author: MORRIS, Judge.

text:
    Jason M. WAVRA and Michelle R. Wavra, Appellants, v. NATIONAL CREDIT UNION ADMINISTRATION BOARD in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. Jason M. Wavra and Michelle R. Wavra, Appellants, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. Fue R. Vang and Chonnie Vang, Appellants, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. Fue R. Vang and Chonnie Vang, Appellants, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. William G. Smith and Judith L. Smith, Appellants, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. Dominick C. Savoca, Appellant, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. Orris A. Rodahl, Appellant, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. Nancy A. Miller, Appellant, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. Nancy A. Miller, Appellant, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. Garry Kuhn, Appellant, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. John Koprowski and Danielle Koprowski, Appellants, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. John Koprowski and Danielle Koprowski, Appellants, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. Shayne P. King and Erin L. Lydon-King, Appellants, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. Charise M. Davis, Appellant, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. John Steven Burton, Appellant, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. Thomas L. Altimas and Lisa Girard, Appellants, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee. Thomas L. Altimas and Lisa Girard, Appellants, v. National Credit Union Administration Board in its capacity as liquidating agent for Huron River Area Credit Union, Appellee.
    Nos. 2D10-2976, 2D10-2978, 2D10-2979, 2D10-2980, 2D10-2982, 2D10-2983, 2D10-2984, 2D10-2985, 2D10-2986, 2D10-2989, 2D10-2990, 2D10-2992, 2D10-2995, 2D10-2996, 2D10-2997, 2D10-2998, 2D10-3000.
    District Court of Appeal of Florida, Second District.
    May 9, 2012.
    Dineen Pashoukos Wasylik and G. Wre-de Kirkpatrick of Conwell Kirkpatrick, P.A., Tampa, for Appellants.
    Laurence S. Litow, Donna K. Knapton, Christopher D. Donovan, and Vijay G. Bri-jbasi of Roetzel & Andress, LPA, Fort Lauderdale; and Kimberly A. Davis of Roetzel & Andress, LPA, Ft. Myers for Appellee.
   MORRIS, Judge.

The homeowners in these seventeen consolidated cases appeal final summary judgments of foreclosure entered in favor of the National Credit Union Administration (NCUA). We affirm the final judgments without comment, with the exception of the portions of the judgments awarding attorney’s fees to the NCUA, which we reverse.

At the conclusion of the hearing on the NCUA’s motions for summary judgments, the trial court stated that if it ruled in favor of the NCUA on the motions for summary judgments, the court would reserve ruling on the issue of attorney’s fees. The parties agreed that they would deal with the issue of attorney’s fees later. But no hearing on attorney’s fees was ever conducted, and when the trial court entered its final judgments of foreclosure, the trial court found that “based upon the affidavits presented and upon inquiry of counsel for [the NCUA] that J0.J5 hours were reasonably expended by [the NCUA’s] counsel and that an hourly rate of $100-$300 is reasonable.”

On appeal, the homeowners argue that they were entitled to a hearing on attorney’s fees and that because they did not waive such a hearing, the fee award must be reversed. The NCUA conceded at oral argument that a reversal is necessary on this issue. We agree that because the homeowners did not waive their right to a hearing on attorney’s fees, the fee award should be reversed and remanded for a hearing. See Zumpf v. Countrywide Home Loans, Inc., 48 So.3d 764, 766 (Fla. 2d DCA 2010) (holding that in a foreclosure case, attorney’s fees are not liquidated damages and therefore require an evidentiary hearing: “[a]bsent an eviden-tiary hearing, the fee award will be reversed for a hearing unless there is an indication that the right to a hearing was waived” (citing Guyton v. Leonard Dewey Wilkinson Action Welding Supply, Inc., 707 So.2d 885, 886 (Fla. 1st DCA 1998))).

Affirmed in part; reversed in part; remanded.

KELLY and CRENSHAW, JJ., Concur.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas BILLARD v. Rhonda KLING, Record Analysis, et al.
    No. 2011-CI-0406.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Billard, Thomas; — Plaintiff; Applying for Reconsideration of this Court’s action dated March 2, 2012, and from 19th Judicial District Court Div. M, No. 553,-285; to the Court of Appeal, First Circuit, No. 2010 CA 0352.

Reconsideration denied.


text:
    STATE ex rel. Louie M. SCHEXNAYDER v. STATE of Louisiana.
    No. 2011-KH-0541.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Schexnayder, Louis; — Plaintiff; Applying for Reconsideration of this Court’s action dated March 2, 2012, and from 25th Judicial District Court Div. L, No. 94-0099; to the Court of Appeal, Fifth Circuit, Nos. 08-WR-915, 09-KH-159.

Reconsideration denied.


text:
    STATE ex rel. David Wayne POYDRAS v. STATE of Louisiana.
    No. 2011-KH-0825.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Poydras, David Wayne; — Plaintiff; Applying for Reconsideration of this court’s action dated March 9, 2012, Parish of Lafayette, 15th Judicial District Court Div. J, No. 52685; to the Court of Appeal, Third Circuit, No. KH 10-00685.

Reconsideration denied.

KNOLL, J., recused.


text:
    STATE ex rel. Zenovia TURNER v. STATE of Louisiana.
    No. 2011-KH-1079.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Turner, Zenovia; — Plaintiff; Applying for Reconsideration of this court’s action dated November 23, 2011, Parish of Ouachita, Monroe City Court, No. 200916616; to the Court of Appeal, Second Circuit, No. 46,383-KA.

Reconsideration denied.


text:
    STATE ex rel. Charles H. PARKER, Jr. v. STATE of Louisiana.
    No. 2011-KH-1243.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Parker, Jr., Charles H.; — Defendant; Applying for Reconsideration of this Court’s action dated March 9, 2012; Parish of Franklin, 5th Judicial District Court Div. B, No. 26203; to the Court of Appeal, Second Circuit, No. 46,643-KH.

Reconsideration denied.


text:
    STATE of Louisiana v. Aaron B. HILL.
    No. 2011-K-1920.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Aaron B. Hill — Defendant; Applying for Reconsideration of this Court’s Order dated January 20, 2012; to the Court of Appeal, First Circuit No. 2011 KW 1113; Parish of St. Tammany; Slidell City Court, Wards 8 & 9, No. 2010KS02537.

Reconsideration denied.


text:
    STATE ex rel. Vincent Mark CASTILLO v. STATE of Louisiana.
    No. 2011-KH-1373.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Castillo, Vincent Mark; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, First Parish Court, Parish of Jefferson, Nos. F1680698, F1789838, F1808683, F1808684, F1808685, F1859335, F1859969; 24th Judicial District Court Div. F, Nos. 10-1277, 10-1601; to the Court of Appeal, Fifth Circuit, Nos. ll-K-542, ll-KH-572, U-K-361.

Denied.


text:
    STATE ex rel. Davede L. DAVILLIER v. STATE of Louisiana.
    No. 2011-KH-1572.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Davillier, Davede L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish' of St. Tammany, 22nd Judicial District Court Div. D, No. 257854; to the Court of Appeal, First Circuit, No. 2011 KW 0667.

Denied.


text:
    STATE ex rel. Davede L. DAVILLIER v. STATE of Louisiana.
    No. 2011-KH-1575.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Davillier, Davede L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 235453; to the Court of Appeal, First Circuit, No. 2011 KW 0243.

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. Davede L. DAVILLIER v. STATE of Louisiana.
    No. 2011-KH-1576.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Davillier, Davede L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 431203; to the Court of Appeal, First Circuit, No. 2011 KW 0628.

Denied.


text:
    STATE of Louisiana v. Vincent Patrick BALL.
    No. 2011-K-1597.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Ball, Vincent Patrick; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. 0, No. 09-2804; to the Court of Appeal, Fifth Circuit, No. 10-KA-847.

Denied.


text:
    STATE ex rel. Raymond Charles FOSTER v. STATE of Louisiana.
    No. 2011-KH-1770.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Foster, Raymond Charles; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 461^125; to the Court of Appeal, First Circuit, No. 2011 KW 0708.

Denied.


text:
    STATE ex rel. Andrew HARVEY, Jr. v. STATE of Louisiana.
    No. 2011-KH-1775.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Harvey Jr., Andrew; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 801966; to the Court of Appeal, First Circuit, No. 2011-KW-0685.

Denied.


text:
    STATE ex rel. Harry Lee RICHARDSON v. STATE of Louisiana.
    No. 2011-KH-1777.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Richardson, Harry Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 259,540; to the Court of Appeal, Second Circuit, No. KA-11-46360.

Denied.


text:
    STATE ex rel. James Earl FRANKLIN v. STATE of Louisiana.
    No. 2011-KH-1780.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Franklin, James Earl; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. C, No. 54,574; to the Court of Appeal, Second Circuit, No. 46,-734-KH.

Denied.


text:
    STATE ex rel. Edward McMILLAN v. STATE of Louisiana.
    No. 2011-KH-1802.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re McMillan, Edward; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 07-2561; to the Court of Appeal, Fifth Circuit, Nos. 11-KH-624, ll-KH-477.

Denied.


text:
    STATE ex rel. Charles HARDIN v. STATE of Louisiana.
    No. 2011-KH-1807.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Hardin, Charles; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 97-2600; to the Court of Appeal, Fifth Circuit, Nos. 09-WR-832,10-KH-168.

Denied.


text:
    STATE ex rel. Arthur WILLIAMS v. STATE of Louisiana.
    No. 2011-KH-1817.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Williams, Arthur; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 96-6211; to the Court of Appeal, Fifth Circuit, No. 11-KH-629.

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.


text:
    STATE ex rel. Gregory J. CHISOLM v. STATE of Louisiana.
    No. 2011-KH-1818.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Chisolm, Gregory J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. D, No. 15310; to the Court of Appeal, First Circuit, No. 2011 KW 0483.

Denied.


text:
    STATE ex rel. Marlon HARRIS v. STATE of Louisiana.
    No. 2011-KH-1822.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Harris, Marlon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 09-07-0864; to the Court of Appeal, First Circuit, No. 2010 KA 2040.

Denied.


text:
    STATE ex rel. John EFFIT v. STATE of Louisiana.
    No. 2011-KH-1828.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Effít, John; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 2, No. 103,837.

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. Christopher E. SANBORN v. STATE of Louisiana.
    No. 2011-KH-1829.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Sanborn, Christopher E.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. D, No. 99-0318; to the Court of Appeal, Fifth Circuit, No. 09-WR-568.

Denied.


text:
    STATE ex rel. Wilbert G. GREEN v. STATE of Louisiana.
    No. 2011-KH-1830.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Green, Wilbert G.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 259,659; to the Court of Appeal, Third Circuit, No. KH 10-01114.

Denied.


text:
    STATE ex rel. Phillip DAVIS v. STATE of Louisiana.
    No. 2011-KH-1839.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Davis, Phillip; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. C-7434; to the Court of Appeal, Third Circuit, No. KH 10-00963.

Denied.


text:
    STATE ex rel. Sylvester MEAD v. STATE of Louisiana.
    No. 2011-KH-1840.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Mead, Sylvester; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. A, No. 211,460; to the Court of Appeal, Second Circuit, No. 46,-679-KH.

Denied.


text:
    STATE ex rel. Joseph BROWN v. STATE of Louisiana.
    No. 2011-KH-1850.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Brown, Joseph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 197-714.

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. Michael BARTLEY v. STATE of Louisiana.
    No. 2011-KH-1851.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Bartley, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 03-1596; to the Court of Appeal, Fifth Circuit, No. 11-KH-711.

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 ex rel. Derek JOHNSON v. STATE of Louisiana.
    No. 2011-KH-1852.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Johnson, Derek; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 375-832; to the Court of Appeal, Fourth Circuit, No. 2011-K-0925.

Denied.


text:
    STATE ex rel. Samuel JONES v. STATE of Louisiana.
    No. 2011-KH-1862.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Jones, Samuel; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 96-6756; to the Court of Appeal, Fifth Circuit, No. 11-KH-637.

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 ex rel. Brandon TWILLIE v. STATE of Louisiana.
    No. 2011-KH-1863.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Twillie, Brandon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 419059; to the Court of Appeal, First Circuit, No. 2011-KW-0969.

Denied.


text:
    STATE ex rel. Carson W. THOMAS v. STATE of Louisiana.
    No. 2011-KH-1864.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Thomas, Carson W.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 97-CR-510; to the Court of Appeal, First Circuit, No. 2011-KW-1150.

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. Jody L. SWAPFORD v. STATE of Louisiana.
    No. 2011-KH-1872.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Swafford, Jody L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 432816; to the Court of Appeal, First Circuit, No. 2010 KA 1791.

Denied.


text:
    STATE ex rel. Namicha LACEY v. STATE of Louisiana.
    No. 2011-KH-1873.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Lacey, Namicha; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 12-07-0502; to the Court of Appeal, First Circuit, No. 2010 KA 1414.

Denied.


text:
    STATE ex rel. Michael WILLIAMS v. STATE of Louisiana.
    No. 2011-KH-1893.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Williams, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 344-459; to the Court of Appeal, Fourth Circuit, No. 2011-K-0927.

Denied.


text:
    STATE ex rel. Kevin L. GOLDSTON v. STATE of Louisiana.
    No. 2011-KH-1894.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Goldston, Kevin L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 430-300; to the Court of Appeal, Fourth Circuit, No. 2011-K-1018.

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. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana v. Jorge ESTRADA.
    No. 2011-K-1900.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Estrada, Jorge; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 107,680; to the Court of Appeal, First Circuit, No. 2009 KA 1458.

Denied.


text:
    STATE ex rel. Charles LEE v. STATE of Louisiana.
    No. 2011-KH-1903.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Lee, Charles; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 390-871; to the Court of Appeal, Fourth Circuit, No. 2011-K-1025.

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. Lisa PEREZ v. STATE of Louisiana.
    No. 2011-KH-1905.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Perez, Lisa; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 04-6104; to the Court of Appeal, Fifth Circuit, No. ll-KH-663.

Denied. Result is correct.


text:
    STATE ex rel. Jayvonte T. PINES v. STATE of Louisiana.
    No. 2011-KH-1906.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Jayvonte T. Pines; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 700,414; to the Court of Appeal, First Circuit, No. 2011 KW 1277.

Denied.


text:
    STATE ex rel. Kendall Paul DAVIS v. STATE of Louisiana.
    No. 2011-KH-1908.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Davis, Kendall Paul; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. B, No. 07-234224; to the Court of Appeal, Third Circuit, No. 09-1061.

Denied.


text:
    STATE ex rel. Annie Lee MAMON v. STATE of Louisiana.
    No. 2011-KH-1916.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Mamón, Annie Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. A, No. 36,800; to the Court of Appeal, Second Circuit, No. 46816-KH.

Denied.


text:
    STATE ex rel. John S. WELLS v. STATE of Louisiana.
    No. 2011-KH-1917.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Wells, John S.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 422267; to the Court of Appeal, First Circuit, No. 2011 KW 0651.

Denied.


text:
    STATE ex rel. Lutgardo SILVA v. STATE of Louisiana.
    No. 2011-KH-1938.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Silva, Lutgardo; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, Nos. 94-6484, 95-5112; to the Court of Appeal, Fifth Circuit, No. ll-KH-670.

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.


text:
    Timothy Hugh QUEEN v. H. Gregory TETE, Sr. Warden.
    No. 2011-CI-1943.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Queen, Timothy Hugh; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 2009-3328; to the Court of Appeal, Third Circuit, No. 10-1435.

Denied.


text:
    STATE ex rel. Virgil L. SMITH v. STATE of Louisiana.
    No. 2011-KH-1955.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Smith, Virgil L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 334402; to the Court of Appeal, First Circuit, No. 2011 KW 0502.

Denied.


text:
    STATE ex rel. Warren B. BRISBON v. STATE of Louisiana.
    No. 2011-KH-1958.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Brisbon, Warren B.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 324-642; to the Court of Appeal, Fourth Circuit, No. 2011-K-0629.

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


text:
    STATE of Louisiana v. Alvin WASHINGTON.
    No. 2011-KO-2305.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Washington, Alvin; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. C, No. 82,246; to the Court of Appeal, Second Circuit, No. 46,-568-KA.

Denied.


text:
    STATE of Louisiana v. Gregory Glenn CALDWELL.
    No. 2011-KO-2348.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Caldwell, Gregory Glenn; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 285,461; to the Court of Appeal, Second Circuit, No. 46,645-KA.

Denied.


text:
    STATE of Louisiana v. Robert E. TURNER III.
    No. 2011-K-2379.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Turner III, Robert E.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 09-2283; to the Court of Appeal, Fifth Circuit, No. 10-KA-995.

Denied.


text:
    STATE in the Interest of T.D.
    No. 2011-CK-2529.
    Supreme Court of Louisiana.
    April 27, 2012.
   ■In re State of Louisiana; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Juvenile Court, No. 2011-160-02-DQ-F; to the Court of Appeal, Fourth Circuit, No. 2011-C-1224.

Denied.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Toriano Z. KELLY.
    No. 2011-K-2723.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Kelly, Toriano Z.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. A, No. 903,397; to the Court of Appeal, First Circuit, No. 2011 KA 0298.

Denied.


text:
    STATE of Louisiana v. Patrick WILSON.
    No. 2011-K-2743.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Wilson, Patrick; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 12-09-0505; to the Court of Appeal, First Circuit, No. 2011 KA 0538.

Denied.


text:
    STATE of Louisiana v. Jacque NAILOR.
    No. 2011-K-2780.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Nailor, Jacque; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 08-3367; to the Court of Appeal, Fifth Circuit, No. 10-KA-1062.

Denied.

GUIDRY, J., recused.


text:
    STATE of Louisiana v. Tommy Joseph CULLIER.
    No. 2011-KO-2794.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Cullier, Tommy Joseph; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. OS-3614; to the Court of Appeal, Fifth Circuit, No. 10-KA-1066.

Denied.


text:
    STATE of Louisiana v. Roger L. RICHARDS.
    No. 2011-KO-2807.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Richards, Roger L.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 479-555; to the Court of Appeal, Fourth Circuit, No. 2011-KA-0349.

Denied.


text:
    STATE of Louisiana v. Darry Ray ELMORE.
    No. 2012-KO-0006.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Elmore, Darry Ray; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. K, No. 10-F0720; to the Court of Appeal, Second Circuit, No. 46,833-KA.

Denied.


text:
    Thomas LEMELLE v. ST. CHARLES GAMING COMPANY, INC.
    No. 2012-C-0339.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Lemelle, Thomas; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2009-1884; to the Court of Appeal, Third Circuit, No. 11-255.

Denied.

KNOLL, J., would grant.


text:
    Christina A. Hoyt HUTTO, et al. v. McNEIL-PPC, INC., et al.
    No. 2012-C-0402.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re McNeil — PPC, Inc., et al.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. D, No. 04-C-0096-D; to the Court of Appeal, Third Circuit, No. 11-609.

Denied.

VICTORY, J., would grant.


text:
    Loretta BOURGEOIS, Individually and on Behalf of her Deceased Son, Clifton Rivera v. RIVERBEND WELLNESS CENTER, INC. d/b/a Horizon Pain Management and d/b/a Riverbend Wellness Center, William P. Hudson, M.D., Keith William Blackman, M.D., Susan Frances Julius, M.D., and Mary Kathleen Crossley-Miller.
    No. 2012-CC-0421.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Julius M.D., Susan Frances; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 631-250; to the Court of Appeal, Fifth Circuit, No. ll-C-1036.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    James GAUNT Husband of/and Caroline Mainit Gaunt v. PROGRESSIVE SECURITY INSURANCE COMPANY, Republic Western Insurance Company, Citgo Snack and Pack, Omar Erazo and U-Haul International, Inc.
    No. 2012-CC-0522.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Citgo Snack and Pack; Khan, Azhar; U-Haul Co. of Georgia; U-Haul International, Inc.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2006-5276; to the Court of Appeal, Fourth Circuit, No. 2011-CA-1094.

Denied.


text:
    Deborah K. HARPER and Calvin W. Harper. v. Claude MINOR, M.D., HCA Health Services of Louisiana, d/b/a North Monroe Hospital and Unknown Insurance Carriers.
    No. 2012-C-0524.
    Supreme Court of Louisiana.
    April 27, 2012.
   IN RE: Minor M.D., Claude; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. A, No. 07-0283; to the Court of Appeal, Second Circuit, No. 46,871-CA;

Denied.

VICTORY, and CLARK, JJ., would grant.


text:
    Wayne Joseph ST. PIERRE v. NORTHROP GRUMMAN SHIPBUILDING, INC., et al.
    No. 2012-CC-0614.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Lawyer, Robin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 09-12001; to the Court of Appeal, Fourth Circuit, No. 2012-C-0004.

Denied.


text:
    Michael O. READ v. WILLWOODS COMMUNITY.
    No. 2012-C-0616.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Willwoods Community; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 689-848; to the Court of Appeal, Fifth Circuit, No. ll-CA-222.

Denied.


text:
    Regina EDWARDS v. AUTO SPA, LLC. and XYZ Insurance Company.
    No. 2012-CC-0618.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Edwards, Regina; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. E, No. 95,996; to the Court of Appeal, First Circuit, No. 2011 CW1969.

Denied.


text:
    STATE of Louisiana v. David MATHIS.
    No. 2012-KK-0621.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Mathis, David; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. A, No. 04-8-77; to the Court of Appeal, First Circuit, No. 2012 KW 0027.

Denied.


text:
    Dolores N. BUFORD and Cedrick E. Buford v. John H. WILLIAMS, Jr. and Universal Health Services, Inc. as Owner/Operator of River Oaks Hospital.
    No. 2012-C-0624.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re River Oaks D/B/A River Oaks Hospital; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 694-061; to the Court of Appeal, Fifth Circuit, No. ll-CA-568.

Denied.


text:
    STATE of Louisiana v. Blaine S. JOHNSON.
    No. 2012-KK-0634.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Johnson, Blaine S.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 92-1128; to the Court of Appeal, Fifth Circuit, No. 12-KH-40.

Denied.

KNOLL and WEIMER, JJ., would grant.


text:
    Judy A. WALKER v. III, L.L.C. OF MISSISSIPPI, et al.
    No. 2012-CC-0637.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Accident Insurance Company Inc.; Ill L.L.C. of Mississippi et al.; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2011-2280; to the Court of Appeal, Fourth Circuit, No. 2011-C-1771.

Denied.

VICTORY, J., would grant.


text:
    Jack DUTY v. LOUISIANA FIREFIGHTERS’ RETIREMENT SYSTEM and City of Natchitoches.
    No. 2012-C-0638.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Duty, Jack; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Natchitoches, 10th Judicial District Court Div. A, No. 81,283; to the Court of Appeal, Third Circuit, No. 11-1073.

Denied.


text:
    STATE of Louisiana v. Rene SALAZAR.
    No. 2012-KK-0639.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Salazar, Rene; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 31397-10; to the Court of Appeal, Third Circuit, No. KW 12-00069.

Denied.


text:
    The CITY OF NEW ORLEANS, et al. v. Gwendolyn D. ENGLAND, et al.
    No. 2012-CC-0643.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Bagneris, Daniel C.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2010-12679 C/W 2011-1132; to the Court of Appeal, Fourth Circuit, No. 2011-C-1745.

Denied.


text:
    RISING RESOURCES CONTROL, INC. v. KIE COMMODITIES AND FINANCE, L.L.C. and Dennis McLain.
    No. 2012-C-0658.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Rising Resources Control, Inc.; — ' Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. G, No. 122103; to the Court of Appeal, First Circuit, No. 2011 CA 1026.

Denied.


text:
    Deborah K. HARPER and Calvin W. Harper v. Claude MINOR, M.D., HCA Health Services of Louisiana, d/b/a North Monroe Hospital and Unknown Insurance Carriers.
    No. 2012-C-0528.
    Supreme Court of Louisiana.
    April 27, 2012.
   In* re Davis M.D., John A.; Louisiana Medical Mutual Insurance Company; — Defendant(s); Applying For Writ of Certiora-ri and/or Review, Parish of Ouachita, 4th Judicial District Court Div. A, No. 07-0233; to the Court of Appeal, Second Circuit, No. 46,871-CA.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    Jarrett TAYLOR, Kelleye Taylor, Richard Seymour and Vickie Seymour v. The CITY OF BOGALUSA.
    No. 2012-CC-0604.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re City of Bogalusa; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. C, No. 94446; to the Court of Appeal, First Circuit, No. 2011 CW 1958.

Denied.

VICTORY, J., would grant.


text:
    Patricia GRANT, Wife of/and Richard Grant, et al., Individually and on Behalf of all Others Similarly Situated v. SUN CONSTRUCTION, LLC; Penn Mill Lakes, LLC; Sunrise Construction and Development, LLC; and Cooper Engineering, Inc., a Professional Engineering Corporation.
    No. 2012-CC-0608.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Penn Mill Lakes, LLC; Sun Construction, LLC; Sunrise Construction and Development, LLC; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, Nos. 2008-11536, 2006-16084, 2008-10737; to the Court of Appeal, First Circuit, No. 2011 CW 2018.

Denied.


author: MARION F. EDWARDS, Chief Judge.

text:
    Barbara DRURY, Individually and as Administratrix of the Estate of her Minor Child, Amber D. Drury v. ALLSTATE INSURANCE COMPANY and Harold J. Vega, Jr. Brian Winkler v. Allstate Insurance Company, Harold J. Vega, Jr., the State of Louisiana, Department of Transportation and Development, and Liberty Mutual Fire Insurance Company.
    Nos. 11-CA-509, 11-CA-510.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Peter M. Meisner, Attorney at Law, River Ridge, LA, for Plaintiffs/Appellants.
    William P. Connick, Michael S. Futrell, Rachel M. Riser, Connick & Connick, L.L.C., Metairie, LA, for Defendant/Appel-lee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Chief Judge.

12PIaintiffs/appellants, Barbara Drury, individually and as administratrix of the estate of her minor daughter, Amber Dru-ry, and Brian Winkler (“Winkler”), appeal summary judgment granted in favor of the defendanVappellee, the Parish of Jefferson.

The matter involves an auto accident that occurred on October 14, 2005. On that date, at approximately 10:14 p.m., Amber Drury was operating her vehicle and attempting to cross Veterans Memorial Boulevard at the intersection of Lake Villa Avenue. As she did so, her vehicle was struck by a Ford Explorer owned and driven by defendant, Harold Vega (“Vega”). Amber Drury suffered injuries to her person. Winkler was a passenger in Amber’s auto and also sustained injuries. Drury and Winkler filed separate lawsuits, which were ultimately consolidated for disposition.

The original suit filed by Drury named Alstate Insurance Company (“Alstate”) and its insured, Vega, as defendants. By a supplemental and amending petition, the State of Louisiana, through the Department of Transportation and ^Development (“DOTD”) and the Parish of Jefferson (“the Parish”) were also named as defendants. In the amending petition, Drury alleged that the intersection at which the accident occurred was designed in a manner that created an unreasonable risk of harm due in part to a rise in the roadway just west of the intersection. In a second amending petition, Drury alleged that the placement of the stop sign necessitated a driver to approach the edge of the highway in order to obtain a view of oncoming traffic and that her view was obscured by foliage on the public servitude, as well as by a bus stop covered with signage that constituted an obstruction. Following a partial settlement, Vega and Alstate were dismissed from the Drury lawsuit.

In the original Winkler petition, all of the above named defendants, plus Liberty Mutual Fire Insurance Company (“Liberty Mutual”), as Winkler’s uninsured motorist (UM) carrier, were impleaded. In subsequent proceedings, Vega, Alstate, DOTD, and Liberty Mutual were voluntarily dismissed. The Parish filed motions for summary judgment in both cases. Ater a hearing on June 18, 2010, the trial court granted summary judgment in favor of the Parish in both consolidated cases. This appeal follows.

At the hearing, the Parish argued that all factual evidence demonstrated that Amber Drury disregarded the stop sign placed at the intersection and this fact, in addition to the intoxication of Vega, was the cause of the accident. It was further urged that the plaintiffs failed to meet their burden of proof as to the notice requirement under La. R.S. 9:2800. The Parish contended that, although the plaintiffs asserted that a bus shelter, bushes, trees, and other foliage restricted the visibility of eastbound oncoming traffic at the intersection, it had not been shown that the site existed as depicted at the time of the accident, or that the Parish had actual or constructive notice of an unreasonably dangerous condition. Thus, |4according to the Parish, plaintiffs had failed to put forth sufficient factual support as to one or more elements of the claim.

In connection with its Motion For Summary Judgment, the Parish attached a copy of the police report. It also attached an affidavit of Don L. Ivey, a civil engineer, who attested that he studied the police report, photographs of the intersection and of the damage to plaintiffs vehicle, and certain pleadings. The intersection was surveyed, at his request and under his direction, and he opined that the traffic controls were appropriate, that the sight distance was according to standards, and that a driver “responding properly” to the stop sign has more than enough time and distance to cross the highway safely. He ultimately concluded that the intersection was properly designed and that the accident was caused by Amber Drury, who either disregarded the stop sign or chose to proceed without consideration of oncoming visible traffic.

In opposition to the motion, plaintiffs filed a report by its expert, 0. Franklyn Griffith III, a professor of physics, who concluded that measurements and photographs taken by him showed a line of vision obstruction consisting of bushes, trees, a bus stop shelter, and two bush lines approximately perpendicular to Veterans Memorial Boulevard. He further opined that the vision of two witnesses, who indicated that Amber Drury did not stop at the stop sign, was- also obscured. He concluded that the restricted sight line was a major causative factor in the accident. Attached to his report are photocopies of the pictures taken by him at the scene. Also attached were portions of Amber’s deposition in which she testified that her friend, Shantel Guerrea, told her she saw Amber stop at the stop sign. Finally, plaintiffs attached summaries of accident reports for 1997-99 showing the number of accidents at the intersection.

|sAlso in the appellate record is Wink-ler’s affidavit. Winkler stated he did not observe Amber Drury disregarding any traffic signs or signals.

On July 7, 2010, after the hearing, but while the judgment was under advisement, plaintiffs filed an Addendum to Plaintiffs Post-Hearing Memorandum and Request to Hold Case in Abeyance Pending Discovery. In that pleading, Drury attached certain Responses of Jefferson Parish to a Request for Admissions, which responses were served on July 7, 2010. In the responses, the Parish admitted that it made or participated in making the decision regarding the location and placement of the bus stop at the intersection in question and that it had a contract with a third party to maintain and repair it at the time of the accident.

The trial court granted judgment on October 6, 2010, at which time it determined that the plaintiffs could not sustain their burden of proof under La. R.S. 9:2800 “regarding knowledge of the alleged defect and failure to take corrective action by the Parish of Jefferson.” The court referred to photos submitted by the plaintiffs, finding they “do not prove per se that the Parish knew or should have known of the alleged defect, there is no evidence that the Parish constructed the bus stop, and no evidence that the Parish knew or should have known of alleged [sic] defect in the line of vision.” The court also found that accident reports submitted by the plaintiff were not timely, were not disposi-tive, and did not show knowledge of any alleged defect.

After rendition of the judgment, plaintiffs filed a motion for a rehearing, urging that the depositions of the Director of Engineering for the Parish, Mark Drews, and the Director of Transit, Darnel Brown, had been taken on September 13, 2010, after the hearing but, again, while the matter was still under advisement. Plaintiffs stated that the depositions had been delivered to them on October 6 (the same day summary judgment was rendered) and averred that the transcript shows [fithe existence of material facts. Specifically, it was alleged that the transcript shows the Parish made the determination as to the location of the bus stop and, thus, had actual notice of a defect.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo. An appellate court, thus, asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. On a motion for summary judgment, the burden of proof is on the mover. Under La. C.C.P. art. 966, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2).

Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion.

|7In actions against a public entity, the plaintiff must establish that the thing which caused the damage was in the custody of the defendant, that the thing was defective because it had a condition which created an unreasonable risk of harm, that defendant had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and that the defect was a cause in fact of plaintiffs injuries. La. R.S. 9:2800. “Constructive notice shall mean the existence of facts which infer actual knowledge.” La. R.S. 9:2800(D). Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury.

Whether a public entity breached its duty to the motoring public, by knowingly maintaining a defective or unreasonably dangerous roadway, depends on the facts and circumstances of the case. Both the determination of whether a condition is dangerous and hazardous, and causation, are fact-specific inquiries.

The police report introduced by the State at the hearing on the motion was incompetent evidence for summary judgment. On motions for summary judgment, supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967. Personal knowledge means something which a •witness actually saw or heard, as distinguished from something a witness learned from some other person or Issource. A police report does not comply with the requirement that supporting and opposing affidavits shall be made on personal knowledge. In this case, the Parish failed to provide an affidavit or deposition testimony of the police officer who authored the report or other witnesses, in support of its motion for summary judgment.

Similarly, La. C.C.P. arts. 966 and 967 do not permit a party to utilize un-sworn and unverified documents as summary judgment evidence. Thus, a document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. Therefore, in meeting the burden of proof, un-sworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform such documents into competent summary judgment evidence. For this reason, we do not consider Dr. Griffith’s report or the attachments thereto, nor do we consider the accident summary reports submitted.

At summary judgment, the issue urged was that plaintiffs could not prove that the Parish had actual or constructive notice knowledge of an unreasonably dangerous condition. The admissions submitted by plaintiffs show that the Parish had knowledge of and/or responsibility for the precise location of the bus stop, which Amber Drury urges obscured her vision of the roadway and, thus, constituted a defect (according to plaintiffs). Whether or not a condition (in this case the position of the bus stop) constitutes a defect is a question of material fact. The structure was on the Parish property and in the custody of the Parish. Whether the Parish had actual or constructive notice of a potential defect is a question of |flfact. The answers to the request for admissions submitted by the plaintiffs put that matter at issue. Mr. Ivey’s affidavit does not address and, thus, does not resolve the question. Additionally, Mr. Ivey’s conclusions as to the cause of the accident are not supported by the facts delineated in his affidavit. Under the circumstances, the cause of the accident is an unanswered question of fact.

Contrary to the trial court’s several comments at the hearing, constructive notice is not actual notice. As stated above, constructive notice may be shown if the conditions that caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. This fact has yet to be determined.

For the foregoing reasons, we reverse the judgment of the trial court and remand the matter for further proceedings.

REVERSED AND REMANDED

      . Wallace v. Treasure Chest Casino, L.L.C., 05-484 (La.App. 5 Cir. 12/27/05), 920 So.2d 251, 254.

      . See also, e.g., Janney v. Pearce, 09-2103 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 288-89, writ denied, 10-1356 (La.9/24/10), 45 So.3d 1078.

      . Jones v. Gray Ins. Co., 07-650 (La.App. 5 Cir. 2/6/08), 980 So.2d 1, 3-4 (citing Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765).

      . See also, Warden v. Richoux, 09-794 (La. App. 5 Cir. 3/23/10), 40 So.3d 139, 145, writ denied, 10-0921 (La.6/25/10), 38 So.3d 340 (citing Fuselier v. Matranga, 01-721, p. 5 (La. App. 5 Cir. 11/27/01), 803 So.2d 151, 154-55, writ denied, 01-3393 (La.3/15/02), 811 So.2d 908).

      . Warden v. Richoux, supra (citing Blount v. East Jefferson Gen. Hosp., 04-407, p. 5 (La.App. 5 Cir. 10/12/04), 887 So.2d 535, 538).

      . Duperclay v. Illinois Cent. R.R. Co., 04-452 (La.App. 5 Cir. 12/28/04), 892 So.2d 124, 127 (citing Fuselier v. Matranga, 01-721 (La.App. 5 Cir. 11/27/01), 803 So.2d 151, writ denied, 01-3393 (La.3/15/02), 811 So.2d 908).

      . Duperclay, supra.

      . Estate of Loveless ex rel. Loveless v. Gay, 41,575 (La.App. 2 Cir. 12/13/06), 945 So.2d 233, 236.

      . Id.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Brigitte B. HOLTHAUSEN, Luciano Holthausen and Holthausen, Inc. a/k/a “HEMLINE” v. DMARTINO, L.L.C., Muriel Decker and Lynell Decker.
    No. 11-CA-561.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 4, 2012.

      J. Patrick Connick, Bryan S. McManus, Attorneys at Law, Marrero, LA, for Plaintiffs/Appellants.
    Kyle Schonekas, Joelle F. Evans, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and ROBERT A. CHAISSON.
   WALTER J. ROTHSCHILD, Judge.

bBrigitte B. Holthausen, Luciano Hol-thausen and Holthausen, Inc. a/k/a “Hemline,” filed the instant Petition for Damages and Breach of Contract against DMartino, LLC, Muriel Martins and Ly-nell Decker on the basis of certain lease agreements executed between the parties. Plaintiffs subsequently filed a Supplemental and Amending Petition for Damages requesting temporary, preliminary and in-junctive relief against defendants.

The allegations of these petitions indicate that plaintiffs operate a retail women’s clothing business in Louisiana, and as part of the business, plaintiffs lease the use of their trade names and logos to certain retailers. In the original petition, plaintiffs alleged that they entered into a lease agreement in 2004 with defendants who opened “Hemline” stores in Houston, Texas. Plaintiffs further alleged that defendants breached the contract of lease in several enumerated instances. Plaintiffs also sought a declaratory judgment that defendants acted in bad faith in their performance of their obligations under the agreement. In the | ¡¡supplemental petition, plaintiffs alleged that new five-year lease agreements were executed with defendants in 2008 for the three stores defendants were operating at that time. According to plaintiffs’ allegations, these agreements included a provision that during the lease term and for one year after its termination, defendants were prohibited from owning or operating a women’s clothing business in the Houston area, (hereinafter referred to as “the Non-Compete Clauses”). Plaintiffs attached to their petitions copies of the aforementioned lease agreements between the parties.

Defendants responded with an answer including affirmative defenses as well as a reconventional demand alleging breach of the lease obligations by plaintiffs. Thereafter, defendants filed a motion for partial summary judgment seeking a ruling that the Non-Compete Clauses of the 2008 lease agreements were invalid and unenforceable as a matter of law. Defendants argued that Texas law applies to the enforcement of the Non-Compete Clauses of the agreements, and that pursuant to applicable Texas law, the Non-Competes are unforceable.

Plaintiffs subsequently filed a cross-motion for partial summary judgment on the issue of the enforceability of the Non-Compete Clauses and also filed an opposition to defendants’ summary judgment motion. Plaintiffs contended that the agreements in this case contain both choice of law provisions and forum selection clauses. Plaintiffs argued that Louisiana law was applicable to resolve the issues between the parties. Plaintiffs sought summary judgment that the Non-Compete Clauses are enforceable pursuant to Louisiana law.

This matter came for hearing on January 21, 2010. After argument, the trial court orally granted defendants’ motion for partial summary judgment and denied plaintiffs’ motion, thereby finding the Non-Compete Clauses to be unenforceable as a matter of law. On the same day, plaintiffs requested written reasons for | Judgment pursuant to La. C.C.P. art. 1917. Defendants objected to the request for written reasons on the basis that article 1917 only requires written reasons in “appealable contested cases.” On February 4, 2010, the trial court entered an ex parte order denying the request for reasons, stating “[t]he matter subject to the request was not a final judgment.” On February 8, 2010, plaintiffs noticed their intent to seek supervisory review from the trial court’s January 21, 2010 ruling.

Our Court records indicate that on March 17, 2010, the Holthausen plaintiffs filed a writ application from the trial court’s January 21, 2010 ruling. Defendants’ opposition thereto was filed on March 26, 2010. Plaintiffs were granted time to respond and filed a reply memorandum on March 31, 2010. On May 5, 2010, the writ application was denied by a panel of this Court with the following language:

On the showing made, we decline to exercise our supervisory jurisdiction in this matter. Further, relator has an adequate remedy on appeal. This writ application is hereby denied.

Holthausen, et al v. DMartino, LLC, et al, No. 10C219 (La.App. 5 Cir. 5/5/2010). Our records indicate that plaintiffs did not file an application for review of this decision with the Louisiana Supreme Court.

Several months later, on January 14, 2011, plaintiffs filed in the trial court a Motion to Vacate and Partial Summary Judgment and/or Declaratory Judgment. In that motion, plaintiffs requested that the trial court vacate its previous judgment and issue partial summary judgment declaring that the' Non-Compete Clauses executed by the parties were valid under Texas law and that defendants breached certain applicable sections of the contracts. Plaintiffs also argued that as the trial court applied Texas law to this dispute, the court was required to reform the agreements to comply with law. Plaintiffs further argued that because the trial Rcourt did not declare its previous ruling to be a final judgment, the court had the authority to vacate that ruling. Defendants opposed this motion on the basis that reconsideration of the trial court’s ruling was unwarranted.

This matter was heard by the trial court on March 3, 2011, and by judgment rendered the same day, the motion to vacate and partial summary judgment were denied. The trial court further stated that the judgment constitutes “a final judgment as there is no just reason for delay on the issue of whether or not the non-compete clause is enforceable.” It is from this judgment that plaintiffs now seek this de-volutive appeal.

In its oral reasons stated at the motion hearing, the trial court denied the motion to vacate on the basis of the doctrine of law of the case, noting that plaintiffs’ counsel indicated that there had been no change in the law or facts since the court’s previous ruling. Thus, the trial court upheld its previous ruling denying the motion for partial summary judgment. The trial court further stated:

Now, what I am going to add to my order and my ruling is that this is a final judgment, all right, and that language is to be incorporated in my judgment on your motion. So then if there is some concern on your client’s part about the Fifth Circuit declining to exercise its supervisory jurisdiction, I think with that language you can now exercise an appeal, okay, from my ruling.

By the present appeal, plaintiffs argue that the trial court erred in its determination that this matter is governed by the doctrine of law of the case. Further, plaintiffs argue that the trial court erred in ruling the Non-Compete Clauses were unenforceable under Texas law and in failing to reform the agreement to comply with the law.

Based on the unusual posture of this case, we find it appropriate for us to consider the basis for our jurisdiction before addressing the merits of this appeal. Appellate courts have the duty to examine subject matter jurisdiction sua sponte, |fieven when the parties do not raise the issue. Motorola, Inc. v. Associated Indem. Corp., 2002-0716 (La.App. 1st Cir.4/30/08), 867 So.2d 715, 717; Boudreaux v. State, Dept. of Transp. and Development, 011329 (La.2/26/02), 815 So.2d 7, 13.

The judgment from which this appeal is taken is a denial of plaintiffs’ motion to vacate the court’s previous ruling denying the motion for partial summary judgment. The judgment in the present case does not adjudicate all of the claims of the parties because there has been no decision as to the merits of the petition or the reconven-tional demand. It is evident that the judgment will not terminate the suit, and that the same parties will continue to litigate the remaining issues. Nevertheless, without stating reasons therefor, the trial court designated the judgment as final for purposes of an immediate appeal.

The law in Louisiana is well settled that a final judgment is appealable in all causes in which appeals are given by law. La. C.C.P. art. 2083. An interlocutory judgment is appealable only when expressly provided by law. Id. When a court renders a partial judgment or a partial summary judgment as to one or more but less than all of the claims, demands, issues, or theories, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay. La. C.C.P. art. 1915(B)(1). However, the law specifically provides that an appeal does not lie from the court’s refusal to render a summary judgment. La. C.C.P. art. 968.

This Court has previously considered the issue of whether a denial of a summary judgment constitutes a final appealable judgment when it has been designated as such by the trial court. In Ware v. Mumford, 04-118 (La.App. 5 Cir. 5/26/04), 875 So.2d 885, this Court dismissed an appeal of a denial of defendant’s motion for summary judgment stating as follows:

|7La.Code of Civil Procedure Article 968 provides that “An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.” Code of Civil Procedure Article 1915 provides for the certification of partial final judgments. However, article 1915 does not supercede article 968. The certification of [defendant’s] Motion for Summary Judgment by the trial court did not convert a non-appealable judgment into an appealable judgment. Id., 04-118, p. 2, 875 So.2d at 886-887.

Although the judgment in the present case was designated by the trial court as final, we are not bound by this determination. When no reasons are given by the trial court for certification, the appellate court reviews the certification de novo. When an appellate court determines that a certification was an abuse of discretion, the appeal must be dismissed. Berman v. De Chazal, 98-81 (La.App. 5th Cir.5/27/98), 717 So.2d 658.

After a review of the record, we conclude that the trial court abused its discretion in certifying the judgment as a final one for the purpose of an immediate appeal under La. C.C.P. art. 1915. This Court cannot determine the merits of an appeal unless our appellate jurisdiction is properly invoked by a valid final judgment. We are bound to follow the holding in Ware, and therefore conclude that the trial court’s denial of plaintiffs’ motion to vacate the denial of the motion for partial summary judgment is an interlocutory judgment. Further, the court’s designation of this interlocutory judgment as final has no legal effect, and the interlocutory judgment is not subject to an immediate appeal.

Accordingly, we conclude that we have no appellate jurisdiction to consider the merits of the present appeal. Due to our resolution of this jurisdictional issue, we do not reach the issues raised by plaintiffs addressing whether the trial court properly denied the partial summary judgment. This issue may be addressed when a final judgment is rendered in this case.

IsFor the reasons stated herein, the present appeal is hereby dismissed. Costs of the appeal are to await a final judgment in this case.

APPEAL DISMISSED


author: BROWN, Chief Judge,

text:
    STATE of Louisiana, Respondent v. Danielle S. OELMANN, Applicant.
    No. 47,111-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2012.
    Rehearing Denied Feb. 17, 2012.
    C. Bryan Racer, for Applicant.
    Jerry L. Jones, District Attorney, Kevin H. Johnson, Assistant District Attorney, for Respondent.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   11 WRIT GRANTED; REMANDED FOR FURTHER PROCEEDINGS.

In this misdemeanor prosecution, the applicant seeks review of the denial of her “Motion to Have Hearings Before Randomly Assigned Judge.” For the following reasons, the writ is granted and the matter remanded for further proceedings.

Facts and Procedural History

The applicant, Danielle Oelmann, was charged by bill of information with simple criminal damage to property and disturbing the peace on May 2, 2011. The matter was initially assigned to Judge Robert Johnson. However, pursuant to an en banc order of the eleven judges of the Fourth Judicial District Court dated October 6, 2011, the case was transferred to Judge Carl Sharp. Apparently, an initial en banc order was made on September 2, 2009, assigning all criminal misdemeanor cases effective from January 1, 2010, through December 31, 2010, to Judge Sharp. The October 6 order continued the assignment of all misdemeanor cases for the year 2011 to Judge Sharp.

12With this situation, Oelmann filed a motion requesting that her case be randomly assigned to a judge. The trial court denied the motion without a hearing, holding that La. R.S. 13:587.2, the Rules for Louisiana District Courts and Local Rule 3.1 allowed the Fourth Judicial District Court to issue an en banc order assigning to Judge Sharp all criminal misdemeanor matters.

Oelmann seeks review of the trial court’s ruling. She claims that the Fourth Judicial District Court’s en banc orders do not comply with the Local Rules, Dist. Ct. Rule 14.0(a), or La. R.S. 13:587.2. She contends that misdemeanor cases as with all cases in the jurisdiction of the district court be randomly allotted.

Constitutional Statutory Authority and District Court Rules

Louisiana Constitution Article V, Section 16(A) provides, in pertinent part, the jurisdiction of the district court, as follows:

Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property, except as provided in (3) below; the right to office or other public position; civil or political right; probate and succession matters; except for administrative agency determination provided for in (1) above, the state, a political corporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships. (3) The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.

By constitutional amendment in 2006, La. Const. Art. 5, § 15(A) of the constitution was amended to provide, in pertinent part, as follows:

Court Retention; Trial Courts of Limited Jurisdiction. The district, family, juvenile, parish, city, and magistrate courts existing on the effective date of this constitution are retained. Subject to the limitations in Sections 16 and 21 of this Article, the legislature by law may abolish or merge trial courts of limited or specialized jurisdiction. The legislature by law may establish trial courts of limited jurisdiction with parish-wide territorial jurisdiction and subject matter jurisdiction which shall be uniform throughout the state. Effective January 1, 2007, the legislature by law may establish new judgeships for district courts and establish the new divisions with limited or specialized jurisdiction within the territorial jurisdiction of the district court and subject matter jurisdiction over family or juvenile matters as provided by law.

|sBy statute added in 2001 and amended in 2008, the Fourth Judicial District Court was given the following authority:

A. Respecting seniority and the requirement that all cases be assigned randomly within multi-judge sections, the judges of the Fourth Judicial District Court, by rule adopted by a majority vote of the judges sitting en banc, may assign certain divisions of the court to a criminal section and certain divisions to a civil, drug court, driving while intoxicated court, mental health court, juvenile, or other section of the court.
B. No rule adopted by the court may assign any division, without its consent, to any section for a longer period than three years.
C. Notwithstanding any principal assignment to sections, all divisions of the court shall retain general jurisdiction to hear all matters.

La. R.S. 13:587.2.

Enacted in 2009, all district courts with multiple divisions of elected judges were given similar authority as the prior grant to the Fourth Judicial District Court, as follows:

A. Respecting seniority and the requirement that all cases be assigned randomly within multi-judge divisions or sections, the judges of any judicial district court, by rule adopted by a majority vote of the judges sitting en banc, may designate certain divisions or sections of the court as a specialized division or section having criminal, civil, drug court, driving while intoxicated court, mental health court, juvenile, violent crimes or homicides, or other specialized subject matter jurisdiction.
B. (1) If a special division or section of court is designated as a violent crimes or homicide section, the court may provide the district attorney’s office the opportunity to request an expedited docket to facilitate the hearing of cases involving homicides and crimes of violence that are committed with a dangerous weapon to ensure and secure the accuracy of testimony of witnesses and as a deterrence and prevention for crimes of violence and homicides.
(2) Notwithstanding any other provision of law or court rule to the contrary, the following components shall be complied with if a court designates a division or section of court as a violent crimes or homicide division or section and grants the district attorney’s request for expedited status:
(a) If the district attorney requests an expedited docket, the trial court shall schedule the case for trial no later than ninety days after time has elapsed for discovery.
(b) Continuances should be granted only for good cause and shall be for the shortest time practicable.
|4C. No rule adopted by the court may designate any division or section, without its consent, as a specialized division or section for a longer period than three years.

La. R.S. 13:587.4.

La. R.S. 13:319 provides:

Each civil and criminal proceeding and each application for writs shall be randomly assigned by the clerk, subject to the direct supervision of the court.

Rule 3.1 of the Rules for Louisiana District Courts provides:

Courts may, by en banc order, divide into divisions or sections for the purpose of allotting matters within the court’s jurisdiction. Those courts that have done so, and their respective methods for assigning judges to divisions or sections, are indicated in Appendix 3.1.

Rule 14(a) of the Rules for Louisiana District Courts provides, in pertinent part:

The clerk of court shall randomly allot all criminal cases, unless an exception is established by law or these rules. The method of random allotment established by each district court ... is described in Appendix 14.0A.

Appendix 14.0A, the Local Rule for the Fourth Judicial District Court, establishes the method of random allotment in criminal cases and provides, in pertinent part:

(c) All other criminal cases arising after 7:00 a.m. on February 25, 2005, with the exception of offenses prosecuted under Title 32 of the Louisiana Revised Statutes, wildlife offenses prosecuted under Title 56 of the Louisiana Revised Statutes, and appeals from courts of limited jurisdiction, shall be randomly allotted by the Clerk of Court in accordance with Rule 14.0 of the Rules for Louisiana District Courts at the time a docket number is assigned.

A conflict between a uniform rule and legislation should be resolved by following the legislation. La. Dist. Ct. R. 1.0, Comment (a); State v. Cooper, 2010-2344 (La.11/16/10), 50 So.3d 115, 121.

Discussion

From the above, the constitution directs that “the legislature by law may establish new judgeships for district courts and establish the new divisions with limited or specialized jurisdiction of the district court.” La. Const. Art. 15(A). | sAction pursuant to that authority has not occurred as Judge Sharp’s division of the Fourth Judicial District Court retains general jurisdiction.

Subsequent to the constitutional amendment of 2006, Section 587.4 of Title 13 was enacted. La. R.S. 13:587.4. The language of this statewide statute closely mirrors that of the earlier authority given to the Fourth Judicial District Court pursuant to La. R.S. 13:587.2. The statutory interpretation of these provisions is decisive for the question now presented by the applicant.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. The words of a law must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the law involves a technical matter. La. C.C. art. 11.

Both Sections 587.2 and 587.4 begin with the directive to the district courts for respect of “the requirement that all cases be assigned randomly within multi-judge sections.” Section 587.2 then allows the judges of the Fourth Judicial District Court by en banc rule to “assign certain divisions of the court to a criminal section.” Parallel authority is expressed in similar language of Section 587.4 for the designation of “certain divisions or sections of the court as a specialized division or section having criminal” jurisdiction.

A division or a section of the court within these provisions appears from our review to be used loosely in two manners. However, the meaning is clear. Each judge of the court is understood as a division or section, and those judges from divisions or sections may be assigned to a specialized division or section. By substituting judges for the word divisions as used in Section 587.2, the statute allows an en banc rule to “assign certain [judges] of the court to a criminal section.” Use of the plural indicates that the statutes do not allow the assignment of a single-judge division as a “section” with specialized criminal jurisdiction. Such interpretation is in keeping with the requirement that all cases be assigned randomly within multi-judge sections or groupings and is consistent with the Fourth Judicial District Court’s existing Appendix 3.1, effective June 1, 2010, dividing the judges of the court into five sections, with one judge in each section primarily assigned to hear criminal matters. This arrangement permits the random allotment of criminal matters among five judges.

With this interpretation of Sections 587.2 and 587.4, it is clear that the en banc rule of the Fourth Judicial District Court assigning only one judge or division of the court to a specialized criminal misdemean- or section is in violation of the legislative directive. Accordingly, the applicant’s motion has merit, and the prosecution against her is remanded to the district court for random allotment from | fia pool consisting of the judges currently assigned to hear criminal matters under Appendix 3.1.

BROWN, Chief Judge,

dissents.

Iil would deny the writ. The trial court’s opinion is correct.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS and CARAWAY, JJ.

Rehearing denied.

BROWN, C.J., would grant rehearing

      . We will consider both provisions since the latest expression of the legislature for this statutory authority might be argued as conflicting with and superceding the special granting of authority of Section 587.2.


author: JUDE G. GRAVOIS, Judge.

text:
    Louis LOCICERO v. NEW ORLEANS PAINT AND DRYWALL SERVICE & LWCC.
    No. ll-CA-587.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 24, 2012.

      R. Glenn Cater, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Gregory E. Bodin, Baton Rouge, LA, Paul K. Colomb, Jr., New Orleans, LA, Attorneys at Law, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and ROBERTA. CHAISSON.
   JUDE G. GRAVOIS, Judge.

[^Plaintiff has appealed a trial court’s judgment which dismissed his workers’ compensation claim against his employer’s alleged workers’ compensation insurer, finding that his employer was not covered by a policy of workers’ compensation insurance at the time of plaintiffs work-related accident. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 12, 2005, plaintiff, Louis Lo-cicero, was injured in a work-related accident while employed by Herrin, Ltd., d/b/a New Orleans Paint and Drywall Services (“N.O. Paint”). After being notified of the accident, Louisiana Workers Compensation Corporation (“LWCC”), the alleged workers’ | scompensation insurance carrier of N.O. Paint, denied coverage for plaintiffs accident. Through a letter from its counsel, LWCC advised N.O. Paint that its application for workers’ compensation insurance was filled out on October 11, 2005 and had a proposed effective date of October 12, 2005. The application was mailed by the agent to LWCC and was postmarked October 12, 2005. It was received by LWCC on October 13, 2005. The agent did not have authority to bind the policy. Further, in accordance with its agreement with the agent, LWCC bound coverage effective at 12:01 a.m. on October 13, 2005, the day after the postmark on the application. LWCC concluded that since the policy is an “occurrence” policy and the policy became effective after the date of the accident, the policy provided no coverage for plaintiffs accident.

On November 16, 2005, plaintiff filed a disputed claim for compensation. LWCC answered the claim and asserted that there was no coverage on the date of the accident. The parties each filed motions for summary judgment on the issue of coverage, which were denied by the trial court. The matter thereafter proceeded to trial solely on the issue of coverage. At trial, the parties submitted eleven joint exhibits which had previously been submitted with the motions for summary judgment. LWCC also submitted one additional exhibit, an affidavit of Gregg Felger, an employee of the United States Postal Service. At the conclusion of arguments, the trial court took the matter under advisement. In due course, the trial court rendered a judgment finding that the envelope containing N.O. Paint’s workers’ compensation insurance application was postmarked October 12, 2005, and accordingly, LWCC’s policy was effective on October 13, 2005. Therefore, N.O. Paint was not covered by a policy of workers’ compensation insurance issued by LWCC on October 12, 2005, the date of the accident. Plaintiffs | ¿workers’ compensation claim against LWCC was accordingly dismissed with prejudice. This timely appeal followed.

ASSIGNMENT OF ERROR

The sole issue to be decided on appeal is whether the trial judge erred in ruling that N.O. Paint was not covered by a policy of workers’ compensation insurance issued by LWCC at the time of the accident. Plaintiff argues that the trial court erred in relying on a Baton Rouge postmark that did not “adequately represent when the [United States Postal Service] assumed custody” of the application. Plaintiff contends that the trial court relied on “an incorrect postmark and resulted in an inequitable outcome.”

The documents admitted into evidence include the deposition of Mr. Danny Her-rin, the owner of N.O. Paint, who testified that he did not have workers’ compensation insurance coverage at the time Hurricane Katrina hit the New Orleans area on August 29, 2005. He decided to obtain workers’ compensation insurance in October 2005 while his company was in the process of doing a drywall and painting job at Kellett Lumber Company. On the advice of a friend, he contacted Lodrigues & Associates (“Lodrigues”), an agent of LWCC. On October 11, 2005, he went into Lodrigues’ office and met with Debora Hibbs to fill out and sign the application for workers’ compensation insurance. Mr. Herrin testified that Ms. Hibbs told him that she had to get the application postmarked that day and that he would have coverage the next day, October 12, 2005. Assuming coverage would be in effect, Mr. Herrin explained that on the next day, October 12, 2005, he allowed plaintiff to climb on scaffolding to paint. At some point on October 12, 2005, plaintiff fell off of the scaffolding and was seriously injured. Mr. Herrin testified that after the accident, he contacted Ms. Hibbs who told him |fithat she went to the post office and the application was postmarked on the day the application was made, thereby providing him with workers’ compensation insurance coverage for this accident.

Ms. Hibbs deposition was also admitted into evidence. She testified that she is an agent for LWCC. Pursuant to Lodrigues’ agreement with LWCC, coverage on a policy becomes effective the day after the policy application is postmarked. She recalled meeting with Mr. Herrin late in the afternoon on October 11, 2005 and telling him that she would do her best to get the application to the post office that day. Ms. Hibbs explained that after the application was completed, she put it on a desk in the office and at the end of the day someone in the office mailed it. She explained that her job duties did not include going to the post office and she did not know who delivered the application to the post office. She wrote October 12, 2005 as the proposed date of coverage for the policy, which presupposed that the application would be postmarked October 11, 2005. Ms. Hibbs explained that the applications were usually mailed at the Harahan Post Office which was near her office. She testified that the envelope for this application was postmarked October 12, 2005 in Baton Rouge, Louisiana. She assumed that the application was mailed at the Har-ahan Post Office, but was taken to Baton Rouge to get postmarked due to disruptions in the postal service after Hurricane Katrina. Ms. Hibbs testified that had Mr. Herrin told her that he would have employees working the next day, she would have informed him that getting the application to the post office does not confirm coverage.

The deposition of Sally Nesmith was also admitted into evidence. Ms. Nesmith testified that she was the director of operations for LWCC. She explained that pursuant to LWCC’s “pricing authority” agreement with its agent in this case, in 2005 when a paper application was completed, coverage was effective the day Rafter the postmark on the application, assuming that the application was compete and was approved and accepted. Ms. Nes-mith explained that this procedure was put into place to avoid people sustaining an injury, going to the agent and filling out an application, and then expecting to have coverage on the day the application is filled out. Ms. Nesmith testified that the agent in this case did not have binding authority. She explained that the envelope in this case was stamped by LWCC as having been received on October 13, 2005, and that the effective date of the policy was October 13, 2005, the day after the envelope was postmarked. Ms. Nesmith testified that she did not know of any incidences in which LWCC made an exception to the postmark rule.

A copy of the envelope in which the application was mailed was admitted into evidence. This envelope bears a postmark date of October 12, 2005 at Baton Rouge.

Plaintiff argues that based on the testimony of Ms. Hibbs, N.O. Paint’s application was mailed at the Harahan Post Office on October 11, 2005 before 5:00 p.m. so that it would be postmarked that day. Plaintiff contends that due to disruptions in operations from Hurricane Katrina, the mail that was deposited in the receptacle at the Harahan Post Office was transported to Baton Rouge for processing. Plaintiff urges this Court to adopt the “common law mailbox rule” that the proper mailing of a document creates a rebuttable presumption that the documents has been received by the addressee.

We are not persuaded by plaintiffs arguments. There is no dispute that LWCC received the pertinent documents. The salient issue centers on the date of the postmark, rather than on the date of the mailing. While plaintiff has asserted various assumptions as to when the application was mailed and which route it took after it was allegedly deposited into the post office receptacle at the Harahan Post |7Office, with all due respect, plaintiff has not produced any proof of these assertions. Ms. Hibbs testified that she put the application on the desk “that has stamps in it” and “[a]t the end of the day, somebody delivers it to the post office.” Ms. Hibbs did not know who the person was that delivered the application to the post office or exactly when it was delivered to the post office. All she could say was that she “felt” that the application was delivered to the post office on October 11, 2005 because the mail was delivered to the post office every day prior to 5:00 p.m. She testified that she “assumed” that the application went to Baton Rouge to get postmarked.

In his affidavit, Mr. Felger attested that in September 2005, he was the manager of customer service operations for the United States Postal Service, New Orleans Branch. Part of his job in September, 2005 included re-opening the Elmwood Branch Post Office (the Harahan Post Office) after Hurricane Katrina. He further attested that from “mid-September, 2005 until the present time, including October 2005, the Elmwood Branch Post Office [the Harahan Post Office] has been open for normal business operations, including accepting mail over the counter and other typical functions of a post office branch.” While plaintiff urges this Court to ignore this affidavit, the transcript indicates that this affidavit was admitted into evidence at trial without objection from plaintiff.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. In applying this standard, the appellate court does not determine whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. Where there are two permissible views of the evidence, a factfin-der’s choice between them can never be manifestly erroneous or clearly wrong. Id. For Isthis reason, if the factfinder’s factual determinations are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been the trier of fact, it would have weighed the evidence differently. Id.

The record before us supports the trial court’s finding that on the date of the accident, October 12, 2005, N.O. Paint was not covered by a policy of workers’ compensation issued by LWCC. Accordingly, there is no manifest error in the trial court’s ruling that dismissed plaintiffs workers’ compensation claim against LWCC with prejudice.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Louis Locicero passed away during the course of these proceedings. His father, Joseph A. Locicero, Sr., has been substituted as party-plaintiff.


text:
    Luis M. RODRIGUEZ v. DIRECT GENERAL INSURANCE COMPANY OF LA, Progressive Security Insurance Company & Debbie P. Levine.
    No. ll-CA-589.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 24, 2012.

      George B. Recile, Attorney at Law, Me-tairie, LA, for PlaintiffAppellant.
    Charles V. Giordano, Michael E. Eseudier, Pamela B. Gauthier, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

|2The plaintiff, Luis Rodriguez, has appealed a judgment of the trial court granting Progressive Security Insurance Company’s motion for summary judgment and denying plaintiffs counter motion for partial summary judgment. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 25, 2008, plaintiff was injured in a two-vehicle accident while driving a truck owned by his employer, Cancienne Plumbing, Inc. (“Cancienne”). He filed suit against the other driver and her insurer. The suit also named Cancienne’s insurance carrier, Progressive Security Insurance Company (“Progressive”) as a defendant, alleging that Progressive’s policy included uninsured/underinsured motorist bodily injury coverage (“UMBI”). Progressive filed a motion for summary judgment, arguing that there was no UMBI coverage because Cancienne had executed a valid UMBI coverage rejection form. Plaintiff filed a counter motion for partial summary judgment, claiming that Canei-enne’s |SUMBI coverage rejection was not valid. Following a hearing, the trial court granted Progressive’s motion and denied plaintiffs motion. Thus, the issue on appeal is whether Cancienne’s UMBI coverage rejection is valid.

LAW AND ANALYSIS

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). In determining whether summary judgment is appropriate, the appellate court must conduct a de novo review using the same criteria that governs the trial court’s determination of whether summary judgment is proper. Green v. State Farm Mutual Automobile Ins. Co., 07-0094, p. 3 (La.App. 1 Cir. 11/2/07), 978 So.2d 912, 914, writ denied, 08-0074 (La.3/7/08), 977 So.2d 917. In such motion, if the issue before the court is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact is on the party bringing the motion. La. C.C.P. art. 966(C)(2).

Whether an insurance policy provides or precludes coverage is a dispute that can be decided within the framework of a motion for summary judgment. Green, 07-0094 at p. 3, 978 So.2d at 914. Summary judgment declaring a lack of coverage under an insurance policy may only be granted when there is no reasonable interpretation of the policy under which coverage can be provided, when applied to the undisputed material facts shown by the evidence supporting the motion. Id.

14A rejection of UMBI coverage must be made on a form prescribed by the commissioner of insurance. LSA-R.S. 22:1295(l)(a)(ii). This statute further provides:

... The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates.

In support of its motion for summary judgment, Progressive attached an affidavit of Richard Cancienne, who attested that:

• he is the owner of Cancienne Plumbing, Inc.;
• Cancienne Plumbing, Inc. purchased a policy of insurance from Progressive covering the policy period from June 4, 2007 to June 4, 2008;
• on December 2, 2002, Cynthia Hefner, as a legal representative of Cancienne Plumbing, Inc., executed a form rejecting UMBI coverage; and
• Ms. Hefner was authorized to so act on December 2, 2002 on behalf of Can-cienne Plumbing, Inc.

Additionally, in his deposition, Richard Cancienne testified that he initialed on the UMBI coverage rejection form next to the section rejecting UMBI coverage because he knew that this would lower his insurance rates.

Progressive also submitted an affidavit of Ms. Hefner, who attested that:

• she was authorized to act on behalf of Cancienne Plumbing, Inc. and executed the UMBI rejection form when the policy in question was purchased by Cancienne Plumbing, Inc. from Progressive on December 2, 2002; and
• Richard Cancienne’s initials are on the UMBI rejection form next to Option 5 which states, “I do not want UMBI Coverage. I understand that |SI will not be compensated through UMBI Coverage for losses arising from an accident caused by an uninsured/un-derinsured motorist.”

In opposition to Progressive’s motion and in support of its own motion, plaintiff contends that the “named insured” changed during the period between the execution of the UMBI coverage rejection form and the date of the accident. Specifically, plaintiff contends that:

• when the UMBI rejection form was executed on December 2, 2002, the named insured on the policy was “Can-cienne Plumbing Inc.”;
• on December 4, 2002, the named insured on the policy was changed to “Cancienne Plum Tuning”; and
• on February 27, 2004, the named insured on the policy was changed to “Cancienne Plumbing”.

Plaintiff does not dispute that the December 2, 2002 UMBI coverage rejection form was validly executed. Rather, plaintiff argues that due to these changes to the “named insured” on the policy, under the above-quoted portion of LSA-R.S. 22:1295(l)(a)(ii), there was no valid UMBI rejection form in effect at the time of the March 25, 2008 accident. Plaintiff contends that the policy holder was not the “same named insured” as required by the statute, and that these changes to the “named insured” on the policy after December 2, 2002 and prior to the accident in question renders the December 2, 2002 UMBI coverage rejection form invalid. For the following reasons, we are not persuaded by plaintiffs arguments.

LSA-R.S. 22:1295(l)(a)(ii) also provides in pertinent part:

... Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms....

|(;The record in this case reflects that during the entire relevant time period, there were no changes in the limits of liability to the existing Progressive policy. Also,' the policy number remained the same. The record also reflects that the entity that was insured remained the same over the course of the entire relevant time period; for whatever reason, as noted above, the name that was designated as the “named insured” on the policy was changed slightly twice.

Plaintiff urges this Court to adopt the reasoning in Munsch v. Liberty Mutual Ins. Co., 05-0147 (La.App. 1 Cir.2/10/06), 928 So.2d 608. In Munsch, the court found that the surviving spouse was not the same named insured as covered in the previous policy renewals and held that the deceased husband’s previous selection of lower UMBI coverage did not remain valid after the policy was transferred into his surviving spouse’s name, reasoning that the original named insured (the deceased husband) was not the same person or party as the new named insured (the surviving spouse). We find, however, the facts in Munsch to be distinguishable from those in this case. In Munsch, the surviving spouse, who became the named insured after her husband died, never had an opportunity to select or reject UMBI coverage. In this case, the insured entity remained the same, despite the slight changes to the name that was designated as the “named insured” on the policy. Further, the record is clear that the owner of the entity (Mr. Cancienne) remained the same, and he stated that he rejected UMBI coverage in order to lower his insurance rates. Under the particular facts of this case, we find that LSA-R.S. 22:1295(l)(a)(ii) did not require a new UMBI coverage rejection waiver form to be obtained.

The legislature has made it clear that “[a] properly completed and signed [UMBI coverage rejection] form creates a rebutta-ble presumption that the insured knowingly rejected coverage....” La. R.S. 22:680(l)(a)(ii). Plaintiff has not | presented sufficient evidence to rebut the presumption that Cancienne’s waiver rejecting UMBI coverage was invalid. Thus, under the particular facts of this case, we find that Progressive has established that it is entitled to judgment as a matter of law upholding the validity of Cancienne’s UMBI coverage rejection form.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting Progressive’s motion for summary judgment and denying plaintiffs motion for partial summary judgment is affirmed.

AFFIRMED

      . Plaintiff’s action against the other driver and her insurer are not part of this appeal.

      . The trial court orally rendered its ruling on the motions at the end of the hearing held thereon on January 28, 2011. The trial court’s written judgment on the motions was signed on February 14, 2011.

      . In memoranda in support of his motion and in opposition to Progressive's motion, plaintiff raised questions as to whether the form contained the date and the policy number at the time it was executed. However, at the hearing on the motions and on appeal, plaintiff has limited his argument to the effect of the changes made to the name of the insured on the policy. Accordingly, these issues are considered abandoned. See, Rule 2-12.4, Uniform Rules-Courts of Appeal.

      . Between February 27, 2004 and up to and including the date of the accident on March 25, 2008, the named insured on the policy remained "Cancienne Plumbing”.

      . See also Savant v. American Cent. Ins. Co., 98-542 (La.App. 3 Cir. 12/9/98), 725 So.2d 43, writ denied, 99-0060 (La.3/12/99), 739 So.2d 202 (holding that when the addition of an insured does not have the effect of increasing coverage under the policy, there is no "new policy” which would require a new uninsured motorist (UM) rejection form); and Denofrio v. Greer, 44,066 (La.App. 2 Cir. 1/14/09), 999 So.2d 1235, 1238, writ denied, 09-0383 (La.4/13/09), 5 So.3d 164 (holding that a slight discrepancy in the policy number between the policy and the UM rejection form will not, alone, invalidate an otherwise valid form, where it is clear that the insured was either waiving UM coverage or selecting economic-only or lower limits of coverage in a policy renewal).