text:
    Mariah Arica CHEEK, Former Wife, Appellant, v. Brian R. HESIK, Former Husband, Appellee.
    No. 1D11-2716.
    District Court of Appeal of Florida, First District.
    Nov. 1, 2011.

      Michael J. Korn and Jordan R. Biehl of Korn <& Zehmer, P.A., Jacksonville, and Tatiana R. Salvador of Rogers, Towers P.A., Jacksonville, for Appellant.
    Cindy L. Lasky of The Lasky Law Firm, Jacksonville, for Appellee.
   PER CURIAM.

Appellant, the former wife, appeals 1) a final order finding her in direct criminal contempt and sentencing her to five days in jail for lying under oath in this proceeding, 2) a non-final order awarding Appel-lee, the former husband, 150 days of makeup time-sharing with the parties’ minor child, and 3) a related non-final order giving immediate physical custody of the child to the former husband for the makeup time-sharing. We affirm the criminal contempt order without further comment, and for the reasons that follow, we reverse the two non-final orders (collectively “the makeup time-sharing orders”) and remand for further proceedings consistent with this opinion.

The parties were divorced in Illinois in March 2007. The former wife was granted custody of the parties’ minor child (now age 7) and the husband was granted visitation under a phased plan. The former wife subsequently relocated to Florida with the child, and in July 2007, she domesticated the Illinois dissolution judgment in St. Johns County. In April 2009, with the consent of the parties, the case was transferred to Duval County where the former wife had moved with the child. The former husband still resides in Illinois.

There have been significant problems between the parties concerning time-sharing since at least April 2008, when the former wife was found in contempt by the circuit court in St. Johns County for “failing to honor court order visitation in this cause.” Since that time, the former husband has filed a number of motions for contempt, alleging that the former wife has continued to deny his visitation and that she has alienated the child from him. Most pertinent to this appeal are the sixth and seventh motions for contempt.

The sixth motion for contempt, filed in September 2010, alleged, among other things, that the “Former Wife has continued to willfully and intentionally deny the Former Husband’s visitation with the parties’ child” and that, as a result, “the Former Husband has seen the child only once, briefly since 2009.” The motion asked the court to find the former wife in contempt for denying his court-ordered visitation with the child and to “make arrangements for makeup visitation” and order “any other sanctions that this Court deems appropriate, including temporary modification of custody.”

In October 2010, after a hearing, the trial court deferred ruling on the motion, but admonished the wife to cooperate with the parenting coordinator that had been appointed by the court and to not alienate the child from the former husband. In January 2011, after hearing evidence of the former wife’s continued failure to participate in the parenting coordinator process, the trial court again deferred ruling on the motion, and advised the former wife that the court was giving her “a last chance” to participate in the process and comply with the pi'ior orders concerning visitation. The trial court also warned the former wife that if the court found that she “is putting up roadblocks to this process or to the Former Husband having contact with the minor child, the Court will consider several remedies, including the award of fees and sanctions against the Former Wife, and even the change in custody threatened in prior orders.”

In February 2011, the former husband filed a seventh motion for contempt. The motion alleged that the former wife continued to deny visitation and alienate the child from the former husband. Like the sixth motion, the seventh motion asked the court to find the wife in contempt and impose remedies, including “makeup visitation” and “a temporary modification of custody.”

On May 2, 2011, after an evidentiary hearing on the motion, the trial court entered an order finding that “[fjor a period of approximately three years, the former Wife has prevented all or substantially all contact between the former [Husband] and the parties’ minor child.” The court also found that the former wife’s actions deprived the former husband of at least 150 days of time-sharing with the minor child and that there was no justification for the former wife’s actions. The court determined that the former husband was entitled to “make-up time-sharing,” and ordered it to occur as follows:

Beginning immediately and continuing until further order of the Court, but in no case for less than 150 days, the former Husband shall have and exercise 100% time-sharing with the minor child. The former Wife’s contact with the minor child shall be limited to telephonic contact of not more than 15 minutes’ duration not oftener than every 4th day, at a reasonable time to be determined by the former Husband, who shall initiate the call.
The former Wife is expressly prohibited from criticizing the former Husband in her communications with the minor child, and shall not make any inquiry of the minor child concerning his health, diet, or medical treatment, nor shall she explain the change in the child’s residence except to state that the move was ordered by a judge.

The former wife filed a motion for reconsideration, arguing that the effect of this order and the related order giving the former husband immediate physical custody of the child was to substantially modify the existing custody arrangement without the requisite finding that the change was in the child’s best interest. The trial court summarily denied the motion, and this timely appeal followed.

The former wife does not seriously challenge, and we find no error in, the trial court’s finding that the former wife deprived the former husband of time-sharing with the minor child. The record is replete with competent substantial evidence of the former wife’s intentional violations of court orders directing her not to alienate the child from the former husband and requiring her to facilitate his time-sharing with the child. Indeed, it is apparent from the record that the former wife has little to no interest in the child having a meaningful relationship with the former husband and that she has disregarded her “affirmative obligation to encourage and nurture the relationship between the child and the noncustodial parent.” Schutz v. Schutz, 581 So.2d 1290, 1292 (Fla.1991) (explaining that this obligation “may be met by encouraging the child to interact with the noncustodial parent, taking good faith measures to ensure that the child visit and otherwise have frequent and continuing contact with the noncustodial parent and refraining from doing anything likely to undermine the relationship naturally fostered by such interaction”); see also § 61.13(2)(c)l., Fla. Stat. (“It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved .... ”).

Likewise, we find no error or abuse of discretion in the trial court’s determination that the former husband was entitled to makeup time-sharing, the purpose of which is “both to redress the wrong to the [noncustodial] parent and to effectuate compliance with the court’s authority.” LaLoggia-VonHegel v. VonHegel, 732 So.2d 1131, 1133 (Fla. 2d DCA 1999). We find no merit to the former wife’s claim that the trial court lacked the authority to order makeup time-sharing under the circumstances of this case.

First, the former wife’s trial counsel acknowledged in response to a direct question from the trial court that the former husband had requested makeup time-sharing in his motion and that the court had the authority to impose this remedy if it found that the former wife deprived the former husband of his time-sharing with the child. Second, it appears that the trial court was required to impose this remedy under the circumstances because section 61.13(4)(c), Florida Statutes (2010), unequivocally provides:

When a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the court:
1. Shall, after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the parent deprived of time-sharing. In ordering any makeup time-sharing, the court shall schedule such time-sharing in a manner that is consistent with the best interests of the child or children and that is convenient for the nonoffending parent and at the expense of the noncompliant parent, (emphasis added).
6. May, upon the request of the parent who did not violate the time-sharing schedule, modify the parenting plan if modification is in the best interests of the child.
7. May impose any other reasonable sanction as a result of noncompliance.

Nevertheless, we are compelled to reverse the makeup time-sharing orders because the trial court did not find that the manner in which the makeup time-sharing was imposed was in the best interest of the child, as is required by section 61.13(4)(c)l. Indeed, the trial court did not make any findings concerning the best interests of the child, either in its written orders or its oral rulings. This was error. See, e.g., LaLoggia-VonHegel, 732 So.2d at 1133 (reversing order changing custody to the father as a sanction for the mother thwarting the father’s visitation because the trial court did not find that the change was in the children’s best interest); Manuel v. Manuel, 489 So.2d 183 (Fla. 1st DCA 1986) (reversing order providing an extended visitation period to the father who was deprived of visitation by the mother because the trial court did not give any consideration to the child’s best interests or needs).

The best interests of the child are always the paramount concern in child custody and time-sharing matters. See § 61.13(2)(c), Fla. Stat. (“The court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child .... ”); see also Clark v. Clark, 825 So.2d 1016, 1017 (Fla. 1st DCA 2002) (stating that a court must “find, at a minimum, that its custody determination is in the best interests of the child”). This point is specifically stated several times in section 61.1S(4)(c), including in subpara-graph 1, which requires the makeup time-sharing to be scheduled “in a manner that is consistent with the best interests of the child.” See also § 61.13(4)(c)6., Fla. Stat. (permitting the court to modify the custody arrangements to remedy violations of the time-sharing schedule so long as the modification “is in the best interests of the child”). Thus, under section 61.13(4)(c), it is not enough that imposing makeup time-sharing is in the best interests of the child; the manner in which the time-sharing is imposed must also be in the child’s best interests.

The former husband argues that the trial court, through its orders, recognized that it is in the child’s best interests for the former husband be given an opportunity to develop his relationship with the child by giving him substantial time-sharing to make up for the time-sharing he was denied by the former wife. The problem, however, is that the trial court did not find that the manner in which the makeup time-sharing was imposed is in the best interests of the child, and to the extent that finding is implicit in the trial court’s orders, it is not supported by competent substantial evidence.

By granting the former husband immediate custody of the child and 100% time-sharing for a period of 150 days, the order not only changed the primary custody of the child from the mother to the father but it also relocated the child from Florida to Illinois in the middle of the school year. The former husband did not request the remedy imposed by the trial court; his trial counsel did suggest that a change in custody would be the only meaningful way for the former husband to rebuild his relationship with the child under the circumstances, but counsel argued that the change should be facilitated by an expert and that it should occur “gradually over the summer.” There was no evidence before the trial court concerning the impact on the child of having to move to a new state during the middle of the school year. Nor was there any evidence before the trial court as to how the child’s autism and other medical needs would be accommodated in Illinois.

Indeed, the only evidence before the trial court regarding the impact of this proceeding on the child was presented in context of the potential incarceration of the former wife for criminal contempt. In that regard, the former wife testified that she and the child had never been apart overnight and that if she was incarcerated, it “would be very detrimental and very scary to a little boy, much less an autistic child.” She also testified that the former husband is not well versed in the child’s medical care, that he does not believe there is anything wrong with the child, and that “he refuses to provide [the child] with the proper dietary and/or special accommodations that are needed.” Similarly, the child’s maternal grandmother, who lives with the former wife and the child, testified that it “would be detrimental to [the childj’s psyche” to have to spend time with the former husband without advance notice and time for the child to prepare himself. Additionally, the child’s therapist testified that the child is “very, very resistant, very, very anxious” about a relationship with the former husband, that the child “is very reactive to changes in his routine and stability,” and that any change in custody would be detrimental to the child “because of his autism spectrum disorder he does not respond well to changes in routine, to changes in his caretaking.”

Although a trial court is free to reject even unrebutted testimony, there must be some evidentiary basis for its findings. Here, the record contains no evidence that would support a finding that requiring the child to relocate to Illinois, even on a temporary basis, is consistent with the child’s best interests. Indeed, all of the testimony before the trial court concerning the child seems to establish that such an immediate and dramatic change in the child’s physical custody arrangement would be contrary to his best interests. Accordingly, on the present record, we conclude that the trial court erred in imposing makeup time-sharing the manner that it did.

This is not to say that the manner of makeup time-sharing imposed by the trial court is inherently unreasonable or inappropriate; indeed, we recognize the difficulty faced by the trial court in crafting a remedy that provides meaningful makeup time-sharing for an out-of-state father where the record reflects that the mother has refused to comply with court orders and has shown little to no interest in the child having a relationship with his father. However, as explained above, before ordering a temporary change of custody or any other type of makeup time-sharing, the trial court was required to consider the best interests of the child. See §§ 61.13(4)(c)1., 6., Fla. Stat.; and cf. LaLoggia-VonHegel, 732 So.2d at 1133 (holding that a transfer of custody as punishment is not an appropriate sanction for contempt because changing custody “may, in the absence of a finding that such a change is in the best interest of the children, penalize the children for the parent’s contumacious conduct” (emphasis added)).

We recognize that by the time this opinion is issued, the 150 days of makeup time-sharing ordered by the trial court will likely have ended. The makeup time-sharing orders do not expressly require the former husband to return physical custody of the child to the former wife at the end of this period, but the former husband represented in his brief that he intended to do so and the trial court should ensure that he does so. Accordingly, upon issuance of the mandate, we encourage the trial court to promptly set this case for a status conference to determine who has physical custody of the child and to determine whether there are any pending matters regarding custody or time-sharing that need to be resolved and, if there are, we encourage the trial court to resolve them expeditiously. We express no opinion as to the appropriate outcome of any pending custody matters before the trial court, other than to note that any further action on the former husband’s seventh motion for contempt must be consistent with this opinion.

In sum, for the reasons stated above, we reverse the makeup time-sharing orders and remand for further proceedings consistent with this opinion. We affirm the criminal contempt order.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings consistent with this opinion.

WETHERELL, MARSTILLER, and SWANSON, JJ„ concur.

      . We have jurisdiction to review the non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii).

      . In a related case, we denied the former wife's petition for a writ of prohibition challenging the denial of her motion to disqualify the trial judge. See Cheek v. Hesik, Case No. 1D11-3218, 2011 WL 5139339 (November 1, 2011).

      .Counsel for the former husband clarified below that the motions were actually mis-numbered and that, despite their titles, the sixth and seventh motions were actually the fifth and sixth motions. For sake of clarity, we will refer to the motions as they are titled.

      . The former wife represented in her filings with this court that a "final custody hearing" was scheduled for late September 2011, but that proceeding was presumably stayed by the order to show cause issued in the related Case No. 1D11-3218, 2011 WL 5139339 on June 28, 2011. See Fla. R.App. P. 9.100(h).


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    AMP SERVICES LIMITED, Trustee for the Walter and Anna Bronner Trust, and Thomas Myers, as Personal Representative of the Estates of Walter Bronner Patrias and Anna Bronner, Appellants, v. WALANPATRIAS FOUNDATION, Gislhaine Whyte, Mario Simmen, Paul-Marie Jacques and Elizabeth Schwartz, Appellees.
    No. 4D09-4451.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.

      Robert M. Brochin of Morgan, Lewis & Boekius, L.L.P., Miami, for appellant AMP Services Limited, Trustee for The Walter and Anna Bronner Trust'.
    William H. Newton, III of William H. Newton, III, P.A., Miami, for appellant Thomas Myers, as Personal Representative of the Estates of Walter Bronner Pat-rias and Anna Bronner.
    Charles C. Kline, Nicole H. Sulsky and Jason R. Domark of White & Case, L.L.P., Miami, for appellees Walanpatrias Foundation, Gislhaine Whyte, Paul-Marie Jacques and Mario Simmen.
   HAZOURI, J.

Plaintiffs/appellants, AMP Services Limited, Trustee for The Walter and Anna Bronner Trust, and Thomas Myers, as Personal Representative of the Estates of Walter Bronner Patrias and Anna Bronner (collectively the “plaintiffs”), appeal the trial court’s dismissal with prejudice of counts IV and VI of their Fourth Amended Complaint filed against defendants/appellees, Walanpatrias Foundation (the “Foundation”), Gislhaine Whyte, Mario Simmen, Paul-Marie Jacques and Elizabeth Schwartz (collectively the “defendants,” not including Schwartz). Count IV is a claim by the plaintiffs against the Foundation and its trustees pursuant to sections 733.607(2) and 733.707(3), Florida Statutes (2003), for payment to Anna Bronner’s estate due to insufficient funds in the estate to pay the expenses of administration and the obligations of the estate. Count VI is an action by plaintiffs against the Foundation and the trustees for unjust enrichment for retaining and not contributing the amounts necessary to pay the expenses of administration and the obligations of the estate. The plaintiffs raise at least four issues on appeal. We affirm the trial court’s dismissal with prejudice of counts IV and VI. We find all issues raised to be without merit and write to address' only the first.

Walter Bronner Patrias (“Walter”) was a Colombian national who died on February 10, 1996, at age 89, and had no children. He was survived by his wife, Anna Gravert Bronner (“Anna”). Anna was a German national who died on January 15, 1999, at age 94, and had no children.

The Bronners met and married in Colombia, where Walter had a successful business. Several years before he died, Walter created a Panamanian corporation, Monavest Corporation, to hold their assets. They also had property in Broward County, Florida, including a condominium, personal property (automobile, jewelry, furniture, and artwork), and a small bank account. In the early 1980s, the Bronners moved to Monte Carlo, Monaco, from Colombia, where they resided until their deaths.

On August 17, 1995, Walter and Anna Bronner executed handwritten wills in Monaco. Walter’s will designated Anna and, alternatively, the Weizmann Institute of Science, as the residuary beneficiary of his estate. His will designated Harry Joseph as executor with authority to appoint a personal representative. Anna’s will designated Walter as the residuary beneficiary of her estate and, alternatively, the P.E.F. Israel Endowment Fund, Inc. Anna also designated Joseph as executor. Joseph was a longtime friend of the Bron-ners and a resident of Miami Beach, Florida. In September 1995, the Bronners instructed Joseph to create a trust which was to be “The Walter and Anna Bronner Trust.” It was to be funded by the assets held in the Monavest Corporation and was for the benefit of various charitable institutions in Israel.

After Walter died, an order of the Tribunal of First Instance of the Principality of Monaco was entered vesting possession of Walter’s estate in Anna as his universal legatee. On August 26, 1996, Anna executed a will in Monaco, revoking all prior wills and stating that it was her wish that 70% of the annual net income from her estate be distributed to certain charities. The will also stated that it was her intent to create a trust or foundation for this purpose and if she did not have time to create the trust or foundation, she named Whyte, who was her assistant, Jacques, a Monaco banker and Henry Rey, the “no-taire” with whom she deposited her will, to do it for her.

In February 1997, Anna met with Sim-men in Zurich, Switzerland and executed documents relating to the creation of the Liechtenstein “stiftung” called the Walan-patrias Foundation. Anna named four directors to the foundation, defendants, Sim-men, Whyte, and Jacques, and herself. The bylaws of the Foundation recite that the first purpose of the Foundation is to take care of Anna’s needs during her lifetime and, upon her death, the second purpose is to support philanthropic institutions through donations. In July 1998, the Bronners’ assets and those of the Mona-vest Corporation were transferred to the Foundation, which took place outside of Florida. The assets transferred did not include any of the Florida property.

Anna died on January 15, 1999, and her August 29 will was processed in Monaco. In January 2000, the Monaco Tribunal of First Instance entered an order vesting the Walanpatrias Foundation with Anna’s estate. The Foundation then sent an accountant to Florida to sell the condominium.

More than two years after Anna’s death, ancillary estates for both Anna and Walter were filed in Florida. An action against the two ancillary estates was filed by AMP, a St. Lucia, West Indies company with its principal place of business in Hong Kong, as assignee of Walter’s relatives, claiming that but for the actions of the individual defendants, Walter’s relatives would have received $193,000,000 from Anna’s estate. Thomas Myers, as personal representative and on behalf of the ancillary estates, admitted the allegations and consented to the entry of judgment. On May 27, 2003, a final judgment on the pleadings was entered against Myers, as personal representative, awarding AMP, as assignee, $193,651,984.06 against the ancillary estate of Anna.

After the ancillary estate judgment was entered, AMP and Thomas Myers sought statutory contribution to the estate pursuant to sections 733.607 and 733.707, Florida Statutes (2001), from the Foundation. In order to recover payment, plaintiffs brought this present action to enforce statutory contribution under the 2001 versions of these two statutes. However, the Foundation asserted in its motion to dismiss that the 1999 versions of section 733.607 and 733.707, which were in effect at the time of Anna’s death in 1999, apply and that plaintiffs failed to state a cause of action for statutory contribution pursuant to the 1999 versions. Plaintiffs argued that the amended versions, as provided in the Probate Code passed in 2001, were applicable because the statutes were remedial and not substantive law and therefore should be applied retroactively. The trial court held that the 1999 versions in effect at the time of Anna’s death were substantive and that Myers failed to state a cause of action for statutory contribution for payment of the 2003 judgment because it was not an “enforceable claim” within the meaning of the 1999 version of the statute.

When the Probate Code was passed in 2001, section 731.155, Florida Statutes (2001), provided:

Applicability. — This act shall take effect January 1, 2002. The substantive rights of all persons that have vested prior to January 1, 2002, shall be determined as provided in former chapters 63, 215, 409, 660, and 731-737 as they existed prior to January 1, 2002. The procedures for the enforcement of substantive rights which have vested prior to January 1, 2002, shall be as provided in this act, except that any Family Administration filed before January 1, 2002, may be completed as a Family Administration.

Myers argues that the 2001 versions of the statutes are remedial and not substantive law and therefore should be applied retroactively. Myers asserts that if the 2001 versions applied, then the 2003 judgment would be considered an obligation of the estate which is to be paid by the decedent’s trust. Under the 1999 version of section 733.607(2), if the assets of the estate are insufficient to pay the expenses of the administration of the decedent’s estate and enforceable claims of the decedent’s creditors, then the personal representative is entitled to payment from the trustee of the trust for those specific items.

In Raphael v. Shecter, 18 So.3d 1152 (Fla. 4th DCA 2009), cited by both parties, this court held:

Although a substantive statute will not operate retrospectively, the general rule is that a procedural or remedial statute may operate retrospectively. Thus, whether section 766.118(4), Florida Statutes, is a change or amendment that is substantive or procedural in nature is an issue that is determinative of this case.
Substantive law prescribes “duties and rights” and procedural law amendments concern “means and methods.” Alamo Rent-A-Car v. Mancusi, 682 So.2d 1352, 1358 (Fla.1994). In Mancusi, the legislature limited the amount of punitive damages for causes of action arising on or after July 1, 1986, and the Legislature intended for a subsequent amendment to have an October 1, 1987, effective date. Although, the cause of action accrued in September 1986, the case was not filed until after the effective date of the change in punitive damages. “The establishment or elimination of such a claim is clearly a substantive, rather than a procedural, decision of the legislature because such a decision does, in fact, grant or eliminate a right or entitlement.” Id. at 1358.

Id. at 1156-57 (citation omitted). “Substantive rights cannot be adversely affected by the enactment of legislation once those rights have vested. Nor may the legislature increase an existing obligation, burden or penalty as to a set of facts after those facts have occurred.” Bitterman v. Bitterman, 714 So.2d 356, 363 (Fla.1998) (citation omitted).

The amendment to section 733.607(2) changing “enforceable claims of the decedent’s creditors” to “obligations of the decedent’s estate” increases the trust’s obligation to the personal representative. This increase in the trust’s obligation is clearly a substantive establishment of an additional claim.

This court has held “that an enforceable claim is a timely filed claim against the estate where no objection has been made by the personal representative or a timely filed claim against the estate where a timely objection has been made and a subsequent judgment has been entered in favor of the claimant or stipulation for payment has been reached.” Tobin v. Damian, 723 So.2d 396, 397 (Fla. 4th DCA 1999). The plaintiffs do not allege that AMP or Walter’s relatives were creditors of Anna or that they timely filed a claim in Anna’s ancillary estate. Therefore, plaintiffs have failed to state a cause of action for statutory contribution because the estate judgment is not an “enforceable claim” within the meaning of the statute.

Plaintiffs also failed to state a claim for unjust enrichment. “The elements of an unjust enrichment claim are ‘a benefit conferred upon a defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.’ ” Fla. Power Corp. v. City of Winter Park, 887 So.2d 1237, 1241 n. 4 (Fla.2004) (citation omitted).

Plaintiffs allege that the defendants were unjustly enriched by failing to make their statutory contribution to Anna’s ancillary estate. Because there is no “enforceable claim” against the defendants under sections 733.607(2) and 733.707(3), they have not been unjustly enriched by their failure to contribute funds to satisfy the estate judgment. Plaintiffs have failed to allege facts that support a prima facie case of unjust enrichment. The trial court properly dismissed with prejudice the unjust enrichment claim.

Affirmed.

TAYLOR and LEVINE, JJ., concur.

      . Whyte, Simmen, and Jacques are trustees of the Walanpatrias Foundation.

      . The 1999 versions of these sections provide: 733.607(2) If, after providing for statutory entitlements and all devises other than residuary devises, the assets of the decedent’s estate are insufficient to pay the expenses of administration of the decedent's estate and enforceable claims of the decedent’s creditors, the personal representative is entitled to payment from the trustee of a trust described in s. 733.707(3), in the amount the personal representative certifies in writing to be required to satisfy such insufficiency. 733.707(3) Any portion of a trust with respect to which a decedent who is the grant- or has at the decedent’s death a right of revocation, as defined in paragraph (e), either alone or in conjunction with any other person, is liable for the expenses of the administration of the decedent's estate and enforceable claims of the decedent’s creditors to the extent the decedent’s estate is insufficient to pay them as provided in s. 733.607(2).

      . The 2001 versions provide:
      733.607(2) If, after providing for statutory entitlements and all devises other than residuary devises, the assets of the decedent’s estate are insufficient to pay the expenses of the administration and obligations of the decedent’s estate, the personal representative is entitled to payment from the trustee of a trust described in s. 733.707(3), in the amount the personal representative certifies in writing to be required to satisfy the insufficiency.
      733.707(3) Any portion of a trust with respect to which a decedent who is the grant- or has at the decedent’s death a right of revocation, as defined in paragraph (e), either alone or in conjunction with any other person, is liable for the expenses of the administration and other obligations of the decedent’s estate to the extent the decedent’s estate is insufficient to pay them as provided in s. 733.607(2).

      . Section 733.710(1), Florida Statutes (1999), provides:
      Notwithstanding any other provision of the' code, 2 years after the death of a person, neither the decedent’s estate, the personal representative (if any), nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.


author: LEVINE, J.

text:
    STATE of Florida, Appellant, v. Eric PAGE, Appellee.
    No. 4D10-4188.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellant.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented in this case is whether a law enforcement officer’s use of appellee’s name and date of birth for a warrants check turns a consensual encounter into an encounter requiring reasonable suspicion. We find that the mere act of running appellee’s name for an active warrants check does not require reasonable suspicion. Therefore, we find that the trial court erred, reverse the granting of the motion to suppress, and remand for findings of fact.

On March 14, 2009, two law enforcement officers were on patrol in response to complaints of narcotics and other criminal conduct in the Fort Lauderdale area at 1:00 a.m. While the officers were conducting a check on a twenty-four hour market, the officers observed appellee standing on the side of the business. No one else was around the area at that time. The officer parked his patrol car across the street and approached appellee on foot. The officer did not activate the overhead lights of his patrol car or draw his weapon. At the evidentiary hearing on the motion to suppress, the officer testified that appellee was free to go wherever he wanted.

The officer asked appellee for his name and date of birth. Appellee responded by giving his name and date of birth. At that point, appellee’s information was run over a teletype to check for active warrants. After discovering that there was an active warrant, the officers placed appellee under arrest and read him his Miranda rights.

After appellee was placed under arrest for the active warrant, the officer patted appellee down and found approximately fifteen grams of marijuana in thirteen baggies in his left front pocket. The officers placed him in the back of their vehicle and Mirandized him again. On the way to jail, appellee made a statement to the officer, which the officer characterized as a “spontaneous utterance,” that the “weed wasn’t his,” that he “was carrying” the marijuana for someone else, and that “he can’t go down” for the marijuana.

Appellee’s testimony at the suppression hearing largely contradicted the officers’ testimony. Appellee claimed that he had entered his car and that the officers blocked his car and placed a spotlight on him. Appellee did not feel free to go. The officers asked for his driver’s license, but he did not have a license, so he gave them his identification card. They asked him to step out of his car and then searched him.

Despite this conflict in the evidence, the trial court found the testimony of both the officer and appellee to be “believable.” The trial court further found when both officers approached appellee,

I think that up until that point it was consensual encounter and everything was fine. The problem is that up until that point there was no reasonable suspicion, and that should have been the end of it. But instead, your client was detained, they checked him for warrants, and a warrant was found.

The trial court granted the motion to suppress, finding that the officers needed reasonable suspicion in order to run a warrants check on appellee. The trial court concluded, “The officers had to go and do a warrant check on him. So accordingly the motion to suppress will be granted.” This appeal ensues.

The appellate court must interpret the evidence and reasonable inferences in a manner most favorable to sustaining the trial court’s ruling. San Martin v. State, 717 So.2d 462, 469 (Fla.1998). A presumption of correctness is granted to a trial court’s determinations of facts, and the appellate court independently reviews mixed questions of law and fact regarding constitutional issues. Caldwell v. State, 41 So.3d 188, 194 (Fla.2010).

There are three levels of police-citizen encounters. Popple v. State, 626 So.2d 185, 186 (Fla.1993). The first level is consensual encounters, where there is minimal police contact during which the citizen is free to leave at any point. Id. The second level consists of citizens temporarily detained based upon a reasonable, well-founded suspicion that the person has committed, is committing, or is about to commit a crime. Id. The third level consists of arrests based upon probable cause. Id.

In the present case, the officer approaching appellee, and asking questions regarding his name and date of birth, would constitute the first level of police-citizen encounter. See O.A. v. State, 754 So.2d 717 (Fla. 4th DCA 1998); State v. Goodwin, 36 So.3d 925, 926 (Fla. 4th DCA 2010) (“[t]he mere questioning of an individual, including a police request for identification, does not amount to a Fourth Amendment detention”) (citation omitted). Further, a warrants check does not per se transform the encounter into a seizure. See O.A., 754 So.2d at 718-20; State v. Woodard, 681 So.2d 733, 735 (Fla. 2d DCA 1996).

The trial court erred in determining that Golphin v. State, 945 So.2d 1174 (Fla.2006), mandated the suppression in this case. In Golphin, officers approached a group of individuals, including Golphin. Golphin never attempted to leave as other individuals walked away. One officer requested his identification, which Golphin voluntarily provided. While one officer was making a computer check on Golphin to determine if there were any open warrants, Golphin volunteered that he may have an open warrant.

The trial court in this case determined: [W]hen I look at the facts in Golphin, and I look at the facts in this case, you see clearly distinguishable in that the consensual encounter continued until the time in Golphin they checked and found the warrant. In Golphin you have Gol-phin admitting there was a warrant. But this is not what you have here. The officers had to go and do a warrant check on him.

However, the Golphin decision was not guided by the fact that Golphin admitted there was a warrant. Rather, the Florida Supreme Court concluded that “Fourth Amendment constitutional safeguards were not implicated when Officer Doemer utilized the identification that Golphin voluntarily provided to check for outstanding warrants.” Id. at 1190. The court reiterated that a “noncompulsory request for an individual’s identification has been unlikely to implicate the Fourth Amendment in isolation.” Id. at 1185. The court further found that since Golphin was not the driver of the vehicle, “theoretically, retention of Golphin’s identification would not have constrained his ability to either request the return of the identification or simply end the encounter by walking into the apartment in which he was staying.” Id. at 1188.

In conclusion, the trial court misinterpreted Golphin and erred in finding that the warrants check constituted an encounter requiring reasonable suspicion. As such, we reverse and remand for the trial court to make factual findings, after an additional hearing if necessary, regarding whether the encounter was consensual or an illegal stop, whether the officers conducted a search of appellee before or after the discovery of the outstanding warrant, and the applicability, if any, of State v. Frierson, 926 So.2d 1139, 1143 (Fla.2006) (identifying three factors a court should consider in determining whether evidence obtained after an illegal stop should be excluded: “(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagraney of the official misconduct”) (citation omitted).

Reversed and remanded with instilla-tions.

TAYLOR and HAZOURI, JJ., concur.


author: DAMOORGIAN, J.

text:
    ANIMAL WRAPPERS AND DOGGIE WRAPPERS, INC., a Florida corporation, Appellant, v. COURTYARD DISTRIBUTION CENTER, INC., a dissolved Florida corporation, and Joseph Vitolo, individually, as the last and remaining officer and director of Courtyard Distribution Center, Inc., Appellees.
    No. 4D10-3637.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.
    Monique L. Lavender and Richard L. Allen of Solowsky & Allen, P.L., Miami, for appellant.
    Alexander Oscar Soto of The Soto Law Group, P.A., Fort Lauderdale, for appel-lees.
   DAMOORGIAN, J.

Animal Wrappers and Doggie Wrappers, Inc. (hereinafter “Animal Wrappers”) appeals a final judgment awarding it money damages on its breach of contract claim, but denying it prevailing party attorney’s fees. We reverse, concluding the trial court erred by determining that neither party prevailed.

This case arises out of a landlord-tenant dispute. Animal Wrappers, as tenant, and Courtyard Distribution Center, Inc. (hereinafter “Courtyard”), as landlord, were parties to a written lease agreement for premises located in Sunrise, Florida. A fire caused extensive damage to the premises, and as a result, Animal Wrappers vacated the premises. Animal Wrappers sought return of its security deposit in the amount of $6,798.00. Animal Wrappers then filed a complaint for breach of the lease agreement against Courtyard and Joseph Vitolo, alleging that Courtyard wrongfully refused to return its security deposit after it had been constructively evicted due to the fire. Courtyard responded by filing, inter alia, a counterclaim alleging Animal Wrappers wrongfully abandoned the premises and breached the lease agreement. Courtyard further demanded an acceleration of rent due under the lease in the amount of $62,700.00. Both parties requested an award of attorney’s fees pursuant to a prevailing party provision in the lease.

After a bench trial, the trial court entered a final judgment, which provided, in pertinent part, that Animal Wrappers prevailed on its claim that the lease was terminated by the fire. The trial court also determined Animal Wrappers was entitled to the return of its security deposit, after a set-off for certain expenses incurred by Courtyard. In addition, Animal Wrappers prevailed on Courtyard’s counterclaim, with the trial court concluding that no additional rent was due to Courtyard under the acceleration provision of the lease. Lastly, the trial court denied attorney’s fees to both parties, concluding that “no party prevailed.” Animal Wrappers appeals the denial of attorney’s fees.

To the extent we are required to interpret the terms of the parties’ lease agreement as to attorney’s fees, our review is de novo. See Port-A-Weld, Inc. v. Padilla & Wadsworth Constr., Inc., 984 So.2d 564, 568 (Fla. 4th DCA 2008) (“Generally, interpretation of a document, such as a written contract, is a question of law rather than of fact. For that reason, such cases are reviewed de novo.”) (citations omitted). “Courts have no discretion to decline to enforce this kind of contractual attorney’s fees provision.” Point E. Four Condo. Corp. v. Zevuloni & Assocs., Inc., 50 So.3d 687, 687 (Fla. 4th DCA 2010) (citing Rose v. Rose, 615 So.2d 203, 204 (Fla. 4th DCA 1993)).

Animal Wrappers argues that it prevailed because it succeeded on the significant issues in litigation and Courtyard obtained no relief on its counterclaim. Courtyard argues that because Animal Wrappers received the return of only a portion of its security deposit, the trial court did not abuse its discretion in holding that neither party prevailed.

The Florida Supreme Court has explained “that the fairest test to determine who is the prevailing party is to allow the trial judge to determine from the record which party has in fact prevailed on the significant issues tried before the court.” Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992); see also M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A., 975 So.2d 1288, 1289-90 (Fla. 4th DCA 2008) (discussing the “significant issues” test as the way to determine the prevailing party for the purpose of an attorney’s fees award).

“Although some districts recognize that cases can sometimes effectively be “ties,” such that the parties can both be viewed as winners or losers, we have maintained that ‘[i]n a breach of contract action, one party must prevail.’ ” Port-A-Weld, Inc., 984 So.2d at 569 (quoting Lucite Ctr., Inc. v. Mercede, 606 So.2d 492, 493 (Fla. 4th DCA 1992)). But see Hutchinson v. Hutchinson, 687 So.2d 912, 918 (Fla. 4th DCA 1997) (recognizing that there can be “compelling circumstances” in which a trial court determines that neither party prevailed in a breach of contract action). In Port-A-Weld, we held that the subcontractor was clearly the prevailing party under the “significant issues” test where it was entitled to virtually its entire contract price and the general contractor succeeded in recovering less than 20% of the offsets it claimed. Port-A-Weld, 984 So.2d at 569.

Much like Port-A-Weld, this case was not even close to a “tie.” See id. Animal Wrappers unquestionably prevailed on all of the significant issues raised in this litigation. In its final judgment, the trial court held that the lease was terminated, and Animal Wrappers was entitled to the return of its security deposit minus a set-off for certain claims by Courtyard. We find no merit to Courtyard’s assertion that neither party prevailed based on the fact that Animal Wrappers received the return of less than the full amount of its security deposit. Animal Wrappers recovered the majority of its deposit, and, more importantly, Courtyard did not prevail on its counterclaim seeking $62,700.00 in damages.

We hold the trial court erred by failing to award attorney’s fees to Animal Wrappers as the prevailing party. Accordingly, we reverse and remand to determine the reasonable attorney’s fees to which Animal Wrappers is entitled.

Reversed and Remanded.

GERBER, J„ and MARX, KRISTA, Associate Judge, concur.

      . Animal Wrappers dropped its claim against Vitolo on the first day of trial.

      . Animal Wrappers was awarded $4,453.33 on its claim for $6,798.00. The trial court deducted $2,344.67 in set-offs from the deposit for carpet repairs and labor, clean-up, and dumpster costs incurred by Courtyard.


author: PER CURIAM.

text:
    Essie R. BAKER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D09-963.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2011.
    Essie R. Baker, in proper person. M. Elaine Howard, Senior Attorney, for ap-pellees.
    Before SUAREZ, CORTINAS, and SALTER, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of the Commission’s motion for rehearing, the panel relinquished jurisdiction and remanded the case to the Commission for further remand to the Agency for Workforce Innovation Office of Appeals. The Agency was directed to conduct a further evidentiary hearing regarding the timeliness of its mailing to the appellant here, Ms. Baker. That hearing was conducted on September 13, 2011. Upon consideration of Ms. Baker’s response, the transcript of that hearing, and the Commission’s status report filed September 26, 2011, we affirm the Commission’s order dismissing as untimely Ms. Baker’s original appeal from the Agency’s determination denying benefits.

Affirmed.


author: WELLS, Chief Judge.

text:
    Jonas CLAUDE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2215.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2011.
    Andrew F. Rier, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   WELLS, Chief Judge.

Jonas Claude appeals from a second degree murder conviction claiming (1) that two witnesses impermissibly commented on his constitutional right to remain silent; (2) that unduly prejudicial photographs of the murder victim were introduced into evidence; and, (3) that his trial attorney was ineffective for failing to file motions in limine to preclude testimony regarding prior unrelated criminal acts and to preclude introduction of various photographs.

We find no reversible error regarding the testimony adduced below concerning Claude’s waiver of his Miranda rights or the photographs introduced into evidence, and because we decline to address Claude’s ineffective assistance of counsel claim, we affirm his conviction without prejudice to filing an appropriate post conviction motion challenging his trial counsel’s performance.

Affirmed.

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


text:
    Ercide BRUZON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2525.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2011.

      Ricardo Corona, Coral Gables and Nina Tarafa, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: SUAREZ, J.

text:
    Argelio DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1006.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2011.
    Ricardo Corona, Coral Gables and Nina Tarafa, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Joseph Lewis BLUE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4090.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Joseph Lewis Blue appeals the imposition of the electronic monitoring resulting from a modification of the terms of his probation sentence from a violation of probation. The issue before us is whether the trial court made the requisite statutory findings under section 948.30, Florida Statutes (2008), when it imposed electronic monitoring as a condition of probation. Concluding that the trial court did not, we reverse.

In 2003, Blue pled no contest to committing lewd and lascivious battery on a person between the ages of twelve and sixteen in violation of section 800.04(4)(a), Florida Statutes (2000). The criminal conduct was alleged to have occurred in January 2001. Blue’s sentence included ten years of sex-offender probation. In 2009, Blue violated the terms of his probation. He admitted the violation of conditions, and the court reinstated his probation. One month later, the court held a hearing at the request of Blue’s probation officer. At the hearing, the probation officer told the court that “Joseph Blue was reinstated on probation on 1/26/09. He’s a sex offender, JLA [the Jessica Lunsford Act] case, and an electronic monitor wasn’t imposed, and I want to see if the Court would impose an electronic monitor.”

The State then advised the court that it had to impose an electronic monitor if a person was JLA qualified. Thereafter, the trial court imposed electronic monitoring as a modification to Blue’s condition of the reinstated probation. The record is unclear whether the trial court believed that the JLA (section 948.063, Florida Statutes (2008)) applied to Blue’s sentence or whether the court relied upon section 948.30(2), Florida Statutes (2008), as a statutory basis to impose electronic monitoring. This appeal follows.

Blue first argues that the trial court erred because in response to the State’s suggestion that the JLA applied, the court — believing that electronic monitoring was mandatory — modified Blue’s probation to include that condition. Next, while conceding that electronic monitoring could be applied under section 948.30, Florida Statutes, such condition could be applied only when deemed necessary by the “probation officer and his or her supervisor, and ordered by the court at the recommendation of the Department of Corrections.” § 948.30(2)(e), Fla. Stat. (2008). The State counters that even assuming that Blue is correct that the JLA does not apply, the trial court properly imposed electronic monitoring because the requirements were met under section 948.80(2)(e).

Blue is correct that the JLA does not apply to his case because the Act did not go into effect until September 1, 2005, and his crimes were committed in 2001. See Witchard v. State, 68 So.3d 407, 411 (Fla. 4th DCA 2011) (holding that applying the JLA to crimes committed before the effective date of the Act would constitute an ex post facto violation).

While the trial court could have imposed electronic monitoring under section 948.30(2), it did not make the requisite findings that Blue’s probation officer and his supervisor deemed electronic monitoring necessary, and that the Department of Corrections made such a recommendation. See § 948.30(2)(e). Moreover, it is unclear from the record whether the trial court was under the mistaken belief that the JLA applied or whether it would have imposed electronic monitoring had it known it was not mandatory. See Donohue v. State, 979 So.2d 1060, 1061 (Fla. 4th DCA 2008); Burrell v. State, 993 So.2d 998, 999-1000 (Fla. 2d DCA 2007).

Accordingly, we reverse and remand for the trial court to exercise its discretion to determine whether electronic monitoring should be imposed after having made the requisite statutory determinations pursuant to section 948.30(2)(e), Florida Statutes.

Reversed and Remanded.

GERBER, J„ and MARX, KRISTA, Associate Judge, concur.


text:
    Anton L. PHILIPP, Appellant, v. DEPARTMENT OF REVENUE o/b/o Alina Vallenilla PHILIPP, Appellee.
    No. 3D11-525.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2011.
    Anton L. Philipp, in proper person.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   SUAREZ, J.

Anton L. Philipp appeals an adjudication for contempt for failure to pay child support. As we conclude that the trial court did not have before it competent substantial evidence of Mr. Philipp’s present ability to pay, we reverse the adjudication of contempt. See Bowen v. Bowen, 471 So.2d 1274, 1278 (Fla.1985). Based on the Department of Revenue’s concession of error, we also reverse the purge amount.

Reversed and remanded.


text:
    FIRST QUALITY GASOLINE, INC., Appellant, v. MOTIVA ENTERPRISES, LLC, et al., Appellees.
    No. 10-1991.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2011.
    Alex Alvarez, Coral Gables and Philip E. Holden, for appellant.
    Hunton & Williams and Thomas R. Ju-lin, Miami, Sam Danon, John Delionado and Corey Lee, Miami, for appellees.
    Before RAMIREZ and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See City of Miami v. Kory, 394 So.2d 494 (Fla. 3d DCA 1981).


text:
    J.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1413.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2011.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the appellant’s motion for rehearing, and substitute the following opinion for our original opinion.

J.B. appeals an adjudication of delinquency for battery because she contends the State did not prove the victim’s lack of consent beyond a reasonable doubt. We affirm because the State presented sufficient evidence, through testimony from the officer who observed J.B.’s battery of the victim, to show the victim did not consent to JJB.’s battery.

Affirmed.


text:
    Thomas ADAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-793.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2011.

      Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before SHEPHERD, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Fowler v. State, 255 So.2d 513, 515 (Fla.1971) (“We concur that where the parties and the judge agree, the trial [c]ourt may decide the issue of competency on the basis of the written reports alone.”).


text:
    W.B., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D11-1803.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2011.
    Albert W. Guffanti, Miami, for appellant.
    Karla Perkins, Miami, for The Department of Children and Families.
    Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See A.L. v. Dep’t of Children & Families, 816 So.2d 223 (Fla. 5th DCA 2002).


text:
    ELMWOOD TERRACE LIMITED PARTNERSHIP, Appellant, v. FLORIDA HOUSING FINANCE CORPORATION, Appellee.
    Nos. 1D10-5930, 1D11-0150.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2011.
    J. Stephen Menton of Rutledge, Ecenia & Purnell, P.A., Tallahassee, for Appellant.
    Wellington H. Meffert, II, General Counsel, and Hugh R. Brown, Deputy General Counsel, Florida Housing Finance Corporation, Tallahassee, for Appellee.
   PER CURIAM.

We consolidate two cases for appellate review. The first originates from Florida Housing Finance Corporation’s (the Corporation) denial of stimulus funds to appellant. The second originates from a challenged rule used for support of the denial.

We uphold the Corporation’s denial of stimulus funds to appellant based on the application of the Impact Provision included in Florida Administrative Code Rule 67-48.0072 (2009), without further comment. As for the rule challenge, the administrative law judge (ALJ) upheld the rule based on alternative holdings. We uphold the ALJ’s determination that the rule is valid. However, we write to clarify that our affirmance should not be taken as approval of the order’s alternative holding that the Impact Provision was not a rule, and therefore, appellant lacked standing.

The Impact Provision was contained in a codified rule of the Florida Administrative Code, and appellant was denied stimulus funds based on the application of the provision. Thus, the provision was a rule, and appellant, who had been substantially affected by the rule’s impact, had standing at both the hearing below and on appeal. See Fla. Admin. Code. r. 67-48.0072 (2009); § 120.68(1), Fla. Stat. (2009); see also § 120.52(16), Fla. Stat. (2009) (defining a rule as an agency statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedure or practice requirements of an agency).

AFFIRMED.

WOLF, LEWIS, and WETHERELL, JJ., concur.


text:
    William H. CORNING, Appellant, v. WELLS FARGO BANK, NA, Appellee.
    No. 1D11-1747.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2011.
    William H. Corning, pro se, Appellant.
    Dean A. Morande and Michael K. Winston of Carlton Fields, P.A., West Palm Beach, for Appellee.
   PER CURIAM.

The appellee’s motion to dismiss for lack of jurisdiction is GRANTED. The appeal from a Certificate of Sale, filed by the Circuit Court Clerk of Court on March 22, 2011, is hereby DISMISSED. Cf. Fla. R.App. P. 9.030(b)(1). This dismissal is without prejudice to the appellant’s right to seek relief in the circuit court from the foreclosure sale and underlying judgment. Bennett v. Ward, 667 So.2d 378 (Fla. 1st DCA 1995); Brigham v. State, 769 So.2d 1100 (Fla. 1st DCA 2000) (explaining avenues for obtaining belated appeal in criminal and civil cases).

DAVIS, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Scott EATON, Appellant, v. CITY OF WINTER HAVEN and PGCS, Appellees.
    No. 1D11-2988.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2011.
    Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland, and Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee, for Appellant.

      George A. Helm, III, of George A. Helm, PA., Lake Mary, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this Court’s show cause order entered June 22, 2011, the Court dismisses this appeal for lack of jurisdiction. In the order on appeal, the Judge of Compensation Claims (JCC) awarded permanent total disability benefits but declined to address the claim for psychiatric treatment, instead appointing an expert medical advisor to resolve differences in the medical opinions as to the proper diagnosis and its relationship to the workplace accident. Accordingly, the order is not a final order because it does not dispose of all matters presented to the JCC for adjudication. See, e.g., Emro Marketing v. Schwier, 670 So.2d 1141 (Fla. 1st DCA 1996); Bradley v. Hurricane Restaurant, 652 So.2d 443 (Fla. 1st DCA 1995).

DISMISSED.

DAVIS, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Emory Lamar “Buddy” HUNT and Patricia Hunt, Appellants, v. STAFF LEASING, Employer, and Liberty Mutual Fire Insurance Company, Appellees.
    No. 1D11-3073.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2011.
    Edwin A. Green, II, Tallahassee, for Appellants.
    Larry A. Matthews and Michael E. Fen-imore of Bozeman, Jenkins & Matthews, P.A., Pensacola, for Appellee.
   PER CURIAM.

Upon consideration of the appellee’s Motion to Dismiss, filed on June 21, 2011, and the appellants’ response thereto, the Court has determined that claims disposed of by the lower tribunal in the order on appeal are inextricably intertwined with those claims left pending. Therefore, the April 20, 2011, Order Denying in Part and Granting in Part Defendant’s Motion to Dismiss Plaintiffs’ First Amended Complaint does not constitute a partial final judgment subject to immediate review pursuant to Florida Rule of Appellate Procedure 9.110(k). Accordingly, the Motion to Dismiss is granted and the appeal is hereby dismissed as premature.

DAVIS, PADOVANO, and ROWE, JJ., concur.


text:
    Reynel Diaz HIJUELOS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3353.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2011.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal, filed on June 24, 2011, the appellant challenges the trial court’s denial of a motion to suppress evidence. The motion was orally denied on May 4, 2011, and the appellant filed a plea of guilty on May 5, 2011. A final order imposing sentence was filed with the clerk on May 16, 2011. Subsequently, the trial court issued a written order denying the motion to suppress, which was filed with the clerk on May 27, 2011. The appeal must be dismissed because the notice of appeal failed to timely invoke the Court’s jurisdiction. See Fla. R.App. P. 9.140(b)(3).

“The operative written order in a defendant’s appeal of an order denying a motion to suppress for jurisdictional purposes is the judgment and sentence.” Cardoza v. State, 927 So.2d 1028, 1029 (Fla. 2d DCA 2006). In the plenary appeal, a defendant may challenge the denial of a motion to suppress even where the denial was not reduced to writing and filed with the clerk of court. Id. However, a defendant in a criminal proceeding may not bring a separate appeal, which is independent of the plenary appeal from the judgment and sentence, for review of an order denying a motion to suppress. Fla. R.App. P. 9.140(b); Eady v. State, 920 So.2d 1158, 1159 (Fla. 1st DCA 2006); Hunter v. State, 583 So.2d 369, 370 (Fla. 2d DCA 1991). Although a written order is preferable, because it is unnecessary, a written order entered after sentencing that memorializes an oral ruling that denied a motion to suppress does not begin, or restart, the time to appeal. See generally Churchville v. Ocean Grove R.V. Sales, Inc., 876 So.2d 649, 651 (Fla. 1st DCA 2004) (“An amendment or modification of an order or judgment in an immaterial, insubstantial way does not restart the clock to file an appeal.”). Therefore, the appellant’s notice of appeal, although filed within 30 days of the written order denying the motion to suppress, nevertheless failed to timely invoke the Court’s jurisdiction to review the judgment and sentence. Consequently, the Court lacks jurisdiction to review the denial of the appellant’s motion to suppress.

DISMISSED.

DAVIS, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Conrad CROSS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Weiser Security Services, Inc., Appellees.
    No. 1D11-3499.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2011.
    Conrad Cross, pro se, Appellant.
    A. Robert Whaley, General Counsel, for Appellee Florida Unemployment Appeals Commission, Tallahassee.
   PER CURIAM.

DISMISSED. This dismissal is without prejudice to the appellant’s right to seek relief in the lower tribunal. Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998).

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Richard MOONIER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and News Journal Corporation, Appellees.
    No. 1D11-4407.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2011.
    Richard Moonier, pro se, Appellant.
    A. Robert Whaley, General Counsel, for Appellee Florida Unemployment Appeals Commission, Tallahassee.
   PER CURIAM.

The appellant’s notice of appeal failed to timely invoke the Court’s jurisdiction, which must be done by filing a notice within 30 days of rendition of the order to be reviewed. See Fla. R.App. P. 9.110(c). There is no 5-day grace period for filing an appeal from a final administrative order because the time to appeal runs from the date the order is filed and not from when the order is mailed. Cf. Fla. R.App. P. 9.420(e) (providing “Additional Time After Service by Mail” where an act is required “within some prescribed time after service of a document.”) An administrative order is rendered when a signed written copy is filed with the clerk of the agency. See Fla. R.App. P. 9.020(h); § 120.52(7) Fla. Stat. (2008); Hill v. Division of Retirement, 687 So.2d 1376, 1377 (Fla. 1st DCA 1997). In this case, the agency clerk filed the order on March 30, 2011. Therefore, the last day to timely file an appeal was April 29, 2011. See Fla. R.App. P. 9.040(f); Fla. R. Civ. P. 1.090(a). The appellant’s notice of appeal was filed five days late. Consequently, the Court lacks jurisdiction to review the order on appeal.

DISMISSED.

DAVIS, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Carlos Humberto MALAGON a/k/a Carlos Malagon and Rosalba Malagon, Appellants, v. CITIMORTGAGE, INC. f/k/a Citifinancial Mortgage Company d/b/a Citifinancial Mortgage Company (DE), Appellee.
    No. 3D11-395.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.
    Garry W. Johnson and Bruce K. Herman, Fort Lauderdale, for appellants.
    Burr & Forman and Reid S. Manley and Christine Irwin Parrish, Orlando, for ap-pellee.
    Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Appellants, Carlos Humberto Malagon a/k/a Carlos Malagon and Rosalba Mala-gon appeal the trial court’s order denying their motion to vacate final judgment of foreclosure and to cancel and/or rescind sale. Appellee, Citimortgage, Inc., concedes error on the trial court’s denial of appellants’ motion to vacate the final judgment of foreclosure. Appellee consents to a reversal of the order and a remand for further proceedings. Upon concession of error, this Court, therefore, reverses the trial court’s denial of appellants’ motion to vacate the final judgment of foreclosure and remands for further proceedings.

Reversed and remanded.

      . This Court appreciates appellee’s candor in conceding error.


text:
    STATE of Louisiana v. Gerald CHINN.
    No. 2011-KK-2043.
    Supreme Court of Louisiana.
    Oct. 5, 2011.
   In re Chinn, Gerald;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 09-09-0996; to the Court of Appeal, First Circuit, No. 2011 KW 1632.

Granted.


text:
    John JOHNSON, et al. v. ORLEANS PARISH SCHOOL BOARD, et al.
    No. 2011-OC-2041.
    Supreme Court of Louisiana.
    Oct. 6, 2011.
   In re City of New Orleans; Housing Authority of New Orleans; National Union Fire Insurance Company of Pittsburgh PA; Republic Insurance Company; United States Fire Insurance Company;—Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, Nos. 1993-14333, 1994-5446, 1994-12996, 1995-13271.

Denied.


text:
    Elodie Granier ROME and Donald Francis Rome v. ASBESTOS DEFENDANTS; Northrop Grumman Shipbuilding, Inc., (formerly Avondale Industries, Inc., and formerly Avondale Shipyards, Inc.) and its Executive Officers, et al.
    No. 2011-C-1605.
    Supreme Court of Louisiana.
    Oct. 7, 2011.
   In re Rome, Donald Francis; Rome, Elodie Granier et al.;—Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. B, No. 2009-9865; to the Court of Appeal, Fourth Circuit, No. 2010-CA-1645.

Denied.

JOHNSON, J., would grant.


text:
    STATE of Louisiana v. Courtney GARDNER.
    No. 2011-KD-2231.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 498-331; to the Court of Appeal, Fourth Circuit, No. 2011-K-1429.

Stay denied; writ denied.


text:
    STATE of Louisiana v. Anthony BERNARD.
    No. 2011-KK-2245.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 507-256; to the Court of Appeal, Fourth Circuit, No. 2011-K-1401.

Denied.


text:
    STATE of Louisiana v. Ann BOGAN et al.
    No. 2011-KK-2030.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 502-080; to the Court of Appeal, Fourth Circuit, No. 2011-K-1235.

Granted. This matter is remanded to the district court for reopening of the hearing on the motions to suppress so as to allow the state the opportunity to present evidence in furtherance of its burden of proof under La.Crim. Proc. art. 703.


text:
    STATE of Louisiana v. Troy L. KING.
    No. 2011-KK-2256.
    Supreme Court of Louisiana.
    Oct. 17, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 503-883; to the Court of Appeal, Fourth Circuit, No. 2011-K-1440.

Granted. The Ruling of the Trial Court indicating it will admit hearsay testimony of the Defendant’s mother regarding an alleged statement by the Co-Defendant is reversed. There is a lack of corroborating circumstances clearly indicating the trustworthiness of the statement. Compare Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1088, 35 L.Ed.2d 297 (1973). The Stay issued by this Court is hereby lifted.


text:
    STATE ex rel. Willie RHODES IV v. STATE of Louisiana.
    No. 2011-KH-2153.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Rhodes IV, Willie;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 482-302; to the Court of Appeal, Fourth Circuit, No. 2011-K-0756.

Granted for the sole purpose of transferring the application to the Fourth Circuit Court of Appeal for enforcement of its order of June 21, 2011, in which it instructed the district court to conduct a hearing on relator’s pro se motion for a speedy trial.


text:
    In re Appeal of DISCIPLINARY BOARD NO. 11-ADMIN-368.
    No. 2011-OB-1729.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Stewart, Keith;—Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 11-ADMIN-368.

Denied.


text:
    STATE ex rel. Albert MITCHELL v. STATE of Louisiana.
    No. 2010-KH-1557.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Mitchell, Albert;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 07-5634; to the Court of Appeal, Fifth Circuit, No. 09-KA-996.

Denied.


text:
    STATE ex rel. Johnny B. WRIGHT v. STATE of Louisiana.
    No. 2010-KH-1609.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Wright, Johnny B.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 136,884; to the Court of Appeal, Second Circuit, No. 42487-KH.

Denied.


text:
    STATE ex rel. David FOREMAN v. STATE of Louisiana.
    No. 2010-KH-2147.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Foreman, David;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. D, Nos. 9739,10302; to the Court of Appeal, First Circuit, No. 2010-KW-1223.

Denied.


text:
    STATE ex rel. Antoine WILLIAMS v. STATE of Louisiana.
    No. 2010-KH-2149.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Williams, Antoine;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. C, No. 2009-179686; to the Court of Appeal, First Circuit, No. 2010 KW 1066.

Denied.


text:
    STATE ex rel. Henry F. WEBER v. STATE of Louisiana.
    No. 2010-KH-2157.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Weber, Henry F.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 416-357; to the Court of Appeal, Fourth Circuit, No. 2010-K-0689.

Denied.


text:
    STATE ex rel. Calvin A. PREYAN v. STATE of Louisiana.
    No. 2010-KH-2186.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Preyan, Calvin A.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 444-751; to the Court of Appeal, Fourth Circuit, No. 2010-K-1201.

Denied.


text:
    STATE ex rel. Henry F. WEBER v. STATE of Louisiana.
    No. 2010-KH-2191.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Weber, Henry F.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 416-357; to the Court of Appeal, Fourth Circuit, No. 2010-K-689.

Denied.


text:
    STATE ex rel. Keith STEWART v. STATE of Louisiana.
    No. 2010-KH-2192.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Stewart, Keith;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 80-2360.

Denied.


text:
    STATE ex rel. Johnny Lee CAPERS v. STATE of Louisiana.
    No. 2010-KH-2200.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Capers, Johnny Lee;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 2, No. 235,108; to the Court of Appeal, Second Circuit, No. 45,-799-KH.

Denied.


text:
    STATE ex rel. Leroy A. DAVIS v. STATE of Louisiana.
    No. 2010-KH-2201.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Davis, Leroy A.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 06-2254; to the Court of Appeal, Fifth Circuit, No. 09-KA-452.

Denied.


text:
    STATE ex rel. Derrick PIERRE v. STATE of Louisiana.
    No. 2010-KH-2204.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Pierre, Derrick;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 356-886; to the Court of Appeal, Fourth Circuit, No. 2010-K-1177.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030.


text:
    STATE ex rel. Chauncy HOGAN v. STATE of Louisiana.
    No. 2010-KH-2205.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Hogan, Chauncy;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of East Carroll, 6th Judicial District Court Div. B, No. 1-03-283; to the Court of Appeal, Second Circuit, No. 45,803-KH.

Denied.


text:
    STATE ex rel. Antoine DAVENPORT v. STATE of Louisiana.
    No. 2010-KH-2211.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Davenport, Antoine;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 2, No. 252,866; to the Court of Appeal, Second Circuit, No. 45,-800-KH.

Denied.


text:
    STATE ex rel. Darryl RUFFIN v. STATE of Louisiana.
    No. 2010-KH-2231.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Ruffin, Darryl;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. F, No. 2010-182,134; to the Court of Appeal, First Circuit, No. 2010 KW 0511.

Denied.


text:
    STATE ex rel. Norris NASH, II v. STATE of Louisiana.
    No. 2010-KH-2325.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Nash II, Norris;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 95K3330; to the Court of Appeal, Third Circuit, No. KH 10-00363.

Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Harris COLLINS v. STATE of Louisiana.
    No. 2010-KH-2326.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Collins, Harris;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 395-173; to the Court of Appeal, Fourth Circuit, No. 2010-K-0099.

Denied.


text:
    STATE ex rel. Derrick NELLON v. STATE of Louisiana.
    No. 2010-KH-2402.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Nellon, Derrick;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 99-6870; to the Court of Appeal, Fifth Circuit, No. 04-KA-1253.

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


text:
    STATE ex rel. Arthur THOMAS v. STATE of Louisiana.
    No. 2010-KH-2422.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Thomas, Arthur;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 07-4055; to the Court of Appeal, Fifth Circuit, No. 10/ KH/598.

Denied.

GUIDRY, J., recused.


text:
    STATE ex rel. Jeremy JONES v. STATE of Louisiana.
    No. 2010-KH-2428.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Jones, Jeremy;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 419-861; to the Court of Appeal, Fourth Circuit, No. 2010-K-1290.

Denied.


text:
    STATE ex rel. Joe STEPHENS v. STATE of Louisiana.
    No. 2010-KH-2430.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Stephens, Joe;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. A, No. 06-WCR-337; to the Court of Appeal, First Circuit, No. 2010 KW 1429.

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


text:
    STATE ex rel. Gregory K. JONES v. STATE of Louisiana.
    No. 2010-KH-2431.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Jones, Gregory K.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Desoto, 42nd Judicial District Court Div. B, No. 0716068; to the Court of Appeal, Second Circuit, No. 45,-966-KH.

Denied.


text:
    STATE ex rel. Johnny B. WRIGHT v. STATE of Louisiana.
    No. 2010-KH-2433.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Wright, Johnny B.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 136,884; to the Court of Appeal, Second Circuit, No. 45987-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Phillip KNIGHT v. STATE of Louisiana.
    No. 2010-KH-2444.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Knight, Phillip;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 00-6148; to the Court of Appeal, Fifth Circuit, No. 09-KA-359.

Denied.


text:
    STATE ex rel. Aaron TOLLIVER, Jr. v. STATE of Louisiana.
    No. 2010-KH-2446.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Tolliver Jr., Aaron;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. B, No. 00-F-1787; to the Court of Appeal, Second Circuit, No. 45,-951-KH.

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

CLARK, J., recused.


text:
    STATE ex rel. Michel DIXON v. James LeBLANC, Secretary, Department of Public Safety and Corrections, et al.
    No. 2010-CI-2452.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Dixon, Michel;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 582,-620; to the Court of Appeal, First Circuit, No. 2010 CA 0332.

Denied.


text:
    STATE ex rel. Glenn HILL v. STATE of Louisiana.
    No. 2010-KH-2719.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Hill, Glenn;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. E, No. 502812; to the Court of Appeal, First Circuit, No. 2010 KW 1359.

Denied/


text:
    STATE ex rel. Michael WALKER v. STATE of Louisiana.
    No. 2010-KH-2743.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Walker, Michael;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 226570-F; to the Court of Appeal, First Circuit, No. 2010 KW 1597.

Denied.


text:
    STATE ex rel. William H. PAINICH v. STATE of Louisiana.
    No. 2010-KH-2745.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Painich, William H.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 06F3551; to the Court of Appeal, Second Circuit, No. 45,-671-KA.

Denied.


text:
    STATE ex rel. Darrin Steven ROBINSON v. STATE of Louisiana.
    No. 2010-KH-2746.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Robinson, Darrin Steven;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 591,593; to the Court of Appeal, First Circuit, No. 2010 CW 1939.

Denied.


text:
    STATE ex rel. Lawrence S. HALL, Sr. v. STATE of Louisiana.
    No. 2010-KH-2755.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Hall Sr., Lawrence S.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. C, No. 100534; to the Court of Appeal, Second Circuit, No. 46,-151-KH.

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


text:
    STATE ex rel. Cedric Lynn SIAS Sr. v. STATE of Louisiana.
    No. 2010-KH-2757.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Sias Sr., Cedric Lynn;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 265,913; to the Court of Appeal, Third Circuit, No. KH 10-00699.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana v. Alonzo (Harvey) GONZALES.
    No. 2011-KO-0854.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Gonzales, Alonzo (Harvey);—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 401671-1; to the Court of Appeal, First Circuit, No. 2010 KA 1634.

Denied.


text:
    STATE of Louisiana v. Sheddrick Deon PATIN.
    No. 2011-KO-0855.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Patin, Sheddrick Deon;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 06-05-0485; to the Court of Appeal, First Circuit, No. 2010 KA 1447.

Denied.


text:
    STATE of Louisiana v. Catina P. BROWN.
    No. 2011-KO-0856.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Brown, Catina P.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 09-636; to the Court of Appeal, Fifth Circuit, No. 10-KA-617.

Denied.


text:
    STATE of Louisiana v. Shelia M. HAMILTON.
    No. 2011-KO-0861.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Hamilton, Shelia M.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. C, No. 2008-177,984; to the Court of Appeal, First Circuit, No. 2010 KA 1603.

Denied.


text:
    STATE of Louisiana v. Douglas K. CRADDOCK.
    No. 2011-KO-0862.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Craddock, Douglas K.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. E, No. 23862; to the Court of Appeal, First Circuit, No. 2010 KA 1473.

Denied.


text:
    STATE of Louisiana v. Amy T. HEBERT.
    No. 2011-K-0864.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Hebert, Amy T.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. B, No. 448360; to the Court of Appeal, First Circuit, No. 2010 KA 0305.

Denied.


text:
    STATE of Louisiana v. Ronald MORGAN.
    No. 2011-KO-0896.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Morgan, Ronald;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 03^4931; to the Court of Appeal, Fifth Circuit, No. 10-KA-416.

Denied.


text:
    STATE of Louisiana v. Diwarn R. BRADFORD.
    No. 2011-K-0924.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Bradford, Diwarn R.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 149,409; to the Court of Appeal, Third Circuit, No. 10-1136.

Denied.


text:
    STATE of Louisiana v. Shedrick BENNETT.
    No. 2011-KO-0931.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Bennett, Shedrick;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 08-5973; to the Court of Appeal, Fifth Circuit, No. 10-KA-393.

Denied.


text:
    STATE of Louisiana v. Ronnie ROLLINS.
    No. 2011-K-0941.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Rollins, Ronnie;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 491-630; to the Court of Appeal, Fourth Circuit, No. 2010-KA-0977.

Denied.


text:
    STATE of Louisiana v. Charles Edward GRACE.
    No. 2011-KO-0961.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Charles Edward Grace;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Evangeline, 13th Judicial District Court Div. A, No. 78232-F; to the Court of Appeal, Third Circuit, No. 10-1222.

Denied.


text:
    STATE of Louisiana v. Paxton Jules TRAHAN.
    No. 2011-KO-0962.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Trahan, Paxton Jules;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. C, No. 49360; to the Court of Appeal, Third Circuit, No. 10-1150.

Denied.


text:
    STATE of Louisiana v. Brian Keith THOMAS.
    No. 2011-KO-0963.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Thomas, Brian Keith;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Evangeline, 13th Judicial District Court Div. A, No. 77,251; to the Court of Appeal, Third Circuit, No. 10-806.

Denied.


text:
    STATE of Louisiana v. Felton HURST, Jr.
    No. 2011-KO-0975.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Hurst Jr., Felton;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. D, No. 298,352; to the Court of Appeal, Third Circuit, No. 10-1204.

Denied.


text:
    Joseph F. TOOMY v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 2011-C-1118.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Toomy, Joseph F.;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 569,324; to the Court of Appeal, First Circuit, No. 2010 CA 1072.

Denied.

GUIDRY and CLARK, JJ., would grant.


text:
    GLENCOE EDUCATION FOUNDATION, INC. d/b/a Virgil Brown Glencoe Charter School v. CLERK OF COURT AND RECORDER OF MORTGAGES FOR the PARISH OF ST. MARY, Louisiana, Lamar Contractors, Inc., Mayeux’s Air Conditioning & Heating, Inc., Brown Drywall and Coating, Inc., the Sherwin-Williams Company, Chuckleberry’s Commercial Floors, Inc., Premier Steel Fabrication & Construction, LLC, and the Hartford Casualty Insurance Company.
    No. 2011-C-1142.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Hartford Casualty Insurance Company; Lamar Contractors Inc.;—Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. B, No. 119200; to the Court of Appeal, First Circuit, No. 2010 CA1872.

Denied.


text:
    STATE of Louisiana v. Corey BERNIARD.
    No. 2011-KK-1215.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 469-092; to the Court of Appeal, Fourth Circuit, No. 2011-K-0534.

Denied.

VICTORY, GUIDRY and CLARK, JJ., would grant.


text:
    PORTFOLIO RECOVERY ASSOCIATES, LLC v. Douglas D. McGINITY.
    No. 2011-CC-1423.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re McGinity, Douglas D.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, First City Court of New Orleans, No. 2005-53701; to the Court of Appeal, Fourth Circuit, No. 2011-C-0279.

Denied.


text:
    Edward L. WILLIAMS, Sr. v. PILGRIM’S PRIDE CORPORATION.
    No. 2011-C-1793.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Pilgrim’s Pride Corporation;—Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 2, No. 08-21588; to the Court of Appeal, Third Circuit, No. 11-59.

Denied.


text:
    Edward L. WILLIAMS, Sr. v. PILGRIM’S PRIDE CORPORATION.
    No. 2011-C-1794.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Williams Sr., Edward L.;—Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 2, No. 08-21588; to the Court of Appeal, Third Circuit, No. 11-59.

Denied.


text:
    Edgar Sierra JIMENEZ v. OMNI ROYAL ORLEANS HOTEL, Omni Hotels Management Corporation, Omni Hotels, and Julie Noto.
    No. 2011-C-1800.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Jimenez, Edgar Sierra;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2006-11730; to the Court of Appeal, Fourth Circuit, No. 2010-CA-1647.

Denied.


text:
    Maritza Rodriguez GUERRERO v. Joseph GUERRERO.
    No. 2011-C-1805.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Guerrero, Joseph;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 449-002; to the Court of Appeal, Fifth Circuit, No. 10-CA-930.

Denied.


text:
    Jimmie J. JACKSON, et al. v. The CITY OF NEW ORLEANS.
    No. 2011-CC-1815.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Hardin, Simms; Jackson, Jimmie J. et al.; KDS Properties LLC;—Plaintiffs); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Divs. N, K, Nos. 02-5170, 09-5493; to the Court of Appeal, Fourth Circuit, No. 2011-C-0846.

Denied.


text:
    STATE of Louisiana v. D’Sean CARTER.
    No. 2011-KK-1825.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Carter, D’Sean;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, Nos. 10-5756, 10-6181; to the Court of Appeal, Fifth Circuit, No. 11-K-640.

Denied.


text:
    Jerry STARR, individually and on Behalf of his minor daughter, Jamie Starr v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. John M. Byrd, Eugene Moore, Chris Navarro and Joseph Michael Williams v. State of Louisiana, through the Department of Transportation and Development.
    No. 2011-C-1835.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Department of Transportation and Development; State of Louisiana;—Defendants); Applying For Writ of Certiorari and/or Review, Parish of Caldwell, 37th Judicial District Court Div. 0, Nos. 24602, 24606; to the Court of Appeal, Second Circuit, Nos. 46,227-CA, 46,226-CA.

Denied.


text:
    Jerry STARR, individually and on Behalf of his minor daughter, Jamie Starr v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. John M. Byrd, Eugene Moore, Chris Navarro and Joseph Michael Williams v. State of Louisiana, through the Department of Transportation and Development.
    No. 2011-C-1952.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Byrd, John M.; Starr, Jerry;—Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of Caldwell, 37th Judicial District Court Div. 0, Nos. 24602, 24606; to the Court of Appeal, Second Circuit, Nos. 46,227-CA, 46,226-CA.

Denied.


text:
    Julie MATHERNE v. Ramey Joseph SCHNEIDER.
    No. 2011-CC-2077.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Matherne, Julie;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. L, No. 2003-13395; to the Court of Appeal, First Circuit, No. 2011 CW 0914.

Denied.

KNOLL, J., would grant.


text:
    STATE ex rel. Michael J. GAVIN v. STATE of Louisiana.
    No. 2011-KH-2156.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re Gavin, Michael J.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, Nos. 05-10-0473, 05-10-0473; to the Court of Appeal, First Circuit, No. 2011 KW 1524.

Denied.


text:
    STATE ex rel. Vincent Mark CASTILLO v. STATE of Louisiana.
    No. 2011-KH-2158.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In Re Castillo, Vincent Mark;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 10-1601; to the Court of Appeal, Fifth Circuit, No. 11-K-827.

Denied.


text:
    Jerry STARR, individually and on Behalf of his minor daughter, Jamie Starr v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. John M. Byrd, Eugene Moore, Chris Navarro and Joseph Michael Williams v. State of Louisiana, through the Department of Transportation and Development.
    No. 2011-C-1625.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re State of Louisiana;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caldwell, 37th Judicial District Court Div. 0, Nos. 24606, 24602; to the Court of Appeal, Second Circuit, Nos. 46,226-CA, 46,227-CA.

Denied.


text:
    Wilson Clark ANDREWS, Jr., Carl Gene Andrews, James Woodrow Andrews, Charles Edward Fisher, III and Terence Ray Fisher v. The GRAND CHAPTER, ORDER OF EASTERN STAR; SMG; the Consolidated Government of City of Baton Rouge, Western World Insurance Company, Chubb & Sons Group Insurance.
    No. 2011-CC-1813.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re City of Baton Rouge/Parish of East Baton Rouge; Federal Insurance Company; SMG;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 565,508; to the Court of Appeal, First Circuit, No. 2011 CW 0755.

Denied.


text:
    Janice JENKINS, Robert Jenkins, Michael Kiper, James Chapel Baptist Church, Inc., Claude Spruel, Curtis W. Mimms and David Johnson v. The GRAY INSURANCE COMPANY and Wallace C. Drennan, Inc.
    No. 2011-C-1821.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re James Chapel Baptist Church, Inc.; Jenkins, Janice et al.; Johnson, David; Kiper, Michael; Mimms, Curtis W.; Robert, Jenkins; Spruel, Claude;—Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2009-11813; to the Court of Appeal, Fourth Circuit, No. 2011-CA-35.

Denied.