author: COHEN, J.

text:
    PIERCE HARDY LIMITED PARTNERSHIP, Appellant, v. HARRISON BROTHERS CONTRACTING, LLC, Appellee.
    No. 5D08-3416.
    District Court of Appeal of Florida, Fifth District.
    June 12, 2009.

      Melinda S. Gentile and Monique S. Cardenas of Peckar & Abramson, Ft. Lauderdale, for Appellant.
    Ronald W. Sikes and Kimberly T. Van Der Riet of Sikes and Van Der Riet, Attorneys, PLLC, Winter Garden, for Appellee.
   COHEN, J.

We review the denial of Appellant’s, Pierce Hardy Limited Partnership, motion to set aside and vacate a default and final default judgment. Because Appellant established excusable neglect, a meritorious defense, and due diligence, we reverse.

After serving its complaint on Appellant’s in-state registered agent, Appellee, Harrison Brothers Contracting, LLC, moved for a clerk’s default exactly twenty days later based on Appellant’s failure to file any paper or pleading. Appellee subsequently filed a motion for a final default judgment, accompanied by an affidavit seeking $259,846.85 in damages, some of which were unliquidated. Three days before the scheduled hearing on the motion for final default judgment, Appellee served Appellant, by mail at its address in Pennsylvania, with the notice of hearing (ex parte). Subsequently, the clerk entered a default.

Before the clerk’s default was entered but on the same day, Appellant’s counsel contacted Appellee’s counsel by telephone three separate times to inform him of its appearance and to request an enlargement of time to respond. After this request was refused, Appellant served Appellee by facsimile and FedEx with a notice of appearance, motion for enlargement of time, and related order for filing with the clerk. Despite service of these papers, Appellee obtained a final default judgment in the amount of $259,846.86 at the ex parte final default judgment hearing. Two days after receiving the final default judgment, Appellant filed a verified motion to set aside and vacate the clerk’s default and final default judgment, along with an answer, affirmative defenses, and a motion to dismiss.

The trial court denied Appellant’s motion to set aside and vacate, concluding that the filing of a notice of appearance and motion for enlargement of time were not appropriate responses to the complaint, citing Picchi v. Barnett Bank of South Florida, N.A., 521 So.2d 1090 (Fla.1988). However, Picchi, 521 So.2d at 1091, only held that Florida Rule of Civil Procedure 1.500(b) does not require a notice of hearing on a motion for default be served when the defending party has filed only a notice of appearance. The holding in Picchi is applicable only when a party moves the trial court to enter a default pursuant to rule 1.500(b). In this case, Appellee never moved for a default under the provisions of rule 1.500(b). Instead, it obtained a clerk’s default based on Appellant’s failure to file or serve any paper or pleading as provided in rule 1.500(a). Consequently, the trial court’s reliance on Picchi was misplaced.

The trial court also erred in finding that Appellant “presented no evidence establishing excusable neglect or due diligence either in the forwarding ... of the Complaint to its counsel or the timely filing of an appropriate response” to it. In making this finding, it is apparent the trial court either refused to consider or completely disregarded Appellant’s verified motion and affidavit in support. Although the reasons for rejecting this evidence are not entirely clear, had the trial court properly considered them, it would have concluded that excusable neglect was established.

The verified motion explained that Appellant’s counsel’s legal assistant contacted the clerk on June 17 to determine whether a clerk’s default had been entered. Indicating that one had not been entered, the clerk informed the legal assistant that a default would not be entered for 48 hours to allow Appellant to file a notice of appearance and motion for enlargement of time. Despite these representations, Appellant’s counsel later learned, through a docket sheet search on June 23, that the clerk had, in fact, entered a default on June 17. The affidavit indicated that Appellant’s counsel believed she had previously obtained an extension of time to respond to the complaint. However, this belief was mistaken because the extension of time was on a different case involving the same client. These facts established that Appellant’s failure to respond stemmed from reasonable misunderstandings originating from clerical errors. This was sufficient to establish excusable neglect. See Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985).

Appellant also established due diligence because its verified motion to set aside and vacate was filed within two days of learning of the final default judgment. See Gables Club Marina, LLC v. Gables Condo. & Club Ass’n, Inc., 948 So.2d 21, 25 (Fla. 3d DCA 2006) (filing of verified motion to vacate eleven days after learning of the entry of the default sufficient to establish due diligence). The affirmative defenses that accompanied Appellant’s verified motion to vacate and set aside established a meritorious defense. See Cedar Mountain Estates, LLC v. Loan One, LLC, 4 So.3d 15, 17 (Fla. 5th DCA 2009). Consequently, the trial court abused its discretion in denying Appellant’s motion.

Accordingly, we reverse the order denying the motion to vacate the default and final default judgment, vacate the default and final default judgment, and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

GRIFFIN and LAWSON, JJ., concur.

      . Because Appellee had yet to obtain the clerk’s default, the motion for final default judgment left the date of the clerk’s default blank.

      . Serving Appellant in this manner effectively insured Appellant would not receive timely notice of the hearing.

      . Significantly, at no time during the telephone conversations did Appellee’s counsel inform Appellant's counsel of the pending final default judgment hearing scheduled two days later.

      . A defaulting party has a due process entitlement to notice and opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of unliquidated damages. Protection of this right is provided by Florida Rules of Civil Procedure 1.080(h)(1) and 1.440(c). See Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 663 (Fla. 5th DCA 1983). In this case, Appellee sought damages exceeding the fixed contract price caused by delays attributable to Appellant’s failure to provide adequate plans and specifications, and failure to properly supervise and manage work by other sub-contractors.

      .It is possible the trial court refused to consider the verified motion based on Appellee’s objection that it contained inadmissible hearsay. However, the verified motion was based on personal knowledge and sufficed to satisfy the requirement that defendant set forth facts by affidavit or other sworn statement explaining the mistake or inadvertence. See Gibraltar Serv. Corp. v. Lone & Assocs., Inc., 488 So.2d 582, 584 (Fla. 4th DCA 1986).

      . We further note that Appellee's tactics were clearly designed to obtain a default in order to avoid a determination of the merits of the case. Specifically, Appellee prematurely certified that Appellant failed to file or serve any paper or pleading, failed to timely notice opposing counsel of the hearing date, and allowed the trial court to erroneously conclude at the final default judgment hearing that the clerk's default was properly entered.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    MAKES & MODELS MAGAZINE, INC., a Florida corporation, Appellant, v. WEB OFFSET PRINTING CO., INC., a Florida corporation, Appellee.
    No. 2D08-1061.
    District Court of Appeal of Florida, Second District.
    June 17, 2009.

      Caryl E. Delano of Addison & Delano, P.A., Tampa (withdrew after briefing); Robert A. Carr, Thonotosassa, and Kevin C. Ambler of Law Offices of Kevin C. Ambler, P.A., Tampa (substituted as counsel of record), for Appellant.
    Brandon S. Vesely of Keane, Reese, Vesely & Gerdes, P.A., St. Petersburg, for Appellee.
   VILLANTI, Judge.

Web Offset Printing Co., Inc. (Web Offset) obtained a judgment by default in Pinellas County against Makes & Models Magazine, Inc. (Makes & Models). Makes & Models moved to vacate the clerk’s default, the circuit court denied the motion, and Makes & Models now appeals the denial of its motion. We reverse because Web Offset knew that Makes & Models intended to defend the lawsuit and failed to contact Makes & Models’ known counsel prior to seeking a default.

FACTS

On June 1, 2006, Makes & Models sued Web Offset in Hillsborough County seeking damages and rescission of the parties’ agreement. In essence, the Hillsborough lawsuit alleged that Makes & Models had hired Web Offset to print Makes & Models’ magazine and that Makes & Models was dissatisfied with the quality of Web Offset’s March 2006 print job. Web Offset was properly served and, through counsel, filed pleadings and actively participated in the Hillsborough lawsuit. The Hillsborough lawsuit is currently pending.

On August 7, 2006, Web Offset filed a separate action against Makes & Models in Pinellas County seeking payment for monies allegedly owed. The Pinellas lawsuit arose out of the same events as the Hills-borough lawsuit and alleged that Makes & Models had not paid Web Offset for the March 2006 magazine print job and for another print job called “Festival of Speed.” Web Offset then served Makes & Models’ registered agent, CT Corporation. Makes & Models did not answer the complaint, allegedly because it did not receive it from CT Corporation.

On September 1, 2006, Web Offset filed a motion for entry of a clerk’s default. The motion’s certificate of service alleged that a copy of the motion had been mailed directly to Makes & Models at 508 West Fletcher Avenue, Tampa. It is undisputed that this address was incorrect. Makes & Models has asserted that its correct address at all relevant times was 16102 N. Florida Avenue, Lutz. Web Offset’s appellate brief conceded that the Lutz address had been Makes & Models’ correct address since January 2006, seven months before the filing of the Pinellas lawsuit. Notably, while Web Offset mailed a copy of the motion for default to the Fletcher Avenue address, it mailed all other filings to Makes & Models at 16102 N. Florida Avenue, Lutz. Based on these undisputed facts, it appears that Web Offset’s motion for default was not properly mailed to Makes & Models and that Makes & Models did not receive the motion.

On September 5, 2006, the clerk entered a default against Makes & Models. On September 20, 2006, Web Offset filed a motion for entry of final judgment, which it served directly on Makes & Models’ president at the correct address, 16102 N. Florida Avenue, Lutz. On September 28, 2006, Makes & Models filed a motion to vacate default and motion for dismissal of the Pinellas action. The motion alleged that Makes & Models did not know about the Pinellas lawsuit until it received a copy of the motion for entry of final judgment. Makes & Models’ motion also indicated that an action between the same parties involving the same issues had been pending in Hillsborough County since July 2006.

On December 21, 2007, the circuit court held a hearing on Web Offset’s motion for entry of final judgment and on Makes & Models’ motion to vacate the default and for dismissal of the action. The circuit court declined to set aside the default, noting that Makes & Models’ motion was not verified or sworn and that Makes & Models had not filed any affidavits in support of its motion. The court concluded that Makes & Models had not established excusable neglect necessary to set aside the default. The court granted Web Offset’s motion for final judgment. Makes & Models filed a motion for rehearing or, in the alternative, motion for relief from final judgment and for relief from the order denying its motion to vacate the default. The circuit court denied that motion, and Makes & Models filed the instant appeal.

ANALYSIS

An order denying a motion to vacate a clerk’s default is reviewed under an abuse of discretion standard. U.S. Bank Nat’l Ass’n v. Lloyd, 981 So.2d 633, 639 (Fla. 2d DCA 2008). Nevertheless, Florida Rule of Civil Procedure 1.500, which allows entry of a clerk’s default when a party fails to file or serve any paper in an action, should be liberally construed in favor of deciding cases on the merits. Lloyd, 981 So.2d at 639-40; Nat’l Union Fire Ins. Co. of Pittsburgh, P.A. v. McWilliams, 799 So.2d 378, 380 (Fla. 4th DCA 2001). Furthermore, a default is not designed to give a strategic advantage to the plaintiff so that it may obtain a judgment without dealing with the defendant’s challenges and defenses. Ole, Inc. v. Yarn, 566 So.2d 812, 814-15 (Fla. 3d DCA 1990).

In Lloyd this court held that “[a] trial court should vacate an ex parte default when ‘the plaintiff seeking default had actual knowledge that the defendant was represented by counsel and intended to defend the lawsuit, but failed to contact the defendant’s counsel prior to seeking default.’ ” Lloyd, 981 So.2d at 640 (quoting Nat’l Union Fire Ins. Co., 799 So.2d at 380). If the plaintiff is aware that the defendant is represented by counsel and intends to defend the litigation on the merits, it is required to serve the defendant with notice of the application for default and to present the matter to the court for entry of the default. Id. While we recognize that the circuit court did not have the benefit of the Lloyd opinion when it entered its order, the principles at issue predate Lloyd. See, e.g., Ole, Inc., 566 So.2d at 814; Gulf Maint. & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So.2d 813, 816 (Fla. 1st DCA 1989) (“A default is a procedural matter within the control of the attorney, so plaintiffs counsel should contact the attorney known to be representing a defendant to determine whether the latter intends to proceed in the matter before causing a default to be entered.”). A default that does not comply with this requirement “must be vacated without regard to whether the defendant can establish a meritorious defense or whether the defendant can demonstrate inadvertence or excusable neglect.” Lloyd, 981 So.2d at 640.

In this case, Web Offset obtained a clerk’s default without prior notice to Makes & Models. As explained in Lloyd and National Union, and sufficiently argued below, based on this fact the trial court was required to consider a two-part inquiry: (1) whether Web Offset had actual knowledge that Makes & Models intended to defend the Pinellas lawsuit and (2) whether Web Offset had actual knowledge that Makes & Models was represented by counsel. See id. at 639. Makes & Models was already pursuing the Hillsborough lawsuit against Web Offset when the Pinel-las lawsuit was filed. Given that the Hills-borough and Pinellas lawsuits involved the same dispute, Web Offset had actual knowledge of Makes & Models’ intent to defend the Pinellas lawsuit. Therefore, the first part of the two-prong inquiry set forth in Lloyd and National Union was answered in the affirmative. The second part of the two-prong inquiry was also answered in the affirmative because it is undisputed that Web Offset knew that Makes & Models was represented by counsel in the Hillsborough lawsuit, which involved the same issues. In fact, both parties were actively participating in the Hillsborough lawsuit. Web Offset has not even suggested that it did not have knowledge of Makes & Models’ intent to defend the Pinellas lawsuit or that it did not have knowledge that Makes & Models was represented by counsel. Based on these facts, Web Offset was required to notify Makes & Models before moving for entry of a default. Hence, here, the circuit court should have vacated the default without regard to whether Makes & Models had established a meritorious defense or whether it had demonstrated excusable neglect. See Lloyd, 981 So.2d at 640. The invalid entry of the clerk’s default renders the final judgment void. Gulf Maint. & Supply, Inc., 543 So.2d at 817.

CONCLUSION

We cannot conclude without making one final observation. Web Offset’s argument pressed for a strict and literal interpretation of the default rules without any regard for civility or for the professionalism expected when one party is aware that the opposing party is represented by counsel and intends to defend against the claims at issue. Although these are not difficult concepts to grasp, post -Lloyd, a party’s responsibilities when faced with similar circumstances should be clear.

For the reasons stated above, the circuit court abused its discretion when it denied Makes & Models’ motion to vacate the default and entered a final judgment in favor of Web Offset. Accordingly, we reverse and remand with directions to vacate the clerk’s default and the final judgment.

SILBERMAN and LaROSE, JJ., Concur.

      . While the Hillsborough complaint referenced a March 2005 print job, the parties do not dispute that the controversy arose from the March 2006 print job.

      . We note that Web Offset filed a motion in the Hillsborough lawsuit seeking an extension of time to file a counterclaim. The motion asserted that the latter-filed Pinellas lawsuit “may constitute a Counterclaim" in the Hills-borough lawsuit.

      . Web Offset s appellate counsel was not its counsel in the trial court.


author: THOMAS, J.

text:
    Tim and Alice PAULS, Appellants, v. F. Philip BLANK and Rita M. Blank, Appellees.
    No. 1D09-1232.
    District Court of Appeal of Florida, First District.
    June 17, 2009.

      Robert E. McGill, III, Destín, for Appellants.
    M. Stephen Turner, Tallahassee, and Richard P. Petermann, Jr., Fort Walton Beach, for Appellees.
   THOMAS, J.

Upon consideration of Appellant’s response to the court’s order of March 24, 2009, the court has determined that Counts I and II of the Third Amended Complaint seeking declaratory and in-junctive relief related to the easement, and Counts III and IV seeking damages for interference with the same easement, are inextricably intertwined. See Jensen v. Whetstine, 985 So.2d 1218, 1220 (Fla. 1st DCA 2008) (“Piecemeal appeals will not be permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit.”) (quoting S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974)). Regardless of the legal or equitable nature of the claims, the order on appeal is not an appealable order because there is a “factual overlap between the claim resolved by the order and a pending claim.” Id. at 1220. Therefore, the November 25, 2008, Final Judgment, which addresses only Counts I and II, does not constitute a partial final judgment subject to immediate review pursuant to Florida Rule of Appellate Procedure 9.110(k). Accordingly, the appeal is hereby dismissed as premature.

DISMISSED.

ALLEN and DAVIS, JJ., concur.


author: PER CURIAM.

text:
    Mark Allen BIR, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-2592.
    District Court of Appeal of Florida, First District.
    June 18, 2009.
    Rehearing Denied July 29, 2009.
    Mark Allen Bir, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WEBSTER, BENTON, and ROBERTS, JJ., concur.


text:
    B.B., Father of B.B., a Child, Appellant. v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D09-357.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2009.

      Carl S. New, Ocala, for Appellant.
    Patricia M. Propheter, Appellate Counsel, Children’s Legal Services, West Palm Beach, for Appellee.
    Wendie Michelle Cooper, Orlando, for' Guardian ad Litem.
   COHEN, J.

B.B. challenges the trial court’s final judgment terminating his parental rights. We affirm.

After the Department of Children and Families (“DCF”) sheltered the ten-month-old based on a report of malnutrition, B.B. consented to the child’s dependency. The trial court adjudicated the child dependent, placed him with grandparents, and approved B.B.’s case plan that had a goal of reunification. More than a year passed, and despite DCF’s offer of services, B.B. failed to substantially comply with his case plan. Based on this failure, the trial court granted DCF’s petition to terminate his parental rights pursuant to section 39.806(l)(e), Florida Statutes.

B.B. argues that terminating his parental rights was not the least restrictive means of protecting the child because he could have been placed in a permanent guardianship with the paternal grandparents. However, the fact that a long-term placement with a relative exists does not preclude terminating a parent’s rights. See A.J. v. K.A.O., 951 So.2d 30, 31 (Fla. 5th DCA 2007). The least restrictive means test requires DCF to make a good faith effort to rehabilitate the parent and reunite the family through a case plan before terminating a parent’s rights. See Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991).

In this case, B.B. was offered a ease plan. However, he failed to substantially comply with its terms by failing to follow through with substance abuse treatment, failing to maintain appropriate housing and employment, being convicted of several new law violations during the pendency of the proceeding, and testing positive for drugs. This failure, coupled with the trial court’s finding that termination was in the manifest best interests of the child, is not being challenged on appeal, and furthermore, is supported by competent, substantial evidence. See D.B. v. Dep’t of Children and Families, 932 So.2d 230 (Fla. 4th DCA 2005). Consequently, the trial court did not err when it terminated B.B.’s parental rights. Accordingly, we affirm.

AFFIRMED.

SAWAYA, J., and COBB, W., Senior Judge, concur.

      . The mother, whose parental rights the trial court terminated based upon her consent, is not a party to the appeal.


text:
    Cynthia BROOKS, et al. v. TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC., et al.
    No. 2008-CC-2540.
    Supreme Court of Louisiana.
    May 29, 2009.
    Ignatz Gerard Kiefer, Jr., Metairie, for applicant.
    Darryl Michael Breaux, for respondent.
   PER CURIAM.

hThe plaintiff, Cynthia Brooks, instituted suit on behalf of her minor son, Donald Brooks, against the defendants, Zachery Dennis, the Regional Transit Authority, and Transit Management of Southeast Louisiana, Inc. The petition alleged the defendants were liable for injuries sustained to the child, while riding without permission on the exterior of a bus owned by the Regional Transit Authority and operated by Mr. Dennis.

The defendants filed a motion for summary judgment urging they are entitled to judgment as a matter of law because the plaintiff is unable to satisfy her threshold burden of proving Mr. Dennis owed a duty to the minor child. The district court denied summary judgment, citing the existence of a genuine issue of material fact as to whether the child was located on the side of the bus, and whether or not the driver should have seen the child. When the court of appeal denied writs in the absence of assigned reasons, this Court granted the defendants’ writ application and remanded the case for briefing, oral argument, and an opinion. Brooks v. Transit Management of Southeast La., Inc., et al., 08-0256 (La.3/28/08), 978 So.2d 295.

Following its consideration on remand, the court of appeal again denied the defendants’ application for supervisory writs finding summary judgment [ ^inappropriate for the reasons articulated by the district court. Brooks v. Transit Management of Southeast La., Inc., et al., 07-1367 (La.App. 4 Cir. 9/24/08), 996 So.2d 9. We granted defendants’ application for certiorari to consider the correctness of the merits of that ruling. Brooks v. Transit Management of Southeast La., Inc., et al., 08-2540 (La.1/16/09), 998 So.2d 88.

Upon de novo review, we find the lower courts did not err in finding a genuine issue of material fact precludes summary judgment at this time. We now render judgment consisting of the following decree.

DECREE

The judgment of the district court denying the defendants’ motion for summary judgment is affirmed. The case is remanded to the district court for further proceedings.

WEIMER, J., concurs.


author:
SUSAN M. CHEHARDY, Judge.
      EDWARDS, J.,

text:
    STATE of Louisiana v. Brandon D. RIGGINS.
    No. 08-KA-714.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 7, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee, The State of Louisiana.
    Frank Sloan, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant, Brandon D. Riggins.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

LBrandon D. Riggins appeals his convictions of armed robbery and aggravated kidnapping. We affirm.

PROCEEDINGS BELOW

On November 24, 2004, a Jefferson Parish grand jury indicted Brandon D. Rig-gins on three counts: Count 1, violation of R.S. 14:64, armed robbery; Count 2, violation of La.R.S. 14:44, aggravated kidnapping; and Count 3, violation of La.R.S. 14:52, simple arson of a vehicle. Riggins pleaded not guilty to all counts.

On May 16, 2006, the defendant underwent trial on the armed robbery and aggravated kidnapping charges. After jury selection the court recessed for lunch. The defendant, who was free on bond, failed to return to the courtroom when the recess ended. The court ordered that the trial be held without him.

The jurors were sworn in and the trial proceeded. At its conclusion, the twelve-member jury found the defendant guilty as charged of both offenses. After return of the guilty verdicts, the State dismissed Count 3, the arson charge, in open court.

On June 30, 2008 the trial court sentenced the defendant to life at hard labor for the aggravated kidnapping and to ninety-nine years at hard labor for the armed |3robbery, both without benefit of probation, parole or suspension of sentence, to be served consecutively. The defendant filed a timely appeal.

FACTS

The victim, Owen Santiago, testified that on April 14, 2004, he drove home from his job at Chevy’s Restaurant to his home on Salem Street in Kenner. As he was getting out of his car at his home, four men approached him, two of them holding pistols. They grabbed him, put him in the back of his car, and told him they would kill him if he did not give them money. Santiago thought he would die because he was not cooperating with them. He later learned the man sitting on his right in the back seat was “Brandon.”

The men drove him around Jefferson Parish and into Orleans Parish, continuing to demand money, and told him to call someone for money. In New Orleans they took him to a housing project, where they got out of the car. They strip-searched Santiago and told him they would take turns beating him. They took earrings, a medallion, and a chain he was wearing. He recalled that when he still did not give them money Brandon said, “[J]ust kill that nigger, and throw him in the trash can.”

Then some passersby approached, so the assailants opened the trunk, removed the tires, and put Santiago in the trunk. They took him for a ride and returned to Me-tairie. Santiago was able to open the trunk and, as the car slowed to come to a stop, he jumped out, losing his shoes in the process. He ran to a Circle K store to call the police.

When the police responded, he took them to the places where his tires had been thrown out, where his shoes had fallen, and where his car, now burned, was recovered. They found his tires and his shoes at the locations where they had fallen.

|4The following day, Santiago viewed a photographic lineup, from which he made a positive identification of the defendant as the man who was seated to his right in the car when he was kidnapped. This photographic array was introduced into evidence as State’s Exhibit 8. Santiago was positive about this identification. He stated that if he had the opportunity to view the defendant at trial that day, he would be able to identify him.

Detective Keith Forsythe of the Kenner Police Department testified he investigated the armed robbery and kidnapping of Santiago. He accompanied Santiago to the locations at which his tires and shoes had been left. Detective Forsythe said he quickly developed two suspects, one of whom was Brandon Riggins. He put together a photographic line-up that included Riggins and showed this lineup to Santiago, who identified Riggins. He asked Santiago to write his name and the date and time on the rear of the photograph Santiago had identified. Based on Santiago’s identification, Detective Forsythe obtained an arrest warrant for Riggins in April 2004, and Riggins was arrested in September 2004.

Detective Forsythe testified that Santiago had no problem identifying Riggins from the photographic lineup. Forsythe said he himself could identify Brandon Riggins if he were present in court.

Detective Jesse Johnson of the Kenner Police Department testified he went to the home of Brandon Riggins on September 29, 2004 to execute an arrest warrant. He found Riggins hiding in the closet in the rear bedroom. Johnson also testified that if Brandon Riggins were present in court, he would be able to identify him.

Sergeant Robert Meyer, also with the Kenner Police Department, testified he assisted in the arrest of Brandon Riggins. He found the defendant in a closet in a | Krear bedroom. Meyer also said that if the defendant had been in court, he could identify him.

Officer Matthew Glapion of the Kenner Patrol Division testified that in the early morning hours of April 15, 2004, he saw the defendant on Airline Highway, in the company of Marcus Williams, James Converse, and an unidentified black male. Minutes later he saw a fire, which turned out to be the victim’s burning car. Officer Glapion testified that if the defendant had been in court, he could have made an identification. He had no doubt the men he saw were Brandon Riggins, Williams, and Converse.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant asserts the evidence was insufficient to support the verdict. He does not challenge the sufficiency of the elements of the offense, but rather urges us to conclude the evidence was insufficient to convict because the State did not prove his identity beyond a reasonable doubt.

In reviewing claims challenging sufficiency of evidence or identification, an appellate court must consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The rational factfinder test of Jackson v. Virginia requires the State to negate any reasonable possibility of mis-identification. State v. Ware, 2006-1703, p. 7, n. 1 (La.6/29/07), 959 So.2d 459, 463, n. 1.

The defendant appeared for trial on May 16, 2006 and was present during jury selection that morning. A jury was selected and sworn in, then the court | ^recessed for lunch. When court resumed following the lunch recess, the defendant failed to return to court. Defense counsel informed the court,

I heard from my client at 1:20. I walked him down and went to get some lunch, you know, which was no problem. I went to the Westbank Expressway, I got a call back from him ... around 1:55, ... and he said he was on his way back, and would be about five minutes.

The trial judge pointed out it was then ten minutes to 3:00. The prosecutor stated the State wished to proceed with the trial; defense counsel objected, and the judge stated, “Your client voluntarily absented himself, so we’re going to go ahead and go forward.” Despite defense counsel’s objection, the jury was brought into the courtroom and the trial proceeded.

The victim, Owen Santiago, testified that four people grabbed him and threw him in his car. He told the jury that the man sitting next to him in the car was “Brandon.” During his testimony, the prosecutor showed the victim a photograph, which Santiago testified he had been shown by the police. He had stated during the investigation that the photograph showed one of the men who robbed him, and he reiterated that statement in court. He testified he told police he was positive of the identification and indicated his identification on the back of the photograph.

This photographic lineup, containing six photographs of similar individuals, State’s Exhibit 8, was introduced into evidence at trial. Because the photograph was placed into evidence, the jury was fully aware that the back side of the defendant’s picture bore Owen Santiago’s notation, “O.S. 4-15-04 6:28 pm.”

17As the State points out in brief, the defendant was present during jury selection; therefore, the jury had the opportunity to observe him for some time on the morning of trial. Further, during the course of the trial, the jury saw both the defendant in person and the photographic lineup, showing that he had been identified by the victim on the day he was kidnapped. The jury’s determination that the defendant was one of the assailants is based on credible witness testimony and meets the Jackson standard.

Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment, the defendant asserts the trial court abused its discretion in denying defense counsel’s motion for a recess in order to obtain the presence of a witness who had been served with a trial subpoena but failed to appear.

Prior to trial, the defense subpoenaed a number of witnesses and filed notices of alibi witnesses as well, which listed eight persons who might be called to testify that the defendant was at Mike’s Bar at 483 Veterans Highway in Kenner at the time of the alleged crimes.

During trial the court’s minute clerk reported the returns on service of the potential witnesses. Only two had been served, Lakeisha Robinson (one of the persons listed in the notices of alibi witnesses) and Randy Riggins. Thus, the defendant could have hoped for the attendance of only those two witnesses who had been served. However, neither Robinson nor Randy Riggins showed up at court for the trial.

Defense counsel requested that the court recess the trial and allow him to request issuance of an instanter subpoena for Robinson. The court denied his request and defense counsel objected, arguing he was only asking for the same | ^courtesy that is often given to the prosecution. The court advised him, “If I thought there was any chance of your client showing up I would do that.”

The defense rested its case without calling any witnesses.

On appeal the defendant asserts the denial of the motion for recess was an abuse of the court’s discretion because it denied the defendant his constitutional right to put on a defense and because the denial was in retaliation for the defendant’s failure to show up for the completion of his trial.

A recess is a temporary adjournment of a trial or hearing that occurs after the trial or hearing has commenced; in contrast, a continuance is the postponement of a scheduled trial or hearing, and a continuance may not be granted after the trial or hearing has commenced. La.C.Cr.P. art. 708.

Despite the differing definitions of a continuance and a recess, a motion for a recess is governed by the same standards as a motion for a continuance. State v. Rodriguez, 02-334, p. 14 (La.App. 5 Cir. 1/14/03), 839 So.2d 106, 117, writ denied, 03-0482 (La.5/30/03), 845 So.2d 1061, cert. denied, 540 U.S. 972, 124 S.Ct. 444, 157 L.Ed.2d 321 (2003). In general, whether to grant or deny a recess rests within the sound discretion of the trial judge, and a reviewing court will not disturb the ruling absent a clear abuse of discretion. State v. Hampton, 1998-0331, p. 9 (La.4/23/99), 750 So.2d 867, 877.

A motion for a continuance based on the absence of a witness must meet specific criteria. La.C.Cr.P. art. 709 provides the motion must state:

(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

|flThe trial court has great discretion in granting a recess; denial of a motion for a recess is not grounds for reversal, absent an abuse of that discretion and the showing of specific prejudice. State v. Stevenson, 02-0079, p. 3 (La.App. 5 Cir. 4/30/02), 817 So.2d 343, 345. To show prejudicial error sufficient to warrant reversal, the defendant must show that the testimony the witness would have given would have been favorable to the defense and would indicate the possibility of a different result. Id.

Under La.C.Cr.P. art. 737, a court is empowered to order the attachment of a witness who fails to comply with a subpoena. In State v. George, 26,867 (La.App. 2 Cir. 4/5/95), 652 So.2d 1382, the defendant subpoenaed a co-worker who failed to appear at trial despite personal service. The defendant requested an attachment, which the trial court denied. On appeal, the second circuit observed that the witness’ testimony was not material and that the court was not assured the witness would be present when trial resumed after recess. Id., 26,867 at p. 13, 652 So.2d at 1391.

Here, in making the oral motion for a recess the defense failed to establish all the required facts. Although it was established that due diligence was used to procure Robinson’s attendance, because she had been subpoenaed, the defense failed to state the facts to which Robinson was expected to testify, or to state facts and circumstances showing a probability Robinson would be available at the time to which the trial would be deferred. The mere suggestion that Robinson may have provided the defendant with an alibi is insufficient to satisfy the requirement of that facts be offered to prove her presence at trial necessary to the defendant’s case.

The defendant failed to meet the statutory requirements for a recess. State v. Johnson, 03-620, p. 9 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 187, writ denied, 2003-3171 (La.3/19/04), 869 So.2d 849. |10Under the circumstances, we find no abuse of discretion in the trial court’s ruling on the request for a recess.

DECREE

For the foregoing reasons, the convictions and sentences are affirmed.

AFFIRMED.

EDWARDS, J., dissents in part with reasons.

EDWARDS, J.,

Dissenting in Part.

|,I respectfully dissent from the portion of the majority opinion that finds no abuse of discretion on the trial court’s denial of a recess. In my opinion, the majority contradicts itself in stating initially that the defense subpoenaed witnesses who might be called to testify as to the defendant’s presence at Mike’s Bar, then finding that the defense failed to state the facts to which Ms. Robinson would testify. Further, the witness had been personally served on May 15, 2006, and, on the facts of this case, it is reasonable to conclude she could be personally served on a subsequent occasion. Finally, in light of her known location, it is reasonable to conclude that the witness could be arrested and brought to court. A witness’ contumacious failure to appear after service constitutes direct contempt of court and the court may order that the witness be attached and brought to court immediately. LSA-C.Cr.P. art. 737. As to LSA-C.Cr.P. art. 709’s third and final requirement for a continuance based on the absence of a witness, the fact that personal service was accomplished establishes that the defendant exercised due diligence in attempting to procure the attendance of this alibi witness.

In this case, if the defense witness had testified as indicated in the Notice of Alibi Witnesses, she would have provided an alibi defense for the defendant. The jury, as the trier of fact, would have been obligated to determine whether the testimony of this witness was credible. If the jury had believed the testimony of the alibi witness, the jury would have believed that the defendant was somewhere | Pelse at the time of the crime. In other words, if the jury had believed the alibi witness, the State would have failed to prove the identity of the defendant as the perpetrator beyond a reasonable doubt.

In light of the personal service on the alibi witness and materiality of her testimony, in my opinion the trial court’s failure to recess violates the provisions governing a continuance in the absence of a witness under LSA-C.Cr.P. art. 709. More importantly, I find that the denial of either a motion to recess or an instanter subpoena violated the constitutional right of the defendant to compulsory process. Such fundamental error requires a reversal of the conviction and a remand to the trial court.

I respectfully dissent and would reverse for the above reasons.

      . The defendant was present during voir dire but absented himself from the remainder of his trial, as discussed below in connection with the analysis of sufficiency of the evidence.

      . Marcus Williams was a co-defendant in this case, but was tried separately from Brandon Riggins.

      . La.C.Cr.P. art. 832 provides in pertinent part:
      A. A defendant initially present for the commencement of trial shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present or if the right to counsel has been waived and:
      (1) He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to be present during the trial....
      Article 832 is applicable because trial had commenced. La.C.Cr.P. art. 761. The minute entry and transcript show that defense counsel was present throughout the trial.


author: MADELINE JASMINE, Pro Tempore Judge.

text:
    STATE of Louisiana DEPARTMENT OF SOCIAL SERVICES in the Interest of D.P. v. Joe PINEYRO. State of Louisiana Department of Social Services in the Interest of D.P. v. Dianne Pineyro.
    Nos. 08-CA-1213, 08-CA-1214.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 7, 2009.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Joseph R. McMahon, Jr., Timothy O’Rourke, Jeffrey G. La-garde, Assistant District Attorneys Harvey, LA for Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MADELINE JASMINE.
   MADELINE JASMINE, Pro Tempore Judge.

12The Department of Social Services has appealed the trial court’s order of support. For the reasons that follow, we vacate the trial court judgment and remand for further proceedings.

FACTS

On April 14, 2008, the State of Louisiana, Department of Social Services, through the Jefferson Parish District Attorney’s office filed a petition for child support against Joe Pineyro. The petition alleged that defendant’s minor child D.P. was placed in the custody of the Office of Community Services and requested defendant show cause why he should not be ordered to support said child. On that same date, an identical petition was filed for support of the same child naming the child’s mother, Dianne Pineyro as defendant. This petition also requested Mrs. |sPineyro show cause why she should not be ordered to pay support. Mr. and Mrs. Pineyro are married and live in the same household. Although these petitions were filed separately and were not formally consolidated in the trial court, the matters were taken up together by the trial court and the appeals of the support judgments have been consolidated.

On May 12, 2008, a hearing was held before a hearing officer. At the hearing, Ms. Pineyro explained that D.P. is in state custody because “he sexually offended one of my other little girls at home.” She further explained that she has special needs children in her home, including one child with AIDS. Mr. Pineyro stated that he had never stopped supporting D.P., explaining that they still bought him clothes and put money in his account at the facility. The hearing officer stated support was not going to be set at that time and asked the district attorney’s office to investigate the situation. No support was set at that time.

On September 24, 2008, a second hearing was held regarding support before the same hearing officer. No testimony or evidence regarding the “investigation” by the district attorney’s office was presented. Mrs. Pineyro explained that she adopted four children. One child is in a wheelchair and is unable to speak, and another child has AIDS. She stated D.P. is in a facility receiving treatment after he sexually assaulted one of the children. Mr. Pineyro explained that they never stopped supporting D.P. and they put money in his account. The hearing officer found the parties had an obligation to support their child and found Mr. Pineyro’s income to be $5,919.00 per month based on reports to the Louisiana Department of Education and Training (LDET). He recommended support in the amount of $848.00 per month plus costs for a total of $890.00 per month. Mrs. Pineyro was not employed however, an average month income of $1,135.00 based on LDET was imputed to her. It was recommended Mrs. Pineyro pay support in the amount 14of $163.00 per month plus costs for a total of $171.15. Mr. and Mrs. Pineyro disagreed with these recommendations and a disagreement hearing was set

On October 6, 2008, a hearing was held before the juvenile court judge. Mrs. Pi-neyro explained that they adopted four children, one that is in a wheelchair and one with AIDS. She testified that D.P. is in a state facility. The trial court stated that she was deviating from the guidelines based on the special circumstances and ordered that Mr. Pineyro pay $25.00 per month support and Mrs. Pineyro pay $25.00 per month support. The court again reiterated that she deviated from the guidelines “based on the special needs children that are in the home.” This timely appeal followed.

LAW AND DISCUSSION

The Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. La. R.S. 9:315, et seq. The guidelines are to be used in any proceeding to establish or modify child support. La. R.S. 9:315.1(A). There is a rebuttable presumption that the amount of child support obtained by use of the guidelines is the proper amount of child support. La. R.S. 9:315.1(A). However, the trial court may deviate from the guidelines if it finds that application of the guidelines would not be in the child’s best interest or would be inequitable to the parties. La. R.S. 9:315.1(B). This statute mandates that the trial court give specific oral or written reasons for a deviation and include specific findings as to the amount of support that would have been required under a mechanical application of the guidelines and as to the particular facts and circumstances that warranted the deviation. Id. This information is required to be made part of the record of the proceedings. Id.

| ^Deviations from the guidelines shall not be disturbed absent a finding of manifest error. La. R.S. 9:315.17. However, the record must include oral or written reasons that support the deviation and that are based on the record. Aydelott v. Aydelott, 42,161 (La.App. 2 Cir. 5/9/07), 957 So.2d 350. If the trial court fails to follow the mandatory procedure for deviation set forth in La. R.S. 9:315.1, it is legal error and precludes review of the deviation under the manifest error standard of review. Id.

In the case at bar, the trial court’s judgment ordering the parties to each pay $25 per month in child support for their son is a clear deviation from the guidelines. In making this child support determination, the trial court explained only that she deviated from the guidelines “based on the special needs children that are in the home.” The trial court failed to follow the mandates of La. R.S. 9:315.1 in determining the amount of support. Specifically, the trial court failed to calculate the child support due under the guidelines, to give specific reasons for the deviation taking into account the income and expenses of the parties including those of the special needs children, and to state the particular facts and circumstances that warranted the deviation. The trial court’s failure to follow the applicable law in determining child support in this matter is legal error.

Further, La. R.S. 9:315.14 provides that in no event shall the court set an award of child support less than one hundred dollars, except in cases of shared or split custody pursuant to La. R.S. 9:315.9 and 315.10. While it is clear that the child is in the custody of OCS, the circumstances in the case at bar do not fall under shared or split custody pursuant to these statutes.

We note that apparently, the trial court took into consideration La. R.S. 9:315.1(0(8) which allows the court to look at any other consideration which would make application of the guidelines inequitable to the parties. However, the | ^record contained no specific testimony regarding the care required by the handicapped children including whether they attend school and whether Mrs. Pineyro has any assistance in caring for them. While we acknowledge that it may be inequitable to order a mother who is voluntarily unemployed because she is caring for handicapped children to pay child support for a child in the custody of the state, we must follow the laws as they were enacted by the legislature. The record in this matter does not contain enough information to support the trial court’s ruling. CONCLUSION

For the foregoing reasons, the judgment of the trial court is vacated. This matter is remanded for further proceedings consistent with this opinion.

JUDGMENT VACATED; REMANDED.

      . Although not relevant to our disposition, we find error in this calculation based on the stated income of the parties and the application of LSA-R.S. 9:315.19


author: MARION F. EDWARDS, Judge.

text:
    Jodie MATEU, wife of/and Luis M. Mateu, Jr. and as Administrator for the Estate of his Minor Child, Blake Mateu v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and St. Paul Travelers Insurance Company, Progressive Security Insurance Company, and Macimino B. Diaz.
    No. 08-CA-1208.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.

      Leonard J. Cline, Jr., Attorney at Law, Metairie, LA, for Plaintiffs/Appellants.
    Darren M. Guillot, Matthew A. Ehrlich-er, Maride & Associates, Mandeville, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and MADELINE JASMINE, Pro Tempore.
   MARION F. EDWARDS, Judge.

| gPIaintiffs/appellants, Jodie Mateu, wife of/and Luis M. Mateu Jr. (“Mateu”), appeal a summary judgment in favor of defendant/appellee, Travelers Property Casualty Company of America (“Travelers”), dismissing their claims with prejudice.

Mateu filed suit for damages suffered as the result of a collision with a vehicle owned and operated by defendant/appel-lee, Macimino B. Diaz (“Diaz”). Made defendants were Diaz, Progressive Security Insurance Company (as the insurer of Diaz), along with State Farm Mutual Automobile Insurance Company (Mateu’s insurer), and Travelers as uninsured/underin-sured motorist carriers. At the time of the accident, Mateu was operating his own vehicle in the course and scope of his employment with Allfax Specialties Incorporated. Travelers was the automobile liability insurer of Allfax.

| ..¡Travelers filed a Motion for Summary-Judgment, urging that its policy did not provide uninsured motorist (“UM”) coverage for Mateu.

Mateu repaired and maintained copy machines and faxes for Allfax and averred that he was paid for his mileage and travel time. He argued that he was required to use his personal vehicle for business activities, and that he regularly did so. At the hearing on the motion, Mateu’s counsel stated that Allfax had told Mateu that he had full coverage while using it during business hours. Counsel also argued there was an “agreement” with Allfax to lease Mateu’s vehicle for work purposes.

In granting summary judgment, the trial court found that, in the case of a lessor, the insurance policy requires an agreement to provide direct primary insurance for the lessor that was not present in the case.

Interpretation of an insurance policy usually involves a legal question which can be resolved properly in the framework of a motion for summary judgment. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Under the rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer.

That strict construction principle, however, is subject to exceptions.... One of these exceptions is that the strict construction rule applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations.... For the rule of strict construction to apply, the insurance policy must be not only susceptible |4to two or more interpretations, but each of the alternative interpretations must be reasonable....

While the insurer has the burden of proof of showing policy limits or exclusions, it is the insured who bears the burden of proving the existence of the policy and coverage. When determining whether or not a policy affords coverage for an incident, it is the burden of the insured to prove the incident falls within the policy’s terms.

The policy was introduced into the record on the Motion for Summary Judgment. The Declarations page indicates by a “Covered Auto Symbol” that UM coverage only applied to those autos designated as “2.” The covered auto designation symbols were later described, in pertinent part: “2=OWNED ‘AUTOS’ ONLY. Only those ‘autos’ you own (and for Liability Coverage any ‘trailers’ you don’t own while attached to power units you own.) This includes those ‘autos’ you acquire ownership of after the policy begins.”

Mateu’s vehicle was not owned by Allfax nor is it listed in the schedule of covered autos.

The UM endorsement to the policy contains the following clause:

BUSINESS AUTO COVERAGE FORM

B. Who Is An Insured
1. You.
2. If you'are an individual, any “family member.”
3. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto.” The covered “auto” must be out of service because of its breakdown, repair, servicing, loss or destruction.
4. Anyone for damages he or she is entitled to recover because of “bodily injur/’ sustained by another “insured”.
|R5. Anyone else “occupying” an “auto” you do not own and that is a covered “auto” under this coverage part for Liability Insurance and is licensed or principally garaged in Louisiana.

Mateu argues that he was an insured under Section B5 because he was occupying a vehicle, not owned by his employer that was a “covered” auto under the liability portion of the policy which defines “covered auto” as “any auto.”

In an earlier case, in construing UM policy language identical to the one at issue here, the Louisiana Supreme Court concluded that there was only one reasonable interpretation of “covered autos” in Section B5 and that is “specifically described autos.” According to the policy, Mateu’s vehicle is not included in such designation. Further, as in Carrier, the UM endorsement contains the following exclusion: “C(4) ‘Bodily injury’ sustained by an ‘insured’ while ‘occupying’ or struck by any vehicle owned by that ‘insured’ that is not a covered ‘auto.’ ”

Thus, even if Mateu qualified as an insured under B(5), under the facts of this case, the exclusion applies to him. Further, the Court stated in Carrier:

[A]n interpretation of Section B5 to include, in the definition of an insured for UM coverage, any person (other than the named insured) occupying “any auto” (as “covered auto” is indicated in the liability section of the policy) is not a reasonable interpretation. It simply is not reasonable to ascribe to the contracting parties an intention to provide UM insurance worldwide to any person occupying any auto. Although it would be reasonable ... to limit UM coverage to employees driving their own vehicles in the scope of employment, the literal language of Section B5 ... does not do so and therefore leads to unreasonable and even absurd consequences.

As to Mateu’s argument that he had a “lease agreement” with Allfax, absolutely no evidence of any such agreement was offered at the hearing on the motion. Summary judgment cannot be defeated by mere argument. Argument of |ficounsel and briefs, no matter how artful, are not sufficient to raise a genuine issue of material fact. A non-moving party must produce some evidence other than unsupported denials in the pleadings or argument of counsel in order to defeat a motion for summary judgment which is supported with evidence. Therefore, this issue need be addressed no further.

For the foregoing reasons, on de novo review, we conclude that Reliance was entitled to summary judgment as a matter of law. The judgment of the district court is affirmed.

AFFIRMED.

      . Huggins v. Gerty Lane Enter., Inc., 06-2816 (La.5/22/07), 957 So.2d 127, 129 (quoting Bonin v. Westport Ins. Corp., 05-886 (La.5/17/06), 930 So.2d 906, 910-11).

      . Id.

      . Id.

      . Sauer v. Nat’l Car Rental System, Inc., 07-844 (La.App. 5 Cir. 4/15/08), 980 So.2d 898, writ denied, 08-1235 (La.9/19/08), 992 So.2d 935.

      . Id.

      . Carrier v. Reliance Ins. Co., 99-2573 (La.4/11/00), 759 So.2d 37.

      . Id. at 44.

      . Haney v. Davis, 04-1716 (La.App. 4 Cir. 1/19/06), 925 So.2d 591, writ denied, 06-0413 (La.4/28/06) 927 So.2d 293.

        . Tippett v. Padre Refining Co., 34, 140 (La.App. 2 Cir. 11/15/00), 771 So.2d 300, writ denied, 00-3443 (La.4/12/01), 789 So.2d 589. Also see, Cox Cable New Orleans, Inc. v. City of New Orleans, 94-2102 (La.App. 4 Cir. 11/16/95), 664 So.2d 742, on reh’g in part, writ denied, 96-0203 (La.02/28/96), 668 So.2d 364, writ denied, 95-3032 (La.02/28/96), 668 So.2d 365.


author: SUSAN M. CHEHARDY, Judge.

text:
    Melkys HERNANDEZ, wife of/and Arturo Santos v. BARATARIA PARK, L.L.C. & The Parish of Jefferson.
    No. 08-CA-791.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.

      Brian F. Guillot, Attorney at Law, Me-tairie, LA, for Plaintiffs/Appellants, Melk-ys Hernandez, wife of/and Arturo Santos.
    Daniel A. Ranson, Steven D. Oliver Gau-dry, Ranson, Higgins & Gremillion, L.L.C., Attorneys at Law, Gretna, LA, for Defendants/Appellees, Barataría Park, L.L.C. and the Parish of Jefferson.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

| ¡This is a dispute over whether a servitude over the plaintiffs’ land properly became dedicated to public use. The plaintiffs assert the defendant landowner wrongfully converted its servitude of access over the plaintiffs’ land to public use by act of dedication to the Parish of Jefferson. The plaintiffs appeal a summary judgment that dismissed their suit for damages for the taking of their property without just compensation. We affirm.

Melkys Hernandez, wife of/and Arturo Santos filed suit on January 3, 2008, against Barataría Park, L.L.C. and the Parish of Jefferson. The plaintiffs alleged they are owners of Lot G-302A, Ames Farms Subdivision, Parish of Jefferson. They purchased Lot G-302A on August 29, 2002, subject to several servitudes referenced in the property’s legal description, including a fifty-foot access and utility servitude in favor of Lot G-302B. Lot G-302B is located behind the plaintiffs’ lot and is an enclosed lot. An ancestor-in-title to the plaintiffs created the servitude in 2001 in an act of resubdivision of the original Lot 302.

The current owner of Lot G-302B, Bara-taría Park, L.L.C., formally dedicated the lot’s servitude over Lot G-302A to the Parish of Jefferson by notarial act in October 2007. The dedication was accepted by the parish council in Resolution No. 108744, adopted on September 19, 2007. In November 2007 | .^Barataría Park began construction of a paved road on the fifty-foot servitude, which the plaintiffs allege effectively converted their land subject to the servitude into a public street for public use.

The plaintiffs alleged the defendants violated their right of due process by failing to give them prior notice of the dedication of the servitude. They further asserted “the servitude as created represented a private use of access to the owner of LOT G-302A [sic]” and did not constitute an access servitude for the general public, so that the plaintiffs’ property was converted from private use to public use without just compensation, in a tortious interference with the use of the remainder of the plaintiffs’ property.

In answer the defendants asserted the servitude was dedicated to public use prior to the plaintiffs’ acquisition of the property and the plaintiffs purchased the property subject to the servitude. The defendants alleged the plaintiffs were charged by law with knowledge that the property was subject to a fifty-foot public access and utility servitude at the time they acquired the property, and they had actual knowledge of it.

Further, the defendants asserted that the dedication of the servitude and the parish council’s resolution authorizing the dedication were consistent with and in furtherance of the prior dedication of the servitude to public use. The defendants denied that the dedication of the servitude violated the plaintiffs’ right to due process or any other constitutional rights of the plaintiffs. The defendants also asserted that the plaintiffs have sustained no loss of use of any portion of their property as a result of the dedication of the servitude, and that the defendants at all times have used the servitude pursuant to and in compliance with all applicable laws and regulations, and it has not interfered with the plaintiffs’ use of the remainder of the property in any fashion.

|4The defendants filed a motion for summary judgment, attaching' copies of the following documents:

1.Jefferson Parish Council Ordinance No. 21257, approving the resubdivision plan of Tildón J. Dufrene, Jr., dated January 11, 2001, together with the subdivision plan, recorded as Instrument No. 10124989, COB 3052, Folio 385, which stated in pertinent part, “the 50 foot access servitude as shown on said plan is also designated as a utility servitude to allow any private utility access to Lot G-302B,” and “the applicant agrees that no building permit for the development of Lot G-302B will be issued until such time as a hard surfaced roadway is constructed to parish standards for access to lot G-302B.” The attached survey plat shows “50' ACCESS & UTILITY SERVITUDE FOR LOT G-302B” running from the front of Lot G-302A at Barataría Boulevard parallel with and next to the properties’ sideline.
2. Cash Sale by Fairlands Development, Ltd. and Daniel L. Morrow to Thanh-Van Leho, recorded as Instrument No. 10133757, COB 3054, Folio 869, dated June 21, 2001, which states in pertinent part, “Without intention to interrupt or revive the prescription thereof or recognize the validity thereon, the parties hereto take cognizance of the following: 1) Fifty (50’) foot access and utility servitude for Lot G-302B.”
3. Cash Sale by Than-Van Leho to Melkys Hernandez, wife of, and Arturo Santos, recorded as Instrument No. 10253283, COB 3082, Folio 863, dated August 29, 2002, which contains a clause stating, “Without intention to interrupt or revive prescription thereon or recognize the validity thereof, the parties hereto take cognizance of the following: (1) Fifty (50’) foot access and utility servitude for Lot G-302B as shown on Rsurvey of Dufrene Surveying & Engineering, Inc., dated January 11, 2001.”
4. Dedication of Servitude by Barataría Park, L.L.C. to Parish of Jefferson, passed by Barataría Park on October 21, 2007, and accepted by the Parish on November 5, 2007, registered as Instrument No. 10768110, COB 3206, Page 529, dedicated the grantor’s interest in and to the following:
The 50 foot wide southernmost portion of LOT G-302A, AMES FARMS SUBDIVISION. All as marked “50' ALAMEDA PARK R.O.W. TO BE DEDICATED TO JEFFERSON PARISH” on a plan by Krebs, La-Salle, LeMieux Consultants, Inc., dated January 10, 2007, a copy of which is annexed hereto and made a part hereof. Being the same servitude granted in favor of Lot G-302B, Ames Farms Subdivision (now Barataría Park Subdivision), per plan by Du-frene Surveying & Engineering, Inc., dated January 11, 2001, approved by Ordinance 21257, registered at COB 3052, folio 385, Entry # 10124989.

In their memorandum in support of the motion for summary judgment, the defendants stated that the servitude in question affords the sole means of access to a public right-of-way, Barataría Boulevard, for the property lying behind and to the east of the plaintiffs’ property, owned by defendant Barataría Park, L.L.C.

After the motion for summary judgment was filed but before it was heard, the plaintiffs filed an amending and supplemental petition in which they asserted that on September 23, 2004, they purchased Lot G-301, Ames Farms Subdivision, the sideline of which bordered the sidelines of Lot G-302A and Lot G-302B, and that the act of sale of Lot G-301 does not refer to the servitude in favor of Lot G-302B burdening Lot G-302A. The plaintiffs alleged that by an ordinance dated June 4, 2004, defendant Barataría Park, L.L.C. re-subdivided Lot G-301 and Lot G-302B into Lots 1-96, Parcels G-301A, Parcels X and Y, and Parcel Z. The | ^plaintiffs asserted that the re-subdivision “destroyed the dominant estate, G-302B and terminated the servitude as created of access across petitioners LOT G-302A.” They complained,

[T]he re-subdivision gives more extensive use of the servitude by allowing those re-subdivided Lots, which comprised former Lot 301, use of the access servitude for the general public, for which the dominant estate did not obtain this more extensive use by acquisitive title as required under La.C.C. art. 760....

The plaintiffs alleged further that the re-subdivision of the property “has novat-ed the obligation due from the servient estate, petitioner’s Lot 302A,” without its consent, “thereby negating and terminating the access servitude originally in favor of former Lot 302B.”

After a hearing the district court granted summary judgment, stating in the judgment, “the plan of resubdivision recorded in the records for the Parish of Jefferson at COB 3052, Folio 385 created a dedication of the fifty foot servitude shown thereon.” The plaintiffs appeal. They make two assignments, the first concerning dedication to public use, the second.concerning extinguishment of the servitude.

DEDICATION TO PUBLIC USE

The plaintiffs first assert the trial court erred in finding there was no genuine issue of fact that the designated plan of resubdivision created a public dedication of the fifty-foot servitude.

Louisiana courts have recognized four modes of dedication: formal, statutory, implied, and tacit. St. Charles Parish School Bd. v. P & L Inv. Corp,, 95-2571 (La.5/21/96), 674 So.2d 218, 221. The defendants do not argue that either formal or tacit dedication applies; hence, we discuss only statutory or implied dedication.

|7Statutory dedication occurs when a landowner subdivides real estate in accordance with the requirements of La. R.S. 33:5051. In order to effect a statutory dedication, complete and detailed compliance with the statute is not required; substantial compliance will suffice. La.R.S. 33:5051 provides for the subdivision of real estate into squares or lots with named streets and for the dedication to public use of all streets, alleys, and public squares on the map. A statutory dedication vests ownership in the public unless the subdivider reserves ownership of streets and public places and grants the public only a servitude of use.
Implied dedication is a common law doctrine recognized by the courts of this state. A dedication by implication consists of the assent of the owner, [and] use by the public.... Because implied dedication lacks the formalities and safeguards of formal or statutory dedication, courts have required “a plain and positive intention to give and one equally plain to accept.” Courts have also found an implied dedication when the owner of a tract of land subdivides it into lots, designates streets or roads on a map, and then sells the property or any portion of it with reference to the map. An implied dedication establishes a servitude of public use. [Citations omitted.]

Id., 674 So.2d at 221-222.

The plaintiffs contend there are issues as to whether the servitude created by the Fairlands Development/Daniel L. Morrow act of re-subdivision of original Lot 302, Ames Farms Subdivision, approved by Ordinance No. 21257 of the Jefferson Parish Council, adopted on April 25, 2001, effective May 11, 2001, registered at COB 3052, folio 385, was a statutory dedication under La.R.S. 33:5051.

La.R.S. 33:5051 provides in pertinent part:

|SA. Whenever the owner of any real estate desires to lay off the same into squares or lots with streets or alleys between the squares or lots and with the intention of selling or offering for sale any of the squares or lots, he shall, before selling any square or lot or any portion of same:
(1) Cause the real estate to be surveyed and platted or subdivided by a licensed land surveyor into lots or blocks, or both, each designated by number.
* * :|:
B. The map referenced in Subsection A of this Section shall contain the following:
(3) The designation of each lot or subdivision of a square and its dimensions in feet, feet and inches, or meters.
(4) The name of each street and alley and its length and width in feet, feet and inches, or meters.
(7) A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys, and public squares or plats shown on the map to public use.
C. Formal dedication of property as a road, street, alley, or cul-de-sac shall impose no responsibility on the political subdivision in which the property is located until:
(1) The dedication is formally and specifically accepted by the political subdivision through a written certification that the road, street, alley, or cul-de-sac is in compliance with all standards applicable to construction set forth in ordinances, regulations, and policies of the political subdivision, which certification may be made directly on the map which contains the dedication....

The plaintiffs assert that nothing in the language of the 2001 ordinance, either directly or impliedly, dedicates the access servitude to public use pursuant to La.R.S. 33:5051: there is no designation of lots or subdivisions of squares, nor naming of streets and alleys; there is no street name, alleyway or driveways designated for public use. Further, the ordinance clause regarding a hard-surfaced roadway does not refer to a hard-surface roadway for public use, nor does the |nordinance refer to any multiple residential development. There is nothing that would cause the buyer to assume the access servitude would one day be dedicated to public use.

Finally, the plaintiffs point out that at the time Barataría Park enacted its formal dedication of the servitude to the parish, the plaintiffs were the owners of the lot burdened with the servitude, and under La.R.S. 33:5051(A) it is the owner of the real estate who must dedicate the property to public use.

Similarly, the plaintiffs contend the defendants have not met their burden of proof that there was an implied dedication of the access servitude to public use by the ordinance. They argue is no language in the original 2001 ordinance nor in the survey of the Fairfield subdivision that demonstrates the access servitude would be dedicated to the public. The 2001 ordinance only provides that no building permits will be issued until there is a hard surface roadway; it does not manifest an intent to make the roadway a public roadway.

In opposition, the defendants contend that the recordation of the plan of subdivision and ordinance created a statutory dedication of the servitude and, alternatively, that the dedication meets the requirements of an implied dedication under Louisiana law. They assert the dedication took place prior to the plaintiffs’ acquisition of the subject property and does not amount to an unconstitutional taking of their property.

We find that summary judgment was properly granted. The January 11, 2001 resubdivision plan, approved by the parish council in Ordinance No. 21257, and its accompanying documents, were executed prior to the plaintiffs’ purchase of the property and were sufficient to constitute a statutory dedication of the servitude to public use. Further, the evidence offered in support of the motion for summary judgment was sufficient to establish an implied dedication prior to plaintiffs’ hnpurchase of the land, by establishing the combination of “an unequivocally manifested intent to dedicate on the part of the owner and an equally clear intent to accept on the part of the public.” Cenac v. Public Access Water Rights Ass’n, 2002-2660, p. 6 (La.6/27/03), 851 So.2d 1006, 1011.

EXTINGUISHMENT OF SERVITUDE

The plaintiffs’ second assignment of error is that the trial court erred in holding there is no genuine issue of fact that the fifty-foot servitude created by the re-subdivision was not extinguished by the legal destruction of Lot G-302B.

The plaintiffs assert that the access servitude is a predial servitude of right of passage which, pursuant to La.C.C. art. 646, acts as a charge on the servient estate (Lot G-302A) in favor of the dominant estate (Lot G-302B). A servitude of passage is designed to provide an estate which has no access to a public road with such access. La.C.C. art. 689.

The plaintiffs contend the 2004 resubdi-vision of Lot G-301 and Lot G-302B legally and physically destroyed the dominant estate, Lot G-302B, and terminated the servitude of access across the servient estate, Lot G-302A, pursuant to La.C.C. art. 751. Further, they argue the resubdivision gives more extensive use of the servitude by allowing those resubdivided lots that comprised the former Lot G-301 use of the servitude for the general public, for which the dominant estate did not obtain this more extensive use by acquisitive title, as required by La.C.C. art. 760. In addition, they assert that defendant Barataría Park had full access to Barataría Boulevard as the owner of Lot G-301 for Lot G-302B prior to the resubdivision, but chose to resubdivide and then to sell the front portion of former Lot G-301, thereby voluntarily enclosing the remainder of Lot G-301.

The defendants argue the Civil Code articles concerning private servitudes do not govern public servitudes.

lnWe decline to rule on this assignment. The trial court made no ruling on it, and our affirmance of the summary judgment on dedication of the servitude concludes the case.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . We omit from the quotation language regarding public maintenance as being required evidence of implied dedication; in a later case the supreme court expressly disapproved of public maintenance ás being an element of implied dedication:
      The jurisprudence suggesting that maintenance by the municipality is required before an implied dedication can be made is an aberration in our law.... [A]ll that has traditionally been required for an implied dedication is an unequivocally manifested intent to dedicate on the part of the owner and an equally clear intent to accept on the part of the public. While maintenance by the municipality might be a factor in determining whether an implied dedication has in fact been made, it is not required. Any language in our prior cases suggesting such a requirement is erroneous and hereby repudiated.

        Cenac v. Public Access Water Rights Ass’n, 2002-2660, p. 7 (La.6/27/03), 851 So.2d 1006, 1012.


author: CLARENCE E. McMANUS, Judge.

text:
    Dana Naccari FLORIDI v. Gregory P. FLORIDI.
    No. 08-CA-1306.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.

      H. Craig Cabral, Attorney at Law, Me-tairie, LA, for Plaintiff-Appellant.
    Michael A. Rosenblatt, Attorney at Law, New Orleans, LA, for Defendant-Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKS HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

12PIaintiff, Dana Naccari Floridi, was found in contempt of court by judgment rendered on December 5, 2007. She filed a motion for new trial from that judgment, which was denied on June 2, 2008. Plaintiff now appeals from the judgment denying her a new trial. For the reasons that follow, we reverse the decision of the trial court and remand for further proceedings.

The parties were divorced by judgment rendered on January 9, 2007. The community property had yet to be partitioned at the time of this appeal, and included rental property under the administration of plaintiff, Ms. Floridi. The parties each filed motions for contempt, which were ultimately heard on October 30 and November 8, 2007.

At the contempt hearing on October 30, 2007, Ms. Floridi’s counsel indicated that he wanted to call the hearing officer as a witness but the hearing officer was unavailable. The court stated that it would leave the matter open for the taking of that evidence, and also for closing arguments, scheduled for November 8, 2007.

|3At some time immediately prior to the November 8th hearing, it was determined that the hearing officer could not testify. On November 8th, Mr. Floridi appeared in court with newly enrolled counsel. Mr. Floridi’s original counsel remained of record but was unavailable on that date. Neither Ms. Floridi (whose presence had been waived at the prior hearing) nor her counsel was present. The trial court allowed Mr. Floridi to testify, despite the absence of Ms. Floridi and her counsel. On December 5, 2007, the trial court rendered judgment, finding Ms. Floridi to be in contempt of court, and ordering her to pay one-half of the rentals generated, to pay the mortgage on the rental units and the line of credit on the family home, and to immediately return monies taken from the line of credit account. The judgment further assessed Ms. Floridi with reasonable attorney’s fees and costs. The judgment also denied Ms. Floridi’s rule for contempt filed against Mr. Floridi.

On December 17, 2007, Ms. Floridi filed a motion for new trial. During the pen-dency of the motion, on February 28, 2008, Mr. Floridi filed a rule for contempt, alleging that Ms. Floridi had failed to comply with the orders of the December 5, 2007 judgment.

Ms. Floridi’s motion for new trial and Mr. Floridi’s rule for contempt were heard on May 2, 2008. On June 2, 2008, the trial court rendered judgment, denying Ms. Floridi’s motion for new trial and granting Mr. Floridi’s rule, finding Ms. Floridi to be in contempt for failure to comply with the December 5, 2007 judgment. Ms. Floridi has appealed from that judgment.

In this appeal, Ms. Floridi alleges that the trial court erred in allowing defendant to re-open his case and present testimony, and that the trial court erred in denying her motion for new trial.

14A discretionary basis for a new trial is set forth in La. C.C.P. art.1973, which authorizes the trial court to grant a new trial in any case in which there are good grounds for it. Jackson v. Home Depot, Inc., 906 So.2d 721, 2004-1653 (La.App. 1 Cir. 6/10/05). An appellate court has the authority to determine whether a trial judge abused his discretion in not granting a new trial. Ziifle v. Brae Asset Fund, L.P., 08-646 (La.App. 5 Cir. 1/13/09), 8 So.3d 15.

It appears that, at the very least, there was some miscommunication between the court, the respective parties, and their attorneys, and that as a result of that miscommunication, Ms. Floridi’s attorney was not present at the hearing. The trial court however allowed Mr. Flori-di to testify, even though plaintiffs attorney was not present to cross-examine the witness. The record supports a determination that the failure of Ms. Floridi’s attorney to appear was a result of such miscommunication. In such a circumstance, the trial court erred in allowing Mr. Floridi to testify at the November 8th hearing, and in failing to grant a new trial. Compare Cashback, Inc. v. Herring, 27805 (La.App. 2 Cir. 2/28/96), 669 So.2d 693.

Mr. Floridi, in brief, challenges the timeliness of the motion for new trial. The record shows that judgment was rendered on December 5, 2007, and that notice of the judgment was issued on December 6, 2007. The delays for new trial began to run on December 7, 2007. Excluding legal holidays, in this case Saturdays and Sundays , Ms. Floridi’s motion for new trial, filed on December 17, 2007, was timely. LSA-C.C.P. art. 1974.

For the above discussed reasons, trial court’s judgment of June 2, 2008, denying plaintiffs motion for new trial and holding her in contempt for failure to | ^comply with the December 5th judgment that was the subject of the motion for new trial, is reversed and the matter is remanded for further proceedings. Costs are assessed against appellee.

REVERSED AND REMANDED.

      . In Cashback, Inc., supra, the appellate court found reversible error in the trial judge’s denial of a motion for new trial. In that case, there was a miscommunication as to whether an extension of time to file an answer had been granted. As a result, defense attorney failed to file an answer and a default judgment was taken against him.

      . See LSA-R.S. 1:55; Consolidated Marketing, Inc. v. Busi, 256 So.2d 695 (La.App. 2 Cir. 1972).