text:
    William Earl DUNCAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2609.
    District Court of Appeal of Florida, First District.
    July 5, 2013.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant argues that the trial court abused its discretion by finding him competent to proceed 'with sentencing despite the uncontested testimony of two experts that he was incompetent. The State concedes error and asks this Court to remand for resentencing following a new competency hearing. See Gore v. State, 24 So.3d 1, 10 (Fla.2009) (holding that a determination of competency should be supported by competent and substantial evidence). The trial court should not find a defendant competent where the record provides no reason to reject overwhelming and uncontested expert testimonies to the contrary. Poynter v. State, 443 So.2d 219, 220 (Fla. 4th DCA 1983). Accordingly, we reverse the appellant’s sentence and remand for resentencing following a new competency hearing. New mental health evaluations should be performed prior to the hearing as the ones at issue are now over a year old. In re Commitment of Reilly, 970 So.2d 453, 455-56 (Fla. 2d DCA 2007) (holding that a six-month old report was too stale to support a finding of present incompetence). We need not address the second issue raised by the appellant as it is now moot.

REVERSED and REMANDED for re-sentencing.

WOLF, ROBERTS, and RAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Daniel SIGMEN, Appellee.
    No. 1D12-4452.
    District Court of Appeal of Florida, First District.
    July 5, 2013.

      Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The State appeals the trial court’s imposition of downward departure sentences after Appellee’s straight-up no contest plea to multiple counts in five cases. While Appellee’s scoresheet resulted in a minimum guidelines sentence of 88.9 months’ imprisonment, the trial court sentenced Appellee to concurrent terms of three years’ imprisonment followed by five years’ probation. The State argues, and Appellee concedes, that the trial court’s reason for departure was not based on competent, substantial evidence. We agree, reverse, and remand for resentenc-ing.

When imposing a downward departure sentence, the trial court must determine whether there is a factually supported, legal ground for departure and whether departure is the best sentencing option for the defendant. State v. Adkison, 56 So.3d 880, 882 (Fla. 1st DCA 2011). This Court reviews departure sentences to determine whether the grounds for departure were supported by competent, substantial evidence. Id. During the sentencing hearing, the trial court stated that it was entering the downward departure sentence based on proportionality. However, the trial court failed to make any factual findings to support this mitigating circumstance. It appears from the record before this Court that the trial court believed that the lowest minimum guideline sentence was too harsh for Appellee’s crimes. Mere dissatisfaction with the guidelines is not an appropriate legal ground for imposing a departure sentence. State v. Whiteside, 56 So.3d 799, 801 (Fla. 2d DCA 2011). We, therefore, REVERSE the sentences on appeal and REMAND for resentencing.

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


author: WOLF, J.

text:
    Marc BAKER, Appellant/Cross-Appellee, v. BAPTIST HOSPITAL, INC., Appellee/Cross-Appellant.
    No. 1D12-5135.
    District Court of Appeal of Florida, First District.
    July 5, 2013.
    R. Jason Richards and Bobby J. “Brad” Bradford of Aylstock, Witkin, Kreis & Ov-erholtz, PLLC, Pensacola, for Appellant/Cross-Appellee.
    J. Nixon Daniel, III and Jack W. Lur-ton, III of Beggs & Lane, RLLP, Pensacola, for Appellee/Cross-Appellant.
   WOLF, J.

Appellant/Cross-Appellee, Marc Baker, represents a class of individuals who had hospital hens asserted against them in Es-cambia County by Appellee/Cross-Appel-lant, Baptist Hospital, Inc. (Baptist), pursuant to chapter 80783, Laws of Florida (1955), on or after October 21, 2006, for medical care which they received at certain hospitals located in Santa Rosa County, and such liens had not been satisfied through payment from any source.

Baker argued below that Baptist’s practice of filing hospital liens in Escambia County for care rendered in Santa Rosa County was not authorized by chapter 30733 (a special law specific to Escambia County). Further, Baker argued, the practice was an “unfair and deceptive” practice in the conduct of “trade or commerce” and, as such, unlawful pursuant to the Florida Deceptive and Unfair Trade Practices Act, Part II, chapter 501, Florida Statutes (FDUTPA).

On a motion for summary judgment, the trial court determined that Baptist’s practice of filing liens in Escambia County for care rendered in Santa Rosa County was not authorized by chapter 30733, directed Baptist to lift any such liens and enjoined Baptist from filing such liens in the future. The trial court did not, however, agree that the act of filing a hospital lien met the definition of “trade or commerce” such that the practice was subject to FDUTPA. The trial court determined that the practice was a form of debt collection, not vrithin the definition of “trade or commerce,” and not subject to FDUTPA. Baker appeals this determination. We affirm because the pursuit of legal remedies, such as filing a lien, does not fall within the definition of “trade or commerce.” It is therefore unnecessary to reach the broader question of whether debt collection practices in general constitute “trade or commerce.” We also affirm, without comment, the issue raised on cross-appeal.

The Legislature enacted FDUTPA “[t]o protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.” § 501.202(2), Fla. Stat. (2010). The act declares unlawful “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204(1), Fla. Stat. (2010). “Trade or commerce” is defined as:

[T]he advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. “Trade or commerce” shall include the conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity.

§ 501.203(8), Fla. Stat. (2010). Baker urges this court to find that the filing of the hospital lien is within the definition of “trade or commerce” because the lien involves a debt that arose from a direct commercial relationship, i.e., the provision of medical care services.

At least one district court seems to suggest that debt collection by the party that extends credit may be subject to FDUT-PA. In Schauer v. General Motors Acceptance Corp., 819 So.2d 809 (Fla. 4th DCA 2002), a plaintiff had properly stated a cause of action against GMAC under FDUTPA sufficient to survive a motion to dismiss apparently because GMAC extended the credit which enabled the plaintiff to purchase the car and then allegedly violated the act by willfully harassing the plaintiff with respect to the collection of its debt. The plaintiff also connected the seller with GMAC through agency allegations. In other words, there appeared to be a “trade or commerce” relationship between GMAC and the plaintiff before GMAC attempted to collect the debt through means unconnected to the legal process. The case at hand, however, involves a hospital lien, not the extension of commercial credit or general collection practices unconnected to the legal process.

We decline to join the trial court and do not classify the filing of a statutory hospital lien as “debt collection.” While it may certainly be a step in eventually obtaining payment on a debt, the filing of the lien does not itself make demand for payment. Much like the filing of a mortgage and note, the recorded hospital lien puts parties on notice of the lienor’s secured interest and is part of the exercise of legal remedies.

We agree with the Fourth District Court of Appeal that the pursuit of legal remedies does not fall within the definition of “trade or commerce.” State, Office of Atty. Gen. v. Shapiro & Fishman, LLP, 59 So.3d 353 (Fla. 4th DCA 2011) (finding law firm allegedly fabricating false documents for use in foreclosure cases was not engaged in trade or commerce for purposes of FDUTPA). See also, Kelly v. Palmer, Reifler, & Assocs., P.A., 681 F.Supp.2d 1356, 1375 (S.D.Fla.2010) (holding that law firm’s issuance of pre-suit demand letters did not constitute “trade or commerce” and noting that law firm’s “acts — conduct ostensibly occurring during the exercise of a legal remedy — had zero connection whatsoever to any 'trade or commerce’”), and Trent v. Mortgage Elec. Registration Sys., Inc., 618 F.Supp.2d 1356 (M.D.Fla.2007) (finding mortgage lender’s successor was not engaged in trade or commerce for purposes of FDUTPA when it sent pre-suit demand letters and foreclosed on mortgages). In this case, we find that the filing of a hospital lien is the pursuit of a legal remedy and, thus, not within the definition of “trade or commerce.”

Baker would also have this court classify the filing of a hospital lien as a “billing practice” because billing practices are considered part of “trade or commerce.” See James D. Hinson Elec. Contracting Co., Inc. v. BellSouth Telecomm., Inc., 642 F.Supp.2d 1318 (M.D.Fla.2009) (finding “bill” sent by utility to excavator for repair of underground cable, that did not disclose corporate overhead and claims processing charges, was in “trade and commerce,” as required for claim under FDUTPA). Baker’s argument fails to consider the meaning of the verb “to bill,” which is “to present a statement of costs or charges to.” American Heritage Dictionary 131 (New Collage Ed. 1979). A “bill” is essentially one means by which a party communicates its determination of the amount of money to be paid in return for goods or services tendered. This communication is integral to the bargained-for exchange in a trade or commercial relationship.

In contrast, a lien is a “legal right or interest that a creditor has in another’s property, lasting usu[ally] until a debt or duty that it secures is satisfied.” Black’s Law Dictionary 941 (8th ed. 2004). In other words, a bill is a mere claim of a right to be paid and a lien is a securing of the right to be paid. A securing of the legal right to be paid is not essential to the trade or commercial relationship-as evidenced by the myriad of daily commercial transactions the bills for which are paid in the absence of a lien.

We find that the filing of a hospital lien does not meet the definition of “trade or commerce” for purposes of chapter 501, Part II, Florida Statutes, and AFFIRM the trial court’s order in this case.

OSTERHAUS, J., and SHEFFIELD, FRANK E., Associate Judge, concur.

      .- This court previously affirmed certification of the class represented by Baker. Baptist Hosp., Inc. v. Baker, 84 So.3d 1200 (Fla. 1st DCA 2012).

      . Because the trial court determined that the filing of a hospital lien was not subject to FDUTPA, it did not reach the question of whether the act of filing a lien in Escambia County for care rendered in Santa Rosa County was "unfair and deceptive.” We, also, do not reach the question in this context.

      . To the extent certain federal cases also assume "debt collection” is subject to the Federal Trade Commission (FTC) Act, as in F.T.C. v. Check Investors, Inc., 502 F.3d 159, 166-67 (3d Cir.2007) and Trans World Accounts, Inc. v. F.T. C., 594 F.2d 212, 214 (9th Cir.1979), those cases involve the demand for payment, not the securing of a right to be paid, and should not be applied to the facts of the case at hand. We note that while subsection 501.204(2) directs that subsection 501.204(1) should be interpreted consistently with the federal interpretations of 15 U.S.C. § 45(a)(1), the FTC Act declares unlawful "unfair and deceptive practices in or affecting commerce.” This declaration is much broader than FDUTPA's prohibition of “unfair or deceptive acts or practices in the conduct of any trade or commerce.” The broad language in the federal act appears to be a reflection of the federal government's long reach under the commerce clause. See, e.g., Wickard v. Filburn, 317 U.S. 111, 124, 63 S.Ct. 82, 87 L.Ed. 122 (1942). We need not, however, reach the question of whether debt collection practices are subject to FDUTPA given our conclusion that the practice at issue in this case is not a debt collection practice.

      . See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) ("[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).


text:
    ADVANCED DESIGN TECHNOLOGY SYSTEMS, INC. and Kevin Stephens, Petitioners, v. TRA NGUYEN, Respondent.
    No. 1D13-0303.
    District Court of Appeal of Florida, First District.
    July 5, 2013.
    H.E. Ellis, Jr. of Staples, Ellis -I- Associates, Pensacola, for Petitioners.
    John H. Adams and Cecily M. Welsh of Emmanuel, Sheppard and Condon, Pensacola; and J. Phillip Warren of Taylor, Warren & Weidner, P.A., Pensacola, for Respondent.
   PER CURIAM.

DENIED.

WOLF, MAKAR, and OSTERHAUS, JJ., concur.


author: WETHERELL, J.

text:
    Rita SYFRETT, Appellant, v. Elizabeth Ann SYFRETT-MOORE, Co-Personal Representative for The ESTATE OF Raymond L. SYFRETT, Appellee.
    No. 1D12-4218.
    District Court of Appeal of Florida, First District.
    July 9, 2013.
    Rita Syfrett, pro se, Appellant.
    Adam L. Hood of Syfrett & Dykes Law Offices, P.A., Panama City, for Appellee.
   WETHERELL, J.

Appellant seeks review of the trial court’s order denying her motion to dismiss a complaint for declaratory judgment filed by “Estate of Raymond L. Syfrett” (Estate), as well as the order entering summary judgment in favor of the Estate. We reverse and remand for further proceedings.

On January 7, 2011, the Estate filed a two-page, seven-paragraph “Complaint for Declaratory Judgment” alleging that Raymond L. Syfrett (the decedent) owned two units at Sun Harbor Marina; that he transferred those units to Appellant and Raymond Lewis Syfrett (Raymond) on November 1, 2005; that one of the units, Unit 265, was sold for back taxes in 2008; and that the transfer of Unit 265 was “in error and/or invalid.” The complaint further alleged that “[t]his action is to determine the rightful owner of [Unit 265] prior to the tax deed transfer.” The relief sought in the complaint is “an order determining the transfer of Unit # 265 prior to the tax deed sale invalid and that the [Estate] was the owner of said parcel at the time of decedent’s death.” The complaint did not challenge the tax deed sale or allege that the Estate was now the lawful owner of the unit, nor did the complaint include any allegations explaining why the 2005 transfer was invalid or why the Estate presently needed a declaration as to the lawful owner of Unit 265 in 2005, six years prior to the filing of the complaint and three years prior to the tax deed sale.

The plaintiff named in the complaint was the Estate, not either of the co-personal representatives of the Estate. The complaint was filed by Clayton R. Syfrett, who is an attorney and one of the co-personal representatives of the Estate, but the signature block on the complaint reflects that Mr. Syfrett filed the complaint as “Attorney for Plaintiff [the Estate]” not in his capacity as a co-personal representative. However, at the hearing on the motion for summary judgment, Mr. Syfrett stated that he was only representing himself as co-personal representative, and another lawyer appeared at the hearing on behalf of the other co-personal representative, Appellee Elizabeth Syfrett-Moore, even though Ms. Syfrett-Moore was not identified in any of the pleadings.

On July 5, 2011, Appellant filed a motion to dismiss the complaint for failure to adequately state a claim for declaratory relief. Among other things, the motion pointed out that none of the deeds referenced in the motion were attached to the complaint and that only one of the co-personal representatives filed the complaint. The motion also noted that the decedent’s probate case was still open and therefore the dispute framed by the complaint should be considered as an adversary proceeding in the probate case. The motion sought an order dismissing the complaint or requiring the Estate to amend the complaint to address the pleading deficiencies.

Appellant did not set the motion to dismiss for a hearing until March 21, 2012, and by that time, the Estate had filed a motion for summary judgment. The Estate argued in the motion for summary judgment that the decedent was not of sound mind when he transferred Unit 265 to Appellant and Raymond and, therefore, the Estate was entitled to a declaration that it was the lawful owner of the unit at the time of the decedent’s death. Attached to the motion were affidavits from the decedent’s brother, Frank Syfrett, M.D., and H. Cranston Pope, the attorney who prepared the deed transferring Unit 265. In his affidavit, Dr. Syfrett opined “as a physician and as someone who knew [the decedent] his entire life” that the decedent was not of sound mind and was incapable of making competent decisions on November 1, 2005, due to his pain and medication levels. Mr. Pope stated in his affidavit that the decedent was “extremely weak and feeble and clearly medicated” when he signed the deed but expressed “no opinion one way or the other” whether the decedent had sufficient ability to fully understand what he was doing when he signed the deed transferring Unit 265 to Appellant and Raymond. Appellant did not file a response in opposition to the motion, but she did file her own affidavit, which among other things, challenged the Estate’s evidence that the decedent was not competent to execute the deed.

The trial court heard the motion to dismiss and the motion for summary judgment at the same hearing. It was not until this hearing that the Estate explained why it was seeking a declaratory judgment. Specifically, counsel for the Estate indicated that the complaint was filed because the county was holding proceeds from the tax sale on Unit 265 and that the Estate had filed a claim for those proceeds. Counsel also made clear that the Estate was not seeking a declaration as to the other units transferred to Appellant and Raymond, nor was it challenging the tax deed sale or making any claim as to the present ownership of Unit 265.

On August 1, 2012, the trial court entered separate orders denying the motion to dismiss and granting the Estate’s motion for summary judgment. The summary judgment order indicated that the only evidence presented to the court showed that the decedent was incompetent when he executed the deed. Accordingly, the trial court declared that the conveyance of Unit 265 to Appellant and Raymond was invalid and that the Estate was the the owner of the unit at the time of the decedent’s death. Appellant timely appealed.,

We review de novo the trial court’s rulings on Appellant’s motion to dismiss and the Estate’s motion for summary judgment. See Fla. Bar v. Greene, 926 So.2d 1195, 1199-1200 (Fla.2006).

The purpose of a declaratory judgment is “to afford parties relief from insecurity and uncertainty with respect to rights, status and other equitable or legal relations.” Santa Rosa Cnty. v. Admin. Comm’n, 661 So.2d 1190, 1192 (Fla.1995) (citing Martinez v. Scanlan, 582 So.2d 1167, 1170 (Fla.1991)). When the dispute involves the interpretation of a deed such as in the instant case, a party may seek declaratory relief pursuant to section 86.021, Florida Statutes. To state a claim for declaratory judgment, the plaintiff must allege:

that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

May v. Holley, 59 So.2d 636, 639 (Fla.1952).

Here, we agree with Appellant that the complaint did not meet this pleading standard. First and foremost, the complaint failed to include any allegations explaining the Estate’s “bona fide, actual, present practical” need for a declaration as to the lawful owner of Unit 265 in 2005, six years prior to the filing of the complaint and three years prior to the tax deed sale. Second, the plaintiff designated in the complaint was the Estate, not the co-personal representatives of the Estate. See § 733.612(20), Fla. Stat. (2010) (providing that the personal representative has the legal authority to prosecute or defend for the estate). Third, the complaint does not provide any support for the conclusory allegation that the deed transferring Unit 265 was “in error and/or invalid.” Cf. Saks v. Smith, 145 So.2d 895 (Fla. 3d DCA 1962) (reversing order denying motion to dismiss declaratory action challenging validity of deed because the complaint did not include sufficient allegations to overcome presumption of the validity of a deed and the sanity of the grantor). And, fourth, none of the deeds or other documents referenced in the complaint were attached to the complaint. See Fla. R. Civ. P. 1.130(a).

Appellee argues that the complaint was adequately pled because it claimed doubt as to the Estate’s rights to Unit 265 and properly included Appellant and Raymond as defendants because they had a potential claim to the unit (and, potentially, the tax deed sale proceeds) which would be affected by the declaration. We are not persuaded by this argument because, as noted above, it was not until the summary judgment hearing that the Estate articulated its need for a declaration of its interest in Unit 265 in 2005; the complaint made no reference whatsoever to the proceeds of the tax deed sale.

Accordingly, we conclude that the trial court erred in denying the motion to dismiss. But even if that ruling were not erroneous, we would still be compelled to reverse because the trial court applied the wrong legal standard in ruling on the motion for summary judgment.

Generally, a defendant must serve a responsive pleading within 20 days of service of the complaint or “not later than the date fixed in a notice by publication.” Fla. R. Civ. P. 1.140(a). Here, Appellant and Raymond were served by publication and the published notice of action gave them “30 days after the first publication” to respond to the complaint. It is undisputed that the motion to dismiss was filed within that time period, and pursuant to Florida Rule of Civil Procedure 1.140(a)(3), the motion tolled the time for service of an answer until the motion was disposed.

This tolling is important because the summary judgment standard changes under these circumstances: “a plaintiff moving for summary judgment before an answer is filed must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.” BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010); accord Lehew v. Larsen, 124 So.2d 872, 873-74 (Fla. 1st DCA 1960) (explaining that “a summary judgment upon motion tendered before service of an answer should not be granted unless ... it appears to a certainty that no answer which the adverse party might properly serve could present a genuine issue of fact; that a summary judgment should not be permitted to abruptly and rashly intercept the presentation of any defensive matter which the defendant might tender by answer”). Thus, because Appellant had not yet answered the complaint due to the tolling by her motion to dismiss, Appellee had to establish that there was no answer that Appellant could serve and no affirmative defense that she could allege which would raise an issue of material fact.

Appellee did not meet this burden. The decedent was presumed to be competent when he executed the deed, and in her affidavit, Appellant questioned whether it was proper for the decedent’s brother to express a medical opinion as to the decedent’s competency and she also pointed out that Mr. Pope’s affidavit raised an issue of material fact as to whether the decedent was of sound mind because Mr. Pope was “the decedent’s estate planning attorney ... and is not willing to state one way or the other ... on the issue of whether his client/the decedent was of sound mind at the time in question.” Appellant’s affidavit, while perhaps insufficient to defeat a motion for summary judgment, is sufficient to demonstrate that Appellant may be able to raise disputed issues of material facts if she is permitted to answer the complaint. That is all that is required at this stage of the proceeding. See BAC Funding Consortium, supra; Lehew, supra.

Accordingly, for the reasons stated above, we reverse the order denying Appellant’s motion to dismiss, as well as the summary judgment order. This case is remanded for further proceedings consistent with this opinion. On remand, if the decedent’s probate case is indeed still open, the court may elect to consider the complaint in an adversary proceeding as part of the probate case. See Fla. Prob. R. 5.025(c).

REVERSED and REMANDED for further proceedings.

WOLF and VAN NORTWICK, JJ„ concur.

      . Raymond, a minor, is the son of Appellant and the decedent.

      . The notice of appeal originally designated the Estate as the Appellee, but Appellant subsequently filed an amended, and then a second-amended notice of appeal designating Ms. Syfrett-Moore as the Appellee. The other co-personal representative, Mr. Syfrett, was not referenced in any of the notices and has not participated in this appeal.

      . Appellant separately appealed the order denying the motion to dismiss and the summary judgment order, which resulted in two cases in this court: 1D12-4216 and 1D12-4218. By order dated January 31, 2013, case number 1D12-4216 was dismissed as "duplica-tive” with a notation that “[rjeview of the ... Order Denying Defendants’ Motion to Dismiss shall proceed in appeal number 1D12-4218.”

      . Appellant, a non-lawyer, purported to appeal on behalf of herself and Raymond, but by order dated June 11, 2013, Raymond was dismissed as an appellant after he failed to respond to this court’s order requiring him to obtain counsel. Cf. Magnolias Nursing & Convalescent Ctr. v. Dep’t of Health & Rehab. Servs., 428 So.2d 256 (Fla. 1st DCA 1982) (denying motion to dismiss appeal filed by out-of-state lawyer on behalf of corporation but stating that appeal would be dismissed sua sponte if the corporation did not obtain Florida counsel within 15 days), rev. denied, 449 So.2d 265 (Fla.1984); Whitehurst v. Wal-Mart, 306 Fed.Appx. 446 (11th Cir.2008) (construing Federal Rule 17(c) to preclude a parent from representing his/her child pro se in court); Fla. R. Civ. P. 1.210 Author’s Comments (noting that subsection (b) is identical to Federal Rule 17(c)).

      . The first publication occurred on June 3, 2011, and the 30th day fell on Sunday, July 3, 2011. The following day, July 4, 2011, was a legal holiday. Thus, the deadline for filing a responsive pleading was extended to July 5, 2011. See Fla. R. Civ. P. 1.090(a) (2011).

      . See, e.g., Saks, 145 So.2d at 895 (citing Hassey v. Williams, 127 Fla. 734, 174 So. 9 (1937)).


text:
    Darryl Maurice YOUNG, Petitioner, v. Lawson Ladran LAMAR, Respondent.
    No. 1D12-5242.
    District Court of Appeal of Florida, First District.
    July 9, 2013.
    Darryl Maurice Young, pro se, Petitioner.
    No appearance for Respondent.
    C. Christopher Anderson, III, General Counsel, and Elizabeth C. Daley, Staff Attorney, for Commission on Ethics, Tallahassee.
   PER CURIAM.

This pro se petition for writ of mandamus seeks to compel the Florida Commission on Ethics to process an ethics complaint. We grant the petition. In October of 2012, the petitioner attempted to file a complaint with the State of Florida Commission on Ethics, making various allegations of prosecutorial misconduct against the State Attorney’s Office for the Ninth Judicial Circuit of Florida. Rather than processing the complaint, the Ethics Commission instead simply returned the complaint to the petitioner along with a letter indicating that the Commission was refusing to accept the complaint as it was outside the Commission’s jurisdiction. The letter, authored by Virlindia Doss, the Executive Director of the Commission, indicated that the complaint failed to allege, as required by Section 112.313(6), Florida Statutes, that the public official identified in the complaint acted with the purpose of “securing] a special privilege, benefit, or exemption for himself, herself, or others.” The letter went on to advise the petitioner that “[i]f you are aware of additional facts that would suggest a possible violation of the ethics laws, you can refile your complaint.”

“In order for a court to issue a writ of mandamus, a petitioner ‘must show that he has a clear legal right to the performance of a clear legal duty by a public officer and that he has no other legal remedies available to him.’ ” Holcomb v. Department of Corrections, 609 So.2d 751, 753 (Fla. 1st DCA 1992) (quoting Hatten v. State, 561 So.2d 562, 563 (Fla.1990)). Florida Administrative Code Rule 34-5.002, which governs the processing of complaints brought before the Commission, provides that:

(3) If the Executive Director finds that the complaint is not sufficient to invoke the jurisdiction of the Commission, the complaint shall be brought before the Commission in executive session with the recommendations of the Executive Director. The Commission may find the complaint to be sufficient and order an investigation; may find the complaint to be insufficient, dismiss it, and notify the complainant that no investigation will be made; or may take such other action as may be appropriate. In any case where a complaint is found legally insufficient and dismissed, a summary of the reasons for dismissing the complaint together with the complaint itself and all documents related thereto shall become a public record and constitute a public report.

Fla. Admin. Code R. 34-5.002 (emphasis supplied). Thus, where a complaint is found to be legally insufficient to invoke the Commission’s jurisdiction, the Commission is required by its own rule to engage in what is essentially a two-step process:

1. Upon concluding that a complaint is legally insufficient, the Executive Director must bring the complaint “before the Commission in executive session with the recommendations of the Executive Director.”
2. The Commission may then take one of three steps:
a. Find the complaint sufficient and order an investigation.
b. Find the complaint insufficient, dismiss it, and notify the complainant that no investigation will be made.
e. Take such other action as may be appropriate.

That the second step of the rule provides for dismissal where a complaint is found to be legally insufficient necessarily implies that a preliminary case file would have been opened by the time the case was brought before the Commission for review. Simply returning the complaint, however inartfully pled or apparently frivolous, to a complainant without following the above-indicated steps is insufficient.

Although the Rule does contain the broad, catch-all language that the Commission “may take such other action as may be appropriate” when a complaint is found to be insufficient to invoke the Commission’s jurisdiction, this language does not change the outcome here because the error inherent in this case occurred in the first step of the processing sequence. The Executive Director does not appear to have brought the complaint “before the Commission in executive session with [her] recommendations” as expressly required by the rule. Instead, she appears to have unilaterally determined that the complaint was legally insufficient to invoke the Commission’s jurisdiction, and returned the complaint to the petitioner without taking any action thereupon.

We note that this analysis passes no judgment on the issue of whether the petitioner’s complaint is, as the Ethics Commission alleges, outside the Commission’s jurisdiction. Even assuming that this is an accurate portrayal of the complaint — as well it may be — that issue is beyond the scope of what the petitioner is asking this court to do: order the Commission to docket his complaint and initiate an investigation into his allegations of prosecutorial misconduct. While the Commission is under no obligation to initiate an investigation, it was required, at a very minimum, to process the petitioner’s complaint in accordance with the dictates of Florida Administrative Code Rule 34-5.002. Mandamus is an appropriate remedy to correct this error.

Accordingly, the petition for writ of mandamus is GRANTED. The Florida Commission on Ethics is directed to accept for filing the petitioner’s complaint originally received by the Commission on October 3, 2012, and to process the complaint in accordance with the requirements of Florida Administrative Code Rule 34-5.002.

PADOVANO, ROBERTS, and CLARK, JJ., concur.


text:
    Joey DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1473.
    District Court of Appeal of Florida, First District.
    July 9, 2013.
    Michael Jerome Titus, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s judgment and sentence but remand for entry of a corrected order of probation to reflect the oral pronouncement for special condition 23.

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


text:
    Kenneth Lamar DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3459.
    District Court of Appeal of Florida, First District.
    July 9, 2013.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm issues one and two, and reverse issue three. We remand this case to the trial court to ensure that the written judgment and sentence reflect that the court has vacated the Appellant’s conviction for petit theft.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Takia STROMAN, Appellant, v. H.T. HACKNEY and Dallas National Insurance, Appellees.
    No. 1D12-3924.
    District Court of Appeal of Florida, First District.
    July 9, 2013.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Susan J. Arrick of Arrick, Peacock & Kerr, Miami, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant challenges an order of the Judge of Compensation Claims (JCC) denying a claim for a change in treating provider made under section 440.134(10)(c), Florida Statutes (2006). Claimant also challenges the JCC’s denial of attorney’s fees and costs relative to the claim for a change in medical providers. We conclude that the JCC erred when he found Claimant had previously exercised her statutory right to a change in providers by selecting her primary care provider as permitted by section 440.134(6)(c)10. — a right which is separate and independent from the statutory right provided for in 440.134(10)(c). Because the record does not support the JCC’s finding that Claimant has already exercised her right to a change in physician under section 440.134(10)(c), we REVERSE and REMAND for the entry of an order permitting Claimant to exercise her right under this statute and awarding attorney’s fees and costs.

BENTON, RAY and MAKAR, JJ., concur.


text:
    Nathaniel HAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0512.
    District Court of Appeal of Florida, First District.
    July 9, 2013.
    Matt Shirk, Public Defender, and J. Mark Wright and Michelle Barki, Assistant Public Defenders, Green Cove Springs, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the October 25, 2012, judgments and sentences in Clay County Circuit Court case numbers 2011-CF-001948, 2012-CF-001873 and 2012-CF-001874. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.


text:
    James A. HERNANDEZ, Petitioner, v. JUSTICE ADMINISTRATIVE COMMISSION, Respondent.
    No. 1D13-1178.
    District Court of Appeal of Florida, First District.
    July 9, 2013.
    James A. Hernandez, pro se, Petitioner.
    Ana Cristina Martinez, General Counsel, and Christian D. Lake, Assistant General Counsel, The Justice Administrative Commission, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner, James A. Hernandez, seeks review of an order awarding him $4,000.00 in attorney’s fees for representing an indigent criminal defendant as both appointed counsel and as stand-by counsel in a second-degree murder trial, rather than $13,035.00 as he had requested. The Justice Administrative Commission concedes that the circuit court departed from the essential requirements of the law by failing to determine the reasonable number of hours Hernandez had worked on his case. We grant the petition, quash the fee award, and remand for reconsideration. See Fletcher v. Justice Administrative Comm’n, 109 So.3d 1271 (Fla. 1st DCA 2013); Schlax v. Justice Administrative Comm’n, 109 So.3d 895 (Fla. 1st DCA 2013); Zelman v. Justice Administrative Comm’n, 78 So.3d 105 (Fla. 1st DCA 2012).

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    In re Richard A. SCHWARTZ.
    No. 2013-B-0455.
    Supreme Court of Louisiana.
    March 6, 2013.
   ORDER

| Considering the Joint Petition for Interim Suspension filed by respondent, Richard A. Schwartz, and the Office of Disciplinary Counsel,

IT IS ORDERED that Richard A. Schwartz, Louisiana Bar Roll number 11853, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of' this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

FOR THE COURT:

/s/ Jefferson D. Hughes Justice, Supreme Court of Louisiana


text:
    In re William B. BAGGETT, Jr.
    No. 2013-B-0821.
    Supreme Court of Louisiana.
    May 3, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent was arrested and charged with driving under the influence of alcohol on three separate occasions. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that William B. Baggett, Jr., Louisiana Bar Roll number 1217, be suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on probation for a period of five years, subject to the conditions set forth in the petition for consent discipline.

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


text:
    In re Thomas G. WILKINSON.
    No. 2013-B-0822.
    Supreme Court of Louisiana.
    May 3, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

In September 2012, respondent pleaded guilty to one count of conspiracy to commit misprision of felony, a violation of 18 U.S.C. § 371. In addition, the Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent accepted payment of an improper “referral fee.” Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which respondent acknowledges that he has violated Rules 1.5(e), 8.4(a), and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Thomas G. Wilkinson, Louisiana Bar Roll number 2184, be suspended from the practice of law for a period of three years, retroactive to October 24, 2012, the date of his interim suspension, subject to the conditions set forth in the Petition for Consent Discipline.

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

GUIDRY, J., recused.

       Guidry, J. recused.


text:
    STATE of Louisiana v. Jermaine DONALD.
    No. 2013-KK-0018.
    Supreme Court of Louisiana.
    May 3, 2013.
   PER CURIAM.

Granted. The ruling of the trial court is reversed and this case is remanded for further proceedings.

A trial court’s legal conclusions in ruling on a motion to suppress are subject to de novo review by an appellate court, State v. Palmer, 09-0044, p. 5 (La.7/1/09), 14 So.3d 304, 307, and the determination of probable cause for a search is ordinarily made within the four comers of a warrant application, State v. Duncan, 420 So.2d 1105, 1108 (La.1982), unless the defendant carries his burden of showing deliberate or negligent misrepresentations made by the affiant. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978); State v. Brannon, 414 So.2d 335, 337 (La.1982).

In the present case, despite expressing concern for the way in which the police conducted a controlled purchase of cocaine from “Black” using one of their confidential informants, as detailed in the warrant application for the targeted premises, and despite expressing considerable dismay with discrepancies it found in the testimony of the affiant at the hearing on defendant’s motion to suppress, along with doubts defendant actually lived on the premises, the trial court did not find as a factual matter the police lied in the application and that the controlled purchase never occurred. As alleged in the warrant application, the purchase made by the confidential informant under the direct supervision of the police provided probable cause to search the targeted premises, from which “Black” emerged to make the sale, and into which he retreated after-wards. State v. Grey, 408 So.2d 1239, 1242-43 (La.1982); State v. Klar, 400 So.2d 610, 611 (La.1981). Although the controlled buy took place some distance away from the residence, it was reasonable for the magistrate to conclude the seller stored additional contraband in the residence. United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir.1996) (magistrate may infer that “in the case of drug dealers evidence is likely to be found where dealers live....”) (internal quotation marks and citation omitted). The warrant thus established a “probable continuing nexus between the place sought to be searched and the property sought to be seized.” State v. Varnado, 95-3127, p. 2 (La.5/31/96), 675 So.2d 268, 270 (internal quotation marks and citation omitted). Because the officers were “under no constitutional duty to call a halt to a criminal investigation the moment they ha[d] the minimum evidence to establish probable cause,” Hoff a v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966), the controlled buy also provided the officers with probable cause to detain defendant approximately one block away when they arrived back at the location with the warrant, and to secure him on the premises while they searched. Bailey v. United States, — U.S. -, -, 133 S.Ct. 1031, 1042, 185 L.Ed.2d 19 (2013), (“If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity [of the premises targeted for a search], the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion ... or an arrest based on probable cause.”).

The trial court therefore erred in suppressing the evidence found on the scene and defendant’s statements as the fruits of an illegal search and seizure.

JOHNSON, C.J., dissents.


author: HIGGINBOTHAM, J.

text:
    NORTHSHORE REGIONAL MEDICAL CENTER, L.L.C., d/b/a Northshore Regional Medical Center v. Edith Ruth DILL, Brian Dill, Atlas Travel Insurance Services Limited, Global Excel Management, Inc.
    No. 2012 CA 1400.
    Court of Appeal of Louisiana, First Circuit.
    March 22, 2013.

      See also 115 So.3d 475, 2018 WL 1182033.
    Mark W. Verret, Philip G. Smith, Dax C. Foster, Brett M. Bollinger, Jeffrey S. Val-liere, Jeffrey E. McDonald, Metairie, LA, for Plaintiff-Appellee, Tenet 100 Medical Center Slidell, L.L.C., formerly known as NorthShore Regional Medical Center, L.L.C., d/b/a NorthShore Regional Medical Center.
    Patrick D. DeRouen, Laurie L. DeAr-mond, New Orleans, LA, for Defendant-Appellant, Atlas Travel Services Limited d/b/a Atlas Direct.
    Christine Y. Voelkel, Jacques F. Bezou, Covington, LA, for Defendants-Appellees, Edith Ruth Dill and Brian Dill.
    Ernest E. Svenson, New Orleans, LA, for Defendant-Appellee, Global Excel Management, Inc.
    Before WHIPPLE, C. J., McClendon, and Higginbotham, jj.
   HIGGINBOTHAM, J.

|2A British corporation, Atlas Travel Insurance Services Limited, d/b/a Atlas Direct (“Atlas”), appeals the denial of its motion to annul a default judgment that was rendered against it and in favor of a Louisiana hospital, NorthShore Regional Medical Center, L.L.C., d/b/a NorthShore Regional Medical Center (“NorthShore”). Atlas argues that it was improperly served and it has never waived its objection to personal jurisdiction. Atlas argues in the alternative, that even if service of process was found to be proper, the final default judgment rendered against it was obtained via fraud and/or ill practices, which mandates annulment pursuant to La.Code Civ. P. art. 2004(A).

We find, however, that we cannot consider the issues raised by Atlas in this appeal because we recognize sua sponte that this appeal (Appeal No. 2012-1400, hereafter referred to as “NorthShore III ”) is now moot, given our decision to vacate the default judgment at issue in a companion appeal rendered this same date in this case. See NorthShore Regional Medical Center, L.L.C. v. Dill, 2012-0850 (La.App. 1st Cir. 3/22/13), 115 So.3d 475, 2013 WL 1182033 (hereafter referred to as “North-Shore II”). Since we vacated the trial court’s confirmation of the final default judgment dated November 15, 2011, in NorthShore II, the issues raised in this appeal, NorthShore III, are no longer jus-ticiable issues. Courts may not decide cases that are moot or where no justiciable controversy exists. An issue is “moot” when it has been deprived of practical significance and made abstract or purely academic. Suire v. Lafayette City-Parish Consol. Government, 2004-1459 (La.4/12/05), 907 So.2d 37, 55. The remedy for this type of mootness is dismissal of the appeal.

^Accordingly, we hereby dismiss as moot Atlas’s appeal of the trial court’s denial of the motion to annul default judgment, by summary opinion in accordance with Uniform Rules — Louisiana Courts of Appeal, Rule 2-16.2(A)(3). All costs of this appeal are assessed to defendant-appellant, Atlas Travel Insurance Services Limited, d/b/a Atlas Direct.

APPEAL DISMISSED AS MOOT.

      . NorthShore is currently known as Tenet 100 Medical Center Slidell, L.L.C.; however, because the caption of the case in the record has not been changed to reflect NorthShore’s new name, for consistency we will use the former business name.


author: PETERS, J. COOKS, J.,

text:
    Rhett HAYES v. Brittany Marie GUNN.
    No. 12-1153.
    Court of Appeal of Louisiana, Third Circuit.
    April 24, 2013.
    Rehearing Denied June 5, 2013.

      Ricky L. Sooter, Provosty, Sadler, et al., Alexandria, LA, for Defendant/Appellee, Brittany Marie Gunn.
    Charles A. Riddle, III, Marksville, LA, for Plaintiff/Appellant, Rhett Hayes.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   PETERS, J.

11 This immovable property dispute has as its origin an oral agreement between Diane McNeal Bordelon and her son-in-law and daughter, Rhett and Chantelle Hayes, wherein Ms. Bordelon gave the couple permission to construct part of a covered carport on her land and allowed them to use her land as a driveway to access the carport. Brittany Gunn, a subsequent owner of Ms. Bordelon’s immovable property, refused to honor the oral agreement and demanded that Mr. and Mrs. Hayes remove that portion of the carport encroaching on her land, and furthermore, that they cease using her property as a driveway. Litigation over the rights of the parties followed Mr. and Mrs. Hayes’ refusal to comply with Ms. Gunn’s demands. Mr. Hayes now appeals the trial court’s judgment rejecting his claims for relief, recognizing Ms. Gunn as the owner of the property at issue free and clear of any encumbrance, and ordering Mr. Hayes to remove the encroaching part of the covered carport and cease using the driveway. For the following reasons, we affirm the trial court judgment and remand the matter to the trial court for the determination of the issue of damages.

DISCUSSION OF THE RECORD

The facts giving rise to this litigation are not seriously disputed. Diane McNeal Bordelon acquired ownership of Lots 13 and 14 of the Oren Lamartiniere Subdivision in Avoyelles Parish, Louisiana in 1999. In February of 2003, she transferred Lot 14 to Rhett and Chantelle Hayes. The couple moved a mobile home onto Lot 14 and began constructing a covered carport as an attachment to 12their new home. Because they did not have the space on Lot 14 to build the planned covered carport, they sought and received permission from Ms. Bordelon to extend the structure onto Lot 13. Additionally, Ms. Bordelon gave the couple permission to use her property as a driveway connecting the carport to Eddbend Road, the highway fronting the two lots. Neither of these agreements were reduced to writing, but pursuant to this oral authority, Rhett and Chantelle Hayes completed the carport and began using part of Lot IB to access Eddbend Road.

By a dation en paiement recorded in the Avoyelles Parish Clerk of Court’s Office on March 31, 2010, Ms. Bordelon transferred Lot IB to the Union Bank, the creditor holding a mortgage on the property. On April 12, 2010, Union Bank transferred Lot 13 to Brittany Gunn. Before Ms. Gunn purchased the property, the representative of Union Bank informed her of the existence of the encroachment, and she personally inspected the property. On June 28, 2010, the legal counsel for the Union Bank wrote a letter to Mr. and Mrs. Hayes at the insistence of Brittany Gunn, requesting that they remove the encroaching portion of the carport and cease using the driveway.

Rhett Hayes responded to this demand by instituting suit against Ms. Gunn on September 20, 2010. In his initial pleading, he sought a judgment recognizing his right to the possession of that portion of Lot 13 made a part of the oral agreement with Ms. Bordelon. In the alternative, he requested that the trial court grant him a predial servitude on the carport encroachment and driveway, subject to him paying Ms. Gunn just compensation for the servitude.

After resolution of some preliminary issues relative to Mrs. Hayes’ involvement or noninvolvement in the litigation, Ms. Gunn answered Mr. Hayes |ssuit and reconvened against him seeking a judgment recognizing her as owner and possessor of all of Lot 13; ordering Mr. Hayes to remove that portion of the covered carport protruding onto Lot 13; and ordering him to cease using her property for access to Eddbend Road. She also sought a monetary judgment for the damages she claimed to have sustained as a result of Mr. Hayes’ actions.

The matter went to trial on May 15, 2012, and after presentation of the evidence, the trial court took the matter under advisement. On June 21, 2012, the trial court issued written reasons for judgment rejecting Mr. Hayes’ claims and rendering judgment in favor of Ms. Gunn. In its reasons for judgment, the trial court concluded factually that Mr. Hayes “was in good faith as to Diane McNeal Bordelon at the time that he constructed the carport and began using the driveway[,]” but “that he was well aware at the time of construction that he did not own any portion of Lot 13.” In ruling in favor of Ms. Gunn, the trial court stated:

The case of McDuffie v. Walker, 51So.100 (1909) sets forth the public records doctrine as confirmed in the Louisiana Civil Code and basically provides that a third party purchaser is not bound by any unrecorded claims concerning the property purchased, even though the third person has actual knowledge from outside of the records, unless said claim is recorded in the conveyance or mortgage records of the parish wherein the property is situated. (See Civil Code Article 3338).
Therefore, it is undisputed that pursuant to applicable law Brittany Marie Gunn purchased the entirety of Lot 13. Even though Gunn was aware of the situation concerning the carport and the driveway, without any recorded document establishing ownership to Hayes or a servitude to ■ Hayes, Gunn is totally within her rights to rely on the public records doctrine and assert Ml and complete ownership of Lot 13.
Therefore, although Hayes was in possession prior to the institution of this dispute, Hayes clearly does not own any portion of Lot 13. Lot 13 is clearly owned by Brittany Marie Gunn. Further, although Hayes was in good faith as to Diane McNeal Bordelon, the “good faith” does not equate to legal good faith.
RHayes does set forth a claim that he is entitled to a legal servitude pursuant to Article 670 of the Louisiana Civil Code which provides as follows:
When a landowner constructs in good faith a building that encroaches on an adjacent estate and the owner of that estate does not complain within a reasonable time after he knew or should have known of the encroachment, or in any event complains only after the construction is substantially completed, the Court may allow the building to remain. The owner of the building requires a predial servitude on the land occupied by the building upon payment of compensation for the value of the servitude taken and for any other damage that the neighbor has suffered.
The jurisprudence interpreting Article 670 confirms to this Court that this Article was enacted to protect persons who construct, in good faith, buildings or improvements on land upon which they believe they have an ownership interest. The application of Article 670, in the opinion of this Court, does not apply to a situation wherein a person is fully aware that he has no ownership interest in property upon which improvements are constructed, even if permission of the owner is granted, without protecting himself by preparing and filing documents such as sale, servitude, etc., the person constructing the improvements is doing so at his own risk and parol[sic].
Although Hayes alleges that Article 670 is applicable, it is clear to this Court that Civil Code Articles 482 and 487 are applicable. Civil Code Article 4-82 provides as follows:
The ownership of a thing includes by accession the ownership of everything that it produces or is united with it, either naturally or artificially, in accordance with the following provisions.
Civil Code Article 487 provides as follows: For purposes of accession, a possessor is in good faith when he possesses by virtue of an act transla-tive of ownership and does not know if any defects in his ownership. He ceases to be in good faith when these defects are made known to him or an action is instituted against him by the owner for the recovery of the thing.
In the case at bar, Hayes clearly does not have any act translative of ownership regarding Lot 13 and he clearly knew of the defects in his ownership. Further, any potential good faith on Hayes ceased when the defects were brought out to him by Gunn and the subject dispute arose. Concerning construction of the carport, Hayes simply made a very serious and expensive mistake, that being | .^constructing a carport on property he knew he did not own and with only verbal permission from the owner.
In addition to claims concerning the carport, Hayes has issued a claim that he is entitled to a servitude of use of the driveway. The culvert situated on Lot 13 clearly existed prior to the acquisition of Lots 13, 14 and 15 by Diane McNeal Bordelon. It is quite clear that these Lots were a portion of a pasture which were used for a growing and harvesting of hay. There were no definite boundaries set forth on Lots 13, 14 and 15 on the ground. The only boundaries were pursuant to the 1971 survey of the Oren Lamartiniere.
Evidence at Trial confirms that when Lots 13, 14 and 15 were made, there were many items of shrubby and/or overgrowth on the front of the Lots as well as possibly on the Lots themselves. Testimony by Hayes confirmed that he had to perform substantial work to clear the area in front of his home. The visual inspection by the Court on the date of Trial confirms Hayes’s testimony, especially considering that the front of Lot 13 is full of bushes and over growth. Although there clearly was a culvert in the location of the driveway on lot 13 prior to the acquisition by Diane McNeal Bordelon, the evidence falls woefully short of proving more probable than not that this driveway was used for the specific use and benefit of Lot 13, 14 or any lot whatsoever. This simply was an access to the Oren Larmartiniere property. Upon acquisition, Hayes began use of this driveway, again with permission of Diane McNeal Bordelon, the then owner of Lot 13. Hayes was placed on notice to discontinue use upon acquisition by Brittany Marie Gunn.
As stated in Palomegue [Palomeque] v. Prudhomme, 664 So.2d 88 [ (La.1995) ], any doubt as to the existence, extent, or manner of exercise of a predial servitude must be resolved in favor of the serviant estate. In the case at bar, without a specific document granting a servitude of use of the driveway on Lot 13 for the benefit of lot 14, there is doubt as to the existence, extent and manner of exercise of the alleged servitude which must be resolved in favor of the serviant estate, Lot 13.

After the trial court executed a July 19, 2012 judgment in favor of Ms. Gunn, Mr. Hayes perfected this appeal with assignments of error addressing various aspects of the trial court’s reasons for judgment. While Mr. Hayes raises a number of separate assignments of error, all are encompassed within the dispute over which law applies to the situation before us: Louisiana Civil Code Article 670 or La.Civ.Code art. 482. The trial court ultimately rejected Mr. Hayes’ argument that |fiLa.Civ.Code. art. 670 applied, and found that he was not entitled to relief when La.Civ.Code art. 482 was applied.

In his first assignment of error, Mr. Hayes asserts the trial court erred in not recognizing that the litigation had been converted from a possessory action to a petitory action by Ms. Guinn’s filings in response to his petition. We find no merit in this assignment of error. While the trial court recognized throughout its reasons for judgment that Mr. Hayes was in possession of the property at issue, it also recognized that his possession was not as owner. The nature of a petitory action is that of “one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely[.]”. La.Code Civ.P. art. 3651. Mr. Hayes does not claim the ownership of the encroached upon property, and asserts only that he possesses the property by virtue of permission from a prior owner. However, with regard to the concept of “possession” as contemplated in possessory/petitory actions, La.Civ.Code art. 3424 provides that “one must intend to possess as owner and must make take corporeal possession of the thing.” (emphasis added). See Allen v. Belgard, 05-1284 (La.App. 3 Cir. 4/5/06), 925 So.2d 1275.

As previous stated, the trial court concluded that La.Civ.Code art. 670 did not apply to the situation before the court. We agree.

Louisiana Civil Code Article 670 provides:

When a landowner constructs in good faith a building that encroaches on an adjacent estate and the owner of that estate does not complain within a reasonable time after he knew or should have known of the encroachment, or in any event complains only after the construction is substantially completed the court may allow the building to remain. The owner of the building acquires a predial servitude on the land occupied by the building upon payment of ^compensation for the value of the servitude taken and for any other damage that the neighbor has suffered.

However, as pointed out by the trial court in its reasons for judgment, this provision applies to situations in which the encroachment is on land that the encroacher believes in good faith that he owns, and not to a situation where he is aware that he in encroaching on the property of another. See Bushnell v. Artis, 445 So.2d 152 (La.App. 3 Cir.1984); Antis v. Miller, 524 So.2d 71 (La.App. 3 Cir.1988); Pruitt v. Barry, 551 So.2d 726 (La.App. 1 Cir.1989); Ensenat v. Edgecombe, 95-0641 (LaApp. 4 Cir. 5/15/96), 677 So.2d 138; Atwood v. Hylan, 28,971 (La.App. 2 Cir. 12/11/96) 685 So.2d 450; Koles v. Richardson, 2004-2181 (La.App. 1 Cir. 12/22/05), 922 So.2d 605. In the matter before us, Mr. Hayes has consistently asserted that he was aware he had no ownership interest in Lot 13, and that he was occupying the immovable property pursuant to the oral permission from his former mother-in-law. While, as pointed out by.the trial court in its reasons for judgment, there existed a “good faith” relationship between Mr. Hayes and Ms. Bordelon, that relationship did not meet the legal good faith standard required in La.Civ.Code art. 670.

Mr. Hayes also asserts that Ms. Gunn’s knowledge of the encroachment before she purchased Lot 13 justifies the application of La.Civ.Code art. 670. In support, of this argument, Mr. Hayes directs us to the case of Winingder v. Balmer, 93-0874 (La.App. 4 Cir. 2/11/94), 632 So.2d 408, wherein the fourth circuit granted a servitude pursuant to La.Civ. Code art. 670 involving a situation where an eighty-year-old house encroached on the adjacent property and the purchasers of that property knew of the encroachment before purchasing it. As pointed out by Ms. Gunn in her brief to this court, Win-ingder is distinguishable from the matter |8now before us in that there was no suggestion in the opinion that the encroaching owners were aware they were encroaching on another’s property.

Given the fact that he had no written act recognizing his right to encroach on Lot 13, Ms. Bordelon could have, at any time, caused Mr. Hayes to remove the encroachment. Both ownership of land and predial servitudes are incorporeal immovables. La.Civ.Code arts. 649 and 470. A transfer of immovable property must be made by authentic act or by act under private signature. La.Civ.Code art. 1839. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath. Id. An instrument involving immovable property shall have effect against third persons only from the time it is filed for registry in the parish where the property is located. Id.

It follows that Ms. Gunn is not bound by the oral promise made by Ms. Bordelon. Because the property was never transferred in any manner other than oral agreement, Ms. Gunn may rely on La.Civ. Code art. 3338, which states that a third party purchaser is not bound by any unrecorded claims regarding the purchased property, even if the third person has actual knowledge of the claim. See, e.g., McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909). Thus, the trial court did not err in finding that Mr. Hayes was entitled to no relief pursuant to La.Civ.Code art. 670.

The trial court also found that the accession articles of the Louisiana Civil Code were applicable to Mr. Hayes’ claim, but that they afforded him no relief. In reaching the conclusion that the law of accession applied to this matter, the trial court relied on La.Civ.Code arts. 482 and 487.

Louisiana Civil Code Article 482 provides as follows:

|flThe ownership of a thing includes by accession the ownership of everything that it produces or is united with it, either naturally or artificially, in accordance with the following provisions.

Louisiana Civil Code Article 487 provides as follows:

For purposes of accession, a possessor is in good faith when he possesses by virtue of an act translative of ownership and does not know of any defects in his ownership. He ceases to be in good faith when these defects are made known to him or an action is instituted against him by the owner for the recovery of the thing.

The trial court found that Mr. Hayes could not qualify as a possessor in good faith because he did not possess the property by an act translative of title. The trial court summarized its analysis by stating that “[Mr.] Hayes simply made a very serious and expensive mistake, that being constructing a carport on property he knew he did not own and with only verbal permission from the owner.”

The trial court found that Mr. Hayes did not meet the “good faith” requirement of either La.Civ.Code art. 670 or La.Civ.Code art. 487. Whether or not Mr. Hayes built and maintained his carport and driveway in good faith under this code provision is a factual determination. In absence of manifest error, the court of appeal will not disturb trial court’s determination that landowner acted in good faith in constructing a building that encroached on the adjacent estate. Atwood v. Dylan, 28,971 (La.App. 2 Cir. 12/11/96), 685 So.2d 450; Winingder v. Balmer, 93-0874 (La.App. 3 Cir. 3/17/94), 632 So.2d 408.

In conclusion, whether we accept the trial court’s application of accession laws or find that La.Civ.Code art. 670 applies, the same result would be reached. Thus, we find no merit in Mr. Hayes’ arguments on appeal.

Finally, Mr. Hayes asserts that the trial court erred in recognizing that Ms. Gunn was entitled to damages. In considering this argument, we note that the trial judge has great discretion in determining damages.

|10In considering whether an award of general damages is excessive or inadequate, we are guided by the supreme court’s decision in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). In that decision, the supreme court noted that “the discretion vested in the trier of fact is ‘great,’ and even vast, so that an appellate court should rarely disturb an award of general damages.” Id. at 1261. Under Youn and its progeny, “[t]he initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the ‘much discretion’ of the trier of fact.” Id. at 1260. Only after the initial inquiry is answered in the affirmative should the appellate court increase or reduce the award. Id. In making the initial inquiry, the reviewing court should not use “a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case.” Id. Such prior awards should be considered only after the reviewing court concludes that there has been an abuse of discretion. Id. Even then, the reviewing court may use prior awards only to determine “the highest or lowest point which is reasonably within [the trial court’s] discretion.” Id.

Rayburn v. Ponthieux, 04-1547, p. 6 (La.App. 3 Cir. 5/4/05) 902 So.2d 1136, 1139-40.

We do not find in this case that the trial court abused their discretion. Thus we find this assignment of error without merit.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the trial court and remand the matter to the trial court for consideration of the damage issue. We assess all costs of this appeal to Mr. Rhett Hayes.

AFFIRMED AND REMANDED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissents.

| ¾ Rhett Hayes (Rhett) and his wife Chantelle Hayes (Chantelle) acquired ownership of Lot 14 of Oren Lamartiniere Subdivision in Avoyelles Parish from Chantelle’s mother, Diane McNeal Borde-lon, (Bordelon) in 2003. The couple moved a mobile home onto the Lot and wished to construct a covered carport attached to the mobile home. Lot 14 did not have enough space to build the carport so Bordelon gave oral permission to Rhett and Chan-telle to use part of Lot 13 owned by her to construct the carport and driveway. The couple enjoyed use of this portion of Lot 13 for quite some time but there was never any transfer of ownership of Lot 13 on paper and no written agreement of any kind between Rhett, Chantelle, and Borde-lon. In March 2010, Bordelon conveyed Lot 13 by dation en paiement to Union Bank in exchange for forgiveness of her mortgage obligation secured by the property. Union Bank then sold the property to Brittany Gunn (Gunn). Before selling the property to Gunn a representative of the bank told her about the encroaching carport and driveway on Lot 13. Gunn physically inspected Lot 13 before purchasing the property.

Rhett and Chantelle were notified by letter dated June 28, 2010, that Bordelon demanded removal of the portion of the carport encroaching on Lot 13 and they voluntarily cease using the portion of the driveway located on Lot 13. Rhett and Chantelle refused the demand to remove the carport and filed suit against |2Gunn. Gunn reconvened seeking a judgment recognizing her as owner and possessor of all of Lot 13. Bordelon also sought a court order directed to Rhett and Chantelle to cease using her property for access to Eddbend Road and to remove the encroaching portion of the carport from Lot 13. The trial court rendered judgment in favor of Bordelon, rejecting Rhett and Chantelle’s claims. Rhett appeals the trial court’s judgment.

The majority affirms the trial court judgment finding the provisions of La.Civ. Code art 670 do not apply to the facts of this case. I disagree. I believe the trial court erred as a matter of law in failing to apply the provisions of La.Civ.Code art. 670. In Bushnell v. Artis, 83-452 (La.App. 3 Cir. 2/1/84), 445 So.2d 152, this court expressly rejected the notion that the possessor in good faith contemplated by Article 670 must be one possessing by virtue of an act translative of ownership as defined in La.Civ.Code. art. 487. Id. at 154. This court held that the provision of Article 487 is expressly restricted to the articles on accession. Id. at 154. The majority relies on the fact that Rhett and Chantelle were always aware they had no title to Lot 13 and no right to possession other than Bordelon’s oral permission. This, the majority says, does not meet the “good faith” standard articulated in article 670.

The cases cited by the majority do not support its position; in fact they support the contrary. There is no good faith bright line test solely dependent on an act translative of title when applying Article 670. As noted in Bushnell, we have rejected this exact requirement found only in Article 487. Id. at 154. Good faith as contemplated by Article 670 means “good faith in fact.” It means what it says. The ordinary meaning of good faith as defined in Webster’s Dictionary is “honesty” or “lawfulness of purpose.” At the time Rhett and Chantelle constructed the carport they “honestly” acted with the express permission of the owner and their decision to act was not illegal.

|3The majority also finds Gunn is not bound by any oral promise made by Bor-delon. That may be, but such is not relevant in resolving this dispute. The majority finds Gunn is protected under the provisions of La.Civ.Code art. 3338, which provide that a third-party purchaser is not bound by any unrecorded claims affecting the purchased property even if the third-party has actual knowledge of the claim. This finding ignores the applicability of Article 670 which clearly protects Rhett and Chantelle who, at all times, acted in good faith with the express permission of the owner, Bordelon. Rhett and Chantelle are exactly the type of landowners who, in good faith, construct a building that encroaches on the neighboring land to which no objection is timely made. Not only was no objection made to Rhett and Chantelle’s construction, they were given express permission by the owner making them actors in good faith. Certainly it cannot be said they acted in any bad faith.

The majority also examines the applicability of the accession articles in the Civil Code and finds they offer Rhett no relief. I agree with that assessment. To be a possessor in good faith under article 487 one must possess by an act translative of ownership and not know of any defects in his ownership. Be that as it may, it is Article 670 which affords Rhett and Chan-telle a predial servitude protecting them as actors in good faith who not only met with no timely objection from the neighboring landowner, but had her express permission initially and continuing until she relinquished ownership.

The majority also finds no abuse of the trial court’s much discretion in finding Gunn entitled to damages. Because the trial court committed legal error in failing to apply Article 670 the case must be remanded. If the trial court in applying Article 670 grants a predial | ¿servitude to Rhett and Chantelle the Code then directs the trial court to award “payment of compensation for the value of the servitude taken and for any other damages that the neighbor has suffered.” See LA.Civ.Code art. 670.

I further note Gunn was well-informed about the encroachment before purchasing the property and purchased it with full knowledge of its existence. Perhaps that fact may figure in the trial court’s discretionary assessment of appropriate compensation and/or damages. It may be the price Gunn actually paid for the property factored in the obvious encroachment the Bank warned of prior to the sale. The trial judge is free to award damages in the amount necessary to compensate her, even for the full value of the property, should he decide that the property is wholly unusable for the purposes for which she intended when purchased. The court simply did not reach the damage issue because it legally erred in finding Article 670 required that Rhett and Chantelle have an act translative of title to be judged as possessor’s in good faith.

For the reasons stated I respectfully dissent.

      . The record reflects that sometime before the filing of the initial suit giving to this appeal, Rhett and Chantelle Hayes physically separated and began divorce proceedings. In October of 2010, or after suit was filed, the couple executed a community property agreement wherein Mr. Hayes was given title to Lot 13. On March 25, 2011, Mrs. Hayes executed a document assigning all of her interest in the disputed property encroaching onto Lot 14 to her former husband. Thus, Mrs. Hayes is not a party at interest in this litigation.

      . Mr. Hayes also sought a show cause hearing in an effort to cause Ms. Gunn to remove obstructions she had placed in the driveway pending disposition of the issues in the litigation. However, that issue is not before us.

      . While recognizing Ms. Gunn’s right to a judgment for her damages, the trial court reserved the quantum issue to a later day.


author: JOY COSSICH LOBRANO, Judge.

text:
    Rydell DIGGS v. DEPARTMENT OF POLICE.
    No. 2012-CA-1276.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.
    Rehearing Denied June 5, 2013.

      Eric J. Hessler, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Gregory Brumfield, Jr., Assistant City Attorney, Richard F. Cortizas, City Attorney, City of New Orleans, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| Appellant, Rydell Diggs, appeals the ruling of the Civil Service Commission denying his appeal following termination of his employment with the New Orleans Police Department (“NOPD”). Appellant’s employment was terminated for violation of internal rules regarding adherence to law, truthfulness and professionalism. Specifically, the Appointing Authority, NOPD, determined that appellant violated criminal statutes relative to aggravated battery, simple battery and theft. For reasons that follow, we affirm the ruling of the Civil Service Commission.

It is undisputed that on August 2, 2007, appellant, a Police Officer with permanent status employed by NOPD, conducted a traffic stop of a vehicle, which was driven by Froilan Corrías and had no passengers. After Corrías exited his vehicle, appellant put handcuffs on him, patted him down and placed him in the back of the police car. The remaining material facts of this case are in dispute.

Sergeant Omar Diaz conducted an investigation of the incident at issue, and testified at the Commission hearing as to his findings. He stated that on August 3, 122007, Corrías and his girlfriend, Victoria Ruiz, came to the NOPD Public Integrity Bureau office to file a complaint against appellant. Corrías was wearing a knee brace, and had contusions on his forehead and arm. Corrías reported that he was beaten and robbed by a police officer (appellant) during a traffic stop. The traffic stop occurred on August 2, 2007 at approximately 1:17 a.m. According to Corrías, appellant instructed him to exit the vehicle, and then placed him in handcuffs and put him in the back seat of the police car. Appellant asked Corrías for his drivers’ license and Corrías turned over his wallet to him. While still in possession of the wallet, appellant ran Corrías’ name through the computer to check for outstanding warrants. Appellant asked Cor-rías why he was carrying so much cash ($1,400.00), and Corrías answered that he had recently received payment for construction work and planned to pay some bills with the cash. Appellant determined that there were no warrants against Corrí-as, returned his wallet to him, and allowed him to leave.

Corrías then drove the short distance to his house and counted the money in his wallet. Realizing that $500.00 was missing, he awoke his girlfriend, Victoria Ruiz, and asked her to accompany him to look for the appellant. They spotted appellant a few blocks away, sitting in his car in front of a house talking to a woman. Sergeant Diaz learned that the woman was appellant’s girlfriend at the time, Denise Green. Corrias drove up, rolled down his window and asked appellant for his money. Appellant denied having the money. Appellant then exited his vehicle, walked up to Corrias’ vehicle and continued to deny having the money. Appellant punched Corrias in the face, a fact that was confirmed to [sSergeant Diaz by Green, and described by her as a “sucker punch.” Appellant then pulled out a baton and began striking Corrias with it through the open car window.

Corrias climbed over his girlfriend to escape through the passenger door while appellant continued to strike him with the baton. Corrias managed to get out of the vehicle and ran to a friend’s house nearby. While Corrias was trying to escape, appellant sprayed pepper spray into the vehicle, hitting Ruiz and causing irritation to her eyes. According to Ruiz, plaintiff told her he did not take Corrias’ money and suggested that she should look inside the police car for the money. Ruiz looked in the back seat of the police car but saw no money. Sergeant Diaz confirmed that Corrias sought medical treatment for his injuries approximately one hour after the incident. Those records noted that Corri-as suffered a fractured kneecap and was prescribed medication. Ruiz was treated for irritation to her eyes from the liquid substance sprayed into the car by appellant.

Sergeant Diaz further testified that appellant denied all of the allegations of misconduct made by Corrias and Ruiz. However, Sergeant Diaz determined that Corrias, Ruiz and Green were more credible than appellant. He did not find credible the explanation advanced by appellant and his supervisor, Sergeant Philibert, that $500.00 in cash must have fallen out of Corrias’ wallet while he was in the back of the police car.

Corrias did not testify at the hearing, but Ruiz did. She stated that on August 2, 2007, Corrias woke her up, and informed her that a police officer had robbed him. She went with him to look for the officer, and when they located him, Corrias 14asked him for the money. An argument ensued, and appellant pulled out a baton and struck Corrias on the knee with the baton. Ruiz testified that appellant also struck Corrias’ face, but she could not recall if appellant used his fist or the baton in doing so. As Corrias was exiting the vehicle, appellant sprayed a liquid substance into the vehicle, which struck Ruiz, causing irritation to her eyes for which she sought medical attention. She stated that Corrias ultimately got his money back, which was found on the back seat of the police car after appellant’s supervisor arrived.

Appellant testified that he stopped Cor-rias on August 2, 2007 for driving without headlights, and for possible drug activity due to the fact that the area in which Corrias was driving was known for drug activity. After Corrias stepped out of his vehicle, appellant put handcuffs on him, patted him down and placed him in the rear seat of the police car. Appellant stated that he never asked for or took possession of Corrias’ wallet, but instead simply asked Corrias for his name and then ran the name through the computer to determine if there were any outstanding warrants. Finding none, appellant gave Cor-rias a warning and allowed him to leave. Appellant then drove to his girlfriend’s house nearby, and was seated in his vehicle outside of her house eating a sandwich that she had prepared for him when Corri-as drove up with his girlfriend, Victoria Ruiz, and accused appellant of stealing his money during the traffic stop. Appellant stated that he immediately called his supervisor, Sergeant Philibert, who arrived on the scene within minutes.

15At the hearing, appellant stated that he was arrested as a result of this incident, but was acquitted of all charges at trial. He denied hitting Corrías or spraying Ruiz with pepper spray. He further denied stealing money from Corrías or even asking for his wallet during the traffic stop. As for Sergeant Diaz’s testimony that appellant’s former girlfriend confirmed that he struck Corrías, appellant dismissed her statement as that of an angry ex-girlfriend.

Sergeant Philibert, appellant’s supervisor, testified that appellant called him on August 2, 2007 to request his presence due to a conflict with a citizen. When Sergeant Philibert arrived, within a couple of minutes of appellant’s call, Corrías told him that appellant took his money. According to Sergeant Philibert, Corrías did not say anything about being struck by appellant with a fist or a baton, and Ruiz did not complain that she had been struck with pepper spray. Sergeant Philibert testified that he saw no evidence of a beating and did not observe anyone injured at the scene. He stated that he walked with Corrías to the police car, and while shining his flashlight on the back seat, saw money on the seat. Corrías confirmed that the money belonged to him.

The applicable law governing an employee’s appeal to the Civil Service Commission following disciplinary action and this Court’s review of the denial of such an appeal was set forth by this Court in Cure v. Department of Police, 07-0166 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, as follows:

The appointing authority has the burden of proving, by a preponderance of the evidence that the complained-of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient [ (¡operation of the appointing authority. Marziale v. Department of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767, citing Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990). The burden of proof on appeal to the Civil Service Commission shall be on the appointing authority. Marziale, supra, 06-0459, p. 11, 944 So.2d at 767, citing Walters v. Dept. of Police of New Orleans, 454 So.2d at 112-113. The decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal to this Court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12(B); Marziale, supra. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the •infraction, this court should not modify the Civil Service Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision by the Civil Service Commission is “arbitrary or capricious” if there is no rational basis for the action taken by the Civil Service Commission. Id., citing Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

Id., p. 2, 964 So.2d at 1094-1095.

In his sole assignment of error on appeal, appellant argues that the hearsay evidence offered through Sergeant Diaz’s testimony was improperly admitted because it was not reliable and/or trustworthy. At the hearing, Sergeant Diaz testified as to statements he obtained from Froilan Corrías and Denise Green. Neither Corrías nor Green testified at the hearing. Counsel for appellant did not object to the hearsay testimony as to Cor-rías, but he did object to the hearsay testimony as to Green. The hearing examiner overruled the objection, and allowed the hearsay testimony.

|7In Taylor v. New Orleans Police Department, 00-1992 (La.App. 4 Cir. 12/12/01), 804 So.2d 769, this Court enunciated the law regarding the admission of hearsay evidence in an administrative hearing, as follows:

Our case law provides that the usual rules of evidence need not apply in administrative hearings; thus, hearsay may be admitted. Glazer Steel Corp. v. Administrator, Office of Employment Sec. Of State of La., 98-0441 (La.App. 4 Cir. 9/30/98), 719 So.2d 674; Spreadbury v. State, Dept. of Public Safety, 99-0233 (La.App. 1 Cir. 11/5/99), 745 So.2d 1204; Brouillette v. State, Dept. of Public Safety, License Control and Driver Imp. Div., 589 So.2d 529 (La.App. 1 Cir.1991). However, the findings of the Commission must be based upon competent evidence. Cittadino v. Dep’t. of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir. 3/14/90). Incompetent evidence will be disregarded by the appellate court. See Id. Therefore, the question becomes whether hearsay evidence may ever be considered “competent evidence.” See Spreadbury, 745 So.2d 1204 at 1209. Hearsay evidence, such as an officer’s sworn statement may qualify as competent evidence, provided that the evidence has some degree of reliability and trustworthiness and is of the type that a reasonable person would rely upon. See Spreadbury, supra. Furthermore, it should be noted that the admission of such hearsay evidence in an administrative hearing does not infringe upon any constitutional principles. See Brouillette, supra, 589 So.2d 529 at 532; Gerald v. Louisiana State Senate, 408 So.2d 426, 430 (La.App. 1 Cir.1981).

Id., pp. 4-5, 804 So.2d at 772-773.

The appellant suggests that the hearsay testimony offered by Sergeant Diaz does not fit the criteria set forth in the Taylor case because it conflicts with Sergeant Phi-libert’s testimony that he arrived on the scene shortly after the incident and saw no sign of apparent injury on Corrías. Sergeant Philibert also stated that neither Corrías nor Ruiz complained of any beating or use of pepper spray by appellant at that time. Appellant also argues that Sergeant Diaz’s testimony about Denise Green witnessing appellant punch Corrías, and describing it as a “sucker | ¿punch,” should not have been allowed because it was a statement made by “an angry ex-girlfriend” with a bias against appellant, and therefore, was not sufficiently reliable or trustworthy.

As stated above, the only hearsay testimony to which appellant objected at the hearing was the testimony Sergeant Diaz gave regarding what Denise Green told him. As discussed below, we find this testimony qualified as competent evidence and was properly allowed by the trial court. Furthermore, if appellant had also objected to the statements offered by Sergeant Diaz as to what he was told by Corrías, we would likewise find no error in the trial court’s decision to allow that testimony.

The statements from both Green and Corrías were obtained by Sergeant Diaz during the course of his investigation of the appellant’s actions, and Sergeant Diaz had the opportunity to make credibility determinations when he obtained those statements. Sergeant Diaz interviewed Corrias and Ruiz the day after the incident, personally observed Corrias’ injuries and confirmed through medical records that Corrias and Ruiz sought medical treatment one hour after the incident. Although Sergeant Diaz does not note the date or time that he interviewed Green, the information he obtained from her merely corroborated the version of events told to him by Corrias and Ruiz. Additionally, Ruiz testified at the hearing that appellant struck Corrias. Because we conclude that Sergeant Diaz’s testimony regarding his interviews of Corrias and Green, while hearsay, qualified'as competent evidence because it had a “degree of reliability and trustworthiness and is of the type that a reasonable person would rely upon,” we find no merit in the appellant’s argument |3that the hearing examiner erred in allowing this evidence. See Johnson v. Department of Police, 08-0467 (La.App. 4 Cir. 12/10/08), 2 So.3d 501; Broaden v. Department of Police, 03-1427 (La.App. 4 Cir. 1/14/04), 866 So.2d 318.

The Appointing Authority terminated appellant’s employment with NOPD after determining that appellant violated the following criminal statutes:

1) La. R.S. 14:34, relative to aggravated battery on Froilan Corrias by striking him with a metal baton;
2) La. R.S. 14:35, relative to simple battery on Froilan Corrias by striking him with a fist;
3) La. R.S. 14:35, relative to simple battery on Ms. Victoria Ruiz by pepper spray; and
4)La. R.S. 14:67, relative to theft of $500.00 in U.S. currency, the property of Mr. Froilan Corrias.

The Appointing Authority determined that appellant was untruthful when he denied violating the above-listed criminal statutes during the internal investigation, and found the appellant’s criminal actions unprofessional. The Civil Service Commission denied appellant’s appeal after concluding that the Appointing Authority provided sufficient reliable evidence to meet its burden of proof as to all sustained charges against appellant. Considering the circumstances of this case, the penalty of termination was warranted and not excessive. The Commission’s denial of appellant’s appeal was neither arbitrary nor capricious, and was not an abuse of discretion. Accordingly, we find the Commission’s conclusion reasonable and affirm the decision denying appellant’s appeal.

For the reasons stated above, we affirm the decision of the Civil Service Commission denying the appeal of Rydell Diggs.

AFFIRMED

      . In the instant case, counsel for the City and counsel for the appellant stipulated that if the Commission found that the appellant committed the charged infractions, those infractions would impair the efficient operation of the NOPD.

      . Sergeant Philibert interviewed Corrias and Ruiz within minutes of the incident at issue, at approximately 1:30 a.m., when Corrías’ injuries might not have been as visible, and before Corrias and Ruiz had sought medical treatment for their injuries.