text:
    STATE of Florida, Appellant, v. Robert Fred WOODALL, III, Appellee.
    Case No. 5D16-429
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 3, 2017
    Rehearing Denied March 31, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellant.
    William R. Ponall, of Ponall Law, Mait-land, and Thomas Sommerville, of Law Offices of Thomas Sommerville, Orlando, for Appellee.
   PER CURIAM.

The State of Florida timely appeals Robert Woodall’s resentencing for aggravated battery with a firearm pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that the lower court failed to reimpose Woodall’s twenty-year mandatory minimum sentence after it erroneously concluded that the jury did not make a clear finding that Woodall discharged a firearm during the offense. We agree.

Section 775.087(2)(a)2., Florida Statutes (2004), requires a twenty-year mandatory minimum sentence to be imposed if a person is convicted of a listed offense, including aggravated battery, and discharging a firearm during the commission of that offense. “[Mandatory minimum sentencing enhancements áre nondis-cretionary and, therefore, trial courts lack the authority to refuse to apply them.” State v. Kremer, 114 So.3d 420, 421 (Fla. 5th DCA 2013) (citing State v, Moore, 854 So.2d 832, 833-34 (Fla. 5th DCA 2003)). The mandatory minimum sentence must be supported by a “clear jury finding” that Woodall discharged a firearm during the offense, which “can be demonstrated either by (1) a specific question or special verdict form (which is the better practice), or (2) the inclusion of a reference to a firearm in identifying the specific crime for which the defendant is found guilty.” State v. Iseley, 944 So,2d 227, 230 (Fla. 2006) (citing Tucker v. State, 726 So.2d 768, 771-72 (Fla. 1999); State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984)).

The General Verdict and the Special Verdict, independently and together, constituted clear jury findings that Woo-dall discharged a firearm. In the General Verdict, the jury found Woodall “guilty of Aggravated Battery with a Firearm, as charged in the Information.” The information specifically alleged that Woodall committed aggravated battery with a 'firearm, discharged the firearm during the offense, and was subject to the twenty-year mandatory minimum sentence. In the Special Verdict, the jury found that Woodall “did during the course of the crime, discharge a firearm and as a result of the discharge, death or great bodily harm was inflicted upon the victim[.]"

The General Verdict

Despite the General Verdict’s clear reference to the information, including the specific allegation of discharging a firearm, Woodall convinced the lower court that the General Verdict did not constitute a clear jury finding because the jury was erroneously instructed on alternative theories of aggravated battery, creating the possibility that it found him guilty without discharging a firearm. Despite being instructed on alternative theories, however, the jury found Woodall guilty of aggravated battery “with a firearm as charged in the Information,” which alleged aggravated battery by one theory—use and discharge of a firearm. Moreover, the alternative theories were causally linked in this case because Woodall shot the victim in the ankle, making impossible his contention that the jury could have found aggravated battery by causing great bodily harm without discharging a firearm.

The Special Verdict

Consistent with the evidence, the jury found in the Special Verdict that Woodall discharged a firearm causing the victim great bodily harm. Thus, the Special Verdict not only contains a clear jury finding of discharge, it further refutes Woodall’s claim that the jury could have found him guilty of aggravated battery without discharging a firearm. Notwithstanding this clear finding, Woodall argues that it is insufficient because there is no indication that it was made “beyond a reasonable doubt,” as required by Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), Alleyne held that facts used to increase the mandatory minimum sentence are elements of the crime that must be submitted to the jury and found beyond a reasonable doubt. Id. at 2158. Woodall argues that the trial court failed to instruct the jury that its findings in the Special Verdict must be beyond a reasonable doubt as reflected in Florida Standard Jury Instruction (Criminal) 3.3(d). Without this instruction or an express indication that the special finding was made beyond a reasonable doubt, Woodall claims that there is no way to determine if the jury found that he discharged a firearm beyond a reasonable doubt.

Woodall’s reliance on the standard instruction is misplaced because that instruction did not exist at his 2006 trial. Cf. Johnson v. State, 903 So.2d 888, 899 (Fla. 2005) (rejecting claim that trial counsel was ineffective in failing to challenge standard instruction as unconstitutional before being declared so by supreme court). Despite the nonexistence of this instruction, we conclude that the instructions given at trial adequately required the jury to make its findings, including the discharge finding, beyond a reasonable doubt. Specifically, the jury was instructed that the presumption of innocence “stays with the defendant as to each material allegation in the Information through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.” Woodall’s discharge of a firearm was a material allegation in the information to which the jury was instructed that the beyond a reasonable doubt standard applied.

In addition, Florida law does not require an express indication that special findings are made beyond a reasonable doubt when such indication may be inferred from the record. In Amos v. State, 833 So.2d 841, 842 (Fla. 4th DCA 2002), the Fourth District held that the standard in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that facts used to increase the statutory maximum sentence be “submitted to a jury, and proved beyond a reasonable doubt,” was satisfied without an express indication that the jury made its finding beyond a reasonable doubt. The court reasoned as follows:

As to the fact of discharging a firearm, the record in this case indicates that this fact was submitted to the jury, and the jury found beyond a reasonable doubt that Amos discharged a firearm. The jury convicted Amos of “[ajggra-vated Battery with a Firearm, a lesser included offense, as contained in the Information.” Because the information accused Amos of “shooting [the victim] with a firearm” and the verdict specifically refers to the information, and because Amos was convicted of aggravated battery with a firearm, the finding that Amos discharged a weapon is inherent in the jury’s verdict. Cameron v. State, 804 So.2d 338, 344 n.ll (Fla. 4th DCA 2001) (rejecting Apprendi challenge for lack of a specific finding of death or injury when such finding was inherent' in the conviction for manslaughter) (citing Tucker v. State, 726 So.2d 768 (Fla. 1999) (holding that jury verdict of ‘guilty of attempted first-degree murder with a firearm’ supported enhanced sentence for use of a firearm)).

Amos, 883 So.2d at 842-43. The same logic applies in this case. Because the information specifically alleged that Woodall discharged a firearm and the jury found Woo-dall guilty “as charged in the information,” the jury’s finding of discharge, beyond a reasonable doubt, was inherent in the verdict. Alleyne extended the Apprendi standard to mandatory minimum sentences. It follows that if cases after Apprendi do not require an express indication that the clear jury finding is “beyond a reasonable doubt,” cases after Alleyne do not either. See Lee v. State, 130 So.3d 707, 710-11 (Fla. 2d DCA 2013) (applying “clear jury finding” standard post-Alleyne and concluding that Alleyne error is subject to harmless error analysis like Apprendi), rev. granted, No. SC14-416 (Fla. Nov. 17, 2016).

Woodall also claims the Special Verdict was “incorrect” because it allowed the jury to find facts necessary to impose the twenty-five-year mandatory minimum—discharge causing great bodily harm—rather than a simple finding of discharge required for the twenty-year mandatory minimum. Under such circumstances, Woodall would have been subject to a twenty-five-year mandatory minimum sentence under section 775.087(2)(a)3., Florida Statutes (2004), except that he was not charged with aggravated battery by causing great bodily harm. When the greater mandatory minimum is imposed without a proper allegation in the information, the remedy is to impose the twenty-year mandatory minimum because there is still a clear finding of discharge. See McKenzie v. State, 31 So.3d 275, 277 (Fla. 2d DCA 2010) (remanding for imposition of twenty-year mandatory minimum sentence where information did not support twenty-five year mandatory minimum sentence). The twenty-year mandatory minimum sentence is appropriate because the charging document alleged that Woodall discharged a firearm and the Special Verdict found that Woodall discharged a firearm. The surplus finding of great bodily harm did not negate the discharge finding, especially in this case where the great bodily harm resulted solely from the discharge.

Finally, Woodall argues that the Special Verdict was “incomplete” because it did not give the jury the choice of finding that Woodall did not discharge a firearm. The choice urged by Woodall was not only unnecessary, it was inappropriate because it would have resulted in an inconsistent verdict if the jury had found Woodall guilty “as charged in the Information,” but then found that he did not discharge a firearm. See, e.g., Starling v. State, 152 So.3d 868, 868 (Fla. 1st DCA 2014) (reversing conviction for robbery with a weapon based on truly inconsistent verdict finding that appellant did not possess firearm during commission of robbery); Gerald v. State, 132 So.3d 891, 895 (Fla. 1st DCA 2014) (reversing conviction for aggravated assault with firearm based on inconsistent finding that appellant did not possess firearm). Below, Woodall used this supposed defect in the Special Verdict to convince the trial court that he was deprived of the opportunity for a jury pardon, but there was no defect.

In summary, we agree with the State’s contention that the General Verdict and Special Verdict were “clear jury findings” beyond a reasonable doubt, that Woodall discharged a firearm during the aggravated battery, and that Woodall’s arguments do not render such findings unclear. Accordingly, we vacate Woodall’s sentence and remand for imposition of the mandatory minimum sentence, with credit for the time Woodall has already served.

VACATED AND REMANDED WITH DIRECTIONS.

SAWAYA and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.

      . The State candidly acknowledges its mistaken concession of error below, which resulted in the trial court granting Woodall’s Rule 3.800(a) motion. While we are inclined to agree that the State should not have conceded the illegality of Woodall's sentence, we recognize having done so, the State is now precluded from complaining about it on appeal.

      . In 2008, the Florida Supreme Court added the following instruction to Florida Standard Jury Instruction (Criminal) 3.3(d):
      If you find that (defendant) committed (felony identified in § 775.087(2)(a) 2, Fla. Stat.) and you also find beyond a reasonable doubt that during the commission of the crime, [he] [she] discharged a [firearm] [destructive device], you should find the defendant guilty of (felony) with discharge of a [firearm! [destructive device!

        In re Standard Jury Instructions in Criminal Cases—Report No. 2007-08, 995 So,2d 489, 491 (Fla.-2008) (emphasis added).

      . We reject, without discussion, the State’s alternative argument that Woodall’s admission to discharging the firearm, after the lower court had already determined that the mandatory minimum sentence did not apply, can be used as a basis to reimpose it.


source: Caselaw Access Project

author: BADALAMENTI, Judge.

license: Public Domain

text:
    John Graham DICKIE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-2709
    District Court of Appeal of Florida, Second District.
    Opinion filed March 8, 2017.

      Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

In this Anders appeal, John Graham Dickie appeals his judgment and sentences for thirty counts of possession of ten images of child pornography, at least one of which involved a movie of a child. §§ 775.0847(2), 827.071(5)(a), Fla. Stat. (2015). After Mr. Dickie’s Anders counsel filed a brief explaining that she could find no issues of arguable merit, we struck the Anders brief and ordered merits briefing. We affirm his judgment and sentences without comment and write only to address whether the trial court’s consideration of unsworn victim impact statements during Mr. Dickie’s sentencing was improper pursuant to section 921.143(l)(a)-(b), Florida Statutes (2015), and Patterson v. State, 994 So.2d 428, 429 (Fla. 1st DCA 2008). Having considered the merits briefs submitted by both Mr. Dickie and the State, we hold that the trial court did not abuse its discretion by considering the un-sworn victim impact statements when fashioning Mr. Dickie’s sentences.

Mr. Dickie was arrested by the Sarasota County Sheriffs Office (SCSO) after SCSO found “literally thousands” of images of child pornography on Mr. Dickie’s laptop and encrypted flash drive, pursuant to a valid search warrant. Mr. Dickie was cooperative and confessed that he was in possession of child pornography. Based on the images seized from his apartment, the State charged Mr. Dickie with thirty separate counts of possessing ten images of child pornography, at least one of which involved a movie of a child. Mr. Dickie subsequently entered an open plea of no contest on all thirty counts.

A two-day sentencing hearing was conducted by the trial court. On the first day of the sentencing hearing, Mr. Dickie asserted three possible downward departure grounds for the trial court to consider in fashioning his total sentence.

Germane to the discrete issue this court ordered to be briefed in this Anders appeal, the State sought to introduce several victim impact statements into evidence for the trial court’s consideration. The statements were collected through the FBI’s Child Victim Identification Program. As the State explained, the FBI reuses the same victim impact statements across proceedings because child pornography traffickers often organize their pornography by “series”—a set of images taken of the same victim or victims over time. A popular series may remain in circulation on the internet long after its creation.

The victim impact statements in this case were drafted by the child victims (and in some cases, parents of the child victims) depicted in five different series. Images from each of these series were found in Mr. Dickie’s apartment. Mr. Dick-ie objected to the introduction of the victim impact statements on multiple grounds, one of which was that the statements were not taken under oath. The trial court reserved ruling on the victim impact statements’ admissibility.

On the second day of the sentencing hearing, the trial court ruled that the victim impact statements were admissible for sentencing purposes. Prior to the parties’ closing arguments, the trial court indicated that it would recess specifically to review the victim impact statements because it had not yet done so.

Upon reconvening the sentencing hearing, the parties presented their closing arguments and the trial court indicated that it “had reviewed everything given to it.” The trial court then denied Mr. Dick-ie’s request for downward departure and sentenced him to a total of 397.5 months’ imprisonment. Pursuant to our order for merits briefing, Mr. Dickie argues that section 921,143(1) acts as a bar to the admission of unsworn victim impact statements at sentencing, and therefore the trial court erred in considering such statements. We disagree.

It is well settled that “[a] sentencing court has wide discretion regarding the factors it may consider when imposing a sentence.” Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA 2009). “The sentencing court ... must be permitted to consider any and all information that reasonably might bear on the proper sentence for a particular defendant, given the crime committed.” Howard v. State, 820 So.2d 337, 340 (Fla. 4th DCA 2002) (quoting Wasman v. United States, 468 U.S. 559, 563, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984)).

The plain language of section 921.143(1) does nothing to restrict the type of information that a court may consider when fashioning a criminal defendant’s sentence. In pertinent part, section 921.143(l)(a)-(b) provides that a sentencing court “shall permit the victim of [a] crime” to “[ajppear before the sentencing court for the purpose of making a statement under oath for the record” and “[sjubmit a written statement under oath to the office of the state attorney.” (Emphasis added.) The statute’s plain language says nothing about what a sentencing court shall not permit, and courts have declined to read such restrictive verbiage into the statute. Cf. Smith v. State, 982 So.2d 69, 71-72 (Fla. 1st DCA 2008) (holding that section 921.143(1) did not bar the sentencing court from hearing testimony from the victim’s mother and sister, even though the text of the statute states that a court “shall permit” such testimony only if the victim is a minor or dead).

We conclude that section 921.148(1) was meant to create a narrow class of victim impact statements which the trial court shall permit to be heard prior to imposing a sentence. That is, the legislature mandated that the trial courts permit all victims of crimes the opportunity to be heard prior to the imposition of a criminal sentence, so long as the victims’ statements were made under oath. In so doing, the legislature did not sub silentio create a new sentencing doctrine preclud-mg trial courts from considering unsworn victim impact statements in fashioning a criminal sentence. The trial court must be permitted to consider, and afford the appropriate weight to, any constitutionally and statutorily permissible information that reasonably might bear on the proper sentence for a particular defendant. Howard, 820 So.2d at 340.

The sole judicial opinion construing section 921.143(1) as a barrier to the admissibility of unsworn victim impact statements is Patterson, 994 So.2d at 429. The defendant in Patterson appealed from a summary denial of a motion for postconviction relief. Id. The First District affirmed the trial court’s summary denial of all the defendant’s postconviction issues, save for one; the defendant claimed his trial counsel was ineffective for failing to object to a letter from the victim’s brother which was not authenticated, handwritten, or signed. Id. In remanding for an evidentiary hearing on this ground, the First District read section 921.143(1) as a statute which “requires that the victim or family member either appear before the sentencing court under oath or submit a written statement under oath to the state attorney, neither of which occurred.” Patterson, 994 So.2d at 429 (emphasis added). Accordingly, the First District reversed the summary denial of this single issue.

The Patterson court’s construction of section 921.143(1) is unsupportable by the statute’s text. The plain language of section 921.143(1) does not impose any “requirement” on victims or their families. In fact, the word “require” does not appear in the statute at all. The only constraint section 921.143(1) creates is on trial courts, to the extent that the trial courts “shall permit” victims the opportunity to be heard so long as those victims make their statements under oath. The Patterson court’s interpretation of section 921.143(1) as “requiring” that only sworn statements of victims be considered by the trial courts markedly changes the meaning of the statute, encroaches on the legislature’s role to write the laws of our state, and therefore contravenes bedrock principles of separation of powers.

In fairness, we recognize that the Patterson opinion was meant only to be a concise reversal of a summary denial of postconviction relief. But the Patterson court’s construction of section 921.143(1) seems to have influenced legal scholars, who now regard Florida as a state which requires all victim impact statements to be sworn. We disagree with Patterson and the proposition that unsworn victim impact statements are per se inadmissible at sentencing hearings. Trial courts have the discretion to consider such statements, just as they did before passage of section 921.143(1). See Bracero, 10 So.3d at 665; Howard, 820 So.2d at 340.

We affirm Mr. Dickie’s convictions and sentences in all respects. The trial court did not err by considering unsworn victim impact statements in fashioning Mr. Dick-ie’s sentences. Section 921.143(1) does not preclude a trial court from considering unsworn victim impact statements while fashioning a criminal defendant’s sentence.

We certify conflict with the First District’s decision in Patterson.

Affirmed; conflict certified.

YILLANTI, C.J., and SALARIO, J., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . We note that Mr. Dickie did not assert an objection based on a violation of the Confrontation Clause. Amend. VI, U.S. Const,; Art. I, § 16(a), Fla. Const. There is some authority in Florida suggesting that the presence or absence of an oath is one component of a defendant’s constitutional right to confrontation. See State v. Ford, 626 So.2d 1338, 1346 (Fla. 1993) (citing Maryland v. Craig, 497 U.S. 836, 847, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990)). But Mr. Dickie did not raise this issue, and even if he had, the absence of an oath is not dispositive for Confrontation Clause purposes. See Bullcoming v. New Mexico, 564 U.S. 647, 664, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). We also note that section 90.605(1), Florida Statutes (2015), imposes an oath requirement on testifying witnesses at trial. But we can find no case applying section 90.605(1) to sentencing proceedings. We will not extend provisions of the Florida Evidence Code to apply outside of the trial context except where we are specifically directed to do so. See § 90.103(1) ("Unless otherwise provided by statute, [the Florida Evidence Code] applies to the same proceedings that the general law of evidence applied to before the effective date of this code.”); see also Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) ("[B]efore and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.”).

      . The statute also affords the same right to the victim’s parents, guardians, or lawful representatives if the victim is a minor, or to the victim’s next of kin if the victim has died from causes related to the crime. § 921.143(1).

      . There was no presentence investigation (PSI) report prepared in this case. We note, however, that PSI reports are statutorily required to include "[a] statement regarding the extent of the victim's loss or injury.’’ § 921.231(l)(n). In many instances, victim loss or injury statements in PSI reports come directiy from victims. See, e,g., Marty v. State, 210 So.3d 121, 122-27, 41 Fla. L. Weekly D2152, D2153,- 2016 WL 4944100 (Fla. 2d DCA Sept. 23, 2016). There is no requirement in section 921,231(l)(n) that a victim loss or injury statement in a PSI report be sworn. Yet PSI reports containing un-sworn victim loss or injury statements are prepared for a trial court's consideration in fashioning a criminal defendant’s sentence. There is no meaningful distinction between the trial court’s consideration of unsworn victim loss or injury statements in a PSI report and its consideration of unsworn victim impact statements generally. Both provide the trial court with relevant information to consider while fashioning a sentence.

      .We also note that the current form of section 921.143(1) was passed by the legislature as part of the Victim and Witness Protection Act (VWPA). See ch. 84-363, § 3, Laws of Fla. For those who rely on legislative intent statements, the stated intent of the VWPA was to "enhance and protect the necessary role of victims’’ and "to assist victims and witnesses of crime without infringing on the constitutional rights of defendants.” Id. § 2.

      . See William H. Burgess, III, Florida Sentencing §§ 1:32, 1:36 (2015-16 ed. 2015) (citing Patterson for the proposition that section 921.143 “requires that [a] victim or family member either appear before the sentencing court under oath or submit a written statement under oath to the state attorney” and that “it is reversible error” to admit unsworn statements); see also 6 Wayne R. LaFave et al., Criminal Procedure § 26.5(d) (4th ed.), Westlaw (database updated Dec. 2015) (listing Florida among the states which "require that victim statements be made under oath to meet minimal standards of reliability” and citing to section 921.143(1) as supportive authority).


author: ROTHENBERG, J.

text:
    Deon BYRD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-68
    District Court of Appeal of Florida, Third District.
    Opinion filed March 15, 2017.
    Rehearing Denied April 12, 2017

      Deon Byrd, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.
   ROTHENBERG, J.

.. The defendant, Deon Byrd, appeals the trial court’s order denying his motion and supplemental motion for postconvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s thorough and well-reasoned order.

On March 9, 2012, the defendant was found guilty of second degree murder and possession of a firearm by a convicted felon, which this Court affirmed on direct appeal. Byrd v. State, 150 So.3d 1152 (Fla. 3d DCA 2014). In the defendant’s timely filed motion and supplemental motion for postconvietion relief, he raised nine separate grounds attacking actions attributable to the State, the trial court, and the defendant’s trial counsel. Because the grounds asserted against the State and the trial court were reviewable on direct appeal, and thus not subject to collateral attack by postconvietion relief, we affirm the trial court’s order as to those claims. Specifically, we find that claims I, V, VI, and a portion of claim II fall into this category.

We now address the remaining claims, all of which allege ineffective assistance of trial counsel.

Claim II—Trial counsel’s failure to object to the trial court’s failure to offer to read back certain testimony

During jury deliberations, the jury submitted the following question to the trial court: ‘What color shorts did Cormelia Hawkins [a State witness] specify the defendant was wearing at her house?” Although the jury did not request either a transcript or a “read-back” of Hawkins testimony, the defendant argues that his trial counsel provided ineffective assistance of counsel by not objecting to the trial court’s failure to offer to read back the testimony to the jurors and its instruction to the jurors to rely on their recollections of the evidence. However, to prevail on a claim of ineffective assistance of counsel, a defendant must establish that trial counsel’s performance was deficient and that the deficient performance prejudiced the defendant so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Crain v. State, 78 So.3d 1025, 1033 (Fla. 2011). Because the defendant has not demonstrated the requisite prejudice and deprivation of his right to a fair trial, we find no error with regards to the trial court’s order denying this claim.

Claim III—Trial counsel’s failure to object to the manslaughter instruction provided to the jury

We find this claim devoid of merit. The manslaughter instruction provided by the trial court in this case did not contain the objectionable language initially identified or addressed by the Florida Supreme Court in State v. Montgomery, 39 So.3d 252, 259-60 (Fla. 2010). The instruction given was the corrected Florida Standard Jury Instruction (Crim.) 7.7 approved by the Florida Supreme Court: “In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.”

Claim IV—Trial counsel’s failure to object to the State’s closing argument

The defendant claims that during closing arguments, the prosecutor bolstered the testimony of an eyewitness by vouching for the witness’s credibility. This claim is refuted by the record. Referring to the evidence presented, arguing that the evidence was consistent with other evidence in the case, and noting the lack of evidence of a witness’s motive to lie do not constitute bolstering. Yok v. State, 891 So.2d 602, 603 (Fla. 1st DCA 2006) (concluding that the prosecutor’s statement in closing arguments urging the jury to find that the witness was credible (“honest and straight-forward”) based on the evidence did not constitute improper bolstering).

Claim VIII—Trial counsel’s failure to object to the “principal” instruction given to the jury

The defendant claims that the trial court erred by instructing the jury on “principals” because the information did not charge him as a principal and that his trial counsel provided ineffective assistance of counsel by failing to object. There is no requirement, however, that the charging document specifically allege that the defendant acted as a principal in order for the State to pursue and the jury to be instructed on principals. See State v. Larzelere, 979 So.2d 195, 215 (Fla. 2008).

Claim VIII—Trial counsel’s failure to object to the trial court’s omission of the definitions of justifiable and excusable homicide when charging the jury

While it is true that the trial court erred by failing to provide the jury with the standard jury instruction for the definitions of justifiable and excusable homicide, we do not find that this omission constitutes fundamental error or prejudice sufficient to have deprived the defendant of a fair trial. The issue in this case was not whether the homicide was justifiable or excusable, but rather, whether the defendant was the person who committed the homicide. Thus, the error was not fundamental error. See Pena v. State, 901 So.2d 781, 787 (Fla. 2005) (finding that the trial court did not commit fundamental error where the defendant did not request those instructions and justification or excuse were not material issues); Franco v. State, 901 So.2d 901, 904 (Fla. 4th DCA 2005) (holding that the trial court’s failure to provide a justifiable or excusable homicide instruction was not fundamental error where there was no evidence that the homicide was justifiable or excusable). Because the defendant has not demonstrated a reasonable probability that with the inclusion of these instructions, the jury would have had a reasonable doubt as to his guilt, as required under the second prong of the Strickland analysis, we do not find that the defendant’s trial counsel’s failure to object constitutes ineffective assistance of counsel. Strickland, 948 So.2d at 617.

Claim IX—Trial counsel’s failure to object to the inclusion of the “self-defense” instruction

The defendant claims that his trial counsel provided ineffective assistance of counsel by failing to object to the inclusion of the “self-defense” instruction with the other instructions provided to the jury. As previously stated, the defendant’s defense in this case was not that his actions were either justifiable or excusable, but was instead based on a theory of mistaken identification—that he was not the person who committed the crime. Thus, the defendant presently contends that the inclusion of the “self-defense” instruction was irrelevant, not that the instruction given was infirm. The defendant, however, has not articulated any prejudice, nor have we found any, which resulted from this allegedly irrelevant instruction. Therefore, the defendant has not met his burden under the Strickland analysis, and he has not established ineffective assistance of counsel requiring a new trial.

CONCLUSION

Because the defendant has failed to meet his burden of establishing that his trial counsel’s performance was deficient and that the deficiency prejudiced his defense such that there is a reasonable probability that but for the claimed errors the proceeding would have been different, we affirm. Strickland, 466 U.S. at 694, 104 S.Ct. 2062.

Affirmed.

      . Claim I alleges that the State’s preemptory challenges were exercised in a discriminatory manner; claims V and VI relate to alleged jury instruction errors; and claim II alleges, in part, the trial court's, failure to offer to read back, certain testimony based on a question posed by the jury.

      . Although not dispositive in this case, because the defendant has failed to demonstrate that his trial counsel’s failure to object to the trial court’s instruction to the jurors to rely on their recollection of the evidence without offering to read-back the testimony prejudiced the defendant so as to have deprived him of a fair trial, we believe that a distinction can and should be made between a jury request for a transcript or a read-back of a witnesses’ trial testimony and a fact question directed to the trial court. First, we note that in Hazuri v, State, 91 So.3d 836 (Fla. 2012), the Florida Supreme Court limited its analysis and holding to a jury's request for a transcript, Noting that transcripts may be read to the jury but they may not be provided to the jury during its deliberations, id. at 841-42, and that jurors are generally lay people “often unfamiliar with legal terms of art,” id. at 845, the Court concluded that when a jury requests a trial transcript, the trial court should deny the request but inform the jury of the possibility of a read-back. Id. at 846. Second, a question of fact directed to the trial court is significantly different than a request for a transcript. A fact question directed to the trial court is a request by the jury for the trial court to insert itself into the jury deliberations and to resolve a conflict or questions about the evidence. In such cases, the trial court should not be required to inform the jury that he or she is not permitted to comment on the evidence but that the jurors may request that the testimony of a witness be read back to them in open court. Such a requirement would be confusing and could lead to undesirable consequences. For example, some fact questions may rest on a combination of the testimony of one or more witness and physical evidence. An offer to read back certain testimony to the jury, may require an evaluation of all of the evidence, which would, again, thrust the trial court into the deliberation process. Thus, we agree with the Fifth District Court of Appeal in Frasilus v. State, 46 So.3d 1028 (Fla. 5th DCA 2010), that Florida Rule of Criminal Procedure 3.410 does not require, and should not be extended to require, the trial court to inform the jury that it may request a read-back of the testimony when the jury poses a fact question to the trial court. See Frasilus, 46 So.3d at 1032 stating:
      We do not think it is either necessary or desirable to impose' a requirement on the trial court to inform the jury of its right to request a read-back in response to any question from the jury concerning an issue of fact that may have been the subject of testimony somewhere during the course of the trial. ... Because a trial court is not required to accede to a jury’s request for a read-back of evidence it has already heard, it is difficult to imagine circumstances under which a trial court’s failure to advise the jury of its right to request a read-back could vitiate the fairness of the entire trial.


author: NORTHCUTT, Judge.

text:
    Raymond E. KIDDER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-608
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2017
    Rehearing Denied April 13, 2017
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Raymond Kidder appeals his judgment and sentences following his no contest plea to using a computer to seduce, solicit, or lure a child; traveling to meet a minor after using a computer to seduce, solicit, or lure a child; and attempted lewd and lascivious molestation of a child between twelve and eighteen by an individual less than eighteen. Mr. Kidder correctly argues that his convictions and sentences for using a computer to seduce, solicit, or lure a child under section 847.0135(3)(b), Florida Statutes (2013), and traveling to meet a minor after using a computer to seduce, solicit, or lure a child under section 847.0135(4)(b) violated the prohibition against double jeopardy. See State v. Shelley, 176 So.3d 914 (Fla. 2015); Mahar v. State, 190 So.3d 1123 (Fla. 2d DCA 2016) (following Shelley). The State concedes error, and Mr. Kidder and the State request that we reverse Mr. Kidder’s judgment and sentence for the soliciting offense, the lesser of the two offenses.

Because Mr. Kidder’s judgment and sentences were the result of a plea bargain, he is not entitled to the requested relief. See Novaton v. State, 634 So.2d 607, 609 (Fla. 1994). Accordingly, we affirm Mr. Kidder’s judgment and sentences without prejudice to any right he may have to pursue a claim for postconviction, relief related to the double jeopardy violation. See Tapp v. State, 44 So.3d 666, 667 (Fla. 2d DCA 2010); Weitz v. State, 795 So.2d 1021, 1022-23 (Fla. 2d DCA 2001). We caution Mr. Kidder that such relief would result in the loss of the benefit of his plea bargain.

Affirmed.

MORRIS and CRENSHAW, JJ., Concur.


text:
    Chad Wesley ROSSITTER v. Hillary Holley ROSSITTER
    NO. 2017-CJ-0124
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. F, No. 82778; to the Court of Appeal, Third Circuit, No. CW 16-01045

| j Denied.


text:
    BOES IRON WORKS, INC. v. GEE CEE GROUP, INC., Gibson C. Chigbu and The Gee Cee Company of LA, Inc.
    NO. 2017-C-0040
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div, A, No. 2013-01545; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0207;

Denied.


text:
    MIKEN SPECIALTIES, ESIS South Central Workers’ Comp Claims v. Norman J. ABARCA Norman J. Abarca v. Miken Specialties
    NO. 2017-C-0037
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 7, No. 14-07726 C/W 15-03437; to the Court of Appeal, Fifth Circuit, No. 16-CA-231 C/W 16-CA-232;

| iDenied.

HUGHES, J., would grant.


text:
    Leticia VILLATORO v. DEEP SOUTH BH & R ENTERPRISES, LLC, DS&B Services, LLC and LCI Workers Comp
    NO. 2017-C-0036
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 7, No. 14-06260; to the Court of Appeal, Fifth Circuit, No. 16-CA-307

| ¶ Denied.


text:
    Donald ST. PETERS v. HACKBARTH DELIVERY SERVICE, INC. and Walgreen Company
    NO. 2017-C-0034
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. C, No. 71, 353; to the Court of Appeal, Fifth Circuit, No. 16-CA-88

| ¶ Denied.


text:
    Warren and Bertha JACKSON v. LEEVAC SHIPYARDS HOUMA, LLC and Leevac Shipyards, LLC
    NO. 2016-CC-2243
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Supervisory and/or Remedial Wi’its, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 175120; to the Court of Appeal, First Circuit, No. 2016 CW 1083

|! Denied.


text:
    Mekel Smith ALVAREZ v. Robert Michael ALVAREZ
    NO. 2016-CC-2246
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 752-666; to the Court of Appeal, Fifth Circuit, No. 16-C—648;

h Denied.


text:
    Robert G. LAURENT v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION
    NO. 2016-CC-2282
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 2009-10123; to the Court of Appeal, Fourth Circuit, No. 2016-C-1170

| denied.


text:
    Warren “Chip” PIERROTTI and Elizabeth T. Pierrotti v. Glenn Lee JOHNSON, Kim Graham Johnson, Stephen Colson and Prestige Title
    NO. 2017-C-0002
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 593,673 to the Court of Appeal, First Circuit, No. 2016 CA 0204

| iDenied.

JOHNSON, C. J., would grant.

GENOVESE, J., would grant.


text:
    John MANTIPLY, et al. v. Joseph I. HOFFMAN, Jr., M.D.
    NO. 2017-CC-0005
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. G, No. 242,390; to the Court of Appeal, Third Circuit, No. CW 16-00708;

| denied.


text:
    STATE of Louisiana v. Nancy ROGERS
    NO. 2017-KK-0006
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. C19,-590; to the Court of Appeal, Third Circuit, No. KW 16-00878

| iDenied.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Kenneth P. LANDRIEU
    NO. 2017-KK-0009
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div, A, No. 526-779; to the Court of Appeal, Fourth Circuit, No. 2016-K-1114;

I, Denied.

HUGHES, J., would grant.


text:
    MEDICAL REVIEW PANEL CLAIM OF Patrick PRESKITT v. Dr. Natalie JACKSON, DDS
    NO. 2017-CC-0010
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2016-7218; to the Court of Appeal, Fourth Circuit, No. 2016-C-1202;

Denied.


text:
    Patrick RICHARD v. STATE of Louisiana, The Office of the Governor, Division of Administration, Office of Risk Management State of Louisiana, The Office of the Governor, Division of Administration, Office of Risk Management v. Patrick Richard
    NO. 2017-C-0016
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 4, No. 14-06189 C/W 14-06211; to the Court of Appeal, Third Circuit, No. 16-227 C/W 16-228

Denied.


text:
    Diamond PARKER v. Michael W. NEUSTROM, et al.
    NO. 2017-CC-0027
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. B, No. 2016-0542-B; to the Court of Appeal, Third Circuit, No. CW 16-00703;

11 Denied.


text:
    KELLEY BLUE BOOK CO., INC., d/b/a KBB.com v. LOUISIANA MOTOR VEHICLE COMMISSION
    NO. 2017-C-0032
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 740-827; to the Court of Appeal, Fifth Circuit, No. 16-CA-281

|! Denied.

WEIMER, J., would grant.


text:
    Henry St. Paul PROVOSTY and Gloria Newman Provosty v. ARC CONSTRUCTION, LLC, et al.
    NO. 2017-CC-0028
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 2008-3671; to the Court of Appeal, Fourth Circuit, No. 2015-CA-1219;

| denied.


text:
    STATE of Louisiana v. Domonique BATTLE
    NO. 2017-KK-0272
    Supreme Court of Louisiana.
    February 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 529-207; to the Court of Appeal, Fourth Circuit, No. 2017-K-0062;

| t Denied.


text:
    STATE EX REL. Quierza LEWIS v. STATE of Louisiana
    NO. 2016-KH-1620
    Supreme Court of Louisiana.
    February 17, 2017
   Applying for Reconsideration of this Court’s action dated November 7, 2016, Parish of Webster, 26th Judicial District Court Div. F, No. 73,177 and 71,568; to the Court of Appeal, Second Circuit, No. 50,-828-KH

|, Reconsideration denied.


text:
    PONTCHATRAIN NATURAL GAS SYSTEM, K/D/S Promix, LLC and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2017-CC-0057
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. B, No. 34265; to the Court of Appeal, First Circuit, No. 2016 CW 1392

h Denied.


text:
    STATE of Louisiana v. Felix ADAMS, Jr.
    NO. 2016-KO-0172
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 540658; to the Court of Appeal, First Circuit, No. 2015 KA 1155

|, Denied.


text:
    STATE of Louisiana v. David D. MERWIN
    NO. 2016-K-0313
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. B, No. 14-01664; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0681

|, Denied.


text:
    STATE of Louisiana v. Dale LAMBERT
    NO. 2016-KO-0335
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 517-162; to the Court of Appeal, Fourth Circuit, No; 2015-KA-0886;

| ¶ Denied.


text:
    STATE of Louisiana v. Chevroun K. SMITH
    NO. 2016-KO-0398
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 514-924; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0241

h Denied.


text:
    STATE of Louisiana v. Philip GIBSON
    NO. 2016-KO-0407
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 506-743; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0682;

h Denied.


text:
    STATE EX REL. Marlon CARTER v. STATE of Louisiana
    NO. 2016-KH-2066
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 04-15-0006 AND 08-14-0830; to the Court of Appeal, First Circuit, No. 2015 KW 1906

| iDenied.


text:
    STATE EX REL. Anthony BARROW v. STATE of Louisiana
    NO. 2016-KH-2216
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 07-15-0912; to the Court of Appeal, First Circuit, No. 2016 KW 1316;

h Denied. Moot.


text:
    STATE of Louisiana v. Dennis BROWN
    NO. 2017-KK-0023
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 623-489; to the Court of Appeal, Fourth Circuit, No. 2016-K-1240;

| TPenied.

GUIDRY, J., would grant.


text:
    STUART CONSULTING GROUP, INC. v. Constance LOYLESS and Louisiana Workforce Commission
    NO. 2017-00029
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Writ of Certiorari, and/or Review State of Louisiana Board of Review, Offiee of Regulatory Services, No. 00527BR2015 C/W B01144AT2015; 24th Judicial District Court Div. M, No. 748-222; to the Court of Appeal, Fifth Circuit, No. 16-CA-247

| ^Denied.

JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Derrick D. HILLS
    NO. 2017-KK-0042
    Supreme Court of Louisiana.
    February 17, 2017
   . Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 03-14-0407; to the Court of Appeal, First Circuit, No. 2016 KW 1351

11Denied.


text:
    MARLIN INVESTMENTS, LLC f/k/a Chemtech Chemical Services, LLC v. Steve PARRISH and Jason Danos
    NO. 2017-CC-0049
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div, E, No. 111,560; to the Court of Appeal, First Circuit, No. 2016 CW 1312;

| denied.

HUGHES, J., would grant.


text:
    Jamesterrius CLEVELAND v. RICHARDSON MEDICAL CENTER, Dr. Francis J. Sejud and any other unknown Defendants
    NO. 2017-CC-0056
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Richland, 5th Judicial District Court Div. B, No. 44,717-B; to the Court of Appeal, Second Circuit, No. 51,399-CW

|, Denied.


text:
    URGENT CARE & FAMILY MEDICINE v. J. Peyton PARKER, Jr.
    NO. 2017-CC-0071
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, Baton Rouge City Court, No. 11-05488; 19th Judicial District Court Div. A, No. 636741; to the Court of Appeal, First Circuit, No. 2015 CW 1914

11 Denied.


text:
    IN RE: Medical Review Panel Claim of Sylvia Veronica SCOTT
    NO. 2017-C-0063
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2015-0966: to the Court of Appeal, Fourth Circuit, No. 2016-CA-0145;

Denied.


text:
    Winston J. BURNS, Jr. and Wendy Burns v. LIVERS CONSTRUCTION, INC. and Fireman’s Fund Insurance Company
    NO. 2017-CC-004 8
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2016-04002; to the Court of Appeal, Fourth Circuit, No. 2016-C-1221;

[ ^Denied.


text:
    Tameeka D. BAKER, on her own behalf as surviving wife of Brad James and Yolanda Stuard on behalf of minor child Kalleb James v. CVS PHARMACY, INC., Louisiana, CVS Pharmacy, L.L.C., The Wakenhut Corporation, G4S Secure Solutions (USA) Inc. and Marshall Cooper and John Doe
    NO. 2017-CC-0309
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 2010-10535; to the Court of Appeal, Fourth Circuit, No. 2017-C-0121

| denied.

GUIDRY, J., would grant and docket.

CRICHTON, J., would grant and docket.


text:
    STATE of Louisiana v. Terry ALLEN
    NO. 2017-KK-0335
    Supreme Court of Louisiana.
    February 20, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 03—13— 0014; to the Court of Appeal, First Circuit, No. 2017 KW 0215;

| iStay denied. Writ denied.


text:
    STATE of Louisiana v. Leslie C. THOMPSON
    NO. 2015-K-0886
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jackson, 2nd Judicial District Court Div. B, No. 45,300; to the Court of Appeal, Second Circuit, No. 49,-483-KA

|, Granted.


text:
    STATE of Louisiana v. Thayer GREEN
    NO. 2016-K-0107
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 07-12-0447; to the Court of Appeal, First Circuit, No, 2015 KA 0308

It Granted.


text:
    Darvel BURGESS v. SEWERAGE & WATER BOARD OF NEW ORLEANS
    NO. 2016-C-2267
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 8th, No. 12-06510; to the Court of Appeal, Fourth Circuit, No. 2015-CA-0918; February 24,2017

| ¶ Granted.


text:
    STATE of Louisiana IN the INTEREST OF A.C.
    NO. 2017-CK-0182
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. E, No. J—16—15; to the Court of Appeal, First Circuit, No. 2016 KW14 92

h Granted.


text:
    STATE EX REL. Anthony Paul JOHNSON v. STATE of Louisiana
    NO. 2015-KH-1991
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 273437; to the Court of Appeal, Second Circuit, No. 50435-KH;

11 Granted. Remanded for reallotment and consideration.

CLARK, J., would deny.

CRICHTON, J., would deny.


text:
    FIRST NATIONAL BANK v. RICHLAND SPORTING GOODS, L.L.C., and Eugene Blaylock and Barbara L. Freeland Blaylock
    NO. 2016-CC-2204
    Supreme Court of Louisiana.
    February 24, 2017
   Applying for Reconsideration of this Court’s action dated January 23, 2017; Parish of Richland, 5th Judicial District Court Div. B, No. 41,185; to the Court of Appeal, Second Circuit, No. 51155-CW;

| ¶ Reconsideration not considered. See Louisiana Supreme Court Rule IX, § 6.

Hughes, J., would grant.


text:
    IN RE: Jose W. VEGA
    No. 2016-B-0316
    Supreme Court of Louisiana.
    February 24, 2017
   Applying for Rehearing of this Court’s action dated January 13,2017.

h Second application for rehearing not considered. This court’s judgment of September 6, 2016 became final and definitive when rehearing was denied on January 13, 2017. La. Code Civ. P. art. 2167. Supreme Court Rule IX, § 5 does not permit any further rehearing applications. Accordingly, no further filings shall be accepted in this matter.


text:
    STATE EX REL. Thomas Watts MASON, III v. STATE of Louisiana
    NO. 2017-KH-0018
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 496714; to the Court of Appeal, First Circuit, No. 2016 KA 0514;

11 WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE EX REL. Joseph A. DAVIS v. STATE of Louisiana
    NO. 2017-KH-0055
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 502-050; to the Court of Appeal, Fourth Circuit, No. 2015-KA-1325

I/WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE EX REL. Robert GRAHAM v. STATE of Louisiana
    NO. 2017-KH-0171
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of East Carroll, 6th Judicial District Court Div. B, No. 22,984 IVWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE of Louisiana v. Bobby L. BROCK
    NO. 2015-K-2229
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. G, No. 14 CR8 125748; to the Court of Appeal, First Circuit, No. 2015 KA 0610

| denied.


text:
    STATE of Louisiana v. Aquendius Christopher WALKER
    NO. 2016-KO-0153
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 654,715; to the Court of Appeal, First Circuit, No. 2015 KA 0945

h Denied.


text:
    STATE of Louisiana v. Jacob R. LAGMAN
    NO. 2016-K-0165
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 491711; to the Court of Appeal, First Circuit, No. 2015 KA 1093

11 Denied.


text:
    Meghan R. JOHNSON v. SOUTHEASTERN LOUISIANA UNIVERSITY and Paige Lapeyrouse Hall
    NO. 2016-CC-2252
    Supreme Court of Louisiana.
    Supreme Court of Louisiana
    February 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 632,266; to the Court of Appeal, First Circuit, No. 2016 CW 1228

h Denied.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    Carl MOSS v. LOWE’S HOME CENTERS, INC.
    NO. 2017-C-0082
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 2016-000001; to the Court of Appeal, Third Circuit, No. CA 16-630

| iDenied.


text:
    CONSTRUCTION DIVA, L.L.C. v. NEW ORLEANS AVIATION BOARD, et al.
    NO. 2017-C-0083
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 16-2050; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0566

I iDenied.


text:
    Gail STONE v. LAKES OF CHATEAU NORTH, L.L.C. and Liberty Surplus Insurance Company
    NO. 2017-CC-0087
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 738-996; to the Court of Appeal, Fifth Circuit, No. 16-C-529

| denied.

JOHNSON, C.J., would grant.


text:
    Tracy Ray LOMONT v. Michelle MYER-BENNETT and XYZ Insurance Company
    NO. 2017-C-0088
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 716-976; to the Court of Appeal, Fifth Circuit, No. 16-CA-436

| denied.

JOHNSON, C.J., would grant.


text:
    Deidra CLAYTON, individually and on behalf of her deceased son, Jonathan Clayton, and Angela Burke v. COLUMBIA CASUALTY COMPANY, David Johnson, individually and in his Official Capacity as a Livingston Parish Sheriff's Deputy, and Willie Graves, individually and in his Former Official Capacity as Livingston Parish Sheriff
    NO. 2017-C-0089
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. A, No. 147737; to the Court of Appeal, First Circuit, No. 2016 CA 0122

I, Denied.


text:
    STATE of Louisiana v. Norris Joseph GREENHOUSE, Jr.
    NO. 2017-KK-0094
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 2015-CR-190764; to the Court of Appeal, Third Circuit, No. KW 16-00859;

| ] Denied.


text:
    Mary O’NEAL, et al. v. Ronnie NEWCOMB
    NO. 2017-C-0096
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial Distinct Court Div. G, No. 249,989; to the Court of Appeal, Third Circuit, No. 16-564;

| denied.


text:
    STATE of Louisiana v. Dajon PERKINS
    NO. 2017-KK-0102
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 528-007; to the Court of Appeal, Fourth Circuit, No. 2016-K-1213;

|! Denied.


text:
    STATE of Louisiana v. Michael THOMASSIE
    NO. 2017-K-0186
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 519-261; to the Court of Appeal, Fourth Circuit, No. 2016-KA-0370;

| denied.


text:
    STATE of Louisiana v. Antoine JOHNSON a.k.a. “Twan”
    NO. 2016-KO-0028
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, No. 13-4638; to the Court of Appeal, Fifth Circuit, No. 15-KA-528

|! Denied.


text:
    STATE EX REL. Dondrique L. LEWIS v. STATE of Louisiana
    NO. 2017-KH-0108
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St, Tammany, 22nd Judicial District Court Div. G, No. 521667; to the Court of Appeal, First Circuit, No. 2016 KA 0533

JjWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    John Edward THOMPSON v. Kelli Cooper THOMPSON
    NO. 2017-CJ-0306
    Supreme Court of Louisiana.
    February 24, 2017
   IN RE: Kelli Cooper Thompson; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. G, No. 256,558; to the Court of Appeal, Third Circuit, No. CW17-00001.

| denied.


text:
    STATE of Louisiana v. Keith LEBEAU
    NO. 2017-KK-0058
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 15-7101; to the Court of Appeal, Fifth Circuit, No. 16-K-581;

h Denied.

JOHNSON, C.J., would grant.

HUGHES, J„ would grant.

GENOVESE, J., would grant.


text:
    STATE EX REL. Glenn Anthony FOSTER v. STATE of Louisiana
    NO. 2017-KH-0157
    Supreme Court of Louisiana.
    February 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 282,262; to the Court of Appeal, Second Circuit, No. 46,-992-KA;

JjWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


author: GREMILLION, Judge.

text:
    Robert Wayne HACKETT, et ux. v. MURPHY EXPLORATION & PRODUCTION CO. USA
    16-707
    Court of Appeal of Louisiana, Third Circuit.
    03/15/2017

      A. J. Gray, III, The Gray Law Firm (APLC), P. O. Box 1467, Lake Charles, LA 70602-1467, (337) 494-0694, COUNSEL FOR PLAINTIFFS/APPELLANTS: Robert Wayne Hackett, Kaye Breedlove Hackett
    Jude C. Bursavich, Robert L. Atkinson, Caroll Devillier, Breazeale, Sachse & Wilson, L.L.P., P.O. Box 3197, Baton Rouge, LA 70821-3197, (225) 387-4000, COUNSEL FOR PLAINTIFFS/APPELLANTS: Robert Wayne Hackett, Kaye Breedlove Hackett
    Thomas M. Flanagan, Andy Dupre, An-ders F. Holmgren, Flanagan Partners LLP, 201 St. Charles Ave., Suite 2405, New Orleans, LA 70170, (504) 569-0235, COUNSEL FOR DEFENDANT/APPELLANT: Murphy Exploration & Production Co. USA
    Robert L. Cabes, Andrew J. Halverson, Milling, Benson, Woodward, LLP, P. O. Box 51327, Lafayette, LA 70505-1327 (337) 232-3929, COUNSEL FOR DEFENDANT/APPELLANT: Murphy Exploration & Production Co. USA
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   GREMILLION, Judge.

I ¡This dispute pits the defendant/appellant, Murphy Exploration & Production Company-USA, against the plaintiffs/ap-pellees, Robert Wayne Hackett and Kaye Breedlove Hackett. Murphy is appealing the $2,411,134.00 judgment granted in favor of the Hacketts. For the reasons that follow, we affirm as amended. However, we find that the trial court erred in its award of judicial interest, and remand the matter for the proper calculation of judicial interest.

FACTS AND PROCEDURAL HISTORY

This dispute has appeared before this court before. In Hackett v. Murphy Exploration & Prod. Co.-USA, 14-855 (La.App. 3 Cir. 2/4/15), 158 So.3d 222, a panel of this court reversed a partial summary judgment in favor of the Hacketts that recognized them as owners of certain property subject to an order establishing a mineral production unit, finding that there was an ambiguity in the deed by which their ancestor in title allegedly acquired the property in question, which lies beneath a roadway over which the Parish of Vermilion has a right of way. The facts as found by that panel regarding the chain of title are important:

The property in dispute was first acquired by Elmer Stansel from H.B. White in 1911. White sold to Stansel 125 acres “being bounded on the East by Isaac Lyons, and South and West by L. and H. Canal right-of-way, and North by an imaginary line parallel to the South boundary.” At the time, the southern boundary, described as the “Canal right-of-way,” shown by the survey maps, was the southern section line for Section 37.
In 1921 Stansel entered into an exchange with Isaac Lyons in which Stan-sel traded a triangle-shaped portion of his 125 acres acquired from White, lying in Section 36, for a triangle-shaped portion of Lyon’s land lying in Section 37. Before this exchange, both Stansel and Lyons granted a right-of-way to Vermilion Parish for the construction of a public road. The right-of-way ran along the | ¡.southernmost border of both properties, but was north of Section 37’s southern section line. Therefore, after the exchange, Stansel’s property encompassed the public road right-of-way.
Immediately following the exchange with Lyons, Stansel sold his property to Homer Woods. The act of sale described two tracts, the first being the remaining property Stansel acquired from White, approximately 96 acres, “more or less,” and the second being the triangle acquired from Lyons in the exchange. It is from this document that the current dispute arises. Robert Hackett, plaintiff, has ultimately inherited any remaining property belonging to Stansel. Murphy, defendant, was granted an oil and gas leasehold intei’est for a unit that encompasses the property owned by Woods, now by Woods’ heirs, to whom Murphy has paid royalties. The Hacketts initiated this suit to establish them as owners of the land lying beneath the public road right-of-way and to collect the royalties from Murphy that would be due to them as owners.
The act of sale described the two tracts as follows:
One certain tract of land lying and being situated in Vermilion Parish, Louisiana, on the West side of Rail Road right-of-way, containing Ninety-six (96) acres, more or less, lying in Section Thirty-seven (37), Township Eleven (11), South Range Two (2) West, bounded on the Northwest by L. & H. Canal righ[t]-of-way, on the Southwest by the Public Road, and on the East by the Rail Road right-of-way. Being the same property acquired from H.B. White.
2nd: One certain tract of land situated in the Parish of Vermilion, Louisiana, containing Twenty-five and 54/100 acres, being in the Lyon Grant in Section Thirty-seven (37) Township Eleven (11), South of Range Two (2) West, commencing on “West side of Gueydan-Crowley High-way and running along the North line of Canal right-of-way 20.74 chains; thence North 44.30 West 27.00 chains; thence South along the West side of Road right-of-way to point of beginning, being Lot “B” of plat attached to an Act of Exchange between Vendor and Isaac H. Lyons, less a strip of land along the Southwest line sold for Public Road to Vermilion Parish and also less a strip of land on the first tract hereinabove described sold for Public Road to Vermilion Parish, containing Four and 84/100 (4.84) acres.
(Emphasis added).
IsThe property in dispute is that described in the first paragraph above.

Hackett, 158 So.3d at 223-25. The ambiguity that precluded summary judgment is found in the “bounded by” language in the first paragraph and the “and also less” language in the second. Before the 1956 enactment of La.R.S. 9:2791, land descriptions that were described as being bounded by waterways, canals, roads, and the like were held to not include the vendor’s interest beneath those artificial boundaries. See Lamson Petroleum Co. v. Hallwood Petroleum, Inc., 99-1937 (La.App. 3 Cir. 5/10/00), 763 So.2d 40, writ denied, 00-2305 (La. 11/27/00), 775 So.2d 446. Applying this principle to the matter would favor the Hacketts’ claim, as the act of sale would thereby have not conveyed Stansel’s interest in the property beneath the roadway. However, this conflicted with the language excluding the roadway strip, because, as the court noted, a long series of Louisiana cases held that such acknowl-edgements of servitudes operate to convey ownership in such property subject to ser-vitudes. Hackett, 158 So.3d 222.

Before the previous appeal was decided by this court, Murphy filed a peremptory exception in the trial court, in which it argued that the heirs of Woods must be joined in the suit under La.Code Civ.P. art. 641. The Hacketts opposed this exception on the grounds that the trial court had been divested of jurisdiction over the issue of the ownership of the property because of Murphy’s appeal of the partial summary judgment. They also argued that the exception was filed too late, because the trial court had already determined their ownership of the land. Lastly—and seemingly in contradiction of their second argument— the Hacketts argued that their action was solely for an accounting by the mineral producer. In December 2014, during the pendency of the previous appeal, the trial court | ¿overruled the exception as premature. In June 2015, after the Hackett decision, the trial court again overruled the exception.

Murphy then filed a “Third Party Petition” naming Woods’ heirs as defendants. This petition alleged that if Murphy owed the Hacketts the royalties in question, Woods’ heirs owed the return of those royalties to Murphy. Six of the ten heirs were served with the petition, but none answered it. This petition was filed without leave of court.

Murphy then filed an exception of prescription in which it argued that the Hack-etts’ claims are subject to liberative prescription of ten years; thus, any claim they had to royalties before 2002, ten years before their suit was filed, are barred. The trial court maintained this exception.

The Hacketts and Murphy entered into joint stipulations for trial purposes:

1.That the Hacketts claim ownership in the road, not all of which was included in the production unit;
2. The road was situated within the unit and remained in production through May 31, 2014;
3. In 1921, the road was owned by Elmer Stansel;
4. Stansel sold certain property described above to Homer Woods on November 28,1921;
5. The Hacketts “acquired title to whatever interest in the Road may have been retained” by Stansel through inheritance from Elvie Lee Stansel in 1991;
6. The Hacketts executed a royalty deed in 1992 conveying a 4% mineral royalty in the road;
h7. In 2004, the Hacketts executed a deed conveying 50% of their interest in the road to Grand Anse Diversified Holdings, LLC. This was corrected in 2005 to reflect that the interest conveyed was solely the Hacketts’ mineral interest;
8. In 2010, Grand Anse conveyed its interest back to the Hacketts;
9. On July 1, 1997, Murphy succeeded as operator of the unit wells;
10. At no time did Murphy pay any money to Grand Anse or the Hack-etts.

Lastly, the parties stipulated to the amounts that might be owed the Hacketts under various scenarios, ranging between $1,660,480 and $3,209,633.

Following trial on the merits, the trial court ruled that the property belonged to the Hacketts and that the 2010 agreement between them and Grand Anse nullified their 2004 agreement. The trial court, in a judgment signed on March 8, 2016, awarded the Hacketts mineral royalties of $2,411,134 plus judicial interest from 2002 until paid.

Murphy and the Hacketts appeal the March 8, 2016, judgment, and the Hacketts appeal the grant of the exception of prescription. Murphy also has filed with this court an exception of no right of action in which it asserts that the Hacketts are not the proper obligees for any royalties that may be due for the period from 2004 through 2010.

ASSIGNMENTS OF ERROR

Murphy assigns the following as errors:

kA. The district court committed legal error in overruling Murphy’s exception of non-joinder and in denying reconsideration of that ruling.
B. The district court manifestly erred in finding that Stansel retained ownership of the road in 1921.
C. The district court committed legal error in awarding Hackett 100% of the damages at issue because (1) he did not own 100% of the claims, and (2) the effect of a recorded instrument cannot be nullified retroactively as to third parties,
D. The district court committed legal error in imposing legal interest on the entire judgment beginning in 2002, before much of the alleged performance was even due.

The Hacketts assert that the following constitute errors of the trial court:

Assignment of Alleged Error No. 1:
The trial court committed manifest error in failing to rule that Murphy’s continuing affirmative obligation as operator to determine the ownership of and to pay unleased interests their pro rata share of the proceeds from the sale of production precluded running of prescription.
Assignment of Alleged Error No. 2:
The trial court committed manifest error in failing to rule that the shameful actions of Murphy precluded the running of prescription based upon contra non valentem.
Assignment of Alleged Error No. 3:
Because the Hacketts asserted a classic real action for which there is no prescriptive period, the trial court erred in ruling that the Hacketts’ claims were subject to prescription and limited to ten (10) years in arrears from the filing of the Petition on March 16, 2012.

ANALYSIS

I. NONJOINDER

Louisiana Code of Civil Procedure Article 641 provides:

A person shall be joined as a party in the action when either:
|7(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Murphy asserts that Woods’ heirs must be joined in the matter pursuant to the language of Article 641. We agree. The judgment in this matter provided in pertinent part:

After considering all of the testimonial and documentary evidence presented during the trial of this matter on March 7 & 8, 2016, this court finds the plaintiffs have met [their] burden of proving that it is more likely so than not that:
1) Hackett owns the road bed that is the subject of this dispute, and 2) The December 8, 2010 agreement between Grand Anse and Hackett had the legal effect of nullifying the November 11, 2004 deed (as corrected) from Hackett to Grand Anse.

The Hacketts rightly counter that Murphy itself made Woods’ heirs parties to the suit. This rendered the exception moot. Accordingly, this assignment of error lacks merit.

II. OWNERSHIP

Murphy’s second assignment of error posits that the trial court erred in finding that Stansel retained ownership of the roadbed. This court has already held that the 1921 conveyance between Stansel and Woods was ambiguous. Hackett, 158 So.3d 222. Accordingly, the trial court was tasked with the unenviable exercise of determining the intent of the parties to a 1921 contract. The trial court was aided by the introduction of extrinsic evidence that included documents | swhereby Stansel procured the property in question in 1911 and the judgment of possession whereby Woods’ heirs succeeded to property in the area. The judgment of possession also provided that the property was bounded by the public road on the southwest. As explained by the Hacketts’ expert, Mr. Leonard J. Chauvin, Jr., a civil engineer and land surveyor, and as instructed by the Lamson case, the roadway that sits atop the property was that described in the first paragraph of the description in the Stansel/Woods act of sale (“bounded .... on the Southwest by the Public Road .... ”), would not have been conveyed in the sale. Accordingly, as paradoxical as it may seem, the land beneath the road was not conveyed by Stansel. This assignment of error lacks merit.

III. APPLICATION OF THE PUBLIC RECORDS DOCTRINE AND MURPHY’S EXCEPTION OF NO RIGHT OF ACTION

Murphy’s third assignment of error addresses the damages awarded the Hack-etts. Specifically, Murphy asserts that the trial court erred in finding that the 2010 Grand Anse/Hackett agreement nullified the 2004 Grand Anse/Hackett agreement. Murphy argues that under the case of Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272, 10-2279, 10-2289 (La. 10/25/11), 79 So.3d 246, the rights asserted during the existence of the agreement between the Hacketts and' Grand Anse are personal to Grand Anse and cannot be conveyed to the Hacketts except by assignment. We disagree.

In Eagle Pipe, the plaintiffs were landowners who acquired property and sued various defendants for contamination that occurred before they purchased the property. The court noted that the right to sue over property damages arises when the property was damaged, not when the damage was discovered. The right arose Inin tort and was a personal right. It only existed as long as the landowner owns the property and is not conferred absent an assignment or subrogation from him.

In Eagle Pipe, the act of sale included the following, “[the sellers] do by these presents sell, transfer and deliver, with full guarantee of title and free from all encumbrances, and with full subrogation to all their rights and action of warranty against previous owners.” Id. at 281. The court found that this language was “not an express assignment of personal rights to the new owner.” Id. Rather, this language addressed warranty of title to the property. In this matter, the 2010 Grand Anse/Hack-ett agreement contatos the following pertinent language:

AN AGREEMENT of sale entered into this [8th] day of December, 2010, but effective as of November 11, 2004, made before me, Notary Public....
NOW THEREFORE, for good and adequate considerations, the receipt and adequacy while [sic] are hereby acknowledged, Grand Anse does hereby sell, assign, grant and deliver to Hackett all of its right, title and interest (50% undivided interest) to and to the minerals of the lands described as tracts 1, 2, 3 and 4 to Exhibit “A” of the sale dated November 11, 2004, recorded under Entry No. 20414573 of the records of Vermillion [sic] Parish.

The agreement then reiterated that it was effective as of November 11, 2004.

Murphy argues that giving retroactive effect to this provision is prohibited by King v. Strohe, 95-656 (La.App. 3 Cir. 5/8/96), 673 So.2d 1329. In King, the heirs of Mr. Strohe decided to effect an exchange under which two tracts would be created. One tract would belong to Mrs. King, Mr. Strohe’s sister, and the other to his remaining heirs and his wife. All parties reserved their mineral rights. At some point later, minerals were discovered, and Mrs. King and the remaining Strohe heirs executed leases. In 1981, sixteen years after the exchange, prospectors obtained leases from the other Strohe heirs, but not from Mrs. King. Production | mbegan to 1984, but the operator of the well treated Mrs. King as though her mineral servitude had prescribed.

In 1988, another group discovered that Mrs. King may have a valid interest in the property’s minerals and convinced Mrs. King to execute a lease of her interests retroactive to 1984. They then commenced an action to account for and reimburse Mrs. King’s interests under La.R.S. 30:10(A)(3). The unit operator argued that the statute did not apply because of the retroactive lease Mrs. King executed. Relying upon La.Civ,Code art. 1839 and La. R.S. 9:2721, the court of appeal refused to apply the 1988 lease retroactively to 1984.

The Hacketts counter that Murphy did not rely upon the 2004 sale, so it is not shielded by the public records doctrine. Louisiana Civil Code Article 3338 codifies the public records doctrine. It states:

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.
ln(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.

The public records doctrine holds that a third party may rely upon “the absence from the public records of those interests that are required to be recorded.” Cimarex Energy Co. v. Mauboules, 09-1170, p. 20 (La. 4/9/10), 40 So.3d 931, 944.

We find the public records doctrine inapplicable to this proceeding. In 1997, when Murphy took over as operator of the unit, the 2004 sale from the Hacketts to Grand Anse had not been confected. The Hacketts did not assert their claims against Murphy until they filed suit in 2012, after the 2010 contract abrogated or nullified the 2004 contract. Under the public records doctrine, as already stated, a party is only entitled to rely upon the absence of something reflecting an interest in a piece of property. Here, there was no absence of such a document from the public records. The 2004 agreement was duly recorded. The 2010 document, in our minds, effectively restored the Hacketts’ elaim to the mineral rights by assignment. That assignment was a new and additional document, but it was not the first and only document. This assignment of error has no merit.

Grand Anse and the Hacketts confected a valid sale of the mineral interests in the property in 2010, retroactive to 2004. Murphy relies upon Eagle Pipe for the proposition that the Hacketts have no right of action to recover royalties during the 2004-10 period. We find that Murphy is applying an overly-expansive interpretation of Eagle Pipe. The contractual language in the 2010 Grand [12Anse/Hackett contract operated to effectively assign Grand Anse’s rights against Murphy. This exception is overruled.

IV. LEGAL INTEREST

Murphy also complains that the trial court erred in awarding legal interest from 2002. Awards of legal interest are governed by La.Code Civ.P. art. 1921, which provides that the trial court shall award interest as prayed for or as provided for by law. Under Louisiana Civil Code article 2000, damages for delay in performance on a sum due is measured by interest on that sum from when it is due. While the parties stipulated to the amount of damages the Hacketts would be owed under various scenarios, those sums represented the total amount of damages owed over time and depended on whether the Hack-etts were owed royalties beginning in 1997 or in 2002. Regardless of when Murphy’s obligation to the Hacketts began, though, it was not obligated for the entire amount of the judgment, but for their share of the production sales within 180 days of those sales. La.R.S. 30:10(A)(3). Accordingly, we remand the matter to the trial court for proper calculation of judicial interest on the award, with interest determined based upon the amount of each production sale and beginning 180 days from the date of each sale until paid, beginning in 2002.

V. PRESCRIPTION

The Hacketts’ three assignments of error all complain of the trial court’s grant of Murphy’s exception of prescription. They first argue that Murphy had an ongoing obligation to ascertain ownership of the minerals, and that Murphy’s failure to fulfill this obligation precluded the running of prescription. The law has settled on the proposition that an unleased landowner’s cause of action for |1saccounting for production is quasi-contractual and governed by liberative prescription of ten years, Taylor v, David New Operating Co., Inc., 619 So.2d 1251 (La.App. 3 Cir.), writ denied, 625 So.2d 1046 (1993); Taylor v. Smith, 619 So.2d 881 (La,App, 3 Cir.), writ denied, 625 So.2d 1038 (1993); Taylor v. Woodpecker Corp,, 93-781 (La.App. 1 Cir. 3/11/94), 633 So.2d 1308.

The Hacketts also maintain that Murphy’s actions warrant the court applying the doctrine of contra non valentem. The doctrine establishes that prescription does not run against a plaintiff under four situations:

(1) Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; and (3) Where the debt- or himself has done some act effectually to prevent the creditor from availing himself of his cause of action.... Modern jurisprudence also recognizes a fourth type' of situation where Contra non valentem applies so that prescription does not run: Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

Corsey v. State, through Dep’t of Corr., 375 So.2d 1319, 1321-22 (La. 1979)(Footnotes omitted).

The Hacketts argue that the actions of Murphy, its predecessor as operator of the unit, and their counsel warrant application of contra non valentem. Specifically, the Hacketts contend that Great River, through its attorney, and Murphy, through the same attorney, concealed the Hacketts’ interest in the property despite possessing title opinions from two lawyers opining that they were owners of the property.

Thus, the Hacketts argue that Murphy acted effectually to prevent them from availing themselves of their cause of action. We disagree. If failure to recognize 114the legitimacy of another litigant’s claim suspended the tolling of prescription, no claim brought before the courts would be susceptible of prescription. Courts exist to peacefully resolve disputes between parties who refuse to recognize the legitimacy of them opponents’ positions. See Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982).

In the present matter, Mr. Hackett opened the succession of his grandparents, through whom he became the owner of the property in question. In 1992, he was advised that he was probably the owner of the property. In fact, he executed a lease of his mineral interests in the property to Mr. John P. Newman on January 23, 1992. A reasonable person must ask himself why a third party would give payment to lease property from someone who did not own it. Further, the Hacketts later retained an attorney to whom they assigned a royalty interest in the property in exchange for investigating his interest in the property. Murphy played no part in that attorney’s opinion that the Hacketts enjoyed little chance of prevailing in a claim to the property.

The Hacketts also contend that their claim is imprescriptible because they are asserting a real right. This ignores that the only real right the Hacketts are asserting is their claim of ownership of the land. That claim, it is true, does not pi’escribe. The right to recover under La.R.S. 30:10 prescribes in ten years, as noted above. These assignments of error lack merit. The trial court correctly held that any demands the Hacketts enjoyed under La. R.S. 30:10 were subject to ten years libera-tive prescription.

CONCLUSION

Murphy, in adding the Woods heirs as third-party defendants to the action, rendered its exception of nonjoinder moot. The trial court correctly determined 115that the Hacketts own the property beneath the Vermilion Parish road. The trial court correctly determined that the Hacketts’ demands for proceeds from the sale of the minerals beneath the road was subject to ten years liberative prescription. The doctrine of contra non valentem is not applicable to the Hacketts’ claims. However, the trial court did err in awarding judicial interest from 2002, and we remand the matter for calculation of legal interest from 180 days from the date of each production sale until paid. All costs of this appeal are taxed to defendant/appellant, Murphy Exploration & Production Company-USA.

AFFIRMED AS AMENDED.

      . Throughout this opinion, we will refer to “the Hacketts,” even though the property involved in this matter constitutes Mr. Hackett’s allegedly inherited, and, thus, separate property.

      . This sum represents the amount the parties stipulated as the Hacketts’ damages if the 2010 Grand Anse agreement nullified the 2004 Hackett/ Grand Anse agreement.

      . Louisiana Civil Code Article 1839 provides in pertinent part, "An instrument involving immovable property shall have effect against third persons only from the time it is filed for registry in the parish where the property is located.”

      . This statute was amended by 2005 La.Acts No. 169. Before its repeal, Subsection (A) provided:
      No sale, contract, counter letter, lien, mortgage, judgment, surface lease, oil, gas or mineral lease, or other instrument of writing relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated. Neither secret claims or equities nor other matters outside the public records shall be binding on or affect such third parties.

      .Louisiana Civil Code Article 3338 was enacted by 2005 La.Acts No. 169, § 1, and became effective July 1, 2006.