text:
    Ronald CHACHA, Appellant, v. TRANSPORT USA, INC. and Juan Carlos Guzman, Appellees.
    No. 4D09-3740.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.

      Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and J. Freddy Rhoads of Schuler, Halvorson & Weisser, P.A., West Palm Beach, for appellant.
    David B. Pakula of David B. Pakula, P.A., Southwest Ranches, for appellees.
   PER CURIAM.

Ronald Chacha appeals the final order granting the defendants’ motion to dismiss for fraud on the court and dismissing his complaint with prejudice. Because the trial court made no express written findings of the essential facts which supported the imposition of the most severe sanction, we reverse and remand for further proceedings.

Chacha sued the defendants for personal injuries allegedly arising out of a January 2004 automobile accident. Chacha alleged that as a result of the accident, he sustained permanent injuries, including the “aggravation of a previously existing condition.”

In November 2007, Chacha was deposed. During this deposition, Chacha acknowledged that in 1999 he was injured in an accident at work when two glass plates fell on him and landed on his face. He testified that he suffered head, neck, shoulder, arm, and hand injuries from that prior accident. He further testified that he did not injure his back in the 1999 accident, that he never had back pain as a result of the 1999 accident, and that, prior to the 2004 car accident, he had never complained of back pain to any physician who treated him for the earlier accident.

In January 2008, Chacha served answers to interrogatories stating that as a result of the 2004 ear accident, he had sustained lower back, neck, head, and right knee injuries. In response to the question of whether he had previously suffered any injury to those parts of the body for which he was claiming damages, Chacha listed only the injuries to his neck and head that he suffered in the 1999 work-related accident. In response to the question of what previous conditions Chacha was claiming were aggravated as a result of the January 2004 car accident, Chacha again listed only head and neck injuries.

Throughout discovery, Chacha continually reported to the defendants that Dr. David B. Ross had treated him for both the 1999 work-related accident and the January 2004 car accident. Chacha also identified Dr. Ross as a treating physician who would testify at trial. In March 2009, defense counsel subpoenaed all of Dr. Ross’s medical records relating to Chacha. In May 2009, both parties received those records.

Dr. Ross’s records revealed that Chacha may have complained to Dr. Ross about back pain prior to the 2004 car accident. The records included notes from seven pre-2004 visits where Dr. Ross noted that Chacha’s “lumbosacral spine shows decreased range of motion.” After a January 17, 2001 visit, the doctor wrote, “Clinically the patient remains symptomatically the same with headaches, neck pain, low back, and left arm complaints.” After a February 18, 2003 visit, Dr. Ross noted, “He still complains of multiple symptoms including headaches, neck pain and low back pain.” For the other five pre-2004 visits, however, Dr. Ross made no references to any back pain. In addition, the records included a “Final Report” dated September 18, 2001 in which Dr. Ross never mentioned Chacha having complained of back pain.

On June 23, 2009, two weeks before the scheduled trial date, Dr. Steven Gelbard, Chacha’s neurosurgeon, was deposed. Dr. Gelbard testified that he first treated Cha-cha in October 2004. Dr. Gelbard further testified that he performed surgery on Chacha for what Dr. Gelbard determined to be a bulging disc. Dr. Gelbard also stated that based on the medical history provided to him by Chacha, it was his professional opinion that Chacha sustained a permanent injury caused by the car accident. This medical history included the fact that Chacha had a work-related accident in 1999 from which he was still suffering residual neck and shoulder pain at the time of the January 2004 car accident. Chacha had never informed Dr. Gelbard, however, of any back injury prior to the January 2004 car accident.

On cross, Dr. Gelbard testified that just prior to the deposition he had been advised by one of Chacha’s attorneys that based on medical records obtained from Dr. Ross, Chacha may have complained of back pain prior to the 2004 accident. Subsequently, the defendants’ attorney presented Dr. Ross’s medical records to Dr. Gelbard and had Dr. Gelbard read from sections where Dr. Ross had reported that Chacha was complaining of lower back pain. Dr. Gel-bard acknowledged that the information from Dr. Ross’s records was something that he was learning for the first time during the deposition. When asked if the records changed his opinion that Chacha’s complaints of back pain were caused by or related to the 2004 car accident, Dr. Gel-bard replied that he would have to get more information to determine whether the back injury was a pre-existing condition.

On redirect, Dr. Gelbard noted that the reported back complaints prior to 2004 were different from those reported by Chacha after the 2004 accident. Based on this change in lower back complaints, Dr. Gelbard reaffirmed all of the opinions he expressed during direct examination.

On June 30, 2009, seven days before trial, the defendants filed a motion to dismiss for fraud. The defendants contended that Chacha engaged in a scheme of fraud and misrepresentation by denying that he had prior back pain and prior back injuries. The defendants also contended that Chacha sought to manipulate medical testimony bearing on his injuries by concealing his past medical history from his treating physicians.

On July 7, 2009, the morning that the trial was scheduled to begin, the trial court heard arguments on the defendants’ motion to dismiss. No witnesses testified and no evidence was introduced at this hearing. After hearing arguments from the attorneys, the trial judge simply stated that the motion to dismiss was “granted.”

On July 10, 2009, the trial court entered a written order granting the defendants’ motion to dismiss for fraud. This order stated that the defendants’ motion was granted with prejudice

based upon the clear and convincing evidence set forth in the record that the Plaintiff, Ronald Chacha, committed fraud regarding his medical history and such deception was intended to interfere with the judicial system’s ability to impartially adjudicate the case by improperly influencing the trier of fact and unfairly hampered the Defendants’ ability to defend the case by intentionally thwarting the discovery process.

Chacha filed a motion for a rehearing, which the trial court denied by written order. This appeal follows.

A trial court has the inherent authority to dismiss a plaintiffs entire case when there is clear and convincing evidence that the plaintiff has committed “a fraud on the court which permeates the entire proceedings.” See McKnight v. Evancheck, 907 So.2d 699, 700 (Fla. 4th DCA 2005). In Arzmnan v. Saud, 843 So.2d 950 (Fla. 4th DCA 2003), we explained:

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). When reviewing a case for fraud, the court should “consider the proper mix of factors” and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18.

Id. at 952 (quoting Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998)).

“A dismissal for fraud on the court is reviewed under a narrowed abuse of discretion standard.” Gilbert v. Eckerd Corp. of Fla., 34 So.3d 773, 775 (Fla. 4th DCA 2010); Bob Montgomery Real Estate v. Djokic, 858 So.2d 371, 374 (Fla. 4th DCA 2003) (“Although a dismissal imposed as a sanction is reviewed under an abuse of discretion standard, the trial court’s discretion is narrowed where dismissal is imposed for fraudulent conduct such as that alleged here, in which a more stringent abuse of discretion standard is appropriate.”).

In Piunno v. R.F. Concrete Construction, Inc., 904 So.2d 658 (Fla. 4th DCA 2005), we noted that the trial court’s written order contained “a thoughtful discussion of the facts and a well-reasoned conclusion, clearly showing the court balanced the equities.” Id. at 659. Based on this detailed written order, we were able to affirm that the trial court in that case did not abuse its discretion by imposing the ultimate sanction of dismissal with prejudice.

Contrarily, in this case, the trial court’s final order is non-specific. It states that Chacha “committed fraud regarding his medical history and such deception was intended to interfere with the judicial system’s ability to impartially adjudicate the case by improperly influencing the trier of fact and unfairly hampered the Defendants’ ability to defend the case by intentionally thwarting the discovery process.” This language, however, merely tracks the test for fraud on the court that we approved in Arzuman. As such, the order offers us no guidance in reviewing whether the trial court carefully balanced the equities before granting this ultimate sanction. The trial court’s oral announcements are no more helpful.

While we have never explicitly imposed a requirement that a trial court make express written findings of fact supporting its conclusion that a plaintiff perpetrated (or attempted to perpetrate) a fraud on the court, the Florida Supreme Court has recognized such a requirement where a dismissal is based on a violation of a discovery order. See Ham v. Dunmire, 891 So.2d 492, 495 (Fla.2004) (“The dismissal of an action based on the violation of a discovery order will constitute an abuse of discretion where the trial court fails to make express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard.”). The supreme court explained that “[e]xpress findings are required to ensure that the trial judge has consciously determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation.” Id. at 496.

We believe that the same reasoning which makes it an abuse of discretion to dismiss an action based on the violation of a discovery order without express written findings of fact applies equally where dismissal is based on a plaintiffs fraud on the court. “We do not think it too great a task to require the trial court to make a written finding of the essential facts which supports the imposition of the most severe sanction .... ” Tubero v. Chapnich, 552 So.2d 932, 935 (Fla. 4th DCA 1989). Thus, we hold that an order granting a dismissal or default for fraud on the court must include express written findings demonstrating that the trial court has carefully balanced the equities and supporting the conclusion that the moving party has proven, clearly and convincingly, that the non-moving party implemented a deliberate scheme calculated to subvert the judicial process.

We therefore reverse and remand for the trial court to make express written findings sufficient to assist us in determining that the trial court properly considered “the proper mix of factors” and carefully balanced the policy favoring adjudication on the merits with the competing policy to maintain the integrity of the judicial system. On remand, the trial court is free to reconsider its ultimate ruling.

Reversed and remanded.

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.

      . Apparendy, Dr. Ross's records included notes from at least sixteen visits prior to January 2004. The defendants, however, only attached notes from seven of those visits to their motion to dismiss. Thus, only the notes from those seven visits discussed above are part of the appellate record.

      . After announcing that it was granting the defendants' motion, the trial court did explain that when "the facts become known” it is a "plaintiff's obligation to inform especially their main expert of what they know.” We do not believe that these comments were related to the trial court’s decision to dismiss this case with prejudice. Dismissing the case with prejudice due to the failure of Chacha’s counsel to amend Chacha’s interrogatory answers and to ensure that Dr. Gelbard had reviewed Dr. Ross’s records before his deposition would have undoubtedly been an abuse of discretion.


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    Janet K. BURTON, Appellant, v. MDC PGA PLAZA CORP., and Holiday CVS, LLC d/b/a CVS/Pharmacy # 5141, Appellees.
    No. 4D10-3000.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    Robert T. Bergin, Jr. of Robert T. Ber-gin, Jr., P.A., West Palm Beach and Bard D. Rockenbach and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach for appellant.
    Scott A. Cole and Kirsten A. Tajak of Cole, Scott & Kissane, P.A., for Appellee-MDC PGA Plaza Corp., and James C. Sawran and Camillee E. Blanton of Mein-tosh, Sawran & Cartaya, P.A., West Palm Beach for Appellee-Holiday CVS, L.L.C.
   TAYLOR, J.

In this premises liability case, the plaintiff, Janet K. Burton, appeals a final summary judgment entered in favor of the defendants, MDC PGA Plaza Corp. (MDC) and Holiday CVS (CVS). The trial court granted summary judgment upon its finding that the defendants were not under a duty to warn the plaintiff of a pothole on the premises, or repair it, because the plaintiff was aware of its presence and condition when she tripped over it. Although the plaintiff concedes that the open and obvious nature of the pothole discharged the defendants’ duty to warn her of the dangerous condition, she argues that the defendants nonetheless had a duty to maintain the premises in a reasonably safe condition. We agree and reverse.

Factual Background

The plaintiff worked for a marketing and merchandising company that helped new retail businesses get prepared for opening. She was brought in to work at a new CVS Pharmacy in Palm Beach Gardens that was getting ready for its grand opening. Her job included setting up and stocking shelves, moving fixtures, and unloading trucks on CVS’s back parking lot. While unloading trucks, the plaintiff noticed a pothole about ten or fifteen feet from the store’s back door. The pothole was approximately one foot wide and two inches deep. She informed her co-workers and CVS’s management of the pothole and urged everyone to exercise caution. One week later, the plaintiff was seriously injured when, while loading a vehicle, she stepped into the pothole, tripped, and fell to the ground.

The plaintiff filed suit against both CVS and its landlord, MDC. In her amended complaint, the plaintiff alleged that the defendants breached their duty to exercise reasonable care in the maintenance, inspection, and repair of the business premises by allowing a pothole to form in the pavement and failed to warn her of the dangerous condition. Both defendants answered and filed motions for summary judgment. MDC argued that the pothole “was so glaringly open and obvious” that it could not be considered a dangerous condition, and that MDC therefore had no duty to warn the plaintiff of it. CVS argued that it owed no duty to the plaintiff because, under its lease agreement with MDC, maintenance of the parking lot was MDC’s obligation. CVS also argued that it owed no duty to the plaintiff to warn of the defect because the plaintiff was aware of its open and obvious nature.

The trial court agreed with defendants that the plaintiff could not recover from either defendant because she knew about the pothole before she fell. Entering summary judgment in defendants’ favor, the court stated:

[t]he Court commends the Plaintiff for her candor during her deposition, however, by her own admission, she had knowledge equal to or superior to that of the landowner and had a duty to guard against known perils. For this reason, this Court finds that the Plaintiff cannot maintain an action against the landowner Defendant MDC or its tenant, CVS.

Analysis

A trial court’s entry of a final summary judgment is reviewed de novo. Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). “When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party.” Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009) (citing Allenby & Assocs., Inc. v. Crown St Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009)). A landowner or occupier owes an invitee two independent duties: (1) to maintain the premises in a reasonably safe condition, and (2) to give warning of concealed perils. Marion v. City of Boca Raton, 47 So.3d 334, 338 (Fla. 4th DCA 2010). Here, the plaintiff conceded that she knew about the pothole before she fell into it and that her knowledge discharged the defendants of their duty to warn her of the dangerous condition. Thus, the only issue is whether the defendants owed the plaintiff a duty to maintain the premises in a reasonably safe condition.

Florida courts have long held that a landowner’s duty to warn is separate and distinct from the duty to maintain the premises in a reasonably safe condition. “Case law consistently recognizes that the fact that a danger is open and obvious may operate to discharge a landowner’s duty to warn, but it does not discharge the duty to maintain the property in a reasonably safe condition.” Lomack v. Mowrey, 14 So.3d 1090, 1092 (Fla. 1st DCA 2009) (citing Fieldhouse v. Tam Inv. Co., 959 So.2d 1214, 1216 (Fla. 4th DCA 2007); Miller v. Slabaugh, 909 So.2d 588, 589 (Fla. 2d DCA 2005); Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005); Lynch v. Brown, 489 So.2d 65, 66 (Fla. 1st DCA 1986); Pittman v. Volusia County, 380 So.2d 1192, 1193-94 (Fla. 5th DCA 1980)). A plaintiffs awareness of a dangerous condition does not negate a defendant’s potential liability for negligence in allowing the dangerous condition to exist; it may be relevant, however, to a determination of comparative negligence. Mashni v. La-Salle Partners Management Ltd., 842 So.2d 1035, 1039 (Fla. 4th DCA 2003).

The defendants argue that the pothole was such an open and obvious condition that they could not have anticipated that anyone would be harmed by it. They cite several cases finding that some conditions are so obvious that neither a warning nor correction of the condition is required by the owner. See, e.g., McAllister v. Robbins, 542 So.2d 470, 471 (Fla. 1st DCA 1989) (affirming summary judgment in favor of the defendant when the plaintiffs injuries were caused by an obstruction that the plaintiff saw but negotiated incorrectly); Crawford v. Miller, 542 So.2d 1050, 1051 (Fla. 3d DCA 1989) (concluding that, where the plaintiff had actual knowledge of lights installed in the shrubbery along the walkway, the premises were not in an unreasonably dangerous condition, as the plaintiffs injuries could have been avoided by her taking due care to avoid them); San v. Aetna Cas. and Sur. Co., 452 So.2d 64, 65 (Fla. 3d DCA 1984) (affirming summary judgment for an owner because the step-down between the tile floor of an apartment hallway and the carpeted, flexible pile surface of the adjacent bedroom which came to the same level was so obvious that, as a matter of law, neither warning nor correction of the condition was required).

In granting summary judgment, the trial court relied on an unreported decision by the United States District Court for the Middle District of Florida, Arnoul v. Busch Entertainment Corp., 2008 WL 4525106 (M.D.Fla. Oct.6, 2008), which cited several Florida cases standing for the proposition that “some injury-causing conditions are so open and obvious that they can be held as a matter of law not to give rise to liability as dangerous conditions.” Id. at *2. In Amoul, the plaintiff and his wife sued Busch Entertainment Corporation for injuries the plaintiff sustained when he walked into a low-hanging tree branch that protruded over the walkway at the Busch Gardens amusement park in Tampa. Although the plaintiff had seen the branch before walking into it, he was distracted by his granddaughter and suffered injuries when he walked into it. Id. at *1. He alleged that the theme park failed to maintain the premises in a reasonably safe condition. Id. at *2. The district court granted the defendant’s motion for summary judgment, holding that the plaintiffs injuries were caused by his failure to take precautions against a reasonable, open, and obvious potential danger. Id. at *4. Citing Aaron v. Palatka Mall, L.L.C., 908 So.2d 574 (Fla. 5th DCA 2005), the federal district court held that “only when a landowner should anticipate that people will choose to negotiate obvious hazards and thereby injure themselves, despite their awareness of the danger, is the landowner responsible for injury resulting from an obvious condition.” Arnoul, 2008 WL 4525106 at *2.

Aaron, however, recognized that “the courts generally agree that the obvious danger doctrine does not apply when negligence is predicated on breach of the duty to maintain the premises in a reasonably safe condition.” 908 So.2d at 577. In Aaron, the Fifth District ultimately reversed summary judgment in favor of the defendant, holding that an issue of fact was raised, despite the fact that the danger was open and obvious. The court stated:

When an injured party alleges that the owner or possessor breached the duty to keep the premises in a reasonably safe condition, an issue of fact is generally raised as to whether the condition was dangerous and whether the owner or possessor should have anticipated that the dangerous condition would cause injury despite the fact it was open and obvious.

Id. at 578.

In addition to pointing out the tension between Amoul and Aaron, the plaintiff argues that the cases relied upon by the defendant are distinguishable based on the type of “defect” involved. See Arnoul, 2008 WL 4525106 at *1 (involving a low-hanging branch); McAllister, 542 So.2d at 470 (involving concrete blocks marking the property line); Crawford, 542 So.2d at 1051 (involving landscape light protruding onto walkway); see also Sari, 452 So.2d at 65 (involving a step-down between the tile floor of an apartment hallway and the carpeted, flexible pile surface of the adjacent bedroom which came to the same level).

A pothole is not a natural condition, nor does it create a reasonable risk of harm. A pothole forms when a landowner fails to maintain the property; it is a portion of pavement that has fallen into disrepair. Turner v. Winn-Dixie Food Stores Inc., 651 So.2d 827, 828 (Fla. 5th DCA 1995). A pothole’s obvious nature does not make it, as a matter of law, a reasonably safe condition. Under well-established Florida law, the defendants’ duty to maintain the premises in a reasonably safe condition was not discharged by the plaintiffs knowledge of the pothole before she fell. Her knowledge merely raised an issue of fact as to her own comparative negligence. We thus conclude that the trial court erred in granting summary judgment in favor of the defendants.

We further reject CVS’s argument that it had no duty to the plaintiff because of its lease with MDC, which, CVS contends, obligated MDC to maintain the parking lot. “A party who exercises control or implied authority over a piece of property by inviting people to utilize the property in a particular manner may become responsible to invitees in the same manner as an owner.” Regency Lake Apartments Assocs., Ltd. v. French, 590 So.2d 970, 974 (Fla. 1st DCA 1991). A tenant’s ability to manage and control an area is a question of fact for a jury to decide. Id. Moreover, a commercial tenant may have a duty, independent of the landlord’s duty, to maintain premises in a reasonably safe condition regardless of whether the landlord has contractually assumed responsibility to maintain the premises. Levy v. Home Depot, Inc., 518 So.2d 941, 942 (Fla. 3d DCA 1987); Bovis v. 7-Eleven, Inc., 505 So.2d 661, 664 (Fla. 5th DCA 1987).

For the reasons stated above, we reverse the final summary judgment entered in favor of MDC and CVS and remand this case for further proceedings.

Reversed and Remanded for further proceedings.

POLEN and STEVENSON, JJ., concur.

      . Taylor v. Universal City Prop. Mgmt., 779 So.2d 621, 622 (Fla. 5th DCA 2001); McAtlis-ter v. Robbins, 542 So.2d 470, 471 (Fla. 1st DCA 1989); Crawford, v. Miller, 542 So.2d 1050 (Fla. 3d DCA 1989).


author: PER CURIAM.

text:
    Sigmund SWENSON and Karon Swenson, Appellants, v. AMERICAN AMMUNITION, INC., a Florida corporation, F. & F. Equipment, Inc., a Florida corporation, and F & F Equipment, Inc., d/b/a American Ammunition, Appellees.
    No. 4D07-4743.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    Joel S. Perwin of Joel S. Perwin, P.A., Miami, and Kelley B. Stewart of Krupnick, Campbell, Malone, Buser, Slama, Hancock, Liberman & McKee, P.A., Fort Lauder-dale, for appellants.
    Christine R. Davis Graves and Jeffrey A. Cohen of Carlton Fields, P.A., Miami, for appellees.
   PER CURIAM.

Affirmed. See Jenkins v. Rockwood, 820 So.2d 426 (Fla. 4th DCA 2002); Bates v. Cook, Inc., 509 So.2d 1112 (Fla.1987).

GROSS, CIKLIN and LEVINE, JJ., concur.


text:
    TALA STRUCTURES, LLC, Appellant, v. STILES CORPORATION d/b/a Stiles Construction Co., Stiles Construction d/b/a Stiles Construction Co., Clair-manso Baltimore, as Personal Representative of the Estate of Ibernier Boltimer, Tala Construction Company, C.A.T. Concrete Solutions, Inc., AMS Staff Leasing, Inc., Thyssen-drupp Safway, Inc., and Morrow Equipment Co., LLC, Appellees.
    No. 4D10-3767.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.

      Mitchell L. Lundeen and Kevin M. O’Brien of George Hartz Lundeen, Coral Gables, for appellant.
    Barry L. Davis and Daniella Friedman of Thornton Davis & Fein, Miami, for ap-pellee Stiles Corporation d/b/a Stiles Construction Co.
   PER CURIAM.

Affirmed. See Gulfstream Park Racing Ass’n v. Gold Spur Stable, Inc., 820 So.2d 957 (Fla. 4th DCA 2002).

GROSS, CIKLIN and LEVINE, JJ., concur.


text:
    Charles ELDON, Appellant, v. Gregory PERRIN, individually and as a shareholder of Atlantic Coastal Fuels, Inc., a Florida Corporation, and Atlantic Coastal Fuels, Inc., a Florida Corporation, Appellees.
    No. 4D11-2329.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.

      D. Kent Safriet and Roy Van Wyk of Hopping Green & Sams, P.A., Tallahassee, for appellant.
    Douglas Reynolds, Brady J. Cobb and B. George Walker of Tripp Scott, P.A., Fort Lauderdale, for Appellee-Gregory Perrin.
   PER CURIAM.

Appellant challenges the validity of a temporary injunction granted by the trial court. We reverse the order granting the temporary injunction because the order is facially deficient in failing to contain sufficient factual findings to support each prong of the four-part injunction test and in failing set an appropriate bond.

Before a temporary injunction may be granted, the trial court must make “clear, definite, and unequivocally sufficient factual findings” showing that: (1) the movant will suffer irreparable harm unless the status quo is maintained; (2) the movant has no adequate remedy at law; (3) the movant has a substantial likelihood of success on the merits; and (4) that a temporary injunction will serve the public interest. Jouvence Ctr. for Advanced Health, LLC v. Jouvence Rejuvenation Ctrs., LLC, 14 So.3d 1097, 1099 (Fla. 4th DCA 2009) (citation and internal quotation marks omitted). Strict compliance with Florida Rule of Civil Procedure 1.610(c), which specifies the form and scope of injunctions, is required. Here, the order granting the temporary injunction did little more than state that the movant had satisfied each prong of the test. Such an order is facially insufficient. See Snibbe v. Napoleonic Soc’y of Am., Inc., 682 So.2d 568, 570 (Fla. 2d DCA 1996) (stating that an order granting a temporary injunction must do more than parrot back each tine of the four-prong test). On remand, the trial court must make specific factual findings to show that the movant is entitled to relief.

The injunction also fails to comply with the bond requirement of Florida Rule of Civil Procedure 1.610(b). “No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” Id.; see also Thomas v. English, 448 So.2d 623 (Fla. 4th DCA 1984). On remand, the trial court must conduct an evidentiary hearing and allow both parties the opportunity to present evidence as to the appropriate bond amount.

Reversed and Remanded for further proceedings consistent with this opinion.

POLEN, TAYLOR and STEVENSON, JJ., concur.


text:
    In re Marti GROSJEAN-PEARSON.
    No. 2011-OB-2620.
    Supreme Court of Louisiana.
    Jan. 17, 2012.
   ORDER

_|jThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into numerous complaints of serious professional misconduct filed against respondent. These matters involve a pattern by respondent of accepting fees from clients, failing to complete the agreed upon legal tasks, and then failing or refusing to refund the unearned fees. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Marti Grosjean-Pearson, Louisiana Bar Roll number 29586, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Marti Grosjean-Pearson for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Marti Grosjean-Pearson shall make restitution to her clients as set forth in her request for permanent resignation.

IT IS FURTHER ORDERED that Marti Grosjean-Pearson shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which she is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which she is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

FOR THE COURT:

/s/ Greg G. Guidry

/s/ Justice, Supreme Court of Louisiana


text:
    Antoinette DELL and Terry Dell v. Dr. Lisa M. CAMPEAU and Lakeview Medical Center, et al.
    No. 2011-CC-2404.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   PER CURIAM.

| granted. The judgment of the trial court is vacated and set aside. The motion to compel is granted, and defendants are ordered to produce the requested documents and information for an in camera inspection. After conducting an in camera inspection, the trial court shall determine whether the documents and information are discoverable. In the event the trial court finds the documents and information are discoverable, it may make production subject to a protective order, if appropriate.


text:
    In re Bryan M. WHITE.
    No. 2011-OB-2141.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   ON APPLICATION FOR READMISSION

PER CURIAM.

| T This proceeding arises out of an application for readmission filed by petitioner, Bryan M. White, a disbarred attorney.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: White, 08-1390 (La.12/2/08), 996 So.2d 266, we disbarred petitioner, retroactive to his June 24, 2003 interim suspension, for his conviction of misprision of felony, the crime of concealing knowledge of a felony by one who has not participated or assisted in it. Petitioner subsequently filed an application for readmission with the disciplinary board, alleging he has complied with the readmission criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel took no position regarding the application for readmission. Accordingly, the matter was referred for a formal hearing before a hearing committee.

Following the hearing, the hearing committee recommended petitioner be readmitted to the practice of law. Neither petitioner nor the ODC objected to the hearing committee’s recommendation.

After considering the record in its entirety, we will adopt the committee’s recommendation and readmit petitioner to the practice of law. As found by the committee, the record provides clear and convincing evidence of petitioner’s compliance with the readmission criteria. In particular, the record supports the [ finding that petitioner has not practiced law or engaged in additional misconduct during his disbarment. He has kept informed about recent developments in the law, has acknowledged the wrongfulness and seriousness of his misconduct, and has expressed remorse. Most significantly, however, the victim of petitioner’s misconduct has indicated her support of his readmission to the practice of law. Under these circumstances, we find petitioner has shown that he possesses the requisite competence, honesty, and integrity to be readmitted to the practice of law.

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that Bryan M. White, Louisiana Bar Roll number 18501, be immediately readmitted to the practice of law in Louisiana. All costs of these proceedings are assessed against petitioner.

VICTORY, GUIDRY and CLARK, JJ., dissent and would deny readmission.

WEIMER, J., concurs.


text:
    STATE of Louisiana v. Erik TRACZYK.
    No. 2011-KK-2821.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   PER CURIAM.

hThe reasons cited by the district court for the recusal are inadequate. Consequently, the recusal is vacated and set aside and the case is remanded to the district court for further proceedings.

      . Kimball, C.J., not participating in the decision.


text:
    In re Robert E. CLARK.
    No. 2011-OB-2652.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

11 This proceeding arises out of an application for reinstatement filed by petitioner, Robert E. Clark, an attorney who is currently suspended for the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Clark, 09-1631 (La.12/1/09), 25 So.3d 728, we suspended petitioner from the practice of law for two years, with credit for time served on interim suspension. Petitioner subsequently filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel (“ODC”) concurred in petitioner’s reinstatement. After reviewing the matter, the disciplinary board’s adjudicative committee chair recommended that the petition for reinstatement be granted.

After considering the record in its entirety, we will adopt this recommendation and reinstate petitioner to the practice of law, subject to the condition that he must extend his contract with the Lawyers Assistance Program (“LAP”) for a period of five years and fully comply with the terms and conditions | ¡¿hereof. The ODC shall monitor petitioner’s compliance with his LAP recovery agreement and notify this court of any violation, which may be grounds for immediately transferring petitioner to disability inactive status, or placing him on interim suspension, as appropriate.

DECREE

Upon review of the recommendation of the disciplinary board’s adjudicative committee chair, and considering the record, it is ordered that Robert E. Clark, Louisiana Bar Roll number 1766, be immediately reinstated to the practice of law in Louisiana, subject to the conditions set forth herein. All costs of these proceedings are assessed against petitioner.

       Chief Justice Kimball not participating in the opinion.

      . Petitioner’s current LAP contract expires on August 13, 2012. The five-year extension that is a condition of petitioner’s reinstatement will subject him to monitoring by LAP until 2017.


text:
    In re Derek John HONORE.
    No. 2011-OB-2709.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

|, This proceeding arises out of an application for reinstatement filed by petitioner, Derek John Honoré, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Honore, 03-0980 (La.12/3/03), 861 So.2d 161, we imposed a fully deferred two-year suspension with probation upon petitioner. On February 15, 2008, we revoked petitioner’s probation and ordered him to serve the previously deferred suspension for his failure to comply with the conditions of probation. Petitioner subsequently filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel (“ODC”) took no position regarding the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

Following the hearing, the hearing committee recommended petitioner be reinstated to the practice of law. Neither petitioner nor the ODC objected to the hearing committee’s recommendation.

|2After considering the record in its entirety, we will adopt the committee’s recommendation and reinstate petitioner to the practice of law. As found by the committee, the record provides clear and convincing evidence of petitioner’s compliance with the reinstatement criteria. In particular, the record supports a finding that petitioner has now earned the additional hours of continuing legal education which were required as a condition of his probation in the underlying disciplinary matter. He has also satisfied his ordinary OLE requirements for the year 2011. Most importantly, petitioner has acknowledged the wrongfulness and seriousness of his misconduct and has expressed remorse. Under these circumstances, we find petitioner has shown that he possesses the requisite competence, honesty, and integrity to be reinstated to the practice of law.

DECREE

Upon review of the recommendation of the disciplinary board’s adjudicative committee chair, and considering the record, it is ordered that Derek John Honoré, Louisiana Bar Roll number 25711, be immediately reinstated to the practice of law in Louisiana. All costs of these proceedings are assessed against petitioner.

       Chief Justice Kimball not participating in the opinion.


text:
    STATE of Louisiana v. Dion P. SIMMONS.
    No. 2011-K-1280.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   PER CURIAM.

hOn October 27, 2009, New Orleans police officers arrested the defendant/respondent after observing him discard what a crime laboratory later determined were 14 individually wrapped rocks of cocaine. The state subsequently charged respondent by bill of information with possession of cocaine with intent to distribute in violation of La.R.S. 40:967(A)(2). On February 24, 2010, the state filed notice, pursuant to La.R.S. 15:501(A), of its intent to introduce the crime lab’s certificate of analysis at respondent’s forthcoming trial set for May 18, 2010, as prima facie evidence that the individually wrapped objects he discarded contained cocaine, a procedure authorized by La.R.S. 15:500. On the morning of May 18, 2010, just before jury selection was about to begin, respondent filed a written opposition to the state’s notice. A transcript of the proceedings indicates that the trial court was at first inclined to accommodate the defense objection by summoning the criminalist to testify. However, when the state indicated that the ■witness worked for a crime lab located in St. Tammany Parish and was thus not immediately available, the court denied the defense objection as untimely. A jury thereafter found respondent guilty as charged in a brief, one-day trial. The trial |2court sentenced him to 12 years imprisonment at hard labor to run concurrently with any other sentence he was then serving.

On appeal, after first considering and rejecting respondent’s assignment of error asserting that the state’s evidence, including the crime lab report, was not sufficient to support the jury’s verdict, the court of appeal addressed respondent’s argument that introduction of the crime lab report, as opposed to presenting live testimony from the analyst who conducted the testing, violated his Sixth Amendment right to confront the witnesses against him. The Fourth Circuit agreed, pretermitted respondent’s remaining assignment of error, reversed his conviction and sentence, and remanded the case for further proceedings. State v. Simmons, 10-1508 (La.App. 4th Cir.5/18/11), 67 So.3d 525. In doing so, the court of appeal acknowledged that this Court, State v. Cunningham, 04-2200 (La.6/13/05), 903 So.2d 1110, the First Circuit, State v. Beauchamp, 10-0451 (La. App. 1st Cir.9/10/10), 49 So.3d 5, and the Second Circuit, State v. Dukes, 46,029 (La. App. 2nd Cir.1/26/11), 57 So.3d 489, had reached the opposite view of whether the statutory procedure set forth in La.R.S. 15:500-501 raised substantial confrontation issues. The Fourth Circuit declined to follow the reasoning in Beauchamp and Dukes, and further declined to follow this Court’s holding in Cunningham because our decision came well before the Supreme Court rendered the opinion in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), which, in the court of appeal’s view, invalidated this state’s procedure as it existed at the time of respondent’s trial. Simmons, 10-1508 at 14-16, 67 So.3d at 533-35.

The state seeks review of the Fourth Circuit’s decision in this Court. For the reasons that follow, we grant the state’s application and reverse.

In common with many states, Louisiana law provides that, subject to the restrictions contained in La.R.S. 15:501, certificates of analysis issued by any Iscriminalistics laboratory in the state “shall be received in evidence as prima facie proof of the facts shown thereon.... ” La.R.S. 15:500. At the time of trial, La. R.S. 15:501(A) required a party to give notice at least 10 days in advance of trial if it intended to rely on a certificate of analysis by a criminalistics laboratory, as authorized by La.R.S. 15:499. The statute further provided that the opposing party had the right “to subpoena on cross-examination, the person who performed the examination or analysis of the evidence,” and that “[i]f the subpoena is requested at least five days prior to the commencement of trial or the person subpoenaed responds to the subpoena, the certificate shall not be prima facie proof of its contents or of proper custody.” La.R.S. 15:501(B)(1). In 2010, shortly after trial in the present case, the legislature’s amendment of R.S. 15:501 went into effect to enlarge the period in which the party seeking to use the certificate of analysis must give notice (now 45 days), and to redraft the provisions of La. R.S. 15:501(B), which now requires, in lieu of a subpoena, a written “demand that the person making the examination or analysis testify,” filed in court and served on the district attorney. If the demand is made within 30 days of the receipt of the state’s notice of intent, “the certificate shall not constitute prima facie proof of the facts thereon as set forth in R.S. 15:500.” 2010 La. Acts 693.

The lynchpin of respondent’s motion to exclude the crime lab certifícate as evidence at trial was the Supreme Court’s decision in Melendez-Diaz v. Massachusetts. In what the majority termed a “rather straightforward application” of the Court’s prior decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Melendez-Diaz held that a state may not, over a defendant’s objections under the Confrontation Clause of the Sixth Amendment, introduce as substantive evidence a criminalist’s cer-tifícate attesting to the fact the |4substances tested in the laboratory revealed the presence of contraband drugs {e.g., cocaine), unless the criminalist is unavailable to testify and the defendant had a prior opportunity to cross-examine him. Melendez-Diaz, 557 U.S. at-, 129 S.Ct. at 2532. Melendez-Diaz announced the holding in the context of a Massachusetts statute which permitted introduction of the crime lab certificates as “ ‘prima facie evidence of the composition, quality, and the net weight of the narcotic analyzed,’ ” id., 557 U.S. at-, 129 S.Ct. at 2531 (quoting Mass. Gen. Laws, ch. 111, § 13), and the majority flatly rejected the state’s suggestion that because the defendant had remained free to subpoena the criminalist of his own accord but chose not to do so, no Confrontation Clause violation occurred:

Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power — whether pursuant to state law or the Compulsory Process Clause — is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.

Melendez-Diaz, 557 U.S. at-, 129 S.Ct. at 2540 (citation omitted).

In the present case, the Fourth Circuit concluded that Louisiana’s statutory framework as it existed at the time of trial failed under the rationale of Melendez-Diaz, because it shifted the burden to call the witness to the defendant:

We are constrained to follow the Melendez-Diaz rationale rather than the Louisiana Supreme Court’s decision in Cunningham because the United States Supreme Court has now specifically held that the statutory procedure for introduction of the criminalist’s report over the objection of the defendant in lieu of the criminalist’s live testimony violates the Confrontation Clause of the United States Constitution. Further, in light of Melendezfpiaz,ñ and unlike our colleagues in the First and Second Circuits, we find that the statutory scheme in effect at the time of Simmons’ trial violated Simmons’ rights under Melendez-Diaz. That is, our reading of Melendez-Diaz is that the Confrontation Clause does not allow the burden to be shifted to the defendant to call as a witness the criminalist, a witness obviously against him in view of the analysis report of the alleged illegal substance. The burden always remained with the state to call the criminalist as a live-witness. Thus, we find that the admission of the certificate of analysis into evidence at trial did violate Simmons’ rights under the Confrontation Clause.

Simmons, 10-1508 at 15-16, 67 So.3d at 534-35 (footnote omitted).

The court of appeal further suggested that “one could reasonably argue that the legislature’s enactment 2010 La. Acts 683 that amended La. R.S. 15:501 was done to cure perceived or potential problems created by Melendez-Diaz to the former law.” Simmons, 10-1508 at 16, n. 5, 67 So.3d at 535.

However, the court of appeal drew the wrong inference from the 2010 amendment. The majority in Melendez-Diaz sharply distinguish the Massachusetts procedure at issue from so-called notiee-and-demand statutes prevalent in other jurisdictions which do not, at least as a general matter, pose Sixth Amendment confrontation problems because they do not shift the burden of producing the analyst to the defense:

In their simplest form, notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial. Contrary to the dissent’s perception, these statutes shift no burden whatever. The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections. It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. Today’s decision tvill not disrupt criminal prosecutions in the many large States whose practice is already in accord with the Confrontation Clause.

Melendez-Diaz, 557 U.S. at -, 129 S.Ct. at 2541 (footnote and citations omitted; some emphasis added).

The majority’s last observation in Melendez-Diaz applies to Louisiana as well as to other jurisdictions. In Cunningham, this Court addressed a Sixth Amendment challenge to Louisiana’s statutory procedure under Crawford v. Washington, progenitor of the decision in Melendez-Diaz, and upheld it by construing La.R.S. 15:501 as a notice-and-demand statute in light of what “the State conceded at oral argument, [that] once the defendant requests the subpoena, the certificate of analysis has no evidentiary value and the State must call the relevant witnesses to prove its case.” Cunningham, 04-2200 at 17, 903 So.2d at 1121. We observed:

[T]he statutes at issue provide a party with notice that a certificate of analysis will be offered into evidence absent an objection. These statutes are a formalized means of effectuating a stipulation to the admissibility of matters which often are not in dispute. After the State has put the defendant on notice, the statute provides the defendant with a small procedural step which must be taken to exercise the right to confrontation. In essence, it is the defendant’s decision which dictates whether the State must produce the individual who prepared the report or whether the defendant will agree to use of the criminalist’s report.

Cunningham, 04-2200 at 14, 903 So.2d at 1119 (citations omitted).

The Fourth Circuit therefore erred by dismissing Cunningham simply as a pre-Melendez-Diaz decision and by suggesting that the 2010 amendment of |7La.R.S. 15:501 represented a wholesale revision of the procedure originally contemplated, as opposed to a clarification and refinement of prior law. The First and Second Circuits reached the correct conclusion that our decision in Cunningham is consistent with, and not superseded by, Melendez-Diaz. Beauchamp, 10-0451 at 8, 49 So.3d at 9-10 (“Louisiana Revised Statutes 15:501 is precisely the kind of ‘notice-and-demand’ statute that the court in Melendez-Diaz recognized to be permissible under the Confrontation Clause.... If the defendant had made a timely request for the issuance of a subpoena for the person who performed the analysis, the certificate would not have been admissible into evidence in lieu of such testimony [and] [i]t would have been incumbent upon the State to procure the attendance of the person making the certificate at trial and to offer that testimony to establish the results of the examination.”); Dukes, 46,029 at 13, 57 So.3d at 496 (“In Louisiana [and unlike Massachusetts law], the mere request for a subpoena by the defendant five days prior to trial rendered the certificate useless to the state as prima facie proof of its contents or of proper custody. Accordingly, an unavailable or uncooperative analyst becomes the state’s problem in meeting its burden of proof and not the defendant’s in exercising his right to confrontation.”).

In the present case, respondent waived his Sixth Amendment right of confrontation by failing to timely request a subpoena for the analyst who performed the test on the rocks of cocaine. As Melendez-Diaz observed, states remain free to impose reasonable restrictions on a defendant’s assertion of his confrontation rights and the trial court therefore did not abuse its discretion in failing to issue an instanter subpoena for the out-of-parish criminalist at the risk of delaying a one-day trial after respondent failed to timely request that a subpoena issue for the witness. Given the circumstances, the trial court properly admitted the analyst’s certificate in lieu of the analyst’s live testimony. The decision of the |sFourth Circuit is therefore reversed and this case is remanded to the court of appeal for consideration of respondent’s remaining assignment of error pretermitted on original appeal.

DECISION OF THE COURT OF APPEAL REVERSED; CASE REMANDED

      . The 2010 act also eliminated former La.R.S. 15:501(B)(2), which required defense counsel or the defendant making the request for a subpoena to certify that "the attorney or the defendant intends in good faith to conduct the cross-examination.

      . We further noted in Cunningham that the requirement of former La.R.S. 15:501 (B)(2), that the defendant or defense counsel certify he intended in good faith to conduct cross-examination of the analyst, a burden imposed only upon the defendant, had the potential of impairing the accused’s confrontation rights and therefore had to be “construed so as not to be an unconstitutional violation of the confrontation clause.” Cunningham, 04-2200 at 18, 903 So.2d at 1122. We rendered the burden "featherweight” by holding that a defendant could satisfy the good faith requirement "by merely indicating a preference for live testimony by requesting a subpoena issue for the preparer of the certificate of analysis.” Id. We thereby construed Louisiana's provisions as the simplest form of a notice-and-demand statute. See Melendez-Diaz, 557 U.S. at -, n. 12, 129 S.Ct. at 2541 (Although some state statutes require a showing of good cause or an affirmance under oath of an intent to cross-examine the analyst, ”[w]e have no occasion today to pass on the constitutionality of every variety of statute commonly given the notice-and-demand label. It suffices to say that what we have referred to as the 'simplest form [of] notice-and-demand statutes,’ is constitutional[.]”) (citation omitted).


text:
    In re Remy J. DONNELLY.
    No. 2010-OB-0847.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   ORDER

| Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Donnelly, 10-0847 (La.2/18/11), 55 So.3d 787, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

FOR THE COURT:

/s/ Jeffrey P. Victory

/s/ Justice, Supreme Court of Louisiana


text:
    In re Joseph B. LANBRENEAU.
    No. 2012-OB-0038.
    Supreme Court of Louisiana.
    Jan. 24, 2012.
   IN RE: Landreneau, Joseph B.; — Plaintiff; Applying for Reconsideration of this Court’s action dated January 11, 2012;

Reconsideration granted. Petitioner is allowed to submit his application to sit for the February bar exam.


text:
    STATE ex rel. Larry LEE v. STATE of Louisiana.
    No. 2010-KH-2787.
    Supreme Court of Louisiana.
    Nov. 4, 2011.
   In re Lee, Larry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Allen, 33rd Judicial District Court Div. B; to the Court of Appeal, Third Circuit, No. 10-1483.

Denied.


text:
    Patricia SASSER-FORD v. Ronnie JOHNS.
    No. 2011-CC-2189.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Johns, Ronnie; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 2006-004465; to the Court of Appeal, Third Circuit, No. CW 11-01021.

Granted. The judgment granting the new trial is vacated and set aside. The case is remanded to the trial court, which is instructed to review the transcript of the trial prior to ruling on the motion for new trial.

GUIDRY, J., would deny.


author: HIGGINBOTHAM, J.

text:
    BOARD OF COMMISSIONERS OF the SOUTHEAST LOUISIANA FLOOD PROTECTION AUTHORITY-EAST, on behalf of and the ORLEANS LEVEE DISTRICT v. LOUISIANA DEPARTMENT OF NATURAL RESOURCES.
    No. 2011 CA 0262.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 29, 2011.
    Rehearing Denied Jan. 11, 2012.

      Sara E. Mouledoux, C. Peck Hayne Jr., New Orleans, LA, for Plaintiffs-Appellants, Board of Commissioners of the Southeast Louisiana Flood Protection Authority-East on behalf of and the Orleans Levee District.
    Thomas E. Balhoff, Baton Rouge, LA, for Defendant-Appellee, Louisiana Department of Natural Resources.
    Stephen 0. Scandurro, Timothy D. Scan-durro, New Orleans, LA, Mary Olive Pier-son, Baton Rouge, LA, for Intervenor, Eileen M. Bordelon, Administratrix of the Succession of Helen Katz, Wife of/and Sam Mermelstein.
    Before CARTER, C.J., PARRO and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

|2The Board of Commissioners of the Southeast Louisiana Flood Protection Authority-East, on behalf of and the Orleans Levee District (OLD), filed a petition for judicial review of a certification by the Department of Natural Resources (DNR) concerning the return of land in Plaque-mines Parish to the Succession of Helen Katz, Wife of/and Sam Mermelstein. The district court affirmed the decision of the DNR, and from that judgment the OLD appeals. For the following reasons, we vacate the judgment of the district court and dismiss the appeal for lack of appellate jurisdiction.

FACTS

An act of sale dated March 16,1928, and recorded March 19, 1928, conveyed land described as located in Section 17, Township 18 South, Range 16 East, containing 293.89 acres in Plaquemines Parish, from Sam Mermelstein to the Board of Levee Commissioners of the Orleans Levee District. In November 2006, Ms. Eileen Mer-melstein Bordelon, granddaughter of Sam Mermelstein and the court-appointed ad-ministratrix of the re-opened Succession of Helen Katz, Wife of/and Sam Mermelstein (the succession), asserted a claim to the DNR for certification to recover this land pursuant to the Return of Lands Act (Act 233 of 1984). The DÑR, pursuant to the authority vested in them by Act 233 of 1984, approved the succession’s application. In a letter to the OLD attorney dated October 16, 2007, the DNR concluded that the succession provided sufficient evidence to establish its right to the return of the property and certified that the land should be returned 100% to the succession. On November 19, 2007, the OLD submitted to the 19th Judicial District Court a petition for judicial review of the certification by the DNR. The OLD asserted jurisdiction of the court pursuant to the Louisiana Administrative Procedure Act (the APA), specifically La. R.S. 49:964. On December 20, 2010, the district court signed a judgment affirming the |sdecision of the DNR and denying the petition for judicial review. It is from this judgment that the OLD appeals.

DISCUSSION

Subject matter jurisdiction is a threshold issue, because a judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void. La. C.C.P. art. 3; Bordelon v. Dehnert, 99-2625 (La.App. 1st Cir.9/22/00), 770 So.2d 433, 435, writ denied, 2000-2923 (La.3/19/01), 787 So.2d 995. For the purpose of judicial review of administrative action, district courts are courts of limited jurisdiction and only have appellate jurisdiction to review administrative decisions as provided by the legislature or the constitution. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 2001-0185 (La.10/16/01), 797 So.2d 656, 660; See La. Const. art. V, § 16 B. The APA governs judicial review of an agency’s final decision or order in an adjudication proceeding. See Metro Riverboat Associates, Inc., 797 So.2d at 662.

The APA defines “adjudication” as an “agency process for the formulation of a decision or order.” La. R.S. 49:951(1). “Decision or order” is defined, in pertinent part, as “the whole or any part of the final disposition (whether affirmative, negative, injunctive,, or declaratory in form) of any agency, in any matter other than rulemak-ing, required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing.” La. R.S. 49:951(3) (Emphasis added). Absent a constitutional or statutory requirement of a hearing, an agency disposition is not a “decision or order” under the APA. And, if a “decision or order” does not result from the proceeding, then the proceeding is not an “adjudication,” as defined by the APA. Government Computer Sales, Inc. v. State, Through Div. of Admin., 98-0224 (La.App. 1st Cir.9/25/98), 720 So.2d 53, 56. Finally, if the agency action is not a “decision or order” in an ^adjudication proceeding, then the district court does not have appellate jurisdiction to review the action. See Metro Riverboat Associates, Inc., 797 So.2d at 662.

The Return of Lands Act ordered the OLD to return the ownership of property within the Bohemia Spillway to the owners or their successors from whom the property was acquired by expropriation or by purchase under threat of expropriation. 1984 La. Acts, No. 233, § 1. Section 2 of Act 233, as amended by 1985 La. Acts, No. 819, § 2, vested rule-making and procedure-making authority in the DNR to establish procedures and guidelines for the orderly implementation of the return of such property by the OLD and ordered the DNR to evaluate applications submitted by owners and/or their successors. The secretary of the DNR was made responsible for certifying to the OLD the owners or their successors from whom such property was so acquired. See 1985 La. Acts, No. 819, § 4 (amending Section 4 of Act 233 of 1984); Plaquemines Parish Government v. Department of Natural Resources, 2008-2094 (La.App. 1st Cir.9/10/09), 23 So.3d 357, 360, writ denied, 2009-2127 (La.12/11/09), 23 So.3d 920. Pursuant to this mandate, the DNR created the procedure required to apply for the return of land in Title 43, Chapter 13, § 1305 of the Louisiana Administrative Code (the LAC). The LAC requires the DNR, after completion of the evaluation of an application, to determine if “the application and accompanying documentary evidence establishes an apparent valid claim for return of title to the tract ...” LAC 43:XIII.1305(E)(2).

There is no constitutional or statutory provision requiring that the DNR give notice or provide the opportunity for a hearing prior to certifying to the OLD that the land should be returned in accordance with the Return of Lands Act. In fact, | Rthe DNR’s certification, pursuant to the rules laid out in the LAC, was made solely on the evidence presented by the succession. The OLD was not given notice prior to receiving the letter certifying that the land should be returned to the succession. The DNR did not dispute the lack of a contradictory hearing. Therefore, the DNR’s certification that the land be returned to the succession is not a decision or order in an adjudication proceeding. Thus, the district court could not obtain appellate jurisdiction and lacked jurisdiction to judicially review the OLD’s appeal of the DNR’s certification.

Having concluded that the district court did not have appellate jurisdiction over the OLD’s appeal, we also conclude that this court has no appellate jurisdiction. Our jurisdiction in this case is limited to the sole purpose of correcting the district court’s error of entertaining the petition for judicial review. Thus, we vacate the district court’s judgment and cannot consider the merits of this appeal. See Metro Riverboat Associates, Inc., 797 So.2d at 663.

CONCLUSION

For the foregoing reasons, we vacate the judgment of the district court and dismiss this appeal. The costs of this appeal are assessed to the Board of Commissioners of the Southeast Louisiana Flood Protection Authority-East, on behalf of/and the Orleans Levee District, in the amount of $4,123.50.

JUDGMENT VACATED; APPEAL DISMISSED.

      . The amendment also included that any applicant who is aggrieved by the OLD’s action may seek judicial review by filing suit in the Twenty-Fifth Judicial District Court.

      . This section of the LAC has been repealed; however, it was the applicable provision at the time that the succession submitted the application for certification.

      . We recognize that the fourth circuit has reached a different result in Vogt v. Board of Commissioners of Orleans Levee District, 98-2379 (La.App. 4th Cir.6/9/99), 738 So.2d 1142, writs denied, 99-2024, and 99-2025 (La.10/29/99), 748 So.2d 1166.