author: WARNER, J.

text:
    Brendan RAO, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4879.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Rehearing Denied Feb. 15, 2011.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Brendan Rao appeals his conviction for first degree murder. He raises three issues on appeal, arguing that (1) the court erred in allowing a witness to testify that he was engaged in satanic worship in high school, where the evidence was inadmissible as showing only bad character; (2) the court erred by admitting gruesome pictures of the victim’s burned body which were highly prejudicial; and (3) fundamental error occurred in closing argument when the prosecutor commented on his right of silence. We affirm on all issues, finding that in context the court did not abuse its discretion in admitting the single reference to satanic worship. Alternatively, it was harmless beyond a reasonable doubt. Further, the pictures were properly admitted to explain the cause of death. Finally, the prosecutor made only one comment which could be considered a comment on silence, but it did not constitute fundamental error.

On April 5, 2000, police received a call about smoke coming from a dumpster and upon investigation discovered the charred body of Matthew Collins inside the dumpster. An autopsy revealed that the victim’s death was not caused by the fire, but rather was caused by a combination of head trauma and strangulation. Ligatures were found around his neck. A few days later Detective Stone received a phone call from Christine Grace, who worked with the victim at a music store. As a result, police investigated the phone records of the victim, which showed that in the last hours of his life the victim had made several calls to the defendant, Brendan Rao. The police interviewed Rao and made further investigation, but no arrests were forthcoming at that time. After investigation, the case remained unsolved.

In 2004 after the original investigator retired, Detective Curcio took over the Collins murder investigation. Curcio re-interviewed individuals involved in the initial investigation, including Mark Lichten-berg, a classmate of Rao’s, who was a suspect in the case. During their interview, Detective Curcio asked Liehtenberg to use the detective’s cell phone to call the home phone number of Brendan Rao. Rao didn’t answer. Instead, Liehtenberg left the detective’s phone number and a message saying who he was and asking him to call back. Two days later Rao actually called Curcio’s phone, and Curcio, portraying himself as Mark Liehtenberg, recorded the phone call. Acting as Li-chtenberg, Curcio told Rao that the police had re-interviewed him in reference to the murder. During the conversation, Rao appeared unaware that he was not talking to the real Liehtenberg. Rao denied having talked further to the police and cautioned Curcio not to talk to anyone. Rao told Curcio that the case was entirely circumstantial and as long as he kept out of trouble, no one would know, because “nobody was there.” Rao never directly referred to the murder or made any directly inculpatory statement but continued to repeat that Curcio (posing as Liehtenberg) should not say anything if interviewed. Rao also encouraged him to get out of town if necessary.

Two months later, the police arrested Rao. During Curcio’s interview of Rao, Rao requested to contact his mother. Curcio left the interview room and allowed Rao to use his cell phone to call his mother. Rao’s conversations with his mother were recorded and played at trial. In them, Rao first explained that the police had arrested him and what would happen to him. He asked her to bring him some clothes and then told her what monies she could have of his, as he was supporting her. He told her that there was nothing for her to say because he had never spoken “about it” to his mother. The conversations went on for a considerable period of time.

At trial, three witnesses testified that Rao had admitted the murder to them. Christine Grace testified that she worked with Collins, Liehtenberg and Rao at Mars Music store. Rao would talk to her and tell her about himself. Over objection, she was allowed to tell the jury that he had told her he was “into satanic worship” in high school, and that “he hadn’t done anything serious but liked to mess around with fire.” Rao told her that Collins had robbed Rao’s home, taking a pound of marijuana, Rao’s favorite guitar, and money. Rao claimed that Collins was the only one who knew where Rao kept his stash of marijuana and that Collins loved Rao’s guitar. Although Rao asked Grace not to tell anyone about what he had revealed, when she learned during a meeting at work a few months later that Collins had been missing for a week and heard that a body had been found in a dumpster, she called police and gave a statement.

A second witness, Jacob Condell, knew Rao from high school. He testified that on April 25, 2000, he was at Rao’s home, and they smoked marijuana. Rao told Condell that a kid named Matt had stolen stuff from Rao’s house three times and that he had wound up dead. Rao also commented that “it was just something that had to be done.” Condell asked Rao what he did with the body, and Rao mentioned that he “touched the body” and that his only mistake was not screwing up the dental records for identification purposes. Cold-well also gave a statement to the police.

Finally, Candice Moreland testified that she met Rao in high school in 1995. They were close friends and had a sexual relationship. In the summer of 2000 Rao told her that he murdered someone. He told her a coworker of his had robbed his house not once, but twice. Rao, Lichtenberg (whom she also knew from school), and another male coerced the victim back to Rao’s cottage where he strangled him. Then they put his body in the trunk of a car, dumped it in a garbage bin, and set it on fire. Rao told Moreland that he had been the one to strangle Collins. More-land was impeached on her delay in reporting the crime to the police and her substantial drug use, including her intoxication at the time she first reported the crime to the police.

Dr. Lisa Flannagan, the medical examiner, testified that the victim died prior to being burned. She could determine this based on the absence of soot in the victim’s internal airways and a negative carbon monoxide level in his blood. In addition to the strangulation she determined that there had been a blow to the head because of the hemorrhage she found between the membrane and the skull. In her testimony she used photos of the charred body to show the ligatures around the victim’s neck as well as to explain the hemorrhage. The photos were admitted over the defense objection, the court finding that they assisted the medical examiner in the explanation of the cause of death.

The jury found Rao guilty of first degree murder. The court sentenced him to life in prison, and he appeals.

Rao first contends that the trial court erred in allowing Grace to testify that Rao told her he was engaged in satanic worship in high school. He argues that the evidence did not tend to prove or disprove any material fact and was admitted simply to show bad character. The standard of review for admissibility of evidence is abuse of discretion. Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).

Had the witness testified only that Rao was formerly engaged in satanic worship, we would agree that this evidence was irrelevant, tending only to prove bad character. However, here the evidence was tied to the additional, unobjected-to statement that Rao liked to “mess around with fire.” As the victim’s body was burned, the statement provided at least an inference that the use of fire was consistent with Rao’s past conduct.

Even if the evidence was erroneously admitted, we would conclude that under the circumstances any error is harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Only one witness referred to Rao’s past, not present, interest in satanic worship. The state never mentioned it in its closing argument. No suggestion was made that satanic worship had anything to do with the crime. Three witnesses testified that Rao had admitted to committing the murder. We have no trouble in concluding that admitting this isolated reference did not affect the verdict.

The second issue, involving admission of the photographs of the victim’s charred body, also does not merit reversal. The photographs were used by the medical examiner to explain the cause of death, strangulation and head trauma, as well as the circumstances of the death, as the photographs showed the ligatures around the victim’s neck. The circumstances are nearly identical to Jackson v. State, 545 So.2d 260 (Fla.1989). There, the victims’ bodies were also burned. The adult victims died of gunshot wounds, while the child victims died of smoke inhalation. Our supreme court rejected a claim that the trial court erred in admitting photographs of the victims’ charred bodies, because “these photos were relevant to prove identity and the circumstances surrounding the murders and to corroborate the medical examiner’s testimony.” Id. at 265. The same can be said of the photographs admitted in this case. No error occurred.

Finally, Rao claims that the prosecutor committed fundamental error in closing argument by making three comments implicating Rao’s right of silence. Two of these, however, occurred pre-arrest, and the prosecutor’s comments did not violate any constitutional right. As to the third comment, although it was error, it was not fundamental error.

During the closing argument, the prosecutor discussed the phone call between Detective Curcio and Rao, where Curcio portrayed Lichtenberg. He asked the jury whether anyone would respond the way Rao did by telling him to keep his mouth shut. The prosecutor ended by saying: “I mean, wouldn’t you come right out, wouldn’t a common person, wouldn’t a person who had nothing to do with it say what the hell you talking about, what do you mean, I have no idea what you’re talking about, what, are you crazy?” Again referring to this conversation in rebuttal, the prosecutor maintained that Curcio got Rao to admit his involvement in the murder.

The telephone conversation between Rao and Curcio, posing as Lichten-burg, occurred well prior to Rao’s arrest. Pre-arrest silence does not carry the same protection as post-arrest silence. See e.g. State v. Hoggins, 718 So.2d 761, 770 (Fla.1998); White v. State, 757 So.2d 542 (Fla. 4th DCA 2000) (pre-arrest silence can be used to impeach a defendant, as long as silence was inconsistent with defendant’s testimony at trial). Moreover, the prosecutor was not commenting on Rao’s silence but on what Rao actually said in the recorded conversation, i.e., his exhortation to Curcio (posing as Lichtenberg) not to talk, to get out of town, etc. The prosecutor’s comments were no more than a suggestion to the jury that Rao’s statements were not the comments of an innocent man.

In Badillo v. State, 822 So.2d 526 (Fla. 3d DCA 2002), the defendant claimed that it was error to allow a police detective to testify that in two interviews several months prior to the defendant’s arrest, the defendant never claimed self-defense as to the incident, which that was his present contention at trial. The court noted that “[ejxamination regarding the contents of pre-arrest interviews did not amount to a comment on silence.” Id. at 527. Similarly, in this case, the prosecutor’s remarks on the Curcio telephone call made months before the arrest were not comments on silence but were used to contradict Rao’s theory that he was not guilty and never admitted committing the murder. The comment was not error, let alone fundamental error.

The third comment raised by Rao as an impermissible comment on silence involves the prosecutor’s reference to the taped conversation between Rao and his mother after his arrest. Commenting on the substance of the conversation, the prosecutor asked:

Did he ever complain to his mother, mom, I don’t know what I’m doing here, I have no idea what I’m doing here, did he ever? Did he ever tell his mother what he was charged with? I’m being held no bond, that’s all he ever said. He never told his mom what he was charged with, never said he did not do it .... I’d like you to look at what he never did say; mom, I didn’t do it, don’t know what the heck I’m doing here, what am I doing on this charge of no bond, mom?

Rao attempts to analogize this post-arrest comment to ones made in Cowan v. State, 3 So.3d 446 (Fla. 4th DCA 2009), which we held constituted an improper comment on defendant’s silence. In Cowan, codefen-dants were placed in a police vehicle after their arrest on a burglary charge. While in the vehicle, the codefendant could be heard saying: “Damn, you think they caught us for the home invasion, home burglary?” and “Hey, we did not leave anything in there?” The defendant testified at trial, and the prosecutor confronted him with his codefendant’s statements. The defendant claimed that he had said nothing to his codefendant in the vehicle. During cross-examination, the prosecutor asked the defendant, over objection, why he hadn’t said, “What are you talking about, what burglary?” or “I don’t know what you’re talking about.”

On appeal, Cowan argued that the prosecutor impermissibly commented on his silence by asking those questions. The appellate court agreed and reversed, ruling:

We see no significance in the fact that defendant’s silence was not a response to police interrogation. Neither was defendant’s silence in Hoggins a response to police interrogation, arising instead from accusations by the victim of the crime. Yet Hoggins emphasized that the state constitutional right against self-incrimination after arrest “extend[s] to all evidence and argument, including impeachment evidence and argument, that was fairly susceptible of being interpreted by the jury as a comment on silence.” [e.s.] 718 So.2d at 769. Similarly, in Hosper v. State, 513 So.2d 234 (Fla. 3d DCA 1987) — cited with approval in Hoggins, 718 So.2d at 769—the Third District held: “The prosecution is not permitted to comment upon a defendant’s failure to offer [e.s.] an exculpatory statement prior to trial, since this would amount to a comment upon the defendant’s right to remain silent.” 513 So.2d at 235; see also Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977) (same holding as regards questioning of defendant concerning his failure to give exculpatory explanation at any time prior to his trial testimony). The plain meaning of the phrase used in Hoggins-11 all evidence and argument” — includes circumstances other than police interrogation. Hence, the Florida Constitutional right against self-incrimination does not require police interrogation to trigger its protection; it shields all post-arrest silence with or without police interrogation. The accused does not need any contextual element of police questioning to bar any use at trial of his post-arrest silence. Hoggins, 718 So.2d. at 771.

Id. at 450 (footnote omitted). Our court held that the prosecutor’s questions constituted reversible error as they commented on the defendant’s post-arrest silence.

The Cowan analysis applies in this case. The prosecutor’s comments on the defendant’s failure to explain his circumstances to his mother constituted an impermissible comment on silence. Nevertheless, the defense did not object to the comments. A comment on the right of silence in closing argument, while constitutional error, does not constitute fundamental error, which goes to the heart of the case or the merits of the cause of action. See Gutierrez v. State, 731 So.2d 94, 95 (Fla. 4th DCA 1999). Moreover, even if properly preserved, we would conclude that the error was harmless beyond a reasonable doubt under the standard announced in DiGuilio.

For the foregoing reasons, we affirm the conviction and sentence.

POLEN and FARMER, JJ., concur.

      . Although the trial transcript states “touched the body,” we suspect that this may be a transcription error and that the witness really stated "torched the body.”


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    James Fabiean CEPHUS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2790.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 2010.
    James Fabiean Cephus, in proper person.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before WELLS, and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

James Fabiean Cephus appeals from a judgment and sentence imposed for violating the terms of his probation alleging: insufficiency of the evidence regarding violation of one of the conditions of probation; that the court below was not a neutral arbitrator of the issues; and that the sentencing scoresheet used by the lower court was erroneous. We find no error in the determination that Cephus violated his probation; but, based on the State’s proper confession of error regarding the sentence, we reverse and remand for resen-tencing.

On September 19, 2002, Cephus pled guilty to armed robbery with a deadly weapon and the trial court sentenced him to thirty months in prison followed by four years of probation in case number F02-20250. In late 2005, while on probation, the State filed affidavits alleging that Ce-phus had violated the terms of his probation by failing to report for the month of October 2005; failing to maintain gainful employment; and changing his residence without consent. On June 5, 2006, the State filed a Second Amended Affidavit, alleging an additional violation of probation for a new arrest on June 1, 2006, for armed robbery with a firearm and aggravated battery, in case number F06-17888.

The trial court held a probation violation hearing on October 6, 2008, at which Ce-phus was represented by counsel. Therein, the court found that Cephus had violated his probation on all grounds alleged by the State, except for failure to maintain gainful employment. However, the court did not sentence Cephus at that time, but rescheduled sentencing for a later time, so that counsel could discuss a potential “global plea” to both the violation of probation and the new charges in case number F06-17888. If no agreement was reached, the trial court would then sentence Cephus on the probation violation and hold a trial on the new charges.

On October 8, 2008, the trial court held a sentencing hearing, wherein the lower court was presented with a scoresheet reflecting the sentencing range for the potential “global plea” encompassing both the violation of probation in case number F02-20250 and the new charges in case number F06-17888. Notwithstanding the parties’ failure to ever reach a “global plea,” other than questioning whether Ce-phus’ conviction in case number F02-20250 was improperly listed on the scoresheet as an armed robbery with a firearm rather than armed robbery with a deadly weapon — a distinction that made no difference to the scoresheet calculation — defense counsel did not otherwise object to the scoresheet and agreed that sentencing range was correct. The trial court then sentenced Cephus to thirty years in prison, to be followed by five years of probation in case number F02-20250.

Immediately after sentencing the defendant for the violation of probation, the trial court turned to what it presumed would be a jury trial on the new charges in case number F06-17888. After the State announced that it was not ready to proceed to trial because two witnesses were unavailable, and after the lower court denied the State a continuance, the State announced a nolle presqui of the charges in case number F06-17888. Cephus timely appealed his sentence on the probation violation in case number F02-20250.

On this appeal, the public defender filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After reserving ruling on the motion to withdraw, providing Cephus the opportunity to file a pro se brief, and considering Cephus’ Initial Brief, this Court ordered the State to respond to Cephus’ claim that his sentence in case number F02-20250 was illegal because it was based on an improperly calculated scoresheet. The State has conceded error on this claim and agrees that the defendant should be resentenced because the offenses in case number F06-17888 were not properly part of the sentencing undertaken on October 8, 2008. However, the State suggests that because defense counsel failed to object to the scoresheet in the court below Cephus cannot get relief on direct appeal, but must seek relief via a postconviction motion under either Florida Rule of Criminal Procedure 3.800 or 3.850.

While claims of ineffective assistance of counsel usually must be presented in a timely post conviction motion, “[tjhere are rare exceptions where appellate counsel may successfully raise the issue on direct appeal because the ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.” Smith v. State, 998 So.2d 516, 522 (Fla.2008) (quoting Blanco v. State, 507 So.2d 1377, 1384 (Fla.1987)); Corvo v. State, 916 So.2d 44, 45 (Fla. 3d DCA 2005) (recognizing that with respect to claims of ineffective assistance of counsel raised on direct appeal, “[ojnly in cases where the incompetence is apparent on the face of the record and prejudice to the defendant is obvious do appellate courts address this issue on direct appeal” (quoting McMullen v. State, 876 So.2d 589, 590 (Fla. 5th DCA 2004))). Based on the record and the State’s confession that a sentencing error occurred below, we find that defense counsel’s ineffectiveness is apparent on the face of the record, that prejudice to Cephus is obvious, and that, therefore, it would be a waste of judicial resources to require Cephus to bring an ineffective assistance claim on a motion for postconviction relief in the lower court.

Accordingly, we affirm the order revoking Cehpus’ probation, but vacate the sentence and remand with instructions that he be resentenced.

      . The State notes that a charge for attempted felony murder was later added to the Information and the Affidavit, though these documents are not contained in the record on appeal.


author: PER CURIAM. WARNER, J.,

text:
    BRISTOL WEST INSURANCE COMPANY, Appellant, v. MD READERS, INC., a/a/o Gloria Smith, Appellees.
    No. 4D10-524.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.

      Francis A. Zacherl, Stephen T. Maher and Rachel H. LeBlanc of Shutts & Bowen LLP, Miami, for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Edward H. Zebersky of Zebersky & Payne, LLP, Hollywood, for appellees.
    David M. Caldevilla and Michael R. Bray of de la Parte & Gilbert, P.A., Tampa, for Amicus Curiae Florida Medical Association, Inc.
   PER CURIAM.

In an underlying declaratory judgment action against Bristol West Insurance Company, regarding the proper calculation for reimbursement under PIP benefits for “radiological services associated with reading an MRI,” the trial court certified a class of all health care providers who have submitted claims to Bristol West for MRI services rendered from August 1, 2004 through July 31, 2005. The class certification order allowed MD Readers, the only named plaintiff, to represent that class in the litigation. Bristol West appeals, claiming primarily that MD Readers lacks standing to be a proper representative, because it failed to send a proper statutory notice of intent to litigate. We affirm, as the declaratory judgment complaint did not seek any damages, as confirmed by the plaintiff at the hearing on class certification. Thus, the plaintiff was not required to send a notice.

MD Readers submitted a claim for PIP benefits to Bristol West for the MRI services provided to Gloria Smith, an insured of Bristol West under an auto accident insurance policy. The total amount billed by MD Readers for the MRI services was $450. Bristol West then paid MD Readers $149.48 in “Full and Final Payment for Medical.”

MD Readers then filed a declaratory judgment class action suit against Bristol West. The complaint alleged that Bristol West failed to reimburse class members for 80% of the charges for MRI reading ■services and that Bristol West improperly utilized section 627.736(5)(b)(5), Florida Statutes (2003), to “wrongfully limit payments for radiological services associated with reading an MRI.” It sought a declaration of the proper calculation of payments for such services in accordance with the statute and also claimed money damages resulting from the difference between the correct calculation and what Bristol had paid.

After filing the complaint, MD Readers sent a demand letter in which MD Readers demanded payment in the amount of $210.52 for the services it provided to Smith, using the calculations based upon its interpretation of the statute. In response to the demand letter, Bristol West denied the request for payment and denied any further liability.

A year later, MD Readers voluntarily dismissed its lawsuit. MD Readers then filed the current class action suit in connection with the same bill for services provided to Smith. In an amended complaint, MD Readers alleged that the proper amount that it should have been paid for the MRI services rendered to Gloria Smith was $151.86, but Bristol West paid only $149.48, thus lowering the amount MD Readers claimed it was owed to $2.38. MD Readers never sent another demand letter for this smaller amount to Bristol West.

Significantly, the complaint made no claim for money damages. It sought a declaration of the correct statutory formula for calculating payments under PIP benefits for the physician fees in connection with radiological readings, as well as attorney’s fees and costs. Other than the omission of a request for money damages, the complaint mirrored the original, voluntarily dismissed complaint.

MD Readers moved to certify a class of health care providers receiving payment for services from Bristol West under PIP benefits. The parties had already determined that Bristol West had handled 2,800 claims for MRI services during the relevant time period. Bristol West admitted that it had made an arithmetical mistake in the calculations, and it agreed with the calculations made by MD Readers. Thus, the substantive issue in the lawsuit was moot. Bristol West objected to class certification on several grounds, all dealing with its understanding that the declaratory judgment was simply a disguise for money damages in the amount of the health care providers’ underpaid bills. Most prominently, Bristol West objected because it had not received the statutory notice of intent to initiate litigation, which was a condition precedent to bringing suit. See § 627.736(11), Fla. Stat. (2003). Therefore, it claimed that MD Readers could not be an adequate class representative, because it had not complied with the condition precedent for bringing a claim. Multiple times during the hearing, MD Readers maintained that it was not making any claim for damages. Therefore, no notice was required.

The court granted class certification, as requested by MD Readers, certifying as the class:

All health care providers who have submitted claims to BRISTOL WEST for MRI services, for services rendered from August 1, 2004 through July 31, 2005. The claim is further limited to only include claims for MRI Services which were rendered from August 1, 2004 through July 31, 2005.

Bristol West appeals the class certification order. We have jurisdiction. Fla. R.App. 9.130(a)(3)(C)(vi).

Bristol West contends that MD Readers lacks standing to be a class representative because MD Readers did not send a notice of intent to litigate, which is a statutory condition precedent to litigation. Without the statutory notice, it cannot recover on its claims. Section 627.736(ll)(a), Florida Statutes (2003), provides that “[a]s a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation.” Our supreme court has explained that the pre-suit notice provision is substantive, not procedural. See Menendez v. Progressive Exp. Ins. Co., 35 So.3d 873 (Fla.2010). Specifically, “an insurer has an additional period of time to meet its obligation under the statute, and an action for a claim of benefits cannot be initiated until the additional time for payment has expired. Thus, the statute substantively alters an insurer’s obligation to pay and an insured’s right to sue under the contract.” Id. at 879 (footnote omitted).

The parties dispute whether the notice of intent sent prior to the second complaint sufficed as the statutory condition precedent. However, as MD Readers notes, because the declaratory judgment action seeks no damages whatsoever, it is not an “action for benefits.” Therefore, the statute doesn’t apply. We agree that because MD Readers did not seek any monetary relief, the claim is not an action for benefits and thus the statutory notice is not required.

We hold MD Readers to its representations both to this court and to the trial court that no damages whatsoever will be sought in this action. Several times at the hearing, as well as at oral argument, MD Readers’ attorney emphasized that no damages were sought. At one point in the hearing before the trial court, MD Readers’ attorney said: “We’re asking the court to not decide what each of these 2,800 people should get paid. We’re asking the court to utilize the 2001 Medicare Part B fee schedule and to determine for each one of those CPT codes ... what should be paid from a time period of August 1, 2004, to July 31, 2005.” The attorney repeated this several times.

Because the complaint sought a declaratory judgment and no damages, we agree that the statutory notice did not become a condition precedent of MD Readers’ right to bring this action, as it sought no benefits. The other arguments raised by Bristol West likewise presume that the declaration is in essence a claim for damages. As MD Readers has denied any right in this action, including supplementary relief, to seek damages, we conclude that the court did not err in certifying a class for the sole purpose to declare the correct calculation to be applied for reimbursement of MRI services from August 2004 to August 2005. We thus affirm the order certifying a class.

POLEN and FARMER, JJ., concur.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

While I concuV in the majority opinion, I do so only because the issue of the propriety of the declaratory judgment is not before us for consideration. I cannot understand why this action is even proceeding where appellee is not seeking any benefits — damages—from its claim. Bristol has already admitted that it made an arithmetical mistake and agrees that MD Readers’ calculation of reimbursement rates by CPT codes is correct. Assuming MD Readers gets the declaration that it wants, the court will declare the CPT code reimbursement rates for 2004-2005.

However, not one member of the class can collect based upon that declaration. The statutory condition precedent of notice is a substantive requirement. See Menendez v. Progressive Exp. Ins. Co., 35 So.3d 873 (Fla.2010). Each provider must comply with its terms, including furnishing the detailed information mandated in section 627.736(11)(b). The statutory requirement leads me to understand that a class action for benefits would be a practical impossibility, because each provider must serve the statutory notice. See Shenandoah Chiropractic, P.A. v. Nat’l Specialty Ins. Co., 526 F.Supp.2d 1283, 1290 (S.D.Fla. 2007) (concluding that “allowing class notice would, in effect, eliminate the carefully crafted and detailed notice requirement set out in the Florida PIP statute” and that, as a matter of law, “no notice letter sent on behalf of the putative class in this case could be legally sufficient”); but cf. Altamonte Springs Imaging, L.C. v. State Farm Mut. Auto. Ins. Co., 12 So.3d 850 (Fla. 3d DCA 2009) (approving class action settlement in suit over PIP insurer’s failure to correctly pay amounts due for MRI services, without addressing the requirement of a pre-suit demand under the PIP statute).

Moreover, since this is already 2010, any subsequently-filed cause of action for benefits due, either pursuant to contract or statute, would be barred by relevant statutes of limitations. See §§ 95.11(2)(b) and (3)(f), Fla. Stat. Therefore, I cannot envision that a declaration of the proper calculations of fees for services rendered in 2004 and 2005 serves any useful purpose, because the class’s rights are no longer affected by a dispute, see § 86.021, Fla. Stat. (2010), as the time has long since passed for making a claim for benefits under the statute and/or contract.

      . "[T]he statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.” Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996). Here, the 2003 statutes were still in effect at the time Smith executed her automobile policy in March 2004.


author: PER CURIAM.

text:
    Lorenzo DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4336.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2010.

      Adam Ruiz, Tallahassee; Terry P. Roberts of the Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Lorenzo Davis appeals his conviction for armed robbery with a firearm, contending that the trial court erred by admitting hearsay testimony of a police investigator recounting the statement of a witness. We agree and reverse.

The victim was robbed at gunpoint by three men at night, and was easily able to identify two of the men, who were convicted and sentenced in separate proceedings, but he was unable to identify the third after being shown a number of photo arrays, and, in fact, he identified a different man. One of the perpetrators, Steven Bellamy, testified at trial and named defendant as the third man. The second perpetrator, Philip Combs, whose fingerprints had been found on the door of the victim’s taxicab, said he was unable to remember anything about the incident, which occurred three years prior, except that he was one of the robbers. His lack of memory surprised the prosecutor, who sought to admit the testimony of Investigator Kyle Troop, to whom Combs had confessed and implicated defendant three months after the crime.

Over objection, the court admitted Investigator Troop’s testimony as non-hearsay under section 90.801(2)(c), Florida Statutes (2006), which provides that if the declarant testifies at trial, a statement is not hearsay if it is “[o]ne of identification of a person made after perceiving the person.” This exception applies if the declarant was an eyewitness or a victim who identified the alleged perpetrator soon after the crime or soon after coming into contact with him or her. See Ibar v. State, 938 So.2d 451 (Fla.2006); Evans v. State, 838 So.2d 1090 (Fla.2002); Ross v. State, 993 So.2d 1026 (Fla. 2d DCA 2008); Rutherford v. State, 902 So.2d 211 (Fla. 4th DCA 2005); Liscinsky v. State, 700 So.2d 171 (Fla. 4th DCA 1997); Stanford v. State, 576 So.2d 737 (Fla. 4th DCA 1991).

Investigator Troop said that Combs had recounted the facts surrounding the robbery, and told him defendant and Bellamy were the two other men involved. This did not constitute an identification made shortly after perceiving defendant, but was instead an accusatory statement to the police implicating an accomplice. Section 90.801(2)(c) does not apply in this kind of situation to render it non-hearsay. See Smith v. State, 880 So.2d 730 (Fla. 2d DCA 2004).

Nor was the officer’s statement admissible to impeach the witness under sections 90.608 and 90.614(2), Florida Statutes (2006), because Combs repeatedly said he was unable to remember anything about the crime. Only when a witness “makes a statement which is inconsistent with a prior statement and then cannot recall making the prior statement, the fact that the prior statement was made can be proved by the testimony of another witness.” Calhoun v. State, 502 So.2d 1364, 1365 (Fla. 2d DCA 1987). See also James v. State, 765 So.2d 763, 766 (Fla. 1st DCA 2000) (“ ‘The fact that a witness once stated something was true is not logically inconsistent with a subsequent loss of memory.... Showing the substantive statements that she allegedly made while her memory was fresh does not impeach that testimony.’ ”). Although the court may allow impeachment when the witness appears to be fabricating his or her lack of memory, the trial court made no such finding below. See Brooks v. State, 918 So.2d 181 (Fla.2005).

The error was not harmless. The only evidence against defendant was the testimony of his accomplice, a five-time felon. The victim was unable to identify the third man who had robbed him, and he instead identified another man. The fact that Combs’s identification was provided by a police officer presumably lent the testimony great weight. Under these circumstances, we cannot say there is no reasonable possibility that Investigator Troop’s inadmissible testimony did not contribute to the conviction. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Accordingly, we

REVERSE and REMAND for a new trial.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


author: WOLF, J.

text:
    SMURFIT-STONE CONTAINER ENTERPRISES, INC., Appellant, v. ZION JACKSONVILLE LIMITED PARTNERSHIP, a Delaware Limited Partnership and City of Jacksonville, a Municipal Corporation, Appellees.
    No. 1D08-4107.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2010.

      W.O. Birchfield and Bruce B. Humphrey of Birchfield & Humphrey, P.A., Jacksonville, for Appellant.
    Paul M. Harden, Jacksonville for Appel-lee Zion Jacksonville Limited Partnership; and M. Bradley Luczak of White & Luc-zak, P.A., Winter Park, for Appellee City of Jacksonville.
   WOLF, J.

Appellant, Smurfit Stone (Smurfit), seeks review of a trial court’s order granting summary judgment in favor of appel-lees, the City of Jacksonville (the City) and Zion Limited (Zion) and dismissing Smur-fit’s two-count complaint for declaratory and injunctive relief. We affirm in part and reverse in part, determining the trial court incorrectly concluded the right of first offer (ROFO) in question constituted an unreasonable restraint on the alienability of the subject parcel.

In 1989, Zion and Smurfit’s predecessors in interest entered into a land sales agreement which included a ROFO as to an adjoining parcel of land (the subject parcel). The ROFO was recorded shortly after the transaction and stated in pertinent part:

Seller shall not sell, convey or transfer the property or any part or portion thereof from time to time to a ... third party ... without first offering to sell the Property or any part or portion thereof to Purchaser. At such time as Seller desires to sell all or any part of the Property, Seller shall give written notice ... to Purchaser ... Within ninety (90) days of the Purchaser’s receipt of the Seller’s Notice, Purchaser shall have the right (“Right of First Offer”) to propose to Seller by written notice to Seller a price (“Purchaser’s Price”) at which Purchaser would purchase marketable fee title to the Sale Property ... If Seller does not accept the Purchaser’s Price within the aforesaid fifteen day (15) period, Seller may proceed to sell the Sale Property to a Third Party at a price not less than the Purchaser’s Price and Seller shall have a period of one year (“Alternate Offer Period”) from the date of the Seller’s Notice in which to sell such Sale Property, provided, however, that (x) if such sale is not consummated within the Alternate Offer Period, Purchaser shall retain its Right of First Offer and no sale shall be made by Seller without Seller first offering to sell to Purchaser as provided above or (y) if such sale is consummated for a purchase price which is lower than the Purchaser’s Price, then such purported sale and transfer of the Sale Property shall be void and Purchaser shall have the Right of First Offer to purchase the Sale Property. ...

In December 2004, Zion sold the subject parcel to the City for approximately $800,000 plus a $700,000 donation from Zion, allegedly without providing notice to Smurfit, as required by the ROFO. At the time, the land was valued at $1,500,000.

Smurfit filed a two-count complaint. In count I, Smurfit sought a declaratory statement establishing the ROFO was (1) valid and enforceable between Zion and Smurfit and (2) Zion had not provided notice as required by the agreement. In count II, Smurfit sought injunctive relief requiring the City to offer Smurfit the property it had purchased from Zion at the same terms and conditions upon which it had been conveyed to the City.

We affirm the dismissal of the second count because Smurfit did not properly plead all the necessary elements for obtaining injunctive relief or specific performance, and it failed to move to amend the complaint in the trial court. Fox v. Harris, 773 So.2d 107 (Fla. 1st DCA 2000) (holding appellant may not seek leave to amend a complaint from an appellate court without first moving to amend in the trial court).

In granting summary judgment as to the request for declaratory relief, the trial court concluded the ROFO amounted to an unreasonable restraint on the alien-ability of the subject property because the right was unlimited in duration, did not include the purpose for its creation, and prohibited charitable contribution of the land. However, in so holding, the trial court applied the wrong analysis. Specifically, in Iglehart v. Phillips, 383 So.2d 610, 614 (Fla.1980), the seminal case on the matter of preemptive rights and the alienation of property, the supreme court announced the Florida analysis to be applied in these situations, stating:

The rule against unreasonable restraints on the use of property concerns restraints of such duration that they prevent the free alienation of property.... The test which should be applied with respect to restraints on alienation is the test of reasonableness. The validity or invalidity of a restraint depends upon its long-term effect on the improvement and marketability of the property. Once that effect is determined, common sense should dictate whether it is reasonable or unreasonable.

(Emphasis added); see also Kelley v. Burnsed, 805 So.2d 1101 (Fla. 1st DCA 2002) (holding fixed price option in lease was not an unreasonable restraint because it encouraged improvements on the land in hopes of a purchase).

Since Iglehart, Florida courts have handled restrictions on alienability on a case by case basis; however, each case has considered whether the restraint (1) negatively impacts the marketability of the property and/or (2) discourages improvements to the property. See Sandpiper Development & Construction, Inc. v. Rosemary Beach Land Co., 907 So.2d 684 (Fla. 1st DCA 2005) (upholding a fixed price repurchase option even though it restricted the marketability of the property and discouraged improvement where the restriction lasted only six years); Metropolitan Dade County v. Sunlink Corp., 642 So.2d 551, 553 (Fla. 3d DCA 1992), (invalidating a provision in a sales contract which defined only a limited class of persons capable of purchasing the subject land and because “[t]he restrictive covenant in question unreasonably limits the marketability of the property.”); Camino Gardens Ass’n, Inc. v. McKim, 612 So.2d 636, 642 (Fla. 4th DCA 1993) (citing Iglehart and invalidating a repurchase option which allowed a homeowner’s association to repurchase foreclosed property for the cost due on the mortgage rather than the fair market value of the property because the option “reduces the incentive of mortgage lenders to finance the purchase of this property”); Brine v. Fertitta, 537 So.2d 113, 114 (Fla. 2d DCA 1988) (holding repurchase option was an unreasonable restraint on right of alienation because it was for an indefinite period and included a fixed price which was not adjustable based on the market value of the property); Aquarian Foundation, Inc. v. Sholom House, Inc., 448 So.2d 1166 (Fla. 3d DCA 1984) (invalidating association’s covenant allowing association to disapprove of prospective purchasers because the covenant impedes the improvement and marketability of the property and does not protect the property owner’s right to receive fair market value for his or her property).

While the outcomes of these cases have varied considerably, each analysis was contingent upon whether the restraint (1) undermined the marketability of the land and/or (2) discouraged improvement to the land. Iglehart, 383 So.2d at 614. To the contrary, appellant and the trial court incorrectly concluded an analysis of these types of provisions requires a court make a determination based solely on (1) the restraint’s duration; (2) the fixed nature of the price term; and (3) the purpose for the restriction. While these factors may bear on the crucial question of whether the restriction negatively affects the marketability and improvement of the property, the factors do not dictate an outcome independent of a resolution as to the ultimate questions of alienability and developability.

In the underlying case, the language of the ROFO establishes it is unlimited in duration, does not include a fixed price term, and has no known purpose in the embodiment of the document. However, the unlimited duration of the ROFO does not invalidate the provision because the plain reading of the ROFO demonstrates the marketability of the property is not unduly restricted nor would it dissuade the owner from improving the land.

Specifically, the ROFO in the instant case requires the owner of the land to notify appellant if and when the owner chooses to sell the land in question. Once that offer is made, appellant has the option to offer a price, and the seller is free to reject that price and sell the property for more than that offer to any willing buyer. Thus, the ROFO does nothing more than provide a prospective purchaser before the land is offered for sale to the general public. This type of “restriction” would not deter improvement of the land because there is no restriction as to price and the seller is not required to take appellant’s offer if it feels the land is worth more than what was offered. Further, as to marketability, this type of provision creates a constant prospective purchaser for land, a condition most sellers do not have the good fortune to enjoy.

The trial court is correct that the ROFO may deter charitable contribution; however, some minimal limitation on alienability does not require overturning an agreement voluntarily entered into by the parties. “Sanctity of contract is fundamental in the law of this country, so much so that it is protected by the Constitution.” Perry Banking Co. v. Swilley, 154 Fla. 221, 17 So.2d 103, 104 (1944). Smurfit and Zion’s predecessors in interest bargained for and entered into a contract supported by consideration. While public policy disfavors unreasonable restrictions on alienability, when these competing interests are balanced in the underlying situation, the restriction on alienability is not so onerous or unreasonable as to defeat the inherent right to freedom of contract.

For these reasons, we reverse and remand the trial court’s order granting summary judgment in favor of appellees as to count I but affirm the dismissal of count II. We further reverse the order dissolving the lis pendens. Olesh v. Greenberg, 978 So.2d 238, 243 (Fla. 5th DCA 2008) (reversing the order dissolving the lis pen-dens along with the reversal of the summary judgment pursuant to Florida Rule of Civil Procedure 1.420(f)); see also Mr. Sign Sign Studios, Inc. v. Miguel, 877 So.2d 47, 48 n. 1 (Fla. 4th DCA 2004); Vonmitschke-Collande v. Kramer, 841 So.2d 481, 482 (Fla. 3d DCA 2002).

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

KAHN and WEBSTER, JJ„ concur.

      . We also note that the remedy requested by Smurfit was not a remedy provided for within the contract.

      . While appellees argue that appellant could discourage alienability by making a bad faith high offer and then not closing on the property, this argument ignores the language of the contract requiring appellant to proceed in good faith to consummate the purchase.


author: WEIMER, Justice.

text:
    Hans WEDE v. NICHE MARKETING USA, LLC, A Louisiana Limited Liability Company and Rodney C. Whitney, Jr.
    No. 2010-C-0243.
    Supreme Court of Louisiana.
    Nov. 30, 2010.
    Newman, Mathis, Brady & Spedale, PLC, Mark Christopher Landry, Metairie, for Applicant.
    Sher, Garner, Cahill, Richter, Klein & Hilbert, LLC, Elwood Francis Xavier Ca-hill, Jr., Ryan O’Neil Luminais, John Thomas Balhoff, II, James Michael Garner, New Orleans, for Respondent.
   WEIMER, Justice.

|, This court granted plaintiffs writ application to determine whether an enforceable judicial mortgage existed when the clerk of court received a money judgment for recordation, but admittedly processed the judgment as a conveyance document rather than as a mortgage document within the clerk’s computerized immovable property records system. Plaintiff sought to enforce the judgment against defendant purchasers who bought immovable property consisting of a home from the judgment debtor. The defendant purchasers bought this immovable property after the judgment was processed as a conveyance document, rather than as a mortgage document. Finding that this issue is squarely addressed by LSA-C.C. art. 3838 (which requires that a mortgage be recorded in the mortgage records to affect third persons), we affirm the decision of the court of appeal finding that the money [¿judgment cannot be enforced as a judicial mortgage against the defendant purchasers based on the facts of this case.

FACTUAL AND PROCEDURAL BACKGROUND

On August 19, 2005, a North Carolina court awarded Hans Wede a money judgment against Rodney Whitney, Jr. and Niche Marketing USA, LLC. Later, Mr. Wede filed suit in the Fortieth Judicial District Court for St. John the Baptist Parish to make the judgment executory in Louisiana. On December 8, 2005, the district court entered its judgment, and the North Carolina court judgment was made executory.

In St. John the Baptist Parish, the clerk of court is also the recorder of conveyances and of mortgages. The clerk’s office has a longstanding policy that, absent contrary instruction from the judgment creditor, all money judgments rendered by the district court are taken to the clerk’s “recordation department” to be entered into the parish mortgage records.

Following that policy, on December 8, 2005, a deputy clerk received Mr. Wede’s judgment from the district court, made a certified copy of the judgment, and delivered the copy to the recordation department. The recordation department of the clerk’s office no longer maintains physical books for recording mortgage and conveyance documents; the records are now kept electronically. During the relevant time period, the records were kept electronically. To record a document electronically, personnel assign and place an instrument number upon the physical document, and scan it. Then personnel select within the office’s computer system | ^between the options of “MO” for designating the scanned image as a mortgage document and “CO” for designating the image as a conveyance document.

When Mr. Wede’s judgment against Mr. Whitney was processed, however, instead of selecting “MO” on the computer screen, the clerk’s office identified the judgment by “CO” as a conveyance document.

The computer system is the sole portal for accessing immovable property records in the parish. Prior to adopting this computer system, clerk’s personnel would create an index for each set of conveyance and mortgage records. Now, indices can be created based upon how documents are identified within the computer system (as “MO” or “CO”). A clerk’s office employee testified that it was possible to run a search of the computer records that would retrieve both mortgage and conveyance records, but it was also possible to run a search that was confined to retrieve only mortgage records. If the search was confined to mortgage records, as a result of being erroneously identified by “CO” within the system, Mr. Wede’s judgment against Mr. Whitney would not be revealed to a computer system user.

On December 8, 2005, at the time Mr. Wede’s judgment was processed by the clerk’s office, the judgment debtor, Mr. Whitney, and his wife owned immovable property upon which was located a home in St. John the Baptist Parish. The Whit-neys later sold this property to Robei't and Deborah James on January 31, 2007. No provision was made for satisfying Mr. Whitney’s indebtedness to Mr. Wede when the act of sale was executed. The act of sale between the Whitneys and Jameses was recorded in the parish records as a conveyance document on February 2, 2007.

|4Later, an attorney for Mr. Wede sought to enforce the judgment against Mr. Whitney, but the attorney then learned the Whitneys had sold the property to the Jameses. It was also then learned by Mr. Wede’s attorney that Mr. Wede’s judgment had been identified as a conveyance document, rather than a mortgage document, in the computer recordation system.

On May 3, 2007, another attorney, Lloyd LeBlanc, approached the chief deputy clerk in charge of the recordation department, and inquired about the recordation of Mr. Wede’s judgment and its apparent designation as a conveyance record. After reviewing the matter, the chief deputy clerk, on that same day, accessed the computer recordation system and selected “MO” as the system’s designation for Mr. Wede’s money judgment. The judgment itself was not re-scanned, and no new instrument number was created for the judgment.

Asserting that a judicial mortgage existed notwithstanding the original, mistaken designation of the judgment as a convey-anee record, Mr. Wede sought enforcement. In the district court, Mr. Wede filed a motion asking for authority to seize the property the Jameses had bought from the Whitneys. Mr. Wede filed his motion naming the Jameses as “defendants-in-rule.” The Jameses appeared and opposed the motion.

The trial court granted Mr. Wede’s motion, and in well-written reasons, found that the error of the clerk’s office (selecting “CO” instead of “MO” in the computer system) was one of indexing. While noting that the Jameses are entitled to rely upon the public records, the trial court pointed out that the indices are not part of the public |srecord, and ruled that erroneous indexing does not affect the validity of recordation. According to the trial court’s ruling, Mr. Wede could proceed with seizure of the property from the Jameses.

The Jameses appealed, and the court of appeal reversed. The appellate court disagreed that the error by the clerk’s office was one of indexing. The appellate court reasoned that the recorder had erroneously placed Mr. Wede’s judgment into the conveyance records, and the money judgment could not therefore be enforced as a mortgage.

Mr. Wede applied to this court for a writ of review, and this court decided to consider the matter. See Wede v. Niche Marketing USA, LLC, 2010-0243 (La.4/16/10), 31 So.3d 1069.

LAW AND ANALYSIS

In the record before us, there is no evidence that the judgment creditor, Mr. Wede, requested his money judgment be designated as a conveyance record instead of as a mortgage record. The record in this case is clear that the clerk of court’s office assumed the responsibility of recording the judgment. The record also establishes the copy of the judgment received by counsel for Mr. Wede did not indicate where in the clerk’s records the judgment was recorded; the document only indicated a sequential instrument number. Likewise, there is unrefuted testimony that the third-party purchasers, the Jameses — or anyone else who might have reviewed the St. John the Baptist Parish computerized recordation system at the time the James-es purchased the property from the Whit-neys-would have seen no evidence of Mr. Wede’s judgment when checking the parish mortgage records.

1 (/This case, therefore, presents the vexing question of whether the judgment creditor or the third-party purchaser should prevail when both invoke the protections of the public records and both appear to have satisfied the requirements for protection.

Deciding how to resolve this matter is made difficult because both the judgment creditor and the purchasers point to the same event, i.e., an admitted mistake by the recorder/clerk, as a reason for their protection. While both parties may be victims of a mistake, and both have presented cogent arguments, in our view the law of recordation inherently favors the third-party purchaser over the creditor based on the facts of this case.

|7In reviewing the law of recordation, civilian methodology and the civil code instruct that the sources of law are legislation and custom, and that legislation is the superior source of law. See LSA-C.C. arts. 1, 3. Legislation, which is defined as the solemn expression of legislative will, LSA-C.C. art. 2, is to be interpreted according to the rules set forth in the civil code. See LSA-C.C. arts. 9-13. Chief among those rules is the admonition in LSA-C.C. art. 9 that “[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” Additionally, LSA-C.C. art. 11 instructs that “[t]he words of a law must be given their generally prevailing meaning.” Further, LSA-C.C. art. 13 provides: “Laws on the same subject matter must be interpreted in reference to each other.” Reading the various codal provisions involved and giving effect to each is the key to resolving this matter.

We begin, therefore, with the words of the codal provisions. See Dumas v. State, Department of Culture, Recreation & Tourism, 2002-0563, p. 11 (La.10/15/02), 828 So.2d 530, 536. In this action to enforce a judicial mortgage, it is worthy to recall that LSA-C.C. art. 3299 describes the effect of a judicial mortgage: “A judicial mortgage secures a judgment for the payment of money.” Turning next to LSA-C.C. art. 3300, which provides that “[a] judicial mortgage is created by filing a judgment with the recorder of mortgages,” it is implicit in this article that a judicial mortgage owes its very existence to being in the mortgage records. Similarly, from this same article it follows that if a party must present a judgment to the recorder of |smortgages for the creation of a mortgage, then the judgment must be within the mortgage records else third parties are unaffected by it.

Preferring a literal view of the law, however, we do not have to rely upon these obvious inferences from Article 3300 to ascertain how a judicial mortgage might affect the rights of third parties. That article does not directly address the rights of third parties, but LSA-C.C. art. 3338 does:

Art. 3338. Instruments creating real rights in immovables; recordation required to affect third persons
The rights and obligations established or created by the following written instruments are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of this Title:
(1) An instrument that transfers an immovable or establishes a real right in or over an immovable.
(2) The lease of an immovable.
(3) An option or right of first refusal, or a contract to buy, sell, or lease an immovable or to establish a real right in or over an immovable.
(4) An instrument that modifies, terminates, or transfers the rights created or evidenced by the instruments described in Subparagraphs (1) through (3) of this Article.

Clearly, a judicial mortgage is an “instrument that ... establishes a real right in or over an immovable.” LSA-C.C. art. 3338. Notwithstanding that this article is directed to the rights of third parties, Mr. Wede, the judgment creditor, argues that another article, LSA-C.C. art. 3347, is more specifically on point. Article 3847 provides:

Art. 3347. Effect of recordation arises upon filing
The effect of recordation arises when an instrument is filed with the recorder and is unaffected by subsequent errors or omissions of the recorder. An instrument is filed with a recorder when he accepts it for recordation in his office.

RThe crux of the judgment creditor’s argument is that because the clerk’s office admittedly made an error in selecting “CO” instead of “MO” when processing his judgment, that LSA-C.C. art. 3347 nevertheless gives him a judicial mortgage enforceable against the Jameses.

However, this argument figuratively puts the cart before the horse. Twice, Article 3347 speaks to “when” a document gains the effect of recordation. Not at all, however, does Article 3347 speak to the threshold matter of “where” a document must be recorded to gain that effect. But Article 3338, which is addressed to the rights of third parties — the ultimate issue in this case — specifies “where” a document must be recorded to gain effect as to third parties. Specifically, Article 3338 provides a document must be recorded “in the appropriate mortgage or conveyance records,” or the instrument is “without effect as to a third person.”

In Article 3338, therefore, there is an emphatic, clear, and absolute imperative that a judicial mortgage is “without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage ... records.” To adopt the judgment creditor’s argument that Article 3347 trumps Article 3338 would require this court to interpret Article 3347 to mean that the clerk of court’s acceptance of the judgment conferred, not just the effects of recordation, but also “the effect of recordation within the mortgage records.” The civilian tradition requires this court |into avoid adding the underlined words, or any other words not enacted by the legislature, into Article 3347. See LSA-C.C. art. 9.

Though we find that giving effect to the plain language of Article 3338 resolves the unusual matter before us, our interpretation is supported by other legislative pronouncements. Article 3338 is part of a larger legislative reworking of the law of registry by 2005 La. Acts, No. 169, § 1. Numerous provisions of the civil code and the revised statutes were thereby consolidated. The legislature did not, however, change paragraph C of LSA-C.C. art. 3320: “Recordation has only the |ueffect given it by legislation.” The revision comments from the year 1992, when paragraph C of Article 3320 was enacted, speak to the situation at hand and its resolution:

Paragraph C of this Article restates three well-established principles. The first is that recordation is only given such effect as the law provides. Louisiana’s registry system is not based upon knowledge, actual or implied. A document recorded in the mortgage records has effect as to third persons not because they have or are deemed to have notice of it, but merely because the law provides it has such effect. Conversely, an unrecorded instrument that is required to be recorded has no effect as to third persons, whether or not they are aware of its existence. See Art. 3308. Under that system, to be effective, an instrument also must be filed in the place prescribed by law. Thus, a mortgage recorded in the conveyance records, or a sale recorded in the mortgage records, is without effect as to third persons. ... [Emphasis added.]

Thus, because the legislature left intact Article 3320 and the principles espoused in these revision comments when recently revising the law of recordation, we are bound to continue to recognize these principles. Cf. LSA-C.C. art. 8 (“Laws are repealed, either entirely or partially, by other laws. A repeal may be express or implied. It is express when it is literally declared by a subsequent law. It is implied when the new law contains provisions that are contrary to, or irreconcilable with, those of the former law....”).

The judgment creditor also argues that the jurisprudence counsels for enforcing a judicial mortgage under the circumstances where the recorder intended to process the judgment as a mortgage document, but instead processed it as a conveyance document. This argument, however, fares no better than his reliance upon Article 3347 because the jurisprudence cited has no direct applicability to the unique situation at hand.

For example, the judgment creditor first relies upon Kinnebrew v. Tri-Con Production Corp., 244 La. 879, 884, 154 So.2d 433 (1963). But Kinnebrew | i2involved only a question of when, not of where, recordation had occurred: “the only legal issue properly before the Court of Appeal (and now before us) was whether the actual inscription of ... encumbrances became effective from the time of the filing with the Clerk of Court.” Id. at 435. As noted earlier in our analysis of Articles 3338 and 3347, the present case does not turn upon a question of timing, so much as it turns upon where a judgment was recorded. In this matter, Article 3338 clearly indicates the judgment has no efficacy unless it is in the mortgage records. Mr. Wede’s reliance upon Kinnebrew is misplaced.

Of the other authorities cited, only one case arguably examines “where” a document should be recorded in order to have effect against third parties. The judgment creditor cites — without elaboration — the ancient case of Lewis v. Klotz, 39 La.Ann. 259, 268, 1 So. 539, 542 (1887), in which this court stated:

The contract of lease was duly deposited in the recorder’s office, and the required indorsement to that effect was made upon it. It was recorded in the book kept by the officer for the recording of leases. Whether it should have been recorded in the book of conveyances it is unnecessary to consider, since the deposit in the proper office, and the proper indorsement by the officer, fully protected the parties.

It appears that in Lewis this court analyzed a practice of redundant recordation, and gave effect when a lease document was recorded in only one place (a book specifically for leases) though a third party would expect to also find the lease in a conveyance book. But in the 123 years since this court decided Lewis, obviously much in the law of recordation has changed (e.g., Book III, Title XXII-A of the current civil code makes no provision for a lease book). Also, Lewis does not concern recordation of a judgment, and whether a judgment should be given effect as a judicial mortgage. For these reasons, we find that Lewis is so different from the case at hand as to be of no assistance in its resolution.

11sThus, we return to the plain language of Article 3338. In the words of that article, Mr. Wede’s money judgment is purportedly “[a]n instrument that modifies, terminates, or transfers the rights created or evidenced by the instruments” that “establishes a real right in or over an immovable.” LSA-C.C. art. 3338(4) and (1). Of course, as a money judgment, on its face it said nothing about establishing or transferring any real rights in Mr. Whitney’s immovable property. The money judgment could not be transformed into a document affecting real rights as to third parties “unless the instrument [was] registered by recording it in the appropriate mortgage ... records.” LSA-C.C. art. 3338.

CONCLUSION

We find that owing to its entry in the parish’s computer recordation system as “CO” for conveyance rather than “MO” for mortgage, Mr. Wede’s judgment could not operate as a judicial mortgage against the Jameses. We note that the parties and the courts below have labored at great length to establish whether the mistaken entry of “CO” rather than “MO” was one of indexing or of recordation itself. The trial court’s written opinion is particularly commendable for its efforts in grappling with |,4this issue. In our view, however, focus upon the recorder’s own intent and understanding has become a metaphysical debate too speculative to be of value.

On the particular facts before us, the designation of the money judgment with “CO” as a conveyance document and the unrefuted testimony that a user of the parish computer system who searched only for mortgages would not find the judgment, are sufficient reasons for us to determine that the judgment was not “registered by recording it in the appropriate mortgage ... records” for purposes of Article 3338. The Jameses purchased the property in question from the Whitneys unencumbered by a judicial mortgage.

The judgment of the court of appeal is hereby affirmed.

AFFIRMED.

      . Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . "The clerk of court as the parish recorder shall keep a book of conveyances, a book of mortgages, and other recordation books as provided by law. He shall keep indexes as required by law.” LSA-R.S. 44:185.

      . Testimony indicates that twice a year, a printed index of mortgage and conveyance records is made and bound for persons who do not wish to use the computer system. However, the index is generated by the computer system, and not by any separate process. The computer system is, therefore, the only system for organizing the documents and the only portal for accessing the records.

      . According to the Jameses’ brief, Mr. Le-Blanc represents or otherwise performs work for a title company. According to Exhibit E and corresponding text of the Jameses' Memorandum of Opposition submitted in the trial court, the title company Mr. LeBlanc represents or otherwise performs work for is the same title company that handled the closing for the sale from the Whitneys to the Jameses.

      . According to the testimony of a chief deputy clerk, after the incorrect designation was pointed out to her office, she went back to the computer system and changed the designation of Mr. Wede's judgment from "CO” to "MO.” This change was made because "if someone only ran the name in the Mortgage records, they could find it [the judgment].”

      . Louisiana's public records doctrine includes the use of a "race to the courthouse” system of recordation: "Instruments take effect as to third persons in the order in which the instruments are filed.” 1 Peter S. Title, Louisiana Real Estate Transactions § 8:16 (2d ed.2Q08). The public records doctrine "does not create rights in the positive sense, but rather has the negative effect of denying the effectiveness of certain rights unless they are recorded.” Id. A well-established consequence of these two principles is illustrated in McDuffie v. Walker, 125 La. 152, 51 So. 100, 105-106 (1909), in which this court ruled that an unrecorded contract affecting immovable property has no effect as to third persons, even when a third person has actual knowledge of that unrecorded contract.

      . The chief deputy clerk testified as follows regarding the mistake:
      Q. How then is it determined how these particulars [sic] documents are to be recorded?
      A. It's just known that judgments go in the Mortgage records; anything dealing with money we put in Mortgage.
      Q. Now, based on your research into this particular judgment, do you know what happened to this judgment when it was handed to die Mortgage Office on December 8, '05?
      A. When it was recorded, it will look the same way. When it was indexed, the way the computer works, you have to click on "MO” or "CO” and then you index it. And whoever indexed it, they didn’t click on "MO”, it stayed as a “CO”, but they indexed it as if it was a mortgage. But it didn't say that in the computer. ...
      Q. You're looking at a book. I'm going to ask you if you can tell me what that book is.
      A. This is the book that we keep the notations in and, if we have any type of errors or anything that needs to be changed, we write it in the book also.
      Q. And did you make that notation when Mr. Leblanc talked to you about it [the judgment]?
      A. Yes, I did.
      It should be noted that this court expresses no view as to the legal consequences of this testimony or of any other testimony in this case beyond the narrow legal issue before us.

      . In this case, the judgment of a North Carolina court was made executory pursuant to LSA-C.C. art. 3305 (judgments of other jurisdictions).

      . The absence of language in Article 3347 regarding "where” a document must be filed to gain effect is dispositive, but reading Article 3347 in pari materia with other provisions in the civil code lends further support for our interpretation. According to the previous article, LSA-C.C. art. 3346(A), "An instrument creating, establishing, or relating to a mortgage or privilege over an immovable is recorded in the mortgage records of the parish in which the immovable is located. All other instruments are recorded in the conveyance records of that parish.” The specific mention in Article 3346 of the place of recordation persuades us that the absence of such a mention in Article 3347 means that Article 3347 is directed to "when” not “where.” And because Article 3347 twice mentions "when,” and the next three consecutive articles (LSA-C.C. arts. 3348, 3349, and 3350) are all addressed to timing, and two of these articles (LSA-C.C. arts. 3349 and 3350) actually deal with resolving mistakes or ambiguities in timing, we are further persuaded that the "errors or omissions of the recorder” described in Article 3347 refer to errors of timing, not of place.

      . Because we refrain from interpreting "[t]he effect of recordation” to mean "[t]he effect of recordation in the mortgage records,” it is unnecessary for us here to opine on what might be included within the complete spectrum of "subsequent errors or omissions of the recorder” mentioned later in Article 3347. But to hold that placing an instrument outside of the mortgage records and into the conveyance records is an error or omission contemplated by Article 3347 would place Article 3347 into conflict with the clear, absolute imperative for the effectiveness of a judicial mortgage that we have observed in Article 3338. Our prior jurisprudence counsels against interpreting statutes to be in conflict, and prefers reconciling statutes instead. See Pumphrey v. City of New Orleans, 05-979, p. 10-12 (La.4/4/06), 925 So.2d 1202, 1209-10. We find Article 3347 and Article 3338 easily reconcilable from the meanings we have discerned each to have here. See LSA-C.C. art. 13.

      . In consolidating the law, the legislature provided transitional guidance:
      Nothing in this Act shall be deemed to diminish the effect of, or render ineffective, the recordation of any instrument that was filed, registered, or recorded in the conveyance or mortgage records of any parish before the effective date of this Act. Any instrument that is filed, registered, or recorded before the effective date of this Act, that is not given the effect of recordation by virtue of existing law, shall be given such effect on the effective date of this Act that it would have if it were first filed on that effective date....
      Section 9 of 2005 La. Acts, No. 169, effective July 1, 2006.
      We observe within this transitional language that if an instrument were effective under the former law of registry, the current law does not adversely impact its effectiveness.
      In the instant case, the parties argued the merits of their positions under current law. The trial court and court of appeal adjudicated the parties’ dispute under current law. We have likewise applied current law, being neither urged nor finding otherwise a reason to apply pre-revision law. See, e.g., Estate of Patrick v. Board of Sup’rs, Louisiana State University, 2002-2570, 836 So.2d 1 (La.11/22/02) (declining to reach issue not raised "in a timely and proper manner.”). In our view, however, we discern no difference in the result, whether current or pre-revision law is applied. See LSA-C.C. art. 3320, revision comment (d) ("a mortgage recorded in the conveyance records, or a sale recorded in the mortgage records, is without effect as to third persons."). As discussed further in the body of this opinion, the quoted comment was made concurrently with revisions to the law of registry in the year 1992, a time well before the relevant events in this case.

      . Cf. LSA-C.C. art. 3307 (describing the ef-feet and rank of mortgages).

      . The clerk is statutorily required to maintain two records, one for mortgages and the other for conveyances. See LSA-R.S. 44:185 ("The clerk of court as the parish recorder shall keep a book of conveyances, a book of mortgages, and other recordation books as provided by law. He shall keep indexes as required by law.”).
      The clerk’s computer recordation system, by using the designations “MO” for "mortgage” and “CO" for "conveyance” appears to have been designed to comply with LSA-R.S. 44:185 and with numerous other statutes designating whether an instrument must be recorded in mortgage records, in conveyance records, or in both. See, e.g., LSA-R.S. 3:210(B) (agricultural credit corporations may “execute mortgages of realty” which must be "recorded in the recorder’s office of the parish in which the mortgaged property is located, in the mortgage records”); LSA-C.C. art. 467 ("The owner of an immovable may declare that machinery, appliances, and equipment owned by him and placed on the immovable, other than his private residence, for its service and improvement are deemed to be its component parts. The declaration shall be filed for registry in the conveyance records of the parish in which the immovable is located.”); and LSA-C.C. art. 357 ("If the prayer for continuing or permanent tutorship be granted, the decree shall be recorded in the conveyance and mortgage records of the parish of the minor’s domicile, and of any future domicile, and in such other parishes as may be deemed expedient.”).