author: KELLY, Judge.

text:
    Mark T. COYLE, Appellant, v. Lorraine D. COYLE, Appellee.
    No. 2D08-2216.
    District Court of Appeal of Florida, Second District.
    May 8, 2009.
    Shazia N. Sparkman and Kevin M. Sparkman of Sparkman & Sparkman, P.A., St. Petersburg, for Appellant.
    James E. Rawe of Law Office of James E. Rawe, P.A., Bradenton, for Appellee.
   KELLY, Judge.

Mark T. Coyle, the former husband, appeals a final judgment of dissolution of marriage. He challenges the provision in the final judgment that allows his former wife, Lorraine D. Coyle, to relocate from Florida to New York with their child. We agree with the former husband that the trial court erred in evaluating the former wife’s request to relocate, and accordingly, we reverse.

Approximately one year after the parties were married, the former husband filed a petition for dissolution of marriage. Both the former husband and the former wife sought primary residential custody of their two-year-old child with the former wife requesting that she be allowed to relocate to New York. In the final judgment, the trial court awarded primary residential custody to the former wife and granted her request to relocate. The final judgment rejected the former wife’s proposed visitation schedule finding that it would “involve a significant drain” on the parents’ limited financial resources and would have a “disorienting effect” on the child. The court did not fashion its own plan for visitation but, instead, scheduled a subsequent hearing to develop a “more practical” visitation plan. After that hearing, the court entered an order delineating the terms under which the former husband would have visitation.

On appeal, the former husband seeks reversal of the final judgment on the ground that the trial court reached its decision on the former wife’s request to relocate without properly evaluating all the factors set forth in section 61.13001(7), Florida Statutes (2007). Section 61.13001(7) sets forth a lengthy list of factors a trial court must evaluate in reaching a decision regarding a proposed temporary or permanent relocation. Pertinent to this case, section 61.13001(7)(c) states that the court must consider:

The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, visitation, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent once he or she is out of the jurisdiction of the court.

When the trial court granted the former wife’s request to relocate, no substitute visitation arrangements were in place. Accordingly, the trial court could not have properly evaluated whether the substitute arrangements would be sufficient to foster a continuing meaningful relationship between the former husband and the parties’ child. Because that evaluation is required before deciding whether to permit relocation, we agree with the former husband that the provision of the final judgment granting relocation must be reversed.

We also agree with the former husband that the trial court appears to have applied an incorrect legal standard in evaluating the former wife’s request to relocate. Under section 61.13001(7), there is no presumption in favor of or against relocation. The burden of proof is on the parent seeking to relocate to prove by a preponderance of the evidence that relocation is in the best interest of the child. § 61.13001(8). Here, the court stated:

Relocation to New York, of course, will diminish significantly the role Adrian-na’s father will be able to play in her life. The father has been a positive, loving presence and it would be a loss to Adrianna to miss this on a daily basis. However, since the Court has determined the mother to be the primary residential parent the father will not see her on a daily basis in any event.

The court further noted that “the improvement in the mother’s quality of life [by relocating] should indirectly, and directly, benefit Adrianna.” These comments indicate to us that instead of focusing on what was best for the child as required under the statute, the court favored the former wife because she was the primary residential parent, her reasons for relocation were genuine, and relocation would improve the quality of her life, not necessarily the life of the child. This was error. See Berrebbi v. Clarke, 870 So.2d 172, 174 (Fla. 2d DCA 2004) (reversing an order granting relocation and noting that the trial court erred in analyzing the petition for relocation under the statutorily superseded rule of law favoring a good-faith request to relocate).

Accordingly, we reverse and remand for the trial court to enter an order vacating that portion of the final judgment which allows relocation and for further proceedings as deemed appropriate on remand. See Cecemski v. Cecemski, 954 So.2d 1227, 1231 (Fla. 2d DCA 2007). We affirm the final judgment in all other respects.

Reversed and remanded with directions.

SILBERMAN and WALLACE, JJ, Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Josue COLLAZO, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-343.
    District Court of Appeal of Florida, Fifth District.
    May 8, 2009.
    Background: Defendant filed motion for postconviction, alleging that he entered a plea based upon misadvice from counsel regarding the length of sentence. The Circuit Court, Osceola County, Scott Polodna, J., denied motion. Defendant appealed.
    Holding: The District Court of Appeal held that record did not conclusively refute allegation that defendant entered a plea based upon misadvice from counsel regarding the length of his sentence, and thus motion could not be summarily denied.
    Josué Collazo, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Josué Collazo appeals the denial of his rule 3.850 motion for postconviction relief. Because the record does not conclusively refute his claim that he entered a plea based upon misadvice from counsel regarding the length of his sentence, we reverse. The remainder of Collazo’s claims are without merit, and we affirm as to them.

Collazo, who does not speak English, pled guilty to robbery with a firearm with a mask, which carries a minimum mandatory term of ten years. The court sentenced Collazo to fifteen years in the Department of Corrections, with a ten-year minimum mandatory term, followed by two years of community control and three years of probation.

Collazo contends that he entered his plea with the understanding, gained from his counsel, that he would receive a ten-year sentence and that his understanding was memorialized in the written plea agreement that he signed. He attached to his motion a copy of the Spanish version of the plea agreement, which does in fact include the promise of a maximum sentence of ten years. Collazo also attached an English translation of the plea agreement, which is inconsistent with the Spanish version because of the addition of the handwritten notation “sentencing up to court with at least,” followed by an arrow indicating that this language was to be inserted in front of the ten-year minimum mandatory sentence. He alleges that this additional language was not on the English version when he signed it.

Misrepresentations or misadvice by counsel about the length of a sentence can be the basis for postconviction relief. See State v. Leroux, 689 So.2d 235, 236 (Fla.1997); Fisher v. State, 824 So.2d 1050 (Fla. 3d DCA 2002). An allegation that counsel misrepresented the length of time that a defendant would serve can be summarily denied if the plea colloquy conclusively refutes the allegations. Leroux; Montgomery v. State, 615 So.2d 226 (Fla. 5th DCA 1993). However, a general question about promises made in exchange for a plea is insufficient to refute an allegation of specific misadvice by counsel about the length of a sentence. DeMonia v. State, 966 So.2d 22 (Fla. 2d DCA 2007); Fisher v. State, 824 So.2d 1050, 1052 (Fla. 3d DCA 2002); Johnson v. State, 776 So.2d 1024 (Fla. 1st DCA 2001).

In this case, the plea colloquy does not refute Collazo’s allegations that he entered his plea with the understanding that he would be receiving a ten-year minimum mandatory sentence and only a ten-year minimum mandatory sentence and that when he signed the English translation of the plea agreement, it provided for a ten-year sentence, just as the Spanish version had. In fact, the plea colloquy reflects some confusion by Collazo and demonstrates that the trial court did not specifically ask him if his counsel had promised him a specific sentence. Since the record does not conclusively refute Collazo’s allegations as to this claim, this case must be remanded for attachment of those portions of the record conclusively refuting Colla-zo’s allegations or for an evidentiary hearing.

The denial of the remainder of Collazo’s claims is affirmed.

AFFIRMED in part; REVERSED and REMANDED FOR RECORD ATTACHMENTS OR AN EVIDENTIARY HEARING.

SAWAYA and EVANDER, JJ. and PLEUS, R., Senior Judge, concur.


author: PER CURIAM. GERSTEN, C.J.

text:
    The STATE of Florida, Appellant, v. Angel TRUJILLO, Appellee.
    Nos. 3D07-1814, 3D07-1815.
    District Court of Appeal of Florida, Third District.
    May 13, 2009.
    Bill McCollum, Attorney General and Douglas J. Glaid, Assistant Attorney General, for appellant.
    John H. Lipinski, for appellee.
    Before GERSTEN, C.J., and WELLS and LAGOA, JJ.
   PER CURIAM.

Affirmed.

GERSTEN, C.J.

(concurring).

I agree with the majority’s decision to affirm. The State should have petitioned for certiorari from the original order granting the defendant’s motion to compel the identity of the confidential informant. See State v. Roberts, 686 So.2d 722 (Fla. 2d DCA 1997). The State, however, failed to seek review.

Thereafter, the State should have appealed from the first order dismissing the case. See State v. Wells, 308 So.2d 163 (Fla. 1st DCA 1974). The State, again, failed to seek review. Instead, the State chose to re-file charges based upon the facts arising from the dismissed cases.

Now, the State attempts a backdoor approach, by appealing the second dismissal order based on the re-filed charges (long ago dismissed). Because the State’s logic is faulty, I agree with the majority’s decision to affirm.

       Although not germane to this appeal, I harken back to my first reversal as a circuit judge. The reversal involved a similar situation, where I ordered disclosure of a confidential informant. Assistant State Attorney Tom Robertson, the State’s division chief, petitioned for certiorari. This Honorable Court reversed me, holding that the disclosure of the identity and whereabouts of the confidential informant was not necessary to the defense. See State v. Perez, 438 So.2d 436, 439 (Fla. 3d DCA 1983). This footnote is proof of a trial judge’s elephantine memory. Though many trial judges claim they do not mind reversal, I believe that the sting of reversal never disappears.


text:
    Levi MEDINA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-187.
    District Court of Appeal of Florida, Third District.
    May 13, 2009.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed. See Meyers v. State, 704 So.2d 1368, 1370 (Fla.1997).


text:
    Eric CEASAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4048.
    District Court of Appeal of Florida, Fourth District.
    May 13, 2009.
    Cynthia L. Comras, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Burns v. State, 884 So.2d 1010 (Fla. 4th DCA 2004).

FARMER, HAZOURI and GERBER, JJ., concur.


text:
    Dominick BRADFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4202.
    District Court of Appeal of Florida, Fourth District.
    May 13, 2009.
    Cynthia L. Comras, Office of Regional Counsel, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Harris v. State, 349 So.2d 854 (Fla. 2d DCA 1977).

FARMER, HAZOURI and GERBER, JJ., concur.


text:
    Horace WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4979.
    District Court of Appeal of Florida, Fourth District.
    May 13, 2009.

      Horace Williams, Cross City, pro se.
    No appearance required for appellee.
   PER CURIAM.

The denial of appellant’s rule 3.850 motion is affirmed. Nevertheless, based on the date of appellant’s offenses, it appears he is in fact eligible for parole. See Duffy v. State, 874 So.2d 1242 (Fla. 2d DCA 2004); Hurd v. State, 807 So.2d 753, 754 (Fla. 3d DCA 2002); Johnson v. State, 679 So.2d 9 (Fla. 4th DCA 1996); Dolan v. State, 618 So.2d 271, 272 (Fla. 2d DCA 1993). Although he has no absolute right to parole, he is entitled to proper consideration for parole. See Moore v. Fla. Parole & Prob. Comm’n, 289 So.2d 719, 720 (Fla. 1974). As a result, our affirmance is without prejudice for appellant to pursue any available administrative remedies or if he has exhausted his administrative remedies to petition the circuit court for a writ of mandamus. See Oishi v. Fla. Parole & Prob. Comm’n, 418 So.2d 329 (Fla. 1st DCA 1982); Greer v. Fla. Parole & Prob. Comm’n, 403 So.2d 1000 (Fla. 1st DCA 1981).

GROSS, C.J., POLEN and FARMER, JJ., concur.


text:
    Robin GERALDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-407.
    District Court of Appeal of Florida, Fourth District.
    May 13, 2009.
    Robin Geralds, Riverview, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of Robin Geralds’s motion to correct illegal sentence by awarding jail time credit, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Affirmance is without prejudice to Geralds’s right to file a legally sufficient rule 3.800(a) motion to correct or a timely and verified rule 3.850 motion for postconviction relief specifically identifying record evidence demonstrating that she is entitled to additional jail credit, and quantifying the exact amount of credit allegedly due. See Thompkins v. State, 3 So.3d 438 (Fla. 4th DCA 2009).

Affirmed.

GROSS, C.J., MAY and DAMOORGIAN, JJ., concur.


text:
    Danny L. RUDISILL, Appellant, v. FLORIDA HIGHWAY PATROL/DIVISION OF RISK MANAGEMENT, Appellees.
    No. 1D08-4797.
    District Court of Appeal of Florida, First District.
    May 14, 2009.

      Bill McCabe, Longwood, and Paul A. Kelley, Winter Park, for Appellant.
    Rex A. Hurley and William H. Rogner of Hurley, Rogner, Miller, Cox & Waranch & Westcott, P.A., Winter Park, for Appel-lees.
   PER CURIAM.

AFFIRMED. See Punsky v. Clay County Sheriff’s Office, 34 Fla. L. Weekly D469, — So.3d -, 2009 WL 564953 (Fla. 1st DCA Mar. 6, 2009) (en banc).

BARFIELD, WEBSTER, and PADOVANO, JJ., concur.


text:
    Douglas W. KEENE, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2884.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2009.
    Douglas W. Keene, Bristol, pro se.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the summary denial of Douglas Keene’s post-sentencing motion to withdraw his plea. See Powell v. State, 929 So.2d 54 (Fla. 5th DCA 2006). Our decision to deny Keene’s motion is without prejudice to allow him to assert the same or similar issues in a properly pled and timely filed motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

PALMER, C.J., ORFINGER, J., and PLEUS, JR., R., Senior Judge, concur.


text:
    Gary C. HINTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-944.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2009.
    Howard H. Babb, Jr., Public Defender, and Jerry W. Burford, Assistant Public Defender, Ocala, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 08-2439-CF in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ORFINGER, MONACO and COHEN, JJ., concur.


text:
    Darell WASHINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-1043.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2009.
    Darell Washington, Vero Beach, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 08-1387 in the Circuit Court in and for Putnam County, Florida. See Fla. R. App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ORFINGER, MONACO and LAWSON, JJ., concur.


text:
    Agnes KARDOS, Appellant, v. Jeffrey Clark POLLARD, etc., Appellee.
    No. 5D08-3614.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2009.
    Clifton H. Gorenflo, of Gary & Gorenflo, P.A., Sanford, for Appellant.
    David Scott Glicken, Orlando, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Wags Transp. System, Inc. v. City of Miami Beach, 88 So.2d 751 (Fla.1956).

ORFINGER, EVANDER and COHEN, JJ., concur.


author: LAGOA, Judge.

text:
    DOWNRITE ENGINEERING CORP., Appellant, v. OVERLAND CARRIERS, INC., Appellee.
    No. 3D09-876.
    District Court of Appeal of Florida, Third District.
    May 20, 2009.
    Jose M. Chanfrau, IV, for appellant.

      Vincent F. Vaccarella and Jordan M. Keusch, Aventura, for appellee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, Judge.

Downrite Engineering Corporation (“Downrite”) seeks review of an order granting Overland Carriers, Inc.’s (“Overland”) motion for final summary judgment. In response to the notice of appeal, Overland filed a motion to dismiss, or in the alternative, motion to temporarily relinquish jurisdiction, which asserts that the order appealed from is not a final order as it merely establishes entitlement to a judgment, but is not itself a judgment. Because “the law is settled that an order which merely grants a motion for summary judgment and does not otherwise contain the traditional words of finality is not a final order subject to appellate review,” we agree with Overland’s contention and dismiss the appeal as premature. See Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So.2d 146, 149 (Fla. 3d DCA 2002). Upon the issuance of a final judgment, Downrite may seek review of said order.

Appeal dismissed.


text:
    S.P.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2143.
    District Court of Appeal of Florida, Third District.
    May 20, 2009.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, and SALTER, JJ.
   PER CURIAM.

Affirmed. State v. Poole, 730 So.2d 340 (Fla. 3d DCA 1999); State v. Hicks, 415 So.2d 878 (Fla. 2d DCA 1982).


text:
    REPORTER USA, LLC, a Florida Limited Liability Company, Appellant, v. Max MILLER, individually, et al., Appellees.
    No. 3D09-551.
    District Court of Appeal of Florida, Third District.
    May 20, 2009.
    Stratton & Feinstein, and Brett Fein-stein and Alicia Almansa, for appellant.
    Howard J. Hollander, Miami, for appel-lee Max Miller.
    Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal from a non-final order appointing a receiver of real property upon the application of a mortgagee, the appel-lee, as provided by the terms of the mortgage. See Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241 (1980). We find no abuse of discretion. See Puma Enterprises Corp. v. Vitale, 566 So.2d 1343 (Fla. 3d DCA 1990); Interdevco, Inc. v. Brickellbanc Sav. Ass’n, 524 So.2d 1087 (Fla. 3d DCA 1988).

Affirmed.


author: POLEN, J.

text:
    DFC HOMES OF FLORIDA, a Florida corporation, Appellant, v. Wayne LAWRENCE, Appellee.
    No. 4D08-2798.
    District Court of Appeal of Florida, Fourth District.
    May 27, 2009.

      Melissa Muros of Reilly Roche LLP, Fort Lauderdale, for appellant.
    Janet E. Spence of J.E. Spence, P.A., Pembroke Pines, for appellee.
   POLEN, J.

Appellant DFC Homes of Florida (“DFC”) timely appeals the trial court’s order denying its motion to compel arbitration. This Court has jurisdiction. Fla. R. App. P. 9.130(3)(c)(iv).

DFC and Wayne Lawrence (“Lawrence”) entered into a contract whereby Lawrence agreed to purchase real property from DFC for $125,000. Included in the purchase contract was a binding arbitration clause. Shortly after entering into the contract, DFC brought a claim before the American Arbitration Association (“AAA”), asserting that Lawrence had repudiated the contract by arguing that the contract was illegal. Lawrence responded and counter-petitioned for arbitration, agreeing as to the validity of the contract and demanding that DFC “move forward with the sale of the property.” A hearing was held before the AAA, but there is no transcript of that hearing. The arbitrator found DFC to be the prevailing party and allowed it to retain Lawrence’s deposit in the amount of $3,750.

Thereafter, Lawrence filed a complaint with the circuit court, claiming that DFC breached the contract by (1) refusing to transfer the title of the property because Lawrence failed to pay an additional sum of $15,000 over the contract price, and (2) failing to complete construction of the project. Lawrence demanded specific performance and submitted an Objection to the Award of the Arbitrator. In response, DFC submitted its Motion to Confirm the Award of the Arbitrator. The court found for Lawrence, stating in its order that “there is still a genuine question for the Court of whether or not all issues of both sides were actually considered and or ruled upon by the arbitrator.” DFC appealed that order to this Court, but the appeal was dismissed as non-final. DFC Homes of Fla. v. Lawrence, 941 So.2d 367 (Fla.2006).

The case sat dormant for a year when the court sua sponte notified the parties of its intent to dismiss for lack of prosecution. Lawrence, thereupon, filed a Motion for Status Conference and attempted to take DFC’s deposition and to settle the case. Such attempts were unsuccessful; instead, DFC filed its Motion to Compel Arbitration. At the hearing on that motion, the court found that DFC had waived its right to arbitration because “[i]f I know anything about this case, I know that it’s been arbitrated. I know of nothing that requires a second arbitration in the case, even in [sic] the Court disposes of that first arbitration. This case has been up and down the appellate court.” The court denied DFC’s Motion to Compel Arbitration and recommended that the parties go to mediation. The case was mediated, but DFC appeals the trial court’s denial of its motion.

An order granting or denying a motion to compel arbitration is reviewed de novo. Vacation Beach, Inc. v. Charles Boyd Constr., Inc., 906 So.2d 374, 376 (Fla. 5th DCA 2005). “Under both federal statutory provisions and Florida’s arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (citing Terminix Int’l Co. L.P. v. Ponzio, 693 So.2d 104, 106 (Fla. 5th DCA 1997)). The dispute, here, is whether the actions taken by DFC constituted a waiver of its right to arbitration.

A party to an arbitration agreement waives the right to arbitration by active participation in litigation before asserting that right. Strominger v. Am-South Bank, 991 So.2d 1030 (Fla. 2d DCA 2008) (emphasis added). Lawrence asserts that DFC actively engaged in litigation by (1) participating in deposition, (2) making offers to settle the lawsuit, (3) filing a motion to dismiss for lack of prosecution, (4) answering Lawrence’s request for interrogatories, and (5) participating in mediation.

First, all of those actions occurred after DFC exercised its right to arbitration, and the parties’ claims were resolved at arbitration. Second, DFC never filed an answer or an affirmative defense to Lawrence’s complaint and the subsequent Objection to the Award of the Arbitrator. Instead, DFC submitted its Motion to Confirm the Award of the Arbitrator, asserting no more than the enforceability of the outcome of arbitration. The court found for Lawrence merely to determine “whether or not all issues of both sides were actually considered and or ruled upon by the arbitrator.” Even this question, however, was not for the court to answer.

For a year after that decision, no action was taken by Lawrence, so the court, sua sponte, notified the parties of its intent to dismiss the case for lack of prosecution. DFC’s motion to dismiss on the same ground came only after the court’s notice, and the court did not dismiss the case after all.

DFC’s subsequent participation in discovery, ie., depositions and interrogatories requested by Lawrence, was “limited in scope and ... purpose ... to obtaining] information relevant to the trial court’s determination of whether the right to arbitration was present.” Phillips v. Gen. Accident Ins. Co. of Am., 685 So.2d 27, 29 (Fla. 3d DCA 1997). Again, the original dispute had been resolved at arbitration, and the substance or merits of the case or any new claims were never considered by the court.

Lawrence relies on Transamerica Insurance Co. v. Weed, 420 So.2d 370 (Fla. 1st DCA 1982) to argue that a party waives its right to arbitration by making offers of settlement. That case, however, involved much more than settlement offers; the party seeking arbitration had filed an answer and an affirmative defense, neither of which even mentioned the arbitration agreement. Id. at 371.

A mere attempt to settle a dispute outside the courtroom cannot be considered inconsistent with a party’s right to arbitration. See Marine Envtl. Partners, Inc. v. Johnson, 863 So.2d 423, 426 (Fla. 4th DCA 2003) (“A party claiming waiver of arbitration must show: (1) knowledge of an existing right to arbitrate and (2) active participation in litigation or other acts inconsistent with the right.”). Such a finding would make little sense, considering the object of arbitration is to facilitate the settlement of disputes and to avoid the formalities, delay, and expense of ordinary litigation. See, e.g., Bill Heard Chevrolet Corp., Orlando v. Wilson, 877 So.2d 15 (Fla. 5th DCA 2004). Discouraging parties from making offers of settlement would be contrary to the purpose and public policy behind arbitration. See Nicor Int’l Corp. v. El Paso Corp., 318 F.Supp.2d 1160, 1166 (S.D.Fla.2004) (“The policy of Florida is to resolve all doubts about the issue of waiver of arbitration in favor of arbitration, not against it.”) (citing Ronbeck Constr. Co. Inc. v. Savanna Club Corp., 592 So.2d 344, 346 (Fla. 4th DCA 1992)).

Thus, we find that DFC has not waived its right to arbitration. First, the arbitrator should determine whether there are meritorious claims that have not been addressed at the first arbitration. Should any such claims exist, the proper forum for their resolution would be at arbitration.

We reverse the trial court’s denial of DFC’s motion to compel arbitration.

GROSS, C.J., and FARMER, J., concur.


author: WARNER, J.

text:
    Vinton Alrick GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4893.
    District Court of Appeal of Florida, Fourth District.
    May 27, 2009.
    Rehearing Denied May 27, 2009.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   On Remand from the Florida Supreme Court

WARNER, J.

After the supreme court granted review based upon our reliance on Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), disapproved in part, 993 So.2d 952 (Fla.2008), it granted the petition, quashing our decision and remanding for reconsideration upon application of Yisrael. That decision involved whether documents submitted by the Department of Corrections to establish a prisoner’s release date from prison were admissible as exceptions to the hearsay rule. In quashing the opinion of this court, the supreme court noted that it did not have the full appellate record and could not determine for itself whether the documents submitted during Graham’s sentencing complied with Yisrael.

We have examined the record. The affidavit of the DOC official and attached report, which the state introduced as evidence of Graham’s prison release date, comply with Yisrael. We therefore affirm.

HAZOURI and LEVINE, JJ., concur.

      . Although the supreme court addressed only the documentation issue, the majority of our opinion dealt with issues regarding Graham’s conviction. We interpret the supreme court's opinion as quashing only the issue dealing with the Yisrael issue, and we have not reconsidered any other part of our original opinion.


text:
    Christopher FREEMAN, Appellant, v. Joanne VELEZ, Appellee.
    No. 4D08-2585.
    District Court of Appeal of Florida, Fourth District.
    May 27, 2009.
    Christopher Freeman, Plantation, pro se.
    Edward Lopez of The Law Office of Edward Lopez, LLC, Hollywood, for ap-pellee.
   PER CURIAM.

We affirm on all issues except the issue of attorney’s fees. Because the final judgment merely reserved jurisdiction to determine entitlement to and the amount of attorney’s fees, appeal of this issue was premature. Although appellant explains that the trial court made that determination after the filing of the notice of appeal, “[tjhis court cannot review judicial acts of a trial court taking place after the filing of a notice of appeal unless those judicial acts are themselves made the subject of a new notice of appeal or other appropriate appellate proceedings.” Velickovich v. Ricci, 391 So.2d 258, 260 (Fla. 4th DCA 1980); see also Fla. R.App. P. 9.110(h) (“The court may review any ruling or matter occurring before filing of the notice.”).

GROSS, C.J., WARNER and CIKLIN, JJ., concur.


author: HAZOURI, J.

text:
    James RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4604.
    District Court of Appeal of Florida, Fourth District.
    May 27, 2009.

      James Riley, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   HAZOURI, J.

In Riley v. State, 975 So.2d 507 (Fla. 4th DCA 2007), this court reversed the trial court’s summary denial of claim seven in appellant’s motion for posteonviction relief, affirming the denial of his other claims. We remanded for attachment of portions of the record to refute appellant’s claim or an evidentiary hearing on it. In claim seven, appellant had alleged ineffective assistance of trial counsel for failure to object to assessments on his sentencing guidelines scoresheet for prior uncoun-seled misdemeanor convictions.

On remand, the trial court summarily denied relief based on a subsequent response from the state which argued first that the motion was legally insufficient because appellant had alleged that he did not remember or recall ever waiving his right to counsel. Next, the state argued that the violation of probation sentencing proceeding showed that counsel told the court that he had reviewed the guidelines scoresheet with appellant several times. The state also argued that appellant did not object to his scoresheet at that time, but rather chose to remain silent and to subsequently raise this collateral challenge to it in a posteonviction motion. We reject these grounds for the trial court’s denial of posteonviction relief on remand.

First of all, appellant argued in his motion for posteonviction relief that counsel failed to investigate his prior record by searching public records and conferring with him. Had his counsel done so, Riley alleges he would have discovered that they were uncounseled and thus could have affected his scoresheet point total. He alleged in his motion that counsel did not have a conversation with him at all about his prior record for scoresheet assessment purposes. This remains a viable claim for posteonviction relief.

Secondly, we reject the state’s suggestion that appellant stood mute at sentencing, knowing that he had this ground to challenge his scoresheet. Just because counsel told the court that he had reviewed the scoresheet with appellant does not preclude this claim of ineffective assistance of counsel for failure to duly investigate the prior convictions.

The state’s reliance on Jones v. State, 680 So.2d 586 (Fla. 4th DCA 1996), is misplaced. In that case, the judge correctly advised appellant as to the possibility of a life sentence if he were found to be an habitual felony offender. Appellant later alleged that counsel had erroneously advised him that the life sentence was mandatory. There, the plea colloquy transcript itself refuted appellant’s claim. The court added that if the defendant had been advised something different than presented at his plea, he was obligated to speak up and ask the court about the discrepancy. He could not stand mute, accept the benefits of the plea, and then later make a collateral challenge to its voluntariness under a rule 8.850 motion when the matter could have been cleared up at the time the plea was entered. Id. at 587.

Nothing comparable to that has been alleged here. Appellant’s claim was that counsel failed to investigate his prior misdemeanor convictions. It is not alleged or shown that appellant knew he had prior uncounseled misdemeanor convictions and yet stood silent at sentencing without bringing this to the court’s attention.

We also reject the state’s argument made in its response to this court that the motion was legally insufficient for failure to allege that his right to counsel was not waived. Indeed, appellant did expressly allege on page 57 of his motion that if counsel had properly investigated his prior convictions, he would have discovered “that these priors were uncounseled, and that he never waived his right to counsel.”

We earlier reversed and remanded for attachment of portions of the record refuting appellant’s claim seven, or an eviden-tiary hearing. Since the trial court has demonstrated now that there are no portions of the record to refute claim seven, we now reverse and remand for an eviden-tiary hearing on this claim.

Reversed and Remanded.

WARNER and STEVENSON, JJ., concur.

      . Notably, the Florida Supreme Court has modified its holding in State v. Beach, 592 So.2d 237 (Fla.1992), in a recent decision of State v. Kelly, 999 So.2d 1029 (Fla.2008), in which the defendant argued that the state erred in using prior uncounseled misdemean- or convictions to increase a subsequent DUI from a misdemeanor to a felony. The court held that a defendant must allege: (1) that the offense was punishable by imprisonment; (2) that the defendant was indigent and entitled to court-appointed counsel; (3) that counsel was not appointed; and (4) that the right to counsel was not waived. Riley satisfied this requirement. This shifts the burden to the state to show that counsel was provided or that counsel was waived.


author: DAVIS, Judge.

text:
    In the Interest of K.H., a child. N.T., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Services, Appellees.
    No. 2D08-2555.
    District Court of Appeal of Florida, Second District.
    May 29, 2009.
    Jackson S. Flyte, Regional Counsel, Second District, and Christine A. Trakas, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kelley R. Schaeffer, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.

      Jennifer S. Paullin of Guardian ad Litem Program, Orlando, for Appellee Guardian ad Litem Program.
   DAVIS, Judge.

N.T., the Mother, appeals the trial court’s order granting permanent placement of her daughter, K.H., to the maternal grandparents and terminating the supervision of the Department of Children and Family Services (the Department). Both the Department and the Guardian Ad Litem (GAL) have conceded error. Accordingly, we reverse.

The child was originally sheltered in 2006. At that time, however, the Department’s petition for dependency was dismissed, the Mother retained custody, and the Department maintained supervision. After a failed home study, the trial court ordered the Mother not to leave the jurisdiction with the child. The Mother, however, took the child to Ohio in violation of the previous court order. Upon her return with the child, contempt proceedings against the Mother were initiated and the child was sheltered. The Department again petitioned for dependency as to the Mother, and the petition again was dismissed after a hearing. The Mother moved to terminate supervision, but the court denied the motion and entered an order granting permanent placement of the child with the maternal grandparents.

On appeal, the Mother argues, among other things, that the trial court erred by applying the best interest standard to determine placement. The Mother maintains that section 39.521(3)(b), Florida Statutes (2008), specifically requires that the child be placed with the nonoffending parent “unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child.”

Both the Department and the GAL have conceded that the trial court’s use of the best interest standard was erroneous. See T.W. v. Dep’t of Children & Family Servs., 946 So.2d 1214, 1218-19 (Fla. 2d DCA 2006) (determining that “trial court abused its discretion by denying [Father’s] request for placement of his child ... because no evidence was presented that ‘such would endanger the safety, well-being, or physical, mental, or emotional health of his child’ ”); B.C. v. Dep’t of Children & Families, 864 So.2d 486, 491 (Fla. 5th DCA 2004) (“The non-offending parent’s presumptive right to custody is mandatory and not subject to a separate determination of the child’s best interests.”).

Because the child here has never been adjudicated dependent as to the Mother, we agree and reverse and remand for the trial court to hold a hearing to determine whether placement with the Mother would endanger the health, safety, or well-being of the child. See § 39.521(3)(b). Prior to the hearing, the court should first determine whether it even has jurisdiction to determine permanent placement of the child in light of the dependency determination as to the child’s father or whether the court’s previous dismissal of the last petition for dependency, filed only as to the Mother, would preclude such a determination. See § 39.521(1) (“A disposition hearing shall be conducted by the court, if the court finds that the facts alleged in the petition for dependency were proven in the adjudicatory hearing....”).

Reversed and remanded.

WALLACE and CRENSHAW, JJ, Concur.

      . The child was separately adjudicated dependent as to her father.


text:
    In the Interest of A.M., a child. A.M., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D08-6133.
    District Court of Appeal of Florida, Second District.
    May 29, 2009.
    David A. Dee, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

A.M., the Father, challenges the trial court’s order adjudicating his four-month-old child, A.M., dependent. The Department correctly concedes error because the only evidence presented below to support an adjudication of dependency as to the Father was inadmissible hearsay. As such, the evidence presented below was insufficient, and we must reverse. See R.S. v. Dep’t of Children & Families, 881 So.2d 1130, 1132 (Fla. 4th DCA 2004) (“[Rjeversal is required where the evidence is legally insufficient to sustain the findings of the trial court.”).

Reversed.

FULMER and SILBERMAN, JJ., Concur.


author: DECUIR, J.,

text:
    Emile David LaBORDE, II, et al. v. SHELTER MUTUAL INSURANCE CO., et al.
    No. CW 11-00956.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 27, 2011.
    Rehearing Denied Dec. 7, 2011.
    Blake R. David, Lafayette, LA, for Emile David LaBorde, II, Goldie Lee La-Borde, Leandra Marie LaBorde.
    Thomas Reginald Hightower, Jr., Michael Scott HarPer> Lafayette, LA. for Shelter Mutual Insurance Co., William T. Mills, David Matthew Mills.
   \,WRIT GRANTED AND MADE PEREMPTORY.

At issue in this writ is the Motion In Limine filed by Defendants to exclude information retrieved from “the black box” or any expert reports based on said information. The Event Data Recorder, “the black box”, was installed by the vehicle manufacturer. It records data just prior to a vehicle crash and may include vehicle speed, engine speed, percentage of throttle and braking information. In this case the printed data was generated by software that is available from the manufacturer.

Permission was given by the driver to obtain “the black box”. Deputy Lantia of the Lafayette Parish Sheriffs Department kept custody and took the box to the Louisiana State Police to have them download the recorded data using a Ventronix Corp. Crash [ 2Pata Retrieval System (CDR) which generated a report. “The black box” was lost thereafter. The trial judge does not mention gaps in the chain of custody.

Defendants’ expert testified that there was no way to “reflash” the computer chip in the box and alter the resulting data file. Data report information as to the issues of reliability go to the weight, not the admissibility, of the data from the EDR, and each expert should be able to evaluate this evidence for the trier of fact.

In this case Plaintiffs’ expert says the printout is sufficient and accurate. Defendants’ expert says the printout is not enough and that, since the black box is no longer available, the printout should be excluded.

Many other states have found black box evidence to be reliable: Commonwealth v. Zimmermann, 70 Mass.App.Ct. 357, 873 N.E.2d 1215 (2007), Matos v. State of Florida, 899 So.2d 403 (Fla.Dist.Ct.App.2005), State of New Jersey v. Shabazz, 400 N.J.Super. 203, 946 A.2d 626 (Law Div.2005).

Evidence is usually accepted in relevant scientific fields which are not new or novel. Recording or downloading from the box is not novel and has been used in the automobile industry for over ten years. General acceptance of scientific principle or discovery form the basis for proposed expert testimony and does not require complete agreement over the accuracy of the test of infallibility. It encompasses an extraordinarily high level of proof based on prolonged controlled, consistent and valued experience.

For the foregoing reasons, we reverse the trial judge’s granting of the Motion In Limine on use of the EDR “the black box” printout. We find that there is sufficient evidence in the printout from “the black box” EDR, or expert testimony based upon it, to create an issue to be answered when the evidence is offered at trial. State v. Schmidt, 97-249 (La.App. 3 Cir. 7/29/97), 699 So.2d 448, 452. Therefore, we remand this matter for further proceedings in accordance with this court’s ruling herein.

DECUIR, J.,

dissents and assigns written reasons.

I find no abuse of discretion in the trial court’s ruling granting the motion in li-mine. I find that the accuracy of the event data recorder printout is questionable for the following reasons. The event data recorder was removed from the Mills vehicle two weeks after the accident. The vehicle was not secured in a police impound yard, but was stored by a towing business following the accident. The officer who removed the event data recorder from the vehicle had no training on how to properly remove the recorder. The Defendants’ expert testified that the vehicle should have been photographed, the recorder exposed and photographed in its place before it was removed, and the recorder’s serial number photographed for identification purposes. The officer also kept the recorder in his vehicle’s trunk for two weeks before it was 1 .¡brought to a state police office for downloading. The Defendants’ expert stated that since the data file within the recorder is electronic, it is possible to alter or corrupt the crash data within the recorder by improper handling of the recorder. In sum, the recorder was not treated as evidence and a proper chain of custody was not maintained.

As to the printout itself, I find that it raises questions of reliability. The vehicle identification number on the printout was entered manually by the operator of the software program during the download process because the recorder itself does not contain the VIN number of the vehicle into which it is placed. The printout was downloaded using a different version of the vehicle manufacturer’s software than was used to actually print the document. In addition, I find that the printout cannot be verified since the location of the event data recorder containing the original data is not known and the computer records that would show that the data was properly downloaded, interpreted and generated are no longer available. Without these items, the Defendants’ expert witness cannot review and test the reliability of the software’s printout because the actual data itself is missing. More importantly, without the recorder, there is no way to determine whether the recorder had malfunctioned or been tampered with.

In conclusion, I find that the acquisition and handling of the event data recorder evidence in this case necessarily renders the printout at issue unreliable and inadmissible at trial. La.Code Evid. art. 901. Washington v. Aetna Life Ins. Co., 04-135 (La.App. 4 Cir. 10/13/04), 886 So.2d 572, writs denied, 04-2803 (La.3/11/05), 896 So.2d 63, and 04-2753 (La.3/11/05), 896 So.2d 75.

Therefore, I would deny the writ finding no abuse in the trial court’s discretion.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana in the Interest of S.C.D., L.A.D., J.E.D., S.L.D., and I.S.D.
    No. 46,881-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Kimberly S. Smith, State of Louisiana, Department of Children and Family Services, for Plaintiff/Appellant.
    Joseph C. Seyler, Child Advocacy Program, Baton Rouge, LA, for Plaintiffs/Ap-pellees, Minor Children.
    John W. Wilson, Shreveport, LA, for Defendant/Appellee, Kristina London.
    George E. Harp, Shreveport, LA, for Defendant/Appellee, Stacy Dotie.
    Before BROWN, WILLIAMS, and GASKINS, JJ.
   BROWN, Chief Judge.

_JjIn this termination of parental rights case, the State of Louisiana has appealed from a part of the trial court’s judgment and the parents have answered the appeal seeking a reversal of the trial court’s judgment terminating their parental rights as to two of their five children. We affirm in part and reverse in part.

Facts and Procedural History

In February 2008, Kristina London and Stacy Dotie were living together with their five children in Shreveport, Louisiana. The children’s ages ranged from eight months to five years. The five minor children are identified as SCD, LAD, JED, SLD and ISD. On February 1, 2008, the children were removed from the home, and Kristina London and Stacy Dotie were arrested for abuse and neglect related to inadequate supervision, shelter, food and clothing. The conditions at the home were so extreme that the mother and father were charged by a bill of information with five counts of cruelty to juveniles (La. R.S. 14:93).

On May 11, 2009, both London and Do-tie pled guilty to three counts of cruelty to juveniles. At this time, London was sentenced to three years at hard labor on each count to run concurrently; the sentences were suspended and she was placed on supervised probation for two years. Dotie was sentenced to five and one-half years at hard labor on each count; he was given the benefit of concurrent sentencing and credit for time served.

The five children, all of whom have special needs, had been removed from the home by the State of Louisiana, Department of Children and Family Services (“DCFS”), placed in foster care and adjudicated to be [¡.children in need of care. The children were in foster care until April 2008, when guardianship was granted to London’s parents. Upon her release from jail in May 2009, London lived with her parents and the children sporadically for about three weeks before moving in with a boyfriend, Lorenzo Sherman, a man she had met at a bus stop two weeks earlier. She now has a sixth child with Sherman.

In June 2009, the five children were removed from their grandparents’ home because of abuse by their grandmother, and they were returned to foster care. At that time, the guardianship was revoked and in need of care proceedings were reinstated. On January 4, 2011, the state filed a petition to terminate the parental rights of both London and Dotie, who had relocated to Texas after he was paroled from prison in August 2010.

A hearing was held over a number of days in March, April and May 2011. Thereafter, the juvenile court found that the state had proven by clear and convincing evidence the grounds for termination of the parental rights of London and Dotie as to all five children under the provisions of La. Ch. C. arts. 1015(3), 1015(4)(b), and 1015(5). The court found, however, that termination of parental rights was in the best interest of only two of the children, LAD (now seven years old) and ISD (now three years old), stating “in particular, [because] of their availability and potential for adoption ...” Therefore, the court rendered judgment terminating the rights of the parents as to LAD and ISD. As to the other three children, the court reinstated the need of care case and maintained the children in foster care. Judgment was rendered on June 1, 2011, and signed and filed on June 16, 2011. The state |3now appeals asserting manifest error in the trial court’s ruling that termination was not in the best interest of SCD, JED and SLD. Both London and Dotie answered the appeal asserting that the judgment terminating their parental rights as to LAD and ISD and freeing them for adoption was manifestly wrong.

Discussion

To involuntarily terminate parental rights, the state must prove by clear and convincing evidence the existence of one of the statutory grounds for termination. La. Ch. C. art. 1035. Thereafter, the trial court must decide if termination is in the best interests of the child pursuant to La. Ch. C. art. 1037(B). The trial court’s findings as to whether a parent’s rights should be terminated will not be set aside in the absence of manifest error. State in the Interest of K.G. and T.G., 02-2886 (La.03/18/03), 841 So.2d 759.

La. Ch. C. art. 1015 sets forth the grounds for the involuntary termination of parental rights. The trial court found that the state proved by clear and convincing evidence the existence of the grounds for termination as set out in La. Ch. C. arts. 1015(3), 1015(4)(b), and 1015(5). Those articles state, in pertinent part:

(3) Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes ... grossly negligent behavior below a reasonable standard of human decency ...
(4) Abandonment of the child by placing him in the physical custody of a nonpar-ent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
|4(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

Article 1015(3) requires misconduct of the parent toward the child that constitutes grossly negligent behavior below a reasonable standard of human decency. In February 2008, London and Dotie were arrested and charged with five counts of cruelty to a juvenile. The charges were based upon criminally negligent mistreatment and neglect related to inadequate supervision, shelter, food and clothing. All five children were removed from the home and adjudicated children in need of care. Both mother and father pled guilty to three felony counts of cruelty to a juvenile.

La. R.S. 14:98 provides:

A. Cruelty to juveniles is:
(1) The intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.

London and Dotie pled guilty to cruelty to juveniles, a felony that requires intentional or criminally negligent neglect causing “unjustifiable pain or suffering.” La. Ch. C. art. 1015(3) requires misconduct which constitutes “grossly negligent behavior,” which is intended to mean | .¡behavior which exceeds ordinary negligence and which approaches criminal negligence. In Interest of J.L.N., 27,568 (La.App.2d Cir.06/21/95), 658 So.2d 272. The convictions of both parents supplied the proof of criminal or gross mistreatment and neglect.

Both London and Dotie failed to make any significant contribution to the children’s care and support within the six months preceding the filing of the petition to terminate. Notably, Christmas was during the month prior to the state filing its petition, and neither London nor Dotie gave any of the children a gift. London and her boyfriend testified, however, that she was paying child support when she was able. She stated that she was unable to pay the full amount every month, but that she paid as much as she could when she could. London’s self-serving testimony is hardly proof of a significant contribution.

Dotie admitted that he has never paid child support. We note that Dotie was incarcerated until August 2010, and this date was less than six months prior to the state’s filing the termination petition. However, incarceration resulting from a one’s own actions is not necessarily a defense for a parent’s failure to support his children. See State ex rel. J.T. v. J.M., 46,090 (La.App.2d Cir.12/12/10), 56 So.3d 1009.

Lack of parental compliance with a case plan may be evidenced by one of the following factors: (1) failure to attend court-approved scheduled visitations; (2) failure to communicate with the child; (3) failure to keep the department apprised of his whereabouts and significant changes affecting his ability to comply with the case plan; (4) failure to contribute to the costs | fiOf the child’s foster care, if ordered by the court when approving the case plan; (5) failure to comply with the required program of treatment and rehabilitation services provided in the case plan; (6) lack of substantial improvement in redressing the problems preventing reunification; or (7) persistence of conditions that led to removal or similar potentially harmful conditions. La. Ch. C. art. 1086(C).

Moreover, lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one of the following: any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior; a pattern of repeated incarceration that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time; or any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child for an extended period of time, based on expert opinion or an established pattern of behavior. La. Ch. C. art. 1036(D).

The state presented evidence that all five children are special needs children as a result of their mental deficiencies. Dr. Susan Vigen, accepted as an expert in the area of psychology, diagnosed the children as victims of neglect, and testified that neglect early in a child’s developmental period can cause many of the deficiencies present in London’s and Dotie’s | children. Specifically, Dr. Vigen testified that the children had low I.Q.s, developmental delays, cognitive speech and language skill deficits, and other behavioral issues. To be able to care for such children, Dr. Vigen stated, the caretaker would have to be highly involved and able to provide an increased amount of attention to each child’s development.

On these issues, Anthony Williams, London’s counselor who was accepted by the court as an expert in mental health counseling, testified. Based upon his counseling sessions with London, he concluded that, without a great deal of assistance, London did not have the ability to provide the care and attention needed for these children.

As to London’s compliance with her case plan, the testimonies of Erin Jones, Kristina London’s visitation coach, Aretha Glover, the CASA volunteer, and Selena Michael-Shine, the DCFS foster care case worker, revealed that London was not progressing as quickly as she should, and that they were most concerned with her inability to adequately care for all five children and their special needs. All of the witnesses testified that London attended and completed the classes and counseling sessions required of her. Nonetheless, they all stated that she was unable to sufficiently and consistently put into practice what she was taught. Another focal point of the case plan that London continuously failed to comply with was providing adequate housing. We note that immediately prior to the petition being filed London and her fiancé leased and moved into a three bedroom home. While this is clearly a positive step, the fact that it took more than one and one-half years to secure this housing evidences a lack of motivation on London’s Ispart to successfully complete her case plan. Overall, London’s lack of substantial improvement was sufficiently proven through the testimony of the expert witnesses, case workers, visitation coach, and CASA volunteer.

Regarding Dotie’s compliance with his case plan, both he and the state’s witnesses testified that he had not completed his parenting classes, substance abuse program, or anger management classes.

The grounds for termination of parental rights were met in this case. Both parents were convicted of grossly negligent behavior against these children, failed to significantly contribute to the care and support of these children and have demonstrated that they are incapable of meeting the special needs of the children. We cannot find that the trial court committed manifest error in holding that the state proved by clear and convincing evidence the existence of grounds for termination of parental rights pursuant to the Louisiana Children’s Code.

After finding that grounds for termination existed, the trial court nonetheless found that it was not in the best interest of SCD, JED, and SLD to terminate London’s and Dotie’s parental rights. With this we have to disagree. The only factor that distinguished these children was that ISD and LAD were in adoptive placement and their siblings were not.

La. Ch. C. art. 1001 provides:

The purpose of this Title is to protect children whose parents are unwilling or unable to provide safety and care adequate to meet their physical, emotional, and mental health needs, by providing a judicial process for the termination of all parental rights and responsibilities and for the certification of the child for adoption. In all proceedings, the primary concern is to secure the best interest of the child if a ground justifying termination of parental rights is proved. Termination of 1 ¡parental rights is to be considered the first step toward permanent placement of the child in a safe and suitable home, and if at all possible, to achieve the child’s adoption. The procedural provisions of this Title shall be construed liberally. The proceedings shall be conducted expeditiously to avoid delays in resolving the status of the parent and in achieving permanency for children. (Emphasis added).

In In re State ex rel. W.M.O., 04-2025 (La.App.4th Cir.06/01/05), 905 So.2d 1164, 1168, the court stated:

LSA-Ch. C. article 603(20) provides that permanent placement means the return of the legal custody of a child to his parent(s); placement of the child with adoptive parents pursuant to a final decree of adoption; or placement of the child with a legal guardian. LSA-Ch. C. article 1003(11) defines permanent placement as either placement of the child with a legal guardian or placement of the child with adoptive parents, pursuant to a final decree of adoption. Thus, permanent placement does not include leaving children permanently in foster care. The primary goal is to reunite the family. However, if reunification is not possible, termination is appropriate to free the child or children for adoption. State in the Interest of J.M., 02-2089, p. 16 (La.1/28/03), 837 So.2d 1247, 1257.
Despite her efforts, it is clear that [the mother] is incapable of meeting the special needs of her children. Accordingly, we conclude that the evidence clearly and convincingly reveals that it is in the best interest of R.M.O. and W.M.O. to terminate [the mother’s] parental rights. The trial court erred in not doing so. Therefore, the trial court’s decision is hereby reversed, and E.O.’s parental rights are terminated.

Considering the slow progress made by London and the highly unlikely probability of her ever being able to provide the heightened level of involvement and attention that these special needs children will require, the trial court’s choice not to free SCD, JED, and SLD for adoption, but rather to keep them in foster care indefinitely, is clearly not in their best interest. As such, we must reverse this determination.

| inConclusion

IT IS ORDERED ADJUDGED AND DECREED that the portion of the judgment of the trial court terminating the parental rights of Kristina London and Stacy Dotie as to LAD and ISD is affirmed.

IT IS FURTHER ORDERED ADJUDGED AND DECREED that the portion of the judgment of the trial court maintaining Kristina London’s and Stacy Dotie’s parental rights to SCD, JED, and SLD is reversed and Kristina London’s and Stacy Dotie’s parental rights to SCD, JED, and SLD are hereby permanently and irrevocably terminated, and all children are freed for adoption.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: PEATROSS, J.

text:
    Bridget GOBER and Oscar Gober, Individually and on Behalf of their Minor Daughter, Emily Gober, Plaintiffs-Appellants v. WALGREEN LOUISIANA COMPANY, INC., et al., Defendants-Appellees.
    No. 46,730-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.
    Rehearing Denied Dec. 8, 2011.

      Crawford & Ogg, by Brian E. Crawford, Monroe, LA, for Appellants.
    Blue Williams, L.L.P., Metairie, LA, by Kurt S. Blankenship, Richard E. Gruner, Jr., Christopher G. Otten, Perry S. Lee, for Appellees.
    Before STEWART, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

_|_1In this tort action against Walgreen Louisiana Co., Inc. (“Walgreens”) for damages allegedly sustained by Bridget and Oscar Gober’s minor daughter, Emily, as the result of a mis-filled prescription of the diuretic Lasix, the jury found Walgreens liable and awarded damages in the amount of $35,000. Specifically, the jury found that the Gobers failed to prove that the mis-filled prescription was the cause of Emily’s long-term neurocognitive dysfunction; rather, the damages awarded were for the short-term dehydration symptoms suffered by Emily from the overdose. The Gobers appeal, arguing that it was reversible error for the judge to refuse to charge the jury with the Housley presumption, infra, which could have allowed the jury to presume causation. Finding no manifest error in the trial judge’s determination that the presumption was inapplicable and, thus, no error in the jury charge as given, we affirm.

FACTS

Emily Gober was born prematurely on September 16, 1999. She suffered from pulmonary atresia, meaning that she had no pulmonary valve connecting her heart and lungs. She was in NICU at Tulane for four months following her birth, where shunts were placed to create a conduit from her heart to her lungs. Emily required speech and physical therapy, but did not have neurocognitive problems. In 2001, Emily received an artificial pulmonary valve. The surgery was successful and without complication. On May 2, 2008, at age 8, since she had grown physically, Emily underwent a second pulmonary valve replacement. Again, the surgery was a success with no complications.

|2Following the surgery of May 2, 2008, cardiologist Dr. Robert Ascuitto prescribed Emily a low dose of Lasix, a mild diuretic, to prevent fluid buildup and retention around the heart and lungs. The prescribed dosage was 8 ml. twice a day. The pharmacist at Walgreens mis-filled the prescription, resulting in Emily receiving five times the prescribed amount of Lasix beginning on the evening of May 12, 2008. Walgreens conceded that the prescription was mis-filled.

During the following weeks, Emily showed signs of weakness and lethargy and the Gobers contacted Dr. Ascuitto by phone advising him that “something was not right.” Dr. Ascuitto saw Emily on May 23, 2008. At that time, Emily should have had 160 ml. of Lasix, but she had ingested 960 ml. due to the mis-filled prescription. The Gobers testified that Emily was exhibiting cracked lips, excessive urination, excessive fluid consumption, confusion, sunken eyes and altered mental state. During the examination by Dr. Ascuitto, however, Emily’s vital signs, including her electrolytes, were within normal limits. Her weight was slightly down from her pre-operative weight. Dr. Ascuitto ordered discontinuation of the Lasix and reh-ydration at home, advising the family to make sure that Emily drank fluids.

Ten days later, the Gobers took Emily to the pediatrician with no complaints of mental or neuroeognitive problems. Two and one-half months later, on August 7, 2008, Emily saw neurologist Dr. Aristó-teles Pena-Miches. At this time, the Gob-ers complained of Emily’s mental slowness and altered mental state. Dr. Pena recommended a psychologist Revaluation and follow-up by him in three weeks; however, the record does not reflect that the Gobers followed either of these recommendations. Ten months later, and after suit was filed, the Gobers returned to Dr. Pena with complaints of Emily’s regressed mental acuity. Testing, however, showed cognitive functioning to be normal, with a diagnosis of Attention Deficit Disorder.

On November 19, 2008, the Gobers, individually and on behalf of Emily, filed the instant suit for damages against the pharmacist and Walgreens. There was no dispute that Emily had experienced some degree of neuroeognitive impairment and Walgreens conceded that the pharmacist mis-filled the prescription. Thus, the sole issue at trial was causation.

During a two-week trial, the Gober family, including Bridget and Oscar and Emily’s grandmother and sister, along with school personnel, testified regarding Emily’s decline in academic/cognitive function. According to the testimony, Emily’s symptoms included short-term memory loss, inability to focus, decline in study habits and sharp decline in academic performance. The family testified that the change in Emily was an abrupt occurrence that coincided with the overdose of Lasix. The family further testified, and Emily’s math teacher and tutor corroborated that, after the May 2 surgery, Emily had trouble learning and retaining concepts and that Emily was often in a “fog” or “glazed over.”

Dr. Ascuitto testified as to the dehydration. His notes indicate that, in September 2009, he reported to Emily’s pediatrician that the episode of dehydration she had suffered from the Lasix overdose was entirely resolved. [ 4He noted that Emily was experiencing trouble in school and was in a special class and that there may be ADD concerns. He further noted that cognitive dysfunction is a “universal situation” found in patients that have undergone multiple complex cardiac repairs. Dr. Ascuitto deferred to the treating neurologist for an opinion on cause of the neurological deficits experienced by Emily.

Dr. Pena also testified. He opined that the neuroeognitive problems were caused by an acute event. Dr. Pena stated that the acute event was not the surgery because she had quickly recovered her cognitive functions after both surgeries. Had the cause been the surgery, the problems would have manifested within 72 hours of the surgery. Dr. Pena related Emily’s sudden brain dysfunction to the overdose of Lasix. In his opinion, Emily suffered from isonatremic dehydration, an episode of dehydration which attacked the brain and central nervous system. He further opined that this condition is permanent; Emily would likely graduate from high school with assistance, but would not be able to complete higher levels of education.

The Gobers also presented two additional non-treating expert witnesses who described the symptoms of dehydration suffered by Emily and that she suffered a brain injury from some external cause.

Walgreens presented expert testimony regarding potential alternative causes of the onset of Emily’s neurological dysfunction. The three experts to testify on behalf of Walgreens were Dr. Robert Marshall, pediatric critical care physician and pharmacologist, Dr. Gil Wernovsky, pediatric cardiologist, and Dr. Gary Clark, pediatric neurologist. Each of these | ¿doctors testified that the mild dehydration experienced by Emily was not the cause of her brain dysfunction. Several other likely causes were presented by Wal-greens’ experts, including the heart defect itself, the stroke Emily suffered as an infant, the multiple hypoxic episodes she suffered in the NICU and the multiple cardiac procedures she underwent in her first eight years of life, including the surgery of May 2, 2008.

At issue is the trial judge’s decision not to include the instruction known as the The Housley presumption, which provides as follows:

In determining the causal relationship between the incident and subsequent injury, plaintiff must: (1) prove that she was in good health, or free of certain symptoms, prior to the incident allegedly causing the plaintiffs injury; (2) show that subsequent to the incident, symptoms of the alleged injury appeared and continuously manifested themselves after the incident; and, (3) demonstrate through medical evidence, circumstantial evidence or common knowledge, that there was a reasonable possibility of causation between the incident and the alleged injury.
If the plaintiff can show these three elements, then plaintiff is entitled to a presumption of causation and the burden of proof shifts to the defendant to prove some other particular incident could have caused the injury complained of.
If the plaintiff cannot show these three elements, the plaintiff is not entitled to a presumption of causation and the burden of proof does not shift to the defendant.

Housley v. Cerise, 579 So.2d 973 (La.1991); Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977).

Walgreens objected to the inclusion of the Housley presumption, arguing that there was competing evidence of causation to be presented; and, thus, the Housley presumption was not applicable. After hearing argument and accepting memoran-da, as previously stated, the trial judge opted not to include the Housley presumption in the jury charge, and instructed the jury |(jWith the usual tort/negligence law and the preponderance of the evidence burden of proof.

As previously stated, the jury found Walgreens liable for the short-term damages suffered by Emily due to the dehydration from the overdose and awarded $35,000 in damages. The jury further found that the long-term neurocognitive damages were not caused by the overdose of Lasix. This appeal by the Gobers ensued.

DISCUSSION

The sole issue before us is whether the trial judge correctly charged the jury, ie., whether or not it was error for the trial judge to refuse to include the Housley presumption in the jury charge. We find no error in the charge to the jury in this case.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Maranto v. Goodyear Tire & Rubber, 94-2603 (La.2/20/95), 650 So.2d 757; Bradshaw v. Brookshire Grocery Co., 38,960 (La.App.2d Cir.10/27/04), 886 So.2d 623. Proof must be by a preponderance of the evidence. Maranto v. Goodyear Tire & Rubber, supra. The test for determining the causal relationship is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Id.

To obtain the benefit of the presumption of causation described in Hous-ley v. Cerise, supra, the plaintiff must show (1) that he was in good health prior to the accident at issue, (2) that subsequent to the accident, |7symptoms of the alleged injury appeared and continuously manifested themselves afterward and (3) through evidence, either medical, circumstantial or common knowledge, a reasonable possibility of causation between the accident and the claimed injury. Peters v. Williams, 40,403 (La.App.2d Cir.12/14/05), 917 So.2d 702. The application of this presumption to the facts is a question of fact subject to manifest error review. Littleton v. Richardson Medical Center, 42,082 (La.App.2d Cir.4/4/07), 954 So.2d 812, citing Detraz v. Lee, 05-1263 (La.1/17/07), 950 So.2d 557. In Littleton, this court found no manifest error in the OWC’s refusal to allow the claimant the benefit of the Housley presumption where there was conflicting medical evidence about whether there was a reasonable possibility of causal connection between the accident and the disabling condition. In that case, there was “evenly balanced” evidence presented by the claimant and the employer regarding the cause of claimant’s condition. Thus, the claimant was not entitled to the presumption of causation.

Likewise, in the case sub judice, there was medical testimony presented regarding the cause of Emily’s neurocognitive dysfunction from both the Gobers and Walgreens. The Gobers relied on the testimony of Dr. Pena that the overdose of Lasix resulted in isonatremic dehydration which affected her brain and central nervous system. Dr. Pena further testified that this severe dehydration caused the “catastrophic cognitive injury” sustained by Emily. We note that this positive evidence of | ¡^causation, in the absence of any contradictory testimony, would itself obviate the need for the Housley presumption.

Even if the presumption were applicable, however, Walgreens presented three experts who testified as to various other probable causes of Emily’s neurological condition. Dr. Marshall, clinical pharmacologist, opined that he has given the increased dose of Lasix ingested by Emily to other critically ill pediatric patients following similar surgeries. He further testified that Lasix does not affect the brain; rather, the greatest risk of neurological damage is found in the exposure to surgical procedures such as Emily’s second complex heart procedure. Dr. Marshall further testified that the neurological deficits from such procedures can manifest immediately after the procedure or later. Next, Dr. Wernovsky testified that children with heart defects are at greater risk for developing neurocognitive deficiencies. Like Dr. Marshall, Dr. Wernovsky has prescribed the dosage of Lasix ingested by Emily without incident. He testified that, in his opinion as a pediatric cardiologist, the Lasix was not the cause of Emily’s injury. Third, neurologist Dr. Clark testified that Emily was only mildly dehydrated by the overdose of Lasix and that the most likely cause of Emily’s cognitive problems was that she had undergone multiple bypass procedures. Finally, we note that, while Emily’s cardiologist, Dr. Ascuitto, testified that he defers to the neurologist regarding the cause of her neurocognitive problems, in his September 2009 report to her pediatrician, he opined that her cognitive dysfunction was most likely a result of the May 2008 surgery. As previously mentioned, Dr. Ascuitto further noted in |flthat report that such problems seem to be a “universal situation” following multiple complex cardiac repairs.

In light of the above-described conflicting evidence regarding causation of Emily’s long-term neurocognitive dysfunction, we find no manifest error in the trial judge’s decision not to include the Housley presumption in the jury charge. Littleton v. Richardson Medical Center, supra.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed at the cost of Plaintiffs Bridget Gober and Oscar Gober, Individually and on behalf of their minor daughter, Emily Gober.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, CARAWAY & PEATROSS, JJ.

Rehearing denied.


author: EDWIN A. LOMBARD, Judge.

text:
    AMERICAN AUTO BROKERS, INC. v. CANAL INDEMNITY COMPANY, Premium Parking Services, L.L.C., and ABC Insurance Company.
    No. 2011-CA-0599.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 2011.

      Lisa Brener, Lugenbuhl Wheaton Peck Rankin & Hubbard, New Orleans, LA, for Plaintiff/Appellant.
    René S. Paysse, Jr., Scott R. Huete, Johnson Johnson Barrios & Yacoubian, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

liThe plaintiff, American Auto Brokers, Inc., appeals the trial court’s judgment granting a motion for summary judgment in favor of the defendant, Canal Indemnity Company. For the reasons set forth below, we affirm.

Relevant Facts and Procedural History

The plaintiff is a dealer of previously owned vehicles located on 1150A Canal Boulevard in Thibodaux, Louisiana. Shortly before Hurricane Katrina, on or about August 25, 2005, one of the plaintiffs vehicles was brought to Sewell Cadillac-Chevrolet in Orleans Parish, Louisiana for detailing services. On or about August 27, 2005, four other vehicles belonging to the plaintiff were parked at Premium Parking Service, L.L.C. in Orleans Parish, Louisiana while in transit to auction. After Hurricane Katrina hit on August 29, 2005, only one vehicle was found, wrecked and damaged beyond repair, at Premium Parking Service, L.L.C.

On August 28, 2006, the plaintiff filed suit in the Civil District Court for the Parish of Orleans seeking compensation for damages and losses of the five vehicles caused by the alleged negligence on the part of named defendants: Premium Parking Service, L.L.C., Premium Parking Service, L.L.C.’s alleged [ pliability insurer, ABC Insurance Company, “and/or in the alternative,” its own insurance company, Canal Indemnity Company.

On April 25, 2008, Canal Indemnity Company moved for summary judgment seeking a dismissal of all claims alleged by the plaintiff, asserting that the insurance policy does not cover the loss. The trial court granted the motion on July 17, 2008, dismissing all claims against the defendant with prejudice. It is from this judgment that the plaintiff appeals.

Standard of Review

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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 law.” La.Code Civ. Proc. art. 966(B). The initial burden of producing evidence at the hearing on the motion for summary judgment is on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Schultz v. Guoth, 10-0343, p. 4 (La.1/19/11), 57 So.3d 1002, 1006; citing Samaha v. Rau, 07-1726, p. 4 (La.2/26/08), 977 So.2d 880, 883. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of material factual dispute mandates the granting of the motion.” Id.; (citations omitted).

“A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether [¡¡summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Ran, 07-1726, pp. 3-4, 977 So.2d at 882-83.

Discussion

The appellant assigns as error: (1) the trial court erred in holding that Exclusion 4(b) of Section IV (Physical Damage Coverage) of the Canal Indemnity Policy excluded coverage for the plaintiffs claim; (2) the trial court erred in failing to find that Exclusion 4(b) of Section IV (Physical Damage Coverage) of the Canal Indemnity Policy was susceptible of two interpretations and/or that the intent of the parties could not be determined; (3) the trial court erred in failing to find that there was a reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motions, under which coverage could be afforded; and (4) the trial court erred in failing to admit parol evidence to clarify the ambiguity in the exclusion and/or to show the intention of the parties.

In this case, Canal Indemnity Company asserts that the policy between the parties does not provide coverage for the plaintiffs alleged losses, pursuant to the language contained in the exclusion in the Physical Damage coverage section.

The language of the Canal Indemnity Company policy provides, in pertinent part, as follows:

JjSECTION IV — PHYSICAL DAMAGE COVERAGE

B. Exclusions
4. If your business is shown in the Declarations as an “auto” dealership, we will not pay for:
b. “Loss” to any covered “auto” displayed or stored at any location not shown in Item Three of the Declarations if the “loss” occurs more than 45 days after your use of the location begins.

In response, the plaintiff submits the affidavits of Buddy Naquin, the plaintiffs president, and Caroliss Gayle Wallace, the plaintiffs insurance agent who attest that they interpret the language of the policy to require a declaration of an alternate location for a stored vehicle only when a vehicle would be stored for a period in excess of forty-five (45) days.

“An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code.” Louisiana Ins. Guar. Ass’n v. Interstate Fire and Cas. Co., 630 So.2d 759, 763 (La.1994). Louisiana Civil Code article 2046 provides that, “when the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” 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. Civ.Code art. 2047; Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1028-1029. When the language of an insurance policy is clear, courts lack the authority to change or alter its terms under [5the guise of interpretation. Louisiana Ins. Guar. Ass’n v. Interstate Fire and Cas. Co., 630 So.2d at 764-65. The determination of whether a contract is clear or ambiguous is a question of law. Id.

To the extent that the plaintiff suggests that this court should consider the intent of the parties in interpreting the contract, the plaintiff is incorrect. The language of the policy is clear and unambiguous, clearly stating that the defendant does not provide coverage for vehicles displayed or stored at locations not listed under Item Three in the policy if the loss occurs more than forty-five (45) days after the plaintiffs use of the scheduled location commenced.

It is undisputed that Premium Parking Service, L.L.C. and Sewell Cadillac-Chevrolet are not listed under Item Three of the policy. Item Three lists only the plaintiffs Thibodaux, Louisiana business location.

Accordingly, the issue is when the plaintiffs use of these locations (Premium Parking Service, L.L.C. and Sewell Cadillac-Chevrolet) began. The defendant submits a copy of the plaintiffs responses to supplemental interrogatories which specifically states that although the exact date it began using the services of Premium Parking Service, L.L.C. is unknown, the first check for parking issued by the plaintiff to Premium Parking Service, L.L.C. was on or about June 30, 2004. Similarly, the plaintiff stated that although the exact date it began using the services of Sewell Cadillac-Chevrolet is unknown, it believed that the “detailing services at Sewell Cadillac-Chevrolet were first used by plaintiff on or about the year 2002.” Therefore, it is undisputed that the alleged loss occurred more than forty-five (45) days after the plaintiff began its use of Premium Parking Services, L.L.C. and Sewell Cadillac-Chevrolet.

LThe policy at issue only provides coverage for vehicles on the plaintiffs business location at 1150A Canal Boulevard in Thi-bodaux, Louisiana or for vehicles temporarily parked elsewhere. It does not provide coverage for vehicles that are parked at any location the plaintiff has used repeatedly for more than forty-five (45) days.

Accordingly, we find that there is no genuine issue of material fact. The clear language of the policy excludes coverage for vehicles displayed or stored at locations not listed under Item Three in the policy if the loss occurs more than forty-five (45) days after the plaintiffs use of the scheduled location commenced.

The plaintiff submits no evidence in response to the defendant’s motion for summary judgment. Consequently, we find that the defendant carried its burden of proof on summary judgment entitling Canal Indemnity Company a dismissal from this matter.

Conclusion

Upon de novo review, we find no genuine issue of material fact exists and Canal Indemnity Company is entitled to summary judgment. Accordingly, the decision of the trial court in granting summary judgment and dismissing all claims against Canal Indemnity Company is affirmed.

AFFIRMED