text:
    James KRAVITZ, Individually, and as Administrator D.B.N.C.T.A. of the Estate of Max Kravitz, Appellant, v. Marcus LEVY and Frieda Passon, as Co-Personal Representatives of the Estate of Morris Passon, Appellees.
    Nos. 4D06-915, 4D06-4034.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Rehearing Denied Feb. 20, 2008.

      Peter J. Forman of Tescher Gutter Chaves Josepher Rubin Ruffin & Forman, P.A., Boca Raton, for appellant.
    Victor Kline, Amanda Chapman and Richard H. Gaines of Greenspoon Marder, P.A., Fort Lauderdale and Orlando, for appellees.
   On Motion for Rehearing

WARNER, J.

We deny appellees’ motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

A beneficiary of an estate appeals a final summary judgment in favor of the estate of the deceased personal representative of the estate, concluding that the beneficiary’s cause of action against the personal representative for breach of fiduciary duty was barred by the statute of limitations. Because we conclude that there is an issue of material fact as to whether the actions of the personal representative constituted a continuing tort, we reverse.

Max Kravitz, a resident of Pennsylvania, died in July 1958. Thereafter, in 1959, Kravitz’s will was admitted to probate in Pennsylvania, and Morris Passon, Krav-itz’s brother-in-law, was appointed executor of the estate. Appellant, James Krav-itz, was both Kravitz and Passon’s nephew and a beneficiary under Kravitz’s will.

In 1963, Passon filed a First and Final Account for the estate valuing the net balance of the estate at $591,126.15. The Pennsylvania court entered an adjudication confirming the account and ordering Passon to distribute the residue of the Kravitz estate. Subsequently, in 1966 the court entered an Audit of First and Final Account. However, there was no order closing the estate and discharging Passon as personal representative, nor were all the assets of the estate distributed.

In October 2000, Passon died a resident of Florida. Marcus Levy and Frieda Pas-son were appointed co-personal representatives of the Passon estate. Levy contacted appellant in December 2000 and informed him that certain stocks in Pas-son’s possession at the date of his death and an escrow account apparently belonged to the Max Kravitz estate. Levy then delivered the stocks and a share of the escrow account to appellant. This unexpected distribution led appellant to commence an investigation of the assets in the Max Kravitz estate, from which he alleged that he had received only $25,000 in the early 1960s.

As a result of his investigation, Kravitz filed suit against the Passon estate for negligence, conversion, tortious interference with an inheritance, and breach of fiduciary duty. The causes of action contained many of the same allegations, including that Passon misappropriated and converted assets, failed to render certain accountings, failed to include and properly report assets in the original account, failed to properly administer the estate and distribute the assets, and failed to keep the beneficiaries advised of the status of the estate.

The complaint alleges that Passon transferred estate property in 1967, 1972, and 1980, and failed to account for any proceeds resulting from those transfers. It also alleges that Passon failed to account for proceeds received from rental property income and failed to account for the satisfaction or other disposition of mortgages owned by the Kravitz estate. The complaint lists several account balances, alleging that Passon failed to account for the distribution of the assets and income. Additionally, the complaint lists numerous stocks and claims that Passon failed to account for dividends or distributions on the stocks since 1963.

During discovery, appellant testified that his father first advised him at age sixteen that he would be receiving an inheritance from his uncle’s estate in 1958, the same year in which his uncle passed away. Through his father, appellant believed that the estate was worth approximately $600,000, and as one of three beneficiaries he would receive one-third of the estate. However, the only amount he ever recalled receiving was a check for $25,000 around 1963. While appellant admitted that Passon never did anything to prevent him from reviewing the court file pertaining to Max Kravitz, he also stated that Passon never offered any accounting and never consulted him in any way. Kravitz admitted that he expected to receive substantially more than $25,000.

The trial court granted the Passon estate’s motion for summary judgment on all causes of action, finding that all were barred by the statute of limitations or statute of repose set forth in section 95.031(2)(a), Florida Statutes. The court found that all assets of the estate in possession of the personal representatives of the Passon estate had already been distributed to appellant. Appellant was due only interest on the amounts distributed, which the court calculated at $1250.

We affirm the summary judgment entered by the trial court as to all counts except for the breach of fiduciary duty. We reverse the summary judgment on that cause of action, because we conclude that material issues of fact exist as to whether Passon was ever discharged as the personal representative of the estate. Without a discharge, Passon remained the personal representative with all of the duties and obligations which that role demands. A claim may be brought against a personal representative in his individual capacity for breach of fiduciary duty to the estate even after discharge, involving assets wrongfully withheld or disposed and of which the beneficiary had no notice. See Gadsden v. Jones, 1 Fla. 332 (1847); Van Dusen v. Se. First Nat’l Bank of Miami, 478 So.2d 82 (Fla. 3d DCA 1985). It follows that prior to discharge the personal representative acts in his or her representative capacity and continues to manage the property of the estate for the benefit of the devisees. Thus, a cause of action for breach of fiduciary duty against the personal representative, individually, does not accrue until discharge.

Appellant alleges that the Max Kravitz estate was never closed and thus the court never discharged Passon as executor of the estate. The Passon estate disputes this. The documents in the record are not conclusive either way. This constitutes a material issue of fact. Further, the record reflects that Passon continued to deal with estate assets, signing various documents as executor of the estate. Up until the date of his death, Passon continued to collect dividends on stocks belonging to the estate which he never distributed to the estate beneficiaries but kept in escrow. We conclude that material issues of fact remain as to whether Passon was discharged as executor of the estate, from which date the statute of limitations could run. If so, the statute of limitations would not have begun to run until Passon’s death. These issues are for a jury to resolve.

The Passon estate also alleges that appellant was on notice of the alleged breach of fiduciary duty as early as 1963 when he received only $25,000 from an estate from which he expected to receive around $200,000. However, whether he was put on sufficient notice to require him to conduct a more thorough investigation of the estate is also an issue of fact for the jury. He never received notice of the filing of the accounting for the estate, and Passon was his uncle, whom he trusted not only as a family member but also as the executor of his uncle’s estate and the family lawyer. Laches may apply, but the issue is one of fact which is unresolved on this record.

We also note that proceedings in the Kravitz estate are now ongoing in Pennsylvania. Many of the issues which will be resolved in that case may determine the issues in this Florida proceeding. Although we have noted that material issues of fact remain for determination by a jury, we do not preclude that further action by the Pennsylvania court might resolve this issue. If Passon had in fact been discharged as executor and kept the estate assets for himself forty years ago, then this may be a garden variety tort of conversion or tortious interference with an inheritance for which the statute of limitations would have long since run.

Affirmed in part, reversed in part, and remanded for further proceedings.

KLEIN and HAZOURI, JJ., concur.

      . From the submissions in the record, this family had a complicated relationship. Max Kravitz’s widow was convicted of second-degree murder in his death and thus was barred from her share of his estate and her position as co-personal representative of his estate.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Brian Keith DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-461.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2008.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Brian Keith Davis seeks review of his judgment and sentence for resisting an officer without violence. Davis argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to present sufficient evidence to show that the officers who detained him were engaged in the lawful execution of a legal duty. We agree that without information regarding the nature of the complaint the officers were investigating, there was not sufficient evidence that the officers were engaged in the lawful execution of a legal duty.

The State presented testimony that Officers Rizer and Milam with the Seminole Police Department for the Seminole Indian tribe went to the Seminole Hard Rock Casino to investigate a “suspicious incident” reported by employees of the Green Room Restaurant. Upon arriving at the restaurant, the officers were briefed by two security officers. Officer Milam then talked to the employees who made the complaint. The employees pointed out Davis, who was seated at a table in the restaurant. Both officers were wearing Seminole Police Department uniforms, and they identified themselves as such.

Officer Milam asked Davis to move from the table where he had been sitting to a closed off portion of the restaurant. Davis complied, but quickly became agitated. Davis told the officers that he had to go to the restroom and that he wanted to finish his food. The officers told Davis to relax and remain seated, but Davis jumped out of his seat and pushed Officer Rizer into some tables. As he was falling, Officer Rizer grabbed Davis’ shirt. Officer Milam grabbed Davis, and they fell to the floor. Davis was “squirming around” and struggling while they were putting him in handcuffs. The officers arrested Davis for battery and resisting an officer with violence.

The State charged Davis with two counts of battery on a law enforcement officer and resisting an officer with violence. The jury returned a verdict finding Davis not guilty of one of the counts of battery on a law enforcement officer, but they could not reach a verdict on the other battery count. The jury also found Davis guilty of the lesser offense of resisting an officer without violence. The court sentenced Davis to 364 days in county jail for resisting an officer without violence, and the State dismissed the remaining battery charge.

On appeal, Davis argues that the trial court erred in denying his motion for judgment of acquittal because the State did not establish that the officers were engaged in the lawful execution of a legal duty. Davis claims that the State was required to show that the officers had a reasonable suspicion of criminal activity that would support the detention of Davis in order to establish that the officers were engaged in the lawful execution of a legal duty. The State argues that it was sufficient for the State to establish that the officers were responding to a complaint by the employees of the Green Room Restaurant.

This court will affirm the denial of a motion for judgment of acquittal if the verdict is supported by competent, substantial evidence. Fitzpatrick v. State, 900 So.2d 495, 507 (Fla.2005). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. One element of the crime of resisting an officer without violence is that the officer was engaged in the lawful execution of a legal duty. § 843.02, Fla. Stat. (2005).

In determining whether an officer was engaged in the lawful execution of a legal duty, we must apply the legal standards governing the officer’s duty at the point that the resistance occurs. See Tillman v. State, 934 So.2d 1263, 1271 (Fla. 2006). In cases involving an investigatory detention, it is necessary for the State to prove that the officer had a reasonable suspicion of criminal activity that would support the detention. Id.; see also J.H.M. v. State, 945 So.2d 642, 645 (Fla. 2d DCA 2006); J.R.P. v. State, 942 So.2d 452, 453-54 (Fla. 2d DCA 2006); Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001); S.G.K v. State, 657 So.2d 1246, 1247 (Fla. 1st DCA 1995).

In this case, the State presented evidence that the officers were responding to a complaint of a “suspicious incident” by employees of the Green Room Restaurant. The State also presented evidence that the employees stated that Davis was involved in the incident. However, the State did not present any evidence regarding the substance of that complaint or the “suspicious incident.” Therefore, the State did not establish any basis for a reasonable suspicion of criminal activity by Davis.

We reject the State’s argument that it established the element of a lawful execution of a legal duty with testimony that the officers were responding to a complaint by the employees of the Green Room Restaurant. The fact that an employee on private property makes a complaint to the police does not vitiate the requirement that a detention to investigate the complaint be supported by reasonable suspicion of criminal activity. Without information regarding the nature of the complaint the officers were investigating, there was no way to determine whether the officers were engaged in the lawful execution of a legal duty when they detained Davis to investigate the complaint.

We conclude that the State did not establish a prima facie case of resisting an officer without violence. We note that there are no applicable lesser-included offenses for which we could direct a judgment. See § 924.34, Fla. Stat. (2005). We therefore reverse Davis’ conviction for this crime and remand with instructions for the court to discharge him.

Reversed and remanded.

CANADY and YILLANTI, JJ., Concur.


author: HAZOURI, J.

text:
    Eldrick R. ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4625.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Nicole Cotton and Richard G. Lubin of Richard G. Lubin, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Eldrick Andrews appeals from his convictions for burglary of an occupied structure and petit theft. We affirm the conviction for petit theft and reverse the conviction for burglary of an occupied structure, and remand for a new trial on that charge.

Prior to July 30, 2005, Andrews was an employee of a local beverage company, Diloreto and Sons, which provides vending and beverage services to businesses. As a part of the services provided by Diloreto and Sons, their employees bring vending machines into businesses, stock the machines, and then collect the money. Andrews was one of those employees. One of the routes which Andrews worked included Cheney Brothers, Inc. (“CBI”), which operates twenty-four hours a day providing food services to various restaurants throughout the state. In June of 2005, Andrews left the employ of Diloreto and Sons and was no longer authorized to service vending machines at the CBI location.

Although CBI is open twenty-four hours a day, the location of the vending machines in the break room is not open to the public. In order for any individual to gain access to CBI’s property, he must clear a security gate manned twenty-four hours a day by a guard employed by CBI.

On the date in question, Andrews approached the security gate in a vehicle and was permitted access to CBI’s property. A videotape of the admission of Andrews to the property records Andrews’s entrance onto the property; however, there is no recording of any exchange between the security guard and Andrews as to what was said, and on what basis Andrews was admitted to the property. In the break room, where the vending machines were located, there was a security camera which recorded Andrews taking money from the vending machines. A witness called by the state identified Andrews in the videotape. The videotape also showed that Andrews was wearing a Diloreto and Sons uniform shirt.

Andrews asserts the trial court erred in admitting hearsay statements by the security director that Andrews was able to gain access to the property by wearing a uniform of his former employer. The security director learned this from speaking with a non-testifying security guard, who also informed the security director that he was tricked and/or deceived by Andrews at the front gate. We agree that the trial court erred.

Prior to the beginning of the trial Andrews filed a motion in limine asserting that:

2.Throughout the discovery process, it has come to the undersigned counsel’s attention and anticipation, that counsel for the State and/or the State’s witnesses will likely make statements or testify during the course of a trial which would infer [sic] that the Defendant gained access to the premises where the alleged offense took place by deceiving the personnel who granted him access to the premises.
3. To date, the State has produced no company personnel, nor any other witnesses for that matter, who ostensibly were deceived by the Defendant. It is also anticipated that no such witnesses will be called to testify during the course of a trial.
4. All of the witnesses produced by the State have indicated that they have no direct knowledge of what exchange(s) might have occurred between the Defendant and any personnel who were present when the offense allegedly took place and who granted the Defendant access to the premises.
5. If the counsel for the State or the State’s witnesses are allowed to state to the jury that the Defendant deceived people in order to gain access to the premises, when in actuality no such person will be called to testify during the trial, such statements would constitute an unfair inference, would create great risk of confusion to the jury and create unfair prejudice against the Defendant. Such statements would also constitute improper commentary on facts not in evidence.

The trial court denied Andrews’s motion in limine.

The state’s first witness was Walter Wilcox, the security director for CBI. His job is to control the manpower needs of the security department and to maintain and service all camera and video recording devices. Wilcox reviewed the video of the employee break room for July 30, 2005. He observed an individual entering into the vending machines in the break room. The dates and times on the surveillance equipment are synchronized with the company’s main frame computer system. There are seven recorders and they are checked periodically to make sure they are in sync with each other and with real time. A still photo printed from the videotape shows an individual at the vending machines. The person is shown in CBI’s break room on July 30, 2005 at 3:47:54 A.M. CBI is not open to the public at that time. Only CBI employees, vendors, and people who are delivering products or servicing equipment are permitted there at that time. Vendors include employees of companies such as Diloreto and Sons, with which CBI has contracts.

On cross examination, Wilcox testified that he is the director of security. The gate is manned at all times. The signs at the gate include: (1) welcome, (2) vehicles are subject to search, (3) private property, (4) some inspirational signs, and (5) one directing trucks where to turn. Wilcox does not remember any signs that mention the hours of the different divisions of CBI.

Wilcox became aware of the theft only after he was notified days after it occurred. It was reported to him as a theft. When he learned of the theft, the extent of his investigation was to look at the video of the area where the vending machines are located.

Wilcox had no personal knowledge of why Andrews was permitted by the security guard to access CBI’s property. The following exchange occurred during cross-examination:

Q: Well, let me ask you this. What I’m asking you is you don’t know what transpired between the officers and the individual in the truck, correct?
A: What transpired, what are you referring to, sir?
Q: You don’t know what exchange, verbal or otherwise would have occurred? A: No, sir, I would not know what verbal exchange occurred.
Q: And at the time that you’re testifying about, one method by which your security staff would allow people access onto the premises and into the building at Cheney Brothers is if they recognized them, correct?
A: If they had some familiarity with the person, yes, sir.
Q: So as you’re here testifying today, you can’t say whether or not your security personnel let Mr. Andrews in because they recognized him, correct? A: I can testify that my security personnel let Mr. Andrews in because he was wearing a shirt that said Diloreto and Sons.
Q: Your Honor, I’d object, move to strike as hearsay.

(emphasis added). This is the very issue raised in the motion in limine which had been denied by the trial court. The trial court overruled Andrews’s objection which was clearly based upon hearsay and was also unresponsive to the question posed by Andrews’s counsel.

Under the facts of this case as tried, one of the essential elements of proving the crime of burglary requires the state to present evidence that Andrews did not have the permission or consent of CBI or anyone authorized to act on behalf of CBI to enter the structure at the time in question. The videotape of Andrews’s admission to CBI’s property by the security guard does not reflect what exchange took place between the security guard and Andrews that resulted in Andrews’s admission to the property.

Proof of entering a structure by fraud or deceit may be considered to show that the entry was without the consent of the owner or occupant and may justify the finding that the act of entering was with the intent to commit a crime which would thereby constitute a burglary. The rationale for this is that consent to enter by fraud or deceit “is actually no consent at all and, therefore, the entrance is unauthorized.” See Gordon v. State, 745 So.2d 1016, 1018 (Fla. 4th DCA 1999) (quoting Howard v. State, 400 So.2d 1829 (Fla. 4th DCA 1981)).

In his motion in limine, Andrews’s counsel clearly outlined to the trial court his concern that there would be no direct testimony from the security guard as to any deception on the part of Andrews in gaining access to CBI’s property. In denying Andrews’s motion in limine and overruling the objection to Wilcox’s testimony, the trial court permitted inadmissible hearsay to provide the missing link as to whether Andrews had used deception or fraud to gain admission to CBI’s property.

The state does not contest that Wilcox’s testimony about the deception by Andrews was not hearsay but asserts that the error was harmless. In order to show the error was harmless, the state has the burden “to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The state argues that the jury heard evidence that Andrews, a former Diloreto and Sons driver, approached the guard gate at CBI, his former route, and after being allowed on the property, Andrews was observed on videotape wearing a Diloreto and Sons work shirt, entering the break room, and stealing the money from the vending machines. The state asserts that there is no reasonable possibility that the error affected the verdict. We disagree.

Although the evidence might suggest that Andrews was given consent to enter by pretending he was still a Diloreto and Sons employee, without direct testimony from the security guard there is a lack of direct evidence that deception or fraud was used to gain entrance to CBI’s property. Andrews may have just been waved through by a security guard who recognized him from when he was an employee. The jury did not know if the guard saw his shirt. The jury also did not know what kind of vehicle Andrews was driving. Therefore, Wilcox’s hearsay testimony was not harmless and could have contributed to the jury convicting Andrews of burglary. Because this error was not harmless, we reverse and remand for a new trial on the charge of burglary.

Affirmed in Part; Reversed in Part and Remanded.

KLEIN and DAMOORGIAN, JJ., concur.

      . Section 810.02(l)(b)l, Florida Statutes (2005) states:
      Burglary.—
      (b) For offenses committed after July 1, 2001, "burglary” means:
      1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter....


author: PER CURIAM.

text:
    Rebecca DAVILA, Appellant, v. Cheryl Lynn ELLET, individually, William P. Ellet, individually, and State Farm Mutual Automotive Insurance Company, a foreign insurance company, Appellees.
    Nos. 4D06-4973, 4D07-4102, 4D07-533.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Scott M. Behren and Serena Kay Pas-kewicz of Freedland Farmer Russo Beh-ren & Sheller, Weston, for appellant.
    Neil Rose of Bernstein, Chackman, & Liss, Hollywood, for appellees.
   PER CURIAM.

Affirmed. See Benjamin v. Diel, 831 So.2d 1227 (Fla. 4th DCA 2002).

STONE, WARNER and GROSS, JJ., concur.


text:
    L. Andrew BERNHEIM, Appellant, v. Peter BROBERG, as Personal Representative of the Estate of Maxine Bedrick, deceased, Appellee.
    No. 4D07-388.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    L. Andrew Bernheim, South Orange, New Jersey, pro se.
    Gary A. Woodfield of Edwards Angelí Palmer & Dodge LLP, West Palm Beach, for appellee.
   PER CURIAM.

This case involves (1) a direct appeal from the probate court’s order granting L. Andrew Bernheim’s motion for enlargement of the time within which to file an independent action against the Estate of Maxine Bedrick, but affording him less than the ninety days requested, and (2) a certiorari petition challenging an order granting the personal representative’s motion to require Bernheim, who was pro se, to communicate with the personal representative and his counsel solely through writing. We affirm the order on the motion for enlargement of time, finding that Bernheim’s claims that he should have been afforded more time have been rendered moot by his filing of an out-of-state action within the sixty-day period. We dismiss the certiorari petition directed to the order on communication as the petitioner failed to meet his burden of demonstrating the “jurisdictional” “irreparable harm” prong of certiorari review. See Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996) (en banc).

STONE, STEVENSON and TAYLOR, JJ., concur.


text:
    Shavonna KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-644.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See A. G. v. State, 718 So.2d 854 (Fla. 4th DCA 1998).

WARNER, FARMER and GROSS, JJ., concur.


author: MAY, J.

text:
    C.B. A Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2137.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

A juvenile appeals a disposition order entered following an adjudicatory hearing on the charge of resisting an officer without violence. He argues that the order must be reversed because he was represented by a certified legal intern, but the record does not contain an executed written consent form verifying his acceptance of representation by the intern. We agree and reverse.

In R.M. v. State, 664 So.2d 42, 43 (Fla. 4th DCA 1995), we held that the lack of a written consent to representation by a certified legal intern is fatal. See also L.R. v. State, 698 So.2d 915, 916 (Fla. 4th DCA 1997) (reversing an adjudication because the written consent form contained the wrong name of the certified legal intern); M.C. v. State, 687 So.2d 832, 833 (Fla. 4th DCA 1997) (reversing an adjudication because the juvenile did not execute a written waiver of his right to be represented by an attorney). The outcome here must be the same even though it appears that the supervising attorney was present and actively participated in the defense of the juvenile.

Reversed and remanded.

STONE and POLEN, JJ., concur.


author: POLEN, J.

text:
    Lynne A. LARKIN, Appellant, v. Elizabeth H. BURANOSKY, Kris E. Smith, Residents for Truth, a Florida electioneering committee, Randy Nielsen, Public Concepts, LLC, a Florida limited liability company, Richard M. Johnston, Public Concepts, Inc., a Florida corporation, and Americans for Free Speech, a 527 political organization, Appellees.
    Nos. 4D07-1050, 4D07-1747.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Peter M. Feaman and Anya M. Kudszus of Hodgson Russ LLP, Boca Raton, for appellant.
    L. Martin Reeder, Jr. and C. Bryce Albu of Reeder & Reeder P.A., Jupiter, for appellees Elizabeth H. Buranosky and Randy Nielsen on behalf of appellees Residents for Truth and Americans for Free Speech.
   POLEN, J.

Appellant Lynne Larkin appeals the trial court’s dismissal of her claim, with prejudice, against Appellees, Residents for Truth (RFT) and Americans for Free Speech (AFFS). Larkin was formerly the vice mayor of the City of Vero Beach, Florida and in 2005 was up for re-election to the Vero Beach City Council. During the course of the election campaign, RFT, funded by AFFS, circulated negative information about Larkin by way of radio, television and newspaper advertisements. RFT was a Florida Electioneering Communication Organization (ECO) and AFFS is a federal political organization formed under IRS Code Section 527 and both are unincorporated associations. After losing the election, Larkin filed a complaint against several individuals along with RFT and AFFS. Following motions from RFT and AFFS, the trial court dismissed the complaint with prejudice as to the two organizations, finding that under Florida law, unincorporated associations such as RFT and AFFS do not have the capacity to be sued in their own names. We affirm the trial court’s dismissal of the complaint as to RFT and AFFS and write to explain our holding.

A trial court’s dismissal of a claim with prejudice is reviewed de novo. Norwich v. Global Fin. Assoc., LLC, 882 So.2d 535 (Fla. 4th DCA 2004). ECOs are created by section 106.022(19), Florida Statutes, which provides:

‘Electioneering communications organization’ means any group, other than a political party, political committee, or committee of continuous existence, whose activities are limited to making expenditures for electioneering communications or accepting contributions for the purpose of making electioneering communications.

§ 106.011(19), Fla. Stat. ECOs are not considered political committees but are “required to register with and report expenditures and contributions ... to the Division of Elections.” § 106.011(l)(a)2(b)3, Fla. Stat. Further, each ECO is required to “have and continuously maintain in this state a registered office and a registered agent and must file with the division a statement of appointment for the registered office and registered agent.” § 106.022(1), Fla. Stat.

Larkin argues that Chapter 106, Florida Statutes, enables RFT and AFFS to be sued, asserting section 106.022(1), Florida Statutes requires a registered agent be appointed and arguing that one of the purposes of having a registered agent and a registered office is to accept service of process. In support of this argument, Larkin points to section 106.1475, Florida Statutes, which requires organizations making paid telephone calls supporting or opposing candidates to have “a registered agent for the purpose of any service of process, notice or demand required or authorized by law....” § 106.1475(1), Fla. Stat. However, we hold section 106.1475(1), Florida Statutes, does not apply to RFT as an ECO. In fact, in contrast to section 106.1475(1), Florida Statutes, section 106.022, by which RFT was created, does not expressly indicate that the purpose of the registered agent is to receive service of process, notice or demand.

“Any statute that deviates from the common law approach must be strictly construed.” Hilyer Sod, Inc. v. Willis Shaw Exp., Inc., 817 So.2d 1050, 1054 (Fla. 1st DCA 2002). In applying this rule of strict construction, a reading of the statute supports the trial court’s finding that RFT lacked the capacity to be sued. Florida does not have an enabling statute that allows unincorporated associations to be sued in their own names. See Johnston v. Meredith, 840 So.2d 315 (Fla. 3d DCA 2003). In the absence of such a statute, we affirm the trial court’s holding that unincorporated associations such as RFT and AFFS must be sued in the names of individual members rather than in their own name.

Affirmed.

STONE and MAY, JJ., concur.


author: DAMOORGIAN, J.

text:
    Michelle DEVIDO f/k/a Michelle Curry, Appellant, v. Randall S. CURRY, Appellee.
    No. 4D07-692.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.

      Stuart N. House of Giunta & House, P.A., Fort Lauderdale, for appellant.
    Monica I. Salis of Monica I. Salís, P.A., Pompano Beach, for appellee.
   DAMOORGIAN, J.

Appellant, Michelle Devido, appeals the trial court’s order awarding the appellee, Randall S. Curry, appellate attorney’s fees. We reverse because the trial court may not award appellate attorney’s fees absent a mandate from the appellate court. By way of background, Devido previously appealed this case. However, that appeal was dismissed as untimely. Curry never filed a motion seeking appellate attorney’s fees with this Court as required by Florida Rule of Appellate Procedure 9.400(b). Instead, Curry moved the trial court for appellate attorney’s fees, which the trial court granted. The trial court reasoned that it had the authority to award appellate attorney’s fees because the parties’ property settlement agreement provided for such an award. This appeal followed.

It is well settled that a “trial court may not award appellate attorney’s fees absent a mandate from the appellate court.” Real Estate Apartments, Ltd. v. Bayshore Garden Apartments, Ltd., 530 So.2d 977, 979 (Fla. 2d DCA 1988), Gieseke v. Gieseke, 499 So.2d 839 (Fla. 4th DCA 1986); (citing Mullins v. Mullins, 342 So.2d 83 (Fla. 4th DCA 1976); Ludemann v. Ludemann, 317 So.2d 860 (Fla. 4th DCA 1975)).

Curry argues that once this Court dismissed the appeal, he had no choice but to seek his appellate fees from the trial court because this Court had no jurisdiction. However, an appellate court’s dismissal does not vest authority in the trial court to grant appellate fees. See Office of State Attorney v. Gonzalez, 953 So.2d 759, 766 (Fla. 2d DCA 2007) (trial court lacks the authority to award appellate attorney’s fees where appellate court has dismissed the case for lack of jurisdiction absent a mandate).

Consequently, the trial court erred in awarding appellate attorney’s fees.

Reversed.

KLEIN and HAZOURI, JJ., concur.


text:
    Willie PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4291.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Appellant Willie Perry timely appeals convictions of kidnapping, carjacking with a firearm, sexual battery, and aggravated fleeing and eluding a police officer.

We are not persuaded by Perry’s argument that the trial court erred in restricting defense counsel’s closing argument as to whether co-defendant Johnson could have been tried as an adult. Though defense counsel was not allowed to specifically argue that Johnson could have been tried as an adult, counsel made it clear to the jury that Johnson was not prosecuted in the same way Perry was. Even if there was error, no prejudice resulted.

We remand to correct a sentencing error. The jury found that Perry actually possessed a firearm during the course of the armed kidnapping and the carjacking. For his possession of a firearm, the trial court imposed a ten-year mandatory minimum for armed kidnapping and a consecutive ten-year mandatory minimum for carjacking with a firearm. Case law interpreting section 775.087(2) (d), Florida Statutes, holds that imposition of consecutive mandatory minimum sentences of any duration is prohibited in a case involving a single criminal episode during which a firearm is used but not fired. See Church v. State, 967 So.2d 1073 (Fla. 2d DCA 2007); see also State v. Sousa, 903 So.2d 923 (Fla.2005); Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2007). As the firearm in the instant case was never fired, and the kidnapping and carjacking were not separated by any temporal or spatial breaks, the trial court erred in sentencing Perry to consecutive ten-year mandatory minimum sentences as they were part of a single criminal episode.

We therefore affirm Perry’s convictions but reverse for re-sentencing as to the consecutive ten-year mandatory minimum sentences for armed kidnapping and carjacking with a firearm.

Affirmed and Remanded.

STONE, POLEN and MAY, JJ., concur.


author: CALOGERO, Chief Justice. TRAYLOR, Justice,

text:
    Doug WELBORN, in his Official Capacity as Clerk of Court for East Baton Rouge Parish v. The 19TH JUDICIAL DISTRICT COURT and the East Baton Rouge Parish Family Court.
    Nos. 2007-C-1087, 2007-C-1202.
    Supreme Court of Louisiana.
    Jan. 16, 2008.
    Rehearing Denied Feb. 22, 2008.
    Charles C. Foti, Jr., Attorney General, Patricia Hill Wilton, David G. Sanders, Assistant Attorneys General, for applicant in No. 2007-C-1087.

      Roedel, Parsons, Koch, Blache, Balhoff & McCollister, Sheri Marcus Morris, Baton Rouge; Shows, Cali, Berthelot & Walsh, Edmond Wade Shows, Jeffrey Kent Cody, Charles C. Foti, Jr., Attorney General, Van A. Heard, Assistant Attorney General, Jill L. Craft Alford, Hon Janice Gartrell Clark, for respondent in No. 2007-C-1087.
    Charles C. Foti, Jr., Attorney General, Van A. Heard, Assistant Attorney General, for applicant in No. 2007-C-1202.
    Roedel, Parsons, Koch, Blache, Balhoff & McCollister, Sheri Marcus Morris, Baton Rouge; Shows, Cali, Berthelot & Walsh, Edmond Wade Shows, Jeffrey Kent Cody, Charles C. Foti, Jr., Attorney General, Patricia Hill Wilton, David G. Sanders, Assistant Attorneys General, Jill L. Craft Alford, Hon. Janice Gartrell Clark, for respondent in No. 2007-C-1202.
   CALOGERO, Chief Justice.

I,We granted certiorari in this case to resolve a conflict between the Nineteenth Judicial District Court (“19th JDC”) and the East Baton Rouge Parish Family Court (“Family Court”) relative to which of the courts is vested with subject matter jurisdiction to hear cases brought under the Protection from Family Violence Act, La.Rev.Stat. §§ 46:2121-:2143, and/or the Protection From Dating Violence Act, Id. § 46:2151, where the victim is an unrelated “household member” or a “dating partner” of the person against whom the acts of abuse are alleged. Because we find that jurisdiction lies exclusively with the Family Court, and not concurrently with the 19th JDC, we reverse the decision of the Court of Appeal in part, and affirm it in part.

Statutory Background

In 1979, the Louisiana legislature enacted Chapter 28 of Title 46 of the Revised Statutes, entitled “Protection from Family Violence Act.” Act. No. 746, 1979 La. Acts 2084. The stated intent of the Act was to “achieve a reduction in serious and fatal injuries to the victims of family violence and to clarify the problems, causes, and remediation of family violence by providing that necessary services including shelter, counseling, and referrals to social services, medical care and legal assistance in the form of a family violence center.” La. Rev.Stat. § 46:2121(0 (emphasis added). The | ¡Act authorized the creation of a family violence program to develop community shelters which would provide safe refuge for victims of family violence; emergency psychological support and counseling; and information regarding job counseling, housing, emergency medical care, emergency legal assistance, and other social services. Id. §§ 46:2122(A),:2123,:2124.

In 1982 the legislature amended the Act by adding a second part to Chapter 28, designated “Part II. Domestic Abuse Assistance.” Act No. 782, 1982 La. Acts 1883. The purpose of that part was to “recognize and address the complex legal and social problems created by domestic violence,” and “to provide a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection.” La.Rev.Stat. § 46:2131 (emphasis added). Thus, the new part gave petitioners access to ex parte temporary restraining orders, Id. § 13:2135, and protective orders, Id. § 2136, and empowered law enforcement officers to “use all reasonable means to prevent further abuse” when such officers have “reason to believe that a family or household member has been abused,” Id. § 46:2140. Consistent with its broader focus on “domestic violence” (as opposed to the “family violence” stated in the original Act), the 1982 amendment extended protection to include not only “family members,” but “household members” as well, which it defines as “any person of the opposite sex presently or formerly living in the same residence with the defendant as a spouse, whether married or not, who is seeking protection under this part.” Id. § 46:2182(4) (emphasis added).

In 2001, the legislature again expanded Chapter 28 by adding “Chapter 28-A. [.^Protection from Dating Violence Act.” Act No. 1180, 2001 La. Acts 2594. That Act made a “dating partner” eligible “to receive all services, benefits, and other forms of assistance provided by Chapter 28 of [Title 46].” La.Rev.Stat. § 46:2151(A). A “dating partner” was defined as

any person who is or has been in a social relationship of a romantic or intimate nature with the victim and where the existence of such a relationship shall be determined based on a consideration of the following factors:
(1) The length of the relationship.
(2) The type of relationship.
(3) The frequency of interaction between the persons involved in the relationship.

Id. § 46:2151(B).

Factual and Procedural History

In what appears to be a response to the Protection from Dating Violence Act, the Family Court issued en banc orders on September 14, 2001, and January 14, 2004, declaring that it lacked subject matter jurisdiction to hear petitions filed by “dating partners” and “household members,” respectively. The Family Court reasoned that its jurisdictional mandate delineated in La.Rev.Stat. § 13:1401 limited its | ¿jurisdiction to only those petitions where the persons involved are considered “family members,” as defined in La.Rev.Stat. § 46:2132(4): “spouses, former spouses, parents and children, stepparents, stepchildren, foster parents, and foster children.”

Soon after the second en banc order, an East Baton Rouge Parish resident, Kodi LaShae Collins, filed a petition with the 19th JDC alleging her dating partner was abusing her and sought protection under La.Rev.Stat. § 46:2151. The 19th JDC sustained the defendant’s exception of lack of subject matter jurisdiction, holding that jurisdiction was exclusive to the Family Court, and dismissed the case. Given the Family Court’s previous en banc order, Collins found herself without a legal remedy and applied for an emergency supervisory writ with the First Circuit Court of Appeal. In an unpublished decision, the First Circuit granted the writ and summarily reversed, holding jurisdiction over such claims was concurrent between the Family Court and the 19th JDC. Collins v. Jack, 05-0745 (La.App. 1 Cir. 4/13/05).

Following the Collins judgment, the Clerk of Court for East Baton Rouge Parish, Doug Welborn, began randomly allotting cases brought by “household members” and “dating partners” among the sixteen judges of the 19th JDC and the four judges of the Family Court. However, the Family Court continued to refuse to hear such cases, contending that the legislature could not expand the Family Court’s jurisdiction beyond the limits found in La. Rev.Stat. § 13:1401(A). Furthermore, the | sFamily Court was not a party in the Collins case, that decision was not published, thus and accordingly Collins was not binding on them, assert the judges of the Family Court. The 19th JDC answered this with its own en banc order directing the Clerk of Court to assign these cases among the sixteen judges of the 19th JDC and the four judges of the Family Court. Caught between conflicting court orders, the Clerk of Court filed the instant action with the 19th JDC seeking a declaratory judgment as to how these cases should be assigned. Both courts were named as defendants. The 19th JDC judges recused themselves and a retired judge was assigned ad hoc to hear the case. He held that the 19th JDC and the Family Court were vested with concurrent jurisdiction over actions brought by “household members” and “dating partners” seeking relief from domestic and dating violence.

Both courts appealed that judgment, each claiming that jurisdiction was vested solely with the other. The First Circuit Court of Appeal agreed with each of the two courts only in part, concluding that there was concurrent jurisdiction. Welborn v. 19th Judicial Dish Court, 06-2307, p. 10 (La.App. 1 Cir. 5/4/07), 961 So.2d 394, 401. From that judgment, both courts have appealed.

Discussion

“Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La.Code Civ. Proc. art. 2; Spinosa v. Spinosa, 05-1935, p. 7 (La.7/6/06), 934 So.2d 35, 41. The Louisiana Constitution- establishes the subject matter jurisdiction of the district courts: “Except as otherwise authorized by this constitution ..., a district | (¡court shall have original jurisdiction of all civil and criminal matters.” La. Const, art. V, § 16(A)(1). While “original jurisdiction of all civil and criminal matters” is a broad grant, the clause “Except as otherwise authorized by this constitution” establishes that the constitution contemplates and permits the legislature to divest the district courts of jurisdiction in certain types of matters. See Lee Hargrave, The Judiciary Article of the Louisiana Constitution of 197L 37 La. L.Rev. 765, 811 (1977). Article V, section 18 of the constitution authorizes the legislature to grant jurisdiction to juvenile and family courts: “Notwithstanding any contrary provision of Section 16 of this Article, juvenile and family courts shall have jurisdiction as provided by law.” La. Const, art. V, § 18; Hargrave, supra, at 811.

La.Rev.Stat. § 13:1401 is the enabling statute for article V, section 18. Subsection (A) of that statute establishes the Family Court and vests it with exclusive jurisdiction in certain matters. Subsection (B) of 13:1401 further expresses that “[t]he family court for the parish of East Baton Rouge has all such additional jurisdiction, power, and authority now or hereafter provided by law.” Thus, while La. Rev.Stat. § 13:1401(A) initially delineates the jurisdiction of the Family Court, 13:1401(B) alludes to the legislature’s constitutionally sanctioned right to grant to the Family Court additional jurisdiction.

The 19th JDC contends that the legislature acted within its constitutional and legislative power to confer additional jurisdiction on the Family Court when it enacted La.Rev.Stat. § 46:2133(A), the jurisdictional statute that was included in the 1982 amendments to the Protection from Family Violence Act (the amendments that created “Part II. Domestic Abuse Assistance”). That statute states, “Any court in the state of Louisiana which is empowered to hear family or juvenile matters shall, have | ^jurisdiction over proceedings appropriate to it under this Part.” La.Rev.Stat. § 46:2133(A). However, the Family Court contends in its brief to this Court that “this Court should not ignore [La.Rev.Stat. § 13:1401(A)’s] language which limits the Family Court’s jurisdiction to those cases where a familial relationship exists between the parties.” (emphasis in original). The Family Court continues:

Before the enactment of LSA — R.S. 13:1401, the 19th Judicial District Court had jurisdiction over family matters. By enacting this statute, the legislature divested the 19th Judicial District Court of this subject jurisdiction and created the Family Court, a new court with exclusive jurisdiction over the expressly enumerated matters and litigants. Thus, jurisdiction over any matter or person that is not enumerated expressly in LSA — R.S. 13:1401 ... remains with the 19th Judicial District Court. Since the Family Court is not empowered to hear cases where the parties lack some sort of familial relationship, the 19th Judicial District Court has retained exclusive jurisdiction over these matters.

The Family Court reasons that “[although ‘household members’ may be persons living in a home with a defendant and may be acting like spouses (heretofore not defined in our law), they lack a familial relationship because they are not married and presumably share no children.” Thus the Family Court concludes that it may not hear cases involving “household members.” The Family Court similarly concludes that it may not hear cases involving “dating partners” since they “have even less of a familial relationship than ‘Household Members.’ ”

As to the 19th JDC’s contention that La.Rev.Stat. § 46:2133(A) confers additional jurisdiction on the Family Court pursuant to La.Rev.Stat. § 13:1401(B), the Family Court urges that the words “appropriate to it” found within 46:2133(A) “mean[ ] that the Family Court would have jurisdiction over those matters, only if they are appropriate to its jurisdictional mandate pursuant to LSA-R.S. 13:1401.” In other words, La.Rev.Stat. § 46:2133(A) does not grant the Family Court the authority to hear cases between “household members” or “dating partners” because | sthose cases are not “appropriate” to the Family Court by virtue of a lack of a familial relationship nexus.

We find the Family Court’s arguments unpersuasive. Subsection (B) of La.Rev. Stat. § 13:1401 reserves the legislature’s constitutional right to define the Family Court’s jurisdiction: “The family court for the parish of East Baton Rouge has all such additional jurisdiction, power, and authority now or hereafter provided by law.” Nothing in the Louisiana Constitution or La.Rev.Stat. § 13:1401(A) suggests that a familial relationship must exist before the legislature may extend the Family Court’s jurisdiction to a particular matter. The constitution merely reserves to the legislature the right to determine the Family Court’s jurisdiction. See La. Const, art. V, § 18. While La.Rev.Stat. § 13:1401(A) enumerates some of the subject matters within the exclusive jurisdiction of the Family Court, it did not delineate the limits of that court’s jurisdiction. Thus, when the legislature enacted La.Rev.Stat. § 46:2133(A), it expanded the Family Court’s subject matter jurisdiction so that it may hear claims brought by “household members” (and “family members,” for that matter) under the Protection from Family Violence Act.

Similarly, when the legislature enacted the Protection from Dating Violence Act, La.Rev.Stat. § 46:2151, it empowered the Family Court to hear claims brought by “dating partners,” since that statute made such claimants “eligible to receive all services, benefits, and other forms of assistance provided by Chapter 28 of [Title 46].” The plain language of the statute makes clear the intent of the legislature to provide “dating partners” with the same relief it had previously made available to “household members” and “family members.” We hold that this includes making available not only the same forms of relief, but also the same forum for pursuing that relief (in this instance, the East Baton Rouge Parish Family Court).

^Consequently, we disagree with the Family Court’s assertion that the phrase, “appropriate to it,” found in La.Rev.Stat. § 46:213S(A) means that the Family Court may only hear cases where a familial relationship exists (because those are the only cases “appropriate to it”). Instead, we agree with the interpretation urged by the 19th JDC and adopted by the Court of Appeal, that the “appropriate to it” language refers to the age-related distinctions between family courts and juvenile courts. See Welborn, 06-2307, p. 8, 961 So.2d at 400.

In support of this interpretation, we note that Chapter 8 of the Louisiana Children’s Code, entitled “Domestic Abuse Assistance,” La. Child. Code arts. 1564-1575, parallels many of the statutes found in the Domestic Abuse Assistance part of the Protection from Family Violence Act, La. Rev.Stat. §§ 46:2131-:2143. However, the Children’s Code tailors those statutes in such a way that they apply specifically to juveniles. Most striking is the fact that article 1565(2) of the Children’s Code defines a “household member” in a fashion similar to La.Rev.Stat. § 46:2132(4). |inThe fact that the legislature passed what appears to be a Children’s Code analogue to La.Rev.Stat. §§ 46:2131-:2143 indicates to us that the legislature envisioned instances when some claims against “household members” would be “appropriate” to the Family Court, while others would be “appropriate” to a juvenile court. Thus, the phrase “appropriate to it” is meant to highlight the distinction between the family and juvenile courts; it is not a reference to a familial relationship or the subject matters described in La.Rev.Stat. § 13:1401(A), as we interpret that statute.

Having determined that the Family Court is vested with subject matter jurisdiction to hear cases brought by “household members” and/or “dating partners,” we now address whether the Family Court’s jurisdiction over these matters is exclusive of, or concurrent with, that of the 19th JDC. The Court of Appeal held that jurisdiction was concurrent as relates to the two courts. Welborn, 06-2307, p. 10, 961 So.2d at 401. It stated that under the Louisiana Constitution, the 19th JDC had original jurisdiction over all civil and criminal matters, “unless some constitutional or statutory power removes that power and grants it to another court.” Id. at 9, 961 So.2d at 400. The Court of Appeal then noted that La.Rev.Stat.. § 13:1401(A) divested the district court of subject matter jurisdiction in particular matters, since “it assigns exclusive jurisdiction over certain specified types of claims to the Family Court.” Id. (emphasis in original). By contrast, La.Rev.Stat. § 46:2133(A) merely states, “ ‘Any Louisiana court that is empowered to hear family or juvenile matters shall have jurisdiction over proceedings appropriate to it under this Part.’ ” Id. {quoting La.Rev.Stat. § 46:2133(A)) (emphasis in original). The Court of Appeal concluded that the words “shall have jurisdiction” in La.Rev.Stat. § 46:2133(A) did |nnot have the same connotation as the words “shall be a court of record with exclusive jurisdiction” in La.Rev.Stat. § 13:1401(A) and held that La.Rev.Stat. § 46:2133(A) did not operate to divest the 19th JDC of jurisdiction. Id. at 9-10, 961 So.2d at 400. Thus, the Court of Appeal held that the 19th JDC and the Family Court have concurrent jurisdiction over these matters. Id. at 10, 961 So.2d at 401.

We respectfully disagree with the Court of Appeal’s reasoning and hold that La. Rev.Stat. § 46:2133(A) divested the 19th JDC of jurisdiction to hear claims brought under the Freedom from Family Violence Act and Freedom from Dating Violence Act. To explain our reasoning, it is necessary to first examine the constitutional articles and statutory provisions relevant to the subject matter jurisdiction of the district and family courts.

As discussed above, the Louisiana Constitution grants the district courts broad jurisdiction in all matters. See La. Const, art. V, § 16. However, that grant begins with a caveat: “Except as otherwise authorized by this Constitution ..., a district court shall have original jurisdiction of all civil and criminal matters.” Id. (emphasis added). Stated another way, a district court shall have original jurisdiction of all civil and criminal matters, “[e]xcept as otherwise authorized” by the constitution. The question then, is whether by this phrase, the constitution contemplates “authorizing” the legislature to divest the district court of a particular subject matter jurisdiction, or merely “authorizing” the legislature to vest a court of limited jurisdiction with jurisdiction concurrent with the district court. For illumination on this language, we look to the late Professor Hargrave’s law review on article V. There he writes,

However, it is less than clear whether the legislature can divest |12the district court of jurisdiction over some classes of cases and vest that jurisdiction exclusively in courts of limited or specialized jurisdiction.
The starting point for determining this question is Section 16, which makes the grant of jurisdiction to the district courts, “[ejxcept as otherwise authorized by this constitution ...” The committee’s working draft, following the lead of the Law Institute Project, would have vested the jurisdiction “unless otherwise provided in this constitution or by law.” That approach allowed the legislature to divest the district court of any jurisdiction the constitution did not state was exclusive in the district court. The committee, however, did not recommend such broad authority in the legislature, and its initial proposal would have qualified the grant of jurisdiction with language, “[ujnless otherwise provided or authorized in this constitution ...” The later committee proposal condensed the provision to, “[ujnless otherwise authorized by this constitution.... ” The final styling process resulted in the language as adopted, “[ejxcept as otherwise authorized by this constitution....” It is clear then, that the legislature can divest the district courts of jurisdiction only if the constitution contains an authorization for it to do so.

Hargrave, supra, at 811 (footnotes omitted, italics in original, underscoring added). We agree with this analysis. The caveat of article V, section 16 indicates that the constitution may authorize the legislature to divest the district court of jurisdiction it otherwise would have, and vest it in a court of limited jurisdiction.

The next question is, when the constitution in article V, section 18, gave the legislature authority to grant jurisdiction to the Family Court, did it also intend that the district court be divested of that jurisdiction. Again, we look to Professor Har-grave’s article, where he parses the meaning of the “Notwithstanding” clause found in article V, section 18:

Section 18 gives the legislature ’ aü-thority to grant jurisdiction to family and juvenile courts. But does it also grant authority to divest district courts of that jurisdiction? The language of Section 18 is: “Notwithstanding any contrary provision of Section 16 of this Article, juvenile and family courts shall have jurisdiction as provided by law.” If concurrent jurisdiction were contemplated, the “notwithstanding” clause would have been unnecessary, for family and juvenile matters are not among those which Section 16 list as being exclusive to the district courts, and the legislature would be empowered to provide for concurrent jurisdiction over such matters. One must then conclude that \wif the specific reference to Section 16 within the “notwithstanding” clause is to have effect, it must be to “authorize” the legislature to divest the district courts of that jurisdiction and vest exclusively in a specialized family or juvenile court.

Id. at 811-12 (emphasis added). We agree that the constitution authorizes the legislature to not only determine the subject matter jurisdiction of the family courts, but also to divest a district court that shares geographic jurisdiction with a family court of that same subject matter jurisdiction.

Therefore, when the legislature enacted La.Rev.Stat. § 1S:1401(A), vesting the Family Court with exclusive jurisdiction to hear cases involving divorce, paternity, child support, spousal support, partition of community property, etc., it simultaneously divested the 19th JDC of jurisdiction over these matters. We hold that the subject matters listed in La.Rev.Stat. § 13:1401(A) are what La.Rev.Stat. § 46:2138(A) refers to as “family matters” when it states, “[a]ny court in the state of Louisiana which is empowered to hear family ... matters, shall have jurisdiction over proceedings appropriate to it under [part II of the Freedom from Family Violence Act].” (emphasis added). Therefore, when La.Rev.Stat. § 46:2133(A) recites that “[a]ny court in the state of Louisiana which is empowered to hear family ... matters” shall have jurisdiction to hear the claims at issue, it is not referring to the 19th JDC because La.Rev.Stat. § 13:1401(A) has previously divested the 19th JDC of its authority to hear “family matters.”

Therefore, as between the Family Court and. 19th JDC, the Family Court — and only the Family Court — is vested with jurisdiction to hear claims under part II of the Freedom from Family Violence Act, since it is the only court in East Baton Rouge Parish “empowered to hear family ... matters.” Similarly, claims brought by “dating partners” under the Protection from Dating Violence Act, . La.Rev.Stat. § 46:2151,114are under the exclusive jurisdiction of the Family Court since that statute provides its claimants with the same “services, benefits, and other forms of assistance provided by Chapter 28 of Title 46” (the “Protection from Family Violence Act”). For these reasons, we hold that La.Rev.Stat. § 46:2151 entitles its claimants to not only the same forms of relief as their “household” and “family member” counterparts, but also to the same forum for pursuing that relief, the East Baton Rouge Parish Family Court.

Decree

The judgment of the Court of Appeal is affirmed in part, and reversed in part. The East Baton Rouge Parish Family Court, and not the Nineteenth Judicial District Court, is the court with exclusive jurisdiction to hear claims brought by “household members” or “dating partners” under the “Protection from Family Violence Act” and the “Protection from Dating Violence Act,” respectively.

AFFIRMED IN PART, REVERSED IN PART; DECREE ENTERED.

TRAYLOR, J., dissents with reasons.

TRAYLOR, Justice,

dissenting.

| Nile majority opinion finds that the exclusive jurisdiction, in East Baton Rouge Parish, for those cases brought pursuant to the Protection from Family Violence Act (La.Rev.Stat. §§ 46:2121-2148) and/or the Protection from Dating Violence Act (La.Rev.Stat. § 46:2151) lies with the Family Court; however, a careful reading of the applicable legislation does not suggest that the 19th Judicial District Court is divested of its concurrent jurisdiction to hear such cases.

With regard to the jurisdiction of district courts, La. CONST, art. V, § 16(A) provides:

(A) Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property, except as provided in (8) below; the right to office or other public position; civil or political right; probate and succession matters; except for administrative agency determination provided for in (1) above, the state, a political ^corporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships. (3) The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.

With regard to the jurisdiction of family and/or juvenile courts, La. Const, art. Y, § 18 provides:

Notwithstanding any contrary provision of Section 16 of this Article, juvenile and family courts shall have jurisdiction as provided by law. (Emphasis added).

In accordance with the constitutional provisions, the Legislature specified the jurisdiction of the Family Court for East Baton Rouge Parish in La.Rev.Stat. § 13:1401, which provides:

A. There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the followiny proceedings:
(1) All actions for divorce, annulment of marriages, claims for contributions made by one spouse to the education or training of the other spouse, establishment or disavowal of the paternity of children, spousal and child support, and custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees in judgments of divorce, the cumulation of and rendering executory of spousal and child support, the issuance of writs of fieri facias and garnishment under judgments of the court for spousal and child support and attorney fees, jurisdiction of which was vested in the Nineteenth Judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge.
(2)(a) All actions between spouses or former spouses for partition of community property and property acquired pursuant to a matrimonial regime.
(b) All actions for the termination or modification of a matrimonial regime.
(c) AJ1 actions for the settlement and enforcement of claims arising from matrimonial regimes or the establishment thereof.
| a(d) All actions between former spouses seeking the enforcement of a judicial or contractual settlement of claims provided in this Subsection.
(3) All proceedings for writs of habeas corpus for the determination and enforcement of rights to the custody of minors or for the release of any person in actual custody in any case of which the family court has original jurisdiction. B. The family court for the parish of East Baton Rouge has all such additional jurisdiction,, power, and authority now or hereafter provided by law. (Emphasis added).

While I agree that exclusive jurisdiction for those issues outlined by La.Rev.Stat. § 13:1401(A) lies with the Family Court, I disagree that the Protection from Family Violence Act (La.Rev.Stat. §§ 46:2121-2143) and/or the Protection from Dating Violence Act (La.Rev.Stat. § 46:2151) fall under the Family Court’s exclusive jurisdictional domain. Furthermore, the fact that the Family Court may be afforded “additional jurisdiction, power, and authority” does not suggest that such additional jurisdiction is exclusive.

With regard to the proper jurisdiction for those matters falling within the purview of the Protection from Family Violence Act and/or the Protection from Dating Violence Act, La.Rev.Stat. § 46:2133 provides, in pertinent part:

A. Any court in the state of Louisiana which is empowered to hear family or juvenile matters shall have jurisdiction over proceedings appropriate to it under this Part.
C. An adult may seek relief under this Part by filing a petition with the court alleging abuse by the defendant. Any parent, adult household member, or district attorney may seek relief on behalf of any minor child or any person alleged to be incompetent by filing a petition with the court alleging abuse by the defendant. A petitioner’s right to relief under this Part shall not be affected by leaving the residence or household to avoid further abuse. (Emphasis added).

Clearly, the Family Court has jurisdiction to hear cases brought pursuant to the domestic violence legislation; however, the 19th Judicial District Court is also I ¿empowered to hear those family matters of which it has not been divested, in accordance with La.Rev.Stat. § 13:1401. La. RevStat. § 13:1401 does not specify that exclusive jurisdiction for those matters pertaining to the Protection from Family Violence Act and/or the Protection from Dating Violence Act lies with the Family Court. As the First Circuit aptly noted in its decision:

In contrast to the grant of exclusive jurisdiction in subsection 1401(A), the other statutes we are reviewing do not specify that the jurisdiction assigned therein is exclusive. The Domestic Abuse Assistance Act states in LSA-R.S. 46:2133, “Any Louisiana court that is empowered to hear family or juvenile matters shall have jurisdiction over proceedings appropriate to it under this Part” (emphasis added), which includes actions brought by unrelated “household members.” And the Protection from Dating Violence Act, while it does not include a specific grant of jurisdiction, provides to “dating partners” all of the services, benefits, and other assistance available under Chapter 28 of Title 46 of the Revised Statutes, which includes LSA-R.S. 46:2131, et seq. Of those provisions, only LSA-R.S. 46:2133 has a jurisdictional statement.
We conclude that the words “shall have jurisdiction” in LSA-R.S. 46:2133 do not have the same connotation as the words “shall be a court of record with exclusive jurisdiction,” as stated in LSA-R.S. 13:1401(A). Clearly, when the legislature exercises its constitutional authority to divest a district court of jurisdiction over certain matters and assign those matters to another court or courts, it does so by using the word, “exclusive.” Neither the Domestic Abuse Assistance Act nor the Protection from Dating Violence Act uses the word “exclusive” in assigning authority to the Family Court over the types of claims described therein. While the word “shall” in a statute is mandatory, mandatory does not have the same meaning as “exclusive.” Therefore, the 19th JDC was not divested of its authority in domestic violence cases by the provisions of LSA-R.S. 46:2133.

Accordingly, because the majority opinion incorrectly divested the 19th Judicial District Court of its concurrent jurisdiction to hear these domestic and/or dating violence cases, I respectfully dissent.

      . Consequently, the original sections of the Protection from Family Violence Act discussed above were redesignated "Part I. Family Violence Shelters." See Act No. 782, 1982 La. Acts 1883.

      . La.Rev.Stat. § 46:2132(4) defines “family members” as "spouses, former spouses, parents and children, stepparents, stepchildren, foster parents, and foster children.”

      . La.Rev.Stat. § 13:1401 states:
      § 1401. Family court for the parish of East Baton Rouge; establishment; jurisdiction
      A. There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings:
      (1)All actions for divorce, annulment of marriages, claims for contributions made by one spouse to the education or training of the other spouse, establishment or disavowal of the paternity of children, spousal and child support, and custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees in judgments of divorce, the cumulation of and rendering executory of spousal and child support, the issuance of writs of fieri facias and garnishment under judgments of the court for spousal and child support and attorney fees, jurisdiction of which was vested in the Nineteenth Judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge.
      (2)(a) All actions between spouses or former spouses for partition of community property and property acquired pursuant to a matrimonial regime.
      (b) All actions for the termination or modification of a matrimonial regime.
      (c) All actions for the settlement and enforcement of claims arising from matrimonial regimes or the establishment thereof.
      (d) All actions between former spouses seeking the enforcement of a judicial or contractual settlement of claims provided in this Subsection.
      (3) All proceedings for writs of habeas corpus for the determination and enforcement of rights to the custody of minors or for the release of any person in actual custody in any case of which the family court has original jurisdiction.
      B. The family court for the parish of East Baton Rouge has all such additional jurisdiction, power, and authority now or hereafter provided by law.

      . The Clerk of Court for the 19th JDC also serves as the clerk of the Family Court. See La.Rev.Stat. § 13:1405.

      . The Clerk of Court takes no position on whether the subject matter for these cases is vested with the Family Court, the 19th JDC, or concurrently vested with both.

      . See note 1, supra.

      . For instance, compare the language of La. Rev.Stat. § 46:2131, with La. Child. Code art. 1564: La.Rev.Stat. § 46:2131 states, “The purpose of this Part is to recognize and address the complex legal and social problems created by domestic violence ... [and to] provide a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection.” Similarly, La. Child. Code art. 1564 states "[t]he purpose of this Chapter is to recognize and address the complex legal and social problems created by domestic violence and to provide a civil remedy in the juvenile courts for domestic violence in homes in which children reside which will afford the victim immediate and easily accessible protection.” Furthermore, the "Historical and Statutory Notes” of every Children’s Code "Domestic Abuse Assistance” article references an analogous statute in Title 46 of the Revised Statutes as the "source” of the Children's Code article.

      . La. Child. Code. art. 1565(2) states
      "Family or household member” means spouses, former spouses, parents and children, stepparents, foster parents, foster children, and any person living in the same residence with the defendant as a spouse whether married or not if a child or children also live in the residence, who are seeking protection under this Chapter, (emphasis added).
      By way of comparison, La.Rev.Stat. § 46:2132(4) states
      "Family members” means spouses, former spouses, parents and children, stepparents, stepchildren, foster parents and foster children. "Household member” means any person of the opposite sex presently or formerly living in the same residence with the defendant as a spouse, whether married or not, who is seeking protection under this Part.” (emphasis added).

      . Professor Hargrave served as Coordinator of Legal Research for the Constitutional Convention of 1973. Hargrave, supra, at 765 n. *.

      . Welborn v. 19th Judicial District Court, 06-2307, pp. 9-10 (La.App. 1 Cir. 5/4/07); 961 So.2d 394, 400-401.


text:
    STATE of Louisiana v. Jimmy Morchan TURNER.
    No. 2008-KK-0289.
    Supreme Court of Louisiana.
    Feb. 8, 2008.
   In re State of Louisiana; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Sabine, 112th Judicial District Court Div. C, Nos. 57,765; to the Court of Appeal, Third Circuit, No. KW 08-00139.

GRANTED.

The Trial Court did not abuse its discretion in denying the motion for a continuance. Therefore, the ruling of the Court of Appeal is reversed and the ruling of the Trial Court which denied the continuance is reinstated.

Reversed and Remanded.

CALOGERO, C.J., and KIMBALL and JOHNSON, JJ., would deny the writ.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Julie FENKEL Wife of/and Robert Fenkel and Jannette Elizabeth Fenkel v. ST. PAUL MERCURY INSURANCE COMPANY, Brian McAllister, Safeco Insurance Company, United States Automobile Association Insurance Company, American Family Insurance Company, AIG Technical Services, Inc. and Illinois National Insurance Company.
    No. 07-CA-442.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.
    Robert L. Manard, III, Paul E. May-eaux, New Orleans, LA, for Plaintiff/Appellant.
    Michael R. Sistrunk, Kyle P. Kirsch, Matthew J.' Garver, McCranie, Sistruk, Anzelmo, Hardy, Maxwell & McDaniel, George J. Richaud, Young, Richard & Myers, Metairie, LA, Robert. I. Siegel, Brendon P. Doherty, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   EDWARD A. DUFRESNE, JR., Chief Judge.

12This is an appeal by plaintiffs from a summary judgment dismissing their claims for uninsured/underinsured coverage on various automobile liability insurance policies. The trial judge, applying choice of law principles, determined that the policies were governed by Maryland and Colorado laws, and that under those laws no UM coverage was provided in the respective policies. For the following reasons we affirm that judgment.

The operative facts are not disputed. Robert Fenkel, plaintiff, was driving a rental car on the interstate highway when he was struck head on by a speeding Corvette which crossed the median. Fenkel suffered severe injuries. The driver of the Corvette, Brian McAllister, was allegedly intoxicated and his passenger was killed. The investigation at the scene showed that McAllister’s car had made contact with a third vehicle, driven by Jacquelyn Hampton before shooting across the median.

Fenkel is a Colorado resident who was in New Orleans for a national trade show at the behest of his employer, Arinc, Inc., a Delaware corporation with its principal place of business in Maryland. Although Arinc does business [¡¡nationwide, including in Louisiana, it has no office in this state and has not been licensed here since 1984. McAllister is an Illinois resident who had been working in the New Orleans area for about a month prior to the accident. Hampton is a Louisiana resident.

Fenkel, his wife, and his daughter sued numerous insurers. McAllister’s liability insurers settled the matter for $1,300,000. Arinc’s primary automobile liability insurer, St. Paul Mercury Insurance Co., also settled with plaintiffs for $1,000,000 under the UM portion of its policy. Plaintiffs sought further UM recovery against United Services Automobile Association, Fenk-el’s personal automobile insurer, and the excess insurers of Arinc, National Union Fire Insurance Co. of Pittsburg, Pa. and Ohio Casualty Insurance Co. These three insurers moved for summary judgment, arguing that under Colorado law USAA was not liable for UM coverage, and under Maryland law National Union and Ohio Casualty were similarly not liable. The trial judge agreed that Colorado and Maryland insurance laws were applicable, and therefore no UM coverage was available under the policies. He thus granted summary judgment in favor of these insurers. This appeal followed.

It is clear that under Colorado and Maryland automobile insurance laws the policies at issue do not provide further UM coverage for this accident, although under Louisiana law they arguably would. Unlike Louisiana, Colorado law, C.R.S.A. Sec. 10-4-609(5), provides that the UM carrier is entitled to an offset of any funds paid to its insured up to the underlying limits of UM coverage. Here, the USAA policy was for $100,000. Because plaintiffs received more than this amount from other sources, USAA’s UM liability was exhausted under Colorado law. While Maryland, like Louisiana, requires that in basic insurance policies there must be a written waiver of UM coverage, Maryland, unlike Louisiana,_J^permits an exclusion of UM in excess policies to be simply written into the policy, Md.Code Ann., Insurance Section 19-509(h)(l). The policies at issue here did so exclude UM coverage, and under Maryland law this exclusion was valid.

The issue in this case is thus what laws to apply. Conflicts of laws relating to conventional obligations are governed by La. Civ.Code art. 3537:

Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by the other.

As to the Colorado policy written by USAA, the above factors overwhelmingly support application of Colorado laws. The policy was written and delivered in Colorado, Frankel is a Colorado resident, it is clear that the parties contemplated application of these laws, and it is equally clear that neither party contemplated that another state’s laws would apply to the policy.

The Maryland policies are more complex in origin, but the result is the same. Arinc’s basic automobile liability policy was written by St. Paul Mercury Insurance Co., and included UM coverage. National Union had in effect an umbrella policy for $25,000,000, which specifically excluded “[a]ny obligation of the insured under a “No Fault,” “Uninsured Motorist,” or “Underinsured Motorist” law.” This policy was purchased by Arinc and delivered in Maryland, Arinc’s principal place of business. Ohio Casualty had in effect an additional excess policy above the National Union policy and which insured against the same risk |Bcontained in the National Union policy. This policy was. also purchased and delivered in Maryland. As noted above, Arinc is a Delaware corporation with its principal place of business in Maryland. Thus as an initial matter application of Maryland law is clearly indicated here.

On the other hand, Louisiana has very little interest in this matter. Frankel is a citizen of Colorado and employed by a corporation with its principal place of business in Maryland. This company owns no automobiles garaged in Louisiana, nor does it supply automobiles to its employees. While it at one time was licensed in Louisiana, that is no longer the case, and it has no office in this state. McAllister, the tortfeasor, is an Illinois resident. All of the insurance policies at issue in this appeal were purchased and delivered in other states. The only two contacts which Louisiana has to this litigation are 1) that the accident occurred here, and 2) a Louisiana resident, Jacquelyn Hampton, was peripherally involved in the accident. However, although Hampton was third-partied by USAA, she has no interest in the issue raised in the present appeal.

Considering all of the above circumstances we conclude that the trial judge was correct in applying the laws of Colorado and Maryland to this incident, and that the summary judgment dismissing the case as to United Services Automobile Association, National Union Fire Insurance Company of Pittsburg, Pa., and Ohio Casualty Insurance Company is hereby affirmed.

AFFIRMED.


author: JAMES F. McKAY III, Judge.

text:
    Richard GARDACHE v. CITY OF NEW ORLEANS POLICE DEPARTMENT.
    No. 2007-CA-0269.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 28, 2007.

      Gregory S. Unger, Workers’ Compensation, L.L.C., Metairie, Louisiana, for Plaintiff/Appellant.
    Wayne J. Fontana, Christopher M. McNabb, Hunter & Fontana, New Orleans, Louisiana, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   JAMES F. McKAY III, Judge.

hThe claimant-appellant, Richard Gar-dache, appeals from the Office of Workers’ Compensation Administration’s granting of the defendant-appellant’s, City of New Orleans’s, exception of res judicata. We reverse.

FACTS AND PROCEDURAL HISTORY

On March 9, 1984, Richard Gardache was employed by the City of New Orleans as a police officer and emergency medical technician when he injured his back. The City paid indemnity and medical benefits to Mr. Gardache until 1985 when he returned to work in a modified position. Mr. Gardache worked in the modified position until his treating orthopedic surgeon considered him totally disabled on August 22, 1988. At that point, Mr. Gardache received indemnity benefits in the form of temporary total disability benefits (TTD) until December of 1997 when he began receiving supplemental earnings benefits (SEB). Mr. Gardache received SEB through September 9, 2000 when the City terminated his benefits on the grounds that he had received indemnity benefits for more than 520 weeks.

li>On December 20, 2000, Mr. Gardache filed a disputed claim for compensation seeking reinstatement of his SEB payments. On March 19, 2003, the workers’ compensation judge, relying on Cline v. St. Jude Medical Center, 619 So.2d 712 (La.App. 4 Cir.1993), entered a judgment dismissing Mr. Gardache’s claim with prejudice. Mr. Gardache appealed that judgment, which this Court affirmed on March 31, 2004. Gardache v. City of New Orleans, 03-1286 (La.App. 4 Cir. 3/31/04), 874 So.2d 247. This Court held “because weekly compensation benefits for total disability are dependent on the disability continuing, benefits technically become due only upon the continued existence of that disability week to week, any amounts plaintiff received for temporary total disability benefits after the effective date of the 1990 amendment to 23:1223(B) should be subject to the credit.” Id. at 251. The Louisiana Supreme Court denied writs on June 18, 2004.

On January 19, 2005, the Louisiana Supreme Court considered the issue of the “applicability of the 1990 amendments to La.Rev.Stat. 23:1223 to claims for indemnity benefits arising from work-related accidents that occurred prior to the effective date of the amendments.” Frith v. Riverwood, Inc., 04-1086 (La.1/19/05), 892 So.2d 7, 9. In Frith, the Supreme Court specifically overruled both Cline v. St. Jude Medical Center, 619 So.2d 712 (La.App. 4 Cir.1993) and Gardache v. City of New Orleans, 03-1286 (La.App. 4 Cir. 3/31/04), 874 So.2d 247. Frith at 12.

IsUpon becoming aware of the Supreme Court’s decision in Frith, Mr. Gardache filed another disputed claim for compensation seeking SEB on April 6, 2005. Mr. Gardache contended that because the law in effect as of March 9, 1984 did not allow the employer to credit what it had paid in TTD indemnity benefits against what it owed in SEB, and as he was unable to earn 90% of his pre-accident wages, he was entitled to additional SEB. The City filed an exception of res judicata which the Office of Workers’ Compensation granted on August 11, 2005. It is from this judgment that Mr. Gardache now appeals.

DISCUSSION

At issue in this appeal is whether the doctrine of res judicata is applicable in this case considering that the Louisiana Supreme Court specifically overruled the Fourth Circuit Court of Appeal’s decision on the issue of Mr. Gardache’s entitlement to SEB in Frith v. Riverwood, Inc., 2004-1086 (La.1/19/05), 892 So.2d 7.

Ordinarily, once a judgment becomes final and definitive, the parties are bound by it, regardless of any future change of circumstance. However, workers’ compensation judgments are treated differently from ordinary judgments. This is due to the fact that if the rules of finality that govern ordinary civil judgments are applied to workers’ compensation judgments, the flexibility of the workers’ compensation system would be greatly restricted. Falgout v. Dealers Truck Equipment Co., 98-3150 (La.10/19/99), 748 So.2d 399, 406. If there is any doubt 14as to the applicability of the res judicata exception it must be overruled. Davis v. Home Depot, 96-0850 (La.App. 5 Cir. 2/25/97), 690 So.2d 208, 211.

In Frith v. Riverwood, Inc., the Louisiana Supreme Court overruled this Court’s earlier decision in Gardache v. City of New Orleans, and rejected the analysis utilized by this Court on the issue of SEB entitlement. The Supreme Court noted that there was a split in the Circuits regarding the applicability of the 1990 amendments to claims that arose from work-related accidents which occurred prior to the effective date of those amendments. The Supreme Court cited the language of the statute in effect at the time and found that “the only credit allowed was credit against an employer’s PPD obligation for payment of TTD, PTD, and SEB. No credits were allowed against an employer’s SEB obligation to his injured employee.” Frith at 11. Effective January 1, 1990, La. R.S. 23:1223 was amended, and the amendment allowed employers “a credit against their SEB obligations for TTD, PTD, and PPD previously paid to injured employees.” Id. Accordingly, if we were handing down our earlier opinion in Gardache today, it would not be the same as it was on March 31, 2004.

In the instant matter, Mr. Gardache would be entitled to SEB payments but for this Court’s interpretation of the employer’s credit under the 1990 amendments to La. R.S. 23:1223 in his earlier case. Granting the employer’s exception of res judicata under these circumstances would place Mr. Gardache in the anomalous position of having his benefits reduced to zero, while a similarly situated individual living within the jurisdiction of a different Circuit would receive benefits. | .¡Although there is no bright letter rule on the issue of whether res judicata would apply when our earlier opinion in Gardache v. City of New Orleans has been overruled, it appears unfair that Mr. Gardache should be bound by it. Louisiana Civil Code Article 4 states: “When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.”

DECREE

For the foregoing reasons, the Office of Worker’s Compensation Administration’s granting of the City’s exception of res ju-dicata is reversed. This matter is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

      . 04-1047 (La.6/18/04), 876 So.2d 812.