted to these captains and lieutenants. They must obey orders and must function as fire fighters with other fire fighters in their unit at the fire or emergency scene. “In accordance with the above-stated rationale the Commission has considered the fact that the City fire department is organized in a paramilitary fashion, and that the role of the company officers in that department is the one which is customary for such officers to play in paramilitary organizations.
“Policy originates with the Fire Chief. Uniform control of the limited mission requirements of the department requires centralized policy as to that mission. The evidence discloses that company officers play no role in the formulation of policy. Likewise, there is no evidence that company officers will be required to assist in the preparation for or conduct of collective bargaining negotiations. Furthermore, there is no evidence that company officers play any role in the preparation or administration of the department’s budget.
“The role of company officers in personnel administration and employee relations is closely circumscribed by the paramilitary organizational structure and by the Civil Service Board of Jacksonville.
“The independent judgment of company officers is exercised in furtherance of the organizational objective, which is the ex-tinguishment of fires and the rescue of victims. Company officers have limited discretion, within standing orders, to direct the members of their unit to perform requisite duties at the fire scene and at the fire station in training for the fire scene. But their discretion does not extend to labor-management or employee relations as such relations are customarily defined. Company officers do not assign personnel to their company. While they may recommend that a private in their company be transferred, the decision to assign or transfer is made by an Assistant Chief. Company officers have no authority to hire or fire employees. While they may recommend discipline, all discipline other than ‘minor discipline’ must be approved by a chief.officer.
“The Civil Service Board is responsible for the administration of promotional examinations. No periodic evaluation system exists except for probationary employees. Although company officers do evaluate probationary employees, they do not evaluate permanent employees.
“The evidence discloses that company officers perform limited supervisory duties. The supervisory duties are overseeing training; initial approval or disapproval of leave and transfer requests prior to processing such requests through the chain of command for final approval; command of a fire scene until relieved by a superior, which occurs at virtually all fires; and service as the first step in the grievance procedure, a step which is basically ministerial.
“These limited supervisory duties do not constitute a significant role in personnel administration or employee relations. Concerning service as first step in the grievance procedure, the Commission has held:
“ ‘To hold that this constitutes a role in the administration of the collective bargaining agreement would effectively exclude all supervisors, who act as the first step in a grievance procedure, from collective bargaining. The Legislature did not mandate such a result. Had the Legislature intended to exclude these lower level supervisory employees it could have done so by explicitly excluding “supervisors” from collective bargaining . . . ’
‘Clearwater Fire Fighters Assn, and City of Clearwater, supra.’ ” [3 FPER 240 (1977)]

Concerning the City’s appeal of PERC’s order rendered February 4, 1976, allowing a self-determination election to be held by secret ballot among the lieutenants and captains of the Jacksonville Fire Department, the results of which decided whether the officers should be included in a unit with privates, comprise a separate unit, or reject representation in any unit, we affirm. (City of Winter Park v. Florida Public Employees Relations Commission, 349 So.2d 224 (Fla. 4th DCA 1977))

Accordingly, PERC’s orders no. 76E-768 and 78E-124 are affirmed.

IT IS SO ORDERED.

McCORD, C. J. and MELVIN, J., concur.


author: PER CURIAM.

text:
    Ricky HELTON, Appellant, v. STATE of Florida, Appellee.
    No. JJ-85.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1979.
    Michael J. Minerva, Public Defender, and Janice G. Scott and John D. C. Newton, II, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Ricky Helton appeals from a conviction for sexual battery with force likely to cause serious personal injury on the grounds that testimony concerning another offense violated the rule set forth in Williams v. State, 110 So.2d 654 (Fla.1959). We agree and reverse.

The alleged victim of the crime charged testified that she was abducted and taken to a wooded area. There Helton hit her, choked her, threw her to the ground and forced her to perform various sexual acts. Subsequently, she was able to get away and she ran out to the highway nude and was picked up by a passing motorist.

At trial another woman was allowed to testify, over objection of the defense, to an alleged attempted sexual battery involving the appellant at another time. Helton had been tried on that charge and had been convicted of simple battery. She stated that she knew appellant and he had asked her for a ride home from work. He directed her to a wooded area and then grabbed the keys out of the car and told her that he was going to rape her. They struggled, he pushed her out of the car, and she began screaming. He then pushed her to the ground, sat on her, and, when she refused to take off her pants, ripped them off. After he pulled her to her feet, he pushed her away and said, “Run before I kill you.” At that time she saw a car coming, and she ran to the car screaming and waving her arms. The car contained two guards from a nearby military station who had heard her screams and they rescued her.

The only similarities between the two incidents are that they occurred in wooded areas, the victims allegedly did not consent to the encounters, and the victim in each case hailed a passing car for help. There are numerous dissimilarities.

The state offered the testimony of the previous crime as relevant to identity, but the court accepted it as relevant to consent. The issue of consent is unique to an individual, and the lack of consent of one person is not proof of the lack of consent of another. Evidence of the previous crime committed by Helton does not fit within the parameter of admissibility under the rule in Williams either as. evidence of consent or identity because it was not relevant to either.

REVERSED and REMANDED for a new trial.

McCORD, C. J., and ERVIN and MELVIN, JJ., concur.


text:
    Ozell PLUMMER, Appellant, v. STATE of Florida, Appellee (two cases).
    Nos. JJ-354, JJ-355.
    District Court of Appeal State of Florida, First District.
    Jan. 3, 1979.
    Michael J. Minerva, Public Defender, and Margaret Good and Janice G. Scott, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

These are consolidated appeals from revocation of probation and judgment and sentence for grand larceny. Ozell Plummer, appellant, contends that the statements and admissions that he made were not freely and voluntarily given and that they should have been suppressed. We agree and reverse.

Viewing the evidence in a light most favorable to the state, the facts show that appellant went to the jail upon the request of a deputy to talk with the sheriff about the theft of radiators. At that time, appellant was read his rights and then asked about the theft of radiators. The sheriff testified that appellant admitted the theft of radiators from one George “Kitten” Davis and then agreed to let the sheriff look in his car. The sheriff found a radiator hose which he identified as being of the type that would fit the vehicles from which other radiators were stolen. Appellant claimed that he used that hose on his own car, using a coat-hanger to make it fit, but the sheriff convinced him that could be possible because the inside of the hose was still smooth. Subsequently, appellant admitted the theft of radiators from one Robert Cross. On direct examination the sheriff testified that the only promise made to appellant was that if he would pay Davis for his radiators, he would not be charged with that theft. He stated that there was no promise relative to the theft of the Cross radiators. On cross-examination, however, the sheriff admitted having said,

“Ozell, you know I’ve helped you out before. Why do you want to lie to me now. All I want to know is who took the radiators and who was with you. You tell me the truth and I’ll let you go.” (T-12).

The sheriff acknowledged that the lies he was referring to were appellant’s denial of the thefts. It was after that assurance that appellant admitted the Davis thefts and let the sheriff look in the car. After the search of the car, appellant admitted the Cross thefts also. After the admissions, the sheriff let appellant go because he had told him he would; but the sheriff testified that appellant knew that he would be arrested later on. The sheriff acknowledged that he might have said something to appellant about his being able to place charges any time within the next three years and that he had specifically told appellant that if a deputy came out to his house to talk to him that he had better tell the deputy the truth.

While we must consider the evidence in the light most favorable to the state, appellant testified that when the sheriff told him that if he would tell the truth the sheriff would let him go, he thought that meant that he would not be arrested for any of the thefts that he admitted. He also said that the sheriff specifically told him that, if the deputies came out to his house and asked him about anything, he had better tell them the truth or the sheriff would write up the charges against him and see that he went to prison and that the sheriff could do so for a period of three years. Further, appellant stated that when the deputy came to arrest him, he said he was going to arrest him for failing to make restitution (apparently concerning the Davis theft). When the deputy asked him about the radiators, appellant stated, he (appellant) hesitated and the deputy said, “If you don’t remember what the sheriff told you, you better not lie to me.” At that point, appellant told the deputy essentially what he had told the sheriff.

The law requires that a confession or statement which is admitted into evidence against a defendant must be shown to have been made freely and voluntarily and must not have been the product of promises, direct or implied. Fillinger v. State, 349 So.2d 714 (Fla. 2d DCA 1977). The statement made by appellant does not meet that test and therefore it should have been suppressed. The contention by the state that the questioning about the Davis thefts and the Cross thefts constituted two separate events and that the promise related only to the Cross thefts is far from clear even if we consider only the sheriff’s testimony. While the sheriff apparently considered that the promise was limited to the Davis thefts, there is no evidence that such limitation was expressed to appellant. There was no evidence that the initial promise was ever withdrawn or modified during that day’s interrogation.

In addition, the statements made to the deputy should also have been suppressed. The sheriff admitted that he told appellant that if a deputy came out appellant had better tell him the truth because the sheriff had given appellant a break on the Davis thefts. In addition, the sheriff did not deny that he told appellant that he could bring charges for up to three years. Under the circumstances, this transaction constituted more than a simple adjuration to tell the truth countenanced by State v. Chorpenning, 294 So.2d 54 (Fla. 2d DCA 1974).

Finally, the revocation of probation was based solely on the plea of no contest to the charge of grand larceny. The reversal of the conviction requires the reversal of the revocation of probation. Brown v. State, 312 So.2d 528 (Fla. 1st DCA 1975).

The judgments and sentences in Case Nos. JJ-354 and JJ-355 are reversed and remanded for further proceedings consistent with this opinion.

McCORD, C. J., and ERVIN and MELVIN, JJ., concur.


text:
    STATE of Louisiana v. Werner OBLETON, Jr.
    No. 62283.
    Supreme Court of Louisiana.
    Dec. 22, 1978.
    A. J. Boudreaux, Staff Appeals Counsel, 24th Judicial District, Indigent Defender Bd., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Ken L. Sanders, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Defendant Werner Obleton, Jr. was charged with distribution of heroin in violation of La.R.S. 40:966, was tried before a jury of twelve persons, and on December 18,1974 was found guilty as charged. Subsequently the trial court sentenced defendant to imprisonment at hard labor for life without benefit of probation, parole or suspension of sentence. Defendant now appeals his conviction and sentence to this Court.

We have reviewed the assignments of error argued in brief and conclude that they do not form the basis for a reversal of defendant’s conviction. With respect to defendant’s challenge to the constitutionality of the life sentence for distribution of heroin, this argument has recently been rejected by this Court. State v. Terrebonne, 364 So.2d 1290 (La.1978); State v. Mallery, 364 So.2d 1283 (La.1978). However, we do note, ex proprio motu, that the sentence imposed in this case does not conform with the appropriate penalty provision of La.R.S. 40:966 applicable to this prosecution. The applicable provision, that which existed pri- or to the statute’s amendment by Acts 1977, No. 631, § 1, provided for a sentence of life imprisonment at hard labor and allowed, as an option, the imposition of a fine. The statute did not then bar probation or parole. Thus the sentence pronounced exceeded the statutory requirements, and must be set aside with the case remanded for sentencing in strict conformity with the applicable penalty provision of the statute defendant was found to have violated. See State v. Wilson, 362 So.2d 536 (La.1978); State v. Lindsey, 351 So.2d 1178 (La.1977).

Accordingly, defendant’s conviction is affirmed, but the sentence imposed is vacated and set aside, and the case is remanded to the district court for resentencing in accordance with the applicable provisions of La. R.S. 40:966.


text:
    STATE of Louisiana v. Arthur BENWOIR.
    No. 62815.
    Supreme Court of Louisiana.
    Dec. 22, 1978.
    William O’Hara, Supervising Atty., New Orleans, Provino Mosca, Student Practitioner Loyola Law Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen,, Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Arthur Benwoir pleaded guilty to two counts of attempted aggravated rape, La.R.S. 14:27 and 14:42, and two counts of armed robbery, La.R.S. 14:64. He was sentenced to fifty (50) years at hard labor for the two attempted rapes. In connection with the armed robberies, he was sentenced as a second felony offender under La.R.S. 15:529.1 to fifty (50) years at hard labor on each count. Defendant had filed a motion to quash the multiple bill on the grounds that the abolishment of eligibility for diminution of sentence by Acts 1977, No. 633, § 1 for persons sentenced as habitual offenders after September 9, 1977 was an ex post facto law when applied to persons who committed the underlying offense prior to that date. The trial court denied the motion and defendant appealed.

In State v. Curtis, 363 So.2d 1375 (La. 1978), this Court, overruling its earlier decision in State v. Wilson, 360 So.2d 166 (La. 1978), held that a defendant cannot be subjected to provisions of La.R.S. 15:571.3(C), enacted between the time he committed the offense and the time he was tried and convicted, under which a person sentenced as a multiple offender, and who has been convicted one or more times of certain enumerated offenses, is denied eligibility for diminution of sentence for good behavior. The application of the amended provisions to a defendant who committed the offense prior to enactment of the state violates the ex post facto prohibitions contained in both the United States and Louisiana Constitutions. U.S.Const. art. I, § 9; La.Const. art. I, § 23 (1974).

In the instant case, the two armed robberies for which defendant was being sentenced occurred on June 6,1977 and June 8, 1977, prior to the effective date of Acts 1977, No. 633, § 1 which calls for automatic denial of good time for a particular class of multiple offenders. La.R.S. 15:571.3(C). Thus under Curtis, defendant’s sentence without benefit of diminution of sentence for good behavior is improper at this time. The case must be remanded to the trial court for resentencing under the discretionary authority vested with the trial court by La.R.S. 15:571.3(C) as amended by Acts 1975, No. 727, § 1, the provision in effect at the time of the commission of the underlying offenses.

Defendant has also argued that Acts 1977, No. 665, § 1, which amended La.R.S. 15:571.4 to provide for the computation of time for all sentences on the basis of fifteen, rather than twenty-five, days per month for time actually served for all inmates convicted after September 9, 1977, is an ex post facto law as applied to persons who committed offenses prior to that date. This Court has recently reached this same conclusion. State ex rel. Bickman v. Dees, 367 So.2d 283 (La.1978). Therefore, if the trial court in the exercise of its discretion determines that defendant shall not be denied eligibility for diminution of sentence for good behavior, defendant’s good time shall be computed on the basis of twenty-five days per month for time actually served, as provided for by La.R.S. 15:571.4 as amended by Acts 1974, No. 200, § 1, the provision in effect at the time of the commission of the armed robberies.

Accordingly, the case is remanded to the trial court for resentencing in accordance with law.


text:
    STATE of Louisiana v. Lucius PERRON.
    No. 62953.
    Supreme Court of Louisiana.
    Dec. 22, 1978.
    A. J. Boudreaux, Staff Appeals Counsel, Indigent Defender Bd.; Kenner Philip E. O’Neill, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Robert A. Pitre, Jr., Stephen M. Little, Asst. Dist. Attys., Gret-na, Abbott J. Reeves, Director, Research and Appeals Div., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The defendant’s conviction is affirmed. The case is remanded for resentencing because application of the habitual offender statute, La.R.S. 15:529.1, was improper. The subject offense, for which the penalty was sought to be enhanced, was committed before defendant was convicted of the penalty-enhancing offense. However, La.R.S. 15:529.1(A) authorizes only the use of prior convictions in a habitual offender bill.

Accordingly, defendant’s sentence is set aside and the case is remanded for resen-tencing in accordance with law.


text:
    Luke L. BOYER v. John O. ST. AMANT, Sheriff, Parish of St. Charles.
    No. 63501.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Luke L. Boyer applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of St. Charles. 364 So.2d 1338.

Writ denied.


text:
    STATE of Louisiana v. Carl SANGER.
    No. 63736.
    Supreme Court of Louisiana.
    Dec. 11, 1978.
   In re: Carl Sanger applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Caddo.

Writ granted. The extradition order is reversed.

La.C.Cr.P. Art. 272 requires if a criminal prosecution against the demanded person is pending, any surrender of authorities of another state must be pursuant to a re-extradition agreement. Applicant was indicted for first-degree murder in Louisiana on November 17, 1978, so a prosecution was pending at the time of the extradition hearing on December 21. Therefore, applicant cannot be extradited without a re-extradition agreement. We need not reach the question whether the trial judge was justified in concluding that applicant was the person charged in the Texas indictment. Should the Texas authorities still wish to have applicant returned to Texas, and assuming he is in fact the person charged, it would seem to be a simple matter for them to secure a new affidavit, either taken before a Texas magistrate or more clearly identifying the affiant as the victim of the crime charged so as to meet the objections raised by counsel for applicant. See La.C. Cr.P. Art. 263(1).


text:
    ANGELO KOGOS SEAFOOD, INC., et al. v. BUSINESS CAPITAL CORPORATION.
    No. 63634.
    Supreme Court of Louisiana.
    Jan. 9, 1979.
   In re: Angelo Kogos Seafood, Inc., et al., applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.


author: GARRISON, Judge.

text:
    Irion BORDELON v. Albert B. CRUTCHER.
    No. 9396.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    See also, La.App., 365 So.2d 1114.
    John J. Cummings, III, James R. Pertuit, Gregory F. Gambel, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John W. Haygood, James P. Lambert, New Orleans, for defendant-appellee.
    Before GULOTTA, STOULIG, and GARRISON, JJ.
   GARRISON, Judge.

This suit was brought by plaintiff, Irion Bordelon, against defendant, Albert Crutch-er, for breach of a written agreement entered into between them in March 1964. Defendant answered the suit and reconvened against plaintiff, alleging a breach of the same contract and a violation of plaintiff’s fiduciary-obligation thereunder. After a trial on the merits, the trial court found that defendant Crutcher had fully performed his duties under the agreement and ruled in his favor on the main demand. However, defendant’s reconventional demand was dismissed.

Plaintiff has appealed the trial court’s decision on the principal demand, alleging error in the trial judge’s findings of fact and law. Although defendant-appellee, Crutcher, states in brief that he has answered the appeal, challenging the trial court’s dismissal of his reconventional demand, no such answer was filed with the trial court or lodged in this court. Therefore, the only questions presented here are those relating to the main demand.

The facts of this case are basically undisputed. The issues presented deal only with the interpretation of those facts and the interpretation of the agreement between the parties.

In December of 1963 plaintiff Bordelon proposed to defendant Crutcher the possibility of obtaining a farmout agreement from Humble Oil for financing and drilling of oil wells on certain leases in St. Bernard Parish. Bordelon told Crutcher that the prospects were good and he thought that the California Company would agree to finance a portion of the drilling and other costs. Consequently, Crutcher approached Humble with the proposition and they consummated a farmout agreement on January 6, 1964. Under the terms of that agreement, Humble agreed that if production was achieved it would assign a 75% interest to Crutcher until payout, and 60% thereafter.

As expected, the California Company agreed to join the venture and, for 75% of the farmout, put up $50,000 for drilling to 9,000 feet. Any costs above $50,000 were to be borne proportionately by all other parties owning an interest in the farmout. This agreement was reached on January 17, 1964.

Subsequently, Crutcher and Bordelon entered into the agreement which is the subject of this lawsuit. In that agreement Crutcher agreed to assign to Bordelon, as compensation for his role in the deal, a 3% interest in whatever he (Crutcher) might “earn” from these leases. In addition, Bor-delon would assume his proportionate responsibility for the costs incurred.

In May 1964 Crutcher requested that Humble make an assignment of the farm-out interest in the following percentages:

California Oil Co. 75%
Albert B. Crutcher, Jr. 12.5%
J. D. Tufts, II 12.5%

J. D. Tufts, II was Crutcher’s business partner and, as such, shared equally. Accordingly, these assignments were made by Humble in August 1964. No assignment of any amount was made by Humble to Borde-lon.

Bordelon demanded his 3% interest, claiming a 3% interest in the entire farm-out. Crutcher refused and argued that the agreement intended for Bordelon to get only 3% of that 12.5% interest actually received by Crutcher himself. Crutcher made an assignment of that interest to Bordelon in May 1965. Bordelon refused that tender of 3% of 12.5% and filed suit against Crutcher, claiming damages of $25,000 because he was unable to consummate a deal arranged with a Mr. Raymond Miller, whereby Miller was to purchase Bordelon’s 3% interest in the farmout (3% of 75% until payout and 60% thereafter) for $25,000.

The parties here have each interpreted the agreement in question to their own advantage, and the testimony of plaintiff and defendant is in hopeless conflict as to their intentions at the time it was executed. The only issue before the Court, therefore, is the proper interpretation of this contract. The trial court determined that because Bordelon knew of the California Company’s participation in the operation he knew Crutcher would earn only a very small portion of the farmout. Therefore, the trial court found that Bordelon was entitled to 3% of the 25% shared by Crutcher and Tufts, with that 3% to be taken from Crutcher’s share.

At first glance, there are what appear to be irreconcilable arithmetical conclusions reached by counsel for Crutcher and the trial judge. Where Crutcher refers to Bor-delon’s share as 3% of his 12.5% (25% split between Crutcher and Tufts), the trial judge awarded Bordelon 3% of the 15% shared by Crutcher and Tufts. This apparent discrepancy, however, is easily explained when it is understood how these different figures were arrived at.

Under the farmout agreement from Humble, Crutcher’s group was to receive 60% of the entire drilling proceeds, and Humble retained a 40% interest. Seventy-five percent of the 60% belonging to Crutcher’s group was allocated to the California Company, and the remaining 25% was divided equally between Crutcher and Tufts. Prom this figure comes Crutcher’s “12.5% interest,” of which he claims Borde-lon is entitled to 3%. On the other hand, the trial court viewed the entire drilling operation as 100%, allocating the shares as follows:

Humble Oil 40%
California Company 45% [= 75% of 60%]
Crutcher 7.5% [12.5% of 60%]
Tufts 7.5%, [12.5% of 60%]
Total 100%

Crutcher consistently referred to the 60% controlled by his group (the California Company, Crutcher and Tufts) as the whole. However, the trial judge chose to speak of the entire operation as the whole, divided between Humble and Crutcher’s group.

The exact language of the letter agreement in question is as follows:

“This will confirm my verbal understanding with you to assign to you an undivided three percent (3%) of the interest which may be earned bv me in and to the land area covered bv Exhibit “A” of the above mentioned Letter-Agreement. dated January 6th, 1964. The three percent (3%) interest to be assigned to you shall be subject to all of the terms and conditions and reservations of interest by Humble Oil and Refining Company, contained in the above mentioned Letter-Agreement and Amendment thereto, which you have been furnished a copy of and fully understand. It is agreed and understood that the assignment of the three percent (3%) portion of my interest to be made by me shall be an assignment only of interest earned bv me in and to the two leases designated on page one (1) of the January 6th. 1964 Letter-Agreement as Humble’s Biloxi Marsh Lands Corporation Lease and Humble’s Lake Eugenie Land and Development Company. Inc. Lease, and shall not be an assignment of interest in any other lease hereafter acquired in the area. It is further understood that the three percent (3%) portion of my interest to be assigned to you shall bear its proportionate part of the costs of drilling, equipping, producing and operating any wells drilled thereon. The assignment, when made by me, shall be made without warranty of any kind whatsoever, except as to my own acts.” (Emphasis added.) Letter Agreement from Crutcher to Bordelon, dated March 2, 1964, accepted March 16, 1964.

As is made abundantly clear by both parties, the crucial language is that which is underscored above.

The agreement in question involves a real right because mineral interests are involved. R.S. 9:1105.

“The principles of law governing contracts for the assignment of oil and gas leases in respect to their formation, interpretation, performance and breach are no different than they are in respect to the ordinary contracts for the transfer of an interest in land.” Summers, Oil and Gas, § 544, p. 513, 1958.

Therefore, as pointed out in appellant’s brief, parol evidence is generally inadmissible to vary the recital contained in the act, in the absence of a showing of fraud, duress or error. C.C. Arts. 2275, 2276; Hemler v. Adcock, 166 La. 704, 117 So. 781 (1928). However, the concept of error necessarily comes into play when the basic agreement contains obscurity or ambiguity:

“Where the meaning of words used in the agreement are ambiguous the court may refer to other documents or to parol evidence, and the language is interpreted most strongly against the person using it. Some weight, however, may be given to the practical construction of the parties.” (Footnotes omitted.) Summers, Oil and Gas, § 544, pp. 518-519, 1958.

Plaintiff Bordelon argues that since Crutcher was the only party in privity with Humble, he “earned” the full interest assigned to him under the Humble-Crutcher farmout agreement. Further, he contends that the fact that Crutcher earned the full interest is evidenced by his instruction and authorization to Humble to assign the farmout interest as follows:

California Oil Co. 75%
Albert B. Crutcher, Jr. 12.5%
J. D. Tufts, II 12.5%

Bordelon’s position is that had Crutcher not had full ownership and control of the entire interest, he would not have had the authority to direct Humble to make such an assignment. Under Crutcher’s interpretation, as pointed out by Bordelon, Crutcher had full control over how much Bordelon would realize, and theoretically Crutcher could have assigned away the entire interest to others, thereby leaving nothing out of which Bor-delon could have his 3%.

If no parol evidence is admitted to give evidence of any other possible interpretation, the only admissible evidence is the letter agreement itself and the Crutcher-Humble farmout agreement, to which it is specifically made subject. Looking at those two documents alone, Crutcher would appear to be the only party entitled to an interest under the Humble farmout. No mention is made of Crutcher and “his group.” Therefore, Crutcher presumably would earn the entire farmout interest, and — under Bordelon’s interpretation — that would be the only possible interest on which Bordelon’s 3% interest could be based.

Crutcher’s position, on the other hand, is that parol evidence is admissible to aid in the interpretation of a written contract, citing Dufrene v. Tracy, 232 La. 386, 94 So.2d 297 (1957) and Rudman v. Dupuis, 206 La. 1061, 20 So.2d 363 (1947). With the use of parol evidence, as the trial judge concluded, it is clear that Bordelon had actual knowledge that California Company would receive 75% of the farmout interest and that Crutcher would never receive the whole interest for himself. This is apparent because Bordelon helped set up the entire deal and necessarily knew of the California Company’s participation. In addition, the agreement between Crutcher and the California Company was signed two months prior to the time of Crutcher’s letter agreement with Bordelon. However, without the admission of parol evidence and other documents, this evidence — vital to clarification of the contract at issue here— would be irrelevant since it was not referred to in, nor made part of, the written Bordelon-Crutcher agreement.

Looking at the agreement in its entirety, the terms used are not ambiguous by themselves. Two interpretations of “the interest which may be earned by me” become possible only by looking beyond the documents themselves. Thus, it would seem at first glance that, since the agreement is unambiguous on its face, no parol evidence should be admitted to clarify its terms.

However, in the. interpretation of contracts, it is also necessary to refer to Civil Code Articles 1945-1962 on this subject. Civil Code Article 1945 provides the general rules, while the subsequent articles set forth specific rules and exceptions. Words are to be understood in their normal usage (C.C. Art. 1946), and any doubtful provisions may be clarified by reference to other agreements between the same parties on the same subject (C.C. Art. 1949). Most importantly, however, in interpreting a contract, the true intention of the parties at the time of its execution should be determined if possible, rather than' applying a literal interpretation. C.C. Art. 1950; Cor-bin, Contracts, § 536, p. 500, 1952.

To ascertain the intention of the parties, it is almost essential to resort to parol evidence and surrounding circumstances. This was aptly stated in Corbin, Contracts, § 542, at pp. 514-515:

“It is sometimes said that if the words of a contract are plain and clear, evidence of surrounding circumstances to aid interpretation is not admissible. But some of the surrounding circumstances always must be known before the meaning of the words can be plain and clear; and proof of the circumstances may make a meaning plain and clear when in the absence of such proof some other meaning may also have seemed plain and clear. Sometimes the circumstances proof of which is offered do not have any probative value and do not affect a meaning that is arrived at without them. When such is the case, such circumstances are immaterial. In other cases, the testimony of additional factors may not be believed by the trial court after it has been admitted, in which case the meaning of words that is otherwise ‘plain and clear’ will be adopted.
“Cases in which this is said should be carefully examined to determine whether or not the circumstances proof of which is offered would in fact have any probative value. Of course, an otherwise ‘plain’ meaning should not be disturbed by the proof of irrelevant circumstances or of those having only a remote bearing or inconsequential weight. But until a court knows the circumstances it can not properly say that they have no probative value. It seems highly probable that when a court says that it will endorse a contract in accordance with the ‘plain and clear’ meaning of its words, the relevant surrounding circumstances have in fact been proved and have been carefully weighed; the losing party has merely urged the drawing of inferences therefrom that the court is unwilling to draw. It is a very commonly reported statement that words are to be given ‘their plain, ordinary, and popular meaning’; but this is always limited by adding some such clause as the following: ‘in the absence of relevant evidence indicating that the words were used with a different meaning.’ If there is in fact a ‘plain, ordinary, and popular’ meaning of words used by the parties, that fact is evidential that the parties used them with that meaning. It is fully overcome, however, as soon as the court is convinced that one of the parties used and understood the words in a different sense and that the other party had reason to know it.” (Footnotes omitted.)

In this case, the trial judge obviously concluded that parol evidence was necessary to discover the true intent of the parties. He also concluded that the parol evidence (Bordelon’s knowledge of the California Company’s participation) showed that the intent of the parties was to give Bordelon 3% of the 12.5% received by Crutcher (or, in terms of the judge’s particular formulation — which is the same thing — 3% of Crutcher’s 15% of the whole). We find no error in this conclusion.

It is true that the agreement did indicate that Bordelon’s 3% interest was to bear its proportionate share of the costs and that Crutcher’s office billed him for 3% of the whole rather than for 3% of Crutcher’s 12.5% share. However, Crutcher testified that these bills were in error and that he had no part in the billing of Bordelon (see Tr. 26, 28). In any case, the basic intention of the parties to the contract appears too clear to be undone by this single set of circumstances. Clearly, the trial judge so concluded.

The judgment of the trial court, ruling in favor of the defendant Crutcher with regard to the main demand, is affirmed.

AFFIRMED.

      . “Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.” C.C. Art. 2275.

      . “Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.” C.C. Art. 2276.

      . “Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:
      ******

        “Second — That courts are bound to give legal effect to all such contracts according to the true intent of the parties;

        “Third — That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences; * * * ” C.C. Art. 1945.


text:
    Irion BORDELON v. Albert B. CRUTCHER.
    No. 9396.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 1978.
    Rehearing Denied Dec. 20, 1978.
    Writ Refused Feb. 16, 1979.
    See also, La.App., 365 So.2d 1109.
    John J. Cummings, III, James R. Pertuit, Gregory F. Gambel, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John W. Haywood, James P. Lambert, New Orleans, for defendant-appellee.
    Before GULOTTA, STOULIG and GARRISON, JJ.
   PER CURIAM.

Defendant Crutcher has appealed the trial court’s conclusion that “. . . there is no merit to the reconventional demand by Crutcher against Bordelon”. We agree with the trial court.

The basis for the reconventional demand essentially was that plaintiff Bordelon violated an agreement, as well as a fiduciary relationship, with defendant Crutcher by attending a State Lease Sale and causing a bid to be made for a State lease on Chan-deleur Sound Block 73 against Humble and defendant Crutcher through a broker named H. Gary Small. At the Lease Sale, the State lease on Block 73 was awarded to the broker Small who, defendant alleged, was the agent of Louisiana Southern Oil & Gas Corporation, a corporation actually owned by plaintiff Bordelon. The interest in that lease, hereinafter referred to as State Lease 4310, eventually was assigned to others.

Although Crutcher went to the described State Lease Sale he chose not to make a bid. Consequently, he could not have been damaged by Bordelon even if the latter, as alleged, acquired control of Lease 4310 by means of a bid. And even if it were possible for Crutcher to have been damaged in such a manner, the damages necessarily would be purely speculative because this particular lease proved unsuccessful. It ultimately produced, as the testimony indicated, “four or five dry holes”.

Consequently, as a basis for a claim for damages, defendant Crutcher’s reconven-tional demand is not supported by the record.

The judgment of the trial court, ruling in favor of the defendant Crutcher with regard to the main demand has been affirmed. The judgment of the trial court, dismissing Crutcher’s reconventional demand, is also affirmed.

AFFIRMED.