author: CRENSHAW, Judge.

text:
    David D. LEE, Appellant, v. Lynette J. LEE, Appellee.
    No. 2D10-6087.
    District Court of Appeal of Florida, Second District.
    July 27, 2012.

      H. Stephen Hillebrand, Sarasota, for Appellant.
    No appearance by Appellee.
   CRENSHAW, Judge.

David D. Lee appeals an order permanently extending an injunction for protection against domestic violence entered against him for Lynette J. Lee. Because the trial court applied an incorrect legal standard and failed to conduct an eviden-tiary hearing on Ms. Lee’s motion to extend the injunction, we reverse and remand for an evidentiary hearing.

In October 2010, Ms. Lee filed a motion for extension of an injunction against Mr. Lee for protection against domestic violence. At that time, an ex parte order was entered extending the injunction on a temporary basis. A hearing was then held on the motion for extension and despite Mr. Lee’s opposition to the motion, the trial court entered an order permanently extending the injunction without hearing any evidence. Instead, the trial court reasoned that the injunction “met the requirement for it to be entered originally,” and “Ms. Lee feels that she continues to need it.”

Under section 741.30(1)(a), Florida Statutes (2010), any person “who is either a victim of domestic violence ... or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence,” may file a petition for an injunction for protection against domestic violence. However,

[w]hen moving for an extension of a preexisting injunction, the petitioner must establish either that additional domestic violence has occurred or that, at the time the petition for extension is filed, he or she has a continuing reasonable fear of being in imminent danger of becoming the victim of domestic violence.

Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001). Here the trial court failed to hear any evidence or make any findings that additional domestic violence had occurred or that Ms. Lee had a “continuing reasonable fear of being in imminent danger of becoming the victim of domestic violence.” Nor did the trial court afford Mr. Lee an opportunity to be heard in opposition to the motion to extend the injunction. Accordingly, we reverse the permanent injunction and remand for an evidentiary hearing. See Pope v. Pope, 901 So.2d 352, 354 (Fla. 1st DCA 2005) (noting the due process requirements of section 741.30 and remanding for an evidentiary hearing where the trial court extended a temporary injunction without giving the respondent an opportunity to present his case).

Reversed and remanded for further proceedings.

WHATLEY and MORRIS, JJ., Concur.


source: Caselaw Access Project

author: DEMPSEY, ANGELA, Associate Judge.

license: Public Domain

text:
    James R. BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5141.
    District Court of Appeal of Florida, First District.
    July 27, 2012.

      James R. Bailey, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   DEMPSEY, ANGELA, Associate Judge.

Appellant, James R. Bailey, appeals the trial court’s August 29, 2011 order denying his motion for return of property without holding an evidentiary hearing. Because the trial court failed to hold an evidentiary hearing, we reverse and remand for further proceedings.

On February 16, 2006, Appellant was tried by a jury and convicted of burglary with an assault or battery, aggravated battery and battery on a person 65 years or older. During the trial, the state introduced a gold necklace belonging to Appellant as State’s exhibit 35. On March 1, 2006, the trial court sentenced Appellant to a total of 25 years of incarceration. This Court affirmed Appellant’s conviction in his direct appeal in Bailey v. State, 952 So.2d 1194 (Table), (Fla. 1st DCA 2007), with a mandate issued April 16, 2007.

The procedure for a defendant to move for the return of seized property is similar to a motion for post-conviction relief. The defendant must file a timely motion alleging three things: that the property is exclusively his own, that it was not the fruit of illegal activity, and that it is not being held for evidentiary purposes. If the motion is facially sufficient, the court may issue an order to show cause to the State to assist the court in determining whether the defendant’s allegations can be conclusively refuted. If the court is unable to conclusively refute the defendant’s allegations, an evidentiary hearing is required before a court denies a motion for return of property. Sanchez v. State, 88 So.3d 389 (Fla. 4th DCA 2012).

In this case, Appellant filed a Motion for Return of Property and the trial court issued an Order Directing State to Respond. The State’s response indicated that the property Appellant seeks the return of was previously entered into evidence at trial. The State also alleged that the Appellant’s motion was untimely. Petitioner filed an Answer to State’s Response and attached an additional “Motion to Return Property” with a “Provided to Hamilton County Cl for Mailing” stamp dated May 2, 2007, which Petitioner alleges was never ruled upon.

The trial court found that because the necklace was entered into evidence at the trial, Petitioner is not entitled to the return of the necklace. The fact that the property was previously entered into evidence at the trial level is insufficient to deny the motion without a hearing. Rather the State must show a continuing need for the property. Thomas v. State, 997 So.2d 476 (Fla. 1st DCA 2008).

The trial court also found that the motion was untimely because Section 705.105, Fla. Stat. requires a motion for return of property be filed within 60 days of the “conclusion of the proceeding” or date of the mandate. However, based on the Motion to Return Property attached to Petitioner’s Answer to State’s Response it appears that Petitioner timely filed a prior motion that was never ruled upon. This prior motion does not appear on the trial court’s docket; nevertheless if it was timely provided to prison officials it is deemed filed pursuant to the mailbox rule. Mayo v. State, 977 So.2d 732 (Fla. 1st DCA 2008). As such, if the prior motion and May 2, 2007 date stamp are authentic, Petitioner’s current claim should not be denied as untimely. See Forbes v. State, 826 So.2d 421 (Fla. 3rd DCA 2002).

Therefore, we reverse and remand for an evidentiary hearing to provide the defendant an opportunity to prove 1) whether the prior motion and date stamp are authentic, 2) whether the property is exclusively his own, 3) that the property was not the fruit of illegal activity, and 4) that the property is not being held for continuing evidentiary purposes.

REVERSED AND REMANDED.

VAN NORTWICK and ROBERTS, JJ., concur.


author: PER CURIAM.

text:
    Kenneth NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1808.
    District Court of Appeal of Florida, First District.
    July 27, 2012.
    Kenneth Nelson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(b) (notice of appeal must be filed within 30 days of rendition of order to be appealed); Palm v. State, 982 So.2d 1226 (Fla. 1st DCA 2008) (“Because the notice of appeal was filed more than 30 days after rendition of the order and the untimely motion for rehearing did not delay rendition, this Court is without appellate jurisdiction.”).

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    Sean P. REILLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2142.
    District Court of Appeal of Florida, First District.
    July 31, 2012.
    Sean P. Reilly, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Reilly v. State, case number 1D11-0088, an appeal from judgment and sentence in the Circuit Court for Leon County, was dismissed when counsel failed to timely file an initial brief. We grant the instant petition alleging ineffective assistance of appellate counsel and reinstate case number 1D11-0088. Jurisdiction is relinquished to the lower tribunal for 20 days from issuance of mandate in this cause to permit Reilly to move the trial court for appointment of counsel in the direct appeal at public expense. Reilly or his attorney shall ensure completion of the record on appeal within 50 days of return of jurisdiction to this court. Appellant’s initial brief in case number 1D11-0088 shall be filed within 30 days of completion of the record.

PETITION GRANTED.

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    MVK, a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1372.
    District Court of Appeal of Florida, First District.
    July 31, 2012.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This appeal was filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because Appellant’s counsel was unable to make a good-faith argument that reversible error occurred below. Our review of the record reveals that the trial court properly imposed a maximum-risk residential placement for Appellant, a minor who was adjudicated delinquent for committing grand theft auto and who had previously completed two different high-risk residential programs for other offenses. See § 985.494(1), Fla. Stat. (2011) (“Notwithstanding any other law and regardless of the child’s age, a child who is adjudicated delinquent, or for whom adjudication is withheld, for an act that would be a felony if committed by an adult, shall be committed to a maximum-risk residential program if the child has completed two different high-risk residential commitment programs.”). The trial court correctly rejected the arguments raised below that it had to explain its reasons for deviating from the recommendation of the Department of Juvenile Justice pursuant to E.A.R. v. State, 4 So.3d 614 (Fla.2009), and that section 985.494 pertains only to juvenile sexual offenders. Both arguments are refuted by the plain language of the statute.

Accordingly, we AFFIRM.

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Shawn C. LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1602.
    District Court of Appeal of Florida, First District.
    July 31, 2012.

      Shawn C. Lewis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Tavares JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1598.
    District Court of Appeal of Florida, First District.
    July 31, 2012.
    Tavares Johnson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012); Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Reginald ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1149.
    District Court of Appeal of Florida, First District.
    July 31, 2012.
    Reginald Adams, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Leroy GIVENS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0747.
    District Court of Appeal of Florida, First District.
    July 31, 2012.
    Leroy Givens, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

THOMAS, WETHERELL, and MARSTILLER, JJ„ concur.


text:
    Cindy Swanston McCREE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0015.
    District Court of Appeal of Florida, First District.
    July 31, 2012.
    Cindy Swanston McCree, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Gualberto Q. SANCHEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0774.
    District Court of Appeal of Florida, First District.
    July 31, 2012.
    Gualberto Q. Sanchez, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Gualberto Sanchez-Quintana is hereby granted belated appeal of judgment and sentence in Walton County case number 10-CF-585. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

The circuit court shall appoint counsel to represent petitioner in the direct appeal if he qualifies for such an appointment.

PETITION GRANTED.

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    Savery McCUFF, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0216.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2012.
    Savery McCuff, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Duwayne Allen PEACOCK, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5943.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    David Lee ADKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5732.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2012.

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

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Shannon LOCKE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5493.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    James Levett DURR, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5480.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Sade Marie DUNBAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5377.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Steven Lashaun DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5348.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2012.
    Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    V.F., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4363.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

V.F., a juvenile, appeals the trial court’s imposition of a mandatory fifteen days in a secure detention facility pursuant to section 790.22(9), Florida Statutes (2011). In B. O. v. State, 25 So.3d 586 (Fla. 4th DCA 2009), we held that it was error to impose the section 790.22(9) sentencing enhancement based on a guilty plea to grand theft of a firearm where the juvenile petition neither cited the statute nor alleged that, in committing the theft, the child used or possessed a firearm. As in B.O., the trial court here imposed a fifteen-day mandatory period of detention based on appellant’s plea of no contest to grand theft of a firearm. The grand theft charge in the juvenile petition here, however, suffered the same deficiency as in B. O. As such, we reverse the imposition of the mandatory fifteen-day minimum detention.

Reversed.

STEVENSON, CIKLIN, JJ., and WALSH, LISA S., Associate Judge, concur.


text:
    Todd SIMON, D.O., Appellant, v. PROASSURANCE CASUALTY COMPANY, a foreign corporation, and David King, individually, Appellees.
    No. 4D11-3275.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Bambi G. Blum of Bambi G. Blum, P.A., Miami and Lance W. Shinder of Lance W. Shinder, P.A., Boca Raton, for appellant.
    Misty Chaves and David King of King & Chaves, LLC, West Palm Beach, for appel-lee David King.
   PER CURIAM.

Affirmed. See Rogers v. Chicago Ins. Co., 964 So.2d 280 (Fla. 4th DCA 2007).

MAY, C.J., DAMOORGIAN, J„ and TUTER, JACK, Associate Judge.


text:
    Todd SIMON, D.O., Appellant, v. PROASSURANCE CASUALTY COMPANY, a foreign corporation, and David King, individually, Appellees.
    No. 4B11-2391.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Bambi G. Blum of Bambi G. Blum, P.A., Miami and Lance W. Shinder of Lance W. Shinder, P.A., Boca Raton, for appellant.

      Paul Nettleton of Carlton Fields, P.A., Miami, for appellee ProAssurance Casualty Company.
   PER CURIAM.

Affirmed. See Rogers v. Chicago Ins. Co., 964 So.2d 280 (Fla. 4th DCA 2007).

MAY, C.J., DAMOORGIAN, J., and TUTER, JACK, Associate Judge.


author: STEVENSON, J.

text:
    Jack LEBEN and Joyce Leben, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 4D10-3833.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Christopher J. Lynch of Hunter, Williams & Lynch, P.A., Coral Gables, and J. Warren Frazer of Ligman Martin, P.L., Miami, for appellants.
    Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach, for appellee.
   STEVENSON, J.

This appeal stems from a breach of contract action filed by Jack and Joyce Leben against State Farm Florida Insurance Company for its failure to cover roof damage following Hurricane Wilma in October of 2005. The trial court granted summary judgment in favor of State Farm, reasoning that the Lebens failed to comply with post-loss conditions under the policy, specifically by failing to give timely notice. Because the record raises a genuine issue of material fact as to whether State Farm was prejudiced by any failure of the Le-bens to comply with the notice provisions, we reverse.

The policy at issue covers “accidental direct physical loss” to the “dwelling.” The policy states that “[ajfter a loss to which this insurance may apply, you shall ... give immediate notice to us or our agent.” Immediately after Hurricane Wilma occurred in 2005, the Lebens noticed some damage to their home, but did not report it to State Farm until February 2009.

The record contains two reports that were provided by the Lebens. The first is a report from Stephen Thomas of the Roof Leak Detection Company, Inc., and the second is a letter and proposal from ANC Roofing, Inc. (“ANC”). The evaluation from Thomas discussed extensive damage to the Lebens’ roof. Despite repairs to the roof which the Lebens had completed soon after the initial damage, Thomas opined that “we can expertly conclude that as a result of wind uplift forces experienced during Hurricane Wilma, widespread damage to the installed tiled roof system occurred, resulting in the current state of complete system failure.” The letter from ANC concluded that the Le-bens’ “roof has truly sustained damaged [sic] by Hurricane Wilma forces of wind.” The letter further stated that “[t]his is purely a case of unnoticed and overlooked” damage from Hurricane Wilma. In opposition to this evidence, State Farm provided an affidavit from Richard Morris, the State Farm employee assigned to the Le-bens’ claim. Morris indicated that State Farm inspected the Lebens’ roof but was “unable to independently determine whether roof and interior damage to the home was caused by Hurricane Wilma because the Lebens’ failure to comply with the post-loss conditions precedent to recovery of their policy prejudiced and compromised State Farm.”

A trial court’s order granting summary judgment is reviewed de novo. See Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010). Summary judgment is appropriate where the record reveals no genuine issue of material fact and the moving party is entitled to judgment, as a matter of law. See Smith v. Shelton, 970 So.2d 450, 451 (Fla. 4th DCA 2007). Generally, “[t]he failure of an insured to give a timely notice of loss in contravention of a policy provision is a legal basis for the denial of recovery under the policy.” Ideal Mut. Ins. Co. v. Waldrep, 400 So.2d 782, 785 (Fla. 3d DCA 1981). However, an insured’s failure to comply with an insurance policy notice provision is not fatal to coverage — “[i]f the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.” Bankers Ins. Co. v. Macias, 475 So.2d 1216, 1218 (Fla.1985). The record contains a question of fact as to whether State Farm was prejudiced by the Lebens’ failure to provide timely notice. While State Farm submitted an affidavit attesting that it could not determine that the damage was caused by Hurricane Wilma, the Lebens submitted two reports from individuals who concluded that Hurricane Wilma had caused the damage. This was sufficient to raise a genuine issue of material fact and defeat State Farm’s motion for summary judgment.

Reversed and remanded.

WARNER and CONNER, JJ., concur.


text:
    Brian James THORNQUIST, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6571.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2012.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was convicted of three felonies arising out of a domestic dispute with his wife during which he discharged a firearm. We affirm Appellant’s convictions without further comment, but reverse the 27-year minimum mandatory term imposed on Count 1 because, as the state properly concedes, section 775.087(2)(a)2., Florida Statutes (2009), only permits a 20-year minimum mandatory term. On remand, the trial court shall correct the sentence for Count 1 to reflect a minimum mandatory term of only 20 years. Appellant’s sentences are affirmed in all other respects.

JUDGMENT AFFIRMED; SENTENCE AFFIRMED in part and REVERSED in part; REMANDED with directions.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Meigo A. BAILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1021.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2012.
    Meigo A. Bailey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the March 25, 2011, order denying the motion for postconviction relief in Duval County Circuit Court case number 16-2004-CF-016504-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

WOLF, ROWE, and SWANSON, JJ., concur.


text:
    Mia PIENKOWSKI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1910.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2012.
    Mia Pienkowski, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the March 8, 2011, judgment and sentence in Duval County Circuit Court case number 16-2009-CF-009675-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

WOLF, ROWE, and SWANSON, JJ., concur.


text:
    James Ray BROWN, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 1D12-2633.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2012.
    Thomas F. Egan, Orlando, for Appellant.
    Garnett W. Chisenhall, Department of Business and Professional Regulation, Tallahassee; Paul Waters, Chief Construction Attorney, Tallahassee (no appearance), for Appellee.
   PER CURIAM.

The notice of appeal failed to timely invoke this Court’s jurisdiction. See Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998). Accordingly, the appeal is dismissed.

WOLF, ROWE, and SWANSON, JJ., concur.


text:
    Mandy M. CARUSO, Appellant, v. Paul CARUSO, Appellee.
    No. 1D12-3004.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2012.
    William Kemper Jennings, DeFuniak Springs, for Appellant.
    Clayton J.M. Adkinson, DeFuniak Springs, for Appellee.
   PER CURIAM.

The Court has determined that the Final Judgment of Dissolution of Marriage is not a final order because it contemplates the exercise of further judicial labor on the non-collateral issue of child support. See Cassell v. Erquiaga, 28 So.3d 143 (Fla. 1st DCA 2010). Accordingly, the appeal is dismissed as premature.

WOLF, ROWE, and SWANSON, JJ., concur.


author: COHEN, J.

text:
    M.S.B., Father of T.M.B., V.B. & T.W.B., Children, Appellant, v. R.B., Mother of T.M.B., V.B., & T.W.B., Children, Appellee.
    No. 5D11-4487.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 2012.
    M.S.B., Lake City, pro se.
    No Appearance for Appellee.
   COHEN, J.

M.S.B. appeals the termination of his parental rights to his three children. The action commenced with the filing of a petition for termination of parental rights and joint petition for stepparent adoption filed by the children’s mother and her husband. The basis of the petition and resulting final judgment stemmed from M.S.B.’s incarceration on a series of sexual assault charges involving children under the age of twelve. The most serious of those charges resulted in a sentence of life imprisonment.

On appeal, M.S.B. concedes the adoption of the children to be in their best interest. However, he seeks continued contact with the children, presumably requiring the natural mother bring the children to his institution. M.S.B. misconstrúes the legal impact of the termination of his parental rights and the subsequent adoption by the stepfather.

AFFIRMED.

ORFINGER, C.J., and TORPY, J., concur.

      . Section 63.089(4)(b), Florida Statutes (2011), provides that where a parent is or will be incarcerated for a significant period of a child's minority, the child is deemed to have been abandoned.


text:
    Alione ARMOUR, Appellant, v. Kelly McMILLER, Appellee.
    No. 5D10-3088.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2012.
    Carlton Pierce of Carlton Pierce, P.A., West Palm Beach, for Appellant.
    Sharon Lee Stedman, Orlando, for Ap-pellee.
   PER CURIAM.

Alione Armour appeals from the final judgment of paternity directing him to pay child support to Kelly MeMiller. We affirm the trial court’s rulings in all regards. However, we remand with instruction to conform the child support calculations in the written judgment to the court’s oral pronouncements. See Goosby v. Lawrence, 711 So.2d 577, 578 (Fla. 3d DCA 1998).

AFFIRMED; REMANDED with instruction.

SAWAYA, COHEN and JACOBUS, JJ., concur.


text:
    Lloyd A. WRIGHT, Appellant, v. AMERICAN INTERNATIONAL INSURANCE COMPANY, Appellee.
    No. 5D10-4068.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2012.
    Lloyd A. Wright, Ormond Beach, pro se.
    Hinda Klein and Rolando A. Soler of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee.
   PER CURIAM.

Lloyd Wright appeals from a final judgment awarding attorney’s fees and costs. That judgment stemmed from litigation wherein Mr. Wright was allegedly injured as a result of an automobile accident. Mr. Wright’s case was tried by jury and resulted in a defense verdict. Although Mr. Wright characterizes the issue in terms of a manifest injustice because a “different verdict should have been rendered,” this Court, by prior order, determined that our jurisdiction was limited to the final judgment awarding attorney’s fees and costs due to an untimely notice of appeal.

The final judgment Mr. Wright appealed was entered because he rejected Appel-lee’s proposal for settlement in the amount of $45,000. See § 768.79, Fla. Stat. (2010); Fla. R. Civ. P. 1.442. Other than his assertion that the jury reached the wrong result, Mr. Wright makes no real argument demonstrating error in the award of attorney’s fees and costs, and has only succeeded in incurring additional fees for this appeal.

AFFIRMED.

PALMER, TORPY and COHEN, JJ„ concur.


text:
    Thomas Dodson LONG, III and Noreen Potts Long, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, etc., Appellee.
    No. 5D11-3435.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2012.
    Kevin K. Dixon of Kevin K. Dixon, P.A., Inverness, for Appellant.
    Dean A. Morande and Donna L. Eng of Carlton Fields, P.A., West Palm Beach, for Appellee.
   ON CONCESSION OF ERROR

PER CURIAM.

Appellee concedes that Appellants have demonstrated reversible error in relation to the trial court’s order dated September 7, 2011. Accordingly, we reverse the September 7, 2011 “Order on Plaintiffs Ex-Parte Motion to Vacate Dismissal and Reinstate Foreclosure Action” and remand for further proceedings.

REVERSED and REMANDED.

ORFINGER, C.J., LAWSON and JACOBUS, JJ., concur.


text:
    Troy L. BISHOP, Appellant, v. Debra A. BISHOP, Appellee.
    No. 5D11-3553.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2012.
    Troy L. Bishop, Tampa, pro se.
    No Appearance for Appellee.
   COHEN, J.

Troy L. Bishop appeals pro se from the final judgment dissolving his marriage to Debra A. Bishop. Our review of this case is limited because the record contains no transcript of the trial. Consequently, we can only address errors that appear on the face of the final judgment. See Engesser v. Engesser, 42 So.3d 249, 250 (Fla. 5th DCA 2010). On appeal, the trial court’s ruling is presumed correct, and when no transcript is provided, a judgment that is not fundamentally erroneous will be affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Having reviewed the final judgment entered, we find no error.

AFFIRMED.

TORPY and EVANDER, JJ„ concur.


text:
    Ronald Val HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5909.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

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


author: JOHNSON, Justice.

text:
    Gloria CLAY v. OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC.
    No. 2011-C-1797.
    Supreme Court of Louisiana.
    May 8, 2012.
    Rehearing Denied June 29, 2012.

      Leake & Andersson, LLP, Philip E. Roberts, Lafayette, LA, for Applicant.
    Michael Benny Miller, Crowley, LA, for Respondent.
   JOHNSON, Justice.

[Jn this workers’ compensation case, the workers’ compensation hearing officer terminated Ms. Clay’s benefits, finding the employer had sufficiently proved the availability of jobs such that Ms. Clay was capable of earning ninety percent of her pre-injury wages. The court of appeal reversed, finding the jobs identified by the vocational rehabilitation counselor were not available to Ms. Clay. We granted this writ application to review the correctness of the court of appeal’s decision. Finding no manifest error in the hearing officer’s decision, we reverse the decision of the court of appeal and reinstate the ruling of the hearing officer, terminating Ms. Clay’s benefits as of August 25, 2008.

FACTS AND PROCEDURAL HISTORY

Gloria Clay sustained a work-related back injury on June 28, 2005, while employed as a “SPD technician” (supply, purchasing and distribution) for Our Lady of Lourdes Regional Medical Center (“Lourdes”). Ms. Clay had worked in this position at Lourdes for twenty-two years and earned approximately $9.95/hour. Following the accident, Ms. Clay was diagnosed by Dr. Thomas Bertuccini with | asymptomatic spinal stenosis at L4-5, and underwent surgery on May 8, 2007. Dr. Bertuccini discharged Ms. Clay for light duty work on October 3, 2007. She was subsequently referred to Dr. Sanjiv Jindia for pain management.

Ms. Clay filed a Disputed Claim for Compensation on June 1, 2006. Although Lourdes disputed the claim, it voluntarily paid weekly benefits based on an average weekly wage (“AWW”) of $370.00. Lourdes also paid for medical benefits, although there was some dispute at the time of trial as to the timeliness of certain payments.

Ms. Clay’s workers’ compensation claim went to trial on June 5, 2007, December 10, 2008, and December 12, 2008. Following trial, the hearing officer found that Ms. Clay sustained a work-related accident on June 28, 2005, and ruled she was entitled to weekly compensation benefits in the amount of $252.03 based upon an AWW of $378.05 beginning December 29, 2005 through August 25, 2008, subject to a credit for all weekly compensation benefits paid by Lourdes, including a credit of $3,946.72 representing payment after August 25, 2008 to be applied only against weekly benefits. The hearing officer found the evidence proved Ms. Clay was capable of earning ninety percent or more of her AWW, and therefore ordered that Lourdes had no further obligation to pay Supplemental Earnings Benefits (“SEBs”). Benefits were terminated as of August 25, 2008. The court of appeal reversed the hearing officer’s decision, finding the jobs identified by the vocational rehabilitation counselor and approved by Dr. Jindia were outside of Ms. Clay’s experience and training. Thus, the court concluded that the positions were not suitable for Ms. Clay and were, therefore, unavailable pursuant to La. R.S. 23:1221(3). The court also |sfound the hearing officer erred in calculating Ms. Clay’s AWW by failing to include certain leave benefits.

Lourdes filed a writ application in this Court raising two issues: 1) Ms. Clay’s ability to earn ninety percent or more of her AWW; and 2) the proper calculation of AWW, specifically whether Ms. Clay’s unused and untaxed leave should be included in the AWW. This Court granted the writ application and remanded the matter to the court of appeal to reconsider its ruling with regard to the calculation of the AWW in light of this Court’s ruling in Hargrave v. State, through DOTD, 10-1044 (La.1/19/11), 54 So.3d 1102. Following remand, the court of appeal reversed its prior ruling on the issue of calculation of the AWW. Lourdes then filed the instant writ application re-raising the issue of whether Ms. Clay is able to earn 90% or more of her AWW, which we granted.

^DISCUSSION

The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Poissenot v. St. Bernard, Parish Sheriff’s Office, 09-2793 (La.1/9/11), 56 So.3d 170, 174; Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). La. R.S. 23:1221(3)(a) provides that an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Poissenot, 56 So.3d at 174; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Poissenot, 56 So.3d at 174; Banks, 696 So.2d at 551.

In this case, Ms. Clay was released by her treating physician for light duty work, and it is undisputed that Ms. Clay cannot return to her previous job at Lourdes. Both parties agree that Ms. Clay is not working, nor was she offered a job by any employer. Additionally, Lourdes does not dispute that Ms. Clay met her initial burden of proving her injury resulted in an inability to earn 90% of her prior wages. Thus, the only issue for this Court’s consideration is whether Lourdes met its burden of proving a job was “available to” to Ms. Clay in her geographic region that would enable her to earn 90% or more of her pre-injury wage.

lBIn discussing whether a job is “available,” this Court has held that actual job placement is not required. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1166 (citing Banks, 696 So.2d at 556). In Banks, we discussed in detail the meaning of “job availability,” holding that an employer may discharge its burden of proving “job availability” under La. R.S. 23:1221(3)(c)(i) by establishing, at a minimum, by competent evidence:

(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.

Banks, 696 So.2d at 557 (emphasis added).

We defined “suitable job” as “a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.” Id. Further, we explained that consideration of an employee’s “age, experience, and education” is not to ensure that an employee is “particularly suited” for a given post-injury job, but, rather, to ensure that the employee is capable of performing the job. Id. at n. 3.

The evidence presented at trial relative to Ms. Clay’s ability to work and available jobs is summarized below. At the time of trial, Ms. Clay was 56 years old. Lourdes hired Gretchen Montero, a licensed vocational rehabilitation counselor, to provide vocational rehabilitation to Ms. Clay. According to Ms. Montero’s records, Ms. Clay graduated from high school in 1971 and had no additional trade or vocational training. Ms. Clay took typing in high school and used a computer in her |fjob at Lourdes to enter information, but does not use a computer at home. Ms. Clay’s work history consists almost exclusively of her job as a SPD technician at Lourdes, where she worked from 1975 to 1986, and again from 1995 until her accident in 2005. Ms. Clay temporarily worked at a bakery making pies for two months, although no time frame was provided. Ms. Clay earned approximately $9.95/hr at Lourdes and her primary job duties included stocking shelves, pulling and delivering supplies, and entering patient charges into a computer on a pre-formatted form.

Ms. Clay’s initial vocational rehabilitation interview with Ms. Montero occurred on March 26, 2008. Ms. Montero testified she met with Ms. Clay and reviewed her work history, educational background, medical issues, work issues and vocational goals. Ms. Montero then initiated a job search (Labor Market Survey) for appropriate jobs. Further, following the Initial Evaluation on March 26, 2008, Ms. Monte-ro performed a transferable skills analysis based on' Ms. Clay’s work history, and opined Ms. Clay had developed the following skills: (1) product inspection (inspecting and evaluating the quality of products); (2) information organization (finding ways to structure or classify multiple pieces of information); (3) reading comprehension (understanding written sentences and paragraphs in work related documents); (4) active listening (listening to what other people are saying and asking questions as appropriate); (5) information gathering (knowing how to find information and identifying essential information); and (6) writing (communicating effectively with others in writing as indicated by the needs of the audience). Based on this information, Ms. Montero found that alternate job types for Ms. Clay would be general office clerk, production clerk, transportation maintenance clerk, library clerk, insurance claims clerk and medical records clerk.

On April 25, 2008, Ms. Montero sent a letter to Ms. Clay, through her attorney, _Jjlisting two available jobs at the Medical Center for Southwest Louisiana. She also recommended that Ms. Clay contact the Lafayette Parish Library because the library offers free computer classes (basic computers, internet use, power-point and spreadsheets) on a monthly basis. Ms. Montero stated this would give Ms. Clay an opportunity to learn new computer skills which would enhance her employability. On that same date, Ms. Montero also sent Ms. Clay the Career Occupational Preference System Interest Inventory (“COPS Inventory”) for her to complete. Ms. Montero testified the purpose was to determine Ms. Clay’s interests in order to develop some type of appropriate vocational goal.

Ms. Clay did not complete the COPS Interest Inventory until June 20, 2008, and returned it to Ms. Montero on June 26, 2008. The inventory lists 126 activities and asks applicants to rate their interests as “like very much,” “like moderately,” “dislike moderately,” or “dislike very much.” Out of the 126 activities, Ms. Clay did not rate any as “like very much.” She rated six activities as “like moderately,” and the remaining 120 were rated as “dislike moderately” or “dislike very much.” Ms. Clay responded “liked moderately” to the following activities: (1) start up and operate own business; (2) arrange flower displays; (3) use a computer in an office to report information on airplane arrivals; (4) keep records of materials on hand and supplies received; (5) talk with students or patients to put them at ease; and (6) select and organize books, newspaper clippings and reports. Ms. Montero testified Ms. Clay’s interests fell high on the clerical interest category.

Ms. Montero had a follow-üp meeting with Ms. Clay in July of 2008 to discuss the job search and to help her work on a resume. Ms. Montero testified she reviewed potential jobs with Ms. Clay at that time and subsequently prepared a resume for Ms. Clay, which she sent to Ms. Clay’s attorney on July 18, 2008.

IsDuring the time she worked on Ms. Clay’s case, Ms. Montero identified numerous jobs available for Ms. Clay and timely notified Ms. Clay of the same. However, there were only three specific jobs identified and approved by her treating physician which were still available at the time of approval. Dr. Jindia approved four jobs on June 17, 2008, but only three were still available as of that date. Thus, Ms. Montero testified that she found three jobs within the restrictions that Dr. Jindia approved and were open at the time of approval. All of the jobs paid in the $9.00-$12.00/hr range and were full-time. Ms. Montero testified that she obtained as much detail about the potential jobs as the employers would provide. She provided Ms. Clay with all of the information she received.

Specifically, on May 29, 2008, Ms. Montero sent information on four available jobs to Dr. Jindia for approval. Dr. Jindia submitted approval for the four jobs on June 17, 2008, at which time only two of the jobs were still open. The two open jobs were both with the Medical Center of Southwest Louisiana, and the following job descriptions were provided:

Administrative Assistant-Human Resources Department at the Medical Center of Southwest Louisiana: Duties in-eluded assisting the department with credentialing, filing, projects, and greeting applicants to the department; physical demands were light, with only occasional standing and walking; pay $12.00/ hour; full time.
Service Coordinator with the Medical Center of Southwest Louisiana: Duties included providing clerical support for engineering programs, answering the phone, taking messages, and maintaining files; physical demands were light with occasional standing and walking; pay$9.00/hr; fulltime.

The other two jobs approved by Dr. Jindia were:

Front desk receptionist for Dr. Norman Dykes: $8.00/hr, full time; job duties included maintaining the appointment book; answering the | sphone; preparing bills, insurance.

Ms. Clay applied for this job but received a rejection letter stating “we have chosen to pursue other candidates whose skills, background and education more closely match our needs.”

Telephone consultant with Stutter Settings: duties involved receiving telephone calls from customers and process/assist them with placing jewelry merchandise orders, and entering customer information using simple pre-for-matted program; five-week paid on the job training provided; $10.00/hour; full time.

While the job with Stuller Settings was no longer available at the time of Dr. Jindia’s initial approval, a position later opened again on August 25, 2008. Ms. Clay applied and interviewed for the position, but was rejected by letter dated November 4, 2008, stating “we have identified a candidate who more closely matches our requirements.”

Regarding the three available jobs (two at Medical Center of Southwest Louisiana; one at Stuller Settings), Ms. Montero testified they were chosen based on whether Ms. Clay could do the job from an educational and experience standpoint. She explained the administrative assistant position was a basic entry-level employment position and did not require any special skills. According to Ms. Montero, although these office jobs were different than Ms. Clay’s job at Lourdes, they were not necessai'ily more difficult. Ms. Monte-ro testified that some office work is more complicated than others. Some office work requires simply answering the phone, filing and taking messages. Ms. Montero stated she was focused on finding basic clerical/receptionist type work for Ms. Clay, and while Ms. Clay has never had an office job where she was required to sit at a desk and do office work all day, she had to utilize some clerical skills in her job at Lourdes. Ms. Montero further stated that the work Ms. Clay performed at Lourdes required accuracy, orderliness and speed in order to pull the proper medical supplies and deliver them to the correct I ipplace.

Ms. Montero testified that her job was to help Ms. Clay, return to gainful employment. In locating jobs, she kept in mind Ms. Clay’s medical restrictions as well as educational limitations. Ms. Montero’s expert opinion was that work within Ms. Clay’s capabilities was reasonably available.

Ms. Clay testified she applied for all of the jobs identified by Ms. Montero, not only the ones formally approved by Dr. Jindia. She had one job interview at Stul-ler, but received no job offers.

The hearing officer found the evidence presented at trial proved Ms. Clay was capable of earning 90% or more of her pre-injury wage and therefore ordered that Lourdes had no further obligation to pay disability benefits in the form of SEBs to Ms. Clay. The hearing officer found the vocational rehabilitation provided was appropriate under Banks, noting that job placement is not required. The hearing officer took into consideration the fact that Ms. Clay applied for the jobs, but essentially reasoned that this could not be the deciding factor for courts because courts cannot monitor claimants who may apply but sabotage efforts to actually obtain the jobs. The hearing officer specifically found that Ms. Montero attempted to find jobs that were suitable and within the interests of Ms. Clay. He further stated:

I’ve heard Ms. Clay testify. She is an articulate genuine person. She appears to have been a dependable and valuable employee. She was there for many, many years, and she appears to have been a very conscientious employee. I think it doesn’t give her much credit by saying that she could not have done these jobs that were identified. I think she well could have done the jobs, and I think Ms. Montero evidenced an attempt to look at the medical field because that’s where the majority or almost all of Ms. Clay’s prior work history was focused.

The court of appeal reversed, finding that the jobs identified by Ms. Montero |nand approved by Dr. Jindia, were outside of Ms. Clay’s experience and training. The court noted Ms. Clay applied for, but was unable to obtain two of the positions. The court noted “suitability is a function of availability.” The court stated Ms. Clay’s experience was essentially as a physical laborer stocking and distributing supplies and equipment, with no office experience and almost non-existent computer skills. Thus, the court concluded that the positions submitted to and applied for by Ms. Clay were not suitable for her and were, therefore, unavailable under La. R.S. 23:1221 and under Banks.

The analysis we must undertake “is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage.” Poissenot, 56 So.3d at 174. We are also mindful that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of review. Id.; Banks, 696 So.2d at 556; Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Poissenot, 56 So.3d at 174; Banks, 696 So.2d at 556; Stobart v. State, 617 So.2d 880, 882 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [factfin-der’s] findings 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 sitting as the trier of fact, it would have weighed the evidence differently.” Banks, 696 So.2d at 556 (citing Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106,1112 (La.1990)).

Lourdes argues the court of appeal’s ruling renders Banks meaningless because li2it requires the employer to show that a job was actually offered to the claimant in order for the employer to meet its burden of proof in establishing the earning capacity of the claimant. By contrast, Ms. Clay contends that when there is evidence the jobs are not attainable by the employee, the employer has not proven the jobs were available to the employee. Ms. Clay points out she applied for each and every job but was never offered employment by any of the employers. Thus, none of the jobs were “proven available” to her.

After reviewing the record in its entirety and applying the Banks standard to the facts of this case, we conclude the hearing officer was not manifestly erroneous or clearly wrong in finding that Lourdes presented sufficient competent evidence to carry its burden.

At trial, Lourdes presented evidence that these jobs were light duty and essentially entry level positions. The evidence reflects the jobs were physically within Ms. Clay’s abilities and were basic clerical or office positions. Nothing presented reflects that these jobs required any special computer skills, or other job skills that Ms. Clay did not possess. We also note that one of the jobs (Stuller Settings) offered a paid job training program. The record demonstrates Ms. Montero did an evaluation of Ms. Clay’s transferable skills, education and experience. She matched these abilities with the physical limitations established by Dr. Jin-dia. She further attempted to identify jobs indicated by the COPS interest inventory results, although Ms. Clay disliked practically all of the listed activities. These abilities, limitations and interests were then attached to the particular jobs identified to ensure that Ms. Clay had the physical and mental skills and abilities to perform the job. Ms. Montero identified clearly that each job was within the physical limitations set forth by Dr. Jindia. Further, Ms. Montero provided a specific wage that was expected for each identified | iajob, and she immediately notified Ms. Clay of the available jobs. Ms. Clay did not produce evidence to effectively dispute Ms. Montero’s opinion. Based on the evidence presented at trial, the hearing officer found the three jobs were suitable for Ms. Clay, stating that Ms. Clay appeared intelligent and that she was capable of doing these jobs from an intellectual standpoint.

After a full review of the record, we find it contains more than sufficient evidence to support the hearing officer’s findings, and thus we cannot say he was manifestly erroneous or clearly wrong in finding that Ms. Clay was able to earn 90% or more of her pre-injury wage and that such employment was reasonably available in Ms. Clay’s geographical area.

Moreover, in reviewing the hearing officer’s ruling, the court of appeal improperly applied the provisions of La. R.S. 23:1221(3) and the standards we previously set forth in Banks. La. R.S. 23:1221(3) provides that jobs identified by the employer must be proved to be either (1) offered by an employer, or (2) available to the employee in his geographic region. The court of appeal’s decision essentially requires employers to prove a job was offered to an employee in order to prove that a job is “proven available.” Such an interpretation effectively renders the second part of the statute meaningless.

CONCLUSION

For the above reasons, we find the court of appeal erred in reversing the decision of the workers’' compensation hearing officer on the issue of whether Ms. Clay was capable of earning 90% of her pre-injury wages. The record clearly provides sufficient support for the hearing officer’s findings. Thus, because factual findings in workers’ compensation cases are reviewed under a manifest error standard of review, we reverse the ruling of the court of appeal and reinstate the decision of the | shearing officer terminating benefits as of August 25, 2008.

DECREE

REVERSED. RULING OF THE WORKERS’ COMPENSATION HEARING OFFICER TERMINATING BENEFITS AS OF AUGUST 25, 2008, IS REINSTATED.

      . Clay v. Our Lady of Lourdes Regional Medical Center, 09-1219 (La.App. 3 Cir. 6/2/10), 38 So.3d 1196.

      . La. R.S. 23:1221(3) provides, in pertinent part:
      (a) For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his "wages” by fifty-two and then dividing the quotient by twelve.

      (c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee’s or employer's community or reasonable geographic region.

      . Clay v. Our Lady of Lourdes Regional Medical Center, 10-1579 (La.4/8/11), 62 So.3d 749.

      . Clay v. Our Lady of Lourdes Regional Medical Center, 09-1219 (La.App. 3 Cir. 7/13/11), 71 So.3d 539.

      . Clay v. Our Lady of Lourdes Regional Medical Center, 11-1797 (La.12/16/11), 76 So.3d 1188. Because our prior remand order did not address this issue, nor did it implicitly signal agreement with the court of appeal’s ruling on this issue, Lourdes' current writ application, re-raising the issue of Ms. Clay’s entitlement to SEBs, is properly before the Court.

      . Ms. Montero testified regarding ten jobs she identified for Ms. Clay. However, while these jobs were identified and sent to Dr. Jindia for approval, he had not yet responded to most of the approval requests at the time of trial.

      . The hearing officer ordered benefits terminated as of August 25, 2008, the date the Stuller Settings job became available again (the latest date of the three available jobs).


author: GUIDRY, J. WEIMER, J.,

text:
    Rose Manale McCANN v. Walter Lester McCANN.
    No. 2011-CC-2434.
    Supreme Court of Louisiana.
    May 8, 2012.
    Rehearing Denied June 29, 2012.

      Guglielmo, Marks, Schutte, Terhoeve & Love, Charles A. Schutte, Jr., Baton Rouge, LA, for Applicant.
    Amy E. Counce, Attorney at Law, Amy Elizabeth Counce, Baton Rouge, LA, for Respondent.
   GUIDRY, J.

| (We granted this writ application to determine whether the Family Court for the Parish of East Baton Rouge Parish retains subject matter jurisdiction over a proceeding for partition of community property, where one of the former spouses died after the partition proceeding was instituted in the Family Court. For the reasons expressed herein, we hold the Family Court no longer had exclusive subject matter jurisdiction over the partition of community property when one of the former spouses died. Thus, the Family Court erred in overruling the defendant executrix’s exception of lack of subject matter jurisdiction.

FACTS AND PROCEDURAL HISTORY

On May 29, 2009, Rose Manale McCann (hereinafter “plaintiff’ or “Ms. McCann”) filed a petition for divorce against Walter Lester McCann (hereinafter “defendant” or “Mr. McCann”) in the Family Court for the Parish of East Baton Rouge. Pursuant to a joint motion for judgment of separation of property, the Family Court on August 31, 2009, citing La. Civ.Code art. 2374(C), terminated the community of ac-quets and gains retroactively as of May 29, 2009. A judgment 12granting the divorce was later signed on January 13, 2010, leaving the identification, valuation, management, and partition of the community property as the remaining issues in the case.

Consistent therewith, on August 17, 2009, Ms. McCánn filed in the Family Court a petition for partition of community property pursuant to La.Rev.Stat. 9:2801. In her petition, Ms. McCann also moved the Family Court to appoint various experts to assist in the partition. By judgment dated January 19, 2010, the Family Court appointed a real estate expert to inventory and value the real estate held by the community. On February 8, 2010, the court appointed a financial expert to value the remainder of the property, trace the income stream, oversee the real estate expert and the valuation of the real estate, identify any assets, and evaluate and assess the pending motions of the parties.

On June 16, 2010, Ms. McCann filed a “Motion to Appoint Independent Third Party Professional to Manage the Community Owned Business and Investment Assets, for Injunctive Relief, and for Division of Monies in Community Account,” alleging that Mr. McCann had been hospitalized and was no longer capable of managing the community businesses and assets. A short time later, on June 27, 2010, Mr. McCann died.

Thereafter, on June 30, 2010, a “Notice of Filing of Succession” was filed in the Family Court suit, stating that Mr. McCann’s succession had been opened in the 19th Judicial District Court under Probate Number 91,681. On July 8, 2010, Ms. McCann filed a motion to substitute the succession executrix, Peggy |sBlackwell, the decedent’s daughter, as the party defendant in the partition proceeding. In the motion, Ms. McCann asked the Family Court to establish a case management schedule and to include the fixing of deadlines for the filing of detailed descriptive lists and other matters. On July 16, 2010, a consent judgment was signed by counsel for the parties agreeing, among other things, that the remainder of the funds would be administered by the financial expert previously appointed by the court, that the real estate expert previously appointed by the court would “run the real estate business” of the parties, with the assistance of “Karen Harvey,” meet with and regularly report to Peggy Blackwell and Rocky McCann, and that the financial expert would recommend a “financial ad-visor expert ... to advise the parties regarding community investment decisions, if necessary.”

On July 23, 2010, the succession executrix filed a “Declinatory Exception of Lack of Subject Matter Jurisdiction and Motion to Transfer,” seeking to have the partition action transferred to the 19th Judicial District Court. The Family Court overruled the exception, denied the motion to transfer, and signed a judgment on September 14, 2010, substituting Ms. Blackwell, in her capacity as executrix for the succession, into the partition action as the defendant, in place of the deceased Mr. McCann.

Ms. Blackwell then sought writs in the court of appeal, which denied the application. McCann v. Blackwell, 10-1896 (La.App. 1 Cir. 1/7/11) (unpublished). However, this court granted the defendant executrix’s writ application and remanded the matter to the appellate court for briefing, argument and full opinion. 11-0244 (La.4/1/11), 60 So.3d 1240. On remand, the appellate court by a majority decision again denied Ms. Blackwell’s writ application. McCann v. McCann, 10-1896 (La.App. 1 Cir. 10/5/11), 77 So.3d 997. This court granted the writ application to consider the correctness of the lower courts’ rulings. McCann v. McCann, 11-2434 (La.1/20/12), 78 So.3d 130.

ULAW AND DISCUSSION

Ms. Blackwell asserts the Family Court of East Baton Rouge Parish erred in denying her exception of lack of subject matter jurisdiction and motion to transfer the case to the 19th J.D.C., in substituting her as the defendant in the partition proceeding, and in determining that La.Rev. Stat. 9:2801 is applicable in the partition action. There is no dispute that the Family Court had jurisdiction over the partition proceeding when it was originally instigated by Ms. McCann while Mr. McCann was still alive. Thus, the issue before us is whether the Family Court retained exclusive subject matter jurisdiction over the partition proceeding when Mr. McCann died. To answer this question, we must review the constitutional and legislative provisions governing the subject matter jurisdiction of the Family Court for the Parish of East Baton Rouge, a court of limited jurisdiction.

Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. La.Code Civ. Proc. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La.Code Civ. Proc. art. 2. Stated another way, a court has jurisdiction over the subject matter only when the particular action falls within the class of proceedings that the court has been given the authority to hear and decide. Frank L. Maraist, 1 La. Civil Law Treatise, “Civil Procedure,” § 2:2, p. 6. That authority may come only from the law, because “[t]he jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties.” La.Code Civ. Proc. art. 3. Accordingly, a judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void. Id.

IsCourts are classified as courts of general jurisdiction or limited jurisdiction. Maraist, § 2:2, p. 7. Courts of general jurisdiction have the authority generally to adjudicate most kinds of actions, while courts of limited jurisdiction are established to provide expertise and expeditious handling of special types of cases. Id.

With regard to the original jurisdiction of the district courts, La. Const. art. V, § 16(A) provides as follows:

(A) 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. (Emphasis added.)

Thus, the district courts will not have general original jurisdiction over cases relating to the partition of community property where the legislature has acted to vest such jurisdiction in the family courts.

With regard to the jurisdiction of the family courts, La. Const. art. V, § 18 provides as follows: “Notwithstanding any contrary provision of Section 16 of this Article, juvenile and family courts shall have jurisdiction as provided by law.” (Emphasis added). In Welborn v. 19th Judicial District Court, this court explained that the Louisiana Constitution allows the legislature to divest the district court of jurisdiction in certain types of matters. 07-1087 (La.1/16/08), 974 So.2d 1. By giving effect to the “notwithstanding” clause of Section 18 and its specific reference to Section 16, the legislature is empowered to divest the district court of | ficertain jurisdiction and vest that jurisdiction exclusively in a specialized family or juvenile court. See Welborn, 07-1087, pp. 12-13, 974 So.2d at 9.

Thus, in accordance with the constitutional provisions, the legislature has specified the jurisdiction of the Family Court for the Parish of East Baton Rouge in La.Rev.Stat. § 13:1401, which provides as follows:

A. There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings:
(1) All actions for divorce, annulment of marriages, claims for contributions made by one spouse to the education or training of the other spouse, establishment or disavowal of the paternity of children, spousal and child support, and custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees in judgments of divorce, the cumulation of and rendering executory of spousal and child support, the issuance of writs of fieri facias and garnishment under judgments of the court for spousal and child support and attorney fees, jurisdiction of which was vested in the Nineteenth Judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge.
(2)(a) All actions between spouses or former spouses for partition of community property and property acquired pursuant to a matrimonial regime.
(b) All actions for the termination or modification of a matrimonial regime.
(c) All actions for the settlement and enforcement of claims arising from matrimonial regimes or the establishment thereof.
(d) All actions between former spouses seeking the enforcement of a judicial or contractual settlement of claims provided in this Subsection.
(3) All proceedings for writs of habeas corpus for the determination and enforcement of rights to the custody of minors or for the release of any person in actual custody in any case of which the family court has original jurisdiction.
B. The family court for the parish of East Baton Rouge has all such additional jurisdiction, power, and authority now or hereafter provided by law. (Emphasis added).

| ./Therefore, under the Louisiana Constitution and the legislative pronouncements, the Family Court in this case has been granted the exclusive jurisdiction over “[a]ll actions between spouses and former spouses for partition of community property and property acquired pursuant to a matrimonial regime.” Thus, as noted previously, Ms. McCann’s petition for partition of the community property was properly filed in and entertained by the Family Court when it was originally filéd. The question before us is whether the Family Court was divested of subject matter jurisdiction when one of the former spouses died, because at that point the partition of community property and property acquired pursuant to a matrimonial regime was no longer “between spouses and former spouses” but between Ms. McCann and the succession legatees.

The lower courts resolved the question in favor of the Family Court retaining subject matter jurisdiction over the partition of community property even after Mr. McCann died. The appellate court reasoned that the partition action was properly filed in the Family Court before Mr. McCann died and that the action to partition the community property did not abate upon Mr. McCann’s death, as it was a heritable obligation rather than a strictly personal obligation. Op., pp. 547-48 (citing La.Code Civ. Proc. arts. 428, 734, 801 et seq., and Larocca v. Larocca, 597 So.2d 1000 (La.1992)). Thus, the majority continued, the Family Court retained jurisdiction over the partition action and the succession representative was the proper party to be substituted into the partition proceeding for the deceased Mr. McCann. Id., pp. 547-48. The majority rejected the contention that the Family Court has jurisdiction only over spouses, citing Spi-nosa v. Spinosa, 05-1935 (La.7/6/06), 934 So.2d 35, wherein this court held that, under the authority of La.Rev.Stat. 13:1401(A)(2)(c), the Family Court had jurisdiction over a trust, into which it was asserted that the former husband had fraudulently diverted community funds without his former wife’s permission, in order to resolve conflicts over the ^classification of assets held by the trust. Id., pp. 548-49. Finally, the majority below pointed out that, in domestic proceedings, there is an established doctrine of continuing jurisdiction, i.e., once a trial court obtains jurisdiction in a divorce or separation proceeding, it retains jurisdiction over any incidental matters connected with the original proceedings. Id. (citing Golden v. Waterhouse, 41,889, p. 2 (La.App. 2 Cir. 2/28/07), 953 So.2d 927, 928 (citing Gowins v. Gowins, 466 So.2d 32, 35 (La.1985))).

We disagree with the reasoning of the majority below. The dissenting judge in our view properly focused on the limiting language in the enabling statute, La,.Rev.Stat. 13:1401. It is well established that “[t]he starting point for the interpretation of any statute is the language of the statute itself.” Foti v. Holliday, 09-0093 (La.10/30/09), 27 So.3d 813, 817 (quoting Dejoie v. Medley, 08-2223 (La.5/5/09), 9 So.3d 826, 829). Legislation, which is defined as the solemn expression of legislative will, La. Civ.Code art. 2, is to be interpreted according to the rules set forth in the Civil Code. Glasgow v. PAR Minerals Corp., 10-2011 (La.5/10/11), 70 So.3d 765, 768. The basic rule governing statutory interpretation is set forth in La. Civ.Code art. 9: “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.” See also La. Rev. Stats. 1:3 and 1:4.

|aThe Constitution allows for the granting of limited jurisdiction to the family courts, and the legislature has specified the parameters of that jurisdiction for the Family Court for the Parish of East Baton Rouge in La.Rev.Stat. 13:1401. In La. Rev.Stat. 13:1401(A)(2)(a), the legislature vested the Family Court with “exclusive jurisdiction” over “[a]ll actions between spouses and former spouses for partition of community property and property acquired pursuant to a matrimonial regime.” After the death of Mr. McCann, Ms. McCann’s partition action was no longer an action to partition community property or property acquired pursuant to a matrimonial regime between former spouses; instead, it became an action to partition such movable and immovable property between Ms. McCann and the succession legatees. To give effect to the statutory and constitutional language, and not render any part of that statute meaningless, we must conclude the Family Court was divested of exclusive but limited subject matter jurisdiction when one of the former spouses died. To do otherwise would be to enlarge the limited jurisdiction of the Family Court beyond that contemplated by the legislature.

We see no contradiction between our applications of La.Rev.Stat. 13:1401 today and in our recent decision in Spinosa v. Spinosa. In Spinosa, the partition action was clearly between “spouses or former spouses,” because the proceeding was between the former wife and the former husband. We held that the Family Court nevertheless had subject matter jurisdiction over the former wife’s efforts to determine whether property deposited into a trust settled by the former spouses was community property, and, if that property was found to be community, the Family Court would have jurisdiction over any proceedings regarding the former wife’s claim against the trust seeking partition. In Spinosa, we recognized the specific language of La.Rev.Stat. 13:1401(A)(2)(c), which grants the Family Court exclusive jurisdiction over “all actions for the settlement and enforcement of claims arising from matrimonial regimes or the establishment thereof.” We |inreasoned that, “unlike subsections 2(a) and 2(d) of La.Rev. Stat. 13:1401 [ (A) ], the jurisdiction established by subsection 2(c) over actions for the settlement and enforcement of claims is not limited to actions ‘between spouses or former spouses.’ ” Spinosa, 05-1935, 934 So.2d at 47. Implicit in that reasoning, however, is the recognition that Subsection 2(a) of La.Rev.Stat. 13:1401(A) does explicitly limit the Family Court’s exclusive jurisdiction to “[a]ll actions between spouses and former spouses for partition of community property and property acquired pursuant to a matrimonial regime.” Indeed, that was precisely the primary action in the Spinosa case when the former wife sought to partition the community property. In the present case, although the Family Court initially had subject matter jurisdiction over Ms. McCann’s partition action, once Mr. McCann died, the partition proceeding was no longer an action to partition community property between “spouses or former spouses.... ” Accordingly, the Family Court lacked subject matter jurisdiction to entertain the partition proceeding.

CONCLUSION

For the reasons stated, we find the Family Court for the Parish of East Baton Rouge did not retain exclusive subject matter jurisdiction over the partition of community property when one of the former spouses died. See La.Rev.Stat. 13:1401(A)(2)(a). Thus, the Family Court erred in overruling the defendant executrix’s exception of lack of subject matter jurisdiction. We therefore reverse that ruling.

REVERSED.

WEIMER, Justice, dissents and assigns reasons.

WEIMER, J.,

dissents.

|TI respectfully dissent. I believe the family court retains jurisdiction over a pending community property partition suit arising from a matrimonial regime despite the death of one spouse.

The jurisdiction of the family court, the majority correctly notes, is provided by statute, La. R.S. 13:1401. As the majority also correctly notes, the family court had jurisdiction at the time that Ms. McCann filed her petition for partition of community property. However, the majority overlooks that La. R.S. 13:1401(A)(2)(c) confers jurisdiction over “[a]ll actions for the settlement and enforcement of claims arising from matrimonial regimes.” (Emphasis added.) Furthermore, as this court has already held, “the jurisdiction established by subsection 2(c) over actions for the settlement and enforcement of claims is not limited to actions ‘between spouses or former spouses.’ ” Spinosa v. Spinosa, 2005-1935, p. 17 (La.7/6/06), 934 So.2d 35, 47. Thus, the majority now errs when ruling that jurisdiction over a matter “arising from [a] matrimonial [regime]” under La. R.S. 13:1401(A)(2)(c) was lost when one of the former spouses died because this court has ^previously rejected the premise that the family court’s jurisdiction is limited to actions between spouses or former spouses.

Additionally, the majority’s ruling is contrary to the longstanding rule that “the personal jurisdiction of a court over a party is determined as of the time of the filing of the suit.” de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 114 (La.1991). Although de Reyes involved in personam jurisdiction, and this matter involves subject matter jurisdiction, the principle is the same. Jurisdiction should be determined at the filing of the action. Indeed, the majority’s ruling turns this timing rule on its head by effectively transferring the partition action to a district court that was powerless to hear the action when it was filed. See Welborn v. 19th Judicial Dist. Court, 2007-1087 (La.1/16/08), 974 So.2d 1, 9 (“[Wjhen the legislature enacted La.Rev.Stat. § 13:1401(A), vesting the Family Court with exclusive jurisdiction to hear cases involving divorce, paternity, child support, spousal support, partition of community property, etc., it simultaneously divested the 19th JDC of jurisdiction over these matters.”).

As indicated, jurisdiction remains in the family court once established, even following the death of a spouse, based on this matter “arising from matrimonial regimes.” La. R.S. 13:1401(A)(2)(c).

Because jurisdiction was unquestionably proper in the family court at the outset, the Code of Civil Procedure provides a framework for substituting parties when vacancies are caused by the death of a party, such as happened here with Mr. McCann’s passing. See La. C.C.P. art. 801, et seq. The majority’s present holding gives an incomplete and erroneous effect to the Code of Civil Procedure’s substitution articles, which should be applied to substitute the succession representative and place the succession representative into Mr. McCann’s stead in the action already pending [3in the family court. See La. C.C.P. art. 801 (describing voluntary substitution of a legal successor in place of a deceased litigant); see also La. C.C.P. art. 802 (describing compulsory substitution of a legal successor in place of a deceased litigant).

Moreover, La. C.C.P. art. 428 provides:

An action does not abate on the death of a party. The only exception to this rule is an action to enforce a right or obligation which is strictly personal.

As the court of appeal explained in the instant matter, while an action for divorce may be strictly personal, the resolution of property interests is not strictly personal. See Larocca v. Larocca, 597 So.2d 1000, 1004-05 (La.1992) (holding that the death of a party’s spouse did not result in the abatement of a divorce action in which an unresolved ancillary claim involving a property interest had been appended). Furthermore, in domestic proceedings, this court established the doctrine of continuing jurisdiction, ie., once a trial court obtains jurisdiction in a divorce or separation proceeding, it retains jurisdiction over any incidental matters connected with the original proceedings. See Gowins v. Gowins, 466 So.2d 32, 35 (La.1985). Thus, the majority’s present ruling runs contrary not only to the substitution articles in the Code of Civil Procedure, but also to the previously-recognized doctrine of continuing jurisdiction.

The majority’s present ruling also invites judicial inefficiency. At the time of Mr. McCann’s passing, the partition action was pending for approximately one year. The parties had staked out their positions and already actively litigated their dispute. In response, the family court judge had appointed a real estate expert to inventory and evaluate immovable property held by the community. The family court judge also had appointed a financial- expert to value the remainder of the property at issue in the |4McCanns’ divorce. Had the matter proceeded to the completion of a trial after which Mr. McCann died before a judgment was signed, it is unclear whether the majority’s ruling would divest the family court of the power to sign the judgment.

The majority’s ruling makes no provisions for this and similar situations that could easily be envisioned regarding the finality of the work already undertaken by the family court when a party dies during litigation. What is certain, however, is that the substitution articles in the Code of Civil Procedure, and the longstanding rule that jurisdiction is evaluated at the time of filing, would provide for continuity of the work already undertaken by the family court. What is equally certain is that transferring this action to the district court now, as the majority of this court effectively does, is a step backwards from the prior progress made by the family court to actually resolve this community property dispute.

      . Prior to its amendment by 2010 La. Acts, No. 603, § i, effective June 25, 2010, La.Civ.Code art. 2374(C) stated: ''When a petition for divorce has been filed, either spouse may obtain a judgment decreeing separation of property by a rule to show cause and upon proof that the spouses have lived separate and apart without reconciliation for at least thirty days from the date of, or prior to, the filing of the petition for divorce and have not reconciled."

      . La.Rev.Stat. 9:2801(A), the basis for the instant suit filed by Ms. McCann, states in pertinent part:
      When die spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding ... [to] partition the community....

      . All references herein to La.Rev.Stat. 13:1401 are to the statute as it was prior to its amendment by 2010 La. Acts, No. 754, § 2, which added "and nonsupport," following "spousal and child support,” in Section (A)(1). Pursuant to Section 5 of Act 754, the provisions of the Act became effective January 1, 2011.

      . La.Rev.Stat. 1:3, entitled "Words and phrases; how construed,” provides:
      Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
      The word "shall” is mandatory and the word "may” is permissive.
      La.Rev.Stat. 1:4, entitled "Unambiguous wording not to be disregarded,” provides:
      When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.

      . We need not address the defendant executrix’s lengthy arguments regarding whether the Family Court erred in ruling that La.Rev. Stat. 9:2801 is applicable to the partition proceeding as it now stands, as opposed to the codal articles governing the judicial partition of movables and immovables owned in indivi-sión. Because the partition proceeding will be transferred to the 19th Judicial District Court, the Family Court's ruling as to the applicable law is moot.