author: NORTHCUTT, Judge.

text:
    Ben T. HAYES, II, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3486.
    District Court of Appeal of Florida, Second District.
    May 16, 2007.
    James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Convicted of burgling a dwelling, Ben T. Hayes, II, appeals his habitual offender and prison releasee reoffender sentence. He also complains of the imposition of a judgment lien for attorney’s fees. We affirm the sentences. See Griffin v. State, 946 So.2d 610, 613 (Fla. 2d DCA 2007) (requiring defendant to make contemporaneous objection to preserve apparent errors during sentencing and limiting Fla. R.Crim. P. 3.800(b)(2) motions to “errors to which the defendant had no meaningful opportunity to object and matters that rendered the sentence otherwise subject to review under rule 3.800(a)”).

Turning to the other issue, the court announced the imposition and amount of the judgment lien, but it failed to inform Hayes that he had the right to a hearing to contest the amount. See Fla. R.Crim. P. 3.720(d)(1) (requiring court to give notice at sentencing of defendant’s right to hearing to contest amount of attorney’s fee lien). Accordingly, we reverse the judgment lien. See Miller v. State, 912 So.2d 1282 (Fla. 2d DCA 2005). On remand, if Hayes files a written objection to the amount within thirty days after the issuance of our mandate, the court shall hold a hearing. If Hayes fails to timely file a written objection, the court may reimpose the lien for attorney’s fees without a hearing.

Convictions and sentences affirmed; judgment lien for attorney’s fees reversed; remanded.

LaROSE, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    CITIGROUP INC. d/b/a Citigroup Private Bank, Citigroup Global Markets Inc., Susan Sofronas, Burt Hilton, Joel Yudenfreund, Doina Benac, and James Whelan, Appellants, v. Edward G. CAPUTO and EGC Trading LLC, Appellees.
    No. 4D06-4646.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Richard L. Martens of Casey Ciklin Lu-bitz Martens & O’Connell, West Palm Beach and Lawrence M. Hill, Adam J. Kaiser and Eric Laufgraben of Dewey Bal-lantine LLP, New York, New York, for appellants.
    Jeven R. Sloan and David R. Deary of Deary Montgomery Defeo & Canada, LLP, Dallas, Texas, and William C. Wright of William C. Wright, P.A., West Palm Beach, for appellees.
   HAZOURI, J.

Appellants, Citigroup Inc. d/b/a Citigroup Private Bank, Citigroup Global Markets Inc., Susan Sofronas, Burt Hilton, Joel Yudenfreund, Doina Benac, and James Whelan (collectively referred to as “Citigroup”), appeal from a non-final order denying their motion to dismiss a complaint for improper venue. The complaint was filed by Appellees, Edward G. Caputo (Caputo) and EGC Trading LLC (EGC). The crux of Citigroup’s appeal is that an exclusive forum selection clause in the contract entered into by Caputo requires that all claims be adjudicated in New York and controls the venue for the claims asserted by Caputo. We agree and reverse.

On October 31, 2005, Caputo and EGC filed suit in Palm Beach County against multiple defendants, including Citigroup. The complaint raises the following claims against all defendants: unjust enrichment, breach of fiduciary duty, fraud, negligence, negligent misrepresentation, breach of contract, declaratory judgment, and civil conspiracy. The claims against Citigroup arise out of Citigroup’s alleged involvement in a scheme to promote, sell, and implement a tax-savings strategy (the “Strategy”). The complaint alleges that Citigroup entered into a secret arrangement with the other defendants under which Citigroup referred its clients, including Caputo, to the other defendants for participation in the Strategy. Caputo and EGC claim that Citigroup received a kickback of the fees paid to the other defendants in return for referring the clients.

Citigroup, Inc., a global financial services holding company, is the parent of numerous subsidiary corporations, including Citibank, N.A., which is Citigroup, Inc.’s primary bank subsidiary, and Citigroup Global Markets Inc., which is Citigroup, Inc.’s primary broker/dealer subsidiary. Prior to February 2001, following a merger with The Travelers Group, “Citigroup Private Bank,” a trade name used to describe a suite of private banking services and products made available by Citibank, N.A. to its clients through its unincorporated Private Bank divisions, was referred to as “Citibank Private Bank.” Since the merger, in connection with its private banking services, Citibank, N.A. does business as “Citigroup Private Bank.”

Caputo and EGC allege the defendants initiated the subject scheme in early 2001 when Citigroup solicited Caputo to place his money with Citigroup Private Bank and told Caputo it would handle all of his financial needs. Shortly thereafter, Capu-to joined the Citigroup Private Bank and entrusted it with the proceeds of the sale of his company. Citigroup contacted Ca-puto in mid-year 2001 and requested a meeting with him to discuss his year-end tax planning. Caputo claims Citigroup told him “there may be a way for him to legally avoid all or most of the tax obligations due on the sale of his company” and the best tax product was the “BDO/DGI strategy.”

Caputo and EGC contend the defendants, including Citigroup, failed to disclose: (1) the existence and significance of Internal Revenue Service (“IRS”) notices, published one year before the defendants promoted the Strategy to Caputo, indicating the IRS declared the Strategy illegal, (2) the fact that before Caputo filed any of his tax returns reflecting losses from the Strategy, the IRS sought information from one of the defendants that would identify clients like Caputo that participated in tax shelters like the Strategy, and (3) an IRS amnesty program allowing individuals and entities participating in the Strategy to disclose their participation and avoid liability for IRS penalties. Caputo and EGC allege that as a result of the defendants’ actions regarding the Strategy, they incurred substantial penalties and interest.

Citigroup filed a motion to dismiss for improper venue pursuant to Florida Rule of Civil Procedure 1.140(b)(3). Citigroup argued that Caputo and EGC’s relationship with Citigroup was governed by an Investor Agreement entitled “Citibank Investor Account Agreement between Citibank, N.A. and Edward Caputo” (the “Citibank Agreement”), and the Citibank Agreement contained an exclusive forum selection clause requiring that all claims against Citigroup be adjudicated in New York. Caputo and EGC filed a response in opposition arguing that Citigroup failed to meet its burden of demonstrating that it was entitled to rely on the Citibank Agreement and that the claims against it arose “in connection” with the Citibank Agreement. Moreover, Caputo and EGC asserted if the Citibank Agreement did apply to Citigroup, the forum clause should not be enforced because it would violate Florida’s public policy.

The relevant portions of the agreement read as follows:

General Definitions
Unless otherwise indicated in this Agreement, the words, “you”, “your”, and “yours” mean the applicant(s). The words “we”, “us”, and “our” mean Citibank, N.A. New York, 153 East 53rd St., New York, N.Y. 10043. The words “Affiliated Organization(s)” mean Citigroup, Citibank, N.A., their branches, subsidiaries, and affiliates, wherever located.
Governing Law/Jurisdiction/Jury Waver [sic]
This Agreement will be governed by the laws of the State of New York and by federal law as applicable. Any dispute in connection with this Agreement shall be adjudicated in a federal or state court located in the Borough of Manhattan, City and State of New York. You agree to submit to the jurisdiction of such courts for the determination of all issues in connection with this Agreement and irrevocably waive any objection to venue or inconvenient forum. You waive trial by jury in any such dispute.

The trial court issued an order denying Citigroup’s motion to dismiss for improper venue, concluding:

Specifically, in this case it was incumbent upon the CITIGROUP Defendants to establish by a sworn proof, affidavit or otherwise, that: (1) the CITIGROUP Defendants take benefit from the agreement whether a party thereto or not; and (2) the dispute which is the subject matter of this litigation arose “in connection with” that agreement. The CITIGROUP Defendants have failed on both accounts. First the agreement clearly is between Citibank and not the Defendants in this case. The Agreement makes is [sic] clear that Citibank, N.A. and the Defendants in this case are separate entities. The affidavits filed in support does [sic] not change this determination. More importantly, however, although they could easily have done so, the CITIGROUP Defendants have failed to establish that the particular claims which give rise to this lawsuit, the [Strategy], in any way was covered by, connected with or in any way related to the “investment account” established by [Caputo] with Citibank, N.A. Notably absent from any affidavit is any statement to that effect. The specific allegations of the Complaint are to the contrary.

“[A]n appellate court reviews the interpretation of a contractual forum selection provision as a matter of law.” Am. Boxing & Athletic Ass’n v. Young, 911 So .2d 862, 864 (Fla. 2d DCA 2005) (citations omitted). However, the trial court’s decision was based in part on factual findings, such as whether Citigroup presented sufficient evidence of a forum selection agreement between it and Caputo. Thus, the standard of review applicable to the trial court’s factual findings is whether they are supported by competent, substantial evidence. See Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1023 (Fla. 4th DCA 2005).

The trial court determined that Citigroup is not covered by the Citibank Agreement, concluding: “[T]he agreement clearly is between Citibank and not the Defendants in this case. The Agreement makes is [sic] clear that Citibank, N.A. and the Defendants in this case are separate entities. The affidavits filed in support does [sic] not change this determination.” Citigroup argues this was error because Caputo and EGC sued Citigroup “doing business as” the Citigroup Private Bank, which is an “unincorporated business division of Citibank.” Thus, Citigroup claims Caputo and EGC failed to acknowledge in their complaint and filings thereafter that “the real ‘Citi’ party-in-interest is in fact ‘Citibank.’ ” (emphasis in original).

The trial court’s conclusion that Citigroup is not covered by the Citibank Agreement is not supported by competent, substantial evidence. See Fonte, 903 So.2d at 1023. The only evidence submitted to the trial court shows that by suing “Citigroup, Inc. d/b/a Citigroup Private Bank,” Caputo and EGC have in fact sued Citibank, N.A. The affidavit of Dana Sperling (Sperling), a Vice President of Citibank, N.A., submitted by Citigroup in support of its motion to dismiss, compels the conclusion that “Citigroup, Inc. d/b/a Citigroup Private Bank” is covered by the Citibank Agreement. As explained by Sperling,

I have reviewed the “Citibank Investor Account Agreement between Citibank, N.A. and Edward Caputo” signed by Edward G. Caputo. That Account Agreement is titled in bold, capital letters “The Citibank Private Bank.” Pri- or to February 2001, Citigroup Private Bank was known as “Citibank Private Bank.” The name was changed following Citicorp, Inc.’s merger with The Travelers Group.
Citigroup Private Bank is not an incorporated entity. “Citigroup Private Bank” is a brand/trade name used to describe a suite of private banking services and products made available by Citibank, N.A. to its clients through its unincorporated Private Bank divisions. In connection with its private banking services, Citibank, N.A. does business as, and is known colloquially as, “Citigroup Private Bank.”

In essence, “The Citibank Private Bank,” a party to the Citibank Agreement, and “The Citigroup Private Bank,” listed in the caption of the complaint are the same entity. All that occurred between the time Caputo entered the Citibank Agreement and the time he filed this suit was a change in the Private Bank’s name due to a merger with The Travelers Group.

Moreover, the complaint itself supports the conclusions in Sperling’s affidavit. For example, the complaint alleges that “[s]hortly after Caputo was approached by the Citigroup Defendants, Ca-puto joined the Private Banking group of Citigroup and entrusted the proceeds from the sale of this company with them. The Citigroup Defendants assured Caputo that they would take care of him.” Caputo refers to Citigroup as his financial advisor. Further, Caputo alleges his “decision to engage in the Strategy was also based in large measure on his relationship with the Citibank and C & L Defendants.... ” The private banking group Caputo refers to in his complaint is the same entity with which he entered the Citibank Agreement, albeit with a different name. Also, the only relationship in this case between Caputo and any “Citi” entity arises out of the Citibank Agreement and clearly involves “Citigroup, Inc. d/b/a Citigroup Private Bank.” Accordingly, Citigroup, as named in the complaint, is covered by the Citibank Agreement.

Caputo and EGC argue in response thát “[t]he Citibank Agreement makes it clear that Citigroup, Inc. (the Appellant) and Citi&anA (the signatory) are separate entities and that Citigroup has no rights or obligations under the Citibank Agreement.” (emphasis in original). This argument fails. Caputo and EGC rely here on the “general definitions” provision in the Citibank Agreement, which they claim supports their conclusion that “[t]he Citibank Agreement sets out the rights, duties, and obligations of Citi&araA only” (emphasis in original) because it says “[t]he words ‘we’, ‘us’ and ‘our’ mean Citibank, N.A.” However, the forum selection clause does contain the word “we,” “us,” or “our.” Moreover, Sperling’s affidavit shows that the Citigroup Private Bank is an unincorporated business unit of Citibank, N.A., and merely the new name for the former Citibank Private Bank.

Even assuming Citigroup were not covered by the Citibank Agreement, a non-signatory may invoke a signatory’s forum selection clause where the non-signatory and signatory are related. In World Vacation Travel, S.A., de C.V. v. Brooker, 799 So.2d 410 (Fla. 3d DCA 2001), the plaintiffs brought a claim against a signatory defendant arising out of an agreement containing a forum selection clause. The plaintiffs also alleged specifically that the non-signatory defendants breached terms of the same agreement. The Third District concluded:

[T]he [plaintiffs’] claims are not severa-ble from the time-sharing agreement, and the claims arise solely out of the agreement. It logically follows that the mandatory nature of the forum selection clause of the time-sharing agreement equally applies to the non-signatory defendants due to the fact that the claims arise directly from the agreement, as well as due to the nature of the commercial relationship of the parties as it relates to the agreement itself.

Id. at 412-13. In the instant case, the nexus between Citibank, N.A. and Citigroup, doing business as Citigroup Private Bank, is much stronger than the one between the two entities in Brooker. “Citigroup” is expressly included as an “Affiliated Organization” in the Citibank Agreement, and Citigroup is being sued for doing business as Citigroup Private Bank. Therefore, under Brooker, Citigroup could avail itself of the forum selection clause even if it was not a signatory to the Citibank Agreement.

The trial court also determined that Citigroup “failed to establish that the particular claims which give rise to this lawsuit, the [Strategy], in any way was covered by, connected with or in any way related to the ‘investment account’ established by [Caputo] with Citibank, N.A.” The Citibank Agreement defines “Investment Advice” in pertinent part:

We may provide you, from time to time, with advice or information on investment opportunities regarding the following types of investments:
• company stocks and any type of debt instruments, including those managed, underwritten, or arranged by a[n] Affiliated Organization;
• warrants, depository receipts, and other types of instruments related to company stocks or debt instruments;
• mutual funds, or collective investment vehicles, including those managed, sponsored, or advised by an Affiliated Organization;
• structured notes;
• foreign exchange transactions;
• securities options, securities indices, currencies, or related derivative instruments;
• deposits, including those with Affiliated Organizations; and,
• any other similar or related investments.

Citigroup argues that the trial court erred in concluding that the claims in this case were not covered by the Citibank Agreement. We agree.

First, Caputo and EGC sued Citigroup, inter alia, for breach of contract. The Citibank Agreement, containing the forum selection clause, is the only contract between Caputo and a “Citi” entity. Moreover, the fact that the complaint also raises tort claims does not change the forum selection clause analysis. See Deloitte & Touche v. Gencor Indus., Inc., 929 So.2d 678, 684 (Fla. 5th DCA 2006) (noting that analysis of forum selection clause does not change because a cause of action sounds in tort).

Second, the forum selection clause applies to “[a]ny dispute in connection with [the Citibank Agreement]” and the Citibank Agreement covers advice pertaining to the Strategy. The complaint alleges: “The [Strategy] was a tax strategy where a taxpayer purchases and sells options and transfers these options positions to a limited liability company that is also owned by the client.” The options at issue were options in the NASDAQ 100 Index. Moreover, the complaint alleges: “The DGI, Alpha and Citigroup Defendants advised and instructed Caputo to buy and sell [options] on the NASDAQ 100 INDEX and the exact amounts to be invested in each option.” Thus, because the Citibank Agreement specifically covers advice pertaining to “securities options, securities indices, currencies, or related derivative instruments,” a dispute concerning advice pertaining to the Strategy is “in connection with” the Citibank Agreement.

Caputo and EGC argue in response that the “investment advice” at issue here is not the same “advice” contemplated by the Citibank Agreement because “the Citibank Agreement only covers advice given by We’, which is defined to specifically exclude Citigroup!” (emphasis in original). This argument is without merit because, as explained above, Citigroup as named in the complaint, is covered by the Citibank Agreement.

Caputo and EGC also contend that the focus of their claims against Citigroup concerns their participation in an alleged conspiracy to market a fraudulent tax shelter, not advice covered by the Citibank Agreement. This argument also fails. Both Caputo’s affidavit and the complaint allege repeatedly that Citigroup advised Caputo with regard to the Strategy. As explained previously, this advice necessarily involved matters covered by the Citibank Agreement.

Finally, Caputo claims the forum selection clause is limited to disputes in connection with “investments and activity through the ‘Citibank Investor Account.’ ” The only support for this proposition is the trial court’s order. The Citibank Agreement is not limited to activities concerning the Investor Account. It covers a broader range of investment advice, including advice concerning options like those involved in the Strategy. Therefore, the claims in this case are covered by the Citibank Agreement.

Based on the foregoing, we reverse and remand with directions to the trial court to dismiss this case for improper venue. Notably, the trial court did not reach the issue of whether EGC was bound under the forum selection clause because it ruled that Citigroup could not enforce it. However, we direct the trial court to dismiss the entire case against Citigroup for improper venue, including the claims asserted by EGC. Although EGC has no contract with Citigroup, EGC is an entity created by Caputo solely for the purpose of executing the Strategy. Moreover, although EGC is a non-signatory to the Citibank Agreement, it is bound under the forum selection clause because of its close relationship with Caputo. See Deloitte & Touche, 929 So.2d at 683-84.

Reversed and Remanded with Directions.

WARNER and POLEN, JJ., concur.

      . Caputo created EGC for the purpose of executing the Strategy.

      . Citigroup mistakenly asserts throughout its brief that Caputo sued Citigroup “doing business as” Citibank Private Bank. Caputo sued Citigroup “doing business as” Citigroup Private Bank.

      . Caputo and EGC claim they alleged in their complaint that they entered into an “oral” contract with Citigroup. However, this misconstrues the complaint. Rather, as Citigroup notes, the complaint contains one vague allegation that "plaintiffs entered into oral and/or written contracts with Defendants.” Further, a footnote in ¶ 86 of the complaint states: “No claims are asserted herein under any written agreement with EGC Investments 2001 LLC." There is no such statement with respect to Citigroup.


author: TAYLOR, J.

text:
    Hagen DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2742.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Roy Black and Christine M. Ng of Black, Srebnick & Kornspan, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Hagen Diaz appeals his criminal convictions and sentences rendered after a jury found him guilty of aggravated battery with a deadly weapon (automobile), reckless driving, and leaving the scene of a crash with injuries. His sole issue on appeal concerns whether the trial court committed fundamental error in responding to jury questions during deliberations. We conclude that the court did not commit fundamental error and affirm.

The incident that led to the criminal charges against the defendant occurred at the Moroso Motor Sports Park in Palm Beach County. The defendant was there as a spectator at the go-kart races and the victim, Palm Beach County Sheriffs Deputy Dale Fox, was working an off-duty detail directing traffic. According to the testimony at trial, Fox told the defendant to move his car, which was parked in a restricted area. As the defendant was making a three-point turn to leave, Fox walked towards the car and loudly yelled for defendant to stop because the area he was headed towards was congested with people. He put his hands on the hood, saying “stop, don’t you see these people.” Another off-duty deputy, Lawrence Colagiovan-ni, reached over and opened defendant’s driver’s door. There was conflicting evidence about whether Colagiovanni reached inside the car and grabbed the defendant or just opened the door and yelled at him to stop.

According to Colagiovanni and Fox, the defendant’s car crept forward and the defendant started pushing Fox with the front of his car. They claim that the defendant reached out, grabbed the door, and slammed it shut. He then accelerated and struck Fox on the left knee, knocking him over onto the ground. Fox testified that the defendant was looking straight at him as he pulled forward and that he and the defendant had continuous eye contact until Fox was knocked to the ground. Defendant then sped up, made a left turn into a restricted area, went onto the access road, and took off towards the Beeline Highway without stopping.

After checking on Fox, Colagiovanni noticed a crowd inside the gate area and saw Donna Krammer lying on the ground with blood flowing from the top of her head. Krammer had been struck by the driver’s side of the defendant’s car. Another person, Christian Heart, said that the car almost hit him.

The defendant testified at trial. He said that Colagiovanni opened his door, reached inside, grabbed his arm, and tried to pull him out. As a result, defendant may have released the brake, causing his car to move forward and strike Fox. He said he did not know that Colagiovanni was an officer or an employee at Moroso and believed that he was being attacked by him. He also felt threatened by a mob of people who had surrounded his car and began kicking the side of it. His mother, who was in the car with him, got out to try and calm the situation. Because he feared for his safety, appellant fled the area, leaving his mother behind. He testified that not only did he not intend to strike anybody, he was not aware that he had done so when he drove away.

The defendant was charged by information with four counts: Count I-aggravated battery with a deadly weapon or knowingly causing great bodily harm to Donna Kram-mer; Count II — aggravated battery with a deadly weapon against Dale Fox; Count III — aggravated assault against Christian Heart; Count IV — reckless driving causing great bodily injury, and Count V— leaving the scene of a crash involving injury.

The trial judge read the jury the standard jury instructions on the charges. During their deliberations, the jury sent a written question to the court, asking, “Does the driver have the intent to strike Dale Fox if we feel intent is to leave the scene knowing he might hit Dale Fox ? (without necessity).” Conferring with counsel, the trial judge stated:

Well, I don’t know that I can answer that. I think that’s ultimately what they have to decide. So I mean I think I would have to tell them that that question would call for me to comment on the evidence, which I can’t do, and you have to rely on your own. Something like that. Does that sound good?

Neither the prosecutor nor defense counsel objected. The trial court brought the jury back into the courtroom and answered their question:

THE COURT: ... And I’ve discussed this with the lawyers and what I can tell you is we can’t really give you much of an answer because — and the reason is to give you an answer would be us basically tell you from my mouth what the evidence is and only you can decide that. If you have a question of law, you know, then that’s something the Court can handle.

A juror spokesman responded:

JUROR KENNEDY: We did have a follow-up — •
THE COURT: Sure.
JUROR KENNEDY: — assuming we couldn’t get an answer.
THE COURT: Okay.
JUROR KENNEDY: Is there a definition to intent that we could rely on.

The court called another sidebar conference with counsel and decided, without objection, to give the following instruction on intent, which was taken from the burglary instruction:

THE COURT: The intent with which an act is done is an operation of the mind, and therefore, is not always capable of direct and positive proof. It may be established by circumstantial evidence like any other fact in a ease.

After this instruction was given, the following colloquy occurred:

JUROR KENNEDY: In some of the definitions or descriptions of the charges it refers to intentionally or knowingly. Can those be used interchangeably or are they meant to be?
THE COURT: Do you guys want to come up. So your question is where it talks about intentionally and knowingly, does it mean the same thing? Can they be used' — is that your question?
JUROR KENNEDY: It’s referred in some definitions and not in others. And I’m wondering—
THE COURT: Give me a specific. Which charge are you talking about?
JUROR KENNEDY: Battery with a weapon, 2-A.

After a very brief sidebar, at which defense counsel made no comment, the court instructed the jury:

THE COURT: I can tell you that you would have to rely on your own understanding of those instructions. I certainly can re-read the instructions to you. You have them in front of you. I don’t know if you want me to do that.

Again, defense counsel lodged no objection.

The jury acquitted the defendant on Counts I and III but found him guilty as charged of Count II (aggravated battery with a deadly weapon against Dale Fox) and Count V (leaving the scene of a crash). The jury found the defendant guilty of the lesser included offense of Count IV, reckless driving.

The record reflects that the defendant’s trial counsel did not object to any of the trial court’s responses to the jury’s questions. The defendant argues, however, that the court committed fundamental error by giving the jury misleading, inaccurate, and incomplete supplemental instructions on the criminal intent element of the charged crimes. According to the defendant, the jury’s first question indicated that the jurors did not understand the concept of criminal intent necessary to return a guilty verdict on his charges. The jury asked: “Does the driver have the intent to strike Dale Fox if we feel his intent is to leave the scene knowing he might hit Dale Fox? (without necessity)” (emphasis supplied). The defendant argues that the trial court was obligated to correct the jury’s apparent confusion about the intent necessary for an aggravated battery conviction and that its failure to respond to the jury’s question left the jury with an erroneous understanding of the criminal intent element. He contends that he was entitled to have the jury instructed consistent with case law holding that “[t]he battery statute’s prohibition of an ‘intentional’ touch or strike covers situations where a defendant knows that a touch or strike is substantially certain to result from his acts.” C.B. v. State, 810 So.2d 1072, 1073 (Fla. 4th DCA 2002) (emphasis supplied); see also S.D. v. State, 882 So.2d 447 (Fla. 4th DCA 2004).

In C.B., a juvenile was found guilty of battery on a school employee based on his act of angrily throwing a lighter on the floor, which bounced off the floor and struck his teacher’s ankle. The juvenile moved for a judgment of acquittal, contending that battery is a specific intent crime and that there was no evidence that he intended to strike his teacher. We reversed his conviction, stating: “In this case, it is not enough to sustain a conviction that the defendant intentionally threw the lighter at the floor; the state was also required to prove that the defendant threw the lighter in such a way that it was substantially certain that it would hit the teacher’s ankle.” Id. at 1073. Defendant argues that the trial court fundamentally erred in this case by leaving the jury with “the erroneous impression that it could convict Mr. Diaz of aggravated battery based on a finding that he ‘might’ have hit Dale Fox.”

In Perriman v. State, 731 So.2d 1243 (Fla.1999), the Florida Supreme Court addressed the trial court’s discretion in responding to a jury’s request for additional instructions. There, the jury sent a note to the trial court inquiring about the knowledge element of the charge of possession of a firearm by a convicted felon. The jury essentially asked the trial court whether it was against the law for a convicted felon to be in a car with a gun present if the convicted felon had no knowledge of the gun’s presence. The trial court declined defense counsel’s request to answer the question with a simple “No,” and over defense counsel’s objection, directed the jury to refer to the standard jury instructions. The supreme court held that the trial court did not abuse its discretion in declining to give an additional instruction in that case, where the meaning of the jury’s note was not clear and an additional extemporaneous instruction might have further confused the jury.The court further noted that the standard instructions, to which the trial court referred the jury, provided adequate guidance.

Discussing the trial court’s options in responding to a jury query, the court explained:

Where a jury is confused concerning a point of law, the court must exercise sound discretion. In some cases, the court may properly refer the jury to the standard instructions in toto given in that particular case, but in many cases the preferred practice will be to direct the jury to specific instructions. Where appropriate, the court may also clarify a point of law with a brief, clear response.

Id. at 1246-47.

In holding that the decision whether to give additional instructions is within the trial court’s discretion, the court cited the controlling rule of procedure, Florida Rule of Criminal Procedure 3.410. Id. at 1246. Rule 3.410 provides:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

(emphasis supplied). The court observed that this rule of procedure was amended in 1972 to make it discretionary, rather than mandatory, for the trial judge to give additional instructions upon request.

In our view, the questions presented by the jury in this case were purely legal ones that did not call for a comment on the evidence. Thus, under the particular facts and circumstances of this case, it would have been helpful and appropriate for the trial court to give the jury a brief and concise response clarifying that intentional conduct in a battery case required substantial certainty that a touching or striking would occur. However, we cannot say that the trial court abused its discretion, much less committed fundamental error, in not giving this additional instruction. The standard instruction originally given to the jury adequately informed the jury that to find the defendant guilty of aggravated battery with a deadly weapon, it had to find that he “intentionally touched or struck Dale D. Fox against his will, and in committing the battery, used a deadly weapon.” See Fla. Std. Jury Inst. (Crim.) 8.4. The term “intentionally,” as used in the standard aggravated battery instruction, does not suggest that negligent or even reckless conduct would suffice.

The state cites Castor v. State, 365 So.2d 701, 703 (Fla.1978), in arguing that there can never be fundamental error in rein-structing a jury. Although we disagree that Castor stands for this broad proposition, we do believe that the policy underlying the contemporaneous rule generally requires a timely and specific objection to preserve an issue of alleged error in giving additional or supplemental instructions, when the original instructions on the applicable law in the case were accurate and adequate. See id. (stating that “[t]he requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings.”).

For the reasons discussed above, we affirm the defendant’s convictions and sentences.

Affirmed.

STEVENSON, C.J. and POLEN, J., concur.


author: PER CURIAM.

text:
    Geraldine KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-671.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.

      Geraldine Kelly, Fort Lauderdale, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of three of appellant’s claims raised in her Florida Rule of Criminal Procedure 3.850 motion. The state agrees that appellant’s claim that her ten-year sentence on count III for possession of alprazolam with intent to sell has merit because the sentence is illegal. Possession of alprazolam, a schedule IV controlled substance, even if it is with intent to sell, is a third degree felony. § 89S.13(l)(a)2, Fla. Stat. (2003). The ten-year sentence exceeds the statutory maximum of five years which is provided for third-degree felonies. The trial court erred in summarily denying this claim, and we reverse and remand for resentencing on this count.

Because the sentence resulted from a negotiated plea agreement involving multiple counts, on remand the state can agree to correction of.the sentence on this particular count or appellant must be permitted to withdraw the plea in its entirety. Howell v. State, 764 So.2d 780 (Fla. 2d DCA 2000). Appellant is not entitled to de novo resentencing on all counts. If the sentence must be corrected, then the plea agreement would be violated, and unless the state agrees to the corrected sentence, it is not bound by the agreement and could choose to take appellant to trial. Bruno v. State, 837 So.2d 521 (Fla. 1st DCA 2003).

GUNTHER, KLEIN and SHAHOOD, JJ., concur.


text:
    Anthony K. BENEDETTO, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1020.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.

      Anthony K. Benedetto, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s Florida Rule of Criminal Procedure 3.800(a) motion. Appellant’s habitual violent felony offender (HVFO) sentence was not affected by the amendments of Chapter 95-182, Laws of Florida, which were found unconstitutional in State v. Thompson, 750 So.2d 643 (Fla.1999). Although appellant committed his offense within the window period established by Thompson, the trial court could have imposed the HVFO sentence in this case under the prior version of the statute without the amendments. Johnson v. State, 763 So.2d 283 (Fla.2000); Tiger v. State, 764 So.2d 824 (Fla. 4th DCA 2000).

POLEN, TAYLOR and MAY, JJ., concur.


text:
    Tedrick DONALDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-1094.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Rehearing Denied June 19, 2007.
    Tedrick Donaldson, Perry, pro se.
    No response required for respondent.
   PER CURIAM.

Petitioner is currently serving sentences in the Department of Corrections for charges from Polk County. Indian River County has filed a detainer against him, and the petition alleges that an information charging armed robbery was filed in 2003. Petitioner filed a notice of expiration of the speedy trial without demand time limitation in early 2007. Fla. R.Crim. P. 3.191(a). He then filed a motion for discharge.

Petitioner is not entitled to application of the speedy trial without demand time limitation under these circumstances. Edwards v. Allen, 603 So.2d 514 (Fla. 2d DCA), review denied, 613 So.2d 3 (Fla.1992). Neither the detainer, nor the filing of the information, constitute an arrest for purposes of rule 3.191(a). Id. To the extent the petition alleges entitlement to relief on this basis, i.e. the speedy trial without demand rule, the petition is denied. If an information has been filed in the Indian River County case, petitioner can file a demand for speedy trial pursuant to rule 3.191(b).

The petition for writ of prohibition is denied without prejudice.

GUNTHER, POLEN and HAZOURI, JJ., concur.


text:
    Glenn SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-573.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Rehearing Denied June 19, 2007.
    Glenn Smith, Indiantown, pro se.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

WARNER, FARMER and TAYLOR, JJ., concur.


author: POLEN, J.

text:
    Dennis L. MANNING, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-79.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Dennis L. Manning timely appeals a conviction of burglary of a dwelling. We affirm the conviction but find the trial court erred in denying Manning’s 3.800(b)(2) motion to correct sentence.

The victim in this case, Jimmy Ralph Archie, came home one morning after spending the night at his girlfriend’s house to find the door to his apartment broken down, the lock broken and a television stolen. His housemate told him that she saw someone break into his room, but did not see who it was. When Officer Saridak-is responded to Archie’s burglary call, Archie showed the officer his apartment and described what items were missing. Archie also said that someone from the neighborhood told him that it was Manning, whom Archie described as a black male in his thirties and a former neighbor, who stole his television. Saridakis then left the apartment and went to his patrol car to fill out the necessary paperwork.

As Officer Saridakis was completing his paperwork, a friend and next-door neighbor of Archie’s saw Archie outside, approached him and told him that someone in a gold car had parked in front of Archie’s house the night before. This friend then observed the same gold car passing by and alerted Archie. Archie looked, saw the car and noticed that Manning was in it. He then ran to the Officer Saridakis’s patrol car and told the Officer that Manning was in that car.

Officer Saridakis looked at the car as it passed by and saw a white female and a black male inside. He followed the car, turned on his emergency lights and pulled the car over. As he approached on foot, Saridakis noticed a television in the back seat. He then separated the two occupants for questioning and the female occupant told him that her passenger, Manning, had taken the television and put it in her car, and that they were driving around town in an effort to give it away or sell it.

Manning was subsequently arrested and charged with, inter alia, burglary of a dwelling. At trial, his counsel moved the court to suppress any and all items found in the car, including the television. Manning’s counsel argued that the traffic stop was improper because the information officer Saridakis acted upon was insufficient to merit the reasonable suspicion required to perform an investigatory stop. Specifically, Manning’s counsel claimed that certain information (i.e., that Archie believed Manning stole his television because someone in the neighborhood told him so) was provided by an anonymous informant, and that the informant’s tip lacked the indicia of reliability and independent corroboration to support a police response. The State countered that the totality of the circumstances must be considered when evaluating whether a police officer had a reasonable suspicion of criminal activity, and that information acted upon by Sari-dakis constituted a citizen informant’s tip, which, as opposed to a tip gathered from an anonymous informant, carries with it a presumption of veracity and reliability.

The trial court denied the motion to suppress, reasoning that Saridakis had a reasonable suspicion to stop the car because: he believed a crime had been committed; knew with specificity what objects had been taken; had information that a neighbor, who the court said “may fall into somewhere in between an anonymous tip and a citizen informant,” told Archie that Manning had committed the crime; a specific person and car had been identified; and, lastly, there were exigent circumstances — Archie running to the officer and telling him, “there goes the car, there’s [Manning].”

Manning was convicted of burglary of a dwelling and sentenced to 15 years in Florida State Prison with credit for 396 days time served. On appeal, he argues that the trial court erred in denying his motion to suppress because the police did not have the reasonable suspicion necessary to stop him, and therefore any evidence found after the stop should have been suppressed as “fruit of the poisonous tree.”

[An appellate court] is required to accept the trial court’s determination of disputed issues of fact in a motion to suppress, as the trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence. Although [appellate courts] are required to accept the trial court’s determination of the historical facts leading to the search, a defendant is entitled to a de novo review of whether the application of the law to the historical facts establishes an adequate basis for the trial court’s finding of reasonable suspicion or probable cause.

Lee v. State, 868 So.2d 577, 579 (Fla. 4th DCA 2004) (citing Curtis v. State, 748 So.2d 370 (Fla. 4th DCA 2000)).

A police officer may stop a person for the purpose of investigating possible criminal behavior even though there is no probable cause to justify an arrest, as long as the officer has a reasonable suspicion that the person is or has engaged in criminal activity. J.L. v. State, 727 So.2d 204, 206 (Fla.1998), aff'd, Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). “All that is required for a valid vehicle stop ... is a founded suspicion on the part of the officer effectuating the stop that the occupants have committed or are about to commit a crime.” London v. State, 540 So.2d 211, 213 (Fla. 2d DCA 1989) (citing Sumlin v. State, 433 So.2d 1303 (Fla. 2d DCA 1983)). In contrast, investigatory stops based solely upon an inarticulable hunch or unparticularized suspicion are invalid. State v. Setzler, 667 So.2d 343, 348 (Fla. 1st DCA 1995) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

Manning’s argument centers on whether or not the information relayed by Archie to officer Saridakis came from an anonymous tipster(s). The various kinds of third-party informants and the standards applicable to each were discussed in State v. Evans, 692 So.2d 216 (Fla. 4th DCA 1997); see also Aguilar v. State, 700 So.2d 58 (Fla. 4th DCA 1997) (citing Evans, supra). In Evans, this court placed the “citizen-informant” at the high end of the reliability scale. Evans, 692 So.2d at 219. A citizen-informant “is one who is motivated not by pecuniary gain, but by the desire to further justice.” Id. (citations omitted). The veracity and reliability of a citizen-informant are presumed. Id. At the low end of the reliability scale is the anonymous tipster. Id. at 218. The veracity and reliability of this kind of informant are unknown. Id. Thus, such a tip requires “detailed and specific information corroborated by police investigation” in order to alone justify a stop. Id.

Even though the trial court in this case determined the neighbor was in between an anonymous informant and a citizen informant, we find he was closer to the latter because the police could readily ascertain his identity. See State v. Maynard, 783 So.2d 226, 230 (Fla.2001) (finding tipster was not anonymous, in part, because her identity was readily ascertainable by the stopping officer — “the cases support the proposition that an informant’s actual name need not be known so long as her identity is readily discoverable”). Cf Solino v. State, 763 So.2d 1249, 1251-52 (Fla. 4th DCA 2000) (finding informant was anonymous, rather than a citizen-informant, because he drove off after relaying the information and the deputy did not obtain his name or license tag). Thus, despite the fact that the neighbor did not see Manning commit the alleged crime, we conclude, under the facts of this case, that it was reasonable for officer Saridakis to stop the car for purposes of further investigation. In so finding, we conclude that the trial court did not err in denying Manning’s motion to suppress.

Manning also claims the trial court erred in denying his rule 3.800(b)(2) motion to correct sentence, specifically contending that the court should not have ordered him to pay $50 to the County Alcohol and Other Drugs Abuse Trust Fund. The State concedes the point.

Payment to the fund may be “imposed for any criminal violation of s.316.193. s.856.011, s.856.015, or Chapters 562, 567, 568, or 893.... ” Manning, however, was convicted of burglary of a dwelling and theft under sections 810.02 and 812.014, Florida Statutes (2004), respectively. As such, we order the trial court to strike this portion of the assessment and recalculate total costs.

As to the other points raised on appeal, we affirm.

Affirmed in Part; Reversed in Part; Remanded.

WARNER and HAZOURI, JJ., concur.


text:
    John Paul JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4853.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant was charged with DUI manslaughter and DUI/serious bodily injury. During deliberations, the jury submitted questions to the trial court. Rather than call the jury to the courtroom to answer the questions, the court responded in writing after consulting with counsel for both parties. We hold that no fundamental error occurred when the trial court answered the questions without calling the jury to the courtroom.

During deliberations at appellant’s trial, the jury submitted three questions to the court. First, the jury asked: “[I]s there a law stating how much of a controlled substance one may have in the body? Example, alcohol, .08.” Both defense counsel and counsel for the prosecution agreed that the court should tell the jury “no.” The court stated: “Okay. I’m just going to write it on the bottom here.” Both counsel stated that they had no objections. The defendant was present while the question was discussed.

The jury then submitted a second question: “[W]as the dosage of medication pump increased the day of the accident?” The court met again with counsel and advised that it would send back an answer that the jury must rely on its collective memory. Both counsel responded that they did not object. Finally, the jury asked, “Is there a statue (sic) for the DUI we may see, possibly statue (sic), Florida Law F.S. 893.03?” Again, both defense counsel and prosecution agreed on the response. The court sent the jury a written response, telling them to rely on the instructions already given.

The jury returned a verdict of guilty of driving while under the influence, a lesser included offense, and guilty of driving while under the influence causing serious bodily injury, as charged in the information.

Florida Rule of Criminal Procedure 3.410 instructs the trial judge on the procedures to follow when the jury requests additional instructions after they have retired to deliberate:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

The purpose of the rule is “to prevent [ ] the lack of notice to counsel, coupled with the lost opportunity for counsel to argue and to place objections on the record.” Thomas v. State, 730 So.2d 667, 668 (Fla.1998) (quoting Mills v. State, 620 So.2d 1006, 1008 (Fla.1993) (citation omitted)).

In Hildwin v. State, 531 So.2d 124 (Fla.1988), the jury sent a written question regarding the facts of the case to the judge during deliberations. The judge called counsel into his chambers, read them the question, and proposed an answer, to which counsel agreed. Id. at 127. The judge wrote the answer on the jury’s note and returned it. Id. The judge did not return the jury to the courtroom to answer the question; there was no record evidence that the defendant was present in the judge’s chambers while the judge and counsel discussed the question. Id. The supreme court concluded, “[T]he only violation of the rule occurred when the judge failed to return the jury to the courtroom. Under the circumstances, this was harmless error, (citations omitted) Clearly, the appellant suffered no prejudice.” Id.

Similarly, based on Hildwin, we find that no fundamental error occurred here and affirm the judgment of conviction.

Affirmed.

STONE, J., and COLBATH, JEFFREY, Associate Judge, concur.


text:
    Anderson LORMEUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-92.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Clayton R. Kaeiser, Miami Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by Anderson Lormeus from an order denying a motion filed under Florida Rule of Criminal Procedure 3.850.

Appellant entered into a plea agreement in which he pleaded no contest to one count of child neglect. At the change of plea hearing, appellant requested three weeks before the sentence was imposed so that he could take care of some personal business. The court granted appellant’s request. On March 20, 2003, appellant was sentenced to ten years in prison which the trial court agreed to mitigate to 364 days in county jail and four years probation if appellant surrendered at the agreed upon time. Appellant did not surrender but absconded to New York. Subsequently, New York authorities detained appellant and he was extradited to Florida on approximately August 29, 2005.

Appellant filed his rule 3.850 motion on January 31, 2006, nearly three years after appellant’s judgment and sentence became final. Appellant did not allege any of the exceptions to the two-year time limit found in Florida Rule of Criminal Procedure 3.850(b). The court below denied the motion on the merits. However, the trial court should have denied the motion as untimely, and we affirm on that basis.

WARNER, POLEN and MAY, JJ., concur.


text:
    Walter D. McLEMORE, individually and on behalf of all others similarly situated, Appellant, v. LFH ACQUISITION CORP. d/b/a Labor for Hire, Inc., Appellee.
    No. 4D05-2311.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    John G. Crabtree of The Shavitz Labor Pool Law Firm, PLC, Key Biscayne, Gregg I. Shavitz, Perry Tanksley and Shannon McLin Carlyle of The Shavitz Labor Pool Law Firm, PLC, Boca Raton, and David J. George and Stuart A. Davidson of Lerach Coughlin Stoia Geller Rud-man & Robbins, LLP, Boca Raton, for appellant.
    Nancy S. Paikoff and Jeffrey W. Gibson of Macfarlane Ferguson & McMullen, Clearwater, for appellee.
   TAYLOR, J.

Walter McLemore, a day laborer, appeals an order dismissing with prejudice his complaint for violations of the Labor Pool Act, section 448.20 et seq., Florida Statutes. The trial court dismissed the complaint for failure to state a cause of action upon concluding that the amount that Labor For Hire, Inc., charged day laborers for transportation in Broward County was reasonable as a matter of law. Because reasonableness of the transportation charges is a question of fact for determination by a jury, we reverse the order of dismissal and remand for further proceedings. See generally D’Attilio v. Fifth Ave. Bus. Ass’n., 710 So.2d 117, 118 (Fla. 2d DCA 1998); E.W. Karate Ass’n. v. Riquelme, 638 So.2d 604, 605 (Fla. 4th DCA 1994).

Reversed.

WARNER and GROSS, JJ., concur.

      . We note that Labor for Hire raised several constitutional challenges to the Labor Pool Act, which the trial court declined to address.


author: PER CURIAM. KLEIN, J.,

text:
    WHITNEY INFORMATION NETWORK, Petitioner, v. COUNCIL OF BETTER BUSINESS BUREAUS, INC., Better Business Bureau of West Florida, Inc., Better Business Bureau of Northwest Florida, Inc., Better Business Bureau of Central Florida, Inc., Better Business Bureau of Northeast Florida, Inc., and Better Business Bureau of Southeast Florida and the Caribbean, Respondents.
    No. 4D07-1164.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Steven N. Lippman, Shawn L. Birken and Matthew S. Sackel of Rothstein, Ro-senfeldt, Adler, Fort Lauderdale, for petitioner.
    No appearance for respondents.
   PER CURIAM.

The petition for writ of certiorari is dismissed for failure to establish any irreparable harm that cannot be remedied on direct appeal. Barrett v. Callaway, 842 So.2d 1056 (Fla. 4th DCA 2003); Posner v. Posner, 940 So.2d 524, 526 (Fla. 4th DCA 2006); Wally v. Nat’l City Mortg. Co., 867 So.2d 444, 445 (Fla. 4th DCA 2004).

FARMER and SHAHOOD, JJ., concur.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

Petitioner seeks a writ of certiorari directed to the trial court’s order granting respondent’s motion to quash subpoenas and requiring petitioner to seek court approval prior to further discovery. ' We are dismissing for lack of jurisdiction based on earlier cases from this court holding that this court does not review by certiorari an order precluding discovery. Calfin v. McInnis, 683 So.2d 1137 (Fla. 4th DCA 1996) and cases cited. Barrett v. Callaway, 842 So.2d 1056 (Fla. 4th DCA 2003). The rationale of these cases is that the error can be corrected on appeal from final judgment and therefore the irreparable damage requirement for granting certiora-ri is absent.

The Second, Third, and Fifth Districts do review orders denying discovery by cer-tiorari. Bush v. Schiavo, 866 So.2d 136 (Fla. 2d DCA 2004); Lifemark Hosps. of Fla. v. Izquierdo, 899 So.2d 478 (Fla. 3d DCA 2005); Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000). The First District has not yet done so, but does not have a hard and fast rule against such review. Fla. Comm’n on Ethics v. MacNamara, 833 So.2d 299 (Fla. 1st DCA 2002).

This court has not always adhered to our current position of not reviewing these petitions. In Brennan v. Board of Public Instruction, 244 So.2d 463 (Fla. 4th DCA 1971), we granted a petition for certiorari and quashed an order preventing the plaintiff from deposing three employees of the defendant in a personal injury case. And in Gold Coast Raceway, Inc. v. Ehrenfeld, 392 So.2d 1002 (Fla. 4th DCA 1981), we quashed a protective order precluding discovery based on attorney-client privilege. Although a three judge panel of this court purported to partially recede from Gold Coast in United States Fidelity & Guaranty Co. v. Graham, 404 So.2d 863 (Fla. 4th DCA 1981), this court has in fact not receded from either Gold Coast or Brennan.

The order entered in this case, which requires petitioner to seek court permission to conduct further discovery because of discovery abuse, does not present a case for revisiting the issue. When the appropriate situation is presented, however, I would be in favor of relaxing our current hard and fast rule, and addressing each case on an individual basis. As Judge Sharp explained in Beekie, where the trial court had erroneously precluded the plaintiff from deposing the defendant in an auto accident case:

This error is not remediable on appeal since there is no practical way to determine, after judgment, what the testimony and cross-examination testimony at trial would have been had Morgan been orally deposed in advance of trial, and how denial of that opportunity affected the outcome of the trial.

Beekie, 751 So.2d at 698.


author: WEIMER, J. WEIMER, J.,

text:
    In re JUSTICE OF THE PEACE Myrty ALFONSO.
    No. 2007-O-0120.
    Supreme Court of Louisiana.
    May 22, 2007.
   WEIMER, J.

| ]This disciplinary proceeding was instituted by the Judiciary Commission of Louisiana (Commission) against Justice of the Peace Myrty Alfonso (JP Alfonso), District K, Parish of St. Bernard, State of Louisiana. A complaint was filed with the Office of Special Counsel (OSC) by a neighbor of JP Alfonso alleging that he had been wrongfully arrested pursuant to a warrant issued by her.

FACTUAL AND PROCEDURAL BACKGROUND

In 1990, JP Alfonso assumed the office of justice of the peace and served a six-year term. After sitting out a term, she was elected again in 2002.

JP Alfonso stipulated to the facts which are not in dispute. On April 27, 2004, she issued a warrant for the arrest of Larry Thedens for DWI, contributing to the delinquency of a juvenile, disturbing the peace, and extortion. The arrest warrant was based upon complaints made by her neighbors, the Nunezes. However, The-dens claimed the complaints failed to establish probable cause that he had committed the |y,crimes for which the arrest warrant was issued. Following the arrest, bond was set by JP Alfonso at $50,000, allegedly an unreasonable amount considering the crimes for which Thedens had been arrested. Thedens was held in jail overnight before District Judge Manuel Fernandez reduced the bond to $5,000. In February 2005, the St. Bernard Parish District Attorney’s office drafted a letter stating that, based upon the arrest warrant, there were insufficient facts to support the charges against Thedens.

In June 2004, Thedens filed a complaint against JP Alfonso with the OSC. She replied to the complaint and generally denied the allegations.

On November 10, 2005, the Commission filed Formal Charge 0260 against JP Alfonso, alleging she violated the Code of Judicial Conduct, particularly: Canon 1 providing that a judge shall uphold the integrity and independence of the judiciary; Canon 2A providing that a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary; Canon 2 B providing that a judge shall not allow family, social, political, or other relationships to influence judicial conduct or judgment, nor shall a judge lend the prestige of the judicial office to advance the private interest of the judge or others; Canon 3 A(l) providing that a judge shall be faithful to the law and maintain professional competence in the law; Canon 3 A(3) providing that a judge shall be patient, dignified, and courteous to litigants and others with whom the judge deals in an official capacity; Canon 3 A(4) providing that a judge shall perform judicial duties without bias or prejudice; and Canon 3 C providing that a judge should disqualify herself in a proceeding in which the judge’s impartiality might reasonably be questioned and shall disqualify herself in a proceeding in which disqualification is required by law or applicable Supreme Court rule.

|sThe Commission further alleged that JP Afonso engaged in willful misconduct relating to her official duty and engaged in persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, all in violation of LSA-Const. art. V, § 25(C).

On July 20, 2006, JP Alfonso and the OSC jointly filed a “Statement of Stipulated Uncontested Material Facts, Stipulated Conclusions of Law, and Stipulated Recommendation of Discipline.” JP Alfonso stipulated that her judicial actions were the result of bias and prejudice against Thedens and bias in favor of her neighbors who complained about him. Thus, JP Alfonso admitted the facts as set forth above and that she violated the Code of Judicial Conduct as charged in the formal charge; however, she did not agree that she violated LSA-Const. art. V, § 25(C). Furthermore, the parties stipulated that JP Alfonso’s conduct rose to the level of sanctionable ethical misconduct warranting a referral to this court by the Commission, and that the recommended sanction should be a public censure.

The stipulation between the parties also addresses a prior complaint involving JP Alfonso, alleging that she was paid $80 for the filing of a lawsuit, but never contacted the complainant concerning the suit. The complainant further alleged that JP Alfonso would not return his telephone calls, nor would she refund the money paid. The complainant was told that the judgment had been rendered; however, he |4did not receive a copy of the judgment. In October 2004, File No. 03-3733 was closed and a letter of caution was issued to JP Alfonso by the Commission.

The Commission conducted a brief hearing on the Formal Charge 0260 on December 1, 2006. In response to the questions of Commission members, JP Alfonso pledged that she will not repeat the kind of judicial conduct that she engaged in with regard to Thedens. She testified that she will be unbiased in the future.

FINDINGS AND RECOMMENDATION OF THE COMMISSION

The Commission accepted JP Alfonso’s stipulation that she violated the Code of Judicial Conduct as charged in the formal charge. The Commission also found that JP Alfonso violated LSA-Const. art. V, § 25(C), as charged.

The Commission noted this court has set forth a non-exclusive list of factors a court may consider in imposing discipline on a judge. In re: Chaisson, 549 So.2d 259 (La.1989), citing Matter of Deming, 108 Wash.2d 82, 736 P.2d 639, 659 (1987). This court specified the following considerations:

(a) whether the misconduct is an isolated instance or evidenced a pattern of conduct; (b) the nature, extent and frequency of occurrence of the acts of misconduct; (c) whether the misconduct occurred in or out of the courtroom; (d) whether the misconduct occurred in the judge’s official capacity or in his private life; (e) whether the judge has acknowledged or recognized that the acts occurred; (f) whether the judge has evidenced an effort to change or modify his conduct; (g) the length of service on the bench; (h) whether there have been pri- or complaints about this judge; (i) the effect the misconduct has upon the integrity of and respect for the judiciary; and (j) the extent to which the judge exploited his position to satisfy his personal desires.

Chaisson, 549 So.2d at 266.

In recommending discipline in the instant case, the Commission looked to the Chaisson factors and made several conclusions. JP Alfonso’s misconduct concerned one incident — the Nunez complaint about Thedens and his subsequent arrest due to her improper actions. Her misconduct occurred in the performance of her judicial |fiduties. JP Alfonso entered into an extensive stipulation of facts, evidence, and conclusions of law regarding the Thedens case, and she committed to the Commission that in the future she would not take judicial action based upon her prior observations of an individual. Her testimony was that she would modify her behavior in the future. JP Alfonso first took the bench in December 1990. The arrest of Thedens, based upon an affidavit insufficient to support an arrest, occurred in April 2004. Accordingly, she was not new to the bench when the criticized conduct occurred. In fact, she had completed one full six-year term and was in the second year of another term at the time of the misconduct. There has been one prior complaint regarding JP Alfonso, which was closed by the Commission with a cautionary letter. In that matter she had been paid a filing fee, but had allegedly neglected the matter submitted. JP Alfonso’s misconduct adversely affected the integrity and respect for the judiciary because she caused a person to be arrested and to suffer a night in jail without legal cause. Anyone informed of all the facts could conclude that she wielded her judicial |fipower irresponsibly, which negatively impacts the public’s confidence in and respect for the judiciary. The Commission also found JP Alfonso may have intentionally exploited her position to satisfy personal desires. It was clear that the neighborhood issues involving Thedens included JP Alfonso’s child. The specifics of the negative encounters between JP Alfonso and Thedens and regarding her child were not developed in the stipulated facts. Regardless, it was clear from a review of the exhibits that the friction between Thedens and JP Alfonso was personal to the judicial officer, and she admitted her bias against him. Recusal was necessary, and she did not recuse.

The Commission recognized that as a constitutional fact-finding body, it is not a court, and it is not called upon or empowered by law to render legal judgments. With such caveat in mind, the Commission found the record demonstrates that JP Alfonso’s actions were in violation of the Code of Judicial Conduct and the Louisiana Constitution of 1974. The Commission stated:

The Supreme Court of Louisiana has held, “the primary purpose of the Code of Judicial Conduct is to protect the public rather than to discipline a judge.” In re Marullo, No. 96-2222, p. 4 (La.4/8/97); 692 So.2d 1019, 1023. The Commission considered the Statement of Stipulated Uncontested Material Facts, the stipulated exhibits, JP Alfonso’s testimony at the hearing before the Commission, and the guiding decisions handed down by the Louisiana Supreme Court. In so doing, the Commission concluded that JP Alfonso’s actions were so egregious that discipline more severe than a public censure was warranted. The Commission noted that JP Alfonso cooperated with the Office of Special Counsel and that the misconduct centered around only one set of circumstances. Nonetheless, the gravity of an unwarranted arrest, especially when the person responsible for the arrest admitted to her bias against the arrestee, indicates a recommendation of a short suspension \1from the bench, without pay, as the more appropriate level of discipline. [Emphasis supplied.]

Based on these considerations, the Commission recommended that JP Alfonso be suspended from office for fifteen days and that she be ordered to reimburse and pay to the Commission the amount of $178.41 in costs.

DISCUSSION

Article V, § 25(C) of the 1974 Louisiana Constitution provides the substantive grounds for disciplinary action against a judge. The Code of Judicial Conduct adopted by this court under its supervisory authority supplements the constitution’s substantive grounds for disciplinary action against a judge. The Code is binding on all judges, including justices of the peace. In re: Wilkes, 403 So.2d 35, 40 (La.1981). Violations of the Canons contained in the Code of Judicial Conduct can serve as a basis for the disciplinary action provided for by Article V, § 25(C) of the Constitution. In re: McInnis, 00-1026, p. 1 (La.10/17/00), 769 So.2d 1186, 1188 n. 2. Furthermore, a justice of the peace is governed by the same constitutions and laws that govern all courts and judges of this state, and is bound to apply the law as written by the legislature and construed by the various courts. Wilkes, 403 So.2d at 44. That a justice of the peace is untrained in the law does not relieve a justice of the peace of the responsibility to follow the rule of law. Id.; see also, In re: Justice of Peace Cook, 05-0783, p. 5 (La.6/29/05), 906 So.2d 420, 424.

An act need not be intentional to support judicial discipline. In re: Hunter, 02-1975, p. 16 (La.8/19/02), 823 So.2d 325, 336, (“[A] judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial |sto the administration of justice so as to bring the judicial office into disrepute.”). A lack of conscious intent can still support the imposition of judicial discipline. In re: Elloie, 05-1499, p. 30 (La.1/19/06), 921 So.2d 882, 902. Moreover, the fact that other judges or other circumstances may correct the erroneous or legally unsupportable judicial action does not absolve the respondent judge from the consequences of her wrongful acts. Id.

In the instant case, JP Alfonso has not only admitted to all the facts necessary to determine whether she violated the Code of Judicial Conduct, but has agreed to stipulations that her actions, indeed, violated the Code. Thus, our inquiry as to JP Alfonso’s violations of these Canons is at an end, and we are “left only with the task of deciding the appropriate measure of discipline in this case.” In re: Decuir, 95-0056, p. 8, (La.5/22/95), 654 So.2d 687, 692.

As previously mentioned, this court has set forth a non-exclusive list of factors to consider in imposing discipline on a judge. In re: Chaisson, 549 So.2d at 266. In the instant case, the Commission specifically analyzed JP Alfonso’s actions in the context of the Chaisson criteria. We have reviewed the record and agree with the Commission’s factual findings, but find the recommended discipline — a fifteen-day suspension — is not commensurate with the seriousness of the violations.

Factors contributing to the seriousness of JP Alfonso’s violation of the Code are that her misconduct occurred in her performance of her judicial duties; she was not new to her position as justice of the peace, having served one complete term prior 19to this violation; she had one prior complaint against her; her misconduct was willful, not negligent, in that she acted despite her bias toward the defendant; and her misconduct negatively impacted the public’s confidence in and respect for the judiciary. Among the greatest dangers posed by a biased judge is a threat to liberty. After JP Alfonso inappropriately exercised her judicial authority, that threat was realized when Thedens was incarcerated overnight.

In mitigation, the charge against JP Alfonso involves only one incident and not a series of acts of misconduct. JP Alfonso entered into an extensive stipulation of facts, evidence, and conclusions of law regarding her case, and demonstrated cooperation with the Commission. Finally, her commitment to the Commission was that she would not take judicial action in the future based on bias against any individual. Apparently, the Commission was convinced she would not repeat the mistake made in this matter.

In light of JP Alfonso’s willful actions, based on admitted bias, we find a suspension of thirty days without pay is a more appropriate sanction. See In re: Cresap, 06-1242 (La.10/17/06), 940 So.2d 624.

DECREE

For the reasons assigned, it is ordered that Justice of the Peace Myrty Alfonso be suspended for 30 days without pay for violating the Code of Judicial Conduct and Article V, § 25(C) of the 1974 Louisiana Constitution in that she engaged in willful misconduct relating to her official duty. It is further ordered that Justice of the Peace Myrty Alfonso reimburse the Judicial Commission of Louisiana the sum of $178.41.

JOHNSON, J., dissents.

TRAYLOR, J., dissents.

WEIMER, J., additionally concurs with reasons.

WEIMER, J.,

additionally concurring.

|TI concurred in part and dissented in part in In re: Cresap, 06-1242 (La.10/17/06), 940 So.2d 624, believing that although a sanction was appropriate, the sanction imposed by the majority was too harsh. I believe this matter is more egregious because the bias and prejudice stipulated to by JP Alfonso was so obvious that she should have been aware that recusal was mandatory. As such, the same penalty imposed by the majority in In re: Cresap is justified in this matter.

      . JP Alfonso, the Nunezes, and Thedens all live on the same dead-end street in St. Bernard Parish. The Commission found a longstanding poor relationship existed between Thedens and his neighbors, including JP Alfonso. Thedens has repeatedly complained about the older children who live on the street (one of whom is JP Alfonso’s son) riding dirt bikes and all-terrain vehicles at ''excessive" speeds. Several times he has complained to the animal control department that the Nu-nezes’ dog "strayed” onto his property and attacked his cats.

      . LSA-Const. art. V § 25(C), provides:
      On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony.

      . See Supreme Court Rule XXIII, § 3(d), which provides: "Closed files of prior proceedings against a judge may be referred to by the Commission at any stage of the current proceedings.”

      . The Findings of Fact and Conclusions of Fact and Law and Recommendation of Discipline rendered by the Commission in this matter pursuant to the directive of Section 11 of Supreme Court Rule XXIII specifically notes that the:
      affidavit upon which Justice of the Peace Alfonso based her determination that probable cause existed to believe Mr. The-dens had committed the above crimes stated that Mr. Thedens had committed the crimes on: "the lst-30th day of every month for 2-4 years, 2002-2004.” This statement, even without the other stipulated circumstances of which Justice of the Peace Alfonso was aware, was sufficient to place Justice of the Peace Alfonso on notice that probable cause did not exist to believe Mr. Thedens had committed these offenses.
      The affidavit submitted in support of the arrest warrant contains an obvious exaggeration related to the criminal activities being committed daily for two to four years. However, the affidavit by Nunez specifically provides the following additional information concerning the allegations of criminal activity on the part of Thedens:
      Larry Thedens on many occa[sions] has driven down Nicosia Place drunk, speeding and stops his car to curse the children who live there on Nicosia Placet.] He (Larry Thedens) has threaten [sic] to kill Mr. Nunez's dog. Larry Thedens califs] the animal control and lies to them about dog being out of his pen. Also calls the police with false statement [sic] about all the children and resident [sic] on Nicosia Place.
      Thus, the affidavit as a whole contains a recitation of facts which could establish probable cause of criminal activity. Nevertheless, the obvious exaggeration related to the criminal activities being committed daily for two to four years should have put the justice of the peace on notice to more carefully evaluate the affidavit.
      The Commission found that the exaggeration was sufficient to place JP Alfonso on notice that probable cause did not exist to believe Thedens committed the offenses alleged. However, we believe this matter is subsumed into the charge related to the fact JP Alfonso acted in this matter with bias and prejudice toward Thedens when she should have recused herself.

      . See footnote 2, supra.

      . As previously mentioned, the Commission's Formal Charge 0260 against JP Alfonso alleges violations of Canons 1, 2 A, 2 B, 3 A(l), 3 A(3), 3 A(4), and 3 C.

      . Although we agree with the Commission that JP Alfonso violated the constitution, we note that she refused to stipulate to such a violation. However, this refusal on her part is immaterial; any violation of the Code of Judicial Conduct may serve as grounds for sanctions. In re: King, 03-1412, p. 18 (La. 10/21/03), 857 So.2d 432, 445.
      Further, the Commission noted that "[a]s JP Alfonso stipulated to her violation of the Code[,] it was not necessary to determine whether this case was an instance of mere judicial error and whether that error rose to the level of ethical misconduct. Considering th[at] JP Alfonso further stipulated that she acted out of bias against Mr. Thedens, it would not appear she acted in simple error.”


author: TRAYLOR, Justice.

text:
    Edna J. HUGGINS v. GERRY LANE ENTERPRISES, INC. and ABC Insurance Company.
    Nos. 2006-C-2816, 2006-C-2843.
    Supreme Court of Louisiana.
    May 22, 2007.
   TRAYLOR, Justice.

LWe granted this writ application in order to determine whether a commercial umbrella liability policy issued by RLI Insurance Company (RLI) provides primary insurance coverage in the instant case. For the reasons which follow, we find that the policy does not provide primary coverage and affirm the decisions of the courts below.

FACTS and PROCEDURAL HISTORY

On September 9, 1999, the plaintiff, Edna Huggins (Huggins) . allegedly tripped, fell, and was injured on the premises of Gerry Lane Enterprises, Inc. (Gerry Lane) in Baton Rouge, Louisiana. She filed suit on September 11, 2000.

Gerry Lane’s liability insurer, Reliance Insurance Company (Reliance), was declared insolvent on October 3, 2001. The Louisiana Insurance Guaranty Association (LIGA), as the successor in the payment of claims covered by Reliance policies, assumed the defense of Gerry Lane in the matter.

| gin October of 2003, the Second Circuit Court of Appeal issued an opinion in the case of Freeman v. Philan, 37,685 (La. App. 2nd Cir.10/9/03), 859 So.2d 821, writ denied, 685 So.2d 723, 728, 735. In the opinion, the court of appeal held that an RLI commercial umbrella policy which was identical to the policy at issue here provided primary coverage in place of a Reliance policy, and that the RLI policy provided primary coverage before the statutory coverage provided by LIGA.

Relying upon the Freeman decision, Gerry Lane and LIGA filed third party demands against RLI, and Huggins subsequently amended her petition to add both RLI and LIGA as defendants. Thereafter, RLI, on the one hand, and Gerry Lane and LIGA, on the other, filed opposing motions for summary judgment seeking a determination of which policy provided primary coverage in the matter.

On July 29, 2005, the trial court granted the motion for summary judgment filed by RLI, denied the motion filed by Gerry Lane and LIGA, and dismissed the claim against RLI. The court of appeal affirmed the decision of the trial court.

The merits of Huggin’s claims have not yet been decided and are not before this Court.

STANDARD OF REVIEW

The law applicable to review of a grant or denial of a motion for summary judgment, and to the proper interpretation of an insurance policy, was recently discussed in Bonin v. Westport Ins. Corp., 2005-886 (La.5/1/06), 930 So.2d 906. In Bonin, we stated:

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of lawTj^La. C.C.P. art. 966(B). This court reviews a grant or denial of a motion for summary judgment de novo, Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Thus, this court asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Robinson v. Heard, 01-1697, pp. 3-4 (La.2/26/02), 809 So.2d 943, 945.
Interpretation of an insurance policy usually involves a legal question which can be resolved properly in the framework of a motion for summary judgment. Robinson, 01-1697 at p. 4, 809 So.2d at 945. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. La. C.C. art.2045; Louisiana Ins. Guar. Ass’n, 93-0911 at p. 5, 630 So.2d at 763; Garcia v. St. Bernard Parish School Board, 576 So.2d 975, 976 (La.1991). Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art.2047; Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carbon v. Allstate Ins. Co., 97-3085, p. 4 (La.10/20/98), 719 So.2d 437, 439.
An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Carrier v. Reliance Ins. Co., 99-2573, pp. 11-12 (La.4/11/00), 759 So.2d 37, 43 (quoting Louisiana Ins. Guar. Ass’n, 93-0911 at p. 5, 630 So.2d at 763). Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer’s liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes. Carbon, 97-3085 at p. 5, 719 So.2d at 440; Louisiana Ins. Guar. Ass’n, 93-0911 at p. 6, 630 So.2d at 763.
If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer and in favor of coverage. Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carrier, 99-2573 at p. 12, 759 So.2d at 43-44. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Louisiana Ins. Guar. Ass’n, 93-0911 at p. 6, 630 So.2d at 764; Garcia, 576 So.2d at 976. That strict construction principle, however, is subject to exceptions. Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carrier, 99-2573 at p. 12, 759 So.2d at 43-44. One of these exceptions is that the strict construction rule applies only if the ambiguous policy provision is susceptible to two or more reasonable | interpretations. Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carrier, 99-2573 at p. 12, 759 So.2d at 43-44. For the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carrier, 99-2573 at p. 12, 759 So.2d at 43-44.

Bonin, 05-0886 at p. 4-6, 930 So.2d at 910-911.

DISCUSSION

The following facts are undisputed: (1) RLI issued Policy No. OUL 0029704 to Gerry Lane providing Commercial Umbrella Liability Insurance on the date of the occurrence that is the subject of this suit, (2) Under the RLI policy, Reliance provided scheduled underlying insurance with applicable limits of liability of $1,000,000, (3) Reliance was declared insolvent on October 3, 2001, (4) The declaration of Reliance’s insolvency triggered the provisions of the LIGA Law, La. R.S. 22:1375-1394, which are now applicable to Huggin’s claims, and (5) The value of Hug-gin’s claim is less than $1,000,000.

The pertinent parts of the RLI policy read as follows:

II. Limits of Liability
A .... we shall only be liable for the ultimate net loss in excess of:
1. the applicable limits of scheduled underlying insurance stated in Item 5. of the Declarations, for occurrences covered by scheduled underlying insurance, plus the limits of any unscheduled underlying insurance which also provides coverage for such occurrences; or
2. the unscheduled underlying insurance or the retained limit, whichever is greater, for occurrences covered by unscheduled underlying insurance and by this policy only; or
3. the retained limit, for occurrences covered by this policy only.
Is * *
VII. CONDITIONS
* * ⅜
H. Financial Impairment
Bankruptcy, rehabilitation, receivership, liquidation or other financial impairment of the insured or any underlying insurer shall neither relieve nor increase any of out[our] obligations under this policy. In the event that there is diminished recovery or no recovery available to the insured as a result of such financial impairment of any insurer providing scheduled underlying insurance or unscheduled underlying insurance, the coverage under this policy shall apply on in excess of the limits of liability stated in the scheduled underlying insurance or unscheduled underlying insurance. Under no circumstances shall we be required to drop down and replace the limits of liability of a financially impaired insurer. Nor shall we assume any other obligations of a financially impaired insurer.

As we stated earlier, two separate courts of appeal have examined the above policy language and have reached opposing results. In Freeman, as in the instant case, the underlying insurance carrier, again Reliant, was declared insolvent. The court of appeal determined that the RLI policy was “more than an umbrella policy” and that RLT was liable for “dollar one coverage.” The court of appeal found that although Section II, A, 1 applied because the accident was covered by the underlying Reliant policy, Section II, A, 3 of the policy, which stated that RLI would be liable for amounts in excess of the retained limit (zero as defined by the policy) also applied. Finally, the court of appeal found that the Financial Impairment exclusion did not apply because liability attached at the retained limit of zero and was not contingent upon the insolvency of the underlying carrier. On these bases, the court of appeal decided that because the policy language was not clear or sufficiently Limited to create mutually exclusive categories of coverage, the policy was ambiguous and was to be resolved against RLI, and that, as a result, RLI was liable for all losses in excess of the retained limit of zero.

• In the instant case, the court of appeal reached the opposite conclusion, that the RLI policy did not “drop down” to provide dollar one coverage. Here, the court of appeal found that the three subparts of the “Limits of Liability” section were separated by the word “or,” which is a clear, unambiguous term, and its use made clearly alternative events. According to the court of appeal, by using the word “or,” the policy described “alternative, mutually exclusive, factual situations,” and was, therefore, not ambiguous.

We agree with the result reached by the court of appeal in the instant case-that the RLI policy in question does not drop down to provide dollar one coverage. While agreeing with the court of appeal that the use of the term “or” indicates mutually exclusive factual situations, we note also that the policy makes each subpart exclusive in another way. The language contained in Section II, “Limits of Liability,” by use of the word “only,” clearly and unambiguously indicates that subpart A, 1 applies when both the RLI policy and/or scheduled and unscheduled underlying policies provide coverage; subpart A, 2 applies when only the RLI policy and an unscheduled underlying policy provide coverage; and subpart A, 3 applies when only the RLI policy provides coverage. According to the use of the clear and unambiguous term “only,” one and only one of the subparts can be applicable in any one possible factual scenario. Because sub-parts A, 2 and A, 3 apply only when there is no scheduled underlying insurance, which there is in this case, only subpart A, 1 can possibly apply. This conclusion is further supported by the language of the Financial Impairment provision, which declares that “[u]nder no circumstances shall [RLI] be |7required to drop down and replace the limits of liability of a financially impaired insurer.”

RLI is liable only for the ultimate net loss in excess of the applicable limits of scheduled underlying insurance,” or in excess of $1,000,000. Because Huggins has stipulated that her damages are less than $1,000,000, the trial court correctly dismissed RLI from the case.

DECREE

For the foregoing reasons, the decision of the court of appeal is affirmed.

AFFIRMED.

      . The Louisiana Insurance Guaranty Association Law, La. R.S. 22:1375-1394, “provides a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policy holders because of the insolvency of an insurer ...” La. R.S. 22:1376.

      . Huggins v. Gerry Lane Enterprises, Inc., 2005-2665 (La.App. 1st Cir. 11/3/06), 950 So.2d 750.


text:
    In re Nanak Singh RAI.
    No. 2007-B-0973.
    Supreme Court of Louisiana.
    June 1, 2007.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to properly monitor his client trust account and commingled client and personal funds in the account. Following the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Nanak Singh Rai, Louisiana Bar Roll number 22852, be suspended from the practice of law for a period of one year. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a one-year period of unsupervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    STATE of Louisiana v. Charles M. GUILLORY.
    No. 2006-K-2544.
    Supreme Court of Louisiana.
    June 1, 2007.
   PER CURIAM.

|! Granted. The judgment of the court of appeal is vacated and this case is remanded to the district court for further proceedings.

Defendant entered his guilty plea in the present case under this Court’s decision in State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal on the issue of whether the police lawfully seized the evidence against him. However, defense counsel had failed to file a motion to suppress, and the trial court therefore had no opportunity to rule on the validity of the seizure. On appeal, with nothing before it on the Crosby reservation, the court of appeal affirmed defendant’s conviction and sentence and relegated him to post-conviction proceedings on any claim that the failure to address his Crosby reservation on the merits rendered his guilty plea involuntary. State v. Guillory, 05-2089 (La.App. 1st Cir.9/20/06), 937 So.2d 935(unpub’d).

Defendant argues, and we agree, that a nunc pro tunc determination of the validity of the seizure will obviate the need for addressing the validity of his guilty 1 ?,plea either on direct review or in post-conviction proceedings and at the same time effectuate the Crosby reservation made as a material component of his election to forego trial. Cf. Crosby, 338 So.2d at 586 (“If we are not able to afford the accused their bargained-for appellate review, we must set aside the guilty pleas [as involuntary] .... because of the non-performance of the plea bargain (or the impossibility of the state to perform it) by virtue of which the plea was obtained.”); cf. State v. Nall, 379 So.2d 731 (La.1980)(failure of cause justifies setting aside guilty plea); State v. Floyd, 06-0657 (La.App. 5th Cir.12/27/06), 946 So.2d 325 (guilty plea set aside when entered upon belief that defendant had reserved his right to appeal and trial court failed to rule on his motion to suppress).

Accordingly, on remand of the present case, the district court shall provide the defendant with 30 days in which to file a motion to suppress the evidence. In the event that the defendant files the motion, the court shall promptly conduct a hearing to determine the validity of the seizure of evidence from him. If the court rules favorably to the defendant, it shall provide him with the opportunity of withdrawing his guilty plea and pleading anew. In the event that the court rules adversely, the defendant may appeal again to the court of appeal on the basis of his original Crosby reservation. If defendant fails to file a timely motion to suppress evidence, the court shall deem the Crosby reservation abandoned as a material component of an otherwise knowing and voluntary guilty plea, and direct the defendant to begin execution of his sentence.

VICTORY, J., would deny writ application.


text:
    STATE of Louisiana v. Deon Montreal WALTON.
    No. 2006-K-2553.
    Supreme Court of Louisiana.
    June 1, 2007.
   PER CURIAM.

| granted. The judgment of the court of appeal is vacated and this case is remanded to the district court for further proceedings.

Defendant entered his guilty plea in the present case under this Court’s decision in State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal on the issue of whether the police lawfully seized the evidence against him. Defense counsel had filed a motion to suppress the evidence, the state responded with procedural objections to the motion, but the trial court did not conduct a hearing on the motion and did not rule on the constitutional validity of the seizure. As a general rule, counsel’s failure to obtain a ruling on the merits would constitute an abandonment of the motion. State v. Wagster, 361 So.2d 849, 856 (La.1978). However, with nothing before it to review on the Crosby reservation, the court of appeal determined that a material condition of the guilty plea had faded, set the plea aside, and remanded the case for further proceedings, although | ¡.defendant had not asked for that result. State v. Walton, 05-2175, 937 So.2d 936, 2006 WL 2861674 (La.App. 1st Cir.9/20/06)(unpub’d).

Defendant argues in his present application, and we agree, that a nunc pro tunc hearing on the motion to suppress and a ruling by the trial court on the validity of the search and seizure may cure any defect in the guilty plea proceedings and thereby avoid vacating the guilty plea and providing defendant with a remedy that he did not request. Cf. State v. Robinson, 06-1406 (La.12/8/06), 943 So.2d 371 (appellate courts should refrain from setting aside guilty pleas resulting in dispositions favorable to the defendant on the basis of defects about which the defendant does not complain); State v. Campbell, 01-0329 (La.11/2/01), 799 So.2d 1136 (same); State v. Guzman, 99-1528, p. 6 (La.5/16/00), 769 So.2d 1158, 1162 (same). Accordingly, this case is remanded to the district court for purposes of conducting a hearing on the motion to suppress and for a ruling on the merits of the search issue. If the court rules favorably to the defendant on the motion, it shall provide him with the opportunity of withdrawing his guilty plea and pleading anew. In the event of an adverse ruling on his motion, the trial court shall maintain the guilty plea and defendant may again appeal his conviction and sentence to the court of appeal on the basis of his original Crosby reservation.

KNOLL, J., would deny.