source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    James ROLLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5334.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2012.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Gina M. Girardot, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

James Rolle appeals his conviction of lewd and lascivious molestation. He raises four issues, but we find merit in only one. We reverse and remand for a new trial because the trial court abused its discretion in allowing the introduction of evidence of uncharged collateral crimes that were not inextricably intertwined with the charged crime.

Rolle is the younger half-brother of the victim’s mother. The victim’s mother testified that she was like a second mother to Rolle, and he would come and stay with her and her family for any types of school breaks. It was common for family, including Rolle, to come over for sleepovers at her house. All of the kids, including Rolle, would sleep on the living room floor. The last sleepover was in either 1999 or 2000, during Rolle’s service in the Marines. Rolle served in the Marines from 1997 to 2000, but while he was out for a couple of months during that time, he stayed with the victim’s family. Rolle was ultimately charged with committing the offense against the victim between July 16, 1998, and August 31, 1999.

Over defense objection, the court allowed the victim to testify that when she was four or five and living in Pembroke Pines, Rolle began touching her vagina and breasts. She moved with her family to Clearwater when she was about five and lived there until she was about thirteen. Rolle continued the inappropriate touching whenever he came to visit in Clearwater. She remembered the touching happening when Rolle was home from the Marines.

Rolle argues that the trial court abused its discretion in allowing the victim to testify to uncharged acts that allegedly occurred in a different jurisdiction when Rolle was a minor. We agree. It is only when it is impossible to give a complete or intelligent account of the charged crime without reference to uncharged crimes that evidence of those uncharged crimes is admissible. Wright v. State, 19 So.3d 277, 292 (Fla.2009); Griffin v. State, 639 So.2d 966, 968 (Fla.1994) (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)) (“[E]vidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged ... is admissible under section 90.402 because ‘it is a relevant and inseparable part of the act which is in issue.’ ”).

But here, the victim’s testimony that Rolle touched her sexually when she lived in Pembroke Pines was not at all necessary to an understanding of her testimony that Rolle touched her sexually in Clear-water during the charged time frame. See Sabine v. State, 58 So.3d 943, 947 (Fla. 2d DCA 2011) (holding that evidence of similar incidents prior to and subsequent to the alleged twenty counts of capital sexual battery over a five-year period “was unnecessary to describe the charged acts, provide an intelligent account of the charged crimes, establish the context of the charged offenses, or describe the events leading up to the offenses”); Wightman v. State, 982 So.2d 74, 76 (Fla. 2d DCA 2008) (“[T]he assertion that Wightman committed the similar acts of molestation multiple times on different undetermined dates was not necessary for an understanding that the two discrete acts charged in the information took place at any time”).

Because the trial court abused its discretion in allowing the victim to testify to uncharged collateral acts that were not necessary to prove or explain the charged offense, we reverse and remand for a new trial.

Reversed and remanded for a new trial.

KELLY and VILLANTI, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Alex BISTRICER, as limited partner of Gulf Island Resort, L.P., and Gulf Island Resort, L.P., Appellants, v. William PALMER, Cathy Palmer, and JP Morgan Chase Bank, N.A., Appellees.
    No. 2D11-1350.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2012.

      Maurice J. Baumgarten of Anania, Bandklayder, Baumgarten & Torricella, Miami (withdrew after briefing), for Appellants.
    Eric E. Page and Jill K. Bell of Hill, Ward & Henderson, P.A., Tampa, for Ap-pellees William Palmer and Cathy Palmer.
    No appearance for JP Morgan Chase Bank, N.A.
   ALTENBERND, Judge.

Alex Bistricer, as limited partner of Gulf Island Resort, L.P., and Gulf Island Resort, L.P., appeal a “Summary Final Judgment” entered in favor of William and Cathy Palmer. The underlying action to “quiet title,” which was filed in March 2008 by Mr. Bistricer and the limited partnership, challenged the validity of a deed that transferred property to the Palmers in March 2003. The Palmers obtained the summary judgment on the theory that the action was barred by the four-year statute of limitations applicable to actions alleging fraud. See § 95.11(3)(j), Fla. Stat. (2002). We reverse. Although the complaint to quiet title may be poorly drafted, and although Mr. Bistricer and the limited partnership may have been defrauded by a third party, this is an action to recover real property. It does not allege fraud in law or equity. Therefore, it cannot be barred by this statute of limitations.

According to the complaint, Mr. Bistri-cer was a limited partner of Gulf Island Resort, L.P. This limited partnership owned certain condominium units in a project known as Gulf Island Resort in Pasco County, Florida. The general partner in this limited partnership was Gulf Island Resort, Inc. The shares of stock in the corporation were owned by three men— Mr. Bistricer, Eisi Markovitz, and Robert Fireworker. Allegedly, the three men entered into a written “restrictive covenant agreement” in 1996. This agreement specified that all closings for the limited partnership would be conducted by a certain title insurance company and that no property would be sold unless all three men signed the deed or unanimously agreed in writing to the transfer of property.

At some time between 1996 and 2003, Mr. Markovitz allegedly filed improper documents with the Florida Secretary of State making it appear that he was the sole officer of the corporation and changing the address of the corporation to his home address. In March 2003, he alone signed a deed to transfer a condominium unit owned by the limited partnership to the Palmers. In their complaint, Mr. Bis-tricer and the limited partnership, in essence, maintained that the Palmers’ deed to the property was voidable because it was not signed by a person legally authorized to transfer title for property owned by the limited partnership and because the Palmers knew or were on constructive notice of this fact.

The sole issue before this court is whether this action to quiet title is barred by the statute of limitations for actions alleging fraud. The trial court benefitted this court with the reasoning underlying its decision. It explained that the claim, although captioned as an action to quiet title, was “primarily founded on allegations of fraudulent misconduct.” Relying on dicta in Mohican Valley, Inc. v. MacDonald, 443 So.2d 479 (Fla. 5th DCA 1984), the trial court concluded that it should treat the action as one for fraud and apply the four-year statute of limitations that controls actions for fraud.

The problem with this reasoning is that the complaint simply does not allege a claim in fraud. It does not allege that the Palmers misrepresented anything to Mr. Bistricer or to the limited partnership. It does not allege that anyone relied on any misrepresentation by the Palmers. If the Palmers believed that the complaint did not allege a claim to quiet title and that Mr. Bistricer’s proper remedy was a claim of fraud against some third party, they should have filed a motion to dismiss the complaint for failure to state a cause of action. They simply could not file a motion for summary judgment on the theory that a different complaint would have been barred by the statute of limitations for fraud.

We are aware that Mr. Bistricer has filed similar actions against others who took title to condominium units by deeds signed by Mr. Markovitz. See Bistricer v. Nitchie, 88 So.3d 158 (Fla. 2d DCA 2011) (table decision). In the other actions, attempts to apply the statute of limitations for fraud were rejected by another circuit court judge in Pasco County. In at least one action, Mr. Bistricer suffered a summary judgment because he could not present any evidence that the purchasers were aware that the deed was unauthorized. Id. Thus, although we reverse and remand for further proceedings, Mr. Bistricer and the limited partnership face many challenges in this proceeding.

Reversed and remanded.

DAVIS and VILLANTI, JJ„ Concur.

      . The complaint was subsequently amended, but the amendments do not alter our disposition in this appeal. For the purpose of this opinion, we refer to both pleadings as the "complaint.”

      . At this juncture of the case, we emphasize that Mr. Markovitz and Mr. Fireworker are not parties to this action and that we have no basis to know whether any of the allegations made by Mr. Bistricer and the limited partnership are true. Moreover, whether the facts as alleged would be sufficient to authorize an action to quiet title is not an issue presented by this appeal. We have no need to decide what statute of limitations might be applicable to this action.

      . The time within which to commence an action alleging fraud begins to run at the point where the plaintiff discovers or should have discovered the facts giving rise to the claim. § 95.031(2)(a), Fla. Stat. (2002). Apparently, the trial court determined that Mr. Bistricer and the limited partnership discovered or should have discovered this fraud within a year of the execution of the disputed deed.

      .Consolidated case numbers 2D 10-3901 and 2D 10-3904 were affirmed without a written opinion in Bistricer, 88 So.3d 158. However, some of the filings from those cases were presented to the trial court in the present matter, and they are contained in this court’s appellate record. Additionally, we have taken judicial notice of our files in case numbers 2D 10-3901 and 2D10-3904.


text:
    Kenneth BRAYLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3063.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2012.

      James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

We affirm Kenneth Brayley’s judgments and sentences for felony driving under the influence of alcohol (third offense), refusal to submit to testing, driving while license suspended or revoked, and operating a motorcycle without endorsement. But, as conceded by the State, wé must reverse the order imposing restitution because it was entered after Brayley filed his notice of appeal, which divested the trial court of jurisdiction. See Renfroe v. State, 20 So.3d 1027 (Fla. 2d DCA 2009). On remand, the trial court may conduct another hearing and again enter an order imposing restitution.

Affirmed in part, reversed in part, and remanded.

KELLY and VILLANTI, JJ., Concur.


text:
    Edward Harris KOUNTZE, individually and as Trustee of the Denman Kountze, Jr., Revocable Trust Agreement, Appellant, v. Charles Denman KOUNTZE, Individually, Appellee.
    No. 2D12-444.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2012.
    Adrian Philip Thomas and Daniel A. McGowan of Adrian Philip Thomas, P.A., Ft. Lauderdale, for Appellant.
    Jeffrey D. Fridkin, D. Keith Wickenden, and Michael T. Traficante of Grant, Frid-kin, Pearson, Athan & Crown, P.A., Naples, for Appellee.
   WHATLEY, Judge.

We dismiss this appeal as moot. See Kountze v. Kountze, 93 So.3d 1164, 2012 WL 3111681 (Fla. 2d DCA Aug. 1, 2012).

KELLY and VILLANTI, JJ., Concur.


author: EVANDER, J.

text:
    FLORIDA POWER AND LIGHT COMPANY, Appellant/Cross-Appellee, v. CITY OF SOUTH DAYTONA, Florida, etc., Appellee/Cross-Appellant.
    No. 5D11-2573.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2012.

      Raul B. Manon and Alvin B. Davis of Squire Sanders & Dempsey (US) LLP, Miami, for Appellant/Cross-Appellee.
    David A. Vukelja and Jarett A. de Paula, of David A. Vukelja, P. A., and Scott E. Simpson, of Scott E. Simpson, P. A., Or-mond Beach, for Appellee/Cross-Appel-lant.
   EVANDER, J.

Florida Power and Light (FPL) appeals, and the City of South Daytona (City) cross-appeals, from an amended declaratory judgment. We affirm in part and reverse in part.

In 1978, FPL and the City entered into a franchise agreement, whereby the City granted FPL the right to place its electric facilities within the City for the purpose of supplying electricity within the City for a period of thirty (30) years. In return, FPL paid a monthly franchise fee to the City equal to six percent (6%) of FPL’s revenues from the sale of electric power to the City and its residents. The franchise agreement also granted the City, at the expiration of the thirty-year franchise term, the option to purchase FPL’s property utilized by FPL under the agreement for an amount equal to the existing cost of replacement of such property, less depreciation to date of sale.

The agreement expired on or about June 28, 2008. The parties were unable to agree on the term of the new franchise agreement and the City expressed its interest in acquiring FPL’s property. The City subsequently brought a declaratory judgment action requesting a declaration on: (1) the inventory of FPL’s assets that were subject to the purchase option; (2) the amount of money the City would be required to pay FPL to acquire those assets, and (3) whether the City would be obligated to pay FPL’s “stranded costs.” After a two-day non-jury trial, the trial court entered an amended declaratory judgment (1) setting forth the assets subject to the City’s option to purchase, (2) determining that the purchase option price would be $15,543,603.00, and (3) concluding that FPL would not be entitled to recover stranded costs from the City.

FPL appealed the trial court’s ruling on the stranded cost issue. At oral argument, the City properly conceded that it was error for the trial court to make a determination that FPL was precluded from seeking stranded costs should the City exercise its purchase option and subsequently purchase power from an entity other than FPL. Both parties now agree that such issue would have to be decided by the appropriate regulatory board. See Transmission Access Policy Study Grp. v. Fed. Energy Regulatory Comm’n, 225 F.3d 667 (D.C.Cir.2000).

In its cross-appeal, the City challenged the purchase option value found by the trial court. We conclude that the trial court’s determination of the purchase option price was supported by substantial, competent evidence and affirm as to that issue. We find no merit to the City’s argument that the evidence presented by FPL as to depreciation rates was contrary to the parties’ rather ambiguous pretrial stipulation.

AFFIRMED, in part; REVERSED, in part; REMANDED.

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

      . Subsequent to the expiration of the thirty-year term, FPL has continued to provide electrical services to the City and to pay the franchise fee.

      . The "stranded costs” that could potentially be sought by FPL are those costs that FPL incurred with regulatory approval and with the expectation that it would continue to serve the City beyond the expiration of the franchise agreement. Such costs would become "stranded” if the City exercised its purchase option, took advantage of the open transmission access rule adopted by the Federal Energy Regulatory Commission in 1996, and utilized FPL's transmission lines to acquire power from a supplier other than FPL. See 61 Fed.Reg. 21540-01 (May 10, 1996); Transmission Access Policy Study Grp. v. Fed. Energy Regulatory Comm’n, 225 F.3d 667, 683 (D.C.Cir.2000).


author: VTLLANTI, Judge.

text:
    Timothy Paul TEDESCO, Appellant, v. DEPARTMENT OF REVENUE, o/b/o Margaret Allison Samuels, Appellee.
    No. 2D11-4668.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2012.

      Timothy Paul Tedesco, pro se.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   VTLLANTI, Judge.

Timothy Paul Tedesco seeks review of the trial court’s order that adopted the magistrate’s recommended order of dismissal of his motion for relief from a child support order, as well as the denial of his motion for rehearing. The Department of Revenue has correctly conceded error, and we reverse and remand for further proceedings.

Several overlapping trial court orders and a mistaken date written on one of the orders have resulted in some procedural disarray. Because of this, we recount the events in this case in some detail to explain how the error occurred.

Tedesco filed a petition for modification of time-sharing and child support on June 5, 2009, and the trial court referred the motion to a magistrate on October 15, 2009. At a hearing held March 15, 2010, the magistrate bifurcated the two issues, addressing only the time-sharing issue at that hearing and specifically leaving the child support issue open. On May 27, 2010, the magistrate issued his recommended order on time-sharing, and Tedes-co filed exceptions on June 4, 2010. The trial court denied these exceptions after a hearing and rendered its order adopting the magistrate’s recommended order on time-sharing on July 9, 2010. Tedesco filed a notice of appeal from this final order on August 9, 2010. This court’s file in that appeal, Case No. 2D10-3846, shows that only the July 9, 2010, order addressing time-sharing was attached to the notice of appeal, and the issues raised in Tedes-co’s brief related solely to that order.

Meanwhile on July 27, 2010, the magistrate held the hearing on the child support issue that had been previously bifurcated. The magistrate’s recommended order was filed with the clerk on August 3, 2010; however, the handwritten date on the order is July 2, 2010. Given that the hearing was scheduled for July 27, 2010, and that the recommended order itself states that the case “c[a]me before the Court on July 27, 2010,” the handwritten date appears to be a mistake. Nevertheless, the trial court entered an order on August 3, 2010, adopting the magistrate’s recommended order and stating that it was doing so because no exceptions had been filed within the ten-day period in which to file exceptions. This ruling appears to be based on the trial court’s presumed acceptance of the erroneous handwritten date on the recommended order.

On August 9, 2010, Tedesco filed timely exceptions to the magistrate’s August 3, 2010, recommended order on child support. Tedesco also filed a motion to vacate the trial court’s August 3, 2010, order on child support, noting that the court had adopted the magistrate’s recommended order before the time for filing exceptions had expired. The trial court never ruled on the exceptions or the motion to vacate.

On May 3, 2011, Tedesco filed a motion for relief from the trial court’s August 3, 2010, order ■ on child support. The trial court referred this motion to the magistrate, who recommended that the motion be dismissed based on the magistrate’s mistaken belief that the child support order was included in the appeal of the time-sharing order. Tedesco filed timely exceptions to the magistrate’s recommended order, correctly pointing out that only the time-sharing order was on appeal — not the child support order. The trial court set the exceptions for hearing, and it mailed a notice of hearing to the parties. Unfortunately, the notice of hearing was defective in that it set the hearing for “Tuesday, July 18, 2011,” when July 18, 2011, was actually a Monday. Not surprisingly, Ted-esco failed to appear on Monday, July 18, 2011, and the trial court denied his exceptions and adopted the magistrate’s recommended order on that date.

Tedesco did appear, however, on Tuesday, July 19, 2011, at the time set out in the notice, as confirmed by the court security officer. Upon learning of the trial court’s ruling the day before, Tedesco immediately filed a motion for rehearing, noting that he had failed to appear because of confusion arising from the defect in the court’s notice of hearing. The Department conceded that the notice of hearing was defective and that Tedesco was entitled to be heard on his exceptions. The trial court also conceded that the notice of hearing was defective. Inexplicably, however, the trial court denied the motion for rehearing on the grounds that it had set the hearing on Tedesco’s exceptions solely “to explain the prior rulings to the pro-se litigant.” The court concluded that a hearing on Tedesco’s exceptions “was not necessary” since it had now entered a “written order explaining the basis for the denial” of the exceptions. Tedesco now seeks review of the dismissal of his motion for relief from the child support order and the denial of his motion for rehearing.

Turning first to the trial court’s order that dismissed Tedesco’s motion for relief from the child support order, we reverse because that order was based on a mistake of fact. The sole basis for the magistrate’s recommendation to dismiss the motion was that the order from which Tedesco was seeking relief was pending on appeal. However, it is clear from this court’s file in case 2D10-3846, as well as the trial court’s own docket, that the child support order was not on appeal in case number 2D10-3846. Because of this factual error, the trial court abused its discretion by adopting the magistrate’s recommended order rather than considering the motion on its merits. Accordingly, we reverse the dismissal of this motion and remand for further proceedings.

While this disposition renders the issues surrounding the denial of Tedes-co’s motion for rehearing moot, we take this opportunity to note that, on this record, the denial of Tedesco’s motion for rehearing constituted a denial of due process. Florida Family Law Rule of Procedure 12.492(g) requires that exceptions to a magistrate’s recommended order be “heard.” In addition, the constitutional guarantee of due process requires that each litigant be given a full and fair opportunity to be heard. Cnty. of Pasco v. Riehl, 635 So.2d 17, 18-19 (Fla.1994); E.I. DuPont De Nemours & Co. v. Lambert, 654 So.2d 226, 228 (Fla. 2d DCA 1995); Edelman v. Breed, 836 So.2d 1092, 1094 (Fla. 5th DCA 2003). Violation of a litigant’s due process right to be heard absolutely requires reversal. Riehl, 635 So.2d at 18; Vollmer v. Key Dev. Props., Inc., 966 So.2d 1022, 1027 (Fla. 2d DCA 2007); E.I. DuPont De Nemours & Co., 654 So.2d at 228.

Here, the trial court initially scheduled a hearing on Tedesco’s exceptions and sent a notice of hearing to the parties, but Tedes-co failed to appear at the scheduled hearing. Normally, this failure to appear would be considered a waiver of Tedeseo’s right to be heard. Cf. V.D.C. v. Dep’t of Children & Family Servs., 899 So.2d 1193, 1194-95 (Fla. 1st DCA 2005) (noting that a parent’s failure to appear at a properly noticed adjudicatory hearing constitutes a waiver of the right to be heard and a consent to entry of judgment against that parent); Giordano v. Dep’t of Banking & Fin., 596 So.2d 712, 714 (Fla. 1st DCA 1992) (noting that failure to timely petition for an administrative hearing constitutes a waiver of the right to a hearing). However, as Tedesco pointed out in his motion for rehearing, his failure to appear in this case was due to a defect in the trial court’s own notice of hearing rather than any waiver by him of his right to be heard. Such a failure to appear is not properly charged against Tedesco. Cf. J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d 1060, 1066 (Fla.2000) (holding that when the trial court provided notice of hearing less than twenty-four hours before the hearing, the father’s failure to appear did not constitute a waiver of his right to hearing and the order entered as a result of that hearing was a violation of his due process rights).

Moreover, even when Tedesco pointed out the defective notice in his motion for rehearing, the trial court refused to rehear the issue, finding that it was “unnecessary.” However, Tedesco had a due process right to be heard on the issue of his exceptions, and the trial court was not entitled to thwart that right through a defective notice of hearing or a dismissive pronouncement that a hearing was “unnecessary.” Given the Department’s concession in the trial court that Tedesco had a right to be heard, at a minimum the trial court should have held a hearing on the rehearing motion. Its failure to do so under these hopefully unique circumstances constituted an abuse of discretion.

Accordingly, we reverse the trial court’s order adopting the magistrate’s recommended order on Tedesco’s motion for relief from the child support order and dismissing that motion. On remand, the trial court must consider Tedesco’s motion for relief from the child support order on its merits.

Reversed and remanded for further proceedings.

•WHATLEY and KELLY, JJ., Concur.

      . This court may take judicial notice of its own records. See, e.g., Foxworth v. Wainwright, 167 So.2d 868, 870 (Fla.1964); Matthews v. Matthews, 133 So.2d 91, 96 (Fla. 2d DCA 1961), overruled on other grounds by Rigot v. Bucci, 245 So.2d 51 (Fla.1971); Hillsborough Cnty. Bd. of Cnty. Comm'rs v. Pub. Employees Relations Comm'n, 424 So.2d 132, 134 (Fla. 1st DCA 1982).


author: PER CURIAM. THOMAS, J.,

text:
    Paul R. CARRITHERS, Charles Ray Carrithers, and Roy Michael Carrithers, Individually, and Paul R. Carrithers as Trustee of the Belmont Revocable Living Trust u/a/d August 12, 2003, Appellants, v. CORNETT’S SPIRIT OF the SUWANNEE, INC., Appellee.
    No. 1D12-2051.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2012.

      Stephen H. Grimes and Gigi Rollini of Holland & Knight, Tallahassee; Joel F. Foreman of Foreman, Mclnnis & Douglas, P.A., Lake City, for Appellants.
    Edwin B. Browning, Jr. of Davis, Schnit-ker, Reeves & Browning, Madison; Stephen C. Bullock, Lake City; Ross S. Bur-naman, Tallahassee; and Paul F. Cullum, Williamsburg, VA., for Appellee.
   PER CURIAM.

Appellants timely filed this appeal seeking review of an order labeled “Final Judgment for Appellate Attorneys’ Fees and Costs.” This probate order was entered pursuant to an order issued in appellate case 1D10-5248, provisionally granting appellate attorney fees. Review is properly by motion for review filed in the underlying appeal. Fla. R.App. P. 9.400(c). We reject Appellants’ argument that review is properly by appeal pursuant to Florida Rule of Appellate Procedure 9.170(b)(23). Therefore, this court lacks appellate jurisdiction to review the order assessing appellate attorney fees and costs in this appeal, and we dismiss this appeal. See Browning v. New Hope South, 785 So.2d 732 (Fla. 1st DCA 2001). Cf. Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284 (Fla. 1st DCA 1997).

The Florida Supreme Court recently adopted Florida Rule of Appellate Procedure 9.170, Appeal Proceedings in Probate and Guardianship Cases, and removed probate and guardianship cases from Florida Rule of Appellate Procedure 9.110, effective January 1, 2012. In re Amendments to Florida Rules of Appellate Procedure, 84 So.3d 192 (Fla.2011). The new rule provides a non-exclusive list of 24 categories of probate and guardianship orders that are appealable because they finally determine a right or obligation of an interested person. Included in this list are orders that award attorney fees. Fla. R.App. P. 9.170(b)(23). However, an order assessing fees that is entered by a probate court pursuant to an appellate court order provisionally awarding fees is not an order that “awards” attorney fees for purposes of appeal under the new rule. See In re Estate of Udell, 501 So.2d 1286, 1288 (Fla. 4th DCA 1986). The general rule with respect to appellate attorney fees, including appellate attorney fees in probate matters, is that “only the appellate court is authorized to award attorney’s fees to the prevailing party and against the losing party.” Id. “An order determining the amount of appellate attorney’s fees on remand from an appellate court has the characteristics of a final order but review of such an order by a plenary appeal is not necessary or even proper.” Pellar, 687 So.2d at 284.

In Browning, this court “decline[d] to approve appellant’s theory that the notice of appeal should be treated as a motion for review in case number 1D99-4770.” Browning, 785 So.2d at 733. Like the appellant in Browning, Appellants here initiated a new appellate proceeding rather than properly moving for review, thereby foreclosing the right of review by motion in the earlier appeal. But see Pellar, 687 So.2d at 284 (“the filing of an appeal in this case does not foreclose the right of review”). Although Browning would be controlling, it is inconsistent and conflicts with prevailing decisions of the Florida Supreme Court, because it failed to properly apply Florida Rules of Appellate Procedure 9.400(b) and 9.400(c). Kaweblum v. Thornhill Estates Homeowners Ass’n, Inc., 755 So.2d 85, 87 (Fla.2000) (“The use of the word ‘shall’ under rule 9.040(b) demonstrates that transfer of an improperly filed cause is mandatory, not discretionary.”); Johnson v. Citizens State Bank, 537 So.2d 96, 98 (Fla.1989) (“we hold that article V, section 2(a) prohibits a district court from dismissing as untimely a timely notice of appeal filed with the clerk of the circuit court, which should be considered as a petition for a writ of certiorari”). We are bound to follow the case law set forth by the Florida Supreme Court, which “shall prevail until overruled by a subsequent decision of [that] Court.” Hoffman v. Jones, 280 So.2d 431, 440 (Fla.1973). Accordingly, Appellants’ notice of appeal, filed in this appeal on April 18, 2012, is hereby treated as invoking the Court’s review jurisdiction under rule 9.400(c) in appellate case number 1D10-5248. The notice of appeal is transferred to appellate case number 1D10-5248 for further proceedings on the motion for review of the trial court’s order establishing the amount of appellate attorney fees to be awarded to Appellees, including any amount of attorney fees Appel-lee may be entitled to request for review in this court.

Appellee’s motion to dismiss this appeal as untimely filed and to foreclose further review under our precedent in Browning, filed May 10, 2012, is DENIED.

WETHERELL and MARSTILLER, JJ., concur; THOMAS, J., Specially Concurring with Opinion.

THOMAS, J.,

Specially Concurring.

I concur, but if I were writing on a blank slate, I would grant Appellee’s motion to dismiss this appeal under the authority of our recent decision in Browning v. New Hope South, 785 So.2d 732 (Fla. 1st DCA 2001), and deny any further review of the underlying appellate fee order awarded to Appellee. But the court here correctly holds that our precedent in Browning cannot be reconciled with the Florida Supreme Court’s holdings in Kaweblum v. Thornhill Estates Homeowners Ass’n, Inc., 755 So.2d 85 (Fla.2000), and Johnson v. Citizens State Bank, 537 So.2d 96 (Fla.1989). Article V, section 2(a), of our state constitution requires that “no cause shall be dismissed because an improper remedy has been sought.” Kaweblum interpreted this provision and rule 9.040(b), Florida Rules of Appellate Procedure, to confer jurisdiction on the district court where a party filed a notice of appeal in the wrong lower court, which then transferred that notice of appeal to the correct circuit court outside the 30-day jurisdictional time limit in which to invoke appellate jurisdiction. The authority and logic of Kaweblum applies here, where Appellant improperly seeks appellate review of an appellate fee award by filing a notice of appeal rather than by correctly filing a motion for review under rule 9.400(c), Florida Rules of Appellate Procedure.

Here, there is a reasonable argument that this purported appeal is not a “cause” as provided in the state constitution, as it is nothing more than an attempt to obtain further review of an order in a case decided by this court quite some time ago. This matter is similar to a situation where a party fails to properly challenge a trial court ruling and thus waives the right to contest the ruling in an appellate court. As we noted in Browning, the notice of appeal “contained no argument regarding any error ... and it was therefore facially insufficient.” Browning, 785 So.2d at 733. In addition, as we noted in Browning, “The wisdom of Rule 9.400(c) ... is demonstrated by the fact that claimant has filed another motion for attorney’s fees in the new proceeding. If permitted to go forward, this raises the possibility that litigation will never reach a conclusion.” Id. at n. 1 (emphasis added). Obviously, this statement is not true if we simply treat an improperly filed notice of appeal as a motion for review under 9.400(c), but the fact that this court had to spend scarce judicial resources to rectify Appellant’s error here is problematic, to say the least. Furthermore, as noted above, this is not a case where Appellant mischaracterized a type of initial pleading, a lawsuit, or a defense; rather, Appellant improperly filed a notice of appeal and created a new case in this court in order to simply challenge the amount of an attorney fee award, not the entitlement.

Thus, were it not for the supreme court’s holding in Kaweblum, I would grant relief to Appellee by dismissing this appeal and precluding further review of the appellate attorney fee award in this case.

      . Appellant’s present counsel did not represent Appellant in the fee hearing below.


author: PER CURIAM.

text:
    WILLIAM G. GRANEY, P.E. and KTD Consulting Engineers, Inc., Appellants, v. CADUCEUS PROPERTIES, LLC, a Florida Limited Liability Company, and Tallahassee Neurological Clinic, P.A., a Florida Professional Association, Appellees.
    No. 1D11-4093.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2012.
    Lilburn R. Railey, III, Patrick R. Delaney and Rouselle A. Sutton, III of Railey, Harding & Allen, P.A., Orlando, for Appellants.
    Robert N. Clarke, Jr. and Martin B. Sipple of Ausley & McMullen, P.A., Tallahassee, for Appellees.
   PER CURIAM.

Appellants, William G. Graney and KTD Consulting Engineers, Inc., appeal the lower court’s order awarding attorneys’ fees and costs to appellees, Caduceus Properties, LLC (Caduceus) and Tallahassee Neurological Clinic, P.A. (TNC). The lower court awarded costs to Caduceus and TNC as the prevailing parties below, pursuant to section 57.041, Florida Statutes (2011). The lower court also awarded attorneys’ fees to Caduceus pursuant to section 768.79, Florida Statutes (2011), based on the final judgment entered in favor of Caduceus against KTD. We have since reversed the final judgment. See Graney v. Caduceus Props., LLC, 91 So.3d 220 (Fla. 1st DCA 2012).

We now reverse the trial court’s award of costs and fees entered in appellees’ favor. See Hickman v. Barclay’s Int’l Realty, Inc., 12 So.3d 327, 327 (Fla. 4th DCA 2009) (reversing order granting attorney’s fees pursuant to section 768.79 where appellate court reversed trial court’s order granting final summary judgment in favor of appellees); City of Hollywood v. Witt, 939 So.2d 315, 319 (Fla. 4th DCA 2006) (“[W]here an award of attorney’s fees is dependent upon the judgment obtained, the reversal of the underlying judgment necessitates the reversal of the fee award.”); Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999) (“Once a final judgment is reversed and remanded by an appellate court, there can be no prevailing party for purposes of an award of prevailing party attorney’s fees. Consequently, an award of attorney’s fees and costs predicated on a reversed or vacated final judgment also must be reversed.”).

BENTON, C.J., THOMAS, and SWANSON, JJ., concur.


text:
    W.A.R., INC., Appellant, v. LEVY COUNTY and Tarmac America, LLC, Appellee.
    No. 1D12-0189.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2012.
    Robert N. Hartsell, Fort Lauderdale, for Appellant.
    Brian A. Bolves, Tampa, for Appellee Levy County; Frank E. Matthews, Vinette D. Godelia, and Miguel Collazo, III of Hopping, Green & Sams, P.A., Tallahassee; and Gregory V. Beauchamp, Chief-land, for Appellee Tarmac America, LLC, for Appellee.
   PER CURIAM.

W.A.R., Inc., appeals a final order denying declaratory and injunctive relief in appellant’s action pursuant to section 163.3215, Florida Statutes (2010), which challenged the development order of the Levy County Board of County Commissioners (County) that approved the application of Tarmac America, LLC (Tarmac), appellee, to mine lime rock on a site in Levy County containing environmentally-sensitive lands. W.A.R. argues below and on appeal that the County’s development order is inconsistent with Conservation Element Policies 3.1 and 3.8 and Coastal Management Element Policy 5.7 of the County’s Comprehensive Plan. We agree with the trial court that the development order is consistent with the County’s Comprehensive Plan and affirm.

Conservation Element Policy 3.1 provides that “[i]mpacts to ‘high quality’ wetlands on site will be limited to development of necessary improvements consistent with plans approved by state and federal regulatory agencies.” Policy 3.8 provides that environmentally sensitive land “will be protected from mining operations.” The Coastal Management Element Policy 5.7 authorized the County to consider “dredge and fill activities” in the coastal zone “if supported by the U.S. Army Corps of Engineers.” The development order at issue expressly provides that:

There shall be no mining excavation operations or activities, or other activities or construction begun on the Subject Property pursuant to the approval granted by this Order unless and until all of the following have occurred ... (b) issuance of any and all Regulatory Permits by any and all applicable Regulatory Agency or Agencies, including but not limited to the issuance of an Excavation and Fill Permit.

Thus, Tarmac cannot (and Tarmac asserts it will not) proceed with the project until it obtains the permits required by the County’s Comprehensive Plan. We affirm all issues raised on appeal.

AFFIRMED.

VAN NORTWICK, CLARK, and RAY, JJ., concur.


text:
    Ronnie B. CREAMER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5734.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

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


text:
    William T. MORRISON, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2374.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2012.

      William T. Morrison, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order of February 1, 2012, denying petitioner’s motion to correct illegal sentence in Escambia County Circuit Court Case Number 2005-CF-004623A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

VAN NORTWICK, CLARK, and RAY, JJ., concur.

i


text:
    C.M., a child, Petitioner, v. DEPARTMENT OF JUVENILE JUSTICE, Respondent.
    No. 1D12-2530.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2012.
    Nancy Daniels, Public Defender, and Kara Fenlon, Assistant Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is DISMISSED as moot.

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


text:
    EADGEAR, INC., Charles Wang, Cathy Zhang, and Francis Yuen, Appellants, v. Jerry BACA and Doreen Baca, Appellees.
    No. 1D11-6743.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2012.
    Patrick K. McCarthy and Robert A. Goodwin, III of Matthews, Jones & Hawkins, LLP, Destín, for Appellants.
    Jerry Baca and Doreen Baca, pro se, for Appellees.
   PER CURIAM.

“An injunctive order should never be broader than is necessary to secure the injured party, without injustice to the adversary, relief warranted by the circumstances of the particular case. The order should be adequately particularized, especially where some activities may be permissible and proper.” Clark v. Allied As socs., Inc., 477 So.2d 656, 657 (Fla. 5th DCA 1985) (citing Moore v. City Dry Cleaners & Laundry, Inc., 41 So.2d 865, 871 (Fla.1949)). See also Angelino v. Santa Barbara Enters., LLC, 2 So.3d 1100, 1104 (Fla. 3d DCA 2009) (“Injunctions must be specifically tailored to each case and they must not infringe upon conduct that does not produce the harm sought to be avoided.”). Accordingly, paragraphs 12.b.iii. and iv. of the preliminary injunction are stricken. The preliminary injunction is otherwise affirmed, without prejudice to litigation de novo of any question of personal jurisdiction.

Affirmed in part, reversed in part.

BENTON, C.J., THOMAS, and SWANSON, JJ., concur.


text:
    Anthony Sam LADD, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0993.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2012.
    James Owens, Public Defender, and Thomas M. Staples, Assistant Public Defender, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee (no appearance), for Appellee.
   PER CURIAM.

Upon consideration of appellants response to the Courts order of July 6, 2012, the Court has determined that the notice of appeal failed to timely invoke its jurisdiction to review the judgment and sentence, rendered by the lower tribunal on July 11, 2011. Accordingly, the appeal is dismissed.

VAN NORTWICK, CLARK, and RAY, JJ., Concur.


text:
    M. T., Father of L. T., A Minor Child, Appellant, v. J. H., Mother of L. T., A Minor Child, Appellee.
    No. 1D12-2536.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2012.
    E. Clayton Harland, II, of Cole, Stone, Stoudemire & Morgan, Jacksonville; Susan Barber, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee; Wesley Cassano, Guardian ad Li-tem, Jacksonville (no appearance), for Appellant.
    Ward L. Metzger, of Children’s Legal Services, Jacksonville; Kelley Schaeffer, Guardian ad Litem, Tavares; Deborah Stafford, Department of Children & Families, Jacksonville (no appearance); Robert Keep, Jr., Office of Criminal Conflict and Civil Regional Counsel, Jacksonville (no appearance); Christine Meyer, Guardian ad Litem, Jacksonville (no appearance) for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of May 21, 2012, the Court has determined that the notice of appeal, filed on May 15, 2012, failed to timely invoke the Court’s jurisdiction to review the Final Judgment for Termination of Parental Rights and Permanent Commitment and Disposition, which was rendered on April 10, 2012. Fla. RApp. P. 9.110(b). Accordingly, the appeal is hereby dismissed. Any remedy appellant may have lies with the lower tribunal. See In the Interest of E.H., 609 So.2d 1289 (Fla.1992). In light of the foregoing, the Motion to Withdraw as Counsel for Appellant, filed on July 23, 2012, is denied.

VAN NORTWICK, CLARK, and RAY, JJ., concur.


text:
    Alejandro TORRES, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Seasons Hospice & Palliative Care, Appellees.
    No. 1D12-3007.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2012.
    Alejandro Torres, pro se, Appellant.
    A. Robert Whaley, General Counsel, and Louis A. Gutierrez, Senior Attorney, Tallahassee, for Appellee, Reemployment Assistance Appeals Commission.
   PER CURIAM.

Appellee’s Motion to Dismiss is granted and the appeal is hereby DISMISSED. Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998).

VAN NORTWICK, CLARK, and ROWE, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Maidolys BENITEZ, a/k/a Maidolys Benitez-Fornais, and Michael Lane, Appellees.
    Nos. 3D11-474, 3D11-473, 3D11-467, 3D11-470.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2012.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellant.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellees.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   ON CONFESSION OF ERROR

PER CURIAM.

Upon consideration of the defendants’ commendable and well-taken confession of error, the downward departure sentences entered below are vacated. See State v. Pita, 54 So.3d 557 (Fla. 3d DCA 2011); State v. Walters, 12 So.3d 298 (Fla. 3d DCA 2009); State v. Salgado, 948 So.2d 12 (Fla. 3d DCA 2006). The causes are remanded for further proceedings in which the defendants may elect whether to withdraw their pleas or be resenteneed within the guidelines. See Salgado, 948 So.2d at 18-19.

Vacated and remanded.


author: ROTHENBERG, J.

text:
    Harry E. GOTTLIEB, Appellant, v. COCONUT GROVE BANK, Appellee.
    No. 3D11-3210.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2012.
    Lawrence M. Shoot, Miami-Dade, for appellant.
    Bergman & Jacobs, P.A., and Mark A. Jacobs Hollywood, for appellee.
    Before SHEPHERD, ROTHENBERG and LAGOA, JJ.
   ON CONFESSION OF ERROR

ROTHENBERG, J.

Based on Coconut Grove Bank’s proper and commendable confession of error, we reverse the order on appeal and remand with instructions to vacate the certificate of sale and direct that the Clerk of the Court republish and reset the foreclosure sale, pursuant to, section 45.031(3), Florida Statutes (2010).

Reversed and remanded.


text:
    Jerrad Lee BAUGHCUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5505.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

ROBERTS, WETHERELL, and SWANSON, JJ., concur.


text:
    Diamontae DUGANS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5048.
    District Court of Appeal of Florida, First District.
    Aug. 16, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

ROBERTS, WETHERELL, and SWANSON, JJ., concur.


text:
    Juan Ramon PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-233.
    District Court of Appeal of Florida, First District.
    Aug. 16, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

ROBERTS, WETHERELL, and SWANSON, JJ., concur.


text:
    Tanya Lato PONCETI, Individually and on Behalf of Kaitlyn Elizabeth Ponceti v. FIRST LAKE PROPERTIES, INC. d/b/a the Woodlands, and John Doe.
    No. 2011-C-2711.
    Supreme Court of Louisiana.
    July 2, 2012.
    Sutton & Alker, LLC, Mandeville, LA, James Clark Rather, Jr., for Applicant.
    Delbert Gene Talley, Covington, LA, for Respondent.
   PER CURIAM.

Lin this case, we are called upon to decide whether the owner of an apartment complex is entitled to summary judgment, on the ground it has no duty to protect residents from injury resulting from persons riding bicycles on the sidewalks of the complex. For the reasons that follow, we conclude the owner has no duty to plaintiffs under the facts of this case, and therefore grant summary judgment in its favor.

FACTS AND PROCEDURAL HISTORY

In 2008, Tanya Lato Ponceti, and her seven-year-old daughter, Kaitlyn, lived in The Woodlands, an apartment complex in Mandeville, Louisiana owned by First Lake Properties, Inc. (“First Lake”). While Kaitlyn was riding her self-propelled scooter in the courtyard of the apartment complex, an unidentified teenager on a bicycle “popped a wheelie,” and ultimately lost control of his bicycle. The bicycle then landed on Kaitlyn’s leg, causing her injury.

As a result, Ms. Ponceti, individually and on behalf of Kaitlyn, filed the instant suit against First Lake. Plaintiff alleged First Lake was negligent in-allowing persons to ride bicycles on the sidewalks of the apartment complex, in violation of a Mandeville City Ordinance.

1 ¡After discovery, First Lake filed a motion for summary judgment. First Lake contended a landlord is not duty-bound to protect against third-party actions causing injury to someone on its premises.

Plaintiff opposed the motion, arguing First Lake’s manager admitted she was aware bicycles were being ridden on the sidewalk of the complex, but did nothing to stop this practice.

After a hearing, the district court dénied First Lake’s motion for summary judgment. First Lake applied for supervisory writs from this judgment, which the court of appeal denied in a split decision. Upon First Lake’s application, we remanded the case to the court of appeal for briefing, argument, and opinion. Ponceti v. First Lake Prop., Inc., 11-0603 (La.4/29/11), 62 So.3d 101. On remand, the court of appeal affirmed the judgment of the district court, with one judge concurring and one judge dissenting.

Upon First Lake’s application, we granted writs to review the correctness of that decision. Ponceti v. First Lake Properties, Inc., 11-2711 (La.2/17/12), 82 So.3d 272.

DISCUSSION

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Meany v. Meany, 94-0251, p. 6 (La.7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question of law. Peterson v. Gibraltar Savings and Loan, 98-1601, 98-1609, p. 7 (La.5/18/99), 733 So.2d 1198, 1204; Mundy v. Department of Health and Human Resources, 620 So.2d 811, 813 (La.1993); Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 292 (La.1993).

[sIn Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762, we adopted a balancing test to determine whether a business owed a duty to protect its customers from the acts of a third party:

With the foregoing considerations in mind, we adopt the following balancing test to be used in deciding whether a business owes a duty of care to protect its customers from the criminal acts of third parties. The foreseeability of the crime risk on the defendant’s property and the gravity of the risk determine the existence and the extent of the defendant’s duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances.
The foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises, but the location, nature and condition of the property should also be taken into account. It is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business’ premises, [emphasis added]

In the instant case, plaintiff relies on testimony from First Lake’s apartment manager, indicating that she was aware that teenagers sometimes rode bicycles in the courtyard. Plaintiff argues this testimony establishes it was foreseeable that the teenagers might ride in a reckless matter. However, First Lake points out it received no complaints about individuals riding bicycles in the courtyard, nor were any prior injuries reported as a result of bicycles in the courtyard area. Further, plaintiff admitted that she had never seen anyone riding bicycles in the courtyard area before her daughter’s injury, and she had never reported any concerns to management about Individuals riding bicycles on the sidewalks. Under these circumstances, we find plaintiff failed to establish the existence of any similar incidents involving injuries resulting from individuals riding bicycles on the sidewalks of the apartment complex.

Plaintiff also asserts bicycle riding on the sidewalks of the complex violated a Mandeville City Ordinance, which provides, in part, that bicycles “shall not be ridden on sidewalks or in public streets.” Plaintiff contends First Lake’s manager admitted she did nothing to dissuade residents or their guests from violating this Mandeville City Ordinance.

Initially, we note plaintiff produced no evidence this city ordinance applies to sidewalks located within a private development. Even assuming for sake of argument the ordinance applies under these facts, we see nothing in the ordinance which would create a legal duty on property owners to prevent individuals from riding bicycles on sidewalks, especially given the absence of any prior instances of injuries. Cf. Adams v. Traina, 36,306 (La.App. 2 Cir. 10/25/02), 830 So.2d 526 (holding a property owner liable for a shooting on the premises when there were twenty-five police reports of crime involving gun-play in the parking lot in the preceding two years).

In summary, we conclude First Lake does not owe a legal duty to plaintiff under the facts of this case. The district court erred in denying First Lake’s motion for summary judgment.

DECREE

For the reasons assigned, the judgment of the district court is reversed. Summary judgment of First Lake Properties, Inc. d/b/a The Woodlands and John Doe is granted, dismissing plaintiffs suit with prejudice.

       Guidry, J., recused.


text:
    Henry MARANGE, Jr. v. CUSTOM METAL FABRICATORS, INC., et al.
    No. 2011-C-2678.
    Supreme Court of Louisiana.
    July 2, 2012.

      Juge, Napolitano, Guilbeau, Ruli, Frie-man & Whiteley, Metairie, LA, Kathleen Wigginton Will, for Applicant.
    The Marceaux Law Firm, LLC, Gregory Paul Allen Marceaux, Lake Charles, LA, for Respondent.
   PER CURIAM.

| ,In this matter, we are called upon to decide whether the court of appeal erred in reversing a judgment of the Office of Workers’ Compensation (“OWC”), which held that the claimant failed to establish by a preponderance of the evidence that a workplace accident occurred. For the reasons that follow, we conclude the court of appeal erred in reversing the OWC’s judgment.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Henry Marange filed a disputed claim for compensation against his employer, Custom Metal Fabricators, Inc. (“Custom Metal”), asserting he injured his back in a work-related accident. Custom Metal answered the petition, and denied Mr. Mar-ange’s allegation that he suffered a work-related accident.

The matter proceeded to a trial before the OWC. At trial, Mr. Marange testified that on the day of the accident, he was asked to grind the inside seam on a fairly large cone-shaped vessel, using a forty-pound, seven-inch grinder. Mr. Marange testified he stood inside a cone-shaped section of a vessel to grind the seam at shoulder-level. While standing, his foot slipped on grinding dust, and his body twisted to the left as he fell forward, with the weight of the turning grinder and the force of the forward motion. Although Mr. Marange admitted he felt a burning and pulling in his lower back and buttocks, he testified he did not report the accident, continued to work, and | ?did not believe he was injured, because back strain and soreness was common and happens frequently with a grinder that size. During his morning break, almost an hour after the accident, Mr. Marange testified he received a call that his invalid mother was believed to be having a stroke or a heart attack. Mr. Mar-ange testified that he left work to care for his mother, and did not return to work that day. According to Mr. Marange, his mother had suffered three previous major strokes, and could not walk or talk. Mr. Marange testified that he proceeded to his sister’s home to convince his mother to go to the hospital, but went home when he was unable to do so. Although Mr. Mar-ange admitted his mother is in a wheelchair with severely limited mobility, he testified he did not lift his mother during the visit. Mr. Marange asserted he awoke the next day with burning and pulling in his low back and right leg, and required assistance getting out of bed. Mr. Mar-ange testified he called work and spoke to Karen Porter, the bookkeeper, to ask to be sent to a physician. Ms. Porter returned Mr. Marange’s call to inform him Custom Metal would not pay for medical treatment, because he did not report the accident.

Macie Johnson, Mr. Marange’s live-in girlfriend, testified she called Mr. Marange at work on the day of the accident to tell him she believed his mother had a stroke or a heart attack. She testified Mr. Mar-ange’s mother had a previous stroke and requires total care. According to Ms. Johnson, she and Mr. Marange were at his mother’s home for an hour before they went home, and Mr. Marange did not lift his mother during that visit or at any other time. Ms. Johnson testified she is always responsible for lifting his mother.

Michael McKean, the shop foreman and Mr. Marange’s supervisor, testified Mr. Marange had been employed with Custom Metal for a month prior to his accident, and had previously left work early for several reasons during his short | ^employment. According to Mr. McKean, Mr. Manage had excessive absences, was counseled about those absences, and told that he had already missed more work than was normal.

Kyle Bourgeois, the quality control manager for Custom Metal, testified he was Mr. Marange’s acting supervisor on the day of the accident. Mr. Bourgeois testified Mr. Marange did not report an injury to him on the day of the accident, and that Mr. Marange left work early to tend to a family emergency. According to Mr. Bourgeois, Mr. Marange was working with a seven-inch grinder that weighed ten to twelve pounds. Mr. Bourgeois testified Mr. Marange would never have an occasion to grind over his head, because the top of the cylinder would be rotated to become the floor, and could be grinded in that manner. Mr. Bourgeois testified the shop had overhead cranes available to rotate the cylinders, and that two men are required to do this. Mr. Bourgeois testified that on the date of the accident, he observed Mr. Marange sitting down grinding, and did not see Mr. Marange standing and operating the grinder at shoulder level.

Karen Porter, the bookkeeper for Custom Metal, testified that she spoke to Mr. Marange on the day after the accident. At that time, he requested to see a doctor because he claimed he hurt his back at work, but did not tell Ms. Porter any specifics of the injury or how it occurred. According to Ms. Porter, Mr. Marange told her “I must have done it [injured himself] there.” After checking with Jimmy Cuerton, the owner of Custom Metal, she was advised to tell Mr. Marange that Custom Metal would not pay for a doctor, because Mr. Marange had not reported an accident the day before. According to Ms. Porter, Mr. Marange requested in the second phone call to be laid off so that he could collect unemployment, saying “I don’t have any money.” Ms. Porter testified Mr. Marange was not laid off, because there was work |4to be done, and he did not bring any documentation of his injury. Ms. Porter stated Custom Metal took the position that Mr. Marange had quit, because he did not come back to work.

Micheál Ellzey, a tack helper employed by Custom Metal, testified he worked with Mr. Marange on the day of the accident. According to Mr. Ellzey, he was assigned to the same cylinder as Mr. Marange, and was given a five or six-pound seven-inch grinder. Mr. Ellzey testified he had never used a grinder other than seated on the floor, and that it was procedure to grind the walls flat, or sit down and grind them, then have the cylinder rolled with the crane so the old welds are flat on the ground. Mr. Ellzey testified the cylinder is usually rolled before the grinders reach the sides, because it is a lot harder to hold up the grinder. Mr. Ellzey testified that when he observed Mr. Marange working on the day of the accident, Mr. Marange was sitting or kneeling on the floor. According to Mr. Ellzey, it would be difficult to grind that particular vessel while standing, and the side would be hard to get to because of the way it is rolled. Mr. Ellzey testified it would be unusual for someone to stand while grinding. He also testified it is not difficult to rotate a cylinder with an overhead crane, and that cylinders are typically rolled every other day due to the amount of grinding necessary. Mr. Ellzey testified it would have been difficult for Mr. Marange to stand, put his foot on the side of the cylinder, and grind it at shoulder level, because “[y]ou have to be bent over and grinding.” Mr. Ellzey testified he was with Mr. Marange the entire morning, with the exception of running a few short errands and getting a drink of water. Mr. Ellzey also testified the only grinding on the day of the accident occurred on the bottom of the cylinder.

IsAfter the conclusion of trial, the OWC rendered judgment in favor of Custom Metal. In its reasons for judgment, the OWC hearing officer found Mr. Marange’s version of the incident was not credible, stating:

Based on the Bruno [v. Harbor [Harbert] International, 593 So.2d 357 (La.1992) ] case, the Court finds that other evidence discredits or casts serious doubt on Mr. Marange’s version of the incident. Mr. Marange has failed to establish, by a preponderance of the evidence, that he was injured when he slipped while grinding above head with a heavy grinder. The testimony of Mr. Marange and the defense witnesses are not the same. Instead, the claimant’s version of events is discredited by the testimony of fellow workers and supervisors. The corroborative testimony and their circumstances following shortly after the event fall short of helping Mar-ange prove his case. Marange went home without reporting an accident. He had only recently started the job in November of 2008. During his short stay on the job, he had already been counseled for absenteeism. At best, the evidence is evenly balanced. Marange testified he was grinding overhead. Other witnesses disputed that claim. Grinding overhead simply did not comport with the witnesses who are not trying to hurt Marange, but who were simply trying to explain how they worked with the metal. The evidence of fellow workers was rational and reasonable. For these reasons, Marange fails to carry his burden by a preponderance of the evidence. Therefore, judgment is rendered against Mr. Marange and in favor of Custom Metal Fabricators.

Mr. Marange appealed. The Court of Appeal, Third Circuit, reversed the judgment of the OWC, and awarded Mr. Mar-ange temporary total disability benefits, as well as medical expenses, penalties, and attorney fees. Marange v. Custom Metal Fabricators, Inc., 11-743 (La.App. 3 Cir. 11/2/11), 75 So.3d 990.

Upon Custom Metals’ application, we granted certiorari to review the correctness of that decision. Marange v. Custom Metal Fabricators, Inc., 11-2678 (La.2/17/12), 82 So.3d 273.

IfiDISCUSSION

An employee in a compensation action must establish “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A). The Workers Compensation Act defines an accident as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1).

The employee in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Bruno v. Harbert International, Inc., 593 So.2d 357, 360 (La.1992); Ardoin v. Firestone Polymers, L.L.C., 10-0245, p. 5 (La.1/19/11), 56 So.3d 215, 218. An employee may prove by his or her testimony alone that an unwit-nessed accident occurred in the course and scope of employment, if the employee can satisfy two elements: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno, 593 So.2d at 361; Ardoin, 56 So.3d at 218-219. In deciding whether the plaintiff has discharged his or her burden of proof, the fact-finder should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” Bruno, 593 So.2d at 361. The fact-finder’s determinations as to whether the worker’s testimony is credible, and whether the worker has discharged his or her burden of proof, are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Bruno, 593 So.2d at 361; Ardoin, 56 So.3d at 219.

|7In the instant case, Mr. Marange testified the accident occurred when he slipped while standing and holding a heavy grinder at shoulder level. The OWC concluded Mr. Marange’s version of events was called into question by other employees, who testified it was unlikely Mr. Mar-ange would have used the grinder while standing. The OWC also found the circumstances following the alleged incident did not corroborate Mr. Marange’s testimony, as he admitted he went home without reporting the accident.

In reversing the OWC’s judgment, the court of appeal reasoned the testimony of Mr. Marange’s co-workers did not directly contradict Mr. Marange’s version of events, as they did not testify that there was never an occasion where an employee might use a grinder at shoulder level. It also dismissed Mr. Ellzey’s testimony, in which he stated it was unusual to stand while grinding, finding that Mr. Ellzey hesitated and changed his answer. The court of appeal also rejected the testimony of those witnesses who testified they had only seen Mr. Marange grinding from, a seated position on the morning of the accident, stating “[tjhis testimony, however, accounts for only a few minutes of a two- and-one half hour period of work, and it does not seriously discredit, as Bruno requires, Mr. Marange’s testimony that he was standing when the accident occurred.”

The court of appeal’s reasoning in this case reveals a fundamental misunderstanding of the principles of appellate review of facts as developed in this court’s jurisprudence. Nearly forty years ago, in Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973), this court, in an opinion by Justice Tate, set forth the bedrock principle that a reviewing court must give deference to the findings of the trier of fact:

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual [ ^finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

During the four decades which have passed since Canter was rendered, this court has consistently and scrupulously adhered to the rule set forth in that case. See, e.g., Richard v. Richard, 11-0229 (La.10/25/11), 74 So.3d 1156; London Towne Condominium Ass’n v. London Towne Co., 06-401 (La.10/17/06), 939 So.2d 1227; Bonnette v. Conoco, Inc., 01-2767 (La.1/28/03), 837 So.2d 1219; Batson v. South Louisiana Medical Center, 99-0232 (La.11/19/99), 750 So.2d 949; Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362; Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989); Sevier v. United States Fidelity & Guaranty Co., 497 So.2d 1380 (La.1986); West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

In the case at bar, the court of appeal failed to focus on whether the trier of fact’s determinations were reasonable based on the record as a whole. Instead, the court re-weighed the evidence, and reached its own factual conclusions from the record. This method of review is precisely the approach we cautioned against in Stobart, 617 So.2d at 882, where we stated:

Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. laSee generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So .2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this Court has emphasized that “the reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)). [emphasis added]

Applying the correct standard of review, we are convinced that the factual findings made by the OWC are reasonable in light of the entirety of the record. The testimony of Mr. Marange’s co-workers established it was not typical for employees to use large grinders at shoulder level, thereby discrediting Mr. Marange’s version of events. The OWC explained the testimony of these witnesses was “rational and reasonable,” and noted there was no indication they had any bias against Mr. Mar-ange. These credibility findings are entitled to great weight, because the trier of fact “is in a superior position to observe the nuances of demeanor evidence not revealed in a record.” In re A.J.F., 00-0948, p. 26 (La.6/30/00), 764 So.2d 47, 62. Additionally, the OWC emphasized Mr. Mar-ange’s failure to report the accident in a prompt manner, and pointed out he had a history of absences during his short | ^employment history with Custom Metal. These findings are supported by the record, and are not manifestly erroneous.

In summary, considering the record as a whole, we cannot say the OWC was clearly wrong in finding Mr. Marange failed to establish by a preponderance of the evidence that a workplace accident occurred. The court of appeal erred in reversing the judgment of the OWC. Accordingly, we must reverse the judgment of the court of appeal, and reinstate the judgment of the OWC.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed, and the judgment of the Office of Workers’ Compensation is reinstated.


author: VICTORY, J.

text:
    Peter D. VIZZI, M.D., a Medical Corporation v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT.
    No. 2011-C-2648.
    Supreme Court of Louisiana.
    July 2, 2012.

      Harry T. Lemmon, New Orleans, LA, Mahtook & LaFleur, LLC, Kay A. Theun-issen, Lafayette, LA, for Applicant.
    Frederick & Doherty, James Paul Do-herty, III, Frederick Law Firm, Kevin Scott Frederick, Lafayette, LA, for Respondent.
   VICTORY, J.

| ,We granted this writ application to interpret the meaning of La. R.S. 15:304 relative to medical expenses incurred by an arrested person as a result of an injury sustained in the commission of the crime for which he was arrested. After reviewing the record and the applicable law, we reverse the judgments of the lower courts and find that the parish government is not responsible for these medical expenses.

FACTS AND PROCEDURAL HISTORY

The facts presented in these cross-motions for summary judgment are undisputed. On January 8, 2008, Quinton Contrell Sam (“Sam”) committed an alleged armed robbery of a taxi cab driver in Lafayette, Louisiana. He then fled on foot and attempted to force entrance into a private residence. The owner of the residence shot Sam in the leg and called 911. When the Lafayette Police Department arrived on the scene, they arrested Sam. The 911 operator had called an ambulance, and Sam was taken by ambulance, accompanied by a police officer, to Lafayette General Medical Center where he was treated by Dr. Peter Vizzi for the gunshot wound.

Dr. Vizzi filed a Petition on Open Account against Lafayette City-Parish Consolidated Government (“LCG”) and Sam, claiming they were solidarily liable for |2the costs of the medical treatment, plus attorney fees, pursuant to the provisions of La. R.S. 15:304, et seq. Dr. Vizzi and LCG filed cross-motions for summary judgment. The district court granted Dr. Vizzi’s motion for summary judgment, awarding $14,062.00 for medical expenses under La. R.S. 15:304 and $4,687.33 in attorney fees under La. R.S. 9:2781. A five-judge panel of the court of appeal affirmed (with two judges dissenting), finding that “[o]nce Mr. Sam was placed under arrest, La. R.S. 15:304 requires that the parish bears the expense of any medical treatment he may have needed.” Vizzi v. Lafayette City-Parish Consolidated Government, 10-623 (La.App. 3 Cir. 12/8/10), — So.3d —, (not released for publication) (on rehearing). Further, the court of appeal found “the open account statute was properly utilized by Dr. Vizzi, and the award of attorney’s fees was proper under that provision.” We granted LCG’s writ application to determine whether Dr. Vizzi is legally entitled to recover these medical expenses from LCG under the facts and circumstances presented in this case. Vizzi v. Lafayette City-Parish Consolidated Government, 11-2648 (La.2/17/12), 82 So.3d 273.

DISCUSSION

On motions for summary judgment, this Court reviews the record de novo to determine whether there is any genuine issue of material fact in dispute, and whether the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966; Louisiana Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass’n, 09-0023 (La.6/26/09), 17 So.3d 350, 353. There are no material issues of fact in dispute in this record and the sole issue before us is a question of law which seeks the correct interpretation of La. R.S. 15:304.

[ sLa. R.S. 15:304 provides in pertinent part:

Expenses to be paid by parishes; juror’s fee in city of New Orleans
All expenses incurred in the different parishes of the state or in the city of New Orleans by the arrest, confinement, and prosecution of persons accused or convicted of crimes, their removal to prison, the pay of witnesses specifically provided for by law, jurors and all pros-ecutorial expenses whatever attending criminal proceedings shall be paid by the respective parishes in which the offense charged may have been committed or by the city of New Orleans, as the case may be. The expenses shall be paid by the parish treasurer or by the city of New Orleans after an account of the expenses shall be duly certified to be correct by the presiding judge and the clerk of court. The fees, salaries, and expenses to be paid shall be fixed and regulated by the parish or city authority unless otherwise provided by law; ...

Essentially, plaintiff argues, and the lower courts found, that the medical expenses here were “expenses incurred ... by the arrest, confinement, and prosecution” of Sam, and therefore, LCG is responsible. LCG argues that the expenses were not caused by the arrest, but were merely the result of an injury prior to the arrest, and therefore, La. R.S. 15:304 is inapplicable. We agree.

We have never been presented with the issue of whether La. R.S. 15:304 applies to medical expenses, as we have only interpreted the statute relative to administrative expenses. See e.g., State v. Citizen, 04-1841 (La.4/1/05), 898 So.2d 325 (funding for indigent defense); Prator v. Caddo Parish, 04-0794 (La.12/1/04), 888 So.2d 812 (dispute between parish and sheriff over funding obligations at parish correctional center); State v. Craig, 93-2515 (La.5/23/94), 637 So.2d 437 (funding for indigent defendants’ expert witnesses and investigative services in capital cases); State v. Peart, 621 So.2d 780 (La.1993) (funding for indigent defense); State v. Henderson, 341 So.2d 879 (La.1977) (funding for indigent defendant’s witnesses); State v. Mejia, 250 La. 518, 197 So.2d 73, 77 (1967) (expenses for transferring venue).

We have described La. R.S. 15:304 as “a general statute which directs parishes to pay for the administration of the criminal justice system and sets up procedures for |4accounting for expenses.” Peart, supra at 784, n. 1. In Craig, we explained that “[b]y virtue of LSA-R.S. 15:304 and its predecessor statutes, the legislature has historically placed the responsibility for operating the criminal court system upon parish governments.” 637 So.2d at 441. We have also described the purpose of the predecessor statute to La. R.S. 15:304, La. C.Cr.P. art. 529.8, as “intended ... to put at rest the confusion which would attend the payment of expenses incurred by several parishes in dealing with the same case.” Mejia supra at 77.

Indeed, reading La. R.S. 15:304 as a whole, which we are required to do when interpreting any statute, it does seem clear that its purpose was to impose upon the parish where the crime was committed the duty to pay the administrative costs of the criminal proceeding. Further, the procedure for accounting for expenses is for the presiding judge and clerk of court to certify the amount of expense to be paid, and, the amount of these expenses are “fixed and regulated by the parish.” The presiding judge and clerk of court would not be able to certify the amount of medical expenses to be paid; they are only qualified to certify the amount of criminal court administrative expenses.

Plaintiff, and the court of appeal, rely on one case, Southwest Louisiana Hosp. Ass’n v. Hunt, 551 So.2d 818 (La.App. 3 Cir.1989), as authority for imposing these medical expenses on the parish. In Hunt, a prisoner at a parish jail was beaten by a fellow inmate and received medical care at a local hospital. The court found that the parish was responsible for the medical expenses incurred at the hospital because at the time he suffered the condition necessitating treatment, he was an inmate at the parish jail. However,. Hunt is distinguishable from the present case. In Hunt, the | .^expenses were the result of an incident that occurred while both the victim and his attacker were inmates in the parish jail, and thus the expenses can be said to have been “incurred ... by the ... confinement ...” of the person “accused or convicted of crimes.” Further, the court in Hunt did not rely solely on La. R.S. 15:304 in imposing the expenses on the parish, but relied on other statutes including La. R.S. 15:703, which requires the parish governing authority to “appoint annually a physician who shall attend the prisoners whenever they are sick” and to fix his salary.

Further, plaintiff argues that La. R.S. 15:304 provides a bright line rule that once a person is accused of and arrested for a crime, the parish is responsible for any medical expenses thereafter, as well as other necessities of the accused. Plaintiff reaches this conclusion by interpreting “by” as meaning “before a certain time; beside; close to; in close proximity; in consequence of; not later than a certain time; in conformity with; with the express witness or sanction of; into the vicinity of and beyond ...” While that is one possible definition of “by,” it is not the one that applies in this context.

The meaning and intent of a law is to be ascertained by a consideration of the entire law as well as all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature enacting the law. City of DeQuincy v. Henry, 10-0070 (La.3/15/11), 62 So.3d 43, 45 (cites omitted). With that in mind, we find that | ¿‘expenses incurred ... by the arrest” means expenses caused by, or as a result of, the arrest. More than a mere temporal relationship is required, as “incur” means “to become subject to through one’s own actions; to bring upon one’s self,” to “suffer or bring on oneself,” to “become liable or subject to.” The American Heritage Dictionary of the English Language (1980 Houghton Mifflin Co.); Black’s Law Dictionary 782 (8th ed.2004); Webster’s Third New International Dictionary 1146 (2002) (unabridged). And, while “by” can have the meaning ascribed to it by plaintiff, in this context it more logically means “in consequence, as a result, or on the basis of.” Dictionary.com (unabridged) (Ran-domhouse, Inc.2010).

When the causal relationship between the prosecutorial actions (the arrest) and the expenses is applied to this case, the question is whether Sam’s medical expenses were caused by the arrest. The answer is no. The arrest did not cause the medical expenses; Sam’s home invasion and the homeowner’s defense against it caused the injury necessitating the expenses. The fact that the police arrived and arrested Sam before the ambulance arrived does not change this fact. Here, the ambulance had been called before he was arrested, and the ambulance would have taken him to receive medical treatment whether he was arrested or not. LCG was not involved in the decision to send Sam to Lafayette General and did not request treatment by Dr. Vizzi. Had the police waited to arrest Sam at the hospital after he was treated, no one would dispute that the expenses were not “incurred by the arrest.” Their decision to arrest Sam at the scene of the crime does not make LCG responsible for the medical expenses incurred during the commission of the crime. Had Sam been injured as a result of the arrest, LCG could have been responsible for any medical expenses incurred. However, the medical expenses in this case were not the result of any governmental action but were caused by a third party. To mandate that parish 17governments pay medical bills arising out of injuries inflicted by third parties before any parish or law enforcement involvement would subject parish governments to limitless and unforeseeable liability and could actually discourage law enforcement officers from making arrests. This was not the intent of the legislature in enacting and amending La. R.S. 15:304.

Our finding that LCG is not responsible for the medical expenses under La. R.S. 15:304 necessarily results in a further finding that LCG is not liable for attorney fees under the Louisiana Open Account Statute, La. R.S. 9:2781.

CONCLUSION

Medical expenses incurred by an arrested person as a result of an injury sustained in the commission of the crime for which he was arrested are not “expenses incurred ... by the arrest ...” for which the parish government is responsible under La. R.S. 15:304. That statute was enacted primarily to provide for payment of administrative expenses associated with criminal proceedings and confinement. For the parish to be liable for the medical expenses at issue here, they would have to be incurred as a result of the arrest. Here, the medical expenses were incurred as a result of Sam’s actions in attempting to enter a private residence and the home owner’s actions in shooting him. The fact that the police arrested Sam before he was taken to the hospital by private ambulance does not make LCG liable for these expenses as they were not incurred as a result of the arrest.

DECREE

For the reasons stated herein, the judgments of the lower courts are reversed and judgment is rendered granting Lafayette City-Parish Consolidated Government’s motion for summary judgment and dismissing the case with prejudice.

REVERSED AND RENDERED.

      . La. R.S. 9:2781 provides for the award of attorney fees for failure to pay an open account under certain circumstances.

      . At the time Hunt was decided, La. R.S. 15:304 provided that “[a]ll expenses incurred ... by the arrest, confinement, maintenance and prosecution of persons ...” (Emphasis added.) La. R.S. 15:304 was amended in 1994 to remove "maintenance,” to add the phrase "specifically provided by law” to modify the phrase "the pay of witnesses,” and to add the word "prosecutorial,” such that "all prosecu-torial expenses whatever attending criminal proceedings shall be paid ...” The major amendment to the statute in 1994 was the addition of the last sentence, "[njothing in this Section shall be construed to make the parishes or the city of New Orleans responsible for the expenses associated with the costs, expert fees, or attorney fees of a defendant in a criminal proceeding.” The stated purpose of the amendment was to "clarify what expenses attending criminal proceedings are required to be paid by the different parishes.” La. 1994 Session Law Service, Act No. 81, H.B. No. 44, West 1994.


text:
    James MERCER v. NABORS DRILLING USA, L.P.
    No. 2011-C-2638.
    Supreme Court of Louisiana.
    July 2, 2012.
    Galloway, Johnson, Tompkins, Burr & Smith, APLC, Jennifer Lynn Sinder, Kevin Andrew Marks, New Orleans, LA, for Applicant.
    Broussard, Halcomb & Vizzier, Roy Seal Halcomb, Jr., Alexandria, LA, for Respondent.
   PER CURIAM.

hln this matter, we must determine whether the court of appeal erred in reversing a judgment of the Office of Workers’ Compensation (“OWC”), which held an employer is entitled to a credit against future medical benefits. For the reasons that follow, we conclude the OWC correctly granted summary judgment in favor of the employer, and we therefore reinstate the OWC’s judgment.

FACTS AND PROCEDURAL HISTORY

Claimant, James Mercer, was injured in an accident during his employment with defendant, Nabors Drilling, USA, L.P. (“Nabors”). Claimant received workers’ compensation disability and medical benefits.

As a result of his employment-related accident, claimant also filed suit against a third-party tortfeasor. Nabors intervened, seeking recovery of the workers’ compensation benefits it paid to claimant. Without prior approval by Nabors, claimant settled the tort suit with the third-party tortfeasor for an amount in excess of the workers’ compensation benefits paid by Nabors. Subsequently, claimant reimbursed Nabors for the full amount of workers’ compensation benefits paid, deducting a proportionate share for attorney fees and costs.

| ¿Thereafter, claimant sought benefits for medical costs incurred after the settlement. Nabors refused to pay additional benefits, arguing it was entitled to a credit for the full amount of the settlement, less attorney fees.

As a result, claimant filed the instant disputed claim for medical benefits with the Office of Workers’ Compensation. In response, Nabors filed a motion for summary judgment, arguing it did not owe any additional benefits until claimant’s medical costs exceeded the total amount of the settlement with the third-party tortfeasor, under La. R.S. 23:1102(B).

The OWC granted Nabors’ motion for summary judgment, and dismissed the disputed claim for compensation with prejudice.

Claimant appealed. The court of appeal reversed, finding Nabors was not entitled to a credit for future medical benefits. Mercer v. Nabors Drilling USA, L.P., 10-1092 (La.App. 3 Cir. 2/23/11), 57 So.3d 1217.

Nabors sought review of that ruling in this court. Because the court of appeal did not have the benefit of our opinion in City of DeQuincy v. Henry, 10-0070 (La.3/15/11), 62 So.3d 43 at the time it rendered its judgment, we remanded the case to the court of appeal for reconsideration of its judgment in light of that opinion. Mercer v. Nabors Drilling, USA, L.P., 11-591 (La.5/20/11), 63 So.3d 968.

On remand, the court of appeal again reversed the judgment of the OWC. Mercer v. Nabors Drilling, USA, L.P., 10-1092 (La.App. 3 Cir. 11/2/11), 76 So.3d 624. The court determined La. R.S. 23:1102(B) “expressly and clearly provides that in no event shall the amount paid to the employer or insurer exceed fifty percent of the total amount recovered from the compromise.” Thus, the court concluded “Na-bors’ argument seeking an offset equal to one hundred percent of Mercer’s recovery clearly contravenes this express prohibition.” Id. at p. 5, 76 So.3d at 627.

| sUpon Nabors’ application, we granted certiorari to review the correctness of that decision. Mercer v. Nabors Drilling USA, LP., 11-2638 (La.3/23/12), 84 So.3d 559.

DISCUSSION

It is undisputed that claimant failed to obtain Nabors’ written approval prior to entering into a compromise with the third-party tortfeasor. As a result, the case is governed by La. R.S. 23:1102(B), which provides:

If the employee or his dependent fails to notify the employer or insurer of the suit against the third person or fails to obtain written approval of the compromise from the employer and insurer at the time of or prior to such compromise, the employee or his dependent shall forfeit the right to future compensation, including medical expenses. Notwithstanding the failure of the employer to approve such compromise, the employee’s or dependent’s right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer or insurer of the total amount of compensation benefits, and medical benefits, previously paid to or on behalf of the employee, exclusive of attorney fees arising out of the compromise; except in no event shall the amount paid to the employer or insurer exceed fifty percent of the total amount recovered from the compromise. Such reservation shall only apply after the employer or insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim, [emphasis added]

Because claimant provided reimbursement to Nabors, he reserved his right to future compensation. However, Nabors argues the statute makes it clear it is entitled to a “dollar for dollar credit against the full amount paid in compromise,” less attorney fees. Because the claimant received a total settlement of $650,000, and paid attorney fees of $173,043.72, Nabors asserts it is entitled to a credit of $495,729.63, and claimant would not be entitled to any benefits until this credit was exhausted.

|4In City of DeQuincy v. Henry, 10-0070 (La.3/15/11), 62 So.3d 43, we discussed the amendments to La. R.S. 23:1102(B) and La. R.S. 23:1103, concluding “these changes clearly evidence the intent of the legislature to require that employers and their insurers receive a credit for the entire amount of any compromise or settlement, or for the entire amount of a judgment, no matter how the damages have been itemized or classified.” Id. at p. 11, 62 So.3d at 51.

DeQuincy clearly supports Nabors’ argument that it is entitled to a dollar-for-dollar credit for future medical expenses, based on the total amount of the settlement, less attorney fees. The language of the statute relied upon by the court of appeal to cap this credit (“except in no event shall the amount paid to the employer or insurer exceed fifty percent of the total amount recovered from the compromise”) is clearly inapplicable under these facts, as this language deals with the amount the employee must pay back to the employer to reserve his right to recover future compensation. That issue is not presented under the instant facts.

In summary, we conclude the OWC correctly granted summary judgment in favor of Nabors. The court of appeal erred in reversing summary judgment for Nabors.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. The judgment of the Office of Workers’ Compensation granting summary judgment in favor of Nabors Drilling USA, LP is reinstated, at claimant’s cost.

      . In brief to this court, claimant submits that this case is governed by La. R.S. 23:1103(A)(1), and argues the clear language of this statute limits any credit to compensation benefits, and not medical benefits. As we noted in DeQuincy, the jurisprudence has been somewhat inconsistent in applying La. 23:1102 and La. 23:1103. Nonetheless, we ultimately concluded "the lower courts were correct in finding, that only Section 23:1102 applies in cases where, as here, an employer has intervened in an employee’s suit, and the suit was settled prior to judgment.” DeQuincy, 10-0070 at p. 6, 62 So.3d at 48. The instant case arises in a nearly-identical procedural posture to DeQuincy; accordingly, we hold the matter is governed by La. R.S. 23:1102. As a result of this holding, we do not reach the merits of claimant’s argument that La. R.S. 23:1103 limits any credit to compensation benefits, and not medical benefits.