text:
    Fabian HENAO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1507.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Manuel Alvarez of Gonzalez & Alvarez, P.A., Miami Lakes, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

This case arose out of a melee at a Mobil station involving 19 people divided into two opposing groups. The combatants threw bottles and exchanged punches and kicks. Two sets of shots were fired. When the dust settled, four persons were shot and three were stabbed. One person, Wilmer Hernandez, died from gunshot wounds.

The state charged appellant Fabian He-nao and Salvador Osegueda with six crimes — second degree murder of Hernandez, three counts of attempted second degree murder involving different victims, and two counts of shooting into an occupied vehicle. After a jury trial, Henao was convicted of manslaughter with a firearm of Hernandez, attempted manslaughter with a firearm of Walfre Escobar, and one count of shooting into an occupied vehicle. The jury acquitted Henao of the remaining three charges.

Henao first contends that the trial court erred in instructing the jury on the law of principals over his objection. Assuming that it was error to give the principals instruction, “in order for the unnecessary instruction to constitute reversible error, it must, under the circumstances of the case, be capable of misleading the jury in such a way as to prejudice the defendant’s right to a fair trial.” Lewis v. State, 693 So.2d 1055, 1057 (Fla. 4th DCA 1997). Any error that arose from the giving of the principals instruction was harmless.

In this case, Henao was acquitted of all the charges to which the principals instruction applied. Henao’s convictions were for those crimes where he unquestionably wielded a Smith & Wesson 9mm. Although the caliber of the bullet that struck Wilmer Hernandez was unknown, multiple witnesses testified that after He-nao fired, Hernandez fell to the ground. Henao conceded that he “could have hit” Hernandez when he fired as Hernandez was coming at him with a knife. The other two crimes of which Henao was convicted were both committed with the gun Henao fired. There is no reasonable possibility that the principals instruction contributed to these convictions.

We find no error in the trial court’s handling of the jury’s question or the denial of the motion for judgment of acquittal.

Affirmed.

GUNTHER and FARMER, JJ., concur.

      . Well into the state's case, where Henao and Osegueda were being tried together, the trial court granted Osegueda’s motion for a mistrial. Henao did not join the motion and expressly stated that he wished to proceed.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Juan BOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3001.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2006.
   DAVIS, Judge.

Juan Bowers appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postcon-viction court’s order summarily denying Bowers’ rule 3.850 motion for postconviction relief without prejudice to Bowers filing a timely petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

In his motion, Bowers claims that his counsel was ineffective for failing to file his appeal despite a timely request to do so. The postconviction court summarily denied the motion, concluding that Bowers failed to allege that the request for appeal was timely. However, the postconviction court should have dismissed the motion for lack of jurisdiction. See McIntyre v. State, 789 So.2d 478 (Fla. 4th DCA 2001). Claims alleging ineffective assistance of trial counsel in failing to file a notice of appeal of the conviction are to be raised by petition for belated appeal, filed in the appellate court to which the appeal should have been taken. See McIntyre, 789 So.2d at 478; see also Fla. R.App. P. 9.141(c).

Affirmed.

NORTHCUTT and KELLY, JJ., Concur.


author: STONE, J. FARMER, J.,

text:
    Joseph HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-632.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Rehearing Denied Oct. 18, 2006.

      James 0. Walker, III, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

STONE, J.

We deny Harris’ motion for rehearing, but withdraw our opinion of March 29, 2006, and substitute the following opinion:

Harris was convicted of possession of cocaine with intent to deliver/sell. He contends that the trial court erred in denying his motion for disclosure of the identity of a confidential informant. We affirm.

We conclude that the failure to disclose the informant’s identity in this case did not infringe on the right to disclose recognized in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), as there was no showing of a colorable entrapment defense and mere speculation that the informant’s testimony would be useful.

Although Harris argues that an exchange of drugs and money took place between the informant and a perpetrator, the record reflects that the informant’s role at the scene was insignificant. DEA agent Kim Wright testified that she was acting undercover with an informant in conjunction with the Fort Lauderdale police. She drove with the informant to Harris’ residence seeking to purchase crack cocaine. She was in the driver’s seat, and the informant was in the passenger seat. There was a device in the car that allowed other officers to listen.

When Wright and the informant pulled up, Harris approached the informant’s side of the car. The informant told Harris that Wright wanted to buy crack cocaine. Harris went inside the house and returned with the drugs. He approached on the passenger side and handed the crack cocaine to the informant, who immediately passed it to Wright. The tape recording of the incident was published to the jury.

After the state rested, defense counsel advised the court that it wanted to call the confidential informant but did not have him under subpoena because, pursuant to the prior order denying the motion, the identity of the informant was not disclosed. Harris did not testify, but contends that the unknown informant would support defense counsel’s argument that Harris did not sell cocaine to either Wright or the informant and, also, that any criminal act originated with the police and the informant.

A trial court’s discovery orders are reviewed for an abuse of discretion. Gold, Vann & White, P.A. v. DeBerry By and Through DeBerry, 639 So.2d 47, 56 (Fla. 4th DCA 1994).

Florida law recognizes a limited privilege for the state to withhold the identity of a confidential informant. Florida Rule of Criminal Procedure 3.220(g)(2), Informants, states that “Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity will infringe the constitutional rights of the defendant.” Fla. R.Crim. P. 3.220(g)(2).

In Roviaro, the Supreme Court recognized the government’s privilege to withhold from disclosure the identity of persons who furnish information to law enforcement officers. However, the government’s privilege gives way to a defendant’s rights where the disclosure of the informant’s identity would be relevant and helpful to the defense and where the disclosure is essential to a fair determination of the case. The Supreme Court concluded:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

353 U.S. at 62, 77 S.Ct. 623.

In State v. Zamora, 534 So.2d 864, 867-68 (Fla. 3d DCA 1988), the court explained the underlying rationale for the exception to the state’s privilege:

notwithstanding the important public policy considerations which support the privilege of nondisclosure, these considerations cannot prevail where such nondisclosure either runs a substantial risk of convicting an innocent person or substantially threatens the accused’s due process right to a fair trial. Moreover, it is clear that ‘the burden is upon the defendant claiming [the aforesaid] exception to the rule [of nondisclosure] to show why an exception should be invoked.’

Factors the trial court should consider in determining whether the identity of the informant should be disclosed “include, but are not limited to, whether the prosecutor must refer to the informer in the presentation of the case, whether the informer was an active participant in the offense charged or whether he simply supplies a lead, whether the accused admits or does not deny guilt, and whether there is independent evidence of the accused’s guilt.” Rowell v. State, 382 So.2d 886, 887 (Fla. 1st DCA 1980)(citing Treverrow v. State, 194 So.2d 250 (Fla.1967)).

“Absent allegations of a specific defense sought to be established through the confidential informant, the privilege of nondisclosure must not be invaded. A bare allegation that the defendant cannot prepare his case without disclosure is insufficient. Mere speculation that the confidential informant’s testimony would be useful is insufficient.” State v. Mashke, 577 So.2d 610, 612 (Fla. 2d DCA 1991) (citations omitted). “The defendant must make a preliminary showing of the colora-bility of the defense prior to disclosure.” State v. Hernandez, 546 So.2d 761, 762 (Fla. 2d DCA 1989)(citing State v. Acosta, 439 So.2d 1024 (Fla. 3d DCA 1983)).

In Roviaro, the drug transaction was exclusively between the defendant and the informant, although one officer was hiding in the informant’s car trunk and others were following. There, the court stated,

The materiality of John Doe’s possible testimony must be determined by reference to the offense charged ... and the evidence relating to that count. The charge is in the language of the statute. It does not charge mere possession; it charges that petitioner did ‘fraudulently and knowingly receive, conceal, buy and facilitate the transportation and concealment after importation of ... heroin, knowing the same to be imported into the United States contrary to law....’ While John Doe is not expressly mentioned, this charge, when viewed in connection with the evidence introduced at the trial, is so closely related to John Doe as to make his identity and testimony highly material.
* :|: *
The circumstances of this case demonstrate that John Doe’s possible testimony was highly relevant and might have been helpful to the defense. So far as petitioner knew, he and John Doe were alone and unobserved during the crucial occurrence, for which he was indicted. Unless petitioner waived his constitutional right not to take the stand in his own defense, John Doe was his one material witness. Petitioner’s opportunity to cross-examine Police Officer Bryson and Federal Narcotics Agent Durham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction.... This is a case where the Government’s informer was the sole participant, other than the accused, in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses.

Roviaro, 353 U.S. at 62-64, 77 S.Ct. 623.

In Styles v. State, 780 So.2d 1040, 1040 (Fla. 4th DCA 2001), a detective drove an informant to an apartment building, gave him money, and told him to make a drug buy at a certain apartment. After the informant completed the transaction, he directly returned to the car where the detective had been observing the transaction. Id. The detective then sent the arrest team to arrest the defendant. Id.

In reversing the conviction, we found that, as in Roviaro, disclosure was “deemed essential in order to guarantee the defendant his due process right to a fair trial.” Id. at 1041 (quoting Zamora, 534 So.2d at 869). We recognized that “ ‘disclosure of a confidential informant is absolutely required where the defendant is charged with selling or delivering illegal drugs to the subject informant.’ ” Id.

We deem Roviaro and Styles distinguishable. In State v. Carnegie, 472 So.2d 1329, 1329 (Fla. 2d DCA 1985), a detective, together with an informant, met with the appellant to procure contraband drugs. The court stated, “[t]he conclusory contention set forth in Carnegie’s motion that non-disclosure of the informant’s identity ‘would directly affect the Defendant’s opportunity to establish possible defenses,’ is wholly inadequate in overcoming preservation of the state’s privilege.” Id. at 1330 (citation omitted). The court continued, “Here, unlike that which occurred in Rovi-aro, at no pertinent time was Carnegie alone with the informant; on each occasion the detective was present. Thus, it cannot be said that the informant was the sole material witness to the events without whose testimony Carnegie would be denied the right to examine his accuser. Carnegie’s unembellished contentions are insufficient to satisfy his burden.” Id.

In essence, Harris made an insufficient preliminary showing of the colorability of his defense, or that the testimony of the informant would vary materially from that of the police. In Roviaro, the appellant and the informant were alone during the transaction; here, the informant was simply a conduit. Styles also involved a situation where the informant and the accused were the only participants to the transaction, necessitating disclosure. Here, the sale was directly to the law enforcement officer. Additionally, there is simply speculation by defense counsel that the informant’s testimony could possibly support the attorney’s contention that Harris was not the individual involved in the transaction. Further, other than noting that the incident was initiated by the police, the defense of entrapment is not mentioned or supported, nor is there more than mere speculation that the informant would add anything to the known facts. To the contrary, here, there is no evidence of an asserted defense.

We also note that Harris asserted in an affidavit in support of the motion to disclose that he thought he was at work when the transaction occurred, but he does not argue that there were any witnesses he could call in support of that claim, nor was alibi raised as a defense. We also note that neither party in this case sought an in camera review, nor does either party raise the failure to hold an in camera as an issue on appeal.

As to all other arguments we also find no abuse of discretion. Therefore, the judgment and sentence are affirmed.

MAY, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

I must admit that I failed to grasp defendant’s argument when I agreed to affirm his conviction without any opinion. Now that I understand it, I agree that it has merit. I would grant rehearing and reverse for a new trial.

The majority says that Roviaro and Styles are distinguishable but their attempt to do so actually shows that they are not materially different in any meaningful way. As Judge Gross explained in Styles:

“Factually, this case is similar to Ro-viaro. In both cases, police officers watched an informant purchase drugs from a defendant, the police recovered the drugs soon after the transaction, and the police identified the defendant as the person who delivered the drugs. The Supreme Court in Roviaro required the government to disclose the informant’s identity, observing that since the informant was the ‘sole participant, other than the accused, in the transaction charged,’ the informant ‘was the only witness in a position to amplify or contradict the testimony of government witnesses.’ Under such circumstances, the Supreme Court ruled that
[t]he desirability of calling [the informant] as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.
Because the crime in this case involved the delivery of cocaine directly to the informant, this case falls within the exception to the limited informant privilege .... If one goal of the privilege is to preserve the anonymity of those helping the police, that aspect is not implicated here. Unlike a tipster who provides information to the police to establish probable cause for a search or arrest, the informant in this case disclosed his identity by coming face to face with the defendant to purchase drugs.” [c.o.]

Styles v. State, 780 So.2d 1040, 1041 (Fla. 4th DCA 2001).

As in Roviaro and Styles, the informant here participated in the crime itself, rather than merely furnishing a tip to establish probable cause for a warrant. The informant handled the drug buy, did the speaking to the person selling the drugs, received the drugs directly from the seller, and in turn delivered the substance to the police. Defendant’s contention here is that police have the wrong man. The informant is thus in exactly the same situation as the informants in Roviaro and Styles. Because the informant dealt directly with the person selling the drugs, if it really was defendant, the cat is already partially out of the bag.

Roviaro makes clear that it is not relevant to disclosure whether the informant will actually be called by defendant to testify at trial:

“Petitioner’s opportunity to cross-examine Police Officer Bryson and Federal Narcotics Agent Durham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction. [The informant] had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment. He might have thrown doubt upon petitioner’s identity or on the identity of the package. He was the only witness who might have testified to petitioner’s possible lack of knowledge of the contents of the package that he ‘transported’ from the tree to [the informant’s] car. The desirability of calling [the informant] as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.”

353 U.S. at 64, 77 S.Ct. 623. As Roviaro further emphasized:

“Finally, the Government’s use against petitioner of his conversation with [informant] ... emphasizes the unfairness of the nondisclosure in this case. The only person, other than petitioner himself, who could controvert, explain or amplify [the] .report of this important conversation was [the informant]. Contradiction or amplification might have borne upon petitioner’s knowledge of the contents of the package or might have tended to show an entrapment.”

Id. All of these considerations from Rovia-ro apply in this case.

It is said that defendant made an “insufficient preliminary showing of the colora-bility of his defense,” that the informant was merely a conduit. The jury might well have so concluded if defendant presented a full defense after taking a discovery deposition of the informant and was able to make full use of anything gleaned from it. But Roviaro merely requires that the information might have affected defendant’s presentation of evidence. 353 So.2d at 64 (“His testimony might [e.s.] have disclosed an entrapment. He might [e.s.] have thrown doubt upon petitioner’s identity or on the identity of the package. He was the only witness who might [e.s.] have testified to petitioner’s possible lack of knowledge of the contents of the package that he ‘transported’ from the tree to [the informant’s] car.”). It does not require a defendant seeking the identity of an informant to show that it probably will affect the evidence at trial. 353 So.2d at 64 (“The desirability of calling [the informant] as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.”).

.Neither can the propriety of disclosing the informant turn on whether defendant has already presented “evidence of an asserted defense.” After all, the error here is in failing to give the name of the informant to exhaust that source of “evidence of an asserted defense.” For that reason also, the failure to ask for an in camera inspection is illogical and unfair.

I would reverse for disclosure of the informant and a new trial.

      . Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).


author: CASANUEVA, Judge.

text:
    Julia H. MORGAN, Appellant, v. Elizabeth L. CORNELL, as Personal Representative of the Estate of Timothy M. Cornell, and Timothy M. Cornell, Jr., and Mark H. Cornell, Appellees.
    No. 2D05-5872.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2006.
    D. Keith Wickenden and William M. Pearson of Grant, Fridkin, Pearson, Athan & Crown, P.A., Naples, for Appellant.
    Jon Scuderi of Goldman Felcoski & Stone, P.A., Naples, for Appellees Mark H. Cornell and Timothy M. Cornell, Jr.
    No appearance for Appellee Elizabeth L. Cornell.
   CASANUEVA, Judge.

Julia H. Morgan and Timothy M. Cornell Sr. were long-time companions who never married. When Mr. Cornell died on April 6, 2003, he and Ms. Morgan owned two properties as tenants in common, a summer home in New Hampshire and a winter home in Naples, Florida. In his will executed some eighteen months before his death, Mr. Cornell attempted to leave a life estate in his real estate interests to Ms. Morgan, but his heirs challenged the devises. On a motion for summary judgment filed by Mr. Cornell’s sons, the trial court construed the language in favor of the heirs and against Ms. Morgan. We reverse.

The specific devises at issue state:

(E) If I own the home [in] New Hampshire at my death, I leave said home and real estate together with the contents therein to Julia H. Morgan for the term of her life, subject to the obligation to pay all real estate taxes, upkeep, insurance and ordinary costs of ownership, with a remainder interest in fee simple as Tenants in Common to her children ..., per stirpes.
(F) If I own the home [in] Naples, Florida at my death, I leave said home and real estate together with the contents therein which were purchased by Julia and myself to Julia H. Morgan for the term of her life, subject to the obligation to pay all real estate taxes, upkeep, insurance and ordinary costs of ownership, with a remainder interest in fee simple to my children ..., as Tenants in Common.

The personal representative of Mr. Cornell’s estate, his daughter Elizabeth L. Cornell, filed a petition seeking construction of these conditional devises, alleging that the condition — “If I own the home”— is unclear in extent, nature, and meaning. On one hand, the word “own” could be read to mean “to the extent I own the home,” so that the specific devises would be effective for whatever interest the testator possessed at his death. On the other hand, the word “own” could be interpreted more strictly, so that the condition would be fulfilled only if the testator were the sole owner of each home at the time of his death. If the second interpretation were operative, the condition would fail and the testator’s interest in the homes would become part of the residuary estate and pass to his three children.

In their motion for summary judgment, Mr. Cornell’s two sons contended that the language was unambiguous and could be construed in only one way: the devise would be effective only if their father owned one hundred percent of the property at the time of his death. The trial court agreed with the sons and made the following ruling:

There is no genuine issue of material fact. The language in the will regarding the specific devises of real property is not ambiguous. If Mr. Cornell is not the 100% owner of the specified properties, then the specific devises will fail and Mr. Cornell’s interests in the properties will pass through the residuary clause.

An appellate court, like the trial court, must examine the language of the will to ascertain the testator’s intent. “The intention of the testator as expressed in his or her will controls the legal effect of the testator’s dispositions.” § 732.6005(1), Fla. Stat. (2005); In re Estate of Budny, 815 So.2d 781, 782 (Fla. 2d DCA 2002). Ascertaining intent is a court’s paramount objective in construction of a will. Wilson v. First Fla. Bank, 498 So.2d 1289, 1291 (Fla. 2d DCA 1986).

In construing the key language of these devises — “If I own the home” — we must assume the testator meant what he said, see Filkins v. Gurney, 108 So.2d 57, 58 (Fla. 2d DCA 1959), and give the words their usual meaning, see Estate of Martin, 110 So.2d 421, 422 (Fla. 2d DCA 1959). We agree with the trial court that the language contains no ambiguity. However, the trial court erred when it read into the plain language of the devise a limitation on the kind of ownership required to trigger the condition.

The Cornell sons assert that Elmore v. Elmore, 99 So.2d 265 (Fla.1957), is exactly on point and controls this case. In Elmore, the testatrix sought to devise one particular acre of a ten-acre parcel to a Mrs. Turner. The testatrix, however, owned an undivided one-half interest in the land as a tenant in common with her son. Because she did not have fee simple title to the parcel and had not partitioned the acreage before her death, as a tenant in common she could not convey a specific portion of the whole property to a third person, and the third person could not become the sole owner of the conveyed property.

The Elmore court noted that an “attempt to alienate a specific, located portion of the interest of a tenant in common is voidable at the election of the grantor’s cotenants.... Obviously, the plaintiff [the testatrix’s son] in this case has elected to avoid the devise of one acre to Mrs. Turner.” Id. at 266. The court concluded that the testatrix had misconceived “the character and extent of her estate,” id. at 267, and the devise to Ms. Turner failed.

In contrast, Mr. Cornell did not attempt to devise a particular portion of the real estate to a third party; instead, he devised his entire interest to Ms. Morgan, the co-owner. And there is no question that Mr. Cornell knew that he owned these properties as a tenant in common with Ms. Morgan.

As did the court in Elmore, we attribute to the word “own” its usual meaning in the context of the disposition of real property. To “own” means to “rightfully have or possess as property; to have legal title to.” Black’s Law Dictionary 1137 (8th ed. 2004). Land ownership, in particular, encompasses the dual concepts of actual physical control and the right to use and enjoy the land:

While it is usual to speak of ownership of land, what one owns is properly not the land, but rather the rights of possession and approximately unlimited use, present or future. In other words, one owns not the land, but rather an estate in the land. This is, in some degree, true of any material thing. One owns not the thing, but the right of possession and enjoyment of the thing.

Bryan A. Garner, A Dictionary of Modern Legal Usage 633 (2d ed. 1995) (quoting 1 H.T. Tiffany, The Law of Real Property § 2, at 4 (B. Jones ed., 3d ed. 1939)).

The parties in this case agree that Mr. Cornell and Ms. Morgan owned the real properties as tenants in common. When two persons own property as tenants in common,

A and B each owns in his own name, and of his own right, one-half of Black-acre .... It means that each owns separately one-half of the total ownership .... Each is entitled to share with the other the possession of the whole parcel of land. Each may transfer his undivided one-half interest as he wishes so long as the transfer does not impair the possessory rights of the other tenant in common. Each may transfer his undivided one-half interest by will.... The central characteristic of a tenancy in common is simply that each tenant is deemed to own by himself, with most of the attributes of independent ownership, a physically undivided part of the entire parcel.

Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land & Future Interests 58-59 (1966). The estate of a tenant in common is both inheritable and devisable. Tyler v. Johnson, 61 Fla. 730, 55 So. 870 (1911).

As a tenant in common, Mr. Cornell owned a physically undivided part of each entire parcel in New Hampshire and in Naples. Without question, Mr. Cornell did “own” the property at the time of his death; the ownership condition was fulfilled; and each devise validly passed a life estate in his undivided half interest to Ms. Morgan — just as he intended.

Our construction of this unambiguous language is further bolstered by Mr. Cornell’s significant omission of any language limiting his ownership in the devise; he did not say “if I solely own the property.”

Reversed and remanded for further proceedings consistent with this opinion.

STRINGER and LaROSE, JJ„ Concur.


author: WALLACE, Judge.

text:
    UGI CORPORATION; AmeriGas Propane, L.P.; AmeriGas Propane, Inc.; AmeriGas Eagle Propane, L.P.; AmeriGas Eagle Holdings, Inc.; and AmeriGas Eagle Parts & Service, Inc., Appellants, v. Anthony MARCUCILLI, individually and on behalf of all others similarly situated, Appellee.
    No. 2D06-1300.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2006.
    John R. Hamilton and Christi R. Adams of Foley & Lardner, LLP, Orlando, for Appellants.
    Mark C. Menser of Viles & Beckman, LLC, Fort Myers, for Appellee.
   WALLACE, Judge.

UGI Corporation; AmeriGas Propane, L.P.; AmeriGas Propane, Inc.; AmeriGas Eagle Propane, L.P.; AmeriGas Eagle Holdings, Inc.; and AmeriGas Eagle Parts & Service, Inc. (UGI), appeal an order granting class certification of a consumer’s action that challenges a “hazardous material charge” on his propane gas bill. Because there is no evidentiary support in the record for the order, we reverse.

The hearing on the putative class representative’s motion for class certification lasted about ten minutes; the portion of the transcript of the hearing devoted to the motion is only sixteen pages long. No witnesses testified at the hearing. No affidavits were offered. No documents or other exhibits were received in evidence. Instead, the brief hearing consisted entirely of arguments by counsel for the parties. Counsels’ arguments featured references to papers that were never authenticated or received in evidence. Although no evidence of any kind was presented at the hearing, the circuit court’s order recites that it has “considered the record ... [and] the documents and other evidence presented at the hearing.” The order also includes numerous “findings of fact.” Because no evidence was presented at the hearing, there is no evidentiary support in the record for the circuit court’s order.

We recognize that “[i]t may not be necessary to conduct an evidentiary hearing in all cases” where the certification of a class is requested. Barton-Malow Co. v. Bauer, 627 So.2d 1233, 1235 (Fla. 2d DCA 1993). However, this was not one of those rare cases in which an evidentiary hearing was not required. Counsel for UGI informed the circuit court at the hearing that his clients contested the issue of class certification and pointed out that the putative class representative had not presented any evidence in support of his motion for class certification. At that point, the putative class representative’s request for the certification of a class rested on the unsupported allegations of the class action complaint and the motion for class certification. Under these circumstances, an ev-identiary hearing was required before a class could be certified, and the circuit court abused its discretion in certifying the class without first conducting such a hearing. See KPMG Peat Marwick LLP v. Barner, 799 So.2d 308 (Fla. 2d DCA 2001); Barton-Malow Co., 627 So.2d 1233; Seminole County v. Tivoli Orlando Assocs. Ltd., 920 So.2d 818 (Fla. 5th DCA 2006).

Accordingly, we reverse the circuit’s order, and we remand this case for an evi-dentiary hearing after both parties have had an opportunity to conduct discovery pertinent to the issue of class certification.

Reversed and remanded.

KELLY, J., and ROBERTS, CHARLES E., Associate Judge, Concur.

      . We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi).


author: PER CURIAM.

text:
    In re Dennis F. NALICK.
    No. 2006-B-1570.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| pursuant to Supreme Court Rule XIX, § 21(A), the Office of Disciplinary Counsel (“ODC”) filed this reciprocal discipline proceeding against respondent, Dennis F. Nalick, an attorney licensed to practice law in the States of Louisiana, Illinois, and Missouri, based upon discipline imposed by the Supreme Court of Missouri.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In October 1999, William and Martha Franklin retained respondent to pursue a claim against State Farm Insurance Company, their homeowners’ insurer, due to a fire that destroyed their home. State Farm eventually paid the Franklins approximately $34,000 for personal property/contents replacement. Thereafter, in February 2000, respondent prepared and filed a bankruptcy petition in the United States Bankruptcy Court for the Southern District of Illinois on behalf of the Frank-lins. Respondent falsely represented on the Franklins’ Schedule B that they had only $1,200 in personal property when, in fact, they had already received the $34,000 from State Farm. Respondent also failed to disclose the Franklins’ pending insurance claims with State Farm. Furthermore, at a March 2000 bankruptcy creditors’ meeting, | 2respondent did not correct his clients’ false statements to the bankruptcy trustee that they had received no insurance proceeds for replacement of personal property. However, at the conclusion of the meeting, the Franklins instructed respondent to dismiss their bankruptcy petition. Despite indicating that he would, respondent failed to do so and did not inform the Franklins of his neglect. Respondent also failed to respond to the trustee’s repeated requests for the Frank-lins’ insurance claim information. Nonetheless, in June 2000, the Franklins’ bankruptcy petition was granted and their debts discharged. In October 2000, the trustee filed a complaint to revoke the discharge due to the Franklins’ fraudulent concealment of their insurance proceeds. Respondent informed the Franklins that he would respond to the complaint on their behalf. However, he failed to do so until November 30, 2000, wherein he falsely stated that neither the Franklins nor the trustee had forwarded a copy of the complaint to him. In December 2000, the trustee filed a motion for sanctions against respondent. In April 2001, the bankruptcy court judge determined that respondent failed to file honest and accurate bankruptcy schedules in the Franklins’ case and failed to provide information requested by the trustee. As a result, the judge imposed sanctions in the amount of $7,800 and suspended respondent from practicing before the court.

Based on the above facts, the Supreme Court of Illinois suspended respondent’s license to practice law for one year, effective June 7, 2004. Based on the discipline imposed by Illinois, the Supreme Court of Missouri imposed reciprocal discipline upon respondent on April 10, 2006.

Thereafter, the Office of the Chief Disciplinary Counsel of the Supreme Court of Missouri notified the ODC of the April 10, 2006 order. The ODC then filed a 13motion to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Attached to the motion was a certified copy of the order of the Supreme Court of Missouri filed April 10, 2006. On June 23, 2006, this court rendered an order giving respondent thirty days to raise any claim, predicated upon the grounds set forth in Supreme Court Rule XIX, § 21(D), that the imposition of identical discipline in Louisiana would be unwarranted and the reasons for that claim. Respondent filed a timely response, indicating he believes imposition of identical discipline in Louisiana would be unwarranted because the Franklins’ testimony at his disciplinary hearing in Illinois was suspect. He indicates that following his suspension in Illinois, the Franklins were indicted in federal court for their conduct in the bankruptcy proceeding and subsequently accepted plea agreements resulting in criminal contempt convictions and probation sentences. Respondent suggests that the outcome of the Illinois disciplinary proceeding would have been different if the Franklins’ criminal behavior had been considered during their testimony. Therefore, respondent requests that the court impose a more lenient sanction than was imposed in both Illinois and Missouri.

DISCUSSION

Respondent was suspended for one year for multiple violations of the Missouri Rules of Professional Conduct relating to his representation of the Franklins. Respondent’s conduct likewise constitutes a violation of the Louisiana Rules of Professional Conduct, warranting discipline in Louisiana.

In In re: Aulston, 05-1546 (La.1/13/06), 918 So.2d 461, we held that “only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction.” Based on our review of the record, we Iffind no extraordinary circumstances are present in this case which would compel a variance from the Missouri sanction.

Accordingly, we will impose reciprocal discipline pursuant to Supreme Court Rule XIX, § 21.

DECREE

Considering the motion for reciprocal discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Dennis F. Nalick, Louisiana Bar Roll number 14259, be suspended from the practice of law for one year.

      . Respondent has previously been the subject of a reciprocal discipline proceeding based upon discipline imposed against him by the Supreme Court of Illinois. In In re: Nalick, 00-2891 (La.1/26/01), 777 So.2d 1220, we suspended respondent for one year, with all but thirty days deferred, for his failure to properly supervise his office staff, which resulted in the conversion of client funds.

      . Presumably, the Franklins decided to dismiss their petition because the trustee requested their State Farm claim, policy, and agent information.

      . We do not give much weight to respondent's argument that the Franklins’ criminal convictions, if known at the time, would have changed the outcome of the prior disciplinary proceedings. The record reflects that respondent’s responsibility for the false information provided to the bankruptcy court was equal to that of the Franklins.


text:
    STATE of Louisiana v. Raymond AMISON.
    No. 2006-KK-2434.
    Supreme Court of Louisiana.
    Oct. 12, 2006.
   In re Amison, Raymond;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. 3, No. 468-201 M-5; to the Court of Appeal, Fourth Circuit, No. 2006-K-1287.

Denied.


text:
    Mary Ann TAYLOR, Individually and the Surviving Spouse and Executrix of the Estate of the Late William Taylor v. Thomas BERENDSON, Safeco Insurance Company, and New Hampshire Insurance Company.
    No. 2006-CC-1737.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re EMCASCO Insurance Company;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 500,715; to the Court of Appeal, First Circuit, No(s). 2005 CW 1230, 2005 CW 0931.

Granted.


text:
    Elizabeth W. NAQUIN, Individually and on Behalf of all Others Similarly Situated v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, City of Lafayette, and Lafayette Public Utilities Authority.
    No. 2006-C-2227.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Lafayette City of; Lafayette City-Parish Consolidated Government;—Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. D, No. 2006-2014; to the Court of Appeal, Third Circuit, No. CA 06-904.

Granted.


text:
    Christy STRICKLAND, et al. v. COMMUNITY HEALTH SYSTEMS, INC., et al.
    No. 2006-CC-1784.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re National Healthcare of Leesville Inc. d/b/a Byrd Regional Hospital; Byrd Regional Hospital;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. A, No. 75186; to the Court of Appeal, Third Circuit, No. CW 06-00397.

Granted. Plaintiffs’ motion m limine is premature, as it was filed prior to defendant’s answer and prior to any discovery. Accordingly, the judgment of the trial court is vacated and set aside. Plaintiffs may reurge the motion if defendant asserts the privilege during discovery.

CALOGERO, C.J., would deny.


text:
    Ricky Joseph ALEX v. Richard L. STALDER.
    No. 2006-CI-0012.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Alex, Ricky Joseph;—Plaintiff(s); Applying for Reconsideration of this Courts order dated September 1, 2006; 19th Judicial District Court Div. I, No. 514,936, to the Court of Appeal, First Circuit, No. 2004 CA 1391.

Reconsideration denied.


text:
    STATE of Louisiana v. Derrick MAZIQUE.
    No. 2006-KO-0783.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Mazique, Derrick;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 02-364; to the Court of Appeal, Fifth Circuit, No. 05-KA-278.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Samuel R. JOHNSON.
    No. 2006-KO-0809.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Johnson, Samuel R.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 03-7655; to the Court of Appeal, Fifth Circuit, No. 05-KA-425.

Not considered. Not timely filed.


text:
    Warren LESTER, et al. v. EXXON MOBIL CORPORATION, Chevron USA, Inc., Intracoastal Tubular Services, Inc., Alpha Technical Services, Inc., OFS, Inc., et al.
    No. 2006-CC-1623.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Kerr-McGee Oil & Gas Corporation; Torch Energy Services Inc.;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2002-19657; to the Court of Appeal, Fourth Circuit, No. 2006-C-0458.

Not considered. Not timely filed. See Supreme Court Rule X, section 5.


text:
    Ben W. NEVERS, Sr. and Barbara Ann Nevers v. GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION f/k/a Deutsche Financial Services Corporation and Daniel Brown.
    No. 2006-C-2350.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Nevers, Ben W. et al.; Nevers, Barbara Ann;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. C, No. 91,162; to the Court of Appeal, First Circuit, No. 2005 CA 1598.

Writ denied. Stay denied.


text:
    STATE of Louisiana v. Angela SWAGGERTY.
    No. 2006-KO-0815.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Swaggerty, Angela;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 346878-1; to the Court of Appeal, First Circuit, No. 2005 KA 0467.

Denied.


text:
    STATE of Louisiana v. Leon Joseph HORNE.
    No. 2006-KO-0816.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Horne, Leon Joseph;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 283104; to the Court of Appeal, First Circuit, No. 2005 KA 0468.

Denied.


text:
    STATE of Louisiana v. James EDWARDS.
    No. 2006-KO-0819.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Edwards, James;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. D, Nos. 69,639, 69,776; to the Court of Appeal, Second Circuit, No(s). 40,423 KA, 40,424-KA.

Denied.


text:
    STATE ex rel. Pierre RILEY v. STATE of Louisiana.
    No. 2006-KH-0820.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Riley, Pierre;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 258,768; to the Court of Appeal, First Circuit, No. 2005 KW 1669.

Denied.


text:
    STATE of Louisiana v. Terrance Wayne LUKE.
    No. 2006-KO-0821.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Luke, Terrance Wayne;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Winn, 8th Judicial District Court Div. 0, No. 39016; to the Court of Appeal, Second Circuit, No. 40,504-KA.

Denied.


text:
    STATE ex rel. Derrick SCOTT v. STATE of Louisiana.
    No. 2006-KH-0822.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Scott, Derrick;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 412-187; to the Court of Appeal, Fourth Circuit, No. 2004-KA-1142.

Denied.


text:
    STATE ex rel. Willie WILLIAMS v. STATE of Louisiana.
    No. 2006-KH-0823.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Williams, Willie;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 8-91-1038; to the Court of Appeal, First Circuit, No. 2005-KW-2248.

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


text:
    STATE ex rel. Jimmy BARNES v. STATE of Louisiana.
    No. 2006-KH-0824.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Barnes, Jimmy;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 309-726; to the Court of Appeal, Fourth Circuit, No. 2005-K-1505.

Denied. See, e.g., Deloch v. Whitley, 96-1901, p. 1 (La.11/22/96), 684 So.2d 349; see also Coe v. Bell, 161 F.3d 320, 352-55 (6th Cir.1998).


text:
    STATE ex rel. Brian HUGHES v. STATE of Louisiana.
    No. 2006-KH-0825.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Hughes, Brian;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Allen, 33th Judicial District Court Div. B, No. C2005-282; to the Court of Appeal, Third Circuit, No. KH 05-01152.

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


text:
    STATE ex rel. Derrick HOPSON v. STATE of Louisiana.
    No. 2006-KH-0827.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Hopson, Derrick;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. C, No. 97-0253; to the Court of Appeal, Fifth Circuit, No. 06-KH-15.

Denied.


text:
    STATE ex rel. Lionel JACKSON v. STATE of Louisiana.
    No. 2006-KH-0828.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Jackson, Lionel;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 94-6931; to the Court of Appeal, Fifth Circuit, No. 06-KH-49.

Denied.


text:
    STATE of Louisiana v. Herbert D. CAUSEY.
    No. 2006-KO-0830.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Causey, Herbert D.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 346484; to the Court of Appeal, First Circuit, No. 2005 KA 0519.

Denied.


text:
    STATE ex rel. Damaris JACKSON v. STATE of Louisiana.
    No. 2006-KH-0832.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Jackson, Damaris;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 01-1238; to the Court of Appeal, Fifth Circuit, No. 2005-KH-1022.

Denied.


text:
    STATE ex rel. Troy MILLER v. STATE of Louisiana.
    No. 2006-KH-0846.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Miller, Troy;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 298-017; to the Court of Appeal, Fourth Circuit, No. 2005-K-1239.

Denied.


text:
    STATE ex rel. Darryl PARKER v. STATE of Louisiana.
    No. 2006-KH-0853.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Parker, Darryl;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 99-7171; to the Court of Appeal, Fifth Circuit, No. 05-KH-1023.

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


text:
    STATE ex rel. Gregory BROWN v. STATE of Louisiana.
    No. 2006-KH-0857.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Brown, Gregory;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. F, No. 37815; to the Court of Appeal, Third Circuit, No. KH 05-00908.

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


text:
    STATE ex rel. Kevin WILSON v. STATE of Louisiana.
    No. 2006-KH-0858.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Wilson, Kevin;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 98-4068; to the Court of Appeal, Fifth Circuit, No. 05-KH-1008.

Denied. Repetitive. Cf. La.C.Cr.P. art. 980.4(D).


text:
    STATE ex rel. Robert C. CORLEY v. STATE of Louisiana.
    No. 2006-KH-0862.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Corley, Robert C.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 200,224; to the Court of Appeal, Second Circuit, No. 40876-KH.

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


text:
    STATE ex rel. Angelo MONJURE v. STATE of Louisiana.
    No. 2006-KH-0867.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Monjure, Angelo;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 281862; to the Court of Appeal, First Circuit, No. 2005 KW 2156.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. McKinney, 406 So.2d 160, 161 (La.1981).


text:
    STATE of Louisiana v. Casey WILLIAMS.
    No. 2006-K-0870.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Williams, Casey;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 04-0211; to the Court of Appeal, Fifth Circuit, No. 05-KA-673.

Denied.

CALOGERO, C.J., recused.


text:
    STATE of Louisiana v. Clyde EDWARDS.
    No. 2006-KP-0873.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Edwards, Clyde;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 04-00-0059; to the Court of Appeal, First Circuit, No. 2006 KW 0223.

Denied.


text:
    STATE of Louisiana v. Dwayne DEGREE.
    No. 2006-K-0883.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Degree, Dwayne;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. 0, No. 04-6523; to the Court of Appeal, Fifth Circuit, No. 05-KA-771.

Denied.


text:
    STATE ex rel. John ESTEEN v. STATE of Louisiana.
    No. 2006-KH-0924.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Esteen, John;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 98-6122; to the Court of Appeal, Fifth Circuit, No. 05-KH-112.

Denied.


text:
    STATE ex rel. Prince MORRISON v. STATE of Louisiana.
    No. 2006-KH-0925.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Morrison, Prince;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 383-809; to the Court of Appeal, Fourth Circuit, No. 2005-K-1371.

Denied.


text:
    STATE of Louisiana v. Christopher GILSON.
    No. 2006-K-0969.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Gilson, Christopher;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, Nos. 387772, 391749; to the Court of Appeal, First Circuit, No. 2005 KW 2673.

Denied.

CALOGERO, C.J., would grant in part.


text:
    STATE ex rel. Jimmy BARNES v. STATE of Louisiana.
    No. 2006-KH-1179.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Barnes, Jimmy;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 309-726; to the Court of Appeal, Fourth Circuit, No. 2005-K-1505.

Denied. See, e.g., Deloch v. Whitley, 96-1901, p. 1 (La.11/22/96), 684 So.2d 349; see also Coe v. Bell, 161 F.3d 320, 352-65 (6th Cir.1998).


text:
    Edward GEORGE, Suzanne George, Nonnie Debardeleben and Leona G. Stamler v. BORDEN CHEMICALS AND PLASTICS OPERATING LIMITED PARTNERSHIP and Borden Chemicals and Plastics Management, Inc. Edward and Suzanne George, Evelyn S. Debardeleben, Personally and on Behalf of Geismar Real Estate Trust, Leona G. Stamler and Sera Segal v. Borden Chemicals and Plastics Operating Limited Partnership and Borden Chemicals and Plastics Management, Inc.
    No. 2006-OC-1276.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Westport Insurance Corporation;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. A, Nos. 59,820, 57,534; to the Court of Appeal, First Circuit, No(s). 2005 CA 0823, 2005 CA 0822.

Denied.


text:
    Edward GEORGE, Suzanne George, Nonnie Debardeleben and Leona G. Stamler v. BORDEN CHEMICALS AND PLASTICS OPERATING LIMITED PARTNERSHIP and Borden Chemicals and Plastics Management, Inc. Edward and Suzanne George, Evelyn S. Debardeleben, Personnally and on Behalf of Geismar Real Estate Trust, Leona G. Stamler and Sera Segal v. Borden Chemicals and Plastics Operating Limited Partnership and Borden Chemicals and Plastics Management, Inc.
    No. 2006-OC-1279.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Jones, Gladstone N. III;—Other; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. A, Nos. 59,820, 57,534; to the Court of Appeal, First Circuit, No(s). 2005 CA 0822, 2005 CA 0823.

Denied.


text:
    Edward GEORGE, Suzanne George, Nonnie Debardeleben and Leona G. Stamler v. BORDEN CHEMICALS & PLASTICS OPERATING LIMITED PARTNERSHIP and Borden Chemicals & Plastics Management, Inc.
    No. 2006-OC-1280.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Jones, Gladstone N. III;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. A, Nos. 59,820, 57,534; to the Court of Appeal, First Circuit, No(s). 2005 CA 0823, 2005 CA 0822.

Denied.


text:
    STATE of Louisiana v. Rashad BAILEY.
    No. 2006-KK-1309.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re State of Louisiana;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 460-516; to the Court of Appeal, Fourth Circuit, No. 2006-K-0412.

Denied. Writ was not timely in court of appeal.

CALOGERO, C.J., would grant.


text:
    Edward GEORGE, Suzanne George, Nonnie Debardeleben and Leona G. Stamler v. BORDEN CHEMICALS AND PLASTICS OPERATING LIMITED PARTNERSHIP and Borden Chemicals and Plastics Management, Inc. Edward and Suzanne George, Evelyn S. Debardeleben, Personally and on Behalf of Geismar Real Estate Trust, Leona G. Stamler and Sera Segal v. Borden Chemicals and Plastics Operating Limited Partnership and Borden Chemicals and Plastics Management, Inc.
    No. 2006-C-1310.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Smith, Jones & Fawer, L.L.P.; Smith, Randall A.; Jones, Gladstone N. III; Fawer, Michael;—Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, Nos. 59,820, 57,534; to the Court of Appeal, First Circuit, No(s). 2005 CA 0823, 2005 CA 0822.

Denied.


text:
    DIAMOND OFFSHORE COMPANY v. Sadat MUHAMMAD, et al.
    No. 2006-CC-1312.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Diamond Offshore Co.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. D, No. 102638 “D”; to the Court of Appeal, Third Circuit, No. CW 04-01689.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.

WEIMER, J., would grant.


text:
    Sadat MUHAMMAD v. DIAMOND OFFSHORE COMPANY.
    No. 2006-C-1313.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Diamond Offshore Co.;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. D, No. 86273-D; to the Court of Appeal, Third Circuit, No. CA 05-323.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.

WEIMER, J., would grant.


text:
    James MILLER, Sr. v. LAFAYETTE CONSOLIDATED GOVERNMENT.
    No. 2006-C-1481.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Miller, James Sr.;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. F, No. 2004-0808; to the Court of Appeal, Third Circuit, No. CA 05-1576.

Denied.


text:
    Robert Neil GUILBEAU, et al. v. BAYOU CHATEAU NURSING CENTER, et al.
    No. 2006-C-1496.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Guilbeau, Robert Neil et al.; Guilbeau, Earl James; Kimball, Bernice Guilbeau; Wilkinson, Charlene Guilbeau;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 2004-6320; to the Court of Appeal, Third Circuit, No. 05-1131.

Denied.

CALOGERO, C.J., would grant.

KNOLL, J., would grant.


text:
    Edward GEORGE, Suzanne George, Nonnie Debardeleben and Leona G. Stamler v. BORDEN CHEMICALS AND PLASTICS OPERATING LIMITED PARTNERSHIP and Borden Chemicals and Plastics Management, Inc. Edward and Suzanne George, Evelyn S. Debardeleben, Personally and on Behalf of Geismar Real Estate Trust, Leona G. Stamler and Sera Segal v. Borden Chemicals and Plastics Operating Limited Partnership and Borden Chemicals and Plastics Management, Inc.
    No. 2006-C-1522.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re George, Edward et al.; George, Suzanne; Stamler, Leona G.; Geismar Real Estate Trust; Segal, Sera; Neuwirth, Florette; Debardeleben, Evelyn S.;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, Nos. 59,820, 57,534; to the Court of Appeal, First Circuit, No(s). 2005 CA 0823, 2005 CA 0822.

Denied.


text:
    Stanley MASON v. Rowena MASON.
    No. 2006-C-1524.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Mason, Rowena;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Madison, 6th Judicial District Court Div. B, No. 00-374; to the Court of Appeal, Second Circuit, No. 40,-804-CA.

Denied.


text:
    STATE of Louisiana v. Thatcher MCELVEEN.
    No. 2006-KK-1594.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re McElveen, Thatcher;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 434-604; to the Court of Appeal, Fourth Circuit, No. 2006-K-0559.

Denied.


text:
    Erin FOLKMAN, et al. v. LOYOLA UNIVERSITY, et al.
    No. 2006-CC-1600.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Flanagan, Kerry;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2005-2152; to the Court of Appeal, Fourth Circuit, No. 2006-C-0429.

Denied.

KNOLL, J., recused.

VICTORY, J., would grant the writ.


text:
    Karen RAIFORD v. U.S. INDUSTRIES/AMES LAWN & GARDEN TOOLS, National Union Insurance Company, Rockery Ace Hardware and St. Paul Fire and Marine Insurance Company.
    No. 2006-C-1615.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Raiford, Karen;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. B, No. 97-06529; to the Court of Appeal, Fourth Circuit, No. 2005-CA-08156

Denied.


text:
    Terry GIAUQUE, Melissa Bertrand and Darla R. Larson, Individually and on Behalf of the Minor Child Allie Larson v. CLEAN HARBORS PLAQUEMINE, L.L.C. and Michael A. Sullivan.
    No. 2006-CC-1667.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Aquaterra Engineering, LLC; Clean Harbors Plaquemine L.L.C.;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. A, No. 60195; to the Court of Appeal, First Circuit, No. 2006 CW 0589.

Denied.


text:
    Alfred L. CAIN, Sr. v. The CITY OF NEW ORLEANS, et al.
    No. 2006-CC-1748.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Milton J. Womack Inc.;—Third Party; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 2002-15225; to the Court of Appeal, Fourth Circuit, No. 2006-C-0556.

Denied.


text:
    The WEST CAMERON PORT, HARBOR AND TERMINAL DISTRICT v. The LAKE CHARLES HARBOR & TERMINAL DISTRICT.
    No. 2006-CC-1749.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Lake Charles Harbor & Terminal District;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Cameron, 38th Judicial District Court Div. 0, No. 10-17271; to the Court of Appeal, Third Circuit, No. CW 06-00427.

Denied.


text:
    Maurice L. WILLIAMS, et al. v. BRUCE FOODS CORPORATION and J.S. Brown, III.
    No. 2006-CC-1758.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Bruce Foods Corporation; Brown, J.S. III;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 537,606; to the Court of Appeal, First Circuit, No. 2006 CW 0740.

Denied.

TRAYLOR, J., recused.


text:
    Frances BUCKMAN and John Buckman, Individually, and on Behalf of Their Minor Daughter, Alyssa Buckman v. Dr. Donna WATERS and Tenet Healthsystem Memorial Medical Center, Inc. d/b/a Memorial Medical Center-Baptist.
    No. 2006-CC-1766.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Tenet Healthsystem Memorial Medical Center, Inc. d/b/a; Memorial Medical Center Baptist;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. E, No. 2005-01737; to the Court of Appeal, Fourth Circuit, No. 2006-C-0706.

Denied.

TRAYLOR, J., would grant.


text:
    Lucy Mae BERGERON, et al. v. PLANTATION MANAGEMENT CORP., et al.
    No. 2006-CC-1771.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Plantation Management Corp. et al.; Harvest Manor Nursing Home;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. B, No. 80474; to the Court of Appeal, First Circuit, No. 2006 CW 0704.

Denied.


text:
    Adrienne ROBERTSON v. BATON ROUGE GENERAL MEDICAL CENTER.
    No. 2006-CC-1773.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Robertson, Adrienne et al.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 475,327; to the Court of Appeal, First Circuit, No. 2006 CW 0625.

Denied.


text:
    Kayla GILBERTI and Robert S. Gilberti, Jr. v. TOURO INFIRMARY, Ansell Healthcare Products, Inc. and Baxter Healthcare Corporation.
    No. 2006-C-1775.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Ansell Healthcare Products Inc.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. H, No. 2000-9920; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0734.

Denied.


text:
    Ray Don EVERETT v. RUBICON, INCORPORATED, and Huntsman Chemical Corporation.
    No. 2006-C-1785.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Everett, Ray Don;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 71669; to the Court of Appeal, First Circuit, No. 2004 CA 1988.

Denied.


text:
    Victor and Elaine GLAVIANO v. UNION PACIFIC RAILROAD COMPANY, the Parish of Iberville and the State of Louisiana Through the Department of Transportation and Development.
    No. 2006-C-1786.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Glaviano, Elaine; Glaviano, Victor;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. B, No. 51124; to the Court of Appeal, First Circuit, No. 2004 CA 2701.

Denied.


text:
    Frances BUCKMAN, et al. v. Dr. Donna WATERS, et al.
    No. 2006-CC-1824.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Waters, Donna Dr. et al.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. E, No. 2005-01737; to the Court of Appeal, Fourth Circuit, No. 2006-C-0735.

Denied.

TRAYLOR, J., would grant.


text:
    Terry GIAUQUE, Melissa Bertrand, and Darla R. Larson, Individually and on Behalf of the Minor Child Allie Larson v. CLEAN HARBORS PLAQUEMINE, L.L.C. and Michael A. Sullivan.
    No. 2006-CC-2284.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Aquaterra Engineering LLC; Clean Harbors Plaquemine L.L.C. et al.;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. A, No. 60,195; to the Court of Appeal, First Circuit, No. 2006 CW 1304.

Denied.


text:
    Alton ROBINSON v. Scott G. WOLFE, Sr. Jane Wolfe and Family Markets, Inc.
    No. 2006-CC-2289.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Family Markets Inc.; Wolfe, Jane; Wolfe, Scott G. Sr. et al.;—Defendant(s); Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation District 07, No. 03-06728; to the Court of Appeal, Fifth Circuit, No. 06-C-542.

Stay denied. Writ denied.


text:
    Terry GIAUQUE, Melissa Bertrand, and Darla R. Larson, Individually and on Behalf of the Minor Child Allie Larson v. John C. ARBUTHNOT, Clean Harbors, Inc., and Clean Harbors Environmental Services, Inc.
    No. 2006-CC-2292.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Clean Harbors Inc.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. A, No. 62328; to the Court of Appeal, First Circuit, No. 2006 CW 1043.

Denied.


text:
    Herbrena G. GODFREY, et al. v. Dr. James STENHOUSE, et al.
    No. 2006-CC-2300.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Stenhouse, James Dr. et al.; Louisiana Women’s Healthcare Associates;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 495,749; to the Court of Appeal, First Circuit, No. 2006 CW 1399.

Denied.


text:
    Paula Barrere BORDELON v. Travis BORDELON.
    No. 2006-CJ-2414.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Bordelon, Paula Barrere;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 2006-8868-B.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Clyde EDWARDS.
    No. 2006-KP-0101.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Edwards, Clyde;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 4-00-59; to the Court of Appeal, First Circuit, No. 2005 KW 2563.

Denied.


text:
    STATE of Louisiana v. Sammie DAVIS.
    No. 2006-K-0587.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Davis, Sammie;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Allen, 33th Judicial District Court Div. B, No. 04-3590; to the Court of Appeal, Third Circuit, No. 05-543.

Denied.


text:
    STATE of Louisiana v. Winston J. DOUSSAN, Jr.
    No. 2006-K-0608.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Doussan, Winston J. Jr.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 03-2277; to the Court of Appeal, Fifth Circuit, No. 05-KA-586.

Denied.


text:
    STATE of Louisiana v. Royal CLARK.
    No. 2006-K-0622.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Clark, Royal;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. B, No. 02-895; to the Court of Appeal, Fifth Circuit, No. 05-KA-652.

Denied.


text:
    STATE of Louisiana v. Michael Evan HANES.
    No. 2006-K-0637.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Hanes, Michael Evan;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. E, No. 265,063; to the Court of Appeal, Third Circuit, No. KA 05-708.

Denied.


text:
    STATE ex rel. Alan WRIGHT v. STATE of Louisiana.
    No. 2006-KH-0786.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Wright, Alan;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. B, No. 34,244; to the Court of Appeal, Second Circuit, No. 39,717-KH.

Denied.


text:
    STATE of Louisiana v. Christopher GILSON.
    No. 2006-K-0788.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Gilson, Christopher;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, Nos. 361997, 361998, 361999; to the Court of Appeal, First Circuit, No. 2005 KW 2478.

Denied.


text:
    STATE of Louisiana v. Walter HOUSTON.
    No. 2006-K-0796.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Houston, Walter;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. G, No. 227,009; to the Court of Appeal, Second Circuit, No. 40,642-KA.

Denied.


text:
    STATE ex rel. Richard MAHOGANY, Jr. v. STATE of Louisiana.
    No. 2006-KH-0808.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Mahogany, Richard Jr.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. D, No. 0.

Denied.

CALOGERO, C.J., would grant.

JOHNSON, J., would grant.


text:
    STATE of Louisiana v. Floyd BROWN.
    No. 2006-KH-2307.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   In re Brown, Floyd;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 440265.

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


author: GAIDRY, J.

text:
    Bernard LANDS v. TONY’S SEAFOOD.
    No. 2005 CA 1302.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Bernard Lands, Baton Rouge, Plaintiff/Appellant In Proper Person.
    L. Dean Fryday, Jr., Baton Rouge, Counsel for Defendants/Appellees Tony’s Seafood and The Travelers Insurance Company.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

SUMMARY DISPOSITION

|/The claimant-appellant, Bernard Lands, appeals an adverse judgment of the Office of Workers’ Compensation Administration, District 5, dismissing his claim for workers’ compensation benefits instituted against his employer, Tony’s Seafood, and its workers’ compensation insurer, The Travelers Insurance Company. We affirm.

Following the presentation of the claimant’s evidence, the defendants moved for involuntary dismissal on the grounds that the claimant failed to overcome the statutory presumption against the causal connection of his claimed occupational disease, carpal tunnel syndrome, to his employment. See La. R.S. 23:1031.1(D). The workers’ compensation judge (WCJ) granted the motion. The grounds of the claimant’s appeal are somewhat difficult to discern from his pro se brief. Construing the claimant’s brief broadly, and giving him every benefit of the doubt, we interpret his brief to assert manifest error on the part of the WCJ in concluding that the claimant failed to prove by a preponderance of the evidence that he contracted carpal tunnel syndrome during the course of his employment with Tony’s Seafood.

The evidence in the record supports the WCJ’s factual determination that the claimant failed to prove he contracted carpal tunnel syndrome during his employment. We find no manifest error in that regard. See Dowell v. Ochsner Clinic of Baton Rouge, 03-0460 (La.App. 1st Cir.3/10/04), 874 So.2d 852.

DECREE

We accordingly affirm the judgment of the Office of Workers’ Compensation Administration, District 5, through this summary opinion, in accordance with Rules 2-16.2(A)(2), (4), (5), (6) and (8) of the Uniform Rules of the Louisiana Courts of Appeal. All costs of this appeal are assessed to the claimant-appellant, Bernard Lands.

AFFIRMED.

      . Most of the claimant's objections to the pri- or proceedings and the judgment at issue seem to relate to his dissatisfaction with the performance of one of his prior counsel, rather than to specific factual findings or legal conclusions of the WCJ.

      . No medical expert testimony was presented on the issue of causation, and the diagnosing physician’s records specifically state that the claimant’s "symptoms of wrist and hand numbness” were "non job related [sic ]” and that the carpal tunnel syndrome was “non comp related [sic].” The medical records introduced into evidence also revealed evidence of a prior wrist fracture and prior finger fracture, which contradicted the claimant's trial testimony denying any prior hand injury or problems.


author: McCLENDON, J.

text:
    Hattie M. PIDGEON v. Mark Allen PIDGEON.
    No. 2005 CA 1223.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2006.

      Alfreda Tillman Bester, Baton Rouge, Counsel for Plaintiff/Appellant Hattie M. Pidgeon.
    Richard D. Bankston, Baton Rouge, Counsel for Third Party Intervenor/Appel-lee Tower Credit, Inc.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

| ¡¿Hattie M. Pidgeon appealed a summary judgment in favor of Tower Credit, Inc. (Tower) that (1) annulled a prior judgment in favor of Mrs. Pidgeon and (2) dismissed Mrs. Pidgeon’s reconventional demand. We affirm.

FACTS AND PROCEDURAL BACKGROUND

In 1990, Mrs. Pidgeon granted her son, Mark Allen Pidgeon, a usufruct over seven lots, “with all buildings and improvements thereon,” owned by Mrs. Pidgeon in East Baton Parish. In 1999, after Mark failed to pay a promissory note held by Tower, Tower obtained a judgment against Mark, and recorded that judgment in the public record of East Baton Rouge Parish. In 2000, after discovering that Mark owned a usufruct over the lots, Tower filed a request for a writ of fieri facias and asked that both Mark, the usufructuary, and Mrs. Pidgeon, the naked owner, be served with notice of the seizure. Mark’s property interest was seized and set for judicial sale. Before the sale could be held, Mrs. Pidgeon executed a termination of the usu-fruct by authentic act and obtained a temporary restraining order barring the sale.

Subsequently, Tower filed a suit against Mrs. Pidgeon asking that the act of termination she executed be annulled. The trial court dismissed Tower’s suit for failure to state a cause of action. Tower appealed.

On appeal, this court reversed and remanded. We found that a naked owner could not unilaterally terminate a donation of a usufruct for abuse of enjoyment. Rather, the naked owner must seek a judicial termination by filing suit to terminate. Tower Credit, Inc. v. Pidgeon, 2002-0183, p. 9 (La.App. 1 Cir. 12/31/02), 837 So.2d 766 (unpublished); see LSA-C.C. arts. 623-24 & 1566. Thus, Tower had stated a cause of action to seek an annulment of | sMrs. Pidgeon’s act of termination. Tower Credit, Inc., 2002-0183 at p. 10. We also noted that a creditor of the usufructu-ary may intervene in the judicial action to prevent termination of the usufruct, or delivery of the property to the naked owner, by offering to repair the damages caused by the usufructuary and by giving security for the future. See Tower Credit, Inc., 2002-0183 at p. 10; LSA-C.C. art. 625.

On January 14, 2003, shortly after the appeal was handed down, Mrs. Pidgeon filed a suit entitled “Hattie M. Pidgeon versus Mark Pidgeon.” The suit named Mark as the only defendant, and sought a judicial termination of the usufruct. Even though Mrs. Pidgeon obviously knew that Tower held a recorded judgment against Mark, and had seized Mark’s usufruct, Tower was neither named in, nor notified of, the suit. After Mark did not respond to the suit, the usufruct was terminated by a default judgment dated May 14, 2003.

On July 15, 2003, in the same Pidgeon v. Pidgeon suit record, Tower filed a petition to annul the May 14, 2003 judgment terminating the usufruct. In response, Mrs. Pidgeon filed an answer, affirmative defenses, and a reconventional demand. Generally, her defenses and reconventional allegations (1) attacked the final and definitive 1999 judgment on the promissory note obtained by Tower against Mark, (2) challenged the seizure of property without a showing that additional amounts were owed, (3) claimed that Mrs. Pidgeon and her property interests were threatened, and (4) asserted that a bankruptcy stay had been issued prohibiting any actions against the debtor in bankruptcy, Mark.

On July 20, 2004, Tower filed a motion for summary judgment and a notice that the bankruptcy stay had been lifted to allow Tower to pursue its claim to, and judicial sale of, the usufruct. After a hearing, the trial court | ¿found that Tower, despite its right to be notified of an action against the recorded property interest, was not notified of the suit to terminate filed by Mrs. Pidgeon. By judgment dated January 31, 2005, the trial court annulled the May, 2003 judgment terminating the usufruct, and dismissed Mrs. Pidgeon’s re-conventional demand, with prejudice.

Mrs. Pidgeon appealed and assigned the following errors to the trial court’s actions:

1. The trial court committed manifest error by dismissing her reconventional demand and refusing to allow her to pursue her affirmative defenses.

2. The trial court committed manifest error when it failed to take judicial notice of the bankruptcy stay.

3. The trial court committed manifest error by annulling the May, 2003 judgment of termination because “there is no provision under Louisiana or Federal Law which allows a purported creditor of a usufructuary to file a direct action against the grantor of a gratuitous usufruct, who is also the naked owner.”

After a thorough review of the record, we find no manifest error or error of law in the ruling of the trial court annulling the termination judgment. The action to annul was filed against Mrs. Pid-geon only as the party who obtained a judgment affecting an interest in immovable property seized by Tower. Notice of Tower’s interest in the immovable property at issue was recorded in the public record long before Mrs. Pidgeon filed her suit to terminate. If the name and address can be reasonably ascertained, procedural due process-requires, at a minimum, notice of a proceeding that could deprive a person of an interest in property. Supreme Contractors, Inc. v. Halliburton Logging Services, Inc., 94-0234, p. 8 (La.App. 1 Cir. 2/23/96), 668 So.2d 1363, 1367, writ denied, 96-0660 (La.4/26/96), 672 So.2d 673; see Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983); Lewis v. Succession of Johnson, 2005-1192 (La.4/4/06), 925 So.2d 1172. Thus, Tower had a right to notification of an action that sought to terminate its recorded interest in immovable property.

Additionally, we find no merit in Mrs. Pidgeon’s other arguments. Nothing in Tower’s action to annul the judgment of termination represented an attempt by Tower to collect Mark’s debt from Mrs. Pidgeon. As to the stay issued in Mark’s bankruptcy proceedings, even if we assume it directly related to Tower’s claim of lack of due process, we find no error or prejudice by the trial court’s grant of judgment in Tower’s favor after the bankruptcy stay was lifted.

Concerning Mrs. Pidgeon’s affirmative defenses to the suit to annul, we find that she failed to rebut Tower’s evidence that no genuine issue of material fact existed, and that Tower was entitled to summary judgment annulling the 2003 judgment as a matter of law. See LSA-C.C.P. art. 966. Even if we assume that the 1999 judgment on the promissory note signed by Mark was defective and based on fraud, those defenses would not excuse or cure Mrs. Pidgeon’s failure to notify the holder of a recorded interest in immovable property of an action to terminate that interest.

Mrs. Pidgeon’s reconventional demand was based on similar allegations. On the motion for summary judgment, she submitted no evidence to establish a genuine issue of material fact remained concerning her claims that a bankruptcy stay remained in place, that she was harassed by Tower, or that Tower brought a direct action against Mrs. Pidgeon in an | ^attempt to seize her property, rather than the property interest belonging to her son, Mark.

For these reasons, we affirm the judgment of the trial court by memorandum opinion issued in compliance with URCA Rule 2-16.l.B. The costs of the appeal are assessed to appellant, Mrs. Pidgeon.

AFFIRMED.