author: HAWKES, J.

text:
    FLORIDA DEPARTMENT OF EDUCATION, and Jim Horne, in his official capacity as Commissioner of Education, Appellant, v. Steven O. COOPER, Appellee.
    No. 1D02-4040.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2003.

      Charlie Crist, Attorney General, Daniel J. Woodring, General Counsel Florida Department of Education, Margaret O’Sullivan Parker, Assistant General Counsel Florida Department of Education, Tallahassee, for Appellant.
    Mark Herdman, Herdman & Sakellar-ides, P.A., Palm Harbor, for Appellee.
   HAWKES, J.

We are asked to decide whether Florida Comprehensive Achievement Test (FCAT) test instruments, consisting of the test booklet and questions, as distinguished from the test score, are “student records,” as that term is defined by Florida law. We find they are not and reverse.

The trial court’s final judgment required Appellant, the Department of Education (DOE) to provide Appellee, Steven Cooper, the legal guardian of a student who took and failed the FCAT, with “meaningful access” to the FCAT test instrument. The trial court based its ruling on a finding that the FCAT test instrument should be included in the definition of student record to achieve the purposes of the Student Records Law. In so doing, the trial court erred.

Four canons of statutory interpretation are relevant in resolving this case. First, the court must look to the plain language of the statute. See St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071 (Fla.1982). Where the language is clear and unambiguous, it must be given its plain and ordinary meaning. See Mayo Clinic Jacksonville v. Dep’t of Prof'l Regulation, Bd. of Medicine, 625 So.2d 918 (Fla. 1st DCA 1993); Smith v. Crawford, 645 So.2d 513 (Fla. 1st DCA 1994) (quoting State v. Egan, 287 So.2d 1, 4 (Fla.1973) (noting [“e]ven where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.”)). Additionally, courts should not construe a statute so as to render any term meaningless. See Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1273 (Fla.2000). Moreover, statutes which relate to the same subject must be read in pari materia and construed in such a manner as to give meaning and effect to each part. See id. at 1286. Finally, if the statutory language is ambiguous, the interpretation given the statute by the agency charged with its enforcement is entitled to great deference and should not be overturned unless it is clearly erroneous. See Mayo Clinic Jacksonville, 625 So.2d at 919; Dep’t of Ins. & Treasurer v. Bankers Ins. Co., 694 So.2d 70 (Fla. 1st DCA 1997). If the agency’s interpretation is within the range of possible and reasonable interpretations, it is not clearly erroneous and should be affirmed. See Sanfiel v. Dep’t of Health, 749 So.2d 525 (Fla. 5th DCA 1999); Natelson v. Dep’t of Ins., 454 So.2d 31 (Fla. 1st DCA 1984). Here, the trial court’s ruling violated each of these canons.

Section 228.093(2)(e), Florida Statutes (2001) (the student record provision), addressing “tests,” includes standardized achievement test scores, intelligence test scores, aptitude test scores, and psychological test scores, but conspicuously makes no mention of the test instruments themselves. See id. Thus, the plain language of the statute, when given its ordinary meaning, provides that standardized test scores are student records. See id. The trial court’s interpretation renders the term “score” meaningless.

The trial court’s interpretation also creates conflict with other statutory provisions in the School Code that relate to the same subject. The student record provision requires DOE to release records to the student, parent or guardian upon request, and without limitation. Conversely, the confidentiality provision requires DOE to keep all test instruments confidential, and the test security provision imposes criminal sanctions on anyone who releases confidential test instruments to examinees prior to testing.

The trial court attempted to harmonize these provisions by limiting the access provided by the student record provision, and permitting what it labeled “meaningful access.” The “meaningful access” granted by the trial court permitted supervised review of the FCAT test instrument, limited the time the test instrument would be available, and prohibited the test instrument from being copied. However, the student record provision does not authorize any limitation on access to student records. See § 228.093(3)(a)3., Fla. Stat. (2001). The “meaningful access” authorized by the trial court prevents the student record, confidentiality and test security provisions from being given full effect when read in pari materia, and contravenes the legislature’s intent to provide liberal access to student records.

Moreover, if the trial court found the statutory language ambiguous, it was required to give deference to DOE’s interpretation of the statute, because DOE is the agency charged with enforcing the School Code. DOE interpreted the student record provision to include only test scores as student records, and to exclude test instruments. DOE’s interpretation gives meaning to the term “scores,” and permits the student record, confidentiality and the test security provisions to be given full effect when read in pari materia. Because DOE’s interpretation is within the range of possible and reasonable interpretations, the trial court erred by rejecting that interpretation.

Courts are not free to choose an interpretation they conclude is the best public policy, but must defer to the other branches of government to make those choices. See Sebring Airport Auth. v. McIntyre, 783 So.2d 238, 244 (Fla.2001); Shands Teaching Hosp. v. Smith, 480 So.2d 1366, 1382 (Fla. 1st DCA 1985).

The final judgment of the trial court is REVERSED.

WOLF, CJ., and BROWNING, J., CONCUR.

      . Section 232.248, Florida Statutes (2001).

      . Section 228.301, Florida Statutes (2001).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David GOLDFARB, physician assistant, Petitioner, v. Monica URCIUOLI, as Personal Representative of the Estate of Laurie Yelvington, deceased, Respondent.
    No. 1D03-2463.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2003.

      John R. Saalfield, Esquire and Mandy J. Locke, Esquire, Saalfield, Coulson, Shad & Jay, P. A., Jacksonville, for Appellant.
    William G. Osborne, Esquire, Orlando; Paul A. Dietrick, Esquire, Dietrick, Evans Scholz & Williams, L.L. C., Atlanta, GA, for Appellee.
   PER CURIAM.

David Goldfarb, Petitioner/Defendant, asserts that the trial court departed from the essential requirements of law in denying his motion to dismiss Respondent/Plaintiff Monica Urciuoli’s complaint because she failed to comply with the pretrial notice requirements of a medical malpractice suit. The plaintiff, as personal representative of the estate of Laurie Yelvington, served the required presuit notice of intent to initiate litigation on the defendant’s former employer. The defendant, a physicians’ assistant, argues that notice to his former employer was insufficient to serve notice to him. We agree. Accordingly, because the trial court departed from the essential requirements of the law, we grant the defendant’s petition for writ of certiorari and quash the trial court’s order.

I.

On a writ of certiorari, this Court reviews the action of the lower court to determine whether the lower court departed from the essential requirements of the law. See Combs v. State, 486 So.2d 93, 95-96 (Fla.1983). Certiorari review is proper to review the denial of a motion to dismiss when chapter 766 presuit requirements are at issue. See Okaloosa County v. Custer, 697 So.2d 1297 (Fla. 1st DCA 1997). Review is proper because to allow a party to fully litigate a suit where the proper pre-suit requirements were not met would frustrate the purpose of the Medical Malpractice Reform Act. See Sova Drugs, Inc. v. Barnes, 661 So.2d 393, 394 (Fla. 5th DCA 1995).

II.

Section 766.106(2), Florida Statutes (2000), of the Medical Malpractice Reform Act requires a claimant to “notify each prospective defendant ... of intent to initiate litigation for medical malpractice.” The prospective defendants that are entitled to notice under this section are the health care providers listed in section 768.50(2)(b), Florida Statutes. See Weinstock v. Groth, 629 So.2d 835, 836-37 (Fla.1993); Sova Drugs, 661 So.2d at 394. A physicians’ assistant certified under chapter 458 is listed in section 768.50(2)(b). See Sova Drugs, 661 So.2d at 394. Therefore, as a certified physicians’ assistant, the defendant was entitled to presuit notice.

The “provisions of the Medical Malpractice Reform Act must be met in order to maintain an action against a health care provider.” Weinstock, 629 So.2d at 836. Accordingly, if the required presuit notice is not given to a health care provider, the complaint is properly dismissed. Id.; Puentes v. Tenet Hialeah Healthsystem, 843 So.2d 356, 358 (Fla. 3d DCA 2003)(af-firming trial court’s dismissal of medical malpractice claims against the hospital due to failure to comply with statutory notice requirements).

III.

It is undisputed that at the time of the alleged malpractice, the defendant was employed by the Yeargin Pulmonary Clinic, but that at the time the notice of intent to initiate litigation was mailed to the clinic, he was no longer employed by the clinic. A notice to initiate litigation was not mailed to the defendant prior to the filing of the complaint.

Florida Rule of Civil Procedure 1.650(b)(1) states that the notice of intent to initiate a medical negligence suit “received by any prospective defendant [operates] as notice to the person and any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice.” Because the defendant was no longer in a legal relationship to the clinic, the notice received by the clinic did not operate as notice to the defendant.

The Plaintiff argues that the trial court did not depart from the essential requirements of the law because the court’s decision was in accord with Kukral v. Mekras, 679 So.2d 278 (Fla.1996), and Moss v. Stadlan, 789 So.2d 1069 (Fla. 4th DCA 2001). These cases are distinguishable from the instant case because they do not address notice to a former employee.

Therefore, we grant the Petitioner/Defendant’s writ of certiorari, quash the trial court’s order, and remand with directions to grant the motion to dismiss.

WOLF, C.J., LEWIS and POLSTON, JJ., concur.

      . "Section 768.50(2)(b) was repealed except to the extent that it is incorporated by reference into section 766.102(1).” Weinstock, 629 So.2d at 837 n. 1.


text:
    Cary Dwayne LINDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2280.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, for Appellee.
   PER CURIAM.

Appellant seeks review of the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion alleged ineffectiveness of trial counsel grounded upon allegations of failure to subpoena material witnesses and documents to mitigate the alleged violation of probation. Appellant presented a facially sufficient claim for relief pursuant to Rule 3.850, alleging how his counsel’s performance was deficient and how such conduct prejudiced the outcome of the proceedings. See Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Documents attached to the order summarily denying relief do not conclusively demonstrate that appellant is entitled to no relief. Accordingly, we reverse the summary denial, and remand. On remand, if the trial court again concludes that appellant is entitled to no relief, it shall attach portions of the record conclusively so demonstrating. Otherwise, it shall hold an evidentiary hearing.

REVERSED and REMANDED, with directions.

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


text:
    PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellant, v. Julie GLASS and Tommie Glass, wife and husband, Appellees.
    No. 1D03-3901.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2003.
    Mark J. Upton, of Daniell, Upton, Perry and Morris, P.C., Daphne, Alabama, for Appellant.
    Timothy M. O’Brien, of Levin, Papanto-nio, Thomas, Mitchell, Echsner & Proctor, Pensacola, for Appellees.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order dated September 17, 2008, we dismiss this appeal as premature. The appellant’s motion to relinquish jurisdiction, filed on September 29, 2003, is denied. See Nourachi v. South Beaches Professional Park Owners’ Ass’n, Inc., 841 So.2d 618 (Fla. 1st DCA 2003).

WOLF, C.J., POLSTON and LEWIS, JJ., concur.


text:
    CLARENDON NATIONAL INSURANCE COMPANY, Appellant, v. Bob STUARD, Appellee.
    No. 1D03-3432.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2003.
    Susan A. Woolf of Shell, Fleming, Davis & Menge, Pensacola, for appellant.
    Michael J. Pitts, Pensacola, for appellee.
   PER CURIAM.

DISMISSED. Morand v. Stoneburner, 516 So.2d 270 (Fla. 5th DCA 1987); Ben ton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995).

ALLEN, DAVIS and BENTON, JJ., concur.


author: KAHN, J.

text:
    SAI INSURANCE AGENCY, INC., a Florida corporation, d/b/a Southco, Insurance Services, Appellant, v. APPLIED SYSTEMS, INC., Appellee.
    No. 1D03-102C.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2003.
    Steven W. Bowden of Steven W. Bow-den & Associates, P.A., Pensacola, for Appellant.
    Thomas J. Gilliam, Jr. of Shell, Fleming, Davis & Menge, P.A., Pensacola, for Ap-pellee.
   KAHN, J.

May a trial court enforce a forum selection clause entered into between two parties to a contract when the effect of such clause is to require litigation of a claim brought under the Florida Deceptive and Unfair Trade Practices Act (DUTPA) in another state? In this case, the trial court enforced such a forum selection clause and dismissed the Florida action based upon the parties’ agreement that Illinois would be the proper venue for any action. We affirm.

Appellant SAI Insurance Agency, Inc. (SAI) operates its commercial insurance business out of a principal office located in Crestview, Okaloosa County, Florida. Ap-pellee Applied Systems, Inc. (Applied) does business in Florida, and maintains its principal office in Illinois. Applied offers software systems that it represents are useful for support services in companies such as SAL In this case, SAI bought from Applied a software system for the purpose of calculating and tracking insurance premiums. Dissatisfied with the operation of the system, SAI filed a one-count suit in the circuit court for Okaloosa County, alleging violations of the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes. In reliance upon a clause in the Agreement for Purchase and Sale entered into between SAI and Applied, and attached to SAI’s DUT-PA complaint, Applied moved to dismiss the action on the ground of improper venue. The language relied upon by Applied appears in paragraph 12 of the Agreement for Purchase and Sale:

This Agreement is accepted at Applied Systems’ home office and shall be governed by, and interpreted in accordance with, the laws of the State of Illinois. The parties consent to the sole and exclusive jurisdiction and venue of the state and federal courts of the State of Illinois for any action or claim between the parties.

As noted, the sole claim brought by SAI is based upon DUTPA. The sole remedy claimed by SAI is money damages, including costs, attorneys’ fees, and interest.

SAI argues that Florida’s public policy requires that any action brought under the Florida DUTPA be heard in a Florida court. According to SAI’s argument, the right of a Florida citizen to litigate such a claim in a Florida court cannot be abrogated by a forum selection clause in a contract. In support of its argument, SAI relies upon Management Computer Controls, Inc. v. Charles Perry Construction, Inc., 748 So.2d 627 (Fla. 1st DCA 1999). SAI characterizes Management Computer as holding that mandatory venue clauses in contracts cannot be used as a defense to claims under DUTPA, because an unfair trade claim is an independent statutory action that does not arise out of the contract between the parties, nor does it exist solely for the benefit of the parties to the contract.

Applied responds that SAI’s position would create a per se rule against the enforcement of forum selection clauses with respect to DUTPA claims. Applied also argues that Florida DUTPA claims may be litigated before, and interpreted by, courts outside the state of Florida. Finally, Applied points to the contract, and argues that the forum selection clause, which appellant has not sought to invalidate, applies to any action or claim between these parties and not just those arising from the Agreement.

In Management Computer, the plaintiff, Charles Perry, entered two contracts with Management Computer Controls to buy software for use in its Alachua County business. Management Computer was a Tennessee corporation. The contract contained the following governing law/venue provision:

1. GOVERNING LAW. Agreement is to be interpreted and construed according to the laws of the State of Tennessee. Any action, either by you or MC 2, arising out of this Agreement shall be initiated and prosecuted in the Court of Shelby County, Tennessee, and nowhere else; both you and MC 2 do hereby waive the right to change venue.

Mgmt. Computer, 748 So.2d at 629. Perry filed suit in Alachua County seeking damages in four counts: breach of contract, negligent misrepresentation, breach of implied warranty of fitness, and violation of the Florida DUTPA. Id. at 629-30. Relying upon the venue and choice of law provision in the contract, Management Computer moved to dismiss, claiming the action would be proper only in Shelby County, Tennessee. This court reviewed the question, which it characterized as “interpreting a contract,” under the de novo standard of review. Id. at 630. Analyzing the question, this court stated, “[wjhether a venue clause is binding on the parties depends on its language.” Id. at 631. As to the first three claims, this court con-eluded that each arose out of the contract, and thus would be governed by the parties’ agreement concerning venue. Id. at 632. Turning to the DUTPA claim, however, this court concluded that it did not arise out of the contract and use of the venue clause as a defense to the statutory claim in that case would undermine the effectiveness of the statute. Id. at 682-33.

Applied does not dispute the correctness of Management Computer, but argues that the case does not establish, as a matter of Florida public policy, that a venue clause in a contract may never be enforced in the face of a claim under DUTPA. According to Applied, the Third District has recognized as much by its decision in World Vacation Travel, S.A., de C.V. v. Brooker, 799 So.2d 410 (Fla. 3d DCA 2001). The Brooker court found that enforcement of a forum selection clause in a contract for purchase of timeshare services in Mexico did not violate Florida’s public policy. Id. at 412. The forum selection clause in Brooker applied to “any controversy or dispute in the interpretation of this agreement. ...” Id. at 411. The Third District reversed a circuit court finding that “enforcement of the forum selection clause as to any of the Brookers’ claims would be violative of Florida public policy.” Id. at 412. The Third District distinguished Management Computer because in that case the court concluded that the unfair trade claim “was severable from the other claims that had been brought, and did not arise solely out of the contract....” Id.

Applied also points out that the Florida Legislature has, in the case of certain contracts involving improvement of real property, declared that forum selection clauses are void as a matter of public policy. See § 47.025, Fla. Stat. (1999). Applied reasons that because the Legislature has not declared such forum selection clauses void in DUTPA claims, a court should not create a per se rule.

We cannot avoid noting, as the trial court undoubtedly did, that the forum selection clause in the present case is broader than the clause involved in Management Computer. We have been directed to no case law to support the proposition that the mere presence of a claim of statutory fraud in a complaint will suffice to invalidate an otherwise valid forum selection clause. Of note here, SAI has not, in its complaint, sought to abrogate the contract, but merely sought to recover damages. ‘When a party seeks to void a forum selection clause on the basis of fraud, it must be demonstrated that the clause itself is the product of fraud.... Absent proof that the forum selection clause is the product of fraud the parties should litigate all claims, including fraud claims, in the agreed on forum.” Holder v. Burger King Corp., 576 So.2d 973, 974 (Fla. 2d DCA 1991). Here, SAI does not directly complain that the forum clause itself was secured by fraud, nor does it seek to avoid the clause, other than by arguing that the type of statutory claim involved here is never subject to a forum selection clause. We find this claim unsupported in Florida law.

As Applied points out, the choice of law provision in the agreement provides only that the agreement shall be governed by and interpreted in accordance with the laws of Illinois. Applied makes no claim that the substantive law of Illinois will govern all disputes between the parties. Instead, Applied readily notes that the Florida statutory claim may well be governed by Florida law despite the forum. See, e.g., Petitt v. Celebrity Cruises, Inc., 153 F.Supp.2d 240 (S.D.N.Y.2001); Golden Needles Knitting & Glove Co. v. Dynamic Mktg. Enters., 766 F.Supp. 421 (W.D.N.C.1991).

We do not accept appellant’s argument that under Management Computer, Florida observes a per se rule against enforcing a forum selection clause as to a DUTPA claim. In Management Computer, the clause in question clearly was limited to claims “arising out of this agreement _” 748 So.2d at 629. Similarly, in Contractor’s Management Systems of NH, Inc. v. Aeree Air Conditioning, Inc., another case strongly relied upon by SAI, the clause, by its terms applied “only to disputes concerning the agreement.” 799 So.2d 320, 321 (Fla. 2d DCA 2001). In Management Computer, this court carefully chose language to indicate that it was construing a contractual provision. This is demonstrated by the court’s application of the de novo standard of review and by the court’s acknowledgment that the binding effect of a venue clause “depends on its language.” Mgmt. Computer, 743 So.2d at 630-31.

Without dispute, the present choice of law and venue clause is far broader than that involved in the cases SAI relies upon. The parties here agreed to the Illinois forum “for any action or claim between the parties.” Although perhaps SAI could have sought to invalidate the entire agreement through its lawsuit, it has not chosen to do so. Instead, SAI essentially brought an action for damages under the Florida statute. We decline to construct a rule of public policy that would completely abrogate language selected by the parties to a contract, particularly in an action where neither of the parties has sought to avoid the language of the contract.

AFFIRMED.

WEBSTER and POLSTON, JJ., concur.


text:
    Robert TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-493.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and RAMIREZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Robert Taylor appeals his conviction of first degree petit theft. Based on the appellee State of Florida’s confession of error filed in this case, as well as our own independent review of the record, this cause is remanded with directions that the trial court reduce Taylor’s conviction from first degree petit theft to second degree petit theft.

Reversed and remanded.


text:
    Orestes REYES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1048.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Orestes Reyes, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   ON MOTION FOR CERTIFICATION

PER CURIAM.

The defendant challenges the three-year mandatory minimum sentence imposed as illegal. The three-year mandatory minimum sentence was added to the Criminal Code by Section 9 of Chapter 99-188, Laws of Florida. The defendant asserts that Chapter 99-188 violates the single subject rule and is unconstitutional. This Court has previously held that Chapter 99-188 does not violate the single subject requirement of the Florida Constitution. State v. Franklin, 836 So.2d 1112, 1113-14 (Fla. 3d DCA 2003) (en banc). As we did in that case, we certify direct conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).

Affirmed; direct conflict certified.


text:
    Carlos M. PAREDES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1610.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Bennett H. Brummer, Public Defender, and Gonzalo Alberto Gayoso, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and FLETCHER, JJ.
   ON MOTION FOR CERTIFICATION AND/OR CLARIFICATION

PER CURIAM.

Carlos Paredes appeals from an Order denying his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We withdraw our previously issued Opinion and substitute the following, affirming and certifying direct conflict.

Defendant/appellant Paredes was found guilty after jury trial of trafficking in cocaine in an amount greater than 25 grams but less than 200 grams in violation of subparagraph 893.135(l)(b) 1(a), Florida Statutes (1999). The trial court sentenced Paredes to four years in state prison with a three-year mandatory minimum sentence.

The defendant challenges the three-year mandatory minimum sentence imposed as illegal. The three-year mandatory minimum sentence was added to the Criminal Code by Section 9 of Chapter 99-188, Laws of Florida. The defendant asserts that Chapter 99-188 violates the single subject rule and is unconstitutional. This Court has previously held that Chapter 99-188 does not violate the single subject requirement of the Florida Constitution. State v. Franklin, 886 So.2d 1112, 1113-14 (Fla. 3d DCA 2003)(en banc). As we did in that case, we certify direct conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).

Affirmed; direct conflict certified.


text:
    Nancy Davis JUDSON v. Hall DAVIS, IV.
    No. 2003-CC-2771.
    Supreme Court of Louisiana.
    Oct. 15, 2003.
   In re Judson, Nancy Davis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court, Div. B, No. 32,738; to the Court of Appeal, First Circuit, No. 2003 CW 1811.

ORDER

IT IS ORDERED that the application filed by relator be returned to her. See Supreme Court Rule VII, § 7.

IT IS FURTHER ORDERED that a copy of this order be sent to the Office of Disciplinary Counsel.

FOR THE COURT:

/s/ Chet D. Traylor

Justice, Supreme Court of Louisiana


author: [,PER CURIAM.

text:
    In re Kerry E. SHIELDS.
    No. 2003-B-2612.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

[,PER CURIAM.

This matter arises from a petition for consent discipline filed by respondent, Kerry E. Shields, a disbarred attorney. For his misconduct, respondent proposed that he be adjudged guilty of additional violations warranting disbarment which will be added to' his record and considered at such time as he applies for readmission from his prior disbarment. The Office of Disciplinary Counsel (“ODC”) concurred in respondent’s petition, and the disciplinary board recommended the proposed discipline be accepted.

PRIOR DISCIPLINARY HISTORY

Respondent was admitted to the practice of law in Louisiana in 1976. In July 1998, the ODC received a complaint alleging that respondent had commingled and converted client funds. After an investigation, respondent and the ODC filed a joint petition for interim suspension in this court. On September 16, 1998, we placed respondent on interim suspension and ordered that disciplinary proceedings be instituted. In re: Shields, 98-2874 (La.9/16/98), 718 So.2d 403.

' Thereafter, the parties filed a joint petition for consent disbarment, in which respondent acknowledged that he commingled and converted $126,000 in settlement funds belonging to two minor clients. In March 1999, we accepted the petition for consent discipline and ordered that respondent be disbarred. In re: Shields, 99-0439 2(La.8/19/99), 731 So.2d 223 (“Shields I ”). We also ordered respondent to pay restitution to his former clients in the amount of $126,000 plus legal interest.

UNDERLYING FACTS

In 1996, Alman Ledet, Jr. retained respondent to represent him in a personal injury matter. Respondent settled the claim in 1997 and withheld funds from the settlement proceeds to pay Mr. Ledet’s medical expenses. However, respondent failed to disburse $4,800 of these funds to the third-party medical providers, and instead commingled and converted the funds to his own use.

DISCIPLINARY PROCEEDINGS

In 1999, Mr. Ledet filed a complaint against respondent with the ODC. On November 5, 2001, the ODC filed one count of formal charges against respondent, alleging his conduct in the Ledet matter violated Rule 1.15 (safekeeping property of clients or third persons) of the Louisiana Rules of Professional Conduct. Respondent answered the formal charges and admitted he failed to pay Mr. Ledet’s medical providers. Respondent also expressed his willingness to make full restitution to Mr. Ledet after he completed the payment of restitution in connection with Shields I.

After the matter was set for a formal hearing on the merits, the ODC filed a pre-hearing memorandum in which it acknowledged that respondent’s misconduct in the Ledet matter occurred in the same time frame as the misconduct for which respondent was disbarred in Shields I. Thereafter, respondent filed a petition for consent discipline, proposing that he be adjudged guilty of additional violations warranting disbarment which will be added to his record for consideration in the event he applies | -¡for readmission from his prior disbarment. The ODC concurred in respondent’s petition for consent discipline.

Disciplinary Board Recommendation

The disciplinary board found that respondent violated duties owed to his client, Mr. Ledet. The board observed that although the record contains little information concerning respondent’s state of mind, his conduct appears to have been knowing, if not intentional. The harm to Mr. Ledet was also not addressed in the petition for consent discipline, but at the very least, respondent put his client in jeopardy of having to pay the medical providers out of other funds and deprived the medical providers of the timely use of their money. Relying on the ABA’s Standards for Imposing Lawyer Sanctions and Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), the board determined the baseline sanction for this misconduct is disbarment. However, recognizing that the conduct at issue occurred during the same time frame as the misconduct for which respondent was disbarred in 1999, the board recommended respondent be adjudged to have committed an additional violation of the Rules of Professional Conduct, and that this violation be added to his record and considered at such time as he may seek readmission to the practice of law. The board further recommended respondent be ordered to pay restitution to Mr. Ledet in the amount of $4,800 plus legal interest, and that he be assessed with all costs of these proceedings.

DISCUSSION

Although this matter arises from a petition for consent discipline, Supreme Court Rule XIX, § 20(B) provides that the extent of discipline to be imposed is subject 14to review. In determining an appropriate sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent has admitted that he commingled and converted client funds. As the disciplinary board correctly noted, this misconduct occurred in the same time frame as the misconduct forming the basis of respondent’s earlier disbarment. In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), we observed that when the underlying conduct occurs within the same period as the misconduct forming the basis of a previous disbarment, the discipline imposed should be determined as if both proceedings were before the court simultaneously. Applying this procedure in Chatelain, we declined to extend the minimum period for readmission. Instead, we adjudged the respondent guilty of additional violations warranting disbarment which were added to his record for consideration in the event he applied for readmission after becoming eligible to do so. See also In re: Patrick, 01-1419 (La.3/15/02), 815 So.2d 804; In re: Gros, 98-0772 (La.3/15/02), 815 So.2d 799; In re: Parker, 00-3532 (La.3/15/02), 815 So.2d 794.

In determining an appropriate sanction in the instant case, we believe the approach of Chatelain is instructive. Accordingly, our determination of a sanction will be based upon the appropriate sanction we would have imposed if these charges had been before the court at the same time as the charges in respondent’s previous disciplinary proceeding.

|sHad the instant charges been filed simultaneously with those charges forming the basis of respondent’s earlier disbarment, they would have only reinforced our view that respondent lacks the moral fitness to practice law and must be disbarred, both as a sanction for his misconduct and to protect the public. Therefore, as in Chatelain, we will adjudge respondent guilty of additional violations warranting disbarment, to be considered in the event he makes a future application for readmission.

DECREE

Upon review of the findings and recommendation of the disciplinary board, and considering the record filed herein, it is ordered that Kerry Eugene Shields be adjudged guilty of additional violations which warrant disbarment and which may be considered in the event he applies for readmission from his disbarment in In re: Shields, 99-0439 (La.3/19/99), 731 So.2d 223, after becoming eligible to do so. Respondent is ordered to pay restitution to Alman Ledet, Jr. in the amount of $4,800 plus legal interest. 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.


author: J^PER CURIAM.

text:
    Elfredroe LOVE v. AAA TEMPORARIES, INC., et al.
    No. 2003-C-1460.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
    Rehearing Denied Dec. 12, 2003.
   J^PER CURIAM.

WRIT GRANTED; TRIAL COURT JUDGMENT REINSTATED. We find the trial court did not abuse its discretion in refusing defendant’s request to supplement the record and to re-determine the issue of insurance coverage. This case had its genesis in 1991 and has been pending since that time. Despite numerous discovery requests from the plaintiff beginning in 1998 about the existence of any Longshore and Harbor Worker’s Compensation policy and interrogatories relative to any change documents which would have added Louisiana to any such policy, the trial court noted that it was not until this case was on appeal, almost nine years post-accident, when the defendant “discovered” information pertinent to this matter. As observed by the trial court, even when the plaintiff moved for partial summary judgment on the issue of whether the defendant had worker’s compensation insurance coverage on the date of the accident, the defendant presented no evidence on this issue. The law favors a prompt disposition of cases for the benefit of litigants who have had their day in the trial court. Protracting the litigation to receive evidence that should have been obtained for the original trial is to be avoided. Texas Pipe Line Co. v. Johnson, 223 La. 380, 65 So.2d 884 (1953); Our Lady of the Lake Hospital, Inc. v. Carboline Co., 632 So.2d 339, units denied, 94-0287 (La.3/25/94), 635 So.2d 228, Land 94-0753 (La.5/6/94), 637 So.2d 1052.

Although the appellate court considered that a remand was warranted because it found the new evidence was likely to affect the outcome of the case, it failed to consider the question of whether the evidence was unobtainable with due diligence for the original trial. See Herbert v. Travelers Indemn. Co., 255 La. 645, 232 So.2d 463 (1970). The remand of a case without rendering a decision so as to have the district court receive new evidence requires the appellate court to set aside the existing judgment. Such authority should be sparingly exercised. Texas Pipe Line Co., supra.

The Court of Appeal set aside the judgment and remanded the case without an examination of the question of whether the defendant exercised due diligence in obtaining this pivotal evidence. We hold the Court of Appeal erred in this regard. Herbert, 232 So.2d at 465 (holding that the Court of Appeal set aside the judgment and remanded the case without an examination of the merits and without a showing that the evidence was unobtainable with due diligence for the original trial). Accordingly, we find the trial court did not abuse its discretion in finding that the defendant could have discovered this evidence with due diligence prior to the time when the case was on appeal.

For the .foregoing reasons, the trial court judgment denying Apex Oil Company’s motion to supplement the record is reinstated and thus, the trial court’s prior partial summary judgment in favor of Elfredroe Love on the question of insurance coverage is now reinstated.

VICTORY, J., would deny the writ and dissents from the order.


text:
    In re C. Daniel STREET.
    No. 2003-B-1735.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel seeks this court’s review of a recommendation of the disciplinary board that the formal charges against respondent, C. Daniel Street, be dismissed. Having reviewed the record and the briefs of the parties, we accept the recommendation of the disciplinary board. Accordingly, it is ordered that the formal charges against respondent be and hereby are dismissed.


text:
    Robert BILLIOT, Michael P. Nance, Vern C. Streckfus, Clifford E. Clayton, Shaun D. Hauswald, Williams S. Lahners, and Dennis P. Durham v. NEW ORLEANS AND BATON ROUGE STEAMSHIP PILOTS ASSOCIATION and William O. Watson, III.
    No. 2003-C-1378.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   PER CURIAM.

The provisions of LSA-R.S. 12:223 represent the minimum that is required by law. A corporation is free to adopt bylaws that exceed the minimum disclosure that is required by law. In this case, the by-law in effect at the time inspection was sought was extremely broad, effectively allowing inspection of “any part of the association’s business such as the books, files or correspondence ...” Narrative billing records are not excluded from inspection under this broad grant; nevertheless they may be protected to the extent that these records contain privileged information. Accordingly, the decisions of the Court of Appeal and the district court are reversed and this case is remanded to the district court to conduct an in camera inspection of the requested records to determine if the records contain privileged material and, if so, to order the redaction of any privileged information.

WRIT GRANTED; LOWER COURT DECISIONS REVERSED; CASE REMANDED TO DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS COURT’S RULING.


author: hPER CURIAM.

text:
    Gwendolyn CHELETTE v. RIVERWOOD INTERNATIONAL USA, INC.
    No. 2003-C-1483.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   hPER CURIAM.

We granted certiorari in part to address one issue raised by the defendant, River-wood International USA, Inc., in this workers’ compensation case: whether the court of appeal erred in affirming an award of a penalty pursuant to LSA-R.S. 1201(F) when the employer had merely reduced supplemental earnings benefits (SEB) as contrasted with failing to make timely payment of benefits. In all other respects, the writ is denied.

The holding in Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 787 So.2d 41, 45, clarified the differences between LSA-R.S. 23:1201 and LSA-R.S. 23:1201.2. In instances where the employer fails to commence payment of benefits, penalties and attorney fees are authorized under LSA-R.S. 23:1201(F), unless the claim is reasonably controverted. However, when the case involves discontinuation of benefits rather than failure to provide benefits, LSA-R.S. 23:1201.2, not LSA-R.S. 23:1201(F), applies. Id.; see also, J.E. Merit Constructors, Inc. v. Hickman, 2000-0943, p. 5 n. 6 (La.1/17/01), 776 So.2d 435, 437 n. 6. The sanction of penalties and attorney fees imposed by LSA-R.S. 23:1201 is not directed at the vocational rehabilitation obligation of LSA-R.S. 23:1226. See Fontenot v. Reddell Vidrine Water District, 02-0439, p. 2, dissent, (La.1/14/03), 836 So.2d 14, 29.

|2We limit our grant of this writ to correction of the penalty issue and do not reach the other issue.

Accordingly, we reverse the award of a penalty made in favor of claimant Gwendolyn Chelette, to conform with the law.

WRIT GRANTED IN PART TO REVERSE AWARD OF PENALTY; OTHERWISE DENIED.

JOHNSON, J., would deny the writ.

      . R.S. 23:1226(A) provides that when an employee has suffered a compensable injury which precludes him from earning wages "equal to wages earned” before this injury, he is entitled to “prompt rehabilitation services.”


text:
    STATE of Louisiana v. David H. DUCROS.
    No. 2003-KK-3114.
    Supreme Court of Louisiana.
    Nov. 12, 2003.
   In re Ducros, David H.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 434-486; to the Court of Appeal, Fourth Circuit, No. 2003-K-1728.

Stay denied. Writ and motion to consolidate with State v. Mercadel, 03-KA-3015 denied as premature because the court of appeal has not acted on the merits of Relator’s writ.

JOHNSON, J., would grant the stay, otherwise concur.


text:
    STATE of Louisiana v. Robert POWELL.
    No. 2003-KK-3089.
    Supreme Court of Louisiana.
    Nov. 13, 2003.
   In re Powell, Robert; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 02-05985; to the Court of Appeal, Fifth Circuit, No. 03-K-1133.

Denied. Writ was untimely in court of appeal.


text:
    STATE of Louisiana v. Roberto SELVA.
    No. 2003-KP-1894.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Selva, Roberto; — Defendant; Applying for Rehearing of this Court’s order dated September 19, 2003, Parish of Jefferson, 24th Judicial District Court Div. “J”, No. 01-1588, to the Court of Appeal, Fifth Circuit No. 2003-KH-0700.

Rehearing denied.


text:
    STATE of Louisiana v. Jerry HILLS.
    No. 2002-KK-2961.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 79,143; to the Court of Appeal, First Circuit, No. 2002 KW 2036.

Denied.

CALOGERO, C.J., recused.

TRAYLOR, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    STATE of Louisiana v. Louis CRUZ.
    No. 2003-KP-0279.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Cruz, Louis; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 81-3523; to the Court of Appeal, Fifth Circuit, No. 03-KH-49.

Denied.


text:
    STATE of Louisiana v. J.D. DANTZLER, Jr.
    No. 2003-KP-0304.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Dantzler, J.D. Jr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 02-CR-000273; to the Court of Appeal, First Circuit, No. 2002 KW 2480.

Denied.


text:
    STATE of Louisiana v. Lige G. ROGERS.
    No. 2003-KP-0311.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Rogers, Lige G.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 147-351; to the Court of Appeal, Fourth Circuit, No(s). 2001-K-2024, 2002-2152.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Raymond WILLIAMS, Jr.
    No. 2003-K-1115.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. B, No. 01-108; to the Court of Appeal, First Circuit, No. 2002-KA-1938.

Denied.

JOHNSON, J., would grant the -writ.

TRAYLOR, J., would grant the writ.


text:
    STATE of Louisiana v. Jerry A. BENTLEY.
    No. 2003-KO-1156.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Bentley, Jerry; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 422-802; to the Court of Appeal, Fourth Circuit, No. 2002-KA-1564.

Denied.


text:
    STATE of Louisiana v. Marvin D. TARVER.
    No. 2003-KO-1157.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Tarver, Marvin D.; — Defendant; Applying for Writ of Certiorari and/or Review, Paiish of Lasalle, 28th Judicial District Court Div. 0, Nos. 67,182, 67,183, 67,184; to the Court of Appeal, Third Circuit, No(s). 02-0973, 02-974-KA, 02-975-KA.

Denied.


text:
    STATE of Louisiana v. Cornell F. BOYKIN.
    No. 2003-KO-1158.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Boykin, Cornell F.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. E, No. 172,096; to the Court of Appeal, Second Circuit, No. 36,989-KA.

Denied.


text:
    STATE of Louisiana v. Robert BOLTON.
    No. 2003-KO-1159.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Bolton, Robert; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 99-6389; to the Court of Appeal, Fifth Circuit, No. 02-KA-1034.

Denied.


text:
    STATE of Louisiana v. Leon Joseph HORNE.
    No. 2003-KO-1178.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Horne, Leon Joseph; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 283104; to the Court of Appeal, First Circuit, No. 2002 KA 1904.

Denied.


text:
    STATE of Louisiana v. Joseph P. RICHARDSON a/k/a Steven Anthony.
    No. 2003-KO-1179.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Richardson, Joseph P. a/k/a; Anthony, Steven; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 421-579; to the Court of Appeal, Fourth Circuit, No. 2001-KA-2320.

^pr).pr|


text:
    STATE of Louisiana v. Charles Ray SNOW.
    No. 2003-KD-1188.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Snow, Charles Ray; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. C, No. 92,611; to the Court of Appeal, Second Circuit, No. 36,-826-KA.

Denied.


text:
    STATE of Louisiana v. Michael SPRINGER.
    No. 2003-K-1241.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Springer, Michael; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 10-96-599; to the Court of Appeal, First Circuit, No. 2002 KA 1633.

Denied.


text:
    STATE of Louisiana v. Donald DEGRUY.
    No. 2003-KO-1283.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Degruy, Donald; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 423-502; to the Court of Appeal, Fourth Circuit, No. 2002-KA-1868.

Denied.


text:
    STATE of Louisiana v. Danny Eugene WINSTON.
    No. 2003-KO-1284.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Winston, Danny Eugene; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 01-92; to the Court of Appeal, Fifth Circuit, No. 02-KA-1161.

Denied.


text:
    MRS. G. v. MR. G. Mrs. G. v. Mr. G.
    No. 2003-C-2145.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Mr. G.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, Family Court for the Parish of East Baton Rouge, Nos. 112,909, 98,705,; to the Court of Appeal, First Circuit, No(s). 2002 CA 0559, 2002 CA 0560.

Denied.


text:
    STATE of Louisiana v. Peter RANDO, III.
    No. 2003-KK-2154.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Rando, Peter III; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 262-927; to the Court of Appeal, Fourth Circuit, No. 2003-K-0073.

Denied.


text:
    Brett BARNHILL v. A-1 REMODELING.
    No. 2003-OC-2159.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re A-l Remodeling; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation Dist-6, No. 00-06345; to the Court of Appeal, First Circuit, No. 2002 CA 0357.

Denied.

VICTORY, J., would grant the writ.


text:
    Terri Lynn DUNN v. Jamie G. RAYBURN, et al.
    No. 2003-C-2212.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Baton Rouge City of; East Baton Rouge Parish of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 468,235; to the Court of Appeal, First Circuit, No. 2002 CA 1412.

Denied.


text:
    Jean Claire WILLIAMS v. Debra Williams JONES.
    No. 2003-C-2222.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Jones, Debra Williams; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 121,049; to the Court of Appeal, First Circuit, No. 2002-CA-1444.

Denied.


text:
    STATE of Louisiana v. Jesse James CASTON.
    No. 2003-KK-2224.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Caston, Jesse James; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Madison, 6th Judicial District Court Div. B, No. 58,498; to the Court of Appeal, Second Circuit, No. 37946-KW.

Denied.

TRAYLOR, J., recused.


text:
    STATE ex rel. Darren DURHAM v. STATE of Louisiana.
    No. 2003-KP-0305.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Durham, Darren; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 99-CR-506; to the Court of Appeal, First Circuit, No. 2002 KW 2122.

Denied.


text:
    STATE ex rel. Camari BOOKTER v. STATE of Louisiana.
    No. 2003-KP-0302.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Bookter, Camari; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, Nos. 4-97-239,10-97-3; to the Court of Appeal, First Circuit, No. 2002 KW 2203.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Jason MILTO v. C. Martin LENSING.
    No. 2003-KP-0265.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Milto, Jason; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 279384; to the Court of Appeal, First Circuit, No. 2002 KW 2299.

Denied. Application was untimely in the Court of Appeal.


text:
    STATE ex rel. Purnell E. MILLER v. STATE of Louisiana.
    No. 2002-KH-3153.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Miller, Purnell E.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 374-657; to the Court of Appeal, Fourth Circuit, No. 2002-K-1788.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Demetric GILLIAM v. STATE of Louisiana.
    No. 2002-KH-3090.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Gilliam, Demetric; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 209,258; to the Court of Appeal, Second Circuit, No. 36,-118-KA.

Denied.


text:
    STATE ex rel. Thomas L. BUCKLEY v. STATE of Louisiana.
    No. 2002-KH-3124.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Buckley, Thomas L.,; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caldwell, 37th Judicial District Court Div. 0, No. 50,588; to the Court of Appeal, Second Circuit, No. 36900-KW.

Denied.


text:
    STATE ex rel. Catherine COLLINS v. STATE of Louisiana.
    No. 2002-KH-3125.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Collins, Catherine; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 400-755; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0568.

Denied.


text:
    STATE ex rel. Gerald KELLY v. STATE of Louisiana.
    No. 2002-KH-3127.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Kelly, Gerald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 89-6577; to the Court of Appeal, Second Circuit, No. KH-02-36936.

Denied.


text:
    STATE ex rel. Donnie DALEY v. STATE of Louisiana.
    No. 2002-KH-3146.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Daley, Donnie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. C, No. 3134-91; to the Court of Appeal, First Circuit, No. 2002 KW 1203.

Denied.


text:
    STATE ex rel. Ronald SHEPPARD v. STATE of Louisiana.
    No. 2002-KH-3057.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Sheppard, Ronald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 12-98-484; to the Court of Appeal, First Circuit, No. 2002 KW 1171.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Dwayne KNIGHTEN v. STATE of Louisiana.
    No. 2002-KH-3059.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Knighten, Dwayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 5-98-823; to the Court of Appeal, First Circuit, No. 2002 KW 1364.

Denied.


text:
    STATE ex rel. Donald ROSS v. STATE of Louisiana.
    No. 2002-KH-3070.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Ross, Donald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. D, Nos. 88-67, 88-68; to the Court of Appeal, First Circuit, No. 2002 KW 1436.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Anthony DAVIS v. STATE of Louisiana.
    No. 2002-KH-3088.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Davis, Anthony; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. F, No. 83-CR-3-37859; to the Court of Appeal, First Circuit, No. 2002 KW 1943.

Denied.


text:
    STATE ex rel. Deshunski D. MOORE v. STATE of Louisiana.
    No. 2002-KH-3033.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Moore, Deshunski D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Bienville, 2nd Judicial District Court Div. B, No. 32,830; to the Court of Appeal, Second Circuit, No. 36835-KH.

Denied.


text:
    STATE ex rel. Ronald JOHNSON v. STATE of Louisiana.
    No. 2002-KH-2427.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   State ex rel. Ronald Johnson, Applying for Reconsideration of this Court’s order dated October 3, 2003; Parish of Orleans. Criminal District Judicial District Court, Div. D; No. 348-104; to the Court of Appeal, Fourth Circuit, No. 2002-K-1256.

Reconsideration denied.


text:
    ROWAN COMPANIES, INC. v. James Ronald POWELL, Jr. James Powell v. Rowan Companies.
    No. 2003-C-2177.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Powell, James Ronald; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 9, Nos. 00-06565, 00-06836; to the Court of Appeal, First Circuit, No(s). 2002 CA 1894, 02 CA 1895.

Denied.


text:
    Patsy Jean JARVIS, et al. v. MID-SOUTH RAIL CORPORATION, et al.
    No. 2003-CC-2163.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Ouachita Parish Police Jury;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. B, No. 90-4920; to the Court of Appeal, Second Circuit, No. 37802-CW.

Denied.


text:
    Valerie Canfield ORSO v. Paul William ORSO.
    No. 2003-C-2141.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Orso-Danyluk, Valerie C.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 364,575; to the Court of Appeal, First Circuit, No. 1995 CA 0083.

Denied.


text:
    Cheryl Jean WILLIAMS v. LOUISIANA STATE BOARD OF NURSING.
    No. 2003-C-2135.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Williams, Cheryl J.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 439,376; to the Court of Appeal, First Circuit, No. 2002 CA 1774.

Denied.


text:
    Vera M. RAINEY v. ENTERGY GULF STATES, INC. and Mike Case.
    No. 2003-C-2107.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Rainey, Vera; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 52,211; to the Court of Appeal, First Circuit, No. 2001-CA-2414.

Denied.

KIMBALL, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    William H. ST. MARTIN, M.D. v. Joseph Paul WILLARD.
    No. 2003-C-2058.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re St. Martin, William H. M.D.;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2002-67; to the Court of Appeal, Third Circuit, No. CA 03-204.

Denied.

VICTORY, J., would grant the writ.


text:
    ENTERGY LOUISIANA, INC. v. COX COMMUNICATIONS LOUISIANA, INC.
    No. 2003-CC-1948.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Cox Communications Louisiana Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 571-815; to the Court of Appeal, Fifth Circuit, No. 03-C-616.

Denied.


text:
    James G. MALONE, Jr. v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Division of Administrative Law, Office of Motor Vehicles.
    No. 2003-KP-0204.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Malone, James G. Jr.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 483941; to the Court of Appeal, First Circuit, No. 2001 CA 2747.

Denied.


text:
    Gary JAMERSON v. STATE of Louisiana DEPARTMENT OF CORRECTIONS, et al.
    No. 2003-CI-2629.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Jamerson, Gary; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 491,315; to the Court of Appeal, First Circuit, No. 2003 CW 0932.

Application dismissed at relator’s request.


text:
    GEORGIA GULF CORPORATION v. WESTPORT CHEMICAL COMPANY.
    No. 2003-CC-2349.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Westport Chemical Co.; Enrico DiPasquale; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Iberville, Plaquemine City Court, No. C-02130; to the Court of Appeal, First Circuit, No. 2003 CW 0272.

Not considered; not timely filed.


text:
    Gerald HARRIS v. LAMBERT REDI-MIX, INC. and Paul Lambert.
    No. 2003-OC-1395.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Harris, Gerald; — Plaintiff; Applying for Reconsideration of this Court’s action dated September 19, 2003; Parish of E. Baton Rouge, 19th Judicial District Court, Div. “A” No. 382,911; to the Court of Appeal, First Circuit, No. 2002-CA-2557.

Reconsideration denied.


text:
    Craig WEST, Troy West, and W.B. Farms Inc., et al. v. G & H SEED COMPANY, INC.
    No. 03-CC-2146.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Aventis Crop Science USA LP: Applying for Rehearing of this Court’s order dated September 26, 2003; Parish of St. Landry, 27th. Judicial District Court Div. A, No. 99-C-4984-A to the Court of Appeal, Third Circuit, No. 2001-C-1629.

Reconsideration granted. Writ denied.


text:
    Vereta LEE v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2003-CC-2014.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re East Baton Rouge Parish School Board; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 502-324; to the Court of Appeal, First Circuit, No. 2003-CW-0711.

Granted and remanded to court of appeal for briefing, argument and opinion.


text:
    Clarence GRIFFIN and Theresa Griffin v. PERKINS CABLE VISION, INC., d/b/a Montpelier Cable, Inc., and Essex Insurance Company.
    No. 2003-C-2208.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Perkins Cable Vision Inc. d/b/a; Montpelier Cable Inc. et al.; Essex Insurance Company; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of St. Helena, 21st Judicial District Court Div. B, No. 14672; to the Court of Appeal, First Circuit, No. 2002-CA-2413.

Denied.

VICTORY, J., would grant the writ.


text:
    Martinell JACKSON and Ida Williams v. Jerry J. COCKERHAM, Lou Gioe Trucking d/b/a Chalmette Truck Corporation and U.S. Capital Insurance Company.
    No. 2003-C-2207.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Regional Transit Authority; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 97-1410; to the Court of Appeal, Fourth Circuit, No. 2002 CA 2493.

Denied.


text:
    AZALEA LAKES PARTNERSHIP and Oak Harbor Investment Properties, L.L.C. v. PARISH OF ST. TAMMANY.
    No. 2003-C-2206.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Eden Isles Homeowner’s Association Inc.; — Other; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 97-11083; to the Court of Appeal, First Circuit, No. 2002 CA 0050.

Denied.


text:
    ENTERGY LOUISIANA, INC. v. John Neely KENNEDY, Secretary, Department of Revenue, State of Louisiana.
    No. 2003-C-2201.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Kennedy, John N. Secretary; State of Louisiana; Department of Revenue; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 457,006; to the Court of Appeal, First Circuit, No. 2003 CA 0166.

Denied.

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

VICTORY, J., would grant the writ.


text:
    Jerry OLDHAM, et al. v. The STATE of Louisiana, Through the DEPARTMENT OF HEALTH AND HOSPITALS, et al. John Capone, Jr., et al. v. The State of Louisiana, Through the Department of Health and Hospitals, et al.
    No. 2003-CC-2178.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Louisiana Department of Health & Hospitals; Louisiana State of; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. A, Nos. 55,160, 55232, 55273, 55318, 55350, 55369, 55145, 55600, 55902, 56048, 56185, 56379, 56402, 56410, 56879, 56931; to the Court of Appeal, First Circuit, No. 2002 CW 1068.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    H.R. 10 PROFIT SHARING PLAN ACCOUNT NO. 2656-3314, et al. v. James MAYEUX, Barbara Richard Mayeux, and Ethyl Corporation.
    No. 2003-OC-2165.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re H.R. 10 Profit Sharing Account # 2656-3314 et al.; Wesson, Robert H.;— Plaintiff(s); Applying for Writ of Certiora-ri and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 51,856; to the Court of Appeal, First Circuit, No. 2003 CA 0691.

Denied.


text:
    Cherilyn MORRIS v. DEPARTMENT OF HEALTH AND HOSPITALS, Pinecrest Development Center.
    No. 2003-C-2161.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Morris, Cherilyn; — Plaintiff; Applying for Writ of Certiorari and/or Review State Civil Service Commission, No. 14681; to the Court of Appeal, First Circuit, No. 2002 CA 1828.

Denied.


text:
    Tasha GEORGE v. DEPARTMENT OF HEALTH AND HOSPITALS, Eastern Louisiana Mental Health System.
    No. 2003-C-2148.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re George, Tasha; — Plaintiff; Applying for Writ of Certiorari and/or Review State Civil Service Commission, No. S-14718; to the Court of Appeal, First Circuit, No. 2002 CA 2640.

Denied.


text:
    Paul L. STAFFORD v. WALGREENS LOUISIANA CO., INC., Sun Glass Products, and Hartford Insurance Co.
    No. 2003-C-2144.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Stafford, Paul L.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. H, No. 90145; to the Court of Appeal, First Circuit, No. 2002 CA 2230.

Denied.


text:
    Edward CONERLY v. STATE of Louisiana Through the LOUISIANA STATE PENITENTIARY and the Department of Corrections.
    No. 2003-C-2121.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Louisiana State of through; Department of Public Safety and Corrections; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 273,119; to the Court of Appeal, First Circuit, No. 2002 CA 1852.

Denied.

VICTORY, J., would grant the writ.


text:
    SYSTEM FUELS, INC. v. John N. KENNEDY, Secretary of Department of Revenue, State of Louisiana.
    No. 2003-C-2129.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Kennedy, John N. — Secretary; Department of Revenue; Louisiana State of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. 1, No. 457,007; to the Court of Appeal, First Circuit, No. 2002 CA 1723.

Denied.

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

VICTORY, J., would grant the writ.


text:
    Arnaud D. DAIGLE, Emile Maffei, Sr., Murphy C. Majoria, Ann B. Savwoir, Ernie Serpas, Darryl V. Thomas, and Leonard Troullier, Jr. v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS, Office of Public Health, State Civil Service Commission, and Allen Reynolds, in His Official Capacity as the Director of Department of State Civil Service.
    No. 2003-C-2061.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Daigle, Arnaud D.; Maffei, Emile Sr.; Majoria, Murphy C.; Thomas, Darryl V; — Plaintiff(s); Applying for Writ of Cer-tiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 473,437; to the Court of Appeal, First Circuit, No. 2002 CA 0184.

Denied.

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

JOHNSON, J., would grant the writ.


text:
    ATM’S OF THE SOUTH, INC., Gregory P. Muro and Kathy B. Muro v. Joel DIEJOIA and King Rogers Seafood, Inc.
    No. 2003-C-1569.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Jack Henry and Associates, Inc.;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2001-2545; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0056.

Denied.

WEIMER, J., recused.

KNOLL, J., would grant the writ.


text:
    STATE ex rel. Jack L. BLAIR v. Richard STALDER, Secretary/Department of Public Safety and Corrections, Mary Cockerham, Record Custodian LSP, and Burl Cain, Warden, Louisiana State Prison.
    No. 2003-KP-0312.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Blair, Jack L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 450,431; to the Court of Appeal, First Circuit, No. 2002 CW 1657.

Denied.


text:
    Jeffery P. LEBLANC v. Richard P. REINA.
    No. 2003-C-2263.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re LeBlanc, Jeffrey P.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. B, No. 80,777; to the Court of Appeal, First Circuit, No. 2001 CA 1861.

Not considered; not timely filed.


text:
    Ron MCCALL and Kenneth Michael Wright v. CALCASIEU PARISH PLANNING & ZONING BOARD, et al.
    No. 2003-OC-2214.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re McCall, Ron et al.; Wright, Kenneth Michael; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 01-3555; to the Court of Appeal, Third Circuit, No. 03-149.

Denied.


text:
    Kevin ARMSTRONG v. Baron KAYLO, Warden, Avoyelles Correctional Center, Randy Prentice, Director of Nursing and Dr. Pacheco, Medical Director.
    No. 2003-CP-2215.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Armstrong, Kevin; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 483,018; to the Court of Appeal, First Circuit, No. 2002 CA 1398.

Denied.


text:
    Dorothy Marie MYRICK, F. Ronnie Myrick and Jimmy L. Myrick v. V. Bibb SAYE, M.D., R. Scott Thurston, M.D., Carlton Sheely, M.D., CYT Surgical Center and Our Lady of the Lake Hospital, Inc. d/b/a Our Lady of the Lake Regional Medical Center.
    No. 2003-C-2216.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Myrick, Dorothy M.; Myrick, F. Ronnie; Myrick, Jimmy L.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 433,051; to the Court of Appeal, First Circuit, No. 2002 CA1513.

Denied.


text:
    STAR ENTERPRISE v. AMERICAN MANUFACTURES MUTUAL INSURANCE COMPANY and Lumbermens Mutual Casualty Company, National Union Fire Insurance Company of Pittsburgh, PA., Fisher Service Company and Fisher Service Controls International, Inc., John H. Carter Co., Inc., Zurich Insurance Company, Waitz & Donner and Flour Daniel, Inc., and JE Merit Constructors, Inc.
    No. 2003-C-2218.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Fisher Services Co., A Division of Fisher Controls Int’l, Inc.; National Union Fire Ins. Co. of Pitts., PA; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 467-838; to the Court of Appeal, Fifth Circuit, No. 03-CA-189.

Denied.


text:
    Amy Elizabeth HAMMOCK, Now Janet v. Joseph Edward HAMMOCK.
    No. 2003-C-2221.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Hammock, Amy Elizabeth; Hammock, Janet; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. H, No. 86-4096; to the Court of Appeal, Second Circuit, No. 37,310-CA.

Denied.


text:
    Jackie WILLIAMS v. Renee Savoy HARRIS and State Farm Mutual Automobile Insurance Company. Montrell Williams and Darryl Maxwell v. Renee Savoy Harris and State Farm Mutual Automobile Insurance Company.
    No. 2003-C-2225.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Harris, Renee Savoy et al.; State Farm Mutual Auto. Ins. Co.; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, Nos. 474,164, 479,799; to the Court of Appeal, First Circuit, No(s). 2002 CA 1615, 2002-CA-1616.

Denied.


text:
    Terri Lynn DUNN v. Jamie G. RAYBURN, et al.
    No. 2003-C-2226.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Rayburn, Jamie G; Louisiana Farm Bureau Casualty Ins. Co.; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 468,235; to the Court of Appeal, First Circuit, No. 2002 CA 1412.

Denied.


text:
    Alfonso RHONE v. STATE of Louisiana, DPSC, et al.
    No. 2003-CP-2237.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Rhone, Alfonso; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 35,564; to the Court of Appeal, Second Circuit, No. 37714-CW.

Denied.


text:
    Eloise POCHE v. Martin E. REGAN, Jr., et al.
    No. 2003-CC-2245.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Regan, Martin E. Jr.; Littlefield, Rodney K.; Regan and Boshea; Regan and Assoc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2002-10267; to the Court of Appeal, Fourth Circuit, No. 2003-C-1049.

Denied.

CALOGERO, C.J., recused.


text:
    Cora D. Vega, Wife of/ and Ronald J. VEGA v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. Cora D. Vega, Wife of and Ronald J. Vega, Individually and on Behalf of Their Minor Child, Ryan J. Vega v. State Farm Mutual Automobile Insurance Company.
    No. 2003-CC-2251.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Vega, Cora D. et al.; Vega, Ronald J.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, Nos. 543-316, 543-319; to the Court of Appeal, Fifth Circuit, No. 03-C-821.

Denied.


text:
    Jackie WILLIAMS v. Renee Savoy HARRIS and State Farm Mutual Automobile Insurance Company. Montrell Williams and Darryl Maxwell v. Renee Savoy Harris and State Farm Mutual Automobile Insurance Company.
    No. 2003-C-2252.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Williams, Jackie; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, Nos. 474,164, 479,799; to the Court of Appeal, First Circuit, No(s). 2002 CA 1615, 2002-CA-1616.

Denied.


text:
    Yolanda C. CARTER v. Mack WILLIS in the Capacity as the Father of His Minor Child Sandra Willis, Gloria Willis and the Standard Fire Insurance Company.
    No. 2003-CC-2253.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Willis, Mack et al.; Standard Fire Ins. Co.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 570-147; to the Court of Appeal, Fifth Circuit, No. 03-C-756.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Arvin CLARK v. LUHR BROS, INC.
    No. 2003-CC-2255.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Clark, Arvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 209-843; to the Court of Appeal, Third Circuit, No. CW 03-00698.

Denied.


text:
    Teresa Lancaster and Richard LANCASTER v. Jeremy FONTENOT and State Farm Mutual Automobile Insurance Company.
    No. 2003-C-2258.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Lancaster, Teresa; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 476,419; to the Court of Appeal, First Circuit, No. 2002 CA 2035.

Denied.


text:
    Annette PRUITT, et al. v. Erica R. ROSS, et al. Clementine Reddix v. Direct General Insurance Company, et al.
    No. 2003-CC-2260.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Direct General Ins. Co. of LA;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. A, Nos. 207,709, 207,691; to the Court of Appeal, Third Circuit, No. 03 00757-CW.

Denied.

TRAYLOR, J., would grant the writ.


text:
    Lakisha O. WELLS v. STANDARD MORTGAGE CORPORATION.
    No. 2003-C-2262.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Standard Mortgage Corporation; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2002-8597; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1934.

Denied.


text:
    J. Pablo CODNIA v. Maria Lourdes CODNIA.
    No. 2003-CC-2885.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Codnia, J. Pablo; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 98-4938; to the Court of Appeal, Fourth Circuit, No. 2003-C-1128.

Denied.


author: I .DOWNING, J.

text:
    Kenneth W. MARTIN v. THE CITY OF BATON ROUGE, Pat Screen, Wayne Rogillio, William Denicola Wolf, and Unknown Police Officers All in Their Official Capacities and Individually.
    No. 2000 CA 0896.
    Court of Appeal of Louisiana, First Circuit.
    June 22, 2001.

      Kevin Patrick Monahan, Baton Rouge, Counsel for Kenneth W. Martin Plaintiff-Appellee.
    T. Allen Usry, John F. Weeks, II, Fred Schroeder, Metairie, Counsel for East Baton Rouge Parish Sheriff Elmer Litchfield and Deputy Dale Dieharry Defendant-Appellant.
    Frank Gremillion, Baton Rouge, Counsel for City of Baton Rouge Parish of East Baton Rouge Defendant.
    Larry Dersona, Baton Rouge, Counsel for Dersona & Donnan Intervenor.
    Before: WHIPPLE, KUHN, and DOWNING, JJ.
   I .DOWNING, J.

Defendants/Appellants, East Baton Rouge Parish Sheriff Elmer Litchfield and one of his deputies, Sgt. Dale Dieharry, appeal an adverse judgment against them in favor of Plaintiff/Appellee, Kenneth Martin, asserting one assignment of error: Kenneth Martin’s claim against them had prescribed. For reasons stated, we remand this matter to the trial court for further proceedings on the issue of prescription.

FACTS AND PROCEDURAL HISTORY

Under a warrant obtained by the Baton Rouge City Police Department, a team of six officers from local law enforcement agencies known as the “Metro Squad” conducted a raid on a home where Kenneth Martin was visiting on March 3, 1988. This team included officers from the Baton Rouge Police Department, the East Baton Rouge Parish Sheriffs Office, the Port Allen Police Department and the United States Marshall’s office. Martin re-injured a knee when one of the officers pushed him.

On March 2, 1989, Martin filed suit for personal injuries against the City of Baton Rouge, its mayor, the Baton Rouge City Police Chief, one specified police officer and other unnamed officers claiming damages resulting from an officer’s alleged excessive use of force. On October 16, 1990, Martin amended his petition to name Sgt. Dale Dieharry of the East Baton Rouge Parish Sheriffs Department as an additional defendant. The petition was once again amended on November 14, 1990, to add the East Baton Rouge Parish Sheriff as a defendant and to assert additional allegations against the sheriff and Sgt. Dieharry.

The matter came on for trial on September 28 and 24, 1997. The matter was taken under advisement, and the trial court issued written reasons on January 26, 2000. The trial court found that Sgt. Dieharry had used unreasonable and excessive force against Martin. The trial court entered judgment in favor of Martin and against Sgt. Dieharry and the East Baton Rouge Parish Sheriff on February 3, 2000. The trial court, however, dismissed with prejudice all claims against the original defendants since it had found the Sheriff and the deputy, Sgt. Dieharry, wholly at fault.

The East Baton Rouge Parish Sheriff and Sgt. Dieharry now appeal raising as their one assignment of error that Martin’s claim against them had prescribed. The East Baton Rouge Parish Sheriff and Sgt. Dieharry also filed an exception of prescription | .raising in this court for the first time the issue of prescription. On January 31, 2001, Martin filed a motion to dismiss the appeal and remand the proceedings to the trial court to consider the exception of prescription. On February 23, 2001, this court entered an order referring the motion to dismiss or remand to the merits of the appeal.

DISCUSSION

In the interest of justice, we remand this matter to the trial court for the sole purpose of considering the exception of prescription raised by the East Baton Rouge Parish Sheriff and Sgt. Dicharry.

As the Court observed in McKeithen v. LeBlanc, 491 So.2d 807, 808 (La.App. 3rd Cir.1986):

The plaintiff has not made a formal demand, by way of a pleading, asking for a remand. However, we believe that the fair import of [plaintiffs] brief is that we either overrule the exception or remand it for trial. The appellant’s brief gives the same interpretation to the plaintiffs argument that we do. Furthermore, this is only fair. The question of prescription has never been tried, evidence concerning possible interruption of prescription has never been presented, and the issue of prescription turns out to be the only real controversy in the case. Justice would be better served to remand for a trial of the exception.

Martin made demand for a rehearing pursuant to Louisiana Code of Civil Procedure art. 2163 in his motion to dismiss and remand. However, in both his appellate brief and his memorandum in support of his motion for remand, Martin asks this court to either overrule the exception of prescription or to remand the exception for hearing. It does not appear, therefore, that remand is required. Compare and contrast Blanchard v. Southern Pacific Transportation Co., 93-1155, p. 4 (La.App. 1st Cir.4/8/94), 635 So.2d 742, 744, which holds appellate courts have no discretion in the matter of remand once a plaintiff has demanded it.

On appeal, Martin urges that the amended petition, which names Sgt. Dicharry and the Sheriffs Department as defendants and describes them as members of the Metro Squad, relates back to the original petition filed against the other Metro Squad members. Martin urges prescription was interrupted in accordance with La. C.C.P. art. 1153. We Lconclude Martin should have the opportunity to develop evidence during a hearing on the exception of prescription to address whether amendments to the petition relate back to the time of filing the original petition, see Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983) and succeeding cases, whether the issue of solidarity may be raised to prove interruption of prescription, see Bankston v. B & H Air Tools, Inc., 486 So.2d 199, 200-201 (La.App. 1st Cir.), writ denied, 488 So.2d 1021 (La. 1986), or whether other issues related to prescription may apply.

The East Baton Rouge Parish Sheriff and Sgt. Dicharry assert their peremptory exception of prescription for the first time in this court. At least where there is no liability in solido or where the amended petition cannot be determined to relate back to the time of original filing, they argue correctly that prescription is not interrupted in favor of a belatedly-added defendant when all original defendants who were served timely are dismissed. See Louisiana Civil Code arts. 3462 and 2324(C). See also Adams v. Dupree, 94-2353, pp. 3-4 (La.App. 4th Cir.10/12/95), 663 So.2d 433, 435-436, writ denied, 95-2750 (La.1/26/96), 666 So.2d 676, and Gioustover v. Progressive American Insurance Co., 561 So.2d 961, 964 (La.App. 4th Cir.), writ not considered, 566 So.2d 973 (La.1990). As the court in Gioustover v. Progressive American Insurance Co., Id., stated:

Prescription can be raised on appeal for the first time provided it is raised before submission of the case for decision.
The law is clear that a suit filed timely against one joint tortfeasor, interrupts prescription as to other joint tortfeasors. Civil Code Article 2324(C). The law is equally clear that where no liability is found on the part of a timely sued alleged tortfeasor, prescription will not be interrupted as to another joint torfeasor who is not timely sued, since no joint or solidary obligation exists. (Citations omitted.)

In this case, all original defendants have been dismissed. The Sheriff of East Baton Rouge Parish and Sgt. Dicharry were not served until well after the one year prescriptive period had run. For Martin to prevail against the defendants on the peremptory exception of prescription, he must prove that prescription had been successfully interrupted at the time that he added the East Baton Rouge Parish Sheriff and Sgt. Dicharry as defendants. In the interest of justice, he will be given the opportunity to do so.

| .CONCLUSION

For reasons stated, we remand this matter solely for consideration of the Peremptory Exception of Prescription raised by the East Baton Rouge Parish Sheriff and Sgt. Dicharry. This appeal is held in abeyance pending a ruling by the trial court on the exception of prescription. The trial court is ordered to file a copy of its ruling on the exception with this court within ten days following the ruling. After the trial court’s ruling on the exception is filed with this court, this court shall set a new briefing schedule, and the appeal shall be re-docketed. Assessment of costs shall await final disposition of this matter.

REMANDED WITH ORDER; APPEAL HELD IN ABEYANCE.

      . Art. 2163. Peremptory exception filed in appellate court; remand if prescription pleaded
      The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
      If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.