author: ROTHENBERG, J. SCHWARTZ, Senior Judge

text:
    HALL, LAMB & HALL, P.A., Appellant, v. SHERLON INVESTMENTS CORP., Appellee.
    No. 3D07-2783.
    District Court of Appeal of Florida, Third District.
    April 22, 2009.

      Hall, Lamb & Hall and Andrew C. Hall, Lisa R. Harris, and Roarke Maxwell, Miami, for appellant.
    Bilzin Sumberg Baena Price & Axelrod and Mitchell E. Widom, Miami and Allen J. Smith, for appellee.
    Before GERSTEN, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   On Motion for Rehearing and Clarification

ROTHENBERG, J.

We grant the appellee’s Motion for Rehearing and Clarification. We withdraw our prior opinion dated October 29, 2008, and substitute the following opinion in its stead.

Hall, Lamb & Hall, P.A. (“the law firm”) appeals from an order denying its motion to adjudicate a charging lien against Sher-lon Investments Corp. (“Sherlon”). We reverse.

In the litigation underlying this case, the law firm represented 1044 N.E. 2nd Ave., L.P. (“the former client”) in a commercial eviction action brought by Sherlon, and filed a number of counterclaims on the former client’s behalf. The former client and the law firm operated under a partly fixed and partly contingent fee agreement.

In September 2006, the former client terminated the law firm’s services shortly before proceeding to mediation with Sher-lon. At that time, the law firm notified the parties of its interest in recouping a fee for the services provided by filing a notice of charging lien. The former client then employed Mark Blumstein (“Blumstein”), an attorney who was suspended from the practice of law, to represent it. Sherlon and the former client reached a settlement before the end of September. Pursuant to that agreement, Sherlon agreed to pay an undisclosed sum to the former client. Sherlon paid the total settlement amount directly to Blumstein, who deposited those funds in an escrow account under his control. Sherlon and the former client obtained an order dismissing the case with prejudice from the trial court on November 6, 2006.

Sherlon did not notify the law firm of the settlement or that it had transferred the total amount to Blumstein. The law firm became aware of the settlement only after receiving phone calls from the parties’ attorneys attempting to negotiate a downward adjustment to the law firm’s fee demand. On November 7, 2006, recognizing that the former client had obtained a settlement from Sherlon, the law firm filed a motion to adjudicate its charging lien against the former client. The law firm’s subsequent attempts to collect its fees were unsuccessful, and therefore, it procured a trial court order adjudicating the charging lien and directing the former client and Blumstein to pay $76,421.17. The order did not mention Sherlon. Despite the issuance of this order, the law firm remained unable to recoup its fee.

In August 2007, the law firm moved to adjudicate its charging lien against Sher-lon, in addition to the former client and Blumstein. The trial court denied the motion, and this appeal followed.

“A charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit.” Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik v. Baucom, 428 So.2d 1383, 1384 (Fla.1983). To perfect a charging lien, the lienor-attorney need only demonstrate that he or she provided the parties to the litigation with timely notice of the interest. Id. at 1385. Here, it is undisputed that upon being terminated, the law firm notified the parties of its interest in recouping the fees earned during the course of representing the former client. Such a perfected lien is “chargeable against any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be entered in the future.” Hutchins v. Hutchins, 522 So.2d 547, 549 (Fla. 4th DCA 1988) (emphasis added). See also Brown v. Vt. Mut. Ins. Co., 614 So.2d 574, 580-81 (Fla. 1st DCA 1993) (holding that if a party has notice of an attorney’s charging lien, pays out a settlement to the attorney’s client, and fails to protect the attorney’s interest, the paying party may be held jointly and severally liable for the attorney’s fees along with the attorney’s client to the extent of the settlement proceeds or other funds held). Accordingly, the law firm argues that Sherlon, along with the former client and Blumstein, may be held jointly and severally liable for the fees earned during the law firm’s representation of the former client. We agree.

There is no question that as a party to the settlement, Sherlon had an affirmative duty to notify the law firm of the settlement and to protect the law firm’s lien interest in the settlement proceeds. Zaldivar v. Okeelanta Corp., 877 So.2d 927, 930 (Fla. 1st DCA 2004). Similarly, the record now before us indicates that although Sherlon and the former client reached a settlement by the end of September 2006, Sherlon failed to notify the law firm of the settlement in any way until November 2006 — when the parties obtained a dismissal of the action with prejudice from the trial court. Furthermore, Sherlon took no other steps to protect the law firm’s interest. Sherlon did not ask the trial court to prevent the direct payment of the law firm’s fee to Blumstein and the former client or to set those funds aside. Instead, Sherlon paid the entire settlement to the former client (through Blumstein) without providing safeguards for the law firm’s lien interest. And regardless of Sherlon’s intent, by doing so, Sherlon may have committed a fraud upon the law firm. Heller v. Held, 817 So.2d 1023,1025 (Fla. 4th DCA 2002).

Therefore, based upon the undisputed record, Sherlon, along with the former client and Blumstein, may be jointly and severally liable for the law firm’s fee as calculated in accordance with the settlement agreement. The order denying the law firm’s motion to adjudicate its charging lien against Sherlon is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

GERSTEN, C.J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

While I agree that Sherlon did not appropriately inform the appellant law firm of the settlement, I dissent from reversal because that lapse was not a legal cause of the firm’s failure to recover.

The reason for informing the lawyer of a settlement is to permit him to take steps to protect his charging lien. See Zaldivar v. Okeelanta Corp., 877 So.2d 927 (Fla. 1st DCA 2004). In this case, however, the Hall firm, by other means, actually learned not only of the settlement but of the location of the proceeds: in “escrow” with the plaintiffs representative, a person who stated he was an attorney, but was not. Indeed, the firm succeeded in imposing a charging lien on the fund — just as it would have had the defendant given appropriate notice. Hall did not get its fee, however, only because the “escrow agent” eloped with the entire settlement. Putting it in legalese, the theft was the sole proximate cause of Hall’s damages. Obversely, the appellee’s missteps were immaterial to and were thus not a legal cause of the loss. See Stuart Yacht Club & Marina v. Dep’t of Natural Res., 625 So.2d 1263, 1268-69 (Fla. 4th DCA 1993) (absence of required notice immaterial when a party acquires knowledge otherwise); see also Jones v. Fla. Ins. Guar. Assoc., 908 So.2d 435, 452-53 (Fla.2005); ef. Clark v. Lumbermans Mut. Ins. Co., 465 So.2d 552 (Fla. 1st DCA 1985) (absence of required warning immaterial when party otherwise knows of defect); 72A C.J.S. Products Liability § 17; 63A Am.Jur.2d Products Liability §§ 1161, 1162. On that basis, I would affirm.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kevin L. WEBB, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-3090.
    District Court of Appeal of Florida, Third District.
    April 22, 2009.
    Kevin L. Webb, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. RApp. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: PER CURIAM. COPE, J.

text:
    Vincent Rydell JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-253.
    District Court of Appeal of Florida, Third District.
    April 22, 2009.
    Rehearing Denied May 4, 2009.
    Vincent Rydell Johnson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed.

COPE, J.

(concurring).

Defendant-appellant Johnson appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. This particular motion was filed by counsel but was filed two days late. The trial court denied the motion as untimely and successive.

Defendant-appellant Johnson may have a basis to refile the motion under Florida Rule of Criminal Procedure 3.850(b)(3) which excuses the time bar where “the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion.” As the motion was untimely filed, this portion of the rule may excuse the time bar. See De La Rosa v. State, 979 So.2d 1089, 1089-90 (Fla. 3d DCA 2008). However, to refile the motion the defendant must also have a good faith basis to avoid the bar of successiveness. See Fla. R.Crim. P. 3.850(f).

      . The mandate issued in the defendant's direct appeal on October 17, 2005, so the deadline for filing the rule 3.850 motion was October 17, 2007.


text:
    Darrell BUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-596.
    District Court of Appeal of Florida, Third District.
    April 22, 2009.

      Darrell Butler, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and WELLS and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Butts v. State, 898 So.2d 1082 (Fla. 3d DCA 2005).


author: WELLS, J.

text:
    Latoya MAHONEY-SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-30.
    District Court of Appeal of Florida, Third District.
    April 22, 2009.
    Rehearing Denied May 19, 2009.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS and ROTHENBERG, JJ.
   WELLS, J.

Latoya Mahoney-Smith appeals from her conviction and sentence for stalking, aggravated stalking, and multiple violations of an injunction against repeat violence claiming that the trial court erred (1) in permitting the state to introduce testimony about her past behavior, (2) in failing to instruct the jury on attempted violation of an injunction, and (3) in failing to enter a judgment of acquittal because the State failed to prove malice, harassment, or emotional distress. Because the record demonstrates facts sufficient to establish each element of the charges against Mahoney-Smith and because we find no error in either the trial court’s evidentiary rulings or the jury instructions given, we affirm. See Dorsett v. State, 944 So.2d 1207, 1213 (Fla. 3d DCA 2006) (confirming that evidence of prior bad acts may be admitted where it is inextricably intertwined with the charges being prosecuted and thus necessary to adequately describe the deed; to provide an intelligent account of the crimes charged; to establish the entire context out of which the charged crimes arose; or to adequately describe the events leading up to the charged crimes); see also Fla. R.Crim. P. 3.510(a) (confirming that the court “shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense”).

Affirmed.


text:
    Ralph MORLA and Marianela Echevarria, Petitioners, v. STATE FARM FIRE AND CASUALTY COMPANY, Respondent.
    No. 3D08-518.
    District Court of Appeal of Florida, Third District.
    April 22, 2009.
    Rolando Gomez and Richard M. Gomez, Miami, for petitioners.
    Russo Appellate Firm and Elizabeth K. Russo; Allocca & Felder and Frank J. Allocca, Miami, for respondent.
    Before RAMIREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   CONFESSION OF ERROR

PER CURIAM.

Ralph Moría and Marianela Echevarria appeal the trial court’s final orders of dismissal for fraud and final summary judgment on the counterclaim. Upon the ap-pellee State Farm Fire and Casualty Company’s proper confession of procedural error, we reverse and remand to the trial court for further proceedings that would permit resolution of the factual issues raised before the fact-finder.

Reversed and remanded.


author: SUAREZ, J.

text:
    Bobby REAGAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1686.
    Disti’ict Court of Appeal of Florida, Third District.
    April 22, 2009.
    Bobby Reagan, in proper person.
    Bill McCollum, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

We affirm the order denying Bobby Reagan’s Motion for Removal of Detainer without prejudice to file a Petition for Writ of Mandamus in the Sixteenth Judicial Circuit.

Affirmed.


text:
    Timothy COMBS, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4407.
    District Court of Appeal of Florida, Fifth District.
    April 24, 2009.

      Timothy A. Combs, Cocoa, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Smith v. State, 932 So.2d 594, 595 (Fla. 5th DCA 2006) (holding it is function of Department of Corrections to award credit for any time served in jail after sentencing, but before transfer to state prison) (emphasis added).

PALMER, C.J., ORFINGER and MONACO, JJ., concur.


text:
    Atundo KANILI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-6221.
    District Court of Appeal of Florida, First District.
    April 24, 2009.
    Atundo Kanili, pro se, Petitioner.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Atundo Kan-ili is hereby afforded a belated appeal of the order denying motion for postconviction relief in case number 04-CF-026 in the Circuit Court for Okaloosa County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

KAHN, DAVIS, and CLARK, JJ., concur.


text:
    Joshua Elijah SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3085.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Joshua Elijah Smith appeals following the revocation of his probation and sentencing in case numbers 562007CF001840A and 562007CF2088A. Appellate counsel has filed an Anders brief pointing out two minor sentencing errors regarding the public defender’s fees and application fees imposed. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

At sentencing, appellant agreed that a $500 public defender fee and a $40 fee for the application for a public defender on each case was acceptable. The court orally imposed a $500 public defender fee and a $40 application fee for each case. The written judgment in 562007CF001840A included the correct fee amounts, but the written judgment in 562007CF2088A, erroneously listed the public defender lien as $1,000 and the application fee as $80, double the amounts the court announced. In response to a rule 3.800(b)(2) motion and on appeal, the state agrees that this was error and that the written judgment should reflect the court’s pronouncement.

Appellate counsel also pointed out that Smith was not informed of his right to a hearing to contest the amount of fees. § 938.29(5), Fla. Stat. (2007); Fla. R.Crim. P. 3.720(d). The state agrees that appellant should have an opportunity to file a written objection to the fees, and if an objection is filed, the trial court should hold a hearing on this issue; if no written objection is filed, the court may reimpose the fees without a hearing. McGee v. State, 963 So.2d 931, 932 (Fla. 2d DCA 2007); see also Jerry v. State, 955 So.2d 668 (Fla. 4th DCA 2007); Pride v. State, 944 So.2d 1243 (Fla. 1st DCA 2006).

Accordingly, appellate counsel’s motion to withdraw is granted, and the public defender’s fees are stricken. On remand, if Smith files a written objection to the amount of the fees within thirty days of this court’s mandate, the trial court shall hold a hearing. See Hayes v. State, 957 So.2d 97 (Fla. 2d DCA 2007). If no written objections are filed, the court may reimpose the $500 lien and the $40 application fee for each case as pronounced at the sentencing hearing. The revocation of probation and sentences are otherwise affirmed.

STEVENSON, HAZOURI and MAY, JJ., concur.


text:
    Tonya Rennay MEDDERS, Appellant, v. STATE of FLORIDA, Appellee.
    No. 4D08-3777.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

STEVENSON, HAZOURI and CIKLIN, JJ., concur.


text:
    Herold PIERRE, Appellant, v. HSBC BANK USA, N.A., as trustee for Nomura Home Equity Loan, Inc. Asset-Backed Certification Series 2006-FM 1, Appellee.
    No. 4B08-4027.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.
    Herold Pierre, Miramar, pro se.
    No brief required by appellee.
   PER CURIAM.

Appellant’s filing on January 28, 2009, is treated as his initial brief. The final summary judgment of foreclosure is summarily affirmed. See Fla. R.App. P. 9.315.

FARMER, STEVENSON and TAYLOR, JJ., concur.


text:
    Kevin E. JEROME, Appellant, v. Amarilys JEROME, Appellee.
    No. 4D08-5015.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.
    Daniel Bachert of The Bachert Law Finn, P.A., West Palm Beach, for appellant.
    Theodore H. Enfield, Aventura, for ap-pellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

STEVENSON, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Michael SHULER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1346.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

      Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

We affirm the revocation of Defendant’s probation and the sentence imposed. We remand, however, for entry of a written revocation order listing the grounds for the violation. See Bell v. State, 851 So.2d 253 (Fla. 3d DCA 2003); Rodriguez v. State, 820 So.2d 1051 (Fla. 3d DCA 2002); Cifuentes v. State, 717 So.2d 136 (Fla. 3d DCA 1998).

Affirmed and remanded with instructions.


author: MAY, J.

text:
    Glenn F. STRAUB, Appellant, v. LEHTINEN, VARGAS & RIEDI, P.A. and Claudio Riedi, Esq., Appellees.
    No. 4D07-972.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.
    Larry A. Zink of Zink, Zink & Zink CO., LPA, Hillsboro Beach, for appellant.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellees.
   On Remand fi'om the Supreme Court of Florida

MAY, J.

This matter is before the court on remand from the Supreme Court of Florida. In our original decision we reversed and remanded the case to the trial court for reinstatement of the plaintiffs second amended complaint alleging a false light claim. See Straub v. Lehtinen, Vargas & Riedi, P.A., 980 So.2d 1085 (Fla. 4th DCA 2007). We also certified the question of whether Florida recognized such a claim. Id. at 1087. That question has now been answered in the negative and our decision has been quashed. Lehtinen v. Straub, 3 So.3d 1187 (Fla.2009). We have been directed to review the case in light of the supreme court’s recent decision in Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1115 (Fla.2008).

Our review of the record indicates that the second amended complaint contained a single claim for false light invasion of privacy. The supreme court has now made clear that no such cause of action is cognizable in our state. We therefore affirm the trial court’s order dismissing the plaintiffs second amended complaint with prejudice.

Affirmed.

STEVENSON, J., and TUTER, JACK, Associate Judge, concur.


text:
    CHEEKIE INVESTMENTS, LLC, and Sergio A. Pagliery, Appellants, v. POINT ONE, LLC, Appellee.
    No. 3D08-2161.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Shook, Hardy & Bacon and Sergio E. Pagliery and Evan Roberts, Miami, for appellants.
    Wolfe & Goldstein and Mark Goldstein, Miami, for appellee.
    Before COPE and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Because this Court concludes that it lacks jurisdiction to consider the appeal, the matter is dismissed without prejudice. Appellants, however, are not precluded from raising the issues presented on plenary appeal.


text:
    Donna Marie BLACKMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-69.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Donna Marie Blackman, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.850(b).

COPE, J.

(concurring).

Ms. Blackman wrote to the trial judge, requesting that the judgment in her case be vacated. Ms. Blackman’s case bears a 1993 case number, and it appears from the letter that she has completed her sentence. The letter also contained a phrase in which she asked to seal her record.

The trial court treated the letter as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, and denied it as untimely. I concur in the affirmance on that basis. As Ms. Black-man claims actual innocence, her only avenue of relief from the conviction would be by application to the Pardon Board.

In her notice of appeal (which the trial court did not see), Ms. Blackman included argument making clearer that she wishes to have her criminal record sealed. In order to pursue that relief, Ms. Blackman must submit a petition to seal or expunge on the appropriate forms contained in Florida Rule of Criminal Procedure 3.989, and follow the requirements of Rule 3.692. The requirements include obtaining a certificate of eligibility from the Florida Department of Law Enforcement. See §§ 943.0585, 943.059, Florida Statutes (2008). It is impossible to determine from Ms. Blackman’s letter whether she is, or is not, eligible for sealing or expunction. No useful purpose would be served by a remand for the trial court to consider this issue, because the claim has not been properly pled.


text:
    Haley McMINN, Appellant, v. Kimberly COX and Econo Car Auto Rental, Inc., Appellees.
    No. 1D08-1181.
    District Court of Appeal of Florida, First District.
    April 29, 2009.
    William P. Galione, Gainesville, for Appellant.
    Melanie Chapman of Fowler, White, Burnett, P.A., Ft. Lauderdale; June Galkoski Hoffman and Rory E. Jurman of Fowler, White, Burnett, P.A., Miami, for Appellees.
   PER CURIAM.

AFFIRMED. See St. Onge v. White, 988 So.2d 59 (Fla. 1st DCA 2008), reh’g denied, (Aug. 20, 2008); Lucas v. Williams, 984 So.2d 580 (Fla. 1st DCA 2008); Vargas v. Enterprise Leasing Co., 993 So.2d 614 (Fla. 4th DCA 2008).

DAVIS, BENTON, and PADOVANO, JJ., concur.


author: ROTHENBERG, J.

text:
    Evans REESE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-3189.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Rehearing Denied May 19, 2009.
    Evans Reese, in proper person.
    Bill McCollum, Attorney General; Katherine Fernandez Rundle, State Attorney, and Penny H. Brill, Assistant State Attorney, for appellee.
    Before ROTHENBERG, LAGOA, and SALTER, JJ.
   ROTHENBERG, J.

Evans Reese (“Reese”), a frequent appellant in this Court, makes yet another appearance regarding a 1994 case in which he was convicted of two counts of armed robbery. Reese is now appealing the trial court’s denial of his motion to compel the State Attorney’s Office to release all written statements and depositions by Nelson Lopez and Arnold Guerra pursuant to his public records request filed on September 29, 2006. The operative facts are as follows.

On or about September 29, 2006, Reese sought a copy of the entire prosecutor’s file in the instant case. On January 8, 2007, the State Attorney’s Office sent Reese “a true and correct copy of the State Attorney’s file,” along with a cover letter encouraging him to contact Avilio Alfonso, the records specialist with the Miami-Dade County State Attorney’s Office, if he needed further assistance. On July 18, 2008, approximately one-and-a-half years later, Reese sent a letter to the State Attorney’s Office alleging that he had not received certain requested depositions and discovery. The State responded that it had sent him a complete copy of the file and that pursuant to statutory authority, the file had been destroyed. In response, Reese filed a motion to compel the production of these materials, which was denied by the trial court.

Because we find no error, we affirm. The State sent Reese a copy of his file in January of 2006. Pursuant to section 119.021(2), Florida Statutes (2007), the file was destroyed in 2007, thereby making it impossible for the trial court to grant Reese’s motion to compel its production.

Affirmed.

      . See Reese v. State, 936 So.2d 579 (Fla. 3d DCA 2006); Reese v. State, 972 So.2d 194 (Fla. 3d DCA 2007); Reese v. State, 899 So.2d 428 (Fla. 3d DCA 2005); Reese v. State, 814 So.2d 1053 (Fla. 3d DCA 2002); Reese v. State, 789 So.2d 1000 (Fla. 3d DCA 2001); Reese v. State, 782 So.2d 882 (Fla. 3d DCA 2001); Reese v. State, 770 So.2d 689 (Fla. 3d DCA 2000); Reese v. State, 753 So.2d 800 (Fla. 3d DCA 2000); Reese v. State, 683 So.2d 645 (Fla. 3d DCA 1996) (affirming Reese’s convictions and sentence on direct appeal).

      . Pursuant to the General Records Schedule G59 for State Attorneys, the State Attorney's office is only required to retain files for adult felony cases for one year after disposition. However, the State Attorney’s Office has adopted a records retention policy which requires retention of records for first degree felonies for ten years after the case is closed. Because the convictions and sentence were affirmed in 1996, the file was properly destroyed in 2007.


text:
    Patrick M. MILTON, a corporation sole, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-6290.
    District Court of Appeal of Florida, First District.
    April 30, 2009.
    Patrick M. Milton, pro se, Petitioner.
    Bill McCollum, Attorney General, and Giselle D. Lylen and Brooke Poland, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Patrick M. Milton is hereby afforded a belated appeal from the order of the Circuit Court in and for Escambia County which denied in part and dismissed in part Milton’s motion for postconviction relief in case number 2006-CF-002376A. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who is directed to treat it as a timely notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

HAWKES, C.J., PADOYANO and ROBERTS, JJ., concur.


text:
    Glenda C. HASTY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-5595.
    District Court of Appeal of Florida, First District.
    April 30, 2009.
    Glenda C. Hasty, pros se, Petitioner.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Glenda C. Hasty is hereby afforded belated appeal of judgment and sentence of the Circuit Court for Okaloosa County in its case numbers 2003-CF-28 and 2005-CF-642. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). The circuit court shall appoint counsel for Hasty if she qualifies for such an appointment.

HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.


text:
    John C. HENDERSON, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. 1D08-6220.
    District Court of Appeal of Florida, First District.
    April 30, 2009.
    John C. Henderson, pro se, Petitioner.
    Sarah J. Rumph, Acting General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

John C. Henderson seeks a writ of mandamus to compel the Circuit Court for Madison County to rule on his pending petition for writ of habeas corpus in that court’s case number 08-78-CA. The matter has been pending in the lower tribunal for over one year and the Parole Commission is unable to show why the writ should not issue. We therefore grant the petition and direct the circuit court to issue a final order in the above-described habeas corpus proceeding within 30 days of issuance of mandate in this cause.

PETITION GRANTED.

HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.


text:
    Antonio TORRES, Appellant, v. CRUM SERVICES and Frank Winston Crum Insurance, Inc., Appellees.
    No. 1D08-3376.
    District Court of Appeal of Florida, First District.
    April 30, 2009.
    Bradley Guy Smith of Smith, Feddeler, Smith, & Miles, P.A., Lakeland, and Susan W. Fox, Fox & Loquasto, P.A., Tampa, for Appellant.
    Kari MacDonald of Dixon & Associates, Tampa, for Appellees.
   PER CURIAM.

This appeal is hereby DISMISSED for lack of jurisdiction. See Mintz v. Broward Corr. Inst, 800 So.2d 343 (Fla. 1st DCA 2001); Johnson v. First City Bank, 491 So.2d 1217 (Fla. 1st DCA 1986) (noting inclusion of the phrase “with prejudice” does not satisfy the test for finality).

ALLEN, PADOVANO, and ROBERTS, JJ., concur.


text:
    Victor BOUIE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-4735.
    District Court of Appeal of Florida, First District.
    April 30, 2009.
    Victor Bouie, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Victor Bouie is hereby afforded a belated appeal of the order of the Circuit Court for Gadsden County denying postconviction relief in its case number 2003-CF-000059A. Upon issuance of mandate in this cause, a copy of this opinion will be forwarded to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R. App. P. 9.141(c)(5)(D).

HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.


text:
    Steven MERCER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0302.
    District Court of Appeal of Florida, First District.
    April 30, 2009.
    Steven Mercer, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Steven T. Mercer is hereby afforded a belated appeal of the order of the Circuit Court for Duval County denying postconviction relief in its case number 16-2003-CF-10357. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R. App. P. 9.141(c)(5)(D).

HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.


text:
    Cirilo ZUNIGA, Petitioner, v. DOWNTOWN DRYWALL, INC. and Jua/St. Paul Travelers Insurance Company (E/C# 1) and Palma Construction Group Inc. and Gallagher Bassett Services, Inc. (E/C# 2), Respondents.
    No. 1D09-0390.
    District Court of Appeal of Florida, First District.
    April 30, 2009.
    Bill McCabe, Shepherd, McCabe and Cooley, Longwood, for Petitioner.
    Shawna G. Andres, Pallo, Marks, Hernandez, Gechijian & DeMay, P.A., Palm Beach Gardens, for Respondents.
   PER CURIAM.

The issues raised in the Petition for Writ of Certiorari are moot. Alternatively, petitioner has not shown material harm that could not be remedied on appeal. The writ is DENIED.

KAHN, DAVIS, and CLARK, JJ., concur.


text:
    Eddy BENITEZ, Appellant, v. TRULY NOLAN OF AMERICA and Crawford & Company, Appellees.
    No. 1D07-5880.
    District Court of Appeal of Florida, First District.
    May 4, 2009.
    Kimberly A. Hill of Kimberly A. Hill, P.A., Fort Lauderdale, and Richard E. Zaldivar of Richard E. Zaldivar, P.A., Miami, for Appellant.
    Janet M. Greene, Tampa, for Appellees.
   PER CURIAM.

DISMISSED for lack of jurisdiction. See Betancourt v. Sears Roebuck & Co., 698 So.2d 680, 682-683 (Fla. 1st DCA 1997).

HAWKES, C.J., VAN NORTWICK and BROWNING, JJ., concur.


text:
    David RAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3841.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

We reconsider on remand our opinion in Ray v. State, 941 So.2d 569 (Fla. 4th DCA 2006), which the Florida Supreme Court reviewed in Ray v. State, No. SC06-2385, 7 So.3d 529, 2009 WL 702859 (Fla. Mar. 19, 2009).

Ray argued to this court that the trial court erred in sentencing Mm as a prison releasee reoffender (“PRR”) based on allegedly inadmissible hearsay evidence, that is, a “Crime and Time Report” which the Department of Corrections (“DOC”) issued. 941 So.2d at 569-70. This court affirmed based on our en banc opinion in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006). In Yisrael, this court held that, during sentencing, a DOC release-date letter was admissible, under the public records exception to the hearsay rule, to establish a defendant’s status as a habitual violent felony offender. Id. at 549-50.

The Florida Supreme Court, however, in Yisrael v. State, 993 So.2d 952 (Fla.2008), concluded that DOC release-date letters alone are not admissible under either the business or public records exceptions to the hearsay rule. Id. at 960. Instead, the supreme court held that a signed release date-letter, written under seal, or a section 90.902(11) business record certification, may be used to authenticate an attached DOC “Crime and Time Report” to render the entire report admissible under the public records exception to the hearsay rule. Id. (citing Parker v. State, 973 So.2d 1167, 1168-69 (Fla. 1st DCA 2007); § 90.902(11), Fla. Stat. (2004)).

Following the disposition of Yisrael, the supreme court issued an order in this case directing the State to show cause why the supreme court should not remand for reconsideration in light of its decision in Yisrael. The State supplied the supreme court with a DOC business records certification, contained within the appellate record, which the State used to authenticate the “Crime and Time Report” upon which the trial court based Ray’s PRR sentence. After Ray conceded this point, the supreme court approved of this court’s ultimate result in Ray’s case, disapproved of our reliance on Yisrael, and remanded for further proceedings in accordance with its opinion.

Therefore, based upon the supreme court’s mandate issued April 14, 2009, we modify our affirmance of Ray’s conviction and sentence consistent with the supreme court’s opinion filed March 19, 2009.

HAZOURI, CIKLIN and GERBER, JJ., concur.


text:
    James INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2158.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

We reconsider on remand our opinion in Ingram v. State, 943 So.2d 325 (Fla. 4th DCA 2006), which the Florida Supreme Court reviewed in Ingram v. State, No. SC06-2469, 7 So.3d 531, 2009 WL 702877 (Fla. Mar. 19, 2009).

Ingram argued to this court, among other things, that the trial court erred in designating and sentencing him as a prison release reoffender (“PRR”) on Count I (burglary of a dwelling with battery). 943 So.2d at 327. This court affirmed as to Count I based on our en banc opinion in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006). In Yisrael, this court held that, during sentencing, a DOC release-date letter was admissible, under the public records exception to the hearsay rule, to establish a defendant’s status as a habitual violent felony offender. Id. at 549-50.

The Florida Supreme Court, however, in Yisrael v. State, 993 So.2d 952 (Fla.2008), concluded that DOC release-date letters alone are not admissible under either the business or public records exceptions to the hearsay rule. Id. at 960. Instead, the supreme court held that a signed release date-letter, written under seal, or a section 90.902(11) business record certification, may be used to authenticate an attached DOC “Crime and Time Report” to render the entire report admissible under the public records exception to the hearsay rule. Id. (citing Parker v. State, 973 So.2d 1167, 1168-69 (Fla. 1st DCA 2007); § 90.902(11), Fla. Stat.2004).

Following the disposition of Yisrael, the supreme court issued an order in this case directing the State to show cause why the supreme court should not remand for reconsideration in light of its decision in Yisrael. In response, the State asserted that documents submitted during sentencing complied with the supreme court’s Yis-rael decision. Because the full appellate record was not before the supreme court, the court granted Ingram’s petition for review, quashed our decision, and remanded this case to this court for reconsideration in light of Yisrael.

We have reviewed the full appellate record, and it appears that the State, at sentencing, supplied the trial court with a signed release date-letter, written under seal, to authenticate an attached DOC “Crime and Time Report” upon which the trial court based Ingram’s PRR sentence on Count I. Accordingly, we now affirm Ingram’s PRR designation and sentence on Count I consistent with the supreme court’s opinion filed March 19, 2009, and mandate issued April 14, 2009. However, pursuant to our opinion issued December 13, 2006, we remand for resentencing on Count II (grand theft). 943 So.2d at 327.

GROSS, C.J., HAZOURI and GERBER, JJ., concur.


text:
    Angel RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1491.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

We reconsider on remand our opinion in Rivera v. State, 939 So.2d 1197 (Fla. 4th DCA 2006), which was quashed by the Florida Supreme Court following its decision in Rivera v. State, 7 So.3d 523, 2009 WL 702826 (Fla. Mar. 27, 2009). As ordered by the Supreme Court, we apply its decision in Yisrael v. State, 993 So.2d 952 (Fla.2008), to the facts of this case.

In Yisrael, the Supreme Court disapproved of this Court’s holding in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), which was the case relied upon by this Court in holding that the Department of Correction’s letter, alone, was sufficient evidence of Rivera’s last release date to sentence him as a habitual felony offender (HFO). See Rivera, 939 So.2d at 1197. Given the Supreme Court’s reasoning in Yisrael, we now reverse Rivera’s sentence as a HFO because a Department of Correction’s letter, alone, is insufficient to support sentencing as a HFO. See Yisrael, 993 So.2d at 961. We, therefore, remand for resentencing consistent with the supreme court’s decision in Yisrael. Upon remand, the State may present additional evidence to prove that the defendant qualifies for habitual felony offender sentencing. See State v. Collins, 985 So.2d 985, 990 (Fla. 2008).

Reversed and Remanded.

HAZOURI, MAY and DAMOORGIAN, JJ., concur.


text:
    In re Frederick A. STOLZLE, Jr.
    No. 2009-B-0934.
    Supreme Court of Louisiana.
    April 29, 2009.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Frederick A. Stolzle, Jr., and the Office of Disciplinary Counsel,

IT IS ORDERED that Frederick A. Stolzle, Jr., Louisiana Bar Roll number 12497, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


author: CIACCIO, J. PER CURIAM.

text:
    J. Robert WOOLEY, As Commissioner of Insurance for the State of Louisiana v. Thomas S. LUCKSINGER, Michael D. Nadler, Stephen J. Nazarenus, Scott Westbrook, Michael K. Jhin, William F. Galtney, John P. Mudd, Executive Risk Indemnity, Inc., Executive Risk Management Associates, Executive Risk Specialty Insurance Co., Executive Liability Underwriters and Greenwich Insurance Co., Amcareco, Inc., Amcare Management, Inc. J. Robert Wooley, Commissioner of Insurance for the State of Louisiana, in his Capacity as Liquidator of Amcare Health Plans of Louisiana v. Foundation Health Corporation, Foundation Health Systems, Inc., and Health Net, Inc. J. Robert Wooley, Commissioner of Insurance for the State of Louisiana, as Liquidator for Amcare Health Plans of Louisiana, Inc, in Receivership v. Pricewaterhousecoopers, LLP.
    Nos. 2006 CA 1140 to 2006 CA 1142.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 30, 2008.
    Opinion Denying Rehearing and Rehearing En Banc Feb. 13, 2009.

      Before CIACCIO, LANIER and CLAIBORNE, JJ.

      . The Hon. Philip C. Ciaccio, Judge (Retired), the Hon. Walter I. Lanier, Jr., Judge (Retired), and tire Hon. Ian W. Claiborne, Judge (Retired), are serving as judges ad hoc by special appointment of the Louisiana Supreme Court.

   CIACCIO, J.

13This action commenced with a claim in contract by J. Robert Wooley, Commissioner of Insurance for the State of Louisiana (the Commissioner), to recover a money judgment pursuant to a suretyship contract executed by Foundation Health Corporation. For the following reasons, we amend and affirm the trial court judgment on the Louisiana contract cause of action.

FACTS ON CONTRCT CLAIM

Foundation Health Corporation (FHC) owned and operated Foundation Health, a Louisiana Health Plan, Inc. (FHLHP), a health maintenance plan in Louisiana. In 1996, as the sole shareholder of FHLHP, FHC executed a guaranty of sufficient capital to ensure FHLHP maintained the minimum capital and surplus requirements required by Louisiana law. The guaranty provided:

This is to certify that Foundation Health Corporation, the sole shareholder of Foundation Health, a Louisiana Health Plan, Inc. (“FHLHP”), guarantees that it shall provide sufficient capital to FHLHP to ensure that FHLHP maintains the minimum amounts of paid capital and surplus required for an HMO [health maintenance organization] under Louisiana law. This guarantee shall remain in place until Foundation Health Corporation provides written notice of its cancellation to the Commissioner of Insurance, State of Louisiana, at least sixty (60) calendars [sic] days in advance of the effective date of cancellation.

At this time, the minimum capital and surplus requirement was $2 Million.

The guaranty was signed by Jeffrey L. Elder, Chief Financial Officer, FHC. Attached to the guaranty was a California All-Purpose Acknowledgment dated December 9, 1996, wherein a California Notary Public certified Elder acknowledged that he executed the guaranty.

During 1997, FHC merged with Health Systems International and became Foundation Health Systems, Inc. On June 23, 1997, Denise Brignac, then Financial Analysis Manager for the Louisiana Department of | ¿Insurance (LaDOI), requested that FHLHP and Foundation Health Systems, Inc., agree to the following:

A parental guarantee ... executed between Foundation Health System, Inc. and Foundation Health, A Louisiana Health Plan, Inc. (Foundation Health), where Foundation Health System, Inc. guarantees Foundation Health will meet the statutory networth requirement as long as Foundation Health is a subsidiary of Foundation Health System, Inc., or until the HMO dissolves, whichever occurs first. The document must have the following wording: “non-cancelable by any party without the Commissioner’s approval.” (Emphasis added.)

On July 24, 1997, FHLHP responded to Ms. Brignae and rejected the proposed changes for the terms of the guaranty and its termination as follows:

Please note that a parental guarantee has been executed on behalf of the Plan. On December 9,1996 Foundation Health Corporation issued a Guarantee which states:
This is to certify that Foundation Health Corporation [FHC], the sole shareholder of the Plan guarantees that it shall provide sufficient capital to the Plan to ensure that the Plan maintains the minimum amounts of paid capital and surplus required of an HMO under Louisiana Law. This guarantee shall remain in place until FHC provides written notice of its cancellation to the Commissioner of Insurance, State of Louisiana, at least sixty (60) calendar days in advance of the effective date of cancellation.

The Guarantee was signed by FHC’s Chief Financial Officer.

At this date, no specific assets of the parent have been pledged with respect to the guarantee issued to the Plan. However, please note that Foundation Health Systems, Inc. is a large company. At [sic] March 31, 1997, the pro-forma total assets of Foundation Health Sys-terns, Inc. were $4.1 billion, including $1.8 billion in cash and investments.

A copy of the 1996 parental guaranty was attached to the July 24, 1997 correspondence.

At this point in time, FHC had the option of retaining the definite sixty-day notice “bailout” provision that required a written notice or [ ¡¡agreeing with LaDOI’s request for a less definite provision that provided for termination based on the conditions precedent of (1) FHLHP not remaining a subsidiary of FHC, or (2) the dissolution of FHLHP, and (3) Commissioner approval. FHC consciously chose the sixty-day notice “bailout” provision. If FHC had chosen to agree to the proposed termination provision with Commissioner approval, the suretyship would have terminated only upon a sale and Commissioner approval, and this action would be without merit. It is reasonable to infer from FHC’s rejection of the proposed changes that FHC determined that it was in its best interest to remain with the status quo.

In the absence of any further correspondence, we find that FHC declined the wording of the guaranty suggested by Ms. Brignae, and we find that the original guaranty executed by FHC remained in full force and effect.

After additional mergers, FHC became known as Health Net, Inc. (Health Net). In 1999, pursuant to the terms of a Stock Purchase Agreement (the sale), Health Net transferred all of the stock in the Louisiana health plan to AmCareco, Inc. (AmCareco), a corporation formed by a group of investors headed by Thomas S. Lucksinger. AmCareco was the sole shareholder of the Louisiana health plan, which became known as AmCare Health Plans of Louisiana, Inc. (AmCare-LA). Pursuant to La. R.S. 22:1004, AmCareco filed a Form-A application with LaDOI for the acquisition of AmCare-LA, which was approved by the Commissioner on April 30,1999.

AmCare-LA was placed in rehabilitation on September 23, 2002, and, on June 30, 2003, the Commissioner filed suit against Health Net seeking enforcement of the guaranty. The Commissioner also filed two other suits against the directors and owners of AmCare-LA and others seeking tort Ifidamages for breach of fiduciary duties, deceptive acts and practices, and fraud. All three of these suits eventually were consolidated for trial.

On November 4, 2005, the trial court rendered judgment in favor of the Commissioner and against Health Net, holding Health Net contractually liable on the guaranty for the total amount of compensatory damages awarded to the Commissioner in the Louisiana action in the amount of $9,511,624.19. Health Net appealed asserting the guaranty had expired as a matter of law and was extinguished by the sale between Health Net and AmCare-co. The Commissioner maintains the guaranty had neither expired nor was terminated because the required cancellation notice never was given, and, consequently, Health Net is still liable under the guaranty-

LAW AND DISCUSSION

A contract of guaranty is equivalent to a contract of suretyship. La. R.S. 10:l-201(b)(39) currently provides, “ ‘Surety’ includes a guarantor or other secondary obligor.” The terms guaranty and suretyship may be used interchangeably. First National Bank of Crowley v. Green Garden Processing Co., Inc., 387 So.2d 1070, 1073 (La.1980); Commercial National Bank in Shreveport v. Keene, 561 So.2d 813, 815 (La.App. 2 Cir.1990); Guaranty Bank & Trust Co. v. Jones, 489 So.2d 368, 370 (La.App. 5 Cir.1986). The provisions of the Civil Code governing the contract of suretyship must be examined in testing whether there is a continuing guaranty. Custom-Bilt Cabinet & Supply, Inc. v. Quality ┴7Built Cabinets, Inc., 32,441, p. 5 (La.App. 2 Cir. 12/8/99), 748 So.2d 594, 599.

Suretyship must be express and in writing. La. C.C. art. 3038. Suretyship cannot be presumed. An agreement to become a surety must be expressed clearly and must be construed within the limits intended by the parties to the agreement. Placid Refining Co. v. Privette, 523 So.2d 865, 867 (La.App. 1 Cir.), writ denied, 524 So.2d 748 (La.1988). Contracts of guaranty or suretyship are subject to the same rules of interpretation as contracts in general. Ferrell v. South Central Bell Telephone Co., 403 So.2d 698, 700 (La.1981); Eclipse Telecommunications Inc. v. Telnet Intern. Corp., 2001-0271, p. 4 (La.App. 5 Cir. 10/17/01), 800 So.2d 1009, 1011.

Contracts have the effect of law on the parties and must be performed in good faith. La. C.C. art. 1983. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. The intent is to be determined by the words of the contract when they are clear, explicit and lead to no absurd consequenees. La. C.C. art. 2046. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the intent of the parties, and the contract is interpreted by the court as a matter of law. La. C.C. art. 2046; Carter v. BRMAP, 591 So.2d 1184, 1187-88 (La.App. 1 Cir.1991).

Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. When a contract is clear and unambiguous, the meaning and intent of the parties to the written contract must be sought within the four corners of the instrument and cannot be explained or [acontradicted by parol or other extrinsic evidence. La. C.C. art. 1848; Allain v. Shell Western E & P, Inc., 99-0403, p. 8 (La.App. 1 Cir. 5/12/00), 762 So.2d 709, 714; Hampton v. Hampton, Inc., 97-1779, p. 6 (La.App. 1 Cir. 6/29/98), 713 So.2d 1185, 1189.

The use of parol or other extrinsic evidence is proper only when a contract is found to be ambiguous after an examination of the four corners of the agreement, or when it is susceptible to more than one interpretation, or the intent of the parties cannot be ascertained. Sanders v. Ashland Oil, Inc., 96-1751, pp. 8-9 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1036, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. An ambiguous provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La. C.C. art. 2053. Any ambiguity in a contract is to be construed against the party who furnished the text. La. C.C. arts. 2056 and 2057; Esplanade, L.L.C. v. KMR Entertainment Co., 2007 WL 949473, 2006-0567, p. 5 (La.App. 1 Cir. 3/30/07) (unpublished opinion); Seals v. Summit, 2003-0873, p. 6 (La.App. 1 Cir. 9/17/04), 887 So.2d 91, 95. In case of doubt, that cannot be otherwise resolved, a contract must be interpreted against the obligee and in favor of the obligor of a particular obligation; however, if the doubt arises from lack of a necessary explanation that one party should have given, or from negligence or fault of one party, the contract must be interpreted in a manner favorable to the other party whether obligee or obligor. La. C.C. art. 2057. See Myers v. Myers, 532 So.2d 490 (La.App. 1 Cir.1988).

Whether a contract is ambiguous is a question of law. Gaylord Container Corp. v. CNA Ins. Companies, 99-1795, p. 9 (La.App. 1 Cir. 4/3/01), 807 So.2d 864, 870, writ denied, 2001-2368 (La.12/07/01), 803 ┴9So.2d 31, reconsideration denied, 2001-2368 (La.1/25/02), 806 So.2d 664; Billiot v. Terrebonne Parish Sheriff’s Office, 98-0246, pp. 9-10 (La.App. 1 Cir. 2/19/99), 735 So.2d 17, 24, writ denied, 99-1376 (La.7/2/99), 747 So.2d 22; Aycock v. Allied Enterprises, Inc., 517 So.2d 303, 309 (La.App. 1 Cir.1987), writs denied, 518 So.2d 512, 513 (La.1988).

Suretyship is an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so. La. C.C. arts. 3035 and 3036; Customr-Bilt, 748 So.2d at 599; S. Litvinoff, 5 La. Civ. Law Treatise, The Law of Obligations, §§ 11.56, 12.47 and 20.8, pp. 275-76, 337 and 642-43. FHC, now Health Net, executed this suretyship contract and agreed to provide sufficient capital to FHLHP, now AmCare-LA, to ensure that the Louisiana health plan would maintain the minimum amount of paid capital and surplus required of an HMO under Louisiana law. Because this suretyship is given as required by legislation and/or subsequent administrative act of LaDOI, this is a legal suretyship. La C.C. arts. 3043 and 3063 et seq. The purpose of this suretyship is to provide a method for maintaining the minimum capital and surplus requirements of AmCare-LA if it fails to do so and/or otherwise provide protection for AmCare-LA’s obligees in the event of the insolvency and/or liquidation of AmCare-LA (obligor). La. R.S. 22:2010. The protected obligees of AmCare-LA are its enrollees, providers, employees and other creditors. La. R.S. 22:733 A(5) and B; 22:736 B and C; 22:737 D; 22:738 A; 22:2013 A(3) and (5) and E; 22:2010G, and 22:657A and D. Pursuant to these authorities, the Commissioner has a legal right to act on behalf of these [ inobligees. These obligees had and/or have contracts with AmCare-LA that required various types of performance from AmCare-LA. In this legal posture, FHC, now Health Net, is a surety, FHLHP, now AmCare-LA, is an obligor and the enrollees, providers, employees, and other creditors are the obligees. Am-Care-LA has failed to perform as it was obligated to do in its primary contracts with the protected creditors. La. C.C. art. 1994 et seq. The Commissioner has a legal right to collect money damages from Health Net pursuant to the suretyship contract for the benefit of these creditors (obligees) of AmCare-LA.

Louisiana Revised Statute 22:2010, entitled “Protection against insolvency”, provides, in pertinent part:

C. Each health maintenance organization shall establish prior to the issuance of any certifícate of authority, and shall maintain as long as it does business in Louisiana as a health maintenance organization, the following capital and surplus requirements:
(2) For each health maintenance organization which, by July 1, 1995, has filed its application for a certificate of authority with the commissioner as required by law, the minimum capital and surplus shall be:
(iii) Two million dollars by July 1, 1998.

According to the Louisiana Form-A Application, the original license for the Louisiana health plan was certified effective January 13, 1994.

The first sentence of the guaranty identifies the party executing the guaranty as FHC and states it will provide sufficient capital to FHLHP to ensure FHLHP maintains the minimum amounts of “capital and surplus required for an HMO under Louisiana law.” Through acquisitions and mergers, FHC eventually became known as Health Net and FHLHP became known as AmCare-LA. The suretyship is express and in writing. The wording of the contract is clear and unambiguous. FHC, now Health Net, |nagreed to be the surety for the underlying obligations of FHLHP, now AmCare-LA, to maintain the minimum amount of capital required of an HMO under Louisiana law.

Furthermore, there is no dispute that at the time the guaranty was executed it was intended as a continuing guaranty. La. C.C. art. 3061 provides, in pertinent part:

A surety may terminate the surety-ship by notice to the creditor. The termination does not affect the surety’s liability for obligations incurred by the principal obligor, or obligations the creditor is bound to permit the principal obligor to incur at the time the notice is received, nor may it prejudice the creditor or principal obligor who has changed his position in reliance on the surety-ship.

The terms of the contract are clear and unambiguous in providing that the suretyship will continue until sixty days after written notice of cancellation is made to the Commissioner. The law is well-settled that a continuing suretyship remains in force until revoked. Custom-Bilt, 748 So.2d at 600; Hardware Wholesalers, Inc. v. Guilbeau, 473 So.2d 108, 111 (La.App. 3 Cir.1985); Magnolia Petroleum Co. v. Harley, 13 So.2d 84, 87 (La.App. 2 Cir.1943). In this posture, it is the responsibility of the surety (Health Net) to cancel the suretyship agreement, and further, to prove the cancellation. Id.; Security First National Bank v. Richards, 584 So.2d 1174, 1180 (La.App. 3 Cir.1991).

Health Net asserts that the execution of the sale with AmCareco extinguished its obligation under the suretyship contract because the sale provided that all intercompany agreements were terminated. This is not factually or legally correct. Health Net’s obligation under the contract of suretyship is not an intercompany agreement; it is a legal suretyship contract to secure the obligation of AmCare-LA to maintain minimum statutory _[i2capital and surplus requirements for the ultimate benefit of its enrollees, providers, employees and other creditors.

LaDOI’s knowledge of the sale did not terminate the suretyship. Notice to a creditor that a surety has sold its interest in a business entity to another does not constitute notice of revocation on a continuing suretyship to the creditors. Custom-Silt, 748 So.2d at 599-601; Bonura v. Christiana Bros. Poultry Co. of Gretna, Inc., 336 So.2d 881, 885-86 (La.App. 4 Cir.), writs refused, 339 So.2d 11, 26 (La. 1976); Security First National Bank, 584 So.2d at 1180; Commercial National Bank in Shreveport, 561 So.2d at 815. Under the clear, unambiguous and express terms of the contract of suretyship, Health Net was required to provide the Commissioner with sixty-days written notice for cancellation. LaDOI’s knowledge of the execution of the sale pursuant to LaDOI’s approval of the Form-A application did not satisfy the clear and unambiguous terms of the contract requiring written notice to the Commissioner sixty days before the sure-tyship was cancelled.

The contract of suretyship is enforceable. Health Net failed to meet its burden of proving it had properly revoked the suretyship. Health Net is legally bound by the terms of the suretyship.

The Commissioner’s April 30,1999 approval of AmCareco’s Form-A application included the following condition, “The capitol [sic] of Foundation Health, a Louisiana Health Plan shall at all times remain at a minimum of $4,000,000.00 (Four Million dollars).” La. R.S. 22:3, La. R.S. 22:773, La. R.S. 22:2014 and La. Admin. Code Title 37, Part XIII, § 1307B4 authorize the Commissioner, upon a determination that the continued operation of an insurer may be hazardous to policyholders or the public, to increase an insurer’s capital and surplus requirements. Nothing in the record indicates any person requested a hearing to challenge the | ^enforcement of the additional condition on the Louisiana health plan. Nevertheless, by the clear and unambiguous terms of the suretyship, Health Net is contractually obligated for the minimum capital and surplus amount required by Louisiana law. La. R.S. 22:2010 C provides that, for an HMO that had filed an application for a certificate of authority by July 1, 1995, the minimum capital and surplus requirement of Louisiana law was $2,000,000.00 by July 1, 1998. This suretyship contract was executed in 1996 when the minimum capital and surplus requirement was $2,000,000.00 The 1999 increase in the minimum capital and surplus l'equirement cannot amend Health Net’s contractual obligation in the preexisting suretyship contract without Health Net’s consent, and the record on appeal does not reflect that such consent was given. Cf. U.S. ex rel. Landry v. National Surety Co. of New York, 191 La. 1017, 1065, 187 So. 9, 25 (La.1938). Accordingly, the trial court’s award of $9,511,624.19 has no basis in law or fact and is clearly erroneous and excessive.

The facts in the record on appeal show that the losses of the enrollees, providers, employees, and other creditors of Am-Care-LA exceeded $2,000,000.00. Thus, Health Net is contractually liable for the full amount of the guaranty.

DECREE

For the foregoing reasons, the judgment of the trial court on the Louisiana contract cause of action is affirmed as to the liability of Health Net under the contract of suretyship and is amended to reduce the amount of the award from $9,511,624.19 to $2,000,000.00 plus legal interest thereon from the date of judicial demand until paid. Costs in this action shall be | udetermined, allocated, and taxed as provided for in Part XV of our opinion pertaining to the tort causes of action rendered this date in District Court Docket Number 499,737, 509,297, and 512,366, and all three Court of Appeal Docket Numbers 2006-1140-1145 and 2006-1158-1163.

AMENDED AND AFFIRMED.

ON REHEARING

Before CIACCIO, LANIER and CLAIBORNE, JJ.

PER CURIAM.

| -¡The plaintiff-appellee, hereinafter referred to as the Louisiana Receiver, has applied for a rehearing en banc and a rehearing pursuant to Uniform Rules— Courts of Appeal, Rules 1-5 and 2-18.

Rehearing En Banc

The Louisiana Receiver asserts that a rehearing en banc should be granted because “[njumerous important public policy matters that directly affect the regulation of insurance companies and their management are implicated by the interpretation of this parental guarantee.” Although the Louisiana Receiver has asserted this factual conclusion, he has failed to state what these “[njumerous important policy matters” are for us to consider.

Rule 1-5 specifies that “[w]hen authorized by law, or when the court deems it necessary to promote justice or expedite the business of court, the court may sit ... en banc.” The Louisiana Receiver has not cited a law, and we are not aware of one, that would require an en banc rehearing on any of the issues in this case. Sitting en banc will not “expedite the business of court” in this case, and, in fact, will delay its final resolution. Finally, because the Louisiana Receiver has failed to assert what “important public policy matters” are at issue, other than those already decided, no necessity to “promote justice” has been demonstrated.

Accordingly, the application for a rehearing en banc is denied.

Rehearing

In the rehearing application pursuant to Rules 2-18.1 and 2-18.2, the Louisiana Receiver asserts this court overlooked “Health Net’s concurrent obligation to maintain the ‘surplus required’ for a Louisiana HMO to remain in operation”, the capital and surplus requirement “obligated Health Net to meet all ofjjthe liabilities of the Louisiana HMO” and the capital and surplus requirement of the suretyship contract “obligated Health Net to pay for all outstanding liabilities and capital requirements relating to the Louisiana HMO; i.e., the entire $9,511,624.19 awarded by the trial court.” The Louisiana Receiver has cited no statutory law or jurisprudence to support this claim.

This claim is patently without merit. La. R.S. 22:20T0C(2), now La. R.S. 22:254; La. R.S. 22:732.2(3)(a)(ii) and (c), now La. R.S. 22:2003; La. C.C. arts. 3036, 3066 and 3067; and La. R.S. 12:1E, I, L, N, T and V.

Accordingly, the application for a rehearing is denied.

      . In brief and oral argument, the parties agreed that the law of Louisiana controls on this issue. La. C.C. art. 3537 et seq.

      . Although there are minor differences between them, for purposes of this appeal a "guaranty’' in the common law is equivalent to our civilian "suretyship.” See BLACK’S LAW DICTIONARY 712 and 1456 (7th ed. 1999).

      .Prior to enactment of 2006 La. Acts No. 533, La. R.S. 10:1-201(40) provided, " ‘Surety’ includes guarantor.”

      . See also La. R.S. 22:741 and 22:746.

      . Pursuant to the balance billing provisions of La. R.S. 22:2018 A(l) and C, enrollees shall not be liable to providers for any sums owed by their HMO.

      . See La. R.S. 22:1351 et seq. and La. Admin. Code Title 37, Part XIII, § 1307C.

      . The Hon. Philip C. Ciaccio, Judge (Retired), the Hon. Walter I. Lanier, Jr., Judge (Retired), and the Hon. Ian W. Claiborne, Judge (Retired), are serving as judges ad hoc by special appointment of the Louisiana Supreme Court.

      . As previous!}' indicated in our original opinion, the trial court judge refused to advise why she granted this award amount when she ordered to do so in paragraph (9)(n) of the July 10, 2007 order of this Court.

      . Statutory construction laws require that all laws pertaining to the same subject matter must be inteipreted in reference to each others. La. C.C. art. 13; Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582, p. 10 (La. 11/29/06), 943 So.2d 1037, 1045.


author: GREG G. GUIDRY, Judge.

text:
    Cynthia ROBERTSON v. FRANK’S SUPER VALUE FOODS, INC., and XYZ Insurance.
    No. 08-CA-592.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Allan Berger, Arthur J. O’Keefe, Attorneys at Law, Lake Charles, LA, for Plaintiff/Appellant.
    Lyon H. Garrison, Darrin L. Forte, Kevin F. Truxillo, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., GREG G. GUIDRY, and MADELINE JASMINE, pro tempore.
   GREG G. GUIDRY, Judge.

12Plaintiff, Cynthia Robertson, filed this appeal from a partial summary judgment granted in favor of the Defendant, Frank’s Super Value Foods, Inc., on her claim for damages caused by Frank’s interference with her civil action against it. For the reasons which follow, we reverse and remand.

The record indicates Plaintiff was shopping in Frank’s store, on July 5, 2004, with her daughter, Raneka Robertson, and her grandson, Jarred Morton. After paying for her groceries and realizing that she forgot to buy ice cream, Plaintiff walked back from the register into the grocery area. As she walked toward the freezer area, she contends she slipped and fell, injuring her knees and back. Plaintiff asserts that she slipped and fell on a liquid substance that was on the floor. Frank’s had video cameras in the store that recorded the events prior to, during, and after the fall.

Plaintiff filed her suit for damages from the slip and fall five months later, on December 2, 2004. After answering, on November 18, 2005, Frank’s filed a | smotion for summary judgment, arguing that Plaintiff could not prove her claim under La. R.S. 9:2800.6, the statute providing the burden of proof for claims against merchants. In opposition to the motion, Plaintiff argued that Frank’s is guilty of impeding her slip and fall action by, among other things, destroying critical evidence and should not be allowed to advantage itself through its own misdeeds. Plaintiff contends that the best evidence of whether there was a liquid substance on the floor where she fell, as well as how and when it got there, was a video taken by Frank’s which Frank’s intentionally destroyed, while saving the part of the video that benefited the store. The destruction of evidence that would have benefited a plaintiffs claim is often referred to as spoliation of evidence.

On June 2, 2006, the trial court denied the motion for summary judgment upon finding that the spoliation issue created a genuine issue of material fact. This Court denied writs on June 30th, 2006. Robertson v. Frank’s Super Value Foods, Inc., 06-436 (La.App. 5 Cir. 6/30/06).

|4FoIlowing remand of the case, on July 24, 2006, Frank’s filed a Motion for Reconsideration of Motion for Summary Judgment. This motion was denied by the trial court and writs were again denied by this Court. Robertson v. Frank’s Super Value Foods, Inc., 06-861 (La.App. 5 Cir. 12/11/06). The concurring opinion to the writ denial noted that the spoliation issue could only be decided after making credibility determinations, since the affidavits contradict each other as well as deposition testimony, and credibility determinations are not properly made on a motion for summary judgment.

While Frank’s writ application was pending in the appellate court, on September 25, 2006, Plaintiff filed an Amended and Supplemental Petition for Damages adding a cause of action for damages suffered because of Frank’s actions in impeding her case by, among other assertions, destroying evidence favorable to the Plaintiff while retaining evidence in its favor.

Frank’s answered the amended petition and on November 13, 2007, filed a Motion for Partial Summary Judgment concerning Plaintiffs spoliation of evidence claim. Frank’s argued that Plaintiff was unable to prove the essential elements of that claim because she could not prove that Frank’s intentionally destroyed the evidence to impede the prosecution of her claim nor that Frank’s knew Plaintiff was going to file a lawsuit at the time the alleged evidence was destroyed.

Plaintiff opposed the defense motion for partial summary judgment. Plaintiff argued that all of the evidence indicates that Frank’s destruction of only part of the video, the part favorable to Plaintiff showing the condition of the floor before the fall, was intentional and for the purpose of impeding a claim by Plaintiff. Plaintiff points out that Frank’s was the sole custodian of the video and made the decision regarding what parts of the video to save or destroy. Within | .-.hours of the fall, Frank’s had an employee view the video and save the part showing the fall and events thereafter while allowing the part showing the condition of the floor before the fall to be destroyed. Plaintiff submits that the act of saving some of the video while allowing other parts to be destroyed evidences an awareness on the part of Frank’s that a claim for damages resulting from the accident might be made. Thus, they have met the burden to defeat the partial summary judgment.

In the alternative, it is argued that even if the evidence presented doesn’t conclusively prove the defense motive for destroying the video, it does create genuine issues of fact which preclude summary judgment.

The trial court granted the partial summary judgment on the spoliation issue and certified it as final for appeal. It is from this judgment that Plaintiff appeals.

It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750; Hayne v. Woodridge Condominiums, Inc., 06-923, p. 4 (La.App. 5 Cir. 4/11/07), 957 So.2d 804, 807; Nuccio v. Robert, 99-1327, p. 6 (La.App. 5 Cir. 04/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544. Thus, this court must consider whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Magnon v. Collins, 98-2822, p. 6 (La.7/7/99), 739 So.2d 191, 195; Smith, 93-2512 at 26, 639 So.2d at 750. The summary judgment procedure is favored, and shall be construed, as it was intended, to secure the just, speedy, and ^inexpensive determination of many actions. La. C.C.P. art. 966(A)(2); Magnon, 98-2822 at 6, 739 So.2d at 195.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to 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. Hayne v. Woodridge Condominiums, Inc., 06-923 at 5, 957 So.2d at 807. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiai-y burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2); Id.

At the outset, it should be noted that Plaintiffs amended petition asserts more than a claim for spoliation of evidence. Plaintiff’s amended petition is much broader, alleging that her right to assert and prove a claim for damages against Frank’s for injuries she suffered as a result of a fall in Frank’s store has been impaired by Frank’s actions. Our courts have recognized a cause of action for the tort of impairment of a civil claim. Daotheuang v. El Paso Production Oil & Gas Co., 06-403 (La.App. 3 Cir. 9/27/06), 940 So.2d 752; Guillony v. Dillard’s Dept. Store, Inc., 00-190 (La.App. 3 Cir. 10/11/00), 777 So.2d 1; Williams v. General Motors Corp., 607 So.2d 695 (La.App. 4 Cir.1992). See also Morgan v. ABC Manufacturer, 93-701 (La.App. 5 Cir. 3/16/94), 637 So.2d 1076. Included among the numerous delictual actions alleged by Plaintiff in the assertion of her impairment of action claim was the fact that Frank’s had destroyed evidence that would have supported her original cause of action, commonly referred to as spoliation of evidence. Frank’s motion for partial summary judgment only |7addressed the spoliation issue and, therefore, that is all that will be considered on appeal.

The theory of spoliation of evidence has its roots in the evidentiary doctrine of “adverse presumption,” which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained. Pham v. Contico Intern. Inc:, 99-945, p. 4 (La.App. 5 Cir. 3/22/00), 759 So.2d 880, 882; Quinn v. RISO Investments, Inc., 03-0903, p. 5 (La.App. 4 Cir. 3/3/04), 869 So.2d 922, 927; Desselle v. Jefferson Hosp. Dist. No. 2, 04-455, p. 16 (La.App. 5 Cir. 10/12/04), 887 So.2d 524, 534. Although the adverse presumption rule is still viable, more recently, as in this case, litigants have asserted a claim for damages in tort against a person who allegedly destroys or conceals evidence material to a potential or pending lawsuit. The question that the courts have been grappling with is under what circumstances that person will be held liable. Our Supreme Court has yet to speak on this issue.

In granting the partial summary judgment on the spoliation of evidence claim, the trial court relied, primarily, on this Court’s decision in Longwell v. Jefferson Parish Hosp. Service Dist. No. 1, 07-259 (La.App. 5 Cir. 10/16/07), 970 So.2d 1100, twits denied, 07-2223 (La.1/25/08), 973 So.2d 756. In doing so, the trial court focused on the part of the opinion that discussed the theory of spoliation of evidence as an intentional act requiring a showing that the defendant had notice that Plaintiff would file suit before a duty to preserve the evidence could be found.

However, Longwell also acknowledged that our jurisprudence has recognized two causes of action for spoliation of evidence, one being intentional and the other under a negligence theory. A cause of action for spoliation has been recognized where the defendant had an obligation to preserve the evidence. Carter, ┴8 et al. v. Exide Corp., et al., 27,358 (La.App. 2 Cir. 9/29/95), 661 So.2d 698. In Louisiana, negligence claims are resolved by employing duty — risk analysis. Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606; Longwell, 07-259 at 9, 970 So.2d at 1105.

It has been held that a duty to preserve evidence can exist without the imposition of a statutory duty. Bethea v. Modern Biomedical Services, Inc., 97-332 (La.App. 3 Cir. 11/19/97), 704 So.2d 1227, writs denied, 97-3169, 709 So.2d 760, 97-3170, 709 So.2d 761 (La.2/13/98). In Bethea, the plaintiff, an on duty nurse injured by electrical shock while plugging in a piece of medical equipment, filed suit not only for her injuries from the shock she suffered, but also for impairment of a civil action as well as for negligent and intentional spoliation of evidence. It seems that the defendant’s technician/employee examined the plug from the equipment, and disposed of it. In considering the defendant’s exception of no cause of action on the latter claims, the court examined the issue under La. C.C. art. 2315 and it dictates that ‘ “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” ’ In finding that the plaintiff did state a cause of action for negligent and/or intentional spoliation of evidence in the absence of a statutory duty, the court recognized that each individual is accountable for his or her actions as they affect fellow members of society. Thus, although the claims may be separate, both causes of action, (impairment of a civil action and spoliation of evidence) are premised on the right of a plaintiff to be free from interference in pursuing and/or proving his or her lawsuit. Guillory v. Dillard’s Dept. Store, Inc., 00-190, p. 5 (La.App. 3 Cir. 10/11/00), 777 So.2d 3, 4.

In applying these precepts to this case, we find material issues of fact precluding summary judgment at this time. The trial court acknowledged that Frank’s actions in selectively preserving and destroying videotape of events before, [ ^during and after the accident call into question its motives. The trial court noted the following:

Frank’s ... is a party of some sophistication. In other words, it is a business, an incorporated legal entity, insured for such events as occurred herein, and having access to the advice of lawyers and/or their insurer. As such, Frank’s is assumed to be aware of the elements of liability and the prescriptive period regarding a slip-and-fall case. For particular reasons not made known to this court, Frank’s has chosen to videotape its premises and has chosen a taping system which saves the videotape for a period of fourteen days, after which it tapes over itself unless specifically preserved. By Frank’s own admission, a portion of the videotape from the day of the accident was preserved while the rest was destroyed or taped over. Although Frank’s had no recognized general duty to preserve the evidence and had no official notice of a lawsuit, Frank’s “selectively” preserved and destroyed evidence within two weeks of the accident, choosing those portions of the videotape it wished to retain, and destroying, or allowing destruction of, other portions of the tape. That portion of the tape preceding the accident which would have sufficed to prove or disprove actual or constructive notice, an element of the claim, was not preserved, while the accident itself was preserved. Such deliberate action gives rise to questions regarding Frank’s procedures and motives.

Even though summary judgment is now favored, it is not a substitute for trial on the merits, and it has been found inappropriate for judicial determination of subjective facts, such as motive, intent, good faith, knowledge or malice that call for credibility evaluations and the weighing of the testimony. S.J. v. Lafayette Parish School Bd., 06-2862, p. 5 (La.6/29/07), 959 So.2d 884, 887 (per curiam); Chivleatto v. Sportsman’s Cove, Inc., 05-136, p. 6 (La.App. 5 Cir. 6/28/05), 907 So.2d 815, 819.

As found by the trial court, Frank’s had the videotape in its possession at all times. It was aware that the Plaintiff had slipped and fallen in the store. It instructed an employee to view the tape and allowed the part of the tape preceding | inthe accident to be destroyed while preserving the part including and following the accident which happened to be favorable to Frank’s. Additionally, the trial court found that Frank's took these actions within two weeks of the accident. These facts are not disputed

What is disputed is Frank’s motive or bad faith in allowing the destruction of the tape which could have provided evidence needed by the Plaintiff to prove Frank’s actual or constructive knowledge at the time of the accident. There are also material issues of fact concerning what Frank’s knew at the time it gave the direction to allow the videotape’s destruction. The facts are disputed by contrary affidavits and depositions as to whether Frank’s was aware that the Plaintiff claimed that she had fallen on a liquid substance on the floor. The knowledge of Frank’s on this point could effect a determination as to whether it breached any duty it owed the Plaintiff to not interfere with the Plaintiffs right to pursue and/or prove her claim. Additionally, as stated above, Plaintiffs supplemental petition includes the spoliation of evidence allegations as only one fact in the cause of action asserted by Plaintiff for interference with her civil suit.

Based on the foregoing, we find the trial court erred in granting a partial summary judgment on the spoliation of evidence claim where there are material issues of fact precluding a finding that Frank’s is entitled to judgment as a matter of law. Further, we find the interest of judicial economy better served by the trial court considering the entirety of the alleged cause of action for interference with a civil action rather than considering each fact supporting it individually.

| nAccordingly, for the reasons stated above, we reverse the summary judgment granted by the trial court and remand the case to the trial court for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED

      . La. R.S. 9:2800.6 provides:
      A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
      B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
      (1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
      (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
      (3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
      C.Definitions:

        (1) "Constructive notice" means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
      (2) "Merchant" means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
      D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660. 667. 669. 2317. 2322, or 2695.

      . In brief, Frank’s argues that this Court should also review the trial court’s decision to deny its motion for summary judgment on the tort action. However, the record does not indicate that Frank’s either filed a motion for appeal or answered the appeal. In order for the appellate court to modify a judgment, the party asking for the modification must file either a motion for appeal, pursuant to La. C.C.P. art. 2121, or a written Answer to the Appeal, in accordance with La. C.C.P. art. 2133. Alwell v. Meadowcrest Hospital, Inc., 07-376, p. 3 (La.App. 5 Cir. 10/30/07), 971 So.2d 411, 416. Thus, this issue has not been properly raised before the Court.

      . It has been held in other jurisdictions that a duty to preserve evidence can arise in the absence of notice of suit if the spoliating party acted to protect itself. The duty to preserve evidence arises from the foreseeability of the need for the evidence and not necessarily from notice of suit. To hold otherwise would encourage a party to avoid liability by destroying evidence as quickly as possible. 101 A.L.R. 5th 61, § 20; County of Solano v. Delaney, 264 Cal.Rptr. 721 (App. 1st Dist.1989).