author: RAY, J.

text:
    Michael D. CREWS, the Secretary of the Florida Department of Corrections in his official capacity, and Corizon, Inc., Appellants, v. FLORIDA PUBLIC EMPLOYERS COUNCIL 79, AFSCME and Federation of Physicians and Dentists/Alliance of Healthcare and Professional Employees, Florida Nurses Association, Inc., Appellees.
    No. 1D12-5808.
    District Court of Appeal of Florida, First District.
    June 5, 2013.

      Jennifer Parker, General Counsel, and Jonathan P. Sanford, Assistant General Counsel, Florida Department of Corrections, Tallahassee; Pamela Jo Bondi, Attorney General; Diane DeWolf and Rachel E. Nordby, Deputy Solicitors General, of Office of the Attorney General, Tallahassee, for Appellant Michael D. Crews. William E. Williams, Amy W. Schrader, and Andy Bardos, of GrayRobinson, P.A., Tallahassee, for Appellant Corizon, Inc.
    Thomas W. Brooks and Patricia A. Draper of Meyer, Brooks, Demma, and Blohm, P.A., Tallahassee; Alma R. Gonzalez of AFSCME Florida Council 79, Tallahassee for Appellee Florida Public Employees Council 79, AFSCME, and Federation of Physicians and Dentists/Alliance of Healthcare and Professional Employees. James C. Casey and Donald D. Slesnick, II, of Law Offices of Slesnick & Casey, Coral Gables, for Florida Nurses Association, Inc.
    George T. Levesque, General Counsel, and Thomas R. MeSwain, The Florida Senate, Tallahassee for Amicus Curiae The Florida Senate. Daniel E. Nordby, General Counsel, for Amicus Curiae The House of Representatives.
   RAY, J.

This appeal is the latest in a series of legal challenges beginning in 2011 to efforts by the Florida Department of Corrections to privatize some or all of its functions in the four regions of Florida’s correctional system. At issue is the validity of a contract between the Department and Corizon, Inc., for the provision of comprehensive health services to inmates in Regions I, II, and III for fiscal year 2012-2013. Contrary to the circuit court’s ruling, we conclude that the Department validly entered into the challenged contract with Corizon and that the Joint Legislative Budget Commission’s approval of a budget amendment to provide sufficient funding for the contract was consistent with its constitutional and statutory authority. The circuit court’s order enjoining the implementation of the challenged contract is, therefore, reversed.

I. FACTS AND PROCEDURAL HISTORY

Privatizing the provision of inmate healthcare services has been a focus of both the Legislature and the Department in recent years, resulting in legal challenges that failed to produce judicial precedents providing meaningful guidance. In a proviso pertaining to the Department’s health services, the 2011 General Appropriations Act (“GAA”) directed the Department to award contracts to private companies for comprehensive health services in Regions I, II, and III, contingent on a specified cost savings to the state. Ch. 2011-69, § 4, at 119, Laws of Fla. Although the proviso referenced “statewide comprehensive health services,” it expressly excluded Region IV from its reach. Id. A separate proviso, pertaining to the Department’s administration, directed the Department to procure a contract or contracts for the management and operation of the correctional facilities in Region IV, again contingent on a cost savings to the state. Id. at 102-03.

Both provisos were challenged in court early in fiscal year 2011-2012. The first lawsuit, filed in July 2011, asserted that the proviso requiring complete privatization • of Region IV unconstitutionally changed substantive law within an appropriations act in violation of article III, sections 6 and 12, of the Florida Constitution. While that lawsuit was pending, the Department issued requests for proposals (“RFPs”) under the proviso pertaining to Regions I, II, and III. A second lawsuit was filed seeking to declare that proviso invalid under the same constitutional provisions at issue in the first lawsuit, and to enjoin further action under the RFPs.

Meanwhile, looking ahead to fiscal year 2012-2013, the Department submitted its budget request to the Legislature, asking for $93,156,947 to fund contracted inmate health services during that year. Thereafter, the circuit court resolved the first lawsuit by declaring the proviso pertaining to Region IV unconstitutional and enjoining the privatization efforts the Department was making under that proviso. The Department did not appeal, and the order became final without a merits review by this Court. As a result of the circuit court’s determination that the proviso pertaining to Region IV was invalid, the Department amended its budget request for fiscal year 2012-2013, asking that the Legislature transfer funds previously allocated for that specific privatization effort to various other categories. This amendment included a request for appropriations totaling $41,405,554 for health services in Region IV.

As litigation continued in the suit challenging the proviso pertaining to healthcare privatization in Regions I, II, and III, so did the budget process for 2012-2013. The Governor’s recommended budget for 2012-2013 included “a cost savings to General Revenue of $22.9 million, based upon a minimum 7 percent savings associated with privatization of inmate health services for Regions I, II and III.” Likewise, reports from the House Subcommittee on Justice Appropriations and the Senate Subcommittee on Criminal/Civil Justice Appropriations projected savings under a line labeled “Savings Through Privatization of Health Services.”

Fiscal year 2011-2012 ended on June 30, 2012, and the 2012 GAA went into effect on July 1, 2012. Because the lawsuit challenging the proviso pertaining to Regions I, II, and III had not been resolved, it was dismissed as moot due to the circuit court’s determination that the end of the fiscal year effectively repealed the proviso. The Department proceeded with efforts to obtain contracts for the privatization of inmate healthcare statewide under its general contracting authority.

At this point, the Department was operating under the 2012 GAA, which appropriated $133,996,822 to the Department for “Inmate Health Services” under line item 784. Ch. 2012-118, § 4, at 123, Laws of

Fla. The Legislature restricted a portion of this funding with two provisos. Line item 784, together with its headings and provisos, appears in the GAA as follows:

Id.

On July 17, 2012, the Department announced its intent to award a contract to Corizon for comprehensive health services in Regions I, II, and III, and to a separate entity, Wexford Health Sources, Inc., for Region IV. The cost of the Corizon contract to the State would be approximately $230 million, and the Wexford contract, approximately $48 million. The Corizon contract cites line item 784 of the 2012 GAA as its funding source.

Given the disparity in the contract prices and the total appropriation under line item 784, the Department submitted a request to the Joint Legislative Budget Commission (“LBC”) to transfer $57,668,391 to line item 784 from other categories within the “Inmate Health Services” program. The request explained that the Department intended to enter into the contracts pursuant to the authority granted in section 20.315, Florida Statutes (2012), and that the budget amendment would fund the contracts for six months, beginning on January 1, 2013. The Governor recommended approval of the request, and the LBC granted it on September 12, 2012.

Two days later, the Florida Public Employees Council 79, AFSCME (“AFSCME”) and the Federation of Physicians and Dentists/Alliance of Healthcare and Professional Employees (“FPD”) filed a petition for -writ of quo warranto in this Court challenging the Department’s authority to enter both contracts. In pertinent part, AFSCME and FPD argued that the Department lacked the authority to spend state funds on the Corizon contract because the 2012 GAA contains “no specific appropriation for contracting out health services” in Regions I, II, or III, as they contended section 216.313, Florida Statutes (2012), requires. They further argued that “[n]othing in the LBC’s amendment purports to, or lawfully could, create a specific appropriation contrary to the intent of the Legislature itself as expressed in the 2012 GAA.” The petitioners challenged the Wexford contract for other reasons. We transferred the petition to the circuit court, which agreed with the petitioners as to the Corizon contract and with the Department as to the Wex-ford contract. As a result, the circuit court granted relief in part and enjoined the Department from proceeding under the Corizon contract. This appeal followed.

II. ANALYSIS

Our analysis of the Department’s authority to enter the Corizon contract turns on an interpretation of statutes and the Florida Constitution and an application of those laws to undisputed facts. Our review, therefore, is de novo. Garcia v. Andonie, 101 So.3d 339, 343 (Fla.2012) (constitutional interpretation); Fla. Dep’t of Envtl. Protection v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1266 (Fla.2008). To provide a background for our discussion of section 216.313 and the Legislature’s intent to allow privatization of inmate health services, we first consider the extent of the Department’s general authority to enter into contracts on behalf of the state. After concluding that the Department’s general authority is broad, we consider whether section 216.313 presents an impediment to the Department’s reliance on that authority for the purpose of the Corizon contract. Finally, because the circuit court invalidated the contract in part because it concluded the LBC lacked the authority to amend the budget, we address whether the amendment was consistent with legislative intent and policy and properly limited, concluding that it met both standards.

A. The Department’s Authority to Contract for Health Services

The Department has a constitutional and statutory imperative to provide adequate health services to Florida inmates. As the circuit court recognized, the Department has both express and implied authority to enter into contracts to carry out this critical mandate. As a general rule, an agency has the implied authority to enter into contracts that are, “as a matter of practicality,” required by their duties. Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So.2d 4, 5 (Fla.1984). The Department’s contracting authority is most readily apparent, however, from the explicit language of section 20.315(12), Florida Statutes (2012):

Whenever possible, the department, in accordance with the established program objectives and performance criteria, may contract for the provision of services by counties, municipalities, nonprofit corporations, and other entities capable of providing needed services, if services so provided are more cost-efficient, cost-effective, or timely than those provided by the department or available to it under existing law.

The clear and unambiguous language of this statute vests the Department with broad authority to contract for needed services such as inmate health care when the services can be provided more efficiently, economically, or timely than those provided by the Department or available to it under existing law.

Other statutes reveal that the Legislature has not only authorized the Department to engage in contracts for health services, but also has taken steps to facilitate such arrangements. See, e.g., § 945.025(4), Fla. Stat. (2012) (exempting certain health-services contracts from competitive bidding); § 768.28(10)(a), Fla. Stat. (2012) (extending sovereign immunity to healthcare providers and vendors that contract with the Department to provide services to prison inmates). That the contract at issue is for comprehensive, as opposed to discrete, health services does not remove the Department’s authority for it.

B. The “Specific Appropriation” Requirement in Section 216.313, Florida Statutes (2012)

Given the Department’s broad authority to enter into contracts to carry out its duty to provide health services to inmates, a contract for comprehensive health care in a particular region is valid absent a legislative directive to the contrary. Cf. Am. Home Assur. Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 475 (Fla.2005) (recognizing that municipalities’ broad power under the Florida Constitution allows them to exercise any power for a municipal purpose except where expressly prohibited by law). The circuit court found such an impediment in section 216.813. With an exception not applicable to this case, section 216.313 prohibits the Department from entering into a contract for the purchase of services in excess of $5 million “unless the contract identifies the specific appropriation of state funds from which the state will make payment under the contract in the first year of the contract.” (emphasis added). Whether the Corizon contract complies with this condition depends on whether the contract’s identification of “Line Item 784, General Appropriations Act, 2012” as its funding source satisfies the “specific appropriation” language in the statute.

In making this assessment, we turn to familiar principles of statutory construction. “[W]hen the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Atwater v. Kortum, 95 So.3d 85, 90 (Fla.2012) (internal citations omitted). In an effort to “ascertain and give effect to the intention of the Legislature as expressed in the statute,” City of Tampa v. Thatcher Glass Corp., 445 So.2d 578, 579 (Fla.1984), courts should give words in a statute their ordinary and everyday meaning unless the context reveals that a technical meaning applies. State v. Brown, 412 So.2d 426, 428 (Fla. 4th DCA 1982); see Variety Children’s Hosp., Inc. v. Perkins, 382 So.2d 331, 337 (Fla. 3d DCA 1980) (applying, as “one of the most basic rules of statutory construction,” the principle that “words, particularly technical ones, must be interpreted in the specific context in which they are used”); Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242, 1246-47 (11th Cir.2008) (“When Congress employs a term of art, it presumptively adopts the meaning and ‘cluster of ideas’ that the term has accumulated over time.”). In particular, when the Legislature uses an undefined term with a fixed legal meaning fitting the context, that meaning governs.. See Perkins, 382 So.2d at 337 (interpreting the word “abate” according to the settled legal concept of abatement of an action because, in using the word, the Legislature “spoke in technical terms of the abatement doctrine”); 48A Fla. Jur. Statutes § 139 (“[Tjechnical words and phrases that have acquired a peculiar and. appropriate meaning in law cannot be presumed to have been used by the legislature in a loose, popular sense. To the contrary, they are presumed to have been used according to their legal meaning.”); 2A Norman Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Constructions § 47:29 (7th ed. 2007).

When used in a statute relating to the state budget, “specific appropriation” is a term of art meaning “an identifiable, integrated fund which the legislature has allocated for a specified purpose.” See Brown v. Firestone, 882 So.2d 654, 668 (Fla.1980) (defining “specific appropriation” as the term is used in the Florida Constitution’s provision allowing the governor to “veto any specific appropriation in a general appropriation bill”). This technical term of budget nomenclature embodies essentially the same concept as the term “line item” and can be either quite broad or very specific. Id. The Florida Supreme Court has offered the following illustration:

[I]f the legislature deems it expedient to allocate $50,000,000 to the Department of Corrections without breaking the allocation down to its components, then that lump sum would be a specific appropriation under article III, section 8(a). Conversely, if the legislature allocated $1,000,000 of the $50,000,000 to maintenance of the corrections system, then that would be considered a specific appropriation. In each instance the legislature has designated an identifiable, integrated fund for a specified purpose.

Id. Explaining this example, the court noted, “The fact that in one case the designation is broad and in the other specific is a matter of legislative judgment as to the requirements of each funding project.” Id.

The Legislature may choose to restrict a specific appropriation by proviso, which is “language that qualifies or restricts a specific appropriation and which can be logically and directly related to the specific appropriation.” § 216.011(1)(⅞), Fla. Stat. (2012). Thus, a “specific appropriation” is distinct from and broader than a “proviso.” Nevertheless, “when proviso language expressly breaks the line item into a definite unit intended for a stated purpose,” the proviso is, for all practical purposes, a specific appropriation. Fla. House of Representatives v. Martinez, 555 So.2d 889, 843 (Fla.1990).

The challenged contract in this case identifies line item 784 as the specific appropriation for its funding. This line item appropriates approximately $134 million for “Inmate Health Services.” The two attached provisos cumulatively restrict roughly $41.5 million from the funds in “Specific Appropriation 784” for their stated purposes, thereby allocating to the Department more than $92 million in otherwise non-restricted funds for the provision of inmate health services.

Line Item 784, in character and name, is a specific appropriation of funds for the purpose of “Inmate Health Services.” By designating that appropriation as its funding source, the Corizon contract satisfied Section 216.313’s requirement to disclose the specific appropriation from which payment will be made. In ruling to the contrary, the circuit court unduly emphasized the word “specific” as a modifier to “appropriation” — effectively requiring an explicit authorization for the privatization in the GAA. But in the context of the statute at issue, the term “specific appropriation” is an indivisible, technical concept embodying varying degrees of specificity. Indeed, the Legislature’s labeling of line item 784 as “Specific Appropriation 784” indicates that the Legislature recognized the interchangeability of the concepts “line item” and “specific appropriation.” Because line item 784 is a specific appropriation for the broad category of “Inmate Health Services,” the Department’s decision to use the available funds in that line item for a comprehensive health services contract in Regions I, II, and III does not violate section 216.313, even though the privatization of health services for those regions is not specifically mentioned in the GAA.

C. Authority for the Joint Legislative Budget Commission’s Amendment to the 2012 General Appropriations Act

The LBC’s decision to supplement line item 784 with sufficient funds for the Cori-zon contract was also proper. The LBC is a constitutional body composed of equal numbers of senators and representatives that exists “within the Legislature” to make “limited adjustments” to the state budget without the concurrence of the full Legislature. Art. Ill, § 19(c)(3), (j), Fla. Const. It serves as a practical and oftentimes necessary mechanism for oversight and modification of the budget in the interim between legislative sessions.

The Florida Constitution directs the Legislature to “prescribe by general law conditions under which limited adjustments to the budget, as recommended by the governor or the chief justice of the supreme court, may be approved without the concurrence of the full legislature.” Art. Ill, § 19(c)(3), Fla. Const. Section 216.181(2), Florida Statutes (2012), specifies those conditions in comprehensive detail. Before submitting a request to the LBC from within their respective branches of government, the Governor or the Chief Justice must ensure that these conditions are met, and the LBC must undertake the same considerations before giving final approval. § 216.181(2). Contrary to the determinations of the Governor and the LBC in this case, the circuit court ruled that the amendment at issue failed to comply with the condition specified in section 216.181(2)(a), which requires “consisten[cy] with legislative policy and intent,” and that it was otherwise invalid as more than a limited adjustment.

On both requirements, the LBC has expertise as an entity composed exclusively of legislators that is charged with the inherently legislative function of appropriations. Given the LBC’s expertise and unique role within the Legislature, the LBC is entitled to deference in administering its budget-adjustment authority. Cf. Gulf Coast Elec. Coop., Inc. v. Johnson, 727 So.2d 259, 261-62 (Fla.1999) (extending substantial deference to the Public Service Commission due to its “specialized knowledge and expertise”); Big Bend Hospice, Inc. v. Agency for Health Care Admin., 904 So.2d 610, 611 (Fla. 1st DCA 2005) (recognizing that an agency is entitled to deference in its interpretation of a statute it is charged to administer). . In approving the budget amendment, the LBC — acting on behalf of the legislative branch — agreed with the executive branch that the budget adjustment was “consistent with legislative policy and intent.” The circuit court should have accorded deference to this judgment.

It appears that the court’s conclusion that the LBC amendment contravenes the legislative policy and intent expressed in the 2012 GAA was based primarily on the proviso concerning the $41 million earmarked for privatization of Region IV. The court applied the maxim expressio unius est exclusio alterius to conclude that the Legislature did not intend to fund the privatization of Regions I, II, and III. This maxim, meaning “the expression of one thing implies the exclusion of the other,” is “strictly an aid to statutory construction and not a rule of law.” Smalley Transp. Co. v. Moed’s Transfer Co., 373 So.2d 55, 56 (Fla. 1st DCA 1979). The correctness of the principle as applied to a particular statute “depends entirely on context,” In re Sealed Case No. 97-3112, 181 F.3d 128, 132 (D.C.Cir.1999), including the history and structure of the legislation being examined, see In the Matter of Am. Reserve Corp., 840 F.2d 487, 492 (7th Cir.1988). Its use must be governed by common sense, such that it should not be applied to defeat the “natural and obvious sense” of a statute’s provisions. The Federalist No. 83, at 495-96 (Alexander Hamilton) (Clinton Rossiter ed., 1961). In fact, this maxim properly applies only when the court can determine that the matters expressly mentioned are intended to be exclusive. Smalley, 373 So.2d at 57 (quoting Ford v. United States, 273 U.S. 593, 612, 47 S.Ct. 531, 71 L.Ed. 793 (1927)). For these reasons, it has been deemed “a valuable servant, but a dangerous master to follow in the construction of statutes or documents.” Id.

Here, the expressio unius maxim is inapplicable, particularly in light of the Department’s clear statutory authority to contract with private vendors for comprehensive health services. While the proviso plainly addresses $41,405,554 of the $133,996,822 allocated in line item 784 for inmate health services, it places no restriction on the remaining $92,591,268 in that specific appropriation. The proviso is not intended as an exhaustive and detailed list of how to utilize the funds in the broad category specified in line item 784; rather, it merely limits the total amount that can be spent on contracted inmate health services in Region IV, leaving the remainder for the Department’s administration. Cor-izon illustrates this point compellingly by emphasizing that the circuit court’s reasoning would support a conclusion that the $100,000 earmark of funds for Hepatitis B vaccinations precludes the Department from funding Hepatitis A vaccinations from the remaining appropriation in line item 784. Due to the limited purpose of the proviso addressing Region IV, that language is not helpful in determining whether providing additional funds for privatization of health services in Regions I, II, and III is consistent with legislative policy and intent.

The GAA itself is silent on whether the Department may use its budget for inmate health services to contract for comprehensive health services in Regions I, II, and III. Outside the GAA, however, there is ample evidence, not only that the Department was authorized to privatize inmate health services, but that the Legislature intends for such privatization to occur.

The Florida Statutes, the clearest expression of legislative intent, give the Department broad authority to contract with private entities, including for inmate health services, where it is advantageous to the state. See § 20.315(12). They further facilitate, and arguably encourage, these arrangements by exempting certain health services contracts from competitive-bidding requirements and extending sovereign immunity to providers and vendors who provide contracted healthcare services to inmates. See §§ 945.025(4), 768.28(10)(a).

Legislative intent to privatize inmate health services statewide is no less evident from the road traveled by the Legislature to date to implement this priority. The Legislature jump-started the privatization of inmate health care in Regions I, II, and III in 2011, through a proviso expressly directing the Department to solicit bids for healthcare services in those regions. See Ch. 2011-69, § 4, at 119-20, Laws of Fla. Even though that proviso was no longer in effect at the close of the 2011-2012 fiscal year, it is relevant to show that the Legislature’s only direct expression of intent on this subject in the GAA weighs in favor of the Department’s decision to privatize. The Department and Corizon make the logical point that the Legislature’s failure to include a proviso concerning Regions I, II, and III in the 2012 GAA was likely due to the fact that the privatization of health services in those regions and the contract solicitation and award process were already underway when the budget was composed. However, because the proviso in the 2011 GAA for complete privatization of Region IV had been declared unconstitutional, the Legislature addressed Region IV in the budget for the 2012-2013 fiscal year. With this factual background, combined with the Governor’s recommended budget and reports from legislative subcommittees, the LBC’s decision to approve the amendment was well-grounded.

While this appeal was pending, the Legislature made its intent even clearer by appropriating $278,496,445 to the special category “Inmate Health Services” for fiscal year 2013-2014 and funding only 136.5' positions under the program “Inmate Health Services.” Ch. 2013-40, Laws of Fla. These figures show a substantial increase in funding for inmate health services over what was provided in the 2012 GAA, and a substantial decrease in the funding of the Department-based positions for inmate health services. Compare Ch. 2012-118, § 4, at 123 Laws of Fla. with Ch. 2013-40, Laws of Fla. The funding for the special category “Inmate Health Services” in fiscal year 2013-2014 exceeds the combined prices of the Wexford and Corizon contracts by only $179,031. Therefore, the 2013 GAA confirms our view that the Legislature fully intended for the Department to contract for comprehensive health services statewide. See Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216, 1230 (Fla.2006) (recognizing that a court “may look to acts passed at subsequent sessions to discern legislative intent”). We disagree with the circuit court’s contrary view.

The remaining question is whether the amendment was limited. Although the amendment added substantial funding to line item 784, in context, it is a limited adjustment. The LBC simply moved funds from different line items within the Department’s “Health Services” program, providing additional funds for contracts that the Department otherwise had the authority to enter. Because the amendment complied with the statutory limitations of section 216.181, we have no basis to question the LBC’s determination that the amendment requested by the Department and recommended by the Governor was consistent with legislative intent and limited enough to fall within the LBC’s constitutional authority.

III. CONCLUSION

For these reasons, we reverse the portion of the order enjoining the Department from implementing the Corizon contract.

REVERSED.

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

      . The Florida Attorney General attempted to appeal the order, but this Court dismissed the case for lack of standing because the Attorney General was not a party to the proceedings in the circuit court. Bondi v. Tucker, 93 So.3d 1106 (Fla. 1st DCA 2012).

      . See Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); § 945.025(1), Fla. Stat. (2012) (assigning the Department the responsibility to provide the "supervisory and protective care, custody, and control of the inmates’’); § 945.025(2), Fla. Stat. (2010) (mandating that inmates' ”[m]edical, mental, and psychological problems ... be diagnosed and treated whenever possible”).

      . The LBC is composed of seven members of the Senate, appointed by the President of the Senate, and seven members of the House, appointed by the Speaker of the House of Representatives. § 11.90, Fla. Stat. (2012); see also Art. Ill, § 19(j), Fla. Const. The LBC is not permitted to consider an amendment unless either the Governor or the Chief Justice of the Florida Supreme Court first approves the request. See § 216.181(1), Fla. Stat. (2012).

      . One court has declared this maxim "at best a description, after the fact, of what the court has discovered from context.” United States v. Castro, 837 F.2d 441, 443 n. 2 (11th Cir.1988). Another court has explained, "[T]he expressio unius principle describes what we usually mean by a particular manner of expression, but does not prescribe how we must interpret a phrase once written.” Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir.1992).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DEPARTMENT OF JUVENILE JUSTICE, State of Florida, Appellant, v. OKALOOSA COUNTY and Nassau County, Petitioners, and Bay County and Pinellas County, Intervenors, and Miami-Dade County, Intervenor, Appellees.
    No. 1D12-3929.
    District Court of Appeal of Florida, First District.
    June 5, 2013.
    John Milla and Michael J. Wheeler, Assistant General Counsels, Department of Juvenile Justice, Tallahassee, for Appellant.
    Carly J. Schrader, Gregory T. Stewart, and Lynn M. Hoshihara of Nabors Giblin & Nickerson, Tallahassee; John R. Dowd, General Counsel, Okaloosa County Commissioners, Shalimar; David A. Hallman, Yulee; Terrell Arline, Panama City; Linda Brehmer-Lanosa, Orlando; Jennifer Wintrode Shuler, Assistant County Attorney, Panama City; Carl Edward Brody and Christy Donovan Pemberton, Assistant County Attorneys, Clearwater, for Appellees.
   PER CURIAM.

In this appeal, the Department of Juvenile Justice (DJJ) seeks review of an Administrative Law Judge’s (ALJ) Final Order. The Final Order declared certain DJJ rules relating to cost sharing for secure detention invalid exercises of DJJ’s authority; specifically, DJJ’s interpretations of “final court disposition” and “actual costs.” We find the ALJ correctly determined that DJJ’s interpretations were improper.

If the language of a statute “is clear and unambiguous and conveys a clear and definite meaning, the statute should be given its plain meaning.” Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 848 (Fla. 1st DCA 2002). Using the basic tenet of in pari materia to construe together statutes relating to the same or similar subject matter does not imply ambiguity. See Fla. Dep’t. of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265-66 (Fla.2008) (not resorting to statutory construction, but acknowledging entire sections must be read together); Smith v. Crawford, 645 So.2d 513, 522-23 (Fla. 1st DCA 1994) (“The legislative intent being plainly expressed, so that the act read by itself or in connection with other statutes pertaining to the same subject is clear, certain, and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms.”) (quoting State v. Egan, 287 So.2d 1, 4 (Fla.1973)).

Here, a plain reading of “final court disposition” cannot, as DJJ asserts, limit the term to “commitment.” Likewise, “actual costs” cannot mean a figure derived through, as counsel for DJJ put it, a “complicated” formulaic scheme. A plain reading of this clear term indicates otherwise. We need not comment further, other than to commend the ALJ’s extensive and accurate analysis of the rules in question.

Accordingly, we AFFIRM.

CLARK and MARSTILLER, JJ, and BOLES, W. JOEL, Associate Judge, concur.


text:
    In re Jess WOOD.
    No. 2011-OB-2325.
    Supreme Court of Louisiana.
    April 5, 2013.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

The Committee on Bar Admissions (“Committee”) opposed the application of petitioner, Jess John Wood, Jr., to sit for the Louisiana Bar Examination based on character and fitness concerns relating to his record of criminal and traffic offenses. We subsequently granted petitioner permission to sit for the bar exam, with the condition that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence. In re: Wood, 11-1288 (La.6/22/11), 64 So.3d 206.

Petitioner thereafter successfully passed the essay portion of the bar exam, and upon his application, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. During the proceedings, petitioner agreed to be evaluated by the Lawyers Assistance Program (“LAP”). The evaluator subsequently recommended further evaluation, which to date petitioner has not completed.

This matter proceeded to a hearing before the commissioner. Following the hearing, the commissioner filed his report with this court, in which he concluded that given petitioner’s failure to comply with LAP’s recommendation for further evaluation, no determination can be made at this time as to his fitness to practice law. The Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(D)(11). At oral argument, petitioner’s counsel conceded that petitioner has been unable to comply with LAP’s recommendation due to financial concerns.

After hearing oral argument, reviewing the evidence, and considering the law, we conclude that, at this time, petitioner has failed to meet his burden of proving that he possesses the requisite fitness to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5. Accordingly, it is ordered that the application for admission be and hereby is denied. Pursuant to Supreme Court Rule XVII, § 9(D)(13), petitioner may re-apply for admission upon a showing that he has complied with any and all recommendations made to him by the Lawyers Assistance Program.

ADMISSION DENIED.

      . The commissioner did not find that petitioner’s criminal and traffic offenses presented any issues of good moral character,


text:
    STATE of Louisiana v. Cecil REDDITT.
    No. 2013-KK-0295.
    Supreme Court of Louisiana.
    April 19, 2013.
   PER CURIAM.

| ,Writ granted. The state seeks review of the district court’s ruling, which found there was no probable cause, releasing the defendant from his bail obligation on racketeering charges. The district court, after hearing the state’s evidence at the preliminary examination, found there was no probable cause based on jurisdiction. For the following reasons, we hold the district court’s ruling was in error. We find the testimony at the preliminary examination was sufficient to show the defendant was connected to the alleged criminal enterprise; further, the testimony was sufficient to show acts in furtherance of the alleged criminal enterprise were committed in Tangipahoa Parish.

The defendant, Cecil Redditt, is charged, with others, with violating the laws against racketeering; specifically, receiving proceeds derived from racketeering activity (La. R.S. 15:1353(A)); maintaining control of a racketeering enterprise (La. R.S. 15:1353(B)); participating in a racketeering enterprise through a pattern of racketeering activity (La. R.S. 15:1353(C)); and conspiring to violate the provisions of Sections A, B, and C (La. R.S. 15:1353(D)). The racketeering enterprise is described in the affidavit of probable cause for the arrest warrant as “... existing] for the purpose of obtaining marijuana and cocaine from Houston, Texas, to be distributed for profit in Huntsville Alabama, and elsewhere.”

|gAs explained in the affidavit, there were main suppliers, the organization’s coordinators, and the “mules,” “car renters,” mid-level dealers, managers and assistants, and lower level dealers. The defendants are described in the affidavit as “part of a eompartmental, multi-level organization who all participated in the operation and management of the enterprise.” The racketeering activity is further described in the affidavit, as follows: “In general, the members of the organization exist for the purpose of continuously smuggling, transporting, storing and distributing marijuana and cocaine in Texas, Louisiana, Alabama, and Georgia on a wholesale, retail, and personal use level.”

Officer Leland Dwight, a 25 year veteran of the Louisiana State Police (LSP), testified at the preliminary examination held on October 10, 2012. According to Officer Dwight, LSP officers arrested Corey Hammond and Alesha Smith, whose vehicle was stopped while traveling through Tangipahoa Parish on September 16, 2011. Hammond and Smith were transporting at least 27 pounds of marijuana. At that time, Hammond and Smith gave inculpatory statements about others involved in an organization that was transporting marijuana and cocaine from Houston, Texas (or Arizona) to Huntsville, Alabama.

The context of the September 2011 arrest within the larger criminal enterprise was further fleshed out for state police investigators when Hammond, Marcus An-ders and Tiffany Monroe were arrested on October 19, 2011 in West Baton Rouge Parish, while transporting 2 kilos of cocaine. At that -time, Anders gave statements to police describing the criminal organization. According to |sOfficer Dwight, Anders described a very sophisticated and compartmentalized criminal organization of 20 to 30 people, with defined job duties for each member.

Officer Dwight testified to the following from the statements of Anders obtained after his October 2011 arrest. According to Anders, he and Hammond were equal partners in the management of this drug selling enterprise. Although Anders had no personal dealings with Redditt, the defendant here, Anders described Redditt as a person to whom Hammond brought loads of marijuana and cocaine for resale. An-ders described that Hammond and Redditt both worked at a CarMax dealership in or near Huntsville, Alabama.

In connection with Hammond’s arrest, LSP seized Hammond’s cell phone. From text messages on Hammond’s cell phone, LSP was able to determine a phone number identified as Redditt’s. Officer Dwight testified statements taken from other people arrested in connection with this criminal enterprise discuss that Redditt worked at CarMax in Huntsville and that he was an associate of Hammond who purchased drugs from Hammond for resale. In addition, Officer Dwight described how text messages were obtained from Redditt’s cell phone to Hammond. The content of those messages showed Redditt inquired when Hammond would have marijuana or cocaine for sale and Hammond would respond either that he had drugs for Redditt to sell, would have drugs at a later time, or was en route making a drug run. In one of the exchanges, Redditt complained about the quality of cocaine which had been sold to him and Hammond explained he had purchased the cocaine from someone else and could not guarantee its quality-

Officer Dwight testified Hammond and Redditt would sometimes speak in code words in their text message exchanges, or at other times, would just refer to the drugs explicitly. Although most of the individuals involved used trap phones, |4or drop phones, the officers were able to piece together these exchanges from their investigation. Officer Dwight testified these conversations between Hammond and Redditt occurred between August 20, 2011 and October/November of 2011.

After LSP obtained evidence of the wider criminal enterprise through their investigation and the subsequent October arrest, Hammond, Anders and others (including Redditt) were charged with four counts of racketeering, pursuant to La. R.S. 15:1353(A-D).

The evidence connecting Redditt to the alleged criminal enterprise includes the statement of one of the alleged managers of the criminal enterprise (Anders) that Redditt was one of the dealers used by the other manager (Hammond) to sell drugs in the Huntsville, Alabama area, after the drugs were transported from Houston to Huntsville. Other members of this alleged criminal enterprise were aware of a connection between Hammond and Redditt through their place of employment. More compelling, the state presented testimony there are text messages on the phones of both Hammond and Redditt discussing the availability of drugs for sale, the transportation of those drugs, and the quality of those drugs.

La.C.Cr.P. art. 611(A) provides in pertinent part: “If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.” Where there is compelling evidence that the alleged criminal enterprise transported drugs in and through Tangipahoa Parish (as evidenced both by Anders’ further statements and the September 2011 arrest of Hammond and Smith, as well as their statements) on eight occasions, with evidence showing Redditt as a middle-man for the ultimate sale of those drugs, the state has shown probable cause of Redditt’s involvement in |fithe alleged criminal enterprise in Tangi-pahoa Parish such that Redditt should be subject to the requirement of bail on the racketeering charges filed there. The district court’s finding of no probable cause is reversed; the matter is remanded for further proceedings.

      . Officer Dwight was an agent for five years, and a supervisor in narcotics for 20 years. He is now an investigator with the LSP.

      . In his testimony, Officer Dwight refers to the amount of marijuana seized in September 2011 as being 27, 28 or 30 pounds.

      .For instance, some people gathered the money to purchase the drugs. Others would obtain rental cars and travel to and from Houston and Alabama or Georgia. Certain people would keep the money in their bank accounts’ or on their credit cards.

      . A trap phone, or a drop phone, is a prepaid phone that is difficult to trace and to obtain records. Officer Dwight testified the officers sometimes got only one side of a conversation: at other times, they had both sides of the conversation.


text:
    In re Eunice S. CHARLES.
    No. 2013-B-0352.
    Supreme Court of Louisiana.
    April 19, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

FORMAL CHARGES

Count I — The Griffin Matter

Inez Griffin retained respondent to handle a succession matter, paying her a total of $1,650. Thereafter, she failed to communicate with Ms. Griffin. When respondent did not complete the succession, she failed to refund any portion of the fee or release documentation related to the succession to Ms. Griffin. In order to move the matter to completion, Ms. Griffin was forced to retain new counsel.

Count II — The Cox Matter

In July 2008, Harlan Cox retained respondent to represent him in a custody matter, paying her $2,500. Thereafter, respondent neglected the matter and failed to return Mr. Cox’s phone calls. During the representation, respondent forged Mr. Cox’s name on an affidavit, which she then notarized. On another occasion, | respondent instructed Mr. Cox, who resided out of state, to meet her at the courthouse on a specific date and time for a hearing that was scheduled. When Mr. Cox arrived, he was advised that no such hearing had been set. Mr. Cox then terminated the representation.

In January 2010, Mr. Cox filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint. Although attempts were made to arrange a sworn statement, respondent repeatedly canceled these statements.

DISCIPLINARY PROCEEDINGS

In August 2011, the ODC filed formal charges against respondent, alleging that her conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(d) (obligations upon termination of the representation), 8.3 (candor toward a tribunal), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

IsHearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee adopted the deemed admitted factual allegations of the formal charges as its factual findings. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee determined that respondent acted knowingly and intentionally, causing actual harm, if not potentially serious harm, to her clients. In the Griffin matter, respondent knew or should have known that she was dealing inappropriately with Ms. Griffin’s documentation and money. Her failure to return the unearned portion of her fee and file materials caused injury to Ms. Griffin, and failing to take any apparent steps to rectify this matter can only be interpreted as a knowing and intentional violation. In the Cox matter, respondent failed to provide any response or explanation to the allegation that she forged or, at the very least, falsely notarized her client’s unauthentic signature on an affidavit filed with the court. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the applicable baseline sanction in this matter ranges from a lengthy suspension to disbarment.

In aggravation, the committee found a prior disciplinary record, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1988). In mitigation, the committee recognized that respondent’s prior disciplinary offense was remote in time.

Turning to the issue of an appropriate sanction, the committee noted that in prior cases involving misconduct similar to that at issue here, this court has | ¿imposed three-year suspensions. Considering these cases, and the aggravating factors present, the committee recommended that respondent be suspended from the practice of law for three years. The committee also recommended that respondent be required to return all files, documents, and materials to her clients, and that she be assessed with the costs and expenses of this matter.

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

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. The board also found respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined that respondent knowingly, if not intentionally, violated duties owed to her clients, the legal system, and the legal profession. She caused significant harm to her clients by collecting fees and then failing to complete the matters for which she was hired, forcing them to hire other counsel. She also failed to refund the unearned fees to these clients. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction is suspension.

The board agreed with the aggravating and mitigating factors found by the committee. The board also recognized as aggravating factors respondent’s bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency and her indifference to making restitution.

| .^Turning to the issue of an appropriate sanction, the board noted that in prior jurisprudence in cases involving similar misconduct, this court has imposed sanctions ranging from two-year suspensions to disbarment. Considering these cases, and the aggravating and mitigating factors present, the board recommended that respondent be suspended from the practice of law for three years. The board also recommended that respondent pay restitution to her clients and return to them all documents and files in her possession. Finally, the board recommended that respondent be assessed with the costs and expenses of this matter.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

[ 6The record in this deemed admitted matter supports a finding that respondent neglected her clients’ legal matters, failed to communicate with her clients, failed to return unearned fees, failed to return a client’s file, and forged her client’s signature on an affidavit filed with the court. Based on these facts, respondent has violated the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987).

Respondent knowingly violated duties owed to her clients, the legal system, and the legal profession, causing actual harm. The applicable baseline sanction in this matter is suspension. The aggravating and mitigating factors found by the disciplinary-board are supported by the record.

Turning to the issue of an appropriate sanction, case law indicates that this court has imposed substantial suspensions for multiple counts of neglect, failure to communicate, and failure to refund unearned fees. Based on these cases, we agree that the three-year suspension recommended by the board is reasonable.

Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for three years. We will also order respondent to return her clients’ flies and refund the unearned portion of their respective legal fees.

| yDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Eunice S. Charles, Louisiana Bar Roll number 18536, be and she hereby is suspended from the practice of law for three years. It is further ordered that respondent return the files of Inez Griffin and Harlan Cox and refund to them the unearned portion of their respective legal fees. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . On November 30, 2009, respondent was declared ineligible to practice law for failure to file her trust account registration statement. She is also ineligible for failure to complete her annual mandatory continuing legal education requirements and for failure to pay her bar dues and the disciplinary assessment.

      . In 1995, respondent was admonished for a violation of Rules 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal) and 8.4(d), which is one of the offenses included in the current set of formal charges.

      . The committee noted that respondent indicated she suffers from mental problems brought on by post-traumatic stress disorder. However, the committee did not recognize this as a mitigating factor because she failed to provide the ODC with documentation or medical releases to substantiate this claim, despite numerous requests.

      . See, e.g., In re: McNeely, 12-1324 (La.9/14/12), 98 So.3d 275 (three-year suspension); In re: Hyman, 09-2652 (La.5/7/10), 34 So.3d 254 (three-year suspension); In re: Hawkins, 07-1619 (La.2/22/08), 974 So.2d 1280 (two-year suspension); In re: Powers, 99-2069 (La.9/24/99), 744 So.2d 1275 (three-year suspension).


text:
    In re Quenton I. WHITE.
    No. 2013-B-0439.
    Supreme Court of Louisiana.
    April 19, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| í Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) has filed a petition seeking the imposition of reciprocal discipline against respondent, Quenton I. White, an attorney licensed to practice law in the States of Louisiana and Tennessee, based upon discipline imposed by the Board of Professional Responsibility of the Supreme Court of Tennessee.

UNDERLYING FACTS AND PROCEDURAL HISTORY:

Between August 8, 2012 and September 13, 2012, respondent’s license to practice law in Tennessee was suspended for IOLTA noncompliance and failure to pay the annual registration fee. During this time period, respondent continued to practice law and continued to hold himself out as a practicing attorney on his website.

In January 2013, the Board of Professional Responsibility of the Supreme Court of Tennessee publicly censured respondent for violating Rule 5.5 (unauthorized practice of law) of the Rules of Professional Conduct. In re: Quenton White, BPR No. 15136, File No. 35528-5-PS.

After receiving notice of the Tennessee order of discipline, the ODC filed a motion to initiate reciprocal discipline proceedings in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Certified copies of the order of the Board of Professional Responsibility of the Supreme Court of Tennessee were attached to 12the motion. On February 26, 2013, this court rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. Respondent failed to file any response in this court.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D). That rule provides:

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline ... unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; ...
If this court determines that any of those elements exists, this court shall enter such other order as it deems appropriate. The burden is on the party seeking different discipline in this jurisdiction to demonstrate that the imposition of the same discipline is not appropriate.

In the instant case, respondent has made no showing of infirmities in the Tennessee proceeding, nor do we discern any from our review of the record. Furthermore, we find no reason to deviate from the sanction imposed in Tennessee for respondent’s misconduct. Although we are not required to impose the same sanction as that imposed by our sister state, nevertheless, only under extraordinary | (¡circumstances should there be a significant variance from the sanction imposed by the other jurisdiction. In re: Aulston, 05-1546 (La.1/13/06), 918 So.2d 461. See also In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”).

Here, there- is little doubt that respondent’s conduct would warrant discipline in Louisiana, given that he practiced law at a time when he was not eligible to do so. Under these circumstances, we agree that a public reprimand is warranted.

Accordingly, we will impose the same discipline against respondent as was imposed in Tennessee.

DECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that respondent, Quenton I. White, also known as Q. Irwin White, Louisiana Bar Roll number 17426, be publicly reprimanded.


author: McClendon, j.

text:
    CITIZENS SAVINGS BANK v. G & C DEVELOPMENT, L.L.C., Matthew L. Gallagher, Mechelle Oubre Gallagher, Joseph L. Crowton and Susan Bourque Crowton.
    No. 2012 CA 1034.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 15, 2013.
    Rehearing Denied March 2, 2013.

      Sondra A. Cheek, John N. Gallaspy, Bo-galusa, LA, for Plaintiff/Appellant, Citizens Savings Bank.
    William J. Dutel, Mandeville, LA, for Defendants/Appellees, G & G Development, LLC, Matthew L. Gallagher, Joseph L. Crowton and Susan Bourque Crowton.
    C. Arlen Braud, Mandeville, LA, for Defendant/Appellee, Michelle Oubre Gallagher.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   McClendon, j.

I ¡.Appellant seeks review of a judgment that sustained an exception raising the objection of res judicata and dismissed its deficiency judgment action. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2009, Citizens Savings Bank (“Citizens”) filed an executory process foreclosure suit, naming G & C Development, L.L.C., Matthew L. Gallagher, Michelle Oubre Gallagher, Joseph L. Crowton, and Susan Bourque Crowton (“appellees”) as defendants (Tangipahoa Parish docket # 2009-0003646). On January 13, 2010, at the foreclosure sale, Citizens purchased the property securing the loan. The purchase price was far less than the amount owed on the loan, resulting in a deficiency.

On January 21, 2010, appellees filed suit against Citizens seeking a declaratory judgment that Citizens had no further right to recovery under the promissory note. In the same suit, appellees also sought to rescind the sale (Washington Parish docket # 100,250). Following a trial on the merits, the trial court signed a judgment in the declaratory judgment/rescission action on August 5, 2011. No appeal was taken from that judgment.

During the pendency of the Washington Parish declaratory judgment/rescission action referenced above, on March 11, 2010, Citizens filed a separate lawsuit for a deficiency judgment against appellees (St. Tammany Parish docket number 2010-11653). In response, appellees filed an exception raising the objection of lis pen-dens, asserting that Citizens’ claim was a compulsory counterclaim that had to be brought in the declaratory judgment/rescission action. After the trial court denied appellees’ exception, appellees sought supervisory writ review from this court. On October 14, 2010, this court granted appellees’ writ as follows:

Is WRIT GRANTED. This matter is on the same transaction or occurrence, and between the same parties in the same capacities as the matter of Michelle Ou-bre Gallagher, Matthew L. Gallagher, Susan Bourque Crowton, Joseph L. Crowton, and G & C Development, L.L.C. versus Citizens Savings Bank, pending in Division “H” of the 22nd Judicial District Court for Washington Parish, as Docket No. 100,250. Therefore, the trial court’s judgment denying relators’ declinatory exception of lis pen-dens is reversed. Judgment is hereby rendered granting defendants’, G & C Development, L.L.C., Matthew L. Gallagher, Michelle Oubre Gallagher, Joseph L. Crowton, and Susan Bourque Crow-ton, exception of lis pendens and dismissing the plaintiffs suit without prejudice.

Citizens Savings Bank v. G & C Development, 2010-1289 (La.App. 1 Cir. 10/14/10)(unpublished writ action).

Citizens did not assert its claim for deficiency in a reconventional demand in Washington Parish docket # 100,250. Rather, on November 10, 2011, Citizens refiled its petition for a deficiency judgment as a new suit (St. Tammany Parish docket number 2011-16395). In response, appellees filed an exception raising the objection of res judicata. Following a hearing and after taking the matter under advisement, the trial court sustained the appellees’ exception and dismissed Citizens’ suit with prejudice.

Citizens has appealed, assigning the following errors:

1. The Trial Court erred in holding that the judgment in the declaratory proceeding was a final judgment within the contemplation of [LSA-R.S.] 13:4281.
2. The Trial Court erred in failing to recognize that an action for a declaratory judgment is exempt from the strictures of [LSA-R.S.] 13:4231.

DISCUSSION

Louisiana Revised Statutes 13:4231, entitled Res judicata, provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are ^extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Res judicata does not apply “[w]hen the judgment dismissed the first action without prejudice.” LSA-R.S. 13:4232A(2). See also LSA-C.C.P. art. 1673.

Additionally, LSA-C.C.P. art 1061B provides that “[t]he defendant in the principal action ... shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.” If the defendant has a cause of action arising out of the subject matter of the plaintiff’s action, then the defense of res judicata will prevent relitigation of issues common to both causes of action except as otherwise provided by law. The requirement of a compulsory reconventional demand therefore also serves the interest of fairness by giving the defendant notice that he must assert his related cause of action. LSA-C.C.P. art. 1061, official comment (b).

In its first assignment of error, Citizens contends that the trial court erred in concluding that the judgment in the Washington Parish declaratory judgment/rescission action was both “valid and final” insofar as the judgment did not specifically indicate that the claims were dismissed “with prejudice.” Citizens asserts that because the judgment entered did not include the “with prejudice” declaration, the judgment is presumed to have been dismissed without prejudice. See Lavespere v. Lavespere, 08-0903, 2008 WL 4908760, p. 2 (La.App. 1 Cir. 11/14/08) (unpublished opinion). Since the Washington Parish judgment at issue did not specifically dismiss the claims “with prejudice,” Citizens concludes that res judicata does not apply.

| ^Louisiana Code of Civil Procedure article 1844, which addresses the effect of a judgment of dismissal, provides that a judgment of dismissal with or without prejudice shall be rendered and the effects thereof shall be regulated in accordance with the provisions of Articles 1671 through 1673. Louisiana Code of Civil Procedure articles 1671 and 1672 involve voluntary and involuntary dismissals, respectively. Louisiana Code of Civil Procedure article 1673 provides that “[a] judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.” Accordingly, LSA-C.C.P. arts. 1671 through 1673 provide a system to determine whether certain dismissals prior to a trial on the merits are to be with or without prejudice. The articles, when read in pari materia, dictate that dismissals after trials on the merits, however, are to be with prejudice. Cf. Vega v. Wal-Mart Stores, Inc., 03-2239 (La.App. 1 Cir. 9/17/04), 888 So.2d 242, 243 (“Just as it is erroneous to grant a dismissal without prejudice after a trial on the merits, it is erroneous to grant a dismissal without prejudice pursuant to the granting of a motion for summary judgment”)

Unlike the judgment in Lavespere, which dismissed an action due to the plaintiffs failure to appear on the day of trial, the Washington Parish judgment at issue was rendered following a trial on the merits and determined the merits of all issues the parties brought before it. Under these circumstances, we conclude that the judgment had the effect of a dismissal with prejudice. Accordingly, Citizens’ first assignment of error is without merit.

In its second assignment of error, Citizens contends that it could not proceed with its deficiency judgment action until the suit for declaratory judgment, seeking a declaration that the sheriffs sale was null and ordering rescission, was complete. Citizens avers that until such time it could not be assured of the validity of its cause of action.

Citizens contends that this approach is entirely consistent with the declaratory judgment procedure, which provides that “[fjurther relief on a | fideclaratory judgment or decree may be granted whenever necessary or proper.” LSA-C.C.P. art. 1878. Citizens avers that pursuing the deficiency action after such rights are declared is consistent with the purpose and mode of application of the declaratory judgment articles, as articulated in LSA-C.C.P. art. 1881 as follows:

Articles 1871 through 1883 are declared to be remedial. Their purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and they are to be liberally construed and administered.

Citizens concludes that after having uncertainty removed by declaratory judgment, it properly moved forward to consummate its collection process by filing its petition for deficiency judgment.

A declaratory judgment action is designed to provide a means for adjudication of rights and obligations in cases involving an actual controversy that has not reached the stage where either party can seek a coercive remedy. Chauvet v. City of Westwego, 599 So.2d 294, 296 (La.1992). The function of a declaratory judgment is simply to establish the rights of the parties or express an opinion of the court on a question of law without ordering anything to be done. ANR Pipeline Co. v. Louisiana Tax Comm’n, 01-2594, p. 9 (La.App. 1 Cir. 8/20/02), 815 So.2d 178, 185, affirmed and remanded, 02-1479 (La.7/2/03), 851 So.2d 1145. In their suit, appellees, in addition to seeking a declaratory judgment that Citizens has no right to further recovery under the promissory note, also sought to rescind the sale. Accordingly, appel-lees’ suit sought more than a mere declaration of rights.

This court, in granting appellees’ exception raising the objection of lis pen-dens, concluded that Citizens’ deficiency judgment action was “on the same transaction or occurrence, and between the same parties in the same capacities” as appel-lees’ declaratory judgment/reseission lawsuit. We note that the requirements for establishing lis pendens conform to the requirements of res judicata, and the test for lis pendens is whether a final judgment in the first suit would be res judicata in the subsequently filed suit. Code v. Department of Public Safety and Corrections, 2011-1282, p. 4 (La.App. 1 Cir. 10/24/12), 103 So.3d 1118, 1125. Under La.R.S. 13:4231, res judicata bars relitigation of a subject matter arising from the same transaction or occurrence as a previous suit. In determining whether this requirement is met, the crucial inquiry is not whether the second suit is based on the same cause of action as the first suit, but whether the second suit asserts a cause of action that arises out of the same transaction or occurrence that was the subject matter of the first suit. Id.

Because Citizens’ deficiency judgment is on the same transaction or occurrence and between the same parties in the same capacities as appellees’ declaratory judgment/rescission lawsuit, Citizens’ cause of action was extinguished upon its failure to assert its claims in reconvention in the declaratory judgment/rescission lawsuit. LSA-R.S. 13:4231. Accordingly, we find no error in the district court granting appellees’ exception raising the objection of res judicata.

CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are assessed to Citizens Savings Bank.

AFFIRMED.

      . Throughout parts of the record, defendant Michelle Oubre Gallagher’s first name is misspelled "Mechelle,”

      . Although the Washington Parish court, in its written reason for judgment, specifically indicated that the action was dismissed "with prejudice at the cost of plaintiffs,” the written judgment was silent as to whether it dismissed the claims with or without prejudice.

      . Louisiana Code of Civil Procedure article 1673 provides:
      A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.

      . To allow the institution of a separate suit when the reconventional demand pursuant to LSA-C.C.P. art. 1061B is compulsory would not promote the judicial economy and efficiency the legislature sought to promote in broadening the scope of the res judicata doctrine.


text:
    Jerry J. DUPRE, Jr. v. SURBO TUBULAR SERVICES, INC. and Amerisafe Risk Services, Inc.
    No. 2012 CA 1131.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 15, 2013.
    D. Steven Wanko, Jr., Covington, LA, for Plaintiff/Appellant, Jerry J. Dupre, Jr.

      Barry J. Rozas, Lafayette, LA, for Defendant/Appellee, Surbo Tubular Services, Inc.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   McClendon, j.

12An employee appeals a judgment of the Office of Workers’ Compensation (OWC) that granted the employer’s exception raising the objection of prescription, which dismissed the employee’s disputed claim for compensation. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 25, 2002, Jerry Dupre suffered an injury while in the course and scope of his employment as a machinist at Surbo Tubular Services (Surbo). Mr. Dupre initially received workers’ compensation indemnity payments until March 2004, when he returned to work for Surbo. Due to the nature of his injuries and work restrictions, Mr. Dupre was unable to return to his pre-injury position. Surbo accommodated Mr. Dupre’s work restrictions and allowed him to return to work in a modified duty position. Mr. Dupre was paid an hourly rate similar to his pre-injury wage.

Surbo, because of Mr. Dupre’s experience in quality control and in an attempt to further accommodate Mr. Dupre’s restrictions, offered him a position as a supervisor in 2004 or 2005. In his position as supervisor, Mr. Dupre earned significantly more than he had as a machinist or in his modified duty position.

On February 9, 2011, Mr. Dupre, after his treating physician restricted him from any work activity following surgery/ terminated his employment with Surbo. In April 2011, Mr. Dupre filed a disputed claim for compensation, seeking wage benefits, disability status, costs, penalties, interest, and attorney’s fees arising from the October 25, 2002 work-related accident. In response, Surbo and its worker’s compensation carrier, Amerisafe Risk Services, Inc., (hereinafter collectively “the Employer”), filed an exception raising the objection of prescription. Following a hearing, the OWC granted the Employer’s exception.

Mr. Dupre has appealed, asserting that the OWC erred in granting the Employer’s exception raising the objection of prescription.

IsDISCUSSION

The relevant prescriptive period for filing a claim for benefits is found in LSA-R.S. 23:1209, which provides, in pertinent part:

A. (1) In case of personal injury, including death resulting. therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. (2) Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).

Mr. Dupre notes that the Employer paid indemnity benefits until March 4, 2004 and that he did not file his formal disputed claim for compensation until April 6, 2011. As such, Mr. Dupre concedes that his claim is prescribed on its face pursuant to LSA-R.S. 23:1209 and that he has the burden to show that prescription has been interrupted in some manner. See Flowers v. Container, 06-1473 (La.App. 1 Cir. 5/4/07), 960 So.2d 1053,1054.

Mr. Dupre asserts that the prescriptive period was interrupted because the Employer paid him wages in lieu of compensation. See Ortis v. Ortco Contractors, Inc., 2000-1460 (La.App. 1 Cir. 9/28/01), 809 So.2d 300, 301 (“Prescription is interrupted by the payment of wages in lieu of compensation when suit is filed within one year of final wage payment.”) Wages in lieu of compensation are deemed applicable when services rendered by a disabled employee after an accident are not commensurate with the wages paid and the employee does not actually earn all of his pay. Ortis, 809 So.2d at 301. The underlying test is whether the wages paid after the accident were actually earned. Id. A determination of whether the wages were actually earned depends on the facts and circumstances of each case. Id.

Mr. Dupre avers that it is undisputed that he suffered a work-related injury while in the course and scope of his employment and that he was paid unearned wages by the Employer while on company time to attend doctors’ visits Land receive medical treatment for his injury. Mr. Dupre contends that these unearned wages are by their very nature “wages in lieu of compensation.”

In Love v. East Jefferson General Hospital, 96-1558 (La.App. 1 Cir. 5/9/97), 693 So.2d 1245, 1248, this court concluded that “the mere fact that [the] employer allowed [the employee] to receive treatment for her injury while she was ‘on company time’ is insufficient evidence to support a finding that the wages paid to [the employee] ... were in lieu of compensation benefits.” The court noted that there was no evidence in the record that would support a finding that the employee was receiving wages after the accident without having actually earned them. Id.

Mr. Dupre, a salaried employee holding the position of supervisor, testified that he worked more than forty hours per week on average. He also testified that he was required to work on scheduled Saturdays and came in additional times when he was on call. Mr. Dupre acknowledged that he did not have to make up any missed hours for appointments on company time because he worked more than a regular forty-hour work week. As such, we cannot conclude that Mr. Dupre received wages that he had not actually earned. Accordingly, we find no error in the OWC concluding that the Employer did not pay Mr. Dupre wages in lieu of compensation.

Mr. Dupre also asserts that he was lulled into a false sense of security by the Employer, which caused him to withhold suit until after the prescriptive period expired. See Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385, 387-88 (1972) (“When, however, the employer lulls the employee into a false sense of security, causing him to withhold suit until after the [prescriptive] period has expired, the employer cannot invoke the time bar to defeat compensation.”) Mr. Dupre contends that he had no reason to file suit as medicals were being paid and he did not experience any wage loss.

Mr. Dupre, however, testified that he was aware that he had one year to file for indemnity benefits. Moreover, Mr. Dupre indicated that he was aware that the payments he received were not for sick leave, but rather for earned |fiwages. In contrast, in Dupaquier, the employee “reasonably believed the sick leave benefits he was receiving included workmen’s compensation,” so the employee withheld suit until his sick leave expired. 257 So.2d at 388. Accordingly, we cannot conclude that Mr. Dupre was lulled into a false sense of security by the Employer.

Mr. Dupre also asserts that his claims have not prescribed under the doctrine of contra non valentem. The courts have recognized the following four factual situations in which contra non valentem prevents the running of liberative prescription:

(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
(2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
(4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiffs ignorance is not induced by the defendant.

Marin v. Exxon Mobil Corp., 2009-2368 (La.10/19/10), 48 So.3d 234, 245. Mr. Dupre contends that categories three and four apply under the circumstances herein.

Mr. Dupre asserts that he presented ample evidence to establish that he received his full salary and therefore had no reason to expect his claim for indemnity to prescribe. Mr. Dupre notes that the Employer continued to pay for medical benefits and contends that a lay person would have no reason to know that indemnity benefits would have a separate prescriptive period. Mr. Dupre candidly admitted, however, that he was aware that he had one year to file for indemnity benefits. Accordingly, under these circumstances, we find no error in the OWC not applying the doctrine of contra non valentem.

Nevertheless, Mr. Dupre notes that workers’ compensation laws are to be construed liberally in favor of providing compensation to the injured worker. He asserts that he should not be penalized for attempting to remain in the work | (force in order to support his family or in the hope that his condition would improve. Mr. Dupre, citing Winford v. Conerty Corp., 2004-1278 (La.3/11/05), 897 So.2d 560, 564, avers that in cases involving developing injuries the Louisiana Supreme Court has interpreted the date upon which the “clock began to run” for prescriptive purposes as the date the employee could no longer satisfactorily perform his job responsibilities. This case, however, does not involve a developing injury. Since Mr. Dupre presented no evidence to support any theory of interruption or suspension of the prescriptive period, we are constrained to hold that the WCJ correctly decided that Mr. Dupre’s claim for indemnity benefits had prescribed.

CONCLUSION

For the foregoing reasons, the April 4, 2012 judgment of the OWC is affirmed. Costs of this appeal are assessed to appellant, Jerry Dupre.

AFFIRMED.


text:
    MIDTOWN MEDICAL, L.L.C. v. The DEPARTMENT OF HEALTH & HOSPITALS; Bruce D. Greenstein, Individually & in his Official Capacity as Secretary of the Department of Health & Hospitals; and Jerry Phillips, Individually & in his Official Capacity as Undersecretary of the Department of Health & Hospitals.
    No. 2012 CA 1597.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 15, 2013.
    Ellie T. Schilling, Thomas M. McEachin, New Orleans, LA, for Plaintiff/Appellee Midtown Medical, L.L.C.
    Eric D. Torres, Brandon J. Babineaux, Neal R. Elliott, Jr., Baton Rouge, LA, for Defendants/Appellants Department of Health & Hospitals, et al.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   McClendon, j.

|aThe Department of Health and Hospitals (DHH) seeks review of two judgments that granted appellee’s request for injunc-tive relief, both of which were rendered after the trial court had signed a prior judgment denying appellee’s request. For the following reasons, we dismiss the appeal for lack of jurisdiction.

FACTS AND PROCEDURAL HISTORY

By correspondence dated May 14, 2012, DHH notified Midtown Medical, LLC (Midtown) that it was seeking monetary recoupment for alleged Medicaid overpay-ments and a monetary penalty and that it would seek to exclude Midtown from the Medicaid Program. By separate correspondence, also dated May 14, 2012, DHH additionally notified Midtown of its intention to immediately terminate Midtown’s Medicaid provider agreement.

On June 7, 2012, Midtown filed a Verified Petition for Injunctive Relief and Damages, naming DHH and DHH’s secretary and undersecretary as defendants. Midtown requested the injunction to prevent DHH from terminating Midtown’s Medicaid provider agreement denying Medicaid remittances, and recouping Medicaid overpayments.

Following the hearing on Midtown’s request for injunctive relief, the trial court took the matter under advisement and requested that post-hearing memoranda and proposed judgments be submitted by the parties. DHH submitted its post-hearing brief on July 9, 2012, and submitted its proposed judgment the next day. On July 13, 2012, the trial court signed the judgment in favor of DHH, denying Midtown’s request for a preliminary injunction.

On July 16, 2012, Midtown submitted its post-hearing brief with a proposed judgment to the court. On July 26, 2012, the trial court signed Midtown’s proposed judgment granting the preliminary injunction. Also, on July 26, 2012, the trial court signed an order granting Midtown’s motion for | ^suspensive appeal from the July 13, 2012 judgment. On July 30, 2012, Midtown filed its appeal bond.

On August 9, 2012, the trial court signed a third judgment, which again granted the preliminary injunction in favor of Midtown. On August 20, 2012, DHH filed a suspen-sive appeal to seek review of the July 26, 2012 and August 9, 2012 judgments granting Midtown’s preliminary injunction. The trial court granted DHH’s appeal on August 23, 2012.

At a hearing held on September 10, 2012, pursuant to various motions that had been filed by the parties, the trial court informed the parties that it was sua sponte vacating all prior judgments and that it would notify all counsel when the trial court reached a decision. The parties note that on September 12, 2012, the trial court entered a minute entry that confirmed the trial court’s previous judgment in favor of Midtown. However, the minute entry has not been included in the appellate record.

DISCUSSION

Thé record before us contains three judgments: the July 13, 2012 judgment denying the injunctive relief sought by Midtown, and the July 26, 2012 and August 9, 2012 judgments granting the in-junctive relief sought by Midtown. The July 13, 2012 judgment is not before us in this appeal because Midtown’s appeal has been dismissed. Accordingly, the only judgments pending before us in this appeal are the July 26 and August 9, 2012 judgments.

As a reviewing court, we are obligated to recognize our lack of jurisdiction if it exists. Starnes v. Asplundh Tree Expert Co., 94-1647 (La.App. 1 Cir. 10/6/95), 670 So.2d 1242, 1245. In Starnes, this court, addressing amendments to judgments, explained:

Pursuant to La.Code Civ.P. art. 1951, a final judgment may be amended by the trial court at any time on its own motion or ^pursuant to the motion of any party to alter the phraseology, but not the substance, of a judgment; or to correct errors in calculation. Thus, under Article 1951, a judgment may be amended where the amendment takes nothing from or adds nothing to the original judgment. Where an amendment to a judgment adds to, subtracts from, or in any way affects the substance of the judgment, such judgment may not be amended under La.Code Civ.P. art. 1951.
Article 1951 does not authorize the amendment of a final judgment to conform with the trial court’s reasons for judgment where the amendment would make substantive changes to the original judgment. Indeed, the trial court’s written judgment is controlling even though the trial court may have intended otherwise.
The proper vehicle for a substantive change in a judgment is a timely motion for a new trial or a timely appeal. The Louisiana Supreme Court has also recognized that, on its own motion and with the consent of the parties, the trial court may amend a judgment substantively. An amended judgment rendered without recourse to the above procedures is an absolute nullity. [Internal Citations Omitted.]

Starnes, 670 So.2d at 1245-46.

The changes made by the trial court in the July 26 and August 9, 2012 judgments are clearly substantive changes to the July 13, 2012 final judgment insofar as the July 26 and August 9 judgments grant injunctive relief in favor of Midtown whereas the July 13 judgment denied in-junctive relief. No timely motion for new trial was filed from the July 13, 2012 judgment, nor did both parties consent to the changes made to the July 13, 2012 judgment. Since the substantive changes were not made pursuant to a contradictory motion for new trial filed by the parties or by the court on its own motion pursuant to LSA-C.C.P. art. 1971, by consent of the parties, or by a timely appeal, the subsequent amending judgments are without legal effect. See Starnes, 670 So.2d at 1246.

Because the July 26, 2012 and August 9, 2012 judgments are without effect, we lack jurisdiction to consider the merits of DHH’s appeal from these | ¿invalid judgments. Id. Additionally, the July 13, 2012 judgment is not currently before us because Midtown’s appeal has been dismissed.

We further note that Midtown filed a motion to dismiss DHH’s appeal, asserting that no party has sought an appeal from the September 9, 2012 order of the trial court, which vacated its prior rulings. Midtown also asserts that the appeal sought from the July 26, 2012 judgment was untimely because it was not sought within 15 days of the trial court’s judgment. See LSA-C.C.P. art. 3612(C). However, as noted above, we are without jurisdiction to consider the merits of DHH’s appeal. Accordingly, we deny Midtown’s motion to dismiss as moot.

Midtown also seeks to supplement the appellate record with various pleadings and documents not included in the record on appeal. Because we do not reach the merits of the appeal, the supplementation is denied as moot.

CONCLUSION

For the foregoing reasons, and finding that the only valid judgment was the first judgment signed on July 13, 2012 in favor of DHH and denying Midtown’s request for a preliminary injunction, we dismiss DHH’s appeal, deny Midtown’s Motion to Dismiss the appeal as moot, and deny Midtown’s motion to supplement the record as moot. Costs of this appeal in the amount of $2,220.90 are to be split between the parties.

APPEAL DISMISSED; MOTION TO DISMISS APPEAL AND TO SUPPLEMENT THE RECORD DENIED AS MOOT.

      . In its petition, Midtown also sought damages for violation of 42 U.S.C. § 1983 and for denial of due process rights.

      . It is unclear which the trial court signed first-the July 26, 2012 judgment or the motion for suspensive appeal.

      .Midtown filed an “Unopposed Motion to Dismiss Appeal,” asserting that the trial court had granted its preliminary injunction and vacated the prior judgment denying injunctive relief such that its appeal of the July 13, 2012 judgment had become moot. The trial court signed Midtown’s order dismissing the appeal on October 17, 2012.

      . The patties sought to have an additional hearing for the trial court to reconsider whether the preliminary injunction should issue. However, we note that the trial court is divested of jurisdiction over all matters reviewable under a suspensive appeal on the granting of the order of appeal and the timely filing of the appeal bond. LSA-C.C.P. art. 2088. Accordingly, although it appears that the trial court possibly retained jurisdiction when it signed the July 26, 2012 judgment before Midtown filed its suspensive appeal bond, die trial court had no jurisdiction to sign the August 9, 2012 judgment or take fmther action on matters reviewable under the appeal, including vacating the prior judgments in the September 12, 2012 minute entry, after it signed the order for suspensive appeal and Midtown filed its appeal bond.