author: BOYER, Chief Judge.

text:
    Robert L. PRINCE, Petitioner, v. FLORIDA DEPARTMENT OF BANKING AND FINANCE, DIVISION OF SECURITIES and Career Service Commission of Florida, Respondents.
    No. EE-109.
    District Court of Appeal of Florida, First District.
    May 25, 1977.
    Jerry G. Traynham, Tallahassee, for petitioner.
    Franklin D. Kreutzer, Miami, Barry Sil-ber, Asst. Atty. Gen., The Career Service Commission, for respondent.
   ON MOTION TO COMPEL

BOYER, Chief Judge.

This Court in Mick v. Florida State Board of Dentistry, 338 So.2d 1297 (Fla. 1st DCA 1976), directed the manner in which the record on appeal should be prepared incident to petitions for review filed pursuant to the Administrative Procedure Act which became effective January 1, 1975. In an attempt to comply with those directions the petitioner sub judice has filed directions to the Career Service Commission for the preparation of the record, and has requested that there be included therein “transcript of deliberations on the appeal of Robert L. Prince” and “a complete transcript of the proceedings held before the Career Service Commission”.

Petitioner has now filed with this Court a motion, citing Rule 3.9, FAR, requesting that this Court enter an order compelling the Career Service Commission and/or the Department of Banking and Finance to forthwith prepare the record in accordance with the petitioner’s directions, alleging that the Career Service Commission generally hires, and in the case sub judice did hire, court reporters to report and transcribe its proceedings and that sub judice the Commission engaged a Ms. Pat Gomia and Capital Reporting Service. Petitioner further alleges and reasons that inasmuch as the Career Service Commission hired the court reporters to report the proceeding then the transcripts of the proceedings and deliberations are under the control of the Career Service Commission (Mick v. Florida. State Board of Dentistry, supra). The petitioner further alleges that he stands ready, willing and able to pay the cost of preparation and has notified the Commission of such, and the record before us reveals that petitioner has in fact tendered payment to the Commission for such preparation in accordance with Mick v. Florida State Board of Dentistry, supra. Petitioner’s motion further alleges that the portion of the proceedings reported by Capital Reporting Service has been prepared but for some reason is in the custody of the Department of Banking and Finance.

The respondents, on the other hand, appear to take the position that they may shift responsibility to and fro between them and shift the record to and fro between them and thereby take the position that the one who has been directed to prepare the record is not in control of that portion of the record designated to be included by the directions of the petitioner.

Correspondence between the parties which appears in the file of this case reveals that the respondent Career Service Commission also takes the position that although the court reporter was retained by the Career Service Commission it nevertheless has no duty nor responsibility to have the proceedings transcribed and that it is the obligation of the petitioner, although petitioner did not participate in retention of the reporter’s services, to require that the court reporter transcribe the proceedings and that petitioner pay the court reporter directly for such transcription.

We are of the view, and hereby hold, that it is the duty of the agency, sub judice the Career Service Commission, to insure that, in the absence of a waiver by all parties affected, the proceedings before the Career Service Commission are recorded or reported and that upon request of a petitioner by the filing of directions in accordance with Mick v. Florida State Board of Dentistry, supra, and the cases therein cited, it is the duty and responsibility of such agency, upon tender or deposit by petitioner of the cost of preparation, as provided in Mick v. Florida State Board of Dentistry, supra, to have the record transcribed and prepared and to furnish same in accordance with the directions set forth in Mick v. Florida State Board of Dentistry, supra. We are of the further view that when records which have been designated by the petitioner are in the possession of a co-respondent that such records are constructively or effectively within the control of the respondent to whom designations have been directed, in the absence of proof to the contrary, and that such respondent to whom such directions have been directed has the duty and obligation of obtaining same from the co-respondent and including same in the record as directed in such directions filed by a petitioner.

Accordingly, respondent Career Service Commission in the case sub judice is directed to forthwith, upon petitioner again tendering payment or deposit, in accordance with Mick v. Florida State Board of Dentistry, supra, furnish the record to petitioner for filing as provided in Mick v. Florida State Board of Dentistry. The petitioner’s request for a “transcript of deliberation on the appeal of Robert L. Prince” was denied by this Court’s order of April 15, 1977. We yet adhere to that order.

IT IS SO ORDERED.

RAWLS and MeCORD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gene R. KIRKLAND and Government Employees Insurance Company, a Foreign Corporation, Appellants, v. Connie Gail JOHNSON, Appellee. and Walter AHEDO and Emmco Insurance Company, a Foreign Corporation, Appellants, v. Connie Gail JOHNSON, Appellee.
    Nos. 76-996, 76-1109.
    District Court of Appeal of Florida, Second District.
    May 25, 1977.
    Rehearing Denied June 15, 1977.
    Stephen F. Myers, of Shackleford, Farri- or, Stallings & Evans, Tampa, for appellants Gene R. Kirkland and Government Employees Ins. Co.
    David Luther Woodward and Charles B. Rambo, Tampa, for appellants Walter Ahe-do and Emmco Ins. Co.
    David A. Maney, of Gordon & Maney and James W. Clark, of Peavyhouse, Giglio, Grant & Clark, Tampa, for appellee.
   PER CURIAM.

After consideration of all the points raised on appeal, we conclude that the sole question which merits discussion is whether special verdicts are required in jury trials involving comparative negligence.

The Florida supreme court recently addressed that issue in Lawrence v. Florida East Coast Ry., 346 So.2d 1012 (Fla.1977) and held that special verdicts are required. The decision, however, is to be applied prospectively only.

AFFIRMED.

BOARDMAN, C. J., and GRIMES and SCHEB, JJ., concur.


author: SCHEB, Judge.

text:
    Anna C. CARLSEN, Appellant, v. Gunnar CARLSEN, Appellee.
    No. 76-1546.
    District Court of Appeal of Florida, Second District.
    May 25, 1977.

      Donald Wm. Giffin, St. Petersburg, for appellant.
    Wayne 0. Smith, Wallace & Smith, St. Petersburg, for appellee.
   SCHEB, Judge.

On this appeal from a final judgment of dissolution of marriage, the wife contends the trial court erred in ordering the partition sale of the parties’ jointly owned marital home.

The wife filed a petition for dissolution of her marriage. At trial she was unsuccessful in her attempts to establish a special equity in the marital home owned as an estate by the entireties. In his counter-petition, the husband sought a dissolution as well as partition of the homeplace with the net proceeds from the sale to be divided equally between the parties. The wife did not attempt to strike or dismiss the coun-terpetition, but rather she responded thereto denying the merits of the husband’s claim for partition. The husband’s counter-petition substantially complied with the allegations required for partition (See Section 64.041, Florida Statutes [1975]). It was therefore appropriate for the court to proceed with partition as prayed for by the husband. Rankin v. Rankin, 258 So.2d 489 (Fla. 2d DCA 1972).

On August 27, 1976, the trial judge entered a final judgment dissolving the marriage, and providing further:

. the parties hereto shall remain tenants in common of the premises commonly known as 6315-13th Street North, St. Petersburg, Pinellas County, Florida, and legally described as follows:
Lot 41, MEADOWLAWN REPLAT, according to plat thereof recorded in Plat Book 34, page 15, Public Records of Pinellas County, Florida.
The same shall be sold within 90 days from the date hereof at which time the net proceeds from the sale thereof shall be equally divided between the parties hereto.

Once the trial court makes a judgment of partition, absent a contrary stipulation by interested parties, partition should proceed under Chapter 64, Florida Statutes. See Banfi v. Banfi, 123 So.2d 52 (Fla. 3d DCA 1960).

Section 64.061(1) provides for appointment of three suitable persons as commissioners to make the partition. However, where it is apparent from an allegation and proof that the property involved cannot be divided without prejudice to the owners, the court may under Subsection (4) appoint a special master or the clerk to sell the property at private or public sale. There was no direct allegation as to the indivisibility of the property in this case. No one, however, seriously suggests that the parties’ home-place was susceptible to division in kind. The necessity for a sale is readily apparent to us.

When incident to relief in a dissolution proceeding, a trial court orders partition of a homeplace belonging to husband and wife, a sale is almost inevitable. Commonly the trial judge affords the parties an opportunity to negotiate between themselves or arrange a private sale to a third party. We find no fault with this procedure. On the contrary, much can be said for any reasonable arrangement whereby formerly married parties are enabled to conserve their investments and property interests. In these instances, the judgment must fix some reasonable deadline for such arrangements to be completed. The judgment must provide that any judicially ordered sale, such as the one now before us, proceeds in compliance with the mechanics of partition outlined in Chapter 64. See Banfi v. Banfi, supra.

Accordingly, the last paragraph of the final judgment quoted above is stricken and this cause is remanded to the trial court for entry of an amended final judgment providing for partition in accordance with the mechanics of Section 64.061, et seq. The trial court may provide a reasonable period of time for the parties to conclude any private arrangements for sale or disposition of their former marital home, subject, of course, to approval of the court. Should this be permitted by the court, the amended final judgment shall provide that if disposition of the homeplace is not amicably resolved within a specified reasonable period of time that partition and sale of the property shall be handled under the last referred to statute. In all other respects, the final judgment of dissolution is affirmed.

GRIMES, Acting C. J., and OTT, J., concur.


author: ERVIN, Judge.

text:
    BARSCO, INC., Appellant, v. H.W.W., INC., Appellee.
    No. CC-146.
    District Court of Appeal of Florida, First District.
    May 26, 1977.
    Rehearing Denied June 8, 1977.
    Judson Freeman, Jr., of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, for appellant.
    Edward L. Kelly and Anderson M. Foote, Jr., of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellee.
   ERVIN, Judge.

This is an appeal by Barsco from an order denying its motion for summary judgment against the garnishee bank. We treat the order as a final judgment for the purpose of review since the order effectively disposes of all justiciable issues. Briefly stated the issue before us is whether the garnishee bank, the holder of a note which has not matured but is otherwise in default at the time of the service of a writ of garnishment, may prevail over the judgment garnishor Barsco? We hold that it can and affirm.

On March 26, 1974, H.W.W., Inc., executed a promissory note in favor of Atlantic Bank of West Jacksonville in the amount of $29,958.60 maturing in 1979. The note provided that it would be payable in sixty monthly installments of $409.31 each. It was secured by an agreement covering restaurant equipment located at H.W.W., Inc.’s business. On September 18, 1974, final judgment was entered in favor of Bar-sco against defendant H.W.W., Inc. in the amount of $7,734.95 plus costs and attorney’s fees. On September 9, 1975, garnishee bank was served with a writ of garnishment in the amount of $8,520.95 which sought any money or other personal property owed to or belonging to the defendant.

In a stipulation entered into between the parties, the bank admitted that at the time the writ was served upon it defendant had maintained accounts having credit balances in the aggregate amount of $11,881.17. The parties also agreed that prior to the service of the writ, defendant sold two cash registers named in the inventory attached to the security agreement without notifying the garnishee and that defendant failed to keep insurance on the collateral as required by the agreement. As a result thereof, the bank alleged in its answer that the defendant, prior to the service of the writ, was in default under the terms of the note and the bank was entitled to exercise its right of set-off against the deposit balance. It was finally agreed that the defendant was not in default in any of the monthly payments required by the note.

The note provided in part:

“The holder hereof shall have a right of off-set against the debtors as to any deposit account or other obligation to the debtors which right of off-set may be exercised after default without notice or other formality.”

Barsco contends that the denial of its motion for summary judgment was in error because the note was not mature at the time of the service of the writ, therefore the garnishee was not entitled to exercise its right of set-off under the note to the prejudice of appellant. The precise legal issue has not been addressed by any Florida court. There is a division of authority of out-of-state cases as to whether a bank can prevail over the rights of a garnishor when a note is immature at the time of service of the writ of garnishment. One line of cases holds that even though a note may provide that the bank has the right to off-set the depositor’s account without demand or notice, still the bank has the duty to take some affirmative action to accelerate when the note has not matured prior to the time of the service of the writ. See Annot., 106 A.L.R. 62 (1937), supplemented at 110 A.L.R. 1268 (1937). For cases approving the above rule, see First National Bank of Birmingham v. Minge, 186 Ala. 405, 64 So. 957 (1914); Schiff v. Schindler, 98 Pa.Super. 207 (1929). But see Macon National Bank v. Smith, 170 Ga. 332, 153 S.E. 4 (1930); Brown v. Maguire’s Real Estate Agency, 343 Mo. 336, 121 S.W.2d 754 (1938). In the latter case, the bank asserted a set-off of a $4,000.00 note made by defendant depositor. The note was a demand instrument with a due date if no demand was made. Attached to the note was an agreement providing that in the event of the issuance of an attachment, garnishment or execution against the defendant, the note at the option of the bank would be immediately mature and payable and allow the bank to have the right to off-set the note against any balance then on deposit with the bank. In holding that the note’s provisions allowed the bank to prevail over a garnishor who had obtained judgment against the depositor, the court stated:

“ . . .We see no good reason why the maker of a note to a bank cannot by written contract give the bank a lien on his deposit account (technically it might better be said that the maker’s right to his deposit account is made collateral security for his note); or why such a lien could not be enforced by set-off of such deposit at any time against a note such as this one which at least at garnishee’s option became payable upon demand; or why, if a depositor’s right to his deposit is made collateral security for his debt, garnishment should affect the bank’s right to make the set-off before determining the amount due from it to the garnishment defendant.” 121 S.W.2d at 760.

True, in the case now on review there had been no default by the debtor to the bank in the payment of the monthly installments. Nevertheless the note specifically provided that should the debtor violate any provisions of the security agreement, the bank had the right of set-off against the debtor as to any deposit account, which right might be exercised after default and without notice. It should be noted that the Uniform Commercial Code has no provision specifying what constitutes default of a secured transaction; it is left to the security agreement to specify what constitutes an event of default. 29A Fla.Jur., Secured Transactions, section 310. In general, however, a breach by the debtor of any of the conditions of the security agreement constitutes a default. Ibid. The note entered into by the parties here specifically provided that it was the responsibility of the debtor to furnish insurance for the collateral and not to dispose of the security without written consent of the bank. Thus the parties by their agreement set forth the conditions of the note and what might constitute a breach.

We have previously held that a plaintiff serving a writ of garnishment upon a garnishee merely steps into the shoes of the defendant and may assert against the garnishee only such rights as could have been asserted against the garnishee by the defendant. Reeves v. Tullis and Associates, Inc., 305 So.2d 813 (Fla. 1st DCA 1975). Clearly had the garnishee been sued by the defendant for recovery of the balances on deposit, the garnishee would have been permitted to counterclaim an action for payment on the defaulted note.

We wish to emphasize that our decision is strictly limited to the facts before us and we express no opinion concerning whether a garnishee bank may apply a set-off against a depositor’s account as to an indebtedness which is altogether immature at the time of service by writ of garnishment.

AFFIRMED.

RAWLS, Acting C. J., and SMITH, J., concur.


text:
    Michael Patrick GLOVER, Appellant, v. STATE of Florida, Appellee.
    No. EE-118.
    District Court of Appeal of Florida, First District.
    May 26, 1977.
    Michael J. Minerva, Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Clark v. State, 336 So.2d 468 (Fla.2d DCA 1976).

BOYER, C. J. and MILLS and SMITH, JJ., concur.


text:
    RESERVE INSURANCE COMPANY, Appellant, v. Marlin M. FEAGLE, as Personal Representative of the Estate of Ray E. Edge, Appellee.
    No. FF-221.
    District Court of Appeal of Florida, First District.
    May 26, 1977.
    Lee S. Damsker of Gordon & Maney, Tampa, for appellant.
    W. Roderick Bowdoin, Lake City, for ap-pellee.
   ON MOTION TO DISMISS

BOYER, Chief Judge.

The appellee has filed a motion to quash and dismiss this appeal for lack of jurisdiction, reciting that the summary final judgment appealed was entered on January 27, 1977 and that the notice of appeal was filed with the clerk of the trial court on February 16 but that no filing fee was deposited until March 15. Certificates of the trial court are attached to verify those facts. Appellee urges that Fla.App. Rule 3.2 d. requires the filing fee to be paid within the 30 day appeal period.

In response appellant asserts that the notice of appeal was timely filed and that payment of the fee within the 30 day appeal period is not mandatory.

In Williams v. State, 324 So.2d 74 (Fla.1975) the Supreme Court of Florida said:

“ * * * Henceforth, the notice of appeal timely filed without simultaneous payment of the filing fee or the filing of an adjudication of insolvency shall act to vest jurisdiction in the respective appellate court. Consequently, our holding in City of Gainesville v. Thomas, supra, at 833, [229 So.2d 833 (Fla.1969)] is modified as follows:
‘While timely filing of notice of appeal is jurisdictional, the timely deposit of the required filing fee (or adjudication of insolvency) is not. We do not mean to imply by this that the deposit of the fee (or adjudication of insolvency) is not mandatory for we are of the opinion that it is. The subsequent deposit of the fee after the running of the appeal time limit will not affect the jurisdiction of the appellate court.’ (Explanation added)”

Accordingly, it is ordered that appellee’s motion to quash and motion to dismiss is denied. However, the time periods provided in the Florida Appellate Rules for the filing of the record-on-appeal, briefs, etc. commenced with the filing of the notice of appeal and not with the payment of the filing fee. This case shall therefore proceed strictly in accordance with the time sequences provided in the Florida Appellate Rules.

RAWLS and McCORD, JJ., concur.


author: McCORD, Judge.

text:
    Phillip FRANKLIN, Appellant, v. STATE of Florida, Appellee.
    Nos. BB-343 and BB-428.
    District Court of Appeal of Florida, First District.
    May 27, 1977.

      Melvin R. Horne, Horne & Jaffry, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

The above two cases have been consolidated. In Case No. BB-343 appellant was charged in a two count information with “possession of more than five (5) grams of Cannabis” in Count I and that he did “unlawfully possess with intent to sell cannabis” in Count II. He was found guilty by jury of both counts, adjudged guilty of Count II and sentenced to three years imprisonment with credit for 34 days jail time served. No adjudication has been made under Count I.

In Case No. BB-428, appellant pled nolo contendere to an information charging him with sale of marijuana. He was adjudged guilty and sentenced to three years’ imprisonment to run concurrently with the sentence imposed in Case No. BB-343. These appeals are from the judgments and sentences in the two cases.

Appellant contends that the trial court erred in sentencing him to three years less jail time (a felony sentence), under Count II of the information in Case No. BB-343 because that count only charged a misdemeanor. He is correct. § 893.-13(1)(a), Florida Statutes (1975), provides that it is unlawful to possess with intent to sell a controlled substance and provides that if the controlled substance is named or described in § 893.03(l)(c) [which includes cannabis], the possessor with intent to sell is guilty of a felony. But paragraph (f) of § 893.13(1) provides that “if the first offense is the possession or delivery without consideration of not more than 5 grams of cannabis, that person shall be guilty of a misdemeanor of the first degree, . . . ” Here Count II of the information did not charge possession of more than five grams of cannabis. Thus, it only charged a misdemeanor of the first degree.

As stated above, although the jury found appellant guilty of Count I, a felony, the court has not adjudged him guilty of Count I. We surmise that such was not done because both counts involve a phase or facet of the same criminal act and to sentence defendant under both counts would violate the single transaction rule. He should be adjudged guilty of Count I and sentenced for the highest of the two offenses — Count I. See Cone v. State, 285 So.2d 12 (Fla.1973).

We have examined the remaining points raised by appellant on the two appeals and find them to be without merit.

The judgment and sentence in Case No. BB-428 is affirmed and Case No. BB-343 is reversed with directions to vacate the sentence imposed under Count II and to adjudge appellant guilty of the felony stated in Count I and impose sentence under Count I.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


author: PER CURIAM. BOYER, Chief Judge,

text:
    Tom C. SPAIN et ux., Frank C. Spain et ux., Ernest Stevens et ux., Richard C. Cox et ux., James H. Swick et ux., and Marvin T. Kokomoor et ux., Appellants, v. John MINDER and the Southeastern District of the Christian and Missionary Alliance, a Florida nonprofit Corporation, Appellees.
    No. CC-41.
    District Court of Appeal of Florida, First District.
    May 27, 1977.
    John F. Sproull, Harriett & Sproull, Pal-atka, for appellants.
    William L. Townsend, Jr., Walton & Townsend, Palatka, for appellees.
   PER CURIAM.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the final judgment is affirmed.

MILLS, J., and JOPLING, WALLACE M., Associate Judge, concur.

BOYER, C. J., concurs specially.

BOYER, Chief Judge,

concurring specially-

I concur in the result reached, but not upon the basis recited in the final judgment here appealed nor upon the basis urged by appellees.

Numbered paragraph one of appellants’ amended complaint alleged: “This is an action for a permanent easement (for a right-of-way over a certain unimproved road in Putnam County, Florida) in favor of the plaintiffs, over and through the lands of the defendants, for the purpose and use of said road as a right-of-way.” In the final judgment here appealed, the learned trial judge recited, inter alia, “The court concludes, based on the facts before it, that the plaintiffs have not carried their burden of showing continuous and uninterrupted use for the period of time required for a prescriptive easement. The court further concludes that the use of the road has not been inconsistent with the use and enjoyment of the owners and that the use of said road had been permissive by the owners.” The final judgment then adjudged and decreed “that the various plaintiffs acquired no easement, by prescription or otherwise, over and through the lands of the defendants.”

An easement has been defined to be “a privilege without profit, which the owner of one tenement has a right to enjoy in respect to that tenement in and over the tenement of another person whereof the latter is obliged to suffer or refrain from doing something on his own tenement for the advantage of the former.” Jones on the Law of Easements, § 1, at 3 (1898). An easement may be gained by prescription which is created by adverse use of the privilege for a period of 20 years. Acquisition of rights by one in the lands of another, based on possession or use, is not favored in the law and the acquisition of such rights will be restricted. Any doubts as to the creation of the right must be resolved in favor of the owner. In order to establish a prescriptive easement for roadway purposes, the claimant must clearly and positively prove that the claimant or the public in general had the continued and uninterrupted use or enjoyment of the owner’s lands for roadway purposes for a period of at least 20 years prior to any barricading or interference thereof by the owner; the identity of the roadway, that is, its route, termini and width and that the use or enjoyment was adverse or under claim of right.

The burden of proving a prescriptive right rests upon the claimant who must by clear and positive proof establish all elements necessary to constitute the claim. The use by the claimant or the public in general is presumed to be subordinate to the title of the owner and with the owner’s permission and the burden is upon the claimant to prove that the use was adverse. Such proof cannot be established by loose, uncertain testimony which necessitates resort to mere conjecture. (See Orange Blossom Hills, Inc. v. Kearsley, 299 So.2d 75 (Fla. 1st DCA 1974), and cases therein cited.)

For application of the foregoing principles, I have read every word of the record-on-appeal in this case. The record clearly and positively supports the claimant’s claim of continuous and uninterrupted use for in excess of 20 years prior to the erection of the barricade by the appellees. In order to prove continuous and uninterrupted use for the prescribed period of time it is not necessary to prove that the roadway was used by the claimant or the public in general every minute nor every hour nor every day nor every week nor even every month. Nor does the record support the trial judge’s finding “that the use of said road has been permissive by the owners.” Indeed, I find no evidence at all to support that finding.

The appellees contend that by merely erecting a barricade by the owners the continuous and uninterrupted use by the prescriptive users is broken. To so hold would encourage owners and claimants alike to take the law into their own hands. It would encourage owners to resort to self help and construct a barricade on public roads where dispute of ownership is involved rather than resort to courts of law for the resolution of the issue. As to claimants, it would encourage them to destroy fences, gates and other impediments rather than seek a resolution in the courts. To encourage such measures of self help is contrary to public policy. I cannot, therefore, agree with the position urged by ap-pellees in their brief.

However, I concur that the result reached by the learned trial judge may properly be sustained on the basis that the record is insufficient to establish by clear and positive proof that the continued and uninterrupted use by the claimants was adverse to the title of the owners and on the further ground that the record does not reflect the route, termini and width of the roadway to which appellants claim the right of enjoyment by prescription.

Accordingly, I concur in affirmance.


text:
    James Dyer WHITE, Appellant, v. STATE of Florida, Appellee.
    No. CC-205.
    District Court of Appeal of Florida, First District.
    May 27, 1977.
    Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. Copeland v. State, 336 So.2d 653 (Fla. 2 DCA 1976); Yates v. State, 317 So.2d 462 (Fla. 1 DCA 1975). Gillman v. State, 346 So.2d 586 (Fla. 1 DCA 1977).

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


text:
    Raymond Eugene DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. CC-310.
    District Court of Appeal of Florida, First District.
    May 27, 1977.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   McCORD, Judge.

Appellant pled nolo contendere to a charge of possession of more than five grams of marijuana reserving his right to appeal the court’s denial of his motion to suppress evidence. He appeals the judgment and sentence. We reverse.

The motion to suppress alleges that the affidavit in support of the search warrant was defective because although it alleged that the confidential informant who supplied the information on which the state relied for issuance of the warrant was reliable, there was no underlying factual information stated in the affidavit supporting his reliability. At the hearing, the attorneys for appellant and the state stipulated that the only issue before the court related solely to the allegations contained in the affidavit. The affidavit stated the facts tending to establish the grounds for application for search warrant and the probable cause of the affiant believing such facts to exist as follows:

“Heretofore and within the past ten days an informant known by your affiant to be a reliable person was at the above described premises and physically saw a large quantity of marijuana being kept and used on the above described premises. The informant knows marijuana by sight and knows the smell of marijuana and advised your affiant that marijuana was being kept and used on the premises. Your affiant therefore has reason to believe that marijuana is now being kept and used on the above described premises.” (Emphasis supplied.)

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the United States Supreme Court established a “two-pronged” test for the sufficiency of affidavits for search warrants relying on information obtained from an informant. That test requires first that affiant state how the informer gained his information so that the magistrate can determine if the underlying circumstances justify a conclusion that probable cause for a search exists. Secondly, the magistrate must be provided with the reasons from which the affiant concludes the informant is reliable. The above quoted affidavit does not meet the test. It does not give the magistrate any facts or reasons to support the affiant’s conclusion that the informant was known by him to be a reliable person.

In Spinelli the United States Supreme Court said:

“In Aguilar, a search warrant had issued upon an affidavit of police officers who swore only that they had ‘received reliable information from a credible person and do believe’ that narcotics were being illegally stored on the described premises. While recognizing that the constitutional requirement of probable cause can be satisfied by hearsay information, this Court held the affidavit inadequate for two reasons. First, the application failed to set forth any of the ‘underlying circumstances’ necessary to enable the magistrate independently to judge of the validity of the informant’s conclusion that the narcotics were where he said they were. Second, the affiant-officers did not attempt to support their claim that their informant was ‘ “credible” or his information “reliable.” ’
sjc s(: $ # Sfc %
Aguilar is relevant at this stage of the inquiry as well because the tests it establishes were designed to implement the long-standing principle that probable cause must be determined by a ‘neutral and detached magistrate,’ and not by ‘the officer engaged in the often competitive enterprise of ferreting out crime.’ Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948).
Applying these principles to the present case, we first consider the weight to be given the informer’s tip when it is considered apart from the rest of the affidavit. It is clear that a Commissioner could not credit it without abdicating his constitutional function. Though the affiant swore that his confidant was ‘reliable,’ he offered the magistrate no reason in support of his conclusion.”

Florida courts have recognized certain factors which establish reliability but none of these factors are present in the affidavit in the case sub judice. Reliability may be established by a recital of facts showing why the affiant considers the informant reliable. See State v. Middleton, 302 So.2d 144 (Fla. 1 DCA 1974), and State v. Niles, 307 So.2d 455 (Fla. 4 DCA 1975). Reliability may be established by detailed information contained in the affidavit. See Reed v. State, 267 So.2d 70 (Fla.1972). A statement against penal interest may contribute to reliability. See State v. Jacobs, 320 So.2d 45 (Fla. 2 DCA 1975), and State v. Patterson, 309 So.2d 555 (Fla. 2 DCA 1975). Also reliability may be established by corroboration from an independent source. See Findlay v. State, 316 So.2d 33 (Fla.1975), and State v. Henderson, 318 So.2d 524 (Fla. 2 DCA 1975).

Reversed and remanded with directions to vacate the order denying appellant’s motion to suppress the evidence and to grant same.

RAWLS, Acting C. J., and SMITH, J., concur.


text:
    G & J INVESTMENT CORPORATION, Appellant, v. LOPEZ STONE OF NORTHEAST FLORIDA, INC., etc., et al., Appellees.
    No. CC-354.
    District Court of Appeal of Florida, First District.
    May 27, 1977.
    Dale K. Bohner, Coble, McKinnon, Reynolds & Rothert, Daytona Beach, for appellant.
    William A. Hart, South Daytona, and David A. Monaco, Abraham, Kaney, Monaco & Main, Daytona Beach, for appellees.
   PER CURIAM.

We have examined the briefs and record on this appeal and find no reversible error with one exception. The exception is contained in ordering paragraph A of the final judgment which states as follows:

“Plaintiff, Lopez Stone of Northeast Florida, Inc., shall have and recover $2,800.00 from defendant, Camelot Mobile Home Estates, Inc., and third-party defendant. G & J Investment Corporation. for which $2,800.00 let execution issue.” (Emphasis supplied.)

It was error to include the foregoing underlined portion in the judgment. Third-party defendant, G & J Investment Corporation, is not a party to the action between plaintiff-appellee, Lopez Stone of Northeast Florida, Inc., and defendant-appellee Camelot Mobile Home Estates, Inc. In other respects the record reveals competent substantial evidence to support the findings and rulings of the trial court which are questioned on this appeal.

Affirmed in part and reversed in part and remanded for correction of the final judgment pursuant to this opinion.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


text:
    David Lamar WOOD, Appellant, v. STATE of Florida, Appellee.
    No. DD-230.
    District Court of Appeal of Florida, First District.
    May 27, 1977.

      Richard W. Ervin, III, Public Defender, and Michael M. Corin and Louis G. Carres, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

This is an appeal from judgment and sentence of appellant for possession of more than five grams of marijuana. The sole point on appeal is whether or not the trial court erred in denying appellant’s motion to vacate and set aside his plea of nolo conten-dere made prior to sentencing. We find no error and affirm.

Appellant appeared before the court to enter a plea pursuant to plea bargaining with the State and his privately retained counsel stated:

“ . . The defense will enter a plea of no contest to Count 4, which is possession of marijuana. In essence, Your Hon- or, we are going to enter this plea in open matter with no recommendations by the State other than the fact that they will remain mute at sentencing and will not recommend incarceration or probation or whatever, a fine or what-not. We are just going to enter a plea of no contest as to Count 4.”

On a subsequent date, appellant with his counsel appeared before the court for sentencing and at that time moved to withdraw appellant’s plea of nolo contendere on the ground that the state had breached the plea bargain agreement. Appellant called attention to the fact that the presentence investigation report of the Parole and Probation Commission states “Officer Don Hicks of the First Circuit Narcotics Task Force stated that they had a good possession and sale case on the defendant and co-defendants,” and that as far as he was concerned, “the defendant can to to jail. He has been in marijuana for a pretty good while.” Officer Hicks further stated for the presentence investigation report, “Let the Judge abide by the statutes and they can serve some time.”

The trial judge ruled there had been no breach of the plea bargain agreement, the assistant state attorney having remained mute at sentencing and having made no recommendation on sentencing. The trial judge pointed out that the Parole and Probation Commission, in its presentence investigations, interviews numerous persons and reports the statements made by each; that his concern was with appellant’s previous criminal record (which he outlined in some detail) and not with what Officer Hicks thought the court should do. The assistant state attorney contended that his promise was that the state attorney’s office would remain mute as to sentence and that he did not promise that all other people who had an input into the presentence investigation would remain mute; that he had no knowledge that Officer Hicks was going to say anything or what he would say in the pre-sentence investigation.

Appellant relies heavily upon Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), in which the United States Supreme Court remanded a somewhat similar case to the state court when it found the plea bargain agreement had been violated by the State. The prosecuting attorney had agreed he would make no recommendation as to sentence, but at sentencing another prosecutor, who replaced the prosecutor who had negotiated the plea, recommended the maximum sentence. Such is not the situation in the ease sub judice. Here the prosecutor made no recommendation or comment regarding sentence and we do not consider that Officer Hicks’ statement should be considered a recommendation of the State. The State was, of course, represented in the proceedings by the state attorney’s office and the assistant state attorney who handled the case was the spokesman for the State.

Affirmed.

RAWLS, Acting C. J., and SMITH, J., concur.


text:
    Sanford RISSMAN, Appellant, v. MGIC EQUITIES, INC., et al., Appellees.
    No. 76-958.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.
    Edward C. Tietig, Miami, for appellant.
    Smith, Mandler, Smith, Werner & Jaco-bowitz, Miami Beach, Joe Unger, Miami, Ralph P. Douglas, Pompano Beach, for ap-pellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. See McAllister Hotel, Inc. v. Porte, 98 So.2d 781 (Fla.1957); Zaydon v. Wilder, 305 So.2d 81 (Fla.3d DCA 1975); Fenton v. Bancroft Hotel Associates, Inc., 265 So.2d 67 (Fla.3d DCA 1972); see also Futura Realty, Inc. v. Kasser, 325 So.2d 71 (Fla.3d DCA 1976).


text:
    Pravin J. PAREKH, Petitioner, v. CAREER SERVICE COMMISSION, of the State of Florida, Department of Administration, and Department of Highway Safety and Motor Vehicles, Respondents.
    No. AA-474.
    District Court of Appeal of Florida, First District.
    June 1, 1977.
    Jerry G. Traynham, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., and Betty J. Steffens, Asst. Atty. Gen., for respondent Commission.
    Edwin E. Strickland and Enoch J. Whitney, Tallahassee, for respondent Department.
   PER CURIAM.

We have examined the record and the briefs of the respective parties and find there is competent substantial evidence to support the discharge of petitioner by the Department of Highway Safety and Motor Vehicles and the order of the Career Service Commission, and no violation of the Constitution of the United States in either the discharge or the procedures followed by the respondents. Although the Commission’s failure to rule explicitly on petitioner’s proposed findings of fact was not in accord with Section 120.59(2), Florida Statutes (1975), Stuckey’s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), that error did not in these circumstances impair the fairness of the proceedings or the correctness of the action. Section 120.68(8), Florida Statutes (Supp.1976).

Affirmed.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


text:
    Jon E. BISCHOFF, Appellant, v. DIXIE AUTO PARTS AND EQUIPMENT CORP., a Florida Corporation, Appellee.
    No. 77-58.
    District Court of Appeal of Florida, Third District.
    May 17, 1977.
    Turner, Hodson, Watkins & Lynn, Homestead, for appellant.
    William M. Manker, Miami, for appellee.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant seeks review by this interlocutory appeal of an order of the Circuit Court for Dade County denying a motion to dismiss a counterclaim and cross-claim filed by the appellee against him subsequent to the entry of a default against it in a foreclosure suit. We find error and reverse.

It was error for the trial court to allow appellee, Dixie Auto Parts and Equipment Corp. to file and prosecute a cross-claim against appellant, a co-defendant, after a default had been entered against it. The Florida Rules of Civil Procedure provide that a party in default may not file pleadings in an action, other than those pleadings of such nature as seek relief from the default. Fla.R.Civ.P. 1.500; Somerville v. Skidmore, 175 So.2d 575 (Fla.3rd DCA 1965). The order appealed is reversed.

Reversed.


author: HOBSON, Acting Chief Judge.

text:
    Clayton P. BALZER and Blanche Balzer, his wife, et al., Appellants, v. INDIAN LAKE MAINTENANCE, INC., et al., Appellees.
    No. 76-1024.
    District Court of Appeal of Florida, Second District.
    May 25, 1977.

      Robert J. Boylston of Grimes, Goebel, Parry, Blue & Boylston, Bradenton, for appellants.
    Clinton A. Curtis and Jack P. Brandon of Woolfolk, Myers, Curtis, Craig & Crews, Lake Wales, for appellee Indian Lake Maintenance, Inc.
    Marie Alice Crano, Lake Wales, for appel-lees-intervenors.
   HOBSON, Acting Chief Judge.

This case arose in a suit filed by plaintiffs/appellants for a declaratory judgment determining the validity of certain deed covenants providing for the payment of maintenance fees. Plaintiffs particularly assailed the duration of this covenant in that it violated the rule enunciated by this court in Henthorn v. Tri Par Land Development Corp., 221 So.2d 465 (Fla. 2d DCA 1969). The trial court disagreed and entered a final judgment holding the covenants valid and enforceable. We affirm, but for different reasons than given by the trial judge.

The facts in this case are undisputed. Indian Lake Estates is a platted unincorporated subdivision located in Polk County, Florida, consisting of approximately 6,900 acres, divided into 7,287 residential lots, and 665 commercial lots. The plat reflects certain streets, avenues, parks, parkways, and other recreational areas. Title to these areas is vested in the defendant non-profit corporation, Indian Lake Maintenance, Inc., (hereinafter I.L.M.) whose membership is composed of all property owners at Indian Lake Estates. The streets and avenues in the subdivision are not dedicated to the public and are maintained by defendant I.L.M.

Plaintiffs in this cause represent in excess of 1000 nonresident owners of residential lots located in Indian Lake Estates. The Intervenors are 448 owners of residential lots in Indian Lake Estates who currently reside there.

Central to the controversy in this case is the following covenant contained in all deeds and contracts to purchase in the Indian Lake Estates development:

“The purchaser covenants to pay to Indian Lake Estates, Inc., its nominees, successors, or assigns, on January 15 of each year, the sum of $20, for each and every lot purchased, to be used for general maintenance.
“All of the above covenants shall remain in force until January 1, 1966, and shall be automatically renewed for each ten year period thereafter, unless owners of at least two-thirds of the lots in the subdivision known as Indian Lake Estates shall, at least six months prior to any such renewal date, agree in writing to a change in or an abrogation of any of the above covenants, and record such writing so amending the aforesaid covenants.”

In a separate legal action referred to by the trial court in the final judgment herein, the Circuit Court of Polk County, Florida, entered a final decree on July 30, 1964, ordering that all maintenance fees collected under the covenant above should be used solely for pruposes of maintenance and that quarterly reports should be made to the court showing the amount of maintenance fees collected and how such fees were spent. Thereafter, on February 16,1966, in the same earlier case, the court entered an order recognizing the defendant I.L.M. as the successor of Indian Lake Estates, Inc., with regard to the covenants concerning maintenance fees. The record shows that I.L.M. has continued to collect and/or attempted to collect this maintenance fee from the individual owners of lots in Indian Lake Estates since that time.

Following submission of the stipulated facts noted above, and oral argument, the trial court entered a final judgment holding the covenant valid and enforceable, subject only to the limitations contained therein. Careful review of the record and briefs filed in this cause require us to frame the issues as follows:

1. Did the trial court err in refusing to apply the rationale of Henthorn v. Tri Par Land Development Corp., 221 So.2d 465 (Fla. 2d DCA 1969) to the case sub judice; and
2. If so, is the rule enunciated in Henthorn, supra, sufficient to invalidate the maintenance covenant herein?

In Henthorn a similar maintenance agreement was attacked by the successor to the developer. The final judgment of the trial court there, reflecting the position of the developer’s successor, held the covenant unenforceable because its duration was not ascertainable and thus was a perpetual charge on real property terminable at will under the doctrine of Collins v. Pic-Town Water Works, Inc., 166 So.2d 760 (Fla. 2d DCA 1964). This court reversed and noted the specific limitation in the deed in Henthorn distinguished it from Collins, supra. Judge Mann went further to state,

“The duration of this agreement is until the first day of January in the year 2000. That is a long time, but by no means indefinite. Thereafter, there is a dependence upon the will of persons then owning the lots and the successor to the developer which is invalid for the same policy reasons which invalidate the remote vesting of property interests, although the interests are distinguishable. See Gray, The Rule Against Perpetuities §§ 329 et seq. (4th ed).”

221 So.2d at 466.

Plaintiffs rely exclusively on the third sentence of the quoted paragraph above. They posit that the covenant sub judice is not void as it may be perpetual, but that under the language of Henthorn, supra, the covenant was valid only until January 1, 1966, at which time it became terminable at will after reasonable notice by any party thereto. Defendant I.L.M. contends that the language contained in Henthorn, and relied upon by plaintiffs, was merely obiter dicta and without persuasive value. I.L.M. further asserts that the trial court was correct in its finding that the covenant is enforceable because: 1) it is not perpetual since it can be canceled at ten-year intervals; 2) even if considered of infinite duration it is enforceable under the “Continuing Consideration — Continuing Advantage” doctrine; and 3) public policy mandates enforcement of such policies. The latter arguments form the basis of the trial court’s judgment in favor of the defendant.

At the outset we hold that Henthorn is not sufficiently distinguishable on its facts to have prevented the trial judge from applying the rationale there to the instant case. Moreover, we believe the trial judge mistakenly applied the incorrect legal standard to the facts as stipulated. Nevertheless, we are less than certain that application of the rule in Henthorn, with respect to the renewable periods in this case, is a correct statement of the law, i. e., they are invalid.

In the first place this covenant is more nearly akin to a contractual provision than a restriction placed on the use of the land. The fact that the covenant was included in the contracts to purchase, as well as the deeds to lots in Indian Lake Estates, lends support to this proposition. However, whether the covenant is denominated as a restriction or a contract provision will not alter the definite duration of this provision as it is defined in the deeds of all property owners in Indian Lake Estates. As noted in 8 Fla.Jur. Covenants and Restrictions § 27 (1956), “Where the duration of a restrictive covenant is specifically provided for in the covenant, the covenant must expire by its own terms and limitations.” General contract law is similar. 17 Am.Jur.2d Contracts §§ 486, 495 (1964). Cf. 7 Fla.Jur. Contracts § 174 (1956). Thus it is stated at 17 Am.Jur.2d Contracts § 495,

“A contractual provision for termination upon certain conditions can be enforced only in strict compliance with the terms of such conditions.8 If the contract specifies conditions precedent to the right of cancellation or recission, the conditions must be complied with.9 ” (footnotes omitted)

See also 8 Fla.Jur. Covenants and Restrictions §§ 25-6 (1956).

Aside from Henthorn our research has not revealed any case in Florida passing directly on the validity of a covenant involving comparable renewable periods like those contained in the deeds herein. Yet, we think the authorities cited above, in conjunction with those from other jurisdictions, are sufficient to uphold the maintenance covenant. In so holding we reject the trial judge’s conclusion that the factual differences in Henthorn distinguish it entirely from the factual circumstances here. Instead we submit that the language in Henthorn, to wit,

“Thereafter, there is a dependence upon the will of the persons then owning the lots and the successor to the developer which is invalid for the same reasons which invalidate the remote vesting of property interests although the interests are distinguishable”

must be read together with the two sentences preceding it,

“The duration of this agreement is until the first day of January in the year 2000. That is a long time but by no means indefinite.”

The legal basis for invalidating the renewable periods in Henthorn then is that they were so remote as to constitute a perpetual obligation on the land over and above a fixed period contained in the deed. At best there would be no termination of the maintenance agreement until the year 2000.

In contrast, the maintenance covenant herein is specifically subject to modification or cancellation' at any time within six months prior to the expiration of any ten-year period beginning January 1, 1966. All that is required for modification or cancellation is an agreement in writing which is recorded. There is no charge on the affected lands which even closely approximates a perpetual obligation incapable of abrogation. For that reason the covenant, whether it be labeled contract or restriction, has definite termination dates which are operable within six months of every January 1 occurring every ten years. Therefore, the provision allowing modification of the maintenance covenant contemplates periodic review by landowners subject to the charge. The only limitation on this power to modify, amend, or cancel is the mobilization of the owners of two-thirds of the lots in the subdivision.

Finally, we would point out that this court has, subsequent to Henthorn, upheld the right of developers to provide the furnishing of essential services and bind by covenant owners of subdivision lots to pay for them. Sloane v. Dixie Gardens, Inc., 278 So.2d 309 (Fla. 2d DCA 1973). Moreover, the final judgment below reveals that half, if not more of the funds generated by the maintenance covenant have, since 1966, been expended on necessary items with respect to the general scheme of development. Thus this case falls squarely within the rule enunciated in Hagan v. Sabal Palms, Inc., 186 So.2d 302, 308-9 (Fla. 2d DCA 1966),

“It is undoubtedly the law of Florida that covenants restraining the free use of realty are not favored, but in order to provide the fullest liberty of contract and the widest latitude possible in disposition of one’s property, restrictive covenants are enforced so long as they are not contrary to public policy, do not contravene any statutory or constitutional provisions, and so long as the intention is clear and the restraint is within reasonable bounds.” (citations omitted)

Accordingly, the final judgment below is affirmed. To the extent that our opinion conflicts with our earlier decision in Hen-thorn, we recede from the positions taken there.

SCHEB and OTT, JJ., concur.

      . In that case mobile home owners in a subdivision were required to pay an annual charge of up to $120, said charge being directly allocated to the maintenance of the common recreational areas as well as covering necessary utility expenses. This maintenance agreement was limited by a covenant which provided in part,
      “These covenants [maintenance charges] are to run with the land and shall be binding on all parties and all persons claiming under them until January 1, 2000, at which time said covenants shall be automatically extended for successive periods of 10 years, unless, by vote of a majority of the then owners of the lots, it is agreed to change said covenants in whole or in part . . .

        Henthorn v. Tri Par Land Development Corp., 221 So.2d 465, 466 (Fla. 2d DCA 1969).

      . It should be noted that the two positions are not substantially different, in substance. In fact plaintiffs, by their second amended complaint, allege that the covenant is a perpetual obligation. In essence plaintiffs’ argument is that the renewable periods are perpetual in that they are automatically extended unless affirmative action is taken prior to their renewal.

      . The trial judge’s Conclusions of Law read in pertienet part,
      “Plaintiffs rely on the case of Henthorn v. Tri Par Land Development Copr., 221 So.2d 465 ([Fla] 2d DCA 1969) in support of their argument that the Indian Lake Estates covenant creates a perpetual obligation and, therefore, is void for the same policy reasons behind the rule against perpetuities which invalidates the remote vesting of property interests. In the Henthorn case, the developer’s successor in interest was attempting to abandon its obligations under a covenant to provide specific services on the basis that the covenant was perpetual and, therefore, terminable at will under the doctrine of Collins v. Pic-Town Water Works, Inc., 166 So.2d 760 ([Fla.] 2d DCA 1964). Factually, the Henthorn case is to be a group of nonresident property owners are attempting to invalidate a restrictive covenant which has been the subject matter of Court supervision since 1966. The Court finds that an exception to the doctrine espoused in Collins v. Pic-Town Water Works, Inc., supra, is where the circumstances give rise to a ‘continuing consideration — continuing advantage’ as was the case in City of Gainesville v. Board of Control, 81 So.2d 514 (Fla.1955) and City of Daytona Beach v. Stanfield, 258 So.2d 809 (Fla.1972).”
      Although the judicially spawned exception to the rule enunciated in Collins has received relatively recent approval in City of Daytona Beach, it must be recognized that in Collins, and both cases defininf the exception, no time period for duration of the contract was specified. In the instant case the renewable periods are specific, beginning with January 1, 1966. Thus, Collins and its progeny are clearly distinguishable.

      . Cases construing the validity, construction, and effect of contractual provisions regarding future modification or revocation of covenants restricting the use of real property, are collected in Annot., 4 A.L.R.3d 570 (1965). Only three cases are mentioned as passing directly on the validity of such covenants. However, in none of the latter cases or any of the. others contained in the annotation is the precise question posed herein presented.


text:
    John Arnold BOSTWICK, Jr., Appellant, v. Roseland Juliann BOSTWICK, Appellee.
    No. FF-234.
    District Court of Appeal of Florida, First- District.
    June 1, 1977.

      Richard E. Benton, Smith, Young & Blue, Tallahassee, for appellant.
    Samantha D. Boge, Judelle & Boge, Tallahassee, for appellee.
   BOYER, Chief Judge.

In a dissolution proceeding initiated by appellee (the wife), appellant filed an answer in which he admitted that he was the father of the parties’ minor child. Some three days prior to the scheduled final hearing, appellant applied for a continuance and moved to amend his response to reflect that he was not the father of the minor child of the parties. The trial court granted the motion for a continuance but denied the motion to amend. The sole issue involved in this interlocutory appeal is whether the trial court abused its discretion by denying appellant leave to amend.

At the hearing held on appellant’s motions, counsel for appellant informed the court that at the birth of the child, the blood type of parents and child were examined because of a potential Rh factor problem. The results indicated that the wife’s blood type was O-Negative the husband’s was O-Positive, and the child’s was A-Positive. Sometime after the birth of the child during a domestic quarrel, appellee informed appellant that he was not the father of the child. Appellant’s attorney claimed that appellant did not raise the issue of the child’s paternity at an earlier time because he was hopeful of reconciliation and, further, did not become aware of the significance of the blood test until shortly before filing the motion for leave to amend.

Under the rules of civil procedure and under the case law, leave to amend pleadings should be given freely when justice so requires. See Fla.R.Civ.P. 1.190; Walter v. Senn, 340 So.2d 975 (Fla. 1st DCA 1976). It is clear that appellant’s proposed amended response alleges a valid defense. A man has no legal duty to provide support for a minor child which is neither his natural nor adopted child and for whose care and support he has not' contracted. Taylor v. Taylor, 279 So.2d 364 (Fla. 4th DCA 1973). We make no ruling at this time on whether appellant has established that he is not the father of the child. Indeed, appellant’s burden will be great given the strong, albeit rebuttable, presumption of legitimacy. See Blitch v. Blitch, 341 So.2d 251 (Fla. 1st DCA 1976). In this appeal, we limit ourselves to the question of whether appellant should be allowed to raise that defense at all.

In light of the liberal policy of amendment of pleadings and the lack of prejudice to appellee, we hold that the failure of the trial court to grant the motion for leave to amend was erroneous. Because of the statement by appellee to appellant that he was not the father of the child, appellee cannot be said to have been surprised by the matters contained in the amended response. Nor could appellee have been prejudiced by the granting of the motion for leave to amend because the continuance granted by the trial court gave appellee time to prepare her reply and develop evidence in opposition to the matter contained in the amended response. We are not unaware of the potential harm to the minor child which might result from this lawsuit, but that harm, substantial though it may be, does not vitiate the husband’s right to plead a valid defense.

■Accordingly, that portion of the order appealed herein is reversed and remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

McCORD and MILLS, JJ., concur.


author: MARCUS, Justice. DENNIS, Justice,

text:
    E. L. HENRY et al. v. Hon. Edwin W. EDWARDS, Governor of the State of Louisiana.
    No. 59231
    Supreme Court of Louisiana.
    March 24, 1977.
    Rehearing Denied April 12, 1977.

      Frank P. Simoneaux, Baton Rouge, for plaintiffs-appellants.
    William D. Brown, Brown, Wicker & Lee, Monroe, Camille F. Gravel, Jr., Gravel, Roy & Burnes, Alexandria, Michael S. Baer, III, Baton Rouge, for defendant-appellee.
   MARCUS, Justice.

This matter arises out of a suit for a declaratory judgment. At issue is whether the Governor had the constitutional authority to veto certain provisions of the General Appropriation Bill for the fiscal year 1976-77 and whether the vetoed provisions were properly included in the bill by the legislature. The trial judge held that the Governor improperly exercised the “line item” veto power conferred by La.Const. art. 4, § 5(G) and that eleven of the twelve provisions vetoed were unconstitutional in that they constituted matter not properly included in a general appropriation bill. Plaintiffs have perfected this appeal from the decision of the lower court which was in some respects adverse to their claims. La. Const, art. 5, § 5(D)(1).

On July 16, 1976, the Louisiana Legislature passed a General Appropriation Bill and delivered it to the Governor for his consideration in accordance with La.Const. art. 3, § 17(A). On July 17, 1976, the Governor signed the bill but vetoed twelve provisions thereof and returned it to the legislature for further consideration. The Governor’s veto message indicated that he considered the disapproved provisions to be substantive law improperly incorporated in the appropriation bill in contravention of La.Const. art. 3, § 16(C), citing as authority for his vetoes La.Const. art. 4, § 5(G). Each of the Governor’s vetoes was sustained by the Senate. Plaintiffs, believing the vetoes to be unconstitutional, instituted this action for a declaratory judgment.

The issues presented for our consideration here do not involve general legislation bills or what may properly be included therein. Rather, they concern executive and legislation actions with respect to a general appropriation bill, a particular type of legislation which is specifically addressed in La.Const. art. 3, § 16(C) and which differs in nature and scope from other legislative pronouncements.

La.Const. art. 3, § 16(C) directs:

The general appropriation bill shall be itemized and shall contain only appropriations for the ordinary expenses of government, public charities, pensions, and the public debt or interest thereon. (Emphasis added.)

La.Const. art. 4, § 5(G) provides in pertinent part:

. [T]he governor may veto any line item in an appropriation bill. Any item vetoed shall be void unless the veto is overridden as prescribed for the passage of a bill over a veto. (Emphasis added.)

The term “item” as it is used in these provisions is not defined in the constitution. It is generally accepted, however, that when used in reference to an appropriation bill, the word “item” signifies a sum of money dedicated to a specific purpose, a separate fiscal unit.

In our view, art. 3, § 16(C) clearly limits the content of an appropriation bill to items of appropriation of money. However, inherent in the power of appropriation is the power to specify how the money shall be spent. Therefore, in addition to distinct “items” of appropriation, the legislature may include in an appropriation bill qualifications, conditions, limitations or restrictions on the expenditure of funds which would not be dealt with more properly in a separate bill. When proper conditions or limitations are inserted in an appropriation bill, the governor may not veto them without vetoing the item of expenditure which they modify. Otherwise, by striking these provisions but allowing the money “item” of expenditure to stand, the Governor would be able to alter and thus, in fact, to legislate by creating a new “item” of appropriation wholly different in nature and purpose from that originated in the legislature. Inasmuch as a gubernatorial veto can be overridden only by a vote of two-thirds of the members of each house, the legislature would thereby be deprived of its constitutional. right to enact an appropriation bill composed of items of its own choosing by majority vote. La.Const. art. 3, §§ 15(G) and 18(B). Moreover, the Governor would be arrogating to himself the power of appropriation notwithstanding that our constitution provides that the legislative power of the state is vested in a legislature, consisting of a Senate and a House of Representatives. La.Const. art. 3, § 1(A). We cannot sanction a result so clearly violative of the constitutional prerogative of the legislature. Accordingly, we hold that, if the Governor wishes to disapprove of conditions or limitations legitimately included in an appropriation bill, he must veto not only the conditions or limitations but also the money “item” to which they are connected.

Just as the Governor may not use his item-veto power to usurp constitutional powers conferred on the legislature, neither can the legislature deprive the Governor of the constitutional powers conferred on him as the chief executive officer of the state by including in a general appropriation bill matters more properly enacted in separate legislation. The Governor’s constitutional power to veto bills of general legislation (La.Const. art. 3, § 18) cannot be abridged by the careful placement of such measures in a general appropriation bill, thereby forcing the Governor to choose between approving unacceptable substantive legislation or vetoing “items” of expenditure essential to the operation of government. The legislature cannot by location of a bill give it immunity from executive veto. Nor can it circumvent the Governor’s veto power over substantive legislation by artfully drafting general law measures so that they appear to be true conditions or limitations on an item of appropriation. Otherwise, the legislature would be permitted to impair the constitutional responsibilities and functions of a co-equal branch of government in contravention of the separation of powers doctrine embodied in La.Const. art. 2, §§ 1 and 2. We are no more willing to allow the legislature to use its appropriation power to infringe on the Governor’s constitutional right to veto matters of substantive legislation than we were to allow the Governor to encroach on the constitutional powers of the legislature. In order to avoid this result, we hold that, when the legislature inserts inappropriate provisions in a general appropriation bill, such provisions must be treated as “items” for purposes of the Governor’s item veto power over general appropriation bills.

The distinction between what constitutes a condition or limitation properly included in a general appropriation bill and what amounts to a provision which is essentially a matter of general legislation more appropriately dealt with in a separate enactment appears, on first consideration, to be difficult to draw. However, this need not be the case if the legislative and executive branches of the government adhere to the spirit of the constitution, each exercising its respective powers with due deference for the constitutional prerogatives of the other. La.Const. art. 3, § 16(C) directs the legislature to pass an “itemized” appropriation bill, essentially a budgetary schedule of distinct fiscal units. The Governor’s corollary power to veto the “items” of expenditure included therein casts further light on what was contemplated for insertion in the general appropriation bill. These provisions were never intended to hamstring the legislature in its legitimate efforts to control the purse strings of government. On the other hand, legislative control cannot be exercised in such a manner as to encumber the general appropriation bill with veto-proof “logrolling measures,” special interest provisions which could not succeed if separately enacted, or “riders,” substantive pieces of legislation incorporated in a bill to insure passage without veto. It is not enough that a provision be related to the institution or agency to which funds are appropriated. Conditions and limitations properly included in an appropriation bill must exhibit such a con-nexity with money items of appropriation that they logically belong in a schedule of expenditures. We conclude, as did the trial judge, that the ultimate test is one of appropriateness.

With these guidelines in mind, we turn to a consideration of the provisions vetoed in the instant case.

VETO NO. 1

Section 14 of the preamble to Act No. 17 provided as follows:

In our view, the vetoed provision is strictly a matter of general law- which should have been enacted as a separate bill. Inasmuch as it was included in the general appropriation bill, it must be treated as an item and therefore was subject to veto by the Governor,

VETO NO. 2

The provision vetoed here is in no way a condition of limitation on the expenditure of money. It constitutes substantive legislation which could not be shielded from gubernatorial veto by placement in the appropriation bill.

VETO NO. 3

|

The Governor’s veto power was improperly exercised in this instance. The vetoed provision sets forth a condition which must be met before funds may be disbursed. The language does not create substantive law nor does it relate to a special interest. The matter exhibits a connexity with the expenditure of funds which renders it appropriate for placement in an appropriation bill. Therefore, the Governor could not veto this condition without vetoing the money “item” itself.

Inasmuch as the instant veto was not exercised in compliance with the constitution, it was ineffective and a nullity. The provision thus became law in accordance with La.Const. art. 3, § 18(A).

VETO NO. 4

The language vetoed in this case constituted a qualification appropriately included in the general appropriation bill. It deals with a formula for distribution of funds appropriated for a specific purpose and is clearly a matter of budgetary concern. Therefore, the Governor exceeded his item veto power by striking this qualification without its attendant appropriation. In the absence of an effective veto, the provision became law as provided in La.Const. art. 3, § 18(A).

VETOES NOS. 5, 6 AND 7

Veto number five excised a provision calling for legislative review of monies spent and of prisoner transfers. These directives do not exhibit such a connexity with the appropriation of funds that they logically belong in a schedule of expenditures. Provisions for legislative oversight over the activities of certain governmental departments could readily be made the subject of general legislation. The Governor cannot be deprived of his right to veto such legislation.

Vetoes six and seven constitute special interest legislation aimed at accomplishing a purpose independent of the appropriation of funds. Accordingly, we decline to nullify these vetoes.

VETO NO. 8

This provision is a matter of substantive legislation bearing no relationship to the expenditure of funds. It was properly subject to the Governor’s veto power.

VETO NO. 9

This provision dealing with the transfer of persons convicted of specified felonies and with notification of transfers to authorities of selected parishes is clearly a matter of general legislation. It does not condition or limit the expenditure of funds in any way. Hence, this provision was subject to veto by the Governor.

VETO NO. 10

While the stricken provision is couched in language suggestive of a condition or limitation, its essential purpose is to insure that equipment purchased by the state meets certain safety standards. This concern is more appropriately addressed in general legislation since it is a substantive expression of state policy on safety. The provision is not directed to the expenditure of funds in a budgetary sense.

VETO NO. 11

EDUCATION HIGHER EDUCATION: e-T-o Alo. I( The funds appropriated to higher education shall be expended in conformance with the provisions of the Constitution aryi^laws of this State. Funds collected for parking/£érmits, on hand at June 30, 1976, vfay be rese be used only for future parking facilities, incJ leading into such parto appropriated from ttyz Si expended for consti until after all pr'oceec nstructroi iding streets g facilities; epair or uding any unexpended bal^fíces 6d and retained indefinitely to repair Vnd maintenance of íüdw^iy?'; whlk^^and wall kways ho>>cyer, that no funds for opp-fating expenses may be riaintenpnce of parking facilities such parking/permitsyhave been expended. No funds appropriated/ tyjfcGin nor any mándatory/étudent fees shall be used to finance the appearance on any state/iollege or university campus of any person who advocates the violent cv/er-throw of the government of the Unite$!r States or of the Stat£ of JxJuisiana. ?/n/t

The language vetoed here embraces several subjects. The initial directive that funds be expended in accordance with law is an appropriate qualification for inclusion in an appropriation bill and is not subject to veto. Hence, the provision became law in accordance with La.Const. art. 3, § 18(A).

The second provision constitutes a dedication for an indefinite period of time of all funds collected in connection with parking on the campuses of state universities. It is not a specific appropriation for a given year and would be more appropriately enacted as separate legislation; therefore, the provision was subject to veto. We reach the same conclusion respecting the third subject addressed. This provision has a purpose independent of the disbursement of funds, i. e., to discourage the advocation of the overthrow of government. This amounts to an expression of policy unrelated to the budget for any particular year. Hence, it is more in the nature of a general law and therefore subject to gubernatorial veto.

VETO NO. 12

This provision constitutes a policy directive wholly unrelated to the expenditure of appropriated funds. As such, it was subject to the Governor’s veto.

In view of our disposition of the foregoing, we find it unnecessary to address the constitutionality vel non of the language in the vetoed provisions.

DECREE

For the reasons assigned, the judgment of the district court is reversed. Vetoes numbers 1, 2, 5, 6, 7, 8, 9, 10 and 12 are declared to have been validly made.

Vetoes numbers 3 and 4 are declared null and void.

Veto number 11 is declared null and void as to the first provision vetoed. The Governor’s veto power with respect to the other two provisions is declared to have been validly exercised.

DIXON, J., concurs only in the part of the decree which sustains gubernatorial veto, which was properly exercised in each case.

DENNIS, J., concurs in part and dissents in part and assigns reasons.

DENNIS, Justice,

concurring in part and dissenting in part.

I concur in the majority’s decision that the governor constitutionally may not veto less than all of an item of an appropriation bill.

I respectfully dissent from the majority’s view that the governor may veto non-monetary provisions invalidly contained in the general appropriations bill. The constitution authorizes the chief executive officer to veto any line item in an appropriation bill, La.Const. Art. 4, § 5(G), and to veto the entirety of other bills, La.Const. Art. 3, § 18(B). Unlawfully attempted non-monetary legislation placed in an appropriation bill does not logically fit within either of these categories. In order to force it into one of the classifications the majority opinion inventively held “that when the Legislature inserts inappropriate provisions in a general appropriation bill, such provisions must be treated as ‘items’ for purposes of the governor’s item veto power over general appropriation bills.” But in doing so, the majority disregarded its own definition of a line item, viz., “a sum of money dedicated to a specific purpose, a separate fiscal unit,” because none of the “inappropriate provisions” contains an appropriation of money.

Perhaps the Court’s decision today strikes a workable compromise of a troublesome conflict between our co-equal branches of government. But in my opinion it has been achieved at the cost of doing violence to the constitution, raising several grave legal questions, and perhaps denigrating the power of the judiciary. By subjecting non-monetary “items” in the general appropriations bill to the executive veto, the Court has modified the balance of constitutional power between the governor and the legislature without consent of the people. In the process, its opinion creates doubts where none existed before. After today’s decision may the courts resurrect and declare constitutional material the governor has declared a non-monetary “item” and vetoed on this basis? May the judiciary declare unconstitutional a non-monetary “item,” if it has not been vetoed, or if it has been vetoed but subsequently approved by two-thirds of each house of the legislature? May this Court, in deciding whether material was properly included within the general appropriation bill, disregard completely and give no weight to the governor’s decision to exercise or withhold his veto? I believe the answer to each of these questions must be yes. Otherwise, the chief executive officer would have been given the right to exercise the judicial function of declaring legislative action unconstitutional in violation of the separation of powers and in derogation of the judicial authority of the courts. However, the majority opinion stops short of allaying these doubts, leaving for another day resolution of the issue of whether this Court has untrammelled authority to decide whether the type legislation involved here is constitutional and effective.

I think this Court should have declared unconstitutional the “inappropriate provisions” of the general appropriations bill rather than approving the governor’s vetoes of them.

      . All constitutional provisions referred to herein are embodied in the 1974 Louisiana Constitution.

      . When signed by the Governor, the bill became law and is designated as Act No. 17 of the Regular Session of the 1976 Louisiana Legislature. The act contains the general appropriations for the fiscal year beginning July 1, 1976 and ending June 30, 1977.

      . See cases cited in 18 Drake L.Rev. 245 (1969) and Beckman, The Item Veto Power of the Executive, 31 Temp.L.Q. 27 (1957). This interpretation comports with that placed on the term “item” by our own legislature. Section 16 of the preamble to the 1976 General Appropriation Bill provides in pertinent part:
      In the event the governor shall veto any line item of expenditure and such veto shall be upheld by the legislature, the Division of Administration shall withhold from the agency’s funds an amount equal to the veto. (Emphasis added.)

      . Even in states with constitutional veto provisions broader than our own, proper conditions and limitations on an item of expenditure have been held not subject to veto unless the money amount is also disapproved. Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593 (Tex.1976); State ex rel. Sundby v. Adamany, 71 Wis.2d 118, 237 N.W.2d 910 (1976); Welden v. Ray, 229 N.W.2d 706 (Iowa 1975); State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975 (1974); Cason v. Bond, 495 S.W.2d 385 (Mo.1973).

      . Most of the cases cited by plaintiffs in support of the proposition that the Governor can never veto language provisions in a general appropriation bill address the attempt to veto legitimate conditions or limitations to an appropriation rather than substantive legislation. Other cases do not indicate that the state constitutions of the respective states involved prohibit the inclusion of general legislation in an appropriation bill.

      . We express no opinion as to whether the appropriation of a lump sum to an agency with the right reserved to the legislature to later approve a particularized budget satisfied the itemization requirement of La.Const. art. 3, § 16(C) or whether this practice may violate that provision by denying the Governor the opportunity to see and consider the subse-quentiy budgeted expenditures. Even assuming that the provision is unconstitutional, it nevertheless constitutes a condition or limitation attached to an item of expenditure which is appropriate in a budgetary sense. Accordingly, the Governor may not veto the condition or limitation without vetoing the money item of appropriation.


author: SANDERS, Chief Justice.

text:
    Margaret GRIESHABER v. John R. CANNON.
    No. 58966.
    Supreme Court of Louisiana.
    May 16, 1977.

      Miriam T. Attaya, Lawrence W. Bell, Attaya & Bell, Gonzales, for defendant-applicant.
    Patrick W. Pendley, Freeman & Pendley, Ltd., Plaquemine, for plaintiff-respondent.
   SANDERS, Chief Justice.

Plaintiff, holder of a conventional mortgage on a tract of land sold to satisfy taxes, brought this suit to cancel the tax sale. She appealed a district court judgment which sustained the defendants’ peremptory exception of no right of action. The Court of Appeal reversed and cancelled the tax sale. 339 So.2d 445 (1976). On application of defendants, we granted writs to review the Court of Appeal judgment. La., 341 So.2d 413 (1977).

The pertinent facts surrounding the controversy are undisputed. Harvey J. Kling, on October 18,1956, purchased an undivided one-half interest in the disputed property. Kling placed a mortgage on his interest in the property in the amount of $4,000.00, represented by a note in that amount, payable on demand to “Any Holder or Holders.” Plaintiff is the holder of this note.

On May 26, 1966, the property was sold for non-payment of 1965 taxes to Richard Cannon, the defendants’ ancestor in title. The tax deed was recorded on June 1, 1966.

The case presents two questions for resolution: (1) Does plaintiff have a right of action to annul the tax deed after the three year period provided for in LSA-R.S. 47:2183 has expired? and (2) Are the method of assessment and description of the property fatally defective so as to require that the tax deed be stricken as a nullity and cancelled from the public records?

A tax debtor has three years from the date of the recordation of the tax deed in which to redeem his property which has been sold for unpaid taxes. LSA-Const. Art. X, § 11 (1921). Additionally, a tax debtor has two more years in which he can attack the tax sale based on certain irregu-lárities in the assessment and tax sale itself. After five years have elapsed from the date of recordation, the Louisiana Constitution of 1921, applicable here, terminated any claim against a tax deed for basic irregularities. LSA-Const. Art. X, § 11 (1921). The present action was filed after the expiration of the three year redemptive period but within five years from the date of recordation of the tax deed and the institution of this suit.

Plaintiff, as a conventional mortgagee, succeeded to whatever rights her mortgagor, Kling, may have had with respect to the tax deed at the time this litigation was instituted. Kling had a right to attack the regularity of the tax deed whereby his property was sold to the defendants’ ancestor in title. LSA-Const. Art. X, § 11 (1921). Since the tax debtor has a right to challenge the validity of the tax deed which dispossessed him of his property, if the property is returned to the tax debtor, it should be burdened with the conventional mortgage that the tax debtor himself placed on the property. If this were not the case, a tax debtor could, after the three-year redemptive period, bring a successful action to set aside a tax sale and regain his property free and clear of encumbrances. Obviously, this cannot be the intent of LSA-R.S. 47:2183. Federal Land Bank v. Hill, 170 La. 654, 129 So. 118 (1930).

The three year period for the automatic cancellation of conventional and judicial mortgages provided for in LSA-R.S. 47:2183 corresponds to the three-year redemptive period provided for in LSA-Const. Art. X, § 11 (1921). The statute cancels conventional mortgages as a convenient means to clear title to property sold for taxes and relieve a tax-vendee of such burdens. The strict wording of LSA-R.S. 47:2183 for the cancellation of conventional and judicial mortgages, after the lapse of three years from the date of recordation of the tax deed, must mean after the recordation of a valid and effective tax deed. So long as a tax debtor has any right to question the tax deed itself, the debtor’s mortgagee should be accorded the same right. See Federal Land Bank v. Hill, supra.

Plaintiff alleges that the tax sale is a nullity because the assessment failed to sufficiently describe or identify the property. Furthermore, she alleges that the assessment erroneously assessed the property by assigning a specified number of acres to the tax debtor rather than an undivided one-half interest.

LSA-R.S. 47:1958(D), dealing with assessment procedure, provides in pertinent part:

“It shall be sufficient to assess and describe all property according to a description that will reasonably identify the property assessed, such as: designating the tract or lot by the name by which it is commonly known, or by the number or letter by which it may be usually designated upon the regular assessment rolls, or upon an official or private plan or sketch; or by giving the boundaries or the name of the owners upon each side; or by the dimensions or description or name given in the act translating the ownership thereof; or by such other further description as may furnish the means of reasonable identification.”

The tract of land in question has been described on numerous occasions as:

“A certain parcel of real estate in the Parish of Ascension, Louisiana, known and described as Lot One (1) or the Southwest Vi of the Southwest Vi of Section 33, Township 10 South, Range 3 East, of St. Helena Meridian, S.E.D., East of River in Louisiana, containing 27.06 acres, less one-half acre belonging to Floyd School, together with all buildings and improvements thereon.” (Acquisition data omitted.)

Kling acquired an undivided one-half interest in the above described property. The property was described on the assessment rolls and in the tax deed as:

“13.53 Acres. Und. V% Int. Lot 1 of SW Vi of SW Vi, Sec. 33-10-3”

Plaintiff contends that Kling was assessed for and defendants’ ancestor in title purchased not an undivided one-half interest in and to 27.06 acres but a tract of 13.53 acres. From this hypothesis, she further argues that, since Kling owned an undivided xh interest, rather than specific acreage, a 13.53 acre tract could not be identified and sold by the description in the tax deed.

Relying upon Gottlieb v. Babin, 197 La. 802, 2 So.2d 218 (1941) and Hayes v. Viator, Sheriff, 33 La.Ann. 1162 (1881), the Court of Appeal held that the property was improperly ássessed.

In the present case, the Court of Appeal misconstrued Hayes v. Viator, Sheriff, supra, as did we in Gottlieb v. Babin, supra. In Russell v. Lang, 50 La.Ann. 36, 23 So. 113 (1898), this Court specifically distinguished Hayes v. Viator, Sheriff, supra, holding that the better way of assessing tracts of land owned in indivisión is to assess to each co-owner his undivided interest. The Court stated:

“We are referred to Hayes v. Viator, 33 La.Ann. 1162, as holding that ‘lands held in indivisión by several parties must be assessed as a whole, in the name of all joint owners.’ This quotation is taken from plaintiffs’ brief. It is the syllabus of the case, merely, and the syllabus is erroneous. A reading of the body of the opinion shows that no such proposition was sustained, and it is not true in law. There are two ways of legally assessing real property held by two or more parties in indivisión. One and the better way is to assess to each his undivided interest; the other, to assess the property as belonging jointly to the parties, giving the name of each individual owner, followed by the description of the property. Or, if a firm or business company, corporation, or association owns the property, it may be legally assessed in the name of such firm, company, corporation, or association. And in placing the names of taxpayers on the assessment rolls, while it is better to give the Christian or baptismal names, it suffices to use the initials, followed by the family or surname, thus ‘J. R. Russell.’ This designation of the name of the owner, followed by a correct description of the property, fulfills the requirements of law. Douglas v. Dakin, 46 Cal. 51, and if there be two joint owners, and the name of one only is used, followed by an accurate description of the property, this suffices to bind the interest of the one whose name is used, for his share of the taxes, but, of course, cannot bind the other individual owner whose name is not used, nor his interest in the property. The cases of Thibodaux v. Keller, 29 La.Ann. [507] 509, and Hayes v. Viator, 33 La. Ann. 1164, cited in opposition to this view, do not sustain the pretension.”

In the present case, the assessor has chosen to follow the assessment method approved in Russell v. Lang, supra, by listing Kling’s name in the assessment rolls and following it by a description of his interest. We find no merit to plaintiff’s contention that by designating 13.53 acres in the assessment, the tax-purchaser bought 13.53 acres rather than a one-half undivided interest in 27.06 acres. On the assessment form in evidence, the 13.53 is entered in the column: “No. of Acres.” In the column designated “Description of Property” is entered “Und. Vi Int. Lot 1 of SW Vi of SW Vi, Sec. 33-10-3.” Clearly, the 13.53 acre notation merely indicates the undivided acreage taxable to the named taxpayer as shown by the assessment description. The Tax Assessor has not, as contended by plaintiff, unlawfully partitioned the property.

Since the Tax Assessor has identified the property by the number or letter by which it is usually designated on the regular assessment rolls as required by LSA-R.S. 47:1958(D), we find that the property is reasonably identified as required by the statute. LSA-R.S. 47:1958(D), Ewald v. Hodges, 239 La. 883, 120 So.2d 465 (1960).

For the reasons assigned, the judgment of the Court of Appeal is reversed and set aside. The judgment of the Twenty-Third Judicial District Court is reinstated and made the judgment of this Court. Plaintiff is assessed with all costs.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Clifford KEYS.
    No. 59005.
    Supreme Court of Louisiana.
    May 16, 1977.

      J. Harold Fontenot, Opelousas, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, First Asst. Dist. Atty., for plaintiff-appel-lee.
   DIXON, Justice.

Defendant Clifford Keys was charged with the simple burglary of the Medical Arts Center located at 437 Moosa Boulevard, Eunice, Louisiana, a violation of R.S. 14:62. On January 22, 1975 a jury of twelve found the defendant guilty as charged by a vote of eleven to one. The defendant was sentenced to serve nine years at hard labor with credit for time served. On appeal the defendant presents a single argument for reversal of his conviction and sentence.

After the State had put on five witnesses, defense counsel informed the trial judge that he did not feel that the defendant was competent to proceed any further or to assist in his defense. At this point the trial judge suspended the regular trial proceedings and held a hearing, outside of the presence of the jury, on the defendant’s capacity to proceed. The defendant was permitted to take the stand for the limited purpose of testifying as to his present mental capacity. At the conclusion of the hearing, the trial judge refused to order a mental examination of the defendant and ruled that the defendant was competent to proceed. The defendant assigns as error these rulings of the trial judge.

Articles 641 and 642 of the Code of Criminal Procedure provide:

“Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” C.Cr.P. 641.
“The defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.” C.Cr.P. 642.

Therefore, the trial judge acted properly in halting the regular proceedings and in conducting a hearing on the defendant’s capacity. However, the fact that the defendant’s capacity to proceed is called into question during trial does not, for that reason alone, require the trial judge to order a mental examination of the defendant. At the time of defendant’s trial, C.Cr.P. 643 provided:

“The court may order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed. If the defendant does not have counsel when a mental examination is ordered, the court shall appoint counsel to represent him prior to and at the hearing on the question of present capacity to proceed.” (Emphasis added).

The Official Revision Comments to that article provide in pertinent part:

“(a) The ordering of a mental examination as to the defendant’s present capacity to proceed rests in the sound discretion of the court. It is not enough that the defense has filed a motion urging the defense, but there must be sufficient evidence to raise a reasonable doubt as to such capacity. Art. 267 of the 1928 Code providing for the defense of present unfitness, has been similarly construed in State v. Ridgway, 178 La. 609, 152 So. 306 (1934); State v. Neu, 180 La. 545, 157 So. 105 (1934); State v. Messer, 194 La. 238, 193 So. 633 (1940); State v. Washington, 207 La. 849, 22 So.2d 193 (1945); State v. Ledet, 211 La. 769, 30 So.2d 830 (1947); State v. Green, 221 La. 713, 60 So.2d 208 (1952). If there is a substantial doubt as to the defendant’s mental capacity it is an abuse of discretion for the trial judge to refuse to order a mental examination. See State v. Allen, 204 La. 513, 15 So.2d 870 (1943).” (Emphasis added).

Therefore, for the trial judge to order a mental examination, he must have reasonable grounds to doubt the defendant’s mental capacity to proceed. That decision rests within the sound discretion of the trial judge. C.Cr.P. 643; State v. Hargrove, 330 So.2d 895 (La. 1976); State v. Nix, 327 So.2d 301 (La. 1976); State v. Luquette, 275 So.2d 396 (La. 1973) and cases cited therein at 398.

The transcript of the hearing reveals that the defendant understood that he was on trial for simple burglary, what the consequences of acquittal or conviction would be, and what the functions of the judge and the jury were. In addition, he understood plea bargaining, cross-examination of witnesses and the function and operation of voir dire. In fact, defendant’s principal complaint was that he was apparently dissatisfied with the representation he was receiving from his trial counsel. The defendant had not demonstrated that he was unable to proceed with trial. The record fully supports the ruling of the trial judge. There was no abuse of discretion in the trial judge’s refusal to order a mental examination of the defendant.

Accordingly, the conviction and sentence of the defendant are affirmed.