author: GERBER, J.

text:
    Alon RAHABI and Sharleen Wertheimer, Appellants, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellee.
    No. 4D10-846.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.
    Robin Bresky and Sophia Blair of Law Offices of Robin Bresky, Boca Raton, and Peter G. Walsh of Stabinski and Funt, P.A., Miami, for appellants.
    Helen Ann Hauser of Restani, Dittmar & Hauser, P.A., Coral Gables, for appellee.
   GERBER, J.

The insureds appeal the circuit court’s order denying their motion to recover their attorney’s fees from the Florida Insurance Guaranty Association (“FIGA”). The insureds argue that they were entitled to recover their attorney’s fees because FIGA denied their covered claim “by affirmative action.” § 631.70, Fla. Stat. (2010). We agree with the insureds and reverse.

The insureds filed a two-count complaint against FIGA for breach of contract and for declaratory relief. The insureds alleged that they provided FIGA with timely notice of their claim and performed all other conditions precedent for recovery, but FIGA refused to pay their claim.

FIGA filed a motion to dismiss the count for declaratory relief for failure to state a cause of action and to dismiss the action as a whole because the insureds allegedly “fail[ed] to comply with all post-loss obligations.” In response, the insureds voluntarily dismissed their count for declaratory relief. FIGA then filed a motion for extension of time to respond to the count for breach of contract because its counsel was “awaiting receipt of the claim file ... in order to determine [FIGA’s] appropriate response and/or defenses.” FIGA next filed a motion to compel the insureds to answer its discovery requests. Without obtaining a ruling on that motion, and without seeking a further extension of time to respond to the count for breach of contract, FIGA filed its answer to the count for breach of contract. In the answer, FIGA denied the insureds’ material allegations. FIGA also asserted eight affirmative defenses. In seven of those defenses, FIGA alleged that the insureds’ damages “[were] not caused by a covered loss.”

FIGA eventually demanded that the parties submit to an appraisal pursuant to the policy. FIGA later paid the appraisal award to the insureds.

The insureds then filed a motion to recover their attorney’s fees from FIGA pursuant to section 627.428(1), Florida Statutes (2010). That statute provides:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court ... shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

§ 627.428(1), Fla. Stat. (2010). See also Ivey v. Allstate Ins. Co., 774 So.2d 679, 684-85 (Fla.2000) (“[W]here an insurer pays policy proceeds after suit has been filed but before judgment has been rendered, the payment of the claim constitutes the functional equivalent of a confession of judgment or verdict in favor of the insured, thereby entitling the insured to attorney’s fees.”) (citation omitted).

The circuit court denied the insureds’ motion pursuant to section 681.70, Florida Statutes (2010), which provides that “[t]he provisions of s. 627.428 providing for an attorney’s fee shall not be applicable to any claim presented to [FIGA] ... except when [FIGA] denies by affirmative action, other than delay, a covered claim or a portion thereof.” The court reasoned that “[FIGA’s] affirmative defenses do not constitute an affirmative denial pursuant to Florida Statute § 631.70 ... [and the insureds] have not otherwise established an affirmative denial on the part of [FIGA].”

This appeal followed. The insureds argue that they were entitled to recover their attorney’s fees because FIGA denied their covered claim “by affirmative action.” § 631.70, Fla. Stat. (2010). Our review of this argument is de novo. See Fla. Ins. Guar. Ass’n v. Smothers, 65 So.3d 541, 542 (Fla. 4th DCA 2011) (“We review the trial court’s interpretation of sections 631.70 and 627.428 de novo.”) (emphasis and citation omitted).

We conclude that FIGA denied the insureds’ claim “by affirmative action.” § 631.70, Fla. Stat. (2010). FIGA’s seven affirmative defenses alleged that the insureds’ damages “were not caused by a covered loss.” By alleging that the insureds’ damages “[were] not caused by a covered loss,” FIGA denied the insureds’ claim “by affirmative action.” Cf. Fla. Ins. Guar. Ass’n v. Gustinger, 390 So.2d 420, 421 (Fla. 3d DCA 1980) (FIGA’s affirmative defense contending that the insured’s claim for attorney’s fees “does not come within the definition of ‘covered claim’” constituted the “deni(al) by affirmative action, other than delay, (of) a covered claim” within the meaning of section 631.70) (other internal quotations omitted).

We distinguish this case from our recent decision in Florida Insurance Guaranty Association v. Ehrlich, — So.3d -, 2011 WL 1661386 (Fla. 4th DCA 2011). There, the insureds filed a claim with FIGA. A few weeks later, before FIGA investigated the claim, the insureds sued FIGA. Having had insufficient time to investigate the claim, FIGA sought two extensions of time to respond to the complaint. It then moved to stay the proceedings or dismiss the complaint pending completion of its investigation. The circuit court denied the motions and compelled FIGA to answer the complaint in ten days. Pursuant to that order, FIGA filed its answer and affirmative defense in which it claimed that the insureds had not complied with all conditions precedent to filing suit and, for that reason, no coverage existed. The parties later settled the underlying suit, and the insureds moved for an award of attorney’s fees. The insureds argued that FIGA’s filing of the affirmative defense was an “affirmative action” triggering FIGA’s obligation to pay attorney’s fees under section 631.70. The circuit court granted the insureds’ motion.

We reversed, holding that the insureds were not entitled to recover their attorney’s fees. We reasoned:

[FIGA’s] filing of an answer and affirmative defenses pursuant to a court order did not constitute a “denial” of [the insureds’] claim by affirmative action other than delay. [FIGA] was compelled to answer the complaint by the trial court; [FIGA] did not voluntarily deny the claim. Rather, [FIGA] simply asserted its legitimate defenses under the policy. Essentially, [FIGA] “delayed” paying the claim until it had sufficient time to investigate. At no time did [FIGA] explicitly deny the claim itself.

This case differs from Ehrlich. Here, FIGA never filed a motion to stay the proceedings to complete its investigation. Instead, FIGA filed a motion to dismiss because the insureds’ count for declaratory relief failed to state a cause of action and because the insureds allegedly “fail[ed] to comply with all post-loss obligations.” FIGA also moved for an extension of time to respond to the insureds’ count for breach of contract, not to complete its investigation, but because its counsel was “awaiting receipt of the claim file ... in order to determine [FIGA’s] appropriate response and/or defenses.” FIGA then moved to compel the insureds to answer its discovery requests. Without obtaining a ruling on that motion, and without seeking a further extension of time to respond to the count for breach of contract, FIGA filed its answer to the count for breach of contract. In the answer, FIGA did not allege merely that the insureds had not complied with all conditions precedent to filing suit such that no coverage existed. Instead, FIGA asserted eight affirmative defenses, seven of which alleged that the insureds’ damages “were not caused by a covered loss.” Thus, without the circuit court ever compelling FIGA to answer the complaint, and without FIGA requesting more time to “sufficiently” investigate the claim, FIGA explicitly denied the claim by alleging in seven affirmative defenses that the insureds’ damages “[were] not caused by a covered loss.” We interpret that action, in the context of FIGA’s overall course of conduct, as “denifal] by affirmative action.”

FIGA nevertheless contends that it was compelled to allege those affirmative defenses because the “failure to ... assert affirmative defenses [ ] would result in a waiver.” We disagree. We recognize that Florida Rule of Civil Procedure 1.140(h)(1) (2010) provides that “[a] party waives all defenses and objections that the party does not present either by motion ... or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).” However, Florida Rule of Civil Procedure 1.190(e) (2010) provides:

At any time in furtherance of justice, upon such terms as may be just, the court may permit any ... pleading ... to be amended.... At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties. '

In this situation, we reconcile rules 1.140(h)(1) and 1.190(e) to mean that if a defendant is without knowledge to present a defense in a responsive pleading, but later acquires such knowledge through due diligence, the court may permit the defendant to add that defense as long as the amendment does not affect the substantial rights of the plaintiff. See Wayne Creasy Agency, Inc. v. Maillard, 604 So.2d 1235, 1236 (Fla. 3d DCA 1992) (denial of leave to amend an answer is an abuse of discretion where the proffered amendment indicates that the defendant could prevail with the assertion of a properly available defense and the plaintiff would not be prejudiced by the amendment).

Applied here, if FIGA believed, as it did in Ehrlich, that it had insufficient time to investigate the claim, then it should have sought a motion for extension of time to respond to the complaint for that reason. If the circuit court denied that motion, then FIGA, as it did in Ehrlich, should have crafted its answer to avoid any allegation constituting a denial of the claim by affirmative action. Because FIGA did not do so here, but instead alleged in seven affirmative defenses that the insureds’ damages “[were] not caused by a covered loss,” we must conclude that the insureds are entitled to recover them attorney’s fees pursuant to sections 627.428(1) and 631.70. See Fla. Ins. Guar. Ass’n v. Messina, 69 So.3d 304 (Fla. 4th DCA 2011) (distinguishing Ehrlich and finding that FIGA denied coverage by affirmative action where FIGA filed an answer and affirmative defenses denying coverage for the claim and the amount of damages without a court order compelling an answer).

Based on the foregoing, we reverse the circuit court’s denial of the insureds’ motion for attorney’s fees. We remand for the circuit court to set an evidentiary hearing to determine “a reasonable sum as fees or compensation for the [insureds’] ... attorney prosecuting the suit.” See § 627.428(1), Fla. Stat. (2010).

Reversed and remanded.

DAMOORGIAN, J., and MARX, KRISTA, Associate Judge, concur.

      . We also remand for the circuit court to determine whether the insureds are entitled to recover their costs from FIGA pursuant to section 57.041(1), Florida Statutes (2010) ("The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment...."). The insureds requested such costs in their "Motion for Attorney’s Fees and Costs,” but the circuit court did not address that request in its "Order on Plaintiffs' Motion for Entitlement to Attorney's Fees.” Because the insureds’ request for costs is not properly before us, we decline to determine whether the insureds are precluded from recovering their costs pursuant to section 57.041 without a judgment, see Cheetham v. Brickman, 861 So.2d 82, 83 (Fla. 3d DCA 2003) ("[0]nly a prevailing party who recovers a judgment is entitled to recover costs under section 57.041.”), or whether the insureds are entitled to recover their costs pursuant to section 57.041 without a judgment just as they are entitled to recover their attorney’s fees pursuant to section 627.428(1) without a judgment. See Ivey, 774 So.2d at 684-85 ("[Wjhere an insurer pays policy proceeds after suit has been filed but before judgment has been rendered, the payment of the claim constitutes the functional equivalent of a confession of judgment or verdict in favor of the insured, thereby entitling the insured to attorney’s fees.”) (citation omitted).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Felix Martinez RICO, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2952.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.
    Felix Martinez Rico, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Felix Rico appeals an order denying as untimely his refiled rule 3.850 motion. Rico was not given a specific time to refile his motion with a proper oath either by this court following an appeal from the original denial or by the trial court. Rico refiled his motion with a proper oath on October 8, 2007, less than two weeks after this court dismissed his appeal. The October 8, 2007 motion relates back to the previous motion that was timely filed within the two-year time limit in rule 3.850(b). The trial court’s order is reversed and this case remanded for the court to consider the October 8, 2007 motion on the merits. See Armstrong v. State, 989 So.2d 1291 (Fla. 4th DCA 2008); Woods v. State, 963 So.2d 348, 349 (Fla. 4th DCA 2007); Jumper v. State, 903 So.2d 264 (Fla. 2d DCA 2005); Mendes v. State, 770 So.2d 202 (Fla. 4th DCA 2000).

MAY, C.J., POLEN and LEVINE, JJ., concur.


text:
    Felix A. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1474.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.
    Felix A. Smith, West Palm Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Felix A. Smith appeals an order denying his rule 3.800 motion for post-conviction relief as successive and barring him from any future filings. State v. Spencer, 751 So.2d 47 (Fla.1999). Smith argues that the trial court erred in finding his motion successive and when imposing the sanctions without first issuing an order to show cause. We agree and reverse.

As the State recognizes within its response to this court, if the trial court wants to bar Smith from filing further postconviction motions, it must follow the dictates of Spencer, and provide him with notice and an opportunity to respond through issuance of a show cause order. O’Berry v. State, 46 So.3d 105 (Fla. 4th DCA 2010). However, our review of the motion and the State’s response supports Smith’s position that his challenge to his drug offender probation is not successive and is facially sufficient. Jackson v. State, 47 So.3d 378 (Fla. 5th DCA 2010). The State concedes that the case should be remanded so that Smith’s drug offender probation can be converted to regular probation with any appropriate conditions, as determined by the trial court.

Within another point, Smith challenges a discrepancy between the oral and the written sentence with respect to his habitual offender sentencing. Though Smith previously raised this claim, he did so when this court had held that this type of sentencing error could not be raised in a rule 3.800(a) motion. Campbell v. State, 718 So.2d 886 (Fla. 4th DCA 1998). At the time there was conflict among the districts. The Florida Supreme Court has since resolved that conflict and held that a discrepancy between the oral and written sentence is an illegal sentence that can be raised in a rule 3.800(a) motion. Williams v. State, 957 So.2d 600 (Fla.2007). This record does not show that Smith’s claim was ever considered on the merits. Harris v. State, 995 So.2d 1128 (Fla. 4th DCA 2008). Consequently, it did not warrant the sanction imposed and the merits of the claim should be reviewed.

In sum, we reverse the order sanctioning Smith for filing successive and repetitive motions to correct an illegal sentence. We also reverse the order that rejected Smith’s claims as successive and remand the case for further consideration as discussed. If Smith is to be resentenced and the trial court will exercise discretion, at least in connection with the probationary terms, Smith has a right to be present and represented.

Reversed and Remanded.

GROSS, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    Stafford HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1559.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

The defendant argues that his conviction for robbery with a “weapon” should be reversed because the state presented evidence that the gun used in the robbery was not a firearm, but a toy gun. We agree with the defendant that such evidence, by itself, is insufficient to support a conviction for armed robbery with a “weapon.” Therefore, we reverse and remand for entry of judgment and resen-tencing on the lesser included offense of robbery.

The state charged the defendant with robbery with a weapon pursuant to section 812.13(2)(b), Florida Statutes (2009). That statute provides, “If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree.... ” In Dale v. State, 703 So.2d 1045, 1046 (Fla.1997), our supreme court stated that although section 812.13 fails to define the term “weapon,” the definition for that term contained in the Florida Standard Jury Instructions is a correct statement of the law. Standard Jury Instruction 15.1 (2009) defines a “weapon” to mean “any object that could be used to cause death or inflict serious bodily harm.”

In this case, the state did not introduce any evidence to show that the toy gun could be used to cause death or inflict serious bodily harm. While we appreciate that the victim did not know the gun was a toy and understandably was in fear, “Florida courts apply an objective test and look to the nature and actual use of the instrument and not to the subjective fear of the victim or intent of the perpetrator.” Williams v. State, 651 So.2d 1242, 1243 (Fla. 2d DCA 1995).

The state’s reliance on Gomez v. State, 496 So.2d 982 (Fla. 3d DCA 1986), is misplaced. There, the third district upheld a conviction for armed robbeiy with a weapon “because the toy gun ... was used to strike the robbery complainant several times.” Id. at 983. Here, however, the state’s evidence did not show that the defendant used the toy gun in any such manner.

Based on the foregoing, we are compelled to reverse, even though the defendant raised this argument for the first time on appeal. See F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003) (“[A]n argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime ... meets the requirement of fundamental error — i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.”).

We remand for the entry of judgment and resentencing on the lesser included offense of robbery pursuant to section 812.13(2)(c), Florida Statutes (2009) (“If in the course of committing the robbery the offender carried no ... weapon, then the robbery is a felony of the second degree .... ”). See Stanley v. State, 757 So.2d 1275, 1277-78 (Fla. 4th DCA 2000) (remanding for the entry of judgment and resentencing for the lesser included offense of robbery pursuant to section 812.13(2)(c) where the state failed to offer proof which would be necessary to convict the defendant of robbeiy with a “weapon”).

Reversed and remanded.

WARNER and DAMOORGIAN, JJ., concur.


author: ALTENBERND, Judge.

text:
    Philip MEHL, Petitioner, v. Kenneth S. TUCKER, Secretary, Department of Corrections, Respondent.
    No. 2D11-729.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2011.
    Philip Mehl, pro se.
    Jennifer Parker, General Counsel, and Beverly Bruster, Assistant General Counsel, Tallahassee, for Appellee.
   ALTENBERND, Judge.

Philip Mehl seeks review by certiorari of a circuit court order denying his petition for writ of habeas corpus. Mr. Mehl claims that the Department of Corrections has not properly calculated the jail credit that the sentencing court in Martin County awarded him. He filed his petition for writ of habeas corpus in the circuit where he was then confined without exhausting all of his administrative remedies with the Department. The circuit court dismissed the petition as premature, which is consistent with Pope v. State, 898 So.2d 258 (Fla. 3d DCA 2005) (upholding trial court’s dismissal of habeas petition where inmate failed to allege exhaustion of administrative remedies).

During the pendency of this certiorari proceeding, the supreme court disapproved Pope, ruling that a court may not sua sponte dismiss a petition for writ of habeas corpus on the ground that the inmate failed to allege administrative exhaustion. Henry v. Santana, 62 So.3d 1122, 1129 (Fla.2011), aff'g Santana v. Henry, 12 So.3d 843 (Fla. 1st DCA 2009). During the pendency of this proceeding, Mr. Mehl was also transferred to another correctional facility outside both the circuit in which he filed his petition and the jurisdiction of this court.

Under these circumstances, we deny his petition for writ of certiorari. This denial does not prevent Mr. Mehl from filing another petition in the circuit where he is currently confined, which petition will be governed by the supreme court’s decision in Henry.

Petition denied.

KELLY and CRENSHAW, JJ., Concur.


text:
    A.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4193.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The appellant appeals the trial court’s denial of his motion for judgment of dismissal on the charge of possession of a weapon at a school bus stop. The appellant argues there was insufficient evidence to prove that the unloaded BB gun seen on his person was a “weapon” under Florida law. We agree with the appellant and reverse.

The state charged the appellant under section 790.115(2)(a), Florida Statutes (2010), which provides that “[a] person shall not possess any firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13) ... on the property of any ... school bus stop _” (emphasis added). Section 790.001(13), Florida Statutes (2010), defines a “weapon” as “any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.” (emphasis added). “A ‘deadly weapon’ has generally been defined to be one likely to produce death or great bodily injury.” Dale v. State, 703 So.2d 1045, 1047 (Fla.1997) (citation omitted).

Thus, whether or not the unloaded BB gun seen on the appellant’s person was to be classed as “deadly” was a factual question to be resolved by the trial court. See id. (“Whether or not the weapon involved is to be classed as ‘deadly* is a factual question to be resolved by [the trier of fact].”). On that issue, the trial court announced its factual findings and legal conclusions at two points. In denying the appellant’s motion for judgment of dismissal at the close of all evidence, the trial court stated:

[W]hile there was no testimony that ... the BB gun itself[ ] was operable, there was testimony [from an investigating officer] that the [BB gun] could be used in a fashion such as a blunt object, or — I don’t want to say as commonly could be used but in a pistol-whipping situation. The Court has felt the weight of the [BB gun] literally. It does have substantial weight to it.
The Court believes that at this time, a cross-section of the community could differ as to whether it could cause serious bodily harm or not.

In finding the appellant guilty, the trial court stated:

[H]aving had the opportunity to handle the actual; well, I’ll call it a weapon, it does have weight, it does have a handle. And in our society there’s a term commonly used as being “pistol whipped.” So I[am] comfortable in the end concluding that beyond a reasonable doubt the BB pistol was indeed a weapon. It could be used in a blunt fashion, consistent with ... being pistol whipped. And if somebody pistol whipped with that item ... it would cause serious injury or ultimately death if used in such a fashion.

This appeal followed. Our review is de novo. See T.L.T. v. State, 53 So.3d 1100, 1102 (Fla. 4th DCA 2011) (the standard of review of a trial court’s denial of a motion for judgment of dismissal in a juvenile case is de novo).

We conclude that the evidence, taken in the light most favorable to the state, does not support a conviction. See id. (“If the evidence, taken in a light most favorable to the state does not support a conviction, the motion [for judgment of dismissal] must be granted.”). This case is virtually identical to our recent holding in K.C. v. State, 49 So.3d 841 (Fla. 4th DCA 2010):

While [the defendant’s] BB gun was introduced into evidence, there was no evidence that it was loaded and no testimony describing the BB gun’s operation or the nature and character of injuries it was capable of inflicting. The judge made a comment at the hearing concerning the BB gun’s considerable weight and observed that it might be used to pistol-whip someone. An object can qualify as a deadly weapon based upon the manner in which it is used during a crime. Thus, when used as a bludgeon, a BB gun may qualify as a “deadly weapon.” See Mitchell v. State, 698 So.2d 555 (Fla. 2d DCA) (holding BB gun used as a bludgeon that creates a gash on victim’s head could be found to be a deadly weapon so as to support aggravated battery conviction), approved, 703 So.2d 1062 (Fla.1997). Here, the BB gun was found in the defendant’s book bag and there was no evidence that the defendant used, or threatened to use, the BB gun as a bludgeon. We thus reverse the adjudication of delinquency.

Id. at 848 (other internal citations omitted). Here, the BB gun was seen on the appellant’s person and there was no evidence that the appellant used, or threatened to use, the BB gun “in a blunt fashion, consistent with ... being pistol whipped.” We thus conclude that the trial court should have granted the motion for judgment of dismissal on the charge of possession of a weapon at a school bus stop. We remand for the trial court to dismiss that charge.

Reversed and remanded.

WARNER and DAMOORGIAN, JJ., concur.


author: NORTHCUTT, Judge.

text:
    CORAL WOOD PAGE, INC.; Tina Woods, and Derek Woods, Appellants, v. GRE CORAL WOOD, LP, a Florida limited partnership, Appellee.
    No. 2D10-3685.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2011.

      Brett C. Powell and P. Brandon Perkins of The Powell Law Firm, P.A., Palmetto Bay, and Kristen -Dana Perkins, Fort Myers, for Appellants.
    Mark A. Silverman and David W. Black of Frank, Weinberg & Black, P.L., Plantation, for Appellee.
   NORTHCUTT, Judge.

Coral Wood Page, Inc., and Tina and Derek Woods appeal an adverse summary judgment awarding over $700,000 in damages to them landlord, GRE Coral Wood, LP. The circuit court granted the summary judgment after improperly shifting the burden to the nonmoving party. Accordingly, we reverse.

GRE owns a shopping center in which Coral Wood Page leased premises for a sports-themed restaurant and bar. The Woodses personally guaranteed the lease. Not long into the contract, GRE filed a multicount complaint for eviction and damages, including unpaid and accelerated rent under the lease. The tenants filed an answer with affirmative defenses, asserting . that GRE breached its covenant of quiet enjoyment and claiming a set-off for monies GRE allegedly owed. Specifically, the tenants alleged that GRE hired off-duty police officers to act as security for the common areas of the shopping center and that the officers harassed the tenants’ customers “by parking multiple marked police vehicles directly in front of the entrance of [the leased] premises and by stalking/harassing their customers by approaching customers as they exit the premises to conduct a visual inspection of each person in a menacing fashion.” The tenants also complained that GRE failed to correct the situation despite numerous requests. As a second affirmative defense, the tenants claimed a set-off for $21,000 that they alleged was due under a tenant improvement allowance in the lease.

After eviction was granted, GRE filed a motion for summary judgment on damages and an affidavit that set forth facts relating to the tenants’ breach of the lease and their failure to pay money owed under the lease. The affidavit was completely silent with regard to the facts alleged in the tenants’ affirmative defenses. At the summary judgment hearing, the circuit court agreed with GRE’s argument that summary judgment was warranted because the tenants did not file any affidavits or other evidence. This was error.

Summary judgment is proper only where the moving party shows conclusively that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Holl v. Talcott, 191 So.2d 40, 48 (Fla.1966); Fla. R. Civ. P. 1.510(c). When the nonmoving party has alleged affirmative defenses, the moving party must conclusively refute the factual bases for the defenses or establish that they are legally insufficient. Morroni v. Household Fin. Corp. III, 903 So.2d 311, 312 (Fla. 2d DCA 2005). “The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof.” Deutsch v. Global Fin. Servs., LLC, 976 So.2d 680, 682 (Fla. 2d DCA 2008). As we have mentioned, GRE wholly failed to address the affirmative defenses in the affidavit filed in support of summary judgment. Without question, therefore, GRE did not carry its burden by factually refuting the defenses.

On appeal, GRE challenges the legal sufficiency of the tenants’ first affirmative defense based on the alleged breach of the covenant of quiet enjoyment. “Absent any inconsistent express covenants to the contrary, every lease carries an implied covenant of peaceable and quiet enjoyment.” McClosky v. Martin, 56 So.2d 916, 918 (Fla.1951) (citing Hankins v. Smith, 103 Fla. 892, 138 So. 494 (1931)). GRE argues that the tenants could not maintain this defense without proving a claim of constructive eviction. That is incorrect. As this court has recognized, a tenant may claim damages based on a breach of the implied covenant of quiet enjoyment even where the landlord’s actions did not rise to the level of eviction and the tenant remained in possession. Carner v. Shapiro, 106 So.2d 87, 89 (Fla. 2d DCA 1958).

GRE also contends that the covenant of quiet enjoyment did not encompass the common areas that were patrolled by its security. This argument fails because the tenants alleged that the security force directly harassed their patrons and interfered with their use of the leased premises. In Camer, the tenants leased a portion of the first floor, and the landlord was found to have breached the covenant of quiet enjoyment by its remodeling of upper floors. 106 So.2d at 88. We also reject GRE’s assertion that it was not responsible for the actions of those it hired. “If a landlord authorizes acts to be done which cause substantial injury to the tenant in the peaceful enjoyment of the demised premises and such a result is the natural and probable consequence of the acts so authorized, the landlord is liable therefor.” Carner, 106 So.2d at 89 (quoting Winchester v. O’Brien, 266 Mass. 33, 164 N.E. 807, 809 (1929)).

Because GRE failed to demonstrate the absence of material fact pertaining to the tenants’ affirmative defenses, we reverse. See Orr v. Hammons, 682 So.2d 614 (Fla. 2d DCA 1996).

Reversed and remanded for further proceedings.

SILBERMAN, C.J., and WALLACE, J., Concur.


author: WHATLEY, Judge.

text:
    Gabriel KIRKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-6068.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2011.
    Gabriel Kirkland, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Gabriel Kirkland appeals the postconviction court’s order denying his timely motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for the postconviction court to strike the prison releasee reoffender designation from his sentences for battery on a law enforcement officer.

On April 13, 2009, Kirkland pleaded guilty to driving with a suspended license (count one), fleeing or attempting to elude (count two), four counts of battery on a law enforcement officer (BOLEO) (counts three through six), and resisting arrest with violence (count seven). Kirkland was sentenced to concurrent terms of five years’ imprisonment on counts one, two, and seven and as a prison releasee reoffen-der (PRR) to concurrent terms of five years’ imprisonment on counts three through six. However, the sentences on counts three through six were consecutive to those on counts one, two, and seven.

In his motion, Kirkland alleged that his sentences in counts three through six are illegal because he should not be subjected to PRR sentencing. In support of this allegation, Kirkland claimed that a court cannot impose a PRR sentencing enhancement for offenses not listed in section 775.082(9)(a)(l), Florida Statutes (2008). Kirkland further alleged that BOLEO is not enumerated in the PRR statute and does not constitute a forcible felony. See State v. Hearns, 961 So.2d 211, 219 (Fla. 2007); Allen v. State, 984 So.2d 656, 657 (Fla. 1st DCA 2008). As such, Kirkland claimed that his PRR treatment in counts three through six amounted to an illegal sentence and that a defendant cannot assent to an illegal sentence. See Gregory v. State, 997 So.2d 1287, 1288 (Fla. 3d DCA 2009). Accordingly, Kirkland requested that the court issue an order striking the PRR enhancements from counts three through six.

The postconviction court treated Kirkland’s motion as a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 8.800(a). The court recognized that BOLEO is not an enumerated offense under section 775.082(9)(a)(l) but found that Kirkland could still qualify as a PRR under the “catchall” provision if the qualifying offense(s) involved the use or threat of physical force or violence against an individual. See § 775.082(9)(a)(l)(o). The court attached the probable cause affidavit from Kirkland’s arrest, which indicates that Kirkland ran his vehicle into two police cars carrying four different officers. Based on this information, the court found that the evidence of the use or threat of physical force or violence against the officers was sufficient to qualify Kirkland as a PRR under section 775.082(9)(a)(l)(o) and denied Kirkland’s motion.

In response to an order from this court, the State conceded that the PRR enhancement was illegal and conceded that reversal and remand with directions to strike the PRR designation are required. Specifically, the State agreed with Kirkland’s argument based on Hearns, in which the Florida Supreme Court held that BOLEO is not a “forcible felony” for the purposes of violent career criminal sentencing because “ ‘the use or threat of physical force or violence against any individual’ is not a necessary element of the crime.” 961 So.2d at 216 (quoting Perkins v. State, 576 So.2d 1310, 1313 (Fla.1991)). The supreme court further held that “whether BOLEO is a qualifying offense must be answered consistently under both the VCC [violent career criminal] statute and the PRR statute.” Id. at 217. In Walker v. State, 965 So.2d 1281, 1283-84 (Fla. 2d DCA 2007), this court applied the reasoning set forth in Hearns and held that PRR sentencing is inapplicable to the crime of BOLEO. As BOLEO is not enumerated under section 775.082(9)(a)(l) and, pursuant to Hearns and Walker, does not fall within the “catchall” provision of section 775.082(9)(a)(l)(o), Kirkland’s classification as a PRR on counts three through six amounts to an illegal sentence.

Therefore, we reverse the postconviction court’s denial of Kirkland’s motion and remand for the court to strike the PRR designation from Kirkland’s sentences in counts three through six.

Reversed and remanded.

CASANUEVA and MORRIS, JJ., Concur.


text:
    In re Danny L. GUIDRY.
    No. 2011-B-1208.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Danny L. Guidry, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

UNDERLYING FACTS

Count I

In June 2006, respondent was arrested in Lafayette, Louisiana and charged with first offense DWI, possession of marijuana, and possession of cocaine. On December 6, 2007, the court issued a bench warrant for respondent’s arrest after he failed to appear for a scheduled hearing. On February 19, 2009, respondent completed the District Attorney’s pre-trial diversion program, following which the criminal charges were dismissed.

Count II

In April 2007, respondent was arrested in Oakbrook, Illinois and charged with driving under the influence of alcohol, speeding, and improper lane usage. | ¡.Respondent posted bond and was released. He failed to appear for a scheduled hearing on May 29, 2007, and a bench warrant was issued for his arrest. As of June 3, 2010, the warrant was still active.

DISCIPLINARY PROCEEDINGS

In November 2010, the ODC filed formal charges against respondent, alleging that by his conduct as set forth above, he has violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer).

Respondent filed an answer to the formal charges, in which he claimed that he does not currently practice law and has been “clean” for three years. He also provided documentary evidence that (1) he successfully completed a 90-day treatment program at Home of Grace, a “residential Christian recovery program” located in Mississippi, on November 30, 2007, and (2) he completed the pre-trial diversion program in relation to his June 2006 arrest on February 19, 2009. This matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee found the facts set forth in both counts of the formal charges were proven by clear and convincing evidence, noting that respondent admitted the | ¡¡substance of the factual allegations contained in both counts. In addition, the committee made the following factual findings:

Respondent completed a 90-day rehabilitation program at the Home of Grace and has not used alcohol or illegal substances since he entered the program more than three years ago. With respect to Count I, respondent completed the District Attorney’s pre-trial diversion program, and the charges have been dismissed. However, the charges in Illinois (subject of Count II) are still pending. The committee felt respondent was mistaken in his belief that the matter in Illinois had been resolved and that his driving privileges in Illinois had been reinstated. Clear and convincing evidence exists to show that a warrant was issued for respondent’s arrest after he failed to appear for a May 29, 2007 hearing in Illinois, and that warrant is still active. The committee also found respondent does not currently practice law and has no immediate plan to re-enter the practice of law, as he stated in his answer to the formal charges. Finally, the committee found no evidence that respondent’s conduct harmed any of his clients or any members of the public.

Based on these facts, the committee determined respondent’s conduct in both counts of the formal charges amounts to violations of Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. The committee also determined the baseline sanction for respondent’s misconduct is suspension.

In aggravation, the committee found only multiple offenses. In mitigation, the committee found the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, timely good faith effort to make restitution or to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, mental disability or chemical dependency including alcoholism or drug abuse, and remorse.

14After considering this court’s prior jurisprudence involving similar misconduct, the committee recommended respondent be suspended from the practice of law for one year and one day. The committee further recommended respondent be required to comply with specified conditions before seeking reinstatement.

Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings are not manifestly erroneous. The board also determined the committee correctly applied the Rules of Professional Conduct.

The board further determined respondent knowingly, if not intentionally, violated a duty owed to the public. While respondent caused no actual harm to his clients or the public, he posed a significant risk of serious harm to the public by driving while intoxicated. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction for respondent’s misconduct is suspension.

In aggravation, the board found a pattern of misconduct, multiple offenses, substantial experience in the practice of law (admitted 1996), and illegal conduct, including that involving the use of controlled substances. In mitigation, the board found the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, personal or emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse.

In recommending a sanction, the board relied upon In re: Baer, 09-1795 (La.11/20/09), 21 So.3d 941. In Baer, an attorney drove while intoxicated on two | .¡occasions, for which she was suspended from the practice of law for one year and one day. In discussing an appropriate sanction, the court applied the following analysis:

We have imposed sanctions ranging from actual periods of suspension to fully deferred suspensions in prior cases involving attorneys who drive while under the influence of alcohol. However, as a general rule, we tend to impose an actual suspension in those instances in which multiple DWI offenses are at issue, as well as in cases in which the DWI stems from a substance abuse problem that appears to remain unresolved. Both of these concerns are implicated in the instant case. Therefore, we find it is appropriate to impose a one year and one day suspension, with no portion of the suspension deferred. [Internal footnote omitted.]

The board concluded that both of the court’s concerns set forth in Baer are present in the instant matter: (1) respondent engaged in multiple instances of driving while intoxicated, and (2) it is unclear from the record whether respondent has resolved his substance abuse problem. With respect to the latter, the board pointed out that respondent has provided no evidence, other than his testimony, to show he has recently taken steps to address his substance abuse problem and will continue to remain sober. Therefore, the board reasoned that respondent should be required to complete the reinstatement process and prove his fitness by clear and convincing evidence before returning to the practice of law.

Accordingly, the board recommended respondent be suspended from the practice of law for one year and one day.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

| ^DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, respondent was twice arrested for driving under the influence of drugs and/or alcohol. He was also arrested for possession of illegal drugs. Based on these facts, respondent has violated the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent knowingly violated duties owed to the public and the legal profession. While he caused no actual harm, the potential for significant harm to the public existed. The baseline sanction for respondent’s misconduct is 17suspension. The record supports the aggravating and mitigating factors found by the disciplinary board.

Although the hearing committee found respondent has not used alcohol or illegal drugs since he entered the 90-day treatment program at Home of Grace, we agree with the board that respondent has provided no evidence, other than his own testimony, that this is, in fact, true. He is not active in Alcoholics Anonymous or a similar support group and does not participate in the Lawyers Assistance Program. Furthermore, he is not currently being tested for alcohol and drug use.

Suspending respondent from the practice of law for more than one year will require him to show his compliance with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E) before being reinstated to the practice of law. Particularly relevant to respondent’s situation is Rule XIX, § 24(E)(3), which states:

If the lawyer was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the lawyer’s misconduct, the lawyer shall not be reinstated or readmitted unless:
(a) the lawyer has pursued appropriate rehabilitative treatment;
(b) the lawyer has abstained from the use of alcohol or other drugs for at least one year; and
(c) the lawyer is likely to continue to abstain from alcohol or other drugs.

We find respondent should be required to show compliance with Rule XIX, § 24(E), and in particular subsection (3), before being allowed to return to the practice of law. Accordingly, we will adopt the disciplinary board’s | ^recommendation and suspend respondent from the practice of law for one year and one day.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Danny L. Guidry, Louisiana Bar Roll number 24112, be and he hereby is suspended from the practice of law for one year and one day. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion; Justice John L. Weimer recused.

      . Respondent has been ineligible to practice law since 2007 for failing to pay bar dues, failing to pay the disciplinary assessment, and failing to comply with mandatory continuing legal education requirements.

      . At the formal hearing, respondent testified that he received a letter stating he had been convicted of DWI, his driving privileges had been suspended, and he could apply for reinstatement of his driving privileges when his suspension ended. Respondent also claimed he applied for and was granted a reinstatement of his driving privileges in Illinois. Respondent failed to submit documentary evidence of either of these assertions for the court's review. However, the record does contain documents indicating that the charges against respondent are “inactive” and that “confirmation of summary suspension” occurred on May 3, 2007.

      . In fact, both respondent and the ODC filed concurrences, indicating their acceptance of the committee’s findings and recommended sanction.

      . In his testimony before the committee, respondent indicated he maintains his sobriety through his religious faith. He also indicated he is not currently subjected to random drug and alcohol testing.

      . We strongly encourage respondent to avail himself of the resources of the Lawyers Assistance Program. This court will carefully review respondent’s continuing efforts at rehabilitation if and when he applies for reinstatement after serving his suspension.


text:
    In re Hollis SHEPHERD.
    No. 2011-B-1626.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

It The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent handled a eon-cursus proceeding when he was not competent to do so. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Hollis Shepherd, Louisiana Bar Roll number 25501, be publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Susan Huey LAFAYE.
    No. 2011-B-1553.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

h The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent received a check payable to a former tenant, but withheld the check without notifying him and used the check to gain an advantage in her civil suit against him. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Susan Huey Lafaye, Louisiana Bar Roll number 15005, be publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Lorraine A. DUPONT.
    No. 2011-B-1510.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|, The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent practiced law while ineligible to do so. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Lorraine A. Dupont, Louisiana Bar Roll number 1051, be suspended from the practice of law for a period of six months, followed by a one-year period of unsupervised probation, which shall commence from the date respondent and the ODC execute a formal probation plan.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Return of Bar Exam Fees to Eric BURGER.
    No. 2011-OB-1628.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   ORDER

| T Considering the application of petitioner, ERIC BERGER;

IT IS HEREBY ORDERED that the fees petitioner ERIC BERGER remitted for the July 2011 bar examination be returned to him as soon as possible, but no later than 60 days.

/s/ Jeffrey P. Victory

/s/ Justice, Supreme Court of Louisiana


text:
    In re Melanie Smith DALEY.
    No. 2011-B-2089.
    Supreme Court of Louisiana.
    Sept. 28, 2011.
   ORDER

| ] Considering the Joint Petition for Interim Suspension filed by respondent, Melanie Smith Daley, and the Office of Disciplinary Counsel,

IT IS ORDERED that Melanie S. Smith, Louisiana Bar Roll number 27883, also known as Melanie Smith Daley, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

/s/ Greg G. Guidry

/s/ Justice, Supreme Court of Louisiana


text:
    STATE ex rel. Edward R. WYNN v. STATE of Louisiana.
    No. 2011-KH-1974.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re Wynn, Edward R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 272-897.

Relator represents that the district court has failed to act timely on a note of intent to take writs filed on or about April 28, 2011. If relator’s representation is correct, the district court is ordered to consider and act on the notice. If relator’s representation is incorrect, the district is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    STATE ex rel. Richard LAY v. STATE of Louisiana.
    No. 2010-KH-2026.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Lay, Richard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 383759; to the Court of Appeal, First Circuit, Nos. 2010 KW 0794, 2010 KW 0796.

Denied.

WEIMER, J., recused.


text:
    HIT OR MISS, LLC, et al. v. Gregory J. LOGAN, et al. Edwin K. Hunter, et al. v. Thomas Glynn Blazier.
    No. 2011-CC-1254.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Blazier, Thomas Glynn; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, Nos. 2010-5962, 2009-2230; to the Court of Appeal, Third Circuit, Nos. CW 11-00531, CW 11-00556.

Denied.


text:
    Tommy BOLTON, Individually and as Natural Tutor of his Minor Children, Luke Thomas Bolton and Erica Lynn Bolton v. WILLIS-KNIGHTON MEDICAL CENTER and Dr. Edward Paul.
    No. 2011-CC-2048.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Paul, Dr. Edward; Willis-Knigh-ton Medical Center et al.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 1, No. 543,842; to the Court of Appeal, Second Circuit, No. 46951-CW.

Denied.


text:
    Tommy BOLTON, Individually and as Natural Tutor of his Minor Children, Luke Thomas Bolton and Erica Lynn Bolton v. WILLIS-KNIGHTON MEDICAL CENTER and Dr. Edward Paul.
    No. 2011-CC-2049.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Paul Dr., Edward; Willis-Knigh-ton Medical Center et al.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 1, No. 543,842; to the Court of Appeal, Second Circuit, No. 46949-CW.

Denied.


text:
    STATE of Louisiana v. Corey CELESTINE.
    No. 2011-KK-2081.
    Supreme Court of Louisiana.
    Sept. 26, 2011.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 504-656; to the Court of Appeal, Fourth Circuit, No. 2011-K-1237.

Writ granted. Reversed and remanded. The waiver of defendant’s constitutional right to trial by jury was valid. It occurred no later than forty-five days before trial, and it was made by defense counsel in the defendant’s presence in open court. State v. McNair, 11-1285 (La.6/21/11), 64 So.3d 205. The record also contains a sufficient affirmative showing that defendant was adequately informed of his rights to support a finding that the waiver was made knowingly and intelligently. Therefore, defendant’s waiver was irrevocable, and the trial judge did not abuse his discretion by denying defendant’s motion to reinstate jury trial. The court of appeal is reversed, and the ruling of the trial court is reinstated. The case is remanded to the trial court for further proceedings.

JOHNSON and WEIMER, JJ., would deny.


text:
    STATE of Louisiana v. Freddie FIELDS.
    No. 2011-KK-2076.
    Supreme Court of Louisiana.
    Sept. 26, 2011.
   In re Fields, Freddie; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 84th Judicial District Court Div. C, No. 363-848; to the Court of Appeal, Fourth Circuit, No. 2011-K-1005.

Stay denied; writ denied.


text:
    STATE of Louisiana v. Gary GENNARO.
    No. 2011-KK-2092.
    Supreme Court of Louisiana.
    Sept. 27, 2011.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 506-541; to the Court of Appeal, Fourth Circuit, No. 2011-K-1262.

Writ granted. Because the officer, who was alone, in plain clothes, driving an unmarked police unit, and who did not brandish a weapon, testified that he had asked the defendant walking along the sidewalk to stop and come over to the police unit, but that he did not order the defendant to do so, we find no error in the district court’s apparent factual conclusion that an actual stop was not imminent when the defendant discarded the contraband. The officer had not yet used any force, much less come upon the defendant “with such force that, regardless of [his] attempts to flee or elude the encounter, an actual stop ... [was] virtually certain.” State v. Tucker, 626 So.2d 707, 712 (La.1993); see also State v. Jackson, 00-3083 (La.3/15/02), 824 So.2d 1124. Because the defendant discarded the contraband before, rather than after, the officer pursued and then physically restrained him, the officer had legally seized the evidence. The decision of the court of appeal is reversed, and the ruling of the district court on the motion to suppress is reinstated.

JOHNSON, J„ would deny.

KNOLL, J., would grant and reinstate the district court’s ruling.


text:
    STATE ex rel. Donald BARNES v. STATE of Louisiana.
    No. 2010-KH-2305.
    Supreme Court of Louisiana.
    Sept. 28, 2011.
   In re Barnes, Donald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 402-960; to the Court of Appeal, Fourth Circuit, No. 2010-K-llll.

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


text:
    STATE ex rel. Marvin BROWN v. STATE of Louisiana.
    No. 2010-KH-2320.
    Supreme Court of Louisiana.
    Sept. 28, 2011.
   In re Brown, Marvin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Madison, 6th Judicial District Court Div. A, Nos. 60196, 67920, 67921, 67919, 67922; to the Court of Appeal, Second Circuit, No. 45990-KH.

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


text:
    STATE ex rel. Louis MITCHELL v. STATE of Louisiana.
    No. 2010-KH-2334.
    Supreme Court of Louisiana.
    Sept. 28, 2011.
   In re Mitchell, Louis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 09-WCR-178.

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


text:
    STATE of Louisiana v. Michael ALLEN.
    No. 2011-KD-2098.
    Supreme Court of Louisiana.
    Sept. 28, 2011.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 490-990; to the Court of Appeal, Fourth Circuit, No. 2011-K-1340.

Denied.


text:
    Laurie JENKINS v. Larry G. STARNS.
    No. 2011-C-1170.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Starns, Larry G.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. C, No. 121,879; to the Court of Appeal, First Circuit, No. 2010 CA 1149.

Granted.


text:
    3201 ST. CHARLES CONDOMINIUM HOMEOWNERS ASSOCIATION, INC., etc. v. CERTAIN UNDERWRITERS AT LLOYD’S LONDON.
    No. 2011-CC-1050.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Certain Underwriters at Lloyd’s London Subscribing to Policy No. 252867; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 2009-7165; to the Court of Appeal, Fourth Circuit, No. 2011-C-0156.

Granted; remanded to the court of appeal for briefing, argument and full opinion.

KNOLL, J., would deny.


text:
    James L. HALEY v. WAL-MART STORES, INC.
    No. 2011-CC-1091.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Wal-Mart Stores Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. E, No. 127,457; to the Court of Appeal, First Circuit, No. 2011 CW 0277.

Writ granted. There are no disputed issues of material fact and plaintiff failed to establish that he will be able to satisfy his evidentiary burden of proof at trial. Therefore, defendant is entitled to judgment as a matter of law; accordingly, the judgment of the District Court is reversed. The motion for summary judgment filed by Wal-Mart Stores, Inc. is hereby granted. Plaintiffs case is hereby dismissed with prejudice.

JOHNSON, J., dissents.


text:
    Wanda WAGNER v. J. William SHERAR, et al., United Services Automobile Association.
    No. 2011-CC-1196.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re United Services Automobile Association; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 2009-15981; to the Court of Appeal, First Circuit, No. 2001 CW 0510.

Writ granted. There are no disputed issues of material fact and plaintiff failed to establish that she will be able to satisfy her evidentiary burden of proof at trial. Therefore, defendants are entitled to judgment as a matter of law; accordingly, the judgment of the District Court is reversed. The motion for summary judgment filed by defendants is hereby granted. Plaintiffs’ case is hereby dismissed with prejudice.

JOHNSON, J., dissents.

CLARK, J., would deny.


text:
    STATE ex rel. Craig JONES v. STATE of Louisiana.
    No. 2011-KH-1406.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Jones, Craig; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. C, No. 10-239261; to the Court of Appeal, Third Circuit, No. KH 11-00675.

Granted for the sole purpose of remanding the case to the district court and ordering it to rule on the merits of relator’s pro se motion for bond reduction. See State v. Melon, 95-2209 (La.9/22/95), 660 So.2d 466, 467 (“[L]ower courts must ... accept and consider [pro se] filings from represented defendants in a pre-verdict context whenever doing so will not lead to confusion at trial”).

VICTORY, KNOLL and CLARK, JJ., would deny.


text:
    STATE ex rel. Brandon ALEXANDER v. STATE of Louisiana.
    No. 2011-KH-1431.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Alexander, Brandon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. C, No. 10-239080; to the Court of Appeal, Third Circuit, No. KH 11-00738.

Granted for the sole purpose of remanding the case to the district court and ordering it to rule on the merits of relator’s pro se motions. See State v. Melon, 95-2209 (La.9/22/95), 660 So.2d 466, 467 (“[L]ower courts must ... accept and consider [pro se] filings from represented defendants in a pre-verdict context whenever doing so will not lead to confusion at trial”).

VICTORY, KNOLL and CLARK, JJ., would deny.


text:
    STATE ex rel. Ivory DYER v. STATE of Louisiana.
    No. 2011-KH-1648.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Dyer, Ivory; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 05-10-0382; to the Court of Appeal, First Circuit, No. 2011 KW 0869.

Granted for the sole purpose of remanding the case to the district court and ordering it to rule on the merits of relator’s pro se motion for bond reduction. See State v. Melon, 95-2209 (La.9/22/95), 660 So.2d 466, 467 (“[L]ower courts must ... accept and consider [pro se] filings from represented defendants in a pre-verdict context whenever doing so will not lead to confusion at trial”).

VICTORY, KNOLL and CLARK, JJ., would deny.


text:
    STATE ex rel. Johnny Ray SUMMAGE v. STATE of Louisiana.
    No. 2011-KH-2114.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Summage, Johnny Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. E, No. 94,510-A.

Relator represents that the district court has faded to act timely on a writ of mandamus filed originally on or about February 14, 2011 and then again on June 23, 2011. If relator’s representation is correct, the district court is ordered to consider and act on the mandamus. If relator’s representation is incorrect, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    In re Peter R. CHASSAIGNAC.
    No. 2010-OB-2569.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Chassaignac, Peter R.; — Plaintiff; Applying For Petition for Appointment of a Commissioner.

Petition for admission is denied.

KNOLL and WEIMER, JJ., would grant conditional admission.


text:
    In re Appeal of DECISION OF DISCIPLINARY BOARD NO. 10-PDB-124.
    No. 2011-OB-1751.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Jackson, George; — Plaintiff; Applying For Appeal of Decision of Disciplinary Board, No. 10-PDB-124.

Not considered, not timely filed.


text:
    Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 10-PDB-076.
    No. 2011-OB-1563.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Taylor, Arthur; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board, No. 10-PDB-076.

Leave to appeal denied.


text:
    Shannon ALEXANDER v. Edward A. DUFRESNE, Jr., et al.
    No. 2011-CP-1499.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Alexander, Shannon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 672-133; to the Court of Appeal, Third Circuit, No. CW 11-00100.

Not considered. Not timely filed. See Supreme Court Rule X, Section 5.

GUIDRY, J., recused.


text:
    STATE ex rel. Allen NGUYEN v. STATE of Louisiana.
    No. 2010-KH-1876.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Nguyen, Allen; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 99-2732; to the Court of Appeal, Fifth Circuit, No. 10-KH-512.

Denied.


text:
    STATE ex rel. Gregory NAVARRE v. STATE of Louisiana.
    No. 2010-KH-1936.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Navarre, Gregory; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 78517.

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


text:
    STATE ex rel. Laxavier JONES v. STATE of Louisiana.
    No. 2010-KH-1970.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Jones, Laxavier; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 07F2281; to the Court of Appeal, Second Circuit, No. 45,-769-KA.

Denied.


text:
    STATE ex rel. Hector LEYVA-MARTINEZ v. STATE of Louisiana.
    No. 2010-KH-1982.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Leyva-Martinez, Hector; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 13551-04; to the Court of Appeal, Third Circuit, No. CW 10-00772.

Denied.


text:
    Charles E. LEWIS v. Richard L. STALDER, Secretary, Department of Public Safety & Corrections, James LeBlanc, Warden, Leslie Schmidt, Director of Nursing.
    No. 2010-CI-2140.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Lewis, Charles E.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 563,229; to the Court of Appeal, First Circuit, No. 2010 CA 0143.

Denied.


text:
    STATE ex rel. Arlen BROWN v. STATE of Louisiana.
    No. 2010-KH-2144.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Brown, Arlen; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. A, No. 10949; to the Court of Appeal, First Circuit, No. 2010 KW 0703.

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


text:
    STATE ex rel. Mario Devon STEWART v. STATE of Louisiana.
    No. 2010-KH-2145.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Stewart, Mario Devon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 233,671; to the Court of Appeal, Second Circuit, No. 45,-333-KA.

Denied.


text:
    STATE ex rel. Darrel A. BRAUN v. STATE of Louisiana.
    No. 2010-KH-2150.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Braun, Darrel A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, Nos. 06-2287, 06-3869; to the Court of Appeal, Fifth Circuit, Nos. 10-KH-521,10-KH-667.

Denied.


text:
    STATE ex rel. Oscar TUESNO v. STATE of Louisiana.
    No. 2010-KH-2151.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Tuesno, Oscar; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 338-479; to the Court of Appeal, Fourth Circuit, No. 2010-K-1176.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. State v. Gedric, 99-1213 (La.App. 1 Cir. 6/3/99), 741 So.2d 849; Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Dennis D. THOMAS v. STATE of Louisiana.
    No. 2010-KH-2152.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Thomas, Dennis D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 248,138; to the Court of Appeal, Second Circuit, No. 45,-884-KH.

Denied.


text:
    STATE ex rel. Eric PERRY v. STATE of Louisiana.
    No. 2010-KH-2153.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Perry, Eric; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 383-914; to the Court of Appeal, Fourth Circuit, No. 2010-K-1128.

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


text:
    STATE ex rel. Fredrick R. WILSON v. STATE of Louisiana.
    No. 2010-KH-2154.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Wilson, Frederick R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-07-0280; to the Court of Appeal, First Circuit, No. 2010 KW1096.

Denied.


text:
    STATE ex rel. Kenneth HURST v. STATE of Louisiana.
    No. 2010-KH-2156.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Hurst, Kenneth; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, Nos. 03-7580, OS-7651, 04-359; to the Court of Appeal, Fifth Circuit, No. 10-KH-565.

Denied.


text:
    STATE ex rel. Patrick McCLENDON v. STATE of Louisiana.
    No. 2010-KH-2194.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re McClendon, Patrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. H, No. 93-CR1-54452; to the Court of Appeal, First Circuit, No. 2010 KW 1042.

Denied.


text:
    STATE ex rel. Ronnie CHESTER v. STATE of Louisiana.
    No. 2010-KH-2198.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Chester, Ronnie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 70590; to the Court of Appeal, First Circuit, No. 2010 KW 1065.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030; La.C.Cr.P. art. 930.4(D).

WEIMER, J., recused.


text:
    STATE ex rel. Francis ZACHARY v. STATE of Louisiana.
    No. 2010-KH-2202.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Zachary, Francis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. B, No. 33,699.

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


text:
    STATE ex rel. Donald WEATHERSPOON v. STATE of Louisiana.
    No. 2010-KH-2203.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Weatherspoon, Donald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, Nos. 98-6881, 99-0094, 99-1659.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 98-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Willie WILBON v. STATE of Louisiana.
    No. 2010-KH-2208.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Wilbon, Willie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 456-147; to the Court of Appeal, Fourth Circuit, No. 2010-K-1100.

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


text:
    STATE ex rel. Joseph V. FOSTER, Jr. v. STATE of Louisiana.
    No. 2010-KH-2232.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Foster Jr., Joseph V.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Desoto, 42nd Judicial District Court Div. A, No. 78,649; to the Court of Appeal, Second Circuit, No. 45,-877-KH.

Denied.


text:
    STATE ex rel. Bobby Allen SMITH v. STATE of Louisiana.
    No. 2010-KH-2233.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Smith, Bobby Allen; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 16643-94; to the Court of Appeal, Third Circuit, No. KH 10-00617.

Denied.


text:
    STATE ex rel. Larry Wayne SMITH v. STATE of Louisiana.
    No. 2010-KH-2307.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Smith, Larry Wayne; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. C8638-1-A; to the Court of Appeal, Third Circuit, No. KH 10-22619.

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


text:
    STATE ex rel. Sugar Ray LEWIS v. STATE of Louisiana.
    No. 2010-KH-2319.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Lewis, Sugar Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 389-037; to the Court of Appeal, Fourth Circuit, No. 2010-K-1292.

Denied. See State ex rel. Brown v. State, 03-2568, (La.3/26/04), 870 So.2d 976; State ex rel. Degreat v. State, 98-0690 (La.7/2/98), 724 So.2d 205; State ex rel. Fleury v. State, 93-2898 (La.10/13/95), 661 So.2d 488.


text:
    STATE ex rel. Minous George LILLY, Jr. v. STATE of Louisiana.
    No. 2010-KH-2333.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Lilly Jr., Minous George; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Sabine, 11th Judicial District Court Div. C, No. 08-CR-65146; to the Court of Appeal, Third Circuit, No. KW10-00582.

Denied.


text:
    STATE ex rel. Vincent SMITH v. STATE of Louisiana.
    No. 2010-KH-2348.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Smith, Vincent; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 94-6830; to the Court of Appeal, Fifth Circuit, No. 10-KH-659.

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


text:
    STATE ex rel. Glen WELCH v. STATE of Louisiana.
    No. 2010-KH-2506.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Welch, Glen; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 02-96-0453; to the Court of Appeal, First Circuit, No. 2010 KW 1143.

Denied.


text:
    STATE ex rel. Arnold CURTIS v. STATE of Louisiana.
    No. 2010-KH-2512.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Curtis, Arnold; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. C, No. 08-F-2394; to the Court of Appeal, Second Circuit, No. 46,-022-KH.

Denied.


text:
    STATE of Louisiana v. Shawn C. PETERS.
    No. 2011-K-0494.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Peters, Shawn C.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 476-290; to the Court of Appeal, Fourth Circuit, No. 2010-KA-0326.

Denied.


text:
    STATE of Louisiana v. Eric Joseph SMITH.
    No. 2011-K-0503.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Smith, Eric Joseph; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. B, No. 296,584; to the Court of Appeal, Third Circuit, No. KA 10-830.

Denied.


text:
    STATE of Louisiana v. Crystal REED.
    No. 2011-KO-0509.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Reed, Crystal; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 06-3226; to the Court of Appeal, Fifth Circuit, No. 10-KA-527.

Denied.


text:
    STATE of Louisiana v. Wilford ROBERTS, Jr.
    No. 2011-KO-0511.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Roberts Jr., Wilford; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 488-741; to the Court of Appeal, Fourth Circuit, Nos. 2010-KA-1091, 2010-K-1299.

Denied.


text:
    STATE of Louisiana v. Arthur A. DEAN.
    No. 2011-K-0512.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Dean, Arthur A.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 490-153; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1025.

Denied.


text:
    STATE of Louisiana v. Jeremy LANDRY.
    No. 2011-KO-0513.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Landry, Jeremy; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. B, No. 22441; to the Court of Appeal, First Circuit, No. 2010 KA 1278.

Denied.


text:
    STATE of Louisiana v. Ghazir G. LACAYO.
    No. 2011-KO-0517.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Lacayo, Ghazir G.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 415424; to the Court of Appeal, First Circuit, No. 2010 KA 1119.

Denied.


text:
    STATE of Louisiana v. Ronald K. BICKHAM.
    No. 2011-KO-0524.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Bickham, Ronald K.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 447504; to the Court of Appeal, First Circuit, No. 2010 KA 1150.

Denied.


text:
    STATE of Louisiana v. Louis BRADY.
    No. 2011-KO-0525.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Brady, Louis; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 07-08-0074; to the Court of Appeal, First Circuit, No. 2010 KA 1252.

Denied.


text:
    STATE of Louisiana v. Donald K. SWANZY.
    No. 2011-K-0553.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Swanzy, Donald K.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 484-338; to the Court of Appeal, Fourth Circuit, No. 2010-KA-0878.

Denied.


text:
    STATE of Louisiana v. Shanzelle LANDRY.
    No. 2011-K-0556.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Landry, Shanzelle; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 489-569; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1225.

Denied.


text:
    STATE of Louisiana v. Alvin C. HYMAN.
    No. 2011-K-0558.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Hyman, Alvin C.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 06-4171; to the Court of Appeal, Fifth Circuit, No. 10-KA-335.

Denied.


text:
    STATE of Louisiana v. Rodney J. SHANNON.
    No. 2011-K-0559.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Shannon, Rodney J.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 08-2993; to the Court of Appeal, Fifth Circuit, No. 10-KA-580.

Denied.


text:
    STATE of Louisiana v. Cody WRIGHT.
    No. 2011-K-0560.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Wright, Cody; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 07-6509; to the Court of Appeal, Fifth Circuit, No. 10-KA-577.

Denied.


text:
    STATE ex rel. Louis STEMLEY v. STATE of Louisiana.
    No. 2011-KH-0782.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Stemley, Louis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 502-898; to the Court of Appeal, Fourth Circuit, No. 2011-K-0113.

Denied. Moot.


text:
    STATE of Louisiana v. Robert PITTMAN and Lester Allen.
    No. 2011-KK-1332.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Allen, Lester; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 497-946; to the Court of Appeal, Fourth Circuit, No. 2011-K-0484.

Denied.


text:
    Matthew J. HILLMAN, et al. v. SOUTHWEST LOUISIANA HOSPITAL ASSOCIATION d/b/a Lake Charles Memorial Hospital.
    No. 2011-CC-1322.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2010-004616; to the Court of Appeal, Third Circuit, No. CW 11-00591.

Denied.


text:
    Melvina KELLY v. T.J. MAXX and Zurich American Insurance Company.
    No. 2011-C-1321.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Kelly, Melvina; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation Dist. 7, No. 08-22447; to the Court of Appeal, Fifth Circuit, No. ll-CA-32.

Denied.


text:
    Linda LEE v. NEW HAMPSHIRE INSURANCE COMPANY, Primero Services, Inc., d/b/a Service Master.
    No. 2011-C-1320.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Lee, Linda; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 8, No. 09-00914; to the Court of Appeal, Fourth Circuit, No. 2010-CA-1711.

Denied.


text:
    MALONEY GAMING MANAGEMENT, LLC v. PARISH OF ST. TAMMANY.
    No. 2011-CC-1319.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Maloney Gaming Management, LLC; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2010-16634; to the Court of Appeal, First Circuit, No. 2011 CW 0450.

Denied.


text:
    LOUISIANA MORTGAGE COMPANY v. Kathryn W. LANDRY.
    No. 2011-CC-1297.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Landry, Kathryn W.; — Defendant; Applying For Supervisory and/or Remedíal Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. C593997; to the Court of Appeal, First Circuit, No. 2011 CW 0211.

Denied.


text:
    STATE ex rel. John GUSTAVE, Jr. v. STATE of Louisiana.
    No. 2011-KH-1264.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Gustave Jr., John; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 10-2973; to the Court of Appeal, Fifth Circuit, No. 11-K-56.

Denied.


text:
    Peterson M. YOKUM, Polly Elizabeth Anderson, Vieux Carre Property Owners, Residents & Associates, Inc., and French Quarter Citizens for the Preservation of Residential Quality v. NICHOLAS S. KARNO II, INC. d/b/a Old Opera House; Karno Companies, Inc.; James River Insurance Company; TUV Insurance Company; Mintz & Mintz Realty, LLC; 544 Funky, LLC d/b/a Funky 544 Rhythm and Blues Café; Anna Medo; Jude Marullo; and XYZ Insurance Company.
    No. 2011-OC-1217.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Nicholas S. Karno II, Inc. D/B/A Old Opera House; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2009-6340; to the Court of Appeal, Fourth Circuit, No. 2011-CA-231.

Denied.


text:
    BIG MITSUBISHI, LLC v. Rowland B. STALTER and HUB International Gulf South Limited.
    No. 2011-CC-1195.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re HUB International Gulf South Limited; Stalter, Rowland B. et al.; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 578647; to the Court of Appeal, First Circuit, No. 2011 CW 309.

Denied.

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


text:
    LOUISIANA DEPARTMENT OF INSURANCE through James J. DONELON, Commissioner of Insurance v. Steve J. THERIOT, Louisiana Legislative Auditor for the State of Louisiana, the Louisiana Legislature through the Legislative Audit Advisory Council, Honorable John N. Kennedy, Treasurer of the State of Louisiana and Honorable Angele Davis, Commissioner of Administration for the State of Louisiana.
    No. 2011-C-1139.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Louisiana Legislature; Theriot, Auditor Steve J. et al.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 572,609; to the Court of Appeal, First Circuit, No. 2010 CA 69.

Denied.

JOHNSON, VICTORY and KNOLL, JJ., would grant.


text:
    CHOICE PROFESSIONAL OVERNIGHT COPY SERVICE, INC. v. David M. GALEAS, Jason Broussard, and Nathan Martin.
    No. 2011-C-1346.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Choice Professional Overnight Copy Service, Inc.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 10-10194; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0034.

Denied.


text:
    FOUNDATION MATERIALS, INC. v. CARROLLTON MID-CITY INVESTORS, L.L.C. and Harmon Construction, L.L.C.
    No. 2011-C-1344.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Harmon Construction L.L.C.;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2007-14496; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0542.

Denied.

VICTORY, J., would grant.


text:
    CHRISTUS HEALTH CENTRAL LOUISIANA d/b/a Christus St. Frances Cabrini Hospital (Employee—John Taylor) v. LOUISIANA WORKERS’ COMPENSATION CORPORATION et al.
    No. 2011-CC-1341.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Bamburg Steel Buildings Inc.; Louisiana Workers’ Compensation Corporation et al.; — Defendant(s); Applying For Supervisory and/or Remedial Writs Office of Workers’ Compensation District 02, No. 10-10635; to the Court of Appeal, Third Circuit, No. WCW 11-00153.

Denied.


text:
    VERMILION PARISH HURRICANE FLOOD PROTECTION AND DRAINAGE DISTRICT, LOUISIANA v. CITY OF ABBEVILLE.
    No. 2011-CC-1340.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re City of Abbeville; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. B, No. 92991; to the Court of Appeal, Third Circuit, No. CW 11-00555.

Denied.


text:
    Markel DOMINO v. CROWLEY CITY POLICE DEPT., et al.
    No. 2011-C-1339.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Domino, Markel; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Acadia, 15th Judicial District Court Div. I, No. 82953; to the Court of Appeal, Third Circuit, No. 10-1244.

Denied.


text:
    STATE of Louisiana v. Travion BOURGEOIS.
    No. 2011-KK-1338.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Bourgeois, Travion; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. A, No. 2010-CR-43; to the Court of Appeal, Fifth Circuit, No. 11-K-461.

Denied.


text:
    Brittany ROACHE, et al. v. ALPHA TECHNICAL SERVICES, INC., et al.
    No. 2011-CC-136.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Gordon, Odile et ah; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 669-999; to the Court of Appeal, Fifth Circuit, Nos. 11-C-531, ll-C-440, ll-C-450, ll-C-463.

Denied.


text:
    Michael BENNETT v. RYDER TRUCK RENTAL, INC.
    No. 2011-C-1335.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Sentry Insurance; — Third Party; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 610-155; to the Court of Appeal, Fifth Circuit, No. 10-CA-1049.

Denied.

GUIDRY, J., recused.


text:
    GULFSOUTH CREDIT, LLC, v. Ernest BYNUM and Tuesday Bynum.
    No. 2011-CC-1334.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re GulfSouth Credit LLC; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 592375; to the Court of Appeal, First Circuit, No. 2011 CW 0320.

Denied.


text:
    Anne Marie VANDENWEGHE v. The PARISH OF JEFFERSON; Steve Theriot, in his Capacity as Chief Administrative Officer; Eula Lopez, in her Capacity as Chief Custodian of Public Records for the Parish of Jefferson; and, Greg Giangrosso in his Capacity as Assistant Parish Attorney and Agent for Custodian of Public Records for the Parish of Jefferson.
    No. 2011-C-1333.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Giangrosso, Greg; Lopez, Eula; Parish of Jefferson et al.; Theriot, Steve; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, No. 693-702; to the Court of Appeal, Fifth Circuit, No. ll-CA-52.

Denied.


text:
    In re BRENNAN’S HOUSE OF PRINTING, INC. and Brennan’s Direct Mail, Inc. Brennan’s House of Printing, Inc. v. Anne E. Brennan, Amy Alexis Brennan Kernion, Daniel Robert Brennan, Jr., Robert Michael Brennan, Andrew Emling Brennan, and Sarah Anne Brennan.
    No. 2011-C-1422.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Brennan’s House of Printing, Inc. et al.; Brennan, Fonda Maria; Dupepe, Sheila Brennan; Oldenburg, Marleen Brennan; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, Nos. 605-676, 633-030, 633-425, 634-044, 634-384; to the Court of Appeal, Fifth Circuit, Nos. 10-CA-428,10-CA-429.

Denied.


text:
    Mary Susan Darnell SMITH through her agent Suzanne Smith UPCHURCH v. McGUIRE FUNERAL HOME, INC., William J. (Jimmy) McGuire, Citizens Bank & Trust Company of Vivian, Louisiana, Inc., Regions Bank, Capital One, National Association, First Guaranty Bank, and American Bank & Trust Company.
    No. 2011-C-1419.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re First Guaranty Bank; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 520,113; to the Court of Appeal, Second Circuit, No. 46,-326-CA.

Denied.

VICTORY, J., would grant.


text:
    THOMPSON TREE & SPRAYING SERVICE, INC., d/b/a Live Oak Landscapes v. WHITE-SPUNNER CONSTRUCTION, INC., et al.
    No. 2011-C-1417.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Hartford Insurance Company; Wal-Mart Stores Inc.; White-Spunner Construction Inc. et al.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. C, No. 286,974; to the Court of Appeal, Third Circuit, No. 10-1187.

Denied.

VICTORY, J., would grant.


text:
    Patricia Ann DIGGS v. FIDELITY HOMESTEAD SAVINGS BANK, et al.
    No. 2011-CC-1403.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Hanover Insurance Company;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2007-15484; to the Court of Appeal, Fourth Circuit, No. 2011-C-0432.

Denied.

VICTORY, J., would grant.


text:
    Julius WHITE v. BHB OIL, INC.
    No. 2011-CC-1363.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re White, Julius; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo Div. C, No. 519,313; 1st Judicial District Court Div. C, No. 519313; to the Court of Appeal, Second Circuit, No. 46595-CW.

Denied.


text:
    STATE of Louisiana v. Troy WHITE.
    No. 2011-KK-1357.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re White, Troy; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 500-014; to the Court of Appeal, Fourth Circuit, No. 2011-K-0680.

Denied.


text:
    STATE of Louisiana v. Bruce WALLACE.
    No. 2011-KK-1355.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Wallace, Bruce; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 09-5870; to the Court of Appeal, Fifth Circuit, No. 11-K-508.

Denied.


text:
    Maurianne OLIVER v. UNION PACIFIC RAILROAD COMPANY, et al.
    No. 2011-CC-1351.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re State of Louisiana, Depai’tment of Transportation and Development; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 2010-002298; to the Court of Appeal, Third Circuit, No. CW 11-00086.

Denied.

VICTORY, J., would grant.


text:
    Charles JULIEN v. L’OBSERVATEUR, and its Editor, Kevin Chiri, individually and in his capacity as Editor, and Wick Communications Co., owner of L’Observateur.
    No. 2011-CC-1349.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   In re Wick Communications Co., d/b/a L’Observateur; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. B, No. 54358; to the Court of Appeal, Fifth Circuit, No. ll-C-322.

Denied.

VICTORY and WEIMER, JJ., would grant.