source: Caselaw Access Project

author: MONACO, J. SHARP, W., J.,

license: Public Domain

text:
    Beverly Ann JOSLIN, Appellant, v. Jeffrey A. JOSLIN, Appellee.
    No. 5D05-1192.
    District Court of Appeal of Florida, Fifth District.
    May 26, 2006.
    Rehearing Denied July 14, 2006.
    Linda D. Schoonover of Linda D. Schoonover, P.A., Lake Mary, for Appellant.
    Thomas R. Peppier, of Stein, Sonnen-schein, Hochman & Peppier, Oviedo, for Appellee.
   MONACO, J.

The appellant, Beverly Ann Joslin, appeals the final judgment dissolving her seven year marriage with the appellee, Jeffrey A. Joslin. She argues, first, that she should have been awarded permanent alimony, and second, that Mr. Joslin should have been required to pay more than half of her attorney’s fees. We have reviewed the financial awards in the judgment using an abuse of discretion standard. See Doyle v. Doyle, 789 So.2d 499 (Fla. 5th DCA 2001). While this is admittedly a close case, the judgment is supported by competent substantial evidence. See Gomez-Cruz v. Cruz, 919 So.2d 559 (Fla. 5th DCA 2005). As reasonable persons could differ with respect to the propriety of the actions of the trial judge, we conclude that there was no abuse of discretion, and affirm. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980); Beasley v. Beasley, 152, So.2d 110 (Fla. 5th DCA 2000).

AFFIRMED.

THOMPSON, J., concurs.

SHARP, W., J., dissents with opinion.

SHARP, W., J.,

dissenting.

I respectfully dissent. In view of the disparity in the parties’ earning ability and the wife’s disabilities, I believe the trial court breached its discretion in failing to award the wife some amount of permanent alimony.

The record reflects that the wife has not worked since September 1999 and currently receives Social Security disability benefits. The Social Security Administration had determined that the wife is permanently disabled due to epilepsy, arthritis, chronic pain syndrome, failed back syndrome, migraines, Lyme disease and fibor-myalgia. She was diagnosed with arthritis as a child and it has become progressively worse since then. She is on multiple medications and her health problems prevent her from working. She had two back surgeries in 1999 to fix herniated discs and experienced complications after the second surgery, including a severe infection, and had to have a third surgery.

The wife has been denied welfare assistance and does not qualify for food stamps. She receives too much from Social Security to qualify for Medicaid but cannot afford the COBRA payments to continue her insurance through the husband’s employer. She does not have enough resources to provide for her son from her previous marriage and voluntarily gave primary residency of her son to his father.

The wife’s only source of income is her Social Security benefits in the amount of $1,128 per month. In contrast, the husband works for BellSouth as a technician. The trial court found that he earned between $59,000 and $60,000 a year with a net monthly income of $3,572.50.

The trial court considered the wife’s physical and emotional condition but concluded that “the Wife’s disabilities are a result of medical conditions that arose pri- or to the marriage and have not been exasperated by the marriage.” However, this is not a proper basis to deny alimony to a needy spouse.

A spouse is not relieved of the responsibility of paying alimony simply because he did not cause or contribute to the condition of the other spouse. Florida courts have awarded permanent alimony even in short-term marriages in which a spouse suffered disabilities for which the paying spouse had no responsibility. See Levy v. Levy, 900 So.2d 737 (Fla. 2d DCA 2005) (absence of any evidence that husband contributed to wife’s disability was irrelevant to analysis of whether an award of permanent alimony was appropriate following dissolution of two year and four month marriage); Gallinar v. Gallinar, 763 So.2d 447 (Fla. 3d DCA 2000) (wife who suffered from a psychiatric condition which predated the two year and eight month marriage and caused her to be unable to maintain employment demonstrated need for permanent alimony).

In determining whether an alimony award is appropriate, the trial court must insure that neither spouse passes automatically from “prosperity to misfortune.” Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980). Without any financial assistance from the husband in the form of permanent alimony, the wife most likely will end up homeless. In my view, under the facts of this case, it was an abuse of discretion to fail to award the wife permanent alimony, as well as all of her attorney’s fees.


author: RAMIREZ, J.

text:
    George G. LEVIN and Gayla Sue Levin, Appellants, v. Ira LANG, Appellee.
    No. 3D05-1936.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.

      Woodrow “Mac” Melvin, Jr., Miami, for appellants.
    Frederick Charles Sake, Miami Beach, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   RAMIREZ, J.

George and Gayla Levin, the sellers, appeal from a final judgment in favor of Ira Lang, the buyer, granting specific performance of a contract for the sale of commercial property. We reverse, finding that the Levins’ written notice was sufficient to notify Lang to elect whether to take title “as is” or accept the return of his deposit.

In June 2003, the parties signed a contract for the purchase and sale of commercial property in Miami-Dade County, Florida, located at 101 N.E 40th Street, for an all cash purchase price of $796,750.00. The contract provides that the buyer shall notify the seller of any title defect and that the seller then has thirty days thereafter to cure the defect. It also provides, “Seller may elect not to cure defects if Seller reasonably believes that any defect cannot be cured within the [30 day] Curative Period.” The contract further states, “Buyer will have 10 days from receipt of notice of Seller’s inability to cure defects to elect whether to terminate this contract or accept title subject to existing defects and close the transaction without a reduction in purchase price.” The contract set a closing date of July 4, 2003. Pursuant to that agreement, Lang delivered to the Levins’ real estate broker $75,000.00 for the deposit and delivered to his own attorney the balance of the cash to close, which was $749,468.11.

Prior to the closing, Lang’s attorney informed him that a lien search showed that Ethan Allen, Inc. had a $692,760.00 judgment lien on the subject property as a result of a Broward County judgment against the Levins. Before entering into the contract with Lang, the Levins posted a supersedeas appeal bond in the amount of $845,167.20, which stayed the execution of this judgment. It is uncontested in the record that the Ethan Allen judgment was a lien against the property, and thus, a title defect. It is also uncontested that the supersedeas bond did not remove this lien. Lang’s attorney put the Levins on notice that they had to cure this defect.

The Levins issued Lang a written notice on July 24, 2003, addressed to Lang’s attorney, stating, “As required by the contract, please have your client advise the Sellers in writing within 10 days as to whether or not your client is willing to accept the title subject to this alleged defect.” The notice further stated that the Levins would fully indemnify Lang against any claim arising from the Ethan Allen, Inc. judgment lien. Lang’s attorney replied on August 4, 2003, stating that the Levins needed to get a new bond in order to cure the title defect and proceed with the closing. The Levins did not cure the defect. Attorneys’ Title Insurance Fund refused to issue title insurance to Lang, so the closing did not take place.

Lang then sued the Levins for specific performance of the contract to require the Levins to sell Lang the property. The Levins admitted that the parties had an agreement for the purchase and sale of the property but asserted that (1) they gave notice to Lang that they could not, through diligent effort, correct the title defect; (2) Lang refused to accept title “as is” pursuant to the contract, thus the contract terminated; and (3) they were entitled to damages because Lang’s action constituted a slander of title on the property.

After a non-jury trial, the court entered a ten-page judgment, finding that the un-controverted facts showed that the Levins would be required to make extraordinary efforts or expenditures pursuant to section 55.10, Florida Statutes (2002), to secure a lien bond for $1,024,717.38, which was beyond their duty, according to Blackmon v. Hill, 427 So.2d 228 (Fla. 3d DCA 1983). However, the court found that Lang showed by clear and convincing evidence that the Levins defaulted by failing to provide proper notice of the inability to cure any defect within the curative period. The court thus entered final judgment in Lang’s favor and ordered the sale of the property.

The Levins correctly contend on appeal that it was error to rule that their written notice was insufficient, where that notice identified the contract, offered to close “subject to” the title defect, and gave Lang ten days to decide, “as required by the contract.” They also correctly contend that it was error to rule that their notice was insufficient where Lang’s attorney, to whom it was addressed, testified at trial that he understood what it meant.

To invoke the remedy of specific performance, the purchaser must show by “clear, definite and certain proof’ that the seller failed to exercise reasonable diligence in clearing the title defects. See Blackmon, 427 So.2d at 230. Reasonable diligence requires “such actions as are consistent with good faith and appropriate in view of the circumstances.” Id.

The Levins attorney requested that the agent who issued the supersedeas bond write the new bond to clear the title defect. According to the evidence presented at trial, a second bond in the amount of $1,024,717.38 would have been required to lift the lien in Miami-Dade County. The trial court properly found that the Levins had exhausted all reasonable efforts to cure the defect in their title before giving the “as is” notice to Lang. Further efforts would have required “extraordinary efforts or expenditures,” which was beyond their duty, according to Blackmon. See also Castigliano v. O’Connor, 911 So.2d 145 (Fla. 3d DCA 2005).

However, we disagree with the trial court’s finding that the Levins’ notice was legally insufficient. The trial court ruled that the July 24, 2003 written notice was legally insufficient because it had not “specifically declared that they [sellers] were unable to reasonably cure the title defect within the curative period.” The contract allowed the Levins to notify Lang if they could not reasonably cure a title defect and to require Lang to decide within ten days whether to take title “as is” without a decrease in the purchase price or to accept the return of the deposit and a cancellation of the contract. The Levins’ notice, which was addressed to Levin’s real estate attorney, identified the contract, identified the unpaid judgment that was the title defect, and offered to close “subject to” the judgment. It further stated:

As required by the contract, please have your client advise the Sellers in writing within 10 days as to whether or not your client is willing to accept the title subject to this alleged defect.

It further stated that the Levins would fully indemnify Lang against any claim arising from the lien of the Ethan Allen, Inc. judgment. We find that the omission of the words “unable to cure,” or their equivalent, did not render the Levin’s notice legally insufficient.

Lang’s real estate attorney testified at the non-jury trial that he understood what this notice meant. The following exchange took place on cross-examination:

LEVINS’ ATTORNEY: Q. Then on July 24th, Mr. Preve, who is a business manager for Mr. Levin, he sent you a notice under the contract that said that this [the unpaid judgment] was a problem; he did not think he would be able to remove it. He was invoking the clause of the contract that said the buyer has to either take the property as-ís, within ten days, or accept a return of deposit and a cancellation of the deal. That was the type of notice that he sent you, right?
LANG’S ATTORNEY: A. There was a notice to that effect. The date — I can identify it, if you like.

(emphasis added).

Lang’s attorney agreed that this was the type of notice that meant the Levins did not think they would be able to fix the title defect. Lang’s attorney replied to the notice within ten days of its receipt, just as the contract required. He never objected to the sufficiency of the notice. Lang’s attorney proceeded to reject the tender of title “as is” and threatened to sue if the title was not promptly conveyed to his client free of the defect. As such, it seems clear, that the Levins’ July 24, 2003 letter was unambiguous and sufficient to put Lang on notice that the Levins had decided they could not cure the title defect through reasonable efforts and that Lang had to decide whether to take the title “as is.” The notice’s only defect appears to be that the words, “inability to cure,” were not used. The trial court erred in ruling that the notice was insufficient due to the lack of this specific phrase.

We further note there is no evidence in the record indicating that Lang suffered any prejudice as a result of any alleged deficiency in the notice. In fact, the evidence indicates he understood exactly what the notice meant and rejected the contract in a timely manner.

In sum, the Levins’ written notice was sufficient to notify Lang to elect whether to take title “as is” or accept the return of his deposit. Accordingly, the trial court’s entry of final judgment of specific performance is reversed and the case is remanded for entry of judgment in favor of the Levins.

Reversed and remanded.


author: WARNER, J.

text:
    Frank R. MARIANO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1852.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Rehearing Denied Aug. 3, 2006.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Frank Mariano, Jr., appeals his conviction of one count of attempted second degree murder of his former girlfriend. Because the court erroneously (1) allowed impeachment of appellant on an irrelevant collateral matter and (2) admitted hearsay statements under the excited utterance exception to the hearsay rule, we reverse.

Around 4:30 a.m. on September 13, 2003, Deputies Brochu and Rice observed a vehicle drive by with the passenger door open. Brochu saw a female, whom he identified as Ann Schaab, Mariano’s former girlfriend, waving and screaming, and trying to jump out of the vehicle. Brochu directed Rice to pursue the vehicle. Rice turned on the patrol car lights, and the vehicle pulled over. At that point, Brochu and Rice saw Mariano and Schaab struggling in the front seat. Brochu saw Mariano hitting Schaab.

The two deputies approached the vehicle and saw that Mariano was holding a knife. Brochu drew his gun and ordered Mariano to open his door. Mariano refused, and Brochu found that the door was locked. Brochu ordered Schaab to exit the vehicle, which she did. Brochu then broke the car window with his baton and opened the door. He ordered Mariano to drop the knife, which he immediately did. He then held Mariano at gun point while Rice talked with Schaab.

Deputies Porcelli and Siemer also arrived at the scene and assisted in removing Mariano from the car and handcuffing him. Mariano had a gaping cut on his neck and needed to be airlifted to the hospital.

Deputies Rice, Brochu, and Porcelli all testified that they spoke to Schaab at the scene at different times. All three deputies testified to the same explanation of events relayed to them by Schaab. She told them that while she was driving a drunken Mariano back to his residence, they got into an argument. Mariano took over driving the car and began looking for an isolated spot along the road, saying that if he could not have her, then no one would. He had a knife with him.

In addition, the state called Mariano’s sister, Lorindo Chapman, who testified that a hysterical Schaab called her between 5:00 and 6:00 a.m. to tell her what had occurred. Schaab related the evening’s events and told Chapman that Mariano tried to stab her and threatened to run her down. This was the only specific threat evidence introduced.

On the defense case, both Mariano and Schaab testified to a series of events that minimized Mariano’s culpability. They explained that they had a twenty-year relationship, but prior to the incident in this case, they had separated. Schaab wanted the separation because she was dating someone else. On the evening of the incident, Mariano came over to Schaab’s home. While he was there, Schaab’s new boyfriend called. Mariano, who had been drinking, became very distraught and said that he was going to kill himself. Finally, Mariano asked Schaab to take him home, and she agreed.

While Schaab was driving, Mariano took out a knife and told Schaab that he was going to kill himself. He told her that if he could not have her, he did not want to live. At this point, Mariano wanted to drive so Schaab climbed over him and let him drive. She then saw a police car and opened her door so that she could flag it down to try to prevent Mariano from killing himself. She testified that she yelled to the police, “he’s [sic] got a knife, he’s going to kill himself,” but the police could not hear her.

Mariano and Schaab pulled over immediately when the police came behind them, and Schaab testified that she tried to open her door. At this point, Mariano reached over and shut the door because he did not want her to leave. When he reached over, the knife came close to Schaab and Schaab grabbed the knife, resulting in the cut to her two fingers. However, they both testified that he never pointed the knife at her. Additionally, they both denied that they were ever struggling in the car.

When Schaab was about to exit the vehicle, she looked over at Mariano and saw him slash his neck. Mariano testified that because he wanted to sit there and die, he did not open his door for the police. He wanted to kill himself to show Schaab his love. When the police did open the door, he immediately dropped the knife. Mariano did not recall speaking to the police at this point, but he did remember getting into the helicopter to be airlifted.

Mariano was convicted by the jury of attempted second degree murder with a weapon. He was sentenced to fifteen years in prison and to pay a $5,000 fine. He appeals his conviction and sentence.

Impeachment with Evidence of a Collateral Matter

During cross-examination of Mariano, the state asked him if he had threatened Schaab’s new boyfriend, to which he responded that he did not recall doing so. The state was then allowed to impeach him by making him read to the jury letters that he wrote to Schaab after the incident. These contained statements that, “I fear for his safety in time;” “[i]n which case he will pay, whichever the case, he will pay;” “I would hunt him to the end of the earth;” “h[e] has no idea who or what I am;” and “I never quit.” We conclude that it was error for the court to have permitted impeachment with this evidence involving a collateral matter.

Where a witness is cross-examined concerning a collateral or irrelevant matter, the examiner is bound by the answer and may not subsequently impeach the witness by introducing extrinsic evidence to impeach the witness on that point. Caruso v. State, 645 So.2d 389, 394 (Fla.1994). “The test is whether the proposed [impeachment] testimony can be admitted into evidence for any purpose independent of the contradictions. There are two types of evidence that pass this test: (1) facts relevant to a particular issue; and (2) facts which discredit a witness by pointing out the witness’ bias, corruption, or lack of competency.” Dupont v. State, 556 So.2d 457, 458 (Fla. 4th DCA 1990).

In Dupont, the defendant was charged with battery based on a fistfight. His defense was self-defense. On cross-examination Dupont denied verbally threatening the victim in an elevator during a court recess of the trial. The state then presented rebuttal testimony to prove that the elevator threat took place.

On appeal, we held that admission of the rebuttal testimony was error because it was irrelevant as it occurred several months after the fistfight. We determined that the testimony was not reputation testimony relating to his character for truthfulness, nor did it relate to any issue in the case, as the defendant had not put his character trait for violence in issue. We reversed, finding that the admission was harmful because the case hinged on the credibility of the defendant. Similarly, in Gelabert v. State, 407 So.2d 1007 (Fla. 5th DCA 1981), the fifth district held that evidence of collateral matters was inadmissible and not harmless, because it was evidence of bad character and a propensity toward violence.

The state contends that because Mariano was charged with attempted first degree premeditated murder, it requires that the state prove premeditation, and this collateral evidence was relevant to premeditation. However, the cases it cites for the proposition that threats to the victim or to another are proper evidence to show motive and intent are distinguishable, because they involve threats made prior to the criminal act in question. See Wilchcombe v. State, 842 So.2d 198 (Fla. 3d DCA 2003); Brown v. State, 611 So.2d 540 (Fla. 3d DCA 1992).

The state further argues that the evidence of the threat against the boyfriend is admissible because the boyfriend was listed as a trial witness. However, “in order for evidence of a threat against a witness to be relevant, the threat must pertain to the witness’s testifying about the crime or crimes for which the accused is standing trial.” Ford v. State, 801 So.2d 318, 320 (Fla. 1st DCA 2001). “Without some link to the charges being tried, a general threat is not admissible to show consciousness of guilt.” Id. The state presented no evidence as to what the boyfriend’s testimony was going to be had he testified, which he did not, or that he had any knowledge of the incident. We reject the other contentions made by the state.

Just as in Dupont and Gelabert, this evidence was not harmless. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). It tended to impermissibly discredit Mariano based upon evidence of bad character or a propensity toward violence, both of which are inadmissible matters. See Gelabert, 407 So.2d at 1010-11. The defendant’s case rested on the proposition that he was trying to kill only himself, not his girlfriend. This inadmissible evidence of a propensity for violence towards others cannot be considered harmless.

Excited Utterances

Over objection, the state introduced Schaab’s statements to the deputies at the scene, as well as statements she made to Mariano’s sister during an early morning phone call, as excited utterances, an exception to the hearsay rule. Section 90.803(2), Florida Statutes, provides:

(2) Excited utterance. — A statement or excited utterance relating to a startling event or condition made while the de-clarant was under the stress of excitement caused by the event or condition.

This provision was interpreted in Stoll v. State, 762 So.2d 870, 873 (Fla.2000), to require three elements:

[I]n order for an excited utterance to be admissible, the following requirements must be met: (1) there must have been an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must have been made while the person was under the stress of excitement caused by the startling event.

As stated by Professor Ehrhardt, excited utterances partake of sufficient guarantees of truthfulness because “a person who is excited as a result of a startling event does not have the reflective capacity which is essential for conscious misrepresentation.” Charles W. Ehrhardt, Florida Evidence § 803.2 (2003 ed.). Whether the necessary state of mind exists in the declarant to qualify the statement as an excited utterance is a preliminary fact for the court to determine pursuant to § 90.105, Florida Statutes, and the court’s rulings are reviewed for an abuse of discretion. Cotton v. State, 763 So.2d 437, 440-41 (Fla. 4th DCA 2000).

Generally, the most litigated element of the excited utterance factors is the time element. In State v. Jano, 524 So.2d 660 (Fla.1988), the supreme court noted, “ ‘As long as the excited state of mind is present when the statement is made, the statement is admissible if it meets the other requirements of Section 90.803(2). This excited state may exist a substantial length of time after the event.’ ” Id. at 661 (quoting 1 C. Ehrhardt, Florida Evidence § 803.2 at 473-74 (2d ed.1984)). “‘Perhaps an accurate rule of thumb might be that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.’ ” Id. at 662 (quoting E. Cleary, McCormick on Evidence § 297 at 856 (3d ed.1984)).

The supreme court discussed the time element again in Hutchinson v. State, 882 So.2d 943 (Fla.2004). In Hutchinson, in which the defendant was charged with first degree murder, a witness testified that on the night of the murder she spoke to one of the victims who told her that she had fought with the defendant that night. The trial court admitted this testimony as an excited utterance.

On appeal from the conviction and death sentence, the supreme court found that the time between the startling event, the fight, and the time of the phone conversation between the witness and the victim was not clear. The court stated that the only finding it could make was that the fight was probably between 7:00 and 7:30 p.m. and that without more information, the court could only speculate as to whether the victim engaged in reflective thought. Id. at 951. The court held that because the state failed to present evidence that the victim did not engage in reflective thought in the time period between the fight and the phone call, the victim’s statement could not be admitted as an excited utterance, even though the time between the startling event and the statement may have been relatively short. Id. at 951-52. Thus, Hutchinson reinforces the proposition that it is the state’s burden to prove that the declarant did not engage in reflective thought.

Moreover, the court also stated that the fact that the victim was still crying when the statement was made was not itself sufficient to demonstrate that she had not engaged in reflective thought. It cited with approval our statement in Chariot v. State, 679 So.2d 844, 845 (Fla. 4th DCA 1996), that “[a] statement as to what occurred does not become admissible merely because the victim is still in an excited state.” Hutchinson, 882 So.2d at 952.

In Chariot, a police officer testified that when he arrived at a victim’s house after a 9-1-1 call, she was frantic and hysterical. He was uncertain how long it took him to get the information from the victim but testified that he was in the apartment for about two hours. 679 So.2d at 845. We explained, as noted above, that the victim’s excited state does not alone make the statement admissible. “ ‘[I]f the supposed statement, exclamation, or spontaneous utterance takes the form of a narrative of a past event, it is very well established that it may not be considered as part of the transaction or res gestae.’ ” Id. (quoting Green v. State, 93 Fla. 1076, 113 So. 121, 123 (1927)).

In this case, Schaab called Chapman anywhere from thirty to ninety minutes after the event. By this time Schaab had been questioned by three deputies at the scene and related the events several times. Schaab was crying and hysterical when she informed Chapman about the events of the evening. Chapman testified that Schaab said that Mariano had tried to kill her and would run her over if she got out of the car.

Applying the rule of Jano, the interval between the event and the statement to Chapman was long enough to permit reflective thought. Thus, the statement is inadmissible unless there is evidence that reflective thought did not occur. The mere fact that Schaab was still upset and crying is not sufficient to show that reflective thought has not occurred. See Hutchinson; Chariot. Further, the statement took the form of a narrative of the events, which in and of itself indicates that the victim is reflecting upon the events of the evening. Because the only evidence the state provided to support the admission of the statement was the victim’s upset state, this was insufficient to warrant admission of the statement as an excited utterance.

The admission was not harmless, because Chapman testified that Schaab told her of specific threats that Mariano made to her, including that Mariano tried to stab her in the car and that he would run her down if she got out of the car. These specific threats were not harmless beyond a reasonable doubt. They went beyond the statements relayed by the officers and were inconsistent with Schaab’s trial testimony. Thus, they should not be admitted in a new trial.

Three deputies also testified to statements Schaab made to them at the scene. Mariano objected to Sehaab’s statements to Deputy Brochu as hearsay, but the trial court admitted the testimony under the excited utterance exception. However, similar testimony given by Deputies Rice and Porcelli was not objected to at trial.

Deputy Brochu testified that he spoke to Schaab about ten minutes after he and Rice stopped the vehicle. She was very concerned, upset, and was shaking. Over objection, Brochu testified to the narrative that Schaab gave to him.

She stated that she was at her residence in Jensen Beach, Martin County, Florida when the male, the driver, Mr. Frank Mariano came over to her house. He had been drinking. They had a discussion about their children. They had children together and had lived together in the past. That ...

Mariano objected again, contending that this was a “dialogue.” The court again overruled the objection, and Brochu continued:

That they got into an argument. That she was going to drive back to his residence in Port St. Lucie. As they were driving, they got into an argument. He took over driving the car and started looking for an isolated spot along Baker Road. He made statements that he wanted her to go with him. That if he could not have her, no one would. Along those lines.

This statement was merely a narrative of past events. In the recent case of J.A.S. v. State, 920 So.2d 759 (Fla. 2d DCA 2006), the deputy interviewed a father about an altercation with his son shortly after its occurrence. The second district, relying on Chariot, noted:

A narrative of a past event is generally not considered a spontaneous statement, Charlot v. State, 679 So.2d 844, 845 (Fla. 4th DCA 1996) (citing Green v. State, 93 Fla. 1076, 113 So. 121, 123 (1927)), nor is a statement in reply to questions from law enforcement, Blandenburg, 890 So.2d [267] at 272. Here, the father answered the deputy’s questions about how he had been injured. This was not a case in which the victim blurted out the details of a traumatic event without prompting. See, e.g., Rivera v. State, 718 So.2d 856 (Fla. 4th DCA 1998) (holding that excited utterance was proven when evidence showed that a patrol officer saw the victim screaming and waiving her hands; when he approached, she was crying, her dress was ripped, and she asked the officer to keep the defendant away from her).

Id. at 763. Similarly, there is no evidence that Schaab blurted out statements. Instead, she was merely responding to the deputy’s attempt to get information regarding what had occurred. She was explaining events earlier in the evening leading up to the incident in the car, not just a description of what occurred in the car.

Again, it is the state’s burden to show that the statement is an excited utterance. The state does not do this merely by showing that the statement was made close to the startling event and the declarant was upset. The deputy testified that the statements made by Schaab were prompted by his questioning. On this record, the court abused its discretion in admitting Brochu’s testimony regarding Schaab’s statement. See J.A.S.; Chariot.

We need not address the testimony of the other two deputies, as Mariano did not object to their testimony based upon the excited utterance exception. Even though Mariano’s objection to Deputy Brochu’s statement was overruled, it did not mean that his objection to the other statements would be futile. The application of the excited utterance exception is specific to each statement. Had he objected to the statements of the other deputies, the court may have found that these later statements were made too late and with time for Schaab to reflect. It could have also found that these clearly were narrative statements. We therefore do not address them as the issue was not preserved.

Because of the erroneous admission of improper collateral evidence as impeachment and the admission of hearsay evidence which did not qualify as excited utterances, we reverse Mariano’s conviction and sentence and remand for a new trial.

KLEIN, J. and BAILEY, JENNIFER D., Associate Judge, concur.


author: PER CURIAM.

text:
    Larry L. NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1352.
    District Court of Appeal of Florida, Second District.
    May 31, 2006.
    Rehearing Denied June 30, 2006.
   PER CURIAM.

Affirmed. See § 921.0012, Fla. Stat. (Supp.1994); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Nelson v. Moore; 802 So.2d 472 (Fla. 2d DCA 2001); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

DAVIS, WALLACE, and LaROSE, JJ., Concur.


author: PLEUS, C.J.

text:
    Harry S. LIEBLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4153.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.
    Rehearing Denied July 11, 2006.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, C.J.

Lieble, a five-time convicted sex offender in California, appeals his conviction for failure to register as a sex offender in Florida. He argues that the trial court erred in denying his motion to dismiss because his prosecution was barred by the three-year statute of limitations. We affirm.

Facts

The State filed an information against Lieble for failure to register as a sex offender within 48 hours after establishing a permanent or temporary residence in Florida, in violation of sections 943.0435(2) and (9), Florida Statutes. It alleged that the crime occurred on the day he was arrested, April 23, 2005.

Lieble filed a motion to dismiss, arguing that the prosecution should be barred because the three-year statute of limitations had expired. In support of his argument, Lieble alleged that he obtained a Florida driver’s license on January 10, '2002. Thus, Lieble claimed that prosecution had not commenced until after the three-year limitation period had expired.

At a hearing on the motion, the State and defense stipulated that Lieble obtained a Florida driver’s license more than three years before the State commenced its prosecution. Lieble argued that the limitations period for failure to register as a sex offender begins to run within 48 hours after the offender establishes a temporary or permanent residence. The State argued that the offense continues until the State discovers it or the offender registers.

The trial court denied the motion to dismiss, finding that the legislative purpose of the law was to prohibit a continuing course of conduct by sex offenders. Lieble pleaded no contest to the charge while reserving his right to appeal the denial of the dispositive motion to dismiss. After sentencing, Lieble timely appealed.

Analysis

We review this issue de novo as it involves an issue of statutory construction. S.S.M. v. State, 898 So.2d 84 (Fla. 5th DCA 2004). Section 943.0435(2)(a), Florida Statutes (2005), requires persons designated as sexual offenders to report in person at an FDLE office or local sheriffs office within 48 hours after establishing permanent or temporary residence in this state. Failure to report is a third degree felony. § 943.0435(9)(a), Fla. Stat. (2005). A prosecution for a third degree felony must be commenced within three years after it is committed. § 775.15(2)(b), Fla. Stat. (2005). Section 775.15(3) defines when a crime is committed, as follows:

An offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated. Time starts to run on the day after the offense is committed.

The sole issue before this Court is one of first impression: whether Lieble’s offense was committed 48 hours after he established a residence in Florida on January 10, 2002, or his offense continued until the police discovered the violation. If it was complete 48 hours after establishing residency, the limitations period began on January 13, 2002, and ended January 13, 2005, before the prosecution commenced. If the crime was continuing in nature, the limitations period arguably began when police learned of the violation in April 2005.

Pursuant to the requirement in section 775.15(3) that a legislative purpose to prohibit a continuing course of conduct “plainly appear” in order to construe this crime as continuing in nature, the trial court found that the legislative purposes and comprehensive provisions of section 943.0435 “compel the conclusion” that the Legislature intended to treat this crime as continuing in nature. In' support of this finding, the court noted that section 943.0435, Florida Statutes (2005), requires sexual offenders to report after establishing or changing a name, a residence, employment or enrollment at an institution of higher learning. See §§ 943.0435(2)(a), (2)(b), (4)(b), and (7), Fla. Stat. (2005). The court also noted the express statutory requirement that sexual offenders must maintain registration with the department for life. § 943.0435(11). Finally, the court noted the Legislature’s express finding that sexual offenders pose a high risk of engaging in sexual offenses after being released from custody and that protecting the public from sexual offenders is a “paramount government interest.” § 943.0435(12). We agree with the trial court that these provisions support the conclusion that the Legislature intended to make failure to register as a sex offender a continuing crime.

We also note that although no Florida cases have addressed the issue of whether failure to register as a sex offender is a continuing offense, courts from five other states (Alabama, Alaska, Arizona, California, and Colorado) have addressed it and all have concluded that failure to register as a sex offender is a continuing offense. See People v. Lopez, 2005 WL 3211641, 140 P.3d 106 (Colo.Ct.App.2005); State v. Hawkins, 39 P.3d 1126 (Alaska Ct.App.2002); State v. Helmer, 203 Ariz. 309, 53 P.3d 1153 (2002); State v. Goldberg, 819 So.2d 123 (Ala.Crim.App.2001); Wright v. Superior Court, 15 Cal.4th 521, 63 Cal.Rptr.2d 322, 936 P.2d 101 (1997).

In construing statutes similar to Florida’s registration statute, these cases have held that failure to register as a sex offender is a continuing offense for several reasons that also apply in this case. First, the express statutory language creates a continuing duty to register, which evinces an intent to treat failure to register as a continuing offense. § 943.0435(11); Lopez, 2005 WL 3211641, at *3, 140 P.3d at 109; Hawkins, 39 P.3d at 1128; Helmer, 53 P.3d at 1155; Goldberg, 819 So.2d at 125; Wright, 63 Cal.Rptr.2d 322, 936 P.2d at 104.

Second, the Legislature has expressly recognized that sex offenders present an ongoing danger to society. § 943.0435(12); Lopez, 2005 WL 3211641, at *3, 140 P.3d at 109; Hawkins, 39 P.3d at 1130; Helmer, 53 P.3d at 1155; Goldberg, 819 So.2d at 125-26; Wright, 63 Cal.Rptr.2d 322, 936 P.2d at 104. Third, failure to register meets the traditional definition of a continuing crime, which is commonly defined as an offense marked by a continuing duty in the defendant to do an act which he fails to do. Lopez, 2005 WL 3211641, at *3, 140 P.3d at 109; Helmer, 53 P.3d at 1155-56; Goldberg, 819 So.2d at 125; Wright, 63 Cal.Rptr.2d 322, 936 P.2d at 103-04. Fourth, to hold otherwise would produce an absurd result not reasonably contemplated by the Legislature and one which eviscerated the statute. Lopez, 2005 WL 3211641, at *3, 140 P.3d at 109; Helmer, 53 P.3d at 1155-56; Goldberg, 819 So.2d at 131; Wright, 63 Cal.Rptr.2d 322, 936 P.2d at 105.

Fifth, making failure to register a continuing offense recognizes the fact that convicted sex offenders often have a transitory lifestyle or deliberately attempt to keep their movements secret and thus avoids the problem of proving when the offender moved. Wright, 63 Cal.Rptr.2d 322, 936 P.2d at 103-07. In the instant case, Lieble admitted to police that he failed to register because he did not have a home and had been moving from hotel to hotel since moving to Florida. Accordingly, we find the analysis in these cases applies to the instant statute and further supports our conclusion that failure to register as a sex offender is a continuing crime.

Lieble relies solely on Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970), superseded by statute as noted in U.S. v. Eklund, 733 F.2d 1287 (8th Cir.1984). We note also that five of the six out-of-state cases cited above expressly distinguished Toussie in determining that failure to register as a sex offender was a continuing crime. We agree with these cases, that Toussie does not control our decision.

The Goldberg court concluded that:

A consideration of the express language of the statute, the nature of the offense, and the objectives of requiring sex offenders to register leads us to the conclusion that noncompliance with § 13A-11-200, Ala.Code 1975, constitutes a continuing offense. A sex offender’s failure to register, and the continued act of remaining unregistered, would significantly impair the purpose of the statute and the Legislature’s intent in creating the register. Therefore, we hold that the limitations period set forth in § 15-3-1, Ala.Code 1975, does not bar the prosecution in this case. To hold otherwise would thwart the Legislature’s intent, eviscerate the statute, and encourage sex offenders to “lay low” and wait for the limitations period to expire.

Goldberg, 819 So.2d at 131.

Based on the express language of the statute, the legislative intent behind the statute, the nature of the offense and the overwhelming weight of authority from other states, we conclude, as the trial court did, that the crime of failure to register as a sex offender is continuing in nature. We therefore affirm the conviction.

AFFIRMED.

THOMPSON and SAWAYA, JJ„ concur.

      . This case has not yet been released for publication in the permanent law reports and is currently only available on Westlaw.


author: FLETCHER, Judge.

text:
    CURLYCAN BAIL BONDS, INC., as Surety for Douglas Fonseca, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2020.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Rehearing Denied July 27, 2006.
    Michael A. Levin, Weston, for appellant.
    Charles J. Crist, Jr., Attorney General, and Charles M. Fahlbusch, Assistant Attorney General, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   FLETCHER, Judge.

Curlycan Bail Bonds, Inc. appeals from the denial of its motion for remission of forfeiture of a bond it posted for Douglas Fonseca. We affirm.

Fonseca was arrested and charged with drug trafficking. Curlycan posted a $250,000 bond for Fonseca’s release. When Fonseca failed to appear in court as scheduled, the bond was estreated. After extensive efforts, Curlycan was able to locate Fonseca in Venezuela. However, because the president of Venezuela refuses to extradite any native Venezuelan to another country, notwithstanding an existing treaty of extradition between the United States and Venezuela, Curlycan is unable to present Fonseca for prosecution.

Curlycan argues that it should be excused from its obligation because it could not have foreseen that a foreign sovereign would illegally interfere with its performance under the bond agreement. Curlycan contends that the court should apply the contract doctrine of impossibility of performance to excuse its failure to perform herein. A similar situation and argument was considered by the Fourth District Court of Appeal in Allegheny Casualty Co. v. State, 850 So.2d 669, 671 (Fla. 4th DCA 2003). The court stated therein:

“A bail bond is a three-party contract between the state, the accused, and the surety, whereby the surety guarantees appearance of the accused. See Pinellas County v. Robertson, 490 So.2d 1041, 1042 (Fla. 2d DCA 1986). The risk of a defendant not appearing is borne by the surety and the surety, in order to protect its interest, must take precautionary actions to prevent this type of situation. In the instant case, Surety’s performance was not rendered impossible by an act of God or an act of the State. Surety’s inability to perform its obligation is due to its own fault in permitting the defendant to leave the State of Florida.”

Here, it was also a combination of Fonse-ca’s voluntary action in fleeing to Venezuela and Curlycan’s failure to take precautionary action to prevent his leaving the jurisdiction which led to the surety’s inability to perform its obligation under the bond. Curlycan is therefore not entitled to be relieved of the monetary obligation it contractually assumed.

Affirmed.


author: WELLS, Judge.

text:
    HIALEAH HOUSING AUTHORITY, Appellant, v. Marta GARCIA, et al., Appellees.
    No. 3D05-1503.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.

      Citrin & Walker and J. Frost Walker, III, Coral Gables, for appellant.
    Manzini & Associates and Nicolas A. Manzini, for appellee Marta Garcia.
    Before LEVY and WELLS, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

Employer, Hialeah Housing Authority, appeals from a decision of the Unemployment Appeals Commission reversing a determination by an appeals referee disqualifying an employee from receiving unemployment compensation benefits because she had engaged in misconduct connected with work. See 443.036(29), Fla. Stat. (2005). We agree with the UAC that the facts as found by the appeals referee, while justifying termination of this employee, do not, as a matter of law, constitute misconduct connected with work so as to disqualify her from receiving unemployment compensation benefits. See Johnson v. Unemployment Appeals Comm’n, 884 So.2d 228, 229 (Fla. 2d DCA 2004) (confirming that misconduct under this provision is not mere inefficiency, unsatisfactory conduct, poor performance as a consequence of incapacity, inadvertence, good faith errors in judgment or discretion, or ordinary negligence in isolated instances and that misbehavior serious enough to warrant dismissal is not necessarily serious enough to sustain a forfeiture of unemployment benefits); Betancourt v. Sun Bank Miami, N.A, 672 So.2d 37, 38 (Fla. 3d DCA 1996) (stating that “[a]l-though an employee’s actions may justify discharge, the same conduct does not necessarily preclude entitlement to unemployment benefits”).

Accordingly, we affirm.

      . Section 443.036(29) in pertinent part provides:
      "Misconduct" includes, but is not limited to, the following, which may not be construed in pari material with each other:
      (a)Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
      (b)Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.


author: HAZOURI, J.

text:
    Shaunda HAYES, Appellant, v. WAL-MART STORES, INC, Appellee.
    No. 4D05-2526.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Rehearing Denied Aug. 3, 2006.

      Kimberly L. Boldt of Boldt Law Firm, Boca Raton, and Boone & Davis, P.A., Fort Lauderdale, for appellant.
    Alejandro Suarez of Marlow, Connell, Valerius, Abrams, Adler, Newman, Lewis & Blevins, Coral Gables, for appellee.
   HAZOURI, J.

Shaunda Hayes appeals from a final judgment in her favor after a trial on her negligence complaint against Wal-Mart Stores, Inc. Hayes raises two points on appeal. First, the trial court erred in prohibiting the cross-examination of defense experts concerning their reliance upon a medical report in forming their opinions. Second, the trial court erred in denying Hayes’s motion for new trial because the jury’s apportionment of liability was contrary to the manifest weight of the evidence. We affirm on both points.

Hayes filed a complaint alleging that Wal-Mart negligently maintained its premises by allowing water to sit on the floor and not warning patrons of the wet, slippery floor. She alleged that Wal-Mart knew of the condition or that it existed for a sufficient length of time that Wal-Mart should have known of it. She further alleged bodily injury that consisted of injury to her left ankle and/or her low back. Wal-Mart’s answer to the complaint denied the allegations and asserted Hayes’s comparative negligence.

We dispose of the second issue first, i.e., that the jury’s apportionment of liability was contrary to the manifest weight of the evidence. On the issue of liability, there were numerous witnesses called. Their testimony was in conflict as to negligence on the part of Wal-Mart Stores and the comparative negligence of Hayes. On the issue of liability, the jury reached a verdict after considering all of the testimony and the instructions of law on both parties’ negligence. It found that Hayes was 90% negligent and Wal-Mart was 10% negligent.

In Allstate Insurance Co. v. Manasse, 707 So.2d 1110 (Fla.1998), (quoting Cloud v. Fallis, 110 So.2d 669, 673 (Fla. 1959)), the supreme court held:

The judicial determination on a motion for new .trial is a discretionary act of the trial court:

When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached.

Id. at 1111. It is clear from a review of the record that there is a conflict in the testimony presented as to the issue of liability. It was not an abuse of discretion of the trial court to conclude that the jury’s determination of the percentage of negligence for each party was not contrary to the manifest weight of the evidence and should not be disturbed.

We now turn our attention to Hayes’s assertion that the trial court erred in prohibiting her counsel from cross-examining Wal-Mart’s expert witnesses on damages concerning a medical report which they each relied upon in forming their opinions.

“A trial judge’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” Johnston v. State, 863 So.2d 271, 278 (Fla. 2003). “The trial court’s discretion is limited by the rules of evidence.” Id.

In the early stages of litigation, Hayes was examined by Wal-Mart’s expert orthopedic surgeon, Dr. Martin B. Silverstein, for a compulsory physical examination (CPE). Dr. Silverstein’s report reflects that he examined Hayes’s ankle and her low back and opined that she had a permanent impairment of her left ankle in the range of 4-5% of the whole person. He noted that he disagreed with Dr. Shein-berg, Hayes’s treating physician’s, opinion that Hayes had a permanent impairment of 26% of the left ankle or 10% or the whole person. He also noted that her chronic low back syndrome was possibly aggravated by the long use of crutches after her ankle surgery. The permanent impairment which resulted from this “possible aggravation” was in the range of 1-2% of the whole person, “at most.” He further opined that she was not a candidate for any additional surgery and that although she may not be able to stand on her feet for eight hours a day in her job as a hairstylist, she certainly could work more than two days a week and at least four to six hours per day.

Dr. Silverstein became ill during the course of litigation and was not able to provide any expert testimony and, as a result, Hayes was examined by Dr. Verano Hermida, another orthopedic surgeon with Dr. Silverstein’s group, for a second CPE. When Dr. Hermida saw Hayes, she told him that her back had not been hurting her for approximately one month. He did not examine her low back but only examined her ankle. He concluded, based upon his examination, that she had a permanent injury of the ankle but no permanent injury of the low back.

In addition to Dr. Hermida, Jeffrey Car-lisle, Wal-Mart’s vocational rehabilitation counselor, testified that he had met with Hayes, administered vocational tests and reviewed medical records. Based upon his review of all these materials, he opined that she was employable at a sedentary-level capacity such as a receptionist. Upon cross-examination by Hayes’s counsel, Carlisle stated that in arriving at his opinion, although he had reviewed records including Dr. Silverstein’s report, he had relied primarily on the treating doctors’ reports and his own testing.

Wal-Mart’s counsel, anticipating that Hayes’s counsel would attempt to cross-examine Dr. Hermida and Carlisle concerning the contents of Dr. Silverstein’s report, made a motion in limine arguing that Hayes’s counsel should be prohibited from using this cross-examination as a conduit for admission of a medical report which would otherwise be inadmissible hearsay. The trial court was persuaded by Wal-Mart’s counsel’s argument and prohibited any inquiry of either Dr. Her-mida or Carlisle concerning Dr. Silver-stein’s report.

Section 90.704, Florida Statutes (2005), provides:

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.

Section 90.705(1) provides:

(1) Unless otherwise required by the court, an expert may testify in terms of opinion or inferences and give reasons without prior disclosure of the underlying facts or data. On cross-examination the expert shall be required to specify the facts or data.

An expert may base his or her opinion on facts or data which may not be admissible in evidence if the facts or data are reasonably relied upon by such experts. However, inadmissible facts or data may not be introduced through the direct testimony of the expert. Under such circumstances, the expert may not be used as a conduit for the admission of evidence. See Dep’t of Corr., State of Fla. v. Williams, 549 So.2d 1071 (Fla. 5th DCA 1989); Riggins v. Mariner Boat Works, Inc., 545 So.2d 430 (Fla. 2d DCA 1989); Smithson v. V.M.S. Realty, Inc., 536 So.2d 260 (Fla. 3d DCA 1988); 3-M Corp. McGhan Med. Reports Div. v. Brown, 475 So.2d 994 (Fla. 1st DCA 1985). Such prohibition does not apply when the expert is subjected to cross-examination. See Kelly v. State Farm Mut. Auto. Ins., 720 So.2d 1145 (Fla. 5th DCA 1998).

In Kelly, the court agreed with Williams and held that “[n]ormally an expert witness may not be used as a conduit to place otherwise inadmissable [sic] evidence before a jury.” Kelly, 720 So.2d at 1146. However, State Farm’s expert, who performed a CPE on the plaintiff, testified that he could not find any purely objective evidence to suggest a permanent impairment partially basing his opinion on medical records compiled by other physicians. When Kelly attempted to cross-examine the surgeon about the evaluations of other physicians upon which the surgeon relied, the trial court sustained State Farm’s objection that the evaluations by the other physicians were hearsay. Kelly was prevented from inquiring into the foundation of the surgeon’s opinions.

In finding this to be error, the district court held:

When the surgeon testified on direct that he had based his opinion on the medical reports of other physicians, this opened the door for cross-examination by Kelly and it would have been proper for Kelly to then make full inquiry into the medical reports relied upon by the surgeon.

Id. at 1147. Once the door was opened as in Kelly, the trial court erred in prohibiting Hayes’s counsel from cross-examining Dr. Hermida and Carlisle about their reliance on Dr. Silverstein’s report.

Although the trial court erred in this regard, we conclude the error was harmless. There is nothing contained in Dr. Silverstein’s report which causes us to conclude the determination of the damages in this case was affected by this error. On the issue of damages, the jury returned a verdict finding that Hayes had sustained a total of $115,000 for medical expenses and lost earnings. It determined that Hayes had zero damages for future medical expenses and lost earnings but awarded Hayes $150,000 for past pain and suffering.

Dr. Hermida’s testimony on direct examination was that Hayes did not need any additional surgery and that although she had a permanent injury to her left ankle, she was employable. He arrived at the conclusion she had no permanent injury of the low back based upon her lack of complaints during his examination. This testimony by Dr. Hermida is not significantly different than the opinions, recommendations and diagnoses rendered in Dr. Silverstein’s report.

As far as vocational expert, Carlisle, is concerned, he testified on direct examination that although he had reviewed Dr. Silverstein’s report, he arrived at his opinion concerning her employability and limitations primarily based upon a review of the records of Hayes’s treating physicians. His opinion that she could be employable at a sedentary job is not significantly different from the opinion expressed in Dr. Silverstein’s report. Dr. Silverstein’s report notes that although Hayes may not be able to stand on her feet for eight hours in her job as a hairstylist, she certainly could work more than two days a week and at least for four to six hours per day. Based upon the foregoing we find the error to be harmless.

Affirmed.

WARNER and GROSS, JJ., concur.


text:
    STATE of Louisiana v. Troy FREITAG-SHAW.
    No. 2006-KP-1607.
    Supreme Court of Louisiana.
    June 23, 2006.
   In re Freitag-Shaw, Troy; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 397316; to the Court of Appeal, First Circuit, No. 2006 KW 1016.

Denied.


author: JOHNSON, J.,

text:
    THEUS CONSULTING COMPANY, L.L.C., et al. v. Willie EALY and Ezell Ealy, Jr.
    No. 2006-OC-1608.
    Supreme Court of Louisiana.
    June 26, 2006.
   In re Ealy, Ezell Jr.; Ealy, Willie et al.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. A, No. 04-004597; to the Court of Appeal, Second Circuit, No. 41,306-CA.

Denied.

JOHNSON, J.,

concurs in denial of request to supplement record in Court of Appeal. The court does have authority to remand particularly since this matter was decided on Summary Judgment.


text:
    Stacy Bradford, Wife of/and Ray BRADFORD, Individually and on Behalf of Their Minor Child, Mayson Bradford v. R. Harlan STRUBLE, M.D. and Louisiana Patients’ Compensation Fund and Oversight Board.
    No. 2006-C-1430.
    Supreme Court of Louisiana.
    June 28, 2006.
   In re Louisiana Patients’ Compensation Fund and Oversight Board; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2001-13165; to the Court of Appeal, First Circuit, No. 2004 CA 2485.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Peggy FAMISAN v. TREASURE CHEST CASINO, L.L.C.
    No. 2006-CC-1529.
    Supreme Court of Louisiana.
    June 28, 2006.
   In re Famisan, Peggy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 589-910; to the Court of Appeal, Fifth Circuit, No. 06-C-263.

Denied.


text:
    MOSSY MOTORS, INC. v. CAMERAS AMERICA.
    No. 2006-CC-1613.
    Supreme Court of Louisiana.
    June 28, 2006.
   In re Canal Indemnity Company;— Third Party; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2001-20594; to the Court of Appeal, Fourth Circuit, No. 2006-C-0791.

Denied.


text:
    Jeremy Dean FOLEY and Joy Dawn Foley, Individually and on Behalf of Their Minor Children, Nikolas Foley and Dylan Foley v. ENTERGY LOUISIANA, INC., Feliciana, a Louisiana Partnership in Commendam and Latter & Blum, Inc.
    No. 2006-C-0983.
    Supreme Court of Louisiana.
    June 30, 2006.
   In re Entergy Louisiana L.L.C. f/k/a; Entergy Louisiana Inc. et al.; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. H, No. 1999-09959; to the Court of Appeal, Fourth Circuit, No. 2004-CA-1967.

Granted.


text:
    Calvin RABALAIS and Merion Rabalais v. Lloyd A. NASH, Jr., et al.
    No. 2006-C-0999.
    Supreme Court of Louisiana.
    June 30, 2006.
   In re Marksville City of; American Alternative Insurance Corporation; Marks-ville City Fire Department; Nash, Lloyd A. Jr. et al.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 20023657-B; to the Court of Appeal, Third Circuit, No. 05-937.

Granted.


text:
    STATE of Louisiana v. Romallis STUKES.
    No. 2006-KK-0766.
    Supreme Court of Louisiana.
    June 30, 2006.
   In re Stukes, Romallis; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 443-727; to the Court of Appeal, Fourth Circuit, No. 2005-K-0892.

Granted and remanded to the Court of Appeal for briefing, argument and opinion.


text:
    Mardrie JACKSON, Individually and on Behalf of the Estate of Millard Jackson v. BAPTIST RETIREMENT CENTER OF ARCADIA, Leslie Lakes Care Center d/b/a Leslie Lakes Retirement Center, Paramount Rehabilitation of Louisiana, DKP Investments, Inc., Leslie Lakes Retirement Company, LLRC, Inc., and DALYT, LLC.
    No. 2006-CC-1037.
    Supreme Court of Louisiana.
    June 30, 2006.
   In re Baptist Retirement Center of Arcadia et al.; Leslie Lakes Care Center d/b/a; Paramount Rehabilitation of Louisiana; Leslie Lakes Retirement Company; DALYT LLC; Leslie Lakes Retirement Center; DKP Investments Inc.; LLRC Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Bienville, 2nd Judicial District Court Div. C, No. 38-696; to the Court of Appeal, Second Circuit, No. 41275-CW.

Granted in part. The trial court’s order is modified to provide that defendants are required to produce the requested discovery subject to the provision that any personal information which would identify the non-party patients shall be redacted from the records prior to production. See Speer v. Whitecloud, 99-1879 (La.10/15/99), 744 So.2d 1283. In all other respects, the application is denied.

VICTORY, J., to grant and docket.

WEIMER, J., to deny.


text:
    In re Darrin B. BROWDER.
    No. 2006-OB-1158.
    Supreme Court of Louisiana.
    June 30, 2006.
   In re Browder, Darrin B.; — Plaintiff; Applying for Appointment of Commissioner.

Denied. Applicant may not reapply in less than one year, and must show a change in circumstances. See, In re Jordan, 00-3006 (La.12/15/00), 775 So.2d 1065.

JOHNSON, J., recused.

CALOGERO, C.J., would appoint a commissioner.

WEIMER, J., would appoint a commissioner.


text:
    Ann H. Womer BENJAMIN, Successor to J. Lee Covington, II, Ohio Superintendent of Insurance as Liquidator of Credit General Insurance Company v. E.J. HALVERSON & ASSOCIATES INC.
    No. 2006-C-0678.
    Supreme Court of Louisiana.
    June 30, 2006.
   In re E. Halverson & Associates Inc.;— Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 603-433; to the Court of Appeal, Fifth Circuit, No. 05-CA-772.

Denied.


text:
    In the Matter of the SUCCESSION OF Arthur L. ROBINSON.
    No. 2006-CC-0901.
    Supreme Court of Louisiana.
    June 30, 2006.
   In re Harlan, Charles G.; Harlan, Suzanne D.; — Other(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 78179; to the Court of Appeal, First Circuit, No. 2005 CW 2506.

Denied.


text:
    Michael A. VOISIN, Sr. v. INTERNATIONAL COMPANIES & CONSULTING INC. d/b/a International Construction Services, Inc. and Michael Williams.
    No. 2006-C-1019.
    Supreme Court of Louisiana.
    June 30, 2006.
   In re Clement, Sherry Voisin; Goodroe, Terri Voisin; Voisin, Michael Anthony Jr.; Voisin, Maxine Thibodaux; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. D, No. 86836; to the Court of Appeal, First Circuit, No. 2005 CA 0265.

Denied.

CALOGERO, C.J., to grant.


text:
    SUCCESSION OF Samuel MCKAY, Jr.
    No. 2006-C-0504.
    Supreme Court of Louisiana.
    June 30, 2006.
   In re Burgess, Calwell; — Other; Applying for Reconsideration of this Court’s order dated June 2, 2006; Parish of Rapides, 9th Judicial District Court Division C, No. 33,700, to the Court of Appeal, Third Circuit, No. CA 05-603.

Reconsideration not considered. See Supreme Court Rule 9, Section 6. Motion for Extension denied.

JOHNSON, J., would grant reconsideration and motion for extension of time.