author: SHEVIN, Judge. COPE, J.

text:
    Tony NOVOA and Drumia Novoa, Appellants, v. AMERISOURCE CORPORATION, Appellee.
    No. 3D03-161.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.

      Woodbury & Santiago and Michael P. Woodbury, for appellants.
    Raul Gastesi and Leonardo G. Renaud, for appellee.
    Before COPE, LEVY and SHEVIN, JJ.
   SHEVIN, Judge.

Tony Novoa and Drumia Novoa appeal an order granting a summary judgment in favor of judgment creditor, AmeriSource Corporation, in its action to foreclose on real property. We reverse.

Mr. Novoa argues on appeal that he presented sufficient evidence at the summary judgment hearing that the property was homestead, and not subject to foreclosure by the creditor, to create an issue of fact precluding summary judgment. Mrs. Novoa asserts that the court erred in granting summary judgment in view of her testimony that her husband’s creditor could not attach the property because, despite a clerical error in the title, the parties intended to hold the property as tenants by the entireties.

The court in Jebailey v. Watsky & Co., 676 So.2d 1036 (Fla. 5th DCA 1996), was presented with a similar scenario. Jebai-ley sold his homestead in Florida and was living in Lebanon. His creditors sought to attach the proceeds of the sale. The Fifth District held that testimony from Jebai-ley’s daughter — explaining her parents’ intent to purchase another Florida property as homestead with those proceeds — precluded summary judgment. In the case before us, there was sufficient record evidence to create genuine issues of material fact regarding Mr. Novoa’s intention to continue to use the property as his homestead. Novoa testified that he intended to continue using the property as his homestead and would be returning to the property as soon as his legal problems in the United States had been resolved. This created a factual issue that precluded summary judgment.

AmeriSource argues that the No-voas abandoned the homestead because they are currently living in Costa Rica. Novoa refuted this allegation by testifying that he is in Costa Rica pending resolution of his legal problems, and that he intends to return to the property as homestead when these problems abate. “Continuous uninterrupted physical presence is not required to create a homestead.” Burdick v. Burdick, 399 So.2d 410 (Fla. 3d DCA 1981). “A homestead is abandoned by taking up a permanent abode at a distant place. Whether there has been an abandonment of a homestead ... should be determined by a consideration of all the pertinent facts and circumstances of each case.” Miller v. West Palm Beach Atlantic Nat’l Bank, 142 Fla. 22, 194 So. 230 (1940). In Dean v. Heimbach, 409 So.2d 157 (Fla. 1st DCA 1982), the court found that involuntary absence from homestead, caused by legal problems of the owner, are insufficient to constitute abandonment of the homestead. The status of homestead is preserved “when the family unit is temporarily removed from the homestead but the homestead remains the permanent abode to which the family unit intends to return.” Dean, 409 So.2d at 158. Novoa’s testimony created an issue of fact as to his intention to return, and not abandon the homestead.

Moreover, in granting summary judgment in this case, the trial court im-permissibly weighed the credibility of Mrs. Novoa and disregarded her testimony that they intended to title the property as tenants by the entireties. This was improper, as credibility determinations must be made by a jury at trial. Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000); Jebailey.

Based on the foregoing, we reverse summary judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

LEVY, J., concurs.

COPE, J.

(concurring).

In the .present posture of the case I concur in reversing for further proceedings.

I write separately, however, to point out what I believe to be an important underlying issue in the case, the doctrine of judicial estoppel. See Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061 (Fla.2001); SCI Funeral Servs. of Florida, Inc. v. Henry, 889 So.2d 702 (Fla. 3d DCA 2002). The doctrine of judicial estoppel precludes “the option of pursuing an entirely inconsistent position in a subsequent suit.” Blumberg, 790 So.2d at 1067.

The parties have framed the question to be whether the Novoas abandoned the homestead, but to me the more basic problem is that the Novoas have taken inconsistent positions in court. Since the issue has not been briefed by the parties, it is an issue which should be addressed on remand. The issue clearly exists as to Tony Novoa, and quite possibly also exists as to the appellant wife, Drumnia Marquez No-voa.

The summary judgment record reflects that in prior litigation between Tony No-voa and AmeriSource Corporation, Tony Novoa consistently took the position that the family had relocated to Costa Rica. These representations were made so that he could not be compelled to come to Miami-Dade County in connection with pending civil lawsuits as well as a pending Medicaid investigation. Tony Novoa’s status as a resident of Costa Rica was repeatedly presented to the trial court by his counsel.

In the civil lawsuits AmeriSource recovered substantial judgments against Tony Novoa, which it is now seeking to enforce against real estate titled in Tony Novoa’s name in Miami-Dade County. Seeking to block the AmeriSource judgments, the No-voas argue that Miami-Dade County has at all times remained their homestead, and that they were physically present in Miami-Dade County several days each month.

The trial court had a clear understanding of Tony Novoa’s previous litigation position that he was a Costa Rican resident, not a Florida resident. It was the inconsistency of the Novoas’ litigation position that troubled the trial court, and rightly so. While Florida cases have in some circumstances allowed homestead status to be retained notwithstanding the absence of the owner from the jurisdiction for a period of time, see majority opinion at 2-3, those cases do not rule out the possibility of the application of the doctrine of judicial estoppel, and the cited cases differ from the circumstances present here. In Jebailey v. Watsky & Co., 676 So.2d 1036 (Fla. 5th DCA 1996), the proceeds of the sale of the Jebaileys’ homestead were placed in the registry of the court thus preventing the Jebaileys from buying another homestead until resolution of the lawsuit regarding entitlement to the proceeds. In those circumstances, the Jebaileys returned to their home country until such time as the litigation could be resolved. The case does not involve the taking of inconsistent litigation positions, which is what the doctrine of judicial estoppel is designed to prevent.

In Dean v. Heimbach, 409 So.2d 157 (Fla. 1st DCA 1982), William Dean was arrested and ordered as a condition of bail to leave Jackson County where the homestead was located. Plainly under those circumstances there could be no abandonment, because the departure from the homestead was ordered by the court. Again, no such circumstances exist here.

The other cases cited in the majority opinion, Miller v. West Palm Beach Atlantic Nat'l Bank, 142 Fla. 22, 194 So. 230 (1940), and Burdick v. Burdick, 399 So.2d 410 (Fla. 3d DCA 1981), both involve the effect of a separation by husband and wife on the status of the marital abode as homestead. In Miller it was found that there had been an abandonment and the husband was estopped to say otherwise. 194 So. at 232. In Burdick, there was found to be no abandonment. Id. at 413. Those cases likewise present no barrier to application of the doctrine of judicial estop-pel in an appropriate case.


source: Caselaw Access Project

author: FARMER, C.J.

license: Public Domain

text:
    Jason A. KILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4910.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    Steven Wisotsky of Steven Wisotsky, P.A., Miami, for Appellant.
    No appearance required for Appellee.
   FARMER, C.J.

In his motion for a written opinion, defendant inferentially argues that it is per se ineffective assistance of counsel (IAC) to fail to seek a competency hearing for a defendant who claims total amnesia about the crime for which he has been charged. That being so, he claims that it is per se error for a post-conviction relief judge to fail to order an evidentiary hearing on his IAC claim. We disagree.

As the court did in Mauldin v. State, 382 So.2d 844 (Fla. 1st DCA 1980), we conclude that “amnesia, in and of itself, does not, per se, render [defendant] incapable of standing trial or of receiving a fair trial.” 382 So.2d at 846. In the same vein is State v. Cooks, 642 So.2d 23 (Fla. 5th DCA 1994), which held that defendant’s amnesia regarding events of crime did not mandate that he be found legally incompetent to stand trial. If amnesia does not automatically equal incompetency to stand trial, then defendant would be required to relate the amnesia to the facts and circumstances of the case and a specific defense.

That being so, it was up to defendant to make a prima facie showing in his petition for post-conviction relief that his trial amnesia affected the outcome in some way. In this case, defendant did not do so. Consequently, defendant has failed to satisfy the requirement that he state initially how counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that the outcome would have been different without the ineffectiveness. Strickland v. Washington, 466 U.S. 668, 687-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Defendant’s contention that his claim of amnesia alone required a competency hearing before or during trial and that the failure to request such a hearing is per se IAC is simply not supported by the cases he has cited. See Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996); Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992); Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). It is obvious that a claim of amnesia can be faked and fool even psychiatric experts. Thus the refusal to make use of the claimed condition can reasonably fall within trial tactics of counsel and be ineligible for an IAC claim. As we just said, a post-conviction claim of IAC must suggest how defense counsel’s use of the amnesia in a request for a competency hearing would probably have led to a different result.

At bottom, defendant’s amnesia-competency as a basis for a post-conviction IAC claim masks an attempt to cast his voluntary use of drugs before the crime as substitute for a defense of temporary insanity. He repeatedly refers to his “drug-induced delirium” at the time of the crime, saying that he did not know right from wrong when he killed the victim. He contends that his drug-induced delirium was a mental defect justifying the insanity defense. Such an attempt impermissibly blurs the line between the general insanity defense and what was once a proper defense of voluntary intoxication.

In Gray v. State, 731 So.2d 816 (Fla. 5th DCA 1999), Judge Harris distinguished between a general insanity defense and the temporary condition associated with drug or alcohol intoxication:

“the fact that the crime is committed because the intoxicant arouses passions, diminishes perceptions, releases inhibitions or clouds reason or judgment is not a defense. It is only when one is so intoxicated that he cannot form a statutorily required specific intent that a defense arises. Hence, voluntary intoxication is not a defense to a general intent crime.”

731 So.2d at 817.

The Gray ease has particular application here because of the strong similarities in the facts and purported defense. In Gray, defendant ingested cannabis, alcohol and cocaine and then attempted to assault a woman in a department store dressing room. He was restrained by bystanders and resisted police when they arrived. Here, after a night of drinking and consuming Xanax, Kiley bludgeoned the 21 year-old victim to death with a two-by-four. Kiley had known the victim for a couple of years and socialized almost every day.

At trial Gray attempted, as Kiley does here, to rely on a general insanity defense predicated on the situational effects of voluntary drug ingestion. As here, Gray offered an expert who opined that the drug intoxication rendered him temporarily incapable of knowing what he was doing or that his conduct was wrong. The Gray court explained:

“Although the expert applied the M’Naghten standard and found that Gray did not know what he was doing or the consequences of what he was doing and did not know right from wrong, it was because of the drugs voluntarily taken by him on that evening. Hence, the defense seems to be asserting a voluntary insanity defense. The problem is that Florida does not recognize such a defense. Just imagine how such a defense would affect driving under the influence related offenses. Tm sorry they’re all dead, but I was too drunk to know it was wrong to drive.’ ”

731 So.2d at 818. As Judge Harris summed up:

“The state’s argument properly pointed out that the cause of Gray’s not knowing what he was doing or the consequence of what he was doing or not knowing that what he was doing was wrong was not because of a mental infirmity, disease or defect; it was because he voluntarily got drunk, a condition which did not constitute insanity.”

731 So.2d at 818. That analysis applies equally to defendant’s post-conviction claim in this case and adequately explains why the trial judge did not err in failing to hold an evidentiary hearing on his amnesia-competency claim.

AFFIRMED.

KLEIN and GROSS, JJ., concur.

      . His trial counsel properly acknowledged that voluntary intoxication was not a defense to the general intent crime of second degree murder. Gray v. State, 731 So.2d 816 (Fla. 5th DCA 1999). The voluntary intoxication defense to specific intent crimes was subsequently repealed, with a narrow exception, for crimes committed on or after October 1, 1999. § 775.051, Fla. Stat. (1999).

      . Kiley and a co-defendant were involved in an altercation with some "homeless” people in a parking lot of a McDonald’s. Although present, the victim did not become physically involved in the altercation. After the fight had broken up and the homeless people were leaving, Kiley and the co-defendant turned on the victim for not helping them fight. After kicking and punching him to the ground, Ki-ley removed a two-by-four supporting a newly planted palm tree and began striking the victim. The homeless people observed what was happening and called police. The co-defendant fled as the sound of police sirens approached. Kiley continued to drive the two-by-four in a pile-driver fashion into the victim's head. According to the testimony of the eyewitnesses, the beating continued for about fifteen minutes. The first officer arrived on the scene in a stealthy fashion, with his headlights off and saw Kiley standing over the victim driving the board into his head and chest with all his might. The officer drew his weapon and order Kiley to stop. Kiley looked at the officer and inflicted one more blow. The officer was in the process of pulling the trigger of his firearm when Kiley threw the board aside and began to flee. The officer was forced to use pepper spray, which did not have an immediate effect on Kiley, and his baton to subdue Kiley, who yelled obscenities at the officer.

      . The Gray court also distinguished the kind of defense both Gray and Kiley seek to raise with a different intoxication defense that would be permissible if the facts warranted. In the permissible defense the defendant must show that his long term and continued use of intoxicants produced a "a fixed and settled frenzy or insanity either permanent or intermittent.” Gray, 731 So.2d at 818; see also Cirack v. State, 201 So.2d 706 (Fla.1967).


author: PER CURIAM.

text:
    Kasey KAROLWAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2367.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483, 2003 WL 22715773 (Fla. 4th DCA Nov.19, 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).

STONE, WARNER and HAZOURI, JJ., concur.


author: STONE, J.

text:
    John M. TREMBATH, Jr., The Wood Co., a foreign corporation, and Enterprise Leasing Company, a foreign corporation authorized and doing business in the State of Florida, Appellants, v. The BEACH CLUB, INC., a Florida corporation, Appellee.
    No. 4D02-4849.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.

      Mark Hicks and Brett C. Powell of Hicks & Kneale, P.A., Miami, for appellants.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for appellee.
   STONE, J.

The Beach Club, Inc. (the club) sued the appellants (Trembath) for damages caused by Trembath crashing his rental car into the club’s building. The damages included the costs of repair, along with the cost of installing a fire sprinkler system in the building where, after the incident, the dub was discovered to be in violation of the Life Safety Code, established pursuant to section 633.025, Florida Statutes. We conclude that the record demonstrates that the installation of a sprinkler system was not proximately caused by the accident, and reverse.

The facts were stipulated in the trial court, the only issue before the court was whether, as a matter of law, Tremath’s accident could be the proximate cause of the club’s additional damage required in order to comply with the code.

Section 633.025(3) provides that the most current edition of the National Fire Protection Association 101, Life Safety Code, adopted by the state fire marshal, is deemed to be adopted by each city and county as part of its minimum fire safety code. The application of the 1997 version of the code, which became effective just a month prior to the accident, mandated that “assembly occupant” facilities, which would include the club, have fire protection which, here, would include a fire sprinkler system.

The Life Safety Code includes an exception to its requirements for existing buildings that provides:

9-1.1.1 The requirements of this chapter apply to existing buildings or portions thereof currently occupied as assembly occupancies.
Exception: An existing building housing an assembly occupancy established prior to the effective date of this Code shall be permitted to be approved for continued use if it conforms to or is made to conform to the provisions of this Code to the extent that, in the opinion of the authority having jurisdiction, reasonable life safety against the hazards of fire, explosion, and panic is provided and maintained.

The authority having jurisdiction is the fire marshal.

The director of planning for the Town of Palm Beach testified, confirming that prior to the accident, the club, an assembly occupancy building, had not been required by the town to install a fire sprinkler system. The club also offered the testimony of an architect who opined that the club, as an existing building, would not have been required to install the sprinkler system until the fire marshal, in his judgment, believed it was necessary. He further testified that the accident of January 16, 1999, caused the fire marshal, John Wandell, to focus attention on the club.

It is undisputed that the fire sprinkler violation was not picked up in an earlier routine inspection. The fire marshal, however, now inspected the club as a result of the fire caused by the accident. Upon the fire marshal’s inspection, he required, as authorized by the code provisions, that a sprinkler system be installed.

Clearly, even if the club never applied for a building permit, and had let the building stay as is, it would, nevertheless, have been required to put in new sprinklers upon discovery of the existing conditions by a fire marshal. The inspection performed after the accident was the first complete Life Safety Code inspection, although an earlier routine inspection was made by the fire department, whose agents simply completed standard checklists of whether items such as fire extinguishers were in place. The discovery of this violation, however, required a more thorough inspection of the physical structure.

The appellants offered the testimony of John T. Wandell, the fire marshal for the Town of Palm Beach, who ordered the upgrade. His testimony was not challenged. He stated unequivocally that the club was not in compliance with the code before the accident. The marshal testified that the club held functions in the second story of the building and, because he thought fire could progress, there was “a threat to life safety.” When he was able to determine, after the accident, that structural members of the building were not protected, he ordered that the lack of fireproofing be remedied.

Finally, the fire marshal testified that if he had done the same thorough inspection before the accident as he had performed after the accident, he would have reached the same conclusion; that the club was not in compliance with the code. He explained that the accident allowed him to perform a more thorough life safety inspection of the club than might otherwise have occurred. During that inspection, he and the building inspector opened up some tiles and observed exposed steel. The marshal admitted he had inspected the club on a number of occasions over the seventeen years he was fire marshal, but had always assumed that the club was fire rated. When the more in-depth inspection was conducted after the crash, he learned that it was not.

As to routine in-service inspections done by agent ladder personnel, the fire marshal explained that they are not responsible for determining whether a structure is in compliance with the code. Instead, the inspections verified whether fire extinguishers were present and properly maintained. While “sprinklers” were listed on the checklist inspection sheets, if the in-service inspectors indicated “N/A” next to “sprinklers,” that did not mean that the club was found to be exempt; instead, it simply indicated that the sprinklers did not exist.

We conclude that Trembath’s accident was not the proximate cause of the club’s requirement to comply with the code. Rather, the code, when adopted, required that the club comply with its mandates. The club had an affirmative duty to be in compliance with the Life Safety Code, if it did not fall within the exceptions. The fire marshal’s testimony demonstrates that it did not. Responsibility for the club’s decision not to voluntarily comply with the code cannot now be passed off to Trembath simply because his accident indirectly led to the fire marshal’s discovery of the club’s code violations. Therefore, the club, alone, is responsible for the cost of bringing the building into compliance as to this item of damage.

We recognize that under other circumstances the damages for cost of repair may include the expense necessary to conform the repairs to existing building codes. See, e.g., Peluso v. Singer Gen. Precision, Inc., Link Div., 47 Ill.App.3d 842, 8 Ill.Dec. 152, 365 N.E.2d 390 (1977). Here, however, the club was already obligated to make the mandatory repairs.

Prior to the accident, the club was required, by law, to install the sprinkler system and otherwise comply with the code. See Grant v. Thornton, 749 So.2d 529 (Fla. 2d DCA 1999)(reasoning that the owner of property has a duty to comply with applicable codes; it will not be a defense to argue that owner was unaware of his obligation or that he was unaware of non-compliance); Del Risco v. Industrial Affiliates, Ltd., 556 So.2d 1148 (Fla. 3d DCA 1990)(holding that owners and lessors of commercial buildings have a non-delegable duty to comply with fire safety codes). That the club chose not to comply with the 1998 mandate until the fire marshal’s inspection is not grounds for relieving the club of the responsibility.

Before an occurrence can be a proximate cause of a injury, it must be determined to be a cause-in-fact of that injury. Stahl v. Metropolitan Dade County, 438 So.2d 14, 17 (Fla. 3d DCA 1983)(ex-plaining that Florida courts, in accordance with most other jurisdictions, have historically followed the so-called “but for” causation-in-fact test; that is, “to constitute proximate cause there must be such a natural, direct and continuous sequence between the negligence act [or omission] and the [plaintiffs] injury that it can reasonably be said that, but for the [negligent] act [or omission] the injury would not have occurred.” Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227, 230 (Fla. 1st DCA I960)); see also Dep’t of Transp. v. Anglin, 502 So.2d 896, 899 (Fla.1987)(eiting Stahl, 438 So.2d at 19, stating that “Florida courts, in accord with courts throughout the country, have for good reason been most reluctant to attach tort liability for results which, although caused-in-fact by the defendant’s negligent act or omission, seem to the judicial mind highly unusual, extraordinary, bizarre, or, stated differently, seem beyond the scope of any fair assessment of the danger created by the defendant’s negligence. Plainly, the courts here have found no proximate cause in such case based solely on fairness and policy considerations, rather than actual causation grounds.”).

The accident was not the proximate cause, as it was not a cause-in-fact of the club’s requirement to presently upgrade; rather, the duty existed separate and apart from any outside event. The true proximate cause of the expense arose when the code was adopted. See McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla.1992)(holding that the proximate cause element of negligence “is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.”).

“[F]or proximate cause to exist, there must be such a natural, direct and continuous sequence between the negligent act and the injury that it can reasonably be said that but for the act the injury would not have occurred.” McDonald v. Fla. Dep’t of Transp., 655 So.2d 1164, 1168 (Fla. 4th DCA 1995)(citing Jones v. Utica Mut. Ins. Co., 463 So.2d 1153 (Fla.1985)). Here, even the club’s expert acknowledged that he could not say that “but for” the collision, the club would not have been required to put in the sprinkler system.

Therefore, the judgment is reversed. On remand, the trial court shall amend the judgment to delete this item of damages.

KLEIN and HAZOURI, JJ., concur.


author: HAZOURI, J.

text:
    Jevon FERGUSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1176.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for ap-pellee.
   HAZOURI, J.

Jevon Ferguson appeals from the trial court’s denial of his motion to withdraw his plea and the deniál of his motion to correct sentencing error. We affirm.

Ferguson was charged with trafficking in cocaine in an amount between 28 and 200 grams and possession of cannabis, both of which occurred on March 7, 2001. Ferguson pled guilty to the charges and entered into a substantial assistance agreement with the State. Sentencing was deferred for ninety days. As a part of the substantial assistance agreement, Ferguson agreed that the prosecutor would be the sole determiner as to whether he provided substantial assistance and, in addition, Ferguson waived his right to withdraw his plea.

At the time of the sentencing hearing the State asserted that Ferguson had violated the conditions of the substantial assistance agreement because he had been arrested for a crime during the time between the execution of the substantial assistance agreement and the sentencing hearing. When Ferguson sought to withdraw his plea, the trial court denied the motion. On the trafficking count, the trial judge sentenced Ferguson to twenty years with a minimum mandatory of three years, a $50,000 fine and credit for time served. As to the possession count, the trial judge sentenced Ferguson to five years concurrent to the sentence on the trafficking charge.

Florida Rule of Criminal Procedure 3.170(f) states in part: “The court may, in its discretion, and shall upon good cause, at any time before a sentence, permit a plea of guilty to be withdrawn.” The trial court in the instant case did not abuse its discretion nor did defendant establish good cause. We therefore affirm the trial court’s denial of Ferguson’s motion to withdraw his plea of guilty.

Ferguson asserts that the trial court erred in denying his motion to correct sentencing error. He argues that he must be resentenced on Count I that included a mandatory minimum under section 893.135(l)(b)la, Florida Statutes (1999), which was part of chapter 99-188, because that chapter was held to violate the single subject rule of the Florida Constitution in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). Under Taylor, Ferguson would be entitled to be resentenced. However, this court recently decided the en banc decision of Hernandez-Molina v. State, 2003 WL 22715773, 860 So.2d 483 (Fla. 4th DCA 2003), in which we disagreed with Taylor and held that chapter 99-188 did not violate the single subject rule of the Florida Constitution. We therefore affirm the trial court’s denial of Ferguson’s motion to correct sentencing error but certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002).

STEVENSON and MAY, JJ., concur.


author: STEVENSON, J.

text:
    T.J., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D03-1733.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    Richard C. Komando of Komando & Associates, P.A., Fort Lauderdale, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori R. Shapiro and Jeffrey P. Bassett, Assistant Attorneys General, West Palm Beach, for Appellee.
   STEVENSON, J.

T.J., the putative father of D.G., appeals an order establishing his paternity as to the minor child and adjudicating the child dependent as to him on the ground of abandonment. T.J. seeks reversal of the adjudication of paternity, arguing, among other things, that the trial court applied an incorrect “preponderance of the evidence” burden of proof. We reverse.

Chapter 742, Florida Statutes, is the primary vehicle for the establishment of paternity. See § 742.10(1), Fla. Stat. (2002); P.N.V. v. Wash, exrel. T.R.D., 654 So.2d 1274, 1275 (Fla. 2d DCA 1995). Under chapter 742, paternity must be established by clear and convincing evidence. See § 742.031, Fla. Stat.; Gingola v. Fla. Dep’t of Health & Rehabilitative Servs., 634 So.2d 1110, 1111 (Fla. 2d DCA 1994). This burden of proof cannot be avoided simply because, in this case, the paternity adjudication was made in the context of a chapter 39 proceeding.

It is unclear from the trial court’s order precisely what burden of proof was applied as the order appealed simply finds that there was “sufficient credible” evidence of paternity. We have reviewed the record, however, and find the evidence before the trial court, which consisted primarily of the mother’s naked and equivocal allegation that T.J. was the father, could not rise to the level of “clear and convincing.” See In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995)(defining “clear and convincing evidence”). Thus, we are compelled to reverse the order appealed and remand for further proceedings. On remand, the trial court may take additional evidence on the issue of T.J.’s paternity.

SHAHOOD, J., and GEIGER, DWIGHT L., Associate Judge, concur.

      . Here, there was no genetic testing, and the mother had initially identified an ex-boyfriend, W.G., as the putative father.


text:
    Theodore MEDINA, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1725.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    Theodore Medina, Monticello, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s rule 3.850 motion for post-conviction relief was denied, but we reverse for either the attachment of additional portions of the record conclusively showing appellant is entitled to no relief or for an evidentiary hearing. We do so only on the ground that appellant entered into a plea bargain agreement providing for a fifteen year sentence based on his counsel promising him that the sentence could be reduced by a rule 3.800(c) motion. Such a motion was filed and denied. Appellant alleges that if he had known rule 3.800(c) motions are discretionary and rarely granted, he would not have agreed to the plea bargain.

The trial court summarily denied the motion based on the following language in the plea agreement: “[o]ther than the proposed sentence set forth above, no one has made any promises or guarantees to me ... I am doing this freely and voluntarily.” We conclude that this language is insufficient to conclusively rebut appellant’s claim under State v. Leroux, 689 So.2d 235 (Fla.1996); Brana v. State, 830 So.2d 942 (Fla. 4th DCA 2002). We therefore reverse.

FARMER, C.J, POLEN and KLEIN, JJ., concur.


text:
    Steven DOLBERG, Appellant, v. Sherri SINKOFF f/k/a Sherri Dolberg, Appellee.
    No. 4D02-4330.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    Deborah Marks of Deborah Marks, P.A., Miami, for appellant.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, and Robert J. Moraitis of Robert J. Moraitis, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The Former Husband appeals the trial court’s order holding him in contempt, and the trial court’s denial of his motion for a continuance. We affirm the trial court’s denial of the motion for continuance; however we reverse the order granting the motion for contempt as to a portion of the purge amount.

Here, the Former Wife concedes that the $24,710 the trial court awarded for attorney’s fees incurred in connection with an earlier motion for contempt was not previously determined and thus, improperly included in the purge amount. See Nel son v. Nelson, 491 So.2d 618, 620 (Fla. 1st DCA 1986) (where the court stated that the trial court “improperly ... [directed] incarceration for failure to comply with a requirement to pay in the future, rather than to compel compliance with previously fixed obligations respecting which the husband was in default”) (citation omitted); see also Wright v. Wright, 331 So.2d 395 (Fla. 4th DCA 1976) (where this Court stated “an adjudication of contempt should relate to past conduct, not prospective conduct.”)

Accordingly, we reverse and remand as to this issue for proceedings consistent with this opinion. We find all other issues raised by the Former Husband unpersuasive and affirm in all other respects.

AFFIRMED in part; REVERSED in part.

FARMER, C.J., GUNTHER and MAY, JJ., concur.


text:
    BONDED TRANSPORTATION and Vanguard Insurance Agency, Appellants/Cross-Appellees, v. Willie HARRIS, Appellee/Cross-Appellant.
    No. 1D03-3940.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2003.
    Claude M. Harden, III, and Terry P. Roberts of Harbsmeier, DeZayas, Appel & Harden, Tallahassee, for appellants/cross-appellees.
    T. Rhett Smith and Teresa E. Liles of Smith & Janes, Pensacola, for appel-lee/cross-appellant.
   PER CURIAM.

DISMISSED. Cadco Builders, Inc. v. Roberts, 712 So.2d 457 (Fla. 1st DCA 1998).

ERVIN, BOOTH and KAHN, JJ., concur. j


text:
    MT. OLIVE PRIMITIVE BAPTIST CHURCH OF JACKSONVILLE, a Florida non-profit corporation, Willie T. Lee, Freddie Brown, Franklin Murphy, and Gloria Best, as representative members, Appellants, v. Pastor Lee L. HARRIS, an individual, Mt. Olive Primitive Baptist Church of Jacksonville, Inc., a Florida non-profit corporation, and Moped of Jacksonville, Inc., a Florida corporation, Appellees.
    No. 1D02-3660.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2003.

      Glenn K. Allen and Jennifer A. Bowens, Jacksonville, for Appellants.
    Burney Bivens, Orange Park, for Appel-lees.
   PER CURIAM.

With no word of explanation, the trial court dismissed a five-count amended complaint brought by appellants against appel-lees Harris and MOPED of Jacksonville. These appellees sought dismissal, complaining both that the individual plaintiffs did not have standing to sue, and that the amended complaint failed to state a cause of action. Appellees now concede, however, that their real problem is that plaintiffs seek recovery both as individuals and on a derivative basis on behalf of the church corporation. Similarly, as to the issue of whether the complaint states a cause of action, appellees reiterate that the individual plaintiffs have no standing to bring a suit against the defendants, but specifically do not contend that the church corporation has failed to state a cause of action.

The amended complaint is anything but a model of clarity. Nevertheless, the complaint sets forth sufficient allegations of ultimate fact to withstand a motion to dismiss for failure to state a cause of action. Also, the complaint should have not been dismissed on the grounds of the individual plaintiffs’ standing, because appellees concede that the church, at the very least, has standing. We agree with this and we do not make a binding determination as to whether the individual plaintiffs, or any of them may sue in their individual capacity. This matter must be examined by the trial court on remand because it does not appear that the trial court has ruled directly on this question. Although reversing the order on appeal, we do not foreclose the possibility that the trial court may take reasonable steps to corral this litigation into a manageable and understandable form. For instance, the individual plaintiffs will need to make proper allegations of individual claims that would give them standing to sue Pastor Harris, or they will have to make such allegations as make it clear that they are bringing the action in their derivative capacity on behalf of the church. If, in fact, the church is capable of bringing the action, and will bring the action on its own behalf, and in the best interest of the church corporation, we would see no need for the individual plaintiffs to bring any derivative action. See Salit v. Ruden, McClosky, Smith, Schuster, & Russell, P.A., 742 So.2d 381; 388 (Fla. 4th DCA 1999) (noting that a derivative action is appropriate “where the corporation, because it is controlled by the wrongdoers or for other reasons, fails and refuses to take appropriate action for its own protection”). If the individual plaintiffs are unable to state claims on their own behalf, then the trial court may dismiss their actions in favor of an action by the church.

REVERSED and REMANDED for further proceedings.

KAHN, WEBSTER and VAN NORTWICK, JJ., concur.


text:
    STATE of Florida, Appellant, v. Richard JUDSON, Appellee.
    No. 1D03-202.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2003.
    Charles J. Crist, Jr., Attorney General, and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellant.
    James W. Magaha, Pensacola, for Appel-lee.
   PER CURIAM.

We reverse the suppression order entered by the trial court. By appellee’s own admission, no custodial interrogations took place in the present case, and any statements appellee made were voluntary and not the result of improper police behavior. See e.g. Williams v. State, 403 So.2d 453, 454-55 (Fla. 1stDCA 1981).

KAHN, WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Andre N. ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1943.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2003.
    Nancy A. Daniels, Public Defender, and Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s conviction and sentence for trafficking in cocaine. However, upon the State’s confession of error, we remand the “Judgment For Costs” for reconsideration by the trial court.

AFFIRMED; REMANDED with directions.

BOOTH, BENTON and LEWIS, JJ., concur.


author: VAN NORTWICK, J.

text:
    Edward MILLER, Appellant, v. BELL SOUTH PHONE COMPANY & Kemper National Services, Appellees.
    No. 1D02-4074.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2003.
    David J. Weissman of Rosenthal & Weissman, P.A., West Palm Beach, for Appellant.
    Stephanie G. Kolman, Jack R. Reiter and Paul R. Pearcy of Adorno & Yoss, P.A., Miami, for Appellees.
   VAN NORTWICK, J.

In this workers’ compensation appeal, Edward Miller, claimant below, appeals a final order denying compensability of his claim. Claimant argues that, because the final order was entered after the judge of compensation claims (JCC) reversed an earlier order recusing herself and reasserted control over the case, the order denying compensation is void and without effect. We agree and reverse.

Florida law is clear that once a judge recuses himself or herself for whatever reason, the judge may not thereafter reconsider the recusal decision and reassert judicial authority over the case. Deberry v. Ward, 625 So.2d 992, 993 (Fla. 4th DCA 1993). In Deberry, as here, the judge reinstated himself on rehearing, noting that he had made a mistake by granting the motion to disqualify. “A judge may not reconsider his decision to disqualify.” Id. at 993 (citing State v. Schack, 617 So.2d 832, 833-34 (Fla. 4th DCA 1993)); accord Margulies v. Margulies, 528 So.2d 957, 960 (Fla. 3d DCA 1988)(“once a trial judge disqualifies himself, he may not ‘re-qualify’ himself on removal of the reason for disqualification.”).

The JCC’s order denying compensability must be reversed as void and without effect because the JCC, having previously recused herself, was without jurisdiction to enter an order on the merits of the case. Davis v. State, 849 So.2d 1137, 1138 (Fla. 1st DCA 2003); Meaweather v. State, 732 So.2d 499, 500 (Fla. 1st DCA 1999). Accordingly, this cause is REVERSED and REMANDED with directions that this case be reassigned to another judge of compensation claims.

PADOVANO and HAWKES, JJ., concur.


text:
    Christopher L. ORSTAD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0716.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2003.
    Christopher L. Orstad, pro se, petitioner.
    Charlie Crist, Attorney General, and Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, for respondent.
   ORDER IMPOSING SANCTIONS

PER CURIAM.

Christopher L. Orstad seeks a belated appeal from a judgment and sentence imposed in the Circuit Court for Duval County in December 2002. Orstad states under oath that he asked his attorney, Craig J. Martin, to file a notice of appeal after sentence was imposed but Martin failed to timely file the notice.

This court issued an order which directed the respondent, State of Florida, to show cause why the petition should not be granted. The state moved to compel, informing this court that attorney Martin failed to respond to written and telephonic contacts regarding Orstad’s claim. The motion to compel was granted but Martin has failed to comply with the orders of this court. He has also made no response to an order to show cause why sanctions should not be imposed against him.

Accordingly, publication of this order in the Southern Reporter shall serve as a public reprimand of attorney Craig J. Martin. Additionally, this matter shall be referred to The Florida Bar, with a copy provided to the Grievance Committee of the Fourth Judicial Circuit, to determine whether it is appropriate to impose further sanctions against Mr. Martin in these circumstances.

The state shall respond to Orstad’s petition seeking belated appeal within 20 days of issuance of this order.

IT IS SO ORDERED.

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    Juanita BIELIK, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2669.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant pled no contest to several felony counts of driving under the influence and was denied a downward departure sentence. Relying on our decision in State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998), disapproved in State v. VanBebber, 848 So.2d 1046 (Fla.2003), the trial judge ruled that the mitigating factor that “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant had shown remorse” was not available to support a downward departure on a DUI conviction.

In Warner, we held that a trial court cannot depart downward in a DUI case on the grounds that “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” Constrained by Warner, the trial court stated:

No, there’s nothing more to say. I’ve listened to all the argument. I’ve reviewed the statutes. I paid close attention to the case law you submitted to me. I’ve asked my questions and I have — my personal feelings are irrelevant. My thoughts on the Court’s discretion and things of that nature are irrelevant in a case such as this.
I believe the statute is sufficiently clear that I have no discretion in this matter. That I cannot downward depart and I will not downward depart. If there’s going to be any downward departure it’s going to be after the higher court hears about it.

During the pendency of this appeal, the Florida Supreme Court disapproved of our decision in Warner and held that the miti-gator in section 921.0026(2)(j), Florida Statutes, is available to support a downward departure from a sentence for a felony DUI conviction. See State v. VanBebber, 848 So.2d 1046 (Fla.2003). Agreeing with the second district’s reasoning in State v. VanBebber, 805 So.2d 918 (Fla. 2d DCA 2001), the court stated:

Section 921.0026 plainly states, “This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998.” Because the mitigator in section 921.0026(2)© applies to any felony offense, except any capital felony, committed on or after October 1,1998, it is available to support a downward departure from a felony DUI conviction. The fact that the Legislature specifically exempted only capital felonies is further support for the conclusion that section 921.0026(2)© applies to felony DUI convictions.

848 So.2d at 1049 (footnotes omitted).

The state recognizes that the Florida Supreme Court has determined that the statutory mitigator set forth in section 921.0026(2)© is available as grounds for a downward departure. However, it argues that the particular facts of this case do not warrant a downward departure. Whether the facts in this case would or would not support a downward departure is not an issue properly before us at this time. Because the trial court followed Warner in determining it lacked discretion to impose a downward departure sentence in a DUI case, it did not consider the merits of appellant’s request for a downward departure. We note, however, that at sentencing, the court indicated that it would consider imposing a downward departure sentence if it were allowed to do so by appellate mandate.

Accordingly, we reverse appellant’s sentence and remand for the trial court to review the facts and circumstances of this case and consider whether a downward departure sentence is appropriate on the ground that “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” See Line v. State, 722 So.2d 853 (Fla. 4th DCA 1998)(remanding for the trial court to consider imposing a departure sentence where the court had determined it lacked discretion to impose a departure sentence due to erroneous appellate directions).

REVERSED and REMANDED.

FARMER, C.J., GROSS and TAYLOR, JJ., concur.


text:
    Amelia Gallo ARZOUMANIAN; Mark Puzant Arzoumanian; Unknown Tenant I; Unknown Tenant II; Hollywood Towers Condominium Association, Inc. and any unknown heirs, devisees, grantees, creditors, and other unknown persons or unknown spouses claiming by, through and under any of the above-named defendants, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, As Trustee Under the Pooling and Servicing Agreement, Dated as of October 1, 2002, Among Credit-Based Asset Servicing and Securitization LLC, PPT ABS LLC, Litton Loan Servicing LP and U.S. Bank National Association, PPT Asset-Backed Certificates, Series 2002-1, Without Recourse, Appellees.
    No. 4D03-2780.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.

      Amelia Arzoumanian and Mark Arzou-manian, Boca Raton, pro se.
    Thomasina F. Moore of Butler & Hoseh, P.A., Orlando, for appellee U.S. National Bank Association.
   PER CURIAM.

U.S. Bank National Association concedes that it filed an incorrect original note in securing a final judgment of mortgage foreclosure against the Arzoumanians’ property. The concession affects three of the four issues raised on appeal of the final judgment of mortgage foreclosure, and U.S. Bank agrees that the judgment may be reversed pursuant to Florida Rule of Appellate Procedure 9.315(b).

As to the remaining issue raised by the Arzoumanians concerning the failure of the trial judge to recuse herself, we have reviewed the motion to recuse and the Ar-zoumanians’ argument and find that the motion and argument are without merit. Therefore, we affirm on this issue pursuant to Florida Rule of Appellate Procedure 9.315(a).

In sum, the final judgment is reversed, and the sale conducted pursuant to the foreclosure is vacated. The case is remanded for further proceedings.

REVERSED AND REMANDED for further proceedings.

GUNTHER, WARNER and STEVENSON, JJ., concur.


text:
    Patrick PLACIDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2945.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Walter Deloatch, Jr., Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Donna L. Eng and Georgina Jimenez-Orosa, Assistant Attorneys General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Spencer v. State, 842 So.2d 52 (Fla.2003); Vining v. State, 827 So.2d 201 (Fla.2002); Lambrix v. State, 698 So.2d 247, 248 (Fla.1996), cert. denied, 522 U.S. 1122, 118 S.Ct. 1064, 140 L.Ed.2d 125 (1998).

POLEN, SHAHOOD and GROSS, JJ., concur.


text:
    Kenneth PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-353.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Kenneth Patterson, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Kenneth Patterson seeks review of an order denying post conviction relief following an evidentiary hearing on four of the claims. We reverse the denial of relief associated with Patterson’s life sentences imposed as a prison releasee reoffender and as a habitual offender. Though the state conceded error in its response below, the order denying relief did not address this claim. We remand for resentencing as a prison releasee reoffender only, consistent with Grant v. State, 770 So.2d 655 (Fla.2000).

REVERSED and REMANDED.

GUNTHER, SHAHOOD and TAYLOR, JJ., concur.


text:
    Gary C. BRESTLE, d/b/a Interconnect Trading Company, and Gary C. Brestle, Individually, Petitioner, v. BLUEWATER TRADEGROUP, INC., a Georgia corporation, Respondent.
    No. 4D03-3863.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Dirán V. Seropian of Caruso & Burlington, P.A., West Palm Beach, and Litow, Cutler & Zabludowski, LLC, Fort Lauder-dale, for petitioner.
    Thomas J. Maccari of Thomas J. Mac-cari, P.A., Boca Raton, for respondent.
   PER CURIAM.

Gary C. Brestle petitions for a writ of certiorari from a discovery order compelling him to answer interrogatories and document requests over his assertion of the Fifth Amendment privilege against self-incrimination. Because the trial court failed to properly address the claims as explained in Magid v. Winter, 654 So.2d 1037, 1039 (Fla. 4th DCA 1995), we grant the writ in part, quash the order to compel, and remand this cause for proceedings in accordance with Magid.

We deny the writ as to the part of the order compelling a response to interrogatory number three which required petitioner to answer whether he had been convicted of prior crimes. The Fifth Amendment privilege protects a person from making statements that might be used “to prove a crime against him.” See id. at 1038-39. It does not prevent the inquiry into prior convictions which might be used for purposes of determining an appropriate sentence.

GUNTHER, WARNER and SHAHOOD, JJ., concur.


text:
    E.I. DU PONT DE NEMOURS AND COMPANY, Petitioner, v. In re 1997 AND 1998 CLAIMS OF ECUADORIAN SHRIMP FARMERS, Respondent.
    No. 4D03-3048.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Jane Kreusler-Walsh, Rebecca Mercier-Vargas of Jane Kreusler-Walsh, P.A., West Palm Beach; Daniel F. Molony of Shook, Hardy & Bacon, L.L.P., Tampa; Thomas M. Sherouse of Shook, Hardy & Bacon, L.L.P., Miami; for petitioner.
    Walter G. Campbell, Jr., Robert McKee, Ivan Cabrera of Krupniek, Campbell, Malone, Roselli, Buser, Slama, Hancock & McKee; Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale; for respondent.
   ON MOTION FOR REHEARING AND REHEARING EN BANC

PER CURIAM.

We deny petitioner’s motion for rehearing and rehearing en banc but issue the following revised opinion in lieu of our slip opinion issued on October 8, 2003:

Although we find the affidavit in support of prohibition signed by petitioner’s in-house counsel, Ms. Kittredge, meets the requirements of Florida Rule of Judicial Administration 2.160(c) in this case, we deny the petition as the motion for disqualification was legally insufficient.

GUNTHER, POLEN and STEVENSON, JJ., concur.

      . Owens-Corning Fiberglas Corp. v. Parsons, 644 So.2d 340 (Fla. 1st DCA 1994).


text:
    Jermaine MASSEY, Petitioner, v. James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Respondent.
    No. 4D03-3072.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.

      Jermaine Massey, South Bay, pro se.
    Beverly Wood Gibson, Assistant General Counsel, Tallahassee, for respondent.
   PER CURIAM.

We grant Massey’s petition for writ of certiorari and quash a circuit court order dismissing his petition for writ of mandamus.

Massey was sentenced to nine years and two months imprisonment. He requested a sixty day gain time credit for completing three vocational courses while imprisoned. The Department of Corrections (DOC) denied his request. Having exhausted his administrative remedies, Massey sought mandamus relief from the circuit court. The court dismissed his petition citing Schmidt v. Crusoe, 28 Fla. L. Weekly S367, — So.2d -, 2003 WL 1987971 (Fla. May 1, 2003).

In Schmidt, the supreme court determined that Schmidt’s mandamus petition, filed in that court, was a collateral criminal proceeding for purposes of determining that he was exempt from the filing fee requirement in his gain time challenge.

The state concedes that the circuit court misapprehended the focus of Schmidt when it concluded that gain time challenges must now be brought by means of a motion for post-conviction relief. In doing so, the state acknowledges the court departed from the essential requirements of law and requests we reverse the portion of the appealed order which dismissed the mandamus petition.

Massey has exhausted his administrative remedies with the DOC. He correctly sought mandamus relief in the circuit court. See Taylor v. State, 780 So.2d 955 (Fla. 4th DCA 2001)(affirming trial court’s denial of post-conviction relief motion filed to challenge DOC’s reduction of his gain time because it had to first be entertained in the DOC; if defendant was not satisfied with the DOC’s ruling, then he could file a petition for writ of mandamus with the appropriate circuit court); see also Bedford v. State, 775 So.2d 402 (Fla. 4th DCA 2000)(holding that a mandamus petition, rather than motion for post-conviction relief, was appropriate remedy to have DOC honor amount of jail credit awarded in each of defendant’s sentences).

We, therefore, quash the order and remand for further proceedings.

STONE, SHAHOOD and HAZOURI, JJ., concur.


text:
    In re Rose M. LAIN.
    No. 2003-OB-2792.
    Supreme Court of Louisiana.
    Nov. 12, 2003.
   ORDER

Treating respondent’s September 22, 2003 correspondence as a motion by respondent seeking to practice law during the pendency of her reinstatement proceeding,

IT IS ORDERED that the motion be and hereby is denied. There is no procedure in Supreme Court Rule XIX permitting a suspended attorney to practice law prior to a determination that the criteria for reinstatement set forth in Supreme Court Rule XIX, § 24 have been satisfied,

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


author: hPER CURIAM.

text:
    In re Claud Edward PHELPS.
    No. 2003-B-2778.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This disciplinary matter arises from a rule to revoke probation filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Claud Edward Phelps, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Respondent was the subject of prior disciplinary proceedings in In re: Phelps, 02-1837 (La.9/30/02), 827 So.2d 1140, which involved multiple instances of neglect of legal matters, failure to expedite litigation, and failure to communicate with clients. Prior to the filing of formal charges, respondent filed a petition for consent discipline proposing that he be suspended from the practice of law for one year and one day, fully deferred, subject to a two-year period of supervised probation with conditions. The ODC concurred in the petition, and the disciplinary board recommended the proposed discipline be accepted. On September 30, 2002, this court accepted the petition for consent discipline and imposed a suspension of one year and one day. The suspension was deferred in its entirety subject to respondent’s completion of a two-year period of probation governed by specified conditions, including the following:

(1) Respondent will respond to all reasonable requests of his probation monitor;
li>(2) Respondent agrees not to violate the Rules of Professional Conduct while on probation;
(3) Respondent agrees that any violation of any terms or conditions set forth shall result in a summary revocation of probation and the immediate imposition of the remaining period of the deferred suspension.

On December 16, 2002, the disciplinary board appointed Baton Rouge attorney Clifton O. Bingham, Jr. as respondent’s probation monitor. By letter dated July 7, 2003, Mr. Bingham notified the ODC that respondent had “failed to maintain a level of participation indicating a willingness to cooperate and comply with his Probation Plan.” Specifically, Mr. Bingham reported that he had met with respondent on only two occasions (January 16, 2003 and April 2, 2003), despite respondent’s agreement to schedule meetings on a monthly basis during the probationary period. Mr. Bing-ham made numerous attempts to telephone respondent concerning the matter, but his calls were not returned. On May 28, 2003, Mr. Bingham sent respondent a certified letter asking for his cooperation, but the letter was returned unclaimed.

DISCIPLINARY PROCEEDINGS

Rule to Revoke Probation

On August 21, 2003, the ODC filed a rule to revoke respondent’s probation. In addition to respondent’s failure to cooperate with his probation monitor, the ODC also premised its rule on respondent’s failure to abstain from violations of the Rules of Professional Conduct while on probation. The ODC prayed for revocation of ^respondent’s probation and the imposition of the previously deferred one year and one day suspension.

Disciplinary Board Recommendation

A hearing was conducted before an adjudicative panel of the disciplinary board on September 25, 2003. The ODC submitted documentary evidence in support of its case, and called Mr. Bingham to testify in person. Respondent appeared and testified on his own behalf. He also called his wife, Covington attorney Jill Leber, to testify in person.

After considering the evidence, the board found respondent in violation of his probation. Without valid reason or excuse, respondent failed to schedule and participate in monthly meetings with his probation monitor. As a matter of law, respondent’s failure to satisfy the conditions of his probation warrants the revocation thereof and his suspension from the practice of law for one year and one day.

Neither respondent nor the ODC filed an objection in this court to the disciplinary board’s recommendation.

DISCUSSION

The record supports the disciplinary board’s conclusion that respondent failed to comply with the condition of his probation requiring him to cooperate with his probation monitor, Cliff Bingham. Respondent signed a formal probation plan in March 2003. As part of the plan, respondent agreed to schedule and participate in monthly meetings with Mr. Bingham. However, only one such meeting took place Rafter the plan was signed. Mr. Bingham subsequently attempted to contact respondent by telephone and in writing, but to no avail.

Under these circumstances, we must conclude that respondent failed to comply with the terms of his probation. Accordingly, we will revoke his probation and make the previously deferred one year and one day suspension executory.

DECREE

For the reasons assigned, respondent’s probation is revoked and the previously deferred one year and one day suspension imposed in In re: Phelps, 02-1837 (La.9/30/02), 827 So.2d 1140, is hereby made executory. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Simultaneously with the filing of the rule to revoke probation, the ODC filed eighteen new counts of formal charges against respondent. These charges allege respondent’s neglect of legal matters, failure to communicate with clients, failure to refund unearned legal fees, and failure to cooperate with the ODC in its investigation.

      . Having found respondent's failure to cooperate with his probation monitor a sufficient ground upon which to recommend the revocation of probation, the board felt the question of whether respondent engaged in additional instances of professional misconduct (as set forth in the newly filed formal charges) is best left to the discretion of the hearing committee scheduled to hear those charges.


text:
    INTERDICTION OF Emily Lori GREENBLATT.
    No. 2003-CC-1889.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   PER CURIAM.

Relators, relatives of an interdicted adult, filed a petition to remove the interdict’s curator pursuant to La. R.S. 9:1025. In connection with that petition, relators filed a motion to recuse the trial judge. The trial judge denied the motion to re-cuse without a hearing, on the grounds relators lacked procedural capacity to seek recusal. The court of appeal denied writs on this issue. This application followed.

A motion to recuse may be brought by a “party.” La.Code Civ. P. art. 154. While the Code of Civil Procedure does not provide a definition of the term “party,” La. Code Civ. P. art. 681, found in the chapter entitled “Parties Plaintiff,” provides “[except as otherwise provided by law, an action can be brought only be a person having a real and actual interest which he asserts.” By operation of La. R.S. 9:1025, relators have a “real and actual interest” in removing the curator. Therefore, for purposes of the petition to remove the curator, relators are parties who may seek to recuse the trial court.

Accordingly, the writ is granted. The judgment of the trial court is vacated and set aside and the case remanded to the trial court for consideration of relators’ motion to recuse on the merits.

TRAYLOR and KNOLL, JJ., would deny the writ.

      . If the trial court finds that the grounds are not valid, the court may deny the motion without referring it to another judge. State v. Williams, 601 So.2d 1374 (La.1992). If the court finds the grounds are valid, it should follow the provisions in La.Code Civ. P. art. 154.


text:
    Robert BODENHEIMER v. NEW ORLEANS PUBLIC BELT and CSX Transportation.
    No. 2003-C-1855.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   PER CURIAM.

Writ granted in part; otherwise denied. All parties hereto agree that prejudgment interest is not available in FELA cases as legal interest may only accrue from the date of judgment. See Monessen Southwestern Ry. Co. v. Morgan, 486 U.S. 330, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988). Accordingly, all prejudgment interest is hereby stricken from the judgment of the trial court. All other rulings of the lower courts remain intact and are hereby amended only as far as provided herein.

CALOGERO, C.J., recused.


text:
    In re James Harvey BROWN, Jr.
    No. 2003-B-2879.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

IT IS ORDERED that the Petition for Consent Discipline be accepted and that James Harvey Brown, Jr., Louisiana Bar Roll number 3563, be suspended from the practice of law in Louisiana for a period of three years.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    Richard L. BAXTER v. John L. SCOTT.
    No. 2003-CC-2013.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   hPER CURIAM.

Following an adverse ruling from the district court on his motion to strike, defendant applied for supervisory relief in the court of appeal. The court of appeal granted the writ and docketed the matter for review. While the case was under advisement, attorneys for plaintiff and defendant filed a “Joint Motion to Dismiss Writ of Certiorari,” in which they represented the parties had “amicably resolved their differences in this case” and desired “that the writ of certiorari previously granted herein be recalled and dismissed as moot.” Without acting on the motion to dismiss, the court of appeal rendered an opinion on the merits. Approximately one week later, the court denied the motion to dismiss as “moot.” Plaintiff applied for rehearing, arguing the court of appeal erred in addressing the merits of the ease in light of the joint motion to dismiss. The court of appeal denied rehearing, finding the joint motion to dismiss did not comply with Rule 2-8.3 of the Uniform Rules of the Courts of Appeal as it was not “supported by appropriate affidavits that the facts alleged are true and correct.” Plaintiff now seeks review of that ruling.

It is well settled that courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. St. Charles Parish School Board v. GAF Corporation, 512 So.2d 1165 (La.1987) (on rehearing). The parties’ joint motion put the court of appeal on notice that the dispute | ¡.between them had been amicably resolved and there was no live controversy for the court of appeal to resolve. While the motion may not have been in full compliance with Rule 2-8.3, the signatures of the parties’ attorneys on the motion indicate they represented the facts contained in the motion were true and correct. See, e.g., La. Code Civ. P. art. 863(B) (signature of counsel constitutes certification that the pleading is “well grounded in fact.”). In any event, as shown by the filings of the parties in this court, there is no question that the underlying dispute has been resolved.

Under these circumstances, we conclude the court of appeal erred in rendering an opinion on a moot controversy. Accordingly, the writ is granted. The judgment of the court of appeal is vacated and set aside and the matter is dismissed as moot.

KIMBALL, J., recused.


text:
    Michael GRANT v. Mayor George GRACE and City Council of St. Gabriel, LA.
    No. 2003-C-2021.
    Supreme Court of Louisiana.
    Nov. 19, 2003.
   In re Grace, George Mayor et al.; St. Gabriel City Council; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. B, No. 57,250; to the Court of Appeal, First Circuit, No. 2002 CA 2098.

Granted.


text:
    STATE of Louisiana v. Kellen PARKER.
    No. 2003-KK-3186.
    Supreme Court of Louisiana.
    Nov. 19, 2003.
   In re Parker, Kellen; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson,. 24th Judicial District Court Div. N, No. 02-4386; to the Court of Appeal, Fifth Circuit, No. 2003-K-1349.

Stay denied; writ denied.


text:
    STATE of Louisiana v. ADVANCED RECYCLING, INC., James G. Trumps, and Robert Parker.
    No. 2002-K-1889.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. A, No. 80,047; to the Court of Appeal, Third Circuit, No. 02-183.

Granted.


text:
    STATE of Louisiana v. Ean Lavar JOHNSON.
    No. 2003-K-1228.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. D, No. 64,581; to the Court of Appeal, Second Circuit, No. 36,-854-KA.

Granted.


text:
    Bugeaud ESCARMENT v. SAV-A-CENTER.
    No. 2003-CC-1803.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Sav-A-Center; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2000-11442; to the Court of Appeal, Fourth Circuit, No. 2003-C-0314.

Granted. The judgment of the trial court denying relator’s motion to set independent medical examination is reversed for the reasons assigned in the dissenting opinion in the court of appeal. Case remanded to the trial court for further proceedings.

KIMBALL, J., would deny the writ.

KNOLL, J., would deny the writ.


text:
    Claude M. SWOPE v. COLUMBIAN CHEMICALS COMPANY.
    No. 2003-CC-2353.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Columbian Chemicals Co.; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 3, No. 02-03693; to the Court of Appeal, Third Circuit, No. WCW 03-00843.

Granted. Claimant cannot be allowed to benefit from a false statement in his claim form which clearly misled defendant not to object to venue. See Butler v. Martineaux, 97-2269 (La.11/26/97), 703 So.2d 575. Accordingly, defendant’s exception of improper venue is granted and the Office of Workers’ Compensation is instructed to transfer the case to a proper venue.


text:
    John Davis COLQUITT v. Bubby DUPLICHAN, Medical Director of Allen Correction Center Warden, Kent O. Andrews.
    No. 2003-CP-2340.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Colquitt, John Davis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Allen, 33th Judicial District Court Div. A, No. C02003344A.

Granted for the sole purpose of transferring the application to the court of appeal for its consideration.


text:
    J.D. OWENS v. Richard STALDER, et al.
    No. 2003-CP-2440.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Owens, J.D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 468,851; to the Court of Appeal, First Circuit, No.

Granted. Case transferred to court of appeal for its consideration.


text:
    George JARRETT v. LLOYD'S OF LONDON, XYZ Insurance Company Capital Area Legal Services Corporation, Incorporated.
    No. 2003-CP-2342.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Jarrett, George; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 368,108; to the Court of Appeal, First Circuit, No. 99-CA-0193.

Not considered; not timely filed.


text:
    STATE of Louisiana ex rel. Darren MALLARD v. Burl CAIN.
    No. 2003-KP-0366.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Mallard, Darren; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 235503-2; to the Court of Appeal, First Circuit, No. 2002 KW 2353.

Denied.


text:
    STATE of Louisiana v. Clarence J. TOLBERT.
    No. 2003-KP-0371.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Tolbert, Clarence J.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 384-580; to the Court of Appeal, Fourth Circuit, No. 2002-K-2343.

Denied.


text:
    STATE of Louisiana v. Jimmy BAZILE.
    No. 2003-KP-0435.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Bazile, Jimmie; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 396-435; to the Court of Appeal, Fourth Circuit, No. 2002-K-2313.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE ex rel. Louis BERNARD v. STATE of Louisiana.
    No. 2003-KP-0481.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re State of Louisiana; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 2-97-423; to the Court of Appeal, First Circuit, No. 2002 KW 1931.

Denied.

TRAYLOR, J., would grant the writ.


text:
    STATE of Louisiana v. Curtis Ray DAVIS.
    No. 2003-KP-0500.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Davis, Curtis Ray; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 151815; to the Court of Appeal, Second Circuit, No. 37207-KW.

Denied.


text:
    STATE of Louisiana v. Netifnet LOWE.
    No. 2003-KP-0533.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Lowe, Netifnet; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 254665; to the Court of Appeal, First Circuit, No. 2002 KW 1706.

Denied.


text:
    STATE of Louisiana v. Curt ALONZO & David Alonzo.
    No. 2003-KP-0586.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Alonzo, Curt ■ et al.; Alonzo, David; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 358-539; to the Court of Appeal, Fourth Circuit, No. 2002-K-2748.

Denied.


text:
    Danatus Norman KING v. PHELPS DUNBAR L.L.P., et al.
    No. 2003-C-1220.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re King, Danatus Norman; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. K, No. 96-03815; to the Court of Appeal, Fourth Circuit, No. 2001-CA-1735.

Denied.


text:
    STATE of Louisiana v. Kevin B. CARTER.
    No. 2003-KO-1285.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Carter, Kevin B.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 413-759; to the Court of Appeal, Fourth Circuit, No. 2002-KA-2438.

Denied.


text:
    STATE of Louisiana v. Gary SHOALS.
    No. 2003-KO-1286.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Shoals, Gary;- — Defendant; Applying for Writ of Certiorari and/or Review, Parish of B. Baton Rouge, 19th Judicial District Court Div. G, No. 01-00^427; to the Court of Appeal, First Circuit, No. 2002 KA 2058.

Denied.


text:
    STATE of Louisiana v. David HONORE.
    No. 2003-KO-1322.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Honoré, David; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. A, No. 231-414; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0360.

Denied.


text:
    STATE of Louisiana v. Carl E. FRAZIER, Jr.
    No. 2003-K-1333.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Frazier, Carl E. Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Franklin, 5th Judicial District Court Div. C, No. 2000-175F; to the Court of Appeal, Second Circuit, No. 37,-010-KA.

Denied.


text:
    Billi'Jo C. GUIDRY v. EAST COAST HOCKEY LEAGUE, INC., et al.
    No. 2003-C-1457.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Bob F. Wright & Entertainment Venture Assoc. L.L.C.; Wright, Bob F. & Entertainment Venture Assoc.; — Defendant/s); Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. E, No. 2002-1403-E; to the Court of Appeal, Third Circuit, No. 02-1254.

Denied.

CALOGERO, C.J., recused.

VICTORY, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Billi'Jo C. GUIDRY v. EAST COAST HOCKEY LEAGUE, INC., et al.
    No. 2003-C-1469.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re East Coast Hockey League Inc. et al.; Adams, Richard; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. E, No. 2002-1408-E; to the Court of Appeal, Third Circuit, No. 02-1254.

Denied.

CALOGERO, C.J., recused.

VICTORY, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Billi'Jo C. GUIDRY v. EAST COAST HOCKEY LEAGUE, INC., et al.
    No. 2003-C-1471.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re De Castro, L. Felippe C.; PCI International Consultants Inc.; De Castro, Louisa White C.;~Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. E, No. 2002-1403; to the Court of Appeal, Third Circuit, No. 02-1254-CA.

Denied.

CALOGERO, C.J., recused.

VICTORY, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    EASTOVER PROPERTY OWNER'S ASSOCIATION, INC. v. Mrs. Charles Cochrane, Wife of/and Mr. Charles COCHRANE.
    No. 2003-C-1604.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Cochrane, Charles Mrs. et al.; Cochrane, Charles Mr.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, First City Court of New Orleans, No. 99-53137; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1502.

Denied.

JOHNSON, J., recused.


text:
    SUCCESSION OF Lloyd Anthony MAQUAR, Jr.
    No. 2003-C-1873.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Maquar, Denise Ott; — Other; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. K, Nos. 02-675, 2001-6967; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0041.

Denied.

CALOGERO, C.J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Robert C. PAULEY v. WAL-MART STORES, INC.
    No. 2003-C-1884.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Wal-Mart Stores Inc.; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation — # 3, No. 01-03183; to the Court of Appeal, Third Circuit, No. 02-1354.

Denied.

VICTORY, J., would grant on attorney’s fees and penalties.

TRAYLOR, J., would grant on attorney’s fees and penalties.

WEIMER, J., would grant on attorney’s fees and penalties.


text:
    Pastor Rick EDMONDS, Chuck Pourciau, Mike Welch & Brenda O'Brock v. CITY OF SHREVEPORT, et al.
    No. 2003-OC-1908.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Muy Alto Corporation; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. A, No. 468314; to the Court of Appeal, Second Circuit, No(s). 37645-CA, 37453-CM, 37467-CW, 37588-CW.

Denied.


text:
    Rick EDMONDS, Mike Welch, Brenda O'Brock, Jeff Luce & Classic, Inc. v. The CITY OF SHREVEPORT, Shreveport Metropolitan Zoning Board of Appeals & Shreveport Metropolitan Planning Commission, et al.
    No. 2003-CC-2017.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re DV-II, Shreveport, LLC a/k/a; Deja Vu; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. A, No. 473,628; to the Court of Appeal, Second Circuit, No(s). 37599-CW, 37612-CW.

Denied.


text:
    Rick EDMONDS, Mike Welch, Brenda O'Brock, Jeff Luce & Classic, Inc. v. The CITY OF SHREVEPORT, Shreveport Metropolitan Zoning Board of Appeals & Shreveport Metropolitan Planning Commission, et al.
    No. 2003-CC-2057.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Shreveport City of; Shreveport Metropolitan Zoning Bd./Appeals; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. K, No. 473,628; to the Court of Appeal, Second Circuit, No(s). 37599-CW, 37612-CW.

Denied.


text:
    Mildred HARRIS v. Steve A. MORRISON, Jr., et al. Mary Walker and Roger Young, et al. v. Steve A. Morrison, Jr. et al. Adrian Landry and Robin Landry v. Steve A. Morris, Jr., et al.
    No. 2003-CC-2138.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Young, Roger; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. B, Nos. 27,476, 27,514, 27,879; to the Court of Appeal, Fifth Circuit, No. 03-C-721.

Denied.

JOHNSON, J., would grant the writ.


text:
    Matthew BERG v. Philip ZUMMO, Lawrence Zummo, John Doel, John Doe 2, John Doe 3, John Doe 4, Assurance Company of America and Fireman's Fund Insurance Company.
    No. 2003-C-2209.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re C. Napco Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. C, No. 94-14906; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0281.

Denied.


text:
    Richarda D. MESH v. Beth LUNDY, et al.
    No. 2003-CC-2259.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Lundy, Beth et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 2002-1584; to the Court of Appeal, Third Circuit, No. CW 03-0333.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Jerry Lane SIMSON, et ux. v. Thomas E. DAVIDSON, et al.
    No. 2003-OC-2270.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Simpson, Jerry L.; Simpson, Pamela R.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Claiborne, 2nd Judicial District Court Div. B, No. 34233; to the Court of Appeal, Second Circuit, No. 37768-CA.

Denied.


text:
    John H. ALPHONSO v. BRIDGE TERMINAL TRANSPORT.
    No. 2003-C-2271.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Bridge Terminal Transport; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 8, No. 00-06968; to the Court of Appeal, Fourth Circuit, No. 2002-CA-2768.

Denied.

TRAYLOR, J., would grant the writ.


text:
    Carrie BADON, et al. v. R.J.R. NABISCO, INC., et al.
    No. 2003-CC-2274.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Badon, Carrie et al.;- — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Cameron, 38th Judicial District Court Div. A, No. 10-13653; to the Court of Appeal, Third Circuit, No. CW 03-00687.

Denied.

CALOGERO, C.J., would grant the writ.


text:
    Shawn Collins HARRISON v. Kathleen Hogan TANNER, et al.
    No. 2003-CC-2299.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Harrison, Shawn Collins; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 01-18070; to the Court of Appeal, Fourth Circuit, No. 2003-C-1122.

Denied.


text:
    Raymond BORNE, Sr., et ux. v. ANCO INSULATIONS, INC., et al.
    No. 2003-CC-2302.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Zurich American Ins. Co. Succ. of; Zurich Ins. Co. U.S. Branch; American Guarantee and Liability Ins. Co.; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. D, No. 27,184; to the Court of Appeal, First Circuit, No. 2003 CW 0264.

Denied.


text:
    STATE of Louisiana v. Glen SEALS.
    No. 2003-KK-2303.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Seals, Glen; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 91^4031; to the Court of Appeal, Fifth Circuit, No. 2003-K-705.

Denied.


text:
    BANKERS TRUST COMPANY OF CALIFORNIA, N.A., et al. v. Darlene COOLEY, et al.
    No. 2003-CC-2306.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
    Reconsideration Denied Jan. 16, 2004.
   In re Bankers Trust Co. of California, N.A. trustee; Manufactured Housing Series 97-2; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 2002-003077; to the Court of Appeal, First Circuit, No. 2003 CW 0878.

Denied.


text:
    Stella LEE v. UNUM LIFE INSURANCE COMPANY OF AMERICA.
    No. 2003-CC-2307.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re UNUM Life Insurance Company of America; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 02-10466; to the Court of Appeal, Fourth Circuit, No. 2003-C-0954.

Denied.


text:
    Sherry WATTERS, et al. v. DEPARTMENT OF SOCIAL SERVICES, et al.
    No. 2003-CC-2313.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Monticello Insurance Company;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, Nos. 01-17775, 01-18355, 02-14043; to the Court of Appeal, Fourth Circuit, No. 2003-C-0993.

Denied.


text:
    Ronald T. SQUYRES v. PROVIDENT AMERICAN LIFE AND HEALTH INSURANCE COMPANY.
    No. 2003-CC-2314.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Squyres, Ronald T.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 491,814; to the Court of Appeal, First Circuit, No. 2003 CW 0972.

Denied.


text:
    Tilden HARRIS v. Anthony MARABELLA.
    No. 2003-CP-2352.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Harris, Tilden; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 489,220; to the Court of Appeal, First Circuit, No. 2992 CW 2443.

Denied. Moot. Court of Appeal has acted.


text:
    Ruby BLAZE, et al. v. Dr. Robert HOPKINS, et al.
    No. 2003-CC-2373.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Hopkins, Robert Dr. et al.; Steiner, Rodney Dr.; Tulane Educational Fund Administrators; University Healthcare System L.C. d/b/a; Tulane University Hospital and Clinic; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, Nos. 97-20150, 97-20154, 97-20155; to the Court of Appeal, Fourth Circuit, No. 2003-C-1182.

Denied.


text:
    Tommy G. MARTIN and Brenda R. Wilson Martin v. John W. BRISTER, Jr.
    No. 2003-C-2374.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Brister, John W. Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Winn, 8th Judicial District Court Div. 0, No. 35,428; to the Court of Appeal, Second Circuit, No. 37,011-CA.

Denied.


text:
    David M. JARROTT, M.D. v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS.
    No. 2003-OC-2375.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Jarrott, David M. M.D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of -Orleans, Civil District Court Div. K, No. 2002-8797; to the Court of Appeal, Fourth Circuit, No. 2002-CA-2321.

Denied.


text:
    VIEUX BIJOU, INC. v. Patrick M. MCCARTHY.
    No. 2003-CC-2382.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re McCarthy, Patrick M.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 01-08202; to the Court of Appeal, Fourth Circuit, No. 2003-C-1155.

Denied.


text:
    Bennie SPRIGGS v. TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC. et al.
    No. 2003-CC-2385.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Transit Management of Southeast Louisiana et al.; Jackson, Veeanice Vera; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. F, No. 00-7496; to the Court of Appeal, Fourth Circuit, No. 2003-C-1087.

Denied.


text:
    Judy Erchul, Wife of/and Joseph W. ERCHUL v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY.
    No. 2003-CC-2388.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re St. Paul Fire et al.; Marine Insurance Company; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 584-946; to the Court of Appeal, Fifth Circuit, No. 03-C-836.

Denied. Adequate remedy on appeal.


text:
    Tony FENNELLY v. Rand RAGUSA, Big Mouth Media, Inc. and Tribe New Orleans d/b/a Tribe Magazine.
    No. 2003-C-2392.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Fennelly, Tony; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. F, No. 96-15325; to the Court of Appeal, Fourth Circuit, No. 2002-CA-2758.

Denied.


text:
    John and Jane DOE, et al. v. DOE CORPORATION, et al.
    No. 2003-CC-2396.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Doe Corporation et al.; Doe Entity; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 99-13971; to the Court of Appeal, Fourth Circuit, No. 2003-C-0952.

Denied.

VICTORY, J., would grant the writ.


text:
    Hilner THOMAS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS and Dixon Correctional Institute.
    No. 2003-C-2397.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Thomas, Hilner; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 454,619; to the Court of Appeal, First Circuit, No. 2002 CA 0897.

Denied.


text:
    Sandra LUTHER v. Michael TURNER.
    No. 2003-CC-2410.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Turner, Michael; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. G, No. 202,809; to the Court of Appeal, Third Circuit, No. CW 03-00840.

Denied.


text:
    John MOSLEY, Sr. v. PENNZOIL QUAKER STATE (Formerly Known as Westland Oil Company).
    No. 2003-C-2412.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Mosley, John Sr.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers Compensation Dist. 1-W, No. 97-02069; to the Court of Appeal, Second Circuit, No. 37,199-WCA.

Denied.

CALOGERO, C.J., would grant the writ.


text:
    Oscar Lee PERRY, Sr., et al. v. AUTOMOTIVE CASUALTY INSURANCE COMPANY, et al.
    No. 2003-CC-2419.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Archary, Frank; Durio, James;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of East Fe-liciana, 20th Judicial District Court Div. A, No. 30,887; to the Court of Appeal, First Circuit, No. 2003-CW 0905.

Denied.


text:
    RELIABLE AMUSEMENT COMPANY, INC. v. Joseph POCHE, Jr. and Bayou Gaming, Inc.
    No. 2003-C-2426.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Bayou Gaming Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 46069; to the Court of Appeal, Fifth Circuit, No. 03-CA-301.

Denied.

KIMBALL, J., recused.


text:
    Annette JACKSON v. BEST CHEVROLET, INC.
    No. 2003-CC-2427.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Jackson, Annette; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. H, Nos. 2001-003143, 2001-003741; to the Court of Appeal, First Circuit, No. 2003 CW 0900.

Denied.


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, et al. v. GENERAL MOTORS CORPORATION, et al.
    No. 2003-CC-2428.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re General Motors Corporation et al.; GMAC Service Agreement Corporation;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2002-13439; to the Court of Appeal, First Circuit, No. 2003 CA 0967.

Denied.


text:
    STATE of Louisiana v. Muncy MCALISTER.
    No. 2003-KK-2429.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 9-02-567; to the Court of Appeal, First Circuit, No. 2003 KW 0876.

Denied.

TRAYLOR, J., would grant the writ.

KNOLL, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Mr. and Mrs. Warren K. WHEAT, Individually and on Behalf of Their Deceased Daughter, Kimberly Wheat v. The CLINIC OF EAR, NOSE AND THROAT DISEASES and Head and Neck Surgery, et al.
    No. 2003-CC-2430.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Wheat, Warren K. et al. Mr.; Wheat, Warren K. Mrs.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 437671; to the Court of Appeal, First Circuit, No. 2003-CW-1183.

Denied.


text:
    Jimmy OWENS v. Robert C. BRANDT.
    No. 2003-CP-2438.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Owens, Jimmy D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 105,241; to the Court of Appeal, First Circuit, No. 02-CA-2724.

Denied.


text:
    Theresa BROWN v. F.L. WILLIAMS and Barbara Williams.
    No. 2003-C-2445.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Williams, F.L.; Williams, Barbara; Certain Underwriters at Lloyds, London; Specialty Risk Associates; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 452068; to the Court of Appeal, Second Circuit, No. 36,863-CA.

Denied.

TRAYLOR, J., recused.

VICTORY, J., would grant the writ.


text:
    David SYLVESTER v. Contrease WHITE, et al.
    No. 2003-CP-2446.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Sylvester, David; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 505,216; to the Court of Appeal, First Circuit, No. 2003 CW 1134.

Denied.


text:
    Elizabeth DARBY v. BROOKSHIRE GROCERY COMPANY, d/b/a Super 1 Foods.
    No. 2003-C-2461.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Brookshire Grocery Co., d/b/a; Super 1 Foods;' — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 459,394; to the Court of Appeal, Second Circuit, No. 37,460-CA.

Denied.


text:
    Mauricio J. VILLA v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, et al.
    No. 2003-CC-2465.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Fidelity & Casualty Company/ New York; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2001-938; to the Court of Appeal, Fourth Circuit, No(s). 2003-C-0932, 2003-C-0980.

Denied.


text:
    Julian E. LONG v. Linda Long MINTON.
    No. 2003-CC-2473.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Minton, Linda Long; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 204,289; to the Court of Appeal, Third Circuit, No. CW 03-00919.

Denied.


text:
    Mauricio J. VILLA v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, et al.
    No. 2003-CC-2481.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Villa, Mauricio J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2001-983; to the Court of Appeal, Fourth Circuit, No(s). 2003-C-0932, 2003-C-0980.

Denied.


text:
    RATCLIFF CONSTRUCTION COMPANY, L.L.C. v. STATE of Louisiana through the DIVISION OF ADMINISTRATION, Office of Facility Planning and Control.
    No. 2003-CC-2355.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Ratcliff Construction Company L.L.C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 507,026; to the Court of Appeal, First Circuit, No. 2003 CW 1256.

Denied.


text:
    Mary Eleanor Dutton URSO, Tom W. Dutton, Jr., the John N. Dutton Trust and Truly C. Dutton v. Troy Roberson LEE and the Heirs of Sidney and Hillery Roberson.
    No. 2003-C-2361.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   In re Urso, Mary Eleanor Dutton et al; Dutton, Tom W. Jr.; John N. Dutton Trust; Dutton, Truly C.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. E, No. 65,670; to the Court of Appeal, First Circuit, No. 2002 CA 1782.

Denied.

JOHNSON, J., would grant the writ.