author: WARNER, J.

text:
    Anthony G. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1328.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Anthony Brown, appeals his convictions for battery on a law enforcement officer, depriving an officer of a means of communication, resisting arrest without violence, and driving while license suspended. At trial, he relied on a self-defense theory as to the charge of battery on a law enforcement officer. The trial court instructed the jury using the standard instruction, but in doing so the instruction required that self-defense was authorized only if injury to the victim occurred. As no injury did occur in this instance, the jury instruction negated appellant’s self-defense theory. As such, the erroneous self-defense instruction constituted fundamental error, requiring reversal of appellant’s conviction for battery on a law enforcement officer.

While on road patrol in the early morning hours, a deputy of the Broward County Sheriffs Department noticed a car proceeding without lights. The deputy activated the lights on his patrol car to initiate a traffic stop, but appellant, who was driving the car, refused to stop and continued to travel southbound. The deputy then turned on his siren in an effort to get appellant’s attention, but appellant continued moving. After a short chase, appellant pulled to the side and jumped out of the car to run away. The deputy got out of his patrol car and chased him, eventually tackling him and bringing both of them to the ground.

The deputy told appellant to put his hands behind his back and to stop resisting, but appellant continued to struggle, trying to get away. The deputy attempted to roll appellant over and place appellant’s hands behind his back in an effort to handcuff him. However, appellant struck back at him, hitting him in the chest and kicking him. Meanwhile, the deputy was attempting to radio for backup, but appellant pulled the radio off the deputy’s shoulder. The deputy could not find the radio on the ground and could not contact the dispatcher.

Later during the struggle, the deputy had one of appellant’s hands behind his back. As the deputy tried to get his handcuffs out, appellant tried to run again. At that point, the deputy punched appellant in the face twice, holding his handcuffs as he struck appellant. Afterwards, appellant became compliant and was handcuffed. The deputy testified that he was not injured by appellant’s punches and kicks, and that he did not seek any medical treatment following the struggle.

Appellant testified and described a considerably different version of the incident. He admitted that he knew the officer wanted him to pull over and that he refused, because he knew his license was suspended. He also testified that he has had negative experiences with law. enforcement and that he has known police officers to be very aggressive, which was on his mind when he refused to pull over. Appellant slowed his car down and jumped out to run, hoping to avoid getting arrested. He acknowledged that he heard the officer running behind him, but appellant decided not to stop. The officer eventually tackled appellant to the ground.

Appellant admitted that he resisted the deputy in that he simply “locked up” or “tensed up” when he was on the ground. He denied that he. pushed against the ground trying to get back up. After appellant realized there was no hope, he allowed his hands to go free, but the officer then punched him two or three times in the face with the handcuffs. He did not hit or kick the deputy before he was punched, but acknowledged that when he “went to ward off the onslaught of punches,” he probably did hit the officer. After he was arrested, he was taken to the hospital for treatment of a broken nose, a laceration under his eye, a gash in his lip, a contusion to the face, and headaches. He was then taken to the jail infirmary, where he stayed for approximately seven days.

The trial court gave standard instruction 3.6(g) on the justifiable use of non-deadly force, instructing the jury in pertinent part as follows:

An issue in this ease is whether the defendant acted in self-defense. It is a defense to the offense with which the defendant is charged if the injury to Stephen Scrobe resulted from the justifiable use of non-deadly force.

(emphasis added). Defense counsel lodged no objection to the charge. The prosecutor then argued to the jury that it should ignore the self-defense claim because there was no injury to the deputy. Although the defense objected that this was a misstatement of the law, the trial court overruled the objection. Appellant was convicted of all charges.

On appeal, appellant maintains that the standard jury instruction on self-defense is fundamentally flawed, because it erroneously indicates that an injury to the victim is required before a jury may find that a. defendant. acted in self-defense. Recently, in Bassallo v. State, 46 So.3d 1205 (Fla. 4th DCA 2010), we decided this very issue and held that the trial court fundamentally errs in giving the standard jury instruction on self-defense, which included the word “injury,” where injury was not an element of the crime and the state presented no evidence of injury to the victim. In that case, as in this one, the prosecutor also used the “no injury” response to the claim of self-defense in closing argument. Bassallo concluded that the error in the instruction was fundamental error, because it negated the defendant’s sole defense to the crime charged. Id. at 1211 (citing Martinez v. State, 933 So.2d 1155, 1166 (Fla. 3d DCA 2006)). Just as in Bassallo, injury was not an essential element of any of the crimes, and there was no evidence of injury to the deputy. Because the jury instruction on self-defense indicated that the defense applied only if the victim suffered an “injury,” and the state argued that the instruction did not apply because no injury occurred to the victim, fundamental error occurred in the instruction on self-defense, negating appellant’s sole defense.

Because of the error, we reverse for a new trial on battery on a law enforcement officer. We do not reverse on the remaining charges, as the self-defense instruction was given only in connection with the battery on a law enforcement officer charge. In addition, appellant admitted to resisting without violence and to driving with a suspended license. As to depriving the officer of a means of communication, his defense was that he never saw the radio, and if he hit it and knocked it off it was unintentional. Therefore, the fundamentally erroneous self-defense instruction was isolated to the first charge.

As to the appellant’s claim that the prosecutor made multiple improper comments in closing argument, we do not find that the prosecutor’s comments on the defense theories impermissibly disparaged appellant or defense counsel, but rather were within the permissible bounds of advocacy. Although the prosecutor did make some improper statements, including improper bolstering of the officer, we do not find these merit reversal of the remaining convictions which were not affected by the self-defense jury instruction.

Affirmed in part; reversed in part, and remanded for a new trial on battery on a law enforcement officer.

STEVENSON and GERBER, JJ., concur.


source: Caselaw Access Project

author: CIKLIN, J.

license: Public Domain

text:
    Nixon WARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2785.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

The appellant raises three issues pertaining to his conviction and sentence for fleeing or attempting to elude law enforcement and driving without a valid license. Evidence of an uncharged collateral crime concerning a shooting became a major feature of the trial — including admission of a projectile and bullet casing. Because the unnecessary and detailed evidence regarding the shooting unduly prejudiced the defendant, we must reverse and remand for a new trial.

Nixon Ward was tried before a jury for charges of fleeing and eluding and driving without a valid driver’s license for events that occurred on November 13, 2005. Fort Lauderdale police responded to the scene of a shooting. Ward became a suspect in the shooting incident and law enforcement officials issued a BOLO to patrol officers. A short time later, patrol officers with the Fort Lauderdale Police Department spotted the vehicle identified in the BOLO and began to follow it. The vehicle, driven by Ward, was pursued by multiple police cars for approximately ten to twenty blocks, during which time the police officers who testified at trial conceded that Ward did not speed, violate traffic control devices or otherwise commit any traffic infractions (other than “turning too widely” on Powerline Road). Ward entered into the driveway at his mother’s house and police pulled up behind him. Ward was then arrested for the aforementioned charges.

Before trial, the state filed a motion requesting that it be allowed to introduce evidence of the shooting under the theory that it was inextricably intertwined with the “chase” that followed. After conducting a hearing on the issue, the trial court reserved ruling and stated that it would issue a written order, which apparently never happened. At trial, the state’s first witness, Officer Jack Dicristofalo, began testifying about the shooting and defense counsel objected, arguing the shooting was irrelevant to the charged crimes. The trial court overruled the objection and stated that it would consider defense counsel as having a standing objection to the introduction of all evidence of the shooting. Officer Dicristofalo then proceeded to testify at length and in detail about the shooting and the state introduced, over defense counsel’s objection again, photographs containing bloody images from the scene of the shooting.

Two other police officers testified for the state and referenced the shooting. At one point, Officer Mark Debord testified that when he approached Ward’s vehicle in Ward’s mother’s driveway, the officer had his gun drawn because he was fearful for his safety due to the previous shooting report. Officer Cecil Stone testified that upon arresting Ward, he searched Ward and found a spent bullet casing inside one of his pockets. Finally, the state extensively referenced the shooting in both its opening statement and closing argument, and at one point during closing argument urged the jury to take both the photographs of the shooting crime scene and a recovered bullet casing into the jury room while deliberating.

“Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion.” White v. State, 817 So.2d 799, 806 (Fla.2002) (quoting Ray v. State, 755 So.2d 604, 610 (Fla.2000)). This includes reviewing a trial court’s determination as to the relevancy of evidence. See Taylor v. State, 855 So.2d 1, 21 (Fla.2003) (holding that a trial court’s determination that evidence is relevant and admissible “will not be disturbed absent an abuse of discretion”) (citation omitted). “Discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused where no reasonable person would take the view adopted by the trial court.” White, 817 So.2d at 806 (citation omitted).

Here, we confront the issue as to whether the evidence of the uncharged shooting was necessary to provide context for the charged offenses. It is well-established that “[ejvidence of a collateral offense may be admissible on the ground that it is inextricably intertwined with the charged offense and therefore relevant to prove that offense.” Kates v. State, 41 So.3d 1044, 1045 (Fla. 1st DCA 2010) (citing Osborne v. State, 743 So.2d 602 (Fla. 4th DCA 1999)). Evidence is “inextricably intertwined” if it is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s). See Dorsett v. State, 944 So.2d 1207, 1213 (Fla. 3d DCA 2006).

In the instant case, the state argues that evidence of the uncharged shooting was necessary to establish the entire context of the charged crimes. Clearly, the highly detailed shooting evidence and testimony was not necessary to establish the elements of fleeing or eluding, which, in one subsection of the statute, is defined as the following:

Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree....

§ 316.1935(2), Fla. Stat. (2005).

The jury was also instructed on another definition of fleeing and eluding:

It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a felony of the third degree....

§ 316.1935(1), Fla. Stat. (2005).

Neither of these crimes requires the state to prove the validity of or show the reason for the original pursuit. Instead, the focus is on whether law enforcement’s lights and sirens were activated and whether the defendant knew he or she was being ordered to stop by law enforcement and whether the person chose to defy that order by failing to stop. Simply stated, the underlying reason for the stop itself— at least in this case — was patently irrelevant to the charge of fleeing or attempting to elude.

The state argues that if the jury were not allowed to hear about the shooting, it would have appeared to them that the police had randomly decided to stop Ward’s vehicle. Additionally, argues the state, the police needed to explain why they were so concerned with stopping the vehicle as quickly as possible and thereafter taking control of the situation. While this may be true, the peculiarly detailed evidence of the shooting as admitted by the trial judge was overkill. The state could have reasonably elicited testimony which indicated that police needed to stop Ward’s vehicle because he was a person of interest in a recent incident. See Kates, 41 So.3d at 1046 (“[E]ven if evidence of an uncharged crime is inextricably intertwined with the charged offense, and is thus admissible to establish the entire context of the crime, unnecessary details must be excluded.” (citing Conde v. State, 860 So.2d 930 (Fla.2003))). This type of limited statement would have provided the jury with adequate context for it to understand why the police were attempting to detain Ward.

Even though the trial court erred in admitting extensive evidence of the shooting, we would not reverse if the error were harmless. To prove harmless error, the state has the burden of demonstrating beyond a reasonable doubt that the error did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Here, the state starts out with an even more arduous burden because “[t]he erroneous admission of collateral crimes evidence is presumptively harmful.” McCall v. State, 941 So.2d 1280, 1283 (Fla. 4th DCA 2006) (citations and quotation marks omitted). This is because “[e]vi-dence that suggests a defendant has committed other crimes or bad acts can have a powerful effect on the results at trial.” Id. (citation and quotation marks omitted). In the instant case, the events surrounding the shooting became a prime feature of the trial because the state presented witnesses to discuss it and referenced it extensively in both its opening statement and closing argument. In fact, one law enforcement witness called to the stand by the state testified only about the shooting.

A review of the record suggests it is not unreasonable to conclude that the trial for fleeing- or eluding became a proxy-trial for the shooting. Therefore, we cannot conclude that the verdict would have remained the same absent the extensive impermissible evidence of the shooting.

For these reasons, we reverse and order a new trial on the fleeing or eluding count.

We have reviewed the other two issues Ward raises and find them to be without merit.

Reversed and remanded for a new trial.

POLEN and LEVINE, JJ., concur.

      . BOLO stands for "be on the look out” and is the process by which law enforcement officers are able to announce, via communication device, to other officers that a suspect, vehicle, etc. is possibly involved in a crime or suspicious activity.

      . While Ward was also charged and convicted of driving without a valid driver's license, he stipulated during the trial that he drove the vehicle without a driver's license. As such, his conviction for this charge will not be disturbed.

      . Perhaps because of sheer popular usage, prosecutors, defense attorneys, and courts alike have created a misnomer by unwittingly characterizing the crime described in subsection (2) as "aggravated” fleeing and eluding and relegated acts committed under subsection (1) as "non-aggravated” fleeing and eluding or "ordinary” fleeing and eluding. The words "aggravated” and "ordinary” are nowhere to be found in either subsection and a review of the legislative history suggests that such designations for subsections (1) and (2) were never intended by the legislature. Instead, subsection (4), which was not charged in the instant case, defines aggravated fleeing and eluding, which involves damage to persons and/or property.

      . We understand that in most cases in which a defendant is charged with fleeing and eluding, the defendant will simultaneously be charged with the crime that constituted the underlying events leading to the chase. In those situations, it is obviously relevant and necessary for the state to explain the events constituting both the underlying crime and the subsequence chase. As to the instant case, however, for whatever reason Ward was not charged with the underlying crime, the shooting, and therefore its relevancy was severely limited, if indeed it was relevant at all.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Celdrick RUCKER, Appellee.
    No. 4D09-2435.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

We grant the appellee’s motion to dismiss this appeal. The State appeals the trial court’s order mitigating appellee’s sentences for dealing in stolen property, burglary of an unoccupied dwelling, and false verification of ownership. After mitigation, the trial court imposed a sentence of six years in prison for the dealing in the stolen property count and five years for the burglary and false verification of ownership counts, with all sentences to be served concurrently. The lowest permissible sentence under the Criminal Punishment Code was 37.8 months. We find that appellee’s sentence was legal and within the range established by the Criminal Punishment Code. Therefore, we are without jurisdiction to entertain the State’s appeal of the sentence imposed. See § 924.07(e), (i), Fla. Stat.; Fla. R.App. P. 9.140(c)(1)(M)-(N). This appeal is dismissed for want of jurisdiction.

Dismissed.

MAY, DAMOORGIAN and LEVINE, JJ., concur.


author: GROSS, C.J.

text:
    Christopher William METZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3551.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

Christopher Metz appeals his conviction for one count of dealing in stolen property. We reverse because the trial court erroneously excluded an exculpatory portion of Metz’s statement to a police officer that shed light on the inculpatory part admitted in evidence.

The facts of this case are not at issue. Soon after a golf cart battery charger and other tools, including a weed eater and hedge trimmers, were stolen from a shed in a mobile home park, Metz sold the battery charger to another park resident. When police questioned him about it, he admitted selling the charger and led officers to the other tools, but he also told officers that a man named Clint had given him the items.

At trial, a deputy sheriff testified that Metz admitted he sold the charger to another park resident and that he led the deputy to the weed eater and hedge trimmer located in a vacant lot. On cross examination, the trial court prevented Metz from bringing out the remainder of his statement to the deputy — that someone had given him the property and he did not know it had been stolen from the park tool shed until after being contacted by the authorities. Metz argued that his entire statement was admissible under the rule of completeness, subsection 90.108(1), Florida Statutes (2009), but the trial court ruled that the excluded words were “not necessary to understand the part of the statement” that the jury heard from the deputy-

In closing argument, the state relied on Metz’s unexplained possession of the recently stolen property to argue that he knew or should have known the property was stolen. Consistent with subsection 812.022(2), Florida Statutes (2009), the trial court instructed the jury that

[p]roof of possession of recently stolen property unless satisfactorily explained gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

The trial court erred when it prevented the jury from hearing the exculpatory portion of Metz’s statement to the deputy because that portion of the statement was admissible under subsection 90.108(1), the rule of completeness. In Ramirez v. State, 739 So.2d 568, 580 (Fla.1999), the Supreme Court described the operation of this rule:

Codified at section 90.108, Florida Statutes (1995), the rule of completeness provides that “when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.” This rule has been applied to verbal statements as well. See Christopher v. State, 583 So.2d 642, 646 (Fla.1991); see also Reese v. State, 694 So.2d 678, 683 (Fla.1997).
“Fairness is clearly the focus of this rule.” Jordan v. State, 694 So.2d 708, 712 (Fla.1997). Thus, when a party introduces part of a statement, confession, or admission, the opposing party is ordinarily entitled to bring out the remainder of the statement. See Larzelere [v. State], 676 So.2d [394,] 402 [(Fla.1996)]; see also Christopher, 583 So.2d at 646. This rule is not absolute, and “the correct standard is whether, in the interest of fairness, the remaining portions of the statements should have been contemporaneously provided to the jury.” Larzelere, 676 So.2d at 402.

A defendant’s exculpatory out-of-court statement is admissible into evidence when a state witness has testified to incriminating statements contemporaneously made by the defendant and “the jury should hear the remaining portions at the same time so as to avoid the potential for creating misleading impressions by taking statements out of context.” Mason v. State, 719 So.2d 304, 305 (Fla. 4th DCA 1998); see also Whitfield v. State, 933 So.2d 1245, 1248 (Fla. 1st DCA 2006); Husseain v. State, 805 So.2d 1066, 1067 (Fla. 3d DCA 2002).

The subsection 90.108(1) rule of completeness has been applied where excluded portions of a defendant’s statement relate to a defense to criminal charges. Thus, in Guerrero v. State, 532 So.2d 75, 76-77 (Fla. 3d DCA 1988), the third district relied upon the rule to reverse a conviction for grand theft of a car where the trial court had excluded the part of the defendant’s statement containing his explanation that he did not know the car was stolen because his girlfriend had given it to him; as in this case, the excluded statement in Guerrero related to the defendant’s state of mind while possessing stolen property. In Sweet v. State, 693 So.2d 644, 645 (Fla. 4th DCA 1997), we held that subsection 90.108(1) required admission of that portion of the defendant’s statement that related to his defense of voluntary intoxication. See also Mason, 719 So.2d at 304-05 (holding that trial court erroneously excluded that portion of defendant’s statement pertaining to the defendant’s state of mind in an attempted burglary prosecution).

The exclusion of Metz’s exculpatory statement to the deputy was not harmless error. One of the elements of dealing in stolen property is that a defendant knew or should have known that the property was stolen. See § 812.019(1), Fla. Stat. (2009). To obtain a conviction, the state relied on Metz’s possession of the property and the subsection 810.022(2) inference. The excluded explanation directly challenged one of the elements of the crime.

Reversed and remanded for a new trial.

HAZOURI and CIKLIN, JJ., concur.


author: DAMOORGIAN, J.

text:
    Eugene GREEN, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 4D09-4021.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.

      Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Joshua A. Blaeksten of Stabinski & Funt, P.A., West Palm Beach, for appellant.
    Kara Berard Rockenbach and Kristi L. Bergmann of Methe & Rockenbach, P.A., West Palm Beach, for appellee.
   DAMOORGIAN, J.

Eugene Green appeals the trial court’s order denying his motion for entitlement to prejudgment interest and motion for rehearing. We affirm, finding no error in the trial court’s ruling that prejudgment interest is allowed for actions from the date the debt is due under the contract.

Green, insured by Citizens Property Insurance Corporation (“Citizens”), filed a claim after his home was damaged by Hurricane Frances in 2004. Citizens appointed an adjuster and paid the estimated damages as found by the adjuster. Claiming the payment was insufficient, Green and Citizens engaged in mediation pursuant to their contract. As a result of the mediation, Citizens paid Green additional monies but less than the amount he sought. Green then filed a civil action claiming that Citizens denied him coverage and refused to pay the remaining sums due under the policy. The court stayed the underlying suit and ordered Citizens to participate in the appraisal process. Ultimately, a final appraisal award was entered. Pursuant to the loss payment provision of the parties’ insurance contract, Citizens was required to make payment within sixty days after the filing of an appraisal award. Citizens paid Green the amount of the appraisal award within sixty days of the filing of the award. Thereafter, Green filed a motion for prejudgment interest on the funds paid. The motion was denied.

On appeal, Green argues that once Citizens underpaid his claim on the two occasions preceding the appraisal award, it waived the policy provision allowing for deferred payment on the claim. Moreover, once that provision was waived, the claim became due from the date of loss and interest would be due from that date. N. Pointe Ins. Co. v. Tomas, 16 So.3d 977, 978-79 (Fla. 3d DCA 2009) (“Once the insurer denies coverage, it is deemed to have waived the policy provision for deferred payment and, should it pay, becomes responsible for prejudgment interest from the date of loss.”).

We have recently held that “'[i]t is the terms of a contract for insurance which determine the date from which the coverage payment is due, as well as when interest is due on the amounts payable.’” Ellie’s 50’s Diner, Inc., v. Citizens Prop. Ins. Corp., 54 So.3d 1081, 1082 (Fla. 4th DCA 2011) (quoting Citizens Prop. Ins. Corp. v. Mallett, 7 So.3d 552, 556 (Fla. 1st DCA 2009)). In Ellie's, as in the instant case, Citizens timely paid the claim pursuant to the appraisal process after first having paid the insured an amount less than what was awarded. Id. Green contends that we should be guided by the Third District’s holding in Tomas. We disagree because, unlike the instant case, in Tomas, the insurer initially denied coverage, although it ultimately reversed its position and proceeded with the appraisal process. That is not what occurred in this case.

Inasmuch as Citizens satisfied the appraisal award within sixty days of the filing of the award, as required by the terms of the insurance contract, Green was not entitled to prejudgment interest.

Affirmed.

MAY and LEVINE, JJ., concur.


author: GERBER, J.

text:
    Gerry PARISH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4193.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.
    Gerry Parish, Bowling Green, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The appellant filed a petition seeking a writ of mandamus to be served upon the state. In the petition, the appellant sought to obtain a copy of the Miranda waiver form which the state introduced into evidence at his criminal trial. The circuit court denied the petition. We reverse, finding that the court should have: (1) granted the appellant leave to file an amended petition adding the clerk of court as a respondent; and (2) issued an alternative writ of mandamus directing the clerk to show cause why the writ should not be issued. .

In the original petition, the appellant alleged that he served multiple public record requests on the Broward County clerk of court, state attorney, and public defender to obtain a copy of his Miranda waiver form. According to the appellant, the clerk’s office responded that it possessed the form and that if he paid for a'copy of the form, it would send the copy to him. The appellant alleged that, after he sent payment, the clerk’s office responded that it did not possess the form.

The appellant then filed the petition for writ of mandamus seeking to obtain a copy of the form from the state. The circuit court determined that the petition was legally sufficient to state a cause of action and demonstrated a preliminary basis for relief. The court then issued an alternative writ of mandamus directing the state to show cause why the .writ should not be issued. See Fla. R. Civ. P. 1.630 (2010) (if a petition for writ of mandamus shows a prima facie case for relief, the court shall issue an alternative writ of mandamus to which the defendant shall respond as provided in Florida Rule of Civil Procedure 1.140); Minasian v. State, 967 So.2d 454, 455 (Fla. 4th DCA 2007) (“If a mandamus petition is facially sufficient, the court must issue an alternative writ of mandamus requiring the respondent to show cause why the writ should not be issued.”).

The state responded to the alternative writ by stating that the appellant’s Miranda waiver form was admitted into evidence and, therefore, was not in the state’s possession. The court then denied the appellant’s petition. The order stated: “Based upon the Petitioner’s own allegation, the requested documents were received in evidence and should be recovered from the Court file via the Clerk of Court.”

The appellant then filed this appeal. He argues that the circuit court: (1) should have issued an alternative writ of mandamus directing the clerk to show cause why the writ should not be issued; and (2) should have held an evidentiary hearing to determine whether the state or the clerk possesses the form. The state responds that the court correctly denied' the petition because the clerk possesses the form.

We review the circuit court’s order for an abuse of discretion. See Rosado v. State, 1 So.3d 1147, 1148 (Fla. 4th DCA 2009) (“An appellate court reviews a trial court’s decision on a petition for writ of mandamus under the abuse of discretion standard of review.”) (citation omitted).

We find that the circuit court erred in denying the petition for two reasons. First, contrary to the court’s order, the appellant did not allege that “the requested documents were received in evidence and should be recovered from the court file via the Clerk of Court.” .That allegation came from the state’s response, which was unsworn. Because there was no sworn evidence refuting the appellant’s allegation that the clerk denied possessing the form, the circuit court erred in denying the petition. See Radford v. Brock, 914 So.2d 1066, 1069 (Fla. 2d DCA 2005) (“[B]ecause there is no sworn evidence refuting [the appellant’s] allegations, the trial court erred in dismissing his petition.”).

Second, given the clerk’s alleged initial response that it possesses the appellant’s Miranda waiver form, and given the state’s response that the clerk possesses the form, the court should have: (1) granted the appellant leave to file an amended petition adding the clerk as a respondent; and (2) issued an alternative writ of mandamus directing the clerk to show cause why the writ should not be issued. See Radford, 914 So.2d at 1069 (“Because the trial court did not issue an alternative writ requiring the clerk and [the court reporter] to show cause why the writ should not be issued ... the trial court erred in dismissing [the] petition.”).

If the clerk’s office responds to the alternative writ by stating that it possesses the appellant’s Miranda waiver form, then presumably the clerk shall provide the appellant with the form without requiring the circuit court to issue the writ. However, if the clerk’s office responds to the alternative writ by stating that it does not possess the form, then the court should conduct an evidentiary hearing, including an in-camera inspection if necessary, to resolve the issue of whether the state or the clerk possesses the form. See Johanson v. State, 872 So.2d 387, 388 (Fla. 4th DCA 2004) (“We agree with appellant that the circuit court erred in not conducting an evidentiary hearing, including an in-camera inspection of the state attorney’s file, on the contested issue of whether the state had the requested reports in its possession.”).

Reversed and remanded.

STEVENSON and TAYLOR, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The appellant also argues that the circuit court should have issued an alternative writ of mandamus on the public defender. We reject that argument because the appellant’s petition does not show that the public defender may possess the form. See Fla. R. Civ. P. 1.630.


text:
    The JUSTICE ADMINISTRATIVE COMMISSION, Petitioner, v. Felicia SHAMAN, Respondent.
    No. 4D11-148.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.
    Christian D. Lake, Assistant General Counsel, Tallahassee, for petitioner.
    Felicia Shaman of the Law Offices of Felicia Shaman, P.A., Fort Lauderdale, for respondent.
   PER CURIAM.

The Justice Administrative Commission (“JAC”), petitions this court for a writ of certiorari to quash a circuit court’s attorney’s fee order. The trial court awarded appointed counsel a fee amount above the flat fee detailed within Paragraph XI(6) of the JAC agreement. See §§ 27.5804(1) & (12)(a), Fla. Stat. (2010). We grant the petition upon concluding that the fee order departs from the essential requirements of law.

The most recent agreement signed by respondent and JAC provides that it superseded and terminated all other agreements and that it applied to specific civil cases appointed on or after July 1, 2007. Counsel was appointed in June, 2010. By its express terms, the agreement provides that an attorney cannot seek compensation in excess of the.flat fee in civil cases unless the compensation on an hourly basis at a rate of $75.00 would be at least double the flat fee. Counsel’s billing did not meet the minimum threshold.

Accordingly, we grant the petition and quash the trial court’s order to the extent it permitted a fee in excess of the $800.00 flat fee.

GROSS, C.J., WARNER and DAMOORGIAN, JJ., concur.


text:
    HOLLYWOOD, LLC, Florida limited liability company, 1925 Madison Condominium Association, Inc., a Florida not for profit corporation, and Steven Kates, Appellants, v. Robert H. SURES, Appellee.
    No. 4D10-4433.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.
    Robert A. Stok and Jason M. Folk of Stok & Associates, P.A., Aventura, for appellants.
    Scott E. Tuckman of Navon & Lavin, P.A., Fort Lauderdale, for appellee.
   GERBER, J.

The defendants appeal the circuit court’s order granting the plaintiffs motion to appoint a receiver. The defendants raise five arguments. On the first four arguments, we affirm. On the fifth argument — that the court erred by not requiring the plaintiff or the receiver to furnish a bond without the plaintiff having shown exceptional circumstances which preclude the need or ability to furnish such a bond — we reverse.

The plaintiff moved to appoint a receiver to take control of and manage the defendant condominium association. In the motion, the plaintiff alleged that leaks from the condominium building’s roof were damaging the plaintiffs unit and the building’s common elements. The plaintiff further alleged that he made demands upon the association to repair or replace the roof, but it ignored his demands. Therefore, the plaintiff requested the circuit court to appoint a receiver, but “without bond or other security.” The plaintiff did not explain why he requested the court to appoint the receiver “without bond or other security.”

After conducting an evidentiary hearing, the court orally granted the motion and, on its own, named a receiver. In naming the receiver, the court stated that it wanted the receiver to be somebody who “knows what [he is] doing, and [the receiver] has that background and experience ... [H]e is a very well respected lawyer in Fort Lauderdale for many years and he has ... the ability to do it.”

After the court’s oral ruling, the court entered a written order which stated, in pertinent part, “The court appoints [name of receiver] as the receiver, without bond or other security.” The court did not explain why it allowed the receiver to serve “without bond or other security.”

The defendants then filed this appeal. The defendants argue that the court erred by not requiring the plaintiff or the receiver to furnish a bond without the plaintiff having shown exceptional circumstances which preclude the need or ability to furnish such a bond.

We agree. “Florida courts have held that the applicant for the appointment of a receiver should be required to provide a bond if the receiver is appointed, sufficient in amount to protect the opposing party from any losses sustained should it ultimately be concluded that the appointment of the receiver was improvident, unless exceptional circumstances are shown which preclude the need or ability to furnish such a bond.” Comprop Inv. Props., Ltd. v. First Tex. Sav. Ass’n, 534 So.2d 418, 418 (Fla. 2d DCA 1988) (emphasis added; citations omitted).

Here, the plaintiff did not show exceptional circumstances which preclude the need or ability to furnish such a bond. We do not accept the court’s comments regarding the receiver’s background and experience as constituting such exceptional circumstances. Therefore, we remand for the circuit court to require the plaintiff or the receiver to furnish such a bond, unless the plaintiff shows exceptional circumstances which preclude the need or ability to furnish such a bond.

Affirmed in part, reversed in part, and remanded.

STEVENSON and TÁYLOR, JJ., concur.


author: WEIMER, Justice. CLARK, Justice, GUIDRY, Justice,

text:
    J-W POWER COMPANY v. STATE of Louisiana through the DEPARTMENT OF REVENUE & TAXATION.
    No. 2010-C-1598.
    Supreme Court of Louisiana.
    March 15, 2011.
    Rehearing Denied April 29, 2011.

      Robert Frederick Mulhearn, Jr., Shone Therese Pierre, Donald Michael Bowman, Miranda Yvette Conner, Antonio Charles Ferachi, for Applicant.
    Bradley Murchison Kelly & Shea, LLC, Hilary Aldama Wooley, David Richard Taggart, for Respondent.
   WEIMER, Justice.

|; This matter is before the court for a determination of whether the court of appeal erred in finding that a dealer-collector of sales taxes may serve as an agent for its customers in connection with a demand for the refund of sales taxes paid under protest pursuant to LSA-R.S. 47:1576. For reasons that follow, we find the appellate court was correct in reversing the district court which had dismissed the plaintiffs action on the basis of no right of action. Accordingly, we affirm that portion of the court of appeal’s decision from which the writ application was taken.

FACTUAL AND PROCEDURAL BACKGROUND

J-W Power Company (Power), a Texas corporation, is a provider of gas-compression services in the oil and gas industry. As part of its business, Power entered into various full-service agreements with its customers in which Power agreed |2to provide the gas-compression services, including all labor, equipment, repairs, and maintenance necessary to achieve the customers’ goals. J-W Gathering Company (Gathering) and J-W Operating'-Company (Operating) are customers of Power pursuant to full-service agreements.

On December 2, 2004, the Louisiana Department of Revenue (Department) issued Revenue Ruling 04-009, which changed the Department’s interpretation and application of LSA-R.S. 47:301(14) relative to gas-compression agreements. Pursuant to that ruling, Power’s customers owed sales taxes on natural gas-compression services provided pursuant to full-service agreements. After the issuance of the Revenue Ruling, Power, as the selling dealer, was required to collect sales taxes from its customers on the full-service agreements and remit those taxes to the Department.

In its petition, Power alleged “by letters dated January 20, 2005, J-W [Power] protested the application and payment of the sales tax on the Full Service Agreements pursuant to La. R.S. 47:1576.” Those letters identified the sales taxes in question, specifying amounts for December 2004 that had been paid to the state and certain parishes, set forth the basis of the dispute, gave “notice of the payment under protest by or on behalf of J-W” Power, and gave notice of “J-W [Power’s] intent to file suit for refund.” A second set of letters was sent on February 18, 2005, regarding protested payments made for January 2005.

On March 14, 2005, Power filed a petition for refund of sales taxes paid under protest pursuant to LSA-R.S. 47:1576. In its petition, Power prayed, in pertinent part, for a judgment declaring that its full-service agreements are non-taxable service | ^agreements under LSA-R.S. 47:301(14) and awarding Power a refund of “all sales tax amounts heretofore and hereafter paid under protest to the State of Louisiana .by or on behalf of J-W [Power] pertaining to the Full Service Agreements, with interest as allowed by law.” The Department filed an answer on November 28, 2005.

Almost three years later, on July 7, 2008, the Department filed an exception of no right of action based on the fact that Power was not the taxpayer and was, therefore, not entitled to seek a refund under LSA-R.S. 47:1576. In its memorandum opposing the exception, Power asserted that it was “prosecuting the refund portion of [its] action as the authorized representative of both J-W Gathering Company and J-W Operating Company, as well as the authorized representative of multiple third parties whose Full Service Agreements were eviscerated by Revenue Ruling 04-009.” After a hearing, the district court granted the Department’s exception but afforded Power the opportunity to amend its petition in order to remove the grounds for the objection.

In a supplemental and amending petition filed on May 14, 2009, Power further alleged:

J-W Gathering and J-W Operating expressly directed and authorized J-W Power Company to protest the application and payment of the sales taxes on the Full Service Agreements and designated J-W Power Company as their agent in fact for the payment under protest and the prosecution of the suit for refund on their behalf.

The supplemental and amending petition also disclosed that the sums referred to in the January 20, 2005, and February 18, 2005 letters to the Department included amounts attributable to Gathering and Operating, as well as various third parties. Power declared that it was seeking “to recover all amounts paid under protest for J-W |4Power Company, J-W Gathering, and J-W Operating in the principal amount of $1,002,081.92 through March 2009, and all amounts hereafter paid by JW Power Company under protest.” Furthermore, Power alleged that “J-W Power Company, for itself and its principals, J-W Gathering and J-W Operating, hereby waives, releases and withdraws its protest of the amounts attributable to third parties ... and does not intend to prosecute this action for refund as it relates to the non-affiliated third parties.” In its amended pleading, Power sought a judgment “[Refunding to J-W Power Company, on behalf of its principals, J-W Gathering and J-W Operating, all sales tax amounts heretofore and hereafter paid under protest to the State of Louisiana by or on behalf of J-W Power Company, J-W Gathering and J-W Operating pertaining to the Full Service Agreements.” Attached to the supplemental and amending petition was a spreadsheet detailing the amounts paid under protest, the period covered by the protest payment, the amounts paid by Power on behalf of Gathering and Operating, and the total amounts paid for unaffiliated third parties.

Also on May 14, 2009, Gathering and Operating filed a petition for intervention, alleging they “expressly directed and authorized J-W Power Company to protest the application and payment of the sales taxes on the Full Service Agreements and designated J-W Power Company as their agent in fact for the payment under protest and the prosecution of the suit for refund on their behalf.” They further alleged:

beginning on January 20, 2005, J-W Power Company protested the application and payment of the sales tax on the Full Service Agreements pursuant to La. R.S. 47:1576 for its Louisiana Full Service Agreement customers, including specifically, J-W Operating and J-W Gathering. In each and every instance, J-W Power Company was authorized by and on behalf of J-W Gathering and JW Operating to pursue such action for and on their respective behalf as their authorized agent. Those protest letters specifically identified the sales tax amounts disputed, set forth the | Sbasis of the dispute and gave notice of J-W Power Company’s intent to file suit for refund.

Moreover, Gathering and Operating acknowledged that they are bound by the actions that Power performed in the capacity of their duly authorized agent. They added:

Pursuant to Louisiana Code of Civil Procedure article 694, J-W Gathering and J-W Operating specifically authorized J-W Power Company to act for and on their behalf as their agent and J-W Power Company in fact acted for and on their behalf in all actions taken in connection with the payment under protest of the disputed sales taxes and in the pursuit of the recovery of those amounts in this suit. Pursuant to governing law, including Code of Civil Procedure article 694, J-W Gathering and J-W Operating, as the principals, have been and are considered the plaintiff herein.

In their intervention, they prayed for a judgment “Refunding to J-W Gathering and J-W Operating all sales tax amounts heretofore and hereafter .paid under protest to the State of Louisiana by or on behalf of J-W Power Company, J-W Gathering and J-W Operating pertaining to the Full Service Agreements.”

The Department followed with another exception of no right of action, urging that the amendments to Power’s petition did not remove the grounds for the objection as no authority under the tax laws enables Power' to act as the agent for its customers, Gathering and Operating, in the giving of notice of the intention to file suit for the recovery of taxes paid under protest or the filing of such a suit. The Department also opposed the petition for intervention, urging that Gathering and Operating did not have any right to enforce in the suit for recovery of taxes paid under protest because neither entity had fulfilled the statutory prerequisites of LSA-R.S. 47:1576, pertaining to' the remittance of tax under protest and suits to recover protested taxes.

After a hearing on the Department’s exception and its objection to the petition for intervention, the district court observed that the issues remained unchanged, ie., 1 fithe amendment to the pleadings did not remove the ground for the objection; therefore, the district court sustained the Department’s exception and dismissed Power’s suit with prejudice. By separate judgment, the district court denied the petition for intervention.

Power, Gathering, and Operating appealed both judgments, assigning as error the following determinations by the district court: Gathering and Operating could not designate Power as agent for purposes of protesting the tax payments; Power, Gathering, and Operating are not entitled to declaratory relief; and Gathering and Operating could not intervene in the suit.

In reviewing the matter, the appellate court observed that at the time the taxes were paid to the Department, Power advised the Department by letter that the payment was made under protest. The Department was advised of a forthcoming suit, which was subsequently filed. Based on these facts, the appellate court found that Power satisfied the prerequisites of LSA-R.S. 47:1576: the payments had been made; notice was given to the Department that the payments were protested; and the suit against the proper party was filed. According to the appellate court, the fact that Power had not disclosed its agency relationship with Gathering and Operating when performing these acts did not preclude Power from asserting the agency relationship at a later date.. Finding that Power had proven the existence of such a relation at the hearing on the Department’s exception, the appellate court concluded that “[tjhere is no rational basis to refuse to allow a party to sue through an agent, even in a tax 17refund case, so long as the agent successfully complies with the statute so as to trigger the Department’s requirement to escrow the disputed funds.” J-W Power Company v. State of Louisiana through the Secretary of the Department of Revenue & Taxation, 09-2330, p. 9 (La.App. 1 Cir. 6/11/10), 40 So.3d 1214, 1219. The appellate court pretermit-ted the issue of declaratory relief and declined to consider the denial of Gathering and Operating’s petition for intervention since they had not appealed that judgment, noting, however, that an intervention was not necessary since Power had a right of action. Accordingly, the appellate court reversed the district court’s judgment, which had sustained the. Department’s exception and dismissed Power’s suit, and remanded the matter to the district court for further proceedings.

We granted the Department’s writ application assigning as error the appellate court’s finding that LSA-C.C.P. art. 694 authorizes an agent to fulfill the procedural requirements of LSA-R.S. 47:1576 on behalf of its principals. J-W Power Company v. State of Louisiana through the Secretary of the Department of Revenue & Taxation, 10-1598 (La.10/29/10), 48 So.3d 1099.

DISCUSSION

“The function of an exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants-the cause of action asserted in the suit.” Reese v. State, Dept. of Public Safety & Corrections, 03-1615, pp. 2-3 (La.2/20/04), 866 So.2d 244, 246. See LSA-C.C.P. art. 927. In examining an exception of no.right of action, a court should focus on whether the particular plaintiff has a right to bring the suit while assuming that the petition states a valid cause of action for some person. Reese, 03-1615 at 3, 866 So.2d at 246. The exception of no right of action questions whether the plaintiff in the particular case is, a member of the class of persons that has a legal interest in the subject matter of the | ^litigation. Id. Evidence is admissible on the trial of an exception of no right of action to “support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” LSA-C.C.P. art. 931.

Concerning the treatment of sales and use taxes by a dealer, LSA-R.S. 47:304 provides:

A. The tax levied in this Chapter shall be collected by the dealer from the purchaser or consumer....
C. Dealers shall, as far as practicable, add the amount of the tax imposed under this chapter in conformity with the schedule or schedules to be prescribed by the collector pursuant to authority conferred herein, to the sale price or charge, which shall be a debt from the purchaser or consumer to the dealer, until paid, and shall be recoverable at law in the same manner as other debts. Any dealer who neglects, fails or refuses to collect the tax herein provided, shall be liable for and pay the tax himself.
E. Any dealer who fails, neglects, or refuses to collect the tax herein provided, either by himself or through his agents or- employees, shall, in addition to the penalty of being liable for and paying the tax himself, be fined not more than one hundred dollars, or imprisoned for not more than three months, or both.

For the purpose of collecting and remitting sales and use taxes to the state, the dealer is the agent of the state. See LSA-R.S. 47:306(A)(5). '

Concerning the remittance of taxes under protest, LSA-R.S. 47:1576, at all relevant times, provided, in pertinent part:

A (l)(a) Except as otherwise provided in Subsection B of this Section, any taxpayer protesting the payment of any amount found due by the secretary of the Department of Revenue, or the enforcement of |9any provision of the tax laws in relation thereto, shall remit to the Department of Revenue the amount due and at that time shall give notice of intention to file suit for the recovery of such tax.
(b) In the case of salés or use taxes that are required to be collected and remitted by a selling dealer as provided for in R.S. 47:304, the purchaser, in order to avail himself of the alternative remedy provided by this Section, shall remit protested sales or use tax to the selling dealer, and shall retain copies of documentation evidencing the amount of the sales or use tax paid to the dealer on the transactions. On or before the twentieth day of the month following the month of the transactions on which the selling dealer charged the tax, the purchaser shall inform the department by certified mail or other reasonable means of the dates and amounts of the protested taxes that were charged by the selling dealer, and shall give notice of the purchaser’s intention to file suit for recovery of the tax.
(2) Upon receipt of this notice, the amount remitted to the Department of Revenue or the amount of protested taxes that have been paid to the selling dealer shall be placed in an escrow account and held by the secretary or his duly authorized representative for a period of thirty days. If suit is filed for recovery of the tax within the thirty-day period, the funds in the escrow account shall be further held pending the outcome of the suit.
(3) If the taxpayer prevails, the secretary shall refund the amount to the claimant, with interest at the rate established pursuant to R.S. 13:4202(B) from the date the funds were received by the Department of Revenue or the due date, determined without regard to extensions, of the tax return, whichever is later, to the date of such refund. Payments of interest authorized by this Section shall be made from funds derived from current collections of the tax to be refunded.

At the heart of this case is Subsection (A)(1)(b) that was added in 1999 to clarify the nature of the action for a refund of sales and use taxes paid under protest. See 1999 La. Acts, No. 200, § 1.

Act 200 established a new method of paying sales and use taxes under protest to eliminate some of the confusion as to who is the proper party to make such a protest. 10 David R. Cassidy, Journal of Multistate Taxation and ^Incentives: Buyer-Taxpayer Can Directly Protest Sales Tax Payments, 48 (Mar./Apr.2000). Louisiana R.S. 47:1576 now specifies what the purchaser must do in order to avail himself of the alternative remedy provided by that section. The purchaser shall: (1) remit the protested sales taxes to the selling dealer; (2) retain copies of the documentation evidencing the amount of the sales or use taxes paid to the dealer; (3) timely notify the Department of the dates and amounts of the protested taxes and of the purchaser’s intent to file suit for recovery of the tax; and (4) timely file suit for recovery of the tax. See LSA-R.S. 47:1576(A). On receipt of the purchaser’s notice, the amount of protested sales taxes that has been paid by the purchaser to the selling dealer and remitted by the selling dealer to the Department shall be placed in an escrow account. LSA-R.S. 47:1576(A)(2). Because Gathering and Operating are the purchasers/taxpayers and because they did not personally comply with the statutory requirements for protesting the tax payments, the Department urges that the requirements of LSA-rR.S. 47:1576 were not satisfied.

An action can be brought only by a person having a real and actual interest that he asserts. LSA-C.C.P. art. 681. Clearly, Section 1576, as amended in 1999, does not extend, the selling dealer, Power, the remedy being sought in the original petition filed in this case; that remedy, instead, belongs to Power’s customers, including Gathering and Operating.

|nIn general, LSA-C.C.P. art. 694 provides for the use of an agent and states:

An agent has the procedural capacity to sue to enforce a right of his principal, when specially authorized to do so.
For all procedural purposes, the principal is considered the plaintiff in such an action. The defendant may assert any defense available against the principal, and may enforce his rights against the principal in a reconventional demand.

Louisiana R.S. 47:1576 neither authorizes nor precludes an action by the purchaser’s agent or the purchaser’s representative. The Department urges that the tax laws are sui generis and that Power, Gathering, and Operating should not be allowed to rely on LSA-C.C.P. art. 694 and the laws on mandate (LSA-C.C. arts. 2989 through 3000) to establish that Power had procedural capacity to file a suit to enforce the rights of Gathering and Operating under LSA-R.S. 47:1576. Although the Department asserts that allowing a selling dealer to act as an agent for its customers for purposes of pursuing a refund of sales taxes paid under protest would be problematic from an accounting standpoint, the Department acknowledges that it willingly deals with countless agents for various taxpayers all of the time. Therefore, the Department 11?is seeking to have this court essentially fashion a rule that would eliminate representation by only one type of agent in this context, ie., to preclude anyone from acting as the purchaser’s agent or to simply prohibit the selling dealer from acting in such a capacity. The fashioning of such a rule lies within the province of the legislature, not this court.

In a prior case, this court indicated, albeit in dicta, that one can serve as a mandatary in a tax matter. See Cox Cable New Orleans, Inc. v. City of New Orleans, 624 So.2d 890, 896 (La.1993) (wherein the cable company, without purporting to be the agent of its customers, sought to recover sales tax monies paid by its customers. This court indicated that the cable company might have survived an objection of no right of action had it been acting as an agent for its customers in the suit for a refund of taxes paid under protest.). See also United Artist Theater Circuit, Inc. v. City of New Orleans, 95-17 (E.D.La.1996) 1996 WL 46709 (wherein the operators of movie theaters sought to recover sales taxes paid by its customers, but did not do so as an authorized agent of the taxpaying moviegoers).

A person who has procedural capacity may appoint an agent to assert the person’s claim. To institute and prosecute the action to enforce the rights of his principal, however, the agent must be specially authorized to do so by the principal. LSA-C.C.P. art. 694, Official Revision Comments-1960, comment (b), citing Frazier v. Willcox, 4 Rob. 517 (La.1843); Wallace, Lithgow & Co. v. Byrne, 17 La.Ann. 8 (1865); Casanas v. Audubon Hotel Co., 124 La. 786, 50 So. 714 (1909). Furthermore, a person may represent another person in legal relations as provided by law or by juridical act. LSA-C.C. art. 2985. The authority of the representative may be conferred by a contract of mandate. LSA-C.C. art. 2986. “A mandate is a contract | isby which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.” LSA-C.C. art. 2989.

In its March 14, 2005 petition, Power did not disclose that it was filing suit in the capacity as the agent of Gathering and Operating. The Department urges that if Power was suing to enforce the rights of its principals, it had a duty to disclose that fact and to identify the principals. Because Power did not initially disclose the agency relationship, the Department essentially maintains that Power should be precluded from amending its petition to allege that it was acting as an agent for Gathering and Operating when it filed the March 14, 2005 petition.

This argument overlooks the following provisions of the law: LSA-C.C. art. 2989 and LSA-C.C.P. arts. 7Ó0 and 934. Under LSA-C.C. art. 2989, a principal may confer authority on a mandatary to act either in his own name or in the name of the principal. The principal may, therefore, be either disclosed or undisclosed. LSA-C.C. art. 2989, Revision Comments-1997, comment (c). Nonetheless, on an exception of no right of action, the named plaintiff is called on to disclose the mandate relationship to establish that he has a right to proceed with the suit. Since the ground of such an exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. See |ULSA-C.C.P. art. 934. Furthermore, LSA-C.C.P. art. 700 addresses the situation where the plaintiffs authority or qualification to sue in a representative capacity is questioned and provides:

When a plaintiff sues as an agent to enforce a right of his principal, or as a legal representative, his authority or qualification is presumed, unless challenged by the defendant by the timely filing of the dilatory exception. When so challenged, the plaintiff shall prove his authority or qualification on the trial of the exception.

In light of these codal provisions, we do not find Power’s failure to disclose its agency relationship with Gathering and Operating in its original petition fatal to its action against the Department.

In its supplemental and amending petition, Power disclosed that it was acting as an agent for Gathering and Operating in the instant action. Thus, by the supplementation and amendment of its petition, Power complied with any rule that may require disclosure in the petition of the principals on whose behalf a petition was filed.

By filing an exception to Power’s supplemental and amending petition, the Department timely challenged Power’s authority to file a suit for refund of taxes paid under protest on behalf of Gathering and Operating. However, its challenge simply raised the legal issue of whether LSA-C.C.P. art. 694 and the law of mandate can be used to establish Power’s right of action and/or procedural capacity in this type of action. As previously indicated, the Department’s argument in this respect lacks merit.

Notably, at no time did the Department dispute the existence of a contract of mandate between Power, Gathering, and Operating or challenge whether prior to January 20, 2005, Gathering and Operating had “specially authorized” Power to sue |1Bto enforce their rights- under LSA-R.S. 47:1576. Nonetheless, we note that the record from the hearing on the exception establishes that the officers of Gathering and Operating authorized Power to actually protest the Department’s interpretation of LSA-R.S. 47:301(14) and to seek a refund of the sales taxes paid. Power was expressly authorized to act as their agent in giving notice to the Department that they had paid the sales taxes under protest and that they intended to file suit. This evidence establishes that Gathering and Operating authorized Power to act on their behalf with respect to the requirements imposed by LSA-R.S. 47:1576.

Because Power was a duly authorized representative of Gathering and Operating, empowered to file a judicial demand on their behalf, Power has authority to bring an action on behalf of Gathering and Operating for refund of sales taxes paid under protest, Furthermore, having found that the laws on representation and mandate apply in this context, we find no merit in the Department’s alternative argument that the authority afforded by LSA-C.C.P. art. 694 can not be expanded to include the procedural capacity to satisfy the other requirements imposed by LSA-R.S. 47:1576. Surely, if Gathering and Operating can by act of mandate authorize Power to file suit on their behalf under LSA-R.S. 47:1576, they can also by act of mandate authorize Power to satisfy the statutory notice requirements that are a prerequisite to the filing of such an action.

Under the facts of this case, even though Power did not disclose the identity of its principals/eustomers in the notice provided to the Department on January 20, 2005, the Department has not shown that it was prejudiced by the lack of disclosure. The Department received sufficient notice that the specified taxes were being protested so as to enable it to comply with the escrow requirements of LSA-R.S. 47:1576(A)(2) and to thereafter refund the amount of taxes paid under protest in the |, (¡event the purchasers/taxpayers prevailed in a subsequently filed suit for recovery of the protested taxes. See LSA-R.S. 47:1576(A)(3). Any such judgment would identify the party or parties in whose favor the refund is awarded, which would allow for payment of the refund by the Department. A contrary result would be inequitable and would entitle the State to a potential financial windfall merely because a mandatary was acting on behalf of its principals in fulfilling the requirements of LSA-R.S. 47:1576.

CONCLUSION

Accordingly, the exception of no right of action was properly overruled by the court of appeal. The decision of the appellate court is affirmed.

AFFIRMED.

CLARK, Justice,

dissenting for reasons assigned by Justice Guidry.

|,I dissent from the majority opinion for the reasons assigned by Justice Guidry.

GUIDRY, Justice,

dissents and assigns reasons.

|, For the following reasons, I conclude the court of appeal erred in reversing the trial court to find the plaintiff, J-W Power (Power), may serve as an agent for its customers in connection with a demand for the refund of sales taxes paid under protest pursuant to La. R.S. 47:1576.

The principal question is whether Power has a right to bring the action to recover its customers’ taxes paid under protest. In Cox Cable New Orleans, Inc. v. City of New Orleans, 624 So.2d 890, 895-896 (La.1993), this court articulated the following:

An action can be brought only by a person having a real and actual interest which he asserts. La.Code Civ.Proc. art. 681. When the facts alleged in the petition provide a remedy to someone, but the plaintiff who seeks the relief for himself is not the person in whose favor the law extends the remedy, the proper objection is an exception of no right of action. This exception raises the question whether the plaintiff has any interest in judicially enforcing the right asserted. La.Code Civ.Proc. art. 927(5); G.I. Joe Inc. v. Chevron U.S.A., Inc., 561 So.2d 62 (La.1990); Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972).

In my view, Power has no real or actual interest in judicially asserting an action for a refund of taxes paid by its customers. While Power collected the taxes and paid it to the Department, Power did not pay any portion of the tax itself. Cox, 624 So.2d at 895 (“Therefore, [a cable television franchisee] does not have a real and actual interest in judicially asserting an action for a refund of taxes paid by someone else. 12 Only the cable television subscribers may bring an action against the City to collect taxes improperly imposed upon and paid by them.”); Krauss Co. v. Develle, 236 La. 1072, 110 So.2d 104, 106 (1954) (“[C]ustomers, having paid these taxes, alone would have the right to seek their refund. The [merchant] plaintiffs have no right to champion of the consumers”).

In addition to neither customer being named as a plaintiff in the action, it is more problematic that Power did not reference in its petition that it was acting as an authorized agent of its customers. Power also failed to provide supporting documentation of the existence of an agency relationship or the amounts owed to each of its customers. I disagree with the majority that the Department is not prejudiced by Power’s four-year failure to disclose its agency authority. As this court pointed out in Cox Cable, “[o]ne purpose of the exception of no right of action is to protect a defendant from having to defend an action and possibly to pay a claim which actually belongs to a party other than the plaintiff.” Id., 624 So.2d at 895. With this in mind, the majority places an undue burden on the Department of having to file an exception of no right of action simply to determine the identities of those parties with a vested interest in the litigation due to the plaintiffs knowing and intentional failure to disclose the existence of an alleged agency relationship. The Department raises a legitimate concern that it does not have the personnel or financial resources to ferret out those parties with a viable cause of action when those without legal authority institute suit on their behalf. This concern is further compounded with the Department’s foreseen problems of having to ensure that other tax liabilities of a party entitled to a refund are properly offset before the contested taxes are reimbursed, as well as having to ensure payment is being made to the proper party. Accordingly, I respectfully dissent.

      . This matter is before the court on an exception raising the objection of no right of action. Notably, evidence is admissible on the trial of an objection of no right of action to “support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” See LSA-C.C.P. art. 931. Therefore, much of the factual background in this case was obtained from the pleadings.

      . Power and Gathering are individual, wholly-owned subsidiaries of Operating. Neither Power nor Gathering owns any part of the other.

      . The Department also filed an exception raising the objection of no cause of action, which was denied.

      . Quoted infra.

      . In the original petition, Power prayed for a declaration that the new revenue ruling and its interpretation of LSA-R.S. 47:301(14) as applied to natural gas compressors and natural gas-compression services be rejected. Because Power’s suit was dismissed pursuant to the Department’s exception, the issue of declaratory relief was never addressed.

      . See LSA-C.C.P. art. 700 (quoted infra), which addresses the authority of a plaintiff suing in a representative capacity.

      . LSA-R.S. 47:1576 is found in Chapter 18, of Subtitle II, titled "Provisions Relating to Taxes Collected and Administered by the Collector of Revenue,” which comprises LSA-R.S. 47:1501 through 1691.

      . Before the 1999 amendment, actions of this nature were governed by a general provision similar to that found in LSA-R.S. 47:1576(A)(1)(a). Interpreting that law, this court held that only the taxpayer had standing to sue for a refund of tax monies paid under protest. Because the sales taxes were imposed on the consumer/purchaser, this court held that the dealer did not have a beneficial interest in a claim for refund of sales taxes collected by it from customers. See Krauss Co. v. Develle, 236 La. 1072, 110 So.2d 104, 105 (1959), citing Kesbec, Inc. v. McGoldrick, 278 N.Y. 293, 16 N.E.2d 288, 290 (1938). Krauss is distinguishable because the suits were not brought by the dealers for or on behalf of their customers. Instead, the dealers themselves were attempting to recover the refund of the tax. Accordingly, the dealers’ claims for a refund for sales taxes paid under protest were dismissed. Id.

      . A "purchaser” includes any person who acquires or receives any tangible personal property, or the privilege of using any tangible personal property, or receives any services pursuant to a transaction subject to sales and use taxes. See LSA-R.S. 47:301(9).

      . The Code of Civil Procedure continues to use the common law term "agent” rather than the term "representative” or "mandatary.” The common law term "agency” was eliminated from the Louisiana Civil Code in the 1997 revision. See LSA-C.C. art. 2986, Revision Comments-1997, comment (a); Hoskin v. Plaquemines Parish Government, 98-1825 (La.App. 4 Cir. 8/4/99), 743 So.2d 736, 738 n. 2.

      . Contrast LSA-R.S. 51:1409 (authorizing "[a]ny person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use Or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405, [to] bring an action individually but not in a representative capacity to recover actual damages”). The jurisprudence indicates that this statute precludes the use of a class action in this context. Indest-Guidry, Ltd. v. Key Office Equipment, Inc., 08-599 (La.App. 3 Cir. 11/5/08), 997 So.2d 796, 810, writ denied, 08-2851 (La.2/6/09), 999 So.2d 782, citing State ex rel. Guste v. General Motors Corp., 370 So.2d 477, 483 (La.1978) (Dennis, J. concurring).

      .A taxpayer does not have a right of action under Louisiana Civil Code theories of tort or contract to recover interest on taxes not paid , under protest due to sui generis nature of tax statutes. Atlantic Pacific Marine Corp. v. State, 94-0243 (La.App. 1 Cir. 12/22/94), 648 So.2d 1069, 1071, writ denied, 95-0165 (La.3/24/95), 651 So.2d 288.

      . For example, the Department acknowledged that taxpayers are répresented on a daily basis by attorneys, certified public accountants, curators/curatrixes, tutors/tutrixes, and numerous other mandataries.

      . In Reisz v. Kansas City Southern R. Co., 148 La. 929, 88 So. 120 (1921), this court stated that the practice of suing by one party for the use and benefit of another has been recognized by this court in a number of cases and that Louisiana Code of Practice article 320 "by the strongest kind of implication indicates that a suit may be brought in the name of an agent, if he disclose the name, etc., of his principal." Reisz, 88 So. at 121. Louisiana C.P. art. 320 (1870) provided:
      The defendant may refuse to answer to the merits, if he has good ground for such refusal, as if the suit is brought by one pretending to act as the attorney in fact of the plaintiff, and he fail to annex to the petition a copy of his power of attorney, or by a minor without being assisted by his tutor or by a married woman without the authorization of her husband or of the court.
      The language in question in this article was not incorporated into the Louisiana Code of Civil Procedure.

      . See Reisz, 88 So. at 121; see also LSA-C.C.P. art. 700.

      . In so ruling, we render no opinion as to the timeliness of Power’s actions since those issues are not before us at this time.