author: GROSS, J.

text:
    E.A.R., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D07-1061, 4D07-3228.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We write to address a narrow issue—whether section 985.433(7)(b), Florida Statutes (2007), requires a trial court to specifically identify the “characteristics of the restrictiveness level imposed vis-a-vis the needs of the juvenile,” when the trial court sentences a juvenile to a different restrictiveness level than that recommended by the Department of Juvenile Justice (“DJJ”). We hold that the statute does not impose such a requirement on a sentencing judge and affirm.

Appellant entered a plea to a felony and violations of probation. The DJJ predisposition report recommended a moderate commitment program. The circuit judge sentenced the juvenile to a level 8 high risk residential program, giving these reasons for the decision:

[H]e has become ungovernable; secondly, he is truly a flight risk; third, gang affiliation; next, danger to — to the public and society. Page 6 of the P.D.R. talks about his violent outbursts, his potential for harming others, uncontrolled anger. And there’s more than support that he is a danger to — to the public-I’m going to accept the statements of the probation officer, her review of the Child and looking at what he wrote on his computer and things of that nature. There is a gang affiliation here. And for all of those reasons, the Court’s going to place him in a Level 8 program.

Section 985.433(7)(b) states:

The court shall commit the child to the department at the restrictiveness level identified [in the recommendation of the Department of Juvenile Justice] or may order placement at a different restrictiveness level. The court shall state for the record the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.

The substance of section 985.438(7)(b) is identical to that of its predecessor, section 985.23(3)(c), Florida Statutes (2004). In KS. v. State, 835 So.2d 350, 352 (Fla. 4th DCA 2003), we recognized that this statutory language “does not require the court to explain why it is imposing a different restrictiveness level by articulating the ‘characteristics of the restrictiveness level imposed vis-a-vis the needs of the juvenile.’” Id. (quoting S.L.K. v. State, 776 So.2d 1062, 1064 (Fla. 4th DCA 2001)).

Other courts have taken a different approach to the same statutory language. For example, in M.S. v. State, 927 So.2d 1044, 1046 (Fla. 2d DCA 2006), the court wrote that if a trial judge disregards the DJJ assessment of the child, the trial court “must ‘reference the characteristics of the restrictiveness level vis-árvis the needs of the child.’ ” Id. (quoting A.J.V. v. State, 842 So.2d 1027, 1029 (Fla. 2d DCA 2003) (quoting P.R. v. State, 782 So.2d 911, 913 (Fla. 5th DCA 2001))). The M.S. court reversed in part because the trial judge’s reasons for departure “failed to address why the restrictiveness level the trial court selected would better serve M.S.’s needs.” 927 So.2d at 1046.

Cases such as M.S. expanded statutory language to impose a mandatory requirement upon the sentencing judge. This development crept into Florida law from Judge Griffin’s dissent in J.L.O. v. State, 721 So.2d 440, 443 (Fla. 5th DCA 1998) (Griffin, J., dissenting), where she wrote that a judge’s reason for departing from a DJJ recommendation “must have reference to the characteristics of the restrictiveness level vis-a-vis the needs of the child.” This general requirement makes sense — a judge’s sentence should address the needs of the child. A level 8 residential program is not appropriate for a gentle first-time offender convicted of a non-violent crime. In A.C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999), the court adopted Judge Griffin’s observation as a sentencing requirement under section 985.23, that the reasons for departure “have reference to the characteristics of the restrictiveness level” as they relate to the needs of the child.

In cases that came after A.C.N. and J.L.O., the observation that the bases for a sentencing departure “have reference” to the sentence imposed morphed into the requirement that the trial judge articulate at sentencing how the characteristics of a restrictiveness level address the needs of the child. Thus in A.G. v. State, 737 So.2d 1244, 1247 (Fla. 5th DCA 1999), the court wrote: “Not only must the court state in writing or on the record its reasons for disregarding the recommended level, but in addition, the reasons must reference the characteristics of the restrictiveness level vis-a-vis the needs of the child.” Although A.G. cited A.C.N. in support of this proposition, the case expanded the language of A.C.N. by changing the phrase “have reference to” to “reference.” See also J.M. v. State, 939 So.2d 1138, 1139 (Fla. 5th DCA 2006) (relying on A.G. for the proposition that a judge disregarding a DJJ commitment recommendation “must state its reasons and ‘must reference the characteristics of the restrictiveness level vis-a-vis the needs of the child’”); R.T. v. State, 946 So.2d 112, 113 (Fla. 1st DCA 2007). In this way, a general concept of relatedness evolved into a judge’s obligation to articulate the precise connection between a sentence and the child’s needs.

In this case, the trial court adequately provided its reasons for disregarding DJJ’s recommendation and those reasons were “supported by a preponderance of the evidence.” K.S., 835 So.2d at 351. The pre-disposition report indicated that appellant stole and attempted to cash a personal check belonging to his foster mother. The foster mother testified that the appellant’s wrongdoing involved other checks that would likely result in future charges. She pointed out that “there is no guarantee that [appellant’s not going to come back and bite the other hand that’s been feeding him all along.” She testified that the appellant lies and that “nothing had changed.” She said that her daughter was doing better with appellant out of the house, and that she would not take the appellant back because she no longer trusts him. Appellant’s foster mother also expressed concern that the appellant would “take off’ again. Appellant’s probation officer confirmed that the juvenile was a flight risk. In fact, in his comprehensive evaluation, appellant readily admitted that he was a “runner.”

The PDR indicated that there was evidence of “violent outbursts displays of temper, and uncontrolled anger indicating [a] potential for harm not included in [the] criminal history;” that appellant did not have empathy for his victim(s); that he was habitually truant from school during [] most of the term; and that appellant engaged in verbal intimidation, yelling, and heated arguments with family members. Finally the report stated that the juvenile began using alcohol and marijuana at the age of thirteen. Even without the finding of a gang affiliation, for which the evidence was flimsy, there was adequate evidence that appellant was ungovernable, a flight risk, and a danger to the public. See K.S., 835 So.2d at 351; C.T. v. State, 819 So.2d 869 (Fla. 4th DCA 2002).

We affirm the sentence and certify conflict with M.S. v. State.

WARNER and FARMER, JJ., concur.

      . Previously, section 985.433(7)(b) was contained at section 985.23(3)(c), Florida Statutes (2004). Section 985.23(3)(c) provided in pertinent part:
      The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons which establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.
      Section 985.23 was renumbered as 985.433 and amended by Laws 2006, c. 2006-120, § 45, effective Jan. 1, 2007.

      . Construing section 985.23(3)(c), the S.L.K. court wrote that "the reasons set forth by the court for disregarding the recommendation level [suggested by DJJ] must reference the characteristics of the restrictiveness level visa-vis the needs of the child.” 776 So.2d at 1064. In K.S., we characterized this language as dicta. 835 So.2d at 352.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Miguel LAGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1336.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.
    Miguel Lago, in proper person.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN and RAMIREZ, JJ.
   CORRECTED OPINION

On Motion for Rehearing

PER CURIAM.

We grant the motion for rehearing, withdraw our prior opinion filed September 5, 2007, and substitute the following in its stead.

The appellant, Miguel Lago, appeals from the denial of his Florida Rule of Criminal Procedure 3.800 motion to correct illegal sentence. We treat this appeal as a petition for common law habeas corpus and grant the same.

Lago was convicted and sentenced in 1990 to consecutive sentences for robbery with a firearm and unlawful possession of a firearm while engaged in a criminal offense. Both convictions arose out of the same robbery of the same victim. After an unsuccessful direct appeal and several unsuccessful pro se post-conviction challenges to his convictions and sentences, Lago filed a Rule 3.800 motion to correct illegal sentence in November 2005 on the grounds that his consecutive sentences were violative of his constitutional protection against double jeopardy. For the first time since his direct appeal, counsel appeared on behalf of Lago and argued the motion to the trial court. Although raised by Lago in his prior pro se post-conviction motions, this was the first time that Lago had counsel to assist him in raising his double jeopardy claim. The State opposed Lago’s motion on the grounds of “law of the case.” Although the trial court found Lago’s sentence to be “patently illegal,” it denied the motion, on law of the case grounds. Specifically, the trial court found that:

The defendant, through counsel, has made a compelling case that his sentence is patently illegal.... Additionally, it is plain from the face of the record that the defendant received ineffective assistance of appellate counsel in his direct appeal and that, ... he would have had his sentence on Count II [possession of a firearm during the commission of a felony] vacated had any of his prior filings been deemed to have raised an ineffective assistance claim.
Nonetheless, the Court is constrained to deny relief in this case, even though it works, and this Court expressly finds, a manifest injustice in this case.

Because we agree that Lago’s sentence for possession of a firearm during the commission of a felony is violative of the double jeopardy clause, and thus “patently illegal,” we find that his consecutive sentence for the same to be manifestly unjust. We also agree that the trial court’s denial of Lago’s Rule 3.800 motion was proper on law of the case grounds. This, however, does not preclude us from correcting Lago’s sentencing error. See Strazzulla v. Hendrick, 177 So.2d 1, 4 (Fla.1965)(recognizing appellate court’s power to reconsider and correct ruling that has become “law of the case” where adherence to ruling would result in manifest injustice). Where, as here, a manifest injustice has occurred it is the responsibility of the court to correct that injustice, if it can. See Adams v. State, 957 So.2d 1183 (Fla. 3d DCA 2007).

Accordingly, we treat Lago’s appeal as a petition for writ of habeas corpus and grant the same. See Ross v. State, 901 So.2d 252 (Fla. 4th DCA 2005)(habeas corpus relief granted, despite law of the case doctrine, where manifest injustice had occurred). We therefore remand this case with instructions that Lago be resentenced in accordance with this opinion.

Petition granted.


text:
    James TYRRELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-183.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.

      Leah H. Mayersohn, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

James Tyrrell appeals his conviction of misdemeanor battery. Originally he was charged with three counts of sexual battery on a person twelve years of age or older, all second degree felonies. See § 794.011(5), Fla. Stat. (2003). Before trial, the state made a plea offer of community control and probation. The court explained to the defendant that he faced 45 years in prison, with 22 years being the bottom of the sentencing guidelines. Tyr-rell rejected the offer and went to trial. The jury found Tyrrell not guilty on one count and guilty on two counts of the lesser included charges of misdemeanor battery. With the agreement of the state, the court merged the two battery counts for sentencing. The circuit judge sentenced Tyrrell to one year of probation with a special condition of 150 days in jail. The judge said that “in no way” was Tyr-rell “punished by exercising his right to trial.” We affirm the conviction.

In December 2003, the 19 year old victim came to Florida to visit her sister Courtney. In preparation for the visit, Courtney secured a fake identification card for the victim.

On December 19, Courtney took her sister to her company’s office party at Max’s Grille in Fort Lauderdale. Courtney and Tyrrell worked together. Tyrrell drove a group that included the sisters to the party. They arrived at about 8:00 p.m., and were there until approximately 11:30 p.m. While at the party, both Tyrrell and the victim drank liquor. The victim and Tyr-rell then walked with a group to Rush Street, another bar.

Courtney wanted to leave Rush Street at 2:00 a.m. The victim decided to stay, because she had been drinking and “dancing a little bit” with Tyrrell and “started to have a little bit more fun.” Tyrrell offered to let Courtney use his car because he did not want to leave it in a garage overnight. Tyrrell told Courtney that he had “plenty of money to get [the victim] in a cab,” and would make sure the victim got home.

After Courtney left, the victim and Tyr-rell went to another club, where they had more to drink. They left together and hailed a cab. Inside the cab, they started kissing with their arms around each other and the victim testified that she let Tyrrell “penetrate” her vagina with his finger. The cab arrived at Tyrrell’s house. After paying the fare, Tyrrell and the victim were out of money. Tyrrell said to “come into his place” to “figure out a way for [the victim] to get home.” At that point, the victim “didn’t feel like [she] had any other options.”

Inside the house, the victim said that she and Tyrrell started “kissing a little bit more and he had fingered me a little bit, which I was not okay with, but I didn’t know what to do or how to react. I didn’t know how far I wanted it — to let it go. And there came a point where he started pulling off my skirt. And I said, ‘No.’” After she said no, they “reverted back to kissing, which was fine with me again. I just — I thought that was going to be okay so I just went along with that. And then he just pulled his penis out and like penetrated me. I didn’t even know that it was coming.” After two thrusts, the victim told Tyrrell, “No, I don’t want to do this.” Tyrrell apologized. The victim started to call her sister, but Tyrrell talked her out if it “because his car was at [Courtney’s] place and he had to go get his car in the morning anyway.” He offered that she spend the night at his place. He said “[j]ust come upstairs and we’ll just go to sleep.”

The victim agreed to spend the night They went upstairs and she “just lay down in bed and passed out.” She slept in her long skirt and velvet top. Tyrrell was also clothed. Before falling asleep, the victim remembered Tyrrell’s roommate, Ariel Martinez, coming home, looking into the bedroom, and saying hello. Martinez testified that he heard giggling from Tyrrell’s bedroom.

When the victim next woke up, Tyrrell was on top of her, pulling off her skirt. She “pushed him off’ and said, “No, I don’t want to do that. I don’t want to do this with you.” Tyrrell said he was sorry. The victim rolled over and went back to sleep. The victim was feeling the effects of the alcohol. She woke up a second time to the defendant penetrating her with his penis. She pulled away from him, rolled over, and “went back to sleep.” At this time, the victim still had her skirt on.

The third time the victim woke up, she said that Tyrrell “was inside me again in the same position with his penis. And— and when I went to go pull away, he ... was holding onto my hips. And when I went to go pull away he just penetrated me anally.” The victim was disgusted and mortified. She pulled away to get up and went into the bathroom. Her skirt was off. She saw a little bit of blood.

Mad and wanting to leave, the victim looked for her skirt. She could not find it, so she put on a pair of red shorts from the floor. She found her cell phone by the bed and her skirt between the bed and the wall. She got dressed and started to leave.

Tyrrell grabbed the victim’s arm and asked why she was leaving. The victim said that she wanted to go home, but she had lost her camera. They both went to look for the camera. Tyrrell found it in the purse of a girl who had come home with his roommate, Martinez. Martinez and his female guest then came downstairs. The victim said nothing about what happened in the bedroom; she was mad because she thought her camera had been stolen.

Tyrrell and the victim left in Martinez’s car bound for Courtney’s apartment. Along the way, the car stalled in the middle of the road. The victim started walking, but decided to call Courtney. Tyrrell discouraged the victim from calling her sister, saying, “She’s going to be mad you woke her up. She’s going to think I’m a rapist.” A police officer arrived at the stalled car. The victim did not approach the police officer.

Courtney received a call from her sister at 6:00 a.m. asking to be picked up. When Courtney arrived, she saw the defendant without shoes, dressed in shorts and a sweatshirt. Courtney testified that Tyr-rell appeared “heavily intoxicated” while the victim “seemed fine.” They drove back to Courtney’s apartment; she gave Tyrrell the keys to his car and told him to go home.

After Tyrrell left, the victim told her sister what had happened. The victim showered. Sometime after 8:00 a.m., they called the police. An officer arrived in 20 minutes. Later that day, the victim went to the Sexual Assault Treatment Center.

At the Center, nurse Sandra Gibson examined the victim. Nurse Gibson testified as an expert in the area of sexual assault treatment exams. She looked at the victim’s clothes from the night before and saw no tears or evidence that they had been “roughly handled.” She used a diagram of the victim’s vaginal area to explain her testimony. She described two tears in the victim’s “labia menora [sic] ... about one-to-three millimeters, and they had a erythemitus [sic] base. Erythemita, er-ythema just relates to what was defined as redness.” The nurse interpreted these tears and redness as indicating “an acute or a new injury.” The nurse described another tear of “about two to four millimeters” with a “red base” between the “base of the vagina” and the anus. The nurse described another tear at the entry of the anus. The tears the nurse observed were new injuries that would start to “significantly heal” within 72 hours. The nurse opined that the injuries she observed were consistent with the non-consensual “penetration vaginally, digitally, and ... anally” that the victim had described.

Nurse Gibson did not take photographs of any of the victim’s injuries, although it was her practice to photograph documented injuries. She could not recall why she took no photographs in this case.

Tyrrell gave a taped statement to a detective that the state played for the jury. In the statement, he first denied that he and the victim had engaged in sex. He said that they were on the couch in the living room, not in a bedroom, when his roommate Martinez arrived home. Later, he admitted to digitally penetrating the victim, but said he was drunk; then, he conceded that he had gone upstairs with the victim and gotten into bed. Tyrrell denied penetrating the victim with his penis. At trial, Tyrrell did not testify.

Part of the defense was that the injuries observed by the nurse were caused by the victim’s aggressive use of a dildo. The victim received the dildo on November 15, as a birthday gift from a friend. The defense obtained two court orders for the victim to produce the dildo, but she never complied. She described the dildo in her testimony: “[t]an-colored. It’s about five inches long. It’s like two-inch circumference maybe. It has an extra part on it for elitoral stimulation.” The victim said she did not use lubricant with the dildo and penetrated herself just with the tip.

On July 23 and August 2, 2004, the trial court ordered the victim to “produce the sex toy and/or dildo discussed in her depositions within 15 days.” The court also ordered the victim to make certain medical records available to the prosecutor.

Tyrrell first argues that his “right to due process and right to confront witnesses” was violated because the state did not produce the items that were the subject of the July 23 and August 2 orders. However, it was the victim, not the state, who was ordered to produce. The defense never moved to hold the victim in contempt for failing to turn over the dildo and medical records; there was no showing that the state possessed the items and withheld them from the defense. At trial, the victim described the dildo and explained in detail how she used it. Even if there was error in the court’s ruling about the dildo, the error was harmless. The jury did not need to see the actual dildo to understand the testimony or the nature of the defense.

Tyrrell also complains about not having production of certain of the victim’s medical records. Because the trial court correctly ruled that the victim’s panic attacks prior to her encounter with Tyrrell were irrelevant, there was no constitutional error in the victim’s failure to produce the records about the panic attacks. The defense was attempting to establish the importance of the absence of a panic attack after the victim’s encounter with Tyrrell; however, the trial court found the earlier panic attacks too tenuous and remote to be admitted. One attack was the result of stress in school two years before the incident. The defense proffered no expert testimony that would make the significance of the absence of a panic attack anything more than a wild hypothesis.

Next, Tyrrell contends that the trial court erred in failing to let him show the victim a dildo lineup. As he explains in his initial brief, the defense “performed an exhaustive search to find a matching dildo. Upon learning that none existed,” the defense “acquired multiple similar looking devices” to display to the victim so that she could “find one that looked similar for comparison.” The trial judge disallowed the use of visual aids “not directly related to the charge.” We find no abuse of discretion in this ruling on the relevance of demonstrative evidence. See § 90.401, Fla. Stat. (2007); State v. Wright, 473 So.2d 268, 269-70 (Fla. 1st DCA 1985). The defense extensively explored the dildo issue with the victim on cross examination.

Tyrrell next asserts that the trial judge wrongfully limited his ability to cross-examine the victim about why she would lie about her encounter with him. However, the trial court allowed the defense to bring out the victim’s disagreement with Courtney earlier that day over another man, as well as the victim’s admitted lie in her deposition about her sexual encounter with a former boyfriend. This testimony covered the issues the defense identified in the proffer at trial.

We find no error in the trial court’s exclusion of certain testimony from an expert. The court precluded a former medical examiner from testifying as to whether the victim’s alcohol level was “at or below the legal limit” when she was at Tyrrell’s apartment. There was no evidence of any blood alcohol test, only the victim’s testimony about the mixed drinks she consumed at various bars, without any evidence as to the amount of alcohol in any drink. There was thus insufficient data for the proposed opinion. See § 90.704, Fla. Stat. (2007); Dozier v. Hodges, 849 So.2d 1094, 1095 (Fla. 3d DCA 2003); Dempsey v. Shell Oil Co., 589 So.2d 373, 380 (Fla. 4th DCA 1991). On another issue, the same expert was allowed to indirectly criticize the failure of Nurse Gibson to take photographs of the victim’s injuries by pointing out that he drew conclusions from drawings on paperwork in a minority of cases, “usually in very rural backward third world countries. The defense thus highlighted deficiencies in the state’s evidence gathering technique.

Finally, Tyrrell argues that the trial court abused its discretion in denying a continuance so that it could procure the testimony of an expert urologist. We find no preserved error.

Defense counsel proffered one aspect of the urologist’s testimony: because Tyrrell’s penis was “smaller than average size” it “could not have caused” the injuries that Nurse Gibson observed during the rape exam. Before calling her first witness, defense counsel learned that the urologist was in surgery and would not be available that morning. Defense counsel said, “I just got off the phone with him. He’s in surgery. He was supposed to have been here originally around 11:00. He’d requested it according to his schedule. I just got off the phone. He’s going to be in surgery all day today.” The judge agreed to end early that day so that the urologist could testify the next morning. The judge also said, “But I’m not going to continue his testimony for four days.” The next morning, defense counsel stated, “My witness is not available unfortunately. So we’re going to rest.” She explained to the court that even though the witness was under subpoena, “with everything that was going on with [the urologist] yesterday with the emergency surgery and everything, he’s not available.”

Defense counsel did not move for a continuance on the morning when the urologist failed to appear. She did not tell the court when the witness could appear. She did not move to enforce the subpoena. She did not attempt to get the state’s agreement to perpetuate the expert’s testimony under Florida Rule of Criminal Procedure 3.190(j). Under these circumstances, where there was no concrete motion for a continuance, the trial court did not err by failing to recess the trial for some undetermined time in the future.

Affirmed.

WARNER and FARMER, JJ., concur.


author: SHAHOOD, C.J.

text:
    Jimmy CRAFT, Appellant, v. Sarah Clark HOLLOWAY, Esquire, Appellee.
    No. 4D06-4011.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.

      Jimmy Craft, Doral, pro se.
    Sarah Clark Holloway, Esquire, St. Pe-tersburg, pro se.
   SHAHOOD, C.J.

Jimmy Craft (“appellant”) appeals from the circuit court’s dismissal of his complaint pursuant to section 57.085, Florida Statutes. The order found insufficient legal grounds for appellant’s cause of action and directed the Clerk of Court not to file the case. We hold that it was error to dismiss the case without first finding appellant indigent.

Appellant attempted to file his complaint against appellee after the circuit court dismissed appellant’s earlier complaint against appellee’s client. The trial court rendered an order pursuant to section 57.085, Florida Statutes, finding insufficient legal grounds for a cause of action and directing the Clerk of Court not to file the case. Appellant was later determined to be indigent. Appellant argues in this appeal that the trial court erred in refusing to file his case.

Section 57.085 attempts to solve the problem of frivolous civil suits by indigent prison inmates by requiring that lawsuits brought by indigent inmates be screened by the court before being accepted for filing. See Reed v. Mims, 711 So.2d 169, 170-71 (Fla. 3d DCA 1998). “The pres-creening provisions of section 57.085(6) only apply to actions filed by ‘indigent’ prisoners.” Drayton v. Moore, 807 So.2d 819, 823 (Fla. 2d DCA 2002). As a result, a prisoner must be adjudicated indigent before his case can be prescreened. Id.; see also Osterback v. Turner, 837 So.2d 604, 605 (Fla. 1st DCA 2003) (reversing and remanding where trial court determined appellant’s complaint legally insufficient prior to adjudicating appellant indigent). The Drayton court described the correct procedure under the statute:

[IJndigency status must be determined first.... When a trial court dismisses a case under section 57.085, it must retain all original pleadings necessary to effectuate appellate review. If the statute is properly applied, prescreening and dismissals will occur only in cases where a prisoner has been granted indigency status. Once indigency status is granted, we presume that a case file with an assigned case number will be opened in which the original pleadings and any resulting court orders will be maintained.

Drayton, 807 So.2d at 823.

The circuit court’s dismissal of appellant’s complaint under section 57.085 in the present case was premature because he had not yet been adjudicated indigent. Nor would this court be able to review the propriety of the trial court’s order even if appellant had been determined indigent first, as the record does not include appellant’s complaint.

We reverse and remand for processing of appellant’s case under the procedure described above.

Reversed and Remanded.

TAYLOR, J., concurs.

FARMER, J., dissents without opinion.


text:
    M.F., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D07-3741.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.

      Richard B. Kaplan of the Law Offices of Richard B. Kaplan, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

M.F., the father, appeals the trial court’s adjudication of dependency with respect to his three children, A.F., W.F., and Ma.F. The Department of Children and Families (“the department”) initiated dependency proceedings when M.F.’s daughter, A.F., was born cocaine-positive and the mother tested positive for cocaine at A.F.’s birth. M.F. did not consent to the adjudication of dependency and this case proceeded to trial. The father argues on appeal that the evidence was insufficient to support the adjudication of dependency. We agree and reverse.

The department alleged three grounds for dependency as to the father: (1) the father neglected the minor children by failing to protect them from the mother’s ongoing substance abuse problem, which impairs her ability to adequately care for and supervise the children; (2) the children are presently at risk of imminent neglect based upon the father’s failure to protect the children from the mother; and (3) the children are presently at risk of imminent neglect based upon the father’s own drug use. See § 39.01(14)(a), (f), Fla. Stat. (2007); § 39.01(43), Fla. Stat. (2007). The department has the burden of proving that the children are dependent by a preponderance of the evidence. § 39.507(1)(b), Fla. Stat. (2007).

In the Order of Adjudication of Dependency of A.F., W.F., and Ma.F., the trial court made the following findings:

1. The father ... has subjected ... [all three children] to risk of harm as defined in Chapter 39 of the Florida Statutes.
2. The Court finds that the minor child [A.F.] tested positive for cocaine at birth.
3. The Court finds that the father admits that he has daily contact and responsibility for the child, and the court finds it hard to believe that [t]he father did not know that the mother was using drugs particularly when the court considers the uncontroverted testimony that there was no prenatal care.
4. The Court also finds that the father presented at the hospital with slurred speech and impaired physical motor skills.

The trial court’s finding of dependency is a mixed question of law and fact and will be upheld “ ‘if the court applied the correct law and its ruling is supported by competent substantial evidence in the record.’ ” C.A. v. Dep’t of Children & Families, 958 So.2d 554, 557 (Fla. 4th DCA 2007) (quoting R.S. v. Dep’t of Children & Families, 881 So.2d 1130, 1132 (Fla. 4th DCA 2004) (citation omitted)). Although a trial court has broad discretion in child welfare proceedings, “ ‘reversal is required where the evidence is legally insufficient to sustain the findings of the trial court.’ ” Id. (quoting R.S., 881 So.2d at 1132).

A. Whether The Father Neglected A.F. By Failing To Protect Her From The Mother’s Substance Abuse

In order to support a finding that the father actually neglected A.F. by failing to protect her from the mother’s substance abuse, the department had the burden of proving by a preponderance of the evidence that (1) the father knew about the mother’s drug use, and (2) he was capable of preventing the child’s exposure, but failed to do so. See C.A., 958 So.2d at 560.

In C.A., we held that the father’s knowledge of the mother’s substance abuse was insufficiently established where the testimony showed that the parents had used drugs together in the past, but the husband testified that he did not know the mother was still doing drugs, and the department did not present any evidence to refute that testimony. Id. Similarly, in the present case, the department did not put forth any evidence to counter the father’s testimony that he did not know the mother was using drugs while pregnant. The father’s testimony that he was present in the home on a regular basis may raise an inference of knowledge but does not contradict his testimony that he did not know the mother was using cocaine while pregnant. Furthermore, we find that the absence of prenatal care is not determinative of either the father’s knowledge of the mother’s drug use, or the father’s ability to prevent the mother’s drug use.

B. Whether The Father’s Drug Use Placed The Children At Risk Of Imminent Neglect

The department alleged that the older children were at substantial risk of imminent neglect because the father failed to protect newborn A.F. from the mother’s drug use, and also because the father has a “long history consisting of several drug possession and aggravated battery charges” that threatens to harm all of the children. Because we hold that the department has not put forth competent, substantial evidence sufficient to establish the elements of a failure to protect claim with respect to A.F., we will address only the department’s claim of imminent neglect of the three children based upon the father’s own drug use.

To prove that a child is at risk of imminent neglect, the department must put forth “competent, substantial evidence that ... neglect is ‘impending and about to occur.’” C.A., 958 So.2d at 560 (quoting J.B., III v. Dep’t of Children & Families, 928 So.2d 392, 395 (Fla. 1st DCA 2006)). To support an adjudication of dependency where a parent’s substance abuse problem poses a substantial risk of imminent harm, the department must show (1) that the parent has an ongoing substance abuse problem, (2) that it adversely affected his ability to care for the child, and (3) that the child suffered harm or injury — physical, mental or emotional — as a consequence of the parent’s drug use. Id. at 560-61; R.S. v. Dep’t of Children & Families, 881 So.2d 1130, 1134 (Fla. 4th DCA 2004) (holding that dependency was improper where there was a showing of prior drug use, but the department failed to show that the substance abuse was an ongoing problem, that the parent used the controlled substance around the children, or that the children were adversely affected by the parent’s use of the controlled substance); B.C. v. Dep’t of Children & Families, 846 So.2d 1273, 1275 (Fla. 4th DCA 2003) (holding that dependency was improper where a father was shown to have a substance abuse problem, but there was no showing that the father’s alcohol and drug use adversely affected his ability to meet the child’s needs and no showing of physical, mental, or emotional harm to the child). It is not necessary to show that the child was present for the parent’s drug use, but the totality of the circumstances must show an imminent risk of harm. C.A., 958 So.2d at 560-61. Furthermore, the parent’s harmful behavior must be a “present threat” to the child. J.B.M. v. Dep’t of Children & Families, 870 So.2d 946, 949 (Fla. 1st DCA 2004) (citing B.C., 846 So.2d at 1274).

In determining whether a substance abuse problem is “ongoing,” and constitutes a present threat, a factor to consider is the proximity in time between an alleged act of drug use and the dependency proceeding. See, e.g., J.B.M., 870 So.2d at 949; R.S., 881 So.2d at 1134. The department elicited testimony that the father was previously arrested on drug possession charges, but did not present specific information regarding the details of the possession charges and, significantly, how long ago those charges were issued. In addition to the prior offense, the department established that the father recently tested positive for cocaine use. Whereas the recent failed drug test established the father’s present drug use, in order to establish that it placed the children at risk of imminent harm, the department must also show that the father’s drug use affected his ability to parent. C.A., 958 So.2d at 560; R.S., 881 So.2d at 1134; B.C., 846 So.2d at 1275.

The department presented no evidence that the father used drugs in the presence of the children or that his drug use adversely affected the children or had an adverse effect on his ability to parent. “While it is not necessary to show [the child] was present for the parents’ alleged drug use, the totality of the circumstances must show an imminent risk of harm is created by the actions of the parent(s).” C.A., 958 So.2d at 560. Here, the father testified that he never used any illicit drugs in the presence of his children; that he provided the children with food, shelter, and clothing; and that the children are physically well, have no behavioral issues, and are attending and doing well at school. By failing to refute that testimony, the department failed to establish that the father’s drug use placed the children at risk of imminent neglect.

Reversed.

STONE, STEVENSON and TAYLOR, JJ., concur.

      . The mother consented to dependency as to her four children, three of whom are M.F.'s children, and settled with the department.

      . "Neglect” is statutorily defined in section 39.01(43), Florida Statutes (2007), as:
      when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired. ... Neglect of a child includes acts or omissions. (Emphasis added).

      . Pursuant to the dependency statute, "harm” to a child exists where a parent "[e]xposes a child to a controlled substance.” § 39.01(31)(g), Fla. Stat. (2007). In the present context, "[e]xposure to a controlled substance or alcohol is established by ... [c]on-tinued chronic and severe use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage.” § 39.01(31)(g)2., Fla. Stat. (2007).

      . The only evidence of harm to any of the children is that A.F. was born cocaine-positive; however, that harm is attributable to the mother, and not the father, as the department failed to make the requisite showing that the father failed to protect A.F. Additionally, the disputed fact that the father failed to purchase a crib or a car seat for A.F., even if true, is not indicative of harm to a child.


text:
    Thomas Patrick TAYLOR, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Appellee.
    No. 4D07-685.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.
    John M. Jorgensen of Scott, Harris, Bryan, Barra & Jorgensen, Palm Beach Gardens, for appellant.
    Jennifer A. Tschetter, Assistant General Counsel, Department of Business and Professional Regulation, Tallahassee, for ap-pellee.
   PER CURIAM.

Appellant entered a guilty plea to a federal crime involving moral turpitude. The Department of Business and Professional Regulation, Division of Real Estate, filed an administrative complaint claiming that appellant had violated section 475.25(1)(f), Florida Statutes (2005), which provides that disciplinary action may be taken against the license of a real estate sales associate if the associate has been convicted of a crime involving moral turpitude. The administrative law judge recommended a sentence of a one-year license suspension followed by two years of probation. The Florida Real Estate Commission found that the judge’s findings of fact were supported by competent substantial evidence. Without giving any reasons, the Commission imposed a two-year license suspension, followed by three years of probation.

Section 120.57(1)(l), Florida Statutes (2005), sets out the requirement the Department must follow when considering a penalty recommendation of an ALJ:

The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.

In this case, the Commission increased the recommended penalty, but failed to articulate its reasons for doing so in its final order. The Commission also neglected to cite to those portions of the record which justified its increased penalty. As the Department concedes, this was error. We therefore reverse the sentence imposed and remand to the Commission to reevaluate the sentence in light of section 120.57(1)(l). See Sea Pride Indus., Inc. v. Dep’t of Banking & Fin., Div. of Fin. Investigations, 717 So.2d 616 (Fla. 1st DCA 1998).

We reject appellant’s argument that there was a lack of substantial competent evidence to support the penalty imposed by the ALJ.

WARNER, FARMER and GROSS, JJ., concur.


text:
    David C. NOLTE, Property Appraiser for Indian River County, Appellant, v. PARIS AIR, INC.; Sun Aviation, Inc.; and City of Vero Beach, Appellees.
    Nos. 4D07-546, 4D07-603.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.
    John C. Dent, Jr. of Dent & Johnson, Sarasota, and Canda B. Brown of Jackson, Barkett, Brown, Vero Beach, for appellant.
    Lisa N. Thompson and Michael J. Gara-vaglia of Collins, Brown, Caldwell, Barkett & Garavaglia, Chartered, Vero Beach, for appellee Sun Aviation, Inc.
    Casey Walker of Murphy & Walker, P.L., Vero Beach, and Frederick L. Kretschmer, Jr., of Brennan & Kretsch-mer, Vero Beach, for appellee Paris Air, Inc.
    Benjamin K. Phipps of Phipps & Howell, Tallahassee, and Charles P. Vitunac, Vero Beach, for appellee City of Vero Beach.
    Gregory T. Stewart and Carly J. Schrader of Nabors, Gilbin & Nickerson, P.A., Tallahassee, for Amicus Curiae Florida Airports Council.
    Daniel W. Anderson of Forizs & Dogali, P.L., Tampa, for Amicus Curiae Florida Aviation Trades Association.
   PER CURIAM.

We consolidate the above cases for purposes of this opinion. We affirm the trial court decisions finding that the municipal airport property in question, leased by long term leases to full service, fixed base operators who provide goods and services to the general aviation public in the promotion of air commerce, serves a municipal, governmental or public purpose or function and is therefore exempt from the taxation sought to be imposed by the Property Tax Assessor for Indian River County. See § 196.012(6), Fla. Stat. (2007).

In this regard we necessarily hold that the fixed base operators and the municipality have standing to challenge the assessment. The Property Appraiser has failed to preserve for appellate review any contention that the statute is unconstitutional, and therefore we express no opinion as to whether the Property Appraiser has standing to raise a contention that a statute governing the duties of a property appraiser is invalid.

Affirmed,.

FARMER, STEVENSON and TAYLOR, JJ., concur.


author: BELANGER, ROBERT E., Associate Judge.

text:
    Patricia E. BARDOWELL, Appellant, v. Philip E. BARDOWELL, Appellee.
    No. 4D06-972.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.

      Patricia E. Bardowell, Plantation, pro se.
    Philip Michael Cullen, III, Fort Lauder-dale, for appellee.
   BELANGER, ROBERT E., Associate Judge.

The wife, Patricia Bardowell, timely appeals a final judgment of dissolution of marriage. Of the several points the wife has raised on appeal only one — relative to the valuation and award of the husband’s pension — has merit.

“The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.” Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2003). Distribution of marital assets and liabilities must be supported by factual findings in the judgment or order based on competent substantial evidence. § 61.075(3), Fla. Stat.

We find that the trial court abused its discretion in failing to award the wife any portion of the husband’s pension under the Florida Retirement System (“FRS”). “A spouse’s entitlement to pension or retirement benefits must be considered a marital asset for purposes of equitably distributing marital property.” Diffenderfer v. Diffenderfer, 491 So.2d 265, 270 (Fla.1986). While courts have applied several means for valuing potential future rights, “[t]he most preferable approach involves a reduction to present value factoring in the contingencies of vesting, maturity, and the pensioner’s mortality.” Id. at 269. However, the court cautioned: “No recitation of formulae, considered in the abstract, could capture the variety of considerations necessary in order to do equity. While reduction to present value may often best ensure an equitable distribution of property, we cannot say it would do so in every case.” Id.

Here, the trial court’s conclusion that the FRS pension was of “nominal” value was clearly erroneous. “Property valuation which is not supported by competent, substantial evidence cannot stand.” Mullen v. Mullen, 825 So.2d 1078, 1079 (Fla. 4th DCA 2002).

At trial, the wife submitted evidence of a “retirement forecast” document prepared by the FRS, which stated that, as of December 2004, the husband’s current FRS balance was worth $17,438. The document noted that the current FRS balance “is the present value of your accrued FRS benefit given current years of service.” The FRS documentation provided competent evidence that the present value of the husband’s FRS pension was approximately $17,438 as of December 2004. This is not a nominal value. While the trial court would have been within its discretion to value the pension at an amount lower than $17,438 to account for the fact that the pension was not yet vested, the trial court was not free to ascribe a nominal value to the FRS pension. The trial court’s decision to assign a nominal value to the FRS pension was not reasonable or equitable.

The wife also argues that the trial court erred in awarding only $1000 per month in permanent alimony. An award of alimony is reviewed for an abuse of discretion. Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCÁ 2003). In crafting an award of alimony, the trial judge should ensure that, viewing the totality of the circumstances, one party is not “shortchanged.” Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980). Here, while the amount of alimony may seem objectively low, we do not find that the court abused its discretion in determining the alimony award.

We have considered the other issues raised and find that they are without merit. The final judgment is reversed and the case is remanded for further proceedings.

SHAHOOD, C.J., and STEVENSON, J., concur.


text:
    Cornelius T. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4482.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.
    Cornelius T. Johnson, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Cornelius T. Johnson’s motion to correct illegal sentence was denied as successive. We reverse and remand the matter for further proceedings in connection with Point I of the motion filed in July 2007. The records referenced do not demonstrate that this issue is successive. Compare Romeo v. State, 965 So.2d 197 (Fla. 3d DCA 2007). On remand, the trial court may attach documents to show that the claim is successive, or consider the issue on the merits.

STEVENSON, TAYLOR and MAY, JJ., concur.


author: WARNER, J.

text:
    T.W., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D07-4781.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.

      Frank A. Kreidler, Lake Worth, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   WARNER, J.

We affirm the trial court’s final order terminating the appellant’s parental rights. The evidence and judgment of the court satisfies the three-part test set forth in M.H. v. Department of Children & Families, 866 So.2d 220 (Fla. 1st DCA 2004). The mother, a drug addict for twenty-two years, maintained that her addiction did not threaten her children. However, she ignores the lack of stability her children have endured due to her addiction, including being left in the care of inadequate caregivers, as well as their significantly sub-par performance in school prior to their removal from her care. She has refused treatment and failed to perform any of the tasks under her case plan. She is incarcerated as a result of drug charges and violation of her probation. Although the mother genuinely appears to love her children, and they love her, as one of the witnesses stated, “Love is not enough.” The children need stability, which the mother cannot provide, even though she was given every opportunity to reform herself.

The mother also objects to the trial court’s refusing to allow two of her four children to testify without making findings pursuant to Florida Rule of Juvenile Procedure 8.255(d)(2)(C). That provision, however, applies only where an in-camera examination has occurred. The trial court refused to permit two children from testifying, because the attorney for the children told the court that they did not wish to testify. The court had already heard that the children loved their mother. In fact, the adult child and one of the minor children testified, and each told the court that their mother was a good mother. The minor child preferred to remain with the mother, if she could. The court acknowledged that the non-testifying children would make the same types of statements. It asked mother’s counsel if there was something else that would be presented through their testimony. The mother’s counsel simply explained that he thought it was important for the court to hear that they loved their mother and wanted to be placed with her. The court acknowledged that would be their testimony and with its understanding that the two children did not want to appear, the court denied the request to call them.

In her initial brief, the mother does not argue that the court erred in failing to find that the children’s mental or physical condition or age made a court appearance against their best interest, in accordance with Florida Rule of Juvenile Procedure 8.255(b). That argument is not made until the reply brief and is thus too late. Nevertheless, we conclude that the error in refusing the live testimony is harmless, where the court accepted the proffered testimony. In its final judgment, the court noted that the children were bonded to their mother. The court concluded that “while growing up without their mother might be painful to J.G., I.J., and M.H., it is preferable to the instability and uncertainty that a relationship with the mother promises.” The court credited the proffered testimony of the children but made its own determination of their best interests. On this particular record, we conclude that the refusal to call the two children does not result in a miscarriage of justice.

Affirmed.

STONE and FARMER, JJ., concur.


text:
    FLORIDA DEPARTMENT OF CORRECTIONS, Petitioner, v. Maurice RICO, Respondent.
    No. 4D08-220.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.
    Carolyn J. Mosley, Tallahassee, for petitioner.
    Howard Finkelstein, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, Ft. Lauderdale, for respondent.
   PER CURIAM.

The Department of Corrections seeks certiorari review of a circuit court order directing it to award respondent gain time. As this court has recognized, the sentencing court lacks authority to award gain time to state prisoners, as this is a matter within the exclusive province of the Department of Corrections. See Fla. Dep’t of Corr. v. Martinez, 873 So.2d 537 (Fla. 4th DCA 2004); Crosby v. Harvey, 861 So.2d 102, 102 (Fla. 4th DCA 2003).

Therefore, we grant the petition for writ of certiorari and quash the circuit court’s order.

SHAHOOD, C.J., Stone and GROSS, JJ., concur.


author: VILLANTI, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Glenda F. O’HEARN, Respondent.
    No. 2D07-4184.
    District Court of Appeal of Florida, Second District.
    March 7, 2008.

      Lewis F. Collins, Jr., and Anthony J. Russo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Petitioner.
    Jason Mulholland of Mulholland Law, P.A., Tampa, Respondent.
   VILLANTI, Judge.

In this certiorari proceeding, State Farm seeks relief regarding two trial court orders entered in a statutory bad faith action: (1) the order denying its motion to dismiss O’Hearn’s complaint as premature and (2) the order compelling it to produce certain allegedly privileged documents. While the trial court departed from the essential requirements of the law in denying State Farm’s motion to dismiss, State Farm cannot show irreparable harm arising from the order denying dismissal. Therefore, we dismiss the petition to the extent it is directed to that order. However, because the trial court departed from the essential requirements of the law when it overruled State Farm’s objections to O’Hearn’s discovery request and because production of the requested documents will result in irreparable harm, we grant the petition to the extent it is directed to this discovery order and quash the trial court’s order requiring production of these documents at this time.

According to the limited record before this court, O’Hearn was involved in a hit- and-run auto accident on August 13, 2002, which allegedly resulted in her suffering injuries. O’Hearn subsequently filed a claim for uninsured motorist (“UM”) benefits under her auto policy with State Farm. At some point, State Farm offered O’Hearn $5000 to settle her UM claim. Apparently, O’Hearn rejected this settlement offer.

O’Hearn then filed a one-count complaint against State Farm asserting a claim for statutory bad faith under section 624.155, Florida Statutes (2002). In the complaint, O’Hearn alleged that State Farm had determined that the value of her claim was $5000; however, O’Hearn also alleged that had State Farm properly investigated her claim, “it would have determined that its value far exceeded $5,000.00.” In conjunction with the complaint, O’Hearn served a request for production of documents, requesting that State Farm produce numerous documents, including the contents of its claim and underwriting files.

State Farm moved to dismiss O’Hearn’s complaint, arguing that her bad faith claim was premature because the issues of liability and damages had not yet been determined. At a hearing on State Farm’s motion, State Farm cited long-standing Florida authority holding that a first-party bad faith action against an insurer is premature until the issues of liability and damages have been finally determined. See, e.g., Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla.1991). In response, O’Hearn contended that her claim was not premature because State Farm had admitted liability by making a presuit settlement offer and had determined the issue of damages by offering her $5000. O’Hearn cited no Florida case law for the proposition that the amount of an insurer’s presuit settlement offer constitutes a final determination of damages. Despite this, the trial court denied State Farm’s motion to dismiss. State Farm filed a timely petition for writ of certiorari directed to this order.

After its motion to dismiss was denied, State Farm filed objections to O’Hearn’s request for production of documents, arguing that the documents she requested were not discoverable until the issues of liability and damages had been finally determined. After a hearing, the trial court sustained State Farm’s objections to certain of the requests, but it overruled State Farm’s objections to producing its claim file and underwriting file, and it ordered State Farm to produce these documents. State Farm then filed an amended petition for writ of certiorari that sought review of this discovery order as well as the dismissal order.

The contours of this court’s review of a petition for writ of certiorari are well defined. To obtain a common-law writ of certiorari, the petitioner must establish that (1) the trial court departed from the essential requirements of the law, (2) the departure resulted in a material injury that will affect the remainder of the proceedings below, and (3) the injury cannot be corrected through any other means. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995); Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). The first element is directed to the merits of the petition, while the second and third elements constitute a jurisdictional test. Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). Thus, if the petitioner does not establish that the alleged injury cannot be corrected through a later appeal and thus is irreparable, certiorari jurisdiction will not lie and the petition must be dismissed. Id.

As to the order denying State Farm’s motion to dismiss, we agree with State Farm that the trial court departed from the essential requirements of the law. There is an abundance of case law that holds that a first-party bad faith claim does not accrue until there has been a final determination of both liability and damages in an underlying coverage claim. See, e.g., Vest v. Travelers Ins. Co., 753 So.2d 1270, 1276 (Fla.2000); Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617, 619 (Fla.1994), receded from on other grounds, State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 63 (Fla.1995); Blanchard, 575 So.2d at 1291. An allegation that an insurer has paid a portion, but not all, of the damages that it allegedly owes does not constitute a legally sufficient allegation that the amount of damages has been finally determined. GEICO Gen. Ins. Co. v. Hoy, 927 So.2d 122, 126 (Fla. 2d DCA 2006); Vanguard Fire & Cas. Co. v. Golmon, 955 So.2d 591, 594 (Fla. 1st DCA 2006). When a plaintiff does not and cannot allege that there has been a final determination of both the insurer’s liability and the amount of damages owed by the insurer, the plaintiffs bad faith claim is premature and should be either dismissed without prejudice or abated. Vest, 753 So.2d at 1276; Golmon, 955 So.2d at 595.

In this case, O’Hearn’s complaint alleges that State Farm offered to settle her UM claim for $5000. The complaint also alleges that O’Hearn’s damages far exceed this amount. Thus, on its face, O’Hearn’s complaint fails to allege that there has been a final determination of damages and instead affirmatively alleges that damages are still in dispute. O’Hearn’s contention that State Farm’s presuit settlement offer constitutes a legally sufficient determination of damages is contradicted by the reasoning underlying this court’s decision in Hoy. If, as Hoy explains, partial payment of the damages sought by the plaintiff does not constitute a final determination of damages, certainly the unaccepted presuit settlement offer made by State Farm to O’Hearn cannot constitute such a determination. Accordingly, because O’Hearn’s complaint establishes on its face that her bad faith claim has not yet accrued, the trial court departed from the essential requirements of the law when it denied State Farm’s motion to dismiss.

That said, however, an appellate court does not generally have certiorari jurisdiction to review an order denying a motion to dismiss even when the cause of action is one for first-party bad faith. See Federated Nat'l Ins. Co. v. Copeland, 932 So.2d 310, 311 (Fla. 2d DCA 2006); Progressive Consumers Ins. Co. v. Day, 869 So.2d 621, 622 (Fla. 1st DCA 2004); Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002); Hartford Accident & Indem. Co. v. U.S.C.P. Co., 515 So.2d 998, 1002 (Fla. 4th DCA 1987) (en banc). These bad faith cases follow the general rule that orders denying motions to dismiss are not properly reviewable by certiorari because the alleged injury can be remedied on direct appeal. See, e.g., Martin-Johnson, Inc., 509 So.2d at 1099-1100; Avis Rent-A-Car Sys., Inc. v. Blythe, 578 So.2d 489 (Fla. 5th DCA 1991). While we recognize that some courts have held that such orders are reviewable by way of certiorari in first-party bad faith actions, see, e.g., Golmon, 955 So.2d at 594-95; Progressive Select Ins. Co. v. Shockley, 951 So.2d 20, 20 (Fla. 4th DCA 2007), we follow this court’s reasoning in Copeland that the simple fact that the denial of a motion to dismiss results in a premature claim going forward does not, by itself, establish irreparable harm to the insurer. Therefore, because State Farm cannot establish that it will suffer irreparable harm as a result of the denial of its motion to dismiss, we dismiss the petition to the extent it is directed to that order.

Turning to the discovery order, however, we find that State Farm has established both a departure from the essential requirements of the law and irreparable harm. The Fifth District explained the proper analysis for addressing this type of order in Old Republic National Title Insurance Co. v. HomeAmerican Credit, Inc., 844 So.2d 818, 819-20 (Fla. 5th DCA 2003):

When reviewing the propriety of a discovery order by certiorari, “the applicable standard of review is whether the challenged order is a departure from the essential requirements of the law, which causes material injury throughout the law suit [sic], leaving the petitioner with no other adequate remedy to review the alleged erroneous order.” Beverly Enterprises-Florida, Inc. v. Ives, 832 So.2d 161, 162 (Fla. 5th DCA 2002) (citing Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995); Combs v. State, 436 So.2d 93 (Fla.1983)).
Under the facts and circumstances of this particular case, we find the discovery order departs from the essential requirements of the law. A cause of action for statutory bad faith pursuant to section 624.155(1)(b)1., Florida Statutes (2000), is premature unless there has been a determination of liability and extent of damages owed the insured under the first-party insurance policy. See Vest v. Travelers Ins. Co., 753 So.2d 1270, 1276 (Fla.2000). Hence, a party is not entitled to discovery of an insurer’s claim file or documents relating to the insurer’s business policies or practices regarding the handling of claims in an action for insurance benefits combined with a bad faith action until the insurer’s obligation to provide coverage has been established. See Liberty Mut. Ins. Co. v. Farm, Inc., 754 So.2d 865 (Fla. 3d DCA 2000) (holding that a discovery order in a bad faith action requiring disclosure of the insurer’s business practices was premature without a determination of the coverage issue); American Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d 1347 (Fla. 5th DCA 1998) (holding that in a bad faith action, when the issue of coverage has not been determined, it is a departure from the essential requirements of the law to order disclosure of the insurer’s claims file and the insurer’s claims handling manuals and materials); State Farm Fire & Cas. Co. v. Martin, 673 So.2d 518 (Fla. 5th DCA 1996); see also Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289 (Fla.1991).
Therefore, because Republic’s obligation to provide coverage has yet to be determined, the trial court departed from the essential requirements of the law in ordering production of Republic’s title claim litigation files and documents relating to its business policies and practices regarding the handling of claims, leaving Republic with no adequate remedy to review the erroneous order.

(Alteration in original.) This court applied the same reasoning in Hoy, in which we granted certiorari and quashed a discovery order that required production of the insurer’s claim file in a bad faith action when the extent of the insurer’s liability to the insured and the amount of damages owed was still in dispute. Hoy, 927 So.2d at 126; see also Gov’t Employees Ins. Co. v. Rodriguez, 960 So.2d 794, 795 (Fla. 3d DCA 2007) (granting certiorari and quashing a trial court’s order allowing production of the insurer’s claim file when the issues of coverage and damages had not yet been determined); Am. Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d 1347, 1348 (Fla. 5th DCA 1998) (granting certiorari and quashing an order permitting discovery in a bad faith action where coverage for the underlying claim had been previously determined but the insured’s claim for additional benefits meant that damages had not been established and thus discovery related to the insurer’s alleged bad faith was premature).

In this case, the trial court ordered State Farm to produce its entire underwriting file on O’Hearn’s automobile policy; all notes, minutes, memoranda and other documents relating to O’Hearn’s UM claim, including materials from State Farm’s attorneys; all adjuster notes, emails, statistical and financial data relating to O’Hearn’s UM claim; and all documents sent to or received from any other insurer relating to O’Hearn’s UM claim. These items, all of which are contained within either State Farm’s underwriting file or claim file, are not discoverable until the issues of State Farm’s liability for UM coverage and the amount of O’Hearn’s damages are finally determined. The fact that O’Hearn has chosen not to bring a breach of contract action to establish State Farm’s liability and the extent of her damages is irrelevant to our analysis. Until liability and damages are finally determined under the UM provisions of O’Hearn’s policy, O’Hearn is not entitled to the discovery she now seeks, and the trial court departed from the essential requirements of the law when it compelled that discovery. Improper production of these otherwise privileged and protected documents would cause material injury to State Farm that could not be corrected in a later appeal.

Accordingly, we grant State Farm’s petition for writ of certiorari to the extent it is directed to the trial court’s discovery order, and we quash the order requiring State Farm to produce the requested documents until there is a determination of liability and the extent of damages owed to O’Hearn under her UM policy.

Granted in part and dismissed in part.

STRINGER and CANADY, JJ., Concur.


text:
    Ronald W. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4113.
    District Court of Appeal of Florida, Second District.
    March 7, 2008.
   PER CURIAM.

We affirm without comment the postcon-viction court’s order denying Ronald W. Jackson’s Florida Rule of Criminal Procedure 3.853 motion for DNA testing, but we reverse and remand for the postconviction court to address his motion for postconviction relief pursuant to rule 3.850 filed on January 23, 2007.

Affirmed in part; reversed in part; and remanded.

STRINGER, KELLY, and VILLANTI, JJ., concur.


author: HAZOURI, J.

text:
    STATE of Florida, Appellant, v. Telvis RAMOS, Appellee.
    No. 4D06-4629.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellee.
   ON MOTION FOR CLARIFICATION/CORRECTION

HAZOURI, J.

We grant appellant’s motion for clarification/correction, withdraw our prior opinion, and substitute the following in its place.

The State of Florida appeals the trial court’s order granting Telvis Ramos’s motion to dismiss the information charging her with third degree grand theft on the ground that her prosecution was barred by the applicable statute of limitations. The trial court erroneously granted the motion. We reverse and remand for further proceedings.

Ramos was apprehended and arrested on the day the crime was committed, April 16, 1997. The state filed the information on May 6, 1997. Ramos was given notice of the date of her arraignment. At her arraignment on May 29, 1997, Ramos entered a plea of not guilty and was also declared indigent and appointed counsel. The state filed its discovery submission which it sent to her public defender on June 13, 1997. On July 10, 1997, Ramos did not appear at the pretrial hearing and the trial court issued a capias. The capias was executed when Ramos was arrested on July 28, 2006.

On November 9, 2006, Ramos filed a motion to dismiss arguing that, because the statute of limitations expired prior to commencement of prosecution, the information should be dismissed. After hearing argument as well as evidence regarding Ramos’s presence in Broward County during the nine-year time frame between the issuance of the capias and Ramos’s arrest, the trial court granted Ramos’s motion, reasoning that the state had failed to present evidence that it was diligent in its efforts to serve the capias.

Section 812.035(10), Florida Statutes (1995), is the statute of limitations applicable to a charge of grand theft. That section provides that “[n]otwithstanding any other provision of law, a criminal or civil action or proceeding under ss. 812.012-812.037 or s. 812.081 may be commenced at any time within 5 years after the cause of action accrues.... ” Section 775.15(5) states that “[a] prosecution is commenced when either an indictment or information is filed, provided, the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay.” (Emphasis added.)

After the information was filed, Ramos received “other process” in the form of the notice to appear at the arraignment. She was present at the arraignment and entered her plea of not guilty. Because Ramos received this other process within a month of the filing of the information, there was no delay and the prosecution was commenced well within five years of the date of the offense. See Young v. State, 784 So.2d 1249 (Fla. 1st DCA 2001) (after filing of information, notice to appear at arraignment and defense filing of waiver of formal arraignment and entry of plea was sufficient “other process” under section 775.15(5) to commence prosecution): see also Starling v. State, 799 So.2d 425 (Fla. 5th DCA 2001) (notice of pretrial conference and trial dates to defense counsel after information filed was sufficient “other process”); State v. Martinez, 790 So.2d 520 (Fla. 2d DCA 2001) (defendant’s attendance at arraignment after the information was filed was sufficient “other process” to commence prosecution).

Ramos’s prosecution was commenced well within the five-year statute of limitations period. We reverse the order granting Ramos’s motion to dismiss and remand for further proceedings.

Reversed and Remanded.

SHAHOOD, C.J., and TAYLOR, J., concur.


text:
    Christopher WINKELHOLZ, Petitioner, v. Al LAMBERTI, Sheriff of Broward County, Florida, and State of Florida, Respondents.
    No. 4D08-976.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2008.
    Emmanuel Simon, Lauderhill, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for respondent State of Florida.
   PER CURIAM.

Christopher Winkelholz petitions this court for a writ of habeas corpus. Winkel-holz is being held without bond on charges of grand theft and uttering a forged instrument. No motion for pretrial detention was filed, and the order does not include findings to support the denial. Consequently, we grant the petition and remand to the trial court to either provide findings to support the denial or set an expedited hearing to determine the issue of pretrial release or detention according to Rules 3.131 and 3.132 of the Florida Rules of Criminal Procedure. Lee v. State, 956 So.2d 1292 (Fla. 4th DCA 2007); Resendes v. Bradshaw, 935 So.2d 19 (Fla. 4th DCA 2006).

TAYLOR, HAZOURI and MAY, JJ., concur.


text:
    STATE of Louisiana v. Glynn JUNIORS, Jr.
    No. 2007-KP-2400.
    Supreme Court of Louisiana.
    Feb. 13, 2008.
   ORDER

After this court issued a per curiam on January 3, 2008, which directed the district court to recall the warrant of execution in this matter, it was learned that an order setting aside the warrant and providing for the appointment of counsel had been signed on November 20, 2007. Since defendant’s Application for Writ of Mandamus was unnecessary under these circumstances,

IT IS ORDERED that this Court’s action of January 3, 2008 is hereby recalled as unnecessary.

/s/ Pascal F. Calogero, Jr. Chief Justice, Supreme Court of Louisiana


author: THOMAS F. DALEY, Judge.

text:
    Stella CALLIS v. JEFFERSON PARISH HOSPITAL SERVICE, DISTRICT # 1 d/b/a West Jefferson Medical Center and/or West Jefferson General Hospital, Laboratory Corporation of America and ABC Insurance Company and XYZ Insurance Company.
    No. 07-CA-580.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Salvador G. Longoria, Michele Gaudin, Gaudin & Longoria, Orleans, LA, for Plaintiff/Appellee, Stella Callis.
    Edward P. Landry, David Lamm, Landry, Watkins, Repaske & Breaux, New Iberia, LA, for Defendant/Appellant, Laboratory Corporation of America.
    Peter J. Butler, T.A., Peter J. Butler, L.L.C., Gretna, LA, and Peter J. Butler, Jr., Michael C. Luquet, Ralph T. Rabalais, Lydia Habliston Toso, Breazeale, Sachse & Wilson, L.L.P., New Orleans, LA, for Defendant/Appellee, Jefferson Parish Hospital District No. 1, d/b/a West Jefferson Medical Center.
   Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and CLARENCE E. McMANUS.

THOMAS F. DALEY, Judge.

^Defendant, Laboratory Corporation of America (LabCorp), appeals the grant of two summary judgments in this slip and fall case. The first one was granted in favor of co-defendant and third-party plaintiff, West Jefferson Medical Center (WJMC), and against LabCorp and plaintiff, Stella Callis. The second was granted in favor of plaintiff, Stella Callis, against LabCorp on the issue of liability alone. We affirm the grant of summary judgment in favor of WJMC. We reverse the grant of summary judgment in favor of plaintiff, and remand for further proceedings.

According to the pleadings, plaintiff, Stella Callis, visited the LabCorp facility at West Jefferson Medical Center on June 2, 2003 for some blood tests. Plaintiffs petition alleges that she entered the room where the blood was to be taken, took a couple of steps, and slipped on a substantial amount of water on the floor. It was thereafter determined that the water came from an overflowing toilet in the bathroom located inside LabCorp’s suite. The overflow was caused by a bottle of “Bully” toilet bowl cleaner, placed in the tank of the toilet that had Rbecome wedged between the toilet tank and the floater, causing the toilet to run continuously. It was also determined that there was a mild stoppage in the bowl that contributed to the overflow. Plaintiff sued WJMC, Lab-Corp, and their respective insurers for her personal injuries.

WJMC filed an Answer and Third Party Demand. In the Third Party Demand, WJMC sought indemnification from Lab-Corp pursuant to the provision in their lease agreement.

On June 2, 2006, WJMC sought summary judgment against plaintiff and partial summary judgment against LabCorp, arguing that there was no negligence attributable to WJMC, and that LabCorp owed WJMC defense and indemnity under the provisions of their lease. Thereafter, plaintiff filed a Motion for Partial Summary Judgment against LabCorp, adopting the arguments in WJMC’s Motion for Summary Judgment against LabCorp. The two motions were heard on January 22, 2007. The trial court granted the plaintiffs Motion for Partial Summary-Judgment against LabCorp on liability alone, as well as WJMC’s Motion for Summary Judgment against plaintiff and its Motion for Partial Summary Judgment against LabCorp.

Plaintiff does not appeal the grant of WJMC’s motion against her. LabCorp appealed both the grant of WJMC’s motion and the grant of plaintiffs motion.

As this Court recently stated in Blount v. East Jefferson General Hosp., 04-407 (La.App. 5 Cir. 10/12/04), 887 So.2d 535, 537-538:

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966. Under the amended version of article 966, the initial burden continues to remain with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more |r,elements essential to the adverse party’s claim, action, or defense. The nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Id.
Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Whether a particular fact in dispute is material can only be determined in light of the substantive law applicable to the case.
Plaintiff asserts a claim under theories of both negligence and strict liability. Under the negligence standard, a hospital owes a duty to its visitors to exercise reasonable care to keep the premises in a safe condition commensurate with the particular circumstances involved; but the duty owed is less than that owed by a merchant. Under a negligence theory, plaintiff must also prove that the owner or custodian knew or should have known of the unreasonable risk of harm posed by the property. Under a theory of strict liability, the hospital is liable for defective things in its custody only upon a showing that it knew or, in the exercise of reasonable care, should have known of the defect which caused the damage and failed to correct it with reasonable diligence.
Thus, under either theory of liability, plaintiff has the burden to prove actual or constructive notice of defendant. In order to maintain a claim for damages caused by the condition of things within the care and custody of a public entity, the complainant has the burden of proving that the public body had actual or constructive notice of the hazard and had a reasonable opportunity to remedy the condition, but failed to do so. La.R.S. 9:2800(B). Constructive notice is defined as “the existence of facts which infer actual knowledge.” La.R.S. 9:2800(C). Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. The plaintiff bears the burden at trial of proving actual or constructive notice, (cites omitted.)

LabCorp first argues that the trial court should not have ruled upon plaintiffs Motion for Partial Summary Judgment against LabCorp, as the matter was not before the court for a decision. LabCorp argues that plaintiffs motion was brought under the premise that plaintiffs counsel had not received any opposition from Lab-Corp that would indicate that it did not have a dispute as to its liability, |fibut if LabCorp did provide an opposition that would create a material issue of fact, then plaintiff would withdraw its motion against LabCorp.

We find that plaintiffs Motion for Partial Summary Judgment was clearly before the court. We reverse, however, because plaintiff did not present any evidence regarding LabCorp’s negligence. As the mover and the party who bears the burden of proof at trial, plaintiff, in a Motion for Summary Judgment, bears the burden of proof to show that he is entitled to judgment as a matter of law. La. C.C.P. art. 966(C)(2).

LabCorp argues that the trial court erred in granting plaintiffs motion because Callis did not provide any evidence in her motion regarding LabCorp’s liability. Plaintiff responds that in her motion, she incorporated WJMC’s complete Motion for Summary Judgment, its supporting proof, and its Memorandum so that all factual allegations could be heard at one time since the issues were conjoined and related.

Plaintiff argues that the evidence presented in WJMC’s motion and incorporated into her motion constituted a prima facie case against LabCorp. We disagree. The evidence presented by WJMC in its motion (which is summarized later in this opinion) establishes the lack of negligence/fault on the part of WJMC. This is not the same thing as presenting evidence of LabCorp’s negligence. Accordingly, we must reverse the grant of plaintiffs Motion for Summary Judgment, finding that she did not bear her burden of proof therein.

Next, we consider WJMC’s Motion for Summary Judgment. WJMC moved for summary judgment on the main demand of the plaintiff, and partial summary judgment on its third party demand for defense and indemnity against LabCorp. In |7the Motion, WJMC argued the plaintiff would have to prove that WJMC’s negligence caused her accident, and further, that in absence of evidence of negligence on the part of WJMC, it is entitled to a complete defense and indemnity from Lab-Corp pursuant to the lease with LabCorp.

WJMC’s lease with LabCorp provides that housekeeping duties within LabCorp’s suite, which included cleaning the toilets, is to be provided by WJMC and is a service for which LabCorp pays WJMC. This lease also provides that lessee, LabCorp, shall indemnify, defend, and save harmless WJMC from and against any and all claims, demands and causes of action for injuries to persons of any nature upon the leased premises, unless such arises from the negligence of the Lessor WJMC.

WJMC presented evidence that the bathroom where the toilet was located was entirely within the suite LabCorp leased, and was not accessible to the general public. It also presented deposition testimony that the Bully product that caused the overflow is not a product used by WJMC, its maintenance department, or its housekeeping subcontractor, and that it had no notice that the toilet in question was overflowing or stopped up prior to plaintiffs accident.

WJMC presented the deposition testimony of five individuals. Latoia Petty, employed by WJMC as Administrative Secretary of the Property Management Department, testified at her deposition that she was the first WJMC employee on the scene. She observed the “Bully” toilet sanitizer in the tank and stated that it was not a product used by either the WJMC maintenance department or their housekeeping contractor. She testified that she looked at the housekeeping contract with Tujay’s, which provides that Tujay’s does not use any products that color the toilet water. (Bully was described as a product that turns the toilet water blue.) She stated that a LabCorp employee told her that they (LabCorp) use the | «Bully in connection with urine testing. Petty was unable to name this employee, but described her.

Mr. David Orgeron is a maintenance employee at WJMC. He responded to Petty’s call to report to the LabCorp suite. He observed Callis lying on the floor in the puddle of water. He testified that the maintenance department performs repairs, but does not do any cleaning. He stated that no one called him or the maintenance department to report the overflowing toilet prior to the accident. Orgeron testified that he turned the water off to the toilet, pulled off the tank cover, and observed the empty bottle of Bully wedged between the tank and the float. He also testified that the toilet was stopped up with some unknown object that cleared easily when he plunged it. He opined that since the stoppage cleared easily, it was mostly likely caused by toilet tissue, though he did not see it. He stated that he used a wet-vac to clean up the water, which he opined was approximately 25-30 gallons.

Mr. James O’Brien is the owner of Tu-jay’s Janitorial Services, WJMC’s housekeeping contractor. He testified in deposition that pursuant to Tujay’s contract with WJMC, his company did clean and disinfect the bathrooms in the medical office building, including the bathroom in the LabCorp suite. He stated that he has never used a subcontractor. O’Brien was adamant that his company does not use the Bully product or any type of product in the tank of the toilets.

WJMC presented the deposition testimony of Salvador J. Munfra, director of security at WJMC. He testified that he was called to the scene as a result of the bottle of Bully being found in the tank of the toilet. He testified that the water on the floor was clear, and was “more” than a puddle. He conducted an investigation to find out where the Bully came from, since it was not a product used at WJMC. | flHe contacted O’Brien with Tujay’s to find out if they used the product; O’Brien confirmed that they did not, and further stated that it was not available commercially. Munfra called the purchasing department at WJMC to learn if WJMC bought this product, and was told no. In addition, he added that most of the toilets at WJMC do not have tanks.

Additionally, all deponents testified that this bathroom was located entirely within LabCorp’s suite and was not accessible by the general public.

In summary, WJMC’s evidence established that LabCorp leased this space from WJMC, and that all time pertinent to his accident, LabCorp had control of the suite. The deponents established that this bathroom is not accessible to the general public, but only to LabCorp employees and customers. The testimony was consistent and established that a bottle of Bully toilet sanitizer was wedged between the tank and the float, causing it to run continuously and overflow to the degree that it spread outside of this bathroom into the suite. Bully is not a product used by WJMC maintenance, who does not perform any cleaning of toilets, and is not used by WJMC’s housekeeping contractor Tujay’s, who does clean and sanitize the bathrooms in this suite. WJMC maintenance department, who was responsible for repairing toilets, was never called by LabCorp to report the overflowing toilet prior to Mrs. Callis’s accident.

This evidence supports WJMC’s contention that it was not negligent, it did not place the bottle of Bully in the toilet tank, nor did it have actual or constructive notice of the overflowing toilet prior to the accident.

In opposition to both WJMC’s and plaintiffs motions, LabCorp submitted the affidavit of Lynn Cotoya, LabCorp’s Account Executive. Therein, she attested that she was present at LabCorp’s WJMC facility at the time of plaintiffs accident on June 2, 2003. She stated that it is not LabCorp’s policy and procedure to use ImBully at the WJMC facility because drug screens are not performed at that location, and that “to the best of her knowledge, no employee of LabCorp used “Bully” cleaner at the WJMC facility at the time of this accident.” LabCorp also presented the depositions of the same WJMC employees WJMC used to support its motion. Lab-Corp also attached Answers to Interrogatories. In Answer No. 8, LabCorp states that it is unknown to LabCorp at this time who placed the cleaner (Bully) in the tank. In Answer No. 9, LabCorp stated that it does not use the Bully product. This Answer contrasts with Cotoya’s affidavit, which suggests that LabCorp does use this product at other LabCorp facilities where drug screens are performed.

It its opposition to WJMC’s Motion for Summary Judgment and on appeal, Lab-Corp argues that WJMC’s evidence in support of the Motion for Summary Judgment does not dispose of the issue of material fact of who put the Bully in the toilet.

WJMC’s evidence need not dispose of the issue of exactly who put the Bully in the tank; it need only establish that WJMC was not negligent. The evidence offered by WJMC did establish that no WJMC employee, nor their housekeeping contractor, placed the Bully in the tank. It also established that WJMC had no actual or constructive notice of the overflowing toilet prior to the accident. Accordingly, the trial court did not err in granting judgment in WJMC’s favor on both its Motion for Summary Judgment on plaintiffs claim and as to its Motion for Partial Summary Judgment regarding LabCorp’s liability to defend and indemnify it.

AFFIRMED IN PART, REVERSED IN PART; REMANDED.

      . The case law is replete with instances of litigants adopting the summary judgment motions of other litigants. See, for example, Ulmer v. Frisard, 06-377 (La.App. 5 Cir. 10/31/06), 945 So.2d 85; Jones v. Gatusso, 00-1654 (La.App. 5 Cir. 2/14/01), 782 So.2d 11.

      . Apparently the Bully is used to discolor the water blue so that urine tests cannot be falsified using water from the toilet.