text:
    William SINGLETON and Gwendolyn Singleton, Appellants, v. ELI B. INVESTMENT CORP., a Florida corporation, Appellee.
    No. 4D06-3582.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 2007.

      William Chennault of Chennault Attorneys & Counsellors at Law, Fort Lauder-dale, for appellants.
    Steven L. Jones of Larson and Jones, Miami Shores, for appellee.
   On Motion for Rehearing

TAYLOR, J.

We grant Eli B. Investment Corp.’s motion for rehearing, withdraw our prior opinion, and issue the following opinion in its place.

William Singleton and Gwendolyn Singleton, whose real property was sold because of unpaid ad valorem taxes, appeal a summary final judgment quieting title in favor of the purchaser, Eli B. Investment Corp. The Singletons contend that notice of the impending tax deed sale was inadequate and that it failed to comport with constitutional due process requirements. We agree and reverse the trial court’s order of summary final judgment.

On December 80, 2005, Eli B. Investment Corp. filed a complaint to quiet title pursuant to a tax deed issued on September 15, 2004. The Broward County Administrator attached a Certificate of Mailing Notices of the tax deed, certifying that he sent notice to the Singletons at their address in Hallandale, Florida. Eli B. Investment asserted that the delinquent real property taxes were not paid or redeemed prior to the sale, issuance, or recording of the tax deed. The company maintained that because the relevant portions of Chapter 197, Florida Statutes, were complied with, it was entitled to title to the property.

Eli B. Investment moved for default against the Singletons for failure to file or serve any papers; a default was entered. Eli B. Investment then moved for Summary Final Judgment Quieting Title, alleging that the Singletons were personally served and failed to file any answer or pleading and that a default was entered against them. Eli B. Investment asserted that the applicable provisions of Chapter 197, Florida Statutes, had been strictly complied with and that there was no evidence that the delinquent real property taxes were paid prior to the sale, issuance, or recording of the tax deed. It attached an affidavit from its attorney, who stated that he examined title to the real property and determined the proper parties to join. He further swore that he verified the proper determination of the identity and addresses of the parties, ensured that notices in compliance with the statute were mailed, and ensured that notice was properly published.

Thereafter, the Singletons filed a motion to vacate and set aside the default, asserting that the time for filing their answer to Eli B. Investment’s amended complaint had not expired when the default was entered. The Singletons further claimed that they received no notice of the motion for, or entry of, the default. The trial court granted the motion.

The Singletons then filed affidavits opposing Eli B. Investment’s motion for summary judgment. They acknowledged that their home address was listed correctly, but asserted that they did not receive notice of the tax deed sale on September 15, 2004. In response to Eli B. Investment’s complaint to quiet title, the Singletons filed an answer, affirmative defenses, and counterclaims, asserting that they did not receive notice of the tax deed sale and were not provided notice in accordance with Chapter 197, Florida Statutes. Further, they alleged that Broward County had actual knowledge that they did not receive notice. Contending that these circumstances constituted a denial of due process, the Singletons counterclaimed to vacate and set aside the tax deed sale.

Thereafter, the Singletons filed amended affidavits in opposition to summary judgment, specifically asserting that they were not notified by certified mail, return receipt requested, or by regular mail; that the clerk of court had actual knowledge that they were not notified because the notices, sealed and unopened, are still in the tax deed file; and that the sheriff failed to notify them by posting a copy of the notice in a conspicuous place at their home or otherwise failed to notify them of the tax deed sale. They further asserted that section 197.522, Florida Statutes, which governs notice to an owner when application for tax deed is made, is unconstitutional.

The trial court granted Eli B. Investment’s motion for summary final judgment quieting title.

Section 197.522, Florida Statutes, prescribes the procedures for notifying a property owner when an application for a tax deed has been made for his property:

(l)(a) The clerk of the circuit court shall notify, by certified mail with return receipt requested or by registered mail if the notice is to be sent outside the continental United States, the persons listed in the tax collector’s statement pursuant to s. 197.502(4) that an application for a tax deed has been made. Such notice shall be mailed at least 20 days prior to the date of sale. If no address is listed in the tax collector’s statement, then no notice shall be required.
(b)The clerk shall enclose with every copy mailed a statement as follows:
WARNING: There are unpaid taxes on property which you own or in which you have a legal interest. The property will be sold at public auction on (date) unless the back taxes are paid. To make payment, or to receive further information, contact the clerk of court immediately at (address), (telephone number).
(c) The clerk shall complete and attach to the affidavit of the publisher a certificate containing the names and addresses of those persons notified and the date the notice was mailed. The certificate shall be signed by the clerk and the clerk’s official seal affixed. The certificate shall be prima facie evidence of the fact that the notice was mailed. If no address is listed on the tax collector’s certification, the clerk shall execute a certificate to that effect.
(d) The failure of anyone to receive notice as provided herein shall not affect the validity of the tax deed issued pursuant to the notice.
(e) A printed copy of the notice as published in the newspaper, accompanied by the warning statement described in paragraph (b), shall be deemed sufficient notice.
(2)(a) In addition to the notice provided in subsection (1), the sheriff of the county in which the legal titleholder resides shall, at least 20 days prior to the date of sale, notify the legal titleholder of record of the property on which the tax certificate is outstanding. The original notice and sufficient copies shall be prepared by the clerk and provided to the sheriff. Such notice shall be served as specified in chapter 48; if the sheriff is unable to make service, he or she shall post a copy of the notice in a conspicuous place at the legal titleholder’s last known address. The inability of the sheriff to serve notice on the legal titleholder shall not affect the validity of the tax deed issued pursuant to the notice. A legal titleholder of record who resides outside the state may be notified by the clerk as provided in subsection (1). The notice shall be in substantially the following form:
WARNING
There are unpaid taxes on the property which you own. The property will be sold at public auction on (date) unless the back taxes are paid. To make arrangements for payment, or to receive further information, contact the clerk of court at (address), (telephone number). In addition, if the legal titleholder does not reside in the county in which the property to be sold is located, a copy of such notice shall be posted in a conspicuous place on the property by the sheriff of the county in which the property is located. However, no posting of notice shall be required if the property to be sold is classified for assessment purposes, according to use classifications established by the department, as non-agricultural acreage or vacant land.
(3) Nothing in this chapter shall be construed to prevent the tax collector, or any other public official, in his or her discretion from giving additional notice in any form concerning tax certificates and tax sales beyond the minimum requirements of this chapter.

In Vosilla v. Rosado, 944 So.2d 289, 291 (Fla.2006), the Florida Supreme Court recently resolved a certified conflict issue: whether notice to a property owner of a pending tax deed sale that complies with section 197.522(1) can nonetheless violate due process of law if the notice is not reasonably calculated to apprise the owners of the tax deed sale. Vosilla specifically addressed the constitutional adequacy of notice where the taxing authority received actual notice from the titleholder of a change of address, but sent notice of the tax deed sale to the former address. Discussing constitutional due process requirements, the court stated that “‘[a] landowner whose property is to be sold for delinquent taxes undoubtedly has a vested ownership interest in the subject property and is therefore entitled to notice of a pending tax deed sale.’ ” Id. at 294 (quoting Dawson v. Saada, 608 So.2d 806, 808 (Fla.1992)). Notice must be provided that is “ ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’” Id. (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). The court continued by noting that whether a particular method of notice is reasonably calculated to provide adequate notice depends on “ ‘due regard for the practicalities and peculiarities of the case.’ ” Id. (quoting Mullane, 339 U.S. at 314-15, 70 S.Ct. 652).

The Vosilla court recognized holdings by Florida appellate courts that tax deeds are not invalid because a property owner did not receive notice of the sale, where the owner failed to ensure that the property appraiser had notice of the proper mailing address. 944 So.2d at 295-96 (citing Evans v. Ireland, 707 So.2d 1135 (Fla. 2d DCA 1998), and Kidder v. Cirelli, 821 So.2d 1106 (Fla. 5th DCA 2002)). The court, however, distinguished Vosilla by noting that the property owners in that case twice advised taxing authorities of their change of address. Id. at 300. In addition, the return receipt indicated that someone other than the property owners signed for the notice, and the sheriff notified the clerk that the property owners no longer lived at the address listed on the notice. Id. Given those circumstances, the court held that the notice was not reasonably calculated to provide the property owners with notice. Id.

The United States Supreme Court recently addressed the issue of adequate notice in Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). There, the plaintiff owned a house, but no longer resided there. Id. at 1712. His property taxes went unpaid and he was certified delinquent. Id. The clerk sent certified letters to his house, but no one was home to sign for them and no one claimed the letters at the post office; they were returned to the clerk stamped “unclaimed.” Id. The Supreme Court held that, under those circumstances, the state should have taken additional steps to notify Jones. Id. at 1718. The Court stated that what additional steps “are reasonable in response to new information depends upon what the new information reveals.” Id.

The Court reasoned that the return of the certified letters as “unclaimed” meant that Jones either still lived at the house, but was not home when it was delivered and did not retrieve it from the post office, or that he no longer lived there. Id. The Court mentioned several reasonable steps that the state could have taken upon return of the unclaimed notice letter, including resending the letter by regular mail so that a signature was not required. Id. at 1718-19. The Court noted that the use of certified mail might make actual notice more difficult in some cases and that following up with regular mail might improve the chances of actual notice to a homeowner. Id. at 1719. After discussing the efficacy of various other methods for providing adequate notice, the Court concluded that the efforts to provide notice to Jones of the impending tax sale were insufficient to satisfy due process. Id. at 1721.

In light of Jones, we reverse the summary final judgment and remand for further evidentiary proceedings.

Reversed and Remanded.

POLEN and STEVENSON, JJ., concur.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Jean Claude MEUS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4278.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 2007.

      John H. Trevena, Largo, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
    Dana Christenson, pro se, Tampa, Ami-cus Curiae.
   WALLACE, Judge.

Jean Claude Meus appeals the postcon-viction court’s summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. For the reasons that we explain below, we affirm in part, reverse in part, and remand for an evidentiary hearing.

The Factual Background

Late in the afternoon of May 11, 2001, Mr. Meus left Immokalee driving north in a semi-tractor trailer rig that was loaded with tomatoes. Later that evening, Mr. Meus was traveling east on State Road 64 in Hardee County. Nona Moore, a Har-dee County resident, was also on the road that evening. Ms. Moore was driving a minivan, and she was accompanied by her three young daughters. At approximately 9:30 p.m., both Mr. Meus and Ms. Moore arrived at an intersection near Wauchula known as “Seven Mile Point.” Because of its unusual configuration, this intersection — where Wauchula’s East Main Street meets State Road 64 — could be considered hazardous.

At that point, Mr. Meus’ rig veered off State Road 64, reentered the roadway, and overturned onto Ms. Moore’s minivan. Ms. Moore and one of her daughters were crushed to death, and the two surviving daughters were trapped in the van. Because of the weight of the trailer and its load, it took a long time for rescue personnel to extricate the two surviving children from the wreckage. In the aftermath of this horrible crash, numerous law enforcement officers, firefighters, and emergency medical personnel arrived at the scene to assist with the rescue operations.

More than one year after the event, the State charged Mr. Meus with two counts of vehicular homicide for the deaths of Ms. Moore and her daughter. Mr. Meus was tried in 2003, and a jury convicted him on both counts. The trial court sentenced Mr. Meus to concurrent fifteen-year prison terms on each count. Mr. Meus took a direct appeal, and this court affirmed his judgments and sentences. Meus v. State, 892 So.2d 1030 (Fla. 2d DCA 2004) (table decision). Next, Mr. Meus filed a petition alleging ineffective assistance of appellate counsel. After that petition was denied, Mr. Meus filed his postconviction motion. The postconviction court denied the motion without granting Mr. Meus an evidentiary hearing, and Mr. Meus filed this appeal.

The Evidence at Trial

At trial, the State did not present any evidence that Mr. Meus’ ability to operate his rig safely was impaired by the use of alcohol or drugs. Instead, the State’s theory of the case was that Mr. Meus fell asleep at the wheel because he was sleep-deprived. In support of this theory, the State presented evidence demonstrating that Mr. Meus had been driving for almost ten hours in a twenty-four-hour period. However, the State’s case was entirely circumstantial. Mr. Meus denied that he had fallen asleep before the crash, and the State had no direct evidence that he did.

The trial developed into a battle of experts. Sergeant Owen T. Keen, a traffic homicide investigator employed by the Florida Highway Patrol, testified for the State. Sergeant Keen was , called to the scene to investigate immediately after the crash. He took photographs, made various measurements, and prepared diagrams reconstructing the event. Sergeant Keen suggested that Mr. Meus fell asleep as he approached the intersection and drove off the roadway. According to the sergeant, Mr. Meus was awakened abruptly after he went off the side of the road. At that point, Mr. Meus overcorrected when he pulled the rig back onto the highway. Thus, when Mr. Meus reentered State Road 64, he was still heading east, but he was traveling in the westbound lane. Mr. Meus then saw a vehicle that he thought was in his lane, and he swerved to the right to avoid the oncoming vehicle. Sergeant Keen opined that these maneuvers caused the rig to overturn and crush Ms. Moore’s minivan.

However, Mr. Meus did not admit that he had fallen asleep while driving. At the scene, he gave a statement to Sergeant Keen. The sergeant recounted Mr. Meus’ statement during his trial testimony as follows:

[Mr. Meus was] travelling [sic] eastbound on State Road 64 and as he was approaching the intersection where the stop sign is located at 636 [East Main Street] that there was a vehicle that was making a turn onto 64 that had been travelling [sic] eastbound, and turning back westbound to go the direction he just came from. He described this vehicle as a truck, probably [an] extended cab truck or a white vehicle or possibly a van. And as he, as this vehicle made the turn onto 64 heading back towards Zolfo Springs, the lights were on bright and they blinded him, which caused him to swerve to the right quickly to avoid hitting him because it was in his lane travelling [sic] back towards Zolfo. And as he swerved to the right, this is when he lost control of the vehicle and overturned until he came to the final rest.

Thus Mr. Meus said that the cause of the accident was the sudden appearance of an oncoming vehicle in his lane of travel, not falling asleep at the wheel. The alleged oncoming vehicle described by Mr. Meus did not stop at the scene of the crash, and it was apparently never found or identified.

Mr. Meus did not testify at trial. The theory of the defense was based on Mr. Meus’ postcrash statement to Sergeant Keen. Mr. Meus presented the testimony of Victor Fisher, an accident reconstruction expert and a former traffic homicide investigator for the Florida Highway Patrol. Mr. Fisher’s testimony supported the defense theory concerning how the crash occurred. Mr. Fisher also disputed many of Sergeant Keen’s findings and conclusions.

The Postconviction Motion

Mr. Meus filed his postconviction motion in December 2005. He subsequently amended the motion and filed two supplements to it. As a result of this process of amendment and supplementation, the motion ultimately raised multiple claims. After a thorough review of the postconviction court’s order and the two-volume record, we conclude that the' postconviction court erred in failing to grant Mr. Meus an evidentiary hearing on his claim that his trial counsel was ineffective for omitting to interview and call as a witness Juan Otero of the Zolfo Springs Fire Department. Mr. Otero was one of the first emergency personnel to arrive at the scene of the crash. The remaining claims were either facially insufficient or were adequately refuted by the portions of the record that the postconviction court attached to its order.

We have not overlooked Mr. Meus’ claim — raised for the first time in his initial brief filed in this court — that the judge who denied the postconviction motion should have recused himself after receiving and reviewing ex parte communications that the judge deemed inappropriate. Although it appears to us that the postcon-viction court handled this matter properly, Mr. Meus waived the issue by failing to raise it in the postconviction court before seeking relief here.

The Test for Establishing an Ineffective Assistance of Counsel Claim

The test for establishing an ineffective assistance of counsel claim is a two-pronged one:

(1) The claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.
(2) The clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To establish the second prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In this context, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Mr. Meus was entitled to an evi-dentiary hearing on his claims of ineffective assistance of counsel if he alleged specific facts which are not conclusively rebutted in the record and which demonstrate a deficiency in trial counsel’s performance that prejudiced the outcome of his trial. See Floyd v. State, 808 So.2d 175, 182 (Fla.2002) (citing Gaskin v. State, 737 So.2d 509, 516 (Fla.1999)). Upon re view of the postconviction court’s summary denial of Mr. Meus’ motion without an evidentiary hearing, we must accept Mr. Meus’ factual allegations as true to the extent that they are not refuted by the record. Id. (citing Occhicone v. State, 768 So.2d 1037, 1041 (Fla.2000)). Our review of the postconviction court’s summary denial of Mr. Meus’ postconviction motion is under the de novo standard. See Willacy v. State, 967 So.2d 131, 138-39 (Fla.2007).

We emphasize that the postconviction court did not conduct an evidentiary hearing on Mr. Meus’ claim of ineffective assistance of trial counsel that we discuss below. Although we accept the unrefuted factual allegations of Mr. Meus’ claim as true for the purposes of our review, the reader should bear in mind that Mr. Meus’ trial counsel has not yet had an opportunity to address these allegations.

Discussion

We turn now to an examination of Mr. Meus’ claim that his trial counsel was ineffective for omitting to interview and to call Juan Otero, the Zolfo Springs volunteer firefighter, as a witness at trial. It is well settled that in order for a defendant to state a facially sufficient claim for failure to call a witness at trial, the defendant must allege: (1) the identity of the prospective witness, (2) the substance of the witness’s testimony, (3) the availability of the witness to testify at trial, and (4) an explanation concerning how the omission of the witness’s testimony prejudiced the outcome of the trial. See Nelson v. State, 875 So.2d 579, 582-83 (Fla.2004); Petz v. State, 917 So.2d 381, 382-83. (Fla. 2d DCA 2005). With respect to the outline of the omitted testimony, it is sufficient for the defendant to detail the substance of the exculpatory version of events to which the witness might have testified and explain the prejudice resulting to him or to her from its omission at trial. See Tyler v. State, 793 So.2d 137, 141 (Fla. 2d DCA 2001) (“Absolute certainty regarding potential testimony is not required in order to state a facially sufficient claim.”).

In his postconviction motion, Mr. Meus alleged the following facts concerning Mr. Otero’s potential testimony. In 2001, Mr. Otero had been a volunteer firefighter for Hardee County for approximately five years. He had responded to approximately 100 vehicular crashes. From this experience, Mr. Otero had practical knowledge concerning how accident investigators reconstructed the facts of an accident. He also had two years’ experience driving a semi-tractor trailer rig similar to the one operated by Mr. Meus.

Mr. Meus alleged the following additional facts. Although Mr. Otero was off duty at the time of the crash, he was one of the first emergency personnel to- reach the scene of the crash. In fact, Mr. Otero reported the crash to the appropriate authorities. Mr. Otero observed Mr. Meus climb out of his wrecked rig and spoke with him after the crash. Mr. Otero’s observations, of Mr. Meus after the crash led him to the assessment that Mr. Meus was not sleep-deprived. Furthermore, based on his experience as a first responder, his familiarity with the Seven Mile Point intersection, and his direct observations at the scene of the crash, Mr. Otero concluded that the path and final resting positions of Mr. Meus’ rig and Ms. Moore’s minivan were inconsistent with the State’s theory that Mr. Meus fell asleep at the wheel.. ■

According to the allegations of Mr. Meus’ motion, the omission of Mr. Otero’s testimony at trial prejudiced him in three ways. First, law enforcement officers testified at trial that Mr. Meus fell asleep after they had placed him in the back of a patrol car at the scene of the crash. The officers’ testimony about the difficulty they experienced in waking Mr. Meus later that evening was critical to the State’s circumstantial case that Mr. Meus was sleep-deprived and had fallen asleep at the wheel. By showing that Mr. Meus was awake and alert immediately after the crash, Mr. Otero’s testimony would have cast doubt on the State’s theory. In addition, Mr. Otero’s testimony on this point would have provided some support for the defense explanation that Mr. Meus’ apparent drowsiness after the crash stemmed from a head injury that he had sustained during the crash, not from a lack of sleep. Second, Mr. Otero’s testimony would have corroborated the defense expert’s conclusions about how the crash occurred, and it would have cast doubt on the accuracy of Sergeant Keen’s observations and findings. Third, the trial developed as a battle of experts who were clearly aligned with one side or the other. The State’s case against Mr. Meus was entirely circumstantial. Because Mr. Otero was an independent witness who was unbiased, his testimony would have been crucial to the defense. For these reasons, Mr. Meus contended in his motion that there was a reasonable probability that if the jury had heard Mr. Otero’s testimony, the outcome of the trial would have been different.

In denying Mr. Meus an evidentiary hearing on this claim, the postconviction court adopted the State’s response to the motion. In its response, the State made three points. First, it would not be surprising if Mr. Meus were wide awake immediately after this horrifying incident. Therefore, Mr. Otero’s observations about Mr. Meus’ demeanor would not have helped the defense. Second, Mr. Otero was not qualified to render any testimony concerning how the crash might have happened. Third, in light of Mr. Fisher’s expert opinion testimony offered on behalf of the defense, anything Mr. Otero might have had to say would have been superfluous. Therefore, the postconviction court ruled that the omission of trial counsel to call Mr. Otero did not prejudice the defense. We disagree.

Prior to trial, the State identified Mr. Otero as “F JUAN OTERO, ZOLFO SPRINGS FIRE DEPARTMENT,” on the Discovery Exhibit that it filed in accordance with Florida Rule of Criminal Procedure 3.220(b). In this document, the State named Mr. Otero as a “Category A” witness on a “LIST OF PERSONS KNOWN TO HAVE INFORMATION” about the case. Assuming that trial counsel failed to interview this potential witness, his performance fell below the expected standard. If potential witnesses— available to testify at trial—may have been able to cast doubt on the defendant’s guilt, the failure to investigate and call them at trial can constitute ineffective assistance of counsel. See Bulley v. State, 900 So.2d 596, 597 (Fla. 2d DCA 2004). In a case of this magnitude and complexity, trial counsel should have contacted every known witness at the scene of the crash to see if he or she had any exculpatory information. See Brown v. State, 892 So.2d 1119, 1121-22 (Fla. 2d DCA 2004) (“An attorney has a duty to make reasonable investigations in his or her cases.” (citing Squires v. State, 558 So.2d 401, 403 (Fla.1990))).

Mr. Otero’s observations about Mr. Meus’ demeanor immediately after the crash would have been admissible in evidence to rebut the State’s theory that Mr. Meus fell asleep at the wheel. See Bush v. State, 809 So.2d 107, 119-20 (Fla. 4th DCA 2002) (“A lay witness may describe a person’s physical appearance using opinions that do not require special skill, so long as the opinions are based upon observations of the witness.” (citing Fino v. Nodine, 646 So.2d 746, 749 (Fla. 4th DCA 1994))). The credibility and weight to be given to this evidence would have been for the jury to determine. Additionally, Mr. Otero’s lack of formal training in accident reconstruction would certainly not have precluded him from testifying about what he perceived at the scene. Mr. Meus alleged that Mr. Otero’s observations would have conflicted with Sergeant Keen’s findings. We agree that Mr. Otero did not appear to qualify as an expert in the field of accident investigation and reconstruction. See Tarin v. City Nat’l Bank of Miami, 557 So.2d 632, 633-34 (Fla. 3d DCA 1990). But we also think that the postconviction court could not have determined the extent to which Mr. Otero might have been able to testify in terms of inferences and opinions about his observations at the scene until it had actually heard Mr. Otero’s testimony. § 90.701(1), Fla. Stat. (2003); cf. Zwinge v. Hettinger, 530 So.2d 318, 323 (Fla. 2d DCA 1988) (determining that the trial court did not abuse its discretion in excluding the proffered testimony of three eyewitnesses concerning the ultimate issue of the causation of an accident; instead the jury should have been permitted to draw its own inferences and conclusions based on the eyewitnesses’ testimony concerning their individual observations at the scene). Finally, trial counsel’s commendable effort to counter Sergeant Keen’s testimony with Mr. Fisher’s expert opinion evidence does not render trial counsel any less ineffective for failing to investigate and call Mr. Otero. See Currelly v. State, 732 So.2d 449, 450 (Fla. 2d DCA 1999) (holding that post-conviction motion was facially sufficient where the motion alleged that trial counsel was ineffective for failing to interview certain alibi witnesses who would have corroborated the testimony of another exculpatory witness if they had been called at trial).

In a circumstantial evidence case, the State must “ ‘present evidence from which the jury can exclude every reasonable hypothesis except that of guilt’ ” in order to avoid a judgment of acquittal. See Linn v. State, 921 So.2d 830, 834 (Fla. 2d DCA 2006) (quoting State v. Law, 559 So.2d 187, 188 (Fla.1989)). Accordingly, trial counsel was charged with marshalling any and all evidence that would have supported Mr. Meus’ hypothesis of innocence. Mr. Meus pleaded a facially sufficient claim concerning his trial counsel’s failure to investigate and present Mr. Otero as a witness. This claim is not conclusively refuted by the record. Accordingly, the trial court erred in failing to grant Mr. Meus an evidentiary hearing on this ground.

Conclusion

The postconviction court’s order (with its attachments) does not demonstrate conclusively that Mr. Meus is not entitled to an evidentiary hearing on his ineffective assistance of counsel claim based on trial counsel’s failure to investigate and present Mr. Otero as a witness at trial. Accordingly, we reverse the postconviction court’s order to the extent that it fails to grant Mr. Meus an evidentiary hearing on this claim. In all other respects, we affirm the postconviction court’s order.

Affirmed in part, reversed in part, and remanded for an evidentiary hearing.

SILBERMAN and VILLANTI, JJ., Concur.

      . We note the unusual circumstance that Dana Christenson, one of Ms. Moore’s sisters, has filed with this court an amicus brief supporting Mr. Meus’ bid for an evidentiary hearing on his postconviction claims.


author: LaROSE, Judge.

text:
    Dale D. CASTALDI, Appellant, v. Janet R. CASTALDI, Appellee.
    No. 2D06-5084.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 2007.

      Gary E. Williams, Clearwater, for Appellant.
    Edward S. Campbell of LaBarbera and Campbell, Tampa, for Appellee.
   LaROSE, Judge.

Dale D. Castaldi (the Husband) appeals the final judgment dissolving his marriage to Janet R. Castaldi (the Wife). He claims that the trial court erred in calculating the amount of alimony awarded to the Wife. He also appeals the award of attorney’s fees to the Wife.

Attorney’s Fees

We dismiss the Husband’s appeal as it relates to attorney’s fees. Because the trial court decided only entitlement to and not the amount of fees, this portion of the final judgment is nonfinal and non-reviewable. See Montanez v. Montanez, 697 So.2d 184, 186 (Fla. 2d DCA 1997).

Alimony

The trial court awarded the Wife alimony in the amount of $3000 per month. The Husband argues that the trial court failed to make a specific factual finding as to “[a]ll sources of income available to either party.” See § 61.08(2)(g), Fla. Stat. (2005). The final judgment states that “[t]he Court considered the equitable distribution of assets and liabilities ..., as well as the incomes of each of the parties ... [and] reviewed both party’s financial affidavits.... ” The final judgment sets forth specific findings concerning the amount of each party’s income. We find no deficiency in the trial court’s factual findings.

The Husband also argues that in calculating the Wife’s income, the trial court should have included income from her portion of the Husband’s retirement plans. The Husband relies on Rosecan v. Springer, 898 So.2d 1021, 1023 (Fla. 4th DCA 2005), to support his position. In Rosecan, however, the assets were “income-producing rental property [and] substantial liquid assets yielding passive income .... ” Id. at 1022. That is not the case here.

The Husband and Wife were fifty and forty-nine, respectively, at dissolution. They were receiving no payments from the Husband’s retirement plans. See, e.g., Diffenderfer v. Diffenderfer, 491 So.2d 265, 267 (Fla.1986) (holding pension fund was “contractual right to the future benefits payable”); Batson v. Batson, 821 So.2d 1141, 1142 (Fla. 5th DCA 2002) (including pension as income where retired husband received monthly pension payout). In fact, the Husband’s financial affidavit includes no income from the retirement plans; none was included in computing his income for alimony purposes. Even if his retirement funds were producing income at the time of the final hearing, such income should “be treated either as income or as a marital asset,” but not both. Batson, 821 So.2d at 1142 (citing Diffenderfer, 491 So.2d at 267). The trial court treated the funds in the Husband’s retirement plans as marital assets and distributed them accordingly.

The Husband argues further that the trial court erred in not imputing a $30,000 annual income to the Wife, about $6000 a year more than she was presently earning. The Husband, relying on Solomon v. Solomon, 861 So.2d 1218, 1220-21 (Fla. 2d DCA 2003), claims that the trial court incorrectly required him to identify specific available job openings, when it should have required the Wife to show that she had used her best efforts to obtain better-paying employment.

The trial court imposed no such burden on the Husband. Rather, it found that the vocational expert’s report was insufficient regarding local pay rates for suggested job categories and did not identify jobs the Wife could obtain without further training. See Andrews v. Andrews, 867 So.2d 476, 478 (Fla. 5th DCA 2004); Koeppel v. Holyszko, 643 So.2d 72, 75 (Fla. 2d DCA 1994). The trial court correctly ruled that it could not impute income based on jobs for which the Wife was not qualified. See Hinton v. Smith, 725 So.2d 1154, 1157 (Fla. 2d DCA 1998) (citing Ritter v. Ritter, 690 So.2d 1372, 1374-75 (Fla. 2d DCA 1997)) (holding that trial court must base imputation of income on current, rather than potential, occupational qualifications).

The Husband’s vocational expert opined that the Wife could work in a variety of positions with average hourly wages ranging from $14.57 to $23.73. However, the Wife would need several months of retraining to qualify for those positions. His report also suggested that the Wife could work as an LPN with additional training that would take a year, cost approximately $5000, and require the Wife to quit her current full-time job to attend classes. “Best efforts” do not include retraining, but only finding a job for which one is already qualified. See Beard v. Beard, 575 So.2d 1331, 1332-33 (Fla. 2d DCA 1991) (holding evidence did not show failure to use best efforts where husband was working full time commensurate with his education and training).

“In imputing income, the court must consider recent work history as well as occupational qualifications and prevailing earnings.” Solomon, 861 So.2d at 1220; see also Cushman v. Cushman, 585 So.2d 485, 486 (Fla. 2d DCA 1991). “ ‘[lin-eóme may not be imputed at a level which the former spouse has never earned, absent special circumstances.’” Hinton, 725 So.2d at 1157 (quoting Stein v. Stein, 701 So.2d 381, 381 (Fla. 4th DCA 1997)). Here, the Wife testified that she had never had a job making more than her present wage of $12.60 an hour. The trial court did not abuse its discretion in deciding not to impute a higher income to the Wife.

Discounting of Husband’s Expenses

Finally, the Husband contends that the trial court erred by discounting his living expenses in calculating alimony. The Husband argues that the trial court lacked a factual basis for such discounting. The final judgment, however, belies the Husband’s assertion. The trial court correctly concluded that the Husband overstated his monthly expenses. For example, the trial court reduced the Husband’s claimed living expenses by one-third, noting that the Husband’s companion paid many of those expenses. The evidence supports other instances of discounting, and the trial court adequately explained its rationale. We find no abuse of discretion on this point.

Dismissed in part and affirmed in part.

CANADY and VILLANTI, JJ„ Concur.


author: WHATLEY, Judge.

text:
    Johnny PARHAM, Jr., Appellant/Cross-Appellee, v. Laura PARHAM, Appellee/Cross-Appellant.
    No. 2D07-420.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 2007.
    Bart Schneider, Orlando, for Appellant/Cross-Appellee.
    Jean Marie Henne, Winter Haven, for Appellee/Cross-Appellant.
   WHATLEY, Judge.

Johnny Parham, Jr., the husband, appeals a final judgment of dissolution of marriage, arguing that the circuit court erred in awarding most of the marital assets to Laura Parham, the wife, without providing a factual basis to support the award and that the circuit court erred in awarding the wife permanent alimony. We affirm the alimony award without discussion, but we reverse the equitable distribution portion of the final judgment.

Section 61.075(1), Florida Statutes (2005), provides that, in distributing marital assets and liabilities, a court “must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors....” In a final judgment, a court must provide a legally sufficient factual basis to support an unequal distribution of marital assets. Harreld v. Harreld, 682 So.2d 635, 636 (Fla. 2d DCA 1996).

In the present case, the circuit court acknowledged that normally there is a presumption in favor of an equal distribution, but it went on to state that it was awarding an unequal distribution “given the unique factors in this case.... ” However, the court did not explain which factor or factors supported the unequal distribution. In Harreld, 682 So.2d at 636, this court noted that the circuit court made a factual finding that could support an unequal distribution, but it held that the circuit court’s failure to specifically state that this factual finding was the reason it was distributing the assets unequally required reversal. See Feger v. Feger, 850 So.2d 611, 615 (Fla. 2d DCA 2003) (“[T]he trial court erred by awarding the marital home, a major asset, without making a specific finding of fact to justify the unequal distribution.”). In reversing the equitable distribution, we note that the circuit court is not precluded from awarding an unequal distribution of assets on remand. “Rather, the court must specifically address the facts pertinent to each statutory consideration to support its decision to distribute the marital assets in an unbalanced manner, if that should be the trial court’s ultimate determination.” Id.

Accordingly, we reverse that portion of the final judgment distributing the parties’ marital assets. On remand, the circuit court may revisit the final judgment without holding further hearings, unless the court concludes that it cannot comply with the statute without taking additional evidence. The remaining portions of the final judgment dissolving the parties’ marriage are affirmed.

Affirmed in part, reversed in part.

STRINGER and KELLY, JJ., Concur.

      . Section 61.075(1) lists several factors which could justify an unequal distribution of assets.


author: PER CURIAM.

text:
    Robert GORHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-906.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, and Robert Gorham, Lake City, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

We grant appellant’s motion for clarification, withdraw our previous opinion issued on October 10, 2007, and substitute the following in its place.

Appellant, Robert Gorham, appeals his convictions and sentence for two counts of burglary of a conveyance with an assault or battery, aggravated assault with a deadly weapon, and attempted aggravated battery. Because dual convictions for burglary cannot stand where there was but one entry, we reverse one of Gorham’s two convictions for burglary of a conveyance with an assault or battery and remand for a recalculation of appellant’s scoresheet based on one count of burglary instead of two counts. We affirm in all other respects.

Gorham was charged and found guilty of two counts of burglary of a conveyance with an assault or battery. Gor-ham’s convictions are based on a single entry but involved two different victims. Gorham correctly argues that dual convictions for burglary violate the constitutional prohibition against double jeopardy if they are based on a single entry. Where there is but one entry, dual convictions for burglary cannot stand. Trotman v. State, 545 So.2d 890, 891 (Fla. 4th DCA 1989). It is the number of entries that triggers the burglary charges, not the number of victims. See Grubb v. State, 940 So.2d 1168, 1170 (Fla. 2d DCA 2006). Therefore, because Gorham’s dual convictions for burglary of a conveyance with an assault or battery constitute double jeopardy, we reverse and remand for the trial court to vacate one of the two burglary convictions and sentences.

As to Gorham’s argument that he was denied effective assistance of counsel guaranteed by the Sixth Amendment because his counsel did not inform him that the State had offered a five-year plea offer, we affirm as the record of the hearing held by the trial court on this issue supports the trial court’s finding that Gorham would not have taken the five-year offer had it been conveyed. Cottle v. State, 733 So.2d 963, 966 (Fla.1999)(holding that a claim of ineffective assistance of counsel based on allegations that counsel failed to properly advise the defendant about plea offers by the State must allege the following to make a prima facie case: (1) counsel failed to relay plea offer, (2) defendant would have accepted it, and (3) the plea offer would have resulted in a lesser sentence).

We affirm the other convictions as the issues raised are not errors, and if erroneous, would be harmless error.

Affirmed in part, reversed in part, and remanded.

GUNTHER, WARNER and GROSS, JJ., concur.


text:
    STATE of Louisiana v. Eulicee Jamar WILLIAMS.
    No. 2007-OK-1020.
    Supreme Court of Louisiana.
    Nov. 16, 2007.
   PER CURIAM.

Granted. The judgment of the Third Circuit dismissing defendant’s appeal and remanding the case to the district court for further proceedings pursuant to State v. Counterman, 475 So.2d 336 (La.1985), is vacated, and this case is remanded to the court of appeal to address defendant’s appeal on the merits. Given the trial court’s granting of defendant’s motion for appeal and designation of. record and the state’s failure to complain about any procedural irregularities in granting the appeal, which followed after the trial court responded to the state’s motion to clarify the sentences previously imposed and then denied defendant’s motion to reconsider, dismissal of the appeal and a remand to the district court to cure any defects under this Court’s Counterman decision would only prolong the delay without serving any useful purpose.


text:
    STATE of Louisiana v. Carvis KNIGHTEN.
    No. 2007-KK-1061.
    Supreme Court of Louisiana.
    Nov. 16, 2007.
   PER CURIAM.

|! Granted. The trial court erred in ruling that at defendant’s forthcoming trial for possession of marijuana with intent to distribute in violation of La. R.S. 40:966(A)(1), the state may not present evidence of a controlled buy made by a confidential informant at defendant’s home on April 7, 2002, three days before the police executed a search warrant for the residence and seized the contraband drugs.

This Court “has recognized that evidence of other drug sales is of great probative value in establishing intent to distribute when it is an essential element of the crime charged.” State v. Grey, 408 So.2d 1239, 1242 (La.1982). In the present case, given the nearness in time and place to the charged offense, the prior transaction has particular independent relevance to the question of whether defendant possessed the marijuana on April 10, 2002 with the specific intent to distribute. The probative value of the prior sale remains undiminished by ^evidence that the same informant conducted a second controlled buy under similar circumstances immediately before execution of the search warrant for defendant’s residence. See Grey, 408 So.2d at 1242 (evidence of a drug sale to a confidential informant three weeks before defendants’ arrests and of other sales to the same informant made within three months of the execution of a search warrant for defendants’ home had “great probative value in establishing intent to distribute when it is an essential element of the crime charged ... the highly probative value of other crimes evidence out-weighted] the prejudicial effect to defendants-”); State v. Medlock, 297 So.2d 190, 193 (La.1974)(“The very relevant evidence of the other [prior drug sales to an undercover agent] was of great probative value in establishing the essential ingredient of the crime-intent to distribute”)(footnote omitted); see also State v. Feeback, 414 So.2d 1229, 1233 (La.l982)(state properly charged four counts of distribution and one count of possession with intent to distribute in a single bill of information because “[e]videnee concerning the prior distributions would have been admissible to prove intent to distribute the marijuana.”).

The ruling of the trial court is therefore reversed. The evidence of the controlled buy made by the confidential informant at defendant’s home on April 7, 2002, is hereby admissible. This case is remanded for further proceedings consistent with the views expressed herein.


author: KNOLL, J.,

text:
    STATE of Louisiana v. Reese SIMS.
    No. 2007-KK-2216.
    Supreme Court of Louisiana.
    Nov. 16, 2007.
   |, STAY LIFTED; WRIT GRANTED.

The trial court erred in removing defendant’s counsel of choice. A defendant is guaranteed the right to counsel of choice so long as the defendant can obtain and afford the services of said counsel. See, U.S. Const. amend. VI; La Const. art. I, § 13; State v. Jones, 97-2593, p. 2 (La.3/4/98), 707 So.2d 975, 976. The right to private, non-appointed counsel of choice does not distinguish between a paid attorney and a pro bono lawyer. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-625, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) (“[T]he Sixth Amendment guarantees the defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.”); Jones, 97-2593 at 2, 707 So.2d at 977 (Where counsel was obtained at no cost to defendant, defendant could manage to retain counsel and the United States and Louisiana constitutions preclude counsel’s removal). The order of the trial court removing defendant’s counsel of choice, Bradley E. Black, is hereby reversed and counsel’s representation of defendant is reinstated.

KNOLL, J., would deny and assigns reasons.

KNOLL, J.,

dissenting.

I,The issue is not about pro bono counsel of choice; rather the real issue is whether or not defendant is indigent and not entitled to indigent counsel as found by the trial court. I find the Relator’s conduct reprehensible, in that it is in defiance of the trial court’s ruling, with the cooperation of Mr. Singer, Chief of Trials for the OIDP. Relator’s proper remedy would have been to take a writ contesting his indigency status rather than asking this court to bless his defiant conduct.


text:
    STATE of Louisiana v. James A. REYNOLDS.
    No. 2007-KP-0641.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   PER CURIAM.

h Granted. The court of appeal’s decision is vacated; the defendant’s convictions and sentences are reinstated, and this case is remanded to the Second Circuit for treatment of the defendant’s remaining assignments of error.

As the majority on the court of appeal panel observed, State v. Reynolds, 41,954, p. 2 (La.App.3/8/07), 951 So.2d 518(Drew, J., dissenting), the trial transcript demonstrates that the parties agreed to “the trying of all the matters concurrently with the stipulation the maximum penalty be six months in jail or a $1000.00 fine.” The court of appeal found that, notwithstanding the affirmative concurrence of defendant, the stipulation did not “deprive the defendant of the right to be informed of his right to jury trial, and to make an informed invocation or waiver of that right, in the absence of a showing that the stipulation manifested actual knowledge of the right to jury trial, and an informed waiver.... ” Reynolds, 41,954 at 2, 951 So.2d at 519 (citation omitted).

The majority on the court of appeal panel thereby sought to effectuate the rule that consolidation of separately charged misdemeanor offenses for trial, as [^opposed to joinder of the offenses in a single bill of information, may provide a defendant with the right to a jury trial in cases in which the aggregate punishment that could be imposed exceeds six months imprisonment and fines over the amount of $1000. State v. Hornung, 620 So.2d 816, 817 (La.1993); cf. State v. McCarroll, 337 So.2d 475, 480 (La.l976)(in Louisiana, right to a jury trial determined by the aggregate punishment that may be imposed in the case). However, in the present case, the state and defense agreed to try the misdemeanor offenses together in a single proceeding with punishment capped at six months imprisonment and $1000 in fines, i.e., as if the state had, with the concurrence of defendant, filed a superced-ing bill of information joining all of the offenses together under La.C.Cr.P. art. 493, thereby capping the aggregate punishment that could be imposed at six months imprisonment and a fine of $1,000 as a matter of La.C.Cr.P. art. 493.1. Cf. State v. Crochet, 05-0123, p. 5 (La.6/23/06), 931 So.2d 1083, 1086 (state may effectuate consolidation of separately charged crimes without defendant’s consent by dismissing individual bills and filing a superceding information joining all of the offenses in a single proceeding). It does not appear from the agreement that consolidation of the offenses for trial took place, or would have taken place, independently of the stipulation with regard to the sentencing cap. The defendant had no right to a jury trial on the misdemeanor offenses separately charged, La.C.Cr.P. art. 779(A), and joinder of the offenses |am a single su-perceding bill of information (or its functional equivalent) under the sentencing cap imposed by La.C.Cr.P. art. 493.1 also would not deprive defendant of his right to a jury. State v. Johnson, 458 So.2d 1301, 1303 (La.l984)(“The state may ... charge a defendant separately with crimes which each carry a maximum penalty of six months and thereby avoid a jury trial, rather than charge him with such crimes in a single indictment or information. So, too, should defendant not be heard to complain because the state joins two or more six month misdemeanors in a single information, thus limiting, under La.C.Cr.P. art. 493.1, the total maximum authorized punishment for all the offenses to six months imprisonment...

Accordingly, defendant did not have the right to a jury trial under the stipulated terms of his agreement with the state and the trial court therefore did not err in failing to secure an express waiver of a jury on the record before trying the offenses in a single proceeding.


text:
    Lela JOHNSON v. UNIVERSITY MEDICAL CENTER IN LAFAYETTE, et al.
    No. 07-CC-1683.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   PER CURIAM.

hOn March 15, 2006, plaintiff filed the instant petition for damages against several defendants, including two state-run facilities, the University Medical Center, Lafayette and the Medical Center of Louisiana at New Orleans (collectively referred to hereinafter as the “State defendants”). Plaintiffs petition initially requested that service be held. Thereafter, on June 13, 2006, plaintiff sent a letter to the clerk of court, requesting service on “University Medical Center in Lafayette, 2390 West Congress Street, Lafayette, LA 70596” and “Medical Center of Louisiana at New Orleans, through its agent, USRY, WEEKS AND MATHEWS, 1717 St. Charles Avenue, Suite 100, New Orleans, LA 70130.”

Approximately six months later, the State defendants moved to dismiss plaintiffs petition without prejudice pursuant to La.Code Civ. P. art. 1672(C), on the ground that plaintiff failed to request service on them within ninety days of the filing of the original petition, as required by La. R.S. 13:5107(D). In support, they argued plaintiff requested service on persons who were not designated as agents for service of process for the State defendants named in the lawsuit.

After a hearing, the district court denied the State defendants’ motion to dismiss. The State defendants sought supervisory review in the court of appeal, which denied writs. This application followed.

I pit is well settled that service of process made on one other than the person authorized to accept such service is illegal and without effect. Conner v. Continental S. Lines, Inc., 294 So.2d 485 (La.1974). Interpreting La. R.S. 13:5107(D) in light of this jurisprudence, we have held that the requirement that service upon the defendant be requested within ninety days of the filing of the suit “should reasonably be read to require an accurate request of service upon the proper agent for defendant.” Barnett v. Louisiana State Univ. Med. Ctr. Shreveport, 02-2576 at p. 2 (La.2/7/03), 841 So.2d 725, 726.

In the instant case, it is undisputed that plaintiff failed to request service upon the proper agents for the State defendants within ninety days of the filing of suit. As a result, there was no accurate request for service for purposes of La. R.S. 13:5107(D).

In cases where service is not made within ninety days, La.Code Civ. P. art. 1672(C) mandates that the action must be dismissed without prejudice, “unless good cause is shown why service could not be requested.... ” Although “good cause” is not defined in art. 1672(C), the jurisprudence has held that mere confusion over a party’s proper service information is not a sufficient basis for good cause. See Norbert v. Loucks, 01-1229 (La.6/29/01), 791 So.2d 1283.

In the instant matter, plaintiff has advanced no compelling reason why she could not have ascertained the proper agents for service of process for the State defendants named in this lawsuit. Under these circumstances, we find plaintiff has failed to demonstrate good cause for her failure to request accurate service on the State defendants within ninety days of the institution of her action.

| Jn sum, we find plaintiff failed to request accurate service on the State defendants within ninety days of the commencement of her action. Pursuant to the mandatory language of La.Code Civ. P. art. 1672(C), her action must be dismissed without prejudice.

Accordingly, the writ is granted. The judgment of the district court is reversed and judgment is entered in favor of the State defendants, dismissing plaintiffs suit against them without prejudice.

KIMBALL, J., would grant and docket the writ.

JOHNSON, J., dissents and would deny.

      . Because we find plaintiff failed to make an accurate request for service within ninety days, we pretermit consideration of the State defendants’ alternative argument that plaintiffs request was improper because she failed to pay the necessary filing fees at the time she made her request.


text:
    STATE of Louisiana v. Derrick HYDE.
    No. 07-OK-1314.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   PER CURIAM.

h Granted. Defendant’s sentence is vacated and this ease is remanded to the district court for immediate resentencing.

The trial court erred in applying the sentencing law in effect on the date of defendant’s conviction, 2005 La. Acts 497, as opposed to the law in effect at the time defendant committed the offense which led to his prosecution and conviction for D.W.I., fourth offense, i.e., 2001 La. Acts 1163. A strong presumption exists in Louisiana law that the statute in effect at the time of the offense governs the applicable punishment for the crime. See, e.g., State v. Sugasti 01-3407, p. 4 (La.6/21/02), 820 So.2d 518, 520; State v. Wright, 384 So.2d 399, 401 (La.1980). The general rule applies even when the changes in sentence are ameliorative in nature. Sugasti 01-3407 at 4, 820 So.2d at 520. This Court made an exception to that rule in State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, which held that the ameliorative changes made by 2001 La. Acts. 1163 in the law of sentencing for third and fourth offense D.W.I. convictions have limited retroactive application to crimes committed before its effective date when the defendant is Lconvicted after that date. The Court took into account several considerations, including a strong policy statement by the legislature “to embrace treatment measures in preference to incarceration.” Mayeux, 01-3195 at 5, 820 So.2d at 529.

However, Mayeux has no application to cases in which the changes in the sentencing law are not ameliorative but increase the severity of sentence by altering the terms and conditions under which defendant must serve the penalty. Retroactive application of 2005 La. Acts 497 to crimes committed before its effective date would raise significant questions under the Ex Post Facto Clauses of the federal and state constitutions that may be avoided by application of the general rule, rather than its single narrow exception in Mayeux, that the statute in effect at the time of commission of the crime governs the applicable sentence. See State ex rel. Olivieri v. State, 00-0172, pp. 15-16 (La.2/21/01), 779 So.2d 735, 744 (adopting federal standard for determining ex post facto applications of the law, ie., “whether the change alters the definition of criminal conduct or increases the penalty.”); cf. Weaver v. Graham, 450 U.S. 24, 30-31, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981) (“Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated .... even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.”)(footnote omitted).


author: PER CURIAM. JOHNSON, J.,

text:
    STATE of Louisiana v. Clay MONTZ, et al.
    No. 2007-K-0653.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   PER CURIAM.

| ¶ Granted. The judgment of the court of appeal is vacated and the ruling of the district court is reinstated. The trial court’s ruling on a motion to change venue “is a question addressed to the court’s sound discretion which will not be disturbed on appeal absent an affirmative showing of error and abuse of discretion.” State v. Wilson, 467 So.2d 503, 512 (La. 1985). We find no abuse of discretion or manifest error in the trial court’s ruling. See State v. McKnight, 95-1486, p. 7 (La. App. 1st Cir.12/15/95), 665 So.2d 768, 773 (reversing trial court’s grant of motion to change venue; in the absence of a mock voir dire or an actual voir dire examination, defendant failed to show actual prejudice in the collective mind of the community on the basis of a survey conducted of 30 persons); rev’d 96-0176 (La.4/19/96), 671 So.2d 933-34 (reinstating order changing venue; no manifest error or abuse of discretion apparent in trial court’s ruling).

JOHNSON, J., concurs and assigns reasons:

JOHNSON, J.,

concurring.

hLSA-C. Cr. P. art. 622 provides, in pertinent part:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

A defendant must prove more than mere public general knowledge or familiarity with the facts of the case to be entitled to have his trial moved to another parish. State v. Frank, 99-0553, p. 16 (La.1/17/01), 803 So.2d 1, 16 (no “bright line test for determining the degree of prejudice existing in the collective mind of the community ... the defendant must show the extent of prejudice in the minds of the community as a result of such knowledge or exposure to the case before trial”); State v. George, 37,492, 10 (La.App.2d Cir.9/24/03), 855 So.2d 861, 870 (defendant not entitled to a jury entirely ignorant of case and cannot prevail on a motion for change of venue merely by showing a general level of public awareness about the crime); State v. Huls, 95-0541, p. 14 (La.App. 1st Cir.5/29/96), 676 So.2d 160, 171 (defendant was not entitled to change of venue of murder trial based on pretrial | ¡.publicity, when thorough voir dire of prospective jurors was conducted, most jurors were questioned individually about their exposure to publicity, and all prospective jurors who could not make unbiased judgment based on their exposure to pretrial publicity and their inability to set aside that information were excused).

The defendant bears the burden of showing actual prejudice. State v. Vaccaro, 411 So.2d 415, 423-24 (La.1982). Whether a defendant has made the requisite showing of actual prejudice is a question addressed to the trial court’s sound discretion, which will not be disturbed on appeal absent an affirmative showing of error and abuse of discretion.

Our jurisprudence is replete with instances where despite high exposure to publicity before the trial, the trial judge denied the motion for change of venue and such denial did not result in reversible error for the failure to change venue. In State v. Frank, 99-0553, pp. 16-17 (La.1/17/01), 803 So.2d 1, 16-17, voir dire demonstrated that 110 out of 113 venire members (97%) had been exposed to some publicity surrounding the case, and 89% of the prospective jurors indicated they had been exposed to information about the case on more than one occasion or from multiple sources. See also Hoffman, 98-3118 at p. 9, 768 So.2d 542, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000);[ 72 out of 90 prospective jurors (80%) had awareness of the case before trial]; State v. Connolly, 96-1680, p. 5 (La.7/1/97), 700 So.2d 810, 815[although 120 out of 139 potential jurors (86.33%) possessed some knowledge about the crime, most had only a vague recollection of the surrounding facts].

In this case, the trial court granted the pre-trial motion to change venue. Defendants introduced into evidence over 140 articles published or broadcast between January and August 2005, concerning the death of Levon Jones, a student athlete at | sClub Razzo in New Orleans, Louisiana. At the hearing on the motion to change venue, the defendants presented the testimony of their pollster, Joe Walker, who testified that based on two polls he conducted in the Summer of 2005 (pre-Hurri-cane Katrina) and one taken in February 2006, the results revealed that 98 % of those polled were familiar with the facts of the case. Usually, we rely on voir dire examination of prospective jurors to establish whether jurors can lay aside their impressions or opinions and render a verdict based on the evidence presented in court. There seems to not be a bright line rule to give trial courts guidance as to when the motion for change of venue must be decided. The result is that the defendant who is required to wait for voir dire examination before winning a change of venue, is prejudiced when compared to the defendant who won the change of venue, pre-trial.

      . On December 31, 2004, Levon Jones, an African-American college student from Georgia was celebrating New Years Eve on Bourbon Street with a group of friends and family members. The group was denied admission to Razzoo’s Bar, purportedly because of a dress code violation by one of the group members. During an ensuing scuffle, Jones was fatally injured by the bar’s security personnel (a/k/a "bouncers”) stationed at the barroom entrance. Several bystanders videotaped the incident and those videotapes subsequently were shown in the television coverage of the student's death.


author: DAVID S. GORBATY, Judge.

text:
    Carolyn Bonnie RUFFINO v. ALLSTATE INSURANCE COMPANY, et al.
    No. 2007-CA-0420.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 19, 2007.
    Ronald S. Ruiz, New Orleans, LA, for Plaintiff/Appellant.
    Paul A. Tabary III, Elizabeth R. Borne, Dysart & Tabary, L.L.P., Chalmette, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   DAVID S. GORBATY, Judge.

liThe plaintiff, Carolyn Bonnie Ruffino, (“Ms.Ruffino”), appeals the judgment of the trial court dismissing her personal injury action against the defendants, Allstate Insurance Company (“Allstate”) and Roxanne Dier (“Ms.Dier”). For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY:

On December 8, 2002, Ms. Ruffino was visiting a friend who resided at 4008 Juno Drive in Chalmette, Louisiana. As she attempted to enter through the front entrance, Ms. Ruffino walked into the glass storm door, striking her 'face and injuring her mouth. Ms. Ruffino filed the instant lawsuit against Ms. Dier, the property-owner, and Allstate, the insurer.

On July 25, 2005, a bench trial was held in this matter. After hearing testimony from Ms. Ruffino and Ms. Dier, and viewing photographs of accident scene, the trial court entered a judgment, in favor of the defendants on July 29, 2005. In written reasons for judgment, the trial court stated:

This Court believes that the testimony and evidence presented by the defendants is more likely .correct than the testimony of the plaintiff. That is, the storm door and its outlining frame were clearly 1 avisible in both the photographs and at the time the incident occurred. It is this Court’s finding from the testimony and evidence at trial that this doorway/storm door did not present an unreasonable risk of harm. The porch clearly had lights from both inside the apartment and an exterior light. It is the finding of the Court that the accident complained of was caused by the negligence of the plaintiff, Carolyn Bonnie Ruffino, by failing to see what she should have seen.

On August 8, 2005, Ms. Ruffino filed a motion for new trial. The motion for new trial was denied on January 24, 2006. Written reasons for judgment were also issued at that time. This timely devolutive appeal followed.

LAW AND ANALYSIS:

On appeal, Ms. Ruffino asserts that the trial court erred in determining that the storm door did not create an unreasonable risk of harm. It is well established in our jurisprudence that the unreasonable risk of harm analysis requires the trier of fact to balance the gravity and risk of harm against individual and societal rights and obligations, the thing’s social value and utility, and the cost and feasibility of repairing the defect. Reed v. Wal-Mart Stores, Inc., 97-1174, p. 5, (La.3/4/98), 708 So.2d 362, 365. Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. Id.

This balancing test is not a simple rule of law which can be applied mechanically to the facts of the case. Because of the plethora of factual questions and other considerations involved, the issue necessarily must be resolved on a case-by-case basis. Reed, 97-1174 at p. 4, 708 So.2d at 364. Moreover, the trial court’s finding of whether a defect creates an unreasonable risk of harm is subject to a manifest error standard of review. Ambrose v. McLaney, 06-1181, p. 10 (La.App. 4 Cir. 5/16/07), 959 So.2d 529, 536.

Ms. Ruffino testified that she did not see the storm door. She argues on appeal that the transparency of the glass storm door rendered it invisible, thereby | ^creating a trap. In support of her argument that the glass storm door created a hazard, Ms. Ruffino cites Dixon v. Allstate, 362 So.2d 1368 (La.1978). However, we find Ms. Ruffino’s reliance on Dixon to be misplaced, as the facts are readily distinguishable. In Dixon, the plaintiff sustained injuries when she crashed through a closed sliding glass door. In finding that the door created a hazard, the court stated:

Care should increase with the magnitude of the harm which might befall a victim. A large sheet of thin, clean, transparent, untempered, not-laminated glass presents such an obvious risk of serious injury that it must be considered a hazardous substance. The location of such glass panels, blocking entry and exit through openings in houses designed as passageways multiply the opportunities for serious accidents.

Dixon, 362 So.2d at 1369-1370.

In Dixon, the sliding glass door separated a den from a porch, with the floor of the porch being basically an extension of the floor of the den as both surfaces were made of broken paving tiles interrupted only by the track for the sliding glass door. The opinion noted the plaintiffs difficulty realizing at what point the den floor ended.

In the present case, it is undisputed that the storm door contained tempered safety glass that did not shatter as in Dixon. The glass storm door was marked with a black handle, trimmed on all four sides with a white frame, and positioned in front of a red, wooden door, which was open at the time of the accident. Moreover, the entryway was marked by a step-up from the front porch into the residence.

The defendants assert that the likelihood of an individual running into a tempered glass door marked with a black handle, a white frame, and located on an elevated threshold is minimal and easily outweighed by the utility of the storm 14door. Additionally, the defendants submit that since there was never such an accident on the property in the ten years that Ms. Dier owned it, she would not have thought to warn of any potential harm. We agree. Applying the balancing test to the evidence presented, we find no manifest error in the trial court’s conclusion that the storm door did not present an unreasonable risk of harm.

CONCLUSION:

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Eddie FULLER c/w Wanda Newsome v. DEPARTMENT OF FIRE.
    No. 2007-CA-0369.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 19, 2007.

      Louis L. Robein, Jr., Robein, Urann & Lurye, Metairie, LA, for PlaintiffiAppel-lant.
    Penya Moses-Fields, City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, Victor L. Papai, Jr., Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   DAVID S. GORBATY, Judge.

| Appellants Eddie Fuller and Wanda Newsome, New Orleans Fire Department (NOFD) employees, each appeal the denial of their appeals to the Civil Service Commission. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY:

Ms. Newsome is a dispatcher with the NOFD. She was on vacation at the time Hurricane Katrina struck the New Orleans area. She evacuated with her daughter and grandson to Atlanta. Ms. Newsome was scheduled to return to work on September 14, 2005, but did not return until September 29.

Mr. Fuller was on duty at the time the hurricane struck. His firehouse flooded, and he was evacuated to Delgado Community College, then to Baton Rouge. He did not return to work until September 30.

The NOFD determined that September 22, 2005, was the last date on which an employee could return after the storm without disciplinary action being taken. The return date was to apply to all employees across the board. Both Ms. New-some and Mr. Fuller appeared before a Peer Review Board for possible ^disciplinary action following their return to work. The Board found the pair guilty of violating department rules and regulations. Following the Board review, Charles Parent, the Superintendent of Fire, reviewed the cases to impose disciplinary penalties; Mr. Fuller was suspended for 60 days and Ms. Newsome was suspended for 30 days for taking unauthorized leave.

The suspensions were appealed to the Civil Service Commission. The Commission affirmed the suspension finding that the September 22 return date was reasonable and was imposed uniformly on all fire department personnel.

These appeals followed.

LAW AND ANALYSIS:

A permanent classified Civil Service employee may not be disciplined except for cause expressed in writing. La. Const, art. 10, § 8(A); Walters v. Dept. of Police, 454 So.2d 106 (La.1984); Cittadino v. Dept. of Police, 558 So.2d 1311, 1314 (La. App. 4 Cir.1990).

The courts have established guidelines for the Commission and courts of appeal to utilize in applying the constitutional principles. First, the requisite “cause” for the discipline of an employee who has gained permanent status in the classified civil service has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation. Leggett v. Northwestern State College, 242 La. 927, 938, 140 So.2d 5, 9-10 (1962); Brickman v. New Orleans Aviation Bd., 236 La. 143, 159-60, 107 So.2d 422, 429 (1958); Jais v. Dept. of Finance, 228 La. 399, 401, 82 So.2d 689, 690 (1955); Gervais v. New Orleans Dept. of Police, 226 La. 782, 787, 77 So.2d 393, 394-95 (1955).

Second, the jurisprudence has instructed that “[t]he appointing authority is charged with the operation of his or her department and it is within his or her discretion to discipline an employee for sufficient cause.” Whitaker v. New Orleans Police Dept., 03-0512, p. 5 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 575 (citing Joseph v. Dept. of Health, 389 So.2d 739, 741 (La.App. 4 Cir.1980)). Additionally, courts have held that “[t]he Commission is not charged with such operation or such disciplining.” Whitaker, 03-0512, p. 5, 863 So.2d at 575.

Third, the Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. Brickman, 236 La. at 175, 107 So.2d at 434. This Court held that: “[T]he authority to reduce a penalty can only be exercised if there is insufficient cause.” Whitaker, 03-0512, p. 4, 863 So.2d at 575 (citing Branighan v. Dept. of Police, 362 So.2d 1221, 1223 (La.App. 4 Cir.1978)). Further, a legal basis for any change in a disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. Branighan, 362 So.2d at 1221. The Commission may not merely substitute its judgment for the appointing authority’s judgment. Whitaker, 03-0512, p. 5, 863 So.2d at 576.

Fourth, in making decisions regarding civil servant discipline, “the Commission should give heightened regard to the appointing authorities that serve |4as special guardians of the public safety and operate as quasi-military institutions where strict discipline is imperative.” Id. at 576.

Fifth, a reviewing court should not reverse a commission’s conclusion as to the existence or absence of cause for discipline unless the decision is arbitrary, capricious or an abuse of the commissioner’s discretion. Jones v. La. Dept. of Highways, 259 La. 329, 338, 250 So.2d 356, 359 (1971); Konen v. New Orleans Police Dept., 226 La. 739, 749, 77 So.2d 24, 28 (1954). “Arbitrary or capricious” means there is no rational basis for the action taken by the Commission. Whitaker, 03-0512, p. 2, 863 So.2d at 574 (citing Bannister v. Dept. of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647).

Finally, an appellate court’s standard of review is established by the constitutional rule that the commission’s decision is subject to review on any question of law or fact. La. Const. art. X, § 12. Accordingly, a court should apply the clearly wrong or manifest error rule prescribed generally for appellate review in deciding whether to affirm the commission’s factual findings. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). The court shall make its own findings of fact by a preponderance of the evidence based on its review of the record; however, due deference should be given to an agency’s determination of credibility issues where the court does not have the opportunity to judge the credibility of the witnesses by first-hand observation. La. R.S. 49:964 G(6); EOP New Orleans, L.L.C. v. La. Tax Comm’n, 01-2966, p. 5 (La.App. 1 (&. 8/14/02), 831 So.2d 1005,1008.

The appellants argue that the appointing authority failed to prove by a preponderance of the evidence that their failure to return by September 22, 2005 | ^impaired the efficient operation of the fire department. The fact that they did not return by that date, standing alone, is not sufficient. There was no evidence presented to demonstrate that Fire Department failed to complete tasks, could not communicate or failed to effectively carry on its duties.

The appointing authority argues that it may show that an employee’s action is prejudicial to the public service by demonstrating a rational basis for the discipline imposed. It claims that it provided proof, through the testimony of Superintendent Charles Parent and other supervising personnel, that the Fire Department needed every experienced fire dispatcher available for duty. The fact that volunteers from other jurisdictions were in New Orleans to help is of no moment because the Fire Department needed its own employees for dispatching and to relieve the firemen who remained on duty. Because of the firemen that did not return timely, the personnel who stayed or returned were forced to work extensive overtime.

Although we agree that the evidence presented by the appointing authority would be sufficient under normal circumstances to impose the discipline handed down in this case, the circumstances affecting the City of New Orleans and its residents immediately following Hurricane Katrina were monumentally abnormal.

Mr. Fuller testified that he was on duty at the time the storm struck, and was evacuated from his flooded firehouse to Baton Rouge. He testified that Chief Bruce Martin told him that he was “on his own” at that point. Mr. Fuller specifically asked Chief Martin if that meant not to return to duty, and was told that only Suppression was being let into the City. Mr. Fuller called his "wife, who | fihad evacuated with their three children to Dallas, to pick him up in Baton Rouge. He testified that he continuously called and text messaged Chief Martin to no avail. He also called the City’s line to leave his name and contact information, but no one ever called him back. Mr. Fuller stated that he attempted to return to the City as Hurricane Rita approached, but was told via cell phone by a fellow dispatcher on duty that he (Mr. Fuller) would not be able to enter the City. Finally, after Hurricane Rita passed, Mr. Fuller rented a car one-way and drove back on September 30.

Ms. Newsome was on vacation at the time the storm struck and was not due back to work until September 14. She testified that she evacuated with her daughter and grandson to Atlanta. Ms. Newsome was contacted by a fellow dispatcher on September 9 and told to call a department number set up to collect contact information for employees. She called for a week, but was only able to leave messages. She then contacted another fellow employee on September 14, who put her in touch with Tom Levy, the assistant supervisor of fire communications. She told Mr. Levy that she would be able to return to work the following Tuesday or Wednesday. He told her to return when she could.

Before Ms. Newsome began her drive back to New Orleans, she spoke with another dispatcher by cell phone and was told that the City was being shut down because of Hurricane Rita’s approach. Once the threat of Hurricane Rita passed, Ms. Newsome left her daughter, who was already enrolled in school in Atlanta, with friends, drove her grandson to his mother in Houston, then stopped in Baton Rouge for inoculations. She finally arrived in New Orleans on September 29. Even after returning and reporting to work, Ms. Newsome was not aware of the September 22 “drop dead” date, until she was charged.

|7The Civil Service Commission recognized the unprecedented personal crises created by Hurricane Katrina, but voted to uphold the suspensions. It found the September 22, 2005 deadline to be reasonable and imposed uniformly. We disagree.

The setting of the deadline was certainly reasonable; however, to apply it uniformly to all employees is not reasonable. Every person in and around this City during the onslaught of Hurricanes Katrina and Rita is aware that communications, especially" by cell phone, were practically non-existént. This Court also notes that the record does not reveal when the commanding officers decided to impose September 22 as the “drop dead” “end of the grace period” date. Although both Mr. Fuller and Ms. Newsome had limited contact with co-workers, none of them conveyed the cut off date to Mr. Fuller or Ms. Newsome. In our opinion, these two firefighters, both with unblemished disciplinary records, did the best they could under horrific circumstances to return to work as quickly as possible. To apply an across-the-board deadline for return was arbitrary and capricious.

Accordingly, we reverse the decision of the Civil Service Commission upholding the suspensions.

REVERSED.

      . The two appeals were consolidated at the lower level.

      . The Suppression Unit is presumably the actual fire fighters, while Communications or Fire Alarm is the dispatch unit. Both Ms. Newsome and Mr. Fuller are dispatchers.


author: MAX N. TOBIAS, JR., Judge.

text:
    Ann Lee Stephens SARPY, Elizabeth Stephens Knowles, Martha Stephens Johnson and Mary Stephens Dillon v. ESAD, INC., The 1927 Partnership, Preferred Hotel Holdings, Ltd., Bn Investments II, Ltd., Pledged Holding Company, Inc., and George J. Newton, III.
    No. 2007-CA-0347.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 19, 2007.
    James R. Swanson, Loretta G. Mince, Lance C. McCardle, Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P., New Orleans, LA, for Plaintiffs/Appellants.
    James M. Garner, Timothy B. Francis, Neal J. Kling, Christopher C. Chocheles, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court Composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., and Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

pThe plaintiffs, Ann Lee Stephens Sar-py, Elizabeth Stephens Knowles, Martha Stephens Johnson, and Mary Stephens Dillon (collectively hereinafter referred to as “the plaintiffs”) appeal from the granting of a motion for summary judgment in favor of the defendants, The 1927 Partnership (hereinafter “1927”), Preferred Hotel Holdings, Ltd. (hereinafter “Preferred”), BN Investments II, Ltd. (hereinafter “BNI”), and Pledged Holding Company, Incjhereinafter “Pledged”) (collectively hereinafter referred to as “the non-ESAD defendants”). After reviewing the record and applicable law, we reverse the trial court’s decision granting the summary judgment and remand the matter to the trial court for further proceedings.

From 1992 through 2004, the defendant, ESAD, Inc. (hereinafter “ESAD”), subleased the Eiffel Tower Restaurant building (hereinafter “the Tower”) on St. Charles Avenue in New Orleans from the plaintiffs who co-owned a long-term leasehold interest in the Tower. ESAD was formed by David Burrus and the defendant, George Newton, III, for the purpose of purchasing the subleasehold | ?interest in the Tower. Burrus and Newton also owned the Pontchartrain Hotel (hereinafter “the Pontchartrain”), which is located across the street from the Tower.

The Pontchartrain is owned by defendant, 1927, which is composed of three partners: Preferred, BNI, and Pledged. Preferred, BNI, and Pledged are each owned by Burrus and Newton in respective percentages of 75% and 25%. E SAD’s stock is also owned by Burrus and Newton in the same respective percentages of 75% and 25%, through an intermediary corporation, FIG, Inc. (“FIG”).

Christopher Schott serves as the registered agent, director, and secretary/treasurer of ESAD, FIG, Preferred, BNI, and Pledged. He also serves as a member of the partnership management committee of 1927.

The owners of the Pontchartrain acquired the leasehold in the Tower. FIG originally intended to purchase the leasehold, but at the very last moment, the non-ESAD defendants created ESAD for the sole purpose of acquiring the leasehold interest. At the time of incorporation, FIG contributed $100.00 of paid-in capital to acquire ESAD’s stock, despite the fact that the leasehold interest was worth several hundred thousand dollars.

From 1992-2004, the owners of the Pontchartrain owned and controlled the leasehold interest in the Tower. The evidence shows that ESAD carried receivables on its books due from 1927, Preferred, BNI, and Pledged, which exceeded $300,000.00 for five years in a row. To finance its operations, ESAD borrowed money from FIG and paid over $300,000.00 in interest for the use of the |,.¡money. ESAD, however, was not paid any interest from the other related entities that owed ESAD large sums of money.

No documentation exists in the record before us to show whether payments were actually made to ESAD or whether the amounts allegedly charged were at a fair market value. ESAD and the non-ESAD defendants., share common officers, directors, and employees, have substantial identity of ownership, operate out of the same physical office, and have provided services and funds to each other over the years as needed.

This lawsuit seeks to recover damages for various breaches of the sublease between ESAD,. as sublessee, and the plaintiffs, as sublessor. No dispute exists that the plaintiffs have stated a cause of action against ESAD; however, ESAD is without the funds required to pay the damages if found at fault. Consequently, the plaintiffs also filed suit against the affiliated entities under the “single business enterprise” and “alter ego” theories of liability. The non-ESAD defendants filed a motion for summary judgment, which the trial court granted, finding that Louisiana law does not recognize the “single business enterprise” theory of liability in a contract casé. The trial court did not address the “alter ego” theory of liability in its oral reasons for judgment. This appeal followed.

^Essentially, the issue presented on appeal is a legal one: whether the “single business enterprise” theory applies in a contract case. If this court finds that it does, then the case must remanded to the trial court for a determination of whether that theory applies to the facts of this case and whether a genuine issue of material fact exists to deny the motion for summary judgment. Questions of law are reviewed under the de novo standard. La. Mun. Ass’n v. State, 04-227 (La.1/19/05), 893 So.2d 809. Summary judgments are also reviewed under the de novo standard. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. Therefore, we are required to determine whether the court below was legally correct. City of New Orleans v. Bd. of Comm’r of Orleans Levee Dist., 93-690 (La.7/5/94), 640 So.2d 237.

In Green v. Champion Insurance Co., 577 So.2d 249 (La.App. 1 Cir.1991), the First Circuit discussed and applied the “single business enterprise” theory to disregard the identities of a group of separate corporations. It listed 18 factors to be considered but cautioned that the list was illustrative and not intended as an exhaustive list of relevant factors; no one factor was dispositive of the issue. Id. at 257-58.

This circuit first adopted the Green factors, thereby applying the “single business enterprise” theory, in In re New Orleans Train Car Leakage Fire Litig., 96-1677, p. 3 (La.App. 4 Cir. 3/5/97), 690 So.2d 255, 257 and has continued to apply the theory in subsequent cases. The fact that this case arises out of a breach of contract does not preclude application of the theory. In Lee v. Clinical Research Center of Florida, 04-0428, p. 7 (La.App. 4 Cir. 11/17/04), 889 So.2d 317, 323, we stated:

This Court has also recognized the single business enterprise theory as a vehicle for holding a group of affiliated entities responsible for the obligations of one of the entities. In In re New Orleans Train Car Leakage Fire Litigation, 96-1677 (La.App. 4 Cir. 3/5/97), 690 So.2d 255, this Court stated that the legal fiction that a corporation is a distinct legal entity separate from the individuals who comprise it may be disregarded when a corporation is organized and controlled in such a way that it is merely an adjunct of another corporation. In such a ease one corporation is considered to be the business conduit or alter ego of another. Courts can pierce the corporate veil of a corporation to impose liability on one corporation for the acts of another corporation. Id. at 257. In addition to piercing the corporate veil to disregard a corporate identity, courts have used the single business enterprise theory to extend liability beyond a separate entity. Id. This Court in In re New Orleans Train Car Leakage Fire Litigation adopted the list of factors used in the Green case for determining the existence of a single business enterprise. Id. See also Berg v. Zummo, 2003-0281 (La. 4 Cir. 7/02/03)[sic], 851 So.2d 1223, cert. denied, 2003-2209 (La.11/21/03), 860 So.2d 546.

No limitation on the use of the theory was recognized by the Lee court. In fact, Lee involved the breach of an employment contract. While this court found no single business enterprise existed, that does not mean that the theory does not apply in a contract setting. Whether an affiliated group of entities constitutes a “single business enterprise” is a question of fact to be decided by the trial court. Id.; Grayson v. Ammon & Associates, Inc., 99-2597, pp. 21-22 (La.App. 1 Cir. 11/3/00), 778 So.2d 1, 15.

The appellees have argued that because corporate formalities were observed, the court cannot find that a single business enterprise exists in the instant case. | fiFirst, that is a factual issue that has not been determined by the trial court, and, second, that is one of many factors for the lower court to consider when making its decision. We find that the trial court erred in granting the motion for summary judgment.

Accordingly, we reverse and set aside the judgment and remand the matter for reconsideration of the motion for summary judgment in light of the views expressed in this opinion.

REVERSED AND REMANDED.

BELSOME, J. CONCURS IN THE RESULT.

      . That is, FIG owns all the stock of ESAD.

      . The transcript containing the trial court’s oral reasons for judgment states:

        MR. SWANSON: Essentially the ruling is that you don't believe that ultimately the Supreme Court is going to find that in the contract context that there is a single business enterprise theory?
      THE COURT: Correct.

      . It is unnecessary for this court to determine if the trial court correctly found no genuine issue of material fact because no such finding was made.

      . We pretermit discussion of the alter ego theory as it was not addressed by the trial court. We recognize the leading case on point is Riggins v. Dixie Shoring Co., Inc., 590 So.2d 1164 (La.1991).