text:
    Morris HAWKINS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D10-5046.
    District Court of Appeal of Florida, First District.
    July 7, 2011.
    Morris Hawkins, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, and Anthony Andrews, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Consistent with the Florida Parole Commission’s proper concession of error, the petition for writ of certiorari is granted, and the circuit court’s order denying mandamus relief is quashed. The matter is remanded to the circuit court for further proceedings consistent with Alday v. Florida Parole Comm’n, 58 So.3d 327 (Fla. 1st DCA 2011).

PADOVANO, WETHERELL, and MARSTILLER, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas J. HARRIS, Jr., II, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-316.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2011.
    Paul S. Horning and Tanya M. Dugree of Tanya M. Dugree, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Thomas J. Harris, Jr., II, appeals his judgment and sentences for first degree murder and attempted robbery with a firearm, raising five issues. We find no reversible error and affirm. We do agree that the testimony of Deshay Jackson concerning the reason he refused to testify at the first trial should not have been admitted, but allowing the jury to hear the question and Deshay Jackson’s answer, as limited by the trial court, was harmless. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986).

AFFIRMED.

GRIFFIN, SAWAYA and COHEN, JJ., concur.


author: PER CURIAM. PALMER, J.,

text:
    Kara Joanne HILL, Appellant, v. David Alan HILL, Appellee.
    No. 5D10-549.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2011.

      Nancy A. Johnson and Sharina T. Romano of McGuirewoods, LLP, Jacksonville, for Appellant.
    Lester Makofka of Makofka & Makofka, Jacksonville, for Appellee.
   PER CURIAM.

Appellant, Kara Joanne Hill, challenges the trial court’s dismissal of her petition for partition. For the reasons expressed below, we remand to allow the trial court to treat Appellant’s petition as a motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b).

The parties agreed to, and the trial court entered, a consent supplemental final judgment dissolving the marriage and equitably distributing the property of Appellant and Appellee, David Alan Hill. Relevant to this appeal, the consent supplemental final judgment provided that Appellee would have exclusive use and possession of the parties’ rental home. It required Appellee to submit three bona fide applications to refinance the property and, if approved, to pay Appellant $90,000 for her interest. However, if Appellee did not obtain financing, the property was to be sold and the parties would split the proceeds equally.

After submitting one application and being pre-approved, Appellee did not submit any other financing applications or otherwise obtain financing. Appellant filed a motion for contempt, requesting the trial court order Appellee to submit applications for financing or, alternatively, grant her power of attorney to sell the property. Instead, the trial court granted Appellant a $90,000 judgment. Appellant then filed a petition to partition the property, but the trial court dismissed it with prejudice because she did not request partition before being granted the $90,000 judgment. In essence, the trial court reasoned that Appellant was precluded from seeking partition by virtue of receiving the $90,000 judgment.

The trial court erred in awarding Appellant a $90,000 judgment because that was not the relief sought in the former wife’s motion for contempt. Granting Appellant a money judgment also conflicted with the terms of the consent supplement final judgment: that the property be sold if Appellee did not obtain financing. Appel-lee undisputedly did not obtain financing and, therefore, the parties and the trial court were bound by the consent supplemental final judgment’s terms. See Bridges v. Bridges, 848 So.2d 408, 404 (Fla. 2d DCA 2008) (holding a court usually has no jurisdiction to modify property rights after those rights have been adjudicated in a final judgment of dissolution); DePeyster v. DePeyster, 629 So.2d 221, 224 (Fla. 4th DCA 1993) (holding the trial court lacked jurisdiction to order a post-judgment sale when the parties’ settlement agreement provided for partition).

Instead of filing a petition for partition, Appellant should have either sought relief from the judgment pursuant to 1.540(b) or, alternatively, appealed the entry of the money judgment. However, under the facts and circumstances of this case, we believe the appropriate course of action is to treat the petition for partition as a motion for relief from judgment and remand the matter to the trial court for enforcement of the terms of the consent judgment.

REVERSED and REMANDED.

ORFINGER, C.J., and COHEN, J., concur.

PALMER, J., dissents with opinion.

PALMER, J.,

dissenting.

I respectfully dissent. If the appellant believed that the trial court erred in awarding her a $90,000.00 judgment, her remedy was to appeal that judgment. She did not file a direct appeal; therefore, that judgment is final.

The majority opinion acknowledges that the appellant erred in filing her request for relief from the $90,000.00 final judgment as a separate petition seeking partition. However, the majority seeks to correct the appellant’s error by sua sponte treating her partition petition as a motion for relief from judgment, pursuant to Florida Rule of Civil Procedure 1.540(b). However, re-characterizing appellant’s petition does not entitle her to obtain relief from the $90,000.00 judgment.

Rule 1.540(b) does not provide for relief from judicial errors of law which must be appealed. Curbelo v. Ullman, 571 So.2d 443, 445 (Fla.1990). Instead, the rule provides very specific and narrow grounds upon which post-judgment relief can be granted. The rule provides that the trial court can only relieve a party from a final judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. None of these grounds was established in appellant’s partition petition. The only ground that could even be argued as being applicable would be that the $90,000.00 judgment is void. However, such is not the case. The trial court clearly possessed jurisdiction to consider the appellant’s motion for enforcement of the parties’ dissolution of judgment and to enter an order providing such relief. Compare Wright v. Lewis, 870 So.2d 179 (Fla. 4th DCA 2004) (recognizing that a void judgment is subject to collateral attack).

Accordingly, I would affirm.


text:
    FLORIDA DEPARTMENT OF AGRICULTURE, etc., Appellant, v. Frank AYERS, et al., Appellee.
    No. 5D10-766.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2011.
    Wesley R. Parsons of Clarke Silverglate, P.A., Miami, for Appellant.
    Julie H. Littky-Rubin, William S. Williams and Nancy La Vista of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, and Robert C. Gilbert of Grossman Roth, P.A., Coral Gables, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. Dep’t of Agric. & Consumer Seros, v. Bogorff, 35 So.3d 84 (Fla. 4th DCA), rev. denied, 48 So.3d 835 (Fla.2010); Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So.2d 928 (Fla. 4th DCA 2002).

GRIFFIN, MONACO and TORPY, JJ., concur.


text:
    SPM RESORTS, INC., Petitioner, v. DIAMOND RESORTS MANAGEMENT, INC., Respondent.
    No. 5D10-4429.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2011.
    Wayne Tosko of Vasquez & Tosko, LLP, Orlando, for Petitioner.
    James V. Etscorn and Robert W. Thiel-helm of Baker & Hostetler, LLP, Orlando, for Respondent.
   PER CURIAM.

SPM Resorts, Inc. (SPM) seeks certiora-ri review of a circuit court decision ordering it to pay $20,000, and potentially more in the future, to conduct computer searches of its own computers to comply with Diamond Resorts Management, Inc.’s (DRM) discovery request. SPM, the defendant in the underlying case, contends that the court’s order requiring it to comply with the discovery request of DRM, the plaintiff below, is unreasonably and unduly burdensome and is a departure from the essential requirements of law. We agree and grant the petition.

Both SPM and DRM are in the business of managing homeowners associations and are direct business competitors. DRM had a management contract with the Polynesian Island Resort in Osceola County. After a vote of the Resort’s Board of Directors, DRM lost the management contract with two of the Resort’s associations, Polynesian Island Resort Condominium Association I (Poly I) and Polynesian Island Resort Condominium Association IV (Poly IV). SPM took over the management of both Poly I and Poly IV. As a result, DRM filed the underlying action against SPM, alleging that SPM engaged in a series of tortious and unlawful acts intended to destroy DRM’s contractual and business relationships for management of certain associations at the Resort.

DRM propounded a ten page first request for production directed to SPM, which included a request for any electronic data or communications regarding the associations between SPM or its attorneys and Poly I and Poly IV. SPM had some difficulty in complying with the request, in part, because of a change in its legal representation. Consequently, DRM filed three separate motions to compel production directed to its initial request to produce.

In its order granting DRM’s third motion to compel and impose sanctions, the court ordered that the parties engage a neutral computer expert to inspect SPM’s computer systems pursuant to a protocol agreed to by both parties. The expense of implementing the protocol was to be born equally by the parties up to $40,000. If the expense exceeded $40,000, the parties were to agree on a method of paying additional expenses or bring the issue before the court. The court also granted the motion for sanctions and awarded DRM $5,732.50 in attorney’s fees and costs related to the motions to compel.

SPM contends that requiring it to pay half the cost of the inspection of its own computers is improper and burdensome. We agree. The courts have considered this issue on numerous occasions. To place a substantial financial burden on a party relating to the production of its adversary’s discovery request does nothing more than require a party to fund its adversary’s litigation. Nothing in the Rules of Civil Procedure permits this. It is clear that the trial court, in this matter, did not impose this obligation against SPM for its failure to comply with the discovery request. The trial court’s order requiring SPM to pay up to $20,000 in costs and potentially more for the inspection of its own computers is unreasonable and unduly oppressive and is a departure from the essential requirements of law. See Bristol Myers Co. v. District Court in & for City & County of Denver, 161 Colo. 354, 422 P.2d 373 (1967); Korneffel v. S. Broward Hosp. Dist., 431 So.2d 742 (Fla. 4th DCA 1983); Dow Corning Corp. v. Garner, 423 So.2d 1034 (Fla. 4th DCA 1982); Sobering Corp. v. Thornton, 280 So.2d 493 (Fla. 4th DCA 1973). Therefore, we grant the petition for certiorari.

The Petition for Certiorari is GRANTED and the trial court’s order requiring SPM to advance discovery costs is QUASHED.

SAWAYA, MONACO and JACOBUS, JJ., concur.


text:
    Palmer STUCKEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1749.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2011.

      Palmer Stuckey, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2006-CF-009643-A, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


text:
    George WALKER, IV, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES CHILD PROTECTION TEAM, et al., Respondents.
    No. 1D11-2422.
    District Court of Appeal of Florida, First District.
    July 8, 2011.
    George Walker, IV, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999).

WETHERELL, MARSTILLER, and RAY, JJ., concur.


text:
    M.D.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5361.
    District Court of Appeal of Florida, First District.
    July 8, 2011.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See J.A.B. v. State, 25 So.3d 554, 558-59 (Fla.2010).

BENTON, C.J., CLARK and MARSTILLER, JJ., concur.


text:
    Lace L. JELKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5182.
    District Court of Appeal of Florida, First District.
    July 8, 2011.
    Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Dennis v. State, 51 So.3d 456, 464 (Fla.2010).

BENTON, C.J., LEWIS, and WETHERELL, JJ., concur.


text:
    Lewis BAILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3266.
    District Court of Appeal of Florida, First District.
    July 8, 2011.
    Lewis Bailey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(4)(B).

WOLF, THOMAS, and CLARK, JJ., concur.


text:
    John MINOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3265.
    District Court of Appeal of Florida, First District.
    July 8, 2011.
    John Minor, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, THOMAS, and CLARK, JJ., concur.


text:
    Michael GALLON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1699.
    District Court of Appeal of Florida, First District.
    July 12, 2011.
    Nancy Daniels, Public Defender, Second Judicial Circuit, and Virginia A. Christy, Assistant Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Michael Gallon is hereby afforded a belated appeal from judgment and sentence in Leon County case number 2010-CF-00589A. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

The trial court is directed to appoint counsel to represent appellant in the appeal at public expense if he qualifies for such an appointment.

PETITION GRANTED.

WETHERELL, MARSTILLER, and RAY, JJ., concur.


text:
    D.T.A., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2727.
    District Court of Appeal of Florida, First District.
    July 12, 2011.
    James Owens, Public Defender, First Judicial Circuit, and Valerie A. Walker, Assistant Public Defender, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appeal is dismissed for lack of jurisdiction. The petition for belated appeal is denied on the merits.

WETHERELL, MARSTILLER, and RAY, JJ., concur.


text:
    In re Raymond J. LeJEUNE.
    No. 11-OB-1107.
    Supreme Court of Louisiana.
    June 15, 2011.
   ORDER

hThe Office of Disciplinary Counsel (“ODC”) has filed formal charges against respondent alleging that he committed serious attorney misconduct, the most significant of which involves conversion of client funds. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Raymond J. Le-Jeune, Louisiana Bar Roll number 8294, and the concurrence thereto filed by the ODC,

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

IT IS FURTHER ORDERED that Raymond J. LeJeune shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

FOR THE COURT:

/s/ Bernette Joshua Johnson JUSTICE, SUPREME COURT OF LOUISIANA


text:
    In re Kenneth F. SARAMA.
    No. 2011-B-1072.
    Supreme Court of Louisiana.
    June 24, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to promptly remit funds owed to a third-party medical provider. Respondent subsequently failed to cooperate with the ODC in its investigation of the complaint filed against him. This misconduct occurred in the same time frame as the misconduct forming the basis of respondent’s earlier disciplinary matters. Prior to the filing of new 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 Kenneth F. Sarama, Louisiana Bar Roll number 1583, be adjudged guilty of additional violations which warrant discipline and which may be considered in the event he applies for readmission from his disbarment in In re: Sarama, 09-2101 (La.2/5/10), 26 So.3d 770, after becoming eligible to do so.

IT IS FURTHER ORDERED that respondent shall make restitution to Dr. George Anthon, Jr. as set forth in the Petition for Consent Discipline.

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 Ruben HERNANDEZ, Jr.
    No. 2011-B-1036.
    Supreme Court of Louisiana.
    June 24, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|,The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to communicate with his client and settled the client’s personal injury claim without authority. This misconduct occurred in the same time frame as the misconduct forming the basis of respondent’s earlier disciplinary matter. Prior to the filing of new 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 Ruben Hernandez, Jr., Louisiana Bar Roll number 26334, be adjudged guilty of additional violations which warrant discipline and which may be considered in the event he applies for reinstatement from his suspension in In re: Hernandez, 10-1927 (La.11/5/10), 46 So.3d 1244, after becoming eligible to do so.

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 Juan Carlos LABADIE.
    No. 2011-B-1021.
    Supreme Court of Louisiana.
    June 24, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent maintained incomplete records of his client trust account, which resulted in a negligent commingling and conversion of funds. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rule 1.15 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Juan Carlos Labadie, Louisiana Bar Roll number 24145, be suspended from the practice of law for a period of one year and one day, fully deferred, subject to a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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.


author:
PER CURIAM.
     CLARK, Justice,

text:
    STATE of Louisiana v. Joel WILLIAMS.
    No. 2011-KK-1269.
    Supreme Court of Louisiana.
    June 27, 2011.
   PER CURIAM.

1¶ Granted in part; otherwise denied. The ruling of the trial court granting the motion to suppress the evidence seized from defendant’s home pursuant to a search warrant is reversed, and this case is remanded for further proceedings.

The trial court was tasked with, among other issues, determining whether the police had probable cause to obtain a warrant for the search of defendant’s residence. The role of the trial court, in reviewing a magistrate’s probable cause determination, “is simply to ‘ensure that the magistrate had ‘a substantial basis for ... con-clud[ing]’ that probable cause existed.’ ” State v. Profit, 2000-1174, p. 5 (La.1/29/01); 778 So.2d 1127, 1130 (quoting Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), quoting, Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). In the present case, the information supplied by the confidential informant that defendant was trafficking in cocaine, corroborated through the controlled purchase of narcotics witnessed by the detective, including the allegation that defendant “uses [his] residence to store illegal narcotics and currency,” (an allegation not contradicted at the suppression hearing) supported a reasonable, common sense inference by the magistrate that the police had a fair 12probability of finding additional amounts of cocaine at defendant’s residence. See, Profit, 2000-1174 at 6; 778 So.2d at 1130-1131, and cases cited therein. The trial court, therefore, abused its discretion by second-guessing the inferences drawn by the magistrate in the present case.

VICTORY, J., concurs in part and dissents in part for reasons assigned by CLARK, J.

CLARK, J., concurs in part and dissents in part.

CLARK, Justice,

concurs in part and dissents in part.

11While I agree that the trial court abused its discretion by granting the motion to suppress the evidence seized from the defendant’s home pursuant to a search warrant, I also believe the trial court was in error in granting the motion to suppress the evidence seized from the vehicle at the time of the defendant’s arrest. Under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1723-1724, 173 L.Ed.2d 485 (2009), the U.S. Supreme Court held: “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” (Emphasis added). The defendant was arrested for possession of drugs with the intent to distribute. The police had knowledge, from the controlled buy of the reliable confidential informant, that the defendant allegedly carried the drugs in a glasses case. When police searched the defendant incident to his arrest, the defendant was not carrying the glasses case. I find it was reasonable for the police to believe the vehicle would contain evidence of the offense of arrest. In addition, considering the defendant had just exited the vehicle when the officers found what they reasonably believed to be cocaine on the defendant’s person, the officers had probable cause to search the vehicle without a warrant. See U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Therefore, I believe the motion to suppress the evidence 12obtained on the defendant’s person incident to his arrest, in his home pursuant to a search warrant, or in the vehicle at the time of his arrest, should have been denied in its entirety.

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


author: PER CURIAM. JOHNSON, J.,

text:
    Rebecca SIMS, individually and on behalf of her minor son, Kolten Sims v. Tonya HAWKINS-SHEPPARD, M.D. and Louisiana Medical Mutual Insurance Company.
    No. 2011-C-0678.
    Supreme Court of Louisiana.
    July 1, 2011.
   PER CURIAM.

11 This matter arises out of a medical malpractice suit brought by the plaintiff, Rebecca Sims, individually and on behalf of her minor son, Kolten Sims, against Tonya Hawkins-Sheppard, M.D. and her insurer, Louisiana Medical Mutual Insurance Company. The plaintiff alleges Dr. Hawkins-Sheppard committed medical malpractice during the delivery of the plaintiffs child. The plaintiff filed a complaint with the Louisiana Patients Compensation Fund on June 21, 2007. The medical review panel unanimously found that Dr. Hawkins-Sheppard obtained informed consent for the procedure and acted within the standard of care at all times. Plaintiff subsequently filed the present lawsuit on May 22, 2009.

Thereafter, Dr. Hawkins-Sheppard propounded interrogatories and requests for production of documents upon the plaintiff. One of those discovery requests sought the identity of any medical expert who had been consulted and could support the plaintiffs claim. Plaintiff responded that no such expert had been consulted. In light of this response, and the unanimous opinion of the medical review panel, Dr. Hawkins-Sheppard moved for summary judgment. A hearing on the motion was set for May 4, 2010.

At the request of plaintiffs counsel, the hearing date was continued, for two 12months, until July 7, 2010. Prior to the hearing on July 7, 2010, plaintiffs counsel opposed the motion for summary judgment, including as an exhibit an unsigned affidavit from a doctor. Plaintiffs counsel asserted a signed affidavit would be substituted at the hearing. On the day of the hearing, plaintiffs counsel was unable to produce a signed affidavit. Plaintiff informed the court that she wished to terminate counsel and find new representation. The trial court informed the plaintiff that such a decision would not delay the proceedings, which had already been continued once at the plaintiffs request. The court then granted the motion for summary judgment after argument, and thereafter granted plaintiffs motion to terminate trial counsel.

The court of appeal reversed, holding that the trial court abused its discretion under La. C.C.P. art. 966(B) and the interpreting case law. The court of appeal found the trial court should have allowed the plaintiff a reasonable amount of time to find new counsel and secure the signature of a medical expert on an opposing affidavit rather than cutting off the plaintiff at the summary judgment phase. The court of appeal found the plaintiff had been misled and deceived by her former counsel.

This writ application filed by Dr. Hawkins-Sheppard and her insurer presents a recurring issue to this court concerning summary judgment motions. In the recently-decided cases of Newsome v. Homer Memorial Medical Center, 2010-0564 (La.4/9/10), 32 So.3d 800 and Guillory v. Chapman, 2010-1370 (La.9/24/10), 44 So.3d 272, per curiam opinions were issued, prompted by the apparently justified concern that courts of appeal are reversing district courts which properly apply the summary judgment rules contained in La. C.C.P. art. 966. Motions for summary judgment are favored under the law since the amendment to La. C.C.P. art. 966 in 1996.

|sIn Newsome, the plaintiffs counsel filed an untimely motion to continue a summary judgment hearing, which had previously been continued at plaintiffs request, in a medical malpractice action or to allow the late filing of an affidavit in support of plaintiffs opposition. The trial court granted the continuance and allowed the late filing, even though his inclination was to deny both, because he was concerned the court of appeal would send the matter back. The court of appeal affirmed, but this court granted a writ. This court found the trial court abused its discretion in granting the continuance because the “good cause” for the continuance was only to allow plaintiffs counsel to comply with the uniform rules which required the affidavit supporting the opposition to be filed eight days before the hearing. In other words, plaintiffs counsel had not obtained the medical affidavit to support his opposition until after the deadline for submitting affidavits for the summary judgment hearing under La. C.C.P. art. 966 had passed. In that case, plaintiffs counsel’s reason for not having obtained an expert or an expert’s affidavit earlier was that a one-week trial on her schedule turned into a three-week trial. This court found, under the facts in Newsome, that the trial court abused its discretion in granting the continuance and reversed, remanding the matter to the trial court so that a hearing could be conducted based on the discovery on file as of the date of the hearing.

Here, plaintiffs counsel stated at the hearing on the motion for summary judgment that he had spoken to the plaintiffs treating physician after the delivery and that she was willing to serve as an expert witness for the plaintiff. Apparently, the plaintiff had known of this doctor’s willingness to serve as an expert witness for some time. Nevertheless, plaintiffs former counsel did not send medical records or a copy of an affidavit to this medical expert until two weeks before the rescheduled hearing. Plaintiffs counsel’s reasons for not obtaining the expert affidavit earlier was that the Ldoctor was on vacation and then there was a three-day holiday. These facts do not constitute “good cause” for failing to comply with the time limits found in La. C.C.P. art. 966(B) or District Court Rule 9.9(b), which require serving opposing affidavits eight calendar days before the scheduled hearing.

Plaintiffs complaint before the medical review panel was filed on June 21, 2007. Considering the fact that the decision of the panel was unanimously in favor of the doctor and that the alleged malpractice was not of an obvious type which would not need expert medical testimony, plaintiffs counsel had to know as of that time that he would need to obtain a medical expert in order to prove plaintiffs claim. Yet even after suit was filed on May 22, 2009, after the defendants’ discovery requests pointed out the lack of a medical expert to prove the plaintiffs claim, after the motion for summary judgment was filed and scheduled for a hearing, and after that scheduled hearing was continued for two months, plaintiffs counsel still failed to obtain a medical expert.

In Guillory, we reinstated a trial court judgment granting summary judgment, where the trial court considered the late timing of the affidavit filed on behalf of the plaintiff, but followed the mandatory language of La. C.C.P. art. 966(B). In that case, the medical malpractice claim was six years old and the plaintiff had been aware of the expert for years. This court found no abuse of the trial court’s discretion in choosing to follow the mandatory language of the statute.

Likewise, we find no abuse of the trial court’s discretion in this case. The defendants established their entitlement to sum7 mary judgment under the provisions of La. C.C.P. art. 966, and the uniform rules approved by this court. The plaintiff failed to show “good cause” under La. C.C.P. art. 966(B) why she should have been given additional time to file an opposing affidavit. Consequently, there is no genuine [ ¿issue to the material fact that the plaintiff, upon the present record, is unable to prove the doctor defendant breached an applicable standard of care and the defendants are entitled to judgment on this issue as a matter of law. Like the court of appeal, we do not reach the remaining issue of the plaintiffs informed consent.

REVERSED AND REMANDED.

JOHNSON, J., dissent and assigns reasons.

JOHNSON, J.,

dissents and assigns reasons.

Ill dissent from the Per Curiam issued by the Court, and would deny the writ. I agree with the decision of the court of appeal, reversing the district court’s grant of the defendant’s motion for summary judgment. It is my opinion that the district court should have allowed the plaintiff additional time to find new counsel and obtain the signature of a medical expert on an opposing affidavit.

In this medical malpractice case, plaintiffs treating physician was apparently willing to serve as an expert witness for the plaintiff. However, unbeknownst to plaintiff, her former counsel failed to send medical records or a copy of an affidavit to the expert until shortly before the rescheduled hearing date. Thus, no signed expert affidavit was submitted by the plaintiff. Under these circumstances, the failure to obtain a signed expert affidavit was clearly due to inaction or incompetence on the part of the plaintiffs former attorney. As stated by the court of appeal:

The supreme court in both Lamb [v. Lamb, 430 So.2d 51 (1988) ] and Hardy [v. Kidder, 292 So.2d 575 (1973) ] found that when a litigant suffered the loss of his day in court solely due to attorney negligence, 12then a technical rule should not aid in the miscarriage of justice. In the instant case, plaintiff was not aware of her attorney’s failure to obtain a valid affidavit. Even though the physician was ready to sign such an affidavit, the court rendered judgment for defendants, closing its doors to a trial on the merits of plaintiffs case. It is our duty to permit litigants all reasonable opportunity to place before a court all facts bearing on the issues involved. (Internal citations omitted).

Sims v. Hawkins-Sheppard, 46,145 (La. App. 2 Cir. 3/2/11), 58 So.3d 598, 600.

For these reasons, I would deny the writ, finding the court of appeal decision to be correct.


author: ■GUIDRY, J.

text:
    Carmel D. Knight wife of/and Philip KNIGHT v. Raymond Clay GOULD, M.D.
    No. 2010 CA 1355.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.

      T. Carey Wicker, III, J. Alex Watkins, New Orleans, LA, for Plaintiffs/Appellants Carmel Knight wife of/and Philip Knight, Cynthia Knight Thibodaux, and Dwayne Paul Knight.
    Guice A. Giambrone, III, Craig R. Watson, Metairie,. LA, for Defendant/Appellee Raymond Clay Gould, M.D.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   ■GUIDRY, J.

|2In this medical malpractice action, plaintiffs, Carmel Knight, Cynthia Knight, and Dwayne Knight, appeal from judgments of the trial court dismissing their claims against Raymond Clay Gould, M.D., with prejudice and denying their motion for judgment notwithstanding the verdict. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2000, Philip Knight, a sixty-eight-year-old male, was diagnosed with lymphoma of his right tonsil. After undergoing chemotherapy, Mr. Knight was referred to Dr. Gould, a radiation oncologist, for radiation therapy. Mr. Knight met with Dr. Gould on November 16 and 24, 2000, to discuss patient history and to plan therapy. At this time, Mr. Knight signed a consent form detailing the risks and complications of radiation therapy to the head and neck region, which risks included reduced saliva, loss of taste, dry mouth, and tooth decay and gum changes requiring daily fluoride use. During these meetings, Mr. Knight also indicated that he was seeing a dentist, and that his dentist was aware that he was going to undergo radiation therapy.

Thereafter, Mr. Knight underwent radiation therapy with Dr. Gould from November 27, 2000, to December 20, 2000, receiving 3,000 centi-gray of radiation to the left tonsil and 3,600 centi-gray of radiation to the right tonsil. On January 5, 2001, Mr. Knight saw his dentist, Lance Babin, D.D.S., complaining of dry mouth. Dr. Babin put him on Peridex, a prescription antibacterial mouth rinse, and fluoride gel and scheduled Mr. Knight to return to his office in three months. On January 18, 2001, Mr. Knight returned to Dr. Gould for his post-radiation follow-up and informed. Dr. Gould he was experiencing dry mouth. Mr. Knight returned for his |slast visit with Dr. Gould on April 23, 2001, and to Dr. Babin on April 27, 2001, wherein he informed both doctors that he was still experiencing dry mouth. Dr. Babin reinforced oral hygiene and made sure Mr. Knight was still using the Peridex and fluoride. Unfortunately, Mr. Knight began to experience rampant tooth decay and ultimately had to have all of his teeth extracted.

Thereafter, Mr. Knight and his wife, Carmel Knight, filed a complaint with the Louisiana Patient’s Compensation Fund against Dr. Gould. A medical review panel was convened and rendered an opinion on November 29, 2004, finding that the evidence did not support the conclusion that Dr. Gould failed to meet the applicable standard of care. Specifically, the panel concluded that “[t]he medical records show that [Mr. Knight] signed the informed consent on. November 24, 2000 which informed the patient that ‘tooth decay and gum changes requiring daily fluoride use’ are possible side effects of radiation.”

On January 21, 2005, the Knights filed a petition for damages against Dr. Gould, asserting that Dr. Gould was negligent in: 1) failing to obtain a dental consult prior to the commencement of radiation therapy, 2) failing to provide for and recommend that Mr. Knight have fluoride trays for the permanent application of fluoride, and 3) failing to take the appropriate prophylactic measures upon diagnosing dry mouth (xer-ostomia) after radiation was complete.

Following a jury trial on October 14, 15, and 16, 2009, the jury returned a verdict in favor of Dr. Gould, finding that the plaintiffs did not adequately prove the standard of care applicable to Dr. Gould regarding his medical treatment of Mr. Knight in this case. On November 5, 2009, the trial court signed a judgment in conformity with the jury’s verdict, dismissing all of the plaintiffs’ claims against Dr. Gould with prejudice. On November 20, 2009, the plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV), asserting that the jury’s verdict should be set aside, because the applicable standard of care was repeated by all five Lradiation oncologist experts who testified. According to the plaintiffs, these experts established the following standards of care: 1) pre-treatment dental evaluation, including the patient being fitted for fluoride trays, 2) communication with the dentist, and 3) responding to the complication of dry mouth when it arose. Plaintiffs averred that the underlying purpose of these standards is to ensure that the patient is on fluoride trays in order to prevent dry mouth induced cavities.

Following a hearing on the plaintiffs’ motion, the trial court signed a judgment denying the motion for JNOV. Plaintiffs now appeal from the judgments dismissing their claims and denying the motion for JNOV.

DISCUSSION

In order to prevail in a medical • malpractice action, a plaintiff is required to establish: (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale under similar circumstances; and where the defendant practices in a particular specialty and the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty; (2) that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and (3) that as a proximate result of this lack of knowledge or skill or failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred. See La. R.S. 9:2794(A); Lieux v. Mitchell, 060382, pp. 10-11 (La.App. 1st Cir.12/28/06), 951 So.2d 307, 314, writ denied, 070905 (La.6/15/07), 958 So.2d 1199. In other words, the plaintiff must establish the standard of care applicable to the doctor, a breach of that standard of care, and that the substandard care caused an injury the plaintiff would otherwise not have | ¡¡suffered. Thibodaux v. Leonard J. Chabert Medical Center, 06-0599, p. 4 (La. App. 1st Cir.9/14/07), 981 So.2d 686, 689, writ denied, 07-2039 (La.12/7/07), 969 So.2d 640.

It is well settled that the resolution of each of these inquiries involves a determination of fact, which should not be reversed on appeal absent manifest error. Bradbury v. Thomas, 98-1678, p. 8 (La. App. 1st Cir.9/24/99), 757 So.2d 666, 673. Accordingly, if the jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Furthermore, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rose11 v. ESCO, 549 So.2d 840, 844 (La. 1989).

In medical malpractice actions, opinions from medical experts are necessary to determine both the applicable standard of care and whether that standard was breached. Thibodaux, 06-0599 at pp. 4-5, 981 So.2d at 689. When medical experts are called to testify, the views of such expert witnesses are persuasive, although not controlling, and any weight assigned to their testimony by the trier of fact is dependent upon the facts on which the opinion is based as well as the expert’s qualifications and experience. Bradbury, 98-1678 at p. 8, 757 So.2d at 673. The trier of fact must assess the testimony and credibility of all the witnesses and make factual determinations regarding these evaluations. Bradbury, 98-1678 at p. 8, 757 So.2d at 673.

When the experts’ opinions are in conflict concerning the standard of care applicable to a case, the reviewing court will give great deference to the conclusions of the finder of fact. See Serigne v. Ivker, 00-0758, p. 6 (La.App. 4th Cir.1/23/02), 808 So.2d 783, 787-788. The issue to be resolved on appeal is not | ¡¡whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

In the instant case, the jury was presented with special jury interrogatories, in which the first question required them to decide if “the plaintiffs adequately proved the standard of care applicable to Dr. Clay Gould regarding his medical treatment of Mr. Philip Knight in this ease[.]” The jury’s response was “No.”

At the outset, we note that plaintiffs assert on appeal that they presented unanimous expert testimony that the standard of care for a radiation oncologist is to ensure the use of fluoride trays to treat a patient with dry mouth. This standard is somewhat more simplified than that presented to the jury, and to the trial court in the motion for JNOV. Rather, the plaintiffs suggested to the jury and to the trial court that the standards of care applicable in the instant case were: 1) pre-treatment dental evaluation/clearance, including the patient being fitted for fluoride trays, 2) communication with the dentist, and 3) responding to the complication of dry mouth when it arose. According to the plaintiffs, the underlying purpose of these standards is to ensure that the patient is on fluoride trays in order to prevent dry mouth induced cavities.

Regardless of how narrowly or how broadly we view the alleged standard of care, we find, based on our review of the record, that the jury was not unreasonable in concluding that plaintiffs failed to prove the applicable standard of care.

At trial, five experts in the field of radiation oncology testified. Plaintiffs’ expert, Dr. Randy Heysek, stated that the standard of care required an assessment of the integrity of the teeth and a referral of the patient to a dentist for a pre-radiation dental evaluation. According to Dr. Hey-sek, one of the purposes of this evaluation is for the patient to be fitted for fluoride trays. Dr. Heysek was then |7asked to review a copy of a page from a radiation oncology textbook, which he recognized as an authoritative text on radiation oncology and which provided:

It is the obligation of the radiation oncologist that a patient be seen by a dentist who, preferably, has experience with the effects of radiation on the oral cavity. Before simulation, patients are evaluated for caries, infections, impacted teeth, and periodontal status. A prescription fluoride rinse or gel used with carriers or trays made at the time of evaluation is to be used by the patients for the remainder of his or her life. The patient should also have routine followup appointments with the dentist after completion of radiation therapy.

Dr. Heysek stated that this textbook articulates the standard of care for a radiation oncologist under these circumstances, and according to Dr. Heysek, mandates the use of fluoride trays. Dr. Heysek stated that the standard of care requires the radiation oncologist to make sure the dentist is using the fluoride trays, and that it is not up to the dentist to decide on the appropriate prophylaxis. Dr. Heysek stated that in his practice, he instructs the dentist to make the fluoride trays and to use fluoride before, during, and after radiation therapy. However, Dr. Heysek did acknowledge that some radiation oncologists will just refer patients to a dentist for routine prophylaxis.

Dr. Paul. Monsour, a member of the medical review panel, stated that prior to treatment, he ensures that a patient is being seen by a dentist to do a dental evaluation to make sure that there are no problems with the patient’s teeth, and to ensure that in the event the patient develops dry mouth, there is good prophylaxis, i.e., fluoride treatment, trays, washes, rinses, etc. According to Dr. Monsour, it is the standard of care to get a pre-radiation dental evaluation. Further, Dr. Monsour stated that the standard of care requires him, as a radiation oncologist, to communicate with the dentist about prophylaxis. Dr. Monsour stated that he does not talk about fluoride trays all of the time, because there are other ways to do it, and ultimately, it is the dentist’s decision as to what is the appropriate prophylaxis. Finally, Dr. Monsour stated that it is not the radiation oncologist’s | ¿responsibility to treat or manage complications such as dry mouth, but rather, it is the dentist’s responsibility, because there is nothing that a radiation oncologist knows or can do to manage dry mouth once it occurs.

The deposition of Dr. Lucien Nedzi, also a member of the medical review panel, was read to the jury. Dr. Nedzi agreed that it is the obligation of a radiation oncologist to make sure that the patient is seen by a dentist and that the standard of care requires a dentist to evaluate the patient and assess the integrity of the teeth, especially with regard to the necessity of any dental extractions if high doses of radiation are going to be delivered. According to Dr. Nedzi, the main issue before radiation is whether the teeth need to be extracted. Additionally, the standard of care includes ensuring that a patient receives appropriate follow-up with a dentist or referral for any complications that may come up as a result of the radiation. Dr. Nedzi stated that most radiation oncologists in the community would make sure the patient is receiving fluoride treatment, which in his practice is done by asking the patient. However, he stated it is ultimately the patient’s responsibility to return to the dentist and to communicate the need for fluoride to the dentist. Dr. Nedzi, however, made no reference to the use of fluoride trays.

Additionally, Dr. Troy Scroggins, Chairman of the Radiation Oncology Department at Ochsner Hospital in New Orleans and a member of the medical review panel, stated that prior to radiation treatment, he confirms that the patient is being seen by a dentist, and that the dentist is aware the patient is going to receive radiation. Additionally, Dr. Scroggins stated that he does not always speak to that dentist directly, nor does he think the standard of care requires a radiation oncologist to always call the dentist. Dr. Scroggins stated that he typically talks to the patient about fluoride trays, but that he does not call the dentist and tell him specifically that he wants fluoride trays. Further, though Dr. Scroggins stated that the standard of care was to recommend fluoride trays after radiation treatment, he |nalso stated that he defers to the dentist on how to treat dry mouth, and he does not overrule any decision made by the dentist regarding the treatment.

Dr. Gould, though the defendant in this matter, was also qualified as an expert in radiation oncology and testified that he always recommends that the patient see his dentist. However, he disagreed that in this case, the standard of care required a pre-dental evaluation, because Mr. Knight’s teeth looked fine, he had no complaints, and the location of the lymphoma did not mandate such an evaluation. Further, Dr. Gould stated that there was nothing that Mr. Knight needed to do pre-radiation to protect his teeth, particularly given the low dose of radiation and the fact that the fields of radiation excluded his teeth. Dr. Gould stated that prior to the radiation treatment, he met with Mr. Knight and discussed the risks and complications of radiation therapy as detailed on the consent form. Specifically, he discussed the need for fluoride use, told Mr. Knight to keep his teeth clean, brush his teeth, and see his dentist for fluoride treatment. During this meeting, Mr. Knight signed the consent form, informed Dr. Gould that he was treating with Dr. Babin, and said that Dr. Babin was aware of the radiation treatment and knew about fluoride.

Dr. Gould further stated that post-therapy evaluation with a dentist is fine. According to Dr. Gould, the standard of care is to make sure that when the patient complains of dry mouth, he is being seen by a dentist. It is not necessary for the radiation oncologist to communicate with the dentist, or for him to tell the dentist to use fluoride trays. Rather, use of fluoride trays is within the dentist’s purview, because it is the dentist who manages the patient’s teeth.

The plaintiffs assert on appeal that Dr. Gould judicially admitted that the standard of care of a radiation oncologist is to ensure the use of fluoride trays to treat a patient with dry mouth. Louisiana Civil Code article 1853 provides, in pertinent part, that “[a] judicial confession is a declaration made by a party in a | judicial proceeding ... [tjhat constitutes full proof against the party who made it.” To constitute a judicial confession, the statement must be the express acknowledgement of an adverse fact, the effect of which is to waive evidence as to the subject matter of the admission, or to withdraw the matter from issue. State Department of Transportation and Development v. Restructure Partners, L.L.C., 07-1745, p. 21 (La.App. 1st Cir.3/26/08), 985 So.2d 212, 229, unit denied, 08-1269 (La.9/19/08), 992 So.2d 937.

After reviewing Dr. Gould’s testimony in its entirety, it is clear that he acknowledged the importance of the use of fluoride and fluoride carriers or trays. However, to say that he judicially admitted that the standard of care of a radiation oncologist is to ensure the use of fluoride trays is misleading. Dr. Gould specifically disagreed that it is the obligation of the radiation oncologist to see to it that a prescription fluoride rinse or gel used with carriers or trays made at the time of evaluation is to be used by the patient for the remainder of his or her life. Rather, he stated that it is the dentist who does that. Further, when asked if he did anything to see that fluoride trays were used, he stated that Mr. Knight saw his dentist and began fluoride treatment two weeks after completion of the radiation treatment, and that it is the dentist’s purview to manage the patient’s teeth. Therefore, read in context, Dr. Gould clearly did not make an express acknowledgement of an adverse fact, as argued by the plaintiffs.

Finally, in addition to the testimony of the five radiation oncology experts, the testimony of two oral and maxillofacial surgeons was also presented at trial. Particularly, Dr. Randall Wilk, who, after reviewing the excerpt from the radiation oncology textbook relied upon by Dr. Heysek in forming his opinion that the standard of care mandates the use of fluoride trays, stated that the textbook speaks of the use of fluoride rinse or gel, and that only the gel can be used in carriers or trays.

| nTherefore, based on our review of the entire record, we find that the jury was clearly presented with conflicting testimony as to the standard of care under these circumstances and apparently chose to give more weight to the defendant’s experts. Given the discretion afforded to the jury in making such a determination, and because the jury’s finding that the plaintiffs failed to prove the applicable standard of care is reasonably supported by the record, we find no manifest error.

Further, based on our determination of this issue, we likewise find no manifest error in the trial court’s judgment denying the plaintiffs’ motion for JNOV. See Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, 92-1545, pp. 41-42 (La.App. 1st Cir.3/11/94), 634 So.2d 466, 491-492, unit denied, 94-0906 (La.6/17/94), 638 So.2d 1094.

CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court, dismissing the plaintiffs’ claims against Raymond Clay Gould, M.D. with prejudice and denying plaintiffs’ motion for judgment notwithstanding the verdict. All costs of this appeal are assessed to the plaintiffs, Car-mel Knight, Cynthia Knight Thibodaux, and Dwayne Paul Knight.

AFFIRMED.

      . Originally, Cannel Knight wife of/and Philip Knight were the named plaintiffs in the instant action. However, following Philip Knight’s death on February 22, 2009, his two. adult children, Cynthia Knight Thibodaux and Wayne Paul Knight, along with Cannel, were substituted as plaintiffs for Philip Knight.


author:
CLARENCE E. McMANUS, Judge.
      CHEHARDY, J.,

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. 10-CA-428 C/W 10-CA-429.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.
    Rehearing Denied May 31, 2011.

      Richard J. Tomeny, Jr., Christine L. Desue, Dutel & Tomeny, Attorneys at Law, Metairie, LA, for Plaintiffs/Appellants.
    Barry W. Ashe, Scott T. Whittaker, J. Dalton Courson, Brook C. Tigchelaar, Stone Pigman Walther Wittmann, Attorneys at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

|2This is an appeal by plaintiffs from the trial court’s granting of defendants’ exception of prescription. For the following reasons, we affirm the trial court’s judgment.

STATEMENT OF THE CASE

In 1972, Robert and Norma Brennan formed Brennan House of Printing, Inc. (hereinafter referred to as “BHOP”), with Robert as the sole shareholder with 200 shares of common stock. Robert and Norma had four children: Daniel, Fonda, Sheila, and Marleen. Daniel and Fonda eventually began working for BHOP. In 1981, Robert and Norma transferred 100 shares of stock to their children. Daniel received a majority 51 shares, Fonda received 24 shares and Sheila and Marleen each received 12½ shares. Robert died in 1984 and Norma later died in 2003. Following his father’s death, Daniel assumed control of the company and became president of BHOP. In 1988, Brennan’s Direct Mail, Inc. (hereinafter referred to as “BDM”) was formed and was operated in connection with BHOP.

|sOn October 15, 1990, BHOP purchased a lot on Blessey St. in Elmwood Industrial Park on which to construct a new building for the business. BHOP paid $146,625.00 for the lot. On October 17, 1991, Daniel and his wife, Anne, purchased the Blessey St. property from the company, for the same amount originally paid for the lot. The building was then built on the lot in 1992 and BHOP/BDM has occupied the building since that time. The company paid rent to Daniel and Anne for the use of the building.

Daniel died in January 2003 and Anne was then named director of BHOP/BDM. Sheila, Fonda and Marleen (hereinafter collectively referred to as “plaintiffs”) claim they first discovered that Daniel and Anne had purchased the lot from BHOP when Daniel died in January 2003. On March 25, 2004, plaintiffs filed a petition entitled In Re: Brennan’s House of Printing, Inc. and Brennan’s Direct Mail, Inc, No. 605-676 seeking involuntary dissolution of the corporation and rescission of sale of the Blessey St. property. Plaintiffs sought dissolution and liquidation of BHOP and BDM, rescission of the sale of the Blessey St. property from BHOP to Daniel and Anne, and return of all rent collected by Daniel and Anne for the companies’ use of the building.

In 2006, four more related lawsuits were filed. On July 5, 2006, a petition was filed by Fonda, Sheila and Marleen, on behalf of the BHOP, (hereinafter collectively referred to as “plaintiffs”) entitled Brennan’s House of Printing, Inc. v. Anne E. Brennan, et al, No. 633-030, again seeking rescission of the sale of the Blessey St. property and return of all rental payments. On July 5, 2006, in case number 633-030, a writ of sequestration was issued and a motion to deposit rent payments into the registry of the court was granted by the trial court allowing the company to retain ownership of the property with rental payments being deposited into the registry of the court.

|4On July 14, 2006, a petition was filed entitled Brennan’s House of Printing, Inc. v. Brennan’s Direct Mail, Inc., No. 633-425, in which BHOP sought money that BDM owed. And finally, on August 6, 2006, two more petitions were filed entitled In Re Brennan’s Direct Mail, Inc., No. 634-044, in which the plaintiffs sought the involuntary dissolution of BDM, and Brennan’s House of Printing, Inc. v. Anne E. Brennan and Robert Michael Brennan, No. 634-384, in which BHOP sought damages from Anne Brennan for the alleged breach of her fiduciary duties.

On October 27, 2008, all five related lawsuits were consolidated upon consent judgment of the parties. Thereafter, on March 16, 2009, defendants, Anne Brennan and her children, filed an exception of prescription with regard to the claims in case numbers 605-676 and 633-030 for rescission of the sale of the property. Defendants argued that the sale of the property occurred in 1991 and the earliest filed lawsuit was filed in 2004. Thus, defendants argued that plaintiffs’ claims were prescribed pursuant to the ten year prescriptive period for personal actions, the five year prescriptive period for actions asserting a relative nullity, and the ten year prescriptive period for claims pursuant to LSA-R.S. 9:5681, now LSA-R.S. 9:5646. In opposition to the exception, plaintiffs argued the sale of the land was an absolute nullity, which never prescribes.

A hearing on the exception was held before the trial court on January 9 and 10, 2009. The trial court issued a written judgment on September 23, 2009 granting the exception of prescription, finding the claims for rescission of the sale and for return of the rent payments are barred by liberative prescription. The trial court dismissed all rescission claims and requests for related ancillary relief in case number 605-676, and dismissed all claims in case number 633-030. The trial court also dissolved the writ of sequestration in ease number 633-030, awarding defendants damages for the wrongful issuance of the writ, in an amount to be ^determined at a subsequent hearing. Written reasons for judgment were issued by the trial court January 15, 2010. The trial court found plaintiffs’ claims are barred by the ten year prescriptive period of LSA-R.S. 9:5681, the five year prescriptive period of LSA-C.C. art. 2032, and the ten year prescriptive period of LSA-C.C. art. 3499.

Plaintiffs now appeal the judgment granting the exception of prescription. For the following reasons, we affirm the trial court’s judgment.

DISCUSSION

This is an appeal from the trial court’s granting of the exception of prescription and dismissal of the claims for rescission of the sale of the Blessey St. property. In reviewing an exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Babin v. Babin, 08-776 (La. App. 5 Cir. 3/10/09), 10 So.3d 784.

Plaintiffs’ petitions in case numbers 605-676 and 633-030 seek rescission of the sale of the Blessey St. property. Plaintiffs allege Daniel lacked the authority to sign the act of sale on behalf of BHOP. Defendants urge several possible applicable prescriptive periods, but ultimately argue that under any of these prescriptive periods, plaintiffs’ claims are prescribed. In their exception of prescription, defendants argued plaintiffs’ claims for recession of the sale of the property are barred by the ten year prescriptive period for filing personal actions pursuant to LSA-C.C. art. 3499, the five year prescriptive period for actions asserting a relative nullity pursuant to LSA-C.C. art. 2032, and the ten year prescriptive period under LSA-R.S. 9:5681, now LSA-R.S. 9:5646. In opposition, plaintiffs alleged the sale is an absolute nullity, therefore, their claim never prescribes.

IfiThe trial court granted the exception of prescription and found that all of the prescriptive periods argued by defendants applied and the claims of plaintiffs are barred. Plaintiffs now appeal this judgment. Plaintiffs argue the sale transaction is an absolute nullity because Daniel and Anne purchased the property without shareholder approval, in violation of LSA-R.S. 12:84. Plaintiffs contend that the sale transaction is an absolute nullity and therefore, their claims for rescission of the sale do not prescribe. The trial court found an absolute nullity does not exist and applied a five year prescriptive period for a relative nullity pursuant to LSA-C.C. art. 2032. In opposition to this appeal, defendants argue plaintiffs’ claims are asserted for relative nullity of the contract of sale and not for absolute nullity. For the reasons which follow, we agree with the trial court and find the plaintiffs’ claims for rescission of the sale are prescribed.

First, we find the claims by plaintiffs assert a relative nullity and not an absolute nullity. LSA-C.C. art. 2032 provides that an action for annulment of an absolutely null contract does not prescribe and an action for annulment of a relatively null contract must be brought within five years from the time the ground for nullity either ceased, as in the case of incapacity or duress, or was discovered, as in the case of error or fraud. A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. LSA-C.C. art. 2031. A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. LSA-C.C. art. 2030.

In this case, we agree with the trial court and find the plaintiffs’ claims seeking rescission are for the relative nullity of the sale transaction and not claims of rescission based on an absolutely null contract. Plaintiffs’ petitions allege Daniel breached his fiduciary duty to the corporation by selling the property to |7himself and his wife without shareholder approval and without following other corporate formalities, in violation of LSA-R.S. 12:84. Plaintiffs seek rescission of the sale based on this breach of fiduciary duty. Plaintiffs’ claims do not allege a violation of a rule of public order which would create an absolute nullity in accordance with LSA-C.C. art. 2030. Instead, plaintiffs allege acts of fraud by Daniel which would render the sale transaction a relative nullity. Thus, we find plaintiffs’ claims seek rescission of the sale based on relative nullity of the sales contract.

In accordance with LSA-C.C. art. 2032, an action for annulment of a relatively null contract based on fraud must be brought within five years of discovery of the ground for nullity. Plaintiffs argue they first learned of the sale of the property to Daniel and Anne following Daniel’s death in January 2003, therefore, they filed their petition within five years of discovery of the fraud. The issue of prescription in this ease requires a determination of when the plaintiffs knew of the sale of the property. The trial court found, based on the testimonies presented at trial, that the plaintiffs knew or should have known of the sale of the property from the company to Daniel and Anne in 1991 around the time of the actual sale. Fonda and Sheila testified that prior to the 1991 sale Daniel offered each of them the opportunity to purchase the property for the same price Daniel eventually paid, if they could personally secure financing to build the building. Fonda and Sheila both declined the opportunity to purchase the property. Additionally, the sale transaction of the property from the company to Daniel was documented in the company’s financial records and tax returns. Therefore, the shareholders, including Fonda, Sheila, and Marleen, should have known of the sale of the property at the time of its execution in 1991. Further, no evidence was offered to show that Daniel or Anne attempted to hide the sale from anyone. | ¡/Therefore, we agree with the trial court and find the plaintiffs knew or should have known that Daniel and Anne had purchased the property from the company in 1991. Plaintiffs’ first lawsuit seeking rescission of the sale was filed in '2004, which is thirteen years after the sale of the property to Daniel and Anne. Thus, plaintiffs’ claims for rescission on the relative nullity of the sale contract are prescribed under the five year prescriptive period set forth in LSA-C.C. art. 2032 and the trial court correctly granted defendants’ exception of prescription on that basis.

Additionally, plaintiffs argue on appeal that the trial court incorrectly held that the claims they filed are personal actions to rescind the sale of the immovable property and are prescribed pursuant to La. C.C.art. 3499. The trial court held that an action to nullify a real estate sale is a personal action and a ten year prescriptive period applies. Plaintiffs assert their claims are real actions because the subject of the lawsuits is the ownership of real estate, thus, the ten year prescriptive period of LSA-C.C. art. 3499 does not apply.

LSA-C.C. art. 3499 provides that “[u]n-less otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.” We agree with the trial court and find the plaintiffs’ claims are personal actions, which are prescribed in accordance with LSA-C.C. art. 3499. The sale was executed in 1991 and plaintiffs’ first petition was filed in 2004. As discussed above, plaintiffs knew or should have known of the sale at the time it was executed or shortly thereafter. Thus, plaintiffs’ petitions were filed more than ten years after the sale and are prescribed.

Plaintiffs further argue on appeal that former LSA-R.S. 9:5681, now LSA-R.S. 9:5646, does not apply in this case because it is a recordation statute and there are no allegations of improper recor-dation of the sale. In their petition, the 19plaintiffs have alleged Daniel lacked the authority to sign the act of sale, thus, the company is entitled to a rescission of the sale. The former LSA-R.S. 9:5681, now LSA-R.S. 9:5646, provided for a ten year prescriptive period and stated the following:

Any action to set aside a sale, transfer, lease, mortgage, encumbrance, or any other document by any legal entity or unincorporated association affecting any immovable property located in this state on the ground that the officer, agent, or other representative of the legal entity or unincorporated association signing the document was without authority to do so is prescribed by ten years, reckoning from the day the document was recorded in the mortgage or conveyance records, or both, as applicable, of the parish in which the immovable property is located. Nothing contained in this Section shall be construed to limit or to establish a prescriptive period as to any proceeding which may arise between the legal entity or unincorporated association and the person acting in a representative position.

Plaintiffs contend this statute does not apply, or in the alternative, that there is an exception to the prescriptive period contained in the statute which precludes the granting of the exception of prescription. Plaintiffs contend the last sentence of this statute provides an exception to this ten year prescriptive period for any proceeding between the legal entity and a person acting in a representative position.

The trial court noted, and we agree, that this exception does not apply in this situation because Daniel was the person acting in a representative position during this sale and he is deceased. Thus, he is not a defendant and this is not a proceeding between the legal entity and the person in a representative position. Therefore, we find this statute is applicable and the ten year prescriptive period set forth in the former LSA-R.S. 9:5681 applies. As previously discussed, the earliest filed lawsuit was filed in 2004, more than ten years after the sale of the property. Thus, we find plaintiffs’ claims have prescribed pursuant to the former LSA-R.S. 9:5681.

1 inFinally, plaintiffs claim the trial court erred by dissolving the writ of sequestration because prescription was the only issue before the trial court at the July 9 and 10, 2009 hearing, so no contradictory hearing regarding the writ of sequestration was held as required by LSA-C.C.P. art. 3506. Plaintiffs contend the writ of sequestration was still in effect and no contradictory motion to dissolve was filed. In opposition, defendants claim the request to dissolve the writ of sequestration was part of the exception of prescription and the contradictory hearing on the request was held at the same time as the hearing on the exception.

The petition in case number 633-030, filed by plaintiffs on July 5, 2006, contained a request for the sequestration of the immovable property and for the rents to be deposited into the registry of the Court. An order issuing the writ of sequestration was signed by the trial court on July 5, 2006 and the rental payments were deposited into the registry of the court after that date. Upon the granting of the exception of prescription, the trial court dismissed all claims brought in the July 5, 2006 petition in case number 633-030. The order issuing the writ of sequestration was based upon the petition in that case. When the trial court granted the exception and dismissed the claims, the trial court found there were no longer grounds for the writ of sequestration.

We find the trial court correctly dissolved the writ of sequestration. By this opinion, we affirm the finding of the trial court that plaintiffs’ claims in case number 633-030 are prescribed and are dismissed. Thus, there are no longer grounds for the writ of sequestration of the property at issue.

Accordingly, we affirm the trial court’s judgment granting defendants’ exception of prescription and dismissing plaintiffs’ claims seeking rescission of the sale of the property in case numbers 605-676 and 633-030.

AFFIRMED

CHEHARDY, J., dissents with reasons.

CHEHARDY, J.,

dissents with reasons.

|,1 respectfully dissent. I believe the trial judge erred in sustaining the defendants’ exception of prescription because, in my opinion, the 1991 transfer of the Bles-sey Street property to Daniel and Anne Brennan was a simulated sale.

A contract is a simulation when, by mutual agreement, it does not express the true intent of the parties. La. C.C. art. 2025. When the parties enter into a contract, but intend for that contract to produce no effects between them, the contract is an absolute simulation and has no effects between them. La. C.C. art. 2026.

Where the parties intend that their contract shall produce effects, although different from those effects recited in their contract, the contract is a relative simulation. A relative simulation will produce the effects intended by the parties if all requirements for those effects have been satisfied. La. C.C. art. 2027.

It is a sham because the true intent of the parties is that no transfer take place, but rather that title remain in the purported vendor because no consideration whatsoever was paid. Successions of Webre, 247 La. 461, 172 So.2d 285 (1965); Pounds v. Yancy, La.App. 224 So.2d 1. The action in simulation is imprescriptible. Successions of Webre, supra.

| aHere, the testimony at trial revealed that Anne Brennan could not produce evidence that she and her husband had paid the corporation for the land. In fact, the land was “paid for” by money obtained through a loan, which the corporation repaid or is repaying.

Further, the transfer could not even be considered a valid donation. If the contract is a relative simulation, it will constitute a valid donation if all the requirements for a donation have been satisfied. The Civil Code requires inter vivos donations of immovable property to be made by authentic act, La. C.C. art. 1541; must contain a detailed description of the property given, La. C.C. art. 1542; and must be accepted by the donee in precise terms. La. C.C. art. 1544.

An explicit acceptance is required. La. C.C. art. 1544; In re Succession of Jones, 48,365, p. 2 (La.App. 2 Cir. 6/4/08); 986 So.2d 809, 810, writ denied, 08-2023 (La.12/12/08), 996 So.2d 1117. Although there are no ritual words required, there must be some explicit language to signify acceptance. A signature alone cannot be construed as an acceptance, and acceptance cannot be inferred from the circumstances. Id., 43,365 at p. 3, 986 So.2d at 811.

Even if Daniel, as mandatary for BHOP, could have donated BHOP’s property to himself and his wife, which is prohibited by La. C.C. art. 2998, the Act of Sale executed by Daniel Brennan is insufficient to constitute acceptance. As such, there was not even a valid donation of the property to Daniel. Because this transfer is clearly a simulation, which is imprescriptible, I believe that the trial judge erred in maintaining defendants’ exception of prescription. I would vacate that ruling and remand for further proceedings in this matter.