text:
    Michael D. SIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4778.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.

      James Marion Moorman, Public Defender, Bartow, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa,' for Appellee.
   DAVIS, Judge.

Michael D. Simpson appeals his convictions for possession of cocaine and carrying a concealed weapon, arguing that the trial court erred in denying his motion to suppress. We agree and reverse.

The charges against Simpson arose from an incident in which a St. Petersburg Police officer observed a beige pickup truck parked near an abandoned house. As the officer approached, he saw Simpson, who was sitting in the vehicle, reach under the seat with his left hand. When the officer exited his vehicle, Simpson exited the truck and attempted to light a cigarette. The officer approached Simpson and inquired what he was doing. Simpson responded that a “friend” had just gotten out of the truck and walked down the street. The officer did not observe anyone walking nearby.

As they talked further, the officer observed that Simpson had left the driver’s door of the truck open. Upon looking into the truck through the open door, the officer saw the turn signal lever hanging by wires from the steering column. Having investigated numerous stolen vehicles that had been taken by compromising the ignition system through the steering column, the officer suspected that the pickup truck was stolen. Consequently, the officer again asked Simpson what he was doing at this location. Simpson responded that a “guy” had just gotten out of the truck and walked down the street. Concluding that Simpson had given him inconsistent stories regarding the “friend” and the “guy,” and suspecting that the truck was stolen, the officer placed Simpson in the rear seat of the police vehicle. Although Simpson initially gave the officer an incorrect name, the officer ultimately determined Simpson’s identity and discovered that there was an outstanding warrant for his arrest. After taking Simpson into custody, the officer searched the interior of the truck. Although he found that the ignition system had not been compromised, the officer did find a crack cocaine pipe in plain view and a machete under the seat.

Simpson moved to suppress these items, alleging that the officer improperly detained him without reasonable suspicion that a crime had been committed. When the trial court denied the motion, Simpson pleaded no contest reserving his right to appeal the denial of his dispositive motion to suppress.

Our review of an order denying a motion to suppress is a mixed question of law and fact. State v. Setzler, 667 So.2d 343 (Fla. 1st DCA 1995). We review the trial court’s factual findings by an abuse of discretion standard and its application of the law to the facts on a de novo basis. Hines v. State, 737 So.2d 1182 (Fla. 1st DCA 1999).

The trial court correctly found that the initial contact between the officer and Simpson was a consensual citizen encounter. However, the court also found that Simpson had given “divergent” stories regarding his presence because Simpson had initially said that a “friend” had exited the truck and then later said a “guy” had exited the truck. The trial court concluded that this difference raised suspicion. The trial court further found that Simpson had made a “furtive” movement inside the truck as the officer approached. The trial court concluded that these facts, along with the location (near an abandoned house) and the possibility that the vehicle had been stolen, were sufficient to justify Simpson’s detention. We disagree.

First, the trial court erred in finding Simpson’s explanations “divergent.” The terms “friend” and “guy” are not inconsistent descriptions. Second, the testimony does not support the court’s finding that Simpson’s act of reaching under the seat was furtive. The officer never described the movement as furtive or suspicious. Finally, the broken turn signal lever was not sufficient reasonable suspicion to support a detention. Although a compromised ignition system may have provided the officer with the needed suspicion, the dangling turn signal lever alone failed to establish more than “a mere hunch.” See Ippolito v. State, 789 So.2d 423 (Fla. 4th DCA 2001). Even when all of these facts are considered together, they do not amount to the founded suspicion needed to justify detaining Simpson by placing him in the back seat of the patrol car. See Popple v. State, 626 So.2d 185 (Fla.1993). Accordingly, the trial court erred in denying the motion to suppress.

Reversed and remanded.

BLUE, C.J., and COVINGTON, J., Concur.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Gregory CASSELLS, Appellee/Cross-Appellant.
    No. 2D01-5606.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.

      Charlie Crist, Attorney General, Tallahassee, and Davis G. Anderson, Jr., Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   ALTENBERND, Judge.

The State appeals an order suppressing evidence under the knock-and-announce rule, section 933.09, Florida Statutes (2001). We reverse because the initial announcement in this case was given to Gregory Cassells in the driveway of his home as he exited his car. Mr. Cassells accurately informed the deputies that the home was unoccupied. Under these circumstances, an entry only a few seconds after the subsequent announcement at the door is not a statutory violation justifying exclusion of the evidence against Mr. Cas-sells.

Mr. Cassells has cross-appealed a suppression issue as permitted by Lopez v. State, 638 So.2d 931 (Fla.1994). We dismiss that appeal without prejudice to his right to raise the issue on direct appeal. We conclude that an Anders brief should not be filed in a Lopez cross-appeal.

I. THE KNOCK-AND-ANNOUNCE ISSUE

In May or early June 2001, a confidential informant working for the Highlands County Sheriffs Office purchased cocaine and marijuana at Mr. Cassells’ residence in Avon Park, Florida. Based on this investigation, the sheriff obtained a search warrant to look for drugs and paraphernalia in the home. A few days later at approximately 7:30 p.m., a small group of deputies went to the home to conduct surveillance and execute the warrant, if possible. Upon arrival, the deputies observed that Mr. Cassells’ car was not in the driveway and delayed execution of the warrant. Shortly thereafter, the officers recognized Mr. Cassells as he drove into the driveway. The deputies immediately pulled into the driveway behind Mr. Cassells’s car. In addition to Mr. Cassells, there were three other occupants in the car, who were all young children.

One of the deputies approached Mr. Cassells and informed him that they were there to execute a warrant. Another deputy took charge of the children to assure their safety during the search. As Mr. Cassells was exiting his car, he was asked if the home was occupied. Mr. Cassells stated that the house was unoccupied. The entry team then went to the front door. They knocked and announced, and waited approximately ten seconds before making a forceful entry into the home. No one was home. Thereafter, the warrant was read to Mr. Cassells, and he assisted the deputies in finding drugs and other contraband in the house.

Mr. Cassells filed a motion to suppress the evidence found during the search of his home. The trial court conducted a thorough hearing and entered a thoughtful order. Expressing some misgivings, the trial court concluded that the evidence must be suppressed because of this court’s decision in Richardson v. State, 787 So.2d 906 (Fla. 2d DCA 2001). In Richardson, this court suppressed evidence when the police waited for only ten seconds before conducting a forceful entry into the home.

It might arguably assist the police if the legislature established waiting periods that presumptively satisfied section 933.09 under most sets of circumstances. As it stands, the courts, actually set case-specific, minimum time standards that depend on all of the relevant circumstances. In Richardson, a ten-second wait at the front door was insufficient for a search of a home at 5:30 a.m. when the police clearly anticipated that the home was occupied. In Richardson, the police conducted the search in the dark, at a time when they reasonably expected that occupants would still be asleep. Even in a case involving a small home, an occupant could not reasonably be expected to open the door within ten seconds if he or she were asleep at the time of the knock.

In this case, the officers arrived before dark at a time when they would expect any occupant to be awake. They confronted Mr. Cassells in the driveway. Not only did he claim that the home was unoccupied, but also the events in the front yard did not cause anyone to open the front door or exit the house. The witnesses’ estimates of time varied, but approximately a minute elapsed from the time that the deputies first confronted Mr. Cassells until they entered the home. Thus, although the formal knock and announce at the door occurred only a few seconds before the door was forced open, the announcement to Mr. Cassells had occurred far earlier.

Section 933.09 states:

The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of the officer’s authority and purpose he or she is refused admittance to said house or access to anything therein.

This statute does not contain any list of underlying policies nor does it mandate use of the exclusionary rule. The case law, however, typically justifies the use of the exclusionary rule to protect three underlying policies: (1) decreasing the risk of violence when executing a warrant, (2) protecting the privacy of the occupants of the home, and (3) preventing physical destruction of property. See State v. Bamber, 630 So.2d 1048 (Fla.1994) (citing 2 Wayne R. LaFave, Search and Seizure § 4.8(a) (2d ed.1987)). In this case, the information received from Mr. Cassells gave the deputies reason to believe that the risk of violence upon a civilian was low and that there were no occupants in the home with any expectation of privacy. As a practical matter, we know that the deputies could have waited longer and no one inside would have opened the door of this unoccupied house.

Thus, the primary underlying policy at issue in this case is the prevention of physical destruction of property. Mr. Cassells argues that the evidence located in the home should be suppressed because the deputies could have asked him for the key to the house and could have opened the door without damaging it. It is noteworthy that Mr. Cassells does not claim that he volunteered his key or urged them to use it before the door was forced open.

We do not wish to minimize the need for police to protect the physical property of citizens. On the other hand, we see little justification for the judiciary to create a “least destructive means” test that the police must pass to avoid the exclusionary rule. Any benefit derived from requiring the police to obtain and use keys during such entries in order to avoid risk of damage to doors could easily be offset by the increased risk of injury to the officers executing the warrant.

Accordingly, we reverse the order suppressing the evidence that was located in the home and remand for further proceedings.

II. THE CROSS-APPEAL

Although the trial court granted that part of Mr. Cassells’ motion to suppress that relied upon the knock-and-announce rule, it denied another portion of the motion that sought to exclude drug paraphernalia Mr. Cassells tried to discard while being detained by the officers outside his home. Mr. Cassells has filed a timely cross-appeal of this suppression issue. The cross-appeal is authorized by the rule announced in Lopez v. State, 638 So.2d 931 (Fla.1994). However, Mr. Cassells’ appellate attorney found no merit in the issue and filed an Anders brief.

The Anders procedures are necessary in final appeals because the defendant has a constitutional right to a final appeal, but the attorney is ethically prohibited from submitting frivolous arguments. See In re Anders Briefs, 581 So.2d 149 (Fla.1991); Anders v. California, 386 U.S. 738, 742, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In the context of a final appeal, the client has no future remedy if the lawyer dismisses the appeal. We question whether the Anders procedure is appropriate in this context.

The cross-appeal permitted by the rule announced in Lopez is an unusual cross-appeal. Lopez allows the defendant in a criminal case to cross-appeal an issue in a nonfinal appeal initiated by the State so long as the defendant’s issue is related to the State’s issue and the adverse ruling is memorialized in the same order that the State seeks to review. This rule permits the defendant to cross-appeal an issue at a time when the defendant would have no right to initiate a nonfinal appeal. See Fla. R.App. P. 9.140(b). Thus, a Lopez cross-appeal expands the appellate court’s scope of review to include an issue that it would not have had jurisdiction to review directly.

Although rule 9.140(b)(4) does not expressly state that the decision to forego a cross-appeal of a nonfinal order in this context will not result in the defendant waiving the right to raise the issue on final appeal, such a policy has long been expressly stated in Florida Rule of Appellate Procedure 9.130(g). It is clear to this court that a defendant can forego a Lopez cross-appeal without fear that he or she will be barred from raising the issue in a subsequent final appeal. In other words, a Lopez cross-appeal is a purely optional procedure available to the defendant and it can be omitted with impunity.

Likewise, a Lopez cross-appeal can be voluntarily dismissed prior to its disposition on the merits without harm to the defendant. The defendant is free to pursue the issue at a later time because unconditional dismissals of nonfinal appeals are without prejudice. See Hammerl v. State, 779 So.2d 410, 411 (Fla. 2d DCA 2000). If anything, an Anders brief in such a nonfinal appeal could result in a decision affirming the trial court that might establish the law of the case. At least in the rare occasion where refinements in the law occurred after the nonfi-nal appeal and prior to the time for a final appeal, such a decision might actually prejudice the defendant.

We conclude that counsel is not ethically required to file an Anders brief in a cross-appeal of a nonfinal order. Instead, counsel should encourage the client to voluntarily dismiss the cross-appeal and raise the issue on final appeal. Hopefully, most clients will accept the advice of counsel and understand the wisdom of dismissing the cross-appeal. In the event that the client will not authorize such a dismissal, the lawyer should move to withdraw. Cf. In re K.W., 779 So.2d 292 (Fla. 2d DCA 1998) (outlining similar procedure in termination of parental rights case). This court will then permit the attorney to withdraw from only the cross-appeal and will also permit the defendant to file a pro se brief within forty-five days. If no pro se brief is filed, the cross-appeal will be dismissed and the dismissal will not affect the defendant’s right to raise the issue in a subsequent direct appeal. If the defendant files a pro se brief, the court may proceed to rule upon the merits of the nonfinal appeal.

In this case, counsel filed an Anders brief because no alternative method had been provided by this court. This court gave Mr. Cassells an opportunity to file a pro se brief, and no such brief was filed. Accordingly, we dismiss this cross-appeal.

WHATLEY and STRINGER, JJ., Concur.

      . For example, section 933.09 could provide that, absent exigent circumstances, if the police waited twenty seconds during hours that occupants are awake or forty seconds during times when occupants • are expected to be asleep at a typical residence, the waiting period would create a rebuttable presumption of compliance with the statute. But see 2 Wayne R. LaFave, Search and Seizure § 4.6(b) n. 48 (3d ed.1996) (citing United States v. Jenkins, 175 F.3d 1208 (10th Cir.1999) (rejecting judicially created bright-line rule for determining waiting period after announcement)).

      . Time periods less than five seconds are rarely deemed adequate, and periods in excess of fifteen seconds are often adequate. The window of greatest debate seems to center on the period of around ten seconds. See, e.g., United States v. Gallegos, 314 F.3d 456 (10th Cir. 2002).

        .See United States v. Spikes, 158 F.3d 913, 927 (6th Cir.1998) (stating, "[t]he amount of time officers need to wait before entering a home necessarily depends on how much time it would take for a person in the house to open the door”). The court then went on to explain that "[wjhen the police execute a warrant in the dead of night or have some other reason to believe that a prompt response from the homeowner would be unlikely, the length of time the officers should wait increases.” Id. at 927.

      . We note that a defendant's lawyer cannot move to withdraw in this situation because representation must still be provided in the State’s appeal in which the defendant is the appellee.

      . In most, if not all, cases involving cross-appeals of final orders, the cross-appeal merely permits the appellee to file a tardy appeal of an issue that it could have presented to the appellate court by its own timely notice of appeal. See Fla. R.App. P. 9.110(g).

      . “This rule shall not preclude initial review of a non-final order on appeal from the final order in the cause.” Fla. R.App. P. 9.130(g).

      . OBviously, defendants often enter into a plea while preserving the right to appeal an adverse ruling on a dispositive suppression issue. See, e.g., Craig v. State, 830 So.2d 906 (Fla. 2d DCA 2002).


author: EDWARD F. THREADGILL, Senior Judge.

text:
    Miles Lee BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4342.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.
    James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appellee.
   EDWARD F. THREADGILL, Senior Judge.

Miles Brown appeals from the trial court’s denial of his motion to withdraw plea after sentencing. We reverse and remand for a new hearing with conflict-free counsel.

On September 12, 2001, Brown filed a pro se motion to withdraw plea within thirty days of sentencing pursuant to Florida Rule of Criminal Procedure 3.170(i). On the next day, defense counsel filed a motion to withdraw plea, stating that Brown would support the motion by his attached letter and orally in court. On September 18, 2001, Brown filed a motion to dismiss his attorney, alleging a conflict of interest. A hearing was held on the motion to withdraw plea on September 20, 2001. Defense counsel told the court that Brown had filed the motion to withdraw his plea and that Brown could explain the motion and “a motion to dismiss me.” The trial court clearly considered Brown unrepresented at the hearing.

The trial court then asked Brown to tell him why he wanted his plea set aside. Brown answered, “I had no idea what was going on. I didn’t know that I was going to be pleading out to actually doing the time.” The trial court proceeded to quote from the transcript of the plea colloquy and then denied the motion to withdraw plea.

On appeal, Brown contends that he was entitled to conflict-free counsel at the hearing on his motion to withdraw his plea. A motion to withdraw a plea pursuant to rule 3.170(Z) is a “critical stage in the direct criminal proceeding” at which the defendant is entitled to effective assistance of counsel. Padgett v. State, 743 So.2d 70, 72-73 (Fla. 4th DCA 1999); see Harris v. State, 818 So.2d 567 (Fla. 2d DCA 2002). Among the permissible grounds for a motion to withdraw a plea is an involuntary plea. See Fla. R.Crim. P. 3.170(1); Fla. R.App. P. 9.140(b)(2)(A)(ii)(c); see also Harris, 818 So.2d at 568 n. 1. Here, Brown’s motion alleged that he did not fully understand the nature and extent of his plea, that he was threatened or coerced into pleading by his trial attorney, and that his trial attorney admitted to “knowing/having a degree of affiliation” with the victim. He also sought to dismiss his attorney for a conflict of interest, alleging the affiliation with the victim. We note that Brown’s allegations are more detailed than the insufficient allegation in Harris that the defendant “did not fully understand the sentence.” Harris, 818 So.2d at 568.

The State relies upon Harris in stating that Brown cannot raise the right to conflict-free counsel for the first time on appeal. In Harris, however, it appears that Harris did not express any dissatisfaction with his attorney in the trial court. Here, Brown sought to dismiss his attorney in the trial court based on an alleged conflict of interest and alleged that his attorney coerced him into entering his plea. “Where a defendant seeks to withdraw his plea on the ground that it was coerced by his attorney, the trial court must either appoint conflict-free counsel or permit the defendant the opportunity to secure the same and, then, conduct an evidentiary hearing on the motion to withdraw plea.” Lingenfelser v. State, 734 So.2d 472, 472-73 (Fla. 4th DCA 1999). Therefore, we reverse the denial of Brown’s motion to withdraw plea and remand for a hearing in which Brown is afforded conflict-free counsel.

Reversed and remanded.

CASANUEVA and SALCINES, JJ., Concur.


author: KELLY, Judge.

text:
    Richard McGEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-1696.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.
    Richard McGee, pro se.
    Charlie Crist, Attorney General, Tallahassee/and Deborah F. Hogge, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Richard McGee appeals from his judgment and sentence for aggravated battery. He argues, and the State concedes, that the trial court erred in failing to conduct a proper Faretta inquiry before denying McGee’s request to represent himself. We agree that the trial court erroneously focused its inquiry on whether McGee possessed the skill to represent himself rather than on whether his decision to waive counsel was knowing and intelligent. See Hill v. State, 688 So.2d 901 (Fla.1996). Accordingly, we reverse and remand for a new trial.

CASANUEYA and SALCINES, JJ., Concur.

      . See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: STEVENSON, J.

text:
    Carmela LIBERATORE and Umberto Liberatore, Appellants, v. Samuel KAUFMAN, M.D.; Samuel Kaufman, M.D., P.A.; Norman S. Cohen, M.D., Samuel Kaufman, M.D., Stewart P. Newman, M.D., and Susan Beil, M.D., P.A.; Women’s Health Care Associates, P.A.; Women’s Healthcare Associates, P.A.; and NME Hospitals, Inc., a foreign corporation, d/b/a West Boca Medical Center, Appellees.
    Nos. 4D01-657, 4D01-3468.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.

      Edna L. Caruso of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and Robert W. Kelley and John J. Uustal of Sheldon J, Schlesinger, P.A., Fort Laud-erdale, for appellants.
    Adam Trachtenberg and Ralph O. Anderson of Hicks, Anderson & Kneale, P.A., Miami, for appellees Samuel Kaufman, M.D. and Samuel Kaufman, M.D., P.A.
    Ghislaine Torres Bruner, Louise H. McMurray and James C. Sawran of McIntosh, Sawran, Peltz & Cartaya, P.A., Miami, for appellee West Boca Medical Center.

      . Final Cost Judgments were entered on August 7, 2001, in favor of West Boca Medical Center in the amount of $31,932.30 and on August 14, 2001, in favor of Samuel Kaufman in the amount of $16,030.00.

   ON MOTION FOR REHEARING

STEVENSON, J.

We deny the motion for rehearing but withdraw our prior opinion filed on July 3, 2002, and substitute the following in its place.

Appellants, Carmela and Umberto Li-beratore, brought a malpractice action against Dr. Samuel Kaufman and West Boca Medical Center, alleging negligence in the care and treatment of Carmela in the delivery of her second child. After a two-week trial, the jury returned a verdict for the defendants. Thereafter, both final judgments on the merits and final cost judgments were entered in favor of the appellees. We reverse, finding that the trial court abused its discretion in allowing defendants to use a bulletin published by the American College of Obstetricians and Gynecologists (ACOG) to bolster the testimony of their expert witnesses and in allowing Dr. Kaufman to testify that he was recognized as a “top doctor” with a “good reputation” in a national survey.

Carmela Liberatore had her first baby in New York in 1990 by cesarian section. She became pregnant with her second child in 1993 and began prenatal care with Dr. Kaufman. Kaufman and Liberatore agreed that she would try a VBAC (Vaginal Birth After Cesarean) procedure for her second delivery. Liberatore did not go into labor on her own, and, as agreed, on November 18, 1993, she went to the hospital to be induced. At approximately 8:30 a.m., the nurses administered Pitocin to induce labor. The Pitocin was ineffective and, at about 5 or 6 p.m., Dr. Kaufman broke her water. Liberatore began experiencing pain and required an epidural around 8:00 p.m. Around midnight, Libera-tore began convulsing and Dr. Kaufman was called back to the hospital. Dr. Kaufman was forced to perform a vacuum extraction to remove the baby because the baby’s heart rate was critically elevated.

Appellants alleged that as a result of Kaufman’s vacuum extraction, Liberatore suffered significant vaginal lacerations, cervical lacerations, uterine atony and vaginal bleeding, which nearly caused her death. Dr. Kaufman attempted to suture some of the lacerations, but this did not stop the bleeding. Kaufman performed a hysterectomy, removing her uterus and cervix, but the bleeding still did not stop. Liberatore was stitched up and taken to the Intensive Care Unit, but continued to bleed. Dr. Klein, a specialist, was then brought in to perform hypogastric surgery. Approximately six or seven hours had passed since Liberatore first started bleeding after childbirth, and she had been transfused with between three to five times her normal blood volume. Appellants alleged that due to these complications, Liberatore was later forced to have her ovaries removed and undergo additional surgeries.

After a two-week medical malpractice trial, the jury returned a verdict in favor of Dr. Kaufman and the medical center. On appeal, the Liberatores challenge the trial court’s evidentiary rulings regarding ap-pellees’ use of a bulletin published by the American College of Obstetricians and Gynecologists (ACOG) to question defense experts. ACOG bulletins are developed by a committee of six or seven ACOG members and are sent to member obstetricians throughout the country. These bulletins concern suggested treatment regimens, current trends, and other issues of concern to the practicing obstetrician.

Dr. William McLaughlin, West Boca Medical Center’s expert obstetrician-gynecologist, testified that the care and treatment provided by Dr. Kaufman and the hospital to Ms. Liberatore did not deviate from the standard of care. Dr. McLaughlin was then questioned regarding his familiarity with the ACOG bulletins. He confirmed that he was, in fact, familiar with the bulletins and gave a brief description of what they were. McLaughlin was further questioned as to whether ACOG guidelines are met when a patient and a doctor jointly decide to do a VBAC and there are no contraindications; he confirmed that, under those circumstances, ACOG guidelines are met. He also testified that overall data suggests a seventy to eighty percent success rate with VBACs regardless of the reason for the original cesarean; according to Dr. McLaughlin, the ACOG guidelines, which provide that approximately eighty percent of patients having low transverse cesarean sections go on to have successful vaginal births the second time, are consistent with this data.

Dr. Clark, specializing in obstetrics and gynecology, opined that Dr. Kaufman did not deviate from the standard of care by pursuing a vaginal delivery or by inducing labor with Pitocin. ■ Clark too was questioned about the ACOG bulletin and stated that “these [bulletins] don’t represent the standard of care, that is, they don’t represent the only way people can do it, but they do represent one appropriate standard of care.” Clark testified that, as long as Dr. Kaufman followed the ACOG bulletin, he did not deviate from the standard of care:

This is certainly not the only way to manage a problem, there may be other ways which are equally, equally appropriate, but certainly no one can claim that if someone did it according to one of these bulletins that this would be in violation of standard of care.

In addition, Dr. Kaufman was questioned as to whether the ACOG bulletins represent the proper standard of care; he replied that “the ... ACOG said, hey, it’s safe to do this.”

Experts cannot, on direct examination, bolster their testimony by testifying that a treatise agrees with their opinion. See § 90.706, Fla. Stat. (2000); Chorzelewski v. Drucker, 546 So.2d 1118 (Fla. 4th DCA 1989); Quarrel v. Minervini, 510 So.2d 977 (Fla. 3d DCA 1987); Tallahassee Mem’l Reg’l Med. Ctr. v. Mitchell, 407 So.2d 601 (Fla. 1st DCA 1981); see also Green v. Goldberg, 630 So.2d 606, 609 (Fla. 4th DCA 1993)(stating that “[u]nder section 90.706, Florida Statutes (1991), authoritative publications can only be used during the cross-examination of an expert and not to bolster the credibility of an expert or to supplement an opinion of the doctor which has already been formed”). Despite this prohibition, the opinions of Drs. Clark and McLaughlin as to Dr. Kaufman’s standard of care were clearly supported and reinforced with the ACOG bulletin. Dr. Kaufman himself even relied upon the bulletin to support the standard of care he provided Libera-tore. Consequently, we agree that the ACOG bulletin was improperly used and that the trial court’s ruling in this regard was error.

Additionally, we find that Dr. Kaufman should not have been permitted to testify that for the last three years he had been on a list of “top doctors” published by the Center for Study of Services. This court has previously found that such testimony was error. See Tomlian ex rel. Tomlian v. Grenitz, 782 So.2d 905, 907 (Fla. 4th DCA)(finding it was error for the defendant physician “to blurt out that he had been listed as a ‘top doctor’ in a local magazine”), review granted sub nom. Humana of Fla., Inc. v. Tomlian, 804 So.2d 329 (Fla.2001).

Accordingly, we reverse the final judgments entered in favor of appellees and the final judgments to tax costs as to Dr. Kaufman and West Boca Medical Center, and remand for a new trial. We find it unnecessary to address the other issues raised on appeal.

REVERSED and REMANDED.

POLEN, C.J., and TAYLOR, J., concur.

      . Section 90.706 provides in part:
      Authoritativeness of literature for use in cross-examination. — Statements of facts or opinions on a subject of science, art or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness ....

      . We find that the issue was properly preserved for appellate review. Appellants objected to the procedure of allowing the ACOG bulletin to be used for any purpose other than impeachment when it was firs't presented during the cross-examination of plaintiffs’ expert, Dr. Robert Eden, a specialist in high risk obstetrics. When the trial court denied the objection, appellants requested a standing objection. Subsequently, the ACOG bulletin was again used for a purpose other than impeachment while other witnesses were testifying. We find that appellants' standing objection was sufficient to preserve the objection as to this latter use of the ACOG bulletin as well.


author: PER CURIAM.

text:
    In the Interest of R.G. and A.G., children. D.G., Appellant, v. Department Of Children And Families, Appellee.
    No. 2D01-5258.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2003.
    Keith D. Miller of Boswell & Dunlap, Bartow, for Appellant.
    Douglas Sherman of the Department of Children and Families, Bartow, for Appel-lee.
   PER CURIAM.

D.G., the father of two minor children, challenges a finding of dependency claiming that there was insufficient evidence to support the trial court’s decision. We reverse because, through no fault of the father, critical portions of the record are unavailable for our review.

The dependency petition filed by the Department of Children and Families contained three counts alleging abuse, neglect, and abandonment. The trial court determined the adolescent children dependent based only on the first count and dismissed the other two for lack of evidence. The trial court ruled the children dependent based on their father’s chronic drug usage, thus causing harm to the children. § 39.01(30)(g)(2), Fla. Stat. (2001). D.G. admitted some recent illegal drug use and testified that he had attended three different residential rehabilitation programs in his seventeen-year marriage, the last in 1995, but he asserted that he had never used drugs in the presence of his children, as one child had claimed. The trial court’s order included a finding that the children and their mother admitted misrepresenting facts to authorities to obtain help for D.G. or because they were mad at him.

We are hampered in our review of this case because the trial court’s decision was based, in large part, on the children’s testimony at the dependency hearing but a transcript of their testimony is not part of the appellate record. When the court reporter attempted to transcribe the tape that had recorded the children’s testimonies, she found that it was blank. D.G. claims that he is severely prejudiced by this omission in the record, through no fault of his own, because the children’s testimonies are critical in this case. We agree.

In Jones v. State, 780 So.2d 218 (Fla. 2d DCA 2001), a full transcript of the trial proceedings was requested by the defendant but was not available for review, through no fault of the defendant. The missing portions of the transcript were necessary for a complete review of the issues raised on appeal, and the court had no alternative but to remand the case for a new trial. The same is true in this case. See also Freeman v. State, 804 So.2d 484 (Fla. 2d DCA 2001). D.G.’s counsel cannot adequately represent his client or accurately present the issues to us without this critical part of the record. Therefore, we reverse the finding of dependency and remand the case to the trial court for retrial.

Reversed and remanded.

FULMER, CASANUEVA and KELLY, JJ., Concur.


author: JjPER CURIAM.

text:
    In re Jerry F. PALMER.
    No. 2002-B-1780.
    Supreme Court of Louisiana.
    Dec. 4, 2002.
    Rehearing Denied Feb. 14, 2003.
    Charles B. Plattsmier, Baton Rouge, Eric K. Barefield, New Orleans, for applicant.
    Gary J. Elkins, Jerry F. Palmer, Richard L. Traína, New Orleans, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

JjPER CURIAM.

This disciplinary proceeding arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Jerry F. Palmer, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In October, 1988, respondent was hired by Bomar Investment Corporation (“Bo-mar”) to act as general counsel for its family of insurance companies. These insurance companies were domiciled in various states, including Louisiana, and some operated in about twenty to thirty states.

Approximately two months after taking the job, respondent realized the insurance companies were either insolvent or almost insolvent. Respondent learned the poor financial condition of the companies stemmed from the fraudulent actions of Mark Herman, Bomar’s majority owner and CEO, who was siphoning company funds for his own personal benefit. Although he was aware of the companies’ poor financial condition, Mr. Herman allowed the companies to continue to sell insurance policies and investments, including annuities and IRAs, and actively solicited business by misrepresenting the companies’ financial conditions.

Each of the companies had different insurance specialities and investors; however, none of them could financially stand on their own in the absence of the other companies. Upon reviewing financial records, respondent determined the few | ¡¡available assets belonging to the companies were being switched from one company’s financial records to the others through sham transactions. Respondent’s primary responsibility was to create and submit fraudulent materials to regulators to further the illegal insurance scheme, which he did.

Subsequently, in 1989, Mr. Herman sold the assets of Bomar to Bob Schamburger and Gary Jackson for $300,000, both of whom knew the family of insurance companies was insolvent. From 1989 to 1991, Mr. Schamburger and Mr. Jackson furthered Mr. Herman’s past illegal scheme, with the assistance of respondent and several others, by distributing advertising materials, legal documents and financial reports to the public and insurance regulators which falsely stated the insurance companies were financially sound.

Respondent was aware Mr. Schambur-ger and Mr. Jackson were personally stealing millions of dollars from the various companies. Despite this knowledge, respondent knowingly prepared and filed legal documents and fraudulent quarterly financial reports which involved the gross over-valuation of assets, fraudulent multimillion dollar real estate deals and sham mortgage loans. In doing so, respondent often backdated financial and transactional documents and corporate records. He also wrote to various insurance officials, including the General Counsel of the Nebraska Department of Insurance, misrepresenting critical financial information. Later, when individuals in the nation-wide insurance industry published articles questioning the solvency of the insurance companies, respondent drafted correspondence under the signature of his supervisor threatening suit against the respective authors, although respondent was aware the published allegations were generally accurate.

By the end of 1991, insurance regulators from several states were actively investigating Mr. Schamburger and Mr. Jackson. During the course of the investigation, respondent received a federal subpoena issued by the United States |,.¡Postal Inspector. Thereafter, the companies were shut down and placed under conservation. However, during this time, Mr. Schambur-ger and* Mr. Jackson still attempted to operate the companies behind the scenes. Rather than participating in the continued fraud, respondent retained legal counsel and provided extensive cooperation to the United States Attorney’s Offices in Louisiana and Florida. Around the same time, respondent accepted a position with a New Orleans law firm and engaged in a commercial transactions practice until January, 1999.

In 1993, respondent entered a plea of guilty in federal court in Louisiana to engaging in a conspiracy to commit an offense in violation of 18 U.S.C. § 371 stemming from his illegal conduct committed in connection with the insurance fraud. In connection with the plea, respondent was assured by federal authorities he would not be charged in any other federal jurisdiction or state court in Louisiana if he continued to cooperate with federal and state authorities. Respondent’s guilty plea |4was sealed and his sentencing was delayed for approximately six years, while he provided continued cooperation to the United States Attorney’s Offices in Louisiana and Florida, as well as to the Louisiana Department of Insurance. Respondent assisted federal and state authorities by reconstructing the vast scheme and testifying at the criminal and civil racketeering trials in both states over a period of several years.

In October, 1999, at the time of sentencing (six years after respondent’s plea), the United States Attorney’s Offices in Louisiana and Florida filed a Motion for Sentencing Departure from the Sentencing Guidelines based upon respondent’s substantial assistance in its criminal investigations over the decade. Specifically, in addition to several others who wrote letters requesting leniency for responden?, Benjamin W. Beard, Deputy U.S. Attorney for the Northern District of Florida, wrote the government would not have prevailed in the Florida criminal proceedings in the absence of the cooperation of respondent and another individual, the only two Bo-mar employees who assisted the government.

Subsequently, respondent was sentenced relative to his federal guilty plea to five years probation, six months residence at a half-way house and payment of restitution in the amount of $50,000 to the Louisiana Department of Insurance Liquidation. At his sentencing hearing, Judge G. Thomas Porteous, the presiding judge, stated he believed respondent had taken responsibility for his actions by notifying all of his clients and preparing to go forward with the institution of disciplinary proceedings.

|,.DISCIPLINARY PROCEEDINGS

Notice of Misconduct

In January, 1999, after the seal on his guilty plea was lifted, respondent voluntarily ceased the practice of law and notified his clients of his resignation. He assumed a paralegal position at a substantially reduced salary with the law firm where he had been employed as an attorney. In addition, respondent finally notified the ODC of his misconduct and requested that disciplinary proceedings be commenced. Respondent and the ODC then filed a motion in this court, requesting respondent be placed on interim suspension. On May 26, 1999, this court granted the motion and suspended respondent on an interim basis. In re: Palmer, 99-1395 (La.5/26/99), 736 So.2d 162.

Formal Charges

After investigation, the ODC filed one count of formal charges against respondent alleging violations of Rules 8.4(a) (violating or attempting to violate the Rules of Professional Conduct), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. Respondent filed an answer admitting to the allegations of misconduct with the exception of violating Rule 8.4(d).

| BFormal Hearing

A formal hearing was conducted exclusively for the presentation of mitigating evidence. Respondent testified as to his knowledge of, and involvement in, the insurance scheme. He stated, throughout 1989, the companies “embarked on a course of how do you fix this ... plugging holes” so as to hide the insolvency of the companies and corrupt actions of its owners, officers and employees. While he asserted he did not have any equity in the businesses, he acted as corporate secretary for most, if not all, of the companies, as well as held other corporate officer positions. He contended his job with the companies primarily consisted of record-keeping and documentary transactions. Respondent admitted that he breached his fiduciary responsibility to the policyholders. He testified he intended to do the things he did, but not the consequences. Respondent conceded he failed to notify anyone of the criminal activities and simply “looked the other way.” He stated he was most sorry for the policyholders in states where there was no guaranty fund to insure against losses, such as in Louisiana and Colorado. Respondent testified as to the detrimental effects his actions had on his family.

Finally, respondent produced several witnesses and documentary evidence attesting to his good character and reputation. Moreover, he submitted substantial documentary evidence relative to his extensive and unprecedented cooperation with federal and state authorities.

| 7Recommendation of the Hearing Committee

Relying on respondent’s own admission, the committee concluded respondent violated Rules 8.4(a) (violating or attempting to violate the Rules of Professional Conduct), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer) and 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) of the Rules of Professional Conduct. It relied on the ABA’s Standards for Imposing Lawyer Sanctions to conclude the baseline sanction is disbarment. It recognized vulnerability of the victims as the only aggravating factor. As to mitigating factors, the committee noted absence of a prior disciplinary record, timely good faith effort to make restitution or rectify consequences of misconduct, full and free disclosure to the disciplinary board or cooperative attitude toward proceedings, good character and reputation, imposition of other penalties or sanctions, remorse, interim rehabilitation and the delay in the disciplinary proceedings.

Relying on the jurisprudence and the overwhelming letters of support from prosecutors and other character witnesses, the committee deviated downward from the baseline sanction of disbarment to recommend a thirty-month suspension, retroactive to the date of respondent’s interim suspension.

IsDisciplinary Board Recommendation

The disciplinary board concurred in the findings of the hearing committee relative to the professional violations. It noted respondent knowingly, if not intentionally, violated duties owed to the public. As to the substantial injury, the board recognized the assets of three insurance companies were depleted and scores of policyholders were injured. The board also adopted the aggravating and mitigating factors cited by the committee, as well as concurred disbarment is the baseline sanction. Thus, it determined the only issue for its consideration was whether the mitigating factors presented warranted a downward departure from the sanction of disbarment.

In finding a lengthy suspension to be more appropriate, the board relied on the letters in the record attesting to respondent’s good character. It also found it significant that the federal judge who sentenced respondent in connection with criminal case departed downward from the sentencing guidelines, based on respondent’s cooperation with the government. Considering these factors, the board recommended respondent be suspended from the practice of law for a period of three years.

The ODC filed an objection to the leniency of the proposed sanction. By operation of Supreme Court Rule XIX, § 11(G), the case was docketed for briefing and argument.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceeding involves an attorney who has been convicted of a crime, the sole issue to be decided by this court is whether the |flcrime warrants discipline, and, if so, the extent thereof. Supreme Court Rule XIX, § 19(E); Louisiana State Bar Ass’n v. Garraway, 520 So.2d 400 (La.1988). The criminal conviction is conclusive evidence of guilt and the discipline to be imposed depends on the seriousness of the offense and the extent of aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

It is uncontested by respondent that the crime of which he was convicted, conspiracy to defraud insurance companies and their investors in violation of 18 U.S.C. § 371, is a serious crime that involves elements of fraud and moral turpitude. Standard 5.11 of the ABA’s Standards for Imposing Lawyer Sanctions suggests that the baseline sanction for such misconduct is disbarment. However, respondent asks us to depart from that baseline sanction by considering the numerous mitigating factors in this case.

We recognize the presence of mitigating factors found by the disciplinary board. Additionally, the record is replete with evidence of respondent’s cooperation in the underlying criminal investigation, for which he received substantial benefit in the federal criminal proceeding.

Nonetheless, these mitigating factors cannot cause us to ignore the magnitude of the harm that resulted from respondent’s use of his legal skills to further this crime. See Louisiana State Bar Ass’n v. Hennigan, 340 So.2d 264, 269 (La.1976) (the presence of mitigating circumstances “do not detract from the fact that the crime relates directly to a flagrant abuse of respondent’s skills as an attorney”). While respondent was not the principal actor in the underlying insurance fraud scheme, his | ^participation in the scheme was essential in order for it to work. He used his skills as an attorney to deceive insurance regulators, policyholders and investors. The end result of this fraud, of which respondent was an integral part, was the loss of millions of dollars by citizens in the state and around the country.

In disciplinary proceedings involving an attorney’s conviction of a crime involving elements of fraud, especially in connection with an organized scheme, this court has not hesitated to impose disbarment. See In re: Schneider, 97-2457 (La.1/30/98), 707 So.2d 38 (attorney convicted of mail fraud, conspiracy to commit mail fraud, intentionally submitting false statements to a banking institution, and tax fraud was disbarred from the practice of law); In re: Naccari, 97-1546 (La.12/19/97), 705 So.2d 734 (attorney and former judge convicted of wire fraud in insurance scheme was disbarred from practicing law); In re: King, 94-0686 (La.11/30/94), 646 So.2d 326 (attorney convicted of aiding and abetting mail fraud was disbarred from the practice of law). As in those cases, disbarment is the only appropriate sanction under these facts.

Accordingly, we must disbar respondent from the practice of law in the State of Louisiana.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of Jerry F. Palmer be stricken from the 'roll of attorneys and that his license to practice law in the State of Louisiana be revoked. 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.

      . 18 U.S.C. § 371, entitled "Conspiracy to Commit Offense or to Defraud United States” provides:
      If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
      If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemean- or.

      . The Factual Basis filed in connection with the criminal proceedings alleged:
      [Respondent], along with his co-conspirators, were involved in a conspiracy created and masterminded by other co-conspirators to defraud certain companies ... and their investors, policyholders, and claimants. As a part of the conspiracy, false financial and advertising information about the insurance companies was disbursed to the public and to regulatory agencies. This information concealed the fraudulent activities of the co-conspirators, concealed the financial problems of the companies, deceived current investors and policyholders so that they would not withdraw their investments, and enticed new investors and policyholders to invest their funds.

      . The trial judge substantially deviated downward from the sentencing guidelines. The guidelines provided the following ranges for the offense: sixty months imprisonment, two to three years supervised release, $12,500— $125,000 fine, $72,348,763 in restitution and a $50 special assessment.

      . Prior to that time, he had been expressly prohibited under the terms of the sealed bill of information and plea from reporting his misconduct and disclosing the existence of his plea to disciplinary authorities due to the potentially detrimental effect on the federal government's case.

      . Harry McSherry, Assistant United States Attorney for the Eastern District of Louisiana, wrote of the benefit of his ten-year relationship with respondent stemming from the lengthy, successful prosecution of the holding company of Mr. Schamburger and Mr. Jackson. He stated that "... few witnesses had to endure such a lengthy period [10 years] where they were called upon to repeatedly satisfy their cooperation obligations.” He further alleged respondent "... stands out as an exception among the many attorney-defendants [he] encountered ... both in regard to his extraordinarily willingness to accept responsibility and his cooperation with law enforcement."
      Barry W. Karns, the Louisiana Department of Insurance’s Court Appointed Receiver for one of Bomar’s failed insurance carriers, wrote that respondent provided valuable assistance to obtain as many assets as possible for the failed insurance company. He further alleged "... the amount of time which [respondent] spent in assisting [his] office and the quality of [respondent's] assistance has surpassed that provided by any other former officer, director, or owner of a failed insurance company."
      Mr. Beard, Deputy U.S. Attorney for the Northern District of Florida, wrote he had never met an individual that deserved more consideration at the time of sentencing than respondent based on his cooperation and efforts to correct the harm he caused.

      . Standard 5.11 provides disbarment is generally appropriate when a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft.

      . Standard 5.11(a) provides that disbarment is generally appropriate when "a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft.

      . However, it is noteworthy that respondent cooperated only after the scheme was uncovered by the authorities.


author: |, JOHNSON, Justice.

text:
    Robert J. McGUIRE v. NEW ORLEANS CITY PARK IMPROVEMENT ASSOCIATION, and ABC Insurance Company.
    No. 2002-C-1401.
    Supreme Court of Louisiana.
    Jan. 14, 2003.

      Richard P. Ieyoub, Attorney General, Susan H. Lafaye, Baton Rouge, Counsel for Applicant.
    David A. Abramson, Lewis, Kullman & Sterbcow, New Orleans, Counsel for Respondent.
   |, JOHNSON, Justice.

This is a personal injury case involving a non-golfer, who was struck in the groin area by a golf ball while jogging near one of New Orleans City Park’s golf courses. The plaintiff sustained a serious injury to his right testicle, which ruptured, requiring surgery and partial removal. As a result of the injury, the plaintiff sued New Orleans City Park Improvement Association, which operates City Park, and the State of Louisiana, which insures the facility. The trial jury found City Park negligent and assessed it 40% fault and assessed the plaintiff with 60% comparative fault. City Park appealed this ruling. The court of appeal affirmed the jury’s findings. City Park filed this writ of cer-tiorari, which we granted, to determine whether City Park owed a duty to non-golfers jogging near a golf course. Under these circumstances, we find that City Park’s golf course did not present an unreasonable risk of harm. City Park therefore had no duty to provide additional protection or warnings to a non-golfer.

FACTS AND PROCEDURAL HISTORY

On April 25, 1994, the plaintiff, Robert McGuire, and two of his friends, Ron Rig-gle and Dr. James Moisés, were jogging on Palm Drive in New Orleans City Park near the Bayou Oaks Little Course. Three of the park’s golf courses are north of the interstate and railroad tracks. The Little Course is also called the South Course. At | ¿trial, the plaintiff testified that he began jogging on City Park Avenue, where he met his two friends, turned right onto Marconi Drive to Tad Gormley Stadium, where they turned right and entered City Park, down Franklin D. Roosevelt Mall veered left on Golf Drive, which becomes Palm Drive once the bridge is crossed. As they were jogging on Palm Drive, after crossing the bridge near South Course Hole No. 3, a golf ball landed on the roadway in front of the plaintiff then bounced and struck him in the groin area, causing his right testicle to rupture. As a result of the injury, the plaintiff had surgery and a portion of his right testicle was removed.

New Orleans City Park covers 1500 acres of land, and is the fifth largest urban park in America. It has four golf courses, with 22 miles of unrestricted public roadways, which is surrounded by golf tees and greens on both sides. South Course is one of the shorter of the four golf courses.

On October 20, 1994, the plaintiff filed suit against the New Orleans City Park Improvement Association, the operators of the golf course, and its insurer (collectively referred to as “City Park”) for damages, alleging that the City Park breached its duties: to warn non-golfers on Palm Drive of the danger of golf balls, to configure the golf course so that a danger was not created for non-golfers on Palm Drive, and to provide a protective barrier between the golf course and Palm Drive.

Subsequently, City Park filed a motion for summary judgment, asserting that: 1) the plaintiff jogged through the golf course between two clearly visible greens, which was not a hidden peril that required a warning or protective barrier; 2) the risk |awas ordinary; and 3) it was not reasonably foreseeable that a golfer would hit a ball so far to the right that a non-golfer would be injured. The trial court granted its motion. The court of appeal reversed the trial court and remanded the case for further proceedings, finding that there were issues of material fact relating to City Park’s duty. City Park filed a writ of certiorari, which this Court denied. City Park filed a second motion for summary judgment, which the trial court denied. On October 16, 2000, this matter went to a jury trial before the Honorable Kim Boyle, Judge Pro Tempore.

After a trial on the merits, the jury found City Park negligent and awarded judgment in favor of the plaintiff in the amount of $13,750 for past, present and future physical pain and suffering; $15,000 for past, present and future mental distress; $30,000 for past medical expenses; $16,250 for permanent disfigurement, for a total damage award of $75,000. The jury assessed City Park with 40% fault, and assessed the plaintiff with 60% comparative fault. City Park filed a Motion for Judgment Notwithstanding the Verdict. A remittitur was granted reducing the medical expenses from $30,000 to $11,680.52; thus, the total damages were reduced to $56,680.82. City Park appealed this ruling.

On appeal, a three member panel of the Fourth Circuit Court of Appeal affirmed the trial court’s ruling, with one judge dissenting. The court of appeal held that City Park owed a duty to a “passer-by not playing golf and not on the golf course” to exercise reasonable and ordinary care to keep the premises reasonably safe and take reasonable precautions, such as: placing warning signs, posting barriers between the golf tee and the road, configuring the course differently, or closing Palm Drive to pedestrians and bicycle traffic near the golf course. The court of appeal found no |4manifest error in the jury’s allocation of fault and found that evidence supported an award for disfigurement despite the lack of expert medical testimony, noting the plaintiffs testimony concerning his testicle’s disfigurement was credible and was corroborated by the medical records.

Dissenting, Judge Gorbaty reasoned that City Park did not breach its duty to protect the plaintiff, but instead, acted reasonably to protect the public from any foreseeable injury. He cited Sutter v. Audubon Park Com’n, 533 So.2d 1226, 1231 (La.App. 4th Cir.1988), writ denied, 538 So.2d 597 (La.1989), which sets forth the proper test for whether the property manager has acted reasonably in view of the probability of an injury to others. He further noted that the plaintiff “lived near City Park for many years, had jogged along this very path on numerous occasions and was aware that the path on which he was jogging traversed a golf course.” Judge Gorbaty explained that the plaintiff conceded that he saw golfers as he was jogging. However, at trial, the plaintiff testified that he failed to see the signs indicating this was a golf course, i.e., “Golf Cart Crossing.” Judge Gorbaty found that the majority’s suggestions of preventive measures went beyond what is reasonable to protect against such a remote possibility of harm. Thus, he held that the trial court erred in finding City Park liable for the plaintiffs liability.

DISCUSSION

A reviewing court may not disturb a jury or trial court’s findings, which are afforded vast deference, unless a particular finding of fact was “clearly wrong or manifestly erroneous.” The determination of an unreasonable risk of harm is subject to review under the “manifest error” standard. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98) 708 So.2d 362, 365; Stobart v. State, 617 So.2d 880, 882 (La.1993); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

|sIn general, landowners and land occupiers have a duty to refrain from acting negligently toward those they know or should have known will come onto their property. The duty of a governmental agency or municipality operating a public park is held to keep the premises in a reasonably safe condition for those using the park and to discover any unreasonably dangerous conditions on the premises and to either correct the conditions or warn of the danger. Sutter, supra; Godfrey v. Baton Rouge Recreation and Parks Commission, 213 So.2d 109 (La.App. 1st Cir.1968).

This issue of a non-golfer getting struck by a golf ball while jogging near a golf course is res nova in this Court. In other jurisdictions golf course owners have been found liable to non-golfers under certain circumstances for failing to maintain the premises in a reasonably safe condition. In Lexington Country Club v. Stevenson, 390 S.W.2d 137 (Ky.1965), the owners were found liable when a car passenger was struck in the eye by a golf ball while the vehicle was in the clubhouse driveway that crossed a frequently used golf fairway; the court noted that there were no warning to motorists and no special regulation of play at the hole. Id. See also Westborough Country Club v. Palmer, 204 F.2d 143 (8th Cir.1953). A golf course owner was found liable when an automobile passenger was struck by a golf ball where the hole was adjacent to a frequently used highway in Gleason v. Hillcrest Golf Course, Inc., 148 Misc. 246, 265 N.Y.S. 886 (1933). In another case, a golf course owner was held liable when a boater, traveling down a river flowing through a golf course, was struck by a golf ball where no warning signs were posted relating to flying balls. Kirchoffner v. Quam, 264 N.W.2d 203 (N.D.1978).

Although res nova in this Court, the Fourth Circuit Court of Appeal in Sutter, supra, provided an excellent analysis of the liability of public parks. There, the court noted that a governmental agency, or a municipality operating a public park is required to use reasonable or ordinary care to keep the premises reasonably safe for | fithose using the park. In furtherance of such, the operator should furnish equipment and services to prevent injury from conditions which foreseeably may cause injury. However, the operator is not the insurer of its patron’s safety, but is liable only for injuries resulting from its negligence. Id.

In Sutter, a visitor was shot in Audubon Park’s Shelter No. 12 restroom by an unknown assailant and rendered a paraplegic. The visitor brought a negligence action against Audubon Park Commission and its insurers. After a trial on the merits, the trial court found Audubon liable. On appeal, the court reversed the trial court’s ruling holding that Audubon’s restroom did not present a foreseeable or unreasonable danger against which Audubon had a duty to protect or warn. The court reasoned that there was no history of any violent crimes occurring in the shelter and the shelter’s location or physical design did not present an unreasonable risk to the park’s visitors. The court noted that the shooting was random and unforeseeable. Audubon Park therefore had no duty to anticipate this random act of violence.

Duty-Risk

We now turn to the issue before this Court, which is whether City Park had a duty to protect a non-golfer against injury from being struck by a golf ball. In order to determine whether liability exists on the part of a public body, Louisiana has adopted a duty-risk analysis. Cormier v. T.H.E. Ins. Co., 98-2208 (La.1999); 745 So.2d 1; Stroik v. Ponseti, 96-2897 (La.9/9/97); 699 So.2d 1072; Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94); 646 So.2d 318; Berry v. State Through Dep’t of Health and Human Resources, 93-2748 (La.5/23/94); 637 So.2d 412; Roberts v. Benoit, 605 So.2d 1032 (La.1991). According to Daye v. General Motors Corp., 97-1653 (La.9/9/98); 720 So.2d 654, the duty-risk analysis is employed on a case by case basis. See, Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1369 (La.1984). Under the duty-risk analysis, the plaintiff must satisfy the following requisites to 17prove negligence; the plaintiff must prove that: 1) the conduct in question was a cause-in-fact of the resulting harm, 2) the defendant owed a duty of care to the plaintiff, 3) the defendant breached that requisite duty and 4) the risk of harm was within the scope of protection afforded by the duty breached. Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96); 673 So.2d 585. If the plaintiff fails to prove any one of the elements, the defendant is not liable. Id. This Court is obligated to decide whether City Park presented an unreasonable risk of harm to non-golfers based upon the facts of this case. Determining whether a risk is unreasonable requires a “balance of the intended benefit of the thing with its potential for harm and the cost of prevention.” Id. citing Socorro v. City of New Orleans, 579 So.2d 931, 939 (La.1991). Also, in determining negligence, we must consider the “obviousness” and the “appar-entness” of the complained of condition. Id. If the facts demonstrate that the complained of condition was obvious to all, the condition is not unreasonably dangerous and the defendant owes no duty to the plaintiff. Id.

We begin our duty-risk analysis by examining the “duty” owed by City Park to the non-golfer.

City Park argues that it had no duty to protect a non-golfer traveling the roads traversing the golf course against injury from an errant golf shot because the risk of a non-golfer getting struck by a golf ball was “obvious, reasonable, and minuscule.” City Park concedes that it had a duty to discover any unreasonably dangerous condition, correct it or warn others of the condition. Nonetheless, City Park acted with reasonable care under the circumstances. In the alternative, City Park argues that if it had a duty to warn because of a hidden danger, it fulfilled that duty by adequately warning entrants to the park of possible golf activity, erecting signs regarding golfing, i.e., “golfers only beyond this point,” “golf cart crossings,” and designing the golf course so as to avoid the possibility of injury. City Park concludes that the plaintiff [^failed to prove that it acted unreasonably.

In order to properly analyze the “duty” element, we must consider whether these circumstances presented an unreasonable or foreseeable danger to the non-golfer which City Park had a duty to protect or warn against.

We find that the plaintiff is precluded from recovery because of his familiarity with the park and the golf course. We note that the plaintiff testified that he grew up near City Park, lived 13 years of his adult life a mile from City Park, had previously jogged that route, knew that the route traversed a golf course, and observed golfers as he was jogging that day. This non-golfer therefore was warned and should have anticipated encountering golf balls when jogging near the vicinity of a golf course because the risk of injury was obvious and readily observable. City Park under these circumstances owed no duty to provide additional warnings.

In Pitre v. Employers Liability Assurance Corporation, 234 So.2d 847 (La. App. 1st Cir.1970) writ denied, 256 La. 617, 237 So.2d 398 (1970), the plaintiffs son was struck in the head by a patron, who was winding up to pitch a baseball at a concession stand at the Thibodaux Fireman’s Fair held on public school grounds. The court noted that there were no barriers or areas marked off separating the concession participants and mere spectators. This Court held that to find negligence, a risk must be both foreseeable and unreasonable. “Ordinary care requires only that precautions be taken against occurrences that can and should be foreseen; it does not require that one anticipate unusual and improbable, though entirely possible happenings.” Id. at 852, citing Rouseo v. Gauche-Connor Co., 8 Orleans App. 216, 1911 WL 1863.

In Pitre v. Louisiana Tech, supra, where a student was paralyzed after sledding down a slope in the snow on a large garbage can lid which collided with the concrete |flbase of a light pole, this Court held that the university owed no duty to the plaintiff. The Court found that under a duty-risk analysis, “the obviousness and apparentness of a potentially dangerous condition are relevant factors to be considered.” The Court noted that if the facts of a particular case show that the risk is obvious to all, then the risk is not unreasonably dangerous and the public entity does not owe a duty to the plaintiff. See also Cates v. Beauregard, 328 So.2d 367 (La.1976), where a teenager “shinnied up a utility pole to cut an electric wire,” this Court found that the plaintiff was precluded from recovery because he, knowing a little about electricity, should have known the risk involved in shinnying up a pole to cut an electric wire.

After considering the facts of this case, we find that the remedies required by the court of appeal’s ruling which included erecting barriers, reconfiguring the golf course, or closing off the street to non-golfers, i.e., pedestrians or bicyclists, would be prohibitive considering that this was an isolated incident of injury. With regard to erecting barriers, we note that: 1) barriers would be required on both sides of the road to effectively protect any non-golfers from an accidental injury; 2) high barriers would substantially interfere with the game of golf, and 3) the cost of the barriers would be unreasonable considering that there has been no reported accidental injury of this nature since City Park has existed.

With regard to reconfiguring the park, Ronald Bernandi, City Park’s head golf professional, Pat Dayton, the park’s general manager and superintendent, and Mack-el all testified that the four golf courses have had the same layout for over 75 years. The designs have never been substantially altered or reconfigured because of any unreasonable danger to a non-golfer, and the safety measures are no different than at any other public golf course in the country. Dayton testified that the park is open 365 days per year and every year the park attracts approximately fourteen million visitors with no pedestrian injury reported. For this reason, we maintain that the foreseeability |inof an injury of this kind occurring is “practically nil.”

We also find that it would be unreasonable to close off the road through the South Course to non-golfers because of an isolated incident to one person. Closing South Course’s roads would mean all roads traversing the golf course would be closed to the public, depriving them of the park’s enjoyment. Thus, these suggestions go beyond what would be a reasonable response when we consider the magnitude of the risk of injury to non-golfers. Relying upon Goff v. Carlino, 181 So.2d 426 (La. App. 3d Cir.1965), which held that a park is negligent if the magnitude of the risk of injury outweighs the public park’s social value, we note that the park’s purpose is to provide the maximum recreation and leisure opportunities for the greatest number of people; City Park is an unfunded state agency, and golf is the largest single source of revenue. If the roads were closed to pedestrians, barricades erected, or the golf courses redesigned, the cost to the park will be prohibitive, golfing will end, and the park will have to close, resulting in harm to the public. Thus, we conclude that the social value to the public is much greater than the risk of harm to non-golfers.

For these reasons, we conclude that the court of appeal erred in finding that City Park failed to exercise reasonable care to keep the golf course safe.

Considering the evidence presented in this case, we agree with City Park’s rationale that it owed no duty to the plaintiff/non-golfer to protect him against injury from a golf ball. We also agree with Judge Gorbaty that this harm was ordinary and not unreasonable. We believe the plaintiff was familiar with this area and should have anticipated this danger. Therefore, we find that the jury and the court of appeal were clearly wrong in finding that the defendant owed the plaintiff a duty.

CONCLUSION

For the aforementioned reasons, we find the jury and the court of appeal’s ruling manifestly erroneous, for City Park did not breach a duty owed to this plaintiff. 171 Therefore, City Park is not Hable for the plaintiffs injuries. In view of this finding, we pretermit discussion and consideration of the remaining elements. Accordingly, we reverse the judgment of the trial jury and the court of appeal and render judgment in favor of City Park, against the plaintiff, dismissing his suit.

DECREE

REVERSED.

      . The plaintiff's testimony was corroborated with the testimonies of Riggle and Moisés.

      . At trial, Frank Mackel, an expert in golf course design and development, testified that it is approximately 56 yards from Tee No. 3 to the green and 170 yards from Tee No. 3 to the site in question. Webster defines a '‘tee” as "a small peg stuck in the ground for holding a golf ball for a first stroke; the raised area from which a golfer tees off.” A "hole” is "the small, cuplined depression into which the ball must be hit.” "Green” is a "grassy lawn or plot; a putting green,” which is "the smooth, closely mowed area at the end of the fairway on a golf course in which the hole is placed.”

      . There is nothing in the record to indicate that the plaintiff appealed the jury ruling that found him 60% comparatively at fault. Therefore, this is not at issue before this Court.

      . Mackel testified that any observer would know that the road in question traversed a golf course because the green is visible from the bridge.


author: 11WEIMER, Justice.

text:
    Gary L. RING, individually and on behalf of all others similarly situated, v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, and the Division of Weights and Standards.
    No. 2002-CA-1367.
    Supreme Court of Louisiana.
    Jan. 14, 2003.

      James J. Bolner, Jr., Keith M. Detweiler, Berrigan, Litchfield, Schonekas & Mann, New Orleans; Richard P. Ieyoub, Attorney General, Counsel for Applicant.
    Nathan M. Bandaries, Kenneth A. Goodwin, New Orleans, Robert G. Creely, Gret-na, Amata & Creely, Counsel for Respondent.
   11WEIMER, Justice.

This case is before us as a direct appeal from district court judgments declaring LSA-R.S. 32:389, both prior to and after its August 15, 2001 amendment, unconstitutional. Because we find that the district court erred and addressed the constitutional issue prematurely, we reverse the judgments and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On March 9, 2000, Gary Ring, an Illinois resident, was operating an eighteen wheel vehicle owned by Landstar/Ligon on the interstate highway near Toomey, Louisiana, in Calcasieu Parish when he was stopped by a Calcasieu Parish Deputy and subsequently ticketed by an employee of the Department of Transportation and Development, Division of Weights and Standards, for fading to stop at a stationary weight enforcement scale, a violation of LSA-R.S. 32:388. At the time of the offense, the violation carried a fine of $2,000.00. Pursuant to LSA-R.S. 32:389, Ring, as a | ^non-Louisiana resident, was required to pay the fine or face impoundment of his truck and cargo until such time as the fine was paid. Ring paid the fine under protest and sought administrative review of the citation before the Department of Transportation and Development’s Violation Ticket Review Committee (“VTRC”). His protest was denied by the VTRC on June 15, 2000.

On March 8, 2001, Ring instituted suit against the State of Louisiana, Department of Transportation and Development, and the Division of Weights and Standards (“W & S”). Ring’s petition, styled a “Petition for Damages and Recognition as a Class Action,” alleges that the enforcement and collection procedures set forth in LSA-R.S. 32:389 violate the constitutional rights of both resident and non-resident truck drivers who are issued citations by W & S personnel. In particular, Ring asserts that non-resident truck drivers are deprived of a substantive property right and liberty interest when, without notice or opportunity to be heard at a pre-depri-vation hearing, they are required to pay fines “on the spot” or face impoundment of their vehicles. Ring alleges that because Louisiana truckers are not subject to these requirements, the State has placed an unfair burden upon non-residents in violation of the Equal Protection Clause of the United States Constitution and has impeded the free flow of interstate commerce. Further, Ring alleges that the enforcement and collection procedures set forth in LSA-R.S. 32:389 fail to provide both resident and non-resident truck drivers a meaningful pre-deprivation or post-deprivation hearing prior to the collection of fines or the seizure of property and the suspension of driving privileges in violation of the Due Process guarantee of the Fourteenth Amendment to the United States Constitution. Such action, Ring alleges, constitutes state action in violation of 42 U.S.C. § 1983. Ring’s petition seeks certification as a class action, a declaration of the illegality and/or unconstitutionality of LSA-R.S. 32:389 and damages.

| ¡¡The State responded to Ring’s petition by filing exceptions of prescription and no cause of action. The prescription exception avers that Ring’s suit was not filed within ninety days of payment of the assessed penalty as required by LSA-R.S. 32:389(C)(4) (a), and is therefore prescribed on its face. The no cause of action exception alleges that Ring’s pleading fails to satisfy the requirements for class certification set forth in LSA-C.C.P. art. 591, and, in addition, challenges Ring’s qualifications to represent the putative class.

On October 26, 2001, Ring filed a motion for partial summary judgment, seeking a declaration that LSA-R.S. 32:389 is unconstitutional. The motion came on for hearing on December 3, 2001, prior to resolution of the pending exceptions of prescription and no cause of action, prior to answer being filed by the State, and prior to class certification. At the close of argument, and over the State’s objection, the district court granted Ring’s motion and declared LSA-R.S. 32:389, in its form pri- or to its August 15, 2001 amendment, unconstitutional. In oral reasons, the court ruled that the statute violates the Equal Protection and Due Process guarantees and, in addition, violates the provisions of the Louisiana Administrative Procedure Act, specifically LSA-R.S. 49:955 et seq.

In the meantime, during the pendency of this proceeding, LSA-R.S. 32:389 was amended pursuant to Acts 2001, No. 1201, § 1, which became effective on August 15, 2001. The amended statute reduced the fine to $500.00 and set forth new procedures for the review of violations and payment of fines. On December 26, 2001, Ring filed a second motion for partial summary judgment and, alternatively, for partial new trial seeking a declaration that the amended version of the statute is also unconstitutional. On February 21, 2002, the district court signed a judgment granting Ring’s second motion for partial summary judgment and declaring LSA-R.S. 32:389, as amended, unconstitutional. The court found that the amendment did not cure the constitutional |4defects in the statute. The court certified the judgments on both motions for partial summary judgment as final and the State appealed. This court has jurisdiction over that appeal pursuant to Article V, § 5(D)(1) of the Louisiana Constitution of 1974 which provides this court with appellate jurisdiction over all cases in which “a law or ordinance has been declared unconstitutional.”

DISCUSSION

The State first contends that the district court erred in ruling prematurely on the constitutionality of LSA-R.S. 32:389, arguing that the court should have resolved the issues of class certification and the exceptions of prescription and no cause of action prior to reaching the constitutional issue. The State contends that it objected to the trial court addressing the motion for summary judgment prior to resolving these threshold issues, but the district court overruled its objection. Ring argues that, to the contrary, the parties agreed to try the constitutional issue in advance of class certification, and that the district court was bound by that agreement.

We have repeatedly and consistently held that courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, the resolution of the constitutional issue is essential to the decision of the case or controversy. State v. Fleming, 2001-2799 (La.6/21/02), 820 So.2d 467, 470; Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186, 1199; Louisiana Associated Gen. Contractors, Inc. v. New Orleans Aviation Bd., 97-0752 (La.10/31/97), 701 So.2d 130, 132; Cameron Parish Sch. Bd. v. AcandS, Inc., 96-0895 (La.1/14/97), 687 So.2d 84, 87; White v. West Carroll Hosp., Inc., 613 So.2d 150, 157 (La.1992). Further, our jurisprudence counsels that the practice of courts is “never to anticipate a question of constitutional law in advance of the necessity of deciding it.” Matherne v. Gray Ins. Co., 95-0975 (La.10/16/95), 661 So.2d 432, 434; |5 Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961) (citing Liverpool, New York & Philadelphia S.S. Co. v. Commissioners, 113 U.S. 33, 5 S.Ct. 352, 28 L.Ed. 899 (1885)); Arizona v. California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154 (1931). Courts should avoid constitutional rulings when the case can be disposed of on non-constitutional grounds. Blanchard v. State Through Parks and Recreation Commission, 96-0053 (La.5/21/96), 673 So.2d 1000, 1002.

The rationale for this policy of judicial restraint has been said to lie “in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality.” Rescue Army v. Municipal Court of City of Los Angeles, 331 U.S. 549, 571, 67 S.Ct. 1409, 1421, 91 L.Ed. 1666 (1947). Its foundations, longstanding and firmly rooted in our jurisprudence, derive from “the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system.” Id. Courts should both respect legislative enactments and at the same time seek to provide substantial remedies to wrongly aggrieved persons. It is the balancing of these oftentimes competing directives that leads to the general rule: a judge should not judicially declare a statute unconstitutional unless it is essential to the decision of a case or controversy. Board of Com’rs of Orleans Levee Disk v. Connick, 94-3161 (La.3/9/95), 654 So.2d 1073, 1076.

| fiThe ripeness doctrine is a tool designed to determine when judicial review is appropriate. As we explained in Matherne v. Gray Ins. Co., 95-0975 (La.10/16/95), 661 So.2d 432, 435: “Generally, the ripeness doctrine is viewed as being both constitutionally required and judicially prudent. ‘The prudential restrictions result from the fact that most courts would rather avoid speculative cases, defer to finders of fact with greater subject matter expertise, decide eases with fully-developed records, and avoid overly broad opinions, even if these courts might constitutionally hear a dispute.’ ” Matherne, supra, quoting Gregory M. Stein, Regulatory Takings and Ripeness in the Federal Courts, 48 Vand.L.Rev. 1, 11 (1995). In Matheme, we identified two elements that are relevant in establishing the ripeness of a case: (1) the hardship to the parties if a court does not decide; and (2) the fitness of the issues for decision. Id. If a party will be significantly injured by a court’s failure to decide an issue quickly, if the record is well developed and the risk of a speculative or overly broad opinion is thereby lessened, then the issue is more likely fit for decision. Id. On the other hand, Louisiana has never had a provision authorizing the court to issue advisory opinions, and, until a controversy becomes concrete and focused, it is difficult for the court to evaluate the practical merits of the position of each party. “If a record is concrete rather than abstract in nature, the Court may find a way of interpreting the statute to avoid or minimize the constitutional issue.” RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW § 2.13 (2d. ed.1992). Moreover, there is a possibility that if the court waits for an actual controversy, the whole constitutional problem may be eliminated by later developments. Matherne, 661 So.2d at 436.

While there is no doubt that this Court has the power and authority to address the constitutional issue presented by the district court’s ruling in this case, we are not required to do so. We are only obligated to rule if the procedural posture of the case |7and the relief sought by the appellant demand that we do so. Matherne, 661 So.2d at 436. In this instance, we find that the case is not in the proper procedural posture for a ruling on the constitutional issue. Our learned colleague on the district court need not have, and from our perspective, should not have entertained the plaintiffs partial summary judgment motions and declared LSA-R.S. 32:389 unconstitutional prior to resolution of the pending exceptions of prescription and no cause of action. The case was clearly not in a posture to render the issue of the constitutionality of LSA-R.S. 32:389 ripe for resolution. In fact, the record in this matter reveals that the plaintiffs summary judgment motions were acted on pri- or to issue being joined as an answer was not filed by the defendant, in clear contravention of the provisions of LSA-C.C.P. art. 966(A). Moreover, the pending prescription and no cause of action exceptions specifically raise issues relative to the named plaintiffs standing to bring this action. If the named plaintiff, Gary L. Ring, will not benefit from a judgment determining LSA-R.S. 32:389 to be unconstitutional because his right to recover the amount of the fine paid under protest is prescribed, then he does not have any rights in controversy sufficient to give him standing to bring this action. See Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 720 So.2d at 1199-1200 (district court was required to address issue of whether plaintiffs had standing to pursue tax refund before reaching constitutionality of ordinance); Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697, 708 (La.1993).

In a supplemental brief to this Court, Ring argues that the ninety day period provided by LSA-R.S. 32:389(0(4) ' in which an owner or driver who pays an assessed penalty under protest must institute a civil suit against the department to 1 ¿¡recover the penalty so paid “is a patent breach of the truck driver’s constitutional rights of due process,” and that to “return to the trial court for that determination would seem to be an exercise in futility.” However, the constitutionality of the time limitation in LSA-R.S. 32:389(0(4) was not raised below and there is absolutely no proof in the record regarding how that limitation is so short as to deny a litigant due process. Ring’s attempt in this instance to circumvent the State’s prescription exception by asking the court to reach the issue of the constitutionality of the statute vel non does not warrant deviation from our requirements relative to ripeness and standing.

Ring’s standing to bring this action challenging the constitutionality of LSA-R.S. 32:389 — both prior to and after its amendment — was directly challenged in the no cause of action exception filed by the State and pretermitted by the district court’s ruling on the partial summary judgment motions. Whether the parties agreed to try the merits of the constitutional argument first, as Ring contends, or whether the State objected to proceeding without first resolving the pending exceptions of prescription and no cause of action, as the State contends, we find that the district court erred in reaching the constitutional issue at this juncture in the proceedings. If Ring has no ultimate interest in seeking to have LSA-R.S. 32:389 declared unconstitutional, either because his claim for recovery of the fine paid under protest is prescribed and/or because he was ticketed and fined under the pre-amendment version of the statute and he seeks a declaration of the uneonstitutionality of the statute both pre- and post-amendment, then any declaration of unconstitutionality by the district court is an impermissible advisory opinion. See, Church Point Wholesale Beverage Co., Inc. v. Tarver, supra.

In summary, we find that the district court need not have, and indeed should not have, entertained Ring’s summary judgment motions prior to resolution of the threshold issues of prescription and standing. The judgments in the district court were premature. Ring will not be significantly injured by this Court’s failure to decide the constitutional issue now because, depending on the resolution of the pending exceptions, the constitutional challenge may not materialize in this case. The record is not well-developed, issue not having been joined. Indeed, the case must be remanded for that reason alone, to allow an adequate record to be developed. A speculative ruling will thereby be avoided.

Because we find that the district court reached the constitutionality of LSA-R.S. 32:389, both prior to and post amendment, prematurely, we vacate and set aside the summary judgments granted below and remand this case to the district court for further proceedings in accordance with the views expressed in this opinion.

DECREE

For the foregoing reasons, we vacate and set aside the judgments of the district court granting plaintiffs motion for partial summary judgment and second motion for partial summary judgment. This case is remanded to the district court for further proceedings consistent with this opinion and the reasons expressed therein.

JUDGMENTS VACATED AND CASE REMANDED.

      . We pretermit addressing whether the class certification issue must be resolved before the constitutional issues.

      . Ring was ticketed and paid his assessed fine under protest on March 9, 2000. This suit was instituted on March 8, 2001, well outside the ninety day period provided in LSA-R.S. 32:389(C)(4) for instituting suit against the department to recover fines paid under protest.

      . The test for determining the constitutional validity of a limitation statute is whether it allows a reasonable time for the assertion of the right or the enforcement of the obligation; the legislature is primarily the judge of the reasonableness of the time allowed. Atchafalaya Land Co. v. P.B. Williams Cypress Co., 146 La. 1047, 1064, 84 So. 351 (1920), affirmed, 258 U.S. 190, 42 S.Ct. 284, 66 L.Ed. 559 (1922). Unless the time allowed is so short as to amount to a denial of justice, the courts will not interfere. Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950).

      . Ring was ticketed and fined under the pre-amendment version of LSA-R.S. 32:389, and not the post-amendment version of the statute.

      . As indicated, courts should avoid constitutional rulings when the case can be disposed of on non-constitutional grounds. Blanchard, supra. Absent exceptional circumstances not obvious from our review of this matter, the parties cannot thwart this principle of judicial restraint by stipulating the constitutional issues will be resolved prior to resolution of other issues.

      .The record does not definitely substantiate the contention of either party in this regard.