author: ROTHENBERG, Judge. WELLS, Judge CORTINAS, Judge

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, etc., Appellant, v. Faryd A. SALEME, Appellee.
    No. 3D06-1033.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.

      Andrew J. Anthony and Bradley A. Sil-verman, The Law Offices of Anthony & Associates, P.A., Coral Gables, for appellant.
    Pape & Chandler and Marc A. Chandler, Fort Lauderdale, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   On Motion for Rehearing

ROTHENBERG, Judge.

We grant the appellee’s motion for rehearing, withdraw our former opinion dated February 21, 2007, and substitute the following opinion in its stead:

Faryd A. Sáleme (“Sáleme”) and Trooper Lozano of the Department of Highway Safety and Motor Vehicles, Division of Florida Highway Patrol (“FHP”), were involved in a motor vehicle accident on SR 826 wherein Sáleme ran into the rear end of Trooper Lozano’s patrol car. Sáleme filed a complaint against the FHP alleging that Trooper Lozano was negligent in the operation of his patrol car. The jury ultimately found that both Trooper Lozano and Sáleme were negligent and that the negligence of each was a contributing cause of the accident, assigning 85% of the fault to Sáleme and 15% of the fault to Trooper Lozano, resulting in a final judgment awarding Sáleme $81,250.44, which FHP now appeals. The FHP claims that the trial court erred in denying its motion for a directed verdict and its post-trial motion for judgment notwithstanding the verdict (“JNOV”). We agree and, therefore, reverse and remand with directions to the trial court to enter a final judgment in favor of the FHP.

THE EVIDENCE

Trooper Lozano had stationed his patrol car on the right hand shoulder of SR 826 facing southbound approximately 589 feet south of the crest of the Sunset Drive overpass in an attempt to catch speeding motorcyclists who were headed to Fud-drucker’s in south Miami-Dade. Trooper Lozano explained that on Thursday nights, motorcyclists meet at Fuddrucker’s, and that they often drive at high rates of speed and recklessly on that particular section of SR 826, which ends at U.S. 1 near Fud-drucker’s. Sáleme, who had ridden on this roadway approximately a thousand times and knew it well, was riding his motorcycle in a triangle formation with two companions, who were also on their motorcycles. Sáleme rode in front with Rene Bermudes (“Bermudes”) and another friend, (“Frank”), riding behind him. All three were speeding. Sáleme testified that he was initially traveling at a speed of at least 60 to 65 mph, but admitted that he had told the accident investigator on the night of the accident that he was initially traveling between 65 and 70 mph. The speed limit on SR 826 is 55 mph.

Prior to reaching the hill, two other motorcyclists, a man on a yellow Suzuki and another individual, approached Sá-leme, stayed with him momentarily, and then sped off. Sáleme, who was already traveling at 65 to 70 mph when he was approached by the man on the yellow Suzuki, sped up to chase the Suzuki. Trooper Lozano testified that he clocked the Suzuki at well over 100 mph, but that he could not remember the exact speed it was traveling when it passed his patrol car, which was parked 589 feet from the top of the hill. Bermudes testified that the driver on the yellow Suzuki was traveling between 100 and 120 mph.

Upon seeing the speeding motorcyclists (the man on the yellow Suzuki and a second motorcyclist who was not Sáleme), Trooper Lozano began to pursue them and entered the roadway from the right shoulder. Trooper Lozano testified that there had been a break in the traffic when the Suzuki passed him. Trooper Lozano put his car in gear, turned on his lights, checked to make sure no traffic was coming, and pulled out into the right hand lane, and while accelerating, crossed into the center and then into the left lane, all the while looking to his left to make sure no other traffic was coming. As Trooper Lozano was making his way onto and across SR 826, Sáleme came up over the hill, saw the trooper in his lane of travel, applied his brakes, and skidded 156 feet before hitting the back of the trooper’s patrol car.

Sergeant Marisela Fernandez, a traffic homicide investigator trained in civil engineering and accident reconstruction, investigated the accident, and testified that based upon her analysis, Sáleme was driving between 80 and 85 mph when he first saw Trooper Lozano. It was undisputed that Trooper Lozano was traveling at approximately 50 mph and was accelerating when he was struck by Sáleme. Ber-mudes, who was approximately three car lengths behind Sáleme before Sáleme accelerated to chase the man on the yellow Suzuki, testified that he was approximately a half of a football field (150 feet) behind Sáleme when Sáleme hit the patrol car. Neither Bermudes nor Frank was involved in the accident.

The accident occurred 789 feet south of the crest of the hill, which means Trooper Lozano traveled 200 feet upon entering onto the roadway.

Sáleme testified that when he first saw Trooper Lozano, Trooper Lozano was already in the left lane, which is the same lane Sáleme was traveling in. He did not see Trooper Lozano as Trooper Lozano made his way across SR 826 and he could not testify how long Trooper Lozano had been in the left lane before he hit the trooper’s patrol car. He did testify, however, that upon seeing the trooper’s car in his lane, he applied his brakes “hard.”

Sergeant Fernandez testified that it takes two-and-a-half seconds from the time an individual perceives the danger to react to it. Sergeant Fernandez further testified that at 80 mph (Sáleme was traveling 80 to 85 mph when he saw the trooper), Sáleme would travel 117 feet per second. Thus, Sáleme traveled at least 292 feet from the time he first saw Trooper Lozano in his lane of travel until he applied his brakes. After applying his brakes, he skidded 156 feet and then hit the patrol car. He, therefore, traveled at least 448 feet from the time he first saw the trooper in the left lane to the time when he made contact with the patrol car, a distance of one-and-a-half football fields. These facts are critical because they demonstrate that when Trooper Lozano pulled into the far left lane, the nearest motorist, which was Sáleme, was at least 292 feet or nearly 100 yards, the distance of a football field, behind him. The evidence reflects that Sá-leme began accelerating as he traveled up the hill, and within two to three seconds after traveling over the top of the hill, saw the patrol car in his lane, tried to slow down, but was going too fast to avoid hitting the trooper’s car.

THE PRESUMPTION

In Florida, there is a rebuttable presumption that the negligence of the rear driver in a rear-end collision was the sole proximate cause of the accident. Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 572-73 (Fla.2001). This presumption may be rebutted “[w]hen the defendant produces evidence which fairly and reasonably tends to show that the rear fact is not as presumed,” that the rear-end collision was not the result of the rear driver’s negligence. Guile v. Boggs, 174 So.2d 26, 29 (Fla.1965). The courts, however, have recognized three specific fact patterns which may rebut this presumption:

(1) affirmative testimony regarding a mechanical failure, see, e.g., Gulle, 174 So.2d at 29 (holding that affirmative testimony by the defendant that his brakes failed was sufficient to overcome the negligence presumption);
(2) affirmative testimony of a sudden and unexpected stop or unexpected lane change by the car in front, see, e.g., Conda v. Plain, 222 So.2d 417, 417-18 (Fla.1969) (holding that testimony by the defendant that the plaintiff suddenly switched into the defendant’s lane while the defendant was passing the plaintiff was sufficient to rebut the presumption); and
(3) when a vehicle has been illegally and, therefore, unexpectedly stopped, see, e.g., Ry. Express Agency, Inc. v. Garland, 269 So.2d 708, 710 (Fla. 1st DCA 1972) (presumption rebutted where defendant, who was driving a bus, improperly stopped on an expressway to pick up fallen debris), cert. denied, 275 So.2d 14 (Fla.1973); Ben’s Seltzer, Inc. v. Markey, 254 So.2d 377, 378 (Fla. 3d DCA 1971) (presumption rebutted where plaintiff presented evidence that defendant was improperly stopped on a bridge), cert. denied, 261 So.2d 176 (Fla.1972).

See Liriano v. Gonzalez, 605 So.2d 575, 576 (Fla. 3d DCA 1992).

LEGAL ANALYSIS

The FHP asserts that the trial court erred in denying its motion for a directed verdict and its post-trial motion for a JNOV because Sáleme failed to present sufficient evidence to rebut the presumption of negligence that attaches to a rear motorist in a rear-end collision. We agree as (1) there is absolutely no evidence in the record of any mechanical failure, that Trooper Lozano made a sudden stop or an unexpected lane change, or that Trooper Lozano was illegally stopped on the roadway; (2) Sáleme failed to present any evidence that if there had been a sudden lane change, it occurred at a time and place where it could not reasonably have been expected; and (3) the evidence conclusively establishes that the accident occurred solely as a result of Saleme’s negligence.

(1) No evidence of a sudden lane change

Saleme’s theory of the case was that Trooper Lozano suddenly swerved into Sa-leme’s lane of travel. Despite the dissent’s assertion to the contrary, there was, however, no evidence presented to support this theory. Trooper Lozano testified that when he pulled onto the roadway, there had been a break in the traffic, he turned to his left to make sure that no other traffic was coming, and he continued to look to his left as he crossed into the middle and then into the left lane. Trooper Lozano testified that he was completely in the left lane and had been traveling in that lane for several seconds prior to the impact. The physical evidence supports the trooper’s testimony, as Saleme’s motorcycle struck near the center of the rear of the patrol car. Trooper Lozano was traveling within the speed limit. Trooper Lozano did not testify that he made a sudden lane change.

Sáleme, who was already driving in excess of the speed limit (65 to 70 mph in a 55 mph zone), accelerated on the back side of the hill even though he admits that he had no idea whether there were other motorists on the other side of the hill, and had reached a speed of at least 80 to 85 mph as he cleared the top of the hill. Sáleme testified that he never saw Trooper Lozano’s vehicle as it proceeded from the right lane to the left lane, and in fact, stated that when he first saw the trooper’s vehicle, it was already in his lane of travel. Thus, Sáleme did not testify that Trooper Lozano made a sudden lane change, and in fact, his testimony supports Trooper Lozano’s testimony that he had not made a sudden lane change and was traveling in the left lane for several seconds prior to impact. More importantly, Saleme’s friend, Rene Ber-mudes, who actually saw the trooper’s vehicle as it made its way across the roadway, did not testify that Trooper Lozano made a sudden or unexpected lane change. In fact, Bermudes could not even estimate how long Trooper Lo-zano had been in the left lane before being struck by Sáleme, and could not estimate how far back Sáleme was when the trooper crossed into the left lane.

In addition to the absence of any eyewitness testimony of a sudden lane change, there is the lack of physical evidence which could support such a finding. In fact, the physical evidence requires the converse conclusion. Sáleme was traveling at 80 to 85 mph when he first saw Trooper Lozano, who was already in the left lane. According to Sergeant Fernandez’s unrebutted testimony, at that speed, Sáleme was traveling 117 feet per second. Because it took Sáleme at least two-and-a-half seconds to react when he saw the trooper in his lane, Sáleme traveled at least 292 feet, or nearly 100 yards before he was able to react and apply his brakes. After Sáleme applied his brakes, he slid another 156 feet and struck the center of the rear end of Trooper Lozano’s vehicle. Sáleme was, therefore, at least 100 yards or the distance of a football field behind Trooper Lozano when Trooper Lozano had already crossed into Saleme’s lane of travel or was crossing into Saleme’s lane of travel.

Changing lanes when the nearest motorist is over 100 yards or in excess of a football field away, when the speed limit is 55 mph, cannot intelligently constitute a sudden lane change sufficient to rebut the presumption of negligence that attaches to a rear motorist in a rear-end collision, especially when the record, as here, conclusively establishes the negligence of the rear motorist. The dissent, however, claims that the presumption that the accident was not caused by Saleme’s own negligence was rebutted by the following: (1) Trooper Lozano had not activated his emergency lights or siren; (2) according to Bermudes there “wasn’t much” distance between Trooper Lozano’s patrol car and Saleme’s motorcycle when Trooper Lozano moved into Saleme’s lane; and (3) “Sáleme testified that he saw the side mirror on Trooper Lozano’s patrol car, and Trooper Lozano looking at him as he crossed into the left lane.” We cannot agree.

The fact that Trooper Lozano had not activated his emergency equipment is irrelevant to the question of whether Trooper Lozano made a sudden lane change. Interestingly, Trooper Lozano explained that he did not activate his emergency equipment because in his experience, motorcyclists (such as this one going 100 to 120 mph) generally increase their speed to outrun a patrol car, thus increasing the danger to other motorists on the highway and subsequently avoid apprehension. Thus, the failure to activate his emergency equipment not only is irrelevant to whether Trooper Lozano made a sudden lane change, it demonstrates Trooper Lozano’s concern for the safety of other motorists.

Regarding Bermudes’ testimony, he was not able to testify as to the distance between Trooper Lozano’s vehicle and Sa-leme’s motorcycle when the trooper moved into the left lane and he never testified that Trooper Lozano made a sudden lane change. In fact, Bermudes was never asked that question by either of the attorneys. He was asked, however, and admitted, that he could not even estimate the distance between the trooper’s vehicle and Saleme’s motorcycle when Trooper Lozano moved into Saleme’s lane of travel.

Q. In your estimation, how close to Mr. Sáleme was the FHP cruiser when he entered the lane, Mr. Saleme’s lane?
A. Estimate?
A. I couldn’t tell you that.
Q. Okay.
A. It wasn’t much. I can’t remember.

Lastly, the dissent mischaracterizes Sa-leme’s testimony. The dissent claims that “Sáleme testified that he saw the side mirror on Trooper Lozano’s patrol car, and Trooper Lozano looking at him as he crossed into the left lane.” What Sáleme testified to was that he never saw Trooper Lozano changing lanes or in any lane other than the far left lane, the lane Sáleme was traveling in. When he first saw the trooper’s vehicle it was already in his lane and as he came up on the trooper, he could see him looking at Sáleme in his side mirror but that he (Sáleme) was already too close to the trooper at that point.

Q. Did you see the person operating the car?
A. The first thing that I was able to see when he was coming in towards where I was, was the mirror. I saw something, because something was coming, and I saw him, and that he was looking at me, but I was already too close to him.
Q. What you are saying, sir, is that as the officer was going from the far right shoulder, you didn’t see him then. Correct?
A. Yes.
Q. You didn’t see the Florida Highway Patrol Officer when he was in the far right lane, after coming from the shoulder. True?
A. True, I didn’t see him.
Q. And you didn’t see him when he was in the middle lane, either did you, sir?
A. Correct. I did not see him in the center lane.

When asked when he first saw the trooper, Sáleme responded that he could not “remember very well” and thus, had his memory refreshed by his deposition:

Q. Whether the first time you saw him is when you were within a few feet of him. And you responded that, his rear lights were already in my tires. And then I asked you, you never saw him before that. Right?
A. Right

Thus, contrary to the dissent, it is clear from Saleme’s own testimony that he did not see Trooper Lozano’s vehicle as it changed lanes and did not see Trooper Lozano’s vehicle in any other lane than the very same lane Sáleme was traveling in.

(2) Had there been evidence of a sudden lane change, under the facts of this case, that evidence would have been insufficient to rebut the presumption that Saleme’s own negligence was the sole proximate cause of the accident.

While there is no evidence of a sudden lane change and Sáleme failed to rebut the presumption of negligence which attaches to the rear driver in a rear-end collision, even if Sáleme had offered evidence of a sudden lane change, we conclude that a sudden lane change, under the facts of this case, would be insufficient to rebut the presumption.

Sudden lane changes can be likened to sudden stops. In Clampitt, the Florida Supreme Court clarified that a sudden or abrupt stop, standing alone, is insufficient to overcome the presumption of negligence which attaches to the rear driver in a rear-end collision. Clampitt, 786 So.2d at 575 (“It is well settled that a sudden stop, without more, is insufficient to overcome the presumption of negligence.”). The Court explained that:

It is not merely an “abrupt stop” by a preceding vehicle (if it is in its proper place on the highway) that rebuts or dissipates the presumption that the negligence of the rear driver was the sole proximate cause of a rear-end collision. It is a sudden stop by the preceding driver at a time and place where it could not reasonably be expected by the following driver that creates the factual issue.

Id. at 574 (citing Pierce v. Progressive Am. Ins. Co., 582 So.2d 712, 714 (Fla. 5th DCA 1991)); see also Blake v. Singer, 914 So.2d 994, 995 (Fla. 4th DCA 2005) (reversing judgment in favor of the rear driver, finding that the trial court erred in denying the lead driver’s motion for directed verdict as the evidence was insufficient to overcome the presumption of the rear driver’s negligence, and explaining that a sudden stop by the front driver, in and of itself, was insufficient to overcome the presumption) (holding that “only a sudden stop at a time and place where it could not reasonably be expected by the rear driver creates a factual issue”); Cheng v. Sirichoke, 745 So.2d 1152, 1154 (Fla. 3d DCA 1999).

In the instant case, even if there had been evidence presented of a sudden lane change by Trooper Lozano, a directed verdict in favor of Trooper Lozano was required under the facts of this case, as Trooper Lozano’s lane change occurred at least 100 yards (the distance of a football field) ahead of Sáleme and any other driver. In this case, the suddenness of the lane change must be considered in light of the distance between the lead driver and other motorists and the speed at which they were traveling. In the instant case, Trooper Lozano was traveling at 50 mph and accelerating in a 55 mph zone with at least 100 yards distance between his vehicle and the nearest motorist behind his vehicle. Thus, the alleged sudden lane change was insufficient as a matter of law to rebut the presumption that attaches to Sáleme as the rear motorist in a rear-end collision.

(3) The accident was as a result of Sa-leme’s own negligence

In the instant case, it is undisputed that Sáleme was operating his motorcycle at between 80 and 85 mph, far in excess of the 55 mph speed limit on SR 826. He was very familiar with that area of the highway, having driven on it approximately a thousand times. He, therefore, knew that while ascending the incline of the Sunset Drive overpass, he would be unable to observe the motorists ahead or to gauge their speed or distance from him.

Q. As you approached the hill, you did not know what was on the other side of the hill, did you?
A. Correct.
Q. And because you did not know what was on the other side of the hill, you did not know whether there could have been any cars on the other side of the hill, going slower than you were going. Isn’t that true?
A. Correct.

In addition to being blind to the traffic and conditions on the other side of the hill, it was nighttime, which further diminished Saleme’s visibility and ability to react to the traffic once he cleared the hill. Despite these conditions, he chose to drive at a high rate of speed, and most likely with an inattentiveness, which resulted in his inability to safely react to the traffic ahead of him. Thus, even if Trooper Lozano had entered the left lane at the exact moment Sáleme first observed him in the lane (which is unsupported by the evidence), Sáleme was unable to avoid hitting the back of Trooper Lozano’s vehicle, despite having 100 yards from the time he first observed Trooper Lozano in his lane of travel and an additional 156 feet, which is the distance he slid until striking the patrol car, to do so.

At the point of impact, Trooper Lozano was 789 feet from the crest of the hill and had traveled 200 feet from the right shoulder to arrive at that location. Based upon the undisputed evidence, Sáleme was 100 yards behind Trooper Lozano, who was already in the left lane, when Sáleme first observed him. The total distance from the crest to impact (789 feet), minus the distance of observation to impact, equals 341 feet, which is the distance Sáleme traveled after clearing the crest before he even saw Trooper Lozano. Since Sáleme was traveling at a distance of 117 feet per second, he had an additional 341 feet or approximately three seconds after clearing the crest to either see Trooper Lozano traveling in the left lane or crossing into the left lane, and yet, according to Sáleme, himself, he saw neither. He, therefore, had an additional 341 feet and three seconds in which to observe, react, and to avoid the danger, had he been more attentive.

In contrast, his companion, Bermudes, who was not driving at Saleme’s speed (Sáleme had accelerated, thereby increasing the distance between Sáleme and his companions from three car lengths to approximately 150 feet), actually observed Trooper Lozano crossing into the left lane and was able to safely avoid Trooper Loza-no’s vehicle. Sáleme, therefore, unequivocally could have avoided the accident if he had not accelerated to 80 to 85 mph and had paid attention to the traffic ahead of him. His negligence was, therefore, the sole proximate cause of the accident.

THERE IS NO CONFLICT WITH ALFORD V. COOL CARGO CARRIERS, INC.

The dissent claims that the majority opinion is in direct conflict with Alford v. Cool Cargo Carriers, Inc., 936 So.2d 646 (Fla. 5th DCA 2006). This is not correct as in Alford, the plaintiff was a passenger in the lead vehicle; (2) the Fifth District Court of Appeal specifically found that based upon the particular facts of the case, the presumption did not even apply; and (3) the District Court concluded that summary judgment should not have been granted in favor of the rear driver because there was evidence that the lead driver made a sudden and unexpected change into the center lane traveling 35 mph on 1-75, with a posted 70 mph speed limit. Id. at 648-50. None of the factors present in Alford are present in the instant case. In the instant case, it is the rear motorist who is suing; the presumption applies; there was no evidence presented of either a sudden or an unexpected lane change; and Trooper Lozano was driving within five miles per hour of the speed limit, not forty-five miles under the speed limit, as was Alford. Thus, the dissent’s reliance upon and claim of conflict, are misplaced.

CONCLUSION

The trial court erred in failing to grant the FHP’s motion for a directed verdict. Sáleme failed to present any evidence to support his claim that Trooper Lozano made a sudden lane change or unexpected lane change, which in the light most favorable to Sáleme, occurred when Sáleme, the nearest motorist, was at least 100 yards or the distance of a football field behind Trooper Lozano. Sáleme could have, and should have, anticipated that a motorist may have been traveling in the left lane or proceeding into that lane on the other side of the hill, going at a speed much slower than Saleme’s speed and consistent with the 55 mph speed limit, and that Sáleme would have been unable to make this observation until after clearing the crest, leaving him with a minimal opportunity to safely react. Sáleme, therefore, failed to present sufficient evidence to rebut the legal presumption that he, as the rear driver, was negligent and that his negligence was the sole proximate cause of the accident. We, therefore, reverse with directions to the trial court to enter judgment in favor of the FHP.

Reversed and remanded.

WELLS, Judge

(concurring).

I write separately to address two points raised by the dissent. First, the dissent complains that without legal precedent, the majority opinion applies the “reasonable time and place” analysis, previously acknowledged in numerous “abrupt stop cases,” to the sudden change of lane exception claimed here. As I see it, there must be such an analysis or the exception makes no sense. This exception contemplates two vehicles in close proximity and operates to dispel the presumption that the following driver is negligent for failure to avoid a collision when the near-by leading vehicle abruptly changes lanes making collision unavoidable. Thus where this exception is claimed, a “reasonable time and place” analysis must be made.

Second, the dissent accuses the majority opinion of usurping the proper role of the trial judge and jury in reaching this conclusion. Again, I disagree. As the Supreme Court explained in Eppler v. Tarmac America, Inc., 752 So.2d 592, 594 (Fla.2000):

Beginning with McNulty, [v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958)] therefore, the law presumed that the driver of the rear vehicle was negligent unless that driver provided a substantial and reasonable explanation as to why he was not negligent, in which case the presumption would vanish and the case could go to the jury on its merits.

(Emphasis added) (citation omitted); see also Gulle v. Boggs, 174 So.2d 26, 29 (Fla.1965) (observing “[w]hen the defendant produces evidence which fairly and reasonably tends to show that the rea[l] fact is not as presumed, then the impact of ‘the presumption is dissipated’ ”). Thus, it is the trial judge’s responsibility to consider the facts to determine whether there was a substantial and reasonable explanation as to why the rear driver was not negligent, and it is only after that analysis is concluded in the rear-end driver’s favor that the case may proceed to the jury. It is, therefore, our responsibility to assure that the trial court did not abuse its discretion in making that initial determination.

Here, the parties argued that a presumption of negligence arose and attached to Sáleme as the driver of the rear vehicle involved in this rear-end collision. The record demonstrates no reasonable explanation offered by Sáleme for his actions that would dispel this presumption. See Davis v. Chips Express, Inc., 676 So.2d 984, 986 (Fla. 1st DCA 1996) (confirming that to create a jury issue, it is only necessary for the following driver to offer a substantial and reasonable explanation for his actions). The unrebutted evidence was that Sáleme was traveling between 80 and 85 miles per hour trying to catch up to another motorcyclist going over 100 miles per hour when he crashed into the middle of an FHP cruiser traveling at 55 miles per hour in the same lane. Other than the fact that Saleme’s excessive speed created a “zone of risk” for anyone else traveling on this roadway at or near the posted 55 mile per hour speed limit (making Sá-leme the sole cause of this accident), calculations made from the physical evidence by an expert accident investigator and civil engineer established that Saleme’s sudden lane change explanation was anything but reasonable. That expert’s unchallenged testimony was that at 80 miles per hour Sáleme was traveling 117 feet per second and that it takes 2½ seconds between recognition of a hazard and brake initiation. Using this information, and calculating backward from the point at which Sáleme applied his brakes (leaving a 156 foot skid mark before slamming into the cruiser), the unchallenged evidence is that Sáleme was over 100 yards, or an entire football field, behind the FHP cruiser when he either saw it in or saw it come into his lane. This was more than enough space, no matter how quickly the cruiser came into the lane, to avoid a collision but for Saleme’s excessive speed. There was no sudden unexpected lane change, and Sá-leme failed to provide a “reasonable” explanation for his actions to dispel the presumption of negligence on his part.

FHP was, therefore, entitled to a directed verdict on the issue of liability. More importantly, in reaching this conclusion we have applied the correct standard and have acted neither as trial judge nor jury, but rather have fulfilled our obligation as a reviewing court.

ROTHENBERG, J., concurs.

CORTINAS, Judge

(dissenting).

In an exhausting recreation of supposed events, complete with detailed mathematical calculations of timing and distances, which are impermissibly presented in the light most favorable to the defendant, the majority ignores and eviscerates the application of a rebuttable presumption. In so doing, they dispense with and supplant the proper roles of the trial judge and jury, choosing, instead, to perform their functions on appeal.

The “rear-end collision rule” was endorsed by the Florida Supreme Court in Gulle v. Boggs, 174 So.2d 26, 28-29 (Fla.1965). See Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 573 (Fla.2001). The purpose of the rule is to create a rebuttable presumption which shifts the burden to the rear driver in a rear-end collision to come forward with evidence which “fairly and reasonably tends to show” that the presumption of negligence on the rear driver is misplaced. See id. (citing Gulle, 174 So.2d at 28-29). “If the rear driver produces sufficient evidence to rebut the presumption, the case is submitted to the jury without the aid of the presumption, ‘to reconcile the conflicts and evaluate the credibility of the witnesses and the weight of the evidence’.” Alford v. Cool Cargo Carriers, Inc., 936 So.2d 646, 650 (Fla. 5th DCA 2006) (quoting Gulle, 174 So.2d at 29) (finding that if the rear driver rebuts the presumption, the presumption is “reduced to the status of a permissible inference ... which the jury may or may not draw from the evidence before it”); see also, Clampitt, 786 So.2d at 573 (finding that when the rear driver produces evidence which fairly and reasonably tends to show that he was not negligent, the impact of the presumption is dissipated and negligence then becomes a jury question).

As the majority correctly states, Florida courts have carved out three categories of specific fact patterns that may effectively rebut the presumption of negligence that attaches to the rear driver in a rear-end collision. See, e.g., Alford, 936 So.2d at 649-50 (citing Eppler v. Tarmac Am., Inc., 752 So.2d 592 (Fla.2000)); Antokal v. Llano, 763 So.2d 1067 (Fla. 4th DCA 1999); Liriano v. Gonzalez, 605 So.2d 575 (Fla. 3d DCA 1992). The first category is .when the lead driver makes an abrupt or arbitrary stop in a place where it could not be reasonably expected, or an unexpected lane change. Alford, 936 So.2d at 649-50; Eppler, 752 So.2d at 595-96. The second category is when a mechanical failure occurs causing the rear driver to collide with the lead driver. Alford, 936 So.2d at 649-50; Antokal, 763 So.2d at 1069 (citing Tozier v. Jarvis, 469 So.2d 884, 886 (Fla. 4th DCA 1985)). Lastly, the presumption is effectively rebutted when there is evidence that the lead vehicle was illegally and, therefore, unexpectedly stopped. Alford, 936 So.2d at 649-50; Tozier, 469 So.2d at 887. In these cases, the rationale behind the presumption of negligence is not given its intended effect because the driver of the lead vehicle was also a contributing factor of the collision. Alford, 936 So.2d at 650.

Here, Saleme’s theory of the case rested solely on the category addressing the presumption of negligence when the lead driver makes an unexpected lane change. However, the majority posits that in order to effectively rebut the presumption of negligence, the unexpected lane change, like the abrupt stop, must also occur at a time and place where it could not reasonably be expected by the rear driver. See Clampitt, 786 So.2d at 574 (finding that an abrupt stop by a preceding vehicle that is in its proper place on the highway is insufficient to rebut the presumption); Wright v. Ring Power Corp., 834 So.2d 329, 331 (Fla. 5th DCA 2003) (finding that it was reasonable to expect the lead driver’s vehicle to abruptly stop when attempting to turn left at an intersection regulated by a stop sign); cf. Eppler, 752 So.2d at 595 (finding that it was unreasonable for the lead driver to abruptly stop at a traffic light that had turned green when all of the vehicles had begun moving forward in bumper to bumper traffic). For example, the majority concludes that because Sá-leme testified that he traveled the highway numerous times prior to the accident, he should have reasonably anticipated another motorist to unexpectedly change several lanes of traffic at the bottom of the overpass. No case has ever applied the reasonable time and place requirement of an abrupt stop to an unexpected lane change. Here, the majority opinion not only expands legal requirements without precedent, it also makes factual determinations that were properly placed and decided by the jury. With all due respect, it is fanciful for the majority to find that a motorist driving on a three-lane highway, along with other vehicles also traveling at high rates of speed, should expect, as a matter of law, that another motorist would rapidly traverse three lanes of highway traffic. Once Sáleme presented credible evidence of an unexpected and rapid three-lane change by Trooper Lozano, the presumption was adequately rebutted and the trial judge properly placed the issue of negligence before the jury.

Moreover, I am perplexed by the majority’s holding that Sáleme did not effectively rebut the presumption because the accident was a result of Saleme’s own negligence. The majority’s conclusion that there was no evidence of a sudden lane change by Trooper Lozano is simply belied by the testimony at trial. Sáleme testified that he was able to see the side mirror on Trooper Lozano’s patrol car and Trooper Lozano looking at him as he crossed into the left lane. At this time, Saleme stated that he only had one or two seconds to react before striking the rear bumper of the patrol car. Furthermore, Trooper Lozano testified that he “floor[ed] the car ... having it go[ ] as fast as it could go” and crossed the right lane, middle lane, and into the left lane of the highway. Additionally, Trooper Loza-no testified that he was simply trying to observe the actions of the speeding motorcyclists and, therefore, did not turn on his sirens or the flashing police lights on top of his patrol car. Moreover, Bermudes, an eye witness, testified that when he drove over the crest of the overpass, he saw the FHP patrol car travel from the right side of the roadway to the left most southbound lane, and that there “wasn’t much” distance between Saleme’s motorcycle and Trooper Lozano’s FHP patrol car at the time Trooper Lozano crossed into the left lane in front of Sáleme. With all due respect to my colleagues, this evidence is more than sufficient to conclude, as the very able trial judge did, that Trooper Lozano made a sudden lane change. Furthermore, contrary to the majority’s conclusion, it is clear from the evidence that because neither party was entirely without fault, the trial court correctly submitted the issues to the jury to determine the question of liability and apportionment of damages. Alford, 936 So.2d at 650 (citations omitted).

The majority also mentions that because Sáleme could have avoided the accident, his negligence was the sole proximate cause of the accident. Far from being a legal requirement to successfully rebut the presumption of negligence, the issue of whether the accident was avoidable was also a question for the jury’s consideration. Thus, the trial court was entirely correct in its submission of the issue to the jury, and the jury acted within its authority in finding that Trooper Lozano was fifteen percent (15%) negligent.

Notably, the majority’s decision is in conflict with the Fifth District’s recent opinion in Alford. In Alford, the Fifth District addressed the precise issue before us, whether the presumption of negligence attached to a rear driver who provided evidence of a sudden lane change and whether the rear driver was entitled to summary judgment. Id. at 651. In Alford, the record showed that the lead driver was stationed on the shoulder of southbound 1-75, and subsequently re-entered the roadway crossing the right, middle, and over into the left lane, thereafter colliding with the rear vehicle. Id. at 648. The rear driver provided evidence that the lead driver may have improperly changed lanes and the lead driver provided evidence that the rear driver was not alert and failed to maintain a safe distance. Id. at 648-49. The court applied Florida precedent recognizing that a sudden lane change effectively rebuts the presumption of negligence and, therefore, concluded “that the case should be submitted to the jury without the presumption to determine whether one or both parties were negligent and, if so, to what extent.” Id. at 649-51. Thus, the Alford court properly found that “if there is conflicting evidence in the record whether the lead vehicle changed lanes suddenly or unexpectedly, summary judgment was improper and the case should be submitted to a jury.” Id. at 650-51 (emphasis added).

The majority attempts to distinguish Alford on the ground that the plaintiff therein was the lead driver while the plaintiff in this ease was the rear driver. Respectfully, this is a distinction without a legally significant difference. On the contrary, the legal effect of the rear-end collision rule applies and the purpose of the presumption is equally served, regardless of whether it is the lead driver or the rear driver who initiates the lawsuit. Notably, there is no authority cited for their attempt to distinguish Alford.

Here, as in Alford, there exists sufficient conflicting evidence concerning whether or not Trooper Lozano made a sudden and unexpected lane change. Trooper Lozano admitted that he “floor[ed] the car ... having it go[ ] as fast as it could go” and crossed the right lane, middle lane, and into the left lane of the highway, while Sáleme stated that he only had one or two seconds to react before striking the rear bumper of the patrol car. Furthermore, the evidence reveals that Trooper Lozano may have improperly changed lanes without ascertaining whether such movement could be made with safety. See § 816.089(1), Fla. Stat. (2001)(“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”).

The majority dispenses with and resolves the conflicting evidence concerning Lozano’s sudden lane change by applying a “we know best” standard of review. Moreover, throughout the majority opinion, they impermissibly view the evidence in the light most favorable to the defendant, FHP. In stark contrast, the trial court properly considered the evidence adduced at trial in the light most favorable to the plaintiff, as it must on a motion for a directed verdict, and properly denied FHP’s motions. See Martinolich v. Golden Leaf Mgmt., Inc., 786 So.2d 613, 614 (Fla. 3d DCA 2001) (“In determining a motion for directed verdict, the evidence, and all reasonable inferences [sic] therefrom, must be viewed in a light most favorable to the non-moving party.”) (quoting Woods v. Winn Dixie Stores, Inc., 621 So.2d 710, 711 (Fla. 3d DCA 1993)).

Here, the conflicting evidence in the record concerning whether the lead vehicle changed lanes suddenly or unexpectedly, viewed in the light most favorable to the plaintiff, clearly precluded entry of a directed verdict. See Alford, 936 So.2d at 650-51. Therefore, the case was properly submitted to the jury without the presumption of negligence to determine whether one or both parties were negligent and, if so, to what extent. Id. at 649-51. Regardless of whether or not we agree with their decision, the jury was entitled to weigh the evidence and the credibility of the witnesses in apportioning negligence. Thus, the jury’s finding that Trooper Lozano was fifteen percent (15%) negligent was entirely permissible and must be affirmed.

      . Sergeant Fernandez testified that the trooper’s vehicle was five feet, five inches wide (65 inches) and that Sáleme struck the vehicle thirty-five inches to the left of the right fender (or 35 inches from the right), which is essentially the center of the vehicle.

      . Sáleme had no idea how fast he was traveling. However, one of the two cyclists traveling with him testified that they were traveling between 65 and 70 miles per hour before Sáleme sped up to catch the cyclist who sped past them at speeds clocked on radar as exceeding 100 miles per hour. An accident reconstruction expert testified that, based on standard calculations and known information about this crash, Sáleme was traveling between 80 and 85 miles per hour before hitting the cruiser.

      . The majority uses Sergeant Fernandez’s expert testimony regarding timing and distance to calculate new time and distance figures that are not included in the record. Additionally, the majority uses these mathematical calculations to draw inferences that a jury is better suited to determine.

      . The purpose of the “rear-end collision rule” is based on the need to lessen the lead driver's burden of proving two of the elements of negligence, breach and causation. Alford, 936 So.2d at 649 (citations omitted). This necessity arises from the fact that it is difficult for the lead driver to establish causation in most rear end collision cases because the driver’s attention is focused on the events in front of the vehicle. Id.

      . Actually, the evidence “fairly and reasonably” showed that Trooper Lozano made three (3) sudden lane changes. As he "floored his vehicle,” Trooper Lozano traversed the right lane from the shoulder, then into the middle lane, and finally into the left lane, where Sáleme was driving.

      . In direct conflict with this holding in Alford, the majority opinion in this case holds that “even if there had been evidence presented of a sudden lane change by Trooper Lozano, a directed verdict in favor of Trooper Lozano was required....”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JAMES CRYSTAL LICENSES, LLC, James Crystal Holdings, Inc., James Crystal Enterprises, LLC and Elena Whitby a/k/a Jennifer Ross, Appellants, v. INFINITY RADIO INC., a Delaware corporation, f/k/a CBS Radio Inc., Appellee.
    No. 4D06-4448.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Robert G. Haile, Jr. of Haile, Shaw & Pfaffenberger, P.A., North Palm Beach, for appellants James Crystal Licenses, LLC, James Crystal Holdings, Inc., and James Crystal Enterprises, LLC.
    David L. Gorman of David L. Gorman, P.A., North Palm Beach, for appellant Elena Whitby.
    Alan Rosenthal and Natalie J. Carlos of Adorno & Yoss LLP, Miami, for appellee.
   PER CURIAM.

The appellants appeal an order awarding attorneys’ fees and costs to the appel-lee. We recently reversed the underlying judgment in the appellants’ favor, and remanded the matter back to the trial court for a new trial. See Whitby v. Infinity Radio Inc., 951 So.2d 890 (Fla. 4th DCA 2007). Accordingly, we also reverse the order appealed. See Fraser-Watson v. Maxim Healthcare Servs., 849 So.2d 1201 (Fla. 4th DCA 2003) (reversing an award of costs that was predicated on a reversed final judgment). If the trial court’s reconsideration of the underlying matter results in another judgment in favor of the appel-lee, the court may also reconsider the propriety of awarding attorneys’ fees and costs.

Reversed.

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


text:
    Robert L. LATSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2050.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Robert L. Latson, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Robert Lee Latson appeals an order summarily denying his petition for writ of habeas corpus, wherein he sought to file a belated rule 3.850 motion as a consequence of appellate counsel’s failure to inform him of the outcome of his direct appeal and of his right to postconviction relief. We reverse the summary denial and remand the matter to the trial court with instructions that the trial court hold an evidentiary hearing on Latsoris claim that his appellate lawyer failed to advise him of the outcome of his appeal and, should the trial court find Latsoris claims supported and credible, that the court permit Latson to file a belated rule 3.850 motion. See Brimage v. State, 937 So.2d 230 (Fla. 3d DCA 2006).

Reversed and Remanded.

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


text:
    Luis TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-658.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Luis Torres, Indiantown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Luis Torres appeals from an order that summarily denied his rule 3.800(a) motion. The circuit court did not attach any records to refute Torres’s claims. We reverse and remand with respect to Torres’s claim of illegal sentence associated with L.T. 02-11680. See Bean v. State, 949 So.2d 1207 (Fla. 4th DCA 2007). The state cannot cure this error by providing the records to this court on appeal. Id. at 1209.

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    William Adam BOEHM, Appellant, v. Melissa A. THOMAS, Appellee.
    No. 4D07-1044.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Raul R. Loredo of Mintzer, Sarowitz, Zeris, Ledva & Meyers, L.L.P., Coral Gables, for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an appeal attempting to appeal an order denying appellant, William Adam Boehm’s, motion for rehearing. We dismiss this appeal as untimely because the notice of appeal was not filed within thirty days of an appealable order, which in this case was the judgment. Boehm’s motion for rehearing was untimely under Florida Rule of Civil Procedure 1.530(b) and as a result, the motion for rehearing did not toll rendition of the judgment. Fla.R.App.P. 9.020(h).

Boehm asserts that the court may excuse a party’s untimeliness if there is a showing of excusable neglect as provided in Florida Rule of Civil Procedure 1.540(b)(1). That rule is inapplicable to the motion for rehearing because it applies to motions for relief from judgment. Furthermore, the trial court is without authority for any reason to enlarge the time within which a motion for rehearing is required to be filed. See Fla.R.Civ.P. 1.090(b).

Appeal dismissed.

STONE, STEVENSON and HAZOURI, JJ., concur.


text:
    Oscar PAGUADA, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1311.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Jan Peter Weiss, Lake Worth, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Oscar Paguada appeals a final order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Paguada seeks to withdraw his plea due to the trial court’s failure to inform him that his plea could subject him to deportation. The circuit court summarily denied the motion, finding that the motion was untimely. The state concedes that Paguada’s rule 3.850 was timely filed pursuant to State v. Green, 944 So.2d 208, 219 (Fla.2006) (stating “in the interest of fairness, defendants whose cases are already final will have two years from the date of this opinion in which to file a motion comporting with the standards adopted today”). We, therefore, reverse the circuit court’s order of denial and remand for consideration of Paguada’s motion on the merits.

STONE, WARNER and POLEN, JJ., concur.


text:
    Kenneth JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1401.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Kenneth Jones, Malone, pro se.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Kenneth Jones appeals the trial court’s order summarily denying' his amended motion for post-conviction relief alleging ineffective assistance of trial counsel for failure to investigate, interview or call a witness for trial. This court affirmed the summary denial of Jones’ last rule 8.850 motion for post-conviction relief alleging this claim, but without prejudice to his right to file an amended motion in the trial court limited to the claim of ineffective assistance of counsel for failure to investigate and call a witness under Nelson v. State, 875 So.2d 579 (Fla.2004). See Jones v. State, 929 So.2d 615 (Fla. 4th DCA 2006).

Jones filed that amended motion, styled as his “response to this Honorable Court’s Order Dated Jan 22, 2007 to amend his amended motion for post conviction relief.” We find that the allegations he made in this latest amended motion were sufficient under Nelson and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Accordingly, we reverse the trial court’s summary denial of this claim and remand for an evidentiary hearing or the attachment of portions of the record that conclusively refute this claim.

REVERSED AND REMANDED.

GUNTHER, STONE and WARNER, JJ., concur.


author: GROSS, J.

text:
    Angela Maria LOHMAN and Jeremy Lohman, Petitioners, v. Thomas J. CARNAHAN, Respondent.
    No. 4D07-237.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.

      Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, for petitioners.
    Neil B. Jagolinzer of Christiansen & Jacknin, Lawyers, West Palm Beach, for respondent.
   ON MOTION FOR REHEARING

GROSS, J.

We grant the motion for rehearing, withdraw our previous panel opinion, and substitute the following.

There are three actors in this case — the husband (Jeremy Lohman), the wife (Angela Maria Lohman), and Thomas Car-nahan.

The husband filed a petition for dissolution of marriage. In it, he alleged that the couple married in 1999, had two minor children, and separated in April, 2006, when the wife began living with Carnahan, with whom she had engaged in a long-term affair. The petition also alleged that the wife was pregnant and that the husband was not the father of the unborn child.

The husband and wife filed notice of a May 30, 2006 settlement agreement, which provided that two children were born to the couple and that no other children were expected. The agreement contemplated joint custody of the two children.

Then, the husband and wife reconciled.

The wife gave birth to a child on September 29, 2006. The husband participated in the pregnancy, was present for the birth, and is named as the child’s father on the birth certificate.

On October 10, 2006, Carnahan filed a petition to determine paternity, naming the wife as the respondent. He alleged that the parties began a sexual relationship in 2005 and conceived a child in January, 2006, while the "wife was living apart from the husband. He claimed that until the relationship ended in May, 2006, he was involved in all aspects of the wife’s pregnancy and supported her- financially and emotionally. Carnahan’s petition requested that the court order paternity testing of the child and designate Carna-han the child’s temporary and permanent residential parent. Later, Carnahan filed an amended petition adding the husband as a respondent.

On October 30, 2006, the couple served a joint voluntary dismissal of their dissolution proceeding.

On December 28, 2006, the husband filed a motion to dismiss and supporting affidavit. By a separate pleading, the wife joined in the motion. The husband argued that Carnahan lacked standing to bring the matter. The husband’s affidavit irrevocably waived any right to contest that he was the baby’s father and asserted his intention to continue to support his wife and three children. He attached a copy of the baby’s birth certificate indicating that he was the father.

The trial court denied the motion to dismiss and required that the husband and wife answer the petition within ten days.

The husband and wife- timely filed a petition for writ of certiorari with this court.

Certiorari lies in this situation. See Bellomo v. Gagliano, 815 So.2d 721 (Fla. 5th DCA 2002).

The general rule is “that a putative father has no right to seek to establish paternity of a child who was born into an intact marriage when the married woman and her husband object.” Johnson v. Ruby, 771 So.2d 1275, 1275-76 (Fla. 4th DCA 2000). In S.B. v. D.H., 736 So.2d 766 (Fla. 2d DCA 1999), the second district extended this holding to “prevent the trial court from evaluating the ‘intactness’ of a marriage so long as no divorce proceeding was pending.” S.D. v. A.G., 764 So.2d 807, 809 (Fla. 2d DCA 2000). The S.B. court reasoned that when a marital father objects to a paternity action, he is “estopped from later denying his responsibilities as the child’s legal father.” 736 So.2d at 767. Where the paternity of a child born to an existing marriage has been so acknowledged and where the husband and wife “have decided to raise [the] child of their marriage and to accept all the rights and responsibilities of parenthood,” a man who may have contributed his DNA to the child “has no statutory or constitutional right to intrude into that 'private decision.” Id.

In the original panel opinion, we seized on dicta from Lander v. Smith, 906 So.2d 1130, 1134 (Fla. 4th DCA 2005) that “an intact marriage is defined as the existence of a marriage without the pendency of divorce proceedings.” Lander cited no authority for this rigid definition other than S.B. v. D.H. That case does not employ such a definition; it holds only that a third party may not question the “intactness” of a marriage unless- there are divorce proceedings pending.

A marriage is intact.or it is not. A state of limbo exists when a divorce proceeding is pending and a marriage is on the road to dissolution. The bonds of matrimony are terminated by either death or a Chapter 61, Florida Statutes (2006), final judgment. See Marlowe v. Brown, 944 So.2d 1036 (Fla. 4th DCA 2006). Under Florida Family Law Rule 12.420(a), the parties may file a voluntary dismissal without prejudice that does “not operate as an adjudication on the merits.” The effect of a voluntary dismissal is “to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of ‘jurisdiction.’ ” Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 69 (Fla.1978). Here, the joint voluntary dismissal left the parties “as if the action had never been brought.” Papa John’s Int’l, Inc. v. Cosentino, 916 So.2d 977, 984 (Fla. 4th DCA 2005) (quoting In re Piper Aircraft Distrib. Sys. Antitrust Litig., 551 F.2d 213, 219 (8th Cir.1977), Attache Resort Motel, Ltd. v. Kaplan, 498 So.2d 501, 503 (Fla. 3d DCA 1986)).

Once the Lohmans dismissed their dissolution action there was no pending divorce proceeding, so the trial court was not authorized “to conduct any qualitative evaluation of whether the marriage [was] ‘intact.’” S.B., 736 So.2d at 767. The Lohmans were in almost the same legal position as the husband and wife in S.B., where a child was conceived and born during a married couple’s separation, but the couple reconciled and objected to the paternity action. The husband is listed as the father on the birth certificate and he has filed an affidavit of paternity of the child. See Bellomo, 815 So.2d at 721. This is not a case where, after the initiation of a paternity action, a previously filed dissolution action continued on its way to a final judgment. Under these circumstances, Carnahan may not invade the Lohmans’s private decisions concerning their marriage. S.B., 736 So.2d at 767; see G.F.C. v. S.G., 686 So.2d 1382, 1385 (Fla. 5th DCA 1997).

We distinguish Lander, which narrowly circumscribed its holding to the facts of that case. 906 So.2d at 1135. There, the mother acknowledged the putative father as the child’s father by having his name placed on the birth certificate and the putative father supported the child and bonded with him after his birth. Id. at 1131— 33. We also distinguish this case from T.B. v. M.M., 945 So.2d 637 (Fla. 2d DCA 2006), where the putative father filed a paternity action and the mother married another man two days after she was served with process; there was no intact marriage at the time the paternity action was filed. Id. at 639.

As Judge Altenbernd has written, these types of eases, involving “quasi-marital children,” are intensely fact sensitive and “difficult, if not impossible, to address within the case law method.” S.D., 764 So.2d at 809. For centuries, the law developed on the assumption that a mother’s parentage was certain, but a father’s connection to a child could be open to doubt. The advent of DNA testing has changed the dynamics in these cases. In the past ten years, the law has struggled to balance the sanctity of marriage, the right of privacy, and the best interest of children against the knowledge of paternity acquired by DNA testing. In construing the existing Florida rule, the panel opinion took too narrow a view of what constituted an “intact marriage.” To paraphrase Justice Jackson, “if there are other ways of gracefully and good naturedly surrendering former views to a better considered position,” we “invoke them all.” McGrath v. Kristensen, 340 U.S. 162, 178, 71 S.Ct. 224, 95 L.Ed. 173 (1950) (Jackson, J., concurring).

The trial court’s order constitutes a departure from the essential requirements of law. We grant the writ of certiorari and quash the trial court’s order denying the motion to dismiss.

POLEN and STEVENSON, JJ., concur.

      . One distinction between Rule 12.420(a) and Florida Rule of Civil Procedure 1.420(a)(1) is that a dismissal of an action under the family law rule “shall not operate as an adjudication on the merits”; this is unlike the civil procedure rule that "a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.”


author: STEVENSON, J.

text:
    Stanley METALES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2483.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   STEVENSON, J.

Appellant was tried by jury and convicted of burglary of a dwelling and resisting arrest without violence. We reverse the burglary conviction because we find the trial court erred in denying appellant’s motion for judgment of acquittal where the State failed to rebut appellant’s affirmative defense of consent.

The pertinent facts — with all inferences drawn in favor of the State for purposes of considering the motion for judgment of acquittal — are summarized as follows. Deputy John Kane attempted to make a traffic stop of the vehicle appellant was driving. Appellant accelerated away, drove into the parking area of a nearby apartment complex and ran from the vehicle. Shortly thereafter, Nicole Martin, a resident of the complex, was walking her dog when she saw her back door open and appellant run out. At the time, Martin’s fiancé, Mark Biggies, Biggies’ friend and Martin’s daughter were at the apartment. Although Martin knew appellant because appellant was the friend and co-worker of her prior roommate and Martin previously attended school with appellant, appellant had not been to her apartment within the past four weeks. Martin testified that she had not given appellant permission to enter the apartment, that it was not typical for him to enter the apartment without permission and that she did not know if anyone had invited him in. After appellant exited the apartment, he stopped briefly in front of Martin and she asked him what he was doing. Appellant responded that he was running. Appellant then proceeded towards the nearby Indian River Apartments and was captured en route by Deputy Sposato.

Appellant took the witness stand and testified that, on the day in question, his sister asked him to run around the apartment complex to confuse the police because they were trying to capture his sister’s boyfriend. When his sister told him to quickly get behind the apartment complex, appellant decided to go through Martin’s house because he was friends with her roommate for a period and they worked together. Appellant stated that he saw Mr. Biggies, Martin’s flaneé, standing outside smoking a cigarette and he asked Biggies if he could come into the apartment. According to appellant, he entered the apartment only after Biggies gave him permission. During cross examination, appellant testified:

I asked Mark Bigglefs], where’s Nicole? He said, Nicole[] is out back walking the dog. And I asked may I please come in and he say yeah, go ahead. And I went out back and I seen Nicole ....

Appellant testified that, upon exiting the apartment, he was briefly stopped by Martin, but he resumed running when he saw his sister’s boyfriend running across the ditch.

Upon the conclusion of appellant’s testimony, the defense rested and the defense attorney renewed his motion for judgment of acquittal, which was previously made after the State rested, based on the argument that the State had not rebutted appellant’s affirmative defense of consent. Contrary to the State’s argument, we find that the issue was preserved since the original motion, and the renewed motion, alerted the trial court to the appellant’s contention that the State had not rebutted the affirmative defense of consent. Appellant also argued that since he ran through the apartment to get to the other side of the complex, there was insufficient evidence that he entered the apartment with the intent to commit an offense. The trial court denied the motions. We reverse the burglary conviction based on the consent issue and do not reach appellant’s argument on the lack of intent.

Because consent is an affirmative defense, “[t]he defendant has the burden of initially offering evidence to establish the defense, but after he does so the burden then shifts to the state to disprove the defense beyond a reasonable doubt.” Hansman v. State, 679 So.2d 1216, 1217 (Fla. 4th DCA 1996). For instance, in Hansman, the State presented the testimony of two residents of a house, which the defendant was charged with burglarizing. See id. Both residents testified that they did not consent to the defendant entering the residence. The defendant testified that a different resident gave him permission to enter the house. See id. When reversing the burglary conviction, this court held that Hansman was entitled to a judgment of acquittal because the State failed to offer any evidence disproving his assertion that the third resident gave him consent and remarked:

It is true that the jury could simply have rejected the defendant’s testimony that [the third occupant] gave him permission to enter the house. But we understand the holdings in Coleman [v. State, 592 So.2d 300 (Fla. 2d DCA 1991),] and Wright [v. State, 442 So.2d 1058 (Fla. 1st DCA 1983),] to require the state to disprove consent beyond a reasonable doubt, once the defendant has offered any evidence to show consent. ... In this case the state did not meet its burden by simply having two of three occupants of the premises testify that they did not consent. The state was required to offer some evidence— direct or circumstantial — to show that [the third occupant] had not done so either.

Id. at 1217-18. See also Petrucelli v. State, 855 So.2d 150, 154 (Fla. 2d DCA 2003) (noting that when consent is placed in issue, it is the State’s burden to establish that consent was not given or that the person who gave consent did not have the legal ability to do so).

In the instant case, the State presented no evidence, direct or circumstantial, to rebut appellant’s testimony that Martin’s fiancé, Mark Biggies, gave appellant consent to enter the apartment. The State argues in its brief that a jury question on this issue was presented because the police officer who observed appellant just before he entered the apartment never testified he observed appellant talk to anyone. We disagree that this testimony creates a jury question. Sergeant White testified that he responded to a BOLO and saw appellant, who met the description, standing in front of Martin’s apartment door. White admitted that, when he first caught sight of appellant, appellant was “in motion going into [the apartment].” White testified:

Again, this happened within seconds. When I turned in onto this road and we had multiple units in this area, I observed him in front of the door. He immediately went into the apartment. ...

Sergeant White also testified that when he “bailed out” of his vehicle to run to the door, he did not go inside, but “there was an individual that was a resident of that apartment standing in the doorway up against, kind of against the wall.” Thus, even taking all reasonable inferences from Sergeant White’s testimony in favor of the State, this evidence fails to rebut appellant’s claim that he had spoken to Biggies prior to entering the apartment and that Biggies had given him permission to go inside.

Because we conclude that the State failed to rebut appellant’s affirmative defense of consent as to the burglary, we need not reach the claim that the evidence, as a matter of law, failed to establish that appellant entered the apartment with the intent to commit an offense. Accordingly, appellant’s conviction for burglary is reversed and the sentence is vacated.

Reversed.

SHAHOOD, C.J., and WARNER, J„ concur.

      . During direct examination, the State objected on the basis of hearsay to appellant testifying about what Biggies told him and the trial judge sustained the objection "as to what [Biggies] said.” On cross examination, the same testimony came in without objection or motion to strike.


text:
    NORTH BROWARD HOSPITAL DISTRICT d/b/a North Broward Medical Center, Petitioner, v. Shelley Christine KENYON and Carl D. Kenyon, her husband, Respondents.
    No. 4D07-3089.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Janine Kalagher McGuire of Conrad & Scherer, LLP, Fort Lauderdale, for petitioner.
    No response required for respondents.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. See Brandon Reg’l Hosp. v. Murray, 957 So.2d 590 (Fla.2007); N. Broward Hosp. Dist. v. Kroll, 940 So.2d 1281 (Fla. 4th DCA 2006); Notami Hosp. of Fla., Inc. v. Bowen, 927 So.2d 139 (Fla. 1st DCA 2006). As in Kroll, we certify conflict with Florida Hospital Waterman, Inc. v. Buster, 932 So.2d 344 (Fla. 5th DCA 2006).

SHAHOOD, C.J., STONE and WARNER, JJ., concur.


text:
    STATE of Louisiana v. Isaac JOHNSON.
    No. 2006-KO-2890.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Johnson, Isaac; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 04-04-0042; to the Court of Appeal, First Circuit, No. 2006 KA 0510.

Denied.


text:
    STATE of Louisiana v. Wendell Y. GRAY.
    No. 2006-KO-2958.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Gray, Wendell V.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 03-2744; to the Court of Appeal, Fifth Circuit, No. 06-KA-298.

Denied.


text:
    STATE of Louisiana v. John THOMPSON, III.
    No. 2006-KO-2959.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Thompson, John, III; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. O, No. CR-578-04; to the Court of Appeal, Third Circuit, No. 06-474.

Denied.


text:
    STATE of Louisiana v. Darryl A. SMITH.
    No. 2006-KO-2960.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Smith, Darryl A.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. I, No. 06-1910; to the Court of Appeal, Fifth Circuit, No. 06-KA-557.

Denied.


text:
    STATE of Louisiana v. Jerome FRENCH.
    No. 2006-K-2974.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re French, Jerome; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 440-494; to the Court of Appeal, Fourth Circuit, No. 2006-KA-0525.

Denied.


text:
    STATE of Louisiana v. Michael MANUEL, Jr.
    No. 2006-K-2981.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. A, No. 05-0847; to the Court of Appeal, Fourth Circuit, No. 2006-KA-0486.

Denied.

TRAYLOR, J., would grant.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Donald O’CONNOR.
    No. 2006-K-2985.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re O’Connor, Donald; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 18721-03; to the Court of Appeal, Third Circuit, No. KA 06-262.

Denied. ■


text:
    STATE of Louisiana v. Lisa Landry JOHNSON.
    No. 2006-KO-3024.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Johnson, Lisa Landry; — Defendant; Applying for Writ .of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 4985-05; to the Court of Appeal, Third Circuit, No. KA 06-623.

Denied.


text:
    STATE of Louisiana v. Reggie HARRIS.
    No. 2006-KO-3026.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Harris, Reggie; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 02-04-0569; to the Court of Appeal, First Circuit, No. 2006 KA 0823.

Denied.


text:
    STATE of Louisiana v. Wade C. GRIFFIN.
    No. 2007-KO-0002.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Griffin, Wade C.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 128628A; to the Court of Appeal, Third Circuit, No. 06 00543-KA.

Denied.

KNOLL, J., recused.


text:
    STATE of Louisiana v. Earl S. DAVIS.
    No. 2007-KO-0003.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Davis, Earl S.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 03-4471; to the Court of Appeal, Fifth Circuit, No. 06-KA-402.

Denied.


text:
    STATE of Louisiana v. Nathan STRINGER.
    No. 2007-K-0004.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Stringer, Nathan; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lasalle, 28th Judicial District Court Div. 0, No. 72104; to the Court of Appeal, Third Circuit, No. 06-800.

Denied.


text:
    STATE of Louisiana v. Riynell JACKSON.
    No. 2007-KO-0024.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Jackson, Riynell; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 441-005; to the Court of Appeal, Fourth Circuit, No. 2005-KA-1281.

Denied.


text:
    STATE ex rel. Mark J. HAYLOCK v. STATE of Louisiana.
    No. 2007-KH-0893.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Haylock, Mark J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 03-5307; to the Court of Appeal, Fifth Circuit, No. 07-KH-200.

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:
    Scott A. GUYON v. Mike WAGUESPACK, Sheriff of Assumption Parish, Louisiana Department of Public Safety and Corrections on Behalf of Elayn Hunt Correctional Center, William Belt, Sheriff of Avoyelles Parish and the State of Louisiana on Behalf of LSU Health Sciences Center Through Huey P. Long Regional Medical Center and Earl K. Long Regional Medical Center.
    No. 2007-CP-1051.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Huey P. Long Regional Medical Center; Earl K. Long Regional Medical Center; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. B, No. 64,138; to the Court of Appeal, First Circuit, No. 2007 CW 0280.

Denied.


text:
    Robyn SWANBERG v. NORTHWEST AIRLINES CORPORATION.
    No. 2007-CC-1065.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Liberty Mutual Insurance Company; — Other; Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation District 7, No. 06-05721; to the Court of Appeal, Fifth Circuit, No. 07-C-144.

Denied.


text:
    BASTROP AMBULATORY SERVICES and the Urology Center v. REGIONS BANK OF LOUISIANA.
    No. 2007-CC-1072.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Regions Bank of Louisiana; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. H, No. 02-2907; to the Court of Appeal, Second Circuit, No. 42517-CW.

Denied.


text:
    Julian E. LONG v. Linda Long MINTON.
    No. 2007-C-1078.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Long, Julian E.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 204,289; to the Court of Appeal, Third Circuit, No. 07-33.

Denied.


text:
    FRENCH JORDAN, INC., et al. v. TRAVELERS INSURANCE COMPANY, et al.
    No. 2007-CC-1089.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Charter Oak Fire Insurance Company; Travelers Indemnity Company;— Defendant(s); Applying for Writ of Certio-rari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 2005-8189; to the Court of Appeal, Fourth Circuit, No. 2007-C-0007.

Denied. Motion denied. Moot.


text:
    SUCCESSION OF Bernice H. AGUILERA.
    No. 2007-C-1090.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Aguilera, Bernice H. Succession of; — Plaintiff; Applying for Writ of Certio-rari and/or Review, Parish of Natchitoch-es, 10th Judicial District Court Div. A, No. 13,751-A; to the Court of Appeal, Third Circuit, No. CA 07-77.

Denied.


text:
    Kathleen WHITEHURST, et al. v. A-1 AFFORDABLE SIDING, INC., et al.
    No. 2007-C-1092.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re A-l Affordable Siding Inc., et al.; Bernard, Alan J.; — Defendant®; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. D, No. 2004-4487; to the Court of Appeal, Third Circuit, No. 06-1321.

Denied.


text:
    J.D. JACOBS, et al. v. CITY OF MARKSVILLE, et al.
    No. 2007-C-1093.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Lambert, Hubert; Marksville, City of et al.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2004-6411-A; to the Court of Appeal, Third Circuit, No. 06-1386.

Denied.

KNOLL, J., recused.


text:
    Tina SANCHEZ v. GLADIATORS CARNIVAL CLUB, et al.
    No. 2007-CC-1095.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Sanchez, Jules; Sanchez, Tina;— Plaintiff®; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 103,639; to the Court of Appeal, Fourth Circuit, No. 2007-C-0224.

Denied.

CALOGERO, C.J., would grant.


text:
    Charles BRYAN v. CITY OF ALEXANDRIA.
    No. 2007-C-1108.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Bryant, Charles; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. C, No. 219,385; to the Court of Appeal, Third Circuit, No. 06-1439.

Denied.

JOHNSON, J., would grant.


text:
    Russell MAHAFFEY, et al. v. Johnnie Kenneth EARL, et al.
    No. 2007-C-1109.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Transportation and Development Department of; Louisiana State of; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Allen, 33th Judicial District Court Div. A, No. C-2005-022; to the Court of Appeal, Third Circuit, No. 07-12.

Denied.

TRAYLOR, J., would grant.


text:
    Exie JONES, Individually and as Natural Tutrix of the Minor Children, A.J. and T.J. v. The STATE of Louisiana, Through the DEPARTMENT OF SOCIAL SERVICES, et al.
    No. 2007-C-1113.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Louisiana State Social Services Department of; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Desoto, 11th Judicial District Court Div. C, No. 60,441; to the Court of Appeal, Second Circuit, No. 42,034-CA.

Denied.


text:
    Felton HOGAN v. Joe MORGAN, M.D.
    No. 2007-C-1122.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Hogan, Felton; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 522,375; to the Court of Appeal, First Circuit, No. 2006 CA 0808.

Denied.


text:
    Melissa DEMARY v. Danny CASTILLO, et al.
    No. 2007-CC-1143.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Castillo, Danny et al.; Castillo, Ramona; Essex Insurance Company;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 103-679; to the Court of Appeal, Fourth Circuit, No. 2007-C-0221.

Denied.


text:
    In the Matter of the MINORITY OF Emil John GEIGER and Amy Nicole Geiger.
    No. 2007-CC-1144.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Travelers Insurance Co.; Travelers Indemnity of Illinois; — Other(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 53792; to the Court of Appeal, First Circuit, No. 2007 CW 0121.

Denied.


text:
    LOUISIANA AG CREDIT, PCA v. LIVESTOCK PRODUCERS, INC. et al.
    No. 2007-C-1146.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Louisiana AG Credit PCA; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. D, No. 116980; to the Court of Appeal, Second Circuit, No. CA 06-42072.

Denied.


text:
    Renate KING v. SECRETARY, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2007-C-1149.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Department of Health & Hospitals Louisiana; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Bossier, Department of Health and Hospitals Bureau of Appeals, No. 00-23-639; 26th Judicial District Court Div. E, No. 119,360; to the Court of Appeal, Second Circuit, No. 42,071-CA.

Denied.


text:
    CITIZENS SAVINGS BANK v. SAFEWAY INSURANCE COMPANY OF LOUISIANA.
    No. 2007-C-1150.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Safeway Insurance Company of Louisiana; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. C, No. 84,568-C; to the Court of Appeal, First Circuit, No. 2006 CA 1340.

Denied.


text:
    Katie P. WALDRIP and James Waldrip. v. L.Y., P.Y., Kimberly Buchberger and Kevin Buchberger.
    No. 2007-C-1170.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Waldrip, Katie P.; Waldrip, James; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. I, No. 484,-372; to the Court of Appeal, Second Circuit, No. 42,066-CA.

Denied.

CALOGERO, C.J., would grant.

KIMBALL, J., would grant.


text:
    Adele GRADNIGO and Gerald Gradnigo v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, et al.
    No. 2007-CC-1171.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Gradnigo, Adele et al; Gradnigo, Gerald; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. C, No. 2005-0340-C; to the Court of Appeal, Third Circuit, No. CW 07-00546.

Denied.

JOHNSON, J., would grant.


text:
    Kim SNELL, Keith Miller and David White v. PRODUCTION ACID SERVICE, INC., David L. Baudoin and Mark S. Krupicka.
    No. 2007-OC-1173.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Baudoin, David L.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. C, No. 2004-6231-C; to the Court of Appeal, Third Circuit, No. 07-171.

Denied.


text:
    Grade SMITH, Individually and on Behalf of the Estate of Brain E. Smith v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, Acadia Crawfish, Inc. and Joshua Pruett Gracie Smith, Individually and on Behalf of the Estate of Brain E. Smith v. Progressive Security Insurance Company and Broubar, Inc.
    No. 2007-CC-1175.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Progressive Security Insurance Company, et al; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. I, Nos. 2005-428, 2005-731; to the Court of Appeal, Second Circuit, No(s). 42,553-CW, 42,554-CW.

Denied.


text:
    Daniel BERNE, Sr. v. CANADIAN NATIONAL/ILLINOIS CENTRAL RAILROAD, the State of Louisiana, Through the Department of Transportation Development.
    No. 2007-C-1176.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Berne, Daniel Sr.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 2004-003387 to the Court of Appeal, First Circuit, No. 2006 CA 1497.

Denied.


text:
    Kenny Ray JUNEAU v. STATE of Louisiana, et al.
    No. 2007-C-1177.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Louisiana State of et al.; Lacour, Kirk; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Avo-yelles, 12th Judicial District Court Div. A, No. 2004-6558-A; to the Court of Appeal, Third Circuit, No. CA 06-1653.

Denied.

KNOLL, J., recused.


text:
    Marcia WYBLE v. ACADIANA PREPARATORY SCHOOL.
    No. 2007-C-1178.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Acadiana Preparatory School;— Defendant; Applying for Writ of Certiora-ri and/or Review Office of Workers’ Compensation, District # 02, No. 04-08230; to the Court of Appeal, Third Circuit, No. 07-0091.

Denied.


text:
    STATE ex rel. Mitchell P. COOK v. STATE of Louisiana.
    No. 2007-KH-1207.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Cook, Mitchell P.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 390434; to the Court of Appeal, First Circuit, No. 2007 KW 0641.

Denied.


text:
    GREAT WEST CASUALTY CO., Kokesch Trucking, Inc., and Stan Koch & Sons, Inc. v. The STATE OF LOUISIANA Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT Ralpe Geier v. State of Louisiana Through the Department of Transportation and Development.
    No. 2007-C-1227.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Transportation and Development Department of; Louisiana State of; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, Nos. 91-14975, 92-10115; to the Court of Appeal, First Circuit, No(s). 2006 CA 1776, 2006 CA 1777.

Denied.


text:
    Randolph GOMON v. Danny MELANCON.
    No. 2007-C-1567.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Melancon, Danny et al.; D & B Framing Inc.; — Defendant(s); Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 9, No. 06-00810; to the Court of Appeal, First Circuit, No. 2006 CA 2444.

Denied.


text:
    Sandra BORDELEON, Darren Bordeleon Individually and on Behalf of Their Minor Child, Darren M. Bordeleon, Jr. v. STATE of Louisiana, Through Department of Social Services, Department of Education, Department of Public Safety and Corrections, Office of the State Fire Marshall, Deep South Community Services, Inc., Absolutely Nutritious, Inc., Parish of Jefferson, City of Kenner.
    No. 2007-CC-1588.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Louisiana State of et al.; Education Dept, of; Social Services Dept, of;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 592-319; to the Court of Appeal, Fifth Circuit, No. 07-C-366.

Denied.


text:
    STATE of Louisiana v. Thomas TAYLOR.
    No. 2007-KK-1668.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Taylor, Thomas; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. A, No. 21,009; to the Court of Appeal, First Circuit, No. 2007 KW 1384.

Denied.


text:
    STATE ex rel. Albert K. ALEXANDER v. STATE of Louisiana.
    No. 2007-KH-1702.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Alexander, Albert K; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. C, No. 108126; to the Court of Appeal, Third Circuit, No(s). KH 07-00838, KH 07-00113.

Denied. Moot.


text:
    James M. CHARRIER v. PAUL HARGIS FAMILY DENTISTRY, et al.
    No. 2007-CC-0711.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   In re Paul Hargis Family Dentistry et al.; Hargis, Paul D.D.S.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Grant, 35th Judicial District Court Div. A, No. 18217; to the Court of Appeal, Third Circuit, No. CW 07-00094.

Denied. See Blevins v. Hamilton Medical Center, Inc., 07-0127 (La.6/29/07), 959 So.2d 440.

KNOLL, J., would grant.

WEIMER, J., would grant.


text:
    Jessica NEILL v. FORD MOTOR CO. and Mid City Motors, Inc. d/b/a Audubon Ford.
    No. 2007-CC-1882.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Ford Motor Co. et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 523-990; to the Court of Appeal, First Circuit, No. 2007 CW 1728.

Denied.

VICTORY, J., would grant.