author: DAVIS, Judge.

text:
    Yovall AUGOSHE, Appellant, v. Debra LEHMAN, Appellee.
    No. 2D05-2034.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2007.

      Leslie Telford of Klaus & Telford, P.A., Sarasota, for Appellant.
    Edward B. Sobel of Edward B. Sobel, P.A., Bradenton, for Appellee.
   DAVIS, Judge.

Yovall Augoshe, the Husband, challenges the final judgment of dissolution of marriage and the amended final judgment as to unresolved financial issues, child support, marital assets, and debts. We affirm in part and reverse in part.

The parties were married on April 30, 2000, in New York. Two children were born during the marriage, one of whom was born after the parties separated. Debra Lehman, the Wife, filed the petition for dissolution of the parties’ marriage on December 23, 2003. The trial court bifurcated the proceedings due to the rotation of the initial judge from the family division. The first proceeding resulted in the final judgment of dissolution that resolved the child custody/visitation issues. The only provisions of that judgment challenged by this appeal are the requirements that the Husband provide for the children’s health insurance and maintain life insurance to secure the child support obligation. The successor judge received all the testimony and evidence related to the financial issues and issued the amended final judgment. The Husband challenges several findings of that judgment.

At the time of their marriage, both the Husband and the Wife owned substantial assets individually. The Husband owned apartments in New York with a net value of $900,000, which he managed for a source of income. Additionally, the Husband taught in a private school. The Wife owned securities and retirement plans and was employed as a human resources officer. When they married, the parties continued to maintain their personal finances separately; however, they did open a joint account to which they each contributed $1200 to $1400 monthly for the payment of their joint expenses.

Two years into the marriage, the Husband purchased a motel in Bradenton, Florida. The actual purchaser was the Husband’s subchapter S corporation, which he had formed for this purpose and in which he was the sole shareholder. The Husband borrowed against his apartments in New York to obtain the down payment, and he financed the rest through a purchase money mortgage, which he signed in his individual capacity. Although the Wife initially remained in New York, she later joined the Husband in Florida, where she did not undertake outside employment but became a “stay-at-home mom.” The parties resided at the motel and took about $150 a week from its operation for marital expenses.

Because the motel was in poor condition at the time of the purchase, the Husband took additional loans to renovate the property, which were collateralized by the New York apartments. The Husband’s sole sources of income during the remainder of the marriage consisted of the rental income from the apartments in New York and the revenue generated by the operation of the motel.

The Husband raises four issues on appeal. First, he challenges the trial court’s determination of the amount of child support that he is required to pay. We review this finding for an abuse of discretion. See Davis v. Davis, 371 So.2d 591, 593 (Fla. 2d DCA 1979). Although the testimony in the record on appeal is conflicting as to the Husband’s income, our review of the record shows that the trial court’s finding regarding the Husband’s income is supported by competent, substantial evidence. See Greer v. Greer, 438 So.2d 535 (Fla. 2d DCA 1983). Although the Husband may disagree with the accuracy of the Wife’s evidence on this issue, we cannot say that the trial court abused its discretion in determining the amount of the Husband’s income, and we affirm that finding.

One of the factors underlying the trial court’s child support award must be clarified. In calculating the amount of child support to be awarded to the Wife in the amended final judgment, the trial court credited the Wife with an amount for the cost of health insurance. However, the initial final judgment had ordered the Husband, not the Wife, to pay for the children’s health insurance. We therefore remand to the trial court with directions to either delete the health insurance requirement in the final judgment or modify the amended final judgment to remove the Wife’s health insurance credit. We affirm the other issues related to the determination of child support without comment.

As a related issue, the provision in the final judgment requiring the Husband to maintain $100,000 of life insurance coverage to secure the child support obligation must be reversed. There was no evidence presented regarding the cost of such coverage, the availability of such coverage, or the Husband’s ability to provide such coverage. Because the trial court erred in making such a finding without an evidentiary basis, we reverse this provision of the final judgment and remand for an evidentiary hearing on the issue. See Burnham v. Burnham, 884 So.2d 390 (Fla. 2d DCA 2004).

Next, the Husband challenges the trial court’s finding that the motel was a marital asset. The general rule is that property that is lawfully acquired after the marriage and is enhanced by marital labor and funds is marital property. See Bowen v. Bowen, 543 So.2d 1284, 1285 (Fla. 2d DCA 1989). The crucial inquiry is “whether the property was legally and beneficially acquired by either or both of the parties during the marriage.” Id. at 1286 (citing Buttner v. Buttner, 484 So.2d 1265, 1266-67 (Fla. 4th DCA 1986)). Because the motel here was acquired during the marriage and was enhanced by marital labor, it would properly be classified as marital property.

The Husband argues, however, that because the financing for the motel was provided by nonmarital funds, his purchase of the motel was simply an exchange of one nonmarital asset for another, especially since he intended to pay his indebtedness on the loans with revenue generated by the motel. We disagree. In finding the motel to be marital property, the trial court correctly observed that even though nonmarital funds were used to finance the purchase, the use of those funds did not constitute an exchange of the nonmarital New York property for the motel because the Husband would continue to own both the New York property and the motel after the motel financing debt was repaid. The trial court also aptly noted that the Husband created the subchapter S corporation to purchase the motel during the marriage and that the Husband was the sole shareholder of that corporation. Finally, the trial court observed that the Wife lived and worked at the motel for a time before the separation and thus expended marital labor to enhance the value of the property. Accordingly, the trial court’s determination that the motel was marital property was correct, and we affirm as to this issue. See Steiner v. Steiner, 746 So.2d 1149, 1150 (Fla. 2d DCA 1999) (“Marital assets are those acquired during the marriage, created or produced by the work efforts, services, or earnings of one or both spouses.”).

However, even if the trial court erred in finding the motel a marital asset, such an error would not require reversal here because the trial court did not include the motel property in the plan of equitable distribution. Rather, the trial court determined the appreciation in the value of the motel by subtracting the purchase price from the current value of the motel, as determined by the court, and then distributed the appreciation equally to the parties. Accordingly, even if the motel itself was nonmarital property, the appreciation was a marital asset. See Yitzhari v. Yitzhari, 906 So.2d 1250 (Fla. 3d DCA 2005) (stating that the appreciation of a nonmari-tal asset resulting from the efforts of either party during the marriage is a marital asset subject to equitable distribution). The Husband testified that he spent considerable effort in the remodeling and managing of the motel from the date of purchase through the date of separation. The Wife also testified that upon moving to Florida, she lived at the motel with the Husband and helped in the operating of the business.

On the other hand, the Husband presented no evidence as to what portion, if any, of the appreciation should be attributable to passive market conditions. Therefore, the trial judge was correct to equitably divide the appreciation in the value of the motel. See O’Neill v. O’Neill, 868 So.2d 3, 5 (Fla. 4th DCA 2004) (“[Ojnce it is established that marital labor was used, the burden falls to the party claiming that the increase is nonmarital to establish whether any part of the increase was the result of passive market conditions and, thus, is exempt from equitable distribution.”). Because the record shows that marital labor was involved in the improvements and there was no evidence that the appreciation was attributed to passive market conditions, we conclude that the trial court was correct to distribute the appreciation in the value of the motel as a marital asset.

In the third issue, the Husband contests the trial court’s valuation of the motel, challenging both the amount and the date of valuation set by the trial court. We review the determination of the value of the motel for an abuse of discretion. See Polley v. Polley, 588 So.2d 638, 642 (Fla. 3d DCA 1991). The Wife presented an expert who provided the trial court with two estimated valuations. He explained that when applying the comparable sales approach, he came up with a value of $4,400,000 but that when he used the income approach, the resulting value was $4,310,000. The only evidence of valuation provided by the Husband was proof of the $2,842,858 purchase price.

Despite the above valuations, the trial court determined that the value of the motel in June 2004 was $3,576,429. Our review of the record fails to disclose any competent evidence to support this finding. The only credible explanation for such valuation is found in the Husband’s observation that $3,576,429 is the exact midpoint between what the Husband presented as the purchase price and what the Wife’s expert valued the motel at using the income approach. This is an improper method of valuation. The trial court’s valuation must be based on competent evidence and cannot be determined by “split[ting] the difference.” Solomon v. Solomon, 861 So.2d 1218, 1221 (Fla. 2d DCA 2003). Accordingly, we must reverse the trial court’s determination of the value of the motel and remand to the trial court with directions to enter a proper valuation based on the evidence that was presented at trial.

The Husband also argues that the trial court erred in selecting the date of valuation. All of the other marital assets were valued as of the date of separation; however, the date of valuation for the motel was set six months later. Our review of the trial court’s decision in this matter is governed by an abuse of discretion standard. See § 61.075(6), Fla. Stat. (2003) (“Different assets may be valued as of different dates, as, in the judge’s discretion, the circumstances require.”). The difference between the date of separation and the date chosen by the trial court is a period of fewer than six months. Although the Husband complains that the trial court should have selected the separation date it used for valuation of other marital assets, the Husband failed to present any testimony as to the value of the motel as of the date of separation. The only evidence he presented regarding valuation was evidence of the purchase price and the amount he had invested for renovations. Since the only expert opinion as to the value of the property came from the Wife and the date of that valuation happened to be within six months of the date of separation, we cannot say that it was unreasonable for the trial court to adopt that valuation date. See Perlmutter v. Perlmutter, 523 So.2d 594 (Fla. 4th DCA 1987). Accordingly, we affirm the trial court’s determination of the appropriate valuation date.

In the fourth issue, the Husband argues that in awarding the Husband a fifty percent share of the marital assets, the trial court failed to consider the statutory factors contained in section 61.075. The Husband argues that if the appreciation in the value of the motel property is a marital asset, he is entitled to more than a fifty percent share because, as the principal in the purchase and operation of the motel, he contributed more than fifty percent to the appreciation of that asset. By contrast, the Wife did not join him at the motel until later and neither invested liquid assets nor pledged other assets to obtain renovation funding. However, in view of the abuse of discretion standard that we are obliged to apply in our review of this issue, we cannot conclude, based on this record, that no reasonable person would have reached this decision based on these facts. See Pomeranz v. Pomeranz, 901 So.2d 895 (Fla. 4th DCA 2005). Since we determine that the trial court did not abuse its discretion, we affirm the equitable distribution contained in the amended final judgment.

In conclusion, we affirm the trial court’s determination regarding the amount of the Husband’s income for purposes of calculating child support; we remand for clarification of which party must pay for the children’s health insurance; we remand for an evidentiary hearing regarding the requirement that the Husband maintain life insurance; we affirm the trial court’s determination that the appreciation in the value of the motel is a marital asset; we reverse the trial court’s valuation of the motel and remand with instructions to reconsider the value of the motel based on the evidence that was presented at trial and to modify the equitable distribution plan accordingly; we affirm the trial court’s selection of the date of valuation of the motel; and we affirm the equitable distribution of assets except as noted herein.

Affirmed in part, reversed in part, and remanded with instructions.

CANADY, J., and CRENSHAW, MARVA L., Associate Judge, Concur.

      . If one adds $4,310,000 and $2,842,858 and then divides that sum by two, the result is the exact value determined by the trial court.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Christine Williams HALL, Appellant, v. Randall Creig HALL, Appellee.
    No. 2D04-2550.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2007.

      Christine Williams Hall, pro se.
    No appearance for Appellee Randall Creig Hall.
   STRINGER, Judge.

Christine Williams Hall (“the Wife”) seeks review of the final judgment of dissolution of marriage, which dissolved her marriage to Randall Creig Hall (“the Husband”). The Wife argues that the trial court erred in using comparative market analyses to value the real property in this case and abused its discretion in awarding the Husband a twenty-five percent interest in the property located at 507 1st Avenue NW. We reject the Wife’s first argument without discussion. However, we agree that the trial court abused its discretion in awarding the Husband a twenty-five percent interest in the property at 507 1st Avenue NW.

The parties were married for only five years and had no children together. The main issue for resolution by the trial court was the equitable distribution of four parcels of real estate in Ruskin and Plant City. Of the four parcels, the trial court found only one to be marital property. However, the trial court also awarded the Husband an interest in the Wife’s nonmar-ital property located at 507 1st Avenue NW. The court awarded the Husband one-half the amounts paid from marital funds toward the mortgage in addition to twenty-five percent of the value of the property based upon the Husband’s marital labor.

On appeal, the Wife argues that the trial court abused its discretion in awarding the Husband a twenty-five percent interest in the property at 507 1st Avenue NW based on his marital labor. At trial, the Husband testified without explanation that the value of his enhancements to the property, which the court determined was valued at $165,000, was $74,000. Counsel for the Husband argued to the trial court that the Husband’s marital labor entitled him to a twenty-five percent interest in the property-

The trial court found that the Husband “did substantial remodeling” to the home located on the property by adding a master bedroom, master bathroom, and a three-car garage and performing various electrical work and interior remodeling. The court stated that it was “unable to determine an exact monetary sum, based on the evidence” of the Husband’s marital enhancements to the property, so it accepted counsel’s argument that the Husband was entitled to a twenty-five percent interest in the property.

Section 61.075(5)(a)(2), Florida Statutes (2001), includes in the definition of “marital assets” “[t]he enhancement in value and appreciation of nonmarital assets resulting ... from the efforts of either party during the marriage.” In distributing such a marital asset, the court is required to make specific findings regarding the value of the enhancement and appreciation during the marriage, including which portion of that enhanced value is attributable to marital labor. Martin v. Martin, 923 So.2d 1236, 1239 (Fla. 1st DCA 2006).

When improvements are made to real property, the court should make findings regarding the current value of the property and the value of the property prior to the marital enhancements. Id. The court should then make findings regarding the amount of the appreciation that was attributable to the marital enhancements. Id.; see also Gill v. Gill, 632 So.2d 226, 228 (Fla. 2d DCA 1994) (reversing and remanding for court to determine what part of a business’s enhancement in value was due to marital labor and to equitably distribute it).

In this case, the trial court found the property at 507 1st Avenue NW to be worth $165,000, but did not make any findings regarding the value of the property prior to the marital enhancements. Moreover, the court did not make any findings regarding the amount of the appreciation of the property that was attributable to the Husband’s marital labor. Instead of awarding the Husband an interest in the appreciation of the value of the property due to marital labor, the court awarded the Husband an interest in the value of the entire property.

Accordingly, the trial court abused its discretion in awarding the Husband a twenty-five percent interest in the property located at 507 1st Avenue NW. We therefore reverse the equitable distribution scheme; we affirm the dissolution of the marriage. On remand, the court should make findings regarding appreciation of the value of the property due to the Husband’s marital labor. The court should then reconfigure the equitable distribution scheme to include the enhancement in value as a marital asset. See Pinder v. Pinder, 750 So.2d 651, 653 (Fla. 2d DCA 1999); Gill, 632 So.2d at 227. The court may take additional evidence if necessary to determine the value of the marital asset. See Barabas v. Barabas, 923 So.2d 588, 590-91 (Fla. 5th DCA 2006); Burke v. Burke, 864 So.2d 1284, 1285 (Fla. 1st DCA 2004).

Affirmed in part; reversed in part; and remanded.

CASANUEVA and KELLY, JJ., concur.


author: WHATLEY, Judge.

text:
    D.B.A., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4774.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2007.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Joseph Lee, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

D.B.A. appeals his adjudication of delinquency for the offense of possession of marijuana. He argues that the trial court erred in denying his dispositive motion to suppress, and the State agrees. We reverse.

At the hearing on D.B.A.’s motion to suppress, Deputy Vidal testified that he was dispatched to a burglary in progress. He was advised that a caller stated that a black male wearing all black clothing was in front of her apartment banging on the door, attempting to enter. When the deputy arrived, he observed D.B.A. dressed in all black up next to the apartment door. Deputy Vidal directed D.B.A. to face away from him and show him his hands. D.B.A. turned away from the deputy and put his right hand in his right pants pocket. The deputy grabbed D.B.A.’s right hand, put him in a corner, and handcuffed him. Deputy Vidal then put his hand in D.B.A.’s right pocket and pulled out a baggie of a substance that later tested positive for marijuana.

In arguing that the marijuana should be suppressed, D.B.A. asserted that while Deputy Vidal had a reasonable suspicion to detain him, he did not have probable cause to search him. We agree. The Florida Stop and Frisk Law, § 901.151(5), Fla. Stat. (Fla.2006), authorizes a limited search to disclose a dangerous weapon where an officer has probable cause to believe that the detainee is armed with a dangerous weapon. This limited search may not go beyond a patdown of the detainee’s outer clothing. Winters v. State, 578 So.2d 5, 6 (Fla. 2d DCA 1991). Only if an officer reasonably believes that an object he feels during a patdown is a weapon may he seize the object. Id. at 6-7. See also Frazier v. State, 789 So.2d 486, 488 (Fla. 2d DCA 2001); Thompson v. State, 555 So.2d 970, 971 (Fla. 2d DCA 1990).

Deputy Vidal testified that for officer safety reasons he searched D.B.A.’s right pocket because instead of complying with his command to show him both of his hands, D.B.A. put his right hand in his pants pocket. If the deputy had probable cause at that point to believe that D.B.A. was in possession of a dangerous weapon, the Florida Stop and Frisk Law only authorized him to conduct a patdown for weapons. Because he did not conduct a patdown and feel what he reasonably believed was a dangerous weapon, the search was unlawful, and the dispositive motion to suppress should have been granted. Accordingly, we reverse D.B.A.’s adjudication of delinquency and remand with directions that he be discharged.

Reversed and remanded with directions.

NORTHCUTT, C.J., and ALTENBERND, J., Concur.


author: PER CURIAM.

text:
    Shane J. ACKERMANN, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0059.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2007.

      Shane Ackermann, pro se, Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion, in which he asserts that he was improperly sentenced to drug offender probation although none of the underlying convictions were for offenses contained within chapter 893, Florida Statutes (2001). A defendant may not be sentenced to drug offender probation unless he has been convicted of an enumerated chapter 893 offense or he has specifically agreed to such probation in a plea agreement. See Parker v. State, 839 So.2d 736, 737 (Fla. 1st DCA 2003); A.D.W. v. State, 777 So.2d 1101, 1104 (Fla. 2d DCA 2001) (stating that a plea agreement is a contract and a party may waive any right to which he is legally entitled).

We therefore reverse the trial court’s order and remand for the court to attach records conclusively refuting the appellant’s claim or, in the alternative, to resen-tence the appellant without the drug offender probation.

REVERSED AND REMANDED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


author: HAZOURI, J.

text:
    GARNAC GRAIN CO., INC., a New York corporation, Appellant, v. Luis Andres Olivares MEJIA and Holly Ana Rincon De Olivares, individually, jointly and severally, Appellees.
    No. 4D06-4035.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2007.

      Carlos E. Sardi and Richard Sarafan of Genovese Joblove & Battista, P.A., Miami, for appellant.
    Daniel E. Vielleville and Pedro J. Martinez-Fraga, of Greenberg Traurig, P.A., Miami, for appellees.
   HAZOURI, J.

Appellant, Garnac Grain Co., Inc. (“Gar-nac”), appeals the trial court’s dismissal with prejudice, “pursuant to the authority governing parallel proceedings and the principle of international comity[,]” of its action against Appellees, Luis Andres Oli-vares Mejia and Holly Ana Rincon de Oli-vares (“the Olivareses”). We reverse and remand.

In June 2001, Garnac filed suit in Venezuela against the Olivareses and other parties, alleging causes of action for breach of contract, breach of a personal guaranty, and damages, arising out of the Olivareses’ execution of a personal guaranty purported to secure any and all obligations incurred by two Venezuelan corporations and one Aruban corporation. In January 2005, the Venezuelan lower court found the claims against the Olivareses to be without merit. On appeal in August 2005, the Venezuelan appellate court rejected Gar-nac’s claims against the Olivareses. In March 2006, Venezuela’s highest court issued a decision denying Garnac any relief due to a procedural deficiency in its appeal.

On January 27, 2006, prior to the issuance of the decision of Venezuela’s highest court, Garnac filed a complaint against the Olivareses in Broward County circuit court. The Olivareses are residents of Broward County. Garnac alleged in its complaint that the Olivareses executed and delivered a personal guaranty in favor of Garnac for all of the obligations assumed or to be assumed in the future by the corporations at issue. Garnac alleged that it “extended credit and carried on business dealings with these foreign corporations who, ultimately in mid-2001, defaulted in their obligations to [Garnac] by failing to pay the amounts then properly due and owing to [Garnac] totaling, $5,833,732.89 as of June 1, 2001.” Garnac claimed that it provided the Olivareses with the full particulars of the amounts unpaid and overdue from the foreign corporations and made a demand upon the Olivareses for payment in accordance with the personal guaranty to no avail.

On March 14, 2006, the Olivareses filed a motion to dismiss the complaint, or in the alternative, to stay the action on the grounds of international comity to a parallel proceeding in Venezuela and forum non conveniens. The Olivareses contended that Garnac “has been litigating the identical issues raised in this lawsuit, and against the same parties, in Venezuela for over four (If) years.” (emphasis in original). They argued further that Venezuela is a more adequate and superior forum for litigating this action. The Olivareses argued that the complaint should be dismissed without prejudice to re-filing in Venezuela. After a hearing, the trial court dismissed Garnac’s motion with prejudice “pursuant to the authority governing parallel proceedings and the principle of international comity.”

In Kreizinger, P.A. v. Schlesinger, P.A., 925 So.2d 431 (Fla. 4th DCA 2006), this court explained:

The standard of review of orders granting motions to dismiss with prejudice is de novo. MEBA Med. Benefits Plan v. Lago, 867 So.2d 1184, 1186 (Fla. 4th DCA 2004). “In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.” Id. A court may not go beyond the four corners of the complaint and must accept the facts alleged therein as true. Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 494 (Fla. 4th DCA 2001).

Kreizinger, P.A., 925 So.2d at 432-33.

We conclude that the trial court erred in dismissing Garnac’s action with prejudice on the basis of “parallel proceedings and international comity” because it essentially gave res judicata effect to the Venezuelan action where the Olivareses failed to follow the procedures set forth in Florida’s Uniform Out-of-Country Foreign Judgment Recognition Act (“the Act”) to have the Venezuelan judgment recognized in Florida. See § 55.601, et. seq., Fla. Stat. (2006). Section 55.604, Florida Statutes (2006), outlines specific procedures for the “recognition and enforcement” of foreign judgments in Florida’s courts. § 55.604, Fla. Stat. (2006). The Olivareses did not follow these procedures to seek court recognition of the Venezuelan judgment because they mistakenly characterized the proceedings as “pending” for the purposes of affording comity, rather than “final” for the purposes of seeking to bar Garnac’s present action on the basis of res judicata and/or collateral estoppel, a view also adopted by the trial court in its order. Further, section 55.603, Florida Statutes (2006), which states that the Act “applies to any out-of-country foreign judgment that is final and conclusive and enforceable where rendered, even though an appeal therefrom is pending or is subject to appeal,” indicates that the Act was applicable in this case at the time Garnac filed its complaint and when the Olivareses filed their motion to dismiss, as the Venezuelan trial court had already rendered its final decision rejecting Garnac’s claims.

Moreover, where, as here, the basis for res judicata or collateral estoppel does not appear on the face of the complaint, those grounds cannot be determined by way of a motion to dismiss. See Fla. R. Civ. P. 1.110(d) (listing res judicata and collateral estoppel as affirmative defenses); Norwich v. Global Fin. Assocs., LLC, 882 So.2d 535, 537 (Fla. 4th DCA 2004) (citation omitted) (holding “[wjhile the defenses of res judicata and collateral estoppel may be resolved through a motion for summary judgment, the trial court erred when it ventured outside the four corners of the complaint, took judicial notice of the final judgment of dissolution of marriage, and dismissed the complaint with prejudice”); Palmer v. McCallion, 645 So.2d 131, 133 (Fla. 4th DCA 1994) (recognizing that “Mes judicata and collateral estoppel are affirmative defenses that ordinarily must be pled in an answer or similar pleading”).

Accordingly, we reverse and remand for proceedings consistent with this opinion.

Reversed and Remanded with Directions.

KLEIN, J. and METZGER, ELIZABETH A., Associate Judge, concur.


text:
    Jose Luis Sanchez VASQUEZ and Arnulfo Sanchez Hernandez, Appellants, v. SORRELLS GROVE CARE, INC.; Sorrells Brothers Packing Co., Inc; and J. Felix Ramos, Appellees.
    No. 2D06-3359.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2007.
    Susan W. Fox of Fox & Loquasto, P.A., Tampa; Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee; and John T. Kennedy of The Injury Law Offices of John T. Kennedy, Stuart, for Appellants.
    Alan J. Landerman of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Appellees.
   DAVIS, Judge.

Jose Luis Sanchez Vasquez and his father, Arnulfo Sanchez Hernandez (collectively “Appellants”), challenge the final summary judgment entered in favor of Sorrells Grove Care, Inc. (“Grove Care”), Sorrells Brothers Packing Company, Inc. (“Packing Company”), and J. Felix Ramos. The trial court concluded that Sanchez Vasquez, as the plaintiff below, had made an election of remedies when he settled with the workers’ compensation carrier and was therefore precluded by law from seeking further relief in a tort claim action. Because the record does not support the trial court’s finding that Sanchez Vasquez made an election of remedies, we reverse.

At the time of the incident in question, Sanchez Hernandez was an employee of Packing Company. Sanchez Vasquez, Sanchez Hernandez’s seventeen-year-old son, was in the grove where Sanchez Hernandez was working when a “goat” driven by Ramos struck and seriously injured Sanchez Vasquez. The goat was owned by Grove Care, and Ramos was employed by Packing Company.

Sanchez Vasquez’s attorney filed a workers’ compensation claim against Packing Company because he mistakenly understood Sanchez Vasquez to be an employee of Packing Company. Both Packing Company and Clarendon National Insurance Company, Packing Company’s workers’ compensation insurance carrier, controverted the claim by denying that Sanchez Vasquez was an employee. That denial was supported by the deposition of Packing Company’s office manager.

Thereafter, Sanchez Vasquez’s attorney filed a tort claim against Packing Company, Grove Care, and Ramos. The complaint alleged negligence on the part of Ramos and vicarious liability on the part of both Packing Company, as Ramos’ employer, and Grove Care, as the owner of the goat. In their joint answer, Packing Company and Grove Care (collectively “Appellees”) raised the affirmative defense of workers’ compensation immunity, alleging that Sanchez Vasquez was an employee of Packing Company. Additionally, they obtained a stay of the tort claim proceedings until the workers’ compensation claim was resolved. After Appellees filed their joint answer, Ramos filed an answer denying that Sanchez Vasquez was an employee and alleging that Sanchez Vasquez was in the grove for unknown reasons and that the cause of the accident was Sanchez Vasquez’s unexpected presence in the grove, not the negligence of Ramos.

After the tort claim was stayed, Sanchez Vasquez negotiated a settlement with Clarendon and executed a release that specifically noted that Packing Company and Grove Care objected to the settlement and release and that the settlement was not intended to release Packing Company or Grove Care from any liability that might result from the tort claim. The settlement noted that Sanchez Vasquez acknowledged that there was no employment relationship between himself and Packing Company and that he waived any claim that might arise from an employment relationship.

Once the settlement agreement had been approved by the judge in the workers’ compensation proceeding, Sanchez Vasquez moved the trial court to lift the stay in the tort claim proceedings. After the stay was lifted, Appellees filed their motion for summary judgment, arguing that by settling with the workers’ compensation carrier, Sanchez Vasquez had elected his remedy and was barred from further pursuit of the tort claim. The trial court agreed, granted the motion for summary judgment, and incorporated that ruling into the final judgment that is the subject of this appeal.

On appeal, Appellants argue (1) that the trial court erred in entering summary judgment based on the election of remedies doctrine and (2) that even if summary judgment was proper as to Packing Company, the trial court erred in entering summary judgment in favor of Grove Care and Ramos. Because we conclude that summary judgment should not have been entered, we need not address the questions raised by the second issue.

We review the decision to grant a motion for summary judgment de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. The question before the trial court here was whether, by settling with the workers’ compensation carrier, Sanchez Vasquez elected his remedy, thus barring him from further pursuit of his tort claim. Although the trial court entered summary judgment finding that he did, we conclude that he did not.

The doctrine of election of remedies presupposes the right to elect between two available remedies, each of which is equally available to the claimant. Jones v. Martin Elecs., Inc., 932 So.2d 1100, 1105 (Fla.2006). Applying this definition, it would at first appear that the doctrine of election of remedies should not apply in the context of workers’ compensation because once the claimant is determined to be an employee, the claimant is limited to the exclusive remedy of workers’ compensation; he or she does not have two alternative remedies from which to choose. See Michael v. Centex-Rooney Constr. Co., 645 So.2d 133, 135 n. 1 (Fla. 4th DCA 1994). However, Florida courts have not followed this analysis. In fact, even where a claimant’s status as a nonemployee would appear to preclude that claimant’s election of workers’ compensation as a remedy, the claimant’s election of workers’ compensation pursuant to the doctrine of election of remedies has been held to be binding. Id.; see also Mandico v. Taos Constr., Inc., 605 So.2d 850, 853 (Fla.1992); Ferraro v. Marr, 490 So.2d 188, 189 (Fla. 2d DCA 1986); Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA 1995).

Recognizing that “the point upon which a worker’s action with regard to a compensation claim constitutes an election of the workers’ compensation remedy to the exclusion of a civil action is not entirely clear,” Jones, 932 So.2d at 1105, Florida courts have fashioned an election of remedies analysis that is based not on the claimant’s employment status but on evidence of the claimant’s conscious intent “ ‘to elect the compensation remedy and to waive his [or her] other rights,’ ” id. at 1106 (quoting Wheeled Coach Indus., Inc. v. Annulis, 852 So.2d 430, 433 (Fla. 5th DCA 2003)). In this regard, the “ ‘[m]ere acceptance of some compensation benefits ... is not enough....’” Id. at 1105 (alteration in original) (quoting Velez v. Oxford Dev. Co., 457 So.2d 1388, 1390 (Fla. 3d DCA 1984)). Rather, the remedy chosen must be “pursued to full satisfaction,” Lowry, 650 So.2d at 656, a phrase that has been interpreted to mean a “determination or conclusion on the merits,” id. at 657.

In Jones, the Florida Supreme Court concluded that an employee who had received workers’ compensation benefits for a workplace injury but who had not pursued the compensation case to a conclusion on the merits was not estopped from later filing a civil tort claim if he could show that an exception to the workers’ compensation statute existed. In reaching this conclusion, the court noted that Jones had not litigated whether the conduct of the employer met the exception requirements in the workers’ compensation forum even though he did receive benefits from that forum. 932 So.2d at 1107. Furthermore, the court reasoned that the facts did not indicate that Jones’ petition in the workers’ compensation proceeding demonstrated a conscious intent to choose the workers’ compensation benefits and reject any potential tort claim. Id. The court determined that even his “stipulation” that he suffered a compensable injury was not sufficient to constitute a knowing waiver of his common law rights. Id. Accordingly, the court concluded that Jones had not elected the workers’ compensation benefits to the exclusion of his right to pursue a civil tort claim even though he filed a claim in the workers’ compensation forum, stipulated that the injury was covered by the workers’ compensation provisions, and accepted benefits from that proceeding. Id.

Applying the Jones analysis to the instant case, we conclude that the trial court erred in concluding that Sanchez Vasquez made an election of remedies when he settled the workers’ compensation proceeding. By his actions, Sanchez Vasquez did not demonstrate a conscious intent to choose the workers’ compensation benefits to the exclusion of his potential tort claim, and he did not pursue that claim to a conclusion on the merits.

First, he did not demonstrate a conscious intent to choose the workers’ compensation forum. Although Sanchez Vasquez initially chose to file his petition in the workers’ compensation forum, after Appellees asserted that he was not an employee, he willingly filed a civil tort action. However, because Appellees then asserted that Sanchez Vasquez was an employee, he was forced to return to the workers’ compensation forum. His return to workers’ compensation was thus solely due to the inconsistent pleadings filed by Appellees. Over Sanchez Vasquez’s objection, the trial court stayed the civil action and required Sanchez Vasquez to address the workers’ compensation petition first.

We also note that the release that was signed by Sanchez Vasquez and Clarendon did not indicate that Sanchez Vasquez chose the workers’ compensation forum to the exclusion of his pursuit of his civil tort claim. The release stated in numerous places that the settlement was not to be construed as an election of remedies, that Sanchez Vasquez was reserving his rights to a civil tort claim against Appellees, and that the release did not relieve Appellees of any potential civil liability. Specifically, the release stated:

This settlement is entered into between Claimant and the Released Parties and shall not be considered an election of remedies by Claimant precluding a possible cause of action against Sorrell Brothers in accordance with Hernandez v. United Contractors, 766 S2d [sic] 1249 (Fla. 3d DCA 2000).

Moreover, the affidavit Sanchez Vasquez executed at the time he signed the settlement is inconsistent with the settlement regarding the issue of Sanchez Vasquez’s intent. In the affidavit, Sanchez Vasquez averred that he understood that his settlement was the total settlement for his workers’ compensation claim and for “all other claims I have or may have against the released parties.” However, the settlement agreement itself provided that it settled only potential workers’ compensation claims, not other potential causes of action, and that Sanchez Vasquez “re-serv[ed] the right to pursue a third party claim against [Packing Company or Grove Care] or any third party.” Most importantly, the settlement specifically stated that it was not to be construed as an election of remedies. Sanchez Vasquez’s actions clearly fall short of evincing an intentional choice of remedies.

Neither was the workers’ compensation claim determined on its merits. The settlement that concluded the workers’ compensation matter did not specify that the disputed issues raised in the workers’ compensation proceeding had been determined on the merits; to the contrary, Sanchez Vasquez’s release indicated that the settlement did not resolve the contested issues. It stated that the compensability of the injury remained contested in that both Packing Company and Clarendon contended that Sanchez Vasquez was not an employee. The release also stated that Clarendon was making the settlement “to avoid the expense and inconvenience of litigation” and that the settlement “does not constitute an admission of liability for the benefits included in this release.” Finally, the release was very specific that Packing Company and Grove Care did not agree to the settlement, and neither company was a party to the agreement. These facts clearly establish that the settlement was not a determination of the merits of the contested compensability issue raised in the workers’ compensation proceeding. The key issue of whether Sanchez Vasquez was an employee of Packing Company has not been addressed, and the determination of that issue will govern which cause of action is available to Sanchez Vasquez.

We therefore conclude that by settling with the workers’ compensation carrier, Sanchez Vasquez did not make an election of remedies that foreclosed his civil tort claim. We note parenthetically that allowing Sanchez Vasquez to pursue his civil claim after having accepted benefits from the workers’ compensation carrier will not entitle Sanchez Vasquez to an impermissible double recovery.

Under the workers’ compensation statute, if an injured employee files a civil action for damages previously compensated by workers’ compensation benefits, compensation insurance carriers are authorized to file a notice of payment of benefits which operates as a lien on any subsequent judgment to the extent that the judgment includes damages of the same type as benefits paid under the workers’ compensation plan (e.g., medical benefits and wage compensation). See § 440.39(3)(a), Fla. Stat. (2000).

Jones, 932 So.2d at 1108.

Although Appellees argue that the instant case is controlled by Michael, 645 So.2d 133, we cannot agree. While the Fourth District in Michael concluded that Michael had made an election of remedies by pursuing and receiving workers’ compensation benefits, barring him from prosecuting the civil tort claim, the facts in the instant case, unlike those in Michael, reflect the claimant’s clear intention not to waive his civil tort claim. The release here specifically acknowledged that disputed issues — including compensability — remained. It also specifically negated any contention that the settlement was a determination of the merits of the compensability issue. Finally, the release specifically stated that the settlement was not to be construed as an election of remedies and that Sanchez Vasquez was reserving his rights to a civil tort claim. Because Michael contained no such clear indications of the claimant’s intent not to waive his civil tort claim, we decline to apply Michael.

We therefore conclude that Sanchez Vasquez did not make an election of remedies that foreclosed his pursuit of the civil tort claim. Accordingly, the trial court erred in entering the summary final judgment against Sanchez Vasquez in his civil action on this basis.

Reversed and remanded for further proceedings consistent with this opinion.

CASANUEVA and CANADY, JJ., Concur.

      . A “goat” is a truck-like vehicle used in harvesting citrus.

      . The approval of the settlement and attorneys' fees by the workers’ compensation judge resulted in the dismissal of the claim in that forum.


author: CASANUEVA, Judge.

text:
    Jose C. SANTIAGO, Petitioner, v. STATE of Florida, Respondent.
    No. 2D07-651.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2007.
    Wade M. Whidden of Whidden Brown, P.L., Tampa, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Respondent.
   CASANUEVA, Judge.

Jose Santiago, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), contends that appellate counsel was ineffective in failing to argue that the trial court fundamentally erred when it inserted the conjunction “or” between his name and those of his codefendants when instructing the jury on essential elements of the crimes of which he was convicted. The State concedes that Santiago is entitled to relief.

Santiago was convicted after jury trial of conspiracy to traffic in heroin and possession of heroin as a lesser-included offense of trafficking in illegal drugs. This court affirmed Santiago’s judgment and sentences. Santiago v. State, 896 So.2d 759 (Fla. 2d DCA 2005). As the State acknowledges, this case is controlled by Zeno v. State, 922 So.2d 431, 433 (Fla. 2d DCA 2006), wherein this court held that appellate counsel was ineffective in not arguing that the use of the conjunction “or” between Zeno’s name and Zeno’s codefen-dants’ names constituted fundamental error. Santiago was a codefendant of Zeno. In fact, in the preliminary statement in the initial brief in the direct appeal in Santiago, appellate counsel stated: “This brief has adopted the brief of Ariel Zeno’s, a codefendant at trial, due to a similarity of issues.” As in Zeno, we conclude that appellate counsel was ineffective for not arguing that the jury instructions in question constituted fundamental error.

“A determination as to whether these instructions constituted fundamental error requires a full review of the record on appeal.” Id. at 433. We therefore instruct the trial court, within thirty days from the issuance of the mandate in this case, to appoint an appellate attorney to file a brief limited to the issue outlined above. Appellate counsel shall, within thirty days of the appointment, file a new notice of appeal and reference this opinion in the notice of appeal.

Petition granted.

ALTENBERND and SALCINES, JJ., Concur.

      . Raymundo Zeno, Ariel Zeno's brother, was a codefendant of Santiago and Ariel Zeno. This court ultimately granted Raymundo Zeno a new trial, holding that the trial court’s use of the conjunction "or” between his name and those of his codefendants in instructing the jury on essential elements of the crimes charged constituted fundamental error. Zeno v. State, 910 So.2d 394, 396 (Fla. 2d DCA 2005). We note that the Fourth District has certified conflict with Zeno. Garzon v. State, 939 So.2d 278, 287 (Fla. 4th DCA 2006). The supreme court has accepted review of this conflict. 956 So.2d 455 (Fla.2007).


text:
    Robert BAEHREN, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-3142.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2007.
    Robert Baehren, Stuart, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Robert Baehren petitions this court for a writ of habeas corpus seeking reinstatement of his pretrial bond. His bond was revoked pursuant to section 903.0471, Florida Statutes, after the trial court found probable cause to believe he committed a new offense while on pretrial release. The court found probable cause based on Baehren’s arrest for identity theft and grand theft in a new case.

Baehren subsequently moved the trial court for an emergency bond hearing and reinstatement of his bond after the state filed a “no information” indicating that it did not intend to file charges in the new case. See Lovelace v. State, 906 So.2d 1258, 1259 (Fla. 4th DCA 2005) (observing “A ‘no information,’ which is synonymous with ‘no action,’ is filed by a prosecutor for the purpose of letting a person who has been arrested know that an information will not be filed or an indictment will not be sought.”). Baehren also provided affidavits from the alleged victims stating that he did not use their identity and that they did not want to prosecute. Following a non-evidentiary hearing, the trial court denied his motion.

The state’s notice that it does not intend to file charges in the new case along with the affidavits from the alleged victims tend to show that no new crimes were committed. Accordingly, we grant the petition for writ of habeas corpus and remand for the trial court to hold an evidentiary hearing to determine whether there is any evidence to sustain a finding that Baehren committed a new offense while he was on pretrial release. If there is no longer probable cause to believe that he committed a new offense, the trial court shall reinstate the bond.

STONE, FARMER and MAY, JJ., concur.


author: TAYLOR, J.

text:
    Staria T. NEWBOLD-FERGUSON, as Personal Representative of the Estate of Ivan Warmsley Ferguson, deceased, for and on behalf of lawful survivors/claimants: Staria T. Newbold-Ferguson, as surviving spouse, Appellant, v. AMISUB (North Ridge Hospital, Inc. d/b/a North Ridge Medical Center), Appellee.
    No. 4D06-17.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.
    Harvey J. Sepler of Harvey J. Sepler, P.A., Hollywood, for appellant.
    Hal B. Anderson of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., Fort Lauderdale, for appellee.
   TAYLOR, J.

Plaintiff Staria Newbold-Ferguson, wife of the deceased, Ivan Ferguson, sued the North Ridge Medical Center for medical negligence that allegedly occurred during her husband’s hospitalization after back surgery. The plaintiff alleged that the defendant’s employees and agents failed to follow the treating surgeon’s post-operation orders, monitor the decedent post-operatively, assess the decedent prior to administering narcotics, and accurately document the administration of such narcotics.

The trial court entered a final summary-judgment for the defendant on two grounds: lack of evidence to support the nursing negligence theory of the case and failure to identify the physicians and hospital agents who are the subjects of this negligence claim. We reverse the final summary judgment because the record contained some evidence in support of plaintiffs claim of nursing negligence, and genuine issues of material fact remained as to this claim. On remand, the trial court shall allow the plaintiff to file a third-amended complaint specifically identifying the physicians and other employees or agents of whose negligence she complains.

Reversed.

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


author: STONE, J.

text:
    ZC INSURANCE COMPANY, a foreign corporation, Appellant, v. Annis BROOKS, individually and as natural guardian of Anselique Ashley Brooks; Ralph Brooks, individually and as natural guardian of Anselique Ashley Brooks; Dollar Rent-a-Car Systems, Inc., a/k/a Dollar Rent-a-Car Systems of Florida; and Frontier Insurance Company, Appellees.
    No. 4D05-3438.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.
    See also 847 So.2d 547.
    T. Geoffrey Heekin, S. Hunter Malin and Dana R. Blunt of Heekin, Malin & Wenzel, P.A., Jacksonville, for appellant.
    Jane Kreusler-Walsh, Rebecca Mercier-Vargas and Barbara J. Compiani of Kreus-ler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and David L. Kahn of Law Offices of David L. Kahn, P.A., Fort Laud-erdale, for Appellee-Annis Brooks.
   ON MOTION FOR REHEARING

STONE, J.

We grant Appellees’ motion for rehearing, withdraw our opinion of March 28, 2007, and substitute the following in its place.

We reverse a final judgment on attorney’s fees and costs for failure to timely serve a motion for attorney’s fees pursuant to rule 1.525, Florida Rules of Civil Procedure.

ZC brought a declaratory action, claiming a lack of insurance coverage under an exclusionary clause in its policy. On October 26, 2001, the court entered a judgment in favor of the appellees/insureds (Brooks), concluding:

IT IS THEREFORE ordered and adjudged that ZC INSURANCE COMPANY shall recover nothing by its claims against ANNIS BROOKS and RALPH BROOKS, and its request, by complaint for declaratory judgment be and the same is hereby denied. Furthermore, ANNIS BROOKS and RALPH BROOKS shall each go hence without day and recover their taxable costs from ZC INSURANCE COMPANY, the amount of which to be determined by agreement of the parties or order of the court for which this court specifically reserves jurisdiction.
THE COURT CONCLUDES that Defendant-counterclaimant has liability insurance coverage for the claims asserted by Anselique Brooks arising from the motor vehicle accident that occurred while ANNIS BROOKS was operating a DOLLAR RENT A CAR van in the early morning hours of August 2, 1999.
THE COURT FURTHER orders that jurisdiction shall be reserved in order for the Court to determine entitlement in the amount, if any, of attorney’s fees and' costs for ANNIS BROOKS, and or RALPH BROOKS.

ZC appealed, and on May 14, 2003, we issued an opinion affirming. ZC Ins. Co. v. Brooks, 847 So.2d 547 (Fla. 4th DCA), rev. denied, 860 So.2d 980 (Fla.2003).

On December 28, 2001, Annis Brooks served a motion for determination of entitlement and amount of attorney’s fees to be awarded against ZC; patently, the motion was untimely under Florida Rule of Civil Procedure 1.525. On March 25, 2004, Annis Brooks filed an amended motion for determination of entitlement to attorney’s fees.

Brooks, and the trial court, relied upon the understanding that the initial motion was timely under rule 1.525 because the reservation of jurisdiction extended the time for filing a motion for attorney’s fees. See Fisher v. John Carter & Assocs., Inc., 864 So.2d 493 (Fla. 4th DCA 2004).

Florida Rule of Civil Procedure 1.525 provides:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

Since the trial court’s order, the supreme court has disapproved of our holding in Fisher as it pertains to the timeliness issue of the motion for attorney’s fees pursuant to a reservation of jurisdiction. See Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006). The supreme court held that rule 1.525 established a bright-line requirement. Further, this court has recently determined that Saia applies retrospectively. See State Farm Mut. Auto. Ins. v. Stylianoudakis, 946 So.2d 647 (Fla. 4th DCA 2007).

We have also considered and reject Appellees’ arguments as to estoppel (Appellees have failed to prove a change in position and reliance), a premature filing of the motion, and excusable neglect (based on attorney’s need for more time to gather time records). Therefore, the judgment is reversed, and we remand for entry of a judgment in favor of ZC on the claim for fees.

Reversed and Remanded.

FARMER and MAY, JJ., concur.


author: JOHNSON, J.,

text:
    STATE of Louisiana v. Rene COLLINS, et al.
    No. 2007-KK-1651.
    Supreme Court of Louisiana.
    Aug. 13, 2007.
   In re Collins, Rene; Gaines, Danzel; Lopez, Jose; Ruiz, Valdivia; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. 4, Nos. 479,783, 479,786, 479,760, 479,763; to the Court of Appeal, Fourth Circuit, No. 2007-K-0934.

Denied.

JOHNSON, J., would grant and assigns reasons.

JOHNSON, J.,

granting the writ application.

11 This case presents the same issue raised in writ application # 2007-KK-1382, State v. Jonathan Sims. The Audio-visual equipment used to conduct the “first appearance” hearing, between a room at the House of Detention (“HOD”), and the Magistrate Courtroom in Orleans Parish, did not properly work at the time the defendants(Rene Collins, and Danzel Gaines) were brought to the HOD hearing room for their “first appearance.” At the hearing on the writ of habeas corpus, the witness, Kara Johnson, Esq., representing the Criminal Sheriffs Office stated that the audio-visual equipment failed in that the judge was not able to see nor hear the defendants. This hearing did not meet the requirements of LSA-C.Cr.P. art. Art. 230.1


text:
    Linda S. HOWARD v. SERVICE TRANSPORT COMPANY, National Interstate Insurance Company and Harvey Paul Geudry, Jr. Christopher Scott Pittman and Tana L. Pittman, et al. v. Harvey Paul Geudry, Jr., Service Transport Company, et al.
    No. 2007-CC-1733.
    Supreme Court of Louisiana.
    Aug. 27, 2007.
   In re Service Transport Company; National Interstate Insurance Company; Geudry, Harvey Paul Jr.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, Nos. 525,-743, 528,167; to the Court of Appeal, First Circuit, No. 2007 CW 1571.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Kevin CARMOUCHE.
    No. 2007-KK-1736.
    Supreme Court of Louisiana.
    Aug. 28, 2007.
   In re Carmouche, Kevin; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. A, No. 301-247; to the Court of Appeal, Fourth Circuit, No. 2007-K-1062.

Denied.


author: CALOGERO, C.J.,

text:
    STATE of Louisiana v. Don MORELAND.
    No. 2007-KK-1758.
    Supreme Court of Louisiana.
    Aug. 30, 2007.
   In re Moreland, Don; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. E, No. 501499; to the Court of Appeal, First Circuit, No. 2007 KW 1681.

Denied.

CALOGERO, C.J.,

would grant and assigns reasons. I would grant and summarily reverse the Court of Appeal. The trial judge is entitled to be respected on a call such as this — whether to grant a continuance. A judge’s discretionary call on a matter of this nature is entitled to be given wide latitude.


text:
    STATE of Louisiana v. Anthony BELL.
    No. 2007-KH-1629.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Bell, Anthony; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 05-06-0751.

Granted for the sole purpose of transferring the filing to the Court of Appeal, First Circuit, for its consideration.


text:
    STATE of Louisiana v. Adrian Ion NEACSU.
    No. 2007-KH-1632.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Neacsu, Adrian Ion; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 08-05-0354.

Granted for the sole purpose of transferring the filing to the district court for its consideration. The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE of Louisiana v. Raymond MOLIERE.
    No. 2006-KO-2625.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Moliere, Raymond; — Defendant; Applying for Reconsideration of this Court’s action dated May 18, 2007; Parish of Orleans, Criminal District Court Div. F, No. 441,509; to the Court of Appeal, Fourth Circuit, No. 2005-KA-0430.

Reconsideration denied.


text:
    STATE of Louisiana v. Bobby JOHNSON.
    No. 2006-K-1926.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Johnson, Bobby; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. D, No. 389466; to the Court of Appeal, First Circuit, No. 2005 KA 1531.

Denied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Jack S. SPEARS.
    No. 2006-K-2704.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Spears, Jack S.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. A, No. 46498; to the Court of Appeal, Second Circuit, No. 39,302-KA.

Denied.


text:
    STATE of Louisiana v. Maureen Vallot GREEN.
    No. 2006-K-2815.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Greene, Maureen Vallot; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. E, No. 06-781; to the Court of Appeal, Third Circuit, No. 06-781.

Denied.


text:
    STATE of Louisiana v. Darrell Brent WHATLEY.
    No. 2006-K-2826.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Whatley, Darrell Brent; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Evangeline, 13th Judicial District Court Div. A, No. 64517FA; to the Court of Appeal, Third Circuit, No. 06-0316.

Denied.


text:
    STATE of Louisiana v. Andre ANDERSON.
    No. 2006-KO-2870.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Anderson, Andre; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. F, No. 120,928; to the Court of Appeal, Second Circuit, No. 41,-489-KA.

Denied.


text:
    STATE of Louisiana v. Clifton Jermaine ANDERSON.
    No. 2006-KO-2892.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Anderson, Clifton Jermaine; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. G, No. 159,298; to the Court of Appeal, First Circuit, No. 2006 KA 0590.

Denied.


text:
    STATE of Louisiana v. Darrel HUDSON, Jr.
    No. 2006-KO-2896.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Hudson, Darrel Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. D, Nos. 14234, 14235, 14239; to the Court of Appeal, First Circuit, No. 2005 KA 1232.

Denied.


text:
    STATE of Louisiana v. Maureen Vallot GREEN.
    No. 2006-K-2900.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Greene, Maureen Vallot; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. E, No. 03-J-935; to the Court of Appeal, Third Circuit, No. 06-781.

Denied.


text:
    STATE of Louisiana v. James R. TRICOU, Jr.
    No. 2006-K-2906.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Tricou, James R. Jr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. F, No. 111647; to the Court of Appeal, First Circuit, No. 2006 KW 1755.

Denied.


text:
    STATE of Louisiana v. Kendrick REDDICK.
    No. 2006-K-2907.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Reddick, Kendrick; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 455-226; to the Court of Appeal, Fourth Circuit, No. 2005-KA-1143.

Denied.

CALOGERO, C.J., would grant.

JOHNSON, J., would grant.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Byron MILLET.
    No. 2006-K-2908.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Millet, Byron; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 455-347; to the Court of Appeal, Fourth Circuit, No. 2005-KA-1122.

Denied.

CALOGERO, C.J., would grant.

JOHNSON, J., would grant.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Kenneth PIERRE.
    No. 2006-K-2909.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Pierre, Kenneth; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 454-181; to the Court of Appeal, Fourth Circuit, No. 2005-KA-1117.

Denied.

CALOGERO, C.J., would grant.

JOHNSON, J., would grant.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Ronnell L. ANDERSON.
    No. 2006-K-2957.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Anderson, Ronnell L.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, No. 04-4828; to the Court of Appeal, Fifth Circuit, No. 06-KA-372.

Denied.


text:
    STATE of Louisiana v. Nelson BENTON.
    No. 2007-KH-0625.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Benton, Nelson; — Defendant; Applying for Supervisory and/or ■ Remedial Writs, Parish of Orleans, Criminal District Court Div. I, Nos. 464-352, 465-624.

Denied. Moot.


text:
    STATE of Louisiana v. Calvin PREYAN.
    No. 2007-KK-1032.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Preyan, Calvin; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 444-751; to the Court of Appeal, Fourth Circuit, No. 2007-K-0330.

Denied.


text:
    STATE of Louisiana v. James HETRICK.
    No. 2007-KK-1040.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Hetrick, James; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. B, No. 21173; to the Court of Appeal, First Circuit, No. 2007 KW 0450.

Denied.


text:
    STATE of Louisiana v. Robert HART, Jr.
    No. 2007-KH-1085.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Hart, Robert Jr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 468-695; to the Court of Appeal, Fourth Circuit, No. 2007-K-0278.

Denied.


text:
    STATE of Louisiana v. Eugene EDWARDS.
    No. 2007-KH-1086.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Edwards, Eugene; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. B, No. 06-16; to the Court of Appeal, First Circuit, No. 2007 KW 0049.

Denied. Moot.


text:
    STATE of Louisiana v. Wilbert KELLY.
    No. 2007-KP-1187.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Kelly, Wilbert; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. B, No. 03-CR-898; to the Court of Appeal, First Circuit, No. 2007 KW 0541.

Denied.

CALOGERO, C.J., would grant.

KNOLL, J., would grant.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Wardell HERRINGTON.
    No. 2007-K-1528.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 460-759; to the Court of Appeal, Fourth Circuit, No. . 2007-KA-0070.

Denied.

TRAYLOR, J., would grant.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Arlexis Eugene GRAY.
    No. 2007-KK-1612.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Gray, Arlexis Eugene; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tensas, 6th Judicial District Court Div. B, No. 75946; to the Court of Appeal, Second Circuit, No. 42765-KW.

Denied.


text:
    STATE ex rel. Ernest WALKER v. STATE of Louisiana.
    No. 2007-KH-1083.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Walker, Ernest; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 468-103; to the Court of Appeal, Fourth Circuit, No. 2007-K-0528.

Denied.


text:
    STATE ex rel. Terrance D. THOMPSON v. STATE of Louisiana.
    No. 2006-KH-2692.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Thompson, Terrance D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. H, No. 06-F0270; to the Court of Appeal, Second Circuit, No. 41844-KH.

Denied.


text:
    STATE ex rel. Keith PALMER v. STATE of Louisiana.
    No. 2006-KH-2693.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Palmer, Keith; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 01-98-602; to the Court of Appeal, First Circuit, No. 2006 KW 1527.

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


text:
    STATE ex rel. Roosevelt SMALL v. STATE of Louisiana.
    No. 2006-KH-2563.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Small, Roosevelt; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 171,016; to the Court of Appeal, Second Circuit, No. 41,-723-KH.

Denied. Relator must first address his request for a cost estimate to the record’s custodian, the Caddo Parish Clerk of Court’s office. R.S. 44:31; State ex rel. Shelton v. State, 00-1901 (La.9/14/01), 796 So.2d 672; State ex rel. McKnight v. State, 98-2258 (La.App. 1st Cir.12/3/98), 742 So.2d 894.


text:
    STATE ex rel. Phillip HERNANDEZ v. STATE of Louisiana.
    No. 2006-KH-2635.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Hernandez, Phillip; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. A, No. 00-203,087; to the Court of Appeal, Third Circuit, No. KH 06-00871.

Denied.


text:
    STATE ex rel. Michael W. SOILEAU v. STATE of Louisiana.
    No. 2006-KH-2663.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Soileau, Michael W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 65207-B; to the Court of Appeal, Third Circuit, No. KH 06-00754.

Denied.


text:
    STATE ex rel. Dennis FORD v. STATE of Louisiana.
    No. 2006-KH-2671.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Ford, Dennis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. E, No. 04-14F; to the Court of Appeal, Second Circuit, No. 40,145-KA.

Denied.


text:
    STATE ex rel. Latroy OATES v. STATE of Louisiana.
    No. 2006-KH-2670.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Oates, Letroy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 99-7044; to the Court of Appeal, Fifth Circuit, No. 06-KH-693.

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


text:
    STATE ex rel. Levar KING v. STATE of Louisiana.
    No. 2006-KH-2669.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re King, Levar; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 422-216; to the Court of Appeal, Fourth Circuit, No. 2006-K-1227.

Denied.


text:
    STATE ex rel. Ronald L. RHYMES v. STATE of Louisiana.
    No. 2006-KH-2668.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Rhymes, Ronald L.;- — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 257614; to the Court of Appeal, Third Circuit, No. KH 06-00008.

Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Shannon BROWN v. STATE of Louisiana.
    No. 2006-KH-2667.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Brown, Shannon; — Plaintiff; Applying for Supervisory and Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 03-804; to the Court of Appeal, Fifth Circuit, No. 06-KH-518.

Denied.


text:
    STATE ex rel. Christopher HANDY v. STATE of Louisiana.
    No. 2006-KH-2666.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Handy, Christopher; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. C, No. 88-0099; to the Court of Appeal, Third Circuit, No. KH 06-01123.

Denied.


text:
    STATE ex rel. Byron WILLIAMS v. STATE of Louisiana.
    No. 2006-KH-2672.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Williams, Byron; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. E, No. 402-239; to the Court of Appeal, First Circuit, No. 2006 KW 1547.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Melvin DAVIS v. STATE of Louisiana.
    No. 2006-KH-2673.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Davis, Melvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 95-2188; to the Court of Appeal, Fifth Circuit, No. 06-KH-611.

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


text:
    STATE ex rel. Elton THOMAS v. STATE of Louisiana.
    No. 2006-KH-2674.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Thomas, Elton; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 01-1657; to the Court of Appeal, Fifth Circuit, No. 06-KH-685.

Denied.


text:
    STATE ex rel. Kevin JONES v. STATE of Louisiana.
    No. 2006-KH-2675.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Jones, Kevin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 398-627; to the Court of Appeal, Fourth Circuit, No. 2006-K-1133.

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


text:
    STATE ex rel. Bobby R. WILLIAMS v. STATE of Louisiana.
    No. 2006-KH-2676.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Williams, Bobby R.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 11-99-0458; to the Court of Appeal, First Circuit, No. 2006 KW 1408.

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


text:
    STATE ex rel. Derrick Jerome ALLEN v. STATE of Louisiana.
    No. 2007-KH-1210.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Derrick Jerome Allen;- — Plaintiff; Applying for Reconsideration of this Court’s action dated, June 22, 2007, Parish of E. Baton Rouge, 19th Judicial District Court, No. 06-04-0828; to the Court of Appeal, First Circuit No. 2006 KW 0119.

Reconsideration denied.

WEIMER, J., recused.


text:
    STATE ex rel. James W. GLEASON v. STATE of Louisiana.
    No. 2005-KH-2161.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Gleason, James W.; — Plaintiff(s); Applying for Reconsideration of this Courts action dated May 5, 2006; Parish of Franklin, 5th Judicial District Court Div. A, No. 2000-310F; to the Court of Appeal, Second Circuit, No. 40,184-KH.

Reconsideration denied.


text:
    STATE ex rel. Darren James BOUDWIN v. STATE of Louisiana.
    No. 2006-KH-1461.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Darren James Boudwin; — Plaintiff; Applying for Reconsideration of this Court’s action dated March 9, 2007, Parish of Terrebonne, 32nd Judicial District Court, Nos. 351,532 and 345,947.

Reconsideration denied.


text:
    STATE ex rel. Kenny WHITMORE v. STATE of Louisiana.
    No. 2006-KH-1900.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Whitmore, Kenny; Defendant(s); Applying for Reconsideration of this Court’s order dated April 20, 2007; Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 05-75-8614.

Reconsideration denied.


text:
    STATE ex rel. Daniel C. WILKERSON, Sr. v. STATE of Louisiana.
    No. 2006-KH-2116.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Wilkerson, Daniel C. Sr.; — Plaintiff; Applying for Reconsideration of this Court’s action dated May 11, 2007, Parish of Lafourche, 17th Judicial District Court, No. 392246; to the Court of Appeal, First Circuit No. 2006 KW 0178.

Reconsideration denied.


text:
    STATE ex rel. Andrew PAYNE v. STATE of Louisiana.
    No. 2006-KH-2266.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   Andrew Payne, applying for Reconsideration to this court’s action dated May 4, 2007, from the 24th, Judicial District Court, Division E, No. 99-2560; to the Fifth Circuit Court of Appeal No. 06-KH-545.

Reconsideration Denied.


text:
    STATE ex rel. Ezra RICHARDSON v. STATE of Louisiana.
    No. 2006-KH-2397.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Richardson, Ezra; — Plaintiff; Applying for Reconsideration of this Court’s Action dated June 22, 2007; Parish of Tangipahoa, 21st Judicial District Court, Div. C, No. 83461; to the Court of Appeal, First Circuit, No. 2006 KW 1201.

Reconsideration denied.


text:
    In re D.D.D. Applying for Intrafamily Adoption.
    No. 2007-CJ-1669.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re K.M.P.D.; — Other; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, The Juvenile Court for the Parish of East Baton Rouge, No. 9220; to the Court of Appeal, First Circuit, No. 2006 CU 2274.

Denied.


text:
    SUCCESSION OF Mary Ory FEITEL.
    No. 2007-C-1046.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Kenny, Robert Travis M.D.; — Other; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. F, No. 2001-16718; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1482.

Denied.


text:
    In the Matter of Hillward FRUGE.
    No. 2007-OC-0021.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Fruge, Hillward; — Plaintiff; Applying for Reconsideration of this Court’s action dated April 27, 2007, and Reconsideration of the Writ Denial of March 9, 2007; Parish of St. Landry, 27th Judicial District Court Div. B, No. 96-C-2365; to the Court of Appeal, Third Circuit, No. 06-925.

Second application for reconsideration not considered. Judgment of March 9, 2007 is final. See La. Code Civ. P. art. 2167. No further filings shall be accepted in this matter.


text:
    Jeri Gill HUSZAR v. John A. HUSZAR.
    No. 2007-OC-1705.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Huszar, Jeri Gill; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. F, No. 94907; to the Court of Appeal, First Circuit, No. 2007 CU 0160.

Denied. The appeal was untimely.


text:
    John E. HOLSTON, Sr., et al. v. REPUBLIC FIRE & CASUALTY INSURANCE COMPANY, et al.
    No. 2007-CC-1472.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Gobert, Norris; Republic Fire & Cas. Ins. Co. et al; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 2005-2402 “D”; to the Court of Appeal, Third Circuit, No. CW 07-00656.

Denied.

TRAYLOR, J., would grant.


text:
    Tynes E. MIXON, III, M.D. v. IBERIA SURGICAL L.L.C., et al.
    No. 2007-C-1050.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Mixon, Tynes E. Ill M.D.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. E, No. 99-468-E; to the Court of Appeal, Third Circuit, No. 06-878.

Denied.


text:
    Darryl PORTER v. PELLERIN CONSTRUCTION COMPANY.
    No. 2007-C-1076.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Porter, Darryl; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District No. 7, No. 04-03915; to the Court of Appeal, Fifth Circuit, No. 06-CA-949.

Denied.


text:
    Darryl PORTER v. PELLERIN CONSTRUCTION COMPANY.
    No. 2007-C-1015.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Pellerin Construction Company;— Defendant; Applying for Writ of Certiora-ri and/or Review Office of Workers’ Compensation District No. 7, No. 04-03915; to the Court of Appeal, Fifth Circuit, No. 06-CA-949.

Denied.


text:
    Alvin G. HOSLI II v. RENT-A-CENTER, INC.
    No. 2007-C-1018.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Rent-A-Center Inc.; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 8, No. 04-1496; to the Court of Appeal, Fourth Circuit, No. 2006-CA-1466.

Denied.


text:
    Shelton J. RAYFORD, et al. v. NATIONAL RAILROAD PASSENGER CORPORATION, et al.
    No. 2007-CC-1021.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re National Railroad Passenger Corporation et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2003-8101; to the Court of Appeal, Fourth Circuit, No. 2005-C-1273.

Denied.


text:
    LW v. DELTA CLINIC OF BATON ROUGE, INC., and Dr. Adrian Coleman.
    No. 2007-C-1022.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Delta Clinic of Baton Rouge Inc. et al.; Coleman, Adrian Dr.; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 505097; to the Court of Appeal, First Circuit, No. 2006 CA 0134.

Denied.


text:
    David W. POYDRAS v. DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS.
    No. 2006-CI-2687.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Poydras, David W.; — Plaintiff;. Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, Nos. 539,-264, 540,042, 540,631, 540,891; to the Court of Appeal, First Circuit, No(s). 2006 CW 1197, 2006 CW 1435, 2006 CW 1328, 2006 CW 1360.

Denied.

KNOLL, J., recused.


text:
    Brian DOYAL v. VERNON PARISH SCHOOL BOARD.
    No. 2007-C-0832.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Vernon Parish School Board;— Defendant; Applying for Reconsideration of this Court’s action dated June 15, 2007; Office of Workers’s Comp. Dist. 2, No. 04-05616; to the Court of Appeal, Third Circuit, No. 06-1088.

Not considered. See Sup.Ct. Rule IX, Section 6.


text:
    Leslie H. CANTRELL and Dixie Land Company of New Roads, L.L.C. v. Susan Mitchen COLLINS.
    No. 2007-OC-1730.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Collins, Susan Mitchen; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. B, No. 39,667; to the Court of Appeal, First Circuit, No. 2007 CA 1192.

Stay denied. Writ denied.


text:
    EAST FIRST STREET, L.L.C. and M & B Rentals of America, L.L.C. v. BOARD OF ADJUSTMENTS and City of Thibodaux.
    No. 2007-C-1047.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re East First Street L.L.C. et ah; M & B Rentals of America L.L.C.; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. C, No. 101760; to the Court of Appeal, First Circuit, No. 2006 CA 0067.

Denied.


text:
    Kathleen TRANT and Charles A. Trant, Sr. v. UNITED FIRE & CASUALTY INSURANCE COMPANY, Lafayette Insurance Company, Oakridge Park, Inc. d/b/a the Quarter House, the Quarter House Owners Association and Paul Dorsey.
    No. 2007-C-1048.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Trant, Charles A. et al.; Trant, Kathleen; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 99-4615; to the Court of Appeal, Fourth Circuit, No. 2006-CA-1494.

Denied.

CALOGERO, C.J., would grant.

JOHNSON, J., would grant.


text:
    Twilynn LINDSEY, on Behalf of the Minor, Garren LINDSEY v. The CADDO PARISH SCHOOL BOARD, John Webb, and Verdis Pruitt.
    No. 2007-C-1033.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Lindsey, Garren; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. A, No. 447,029; to the Court of Appeal, Second Circuit, No. 41,854-CA.

Denied.


text:
    John HARKINS and the Hanover Insurance Company v. M.G. MAYER YACHT SERVICES, INC., Maritime Systems, Inc. and Lloyds Underwriters at London.
    No. 2007-C-1028.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Harkins, John; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2001-6004; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0668.

Denied.


text:
    Kenyetta M. BROOKS, et al. v. CHRISTUS HEALTH SOUTHWESTERN LOUISIANA d/b/a Christus St. Patrick Hospital of Lake Charles, et al.
    No. 2007-C-0967.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Brooks, Derrick D.; Brooks, Ken-yetta M.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Cal-casieu, 14th Judicial District Court Div. A, No. 2003-004923; to the Court of Appeal, Third Circuit, No. 06-1497.

Denied.

KIMBALL, J., would grant.

JOHNSON, J., would grant.


text:
    Leon D. FUSSELL v. NORTH LOUISIANA CRIMINALISTICS LABORATORIES, et al. Leon D. Fussell v. Joseph R. Kutch Leon D. Fussell v. I.C. Turnley, Jr., M.D., et al.
    No. 2007-CP-0642.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re — Plaintiff(s); Fussell, Leon D. Applying for Reconsideration of this Court’s order dated May 11, 2007; Parish of La-Salle, 28th Judicial District Court, Div. O, Nos. 35031, 35030, 35029,; to the Court of Appeal, Third Circuit, Nos. CW 06-01511, CW 06-01525, CW 06-01526.

Reconsideration Denied.


text:
    SOUTHGATE RESIDENTIAL TOWERS, LLC and Southgate Penthouse, LLC v. MAPP CONSTRUCTION, INC., Mapp Construction, LLC, Michael A. Polito, M & R Drywall, Inc., M & R Stucco, Inc., Power Design, Inc., Travelers Casualty and Surety Company of America, Westfield Insurance Company of America, Crum & Forrester Specialty Insurance Company, Scottsdale Insurance Company, Bituminous Fire and Marine Insurance Company, National Union Fire Insurance Company, Indian Harbor Insurance and XYZ Insurance Company.
    No. 2007-CC-1571.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Southgate Residential Towers LLC et al.; Southgate Penthouses LLC;— Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 550,534; to the Court of Appeal, First Circuit, No. 2007 CW 0489.

Stay denied. Writ denied.


text:
    SOUTHGATE RESIDENTIAL TOWERS, LLC and Southgate Penthouse, LLC v. MAPP CONSTRUCTION, INC., Mapp Construction, LLC, Michael A. Polito, M & R Drywall, Inc., M & R Stucco, Inc., Power Design, Inc., Travelers Casualty and Surety Company of America, Westfield Insurance Company of America, Crum & Forrester Specialty Insurance Company, Scottsdale Insurance Company, Bituminous Fire and Marine Insurance Company, National Union Fire Insurance Company, Indian Harbor Insurance and XYZ Insurance Company.
    No. 2007-CC-1572.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Southgate Residential Towers LLC et al.; Southgate Penthouses LLC;— Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 550,534; to the Court of Appeal, First Circuit, No(s). 2007 CW 0494, 2007 CW 0489, 2007 CW 0685.

Stay denied. Writ denied.


text:
    SOUTHGATE RESIDENTIAL TOWERS, LLC and Southgate Penthouse, LLC v. MAPP CONSTRUCTION, INC., Mapp Construction, LLC, Michael A. Polito, M & R Drywall, Inc., M & R Stucco, Inc., Power Design, Inc., Travelers Casualty and Surety Company of America, Westfield Insurance Company of America, Crum & Forrester Specialty Insurance Company, Scottsdale Insurance Company, Bituminous Fire and Marine Insurance Company, National Union Fire Insurance Company, Indian Harbor Insurance and XYZ Insurance Company.
    No. 2007-CC-1557.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Power Design Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 550,534; to the Court of Appeal, First Circuit, No. 2007 CW 0493.

Denied.


text:
    Lelani LAZO v. Gerard JOHNSON.
    No. 2007-CC-1388.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Johnson, Gerard; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 621-005; to the Court of Appeal, Fifth Circuit, No. 07-C-357.

Denied.

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

KIMBALL, J., would grant the writ.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Ryan Patrick GREEN.
    No. 2006-K-2846.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   In re Green, Ryan Patrick; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 437,767; to the Court of Appeal, First Circuit, No. 2006 KA 940.

Denied.


text:
    STATE of Louisiana v. Salvador MANGANO and Mabel Mangano.
    No. 2007-KK-1777.
    Supreme Court of Louisiana.
    Sept. 4, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. A, No. 07-WLFN-12; to the Court of Appeal, First Circuit, No. 2007 KW 1710.

Writ granted. Defendants have failed to show that the spreadsheet sought to be admitted is not hearsay or that it falls within an exception to the hearsay rule. The ruling of the trial court admitting the spreadsheet is reversed and state’s objection is sustained.

CALOGERO, C.J., would deny.

KNOLL, J., would deny.

WEIMER, J., would deny.