text:
    David MOORE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D13-882.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.

      David Moore, Jr., Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

David Moore, Jr. appeals the trial court’s orders dismissing his petition for writ of habeas corpus and striking his motion for rehearing. We reverse and remand with instructions.

In 2012, Moore filed the instant petition for writ of habeas corpus, challenging the detainer placed on him by the Martin County Sheriffs Office. Moore alleged in his petition that on April 17, 1995, while he was in jail awaiting trial on charges in connection with a May 1994 escape attempt, he was found in contempt of court. As punishment for the contempt, Moore was sentenced to serve 179 days in the county jail, to be served consecutively to any active sentence. Moore alleges that at the time, he had no active sentences. The Martin County Sheriffs Office filed a detainer on Moore with the Department of Corrections (“DOC”) regarding the contempt sentence. Moore remained in county jail pending trial for more than 179 days after the contempt sentence was imposed. Then, on February 8, 1996, following a jury trial on his pending escape charges, Moore was found guilty of escape and two other charges. He was sentenced to thirty years as a habitual felony offender for the escape charge, and to time served on the other two charges.

In the habeas petition, Moore incorrectly named the State as the respondent. Contending that he was not serving an active sentence at the time the contempt sentence was imposed, he argued that it was illegal to run the contempt sentence consecutively to any sentence he might receive in the future, citing to Jarrett v. State, 665 So.2d 381 (Fla. 5th DCA 1995) (finding sentence for contempt to be illegal because “it [wa]s error to direct that a sentence commence at the conclusion of a future sentence yet to be announced”). He further argued that because he spent more than 179 days in jail after the contempt sentence was imposed and prior to the sentencing on the escape and other two charges, his contempt sentence was fully served prior to being sentenced on the other charges; therefore, the detainer was unlawful. Moore cited Kerklin v. Godwin, 747 So.2d 956 (Fla. 2d DCA 1999), for the proposition that a habeas petition is a proper way to challenge a detainer.

The trial court dismissed the habeas petition, stating it did not have jurisdiction to force DOC to correctly apply Moore’s sentence. Moore filed a timely sworn motion for rehearing, explaining that he was seeking to have the court that imposed the contempt sentence issue an order stating that the sentence was served in full and quashing the detainer. The trial court struck the motion for rehearing, concluding that it lacked jurisdiction to address the motion because Moore had filed a notice of appeal, therefore abandoning his motion for rehearing. This appeal followed.

We agree with the State that because Moore did not allege he was entitled to immediate release, he should have sought relief by filing a petition for writ of mandamus; furthermore, he should have named the Martin County Sheriffs Office as the proper party respondent. See Perkins v. State, 766 So.2d 1173, 1175 (Fla. 5th DCA 2000) (“Since [the defendant] ... alleged that he [wa]s entitled ... to removal of the detainer, his remedy, if any is proper, would appear to be mandamus ... filed in the circuit court having jurisdiction over the person who had lodged the de-tainer.”). We reverse the dismissal and remand for the trial court to treat the habeas petition as a petition for writ of mandamus. However, since Moore named the State as the respondent in his habeas petition, the sheriffs office had no opportunity to respond. Because his petition sufficiently alleged that the Martin County Sheriffs Office placed the detainer, on remand, the trial court is directed to issue an order to show cause to both the State and the sheriffs office as to why the petition should not be granted. See Jenkins v. State, 957 So.2d 20, 22-23 (Fla. 5th DCA 2007).

Reversed and Remanded with instructions.

STEVENSON, GERBER and CONNER, JJ., concur.

      . "A detainer ... ‘is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent.' ” Gethers v. State, 838 So.2d 504, 507 (Fla.2003) (quoting Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985)).


source: Caselaw Access Project

author: SLEET, Judge.

license: Public Domain

text:
    FERGUSON ENTERPRISES, INC., a Virginia corporation, d/b/a Ferguson Heating & Cooling, f/k/a Gulf Refrigeration Supply, Inc., Appellant, v. ASTRO AIR CONDITIONING AND HEATING, INCORPORATED, a Florida corporation; Frank Hegedus, individually; Jo Ann Hegedus, individually; and Hegedus Family Limited Partnership, a Florida limited partnership, Appellees.
    No. 2D13-2447.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.

      M. David Linton and Tyler J. Caron of Thompson & Brooks, Tampa, for Appellant.
    Edward William Collins of the Law Office of William Collins, P.A., Tampa, for Appellees.
   SLEET, Judge.

Ferguson Enterprises, Inc., appeals the order dismissing counts V and VI of its second amended complaint with prejudice. Ferguson argues that the circuit court looked beyond the four corners of its complaint when it dismissed Ferguson’s claims under the authority of New Holland, Inc. v. Trunk, 579 So.2d 215 (Fla. 5th DCA 1991). We agree.

On February 9, 2006, Gulf Refrigeration Supply, Inc., entered into an arrangement with Astro Air Conditioning and Heating, Inc., whereby Gulf agreed to sell goods and materials to Astro on credit. At that time, Frank Hegedus and Jo Ann Hegedus signed a personal guaranty on behalf of Astro. Gulf merged with Ferguson on December 31, 2006, and Ferguson assumed Gulfs duties under the agreement.

Ultimately, Astro defaulted on its obligations, and Ferguson brought suit seeking to recover from Astro and the Hegeduses pursuant to the guaranty. Specifically, in counts V and VI Ferguson alleged claims against the Hegedus-es as guarantors for breach of the personal guaranty and fraudulent transfer, respectively. The circuit court dismissed both counts after determining that the guaranty was a “special guaranty” assigned to Ferguson and therefore unenforceable against the Hegeduses by Ferguson. See New Holland, 579 So.2d at 219.

We review the dismissal of a complaint with prejudice de novo. B & C Investors, Inc. v. Vojack, 79 So.3d 42, 46 (Fla. 2d DCA 2011). “[0]n a motion to dismiss for failure to state a cause of action, the circuit court may look only within the four corners of the complaint, must accept the plaintiffs allegations as true, and must resolve all inferences in the plaintiffs favor.” Id. at 45-46 (quoting Wilson v. News-Press Publ’g Co., 738 So.2d 1000,1001 (Fla. 2d DCA 1999)). “To state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.” Havens v. Coast Fla., P.A., 117 So.3d 1179, 1181 (Fla. 2d DCA 2013) (citing Fla. R. Civ. P. 1.110(b)).

The complaint- specifically alleged that Ferguson is the surviving corporation of a merger with Gulf and that it acquired “all rights, claims[,] and property” of Gulf thereby. See § 607.1106(1), Fla. Stat. (2006). Ferguson attached to the complaint a copy of the guaranty, the articles of merger, its corporate documents, and bills reflecting the debt owed by Astro.

The elements of a breach of contract cause of action are: (1) a valid contract, (2) a material breach, and (3) damages. Havens, 117 So.3d at 1181. In count V, Ferguson alleged that the Hege-duses personally guaranteed repayment of Astro’s debt, that the Hegeduses breached the guaranty by refusing to pay that debt, and that Astro and the Hegeduses owed Ferguson more than $90,000. The allegations in count V were sufficient to state a cause of action for breach of the guaranty.

In count VI, Ferguson alleged that it was a creditor of the Hegeduses prior to their transfer of property into a partnership and that the transfer was made in order to “hinder, delay, or defraud Ferguson ... [and made] [w]ithout receiving a reasonably equivalent value in exchange.” The complaint tracked the language of sections 726.105 and 726.106, Florida Statutes (2012). This was sufficient to state a claim of fraudulent transfer. See, e.g., Rodriguez v. Nieves, 75 So.3d 339, 340 (Fla. 3d DCA 2011).

The circuit court improperly looked beyond the four corners of the complaint when it dismissed counts V and VI under New Holland, 579 So.2d 215. “[A] motion to dismiss for failure to state a cause of action is not a substitute for a motion for summary judgment, and in ruling on such a motion, the trial court is confined to a consideration of the allegations found within the four corners of the complaint.” Meadows Cmty. Ass’n v. Russel-Tutty, 928 So.2d 1276, 1280 (Fla. 2d DCA 2006) (quoting Consuegra v. Lloyd’s Underwriters at London, 801 So.2d 111, 112 (Fla. 2d DCA 2001)). As we explained in Meadows, “[t]he availability of a remedy ... is reached after, not before, the determination of a plaintiffs rights.” Meadows, 928 So.2d at 1280 (holding that the existence of “case law that would not have supported the granting of the relief sought” was beyond the four corners of the complaint and thus not appropriately considered on a motion to dismiss).

Furthermore, New Holland is distinguishable. In New Holland, the Fifth District held that:

The assignee of a special guaranty cannot enforce the special guaranty as to debt the assignee has created by extending credit to the debtor. An assignee of debt and of a special guaranty relating thereto can enforce the guaranty as to debt resulting from credit extended by the original creditor to the debtor, whether or not that assigned debt is due or past due at the time of the assignment.

New Holland, 579 So.2d at 219. The record supports Ferguson’s assertion that it acquired rights under the guaranty as a surviving corporation to a merger with Gulf. Under section 607.1106(l)(b), the surviving corporation retains the interests of the merging corporations. Nelson v. Ameriquest Techs., Inc., 789 So.2d 161,164 (Fla. 3d DCA 1999). Therefore, Ferguson is not an assignee and is not precluded from seeking to recover under the guaranty by the holding in New Holland. See 579 So.2d at 219.

It is not. for the court to speculate whether the allegations of the complaint are true or whether they can be proven. Because counts V and VI state a cause of action for recovery under the guaranty and fraudulent transfer, it was error to dismiss them. Accordingly, we reverse and remand for the circuit court to reinstate counts V and VI of the second amended complaint.

Reversed and remanded with instructions.

SILBERMAN and VILLANTI, JJ., Concur.


text:
    Terry TALLENT and Barbara Tallent, Appellants, v. PILOT TRAVEL CENTERS, LLC, a foreign corporation, Appellee.
    No. 2D13-3646.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.

      Robert C. Widman and Geoffrey D. Morris of Morris & Widman, P.A., Venice, for Appellants.
    Joseph A. Kopacz and Anthony J. Petril-lo of Luks, Santaniello, Petrillo & Jones, Tampa, for Appellee.
   SLEET, Judge.

Terry and Barbara Tallent appeal a final summary judgment in favor of Pilot Travel Centers, LLC (Pilot). We affirm, without further discussion, the denial of their motion to amend the complaint to add punitive damages. Because a material issue of fact remained as to whether Pilot and its employees maintained the service station premises in a reasonably safe condition, we reverse on that issue.

In this case, we address the dichotomy between the duty to warn and the duty to maintain the premises in a reasonably safe condition. On January 22, 2007, Terry Tallent slipped and fell on a diesel fuel spill at Pilot’s service station in Punta Gorda, Florida. Tallent filed a complaint alleging that Pilot’s negligent maintenance of the station caused him to fall. In its answer, Pilot asserted that the spill was open and obvious and that Pilot employees complied with its fuel spill cleanup procedures. The trial court found that there were no material issues of fact and granted final summary judgment in favor of Pilot.

We review an order granting summary judgment de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Summary judgment is proper only if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.” MarElia v. Yanchuck, Berman, Wadley & Zervos, P.A., 966 So.2d 30, 33 (Fla. 2d DCA 2007). In a slip and fall negligence action, “the burden on the moving party is even more onerous, requiring the trial court to employ special care in granting summary judgment.” Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995). Summary judgment is improper “[ujnless a defendant can establish unequivocally the absence of negligence, or that the plaintiffs negligence was the sole proximate cause of the injury.” Id.

Tallent was a business invitee; therefore, Pilot owed him two duties: “(1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be discovered by the invitee through the exercise of reasonable care.” Wolford v. Ostenbridge, 861 So.2d 455, 456 (Fla. 2d DCA 2003). Tallent was a veteran truck driver, and he immediately noticed the spill on arriving at the station. He conceded that he had notice of the spill because he saw the trash cans blocking the aisles as he pulled up and he walked through the spill as he approached the Pilot store. It is clear from the record on appeal that Pilot had no duty to warn Tallent because he had knowledge of the existence of the spill. See Emmons v. Baptist Hosp., 478 So.2d 440, 442 (Fla. 1st DCA 1985) (“A prerequisite to the imposition upon the landowner of a duty to warn is that the defendant’s knowledge of the danger must be superior to that of the business invitee.”).

That Tallent was aware of the spill and that it was open and obvious does not end our analysis. See Miller v. Slabaugh, 909 So.2d 588, 589 (Fla. 2d DCA 2005) (“A plaintiffs knowledge of a dangerous condition does not negate a defendant’s potential liability for negligently permitting the dangerous condition to exist; it simply raises the issue of comparative negligence and precludes summary judgment.” (quoting Fenster v. Publix Supermarkets, Inc., 785 So.2d 737, 739 (Fla. 4th DCA 2001))); Knight v. Wattman, 774 So.2d 731, 734 (Fla. 2d DCA 2000) (“The discharge of the duty to warn does not necessarily discharge the duty to maintain the premises in a reasonably safe condition.”). Pilot still had a duty to maintain the premises in a reasonably safe condition if it anticipated the potential harm to Tallent as a result of the spill. See Miller, 909 So.2d at 589.

Based on the record before us, we cannot say that no material issue of fact remains as to whether Pilot maintained the premises in a reasonably safe condition. Pilot relied on the testimony of its head maintenance person to prove that it followed company cleanup procedures on the day that Tallent fell. However, the maintenance person testified that he had no personal recollection of that day and could only provide testimony as to his usual and customary procedure for cleaning fuel spills. The size and extent of the spill was in dispute, but there was testimony from a Pilot employee that the spill was more than twenty gallons and that it spread at least forty feet from its origin at the gas pump lane. The maintenance person testified that after blocking the aisle with trash cans, he would have used kitty litter, booms, or pads to contain such a large spill. But, he also claimed that he had never encountered a spill as large as twenty gallons. He testified that the largest spill he had ever personally cleaned was two to three gallons. After reviewing Pilot’s accident scene photographs, he could not confirm that he placed the cans out or performed any cleaning procedures that day.

Tallent testified that he saw no barriers or indicia of cleaning materials in the area of the spill other than the trash cans used to block the aisles. Pilot’s photographs of the scene appear to support Tallent’s testimony and belie Pilot’s claim that no issues of material fact remain. There was evidence that the uncontained spill spread past the fuel pumps and into the path of customers and other vehicles. Hence, the record does not conclusively demonstrate that Pilot should not have anticipated the potential harm to Tallent as a result of the spreading diesel fuel. Whether or not Pilot’s employees followed its clean up procedures on the date of Tallent’s fall is a disputed issue of fact.

Because there remains a material issue of fact as to whether Pilot maintained the premises in a reasonably safe condition, the order granting summary judgment against the plaintiff is reversed, and the case is remanded to the trial court for the determination of Pilot’s alleged negligence by a jury.

Affirmed in part; reversed in part; remanded.

SILBERMAN and LaROSE, JJ„ Concur.


author: OSTERHAUS, J.

text:
    FLORIDA HIGHWAY PATROL, Petitioner, v. Jorge BEJARANO, Respondent.
    No. 1D13-5821.
    District Court of Appeal of Florida, First District.
    May 12, 2014.

      Pamela E. Langham, Gulf Breeze, for Petitioner.
    Adrian R. Bridges of Michles & Booth, P.A., Pensacola, for Respondent.
   OSTERHAUS, J.

The Florida Highway Patrol (FHP) seeks certiorari review of a protective order that permits the plaintiff-respondent Jorge Bejarano to be deposed by video conference from California, where he now lives. Because the order comports with the discretion afforded trial courts by the rules of civil procedure and does not give rise to an irreparable harm, we deny FHP’s petition.

I.

Mr. Bejarano filed a lawsuit after allegedly being struck by an FHP vehicle while walking alongside State Road 20 in Oka-loosa County. At the time of the accident, Mr. Bejarano was an active duty United States Marine stationed nearby. But after filing suit against FHP in Okaloosa County, Mr. Bejarano was transferred to Camp Pendleton, California, some 2050 miles away. The time came when FHP sought to depose Mr. Bejarano. It set an in-person deposition in Fort Walton Beach, Florida, on November 13, 2013. After receiving the notice, Mr. Bejarano responded with a motion for protective order. In his motion, Mr. Bejarano requested to appear for his deposition via video conference that he would arrange and pay for, in order to limit work-related hardships and the time and expense of travelling back to Florida’s Panhandle. His motion cited Florida Rule of Civil Procedure 1.280(c) and attached an affidavit and two exhibits purporting to establish “good cause” for his request.

FHP opposed the motion, filed its own motion to compel, and argued at a hearing against allowing the deposition by video conference. But the trial court ultimately granted Mr. Bejarano’s motion pursuant to its authority under Rule 1.280 to spare parties from undue discovery burdens and expense. It gave three reasons for its decision: the travel distance from California to Okaloosa County; Mr. Bejarano’s active duty service in the Marines and involuntary transfer to California; and his willingness to pay the costs of the video conference and recording of the deposition. And it reserved jurisdiction to determine whether the deposition’s reporting and video are of sufficient quality; whether Mr. Bejarano ultimately would be required to appear in Florida before trial for an in-person deposition; and whether either party could ultimately use the video deposition for any purpose.

After the order was rendered, FHP filed a timely petition for writ of certiorari with this court.

ii.

Florida’s district courts have a history of affording relief from erroneous deposition-related orders by way of certiorari. See, e.g., CVS Caremark Corp. v. Latour, 109 So.3d 1232,1234 (Fla. 1st DCA 2013); Triple Fish Am., Inc. v. Triple Fish Int’l, L.C., 839 So.2d 913, 914 n. 1 (Fla. 5th DCA 2003). To get relief, we have said that a petitioner must establish two things: that the challenged order will cause irreparable harm (a threshold matter which also establishes whether this Court has jurisdiction); and that the challenged order departs from the essential requirements of law. Latour, 109 So.3d at 1234-35.

A.

The irreparable harm prong can be satisfied by showing that an order will cause “material injury that cannot be remedied on appeal.” Id. at 1234 (citing

Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., L.L.C., 99 So.3d 450, 454-55 (Fla.2012)). Our court and others have found “material injury” in circumstances similar to this one where trial courts have ordered depositions to proceed in erroneous locations. See id. at 1236 (quashing an order requiring a defendant’s representative to travel from Orange to Flagler County — where the case was pending — for a deposition); Logitech Cargo, U.S.A, Corp. v. JW Perry, Inc., 817 So.2d 1033, 1034-35 (Fla. 3d DCA 2002) (quashing a protective order requiring a Florida defendant to travel to Wisconsin to depose a plaintiff); Ormond Beach First Nat’l Bank v. J.M. Montgomery Roofing Co., 189 So.2d 239, 243 (Fla. 1st DCA 1966) (quashing an order requiring defendants to travel outside of the Volusia County forum to Dade County to take depositions of a plaintiffs corporate officers).

But the potential harm in those cases differs from this ease in two important ways. Here, the trial court (1) has not ordered anyone to travel anywhere, and (2) has retained explicit authority to nullify Mr. Bejarano’s video deposition if it cannot be satisfactorily completed. This case would be different if Mr. Bejarano were attempting to require FHP to travel to California to depose him. But unlike in Ormond Beach, Latour, and Logitech, the trial court is not requiring anyone to travel anywhere for Mr. Bejarano’s deposition. FHP may conduct the deposition in this case from its choice of locale, using a video conferencing company of its own choosing, and Mr. Bejarano is going to bear the expense.

Moreover, the trial court “reserve[d] jurisdiction” to resolve whether the quality of the reporting and video services are sufficient; whether Mr. Bejarano ultimately will be required to appear for a face-to-face deposition in Florida; and to whether the parties ultimately “may use the deposition for any purposes.” Because of the trial court’s express reservation and explicit contemplation of a “do over” if the video deposition doesn’t work, we cannot conclude at this juncture that the protective order will cause material harm.

B.

But even if irreparable harm was demonstrated, the trial court’s order does not violate the essential requirements of law. In fact, the order comports with the discretionary authority granted to trial courts to administer the discovery process by the rules of civil procedure.

We certainly understand the logic of FHP’s argument. It is absolutely correct that ‘“[a] plaintiff is generally required to be deposed in the forum where the action is pending.’ ” Logitech, 817 So.2d at 1035 (quoting Fortune Ins. Co. v. Santelli, 621 So.2d 546, 547 (Fla. 3d DCA

1993)); see also Bob Hilson & Co. v. Garcia, 985 So.2d 1176, 1176-77 (Fla. 3d DCA 2008); Chittick v. E. Air Lines, Inc., 403 So.2d 595, 597 (Fla. 1st DCA 1981); Ormond Beach, 189 So.2d at 243. After all, because Mr. Bejarano chose to file a lawsuit in Florida, it stands to reason that he “may reasonably be required to appear there for the taking of his deposition.” Brown v. Brovm, 500 So.2d 655, 656 (Fla. 1st DCA 1986). But the law is not absolute on this point. Instead it gives “the trial court discretion to grant protective orders ‘for good cause shown ... to protect a party [... ] from undue burden or expense.’ ” Logitech, 817 So.2d at 1035 (quoting Fla. R. Civ. P. 1.280(c)).

Citing Rule 1.280(c), the trial court decided to change the “method of discovery [from] that selected by the party seeking discovery” citing the burden and expense to Mr. Bejarano of having to travel back to Florida for his deposition. It gave three cogent reasons for its decision: (1) the distance from California to Okaloosa County; (2) Mr. Bejarano’s military service constraints (he didn’t leave the forum in bad faith); and (3) Mr. Bejarano’s offer to pay the costs of a deposition by video conference. At the same time, the trial court reserved jurisdiction to scuttle the video accommodation if it ultimately doesn’t work out (as discussed above).

We recognize FHP’s point of view that the factors identified by the court aren’t sufficient to establish good cause for accommodating Mr. Bejarano. And that his travelling back to Florida for the deposition is not completely prohibitive for him time- or cost-wise. See, e.g., Brown, 500 So.2d 655 (requiring a California resident to return for his deposition; but highlighting that the deposition was in aid of execution, not in connection with an unproven claim). But, in the end, trial courts enjoy “broad discretion in the treatment of discovery problems through the employment of the protective provisions contemplated by Rule 1.280.” Waite v. Wellington Boats, Inc., 459 So.2d 425, 426 (Fla. 1st DCA 1984). See also Brown, 500 So.2d at 656 (“The regulation by the trial courts of depositions is largely a matter of the court’s sound discretion.”). And, here, we cannot conclude that the trial court abused its Rule 1.280(c)-based discretion by accommodating Mr. Bejarano’s request for a video conference deposition, while holding out the possibility of a face-to-face deposition at a later date.

III.

For these reasons, we DENY the petition.

ROBERTS and WETHERELL, JJ., concur.

      . FHP asserts that Mr. Bejarano presented no evidence that his transfer to Camp Pendleton was "involuntary.” But this argument is not preserved. FHP failed to object below either to the characterization by Mr. Bejarano's attorney, or to the trial court's oral finding that the transfer was "involuntary.” See First Call Ventures, LLC v. Nationwide Relocation Servs., Inc., 127 So.3d 691, 693 (Fla. 4th DCA 2013) ("Generally, a petitioner cannot raise in a petition for writ of certiorari a ground that was not raised below.”).

      . We note that Florida Rule of Civil Procedure 1.310(b)(7) gives trial courts leeway to "order that the testimony at a deposition be taken by telephone.” See Logitech, 817 So.2d at 1035 (recognizing the trial court’s "discretion” to order depositions of out-of-state parties "by telephone or by video”).


author: PER CURIAM.

text:
    Anthony J. FAILS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1630.
    District Court of Appeal of Florida, First District.
    May 20, 2014.
    Anthony J. Fails, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of mandamus challenges petitioner’s 2004 Escambia County Circuit Court judgment and sentence for sexual battery. Because this petition violates a prior opinion of this court imposing sanctions against petitioner, we strike the petition as unauthorized and refer the matter to the Department of Corrections for disciplinary action.

In case number 1D10-3485, petitioner filed a petition for writ of habeas corpus in this court concerning the same 2004 Es-cambia County Circuit Court judgment and sentence for sexual battery. An order issued in that case directing petitioner to show cause why sanctions should not be imposed against him. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (recognizing the potential for abuse of the right to pro se access to the courts but declaring “it is important for courts to first provide notice and an opportunity to respond before preventing that litigant from bringing further attacks on his or her conviction and sentence”). The show cause order noted that petitioner had repeatedly challenged the 2004 Escambia County judgment and sentence for sexual battery, but he had failed to obtain relief in this court by criminal appeal, appeal from the denial of a motion for postconviction relief, petition for writ of habeas corpus or petition alleging ineffective assistance of appellate counsel. Ultimately, this court issued an opinion which dismissed the petition and imposed sanctions against petitioner, including a prohibition against filing any further pro se pleadings in this court challenging the 2004 Escambia County judgment and sentence unless he was represented by a member in good standing of The Florida Bar. See Fails v. State, 46 So.3d 1032 (Fla. 1st DCA 2010).

Petitioner now seeks a writ of mandamus to challenge the same 2004 Escambia County Circuit Court judgment and sentence for sexual battery. The petition is wholly meritless, because there is no showing that petitioner has “a clear legal right to the requested relief, the respondent [has] an indisputable legal duty to perform the requested action, and the petitioner [has] no other adequate remedy available.” Huffman v. State, 813 So.2d 10,11 (Fla.2000).

We find that the petition filed in this case-is frivolous. Accordingly, a certified copy of this opinion shall be provided to the Florida Department of Corrections to be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the Department as provided in section 944.279, Florida Statutes (2013). See Ibarra v. State, 45 So.3d 911 (Fla. 4th DCA 2010) (stating that a show cause order is not required for the imposition of sanctions under section 944.279). Any future pleadings filed by petitioner which violate this order may result in the imposition of additional sanctions, including another referral to the Department for disciplinary procedures under section 944.279. See Fla. R. App. P. 9.410.

Finally, we note that since the sanction opinion issued in Fails v. State, 46 So.3d 1032 (Fla. 1st DCA 2010), petitioner has filed seven additional cases in this court, six of which have been dismissed or denied without relief. One case remains pending. Petitioner is warned that the filing of any additional appeals or petitions which are determined to be frivolous may result in an order barring all pro se filings by petitioner in this court. See Fla. R. App. P. 9.410.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.

      . We note that the opinion imposing sanctions in case number 1D10-3485 included a scrivener’s error. The petition and all pleadings filed by petitioner in that case incorrectly cited the Escambia County circuit court case number as 2004-CF-3337-A. As a result, our opinion also cited to that incorrect case number. We find that this scrivener’s error does not preclude the imposition of sanctions at this juncture because our show cause order on sanctions cited 16 prior cases filed in this court which concerned the correct Escambia County circuit court case number 2004-CF-3733-A.

      . This petition for writ of mandamus was originally filed in the Florida Supreme Court, which transferred the petition to this court pursuant to Harvard. v. Singletary, 733 So.2d 1020 (Fla 1999) (stating that the supreme court would decline to exercise jurisdiction over petitions which raise substantial issues of fact or present individualized issues that do not require immediate resolution by the supreme court, or are not the type of case in which an opinion from the supreme court would provide important guiding principles for the other courts of this state). The fact that the petition was not directly filed by petitioner in this court is not a bar to the imposition of sanctions. Cf. Pettway v. State, 776 So.2d 930 (Fla.2000) (holding that when a party has been banned from appearing pro se in a particular tribunal, he or she cannot go to another tribunal to avoid the consequences of the sanction).


author: HUGHES, J.,

text:
    STATE in the Interest of C.B.M. v. Jennifer MILLER.
    No. 2013-OC-2919.
    Supreme Court of Louisiana.
    Feb. 21, 2014.
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, City Court of Slidell Juvenile Division, No. 13 JS 2327; to the Court of Appeal, First Circuit, No. 2013 CM 1843.

11Writ denied.

HUGHES, J., would grant and assigns reasons.

HUGHES, J.,

dissenting.

hi am greatly troubled by such sharp practice that would deny these maternal grandparents a voice in the well-being of their handicapped grandchild. While the grandparents might well be not suitable as a placement for the child, to deny them any participation whatsoever in the process to determine the child’s best interest is needlessly heartless. I would therefore grant the writ to allow them to intervene in these proceedings.


text:
    STATE of Louisiana v. Jason REEVES.
    No. 2014-KD-0132.
    Supreme Court of Louisiana.
    April 25, 2014.
   Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 20179.

PER CURIAM.

[ iWrit granted. Petitioner asserts for the first time in post-conviction proceedings that he is mentally retarded and therefore he cannot be executed without violating the Eighth Amendment’s prohibition against cruel and unusual punishment. See generally Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Petitioner asked to be examined by a panel of experts, he opposes the state’s request to have him independently examined by the state’s expert, and opposes the state’s request for extensive records including all medical and educational records as well as any notes and raw test scores produced by any defense expert. Petitioner also requested the assistance of counsel during any expert examination. The district court, while expressly reserving the question whether petitioner has shown reasonable grounds to believe that he is mentally retarded, ordered that petitioner waive privilege and provide all documents listed in La.C.Cr.P. art. 905.5.1(D), found that petitioner must be examined by an expert of the state’s choice, and determined that the court will then decide in a contradictory hearing whether to appoint a panel of experts.

This Court in State v. Dunn, 07-0878, p. 5 (La.1/25/08), 974 So.2d 658, 662, found that the statutory language used in La.C.Cr.P. art. 905.5.1 showed that the article does not apply where the claim of an Atkins exemption is made for the first 12time post-conviction. Instead, this Court found that the procedure to be followed to evaluate an Atkins exemption raised post-conviction was the same as explained in State v. Williams, 01-1650 (La.11/1/02), 831 So.2d 835, and the Court reiterated that procedure in Dunn, 07-0878 at 6-7, 974 So.2d at 662. The first step in that determination is for the district court to “order a pre-trial evidentiary hearing on the issue of mental retardation when the court has ‘reasonable ground’ to believe a defendant is mentally retarded” just as when a defendant’s mental incapacity to proceed has been raised. See La.C.Cr.P. art. 643. Although the district court may, as in State ex rel. Seals v. State, 00-2738 (La.10/25/02), 831 So.2d 828, appoint an expert to assist the court in making that threshold determination, it is not required to do so. Therefore, because the district court is not at this stage of the proceedings making the ultimate determination of whether petitioner is mentally retarded and so exempt from capital punishment, but determining only whether reasonable grounds exist for making that inquiry, the court’s order is premature to the extent that it requires petitioner to provide the state with wide ranging discovery and to submit to an examination conducted by an expert of the state’s choosing.

The question whether petitioner is entitled to the assistance of counsel during expert evaluation is also premature. However, this Court has notably found that “[tjhere is no requirement that defense counsel be permitted to be present during the defendant’s examination by a sanity commission as this is not a critical stage of the proceedings.” See, e.g., State v. Koon, 96-1208, p. 18 (La.5/20/97), 704 So.2d 756, 768. The application is therefore granted to vacate the district court’s order and to remand for further proceedings conducted in accordance with State v. Dunn, 07-0878 (La.1/25/08), 974 So.2d 658.


text:
    Douglas Cameron McLEOD, Petrogulf Corporation, and Petrogulf III, LLC v. FALCON NATURAL GAS CORPORATION and Yorkville Advisors, LLC.
    No. 2014-CC-0169.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re YA Global Investments, L.P.; Yorkville Advisors, L.L.C.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. A, No. 120,679; to the Court of Appeal, First Circuit, No. 2013 CW1691.

Denied.


text:
    Brian K. GLOTFELTY v. Craig HART, Tammy Karas, XYZ Insurance Company, Ryan Richard, and Jack Strain, Jr., in his Official Capacity as Sheriff of St. Tammany Parish.
    No. 2014-C-0206.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Glotfelty, Brian K; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 2011-16453; to the Court of Appeal, First Circuit, No. 2013 CA 0870.

Denied.

HUGHES, J., recused.


author: GUIDRY, J.

text:
    AMERISURE INSURANCE COMPANY and Midwest Medical Supply Company, LLC v. William JONES.
    No. 2012 CA 1267.
    Court of Appeal of Louisiana, First Circuit.
    June 14, 2013.
    Azelie Ziegler Shelby, Sarah K. Lunn, Racheal Bellemin, Nicholas M. Graphia, Baton Rouge, LA, for Plaintiffs-Appellants Amerisure Insurance Company and Midwest Medical Supply Company, LLC.
    Mark D. Plaisance, Thibodaux, LA, Denise Vinet, Baton Rouge, LA, for Defendant-Appellee William Jones.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   GUIDRY, J.

I ¡>In this workers’ compensation proceeding, an employer and its insurer appeal a judgment of the Office of Workers’ Compensation denying their motion to compel rehabilitation and for reduction of benefits, or alternatively, to condition further disability benefits on claimant’s weight loss in compliance with a proper medical treatment plan. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Midwest Medical Supply Company, LLC employed the claimant, William Jones, on October 12, 2009, as a warehouse clerk. On December 2, 2010, the claimant injured his back while lifting some pallets. Following the accident, the claimant was treated at the Bone & Joint Clinic in Baton Rouge, under the care of Dr. Kevin McCarthy. During the course of his treatment, the claimant was prescribed medication and physical therapy to help alleviate his back pain. When these therapies proved unsuccessful, the patient, whose weight fluctuated at or over 600 pounds, was also given a prescription for Weight Watchers for weight loss.

On March 29, 2012, Midwest Medical Supply Company, LLC and its workers compensation insurer/administrator, Am-erisure Insurance Company (collectively “employer”), filed a form 1008 “Disputed Claim for Compensation” alleging that the claimant had failed to comply with the rehabilitation prescribed for him to lose weight and requested that-.the claimant’s indemnity benefits be reduced retroactive to the date Weight Watchers had been prescribed for the claimant. Alternatively, the employer requested that any future benefits be conditioned on the claimant’s participation with the recommended rehabilitation of weight loss.

The matter proceeded to a hearing before a workers’ compensation judge (WCJ), who found the employer failed to meet its burden of proving that the claimant refused" to cooperate with the rehabilitation services offered. The WCJ Istherefore denied the employer’s claim and dismissed the case. It is from this judgment that the employer appeals.

DISCUSSION

In its sole assignment of error, the employer alleges that the WCJ erred in failing to reduce the benefits payable to the claimant based on an erroneous finding that the claimant was compliant with the prescribed weight loss program when he failed to maintain any weight loss in an eight-month period. We disagree.

Louisiana Revised Statute 23:1226(B)(3) provides, in pertinent part:

(3)(a) ... the employee may file a claim with the office to review the need for such services or the quality of services being provided. The procedure for hearing such claims shall be expedited as provided in R.S. 23:1124.
(c) The expedited procedure shall also be made available to the employer to require the employee’s cooperation in the rehabilitation process. Refusal to accept rehabilitation as deemed necessary by the worker’s compensation judge shall result in a fifty percent reduction in weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), for each week of the period of refusal. [Emphasis added.]

This provision providing for a fifty-percent reduction in weekly compensation for a claimant’s refusal to accept rehabilitation is penal in nature and should be strictly construed. Louisiana Workers’ Compensation Corp. v. Mullings, 33,567, p. 4 (La. App.2d Cir.6/21/00), 764 So.2d 205, 208.

Below and on appeal, the employer ardently points out that the claimant’s healthcare providers gave him a prescription for the Weight Watchers program and that this was sufficient to prove that the rehabilitation offered, Weight Watchers, was necessary. The WCJ rejected this contention by observing that the prescription for weight loss appeared to be requested by the claimant, to which the claimant’s healthcare providers acquiesced. A review of the limited medical records submitted into evidence reveals this observation to be true. Moreover, we further observe that the statute expressly states that the penalty of reducing the | claimant’s benefits by fifty percent can only be invoked in the event the claimant refuses to accept rehabilitation that the WCJ has deemed necessary. Strictly construing La. R.S. 23:1226(B)(3)(c), the record does not reveal where the WCJ found weight loss rehabilitation to be necessary; therefore, we find the WCJ did not err in refusing to reduce the claimant’s indemnity benefits pursuant to the statutory provision.

Additionally, we find no error in the WCJ’s finding that the claimant was cooperative and compliant with the weight loss rehabilitation offered to him. In regards to compensation benefits in general, it has been held that a claimant’s recovery is largely dependent on the exercise of his own will to recover and to effect recovery by adherence to a reasonable program of treatment. Therefore, where an employee’s recovery is retarded and his disability prolonged because of his failure to cooperate with his physician and his willful refusal to avail himself of the means for his recovery furnished by his employer, such employee cannot recover compensation beyond the period that would have been necessary for his recovery had he properly cooperated. James v. A&B Builders, 09-0781, pp. 3-4 (La.App.1st Cir.10/23/09), 29 So.3d 541, 543.

Yet, similar to the matter before us, in Levy v. Travelers Insurance Company, 102 So.2d 561, 562 (La.App. 1st Cir.1958), the court noted that the claimant and other lay witnesses had testified that the claimant had been similarly overweight “throughout his life, and the doctors’ testimony corroborates the common observation of the extreme difficulty of humans to lose weight from their life-long average.” The court went on to reiterate “that the employer must take the worker as he finds him, that the persistence of a work-caused disability resulting from the employee’s natural obesity is compensable, and that the employee’s failure to lose weight could not in itself be regarded as a wilful failure to cooperate which would be the cause of the continued disability.” Levy, 102 So.2d at 562-63. | ^Moreover, as observed by the court in Guillory v. Reimers-Schneider Company, 94 So.2d 134, 136 (La.App. 1st Cir.1957), which opinion was cited as authority in Levy:

The inference attempted to be drawn from the employee’s failure to lose weight is ... contradicted ... by common observation that the Lord Who created some of mankind fat and some lean, also created men with unequal abilities to gain or lose weight, through different metabolisms, degrees of will-power, practical opportunities to follow different diets, etc. Certainly the mere failure to lose weight in accordance with a glib medical recommendation cannot in the light of ordinary observation be characterized as proof of willful failure to cooperate with medical treatment.

At the hearing before the WCJ in this case, the employer presented medical evidence indicating the claimant’s injury should have resolved within a few months of the accident and that his pain symptoms persisted due to the claimant’s morbid obesity. The claimant testified regarding his weight at the hearing. He stated that he weighed around 600 pounds when he was hired by Midwest Medical Supply Company, LLC, that he had been overweight since elementary school and over 400 pounds since high school. He further testified that he was compliant with his Weight Watchers’ plan, that he did not consume the amount of daily points allotted to him and that he regularly attended weekly Weight Watchers’ meetings, except for two, which under the program rules, a participant could miss up to two meetings.

Considering this evidence and the foregoing jurisprudence, we cannot say that the WCJ erred in finding that the employer failed to show that claimant willfully refused to comply with the prescribed rehabilitation for weight loss.

CONCLUSION

Accordingly, finding no error in the judgment appealed, we affirm. All costs of this appeal are cast to the appellants, Midwest Medical Supply Company, LLC and Amerisure Insurance Company.

AFFIRMED.


author: PETTIGREW, J.

text:
    Sarah JOHNSON, Individually & on Behalf of her Minor Child, Mi’Cheala Grant v. Willie THOMAS.
    No. 2013 CA 0081.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 2013.

      Peter T. Dudley, Baton Rouge, LA, Attorney for Plaintiffs-Appellees Sarah Johnson & Mi’Cheala Grant.
    Ebony Cavalier, Baton Rouge, LA, Attorney for Defendant-Appellant Willie Thomas.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   PETTIGREW, J.

I ;>This is an appeal by the defendant, Willie Thomas (Mr. Thomas), from a money judgment rendered against him. The trial court ruled in favor of the plaintiffs, Sarah Johnson and her daughter, Mi’Chea-la Grant, for personal injuries. The injuries were sustained when a damaged garage door to their home — leased from Mr. Thomas — fell on Mi’Cheala, and Ms. Johnson attempted to lift the fallen door from her. The door had been damaged during a hurricane six months earlier, and Mr. Thomas had not had it repaired. After a thorough review of the record and the arguments presented, we find no merit to Mr. Thomas’s arguments and affirm the judgment of the trial court.

BACKGROUND FACTS

The facts are essentially undisputed. The defendant, Mr. Thomas, who resided in California, owned a house at 1925 Monterrey Boulevard in Baton Rouge. He leased the house through DL Management, LLC, a property management company in Baton Rouge. In April 2008, Dana Littles, an employee of DL Management, as agent for Mr. Thomas, leased the house to the plaintiff, Sarah Johnson. She resided in the. house from April 2008 until approximately mid-2012, with her family, including her minor daughter, Mi’Cheala Grant, who suffers from physical and learning disabilities.

Approximately five months after Ms. Johnson leased the house, Hurricane Gustav hit the Baton Rouge area, with high winds and fallen limbs causing damage to the garage door, as well as to the gutters and fence of the house at 1925 Monterrey Boulevard. According to Ms. Johnson, the winds caused the garage door to cave in, come off the hinges, leaving a large visible dent, and rendering it inoperable. She immediately telephoned the leasing agent, Dana Littles, and reported the hurricane damage to the house, particularly the damage to the garage door, together with her concerns that the door would fall.

[aA couple of days later, Ms. Littles went to the house to examine the damage. She took photographs and testified that she observed “a lot” of damage to the garage door, stating that it was up, but visibly dented and “jammed.” She, too, observed that it appeared that the door may fall. She immediately contacted Mr. Thomas about the damage, as well as the concerns she and Ms. Johnson had that the garage door may fall. Mr. Thomas asked her to send photographs and to also inquire about repair estimates. Ms. Littles testified that she did as Mr. Thomas requested, but that he never got back with her about repairs, and none were made.

A couple of weeks following the hurricane, the garage door shifted, causing Ms. Johnson more concern about its dangerous condition. (The record reveals that at that time, the house had only one other operable door from which to enter and exit the house.) Ms. Johnson again immediately contacted Ms. Littles about the shift in the door and her concerns. Ms. Littles again contacted Mr. Thomas and repeated the concerns that she and Ms. Johnson had that the door may fall. Again, Mr. Thomas did nothing.

Approximately six months later, on March 8, 2009, the incident giving rise to this litigation occurred. Ms. Johnson testified that during the early morning hours, while her family was getting dressed and ready for their day, she suddenly heard a “loud crash and a scream” and went running toward the sound. As she entered the garage, she saw Mi’Cheala lying on the ground, screaming, with the garage door on top of her body. Ms. Johnson testified that she, too, began screaming, and instinctively, ran to her daughter and tried to lift the door off of her. (She also testified that she was unable to do so, as the door was “excruciatingly heavy.”) She called 911. When the ambulance arrived, the paramedics were able to lift the door off of Mi’Cheala, and they transported her and Ms. Johnson to the emergency room at the Baton Rouge General Medical Center.

Ms. Johnson testified that her daughter was in great pain, crying and screaming all the way to the hospital. At the hospital, Mi’Cheala complained of being in pain all over her body, particularly, in the neck and back area. She was given medication for pain and anxiety. X-rays were taken, which revealed no cervical or lumbar fractures. She was discharged, with muscle relaxer and anti-inflammatory prescriptions, and advised to follow |4up with her primary care physician in 3-5 days, or sooner, if her symptoms worsened. She was diagnosed with neck and back muscle spasms (“mild reversal of normal cervical lordosis”) and a deep contusion — tenderness and swelling in the soft tissue areas.

Ms. Johnson also testified that, a couple of days later, she realized that she, too, had sustained injury while trying to lift the garage door off of her daughter. She stated that she began having pain in her shoulders, back, neck, and head. Because her daughter was also still complaining of pain, they both went to the emergency room at Lane Regional Medical Center (Lane) in Zachary to be examined. Mi’Cheala presented with complaints of pain and soreness “all over” that had not improved and worsened with movement. She was diagnosed with muscle strain and prescribed Lortab for pain and the muscle relaxant, Flexeril.

Ms. Johnson was also examined and treated at the emergency room at Lane. She presented with complaints of acute pain in her back, particularly, the lower back, and right arm. She was also diagnosed with muscle strain, and treated with the same pain and muscle relaxant prescriptions as her daughter. Both she and her daughter were advised to follow up with their primary care physician.

The following week, on March 16, 2009, Ms. Johnson and Mi’Cheala went to their primary care physician, Dr. James Hines. Dr. Hines diagnosed Mi’Cheala with multiple soft tissue contusions, neck strain, and exacerbation of her asthma. He prescribed the anti-inflammatory, Mobic, and physical therapy twice a week. The record reveals that she received physical therapy for a little over three months, being discharged on June 25, 2009. Dr. Hines noted that although she was still complaining of pain at that time, he did not believe continuation of physical therapy would be of any help.

Dr. Hines also treated Ms. Johnson on March 16, 2009. Ms. Johnson complained of pain in her shoulders and arm, as well as neck and back pain. He noted she had shoulder and right forearm strain, cervical and lower back sprain, as well as multiple soft tissue injuries, which were caused by her attempts to lift the garage door off of her daughter. He. prescribed a steroid, anti-inflammatory and pain medications, as well as physical therapy. He also discontinued the physical therapy for Ms. Johnson after ^approximately three months, finding she had reached maximum medical improvement, albeit her complaints of continued pain. Ms. Johnson testified that she and her daughter both continue to suffer pain and soreness, and they treat that with over-the-counter ibuprofen.

PROCEDURAL HISTORY

On November 17, 2009, a petition for damages was filed, alleging that Mr. Thomas had knowledge of the condition of the damaged garage door and that he had received insurance proceeds to make repairs, but failed to do so. Mr. Thomas filed an answer, generally denying all allegations, and subsequently, filed a supplemental answer, alleging the comparative fault of the plaintiffs.

The matter proceeded to a bench trial, following which the trial court rendered judgment in favor of both plaintiffs, and against Mr. Thomas, finding that he knew of the damage to the garage door, as well as the danger it presented, yet failed to repair it in the six months that lapsed before the incident causing injury to these plaintiffs. The trial court found Mr. Thomas liable under La. C.C. art. 2696, for breaching the lessor’s warranty that the leased premises be suitable for the purposes of the lease and, that it be free from vices and defects. The trial court further found the plaintiffs to be free from fault.

The trial court additionally found the injuries sustained by both Mi’Cheala and her mother were caused by Mr. Thomas’s failure to repair the garage door, and awarded the following damages:

Sarah Johnson — medical special damages in the amount of $2,434.08; general damages in the amount of $5,000.00, for a total of $7,434.08; and Mi’Cheala Grant — medical special damages in the amount of $5,050.40; general damages in the amount of $8,000.00, for a total of $13,050.40.

Thus, the total amount of the money judgment against Mr. Thomas was $20,484.48, together with legal interest from the date of judicial demand, until paid in full, as well as all costs. Judgment was rendered in open court on August 9, 2012, and signed on August 22, 2012. This devolu-tive appeal by Mr. Thomas followed.

I ^ASSIGNMENT OF ERROR

Mr. Thomas asserts the trial court erred in ruling that he, the landlord, owed a duty to warn tenants, Mi’Cheala Grant: and Sarah Johnson, of an open and obvious dangerous condition. He additionally argues that the trial court erred in finding him to be 100 percent at fault and in not assessing any percentage of fault to the plaintiffs for the damages they sustained.

APPLICABLE LAW/DISCUSSION/ANALYSIS

Standard of Review

An appellate court’s review of factual findings is governed by the manifest error or clearly, wrong standard. Smith v. Louisiana Dept, of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132. The two-part test for the appellate review of facts is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record establishes that the finding is not manifestly erroneous. See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State through Dept, of Transp. and Development, 617 So.2d 880, 882 (La.1993).

Open and Obvious Condition

We find Mr. Thomas’s arguments, based on general negligence principles and the assertion that the dangerous condition of the garage door was open and obvious, such that it was not unreasonably dangerous, are misplaced and, therefore, have no merit. Inasmuch as this is a suit by lessees against their lessor for injuries sustained on the leased premises, the codal provisions governing a lessor’s warranties and liability pursuant thereto are applicable. See Tewis v. Zurich Insurance Company, 233 So.2d 357, 359 (La.App. 1 Cir.), writ denied, 256 La. 357, 236 So.2d 496 (1970). In determining the applicability of laws, it is axiomatic that the more specific governs over the more general. Because La. |7C.C. articles 2696 and 2697 specifically address lessor/lessee obligations and warranties, they are applicable under these circumstances. Thompson v. BGK Equities, Inc., 2004-2366 (La.App. 1 Cir. 11/4/05), 927 So.2d 351, 353-54, writ denied, 2005-2405 (La.3/17/06), 925 So.2d 550.

Lessor’s Liability

The lessor warrants the lessee that the thing is suitable for the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose. This warranty also extends to vices or defects that arise after the delivery of the thing and are not attributable to the fault of the lessee. La. C.C. art. 2696. Moreover, this warranty also encompasses vices or defects that are not known to the lessor. La. C.C. art. 2697. Thus, the lessor is essentially strictly liable for vices and defects that cause harm to his lessee. See Wells v. Norris, 46,458 (La.App. 2 Cir. 8/10/11), 71 So.3d 1165, 1169, writ denied, 2011-1949 (La.11/18/11), 75 So.3d 465. However, that article also provides that if the lessee knows of such vices or defects and fails to notify the lessor, the lessee’s recovery for breach of warranty may be reduced accordingly. La. C.C. art. 2.697.

Burden of Proof

A tenant seeking damages for injuries alleged occasioned by a vice or defect in the leased premises bears the burden of establishing his claim to a legal certainty by a fair preponderance of the evidence. Tewis, 233 So.2d at 360. Knowledge alone on the part of the injured party that the premises were in a defective condition does not per se preclude his action for recovery of damages. Tewis, 233 So.2d at 360.

Application of Law to Evidence Presented

The plaintiffs established that Mr. Thomas’s agent and, through her, Mr. Thomas were both notified immediately after the garage door was damaged. Mr. Thomas was not only notified that it was damaged, but also about Ms. Johnson and Ms. Little’s well-founded concerns that the door may fall. Mr. Thomas failed to do anything. Weeks later, he again received notice that the danger presented by the garage door had heightened, as it had recently shifted. Still, Mr. Thomas took no action.

Approximately six months later, the garage door fell.

| sUnder these circumstances, there is more than a preponderance of evidence establishing that Mr. Thomas breached the statutory duty owed by him as lessor to repair the garage door and remove the unreasonably dangerous condition to which the plaintiffs (lessees) were subjected. Accordingly, there is no manifest error and the trial court’s judgment holding Mr. Thomas liable for the plaintiffs’ injuries caused by the fallen garage door is affirmed.

Comparative Fault

We also find the trial court did not commit manifest error in failing to assign any percentage of fault to the plaintiffs. Initially, we note that there is no evidence in the record that Mi’Cheala, a fifteen-year-old child with physical and learning disabilities, was aware of, or even capable of understanding the danger presented by the garage door. Furthermore, the evidence established that there was only one other door — presumably the front door of the house — by which to access and egress the house. Ms. Johnson testified she herself, and others, based on her alerting them, were aware of the danger and did not purposely gain access to the house through the garage door; although, it was the most convenient access, and sometimes even without thinking, she would walk right out to her car when leaving the house.

Considering that the condition existed for a time period of at least six months, we find the trial court did not err in finding the actions of the plaintiffs reasonable and refusing to assign fault to them. In Terns, supra, this court affirmed a trial court’s judgment under similar circumstances which refused to find a plaintiff at fault when he took a more convenient route to his car in a parking lot, albeit claims that he knew this route contained an unreasonably dangerous condition, when the alternative route required him to take a different exit and going some additional thirty feet distance. 233 So.2d at 361. Although Tewis was decided under the assumption of risk/contributory negligence law which precluded recovery, we nonetheless find the same analysis and conclusion applicable under the comparative fault principles at issue in this case.

^CONCLUSION

For the foregoing reasons, we find the trial court committed no manifest error, and affirm its judgment. The defendant, Willie Thomas, is assessed with all costs of this appeal.

AFFIRMED.

      . At the time of the incident at issue and when the petition in this matter was filed, Mi’Cheala Grant was a minor. She reached the age of majority during the litigation and was properly substituted as a plaintiff in her own right at that time.