text:
    BROADMOOR APARTMENTS, INC., et al., v. COLLECTOR OF REVENUE.
    No. 10776.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 16, 1976.

      Theodore L. Jones, Baton Rouge, for appellant.
    David L. Dawson, Jr., Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Petitioners Broadmoor Apartments, Inc. (Broadmoor), Sherwood Park Apartments, Inc. (Sherwood) and Regency Apartments, Inc. (Regency), sometimes hereinafter referred to as Appellants, appeal from judgment of the trial court sustaining a decision of the Board of Tax Appeal assessing Appellants for corporate franchise taxes for the taxable years 1969,1970, and 1971. We affirm.

The sole question involved on appeal is whether funds borrowed by a corporation acting as agent are borrowed funds within the purview of La.R.S. 47:601 and 603 and therefore to be considered in determining the amount of corporate franchise taxes due by the borrower.

There is no dispute regarding the operative facts. In or about 1965 or 1966, a group of individuals (Owners) became interested in acquiring and developing tracts of commercial properties in the Baton Rouge, Louisiana area. To facilitate financing and to provide a consistent managerial program for the proposed endeavors, Owners opted to create three corporations to act for and represent Owners in the acquisition, development and management of the contemplated projects. Consequently, Appellants were formed between February 1966 and December 1968.

Concomitant with the incorporation of Broadmoor and Sherwood, Owners entered into a separate Nominee Agreement with each corporation. A similar Nominee Agreement was confected with Regency in March 1970. The Nominee Agreements, in reality counter letters, appointed each corporation as Owners’ agent, to hold, for Owners, title to designated properties and to administer same pursuant to Owners’ specific written authorization and instructions. The properties to be acquired by each corporation were described in exhibits attached to the respective agreements. Notwithstanding the agreement dealt with the title and ownership of real property, none of the Nominee Agreements were filed for public record.

In essence, each agreement contains the following pertinent provisions: (1) The agreement constitutes evidence of Owners’ beneficial ownership of the properties involved; (2) Owners designated two agents, Donald A. Hayden and Rolfe H. McCollis-ter, as a committee to represent Owners, which committee was duly authorized to direct the corporation’s conduct of Owners’ affairs, including the power to instruct the corporation regarding the acquisition, alienation and use of Owners’ properties; (3) Appellants were required to remit to Owners, immediately upon receipt, all rentals or proceeds from the use or sale of Owners’ properties; (4) Owners agreed to pay Appellants’ actual costs incurred in rendering services to Owners and also to indemnify Appellants, their officers and directors against any loss or liability resulting from any claim arising from Appellants’ activities pursuant to and in accordance with the Nominee Agreement; (5) Owners promised to pay their pro-rata share of the purchase price of properties together with interest and such other acquisition costs and expenses as might be incurred by Appellants in obtaining property and holding same for Owners’ account; (6) Owners agreed to hold the properties in indivisión, each individual owner holding a share of ownership as shown on schedules attached to each Nominee Agreement.

In due time, Appellants were expressly instructed by Owners’ agents to acquire, hypothecate and develop the properties referred to in the respective Nominee Agreements. The instructions included obtaining financing for and the construction of rental apartments on portions of the properties. Pursuant to such directions, Appellants each acquired designated tracts of land in their own names, by cash sales in two instances and by sale with mortgage in the remaining case. Purchase money required for the acquisitions was provided by Owners from their own personal funds, which Owners either had on hand or borrowed as the occasion demanded. All such acquisitions were duly recorded in the public records of East Baton Rouge Parish.

In compliance with Owners’ instructions, Appellants executed several mortgages on the properties, for both interim and permanent financing. At least two of such mortgages were hypothecations which expressly exempted the mortgagor from personal liability for the debt involved. As additional security for loans to Appellants, several Owners executed continuing guarantees for Appellants’ debts, which instruments rendered Owners solidarily liable for the obligations.

Appellants filed with the Collector of Revenue, State of Louisiana (Collector), Corporate Income and Franchise Tax Returns for each of the years in question. Said returns each reflect income, expenses and a balance sheet for the periods concerned. The returns also show that each Appellant paid a franchise tax of $10.00 annually, but that each paid no income tax whatsoever. The respective Owners of each project have filed partnership returns for each of these same years. Admittedly, these income tax returns include a full reporting of all income, expenses and other relevant data regarding the several projects and also indicate Owners’ distributive shares of the profits and losses from the construction, operation and maintenance thereof. Collector concedes that all such partnership returns are true and correct insofar as concerns the legal issues and principles involved in this action.

For the years in question, Collector assessed Appellants’ corporate franchise taxes on the assumption that the mortgages outstanding in Appellants’ names on the public record represent borrowed capital of the corporations, notwithstanding the properties thusly acquired in Appellants’ names were in truth and in fact purchased for the benefit of Owners. In so doing, the Collector relied upon La.R.S. 47:601 and 603, which pertinently provide:

“§ 601. Imposition of tax

Every domestic corporation and every foreign corporation, exercising its charter, or qualified to do business or actually doing business in this state, or owning or using any part or all of its capital, plant or any other property in this state, subject to compliance with all other provisions of law, except as otherwise provided for in this Chapter shall pay an annual tax at the rate of $1.50 for each $1,000.00, or major fraction thereof on the amount of its capital stock, surplus, undivided profits, and borrowed capital, determined as hereinafter provided; the minimum tax shall not be less than $10.00 per year in any case. The tax levied herein is due and payable on any one or all of the following alternative incidents:
(1) The qualification to carry on or do business in this state or the actual doing of business within this state in a corporate form. The term “doing business” as used herein shall mean and include each and every act, power, right, privilege, or immunity exercised or enjoyed in this state, as an incident to or by virtue of the powers and privileges acquired by the nature of such organizations, as well as, the buying, selling or procuring of services or property.
(2) The exercising of a corporation’s charter or the continuance of its charter within this state.
(3) The owning or using any part or all of its capital, plant or other property in this state in a corporate capacity.
It being the purpose of this section to require the payment of this tax to the State of Louisiana by domestic corporations for the right granted by the laws of this state to exist as such an organization, and by both domestic and foreign corporations for the enjoyment, under the protection of the laws of this state, of the powers, rights, privileges and immunities derived by reason of the corporate form of existence and operation. The tax hereby imposed shall be in addition to all other taxes levied by any other statute. “§ 608. Borrowed capital
As used in this Chapter, ‘borrowed capital’ means all indebtedness of a corporation, subject to the provisions of this Chapter, maturing more than one year from the date incurred, or which is not paid within one year from the date incurred regardless of maturity date. As to any indebtedness which is extended, renewed or re-financed, the date such indebtedness was originally incurred or contracted shall be considered for the purpose of this definition the date incurred or contracted. . .

Collector maintains he is entitled to rely upon the indicia of ownership disclosed by the public records which reveal Appellants as owners of the properties involved. Collector also contends the unrecorded Nominee Agreements or counter letters are of no effect against him as a third party relying upon the face of the public records.

Conversely, Owners contend that the Nominee Agreements are in effect counter letters which establish Owners’ equitable title to the properties involved as well as Owners’ obligation for the mortgage indebtedness involved. It is Owners’ position that Appellants acted merely as Owners’ agents; consequently, Appellants could not and did not acquire either an equitable interest in the properties concerned or any personal obligation to repay the borrowed funds.

The trial court rendered judgment for the Collector on the grounds that Appellants did not establish their alleged agency status and, alternatively, that even if Appellants were agents, they were undisclosed agents equally liable with Owners for the mortgage indebtednesses upon which each corporate franchise tax was computed. We agree with the result reached by the trial court, but for different reasons.

The stated purpose of the applicable statute, La.R.S. 47:601 et seq., is to require corporations to pay for the right to exist in corporate form and to take advantage of and exercise the rights, powers, privileges and immunities of corporate existence. The tax involved herein is assessable upon a corporation’s qualifying to do business or actually doing business in the state. It is determined, in part, by the amount of borrowed capital employed by a corporation in the conduct of its corporate affairs.

The term borrowed capital, as used in the statute in question, has been interpreted by the Supreme Court in State v. Union Bldg. Corporation, 185 La. 598, 170 So. 7, as follows:

“Manifestly the Legislature intended that the total amount of all capital made use of by a domestic corporation in the conduct of its business should be used as a basis for computing the franchise or license tax. In arriving at the total amount of capital used the following items are considered: First, the capital stock; second, the surplus, if any; third, undivided profits, if any; and, fourth, borrowed capital, if any. (3) What the act means by saying that “if the capital used or invested in the business or enterprise of such corporations includes borrowed capital, in excess of the capital stock, surplus and undivided profits, such excess or” (of) “borrowed capital shall be added,” etc., is that, if the corporation uses in the conduct of its business any borrowed or additional capital, that is, capital beside that which was contributed by the stockholders in the purchase of the stock, and the earnings of the corporation, this borrowed or additional capital must be added to the other capital in order to form a basis for computing the tax. The amount of the tax is computed upon the amount of capital used, and, if the corporation uses more capital than it owns, it must pay the tax not only on that which it owns but also on that which it does not own, that which it borrows and puts into the business. The sum total is the amount of “capital used or invested in the business or enterprise of such corporation,” and forms the basis for “computing the franchise tax.”

Recently, in HEP Development Corporation v. Mouton, 256 So.2d 744, this court applied the rule announced in State v. Union Bldg. Corporation, above, and noted that:

“We understand the foregoing language in Union Building, above, to mean that for purposes of the tax in question that if a corporation makes use in its business of any borrowed or additional capital, aside from that which was contributed by its stockholders in the purchase of stock, and corporate earnings, such borrowed or additional capital must be considered in computing the tax in question.”

Article 2 of the charters of each Appellant corporation provides that the objects and purposes for which the corporation was created are, among other things, as follows:

“To take, lease, rent, hire, purchase or otherwise acquire and to own, use, hold, sell, convey, lease, mortgage, improve, develop and otherwise handle, deal in, promote, sub-divide, plan or dispose of, real estate, real property, and any interest or right therein.”

Although the respective articles of incorporation do not expressly authorize Appellants to conduct their authorized activities as agents, we find the articles sufficiently broad to encompass Appellants’ acting in a representative capacity.

The record establishes conclusively that Appellants were in fact acting as Owners’ agents in the transactions involved herein. The Nominee Agreements or counter letters expressly provide that Appellants have no authority to take any action, sign any documents, or make any decisions affecting Owners’ property without Owners’ express written consent, authorization and direction. In each instance involved, Owners’ presented Appellants with written instructions for carrying out the acquisition and development of Owners’ properties. Without exception the instructions specifically recite that Appellants are to act solely as Owners’ agent in carrying out the mandate.

State v. Union Bldg. Corporation, above, clearly declares the legislative intent to be that the total amount of all capital made use of by a domestic corporation in the conduct of its business, is to be considered in determining the amount of borrowed capital for purposes of determining corporate franchise taxes due pursuant to La. R.S. 47:601 and 603.

Despite the agency relationship shown in this instance, we find the principles announced in State v. Union Bldg. Corporation, above to be applicable and controlling herein. We so hold because the intent of the pertinent statute has been held to be that funds borrowed for the exercise, use, enjoyment or performance of a corporate purpose, are to be considered in determining the amount of corporation franchise taxes due pursuant to La.R.S. 47:601 and 603. The legislative intent is to include in the term borrowed funds all sums borrowed by a corporation in the conduct of its business as a corporation. The tax is upon the corporate right to function in a corporate capacity, whether for the account of the corporation or as corporate agent for a third party. A corporation acting as agent for another party is nonetheless acting as a corporation and as such enjoying, exercising and utilizing the rights, privileges and immunities of a corporation under law. Appellants in this instance were all performing a function for which they were incorporated; that is, the purchase, mortgage and development of real property. It follows that the funds borrowed in the corporate name to achieve such purposes, were borrowed funds within the ambit of La.R.S. 47:601 and 603.

The judgment of the trial court is affirmed, all costs to be paid by Appellants.

Affirmed.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Ted F. DUNHAM, Jr., et al., v. Katharine O. DUNHAM, Testamentary Executrix of the Succession of Ted F. Dunham, Sr.
    No. 10838.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 16, 1976.

      David M. Ellison, Jr., Baton Rouge, for appellant.
    John S. White, Jr., Baton Rouge, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

This is an appeal from a judgment sustaining an exception of no cause of action, and dismissing plaintiffs’ suit. The allegations of the petitions, and the documents attached thereto, reveal the following facts, which, for the purposes of the exception, are assumed to be true.

Winn-Rock, Inc. is a Louisiana corporation, domiciled in East Baton Rouge Parish. The original shareholders were Ted F. Dun-ham, Sr., Katharine 0. Dunham, Ted F. Dunham, Jr. and Richard E. Dunham. On December 21, 1960, a special shareholders’ meeting, attended by more than two-thirds of the shareholders, was held, and a resolution was unanimously adopted to amend the original charter so as to add the following article:

“ARTICLE X STOCK TRANSACTIONS
“It is the purpose and the intention of the incorporators to limit stock ownership in this corporation to persons employed by and/or actively participating in the business of the corporation. Accordingly, it is expressly stipulated that whenever a shareholder dies, or withdraws from the active participation of the business of the corporation, the heirs, successors or legal representatives of the deceased shareholder, or the inactive shareholder, as the case may be, must follow the procedure provided immediately following for the offering of said stock to the corporation and to the other shareholders. For the purposes of determining whether or not a shareholder has withdrawn from active participation in the business of the corporation, the decision of three-fourths of the elected membership of the Board of Directors shall be conclusive, unless patently arbitrary.
“No shareholder may sell any stock of this corporation without first offering it to this corporation at the book value thereof as shown by the last preceding quarterly financial statement of this corporation prepared in conformity with generally accepted accounting principles. Said offer must be made by delivering to the secretary of this corporation, against written receipt, the certificates representing said stock, endorsed in blank, and a written offer to sell said stock to this corporation, or to the other shareholders, for cash, at the value hereinabove mentioned. This corporation shall have the right, for a period of thirty (30) days from the delivery of such offer, and said certificates endorsed in blank, to the secretary of this corporation, to purchase the stock of said shareholder, for cash, at the book value thereof as shown by the last preceding quarterly financial statement prepared in conformity with generally accepted accounting principles.
“If the corporation does not purchase the stock offered within thirty (30) days from delivery of the offer, and said certificates endorsed in blank, to the secretary of this corporation, the secretary shall on the thirty-first day, direct a simple letter notice of the offer to every shareholder of record. Any shareholder shall have the right, for a period of fifteen (15) days from the expiration of the corporation’s thirty (30) day delay, to notify the secretary of his intention to purchase the offered stock, for cash, at the book value thereof as shown by the last preceding quarterly financial statement prepared in conformity with generally accepted accounting principles, together with a certified check for the price payable to the offeror.
“For these purposes, each shareholder shall have the right to purchase that part of the offered stock in the proportion that the stock he then owns bears to the total issued stock of the corporation, less the stock offered. The secretary will indicate in the notice the number of shares and fractions of shares to which each shareholder is entitled, and the price thereof in accordance with the offer.
“In the event that any shareholder does not purchase his pro rata share of the stock offered, those shares may be sold without further restriction, provided any shareholder may yield his rights to any other shareholder by simple letter, original copy to be filed with the secretary of the corporation.
“After the secretary has received the notices of intention by the shareholders to purchase, he shall immediately compile a list of such acceptances and the amount of shares accepted and mail the list to the offeror, together with the certified checks. The offeror shall execute a detailed assignment of his stock to each purchaser, and shall deliver the assignment to the secretary, who will then proceed to transfer the shares as in any other case.
“No sale of any of the stock of this corporation shall be valid and binding until and unless opportunity to purchase such shares has been given to this corporation and to the other shareholders in the manner provided in this article; and, this right so vested in this corporation and the shareholders thereof shall follow any of the stock of this corporation so sold without such opportunity being given into any hands into which it may pass. Such right may be exercised against the holders of such stock up to ninety (90) days after such shares are tendered for transfer on the books of this corporation, then no transfer of any such shares shall be made on the books of this corporation without the written consent of all of the other record holders of stock of this corporation, during the pendency of said ninety (90) day period.
“The right vested in this corporation and the shareholders thereof to purchase the stock of any shareholder of this corporation desiring to sell any stock of this corporation may be waived, in writing, by all of the other record shareholders of this corporation at any time. Each certificate of stock shall have on its face, ‘sale or transfer of this certificate subject to prior offer restrictions as contained in the articles of incorporation.’”

Ted F. Dunham, Sr., President of the corporation, was authorized and directed to execute the authentic act necessary to effectuate the amendment. On the same day, Mr. Dunham signed an act amending the Articles of Incorporation of Winn-Rock, Inc. However, he never went before a notary public, and the act was never fully executed and was not then filed for record, either in East Baton Rouge Parish or with the Secretary of State.

Mr. Dunham died on April 7, 1974, and Mrs. Katharine 0. Dunham qualified as Testamentary Executrix of his succession. After his death, the amendment was found among Mr. Dunham’s papers. Plaintiffs witnessed his signature thereon, and Richard E. Dunham went before a notary public and executed an acknowledgment thereof. The amendment was then filed with the Secretary of State, who accepted it for filing. On August 22,1975, this suit was filed by Ted F. Dunham, Jr. and Richard E. Dunham, against Mrs. Dunham as Executrix, demanding that she be ordered to offer the decedent’s shares of stock to the corporation or to the shareholders pursuant to the provisions of Article X of the Articles of Incorporation.

Mrs. Dunham filed peremptory exceptions of no cause of action, no right of action and non-joinder of herself, individually, and of Winn-Rock, Inc. as indispensable parties.

A supplemental petition was filed by plaintiffs, joining Mrs. Dunham, individually, and Winn-Rock, Inc. as parties defendant. It further alleged that Ted F. Dun-ham, Sr. through error and inadvertence had failed to have the act amending the Articles of Incorporation properly notarized; that it had been found among his papers after his death; and that Richard E. Dunham had executed an acknowledgment as an attesting witness, and had caused the said amendment to be filed with the Secretary of State.

The peremptory exceptions filed by the Executrix allege that plaintiffs have no cause of action for three reasons: that the amendment never became effective; that, if effective, the amendment does not require that the decedent’s shares be offered to the corporation; and that the amendment is subject to a suspensive condition. It further alleges that plaintiffs have no right of action as shareholders of Winn-Rock, Inc. to “seek redress for a corporation.” The peremptory exception of non-joinder was cured by the joinder of Mrs. Dunham individually, and Winn-Rock, Inc. as defendants. No pleadings have as yet been filed on their behalf.

After argument on the exceptions, the trial court found that the amendment was valid and binding as to the shareholders of the corporation, but sustained the exception of no cause of action in other respects, and also sustained the exception of no right of action. From the judgment dismissing their suit, plaintiffs have appealed.

At the time the amendment was adopted by the shareholders, R.S. 12:43 required that “an authentic act setting forth the amendment and the manner of adoption thereof shall be executed by such person or persons as the shareholders may have directed.” Section B of R.S. 12:43 provides:

“B. The articles of amendment, or .a multiple original thereof, shall be filed for record in the office of the recorder of mortgages for the parish in which the corporation has its registered office, and the recorder shall note thereon the date and hour of the filing thereof. Thereupon the amendment shall be effective.”

In 1968, when the Business Corporation Law was adopted, R.S. 12:43 was supplanted by R.S. 12:32, which provides that “articles of amendment setting forth the amendment . . . shall be executed in the corporation’s name by the president . and by the secretary . . . The articles of amendment shall be acknowledged by the president ... or may instead be in the form of an authentic act.” Section B thereof provides that the articles of amendment be filed with the Secretary of State, and that they become effective as of the .date thereof.

The act evidencing the amendment in this case was in the form of an authentic act and signed by the president of the corporation. It was not properly notarized prior to the death of Mr. Dunham, Sr. After his death, R. E. Dunham, who was the Secretary of the corporation when the amendment was adopted, signed as a witness and acknowledged the signature of Mr. Dun-ham, Sr. before a notary public. At that time, of course, it was impossible to comply strictly with the provisions of either former R.S. 12:43 or R.S. 12:32.

Defendant contends that, since the statutes require the proper execution and recor-dation of the amendment before it becomes effective, the amendment can never have any effect, since it does not and can not comply with either the present or former provisions of law.

The trial judge, however, was of the opinion that the shareholders who voted for the adoption of the amendment were es-topped to deny the validity or effectiveness thereof. He reasoned that, since the original articles of incorporation, which are attached to the supplemental petition, show defendant as owner of 49 per cent, of the stock of Winn-Rock, Inc., she must have voted for the amendment on December 21, 1960, only three months later. It is, of course, not material whether Mrs. Dunham voted on the amendment, since her stock is not involved herein.

We need not consider if a charter amendment which is defective as to form may be validated by acceptance for filing by the Secretary of State. In any event, we are of the opinion that the amendment forms a valid and binding contract among the shareholders who assented to its adoption. See Article 445, Civil Code. It would be manifestly unjust for the shareholders of the corporation to be deprived of the protection afforded by Article X because of the failure of the President to perform a ministerial duty.

We are of the opinion, however, that the trial judge erred in his interpretation of Article X. As we view it, the amendment provides that stock must be offered to the corporation under three sets of circumstances: first, upon the death of a shareholder; second, when a shareholder withdraws from or becomes inactive in the business of the corporation; and third, when a shareholder wishes to sell all or part of his stock. In all three cases, the procedure to be followed is set forth in the second and following paragraphs of the amendment. We do not believe that the obligation to offer the stock in the case of death of a shareholder is in any way modified by the language of the amendment which reads: “No shareholder may sell any stock of this corporation, etc. .” The trial judge interpreted this language as making it mandatory for the executrix to offer the stock to the corporation only if she planned to sell it to a third party. We think this interpretation has the effect of rendering the first paragraph of Article X meaningless and not in accordance with the obvious intent of the amendment.

The final ground for the exception of no cause of action, and the ground for the exception of no right of action, are based on the proposition that, since the stock must be offered to and not accepted by the corporation before the shareholders have the right to purchase, plaintiffs have no standing to bring this action on behalf of the corporation and no cause of action until the corporation has failed to accept the offer.

Plaintiffs allege that they orally amended their pleadings at the hearing on the exception to cure this alleged defect, but that the trial judge did not consider the amendment, or give them the opportunity to amend thereafter. Of course, oral pleadings are not recognized in our Code of Civil Procedure and there was no apparent necessity for permitting proper amendment since the exception of no cause of action was sustained principally on the ground of the interpretation given Article X by the trial judge. However, since we disagree with the interpretation placed on Article X below, plaintiffs must now be given the opportunity to amend their petition in the foregoing respects. Article 934, Code of Civil Procedure.

The judgment appealed from is therefore reversed and set aside; plaintiffs are granted a period of fifteen days from the date this judgment becomes final within which to amend their petition, and the case is remanded to the trial court for further proceedings in accordance with law. All costs of this appeal shall be paid by defendant Katharine 0. Dunham, Testamentary Executrix of the Succession of Ted F. Dunham, Sr., and all other costs shall await the final determination of this case on its merits.

REVERSED AND REMANDED.


author: PONDER, Judge.

text:
    Nellie Magee MORGAN et al. v. Moses L. RICHMOND and Cook-Richmond Funeral Home, Inc.
    No. 10778.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Plaintiffs in pro per.
    Monte J. Ducote, New Orleans, for appel-lee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

This is a suit for damages allegedly resulting from the wrongful detention of the body of the deceased mother of the plaintiffs-appellants, Nellie Magee Morgan, Al-tee Magee, Charles Magee, Ollie Magee, Paralee Magee Acker, Eddie Magee and J. C. Magee, by the defendants-appellees, Moses L. Richmond and Cook-Richmond Funeral Home, Inc. The trial judge rendered judgment in favor of the defendants-appel-lees, dismissing plaintiffs’ suit at their cost.

Plaintiffs-appellants have timely prosecuted this appeal. We reverse.

In the morning of September 9,1970, the body of plaintiff’s brother was found and brought to Tucker’s Funeral Home for funeral arrangements. In the early evening that same day plaintiffs’ mother died at a hospital in Bogalusa. Nellie Magee Morgan signed a release at the hospital authorizing Cook-Richmond Funeral Home, Inc. to pick up the body.

Still later that evening, several of the plaintiffs decided that both bodies should be at the same funeral home. They went to the establishment of Earl Arnold and told him of their desires. Mr. Arnold immediately went to the hospital, but there found that Cook-Richmond already had the body. He went back to the funeral home and Nellie Magee Morgan and J. C. Magee signed a release authorizing Earl Arnold’s Funeral Home to pick up their mother’s body from Cook-Richmond.

Mr. Arnold testified that he then went to Cook-Richmond and presented Moses Richmond with the release, but that Mr. Richmond refused to release the body. J. C. Magee testified that upon learning of this refusal he called Mr. Richmond around 10 p. m., and was told that it would cost $150.00 to get the body released. After some discussion, Mr. Richmond reduced his demand to $125.00.

Plaintiffs’ attorney testified that he called Mr. Richmond around seven o’clock the next morning and asked him to release the body, but Mr. Richmond said he had a right to keep the body until he was paid.

Moses Richmond testified that he did not talk to plaintiffs’ attorney; he did not refuse to release the body until he received $125.00; hie did not talk to J. C. Magee; and, he referred the matter to his attorney early in the morning of September 10.

In spite of these denials by Mr. Richmond we note that the pre-trial order in this matter, signed by counsel for both plaintiffs and defendants, expressly states as established fact that “A request was made for the body by Earl Arnold, who stated he was acting for plaintiffs, and Moses L. Richmond advised that the body would not be released until he received $125.00,” and that “Roy M. Lilly, Jr., plaintiffs’ attorney herein contacted Moses L. Richmond, advised him that he represented plaintiffs and advised him of the provisions of Louisiana Revised Statutes 37:1846(13) [37:846(13)] and requested that the body be released.” Furthermore, it is clear from the record that defendants’ defense in this matter is that the law does not afford plaintiffs a remedy; that plaintiffs were themselves negligent in refusing to pay the $125.00; and, that defendants were justified in refusing to release the body until at least two of the children demanded the body.

The dispute as to whether plaintiffs have a cause of action in this matter was unnecessarily clouded by reference to LSA-R.S. 37:846 et seq., which places a fine on any funeral home director who refuses to surrender a body upon request. Plaintiffs argued in the court below that although the statute had a penal provision, it nevertheless imposed a civil cause of action as well. Defendants argued that the statute was merely penal in nature.

No reliance on an interpretation of LSA-R.S. 37:846 et seq. is necessary. While there seems to be no Louisiana cases squarely on point, other jurisdictions have almost universally recognized a cause of action under these circumstances. See Annotation, Liability in Damages for Withholding Corpse from Relatives, 48 A.L.R.3d 240, especially § 7 at page 249. We find no reason to follow a contrary course. See Blanchard v. Brawley, 75 So.2d 891 (La.App. 1st Cir. 1954), from which the following quotation is taken at page. 893:

“. . . although there is no property right to a dead human body in a commercial sense, here is a quasi property right in the nearest relative or next of kin of the deceased, said right being predicated on the universally recognized duty involves the right to possession and custody of the body for purposes of burial or sepulchre . . ”

We have found nothing in our law granting a funeral home the right to retain a body until services performed thereon have been paid. See 48 A.L.R.3d 240, supra. Instead, we note that those performing funeral services are given a privilege on both the movables and immovables of the deceased’s estate and that this privilege is of the highest rank. See C.C. Art. 3191 et seq. and C.C. Art. 3254 et seq. Certainly, such a secured creditor should not have a right to maintain possession of deceased’s body to secure payment.

Mr. Richmond’s argument that a demand by two children was necessary so that he “would be protected” in releasing the body is in conflict with the facts of record. Mr. Richmond picked up the body from the hospital upon written authorization of only one of deceased’s daughters, Nellie Magee Morgan. He relied upon this authorization by only one of the children to embalm the body. Yet, in spite of this, he refused to release the body to Mr. Arnold when he was presented with a release authorization signed not only by the same Nellie Magee Morgan, but also by J. C. Magee, whose signature was designated “son.”

Finally, defendants argue that plaintiffs failed to prove by a preponderance of the evidence that they suffered damages. This argument is based on the statement of the trial judge in written reasons handed down eighteen months after trial that “It is difficult to determine what portion of the grief of some of the plaintiffs resulted from the death of the mother; the death of the brother; or the state of affairs involved in moving each of the bodies from the original funeral home (two separate ones) to the Arnold establishment.”

We disagree with defendants’ argument that damages were not proven. There was uncontroverted testimony as to upset, humiliation and embarrassment. Recovery for these under analogous circumstances has been allowed. See Blanchard v. Brawley, supra.

Under the circumstances we feel that an award of $250.00 each to Nellie Magee Morgan, Allee Magee, Ollie Magee, Charles Ma-gee, J. C. Magee and Eddie Magee is proper. Since Paralee Magee Acker arrived in Bo-galusa after Arnold’s had gotten the body, we feel that an award in her favor of $100.00 is ample under the circumstances.

For the above and foregoing reasons the judgment of the lower court is reversed; and judgment is granted herein against defendants Moses L. Richmond and Cook-Richmond Funeral Home, Inc., in solido, and in favor of Nellie Magee Morgan, Allee Magee, Ollie Magee, Eddie Magee and J. C. Magee in the amount of $250.00 each, and in favor of Paralee Magee Acker in the amount of $100.00; all with judicial interest from date of demand. Appellees are to pay all costs of these proceedings.

REVERSED AND RENDERED.

      . Having found that Cook-Richmond was unjustified in demanding payment before releasing the body, we need not discuss defendants’ argument that plaintiffs were “contributorily negligent” by refusing to pay the $125.00.


author: LANDRY, Judge.

text:
    Roy THOMPSON et al. v. Paul C. LeBLANC et al.
    No. 10782.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 19, 1976.

      Walton J. Barnes, Baton Rouge, for appellants.
    Gordon R. Crawford, Gonzales, for appel-lees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiffs Roy and Bernice Thompson, husband and wife (Appellants), appeal from judgment dismissing their suit for damages for the alleged wrongful arrest and detention of Mrs. Thompson by defendant Larry LeBlanc (LeBlanc), employee of defendant Paul C. LeBlanc (Owner), principal shareholder of an establishment known as Janice LeBlanc’s Style Shop (Shop), for suspected shoplifting. We affirm.

Although the testimony of the numerous witnesses called at the trial is conflicting in some respects, the trial court has favored us with excellent oral findings of fact dictated into the record. We are in agreement with these findings which are substantially as follows:

Early in the afternoon of July 11, 1973, Mrs. Thompson and her children, Joyce, aged 16, Donald, aged 15, and Roy aged 11, were shopping at the Gonzales Mall, Gonzales, Louisiana, in which the Shop is located. They entered the Shop, an establishment dealing primarily in women’s apparel, to purchase clothing for Joyce who was contemplating a school trip. The daughter tried on and ultimately purchased three pairs of pants and one top or blouse, which items were admittedly paid for and delivered to the purchaser in one of the Shop’s distinctive pink bags by Shop employees. It appears that the other members of the family entertained themselves during the shopping episode, either by looking at the merchandise in the store or assisting Miss Thompson in making her selections.

When the Thompson family entered the Shop, Mrs. Janice LeBlanc, Owner’s wife, and an employee, Irene Gregoire were having lunch in the Shop office situated at the rear of the establishment. The evidence preponderates to the effect that when the Thompsons came into the Shop, there were no customers in the establishment. It is also shown that in addition to Mrs. LeBlanc and Mrs. Gregoire, two other employees were present. The office was equipped with a two way mirror through which its occupants could view the interior of the establishment. Mrs. LeBlanc and Mrs. Gre-goire observed the Thompsons enter the store together and immediately separate, in which circumstance they were trained to suspect a possible shoplifting incident, especially since Mrs. Thompson was carrying a large purse. Through the mirror they observed as Mrs. Thompson looked through a rack of swim suits located near the front entrance while at the same time opening her purse. At this same time, one of the Thompson boys passed between his mother and the mirror, apparently while Mrs. Thompson was either opening or fingering her purse, which circumstance caused Mrs. LeBlanc and Mrs. Gregoire to believe they saw Mrs. Thompson place a swim suit in her purse. Either Mrs. LeBlanc or some other personnel of the store immediately checked the swim suit rack and found an empty hanger where Mrs. Thompson had been looking at the swim suits.

In accordance with Owner’s standing instructions, Mrs. LeBlanc telephoned Larry LeBlanc, who was employed in another of Owner’s shops located across the mall of the shopping center, and requested that he come to the shop immediately. LeBlanc arrived while the Thompsons were still in the store. He immediately telephoned and requested the police to send someone to investigate the incident. He kept the Thompsons under observation until the Thompsons left the store approximately five minutes after LeBlanc phoned for the police. He watched as the Thompsons exited the Shop and crossed the mall to a fabric store situated directly across from the Shop. The Thompsons remained in the fabric shop for 5 to 10 minutes and re-crossed the mall to visit a card and novelty store next to the Shop.

After completing her visit to the card shop, Mrs. Thompson, accompanied by the children, proceeded to leave the mall in the direction of the parking lot. En route to the parking lot, Mrs. Thompson again passed the Shop, at which point LeBlanc realized she would leave the premises before the police arrived. As Mrs. Thompson neared the front door of the Shop, LeBlanc approached Mrs. Thompson and requested that she return to the shop so that the ladies there could look into her purse because they suspected her of shoplifting. Mrs. Thompson reacted with surprise and disbelief because she at first did not think LeBlanc was addressing her. LeBlanc then repeated his request whereupon Mrs. Thompson protested her innocence and refused to re-enter the Shop. Upon the urging of her children, particularly the daughter who suggested that her mother should prove her innocence, Mrs. Thompson voluntarily re-entered the Shop.

It is conceded that LeBlanc did not threaten, coerce or attempt to intimidate Mrs. Thompson in any manner whatsoever. It is also admitted that he used no abusive language and did not threaten Mrs. Thompson with arrest.

Mrs. Thompson was understandably upset over the accusation. LeBlanc opened the door of the Shop for Mrs. Thompson who proceeded immediately to the check out counter where, without further request from Shop personnel, she removed several large items from her purse, placed them on the counter, and emptied the remaining contents onto the counter. Mrs. LeBlanc or some other Shop personnel examined the purse but found nothing incriminating, either in the purse or on the counter. Mrs. LeBlanc apologized for the inconvenience caused Mrs. Thompson. Mrs. Thompson then asked Mrs. LeBlanc to identify herself, and upon learning Mrs. LeBlanc’s name, Mrs. Thompson told Mrs. LeBlanc she would hear from Mrs. Thompson’s attorney. With that, Mrs. Thompson left the establishment. At no time did the police appear at the scene. The record establishes conclusively that except perhaps for the Thompson children, Mrs. Thompson was the only person other than Shop personnel in the shop when she entered the store at Le-Blanc’s request. The evidence is conflicting whether the Thompson children followed their mother into the establishment. Mrs. Thompson and the children testified that the children did accompany their mother when she re-entered the Shop. Mrs. Le-Blanc, LeBlanc, Mrs. Gregoire and one or two other employees testified that Mrs. Thompson entered the Shop alone.

The trial court concluded that LeBlanc was authorized by Owner to detain and question suspected shoplifters and that the detention in question was privileged because LeBlanc acted with probable cause and exercised reasonable measures under the circumstances.

Appellants contend that the trial court erred in the following determinations: (1) holding that probable cause existed when the detention was made by a party without personal knowledge of the events upon which the detention was based; (2) holding that the search was reasonable notwithstanding that it was conducted in a public area of the Shop instead of in the privacy of the office or some other non-public area of the Shop; and (3) holding that the detention was privileged even though it was not made on the premises but in a public area of the shopping center.

Defendants invoke the privilege extended shopkeepers pursuant to La.Code Crim.Pro. Art. 215 which pertinently provides:

“Art. 215. Detention and arrest of shoplifters

A peace officer, merchant, or a specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.”

The relevancy of Article 215, above, is best explained in Official Revision Comment (e) thereto, which states:

“ . . .If the detention is authorized under the first paragraph, immunity from both criminal and civil liability will naturally follow. If the peace officer, merchant, or employee does not comply with the terms of the first paragraph, the detention will not be authorized and there should be no immunity.”

To meet the requirements of an authorized detention, as defined in Article 215, above, it must be shown: (1) The person effecting the detention must be a peace officer, a merchant or a specifically authorized employee of a merchant; (2) The party making the detention must have reasonable cause to believe that the detained person has committed theft; (3) Unreasonable force not be used in detaining the suspect for interrogation; (4) The detention must occur on the merchant’s premises; and (5) The detention may not last longer than sixty minutes.

The testimony supports the trial court’s finding that LeBlanc was authorized by Owner to detain customers suspected of shoplifting. Mrs. LeBlanc and Mrs. Gre-goire testified they were under standing orders from Owner to call Mr. LeBlanc, who worked in another of Owner’s shops across the mall, whenever the employees of the Shop suspected an incident of shoplifting. The testimony also shows that these ladies had in fact called Mr. LeBlanc for such purpose on many prior occasions, all of which testimony was fully corroborated both by Owner and LeBlanc.

As did the trial court, we find Le-Blanc had reasonable and probable cause to suspect that a theft had occurred. Considering the circumstances, including the facts that Mrs. Thompson was carrying a very large purse, that she was observed handling the bathing suits, that the Shop employees saw what they considered a suspicious move by Mrs. Thompson and that an empty hanger was seen on the rack after Mrs. Thompson left the area where the bathing suits were displayed, we find it reasonable that the employees suspected a theft had occurred.

On authority of Chretien v. F. W. Woolworth Company, La.App., 160 So.2d 854, appellants maintain that LeBlanc did not have reasonable cause for detention because he lacked personal knowledge of the events which gave rise to the suspicion of shoplifting. Appellants argue that the statute authorizes a peace officer, merchant, or authorized employee of a merchant to make a detention when the detaining party has reasonable cause to believe a theft has occurred. Appellants also note that Article 215, above, provides that a complaint to a peace officer by a merchant or his employee, constitutes reasonable ground for a peace officer to make a detention, but that the statute has no similar provision authorizing an employee of a merchant to make a detention upon the complaint or report of another employee. On this basis, it is argued that LeBlanc did not have reasonable cause to suspect a case of shoplifting because he did not have personal knowledge, but acted instead upon information of another employee.

We find the Chretien case, above, distinguishable on the ground that said authority involved a detention made on the complaint of a stranger, whereas here, an authorized employee effected the detention upon a complaint from fellow employees who actually witnessed the incident. Our jurisprudence holds that a merchant or his authorized employee may rely upon the report or complaint of an employee regarding a suspected incident of shoplifting and that a detention under such circumstances is within the purview of the applicable statute. Lasseigne v. Walgreen, La.App., 274 So.2d 480; Cannon v. Goudchaux’s, Inc., La.App., 255 So.2d 243; Williams v. F. W. Woolworth Co., La.App., 242 So.2d 16.

Appellants’ suggested interpretation of the applicable statute would render the law ineffective in large measure. If an employee authorized to make detentions in cases of this nature were restricted to instances based on personal knowledge of the suspected offense, merchants would be placed under an unconscionable disadvantage in the protection of their goods against theft. We find the evident intent of the statute to be to provide shopkeepers and merchants a reasonable means of protecting their goods against theft, compatible and consistent with the constitutionally guaranteed protection of patrons and customers from unreasonable detention and search for suspected crime. We find that an employee authorized to make detentions in cases of this nature acts with reasonable cause when he detains a person upon complaint of a fellow employee.

We find that LeBlanc acted reasonably in the manner in which he detained Mrs. Thompson. It is conceded he never touched or threatened Mrs. Thompson but that he politely requested her to return to the Shop and advised her that the reason for his request was that she was suspected of shoplifting. On Mrs. Thompson’s refusal, LeBlanc made no further request and Mrs. Thompson’s decision to re-enter the establishment was made upon the urging of her children that she establish her innocence of the charge. It is also shown that Mrs. Thompson hastily entered the store ahead of LeBlanc who held the door open for her. She proceeded directly to the check-out counter where she immediately emptied her purse before anything was said by LeBlanc or any other employee of the establishment. There were no other customers in the Shop, save the possible exception of the Thompson children. That the incident occurred in a public portion of the shop under these circumstances, does not constitute unreasonableness on the part of the employees involved. Durand v. United Dollar Store of Hammond, Inc., La.App., 242 So.2d 635.

Finally, the fact that the detention occurred in front of the Shop and not within the store does not defeat the merchant’s statutory privilege. The record establishes that the detention occurred on a sidewalk or walkway within a few feet of the door of the Shop. The area in question was part of a shopping center complex belonging to a corporation of which Owner was major stockholder. It also appears that Owner’s lease of the Shop required Owner to maintain the sidewalk or walkway in question. Sidewalks immediately in front of a merchandising establishment are considered part of the premises for purposes of application of La.Code Crim.Pro.Art. 215. Durand v. United Dollar Store of Hammond, Inc., above; Eason v. J. Weingarten, Inc., La.App. 219 So.2d 516; Simmons v. J. C. Penney Company, La.App., 186 So.2d 358.

The judgment of the trial court is affirmed, all costs of these proceedings to be paid by Appellants.

Affirmed.


author: COVINGTON, Judge:

text:
    Marian Danks GREEN, etc. v. Donald J. CENAC et al.
    No. 10783.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 16, 1976.

      Calvin H. McBride, James D. McGovern, Jr., New Orleans, for appellant.
    J. Louis Watkins, Houma, for appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This is an appeal from a judgment in a petitory action, rejecting the claim of ownership of the plaintiff, Marian Danks Green, in her capacity as Administratrix of the Succession of Louisa Jackson, widow of Hil-liard Franklin, and recognizing the defendant, Donald J. Cenac, to be the owner of Lot 8 in Block 10 of the Town of Houma, Louisiana, designated as Municipal No. 622 Roussel Drive, Houma, Louisiana, and also dispensing with an accounting for rent collected.

The plaintiff instituted a petitory action against defendant Cenac to have the Succession of Louisa Franklin decreed the owner of the subject property, and an action for an accounting against the rental agent, Helen Carter Bryant and her husband, C. S. Gordon. The petition alleged that plaintiff was out of possession of the property and admitted that defendant Cenac was in possession. Defendant Cenac admitted in his answer that he was in possession and claimed the property adversely to the plaintiff, having acquired the property from the heirs of Louisa Franklin, deceased.

On the trial it was established that Louisa Franklin acquired the subject property by deed from Clarence Davis on May 5, 1906, of record in C.O.B. 55, folio 157, Terre-bonne Parish, Louisiana. Louisa Franklin died in 1917. From 1938 until October 5, 1972, defendant Helen Carter Bryant Gordon, wife of defendant Reverend C. S. Gordon, managed the subject property for the alleged heirs of the decedent. On October 5, 1972, defendant Bryant, acting as agent for the alleged heirs, conveyed said property to defendant Cenac.

Thereafter, plaintiff Green petitioned on November 29,1972, to be appointed Admin-istratrix of decedent’s succession, naming different heirs, Hester Franklin and her children and grandchildren, from the heirs for whom defendant Bryant had been managing since 1938, namely, James Campbell, James W. Jones and Arthur Keyes.

Subsequently, the plaintiff in the present action instituted an eviction proceeding in the city court against the lessees of defendant Cenac. After trial, the court took the matter under advisement and the record does not reflect that a decision has been rendered.

There is no dispute that the decedent owned the subject property. She never disposed of it during her lifetime. Long after her death persons claiming to be the Franklin heirs conveyed the property to defendant Cenac. Other persons claiming to be the Franklin heirs assert ownership of the subject property through the plaintiff herein, claiming that the property still belongs to the decedent’s succession.

To support the petitory action and claim of heirship, plaintiff offered the succession proceedings with the affidavit of death and heirship. On the trial it developed that the affiants had no personal knowledge of the heirs of Louisa Franklin and plaintiff offered no convincing evidence as to who were the Franklin heirs.

The trial court ruled that since defendant Cenac was admittedly in possession of the subject property, plaintiff in the petitory action had the burden of making out her title thereto. LSA-C.C.P. art. 3653. The burden of proof imposed on the plaintiff in a petitory action where the defendant is in possession is much more onerous than when the defendant is out of possession. See Comment (a) under LSA-C.C.P. art. 3653.

This comment states that the words “make out his title” are to have the same meaning as given to them under the jurisprudence interpreting the source provision, Article 44 of the Code of Practice. The rule established by the jurisprudence is that in a petitory action against a defendant in possession the plaintiff must make out his title to the property claimed and must recover upon the strength of his own title and not on the weakness of the defendant’s. See Deselle v. Bonnette, 251 So.2d 68, 70 (La.App.3rd Cir. 1971), writ denied, 259 La. 881, 253 So.2d 215; Johnson, Real Actions, 35 Tul.L.Rev. 541, 547 (1961).

The leading case on this question is Pure Oil Company v. Skinner, 294 So.2d 797, 798 (La. 1974), in which our Supreme Court said:

“The record in this case establishes, and it is undisputed, that the relators have possessed the property in question since 1947. Therefore, it is clear that the burden of proof placed on respondents is greater than that provided in Code of Civil Procedure Article 3654(2), the burden of proving a better title. The statutory imposition of a higher burden of proof than simply proving better title when an adverse claimant is in possession of disputed land leads to the inevitable conclusion that respondents’ burden was to ‘make out his title thereto.’ In other words, respondents were required to prove valid record title, to show title good against the world without regard to the title of the party in possession.”

Hence, it is established that the plaintiff in a petitory action, when the defendant is in possession, must prove good title against the world. To hold otherwise would be to deracinate those statutory and jurisprudential pronouncements.

When LSA-C.C.P. art. 3653 and the cited authorities are applied to the instant case it is clear that the plaintiff has not proved a valid title. The affidavit of heir-ship was signed by Irene Robertson Danks and Nehemiah Noble. Mrs. Danks testified at the trial of this action. Her testimony is to the effect that she had no personal knowledge of the decedent, Louisa Franklin, and that she had never lived in the community where the decedent lived and died. There is nothing in her testimony to show that any of the claimants were related to the decedent, much less her heirs. In her testimony she said she knew the other affi-ant, Nehemiah Noble, but that she did not remember what he knew about the Franklin family. Although it appears that Noble was a man of 52 to 59 years of age who resided in Terrebonne Parish or Orleans Parish, depending upon whether the plaintiff or Mrs. Danks was correct, he was not called as a witness. It is also to be noted that the plaintiff, Mrs. Green, did not know who the heirs of Louisa Franklin are.

Mrs. Green testified, as follows, N.T. 33:

“Q. You don’t know then from what you’re telling me whether or not your father was a grandchild of Louisa Franklin, do you?
A. No, I don’t know.
Q. You don’t know what his relationship was to Louisa Franklin?
A. No.
Q. And I don’t guess then that you know what relationship your grandmother, Hester Danks, was to Louisa Franklin?
A. No, I don’t.”

Our review of the evidence and testimony convinces us that the trial court was correct in his judgment that plaintiff’s petitory action must fail. There is no proof that the persons who claim through the succession of Louisa Franklin, deceased, are her heirs.

Having concluded that the plaintiff’s petitory action must be dismissed, we do not consider the question of the defendant’s title. Our jurisprudence is well settled that the title of the defendant is not at issue until the plaintiff has proved a valid title in himself in a petitory action against a defendant in possession. See Desselle v. Bonnette, supra, at 72.

We also conclude that the plaintiff is not entitled to an accounting, the claim of ownership on which the accounting is based having fallen.

Accordingly, it is ordered, adjudged and decreed that the portion of the trial court’s judgment which dismissed the petitory action affecting the following described property is affirmed.

A certain lot of ground, situated in the town of Houma, in the Parish of Terre-bonne, measuring sixty (60') feet front on Roussel Street by a depth of one hundred twenty (120') feet, better known on a plan of Houma on file in the office of the Clerk of Court, Terrebonne Parish, Louisiana, as Lot No. Eight (8) in Block No. Ten (10); together with all the buildings and improvements thereon.
Improvements thereon bear Municipal No. 622 Roussel Street, Houma, Louisiana.

It is further ordered, adjudged and decreed that the judgment of the trial court is amended to delete that portion thereof which decreed ownership of the property. Costs are to be assessed against the appellant.

AMENDED AND AFFIRMED.


author: PER CURIAM.

text:
    Bruce E. BORRI, Petitioner, v. Elaine M. SIVERSON, etc., Respondent.
    No. 47718.
    Supreme Court of Florida.
    June 16, 1976.
    Rehearing Denied Sept. 7, 1976.
    Bill McCabe of Meyers, Mooney & Adler, Orlando, for petitioner.
    Lyman T. Fletcher of Sheppard, Fletcher, Hand & Adams, Jacksonville, for respondent.
   PER CURIAM.

We issued a writ of certiorari in this cause. Upon reviewing the briefs and record, we are of the opinion that certiorari should not have been granted.

The writ is hereby discharged.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, ENGLAND, SUND-BERG and HATCHETT, JJ„ concur.


author: ADKINS, Justice.

text:
    STATE of Florida, Petitioner, v. Bunyan L. KENDRICK, Jr., Respondent.
    No. 47116.
    Supreme Court of Florida.
    June 9, 1976.
    Rehearing Denied Sept. 7, 1976.

      Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for petitioner.
    James A. Gardner, Public Defender, and Harold H. Moore and Steven H. Den-man, Asst. Public Defenders, for respondent.
   ADKINS, Justice.

Certiorari was granted to review a decision of the District Court of Appeal, Second District (Kendrick v. State, 308 So.2d 152), on ground of direct conflict with a decision of this Court.

Charged with aggravated assault and with resisting arrest with violence, respondent pleaded not guilty. Then, on the date set for trial, he withdrew the not guilty pleas and pleaded guilty to aggravated assault and to resisting arrest without violence. At the change-of-plea proceedings, the trial court accepted the guilty pleas after determining that they were freely and voluntarily made. But the court failed, at that time, to determine a factual basis for the pleas.

At the sentencing proceeding, however, the trial court considered the presentence investigation report; the court also considered depositions in which witnesses stated that respondent possessed a knife at the time of the alleged aggravated assault. Respondent denied possession of a knife. Nevertheless, the court sentenced respondent to three years on the aggravated assault charge. Respondent was also sentenced on the charge of resisting arrest without violence.

Respondent appealed to the District Court of Appeal, challenging the guilty pleas because of the trial court’s failure to determine their factual basis. The District Court of Appeal [Kendrick v. State, 308 So.2d 152 (Fla.App.2nd, 1975), hereinafter referred to as Kendrick] affirmed the judgment and sentence on the charge of resisting arrest without violence, holding that respondent failed to allege any prejudice stemming from the lack of a factual basis determination for the plea relating to that charge. But the District Court reversed the judgment and sentence for aggravated assault, implicitly holding that the trial court’s failure to adequately determine a factual basis resulted in prejudice when respondent denied possession of a knife. The District Court “remanded with the opportunity for appellant [respondent here] to change his plea to not guilty.” 308 So.2d at 154.

Subsequently, the State filed a petition for writ of certiorari with this Court, claiming that the decision of the District Court of Appeal conflicts with the following decisions: Hall v. State, 309 So.2d 226 (Fla.App.2nd, 1975); Estes v. State, 294 So.2d 122 (Fla.App.1st, 1975); Mower v. State, 308 So.2d 586 (Fla.App.1st, 1975); and Reyes v. Kelly, 224 So.2d 303 (Fla.1969).

The circumstances of the Kendrick and Hall cases are strikingly similar. The defendants in both cases entered guilty pleas which the respective trial courts accepted. At the sentencing proceedings, the defendants in both cases denied elements of the charges against them; despite the denials, both trial courts sentenced the defendants. Yet, where the Kendrick court reversed judgment and sentence, the Hall court affirmed judgment and sentence. But as the Hall court specifically stated, the two cases are distinguishable. See Hall v. State, supra at 227. Upon review of the Hall decision, it is clear that the trial court therein made adequate inquiry into the factual basis of the guilty plea. It is equally clear that the trial court in Kendrick failed to make an adequate inquiry. The two cases are not in conflict.

There is no conflict with Estes v. State, supra. The defendant in Estes did not “say or contend that indeed there was no factual basis for his guilty plea.” 294 So.2d at 123. Further, the conflict within the Estes opinion was resolved by this Court in Estes v. State, 316 So.2d 276 (Fla.1975), when we recognized that “[t]he fact that the plea is negotiated does not eliminate the ‘factual basis’ requirement . . . 316 So.2d at 277.

Nor is there conflict with Mower v. State, supra. In Mower, the District Court noted that the trial judge made adequate inquiry into the factual basis of the defendant’s guilty plea; judgment and sentence were affirmed. Further, the Mower opinion does not indicate that the defendant, during the course of the trial court proceedings, disputed the evidence or denied any element of the crime charged.

Finally, Kendrick does not conflict with Reyes v. Kelly, supra. The issue in Reyes was whether the trial court’s acceptance of the defendant’s plea of guilty caused former jeopardy to attach. The dictum in which the Reyes court construed the predecessor of Florida Rule of Criminal Procedure 3.170(j) generates no conflict because the factual basis requirement was not added to the rule until after Reyes. See In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1972).

Thus, the decision below conflicts with none of the four decisions suggested by the State. But as will be shown herein, the decision below does conflict with a decision of this Court. Accordingly, we have jurisdiction pursuant to Fla. Const. art. V, § 3(b)(3), F.S.A.

It is settled that the presence of a deadly weapon is an essential element of aggravated assault. See, e. g., Goswick v. State, 143 So.2d 817, 820 (Fla.1962). In the instant case, respondent denied possession of a deadly weapon — specifically, a knife.

This Court recently recognized that where a defendant claims a defense during the course of a guilty plea proceeding, the plea may be subject to attack. Williams v. State, 316 So.2d 267, 273 (Fla.1975). But' in order to challenge a guilty plea for lack of a factual basis determination by the trial judge, a defendant must show prejudice or manifest injustice. Id. at 275. Where a defendant raises the possibility of a defense to his guilty plea, the potential prejudice is apparent. In such circumstances, a trial judge should make extensive inquiry into factual basis before accepting the guilty plea. See State v. Lyles, 316 So.2d 277 (Fla.1975)., Correspondingly, the showing in the record of the source of the factual information supporting the plea (required by Williams v. State, supra at 273) should be made with greater specificity than was done in the instant case.

The court below reversed the judgment and sentence for aggravated assault. That result conflicts with the result reached by this Court in State v. Lyles, supra, where we indicated that a plea entered and accepted under the above-outlined circumstances should not be vacated. In Lyles, we stated:

“We direct the District Court to remand this cause to the trial court for the following purposes: (a) to make inquiry of the defendant and his counsel concerning their discussions relative to the defenses to the charge; (b) to receive evidence of a factual basis for the plea; and (c) to allow the defendant an opportunity to present evidence on his own behalf to show how, if at all, manifest injustice occurred.” 316 So.2d at 279.

In our opinion, the Lyles result is the proper one. Accordingly, the decision of the District Court is quashed. The cause is remanded with directions to remand this cause to the trial court for proceedings consistent with Lyles and with this opinion.

It is so ordered.

OVERTON, C. J., and ROBERTS, BOYD and ENGLAND, JJ., concur.


text:
    THE FLORIDA BAR. In re William J. NEALE.
    No. 49778.
    Supreme Court of Florida.
    Aug. 3, 1976.
    Douglas L. Cheshire, Jr., Titusville, and John A. Weiss, Tallahassee, for The Florida Bar, Complainant.
    Joe M. Mitchell, Jr., Melbourne, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline filed by The Florida Bar.

The Amended Complaint filed with the referee on April 28, 1976 reads as follows:

“AMENDED COMPLAINT
“THE FLORIDA BAR, Complainant, files this Complaint against WILLIAM J. NEALE, Respondent, pursuant to Article XI of the Integration Rule of The Florida Bar, as amended and alleges:

COUNT I

1. The Respondent, WILLIAM J. NEALE is, and at all times hereinafter mentioned was, a ^member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of this Complaint, required by the Integration Rule, have been fulfilled.

3. Prior to April 1973 the Respondent was retained by Margaret L. Farrier (hereafter referred to as Margaret L. Sanders) to represent her in divorce proceedings against Howard L. Farrier.

4. On April 17, 1973, Mrs. Sanders, represented by Respondent, entered into a stipulation with her husband whereby they agreed to certain provisions regarding child support and custody and property settlement.

5. Paragraph 5 of the April 17, 1973, stipulation provided for the sale of the parties’ home, with a portion of the proceeds of the sale being used to pay off certain enumerated debts, which the parties jointly owed.

6. On May 10, 1973, the final judgment dissolving the Farrier marriage was handed down. The April 17, 1973, stipulation was incorporated into the judgment.

7. On July 22, 1974, the Farrier-Sanders’ home was sold to Louie H. and Merle P. Hinman for $18,750. Respondent represented Margaret L. Sanders and Howard L. Farrier, the sellers at the closing.

8. On or about August 1, 1974, Respondent received the proceeds from the sale of the Farrier-Sanders home in his capacity as attorney for the sellers.

9. Respondent retained approximately $830.00 of the aforementioned sale proceeds for the purpose of paying off the debts listed in the April 17, 1973, stipulation.

10. Respondent held the aforementioned $830.00 in trust for the benefit of Margaret L. Sanders and Howard L. Farrier, or for the benefit of their creditors.

11. Respondent deposited the afore-, mentioned $830.00 into a trust account.

12. Respondent did not disburse the $830.00 in trust funds to the parties to whom the trust funds were owing, nor did he return them to his client, Margaret L. Sanders.

13. Margaret L. Sanders has repeatedly and unsuccessfully demanded that Respondent either disburse or return to her the funds Respondent holds in trust.

14. By reason of the foregoing, Respondent has violated Rule 11.02(4) of Article XI of the Integration Rule and Disciplinary Rules 9-102(A) and 9-102(B)(4) of the Code of Professional Responsibility.

COUNT II

15. Complainant realleges the matters presented in paragraphs 1 and 2 of Count I.

16. On October 24, 1974, James S. White, Jr., and his wife Frances C. White, purchased a mobile hotdog stand with the intent of operating a business out of the stand.

17. A provision of the contract of purchase of the mobile hotdog stand was that the business was in full compliance with all governmental regulations at the time the Whites purchased the stand.

18. On December 2, 1974, Mr. and Mrs. White were advised by the Department of Business Regulation, Division of Hotels and Restaurants, that their business did not comply with the regulations of the State of Florida, and that the business must be shut down until they complied with the relevant regulations.

19. On December 2, 1974, Mr. and Mrs. White consulted with Respondent for advice on legal procedures available to them. They paid Respondent a fee of $25 for his services.

20. On December 11, 1974, Mr. and Mrs. White retained Respondent for the purpose of filing suit for rescission of their contract purchasing the hotdog stand, for restitution of their purchase price and for damages for breach of contract. Respondent received $500 on December 12, 1974 as advance payment for his services while representing Mr. and Mrs. White.

21. At the time Mr. and Mrs. White retained Respondent, they instructed him to proceed with their case promptly.

22. Despite repeated requests from Mr. and Mrs. White that he expedite their ease, Respondent did not file suit in their behalf until April 3, 1975.

23. On April 28, 1975, the defendants in the White case filed a Motion to Dismiss.

24. Respondent did not notice the Motion to Dismiss for hearing until June 5, 1975, and the hearing was set for July 8, 1975.

25. On July 17, 1975, the White’s Complaint, as filed by Respondent, was dismissed, with leave to file an amended Complaint within 20 days.

26. Respondent neglected to file an amended Complaint in behalf of Mr. and Mrs. White within the 20 day period set by the Court.

27. Respondent did not advise Mr. and Mrs. White of the dismissal of their case.

28. By reason of the foregoing conduct, Respondent has violated Disciplinary Rules 6-101(A)(3) and 7-101(A)(2) of the Code of Professional Responsibility-

COUNT III

29. Complainant realleges the matters presented in paragraphs 15 through 27 of Count II above.

30. On September 15, 1975, Mr. and Mrs. White discharged Respondent and demanded that he return the unearned portion of the $500 fee they paid him.

31. On October 1, 1975, Respondent refunded $250 of the White’s fee, payment of which was by Respondent’s check 3145 drawn on account 300 062 8 at the Flagship Bank of Melbourne, Florida.

32. On the back of the Respondent’s aforementioned check no. 3145, Respondent had typed out a statement making the refund contingent upon Mr. and Mrs. White releasing Respondent from any claims they might have against Respondent for his misconduct.

33. By reason of the foregoing, Respondent has violated Disciplinary Rule 6-102(A) of the Code of Professional Responsibility.

WHEREFORE, the Complainant prays that the Respondent will be appropriately disciplined in accordance with Article XI of the Integration Rule of The Florida Bar.”

The Conditional Guilty Plea for Consent Judgment filed by Respondent, William J. Neale, is hereby approved by the Court and said Respondent is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above, the publication of this opinion shall serve as the public reprimand to Respondent; Respondent is hereby placed on probation for two years from this date pursuant to the terms of the Conditional Guilty Plea for Consent Judgment.

Costs in the amount of One Hundred Dollars ($100) are hereby taxed against Respondent to be paid within thirty days from this date.

It is so'ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD and ENGLAND, JJ., concur.


author: OVERTON, Chief Justice.

text:
    STATE of Florida, Petitioner, v. Robert F. CARR, Respondent.
    No. 49862.
    Supreme Court of Florida.
    Aug. 3, 1976.
    Robert L. Shevin, Atty. Gen., Richard E. Gerstein, State Atty., and Ed O’Donnell, Asst. State Atty., for petitioner.
    Phillip A. Hubbart, Public Defender, and Michael Vonzamft, Asst. Public Defender, for respondent.
   OVERTON, Chief Justice.

This cause is before the Court upon a certified question pursuant to Florida Appellate Rule 4.6.

The defendant in this cause pleaded, guilty to first degree murder and is subject to the imposition of the death sentence. The defendant entered a written waiver of an advisory jury, which waiver was determined by the trial judge to have been freely, intelligently, and voluntarily made. Counsel for the state and counsel for the defendant under the authority of Lamadline v. State, 303 So.2d 17 (Fla.1974), have agreed that the defendant may waive the advisory jury proceeding. The trial judge, pursuant to Florida Appellate Rule 4.6, certified the following question:

“Whether a trial court in a capital case is required to accept a defendant’s valid waiver of an advisory jury pursuant to Florida Statute 921.141(2) resulting in a judicial determination of sentence without benefit of a jury’s recommendation in light of the guidelines toward uniformity in sentencing enunciated in Proffitt v. State of Florida, U.S.S.Ct.1976 [- U.S. -, 96 S.Ct. 2960, 48 L.Ed.2d -], and Furman v. Georgia, 408 U.S. 238 [92 S.Ct. 2726, 33 L.Ed.2d 346] (1972)?”

In response to the question, we find that the trial judge, upon a finding of a voluntary and intelligent waiver, may in his or her discretion either require an advisory jury recommendation, or may proceed to sentence the defendant without such advisory jury recommendation.

The question having been answered, the cause is remanded for further proceedings.

It is so ordered.

ROBERTS, ADKINS, BOYD, SUND-BERG and HATCHETT, JJ., concur.


text:
    THE FLORIDA BAR. In re Ronald Wilson BROOKS.
    No. 49761.
    Supreme Court of Florida.
    Aug. 3, 1976.
    Brian T. Hayes, Monticello, and David G. McGunegle, Tallahassee, for The Florida Bar, complainant.
    William L. Camper, Tallahassee, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline filed by The Florida Bar.

The Stipulated Facts are as follows:

“STIPULATED FACTS RE: RONALD WILSON BROOKS
On September 21, 1973, Robert Rahme and his seven-year-old son David, Don Spicer, Jr., David Pfaff, and Karen Ten-ney left Tallahassee, Florida, in Rahme’s van for a bow and arrow hunting and camping trip at the Robert Brent Wildlife Management Preserve. The group proceeded from Tallahassee to Brooks’ home on Lake Talquin near the Wallwood Boy Scout Camp. From Brooks’ home, the group went to the management area in two vehicles, Rahme’s van and Brooks’ jeep. At dusk, Rahme, Brooks and Pfaff departed for a hog pen located on Duncan Hosford’s property with the announced intention of releasing the hogs which they considered to be illegally baited from the Brent Wildlife Management Area. Tenney, Spicer and David remained at the campsite. Spicer was not allowed to accompany Rahme, Brooks and Pfaff to protect him from getting into trouble. Later Rahme returned in the jeep and spoke briefly to Tenney, and then departed in the jeep. Spicer and David were asleep at the time, although Spicer vaguely remembers Rahme returning.
During the course of the evening, Duncan Hosford and Edmond “Buck” Mercer came by the campsite looking for persons whom they suspected were stealing Hos-ford’s hogs.
Later that evening, Hosford and Mercer approached the hog pen in Hosford’s truck. The headlights of Hosford’s truck were seen by Rahme who was at the hog pen. Upon seeing the approaching vehicle, Rahme jumped into the jeep and started driving away from the pen toward Hosford and Mercer who were out of the truck some distance from the hog pen. Brooks and Pfaff started running through the woods and subsequently heard shots being fired, but never returned to the pen. They did not see Rahme being shot nor knew that he had been shot. However, Rahme, in the speeding jeep, drove past Hosford and Mercer. Hosford fatally shot Rahme in the fleeing jeep. At no time did Hosford or Mercer see anyone at the hog pen other than Rahme. However, after Rahme had been shot, Hosford did find a dead hog with piglets in the back of the jeep driven by Rahme. The hog had been shot with two arrows while in the pen.
Pfaff found his way out of the woods to State Road 20 and hitched a ride in a Wells Fargo truck to his residence in Tallahassee where he lived with his girlfriend, Kathy Jones, and her sister, Amy Jordan.
Brooks made his way to State Road 20 where he was picked up by John Pearce and his girlfriend, Trudey Letton, in Pearce’s camper. They returned to Brooks’ house shortly before daylight on Saturday morning. During the trip, Brooks related to Pearce that he, Pfaff, and Rahme had gone to a hog pen located on posted property for the purpose of releasing hogs, which they felt were being illegally baited off the Brent Wildlife Management Area. Brooks said that Rahme had killed one of the hogs in the pen with a bow and arrow, and that shortly afterward someone approached the scene in a vehicle at which point Rahme jumped into the jeep and fled and Brooks and Pfaff ran off into the woods. Brooks went on to say that killing the hog was Rahme’s idea and that if he had been caught, Brooks did not want to become involved. Accordingly, he asked Pearce and Letton to tell anyone who asked that they had picked him up at home.
Brooks, Pearce, and Letton had breakfast at Brooks’ place where he showered and put on fresh clothes. The group then returned to the campsite whre [sic] they met law officers who took Brooks into Bristol. Both Brooks and Pearce were questioned in Bristol, then Brooks was released.
Tenney, Spicer, and the boy David followed the law officers to Bristol, identified Rahme’s body at the funeral home and then went to Brooks’ home (on Lake Talquin in Gadsden County, some 10 to 12 miles from the scene of the killing) where they told Mrs. Brooks that Rahme was dead. Shortly after the arrival of Ten-ney, Spicer and David at the Brooks’ home, Brooks arrived with Pearce who called Pfaff. Pfaff and Pearce discussed the idea that Pfaff notch his boots so that the law enforcement officers could not match his boots with the footprints at the scene of the shooting. However, at the suggestion of either Pearce or Brooks, the idea was discarded. Pfaff then came to Brooks’ home where Pearce advised those present that Brooks, as a lawyer, could be disciplined for trespassing or for attempting to steal a hog, and that he must be kept from being involved.
The story developed was to be as follows: Brooks did not intend to camp out that Friday night, merely going along with the group to find out where the campsite would be so that he could then join Pearce the next morning and show him the way to the campsite where they would join Rahme and Pfaff for bow hunting; that after the campsite was selected, Rahme, Brooks and Pfaff got into the jeep to take Brooks to his home near Lake Talquin; that while driving through the forest at or about dusk, the group decided to drop Pfaff off to look for tracks of game in the woods; that Rahme and Brooks then continued on to Brooks’ home arriving there about 9:30 p. m. Friday night; further, that Pfaff got lost in the woods in the darkness and could not find his way to camp, but did eventually manage to get out to a paved road and hitchhike a ride to his residence in Tallahassee; finally, that Pearce met Brooks early Saturday morning, the two proceeded toward the campsite, and shortly thereafter learned that Rahme had been killed the night before.
On September 27, 1973, Brooks, pursuant to á subpoena requested by the State Attorney, appeared and testified under oath before a coroner’s inquest in Liberty County investigating the death of Robert Rahme basically to the foregoing story.
The parties hereto stipulate that Respondent’s testimony although not legally perjurious, (See F.S. 837.02 (1973) and C.G.L. 7477 (1927); Rivers v. State [121 Fla.887]; 164 So. 544 (Fla.1935) was nonetheless false regarding his absence from the general area of the hog pen at the time Rahme was shot. As such, Respondent’s testimony constituted false swearing and a violation of Integration Rule 11.02(3)(a) and Disciplinary Rules 1-102(A)(3), 1-102(A)(4) and 1-102(A)(5) of the Code of Professional Responsibility.”

The Petition for Approval of Conditional Guilty Plea is granted and Respondent Ronald Wilson Brooks, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of Two Hundred Ninety-Six Dollars and Fourteen Cents ($296.14) are hereby taxed against Respondent.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD and ENGLAND, JJ., concur.


author: ROBERTS, Justice.

text:
    STATE of Florida, Petitioner, v. James Lee SPRATLING, Respondent.
    No. 47421.
    Supreme Court of Florida.
    July 28, 1976.

      Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for petitioner.
    David J. Busch, Asst. Public Defender, for respondent.
   ROBERTS, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, in Spratling v. State, reported at 310 So.2d 306 (Fla.App. 1, 1975), which purportedly conflicts with Smith v. State, 292 So.2d 69 (Fla.App. 3, 1974).

On November 4, 1971, a four count information was filed against respondent charging him with breaking and entering with intent to commit a felony, kidnapping, and two counts of assault and battery. He plead guilty to two counts of assault and battery, adjudication of guilt was withheld, and he was placed on probation for five years.

On January 4, 1974, respondent was arrested and charged with murder in the first degree. The police reports stated that the victim had been shot with a small caliber shotgun. The trial judge on January 10, Í974, issued a Rule to Show Cause directed to respondent charging that he violated condition “(e)” of his probation, which provides:

“In all respects live honorably, work diligently at a lawful occupation, and support dependents, if any, to the best of defendant’s ability, and live within what income is available.”

The Show Cause Order charged that respondent violated condition (e) “. . .in that he was arrested on January 4,1974, at approximately 4:10 a. m. by Officer D. B. Sanders of the Jacksonville Sheriff’s Office charged with murder in the first degree. According to the Jacksonville Police Department offense report, the subject shot the victim, Genover Carter, black female, age 28, with a small caliber firearm just to the rear and above the right ear. The victim was shot in the bedroom of her residence located at 1479 Logan Street on the above date and between 3:30 and 3:45 a. m. She was pronounced dead on arrival at University Hospital.”

Respondent was ordered to appear before the trial judge on January 24,1974, to show cause why his probation should not be revoked. However, no hearing of probation was held at this time. Apparently defense counsel requested that the trial judge defer action on his Rule to Show Cause until after the murder case had been disposed of.

Respondent was tried for second degree murder on February 21, 1974, and the jury returned a verdict of not guilty.

At the conclusion of the jury trial immediately after the verdict of not guilty was returned, the trial judge announced:

“THE COURT: The Court finds that you violated your probation on the third and fourth counts of assault and battery on Grace Harpe, and assault and battery on Lillie Belle Collins, [the crimes for which respondent was previously placed on probation] and your probation is revoked, rescinded and set aside. Do you have any legal cause to show why sentence should not now be imposed on you?”

The following colloquy then transpired:

“MR. SPRATLING: Pardon me?
“THE COURT: Yes, sir. You are on probation for beating up Grace Harpe and Lillie Belle Collins, consecutive probation; one for three years and one for two years and I just revoked it and I have asked if you have any legal cause to show why sentence should not be imposed or anything to offer in mitigation?
“MR. SPRATLING: I mean, you say five — I mean, what did I violate?
“THE COURT: Based upon the evidence that I have heard, I have found that you have violated your probation. I asked do you have any legal cause to show why sentence should not be imposed?
“MR. SPRATLING: Could you give me a chance?
“THE COURT: No, sir. If I didn’t have it on the case which was not beyond < a reasonable doubt according to the jury, the fact that I had testimony that you were carrying a pistol and that is also a violation of your probation. Your probation is revoked and rescinded.
“MR. SPRATLING: Judge, I never had a pistol.
“THE COURT: Well, I believe you did, you see, and I heard the evidence on it. So, you giving no legal cause why sentence should not be imposed, it is the judgment and sentence of this Court that you, James Lee Spratling, on the third count of the information, in Case No. 71-5935, be taken by the Sheriff of Duval County and by him confined to hard labor for the full term and period of one year.
“On the fourth count I will adjudicate you to be guilty of that. Do you have' any cause to show why sentence should not be imposed?
“Giving no legal cause why—
“MR. SPRATLING: Yes, sir.
“THE COURT: Yes, sir?
(No response)
“THE COURT: Giving no legal cause why sentence should not be imposed, it is the judgment and sentence of this Court that you, James Lee Spratling, be taken by the Sheriff of Duval County and by him confined to hard labor for the full term and period of one year, said year to run consecutive to the first year.”

Respondent appealed the revocation of his probation on the basis that he had not been accorded due process requisites. The District Court of Appeal, First District, agreed with respondent and opined:

“There is nothing in the record to indicate that appellant was ever given any notice that his jury trial would also constitute a probation revocation hearing nor are we familiar with any authority that a jury trial can serve such a double purpose. If convicted, the conviction can be charged as a probation violation and the conviction will then be the basis for probation revocation. Also, the commission of an offense which is charged as a violation of probation may be proved at a probation revocation hearing. Here, there has been a trial of appellant on a criminal charge of which he was acquitted but there has been no probation revocation hearing. For appellant to be afforded due process, he is entitled to a hearing on a specific charge or specific charges of probation violation which he has not had.”

We agree with the District Court that under the peculiar circumstances of the proceedings sub judice, respondent’s probation revocation did not accord with due process requirements. In Smith v. State, which is distinguishable from the instant cause, wherein at the conclusion of a non-jury trial, the court entered a finding of guilty and concluded that the finding constituted an automatic violation of probation, the District Court of Appeal, Third District, found that in light of the particular facts of that case, the criminal trial adequately fulfilled the requirements of a probation revocation hearing, and explicated:

“The record in the case sub judice demonstrates that just prior to commencement of the trial, the court began taking testimony from appellant’s probation supervisor. However, upon suggestion by appellant's counsel this hearing was continued, and the court began the trial on the subsequent felony charges. This was on July 2, 1973, less than two months after appellant’s arrest.
“On the facts of the instant case, we express the view that appellant’s criminal trial adequately fulfilled the requirements of a probation revocation hearing. In addition, a preliminary hearing on probation revocation should not be mandated in this case where appellant was not subject to an unwarranted deprivation of liberty, since he was incarcerated because of a subsequent felony arrest rather than a probation officer’s affidavit.”

The above-described Rule Nisi issued by the trial judge ordered respondent to show why his probation should not be revoked for violation of condition (e) but did not include the actual charge for which probation was eventually revoked — carrying a pistol in violation of condition (f). Furthermore, respondent was not given notice that his trial at which he was acquitted would constitute a probation revocation hearing. Since respondent never received notice of the claimed violation of probation which was to serve as the basis for the revocation of his probation, he has not been afforded due process.

In the absence of stipulation or consent, the trial of the criminal case should not be construed as a probation revocation hearing but can be treated as such upon stipulation or consent made before or after the trial.

Accordingly, we affirm the decision of the District Court of Appeal, First District, and discharge the writ without prejudice to the right of the trial judge to initiate revocation proceedings after appropriate notice to respondent is made and such proceedings to be held in accordance with this decision.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND and DREW (Retired), JJ., concur.