text:
    STRANAHAN HOUSE, INC., a Florida not-for-profit corporation, and Friends of the Park at Stranahan House, Inc., a Florida not-for-profit corporation, Petitioners, v. CITY OF FORT LAUDERDALE, a Florida municipal corporation, Coolidge-South Markets Equities, L.P., a foreign limited partnership, Respondents.
    No. 4D05-2138.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.

      W. Tucker Gibbs of W. Tucker Gibbs, P.A., Coconut Grove, and Mark Journey and Kendall Coffey of Coffey & Wright, L.L.P., Miami, for petitioners.
    Alain E. Boileau and Robert H. Schwartz of Adorno & Yoss LLP, Ft. Lauderdale, for respondent City of Fort Lauderdale.
    Jack J. Aiello and Robert Haekleman of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for respondent Coolidge-South Markets Equities, L.P., a foreign limited partnership.
   MAY, J.

Stranahan House, Inc., and Friends of the Park at Stranahan House, Inc., both Florida not-for-profit corporations, filed a petition for writ of certiorari seeking to quash a trial court order that denied their petition for writ of mandamus. They argue the trial court applied the wrong law in ruling on their petition. We agree and grant the petition, issue the writ, and quash the order of the trial court.

On April 21, 2005, the City of Fort Lauderdale sent a letter to the petitioners indicating that the Historic Preservation Board [HPB] would not proceed with their application for designation of the Strana-han House, Trading Post and Camp Site as an historic landmark based upon the advice of the City’s attorney. On May 5, 2005, the petitioners filed a petition for a writ of mandamus in the circuit court seeking to require the City to accept, process, and review its application. The circuit court denied the petition on May 13, 2005, finding that petitioners had failed to establish a clear entitlement to the writ based upon the discretion provided to the HPB in designating historic sites.

On this second tier certiorari review, we are restricted to determining whether the circuit court afforded procedural due process and applied the correct law. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995).

The petitioners contend that once they submitted their application for historic designation pursuant to the' Unified Land Development Regulations [ULDR], the City’s only duty was to ensure the application was complete before submitting it to the HPB, a ministerial act. They argue that the City refused to perform that ministerial act and the trial court erred when it denied the petition for writ of mandamus. We agree.

The Unified Land Development Regulations [ULDR] provide:

a. An application for an historic designation shall be submitted to the historic preservation board for review.
b. Within sixty (60) days of submission of a complete application, after notice is given in accordance with Sec. 47-27.7, Notice Procedures for Public Hearings, the board shall hold a public hearing to consider the application and the record and recommendations forwarded by the department and shall hear public comment on the application.
c. The board shall review the application and decide if it meets the criteria for designation as provided in this section.

§ 47-24.11.B.3 Fort Lauderdale, Fla., Code (1997) (emphasis added). The ULDR provides that the application shall be submitted. By refusing to submit the application to the HPB, the City prohibited the application from being considered by the HPB, the process identified in the ULDR.

The trial court found that petitioners had failed to establish a clear entitlement to the writ of mandamus. While the trial court agreed that subsections (a) and (b) of the ULDR provide a mandatory, nondis-cretionary duty to set the application for hearing within 60 days of receiving a completed application, it read those subsections that provide the HPB with discretion. The trial court then reasoned that the HPB’s designation of a historic site is ultimately a discretionary act, and not subject to the issuance of a writ of mandamus. In reaching this conclusion, however, the trial court overlooked the real issue: whether the City can refuse to accept a completed application and forward it to the HPB.

The City responds that the HPB had not previously objected to the development plan for the property and a circuit court in an eminent domain proceeding had already determined that the City had failed to “present substantial, competent evidence showing [the land was] a historical resource.... ” The City suggests that the HPB’s conclusion is therefore a fait accompli. It then argues that mandamus will not lie to require the performance of a futile act. See Migliore v. City of Lauderhill, 415 So.2d 62, 65 (Fla. 4th DCA 1982).

We do not dispute the principles espoused by the City, but find their application misplaced. First, the decision not to designate the property as a historical landmark was not a decision of the HPB, but rather a decision of another trial court in eminent domain proceedings involving the same property. Second, while the HPB may reach the same conclusion, the application should be processed in compliance with the ULDR.

We therefore grant the petition, issue the writ, and quash the order of the trial court with directions to issue the writ of mandamus requiring the City to forward the application to the HPB.

POLEN and HAZOURI, JJ., concur.

      . The respondents are the City of Fort Laud-erdale, and the owner of the property adjoining the Stranahan House, Coolidge-South Markets Equities, L.P., a foreign limited partnership. Although both respondents filed Responses, which have been considered, the opinion refers only to the City for ease of reference.


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    In re: COMMITMENT OF Stephen ALLEN. Stephen Allen, Appellant, v. State of Florida, Appellee.
    No. 2D04-5139.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.

      James Marion Moorman, Public Defender, and Jeanine Cohen, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Stephen Allen appeals an order of the circuit court entered pursuant to the “Jimmy Ryce Act,” finding that there was no probable cause to believe that his condition had so changed that it was now safe for him to be released. Because Allen bore the burden of proof 'to establish probable cause and he presented no evidence to do so, we affirm.

On February 27, 2002, Allen was committed to the custody of the Department of Children and Family Services after a- jury found him to be a sexually violent predator under section 394.917, Florida Statutes (1999). Section 394.918 establishes the following procedure for persons committed under this chapter:

(1) A person - committed under this part shall have an examination of his or her mental condition once every year or more frequently at the court’s discretion. The person may retain or, if the person is indigent and so requests, the court may appoint, a qualified professional to examine the person. Such a professional shall have access to all records concerning the person. The results of the examination shall be provided to the court that committed the person under this part. Upon receipt of the report, the court shall conduct a review of the person’s status.
(2) The department shall provide the person with annual written notice of the person’s right to petition the court for release over the objection of the director of the facility, where the person is housed. The notice must contain a waiver of rights. The director of the facility shall forward the notice and waiver form to the court. ’
(3) The court shall hold a limited hearing to determine whether there is probable cause to believe that the person’s condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged. The person has the right to be represented by counsel at the probable cause hearing, but the person is not entitled to be present. If the co,urt determines that there is probable cause to believe it is safe to release the person, the court shall set a trial before the court on the issue.
(4)At the trial before the court, the person is entitled to be present and is entitled to the benefit of all constitutional protections afforded the person at the initial trial, except for the right to a jury. The state attorney shall represent the state and has the right to have the person examined by professionals chosen by the state. At the hearing, the state bears the burden of proving, by . clear and convincing evidence, that the person’s mental condition remains such that it is not safe fpr the person to be at large.and that, if released, the person is likely to engage in acts of sexual violence.

Pursuant to section 394.918(3), Allen was entitled to an annual probable cause hearing to determine if his condition had changed. However, in March 2003, the circuit court determined that it was unnecessary to set a probable cause hearing, because Allen failed to participate in the evaluation process and treatment program. In Allen v. State, 873 So.2d 576, 579 (Fla. 2d DCA 2004), this court granted Allen’s petition for a writ of mandamus, holding that the circuit court was required to hold a limited probable cause hearing pursuant to section 394.918(3), at which Allen was entitled to be represented by counsel even though he was not entitled to be present at the hearing.

On July 20, 2004, the circuit court held a probable- cause hearing and determined that there was no probable cause to believe that Allen’s condition had so changed that it was safe for him to be at large and that Allen would not engage in acts of sexual violence if discharged. The circuit court based its determination on a report from the executive director, Rick Harry, and the clinical director,. Dr. Michael Lipscomb, of the Florida Civil Commitment Center, which report concluded that Allen’s mental condition had not changed so that it would be safe to release him into the community. The report noted that Allen refused to participate in an evaluation process and refused to participate in the treatment program. Allen did not present any independent proof that his condition had changed or that it was safe for him to be at large. On appeal, Allen contends that the report, which was signed by the two representatives of the Florida Civil Commitment Center but not sworn to under oath, provided insufficient evidence to make a probable cause determination. The State argues that Allen had the burden to prove that there was probable cause to believe that his condition had changed.

We have, found only one case addressing the burden of proof required at the probable cause hearing under settion 394.918. In Westerheide v. State, 888 So.2d 702, 705 (Fla. 5th DCA 2004), the Fifth District noted that the Florida Legislature directed that civil commitment procéedings under this chapter are to be conducted according to the Florida Rules of Civil Procedure unless otherwise specified. See § 394.9155(1). The court reasoned that, because the burden of proof should be analyzed using rules of civil procedure, “the party asserting the affirmative of the issue” would bear the burden of proof. Westerheide, 888 So.2d at 705 (quoting In re Ziy’s Estate, 223 So.2d 42, 43 (Fla.1969)). The Fifth District concluded that “where, as in this case, the annual report concludes that- continued commitment is necessary, the burden is properly on the committed person to prove that it is no longer necessary that his commitment be continued.” Westerheide, 888 So.2d at 705.

We agree with the reasoning of the Fifth District and conclude that Allen had the burden of proof to establish that there was probable cause to believe that his condition had changed pursuant to the criteria in' section 394.918. The language in section 394.918 differentiating the proceedings required under that section supports this conclusion.

. Section 394.918(3) provides that when, a circuit court determines that there is probable cause to believe that a, person’s condition has changed, the court shall set a trial to address the issue. Section 394.918(4) specifically provides that at that trial, “the state bears the. burden of proving, by dear and convincing evidence, that the person’s mental condition remains such that it is hot safe for the person to be at large ánd that, if released, the person is likely to engage in acts of sexual violence.” (Emphasis added.) The omission of the emphasized language from section 394.918(3) suggests that the legislature did not intend that the State have the burden of proof at the limited probable cause hearing. See L.K. v. Dep’t of Juvenile Justice, 917 So.2d 919, 921 (Fla. 1st DCA 2005) (“It is a general canon of statutory construction that, when the legislature includes particular language in one section of a statute but not in another section of the same statute, the omitted language is presumed to have been excluded intentionally.”).

At the circuit court hearing, Allen presented no evidence suggesting that there was probable cause to believe that his condition had so changed that it was safe for him to be released and that he would not engage in acts of sexual violence if released. Therefore, Allen failed to meet his burden of proof and the circuit court correctly found that there was no probable cause to believe that Allen’s condition had changed.

We also agree with the Fifth District in Westerheide, 888 So.2d at 706, that to establish probable cause, the petitioner’s attorney should be allowed to present evidence by testimony or affidavit. In determining whether a petitioner has met the burden of proof to establish probable cause, the court should base its decision “upon an analysis of the sufficiency of the evidence presented, rather than by weighing the evidence presented by both parties at the probable cause hearing.” Westerheide, 888 So.2d at 706. As noted in West-erheide, “allowing the decision to be made based upon the weighing of conflicting evidence presented in an evidentiary hearing would create significant due process problems.” Id. In other words, if the committed person presents evidence supporting release at a limited probable cause hearing, the trial court considers only that evidence to determine probable cause; it does not weigh the evidence against any letter from the Florida Civil Commitment Center or other evidence presented by the State.

In summary, the circuit court must determine whether the petitioner’s evidence is sufficient to meet his or her burden of proof. If the petitioner establishes probable cause to believe that his condition has changed, then a full trial should be held pursuant to section 394.918(4). If the petitioner’s evidence is insufficient to establish probable cause, then no trial is necessary.

The probable cause hearing in this case was held before the issuance of the opinion in Westerheide. As a result, there was significant confusion over who bore the burden of proof and what evidence the trial court should consider. Because we conclude that Allen bore the burden of proof and failed to present any evidence, we affirm the trial court’s order. However, we do so without prejudice to providing Allen an opportunity to present evidence supporting his release in a new limited probable cause hearing.

Affirmed.

DAVIS and SILBERMAN, JJ., Concur.

      . §§ 394.910-.931, Fla. Stat. (1999).

      . As later noted, section 394.918(4) identifies proceedings in which the State has the bur.den of proof.

      . Section 394.9155(5), Florida Statutes (1999), provides that "[h]earsay evidence, including reports of a member of the multidisciplinary team or reports produced on behalf of the multidisciplinary team, is admissible in proceedings under this part unless the court finds that such evidence is not reliable. In a trial, however, hearsay evidence may not be used as the sole basis for committing a person under this part.”

      . In Allen, 873 So.2d at 579, we noted that section 394.918(3) provides that the committed individual is entitled to counsel at the limited probable cause hearing. It is not clear from the statute or case law precisely when counsel should be appointed during the procedure leading up to the probable cause hearing. While it would seem unnecessary to appoint counsel until there is some indication that the committed individual intends to challenge his continued commitment during the annual process, the appointment of counsel may be required soon thereafter to assist in gathering any evidence necessary in anticipation of the limited probable cause hearing.

      .The order we review involved Allen's 2004 annual review. Our record does not reflect whether a 2005 or 2006 review was conducted. If an annual review is expected within the next few months, Allen may present such evidence at the next annual review. If Allen’s annual review for 2006 has taken place or is not expected for more than a few months, an earlier hearing may be called for if Allen is prepared to present evidence on this issue.


author: SILBERMAN, Judge.

text:
    Milton R. FARMER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4998.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.
   SILBERMAN, Judge.

Milton R. Farmer filed a motion for mitigation or reduction of his sentence pursuant to Florida Rule of Criminal Procedure 3.800(c) and a motion to enlarge the time for the court to rule on his motion for mitigation or reduction. The postconviction court dismissed the motion for mitigation or reduction but granted Farmer an additional sixty days to file a new rule 3.800(c) motion. The court stated that no further extensions would be granted.

Several weeks later, Farmer filed a second motion for enlargement of time, asking the postconviction court to “hear, investigate, and rule” on his previously dismissed rule 3.800(c) motion. He also filed a motion to compel the State Attorney’s Office to produce records that he claimed would enable him to seek postcon-viction relief. In his filings, Farmer asserted that the requested records would establish his actual innocence on one of the charges. In an order entered August 29, 2005, the postconviction court denied the second motion for enlargement of time and the motion to compel. Farmer appeals that order. We treat Farmer’s appeal of the denial of his second motion for enlargement of time as a petition for writ of certiorari and deny it without comment. However, we reverse the denial of his motion to compel and remand for further proceedings.

In his motion to compel, Farmer alleged that he was seeking certain public records from the State Attorney’s Office under chapter 119, Florida Statutes (2004). He referred to and filed a copy of a letter that he had previously sent to the State Attorney, requesting the records and acknowledging his obligation to pay the cost to duplicate the records. He alleged that he received no response to his request.

The postconviction court denied the motion to compel, citing to Florida Rule of Judicial Administration 2.051, chapter 119, and Farmer’s obligation to pay for copies of the requested information. Apart from the copying cost, the order does not indicate how Farmer’s motion fails to comply with rule 2.051 or chapter 119. As to the copying cost, Farmer had acknowledged his obligation to make payment.

It appears that Farmer’s motion to compel and attachments meet the requirements for a petition for writ of mandamus. See Radford v. Brock, 914 So.2d 1066 (Fla. 2d DCA 2005); Smith v. State, 696 So.2d 814 (Fla. 2d DCA 1997). Thus, the post-conviction court should have treated the motion as a petition for writ of mandamus directed to the State Attorney. See King v. State, 916 So.2d 1001 (Fla. 2d DCA 2005). Accordingly, we reverse the order denying the motion to compel. On remand, the postconviction court shall treat the motion as a petition for writ of mandamus and shall issue an alternative writ requiring the State Attorney’s Office to show cause why the writ should not be issued. See Radford, 914 So.2d at 1069; Smith, 696 So.2d at 816.

Therefore, as to the denial of Farmer’s second motion for enlargement of time, we deny certiorari; as to the denial of Farmer’s motion to compel, we reverse and remand for further proceedings.

NORTHCUTT and DAVIS, JJ., Concur.

      . In Farmer’s previously dismissed motion for mitigation or reduction of sentence he stated that he was pursuing relief under rule 3.800 because it "is more economical, judicially, than awaiting a rule 3.850 motion for post-conviction relief.” He acknowledged that he wanted an evidentiary hearing "to determine the facts of the matter.” However, rule 3.800(c) addresses the reduction or modification of a legal sentence, not relief from a judgment and sentence based on a claim of innocence.

      . The order appears to contain a scrivener's error as it cites to rule 2.501, which is nonexistent.


author: DAVIS, Judge.

text:
    Davon Quanterio SHEFFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-5140.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

In this belated appeal, Davon Quanterio Sheffield challenges his judgment and sentence for attempted first-degree murder in trial court case number 03-CF-5665 and the revocation of his probation in trial court case numbers 01-CF-8207 and 01-CF-11195. We affirm his judgment and sentence for attempted first-degree murder and the revocation of his probation in trial court case number 01-CF-8207.

We reverse, however, the revocation of Sheffield’s probation in case number 01-CF-11195 because the State failed to meet its burden of proof to demonstrate that he violated his probation by possessing cocaine and by failing to attend AA/NA meetings. Although Sheffield’s counsel did not object to the revocation, the State’s failure to introduce any evidence in support of the revocation requires us to reverse. See F.B. v. State, 852 So.2d 226, 280 (Fla.2003).

Affirmed in part and reversed in part.

SALCINES and LaROSE, JJ., Concur.

      . The affidavit upon which the revocation was based failed to allege that Sheffield violated his probation by committing a new violation of law.


text:
    M.J.T., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1566.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

M.J.T. challenges the trial court’s order requiring him to pay $1113.57 in restitution. The State concedes that the explanation of medical benefits (EOMB) forms that were introduced to support the victim’s claim for medical costs were not properly admitted. We agree and, accordingly, reverse and remand for a new restitution hearing.

The only evidence introduced at the restitution hearing to support the victim’s medical costs were the EOMB forms, which specifically state that they are not medical bills. While medical bills may be introduced without producing the records custodian to testify, A. J. v. State, 677 So.2d 935, 938 (Fla. 4th DCA 1996), the documents here were not bills. Because the EOMB forms were hearsay, to which M.J.T.’s counsel objected at the hearing, the trial court erred in awarding restitution based on the amounts shown on those EOMB forms.

Accordingly, we reduce the $1113.57 restitution award by $909.38, the amount improperly awarded for medical bills, and remand for another restitution hearing to determine the proper amount of medical expenses. See Williams v. State, 850 So.2d 627 (Fla. 2d DCA 2003).

Reversed and remanded.

SALCINES and LaROSE, JJ., Concur.


author: CANADY, Judge.

text:
    Matthew FOWLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1669.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

Matthew Fowler appeals his conviction after jury trial of carrying a concealed weapon by a violent career criminal. Relying on Williams v. State, 776 So.2d 358 (Fla. 1st DCA 2001), Fowler argues that his conviction is erroneous because he did not qualify as a violent career criminal. The State concedes that Fowler’s conviction should be reversed.

Based on the State’s confession of error, we reverse Fowler’s conviction and sentence and remand for the trial court to enter a judgment and impose a sentence for the lesser-included offense of carrying a concealed weapon by a convicted felon under section 790.23, Florida Statutes (2003). See Williams, 776 So.2d at 359.

Reversed and remanded.

ALTENBERND and NORTHCUTT, JJ., Concur.


author: PER CURIAM.

text:
    Frank DAMIAN, Appellant, v. Jesse DAMIAN, Appellee.
    No. 2D05-4479.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.
    Jesse L. Skipper of Jesse L. Skipper, P.A., St. Petersburg, for Appellant.
    Sarah M. Chaves, St. Petersburg, for Appellee.
   PER CURIAM.

We affirm "without prejudice to the Former Husband filing a motion pursuant to Florida Rule of Civil Procedure 1.540 challenging the trial court’s continuing jurisdiction to enter the judgment enforcing the final judgment of dissolution of marriage. See Bridges v. Bridges, 848 So.2d 403 (Fla. 2d DCA 2003); Harman v. Harman, 523 So.2d 187 (Fla. 2d DCA 1988).

Affirmed.

WHATLEY, CASANUEVA, and WALLACE, JJ., Concur.


author: LaROSE, Judge.

text:
    David DENMARK, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-5107.
    District Court of Appeal of Florida, Second District.
    May 17, 2006.

      John R. Blue, Alina Alonso, and Sorraya Solages of Carlton Fields, P.A., Miami, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

David Denmark seeks a new trial on charges of battery on a law enforcement officer, depriving an officer of means of protection, and resisting an officer without violence. He argues that the State’s use of prior offenses deprived him of a fair trial. We agree and reverse and remand for a new trial.

Background

The charges against Mr. Denmark stem from a January 2001 incident during which law enforcement officers spotted him on property posted “no trespassing.” Two officers stopped Mr. Denmark and asked for his name. Learning that Mr. Denmark had given a false name, the officers summoned backup. When asked again for his name, Mr. Denmark gave another false name. This time, however, the officers’ name check revealed an outstanding warrant for the person whose name Mr. Denmark had volunteered. At that point, two officers surrounded Mr. Denmark and told him that he was under arrest. Mr. Denmark attempted to flee. A melee ensued. Eventually, the officers subdued him.

Mr. Denmark, twenty-nine years old at the time of his arrest, had a long history of paranoid schizophrenia. He believed that police wanted to hurt or kill him. Twice, the trial court found him incompetent to stand trial. Finally, three years after his arrest, Mr. Denmark was found competent and proceeded to jury trial. He relied on an insanity defense. Two defense experts testified that Mr. Denmark was insane at the time of his arrest. Two State experts concluded that Mr. Denmark suffered from delusional paranoid schizophrenia, not insanity. Two other State experts opined that Mr. Denmark was delusional or psychotic but still could differentiate between right and wrong.

Reports from the State’s experts referred to prior offenses, primarily juvenile offenses, committed by Mr. Denmark. He moved, in limine, to determine whether any testimony about these prior offenses would be allowed from the experts. The trial court deferred ruling. As the trial progressed, Mr. Denmark again moved to exclude testimony about the prior offenses. The trial court ruled that specifics of past juvenile offenses should not be raised unless “striking and important” to the experts’ opinions.

Ignoring the trial court’s admonition, the prosecutor asked one of Mr. Denmark’s experts, “And [Mr. Denmark] was thrown out of ... school at age eleven when he phoned in a bomb threat, fair statement?” The trial court denied Mr. Denmark’s motion for mistrial. The prosecutor continued to question experts about Mr. Denmark’s conduct as a preteen. Mr. Denmark continued to object and renewed a motion for mistrial. The trial court sustained the objections but denied the mistrial motion. The trial judge warned the prosecutor, however,

I’m putting the brakes on going back to the items that are so far removed in time and space.... [WJe’re talking about events that are 18 or 20 years removed without specific spaces to tie them into the facts at hand [which] is inappropriate. They are not probative of the matter. ■

Apparently unwilling to adhere to the trial court’s ruling, the prosecutor twice thereafter questioned an expert about Mr. Denmark’s juvenile legal problems. Mr. Denmark objected, the trial court reiterated its ruling, and the prosecutor voiced his displeasure with the ruling. The prosecutor continued referring to Mr. Denmark’s juvenile offenses.

Analysis

Mr. Denmark argues' that the trial court erred in allowing the State to present evidence of his prior juvenile offenses. The trial court sustained Mr. Denmark’s objections. Unfortunately, the prosecutor persisted. The trial court denied Mr. Denmark’s mistrial motions. Although no curative instruction was requested or given, any such instruction would not have cured the error. See, e.g., Groebner v. State, 342 So.2d 94, 95 (Fla. 3d DCA 1977) (holding improper remarks of prosecutor were of such character that neither objection nor curative instruction could entirely destroy their sinister influence; mistrial motion should have been granted); Fischman v. Suen, 672 So.2d 644, 646 (Fla. 4th DCA 1996) (discussing futility of curative instruction in context of evidence of other illegal conduct).

Evidence of prior bad acts — Williams rule evidence — consists of prior conduct that may be admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity,' intent, preparation, plan, knowledge, identity, or absence of mistake or accident; it is inadmissible when relevant solely to prove bad character or propensity.. See § 90.404(2)(a), Fla. Stat. (2003). The evidence upon which the prosecutor focused was not Williams rule - evidence. Indeed, the prosecutor never established a basis for using Mr. Denmark’s juvenile offenses as Williams rule evidence. The challenged evidence was factually and temporally unrelated to the January 2001 offenses. , Accordingly, the relevancy rule' of section 90.402 governed the admissibility of the evidence-elicited by the State. See Sexton v. State, 697 So.2d 833, 837 (Fla.1997); Bryan v. State, 533 So.2d 744, 746 (Fla.1988).

All relevant evidence is admissiblé except as provided by law. § 90.402. Relevant evidence is any evidence that tends to prove or disprove a material fact. § 90.401. However, “[Relevant évidenee is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion' of issues, misleading the jury, or needless presentation of cumulative' evidence.” § 90.403. Thus, section 90.403 mandates-a weighing process. See State v. McClain, 525 So.2d 420, 422 (Fla.1988). When the, unfair prejudice substantially outweighs, the probative value of the evidence, the trial court should exclude the evidence. In that weighing process, the trial court may consider the need for the evidence, the tendency of the evidence to suggest to the jury an improper basis for resolving the matter, the chain of inference necessary to establish the material fact, and the effectiveness of a limiting instruction. Steverson v. State, 695 So.2d 687, 689 (Fla.1997) (citing McClain, 525 So.2d at 422; 1 C. Ehrhardt, Florida Evidence § 403.1 at 100-13 (2d ed. 1984)). Here, the trial court aptly concluded that the evidence of Mr. Denmark’s remote juvenile conduct had little, if any, probative value. See Donahue v. Albertson’s Inc., 472 So.2d 482, 483 (Fla. 4th DCA 1985) (noting evidence can be remote in time or remote in sense of being too attenuated); Carrillo v. State, 727 So.2d 1047, 1048 (Fla. 2d DCA 1999) (holding under section 90.403 that threats and disruptive behavior occurring over an hour after aggravated assault was too far removed in time and had little probative value as to intent or state of mind at time of offense). Our record does not disclose that the trial court assessed the undue prejudice that the evidence might work upon Mr. Denmark.

The facts underlying Mr. Denmark’s January 2001 arrest were not subject to much dispute. His sanity at the time of the offenses was the key issue. For purposes of the probative value prong of section 90.403, the trial court acknowledged that Mr. Denmark’s conduct from approximately twenty years earlier would not be addressed unless “striking and important” to the experts’ opinions.

The prosecutor repeatedly referred to Mr. Denmark’s juvenile offenses, without linking Mr. Denmark’s January 2001 mental condition to the events that plagued him as a juvenile. The prosecutor established no probative value for the evidence. Under section 90.403, the trial court should have weighed the absence of probative value against the undue prejudice to Mr. Denmark. See McClain, 525 So.2d at 422 (holding section 90.403 compels trial court to weigh danger of unfair prejudice against probative value of evidence); Steverson, 695 So.2d at 689 (explaining proper application of section 90.403 balancing test; even where some relevance shown, court must weigh and exclude evidence when danger of unfair prejudice substantially outweighs probative value). That weighing would have compelled the exclusion of the prior juvenile offenses. Instead, the prosecutor was able to elicit testimony that could serve only to unduly prejudice, mislead, or distract the jury. See Nowitzke v. State, 572 So.2d 1346 (Fla.1990) (reversing conviction based on prosecutorial errors that overreached, presented irrelevant and immaterial facts, misled jury, and discredited insanity defense); Maldonado v. Allstate Ins. Co., 789 So.2d 464, 470 (Fla. 2d DCA 2001) (holding evidence of illegal alien status improperly admitted under section 90.403 where unfair prejudice, confusion of issues, and misleading of jury thoroughly outweighed probative value); Dean v. State, 690 So.2d 720, 723 (Fla. 4th DCA 1997) (holding under section 90.403 general drug dealer criminal behavior patterns unduly prejudicial with only purpose to place misleading inferences before jury).

Conclusion

We apply a harmless error test to the improper admission of evidence under section 90.403. Steverson, 695 So.2d at 690-91 (citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986)); Carrillo, 727 So.2d at 1048. Based on our record, we cannot conclude that the interjection of irrelevant, remote, unduly prejudicial, and misleading suggestions to the jury was harmless beyond a reasonable doubt.

Reversed and remanded for a new trial.

NORTHCUTT and DAVIS, JJ., Concur.

      . We recognize that counsel must advocate vigorously for his or her client. We are also aware that, at trial, counsel may try to “push the envelope” on evidentiary issues. The obligation to represent a client zealously, however, is not unbounded. Counsel is an officer of the court and must comport himself or herself with the trial courts rulings. We are compelled to express our concern with the prosecutor's unwillingness to follow the trial court's rulings. " ’ ’

        . Williams v. State, 110 So.2d 654, 663 (Fla.1959).

      . We need not address Mr. Denmark’s árgument that a single comment in the State’s closing argument impermissibly belittled the insanity defense. Nevertheless, we re-emphasize the duty of all counsel to refrain from improper argument. See, e.g., Nowitzke, 572 So.2d 1346 (holding prosecutorial errors through trial and closing argument misled jury and discredited insanity defense); Milburn v. State, 742 So.2d 362, 364 (Fla. 2d DCA 1999) (holding prosecutor’s closing argument misstatement of defendant's burden on insanity defense required new trial); Connelly v. State, 744 So.2d 531, 532 (Fla. 2d DCA 1999) (reversing conviction based on prosecutorial misconduct during trial and closing argument).


author: KLEIN, J.

text:
    Allen Michael GILLEN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D05-215, 4D05-1861.
    District Court of Appeal of Florida, Fourth District.
    May 17, 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 Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

The trial court found that appellant violated his probation by loitering and giving a law enforcement officer a false birth date. We reverse.

A detective testified that appellant was standing in the parking lot of a gas station with another person who was drinking an alcoholic beverage from an open container. Appellant had a container of an alcoholic beverage, which he tried to hide, but there was no evidence it was open. The detective testified that he had previously warned both men not to loiter in this parking lot, and that he arrested, appellant because of the previous warning. Appellant gave the officer his correct name, but the birth date was incorrect by four years. The clerk from the gas station testified that appellant was a regular customer with whom he never had a problem, and he had never asked appellant to leave.

The trial court found that appellant had violated section 901.36, Florida Statutes (2004), by giving the officer a false date of birth. Lawful detention, however, is a condition precedent to the violation of this statute, J.P. v. State, 855 So.2d 1262 (Fla. 4th DCA 2003), and appellant argues he was not lawfully detained.

The Dania loitering ordinance, section 17-12.1, prohibits loitering as follows:

(c) Prohibitions. No person shall prowl, sleep, loiter, stand, wander or congregate on the streets, sidewalks ... or other public places, or in public entrances to private establishments, within the City of Dania, Florida:
(1) So as to obstruct or impede pedestrian or vehicular traffic in a manner endangering public safety or threatening a breach of the peace;
(2) In a manner warranting reasonable concern for the safety or security of persons or property in the vicinity;
(3) After being reasonably requested by a police officer to disperse or move, when the failure to comply reasonably threatens public safety or convenience;
(4) Without apparent reason and refuse to identify himself or herself or account for his or her conduct when requested to do so by a police officer, under circumstances giving rise to a reasonable suspicion that the person is engaged in or planning a crime or constitutes a threat to public peace or the personal safety or property of others; provided, however, that a mere refusal to identify himself or herself or account for his or her conduct shall not be sufficient grounds for arrest.

Viewed in a light most favorable to the state, the evidence reflected that appellant was in the parking lot of a gas station after being told by an officer not to be there on a prior occasion, and that appellant attempted to hide a closed alcoholic beverage container in his pocket. There was no evidence appellant was obstructing or impeding, refused to leave, or was engaging in any other conduct which would violate the ordinance.

Because there was no evidence that appellant was loitering, it follows that appellant was not lawfully detained, and no violation of section 901.36, Florida Statutes occurred. Reversed.

SHAHOOD and TAYLOR, JJ., concur.


author: PER CURIAM. POLEN, J.,

text:
    Derek ANTHONY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4875.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.

      Derek Anthony, Blountstown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Derek Anthony (Defendant) appeals the order summarily denying his rule 3.850 motion for postconviction relief and the order denying his motion for rehearing. We affirm as to the first two grounds but reverse as to the third ground for relief.

In his third ground, Defendant alleged his trial counsel was ineffective in failing to raise, as a basis for moving to suppress his statement to law enforcement, that the Miranda rights warning he received did not advise him of the right to have an attorney present during interrogation. He cited a line of cases beginning with Roberts v. State, 874 So.2d 1225, 1229 (Fla. 4th DCA 2004) (reversing conviction; holding Miranda warnings inadequate where they failed to advise the defendant of the right to have an attorney present during questioning), rev. denied sub nom. State v. West, 892 So.2d 1014 (Fla.2005). He argued that his own statements were the focal point of the trial, and that the error in admitting them was not harmless beyond a reasonable doubt because the bulk of the evidence against him was his own confession and its corroborating effect. It appears that without Defendant’s statement, the only evidence against him would have been the child victim’s hearsay statements. Thus, there may be a reasonable probability that the result of the trial would have been different had Defendant’s statement been suppressed.

The trial court denied relief on this ground, based on the state’s argument that (1) Roberts did not apply retroactively to cases that were final before it was issued, and (2) the issue could have been raised on direct appeal because defense counsel did file a motion to suppress Defendant’s statement. However, the issue could not have been raised on direct appeal; the motion to suppress, a copy of which the state attached, was based on other grounds and did not preserve for appeal the specific ground in question. Moreover, Defendant was not seeking retroactive application of Roberts. Before Roberts, Florida courts consistently interpreted Mi randa to require that a person in custody be notified of the right to have counsel present during interrogation. See, e.g., Ramirez v. State, 739 So.2d 568 (Fla.1999) (summarizing that Miranda requires a defendant to be informed of his right to an attorney during questioning).

As we have held before in similar cases, this claim is legally sufficient. Accordingly, we reverse and remand either for the attachment of portions of the record conclusively refuting this claim or for an evi-dentiary hearing. See Martelus v. State, 924 So.2d 881 (Fla. 4th DCA 2006); Coney v. State, 31 Fla. L. Weekly D591, — So.2d -, 2006 WL 398431 (Fla. 4th DCA Feb. 22, 2006); Stancle v. State, 917 So.2d 911 (Fla. 4th DCA 2005).

Affirmed in part; Reversed in part and Remanded.

GROSS and TAYLOR, JJ., concur.

POLEN, J., concurs specially with opinion.

POLEN, J.,

concurring specially.

I agree with the majority that appellant stated a facially sufficient claim that trial counsel was ineffective for failure to raise the sufficiency of the Miranda warnings in his motion to suppress. I write separately to note that, if appellant’s claim cannot be refuted by record attachments, such that an evidentiary hearing is necessary, one of the considerations as to the deficiency prong of Strickland relates to the fact that appellant’s case arose two years before Roberts was decided. The trial court may need to determine whether defense lawyers in Broward County were generally raising a deficient Miranda warning argument, or were cognizant of such an argument, two years before Roberts was decided, so that failure to do so might constitute ineffective assistance of counsel.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Danielle WATON, Appellant, v. Lawrence H. FEDER, Appellee.
    No. 4D05-2513.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Andrew L. Salvage of Andrew L. Salvage, P.A., Fort Lauderdale, for appellant.
    Robert L. Teitler of Walton, Lantaff, Schroeder & Carson, LLP., Miami, for appellee.
   PER CURIAM.

We reverse the summary judgment in favor of defendant in this legal malpractice action. We find there are triable issues of fact in regard to the claim that defendant was negligent in failing to advise plaintiff of her rights as a spouse under Florida law. In particular we reject defendant’s argument that plaintiff could not demonstrate any damages without proving that her husband would have married her without the antenuptial agreement. Had she been properly advised, she might not have married him with the agreement in question. Neither does the doctrine of collateral estoppel apply, because the parties to this litigation are not the same as those in the dissolution of marriage ease, from which defendant argues certain facts, asserting they cannot be relitigated in this action.

Reversed.

STONE, POLEN and FARMER, JJ., concur.


text:
    Brenda MANI, Appellant, v. James J. MANI, Appellee.
    No. 4D05-3928.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Martin L. Haines, III of Haines & Ho-das Chartered, Lake Park, for appellant.
    ■ Adam S. Gumson of Jupiter Law Center, Jupiter, for appellee.
   PER CURIAM.

Brenda and James Mani were divorced by a New Jersey final judgment in 2002. The judgment required Brenda to pay James $610 per week in alimony, “subject to modification in accordance with New Jersey law upon the occurrence of [James’s] cohabitation with any member of the opposite sex not related to defendant by blood or marriage.”

After the entry of the judgment, both James and Brenda became residents of Palm Beach County, Florida. Brenda filed a petition for modification and/or enforcement of the final judgment in the circuit court. The court granted James’s motion to dismiss, citing Spalding v. Spalding, 886 So.2d 1075 (Fla. 5th DCA 2004).

Brenda disagrees with the dismissal, contending that this was not an action brought under the Uniform Interstate Family Support Act, Chapter 88, Florida Statutes (2004), the statute applied in Spalding. See § 88.2051(6), Fla. Stat. (2004). Brenda contends that the wife “chose to enforce the terms of the [New Jersey] judgment under common law.” Section 88.1031, Florida Statutes (2004) provides that the UIFSA remedies “are cumulative and do not affect the availability of remedies under other law.”

The trouble with Brenda’s argument is that a Florida court has jurisdiction to modify the alimony provisions of a foreign judgment only after it has been established as a Florida judgment. See § 61.14(l)(a), Fla. Stat. (2004); Sackler v. Sackler, 47 So.2d 292, 295 (Fla.1950); Haskin v. Haskin, 781 So.2d 431 (Fla. 4th DCA 2001); Serko v. Serko, 385 So.2d 1117 (Fla. 4th DCA 1980); Muss v. Muss, 390 So.2d 415, 416 (Fla. 3d DCA 1980). The petition for modification and/or enforcement filed in this case was not an action seeking to establish the New Jersey judgment as a Florida judgment. For this reason, we affirm the order of dismissal.

WARNER, GROSS and HAZOURI, JJ., concur.


author: STEVENSON, C.J.

text:
    T.M., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D05-3878.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Kenneth M. Kaplan, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Trida D. Brissett, Assistant Attorney General, Fort Lauderdale, for appellee.
   STEVENSON, C.J.

T.M.’s two sons, J.L.l and J.L.2, were adjudicated dependent on June 5, 2003, and placed with their maternal grandmother. When the children were returnéd to T.M.’s custody, the grandmother initially had an “understanding” with T.M. for visitation privileges. Following a hearing on June 13, 2005, the General Master filed a report stating visitation was “NA-Children are in the home.” A subsequent report was filed on July 11, 2005, requiring that the grandmother continue to have the visitation she had prior to the June 13, 2005 hearing and stating that it was not in the children’s best interests for the court to terminate protective supervision. T.M. now appeals the trial court’s order denying termination of supervision and requiring continued visitation for the grandmother. We affirm the continuation of protective supervision as the record supports the trial court’s determination that maintaining protective supervision is in the children’s best interests. We reverse, however, the visitation order.

“Generally, a grandparent is entitled to reasonable visitation with a grandchild who has been adjudicated dependent and taken from the physical custody of the parent.” In re S.D., 869 So.2d 39, 40 (Fla. 2d DCA 2004) (referencing 39.509, Fla. Stat.). However, as we stated in L.B. v. C.A., 738 So.2d 425, 427 (Fla. 4th DCA 1999), those visitation rights terminate “when a child has been returned to the physical custody of a parent or others.” Accordingly, we agree that once the children were returned to T.M.’s custody, the trial court erred in ordering her to provide the grandmother with visitation. In light of our reversal of this portion of the trial court’s order, we need not reach the merits of the final issue raised.

Affirmed in part and Reversed in part.

GUNTHER and TAYLOR, JJ., concur.

      . In her final point on appeal,'the mother challenges the constitutionality of section 39.509, Florida Statutes, which provides that grandparents are entitled to reasonable visitation with a grandchild who has been adjudicated dependent and taken away from the physical custody of the parent. This issue, now moot, was not raised in the trial court and therefore was not properly preserved for appeal. See State v. Turner, 224 So.2d 290 (Fla.1969).


text:
    Jule Urban CYBROSKI, as Legal Guardian of the property of Melanie Rodriguez, a minor, Appellant, v. Janet WRIGHT, Blair Wright, Sharon Rodriguez and Ricardo Ramon Rodriguez, Appellees.
    No. 4D05-646.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.

      Michael D. Gelety, Fort Lauderdale, for appellant.
    Mirene D. Charles and Andrew E. Grigsby of Hinshaw & Culbertson, LLP, Miami, for appellees Sharon Rodriguez and Ricardo Ramon Rodriguez.
   STEVENSON, C.J.

Jule Cybroski, the legal guardian of Melanie Rodriguez, appeals a final judgment entered in favor of Melanie’s parents, Sharon and Ricardo Ramon Rodriguez, for injuries Melanie suffered while riding in a car driven by the mother. For the reasons outlined below, we reverse the final judgment and remand the case to the trial court for proceedings consistent with this opinion.

Florida law allows an unemanci-pated minor to maintain a negligence action against a parent to the extent of the parent’s liability insurance. See Ard v. Ard, 414 So.2d 1066 (Fla.1982). Cybroski brought this suit based on the duty of care parents have to protect their children from harm, alleging that Melanie’s injuries could have been prevented had her mother ensured she utilized a seat belt. See Machin v. Walgreen Co., 835 So.2d 284, 285 (Fla. 3d DCA 2002) (“[Pjarents have a constant and continuous duty as ordinary, prudent persons to watch over, supervise, and protect their children who are too young to exercise judgment to care for themselves.”).

In granting summary judgment in favor of the parents, the trial court concluded that the Florida Safety Belt Law, Florida Statutes section 316.614, precluded a cause of action. Pursuant to section 316.614(4)(a), Florida Statutes (2005), it is illegal to “operate a motor vehicle in this state unless each passenger and the operator of the vehicle under the age of 18 years are restrained by a safety belt or by a child restraint device pursuant to s. 316.613, if applicable.”

A violation of the provisions of this section shall not constitute negligence per se, nor shall such violation be used as prima facie evidence of negligence or be considered in mitigation of damages, but such violation may be considered as evidence of comparative negligence, in any civil action.

§ 316.614(10), Fla. Stat. (2005). The trial court interpreted this section to mean that evidence of Melanie’s failure to wear a seat belt could be admissible only as “evidence of comparative negligence.” We disagree. “In determining the meaning of a statute we must look to the intent of the Legislature in enacting that statute.” Carlile v. Game Fresh Water Fish Comm’n, 354 So.2d 362, 364 (Fla.1977). “[T]he presumption is that no change in the common law is intended unless the statute is explicit in this regard.” Id. (citation omitted).

In Ridley v. Safety Kleen Corp., 693 So.2d 934, 941 (Fla.1996), the supreme court explained that “the 1990 amendment [of section 316.614] was enacted to clarify and standardize the manner in which a plaintiffs failure to use a seat belt was to be utilized in a civil action, and to preclude the possibility that an injured plaintiff would be penalized twice for failing to use an available seat belt.” There is no indication the Legislature intended to eliminate a parent’s liability for failing to protect his or her child. Thus, contrary to the parents’ assertions, section 316.614 did not displace the common law right to bring a cause of action for a parent’s failure to exercise a duty of care.

Accordingly, we reverse the judgment on appeal and remand for further proceedings consistent with this decision.

Reversed and Remanded.

FARMER, J., and MARX, KRISTA, Associate Judge, concur.

      . The trial court cited section 316.613 in its written order. Section 316.613 refers to the use of child restraint devices when transporting children five years of age or younger. Because Melanie was twelve-years-old at the time of the accident, we assume the trial court’s reference to section 316.613, instead of section 316.614, was a scrivener’s error.


author: TAYLOR, J.

text:
    H. Craig WILLIAMS, Elinor Tama Williams and Constance Elaine Williams, on behalf of themselves and all others similarly situated, Appellants, v. BANK OF AMERICA CORPORATION, Appellee.
    No. 4D05-2470.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.

      Howard K. Coates, Jr. of The Coates Law Firm, Wellington, Steven M. Hamburg of Summers, Compton, Wells & Hamburg, P.C., St. Louis, Missouri, and Richard D. Greenfield of Greenfield & Goodman, LLC, Easton, Maryland, for appellants.
    J. Michael Burman and Bernard Lebe-deker of Burman, Critton, Luttier & Coleman, West Palm Beach, Peter W. Homer and Kevin P. Jacobs of Homer & Bonner, P.A., Miami, and Gregory B. Jordan, Mary J. Hackett, Kim M. Watterson and Sharon L. Rusnak of Reed Smith LLP, Pittsburgh, Pennsylvania, for appellee.
   TAYLOR, J.

The plaintiffs below are beneficiaries of certain trusts managed and controlled by Bank of America, N.A. (the Bank). They brought a class action complaint against the Bank and its parent corporation, Bank of America Corp. (BAC), alleging breach of contract by the Bank and unjust enrichment and breach of fiduciary duties by both the Bank and BAC. The trial court granted summary judgment in favor of BAC on the ground that BAC has no liability based on the plaintiffs’ allegations. We reverse, because BAC did not base its motion for summary judgment on this ground. The only ground alleged in BAC’s summary judgment motion was that the plaintiffs’ claims are barred by Florida’s statute of limitations.

It is undisputed that the defendants’ motion for summary judgment did not state any ground other than the statute of limitations. The defendants filed a nineteen-page memorandum of law in support of their motion, devoted almost entirely to the statute of limitations argument. The only exception was a single footnote which stated:

While the Bank’s corporate parent, Bank of America Corporation (“BAC”), is also named as a Defendant, Plaintiffs had no relationship with BAC — contractual or otherwise — and there is no basis, factual or legal, to support a claim against BAC here.

Plaintiffs filed a thirty-page memorandum of law in opposition to the motion for summary judgment, twenty-nine of which were addressed to the statute of limitations issue. The statute of limitations in question is peculiar to trustees. In order to bring BAC within its scope, BAC had alleged that the Bank and BAC were co-trustees. To refute this assertion, the plaintiffs’ memorandum quoted the above footnote from the defendants’ memorandum. In a footnote of its own, plaintiffs noted that its complaint alleges that BAC aided and abetted the Bank’s activities, then cited the Restatement (Second) of Trusts and the Restatement of Restitution as support for the notion that it has a claim against BAC notwithstanding the lack of privity. However, the memorandum then reiterated in the very next paragraph that, “[t]he sole basis for Defendant’s Motion for Summary Judgment is the statute of limitations.”

At the hearing on the motion for summary judgment, BAC’s counsel stated at the outset, “[w]e’re only here on the very first point, which is the timeliness of the case, a very focused narrow issue.” Nevertheless, BAC’s counsel and the trial court generated some minimal discussion concerning BAC’s liability at the hearing.

The trial court entered an order granting summary judgment in favor of BAC, finding that, “[tjhere is no genuine issue of material fact that Bank of America Corp. has no liability based on Plaintiffs’ allegations.” The trial court declined to enter summary judgment in favor of the Bank (or BAC) on the statute of limitations theory originally alleged in the motion for summary judgment.

Florida Rule of Civil Procedure 1.510(c) states with respect to summary judgment motions:

The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least 20 days before the time fixed for hearing.

The purpose of this rule is to eliminate surprise and to provide the parties “a full and fair opportunity to argue the issues.” H.B. Adams Distrib. Inc. v. Admiral Air of Sarasota County, Inc., 805 So.2d 852, 854 (Fla. 2d DCA 2001). It is reversible error to enter summary judgment on a ground not raised with particularity in the motion. See id.; Deluxe Motel, Inc. v. Patel, 727 So.2d 299, 301 (Fla. 5th DCA 1999); City of Cooper City v. Sunshine Wireless Co., 654 So.2d 283, 284 (Fla. 4th DCA 1995); George G. Sharp, Inc. v. Doric Marine, Inc., 544 So.2d 228 (Fla. 3d DCA 1989); Cheshire v. Magnacard, Inc., 510 So.2d 1231, 1234 (Fla. 2d DCA 1987). In applying the rule, the trial court should take a strict reading of the papers filed by the moving party. Id.; Swift Indep. Packing Co. v. Basic Food Int'l, 461 So.2d 1017, 1018 (Fla. 4th DCA 1984).

We reject BAC’s argument that its single conclusory statement regarding liability, contained in a footnote of a nineteen-page memorandum of law devoted solely to the statute of limitations issue, sufficed as a separate ground for its motion for summary judgment. BAC’s motion and memorandum do not substantively address any facts or law pertaining to its entitlement to summary judgment on the plaintiffs’ claims of aiding and abetting or unjust enrichment. We thus conclude that the trial court erred in entering summary judgment on a ground not asserted in BAC’s motion.

Reversed and Remanded.

STEVENSON, C.J. and GUNTHER J., concur.


text:
    Gerald HELMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2088.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

STEVENSON, C.J., GUNTHER and TAYLOR, JJ., concur.


author:
JOHNSON, Justice.
     KNOLL, Justice,

text:
    DISASTER RESTORATION DRY CLEANING, L.L.C. v. PELLERIN LAUNDRY MACHINERY SALES COMPANY, INC.
    No. 2005-CC-0715.
    Supreme Court of Louisiana.
    April 17, 2006.

      Courcelle & Burkhalter, David I. Cour-celle, Metairie, for applicant.
    Ajubita, Leftwich & Salzer, New Orleans, Edmond C. Haase, III; Leonard L. Levenson, New Orleans, for respondent.
   JOHNSON, Justice.

|! This dispute between Disaster Restoration Dry Cleaning, LLC (hereinafter referred to as “Disaster”) and Pellerin Laundry and Machinery Sales Company, LLC (hereinafter referred to as “Pelle-rin”) resulted in two lawsuits being filed in the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana. The first suit was filed by Disaster against Pellerin for breach of contract. This suit was randomly allotted to Division “N”, in which Judge Hans Liljeberg presides. The second suit was filed by Pellerin against Disaster for failure to pay the outstanding balance on an open account. This suit was randomly allotted to Division “B”, where Judge Fredericka Wicker presided. In both suits, Attorney Leonard L. Levenson filed a Motion to Enroll as co-counsel to Attorney Edmond C. Haasé, who represented Pellerin. The enrollment was granted in Division “B”, but denied in Division “N”. |2From this ruling, Pellerin filed a writ application with the Fifth Circuit Court of Appeal, which granted the writ and remanded the matter with instructions to the trial court to allow the enrollment of co-counsel. Disaster Restoration Dry Cleaning, LLC v. Pellerin Laundry Machinery Sales Com pany, Inc., 05-C-64 (La.App. 5 Cir. 2/16/05). As a result of the Fifth Circuit’s ruling, Disaster filed a writ application in this Court. This Court granted the application for the purpose of determining whether the district court judge erred in denying the enrollment of co-counsel. Disaster Restoration Dry Cleaning, LLC v. Pellerin Laundry Machinery Sales Company, Inc., 05-0715 (La.5/13/05), 902 So.2d 1000.

FACTS AND PROCEDURAL HISTORY

On October 25, 2001, Pellerin and Disaster entered into a contract where Pellerin agreed to design a dry cleaning plant and supply the plant’s equipment which would be capable of cleaning fire damaged and/or dirty retail clothing. In return, Disaster agreed to purchase the equipment and pay for services on an open account.

On November 5, 2004, Disaster filed a Petition for Damages in the 24th Judicial District Court (Case No. 613-592), arguing that Pellerin breached the contract, and as a result, Disaster suffered economic damages because the plant never functioned properly from its inception. In its petition, Disaster argued that the “Green Jet”, which is a machine designed to clean the fire damaged clothing, malfunctioned on different occasions. Disaster also argued that because of Pellerin’s failure to deliver on its contract, it never fully opened its retail business, “The Green Cleaners”. This suit was assigned to Division “N” under the authority of Judge Liljeberg.

laThree days later, on November 8, 2004, Pellerin filed a Petition on Open Account (Case No. 613-692), seeking payment of the past due balance for the delivered equipment and services rendered in the amount of $38,007.81. In its petition, Pellerin asserts that it sold and delivered to Disaster on open account certain laundry machinery and equipment and provided labor services, for which Disaster failed to pay its outstanding balance. Pellerin noted that it forwarded a formal written demand in an attempt to procure owed monies, but to no avail. This suit was assigned to Division “B”. The counsel of record representing Pellerin was Edmond Haasé (hereinafter referred to as “Mr. Haasé”) of Ajubita, Leftwieh & Salzer, LLC. In the first suit, Mr. Haasé filed a Motion for Extension of Time in which to respond. Subsequently, Attorney Leonard L. Levenson (hereinafter referred to as “Mr. Levenson”) filed a Motion to Enroll as co-counsel to Mr. Haasé. The trial judge in Division “B” granted the motion whereas Judge Liljeberg of Division “N” denied such. This denial is the subject of this matter.

Judge Liljeberg denied Mr. Levenson’s enrollment, stating:

The Court cannot allow an attorney to enroll when the same would create grounds for recusal.

From this ruling, Pellerin filed a writ application with the Fifth Circuit Court of Appeal arguing that Judge Liljeberg improperly denied the enrollment ex propria motu without affording the parties a chance for a hearing by another judge on the propriety of Mr. Levenson’s enrollment or on whether Judge Liljeberg should recuse himself. The Court of Appeal granted the writ, holding that:

The trial court abused its discretion by interfering with the freedom of relator to select counsel of its choice. Accordingly, we grant this writ [4and remand the matter with instructions to allow the Motion to Enroll As Co-Counsel of Record.

In response to the Court of Appeal’s ruling, Disaster filed its writ application with this Court, seeking a reversal of the Court of Appeal’s decision, arguing that such ruling would allow parties to circumvent the random allotment procedure and allow judge shopping. This Court granted Disaster’s application for review.

DISCUSSION

The issue before this Court is whether the Court of Appeal erred in reversing the trial court and allowing Pellerin to enroll new co-counsel where the addition of new counsel presents grounds for recusal of the trial judge.

Before addressing the issue in this case, we note that pursuant to LSA-C.C.P. art. 1561, the two lawsuits (Petition for Damages and the Suit on Open Account) will eventually be consolidated given the interrelation and commonality of the facts, law and parties. These suits would ordinarily be consolidated and transferred to Division “N”, Judge Liljeberg’s court, due to this matter being assigned the lower docket number. Having stated such, it is imperative to review this trial judge’s actions as the entire case could be forwarded to his court.

The Code of Judicial Conduct, which is binding on all judges, instructs them as to their expected ethical conduct. In re Judge Henry H. Lemoine, Jr., 96-2116 (La.1/14/97), 686 So.2d 837, 841 (Citing In re DeCuir, 95-0056, p. 8 (La.5/22/95), 654 So.2d 687, 692). In reviewing the duties of a judge, the Code of Judicial Conduct maintains that a judge shall uphold the integrity and independence of the judiciary. See, Canon 1. A judge shall avoid impropriety and the appearance thereof in all activities, thereby refraining from bias or prejudice in favor of any party and be 1 ^objective in determining issues presented before him. See, Canon 2. A trial judge is also obligated to be impartial in performing its duties. See, Canon 3. A party, who challenges the noncompliance of this duty, has the burden to prove that a recusal is warranted by presenting evidence of a substantial nature and based on more than conclusory allegations. Canon 3(C) states that when a judge’s impartiality is questioned, the judge shall disqualify himself in a proceeding. The Louisiana Code of Civil Procedure Article 151 provides in pertinent part that: ■

B. A judge of any court, trial or appellate, may be recused when he:
(5). Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or parties’ attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.

This Court recognized the judge’s obligation to hear and decide cases properly brought before the judge, without burdening another judge with that responsibility. See, In re Judge Henry H. Lemoine, Jr., at 840. Once confronted with valid grounds of recusal, the judge is obligated to either order recusal or refer the case to another judge for a hearing on the motion to recuse. LSA-C.C.P. art. 154. LSA-CCP art. 155(B) provides that the matter would be assigned to another judge of the court through random allotment.

Disaster argues that Judge Liljeberg properly denied Mr. Levenson’s enrollment as the enrollment of an additional attorney should not be allowed that would unequivocally force the recusal of the trial judge to whom the case has been randomly allotted. Disaster categorizes this as impermissible “judge shopping”.

Disaster maintains that prior to hiring Mr. Levenson, Pellerin was represented by an attorney, Mr. Haasé. According to Disaster, Pellerin knew that enrolling Mr. | (;Levenson would force Judge Liljeberg’s recusal as Judge Liljeberg is a material witness in an unrelated suit (involving a fee dispute) where Mr. Levenson is suing Liljeberg Enterprise, Inc., a company owned by Judge Liljeberg’s father and uncle. Pellerin did not hire Mr. Levenson until both cases were filed and allotted to the various divisions. As a result of “judge shopping”, the trial court would be stripped of its control and discretion to adjudicate matters as it deems necessary. “Judge shopping” would also render the process of random allotment a mere formality.

Disaster also argues that Pelleriris actions violated Rule 9.12 of the Uniform District Court Rules, which provides that:

all licensed Louisiana attorneys in good standing may enroll as counsel of record: (1) by oral motion made in open court when all parties or their counsel are present, or (2) by filing a written Notice of Enrollment in accordance with La.Code Civ. Proc. art. 853 with the clerk of court, with copies to all other enrolled counsel or unrepresented parties and to the Court.

. Disaster further argues that, because Pellerin wanted to force Judge Liljeberg’s recusal, it attempted to enroll additional counsel, who presented a conflict of interest. Hence, the trial court properly denied Mr. Levenson’s enrollment.

In support of its position, Disaster cites In Re Judge Joel G. Davis, 03-2801 (La.2/4/02), 865 So.2d 693, 694, which held that a judge should not perform any judicial act when knowing that there exists a potential conflict. In that case, Judge Davis would handle the preliminary criminal matters assigned to his father, the indigent defender. Thereafter, Judge Davis would recuse himself allowing the case to be allotted to another judge. This Court ruled that the subsequent recusal was not sufficient to cure the ethical violation. According to Disaster, that case is analogous to the case at hand in that Judge Liljeberg properly denied Mr. Le-venson’s enrollment 17knowing that it would result in his recusal because of the potential conflict. Therefore, Judge Lilje-berg was prohibited from performing the judicial act of allowing Levenson’s enrollment.

Disaster further argues that granting the motion to enroll would have led to “absurd results and consequences.” The attempt by Pellerin to control the trial judge who presides over this matter is similar to “forum shopping” which is deemed impermissible. Warner v. Carimi Law Firm, 725 So.2d 592, 600 (La.App. 5th Cir.1998). The effects of “judge shopping” would open floodgates in Jefferson Parish and render useless the procedure of random allotment in the 24th Judicial District Court.

Disaster also cites State v. Jackson, 04-758 (La.App. 5th Cir.11/30/04), 889 So.2d 1071, 1073, a case in which the Fifth Circuit affirmed the trial court’s denial of the motion to continue, where the defense attorney hired five days before trial requested a continuance because he would be unavailable on the date of trial. The Fifth Circuit ruled that the defendant did not have a constitutional right to make a choice of counsel prior to trial that would cause disrupting implications to the orderly trial of eases. Id. at 1073, 1074.

In its appellate brief, Pellerin asserts that the trial judge improperly denied its Motion to Enroll. Pellerin notes that Disaster provided no supportive evidence to substantiate its contention that Mr. Leven-son was intentionally hired to force the trial judge’s recusal or that the enrollment would “unequivocally” cause the recusal. To the contrary, Pellerin submits Mr. Haasé, its corporate general counsel, filed the Suit on Open Account prior to being served with Disaster’s Petition for Breach of [RContract. When Pellerin determined the necessity of having a more experienced trial litigator to properly represent its interest in both suits, it retained Mr. Leven-son as co-counsel because of his experience as a trial advocate. Once contacted, Mr. Levenson disclosed to Pellerin the possible conflict between himself and the trial judge. It is not unusual for commercial litigants to have general counsel to represent them in a variety of matters, but seek the assistance of litigators and trial counsel when the need arises. Pellerin also asserts that in denying the motion to enroll ex parte, Judge Liljeberg failed to afford the parties with an opportunity for a hearing by another judge on the propriety of Mr. Levenson’s enrollment, or on the issue of whether Judge Liljeberg should have recused himself or be recused. No party suggested the trial judge’s recusal. Pellerin argues if the trial judge believed a recusal was necessary because of his status as a material witness in the unrelated case, then the judge should not have acted on the motion to enroll, but rather should have recused himself or referred the matter to another judge.

Pellerin contends that Disaster’s reliance on In Re Judge Joel G. Davis is misplaced because the case supports Pelle-rin’s position that Judge Liljeberg should have, at a minimum, referred the motion to enroll to another judge and then recused himself from the case. When the trial judge recognized that a possible conflict existed that would question his impartiality, he should not have acted on the pending motion to enroll.

IsWe agree that once the trial judge determined that a ground for his recusal existed, he should have refrained from acting on the motion, but referred the matter to another judge.

In In re Judge Henry H. Lemoine, Jr., 96-2116 (La.1/14/97), 686 So.2d 837, this Court publicly censured a judge for misconduct for failing to self-recuse in criminal eases. Judge Henry Lemoine, who was a city judge in Pineville City Court, violated LSA-C.C.P. arts. 151, 671 and Canons 1, 2, and 5 C(l) of the Code of Judicial Conduct when he: 1) refused to voluntarily recuse himself in 32 civil and criminal cases after having being associated with an attorney during his employment in the case and 2) improperly engaged in business dealings with attorneys likely to come before him. Specifically, Judge Lemoine associated in the practice of law with two attorneys, Van Dyke, III and Michael Brewer, by sharing legal representation in cases and splitting fees. The Judiciary Commission found that he engaged in willful misconduct which was prejudicial to the administration of justice. This Court recognized that if no impediments or legal cause were proven, then a judge should not recuse himself. See, In re Judge Henry H. Lemoine, Jr. This Court also recognized that a judge should not recuse himself if a litigant challenges him because the litigant | inbelieves that the prospect of success would be greater before a different judge. See, In re Judge Henry H. Lemoine, Jr. In a civil case, a judge’s failure to self-recuse does not violate the Canons of the Code of Judicial Conduct; however, the judge’s exercise of discretion is subject to legal review and resolution in accordance with the provisions of the Code of Civil Procedure. Id. at 840. This Court followed well established jurisprudence which holds that the judge sought to be recused has a duty to stand aside and to appoint a judge ad hoc to pass upon the validity of the recusation. See State v. Savoy, 207 La. 982, 22 So.2d 402 (1945); State v. Judge of Twenty-First Judicial District, 37 La. Ann, 253 (1885); State ex rel. Nolan v. Judge of Twenty-Second Judicial District, 39 La.Ann. 994, 3 So. 91 (1887); State ex rel. Tyrrell v. Judge of Fifteenth Judicial District, 33 La.Ann. 1293 (1881); State v. Price, 274 So.2d 194, 197 (La.1973); Tatum v. Orleans Parish School Board, 04-1190 (La.App. 4 Cir. 1/26/05), 894 So.2d 1180.

According to Louisiana Code of Civil Procedure article 152(A), a judge may re-cuse himself from any case in which ground for recusation exists, even where no party has filed a motion for recusation.

Canon 3 C of the Code of Judicial Conduct provides that a judge should disqualify himself in a proceeding in which the judge’s impartiality might be reasonably questioned. In the case sub judice, the trial judge knew he was a witness in the ongoing litigation regarding the fee dispute between his family and Pellerin’s new co-counsel, Mr. Levenson, who could possibly question the judge’s impartiality.

In State ex rel Nolan v. Judge Twenty-Second Judicial District Court, 39 La.Ann. 994, 3 So. 91 (La.1887), where plaintiff sought to enjoin the use of a local Innewspaper and to recuse the district judge on grounds of relationship, the district judge afterwards dissolved the writs. The Plaintiff argued that the district judge had no authority to take any action, but should have referred the matter to another judge to resolve the recusation issue. This Court agreed, prohibiting the district judge from exercising any jurisdiction over the cause, and declared the dissolution of the writ an absolute nullity. Specifically, this Court found that:

it was the undeniable duty of the judge to have stood aside, and at once called upon a judge ad hoc, to pass upon the validity of the recusation, and it was not until after the recusation had been declared without foundation that he could take any action in the case. [Emphasis added]

Id. at 92.

Accordingly, this Court established the rule that when a judge’s impropriety is questioned and where he does not acknowledge ex proprio motu that there is good ground for granting the recusation, he must immediately refer the matter to another judge to determine the question of his recusation. Id. In the present case, Judge Liljeberg, at a minimum, should have referred this matter to another judge prior to judicially acting and denying Mr. Levenson’s motion to enroll.

Disaster characterizes Pellerin’s motion to enroll Mr. Levenson as co-counsel as an example of “judge shopping” because enrolling Mr. Levenson would force Judge Liljeberg to recuse himself. We agree that there could be situations where an unscrupulous party might seek to add a particular counsel in order to recuse a judge it believed to be unfavorable. Although Pellerin is represented by Mr. Haasé, its general counsel, it correctly points out that many litigants with general counsel choose to retain specialized trial counsel. In the absence of any specific evidence I ^suggesting Pellerin acted in bad faith, at this point, we cannot rule on whether Levenson should have been denied the right to enroll the counsel of its choice.

We also note Pellerin’s contention that Disaster’s counsel of record was Judge Liljeberg’s campaign finance manager, and the trial judge’s denial of the motion to enroll ex parte would have an appearance of impropriety. This fact may warrant Judge Liljeberg’s recusal or a hearing to determine if a ground for recusation exists.

However, at this point in the proceeding, the whole question of recusation is premature. After determining whether Mr. Le-venson has a right to enroll as co-counsel, the parties can address the issue of recusal at that time. As Pellerin stated in its Supplemental Brief, Liljeberg Enterprises, Inc.’s counsel provides that it:

no longer intends to call Hans [Judge Liljeberg] as a witness and will stipulate that LEI has no control over Hans and cannot agree to produce him for a deposition.

The United States Supreme Court has recognized that there is a presumption in favor of a party’s right to choose counsel. Wheat v. United States, 486 U.S. 153, 158, 160, 108 S.Ct. 1692, 1696, 1697-1698, 100 L.Ed.2d 140 (1988). The Fifth Circuit Court of Appeals found that depriving a party of his choice of counsel is a penalty that must not be imposed without careful consideration. FDIC v. United States Fire Insurance Company, 50 F.3d 1304, 1313 (5th Cir.1995). In civil matters as well as criminal matters, the right to counsel includes the right to legal representation of one’s choice. McCuin v. Texas Power, 714 F.2d 1255, 1257. This right is “one of constitutional dimensions and should be freely exercised without impingement.” The right to counsel of choice is not absolute. Id. at 1262, 1263. This Lsright can be overridden only if it can be proven that there is a compelling reason to do so. Id.

There must be a balance between allowing a party the right to engage an attorney of that party’s choice versus enrolling a particular attorney which would result in recusal of the judge to whom the case was randomly allotted. This right must be balanced in cases in which it is called into question against the right to prosecute the lawsuit without question of taint and undue influence and society’s right to maintain the highest ethical standards of professional responsibility, as well as judicial integrity. Id. Moreover, this right must not be exercised without thought also to the needs of effective administration of justice. Id.

In the case sub judice, Pellerin’s enrollment of Levenson as co-counsel must be evaluated against Judge Liljeberg’s possible recusation. Therefore, pursuant to our constitutional authority to regulate the practice of law and the lower courts, we order this matter to be randomly re-allotted for a hearing on the motion to enroll counsel. Once the case is assigned to another judge, the party attempting to enroll counsel which would result in the judge’s recusal must establish a reason for doing so and must satisfy the burden of establishing the enrollment was not done to force recusal. Thus, a hearing on the enrollment motion would afford both parties an opportunity to present evidence. Pellerin will have the obligation of proving that Mr. Levenson was not hired for the purpose of disqualifying the judge. In opposition, Disaster will |14have an opportunity to prove that there exists a reason for impinging upon Pellerin’s fundamental right to chose legal representation.

For the foregoing reasons, we remand this matter to the trial court for random re-allotment for a hearing on the enrollment issue.

REVERSED AND REMANDED.

VICTORY, J., dissents.

KNOLL, J., dissents and assigns reasons.

TRAYLOR, J., dissents for reasons assigned by KNOLL, J.

KNOLL, Justice,

dissenting.

hThe majority reverses the court of appeal’s decision to allow the enrollment of co-counsel and remands this matter to the trial court for random re-allotment for a hearing on the enrollment issue. For the following reasons, I respectfully dissent.

As noted by the majority, a party has the legal right to counsel, including the right to choose legal representation of choice, but this right is not unfettered. State v. Brown, 03-0897(La.4/12/05), 907 So.2d 1, 11-12 (criminal defendant’s right to counsel of choice is not absolute). Further, the right to counsel of one’s choice may be overridden when compelling reasons exist. McCuin v. Texas Power & Light, 714 F.2d 1255, 1263 (5th Cir.1983). The right thus must be balanced in cases in which it is called into question against the right to untainted prosecution of the law suit and society’s right to maintain the highest ethical standards of professional responsibility, as well as judicial integrity. Id. Moreover, this right must not be exercised without thought also to the needs of effective administration of justice. Id. I believe the facts of this case demonstrate why this is so.

In the present case, plaintiff filed a breach of contract suit against defendant, Pellerin, who in turn, filed a separate suit for payment on an open account against plaintiff. Both suits were filed in the 24th Judicial District Court for the Parish of Jefferson, and both were randomly allotted. Plaintiffs suit for breach of contract was allotted to Division “N,” in which Judge Hans Liljeberg presided. The suit for | ¡.payment on an open account was allotted to Division “B.” Defendant hired attorney, Edmond C. Haase, III, to defend the breach of contract suit and to prosecute the suit for payment on an open account. As noted by the majority, when these two suits were consolidated, they would have been transferred to Division “N,” as plaintiffs suit was the first filed.

According to defendant’s opposition filed in this Court, after the allotment, Pellerin’s counsel, Mr. Haase, sought more aggressive and experienced trial counsel and sought to retain Leonard L. Levenson in both cases on behalf of Pellerin. Mr. Le-venson met with Mr. Haase and then learned that one case had been assigned to Judge Liljeberg. At that time, he disclosed to Pellerin, through its counsel, that his enrollment might cause Judge Lilje-berg to recuse himself. Evident from the opposition is the fact that Pellerin was aware that Mr. Levenson’s enrollment “might cause Judge Liljeberg to recuse himself’ prior to filing the motion to enroll. Moreover, in the opposition, Pellerin also explained that it was aware of the prior relationship between counsel for plaintiff and Judge Liljeberg prior to retaining Mr. Levenson and that this was one of the reasons that Pellerin sought more aggressive and experienced trial counsel. It is further apparent Judge Liljeberg had a practice of recusing himself from any matter involving Mr. Levenson prior to allotment. Logically, this means his division was not considered in the random allotment of Mr. Levenson’s cases.

Although the defendant is entitled to the right to counsel, that right does not grant to the defendant the right to enroll additional counsel after allotment that would bring about the recusal of the trial judge. Such action would render useless the process of random allotment of cases and would have the potential to allow a litigant to abuse the judicial process by impacting the random allotment of cases.

|SI find that in situations involving civil litigations where after random allotment, a party attempts to enroll counsel the party knows might cause the judge to recuse himself evident by the judge’s standard practice of recusing himself from all cases involving the counsel sought to be enrolled, the party’s motion to enroll should be denied, regardless of the intent of the- parties. Such action has strong potential of becoming “backdoor judge shopping,” which would defeat the impartiality sought to be maintained by the judiciary through random allotment and like procedures. The right to counsel of choice should never be allowed to be employed as a means to control the litigation or the judiciary..Such action is clear abuse in my opinion and tips the scales of the delicate balance between a party’s right to counsel of choice and the right to untainted prosecution of the case, as well as judicial integrity, in favor of maintaining random allotment. I am not by any means implying this was done in this case, but the potential to achieve these bad results, such as “backdoor judge shopping,” only further supports my position.

While it may have, been more proeedurally appropriate to randomly allot this matter for hearing on the motion to enroll, I would affirm the denial of the motion to enroll under the circumstances of this case.

      . Retired Judge Philip C. Ciaccio, assigned as Justice pro tempore, sitting for Associate Justice Catherine D. Kimball.

      . Pellerin submits that it had no knowledge of the potential conflict between Mr. Levenson and Judge Liljeberg when it sought Mr. Le-venson' s assistance.

      . Judge Lemoine was elected to the bench on January 2, 1991. In this position, he was able to continue to practice law.

      . Van Dyke and the judge were co-owners of a law office building named, "Lemoine-Van Dyke Law Center”. The judge rented office space to Michael Brewer and had reciprocal fee arrangements in lieu of the rent. The judge presided over 32 cases which the clients were represented by either Van Dyke or Brewer, failed to disclose his relationship with the attorneys, and failed to recuse himself. This Court spoke of the permissive language of "may be recused” found in LSA-C.C.P. art. 151 that did not mandate that Judge Lemoine recuse himself thereby allowing him to escape punishment for his involvement in civil cases. This Court also noted: "Were it not for the fact that respondent is no longer a judge, we might well be inclined to impose more severe discipline.”

      . The power to regulate the practice of law in every aspect properly belongs to this Court and is reserved for it by the constitutional separation of powers. Succession of Wallace, 574 So.2d 348, 350 (La.1991). See LSA-Const. art. II, § 1 ("The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”)

      . LSA-Const. art. V, § 5.


text:
    In re Larry D. JEFFERSON.
    No. 2005-O-1995.
    Supreme Court of Louisiana.
    April 17, 2006.
    Office of Special Counsel, Steven R. Scheckman, Special Counsel, for Applicant.
    Nancy E. Rix, Commission Counsel.
   PER CURIAM.

| petitioner, Larry Jefferson was removed from judicial office by this Court on January 19, 2000. In Re: Jefferson, 99-1313(La.1/19/00) 753 So.2d 181. Petitioner now seeks reinstatement of his eligibility to seek judicial office pursuant to the provisions set forth in Louisiana Supreme Court Rule XXIII, § 26, which governs the procedure for reinstatement when a former judge has been removed from judicial office. This is the first instance in which this Court has considered this issue of reinstatement of eligibility to seek judicial office pursuant to Louisiana Supreme Court Rule XXIII, § 26, which provides:

Any former judge who has been removed from office by the Supreme Court pursuant to LA. Const. Art. V, Sec 25(C) is not eligible to become a candidate for judicial office until certified by this Court. After five-years from the date of removal, a former judge may file a petitioner for reinstatement of eligibility to seek judicial office with the Judiciary Commission. The Commission shall promptly review the petition and may hold a hearing and take evidence if necessary. Within thirty days of the filing of the petition, the Commission shall file a written recommendation with this Court as to whether the former judge’s eligibility to seek judicial office should be reinstated. The Court shall review the recommendation of the Commission and issue an order granting or denying the former judge certification of eligibility to seek judicial office.

| ¡^Petitioner represented herein that more than five years has elapsed since the effective date of his removal from office, that he has continually held a license to practice law since October 1980 and is a member in good standing of the Louisiana State Bar Association. Petitioner maintains that he has not been sanctioned or disciplined since the circumstances arising out of his removal, but for a public reprimand. This Court’s judgment in Jefferson I, 99-1318 casts petitioner with cost in the amount of $4,333.00. Petitioner failed to promptly pay the costs, and in June 2000, the Commission asked that he be held in contempt for failure to comply with the court’s order. On September 11, 2000, petitioner paid the costs in full. By order dated September 29, 2000, this Court referred the Commission’s request to the Office of Disciplinary Counsel for appropriate action. Petitioner subsequently consented to be publicly reprimanded by the disciplinary board for his failure to promptly pay the assessed costs.

Petitioner, his counsel, Monroe Attorney Charles Kincade, and Special Counsel Steven Scheckman were all present at the July 15, 2005 hearing before the Judiciary Commission. At the hearing, Mr. Jefferson offered the testimony of three witnesses, an affidavit from an additional witness, and his own testimony in support of his eligibility to seek judicial office. Petitioner represented that he has been actively engaged in community service and educational interests during the time he was removed from judicial office, and that no impediment exists to his eligibility to seek judicial office other than as set forth in Louisiana Supreme Court Rule XXIII, § 26.

On July 29, 2005, the Commission issued its recommendation to this Court. The recommendation stated in relevant part as follows:

After considering argument of counsel, the testimony offered at the July 15, 2005 hearing, and the exhibits | introduced into evidence, solely in light of Section 26 of La. Sup.Ct. Rule XXIII, a majority of the Judiciary Commission concluded that since five years have elapsed since his removal and because Mr. Larry Jefferson is presently in good standing with the Louisiana Bar Association, he remains a citizen of Louisiana, and there is no apparent physical or other personal impediment, he should be deemed eligible to stand for judicial office, allowing the voters to determine the effect, if any, of Mr. Jefferson’s prior record of judicial misconduct.

Based on this recommendation from the Commission and our review of the record, we determine that petitioner is certified as eligible to seek judicial office.

IT IS THEREFORE ORDERED that Petitioner, Larry D. Jefferson, be declared eligible to seek judicial office.