text:
    Daniel and Cheryl MONTERO, on behalf of W.P.M., a minor, Appellants, v. DUVAL COUNTY SCHOOL BOARD, Appellee.
    No. 1D13-5815.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2014.
    Michael Fox Orr and Jeremy M. Paul of Dawson Orr, P.A., Jacksonville, for Appellants.
    Stephen J. Powell, Rita M. Mairs, and Ashley B. Benson, Office of General Counsel, Jacksonville, for Appellee.
   BENTON, J.

On behalf of their son W.P.M., Daniel and Cheryl Montero appeal the judgment entered after orders dismissing complaints they filed against the Duval County School Board (Board) in the Fourth Judicial Circuit. We affirm.

We have jurisdiction even though, at least as to count one, dismissal was solely for failure to exhaust administrative remedies and explicitly “without prejudice.” See Hiñóte v. Ford Motor Co., 958 So.2d 1009, 1010-11 (Fla. 1st DCA 2007) (“The order of dismissal is clearly final when, for instance, the claim could only be pursued by filing a new complaint, or where there was a failure to serve the defendant, or failure to exhaust administrative remedies, Hollingsworth v. Brown, 788 So.2d 1078 (Fla. 1st DCA 2001).” (citations omitted)); Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451, 452 (Fla. 1st DCA 1998) (same); see also Gerber v. Vincent’s Men’s Hairstyling, Inc., 57 So.3d 935, 936-37 (Fla. 4th DCA 2011) (same); Valcarcel v. Chase Bank USA NA, 54 So.3d 989, 990 (Fla. 4th DCA 2010) (“An order dismissing an action without prejudice and without granting leave to amend is a final appealable order.”). But see Benton v. Fla. Dep’t of Corr., 782 So.2d 981, 981-82 (Fla. 1st DCA 2001).

For purposes of decision, we take as true all well-pleaded allegations of the complaints appellants filed in circuit court. Born deaf, W.P.M. is eligible for exceptional student education (ESE) services, which the school district proposed to furnish in accordance with an individual education plan (IEP) created by a team that consisted of teachers, district personnel, specialists, and W.P.M.’s parents, appellants here. See Fla. Admin. Code R. 6A-6.03028(1), (3). The IEP outlines services the team concluded W.P.M. needs to get a free appropriate public education (FAPE), in accordance with the requirements laid down by the Individuals with Disabilities Education Act (IDEA), codified at 20 U.S.C. § 1400 et seq. (2010).

Pursuant to section 1002.39, Florida Statutes (2010), an eligible ESE student with an IEP may receive a John M. McKay Scholarship payable from public funds to a private school the parents choose. § 1002.39(1), (2)(a)3., Fla. Stat. The school district evaluates the student’s matrix of services level, then notifies the Department of Education (Department), which informs the private school of the amount of the scholarship. § 1002.39(5)(b)2.b.-c., Fla. Stat. The “school district may change a matrix of services only if the change is to correct a technical, typographical, or calculation error.” § 1002.89(5)(b)2.d., Fla. Stat. District personnel transferred information from W.P.M.’s IEP to a form “matrix of services” documenting the services he was to receive as an ESE student, see § 1011.62(l)(e), Fla. Stat. (2010), assigned a numerical “score,” then transmitted the score to the Department.

In their amended complaint, appellants alleged the Board understated their child’s matrix of services score in order to reduce the McKay Scholarship funds available to them. In Count I, they sought a declaration of their rights and duties under the McKay Scholarship program and matrix of services scoring process, and requested the circuit court declare that the Board had miscalculated the child’s matrix of services score and that they were entitled to recalculation of the matrix of services score “to more accurately reflect his IEP and particular educational needs.” In Count II, they alleged that district personnel had deliberately scored the matrix of services at less than what was appropriate; and that understating W.P.M.’s matrix of services score and misleading them about the services W.P.M. required violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

The Board moved to dismiss both counts. As to Count I in particular, the Board maintained the appellants had failed to “pursue, much less exhaust, administrative remedies.” The IDEA requires and Florida has fully implemented an administrative complaint process which includes the right to a hearing before an administrative law judge regarding “the identification, evaluation, or educational placement” of a child. See 20 U.S.C. § 1415(b)(6)(A); see also § 1003.57(l)(b), Fla. Stat. (2010) (“The parent of an exceptional student evaluated and placed or denied placement in a program of special education shall be notified of each such evaluation and placement or denial. Such notice shall contain a statement informing the parent that he or she is entitled to a due process hearing on the identification, evaluation, and placement, or lack thereof.”); Fla. Admin. Code R. 6A-6.03311(9) (setting forth procedures for a due process hearing). By statute, no court action is permitted until after exhaustion of these administrative remedies. See 20 U.S.C. § 1415(i)(2); § 1003.57(l)(b), Fla. Stat.; Fla. Admin. Code R. 6A-6.03311(9)(w). In the present case, W.P.M.’s parents never filed an administrative complaint objecting to the IEP they helped formulate, much less requested a due process hearing.

Separately, the Department is required to “[establish, a process by which individuals may notify the department of any violation by a ... school district of state laws relating to [McKay Scholarship] program participation.” § 1002.39(6)(c), Fla. Stat. Rule 6A-6.0970(8)-(9), Florida Administrative Code, sets forth the complaint process. If a school district has violated laws or rules related to scholarship program participation, “the Department shall take any actions allowable under law to compel school district compliance with program requirements and to ameliorate the effect of the violation on the parent, student, or private school as appropriate.” Fla. Admin. Code R. 6A-6.0970(9)(c)3.c.

After hearing argument, the circuit court entered an order dismissing Count I, without prejudice, for failure to exhaust administrative remedies, on grounds that “any challenge to a matrix of services score for purposes of the McKay Scholarship Program must be made pursuant to the administrative remedy provided” in Rule 6A-6.0970, prior to seeking relief in court. The trial court also found that the appellants’ challenge to the matrix of services score fell within the scope of the IDEA, to the extent appellants’ allegations related to the identification, evaluation or educational placement of W.P.M., and that appellants had also failed to exhaust administrative remedies available to correct any errors of that kind.

That a “school district may change a matrix of services only if the change is to correct a technical, typographical, or calculation error,” § 1002.39(5)(b)2.d., Fla. Stat., once the IEP process has come to an end, is a function of the statutory constraint that “[t]he nature and intensity of the services indicated on the matrix shall be consistent with the services described in each exceptional student’s individual educational plan.” § 1011.62(l)(e)l.a., Fla. Stat. On appeal, appellants do not clearly argue that the matrix of services score fails to reflect accurately the “nature and intensity of the services” in W.P.M.’s IEP. But the appellants do argue the Board “disagreed with the professionals who worked with” their child on a daily basis and assigned a low matrix of services score that significantly reduced the amount of McKay. Scholarship funds available to them.

In any event, the circuit court correctly dismissed Count I for failure to exhaust administrative remedies. See Norman v. Ambler, 46 So.3d 178, 182 n. 5 (Fla. 1st DCA 2010) (“As a general proposition, the doctrine of exhaustion of administrative remedies precludes judicial intervention where available administrative remedies can afford the relief a litigant seeks. See Fla. Fish & Wildlife Conservation Comm’n v. Pringle, 838 So.2d 648 (Fla. 1st DCA 2003); Fla. Marine Fisheries Comm’n (Div. of Law Enforcement) v. Pringle, 736 So.2d 17, 21 (Fla. 1st DCA 1999) (that agency ‘is charged with implementing not only statutory provisions, but also ... constitutional provisions ... does not ... justify expansion of ... limited role assigned the judiciary1 by the exhaustion doctrine).”).

In Count II of the amended complaint, the appellants alleged the Board engaged in trade or commerce by “providing, offering, and/or distributing a reduced amount of McKay Scholarship money” to the private school on behalf of the appellants’ child, whom the complaint described as a consumer of educational services and scholarship money. The theory of Count II is that the Board’s allegedly improperly assigning a low matrix of services score (allegedly in disregard of expert opinions from W.P.M.’s teachers, therapists, and other specialists) violated section 1002.39 and Rule 6A-6.0970 and was an unfair and deceptive act that was not required, permitted or condoned by state or federal law.

The FDUTPA declares unlawful “[u]n-fair 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. (2011). “Trade or commerce” is defined to mean “the 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” and includes “the conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity.” § 501.203(8), Fla. Stat. (2011).. “Thing of value” is defined to include “any moneys, donation, membership, credential, certificate, prize, award, benefit, license, interest, professional opportunity, or chance of winning.” § 501.203(9), Fla. Stat.

As the circuit court ruled, however, the FDUTPA does not apply to “[a]n act or practice required or specifically permitted by federal or state law.” § 501.212(1), Fla. Stat. (2011). The Board’s completing a matrix of services score form is not engaging in “trade or commerce” within the meaning of the FDUTPA. The numerical score this essentially ministerial act yields is an administrative tool for the Department to use in allocating state funds for the education of exceptional students, and is not itself a “thing of value.” Nor is granting scholarships engaging in “trade or commerce” within the meaning of the FDUTPA. The appellants have drawn our attention to no case in which a governmental entity was deemed to be involved in “trade or commerce” in administering a public welfare grant program required by state law.

Assuming for purposes of decision only that Count II was not, like Count I, also properly dismissed for failure to exhaust administrative remedies, we hold the trial court correctly construed the FDUTPA in dismissing Count II. Dismissal of Count II was appropriate because the appellants did not allege facts to establish that assigning a matrix of services score was an act constituting “trade or commerce.” The FDUTPA does not apply to an “act or practice required or specifically permitted by federal or state law” § 501.212(1), Fla. Stat.; and assigning a matrix of services score is an act or practice required or specifically permitted by state law. See §§ 1002.39(5)(b)(l) & 1011.62(l)(e), Fla. Stat.

Affirmed.

VAN NORTWICK and CLARK, JJ., concur.

      . Section 1002.39(10), Florida Statutes (2010), provides:
      (a)l. The maximum scholarship granted for an eligible student with disabilities shall be equivalent to the base student allocation in the Florida Education Finance Program multiplied by the appropriate cost factor for the educational program that would have been provided for the student in the district school to which he or she was assigned, multiplied by the district cost differential.
      2. In addition, a share of the guaranteed allocation for exceptional students shall be determined and added to the amount in subparagraph 1. The calculation shall be based on the methodology and the data used to calculate the guaranteed allocation for exceptional students for each district in chapter 2000-166, Laws of Florida. Except as provided in subparagraphs 3. and 4., the calculation shall be based on the student's grade, matrix level of services, and the difference between the 2000-2001 basic program and the appropriate level of services cost factor, multiplied by the 2000-2001 base student allocation and the 2000-2001 ’district cost differential for the sending district....
      The annual student allocation is established pursuant to section 1011.62, Florida Statutes (2010). Section 1011.62(l)(e)l.a. provides the funding model for ESE programs: “Exceptional education cost factors are determined by using a matrix of services to document the services that each exceptional student will receive. The nature and intensity of the services indicated on the matrix shall be consistent with the services described in each exceptional student’s individual educational plan.”

      . The appellants also demanded judgment against the Board for damages, attorneys’ fees, costs, and prejudgment and post-judgment interest. The Board also argued dismissal was appropriate, inter alia, because section 1002.39(11), Florida Statutes, expressly provides that ”[n]o liability shall arise on the part of the state based on the award or use of a John M. McKay Scholarship.”

      . When a complaint is received, the complainant must be afforded an opportunity for an impartial due process hearing "which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency." 20 U.S.C. § 1415(f)(1)(A) (2010). Thereafter, any party aggrieved by the findings and decision made at the administrative level has the right to bring a civil action in state or federal court. 20 U.S.C. § 1415(i)(2)(A). See also Fla. Admin. Code R. 6A-6.03311(9)(w) ("A decision made in a due process hearing shall be final, unless, within ninety (90) days from the date of the decision of the ALJ, a party aggrieved by the decision brings a civil action in federal district or state circuit court.... ”).
      We reject appellants’ contention that pursuing an administrative remedy would be futile. See Fla. Admin. Code R. 6A-6.0331 l(5)(b)4. ("Where the Department of Education has found a failure to provide appropriate services, the Department must address the failure to provide appropriate services, including corrective action appropriate to address the needs of the student (such as compensatory services or monetary reimbursement) and appropriate future provision of services for all students with disabilities.”). See also [] v. Leon Cnty. Sch. Bd., Case No. 12-2829E (Fla. DOAH Jan. 25, 2013) (ordering the school board to reimburse for tuition payments for the student's attendance at a private school summer program); [] v. Miami-Dade Cnty. Sch. Bd., Case No. 11-2807E (Fla. DOAH Aug. 31, 2011) (ordering school board to "conduct a Functional Behavior Assessment for the Student that considers all appropriate information,” revise the "Behavioral Intervention Plan for the Student as appropriate,” and reconvene "the IEP team ... and develop an appropriate Individual Education Plan for the Student”); Miami-Dade Sch. Bd. v.[], Case No. 10-0529E (Fla. DOAH May 24, 2010) (ordering school board to provide an independent educational evaluation at public expense because the school board's earlier reevaluation was inadequate) (private party names redacted on DOE website, http://www. fldoe.org/academics/exceptional-student-edu/ dispute-resolution/due-process-hearing-orders.stml).

        .See, e.g., I.G. v. Osceola Cnty. Sch. Bd., Case No. 11-5455E (Fla. DOAH Nov. 9, 2011) ("Petitioner may not ... transform what in substance is a complaint of a matrix calculation error alleged to violate McKay Scholarship program requirements into a complaint of an IDEA violation that is cognizable in a due process hearing under rule 6A-6.03311(9)”).

      . The department must conduct an inquiry of any written complaint of a violation of this section, or make a referral to the appropriate agency for an investigation, if the complaint is signed by the complainant and is legally sufficient. A complaint is legally sufficient if it contains ultimate facts that show that a violation of this section or any rule adopted by the State Board of Education has occurred. In order to determine legal sufficiency, the department may require supporting information or documentation from the complainant. A department inquiry is not subject to the requirements of chapter 120.

      .The appellants argued Florida’s administrative remedies were incapable of providing the type of relief they sought. They argued that the complaint procedure set forth in Rule 6A-6.0970 required only a cursory inquiry by the Department into whether the school district complied with the McKay Scholarship provisions and that the Department had no authority to change a student's matrix of services score. The appellants also argued the circuit court was the only appropriate forum for resolution of the FDUTPA claim.

      . See also Fla. Admin. Code R. 6A-6.0970(4)(a) ("A matrix of services developed for purposes of the McKay Scholarship Program shall be consistent with the services described in the student's individual education plan at the time the student withdraws from the public school. The student’s matrix of services may not be changed by the Department and may only be changed by the school district, pursuant to Section 1002.39(5)(b)2.[d]., F.S., to correct a technical, typographical, or calculation error.”).

      . Appellants alleged the child’s private school was the Board's only competitor in the “Jacksonville deaf-education industry,” and that the Board had an economic incentive to eliminate competition so that the Board could obtain funding that would otherwise go to the private school in the form of McKay Scholarship funds. That the appellants couch the alleged failure to include all necessary services in the IEP as a deceptive, intentional act by the Board does not excuse their failure to exhaust administrative remedies. The allegations of insufficient services are necessarily a challenge to their child's IEP.

      . The IDEA requires that any state or local educational agency that receives assistance under the Act must provide an opportunity for any party to present a complaint "with respect to any matter relating to the identification, evaluation, or educational placement of the child.” 20 U.S.C. § 1415(b)(6)(A) (emphasis supplied).


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    HILTON HOTELS CORPORATION, etc., et al., Appellants, v. Troy ANDERSON and Paula Anderson, Appellees. Troy Anderson, Appellant, v. Hotels Corporation, etc., et al., Appellees.
    Nos. 5D13-1722, 5D13-2552, 5D13-2553.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2014.

      Shelley H. Leinicke, of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for Appellant Hilton Hotels Corporation, and Pamela A. Chamberlain, of Mi-tram Rynor Adamsky & Toland, P.A., Miami Beach, for Appellant SecurAmerica, LLC.
    Barbara A. Eagan and Margaret E. Ko-zan, of Eagan Appellate Law, PLLC, Orlando, W. Riley Allen, of Riley Allen Law, Orlando, and Simon L. Wiseman, of The Wiseman Law Firm, Orlando, for Appellee Troy Anderson.
    No Appearance for Appellee Paula Anderson.
   EVANDER, J.

Hilton Hotels Corporation (“Hilton”), W2007 Equity Inns Realty, LLC (‘W2007”), Interstate Hotels & Resorts, Inc. (“Interstate”), and SecurAmerica, LLC (“SecurAmerica”) appeal from a final judgment in a personal injury/negligent security case in which the jury awarded Troy Anderson (“Anderson”) damages in excess of $1.7 million. Anderson filed a separate appeal from the trial court’s post-trial orders denying his request for an award of attorney’s fees under section 768.79, Florida Statutes (2011). We affirm the final judgment in all respects and write only to address the issues raised in Anderson’s appeal.

On September 26, 2008, Anderson was the victim of a criminal attack in the parking lot of an Embassy Suites Hotel in Orlando, Florida. The hotel was owned and operated by W2007 pursuant to its franchise agreement with Hilton. Interstate managed the hotel pursuant to its contract with W2007. SecurAmerica was retained by Interstate to provide security services on the hotel’s property. Following the attack, Anderson and his wife, Paula, filed a multi-count second amended complaint against the four defendants.

The complaint asserted that each of the defendants was negligent and, notably, was devoid of any allegations of vicarious liability.

On October 5, 2011, Anderson served separate demands for judgment on Hilton, W2007, and Interstate. In his demands for judgment, Anderson sought $650,000 each from Hilton and Interstate, and $100,000 from W2007. On March 16, 2012, Anderson served a demand for judgment on SecurAmerica in the amount of $300,000.

Shortly before the trial commenced in late October 2012, Paula Anderson and her loss of consortium claim were dropped from the lawsuit. As a result, only Anderson’s claims were presented to the jury. During the charge conference, the defendants’ counsel proposed that the jury instructions and the verdict form reference defendants Hilton, W2007, and Interstate collectively as “Embassy Suites.” The proposal was accepted by Anderson’s counsel and, at his request, the jury was given the following instruction:

Members of the jury, you can assume, for purposes of your deliberation, that Interstate Hotels and Resorts, Inc., Hilton Hotels Corporation, and W2007 Equity Inns Realty, LLC are one and the same. -These defendants will be referred to in the jury instructions and verdict form as Embassy Suites.

The jury returned a verdict finding the “Embassy Suites” defendants 72% at fault, SecurAmerica 28% at fault, and Anderson 0% at fault. Anderson’s total damages were determined to be $1,702,066. After consideration of collateral source set-offs and the imposition of taxable costs, the trial court entered a partial final judgment against the “Embassy Suites” defendants in the amount of $1,252,188.74, and against SecurAmerica in the amount of $486,962.28. In its partial final judgment, the trial court reserved jurisdiction for the determination of all attorney’s fees issues.

Anderson claimed entitlement to attorney’s fees pursuant to section 768.79, Florida Statutes (2011). That statute provides that where a plaintiff files a demand for judgment that is not accepted by the defendant within thirty days, and the plaintiff recovers the judgment in an amount of at least twenty-five percent greater than the demand, the plaintiff is entitled to recover reasonable attorney’s fees incurred from the date of the filing of the demand. § 768.79(1), Fla. Stat. (2011). A demand for judgment must be in writing, state that it is being made pursuant to the statute, identify the offeror and offer-ee, and state the total amount of the demand. § 768.79(2), Fla. Stat. (2011); see also Fla. R. Civ. P. 1.442.

An award of attorney’s fees under section 768.79 is a sanction against the rejecting party for the refusal to accept what is presumed to be a reasonable offer. Sarkis v. Allstate Ins. Co., 863 So.2d 210, 222 (Fla.2003). Because the statute is penal in nature, it must be strictly construed in favor of the one against whom the penalty is imposed and is never to be extended by construction. Id. at 223. Strict construction of section 768.79 is also required because the statute is in derogation of the common law rule that each party is to pay its own attorney’s fees. Campbell v. Goldman, 959 So.2d 223, 226 (Fla.2007). Because the statute must be strictly construed, a proposal that is ambiguous will be held to be unenforceable. Stasio v. McManaway, 936 So.2d 676, 678 (Fla. 5th DCA 2006). Furthermore, the burden of clarifying the intent or éxtent of a proposal for settlement cannot be placed on the party to whom the proposal is made. Dryden v. Pedemonti, 910 So.2d 854, 855 (Fla. 5th DCA 2005).

In the instant case, the demands for judgment served by Anderson on each of the defendants were identical, except for the amount demanded:

1. This Proposal for Settlement is made pursuant to Florida Statute § 768.79, and is extended in accordance with the provisions of Rule 1.442, Fla. R.Civ.P.
2. This Proposal for Settlement is . made on behalf of Plaintiff, TROY ANDERSON (“PLAINTIFF”), and is made to [Defendant].
3. This Proposal for Settlement is made for the purpose of settling any and all claims made in this cause by PLAINTIFF against [Defendant].
4. That in exchange for [amount demanded] in hand paid from [Defendant], PLAINTIFF agrees to settle any and all claims asserted against [Defendant], as identified in Case Number 2009-CA-010173-0, brought in the Circuit Court in and for Orange County, Florida.
5. This Proposal for Settlement is inclusive of all damages claimed by PLAINTIFF, including all claims for interest, costs, and expenses and any claims for attorney’s fees.

(Emphasis added).

The trial court found that the language “PLAINTIFF agrees to settle any and all claims asserted against [Defendant]” rendered each of the demands vague, ambiguous, and unenforceable. We agree with the trial court’s conclusion. Although Paragraph 3 of the demand for judgment reflects that the proposal was intended to resolve only Troy Anderson’s claim, Paragraph 4 can reasonably be interpreted to mean that the intent of the demands for judgment was to resolve the claims of both Troy and Paula Anderson.

In Hibbard ex rel. Carr v. McGraw, 918 So.2d 967 (Fla. 5th DCA 2005), this court was confronted with similar language in an offer for judgment. There, Amanda Carr, through her mother, Faith Carr Hibbard, filed suit against defendants Michael McGraw and his employer, Dual Incorporated,, for injuries sustained in a motor vehicle crash. At the time of the crash, Carr was a minor. The defendants tendered the following offer of judgment:

Defendants, MICHAEL MCGRAW and DUAL INCORPORATED ... hereby submit their proposal for settlement in favor of Plaintiff, AMANDA K. CARR, in the total sum of THIRTY FIVE THOUSAND AND ONE DOLLARS ($35,001.00), exclusive of attorneys’ fees and costs, in exchange for an executed full release and voluntary dismissal with prejudice as to all claims against Defendants, MICHAEL MCGRAW and DUAL INCORPORATED.

Id. at 969 (emphasis added). Subsequently, the defendants moved to amend the pleadings to show Carr as the “sole” plaintiff because she had attained the age of majority. Id. at 970. The trial court ordered that “Amanda Carr is an adult and shall appear on her own behalf as to her individual claims. Faith Carr Hibbard shall remain as a party Plaintiff as to her parental claim for general damages and claim for medical bills while Amanda Carr was a minor.” Id.

When the defendants obtained a favorable judgment, the trial court awarded attorney’s fees pursuant to section 768.79 against Amanda Carr, based on the unaccepted offer of judgment. Id. This court reversed, observing that it was unclear whether the offer of judgment was directed only to Amanda Carr’s claims as opposed to being directed to the claims of both Amanda and her mother:

At the time the defendants served their proposal, “Plaintiff, Amanda K. Carr” was not the named plaintiff. In addition, given the defendants’ position that Carr was the sole plaintiff, it is unclear whether the proposal to settle “all claims against the Defendants” included all damages of any kind arising out of the accident (Carr’s claims as well as the claims of her mother) or only Carr’s claims for future medical expenses, (future lost earning capacity and pain and suffering) and not her mother’s claims (medical expenses and loss of consortium).

Id. at 971-72 (emphasis in original).

As we did in Hibbard, we conclude that the proposals for settlement in this case were ambiguous. Specifically, it cannot be clearly determined from the language of the demands for judgment whether the demands were intended to resolve only Troy Anderson’s claims, or the claims of both Troy and Paula Anderson.

Athough not necessary for the resolution of this appeal, we also agree with the trial court’s conclusion that the three separate demands for judgment offered to each of the “Embassy Suites” defendants were unenforceable for an additional reason. Because Anderson requested to have these three entities treated as one by the jury, and given that the judgment obtained against the “Embassy Suites” defendants was actually less than the sum of the demands for judgment made against them, the purpose behind the enactment of section 768.79 (i.e., to sanction a party for rejecting a presumptively reasonable proposal for settlement) would be ill-served by assessing attorney’s fees against Hilton, W2007, and Interstate.

AFFIRMED.

BERGER and LAMBERT, JJ., concur.

      . Section 768.79 provides the substantive law concerning offers and demands of judgment, while rule 1.442 provides for its procedural mechanism. Winter Park Imports, Inc. v. J.M. Family Enterprises, 66 So.3d 336, 338 (Fla. 5th DCA 2011). Rule 1.442 utilizes the term "proposal for settlement” in referring to both offers of judgment and demands for judgment.


author: LeBLANC, B., Associate Judge.

text:
    Diane DOERING, Appellant, v. The VILLAGES OPERATING COMPANY, Appellee.
    No. 5D13-3021.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2014.
    Bryan S. Gowdy, and Jennifer Shoaf Richardson, of Creed & Gowdy, P.A., Jacksonville, and Timothy S. Babiarz, of Ba-biarz Law Firm, P.A., The Villages, for Appellant.
    Joseph T. Patsko, of Austin Roe & Pat-sko, P.A., Tampa, for Appellee.
   LeBLANC, B., Associate Judge.

Appellant, Diane Doering, timely appeals the trial court’s summary final judgment in favor of Appellee, The Villages Operating Company (“The Villages”). Because we find there are disputed questions of material fact to be determined by a fact finder, we reverse.

While walking on a large wharf — like wooden deck owned by The Villages during a well-attended Mardi Gras festival, Appellant tripped over a raised wooden plank and suffered a broken left femur.

She claimed The Villages breached its duty to warn her of the dangerous condition and its duty to maintain the deck at all times in a reasonably safe condition. The Villages claimed that the cause of the fall was a common design element, not the result of poor maintenance. In addition, The Villages claimed by an affirmative defense that the condition was an open and obvious condition and therefore no duty was breached. The trial court agreed with The Villages and granted summary judgment.

A trial court’s decision to grant final summary judgment is reviewed de novo. If this court finds the lack of any genuine material issue of fact, summary judgment should be affirmed. If it appears in the record that there are disputed issues of material fact, summary judgment must be reversed. Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 308 (Fla. 5th DCA 2003).

The Villages asserts that the deck Appellant was walking on was “not designed to be a flat surface” and included “boards that were rough and uneven to accomplish the wharf theme aesthetic.” We do not find evidence to support this assertion, but even if such evidence exists, conflicting evidence was presented that the end of the board in question was in very bad condition — completely rotted and warped upward between one-half inch and one and one-half inches above the deck’s surface. The Villages’ representative was aware, that wooden deck boards could rot and warp over time, creating a tripping hazard. Additional evidence was presented that the board constituted a building code violation because any elevation changes over a quarter inch were required to be beveled. Thus, a genuine issue of fact existed as to whether the cause of Appellant’s fall was a common design element or the result of poor maintenance. See, e.g., Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005) (noting that the “obvious danger doctrine does not apply when negligence is predicated on breach of the duty to maintain the premises in a reasonably safe condition”).

REVERSED AND REMANDED.

PALMER and WALLIS, JJ., concur.

      . Although unnecessary to our resolution of this case, we also believe a genuine issue of material fact existed as to whether the raised plank was open and obvious. Although Appellant testified that the raised plank was open and obvious when confronted with a close-up photo of it, she also testified that at the time she fell, thousands of people were at the festival. There were people “all around” and she was "scanning the area” for a place to sit down as she walked. Doering’s expert witness also testified that "the change in elevation would have been in [Appellant’s] lower peripheral vision which cannot adequately visualize blending color surfaces, e.g., brown and brown, if one is normally ‘looking straight ahead.' ”


author: PER CURIAM.

text:
    STATE of Louisiana v. Raney F. BIBBINS.
    No. 2014-K-0971.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   PER CURIAM.

_JjWrit granted. The ruling of the trial court is reversed. We may take judicial notice that the impending landfall of Hurricane Isaac in southeast Louisiana led to the closure of the Orleans Parish Criminal District Court on August 28, 2012 and prevented the state from bringing defendant to trial on that date. La.C.E. art. 201(C) (“A court may take judicial notice [of adjudicative facts], whether requested or not.”); State v. Foneseca, 378 So.2d 389, 392 (“[W]e are entitled to take judicial notice of the facts of nature [such as time of sunset on a particular day] under [former] La.Rev. Stat. 15:422(6).”); State v. Lundy, 131 La. 910, 60 So. 613, 614 (1913) (“This court takes judicial notice of the fact that, when the defendant was called for trial and for some time prior to that date, a considerable portion of the parish of Pointe Coupee was under water from the crevasses in the levees of the Mississippi river....”). This cause beyond control of the state interrupted the two-year prescriptive period in which to bring defendant to trial. La.C.Cr.P. art. 579(A)(2); State v. Patín, 11-0488, p. 18 (La.App. 4 Cir. 5/23/12), 95 So.3d 542, 552 (Hurricane Katrina interrupted three-year prescriptive period to bring capital murder defendant to trial until jury trials resumed in Orleans Parish); State v. Brazile, 06-1611, p. 4 (LaApp. 4 Cir. 5/30/07), 960 So.2d 333, 336 (same), writ denied, 07-1339 (La.1/7/08), 973 So.2d 733. Therefore, the motion to quash filed by defendant on July 9, 2013 was |2premature and the trial court erred in granting him relief. The ruling of the trial court is reversed and the matter is remanded back to the trial court for further proceedings.


author: PER CURIAM. JOHNSON, Chief Justice,

text:
    Brett Owen BOURQUE v. TRANSIT MIX/Trinity Ind.
    No. 2014-C-1588.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   PER CURIAM.

hWrit granted. This arises out of a dispute before the Office of Worker’s Compensation regarding the compensability of treatment sought by an injured employee. The employee, Brett Bourque, did not obtain pre-approval for the treatment and now seeks reimbursement in the amount of $10,786.12.

Plaintiff filed a petition with the Office of Worker’s Compensation seeking reimbursement for the treatment. The defendant employer Transit Mix Concrete and Materials Co. denied liability and filed a motion for partial summary judgment arguing that if it were liable at all, it owed only $750 per provider because the treatment was obtained without the employer’s consent. The worker’s compensation judge granted partial summary judgment on April 4, 22 2013, limiting liability to $750 per provider. Plaintiff appealed to the Third Circuit Court of Appeal.

|2The Court of Appeal found that the evidence which defendant attached to its motion for partial summary judgment had not been formally admitted into evidence by the worker’s compensation judge. Therefore, the Third Circuit reversed the grant of partial summary judgment stating that “[biased on a lack of such evidence, we are left with nothing on which to base a finding as to the correctness of the [worker’s compensation judge]’s judgment.” We now review the Third Circuit’s finding.

The Third Circuit Court of Appeal erred when it found that evidence attached to the motion for partial summary judgment submitted by defendant was not properly admitted by the worker’s compensation judge. The technical rules of evidence and procedure are relaxed in the context of Worker’s compensation hearings. La.Rev. Stat. Ann. 23:1317; see Taylor v. Tommie’s Gaming, 2004-2254 (La.5/24/05), 902 So.2d 380, 383 (“While we recognize that the rules of evidence and procedure are relaxed in worker’s compensation proceedings, such proceedings are nonetheless lawsuits to be conducted in conformity with the accepted standards of practice and procedure.”)(internal citations omitted). Further, the Louisiana Code of Civil Procedure provides that:

(2) Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Sub-paragraph (3) of this Paragraph. Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.

La.C.C.P. art. 966 (emphasis added). The Office of Worker’s Compensation minutes reveal that defendant offered the evidence into evidence, even though the worker’s compensation judge never explicitly admitted them. Moreover, the plaintiff made no objection to the evidence being treated as admitted. The facts and law indicate that the evidence attached to defendant’s motion for partial summary | ¡¡judgment was properly admitted and therefore the Court of Appeal should have considered the evidence on review. Accordingly, the ruling of the Third Circuit is reversed and this case is remanded for further proceedings in light of this ruling.

REVERSED AND REMANDED.

JOHNSON, C.J., dissents and assigns reasons.

KNOLL, J., dissents and would deny the writ.

HUGHES, J., dissents.

JOHNSON, Chief Justice,

dissents and assigns reasons.

hi respectfully dissent and would deny the writ. The purpose of the Worker’s Compensation Act is to provide an employee the quickest remedy for work-related injuries. In this case, Mr. Bourque sustained serious injuries to his cervical, thoracic and lumbar spine, and he has undergone multiple surgeries in an attempt to alleviate his pain. Unfortunately, the initial surgeries did not succeed. His treating doctor, Dr. Arnold Feldman, then recommended a radiofrequency ablation at LB-SI, which provided Mr. Bourque with significant pain relief. This procedure was performed on August 29, 2011.

Mr. Bourque personally paid $10,786.12 for this procedure but has been unable to obtain reimbursement from the worker’s compensation carrier. Mr. Bourque has been litigating this matter for several years. The system should not require workers to jump through hoops to receive speedy reimbursement for necessary medical expenses, resulting from work-related injuries. When a worker is in significant pain, waiting for a decision from the employer’s compensation adjuster prior to undergoing treatment, is not a reasonable option. In my opinion, reversing and remanding this matter will cause unnecessary delay and additional expenses for Mr. Bourque.

      . The fee includes $4,493.80 for the physician's fee and $6,292.32 for facility costs.


text:
    STATE of Louisiana v. Cardal HAYES.
    No. 2014-KK-1999.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   j i Writ Granted. The law enforcement officer effected a valid traffic stop of the vehicle in which the defendant was a passenger because the driver impeded the flow of traffic at a busy intersection in violation of La. R.S. 82.64(B). See, State v. Waters, 00-356 (La.3/12/01), 780 So.2d 1053,1056 (“[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”). The officer acted lawfully in approaching the vehicle with the intent to conduct a routine driver’s license and vehicle registration inspection while engaging the occupants in conversation. See State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053, 1057. When questioning the occupants, the officer observed in plain view an open alcoholic beverage container on the floor of the front passenger side near the defendant’s feet to which the defendant claimed ownership. Possession of alcoholic beverages in a motor vehicle is prohibited under La. R.S. 32:300. In light of the misdemeanor violation, the law enforcement officer had sufficient basis to detain the occupants and search them for weapons and evidence. See, State v. Butler, 12-2359, p. 5 (La.5/17/13), 117 So.3d 87, 90 (“In light of [State v.Sherman, 05-0779, p. 11 (La.4/4/06), 931 So.2d 286, 293], we nevertheless agree with the state that purely as an objective matter, the officers ultimately did nothing more than what the law entitled them to do by detaining defendant after observing him commit a 12misdemeanor offense in their presence and searching him for weapons and evidence, without regard to whether they had an articulable and particularized concern for their safety, and then arresting him, albeit not for the offense for which they initially had probable cause.”). Thus, the seizure of cocaine found on the defendant during a pat down of his person did not violate his Fourth Amendment right to privacy.

Accordingly, we reverse the trial court’s ruling granting the motion to suppress and remánd for further proceedings.

JOHNSON, C.J., dissents and would deny.

KNOLL, J., dissents and would deny the writ.


text:
    CITY OF BATON ROUGE v. Brian PARKS.
    No. 2014-KK-1189.
    Supreme Court of Louisiana.
    Sept. 19, 2014.
   In re Parks, Brian; — :Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, Baton Rouge City Court, No. BR00434419; Baton Rouge City Court, No. BR00434419; to the Court of Appeal, First Circuit, No. 2014 KW 0443.

Denied.


text:
    Terez BOSTON and Herman Delco, Jr. v. ZURICH AMERICAN INSURANCE COMPANY, Jeffery’s Trucking Service, Inc. and Morris Sloan.
    No. 2014-C-1444.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Delco Jr., Herman; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. B, No. 122470; to the Court of Appeal, First Circuit, No. 2013 CA 2139.

Denied.

JOHNSON, C.J., and HUGHES, J., would grant.


text:
    Marilyn CLARK v. STATE of Louisiana, et al. Elwood Sonnier v. The Unopened Succession of Lacy N. Johnson, et al. Gaynelwyn Sonnier v. State of Louisiana, et al.
    No. 2014-CC-1861.
    Supreme Court of Louisiana.
    Nov. 14, 2014.
   In re Clark, Marilyn; Sonnier, Edward; Sonnier, Gaynelwyn; — Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Allen, 33rd Judicial District Court Div. B, No. C-2007-136 C/W C-2007-188 C/W C-2007-190; to the Court of Appeal, Third Circuit, No. CW 14-00616.

Denied.


text:
    Antonio SCOGGINS v. Tina MESSER, et al.
    No. 2014-CI-0750.
    Supreme Court of Louisiana.
    Nov. 26, 2014.
   In re Scoggins, Antonio; — Plaintiff; Applying For- Supervisory and/or Remedial Writs, Parish of Allen, 33rd Judicial District Court Div. B, No. C-2013-358; to the Court of Appeal, Third Circuit, No. CW 13-01274.

Denied.


text:
    SATTERFIELD & PONTIKES CONSTRUCTION GROUP, LLC v. UNDERWRITERS AT LLOYD’S, London and Julien Engineering & Consulting, Inc. Satterfield and Pontikes Construction, Inc, v. State of Louisiana, Department of Education.
    No. 2014-CC-2093.
    Supreme Court of Louisiana.
    Nov. 26, 2014.
   In re State of Louisiana, Department of Education, Recovery School District; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 611264 C/W 619558; to the Court of Appeal, First Circuit, No. 2014 CW 0984.

Denied.


text:
    Suzanne De Boisblanc, Wife of Thomas N. TYLER v. Thomas N. TYLER.
    No. 2014-CC-2100.
    Supreme Court of Louisiana.
    Nov. 26, 2014.
   In re Tyler, Thomas N.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. E, No. 2011-12037; to the Court of Appeal, Fourth Circuit, No. 2014-C-0828.

Denied.


text:
    Alnedia ANTHONY, et al. v. GEORGIA GULF LAKE CHARLES, LLC. Maurice Paul Billiot, et al. v. Georgia Gulf Lake Charles, LLC. Tangela Brown, et al. v. Georgia Gulf Lake Charles, LLC.
    No. 2014-C-2102.
    Supreme Court of Louisiana.
    Nov. 26, 2014.
   In re Georgia Gulf Lake Charles, LLC; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calca-sieu, 14th Judicial District Court Divs. E, B, A, Nos. 2007-5073, 2007-5068 AND ALL CONSOLIDATED NUMBERS, 2007-5082; to the Court of Appeal, Third Circuit, No. 13-236 AND ALL CONSOLIDATED NUMBERS.

Denied.

VICTORY, J., would grant.


text:
    Randall J. CASHIO v. Troy B. SEARLES and Louisiana State Employees Retirement System.
    No. 2014-C-2122.
    Supreme Court of Louisiana.
    Nov. 26, 2014.
   In re Cashio, Randall J.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 606,592; to the Court of Appeal, First Circuit, No. 2013 CA 0738.

Denied.


text:
    Raymond ROCHON v. DISTRICT ATTORNEY, PARISH OF ACADIA.
    No. 2014-CP-2126.
    Supreme Court of Louisiana.
    Nov. 26, 2014.
   In re Rochon, Raymond; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. K, No. 201310207; to the Court of Appeal, Third Circuit, No. CW 14-00707.

Denied on the showing made.

HUGHES, J., would grant.


author: HUGHES, J.,

text:
    Benjamin J. BIRDSALL, Jr. v. Brian GIBBS, Brian Gibbs Development, L.L.C., Gibbs Construction, L.L.C. and 930 Poydras Apartments. Benjamin J. Birdsall, Jr. v. Brian Gibbs, Brian Gibbs Development, L.L.C., Gibbs Construction, L.L.C. and 930 Poydras Apartments. Benjamin J. Birdsall, Jr. v. Brian Gibbs, et al.
    No. 2014-CC-2337.
    Supreme Court of Louisiana.
    Nov. 26, 2014.
   In re 930 Poydras Apartments, L.L.C.; 930 Poydras L.L.C.; Brian Gibbs Development, L.L.C.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2008-13299 C/W 2009-4639; to the Court of Appeal, Fourth Circuit, No. 2014-C-1043 C/W 2014-C-1044 C/W 2014-C-1063.

Denied.

VICTORY, J., would grant.

HUGHES, J.,

additionally concurs. While the ruling of the trial court may be premature, I concur in the denial of the writ at this stage in the proceedings. Applicant will have an adequate remedy on appeal if necessary.


text:
    Benjamin J. BIRDSALL, Jr. v. BRIAN GIBBS DEVELOPMENT, L.L.C., 930 Poydras L.L.C. and 930 Poydras Apartments, L.L.C. Benjamin J. Birdsall, Jr. v. Brian Gibbs, Brian Gibbs Development, L.L.C., Gibbs Construction, L.L.C. and 930 Poydras Apartments, L.L.C. Benjamin Birdsall, Jr. v. Brian Gibbs, Brian Gibbs Development, L.L.C., Gibbs Construction, L.L.C. and 930 Poydras Apartments, L.L.C. Benjamin J. Birdsall, Jr. v. Brian Gibbs, et al.
    No. 2014-CC-2349.
    Supreme Court of Louisiana.
    Nov. 26, 2014.
   In re Gibbs Construction, L.L.C.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, Nos. 2008-13299, 2009-04689; to the Court of Appeal, Fourth Circuit, No. 2014-C-1034 C/W 2014-C-1043 C/W 2014-C-1044 C/W 2014-C-1063.

Denied.

VICTORY, J., would grant.

HUGHES, J.,

additionally concurs and assigns reasons. While the ruling of the trial court may be premature, I concur in the denial of the writ at this stage in the proceedings. Applicant will have an adequate remedy on appeal if necessary.


text:
    STATE of Louisiana v. Marquis MATTHEWS.
    No. 2014-KK-2476.
    Supreme Court of Louisiana.
    Nov. 26, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 513-700; to the Court of Appeal, Fourth Circuit, No. 2014-K-1272.

Stay denied. Writ granted. The decision of the District Court is reversed and set aside. The State’s motion to compel codefendant, Desmond Lange, to testify with a grant of úse and derivative use immunity pursuant La.C.Cr.P. 439.1 is hereby granted for the reasons assigned by Judge Ledet in her dissent.


text:
    STATE of Louisiana in the Interest of J.B.
    No. 2014-CK-2477.
    Supreme Court of Louisiana.
    Nov. 26, 2014.
   In re State of Louisiana; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, No! 2014-059-06-DQ-C; to the Court of Appeal, Fourth Circuit, No. 2014-C-0885.

Stay denied; writ denied.


text:
    Tessie MOUTON obo Kolby Keith JOHNSON, et al. v. LOUISIANA HIGH SCHOOL ATHLETIC ASSOCIATION, INC.
    No. 2014-CC-2448.
    Supreme Court of Louisiana.
    Dec. 5, 2014.
   In re Louisiana High School Athletic Association, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 630-120; to the Court of Appeal, First Circuit, No. 2014 CW 1494.

Stay denied; writ denied.

HUGHES, J., recused.


text:
    STATE in the Interest of T.B., Jr.
    No. 2014-CK-2482.
    Supreme Court of Louisiana.
    Dec. 5, 2014.
   In re T.B., Jr.; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, Lafayette Parish Juvenile Court, No. JC-2014-497; to the Court of Appeal, Third Circuit, No. JWK 14-01079.

Denied.


text:
    Danyelle TAYLOR v. Thomas ANZELMO, Jr.
    No. 2014-CC-2540.
    Supreme Court of Louisiana.
    Dec. 5, 2014.
   In re Danyelle Taylor; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 744-754; to the Court of Appeal, Fifth Circuit, No. 14-C-920.

Denied.


text:
    In re Appeal of the Decision of the DISCIPLINARY BOARD NO. 2014-INT-1402.
    No. 2014-OB-2340.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Jeffrey Sykes; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 2014-INT-1402.

Granted for the sole purpose of transferring the matter to the Office of the Disciplinary Counsel for review by the Chief Disciplinary Counsel. See Supreme Court Rule XIX, § 11(A).


text:
    In re COMMITTEE ON BAR ADMISSIONS NO. CFN-1709.
    No. 2014-BA-2273.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Confidential Party; — Plaintiff; Applying For Admission.

Deny petition; deny request for oral argument.


text:
    In re COMMITTEE ON BAR ADMISSIONS NO. CFN-2294.
    No. 2014-BA-2345.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Confidential Party; Take Bar Examination — Plaintiff; Applying For Permission to Take Bar Examination.

Denied.


text:
    M & R DRYWALL, INC. v. MAPP CONSTRUCTION, LLC, Southgate Towers, LLC, and R.W. Day and Associates, Inc. Southgate Residential Towers, LLC, Southgate Penthouses, LLC v. Mapp Construction, Inc., et al.
    No. 2014-CC-2392.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re AIG Specialty Insurance Company; National Union Fire Insurance Company of Pittsburgh, PA; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 529,351 C/W 550,534; to the Court of Appeal, First Circuit, No. 2014 CW 0784.

Stay denied; writ denied.


text:
    M & R DRYWALL, INC. v. MAPP CONSTRUCTION, LLC, Southgate Towers, LLC, and R.W. Day and Associates, Inc. Southgate Residential Towers, LLC, Southgate Penthouses, LLC v. Mapp Construction, Inc., et al.
    No. 2014-CC-2394.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Great American Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 529,351 C/W 550,534; to the Court of Appeal, First Circuit, No. 2014 CW 0789.

Stay denied; writ denied.


text:
    M & R DRYWALL, INC. v. MAPP CONSTRUCTION, LLC, Southgate Towers, LLC, and R.W. Day and Associates, Inc. Southgate Residential Towers, LLC, Southgate Penthouses, LLC v. Mapp Construction, Inc., et al.
    No. 2014-CC-2396.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Great American Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton.Rouge, 19th Judicial District Court Div. 0, No. 529,351 C/W 550,534; to the Court of Appeal, First Circuit, No. 2014 CW 0705.

Stay denied; writ denied.


text:
    M & R DRYWALL, INC, v. MAPP CONSTRUCTION, LLC, Southgate Towers, LLC, and R.W. Day and Associates, Inc. Southgate Residential Towers, LLC, Southgate Penthouses, LLC v. Mapp Construction, Inc., et al.
    No. 2014-CC-2397.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Great American Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 529,351 CW 550,534; to the Court of Appeal, First Circuit, No. 2014 CW 0706.

Stay denied; writ denied.


text:
    M & R DRYWALL INC. v. MAPP CONSTRUCTION, LLC, Southgate Towers, LLC, and R.W. Day and Associates, Inc. Southgate Residential Towers LLC, Southgate Penthouses, LLC v. MAPP CONSTRUCTION, INC., et al.
    No. 2014-CC-2424.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Ohio Casualty Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 529,351 CW 550,534; to the Court of Appeal, First Circuit, No. 2014 CW 0725.

Stay denied; writ denied.


text:
    STATE of Louisiana v. Anthony Duane CRAIG.
    No. 2013-KO-2802.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Craig, Anthony Duane; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 08-10-0579; to the Court of Appeal, First Circuit, No. 2013 KA 0562.

Denied.


text:
    Clyde SNIDER, Jr., et ux. v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al.
    No. 2014-C-1964.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Louisiana Medical Mutual Insurance Company et al.; Yue M.D., Robin;— Defendant(s); Applying For Writ of Cer-tiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. B, No. C-2010-1220; to the Court of Appeal, Third Circuit, No. 12-1068.

Granted.


text:
    STATE of Louisiana v. Courtney DAVIS.
    No. 2014-KP-0274.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Davis, Courtney; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. B, No.. 07-CR-752; to the Court of Appeal, First Circuit, No. 2013 KW 1442.

Denied.


text:
    STATE ex rel. Eric DUNN v. STATE of Louisiana.
    No. 2014-KH-0628.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Dunn, Eric; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 891-375; to the Court of Appeal, Fourth Circuit, No. 2014-K-0170.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Aaron SALTER v. STATE of Louisiana.
    No. 2014-KH-0639.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Salter, Aaron; — Plaintiff;' Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 482750; to the Court of Appeal, First Circuit, No. 2013 KW 1798.

Denied.


text:
    STATE of Louisiana v. Joey BANKS.
    No. 2014-KO-0671.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Banks, Joey; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Richland, 5th Judicial District Court Div. A, No. F-2012-126 & F-2012-53; to the Court of Appeal, Second Circuit, No. 48,868-KA.

Denied.


text:
    STATE ex rel. Eugene FRAZIER, Jr. v. STATE of Louisiana.
    No. 2014-KH-0673.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Frazier Jr., Eugene; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Sabine, 11th Judicial District Court Div. O, No. 83-CR-36863; to the Court of Appeal, Third Circuit, No. KH 13-01313.

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


text:
    STATE ex rel. Rhondalyn LANDRY v. STATE of Louisiana.
    No. 2014-KH-0678.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Landry, Rhondalyn; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Allen, 33rd Judicial District Court Div. A, No. 2000-1855; to the Court of Appeal, Third Circuit, No. KH 14-00066.

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


text:
    STATE ex rel. Brandon LAVERGNE v. STATE of Louisiana.
    No. 2014-KH-0683.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Lavergne, Brandon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. E, No. 138234; to the Court of Appeal, Third Circuit, No. KH 13-01039.

Denied.


text:
    STATE ex rel. Marice S. NALLS v. STATE of Louisiana.
    No. 2014-KH-0693.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Nalls, Marice S.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 07-07-0697; to the Court of Appeal, First Circuit, No. 2014 KW 0089.

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


text:
    STATE ex rel. Walter A. KOTT, Jr. v. STATE of Louisiana.
    No. 2014-KH-0704.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Kott Jr., Walter A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 878041; to the Court of Appeal, First Circuit, No. 2013 KW 1257.

Denied.


text:
    STATE ex rel. Deshunski Dewayne BURKS v. STATE of Louisiana.
    No. 2014-KH-0706.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Burks, Deshunski Dewayne;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 5, No. 290,107; to the Court of Appeal, Second Circuit, No. 49,232-KH.

Denied.


text:
    STATE ex rel. Christopher SHANK v. STATE of Louisiana.
    No. 2014-KH-0721.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Shank, Christopher; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 03-6349; to the Court of Appeal, Fifth Circuit, No. 14-KH-33.

Denied.


text:
    STATE ex rel. Corey B. PAGE v. STATE of Louisiana.
    No. 2014-KH-0740.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Page, Corey B.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 00-1782; to the Court of Appeal, Fifth Circuit, No. 14-KH-34.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Derryl WELCH v. STATE of Louisiana.
    No. 2014-KH-0772.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Welch, Derryl; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 508-476; to the Court of Appeal, Fourth Circuit, No. 2014-K-0141.

Denied.


text:
    STATE ex rel. Gerard HOWARD v. STATE of Louisiana.
    No. 2014-KH-0779.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Howard, Gerard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 07-7279; to the Court of Appeal, Fifth Circuit, No. 14-KH-151.

Denied.


text:
    STATE ex rel. Randy Paul DAVIS v. STATE of Louisiana.
    No. 2014-KH-0781.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Davis, Randy Paul; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 14976; to the Court of Appeal, Third Circuit, No. KH13-00882. •

Denied.


text:
    STATE of Louisiana v. Christopher Michael LITTLE.
    No. 2014-KO-0786.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Little, Christopher Michael; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 655,752; to the Court of Appeal, First Circuit, No. 2013 KA 1721.

Denied.


text:
    STATE ex rel. Chris RICHARDSON v. STATE of Louisiana.
    No. 2014-KH-0788.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Richardson, Chris; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. C, No. 23623; to the Court of Appeal, First Circuit, Nos. 2013 KW 1960, 2013 KW 1960.

Denied.


text:
    STATE ex rel. Gary GRANT v. STATE of Louisiana.
    No. 2014-KH-0798.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In- re Grant, Gary; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. B, No. 2000-CR-231; to the Court of Appeal, Fifth Circuit, No. 11-KH-108.

Denied.


text:
    STATE ex rel. Nicholas Dewayne DAVIS v. STATE of Louisiana.
    No. 2014-KH-0834.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Davis, Nicholas Dewayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bienville, 2nd Judicial District Court Div. A, No. 43,872; to the Court of Appeal, Second Circuit, No. 49,285-KH.

Denied on the showing made.


text:
    STATE ex rel. Okyeame WOODARD v. STATE of Louisiana.
    No. 2014-KH-0838.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Woodard, Okyeame; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 256,273; to the Court of Appeal, Second Circuit, No. 49,-214-KH.

Denied.


text:
    STATE ex rel. Mark A. PELAS v. STATE of Louisiana.
    No. 2014-KH-0840.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Pelas, Mark A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 500303; to the Court of Appeal, First Circuit, No. 2013 KW 2201.

Denied on the showing made.

HUGHES, J., would grant.


text:
    STATE ex rel. Herbert James BRADLEY v. STATE of Louisiana.
    No. 2014-KH-0842.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Bradley, Herbert James; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. K, No. 10-F0001; to the Court of Appeal, Second Circuit, No. 49,263-KH.

Denied.


text:
    STATE ex rel. George M. PORTER v. STATE of Louisiana.
    No. 2014-KH-0843.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Porter, George M.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 391-217; to the Court of Appeal, Fourth Circuit, No. 2014-K-0251.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana v. John ODOWD.
    No. 2014-K-0853.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Odowd, John; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 506284; to the Court of Appeal, First Circuit, No. 2018 KA1107.

Denied.


text:
    STATE of Louisiana v. Darnell TURNER.
    No. 2014-KO-0887.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Turner, Darnell; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 10-968; to the Court of Appeal, Fifth Circuit, No. 13-KA-836.

Denied.


text:
    STATE of Louisiana v. Erlich Joel ROSALES.
    No. 2014-K-0892.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Rosales, Erlich Joel; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 10-3034; to the Court of Appeal, Fifth Circuit, No. 13-KA-731.

Denied.


text:
    STATE of Louisiana v. Jeremy Wayne ELKINS.
    No. 2014-K-0992.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Elkins, Jeremy Wayne; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Desoto, 42nd Judicial District Court Div. A, No. 11-CR-21217; to the Court of Appeal, Second Circuit, No. 48,972-KA.

Denied.


text:
    STATE of Louisiana v. Jaron BIBBINS.
    No. 2014-K-0994.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Bibbins, Jaron; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th- Judicial District Court Div. P, No. 10-1680; to the Court of Appeal, Fifth Circuit, No. 13-KA-875.

Denied.


text:
    STATE of Louisiana v. Orlando YOUNG.
    No. 2014-KO-1002.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Young, Orlando; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. I, No. 11-6205; to the Court of Appeal, Fifth Circuit, No. 13-KA-745.

Denied.


text:
    STATE of Louisiana v. Dominique Lamar RIVERS.
    No. 2014-KO-1005.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Rivers, Dominique Lamar; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 12-10-0474; to the Court of Appeal, First Circuit, No. 2013 KA 1450.

Denied.


text:
    STATE of Louisiana v. Christopher Brian COPE.
    No. 2014-KO-1008.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Cope, Christopher Brian; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 3, No. 291,674; to the Court of Appeal, Second Circuit, No. 48,739-KA.

Denied.


text:
    STATE of Louisiana v. Jaron BIBBINS.
    No. 2014-KO-1015.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Bibbins, Jaron; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 10-1680; to the Court of Appeal, Fifth Circuit, No. 13-KA-875.

Denied.


text:
    STATE of Louisiana v. Darrion GOFF.
    No. 2014-KO-1018.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Goff, Darrion; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. James, 23rd Judicial District Court Div. A, No. 5107 C/W 5108; to the Court of Appeal, Fifth Circuit, No. 13-KA0-866 C/W 13-KA-867.

Denied.


text:
    Juanita Christine PAULSELL, as Curator of the Interdict Patricia Jolynn Paulsell-Lathrop v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Michael A. Laviolette, ABC Helmet Distributing Company, DEF Labeling Company, GHI Helmet Manufacturing Company, and XYZ Insurance Company.
    No. 2014-C-1843.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Juanita Christine Paulsell, As Curator of the Interdict Patricia Jolynn Paul-sell-Lathrop; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. C 544152; to the Court of Appeal, First Circuit, No. 2013 CA 2117 C/W 2013 CW 1754.

Denied.


text:
    Juanita Christine PAULSELL, as Curator of the Interdict Patricia Jolynn Paulsell-Lathrop v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Michael A. Laviolette, ABC Helmet Distributing Company, DEF Labeling Company, GHI Helmet Manufacturing Company, and XYZ Insurance Company.
    No. 2014-CC-1844.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Juanita Christine Paulsell, As Curator of the Interdict Patricia Jolynn Paul-sell-Lathrop; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. C 544152; to the Court of Appeal, First Circuit, No. 2013 CA 2117 C/W 2013 CW 1754.

Denied.


text:
    Denise M. CALDWELL v. DOLLAR GENERAL CORPORATION.
    No. 2014-CC-1845.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Dolgencorp LLC; Dollar General Corporation; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. A, No. 032,967; to the Court of Appeal, First Circuit, No. 2014 CW 0462.

Denied.


text:
    L.B. BOUDREAUX’S TRUCKING, L.L.C., et al. v. Ronald THOMAS, et al.
    No. 2014-CC-1863.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re National Fire & Marine Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 2013-2169; to the Court of Appeal, Fourth Circuit, No. 2014-C-0536.

Denied.

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


text:
    STATE of Louisiana v. Prentiss TOBIAS.
    No. 2014-KK-1878.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Tobias, Prentiss; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 517-503; to the Court of Appeal, Fourth Circuit, No. 2014-K-0747.

Denied.


text:
    Dan COLLINS and Dan Collins, CPL & Associates, Inc. v. STATE of Louisiana through the DEPARTMENT OF NATURAL RESOURCES, and Robert Benoit, Individually, and in his Official Capacity as Assistant Director Atchafalaya Basin Program, Louisiana Department of Natural Resources.
    No. 2014-CC-1898.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re State of Louisiana through the Department of Natural Resources; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 592154; to the Court of Appeal, First Circuit, No. 2014 CW 0819.

Denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    IBERIABANK v. JEFFERSONIAN CONDOMINIUMS, LLC, Live Oak Circle Development LLC, McWall Development, LLC, City View Condominiums, LLC, Ruby A. Walsh, G. Allen Walsh, Edwards Street, LLC, John S. McClelland, II, MCW Air, LLC and Highland Square Management, LLC.
    No. 2014-CC-1902.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Iberiabank; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 621789; to the Court of Appeal, First Circuit, No. 2014 CW 0822.

Denied.

VICTORY, J., would grant.


text:
    Sylvia RABENBAUER v. PAUL L. MIERS ENGINEERING, LLC, et al.
    No. 2014-CC-2141.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Paul L. Miers Engineering, LLC; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. E, No. 20080817-E; to the Court of Appeal, Third Circuit, No. CW 14-00579.

Denied.


text:
    Sylvia RABENBAUER v. PAUL L. MIERS ENGINEERING, LLC, et al.
    No. 2014-CC-2143.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Paul L. Miers Engineering, LLC; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. E, No. 2008-0817-E; to the Court of Appeal, Third Circuit, No. CW 14-00582.

Denied.


text:
    Sylvia RABENBAUER v. PAUL L. MIERS ENGINEERING, LLC, et al.
    No. 2014-CC-2151.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Houston Casualty Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. E, No. 2008-0817-E; to the Court of Appeal, Third Circuit, No. CW 14-00614.

Denied.


text:
    Sylvia RABENBAUER v. PAUL L. MIERS ENGINEERING, LLC, et al.
    No. 2014-CC-2152.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Houston Casualty Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. E, No. 2008-0817-E; to the Court of Appeal, Third Circuit, No. CW 14-00613.

Denied.


text:
    DOCTORS HOSPITALS OF AUGUSTA v. DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2014-C-2163.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Department of Health and Hospitals; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 612,216; to the Court of Appeal, First Circuit, No. 2013 CA 1762.

Denied.

VICTORY, J., would grant.


text:
    Curt ALONZO, Arthur Carter, Joseph L. Carter, Anthony Diggs, Kenneth Dilosa, Harold H. Grier, II, Calvin Henderson, Tyson Hollis, Warren Holmes, Stanley Lay, Larry Legania, Joshua Williams, and Willie Williams v. Warden Burl CAIN and the State of Louisiana through the Department of Public Safety and Corrections.
    No. 2014-C-2165.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Alonzo, et al., Curt; Carter, Arthur; Carter, Joseph L.; Diggs, Anthony; Dilosa, Kenneth; Grier II, Harold H.; Henderson, Calvin; Hollis, Tyson; Holmes, Warren; Lay, Stanley; Legania, Larry; Williams, Joshua; Williams, Willie; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 21973; to the Court of Appeal, First Circuit, No. 2014 CA 0172.

Denied.


text:
    Michelle ALBE v. CITY OF NEW ORLEANS, Photo Safety Program.
    No. 2014-C-2166.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Ballard, Vernetta; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 08-12542; to the Court of Appeal, Fourth Circuit, No. 2014-CA-0186.

Denied.


text:
    FOUNDATION MATERIALS, INC. v. Kristy NICHOLS, in her Individual and Official Capacities, as Commissioner of the Division of Administration; Paul Rainwater, in his Individual Capacity, as Former Commissioner of the Division of Administration; Kevin Davis, in his Individual and Official Capacities, as Director of the Governor’s Office of Homeland Security & Emergency Preparedness; Division of Administration; and Governor’s Office of Homeland Security & Emergency Preparedness.
    No. 2014-C-2171.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Foundation Materials Inc.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 620900; to the Court of Appeal, First Circuit, No. 2014 CA 0139.

Denied.


text:
    Loy M. McCORKLE, Tweety M. Dufrene and Matthew E. McCorkle v. Wayne D. GRAVOIS, M.D.
    No. 2014-C-2179.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Dufrene, Tweety M.; Loy M. McCorkle, et al.; McCorkle, Matthew E.; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 609248; to the Court of Appeal, First Circuit, No. 2013 CA 2009.

Denied.


text:
    John Quincy ADAMS, Jr., et al. v. LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER SHREVEPORT.
    No. 2014-CC-2180.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Adams III, John Quincy; Adams, Christy; Adams, Clorah; Adams, Rachel; John Quincy Adams, Jr. et al.; — Plaintiffs); Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. E, No. 559474-C; to the Court of Appeal, Second Circuit, No. 49,606-CW.

Denied.

HUGHES, J., would grant.


text:
    Kerry W. KIRBY, et al. v. Michael L. ECKSTEIN, et al.
    No. 2014-CC-2182.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Intradel Corporation; Kirby, Kerry W.; — Plaintiffs); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 13-7184; to the Court of Appeal, Fourth Circuit, No. 2014-C-0758.

Denied. The court of appeal did not err in dismissing the claim in its entirety. See La.Code Civ. P. arts. 927(B) and 2164.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Johnny Paul SIMON.
    No. 2014-KK-2184.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Simon, Johnny Paul; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. A, No. 525561; to the Court of Appeal, First Circuit, No. 2014 KW 1028.

Denied.

WEIMER, J., recused.

HUGHES, J., would grant.


text:
    Maria Elena LUNA, Carmel L. Bass, Justin M. Luna, and Maria Theresa Gabriella Alphonse, Individually and on Behalf of the Late Rafael Medardo Luna v. A.W. CHESTERTON COMPANY, et al.
    No. 2014-C-2187.
    Supreme Court of Louisiana.
    Dec. 8, 2014.
   In re Louisiana State University Board of Supervisors; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 604,891; to the Court of Appeal, First Circuit, No. 2013 CA 2177.

Denied.

VICTORY, J., would grant.


author: SAUNDERS, Judge. GREMILLION, Judge,

text:
    Patrick BARTON, et al. v. AVOYELLES PARISH SCHOOL BOARD, et al.
    No. 13-445.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 2014.
    Ronald J. Fiorenza, Provosty, Sadler, DeLaunay, Fiorenza & Sobel, Alexandria, LA, for Defendants/Respondents: Avo-yelles Parish School Board, John T. Dunbar, III, John Hill, Channing Smith.
    Robert Irwin Siegel, Matthew F. Morgan, Gieger, LaBorde & Laperouse, L.L.C., New Orleans, LA, for Defendant/Applicant: National Union Fire Insurance Company of Pittsburgh, PA.
    Dorwan Gene Vizzier, Broussard, Hal-comb & Vizzier, Alexandria, LA, for Plaintiffs/Respondents: Patrick Barton, Erica Lavalais, Wilbert D. Barton.
    Covert James Geary, Jones Walker LLP, New Orleans, LA, for Defendant/Respondent: Monumental Life Insurance Company.
    Robert Jefferson David, Jr., Juneau David APLC, Lafayette, LA, for Defendant/Respondent: Chartis Specialty Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, BILLY HOWARD EZELL, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

_JjWilbert Barton was a member of the Marksville High School football team, and he was injured on April 24, 2009, while playing football during a fifth period physical education class. The class was approved by the school principal, Stephen M. Allgood, and the head football coach, John T. Dunbar, III, as a strength and conditioning program for the junior varsity football players. The class was taught by an assistant football coach, Randy Price. At the time of his accident, Wilbert was playing football on the school’s football practice field and being supervised by two volunteer football coaches, John Hill and Chan-ning R. Smith. While Wilbert was running with the football, he was tackled and sustained a cervical fracture and paralysis. As a result, Wilbert is a quadriplegic, and he has incurred more than $500,000.00 in medical bills.

Plaintiffs, Patrick Barton and Erica Barton, filed a lawsuit individually and on behalf Wilbert, naming Avoyelles Parish School Board, Dunbar, Price, Hill, and Smith as defendants as well as National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National Union). In addition to seeking general and special damages, Plaintiffs sought penalties and attorney’s fees from National Union for its alleged arbitrary and capricious failure to pay Plaintiffs’ claims.

The Avoyelles Parish School Board had purchased a policy of insurance to cover interscholastic athletes in cases of accidental injury from National Union. The policy was effective from August 1, 2008, to July 31, 2009. Asserting that the policy does not cover Plaintiffs’ claims, National Union filed a motion for summary judgment seeking dismissal of Plaintiffs’ claims for compensatory damages as well as their claim for penalties and attorney’s fees. The trial court |2denied National Union’s motion for summary judgment. National Union sought supervisory writs from the judgment.

Initially, we denied the writ, finding no error in the trial court’s ruling. Subsequently, National Union applied to the Louisiana Supreme Court for a supervisory and/or writ of certiorari. That writ was granted, and the matter was remanded to us with instructions that we allow briefing, argument, and full opinion. Having allowed the briefs and heard the arguments, we now render this opinion.

POLICY COVERAGE

National Union argues that the trial court erred when it denied its motion for summary judgment. It points out that the policy states that coverage extends to injuries occurring 1) during the official football season, and 2) during a regularly scheduled and approved game or practice session.

It is well settled that summary judgments are reviewed de novo. Thibodeaux v. Lafayette Gen. Surgical Hosp. L.L.C., 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544. Here, National Union is asserting that summary judgment should have been granted on two issues. Thus, both issues are subject to a de novo review.

Nation Union argues that the insurance policy does not cover Plaintiffs’ claims because their son’s accident occurred outside the official football season. National Union contends that Wilbert’s accident occurred on April 24, 2009, a date that is not part of the official football season. National Union points out that Marksville High School is a member school of the Louisiana High School Athletic Association (LHSAA). The LHSAA handbook, introduced into the record, provides that the official 2009 football season extends from August 11, 2009, to December 12, 2009. Also, National Union contends that the plain and prevailing | ..¡meaning of an American football season is confined to the fall and winter months. Thus, it maintains that Wilbert’s accident in April did not satisfy the policy’s requirement that the injury must have occurred during football season.

Also, National Union asserts that Plaintiffs cannot satisfy the additional policy requirement that the injury must have occurred during a regularly scheduled and approved football practice or game. It contends that Wilbert was injured during a physical education class rather than a regularly-scheduled football practice. National Union also contends that Kenny Henderson, who is the executive director for the LHSAA, stated in his affidavit that practices are not to be approved or scheduled during class hours.

National Union maintains that the policy provides that the practices must be approved by the “participation organization,” and it asserts that the participating organization is the school board, not the high school principal. Thus, National Union contends that at the time Wilbert was injured, he was not participating in an approved football practice. For these reasons, National Union asserts that Plaintiffs’ claims against it should be dismissed because the claims are not covered by the National Union policy.

In their opposition to the writ application, Plaintiffs argue that the trial court properly denied National Union’s motion for summary judgment because there are genuine issues of material fact of whether Wilbert’s accident is covered by the National Union policy. Plaintiffs argue that the policy should be interpreted in favor of coverage because the policy is ambiguous. Plaintiffs note that the policy does not define any of the following terms or phrases: “official season of the sport,” “regularly scheduled,” “approved,” and “practice session.” Plaintiffs also note that while National Union relies on the bylaws of the LHSAA and the 14affidavit of the LHSAA’s director for its position on what constitutes the official football season and an approved practice, the policy makes absolutely no reference to the LHSAA or its constitution and bylaws. Further, Plaintiffs point out that while the LHSAA’s bylaws indicate that the football season would' end on November 8, the championship games are played in December. Thus, Plaintiffs argue that based on the LHSAA’s limited definition of football season, a student injured in a playoff or championship game would not be covered under National Union’s policy. Also, Plaintiffs note that while Rule 4.1.4 of the LHSAA’s bylaws prohibits direct or indirect coaching during the school year other than during the season of the sport or spring practice. Additionally, a strength and conditioning program is allowed under Rule 4.1.6 as long as it is approved by the school principal. Thus, Plaintiffs contend that a reasonable interpretation of the LHSAA’s rules is that Spring practice and strength and conditional programs (such as the one in which Wilbert was involved at the time when he was injured) are considered part of the football season because if they were not “part of the season” they would be included in Rule 4.1.1’s prohibition against out-of-season practice.

Plaintiffs assert that not only did Wilbert’s injury occur during the football season, but it also occurred during a regularly-scheduled practice. Plaintiffs contend that at the time of his accident, Wilbert was participating in a strength and conditioning physical education class approved specifically for Marksville High School’s football players, and that he was being supervised and taught by football coaches. Also, Plaintiffs note that Coach Dunbar stated in his deposition that the strength and conditioning exercises in which Wilbert and his classmates were engaged at the time of the accident are the same activities that the football players do during regular football practices. Thus, Plaintiffs argue that the strength and 1 .^conditioning class was an integral part of the football program. Plaintiffs maintain that since the class was authorized for both the fall and spring semesters, the spring semester was also considered to be within the official season of football.

We find that Plaintiffs’ arguments have merit. There is ambiguity in the policy, especially since phrases such as “official season of the sport” and “practice sessions” are not defined. Simply tying the football season to specific dates on the calendar would have removed all ambiguity. The jurisprudence has held that ambiguous contractual provisions are generally construed against the insurer and in favor of coverage. Sims v. Mulhearn Funeral Home, Inc., 07-0054 (La.5/22/07), 956 So.2d 583. That is what we must do here. Finding, therefore, that the record establishes a genuine issue of material fact regarding whether the National Union policy affords coverage, summary judgment is precluded as to the coverage issue, and we find no error in the trial court’s ruling in this regard.

ARBITRARY AND CAPRICIOUS CLAIM HANDLING

National Union asserts that, at the very least, this court should order that Plaintiffs’ claims for penalties and attorney’s fees be dismissed on summary judgment because penalties are not- appropriate in situations where the insurer is acting in good faith. National Union maintains that given the wording of the policy and the factual circumstances of this case, it has reasonable grounds for denying coverage for Plaintiffs’ claims.

Plaintiffs assert that summary judgment on issues of penalties and attorney’s fees under La.R.S. 22:1821 and 1892 are premature. We agree.

In Holland v. Golden Rule Ins. Co., 96-264, p. 6 (La.App. 3 Cir. 10/9/96), 688 So.2d 1186,1189-90, this court opined:

1 (“Whether or not an insurer’s reasons for refusal are just and reasonable grounds is a question of fact to be determined from the individual facts and circumstances of each case.” (Citations omitted). Thompson v. Business Insurance Life of America, 413 So.2d 331, 337 (La.App. 3 Cir.1982). Insurance companies, as is everyone, are bound to know the law which provides that “Any exclusion from coverage in an insurance policy must be clear and unmistakable. If more than one interpretation of an exclusion is reasonable, the one affording coverage to the insured will be adopted.” Hoffpauir v. Time Ins. Co., 536 So.2d 699, 702 (La.App. 3 Cir.1988).
An insurer takes the risk of misinterpreting its own policy provisions. Such error will not be considered reasonable grounds for delaying the payment of benefits. Even when the issues involved are res nova, an insurer may be cast for penalties. Coker v. American Health and Life Insurance Company, 525 So.2d 130 (La.App. 3 Cir.1988). The issue of whether just and reasonable grounds exist is a question of fact. The trial court’s factual determination will not be disturbed on appeal unless clearly wrong. Lucito v. Louisiana Hospital Service, Inc., 392 So.2d 700 (La.App. 8 Cir.1980).

In Holland, we affirmed an award for penalties and attorney’s fees assessed against an insurance company because it denied coverage under its policy when there was ambiguity in the policy pertaining to coverage, it was put on notice of that ambiguity in the policy, and that ambiguity was the reason that the trial court found that the policy provided coverage. Here, the record indicates that the trial court could reasonably find that National Union’s policy provides coverage for the accident due to amibiguity present that impacts the issue of coverage and that National Union was put on notice of that ambiguity. Thus, National Union could reasonably be subject to the assessment of penalties and attorney’s fees.

Given the above, genuine issues of material fact preclude summary judgment on this issue and the issue is premature. Accordingly, we find no error by the trial court in denying National Union’s motion for summary judgment on the issue of whether its handling of the Plaintiffs’ claim was arbitrary and capricious.

IvDECREE

There are a genuine issues of material fact as to whether National Union’s policy provides coverage for the damages Plaintiffs suffered in the subject accident and whether National Union’s handling of the claim was artibrary and capricious. Thus, we affirm the trial court’s ruling denying National Union’s Motion for Summary Judgment as to those issues.

AFFIRMED.

GREMILLION, J., dissents in part and assigns reasons.

GREMILLION, Judge,

dissenting.

11 Words have meanings; definitions are foundational to knowledge. Thus, we know that a circle does not have corners, and that a bachelor does not have a wife. Similarly, we know that a “season” does not last all year. Rather, as multiple dictionaries report, a “season” is a “part” of a year or a “period” of the year. But, exactly what dates on the Gregorian calendar constitute an official football season? And, why would the policy at issue not define “season” by simply providing those dates? Is football not a fall and winter sport? If so, can it possibly be that the season of a fall and winter sport could include spring? Is “spring training” and/or summertime “two-a-day” practices part of the official season of football? Or, while clearly being related to the sport of football, are those activities more correctly viewed as a traditional part of football’s “off-season”?

Those are fair and material questions; therefore, summary judgment as to the coverage question is precluded. That they are fair requires a conclusion that there is no bad faith, and' summary judgment should be granted as to the issues of penalties and attorney fees. I, therefore, concur with the majority in part, but must also respectfully dissent in part.

^National Union has neither misstated its policy language nor has it hidden it. On the contrary, National Union has forcefully taken up its coverage defense. It has employed logical arguments taken from dictionaries, popular culture, and the Louisiana High School Football Athletics Association’s own governing body. It has reminded this court of the date of LSU’s first game, and of the Saints’ last game. And, it has appealed to our understanding of the “plain, ordinary, and generally prevailing” meaning of “football season.”

This court has said that “when a reasonable disagreement exists between an insurer and an insured, it is not arbitrary and capricious or without probable cause on the part of the insurer to deny payment on the claim that is in dispute.” Stewart v. Calcasieu Parish School Bd., 05-1339, p. 5 (La.App. 8 Cir. 5/3/06), 933 So.2d 797, 801, writ denied, 06-1910 (La.11/3/06), 940 So.2d 666. Our supreme court has written that “where the insurer has legitimate doubts about coverage, the insurer has the right to litigate these questionable claims without being subjected to damages and penalties.” Calogero v. Safeway Ins. Co. of LA., 99-1625, p. 5 (La.1/19/00), 753 So.2d 170, 173.

Our record reveals no evidence of arbitrary, capricious, unreasonable, or bad faith claims handling; rather, it reveals reasonable disagreements and legitimate doubts about coverage. Thus, with regard to the trial court’s denial of National Union’s motion for summary judgment as to the issues of penalties and attorneys fees, I would reverse and find that National Union should not be cast with fees for arbitrary and capricious behavior.