author: WOLF, J.

text:
    BAC HOME LOANS SERVICING, L.P., Appellant, v. Donald H. ELLISON, et al., Appellees.
    No. 1D13-4227.
    District Court of Appeal of Florida, First District.
    July 25, 2014.
    Kimberly Hopkins and Ronald M. Gaché of Shapiro, Fishman & Gaché, LLP, Tampa, for Appellant.
    No Appearance for Appellees.
   WOLF, J.

In this appeal, BAC Home Loans Servicing, L.P., challenges a final order of dismissal without prejudice for failure to appear at a hearing set by the trial court and subsequent denial of a Motion for Rehearing. We reverse.

Appellant alleges that no one appeared at a May 6, 2013, hearing on behalf of appellant because the trial court sent its sua sponte order to a different address than the address on record. Appellant argues that the trial court erred in dismissing the case without considering the appropriate factors set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993).

In a Motion for Rehearing, appellant argued that dismissal for failing to comply with the court’s order to appear at hearing was too severe a sanction where the record is devoid of evidence showing counsel’s failure to appear was a willful or flagrant disregard of the court’s authority. Specifically, counsel alleged that they had no record of ever receiving the order.

Failure to apply the Kozel factors constitutes reversible error. See, e.g., Ham v. Dunmire, 891 So.2d 492, 500 (Fla.2004) (“[Fjailure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard.”); Fla. Nat’l Org. for Women, Inc. v. State, 832 So.2d 911, 914 (Fla. 1st DCA 2002) (holding that the trial court should not have dismissed the complaint without specifically addressing the Kozel factors); Crews v. Shadburne, 637 So.2d 979, 981 (Fla. 1st DCA 1994) (“ ‘[T]o dismiss the case based solely on the attorney’s neglect unduly punishes the litigant and espouses a policy that this Court does not wish to promote.’ ” (quoting Kozel, 629 So.2d at 818)); and Gaines v. Placilla, 634 So.2d 711 (Fla. 1st DCA 1994) (remanding for the trial court to reconsider the motion to dismiss in light of the Kozel factors).

In the instant case, an evidentiary hearing should have been held to determine whether appellant’s failure to appear was a willful violation of the court’s order.

We therefore REVERSE and REMAND for further proceedings consistent with this opinion.

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

      . The result in this appeal should in no way be taken as condoning counsel’s apparent failure to promptly inform the trial court of an attorney of record's separation from the firm.


source: Caselaw Access Project

license: Public Domain

text:
    Brad E. PARKER, Appellant, v. Jodie Ann PARKER, Appellee.
    No. 1D13-6135.
    District Court of Appeal of Florida, First District.
    July 25, 2014.
    Brad E Parker, pro se, Appellant.
    Aaron B. Wentz of Aaron B. Wentz, P.A., Ft. Walton Beach, for Appellee.
   WOLF, J.

In this appeal of a November 26, 2013, order modifying child support and granting motion for contempt for enforcement, the parties agree that the trial court erred in utilizing the mother’s income as reported in her bi-weekly pay statement as her monthly income. The parties also agree that the trial court failed to comply with section 61.30(3), Florida Statutes (2013), in determining the correct deductions from the mother’s gross income.

The standard of review from the grant of a child support award is abuse of discretion. Seward v. Fla. Dep’t of Rev., 794 So.2d 614, 615 (Fla. 2d DCA 2001). A reviewing court will affirm an award of child support if it is supported by substantial, competent evidence in the record. Reddick v. Reddick, 728 So.2d 374, 375 (Fla. 5th DCA 1999). Finding no substantial, competent evidence to support the trial court’s finding of the mother’s net income, we reverse and remand.

In doing so, we remind the parties and the trial court that the definition of “gross income” includes “allowances,” per section 61.30(2)(a), Florida Statutes (2013), and that support for each child continues until the child turns nineteen or graduates from high school, whichever occurs first, per the marital settlement agreement.

On remand, the trial court is to reconsider the calculation of the father’s ar-rearages in light of the corrected modification of support and to ensure that substantial, competent evidence supports any calculations of those arrearages, in-eluding evidence of the father’s actual payments during the relevant period. Because we remand for correction of the underlying support and recalculation of arrearages, we must also reverse any findings that the father is in contempt. See Brennan v. Brennan, 122 So.3d 923, 927 (Fla. 4th DCA 2013). We also remind the trial court that any findings of contempt must comply with Florida Family Law Rule of Procedure 12.615(d)(1).

Finally, the trial court is directed to consider the relative financial resources of the parties in accordance with section 61.16, Florida Statutes (2013), when ruling on any requests for attorney’s fees pursuant to that section.

Therefore, the November 26, 2013, order is REVERSED and REMANDED for proceedings consistent with this opinion.

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


author: PER CURIAM.

text:
    Aaron Franklin BROWN, Appellant, v. NORTH FLORIDA SURGEONS, P.A. and G. Steven Webb, M.D., Appellees.
    No. 1D12-3383.
    District Court of Appeal of Florida, First District.
    July 28, 2014.
    Robert F. Jordan of Jordan Law Firm, PLLC, Lake City, for Appellant.
    James T. Murphy and Jill F. Bechtold of Murphy, Ellis & Weldon, PLLC, Jacksonville, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

In Brown v. North Florida Surgeons, P.A., 110 So.3d 962 (Fla. 1st DCA 2013), we affirmed the trial court’s order compelling arbitration. Appellant petitioned the Florida Supreme Court for review, and by order dated June 9, 2014, the Court quashed our decision and remanded for reconsideration upon application of Franks v. Bowers, 116 So.3d 1240 (Fla.2013). We directed the parties to show cause why the trial court’s order should not be reversed based upon Franks. The parties agree that reversal is required because the agreement containing the arbitration clause at issue in this case is the same agreement that was invalidated in Franks. Accordingly, the trial court’s order compelling arbitration is reversed and this case is remanded for further proceedings.

REVERSED and REMANDED.

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


text:
    Solis ANGOL, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1368.
    District Court of Appeal of Florida, First District.
    July 28, 2014.
    Stacy A. Scott, Public Defender, and Susan A. Ward, Assistant Public Defender, Gainesville, for Appellant.

      No appearance for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of July 9, 2014, the Court has determined that its jurisdiction was not timely invoked. See Grant v. State, 102 So.3d 668 (Fla. 1st DCA 2012). Accordingly, the appeal is dismissed.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    DEUTSCHE BANK TRUST COMPANY AMERICAS as Indenture Trustee for the Registered Holders of Saxton Asset Securities Trust 2006-1 Mortgage Loan Asset Backed Notes, Series 2006-1, Appellants, v. Kenneth R. SCHNEIDER, et al., Appellee.
    No. 1D14-2450.
    District Court of Appeal of Florida, First District.
    July 28, 2014.
    Khari E. Taustin, Jeremy W. Harris, Masimba M. Mutamba, and Angela Barbo-sa Wilborn, of Morris, Laing, Evans, Brock & Kennedy, CHTD., West Palm Beach, for Appellants.
    Frederic David Kaufman of Kaufman Attorneys, P.A., Gainesville, for Appellee.
   PER CURIAM.

DISMISSED. Appellants’ Motion to Stay Appeal and Relinquish Jurisdiction, filed on June 25, 2014, is denied. See Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009) (dismissing appeal rather than allowing lower court to enter a final order where an indeterminate amount of judicial labor remained to be done before a final order could be entered).

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


author: DAVIS, Chief Judge.

text:
    Larry J. RUTAN, Appellant, v. Virginia J. RUTAN, Appellee.
    No. 2D13-1322.
    District Court of Appeal of Florida, Second District.
    April 4, 2014.
    Michael M. Brownlee of Brownstone, PA, Winter Park, for Appellant.
    Jane H. Grossman, St. Petersburg, for Appellee.
   DAVIS, Chief Judge.

Larry Rutan, the Former Husband, challenges the final judgment of dissolution that awarded Virginia Rutan, the Former Wife, permanent periodic alimony. Because the final judgment fails to make sufficient findings to afford meaningful review by this court, we reverse.

In December 2009, the Former Wife filed for dissolution of the parties’ thirty-year marriage. The parties agreed to bifurcate the proceedings, asking the trial court to rule on equitable distribution while reserving jurisdiction to determine the alimony issue at a later time. As such, on December 8, 2011, the trial court entered a partial final judgment equitably distributing the parties’ assets and liabilities. This partial final judgment was affirmed by this court on August 10, 2012. Rutan v. Rutan, 98 So.3d 578 (Fla. 2d DCA 2012) (unpublished table decision).

At the time of the dissolution action, the parties owned three pieces of residential real estate and two movie theaters. The marital residence and a triplex rental property were located in Pinellas County, and the movie theaters and a residential rental property were located in Pasco County. The parties’ income during the marriage came from the operation of the movie theaters and the rent from the triplex and the Pasco County residence. The equitable distribution judgment awarded all of these income-producing properties to the Former Husband along with all of the properties’ accompanying liabilities. The Former Wife was awarded the marital residence; however, the Former Husband remained responsible for the mortgage debt on that property. The Former Husband was further required to pay to the Former Wife an equalization payment of $240,033. The equitable distribution judgment additionally ordered that an agreed-upon CPA would perform a cash flow analysis to assist the trial court in determining the availability of income to the Former Husband for payment of alimony if the need for alimony was established during the alimony portion of the proceedings.

After the cash flow analysis was prepared, the trial court held additional hearings on the issue of permanent periodic alimony. Following these hearings, the trial court entered the final judgment, in which it determined that the Former Wife had established a need for permanent periodic alimony. The court specifically found that the Former Wife earns $8.62 an hour and works thirty to thirty-five hours per week. The trial court also noted that the testimony of an employment expert indicated that the Former Wife could earn $9 to $10 an hour. However, the court did not specify the amount actually determined to be the Former Wife’s income. Instead, the final judgment simply states that based on the current earnings the Former Wife claimed in her financial affidavit, along with the $2500 a month she receives in temporary alimony, she has a monthly deficit of $930.

The court did recognize in its final judgment that the “principal consideration” in this case was the Former Husband’s ability to pay. Again, however, the court did not specify an amount for the Former Husband’s income. Rather, the court referred to the Former Husband’s financial affidavit and observed that he “claims” a monthly deficit, although the court did not specify the amount of that deficit. The judgment also notes that the Former Husband’s $550 per month obligation to pay the Former Wife’s health insurance “has, or will soon, terminate,” suggesting that such amount was not factored into the Former Husband’s monthly deficit. Without making any further findings, the trial court imposed on the Former Husband a monthly obligation of $1800 in permanent periodic alimony.

“A trial court’s award of alimony is reviewed under an abuse of discretion standard.” Vollmer v. Vollmer, 33 So.3d 67, 69 (Fla. 2d DCA 2010). Furthermore, “ ‘[t]o support its alimony determination, the trial court must include specific findings of fact in the final judgment.’ ” Crick v. Crick, 78 So.3d 696, 698 (Fla. 2d DCA 2012) (quoting Austin v. Austin, 12 So.3d 314, 317 (Fla. 2d DCA 2009)); see also Winney v. Winney, 979 So.2d 396, 400 (Fla. 1st DCA 2008) (“A trial court’s failure to make adequate factual findings in a final judgment of dissolution of marriage is typically reversible error because, in most circumstances, this failure precludes meaningful appellate review.”).

Here, based on the findings included in the instant record, we cannot perform an adequate appellate review to determine whether the parties’ incomes and expenses are properly calculated or whether the awards based on those calculations are correct.

We do note, however, that the CPA’s cash flow analysis, which was admitted into evidence, designates the Former Husband’s “cash flow available for personal lifestyle (incl. mortgage re: tax and ins. on residences)” as $7467 per month. The Former Husband’s financial affidavit notes that the two residential mortgage obligations he must pay pursuant to the equitable distribution total $3831 per month. After paying the court ordered $1800 a month in periodic alimony and these mortgage obligations, the Former Husband is left with approximately $1800 a month for his total living expenses. These observations raise the question of whether the Former Husband does, in fact, have the ability to pay $1800 a month in court-ordered permanent periodic alimony. See Crick, 78 So.3d at 698 (“When determining whether a trial court abused its discretion in awarding alimony, this court considers whether the award exceeds or nearly exhausts a party’s income and is therefore not supported by competent, substantial evidence.” (internal quotation marks omitted)). But due to the trial court’s lack of findings on the record, we cannot make such a determination at this time.

Accordingly, we reverse and remand for the trial court to make the necessary findings of fact that will enable us to give an appropriate appellate review to the issue of the Former Husband’s ability to pay the amount ordered.

Reversed and remanded.

SILBERMAN and SLEET, JJ., Concur.

      . Because the trial court previously had entered a partial final judgment dissolving the parties' marriage and setting forth the equitable distribution, the court likewise styled the instant order as a partial final judgment. However, the instant order disposes of any remaining issues between the parties, and as such, we review it as a final order pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A).

      . This has not been paid, nor has there been established any plan by which the Former Husband is to pay this amount.

      . The Former Husband's financial affidavit shows that deficit to be $8001.


author: KELLY, Judge.

text:
    Renato R. REMAK, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1568.
    District Court of Appeal of Florida, Second District.
    May 21, 2014.
    Rehearing Denied July 21, 2014.

      Renato R. Remak, Jr., pro se.
   KELLY, Judge.

Renato R. Remak, Jr., appeals the post-conviction court order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm but write to explain our reasoning with regard to Mr. Remak’s claim that his trial counsel was ineffective for not pursuing his right to a speedy trial under Florida Rule of Criminal Procedure 3.191.

Mr. Remak was tried by jury and found guilty of two counts of attempted second-degree murder. At trial, Mr. Remak’s friend testified that he was playing cards with Mr. Remak when the victims approached Mr. Remak. The victims threatened Mr. Remak, an argument ensued, and the victims left. Shortly thereafter, Mr. Remak followed them. Mr. Remak’s friend and another man accompanied him. The friend saw Mr. Remak approach the victims and heard him suggest a fight. He then saw Mr. Remak pull out a gun and shoot in the direction of the victims. The friend immediately ran away, hearing two more shots as he fled. One of the victims testified that he and his brother were walking when they heard Mr. Remak behind them. Mr. Remak threatened them, and then they heard a shot. The victim turned around, and he saw Mr. Remak holding a gun. He noticed Mr. Remak’s friends were across the street. The victims continued walking, and two more shots were fired. The third shot hit one of the victims. Additionally, three men jailed with Mr. Remak testified that he made incriminating admissions.

The trial court sentenced Mr. Remak to a term of twenty-five years’ imprisonment for the first count and a consecutive term of twenty years’ imprisonment for the second count. This court affirmed Mr. Remak’s convictions and sentences. Remak v. State, 54 So.3d 982 (Fla. 2d DCA 2011) (table decision).

In ground nine of his motion, Mr. Remak contended that his trial attorneys were ineffective for not adopting his pro se demands for speedy trial and for waiving his right to a speedy trial. Mr. Remak alleged that he was arrested on August 29, 2008, and that he filed several pro se demands for speedy trial before the final attorney who was appointed to represent him waived his speedy trial rights on March 18, 2009. He was not tried until February 1, 2010. Mr. Remak contended that he was prejudiced by his attorneys’ failures to assert his speedy trial rights because the State would not have been able to produce evidence sufficient to convict him or proceed to trial within the recapture window provided in rule 3.191(p)(3). According to Mr. Remak’s motion, at the time the demands were filed, the State’s witnesses had given contradictory statements and had not identified Mr. Remak as the person who shot at the victims. Mr. Remak farther contended that he was prejudiced because Terrance Davis, a witness who was available at the time he filed his demands for speedy trial but unavailable when the trial commenced, would have testified that he witnessed the incident and Mr. Remak did not shoot at the victims.

Claims of ineffective assistance of trial counsel require a movant to show both deficient performance and prejudice. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, a movant must show that trial counsel’s conduct fell “outside the broad range of competent performance under prevailing professional standards.” Gore v. State, 846 So.2d 461, 467 (Fla.2003). To establish prejudice, a movant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Sochor v. State, 883 So.2d 766, 771 (Fla.2004) (quoting Strickland, 466 U.S. at 694,104 S.Ct. 2052).

Thus, a claim of ineffective assistance of counsel based on a failure to assert a movant’s speedy trial rights under rule 8.191 requires a movant to show that trial counsel made an unreasonable decision not to pursue a movant’s speedy trial rights and that trial counsel’s unreasonable decision prejudiced the movant. Prejudice is established by showing either that the State could not have brought the movant to trial within the recapture window provided in rule 3.191(p)(3), see Dexter v. State, 837 So.2d 595, 596 (Fla. 2d DCA 2003) (holding that “in order to show prejudice from counsel’s failure to give notice that the speedy trial period has expired, a defendant would have to allege that the State could not have brought him to trial within the recapture period”), or that the quality of the State’s case within the recapture window would have been diminished so severely that there is a reasonable probability that the movant would have been acquitted or convicted of a lesser crime if the State had been forced to proceed, see Ryland v. State, 880 So.2d 816, 817 (Fla. 1st DCA 2004) (reversing summary denial where the movant “alleged that his co-defendants were arrested and charged after his speedy trial period began” and that “he was prejudiced by his counsel’s inaction because it (1) precluded his discharge; (2) allowed the state to broker a deal with a co-defendant, which resulted in detrimental testimony against him; and (3) allowed him to be tried with co-defendants who also provided prejudicial testimony”).

As the Fourth District Court of Appeal noted in Hammond v. State, 34 So.3d 58, 60 (Fla. 4th DCA 2010), “[a] claim of ineffective assistance of counsel based on a failure to seek discharge because of a violation of the speedy trial rule is extremely tenuous where the State had available the recapture window of Rule 3.191(p)(3),” which was added in 1985 to give “the system a chance to remedy a mistake.” Fla. R. Crim. P. 3.191 committee notes 1984 amendment; Florida Bar Re: Amend, to Rules-Criminal Procedure, 462 So.2d 386 (Fla.1984). To plead a facially sufficient claim of prejudice, a movant must allege specific facts that demonstrate that the State could not have brought the movant to trial within the recapture window provided in rule 3.191(p)(3) or that demonstrate that the quality of the State’s evidence would have diminished if the State had been forced to proceed within the fifteen-day recapture window. See Spera v. State, 971 So.2d 754, 758 (Fla.2007) (quoting Jacobs v. State, 880 So.2d 548, 550 (Fla.2004) (explaining that a facially sufficient rule 3.850 motion “sets out a cognizable claim for relief based upon the legal and factual grounds asserted”)). Unless a movant pleads a prima facie basis for concluding there is a reasonable probability that the outcome of the trial would have differed, such a claim should be dismissed as insufficiently pleaded.

Mr. Remak failed to plead a facially sufficient claim. He referenced no specific dates with regard to the available evidence, and he did not explain why the State would not have been able to bring him to trial or how the State’s evidence would have differed if the State had been forced to trial at an earlier date. To plead a claim upon which relief could be granted, Mr. Remak had to allege specific circumstances that existed at the time the allegedly deficient performance occurred that would have diminished the State’s case if he were brought to trial at that time. For example, he would have to explain: which witnesses allegedly had not identified him as the shooter; how the witnesses’ statements conflicted; and how the available evidence would have adversely affected the State’s case if trial counsel had adopted a specific pro se demand for speedy trial and the State had been forced to proceed within the specified recapture window.

This court has reversed denials of insufficiently pleaded claims similar to Mr. Remak’s and remanded for the postconviction courts to follow the procedure explained in Spera, 971 So.2d at 761-62, by striking the claims and permitting an opportunity to amend. See Gamble v. State, 996 So.2d 946, 948 (Fla. 2d DCA 2008); Smith v. State, 988 So.2d 693, 694 (Fla. 2d DCA 2008). However, remand is not warranted in Mr. Remak’s case because the record attachments conclusively show that Mr. Remak cannot amend his claim to state a cognizable claim for relief. See Spera, 971 So.2d at 762 (explaining that a postconviction court should not permit the amendment of pleadings if the record conclusively refutes the allegations).

Assuming for the purpose of this analysis that none of the delay could be attributed to Mr. Remak, the record attachments show that Mr. Remak cannot prove that there is a reasonable probability that the outcome of his trial would have differed if the State had been forced to try him at an earlier date. The victims knew Mr. Remak; one victim had prior contact with him on “numerous” occasions. He saw Mr. Remak holding a gun immediately after the first shot and seconds before the second and third shots. Mr. Remak’s friend saw Mr. Remak shoot at the victims. Several witnesses saw the victims confront Mr. Remak minutes before the shooting occurred, and at least one additional man accompanied Mr. Remak as he pursued the victims. The record conclusively shows that Mr. Remak’s identity was not at issue, and there is no indication that the witnesses who testified at trial or other witnesses to the confrontation and shooting would not have been available to testify at an earlier date. For that reason, Mr. Remak’s contention that the State would not have been able to try him if Terrence Davis were available to testify that he did not shoot at the victims is also conclusively refuted by the record. Although the State may have lacked the testimony of the jailhouse informants, the record attachments show that the informants’ testimony was substantially impeached, and the State’s evidence was sufficient — even overwhelming — without the informants’ testimony.

In rare claims of ineffective assistance of counsel related to a speedy trial claim under rule 3.191, prejudice to the movant may be apparent. For example, an attorney’s failure to comply with specific procedural requirements when asserting the right may undermine confidence in the outcome of the proceeding. See Gee v. State, 13 So.3d 68, 69 (Fla. 1st DCA 2009) (reversing summary denial where the movant alleged that counsel twice failed to file a notice of expiration of speedy trial time prior to moving for dismissal on speedy trial grounds, as required by Florida Rule of Criminal Procedure 3.191, and the trial judge expressed doubt about finding a jury during the rule 3.191 recapture window but denied the motion to dismiss because defense counsel had failed to follow the proper procedure). And prejudice may be clear when the State is not entitled to the recapture window in rule 3.191(p)(3). See Wells v. State, 881 So.2d 54, 55 (Fla. 4th DCA 2004) (reversing summary denial where the State’s notice of refiling of charges, though sent within speedy trial period, was sent to an incorrect address and did not constitute sufficient notice to afford the State the fifteen-day recapture window). But when a claim of ineffective assistance of trial counsel is based on a failure to assert a movant’s right to a speedy trial under rule 3.191, claims of prejudice will almost always be speculative. See Hammond, 34 So.3d at 60. It is incumbent upon the movant to overcome speculation by reconstructing the circumstances that existed at the time the movant claimed deficient performance occurred and demonstrate a reasonable probability that the quality of the State’s case would have substantially differed at that time. Mr. Remak failed to meet this burden.

Affirmed.

NORTHCUTT and VILLANTI, JJ., concur.

      . Even if a movant makes a prima facie showing of prejudice that is not conclusively refuted by the record, a movant may still not be entitled to an evidentiary hearing if the record conclusively shows that the delay was attributable to the movant or that exceptional circumstances, as defined in Florida Rule of Criminal Procedure 3.191(l), existed.


author: JOHNSON, C.J.

text:
    STATE of Louisiana v. Joshua WILLIAMS and Duane Henry.
    No. 2013-KK-820.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 365-387; to the Court of Appeal, Fourth Circuit, No. 2013-K-0448.

[, Granted. The district court’s order granting respondents’ Motion to Correct an Illegal Sentence is reversed. The decision in Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not apply retroactively in respondents’ cases. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, No. 13-8915, — U.S. —, 134 S.Ct. 2663,189 L.Ed.2d 214, 2014 WL 834279 (May 27, 2014).

JOHNSON, C.J., dissents and would deny the writ with reasons.

JOHNSON, C.J.

dissents and would deny the writ.

|I respectfully dissent. On June 25, 2012, the United States Supreme Court issued an opinion in Miller v. Alabama, which held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. I dissented from this court’s ruling in Tate, finding that Miller announced a new rule of criminal procedure that is substantive and consequently should apply retroactively. For the same reasons expressed in my dissent in Tate, I must dissent in this case.


text:
    STATE of Louisiana v. Albert LANDRY.
    No. 2013-KD-1171.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 256-545, Keva Land-rum-Johnson, J.; to the Court of Appeal, Fourth Circuit.

|T Granted. The district court erred in failing to grant the state’s motion to stay the re-sentencing hearing. The decision in Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) does not apply retroactively in the defendant’s case. See State v. Tate, 12-2763 (La.11/5/13); 130 So.3d 829, cert. denied, Tate v. Louisiana, No. 13-8915, — U.S. —, 134 S.Ct. 2663,189 L.Ed.2d 214, 2014 WL 834279 (May 27, 2014). We recall our previous per curiam opinion in this matter, which remanded to the district court to reconsider the sentence in this case after conducting a new sentencing hearing in accordance with the principles enunciated in Miller v. Alabama, supra. See State ex rel. Landry v. State, 2011-0796 (La.1/18/13); 106 So.3d 106. The district court did not err when it denied relator’s Motion to Correct an Illegal Sentence.

JOHNSON, C.J., dissents and would deny the writ with reasons.

JOHNSON, C.J.

dissents and would deny the writ.

|,1 respectfully dissent. On June 25, 2012, the United States Supreme Court issued an opinion in Miller v. Alabama, which held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. I dissented from this court’s ruling in Tate, finding that Miller announced a new rule of criminal procedure that is substantive and consequently should apply retroactively. For the same reasons expressed in my dissent in Tate, I must dissent in this case.


author: JOHNSON, C.J.,

text:
    STATE of Louisiana v. Darnell HUNTLEY.
    No. 2013-K-1932.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Huntley, Darnell; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Vermillion, 15th Judicial District Court Div. B, No. 22045; to the Court of Appeal, Third Circuit, No. KW 13-27.

11Denied. The court of appeal did not err in finding that Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) does not apply retroactively in relator’s case. State v. Huntley, 13-127 (La.App. 3 Cir. 7/10/13), 118 So.3d 95. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, No. 13-8915, — U.S.—, 134 S.Ct. 2663, 189 L.Ed.2d 214, 2014 WL 834279 (May 27, 2014).

JOHNSON, C.J., dissents and would grant the writ and assigns reasons.

JOHNSON, C.J.,

dissents and would grant the writ.

1,1 respectfully dissent. On June 25, 2012, the United States Supreme Court issued an opinion in Miller v. Alabama, which held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. I dissented from this court’s ruling in Tate, finding that Miller announced a new rule of criminal procedure that is substantive and consequently should apply retroactively. For the same reasons expressed in my dissent in Tate, I must dissent in this case.


author: THERIOT, J.

text:
    Byard “Peck” EDWARDS, Jr. v. Andrew M. EDWARDS, II and Beryl Edwards Trawick.
    No. 2013 CA 0114.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 18, 2014.
    Rehearing Denied March 24, 2014.
    James S. Knight, Franklinton, Louisiana, for Plaintiff/Appellant, Byard Edwards, Jr.
    John Bel Edwards, Amite, Ron S. Maca-luso, Hammond, Andrew M. Edwards, II, Ponchatoula, Louisiana, for Defendant/Ap-pellee, Andrew M. Edwards, II.
    Before WHIPPLE, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

12This suit arises from a dispute between siblings over shares of bank stock originally owned by the siblings’ parents. Plaintiff, Byard “Peck” Edwards, Jr. (“Peck”), alleges that his brother, Andrew Edwards (“Andrew”), in his capacity as the executor of their parents’ successions, concealed the existence of the stock and refused to turn the stock over to the rightful owners. The trial court granted summary judgment in favor of Andrew, dismissing Peck’s suit with prejudice. Peck appeals the dismissal of his suit. We affirm.

FACTS AND PROCEDURAL HISTORY

Byard Edwards, Sr., father of Peck and Andrew, died in 1993. His estate included shares of Citizens Bank stock, the naked ownership of which he willed to Peck’s adult children, Ashley and Hawk. The bank stock was subject to successive usufructs in favor of his wife, Neville Reid Edwards, and then Peck, for their lifetimes. In 1995, Peck signed a Joint Petition for Possession in Mr. Edwards’s succession and acknowledged his usufructuary interest in the stock.

In 2000, while the bank stock was still subject to the lifetime usufruct in favor of Mrs. Edwards, the IRS sent a Notice of Levy to Andrew, as executor of Mr. Edwards’s succession, regarding $739,667.92 in taxes owed by Peck. The Notice affected Peck’s “property and rights to property” and instructed Andrew to “Turn over any other money, property, credits, etc. that you have or are already obligated to pay the taxpayer, when you would have paid it if this person asked for payment.”

Mrs. Edwards died in 2003, triggering Peck’s usufruct of the bank stock. At the time of Mrs. Edwards’s death, the 2000 levy on Peck’s | «property had not been cancelled. Several weeks after Mrs. Edwards’s death, Andrew received another IRS Notice of Levy in the amount of $931,751.86 for taxes owed by Peck. Andrew received a third Notice of Levy regarding Peck’s property in 2006 in the amount of $1,074,45232.

As a result of the notices of levy, Andrew retained possession of the bank stock during Peck’s usufruct. However, in accordance with Peck’s written request, Andrew sent the IRS $90,000.00 in 2007 as a partial payment of Peck’s federal tax debt. The $90,000.00 came primarily from Peck’s usufruct of the bank stock.

On December 17, 2009, Peck executed a Transfer of Usufructuary Rights as Payment of Debt in which he relinquished, transferred, and delivered to his children, Ashley and Hawk, “all of his rights of usufruct over any and all of the assets in the Estate of Byard Edwards, Sr. and the Estate of Neville Reid Edwards ... with warranty and with full subrogation to all rights of warranty in said usufructuary rights which are held by Byard “Peck” Edwards, Jr.” In exchange for this transfer of usufructuary rights to the bank stock, Ashley and Hawk agreed to forgive Peck’s debt arising from two promissory notes in the total amount of $475,000.00.

On July 21, 2010, subsequent to Peck’s transfer of his usufructuary interests in the bank stock, the IRS released the levy on Peck’s property and rights to property.

On August 5, 2011, Peck filed suit against Andrew and their sister Beryl Edwards Trawick, alleging that Andrew had retained possession and control of the bank stock after the administration of their parents’ successions had ended without informing Peck, Ashley, or Hawk of the existence of their rights in the bank stock. Peck also alleged that Beryl sold some of the stock which was mistakenly registered in her name, even though Peck had |4usufructuary rights to the stock. Although Peck had already transferred his usufructuary rights to the stock at the time he filed suit, he alleged that “because of the wrongful acts of the two defendants ... [he] was deprived of his right to the opportunity to utilize all of his usufructuary rights inherent therein and the defendant’s [sic] are liable therefore unto him for all amounts and special and general damages suffered by plaintiff.”

Andrew filed a motion for summary judgment, asserting that Peck has no rights to the bank stock due to the 2009 transfer of his usufructuary rights to Ashley and Hawk. Andrew also sought summary judgment on the grounds that he is immune under federal tax law from any liability. Finally, Andrew asserted that Peck’s claims are res judicata, as he has made the same allegations in two prior suits which were both dismissed with prejudice.

After a hearing, the trial court granted summary judgment and dismissed all of Peck’s claims against Andrew with prejudice. In so ruling, the trial court found that Peck had no rights to the bank stock until Mrs. Edwards’s death in 2003. By the time of her death, the tax levy was in place. By the time the IRS cancelled the liens, Peck had transferred all of his rights relating to the bank stock to Ashley and Hawk. The trial court reasoned that since Andrew was never discharged as executor of his father’s succession in accordance with La. C.C.P. art. 3391, he continued to have the responsibilities of an executor, and therefore Andrew could not deliver anything to Peck because under 26 U.S.C. § 6332, Peck’s rights in the bank stock were held in custody for the United States until the tax levies were completely released.

Peck appealed, alleging that his transfer of his usufructuary rights to his children did not transfer his right to seek the fruits which accrued during his usufruct; that the tax levies did not prohibit Andrew from transferring the | -stocks and fruits to Peck after his mother’s death; that the stocks were not subject to the levies; that Andrew did not hold the stocks in custody for the United States until the levies were released; and that Andrew was not acting as executor of his father’s succession after the judgment of possession was filed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Fernandez v. Hebert, 06-1558, p. 8 (La.App. 1 Cir. 5/4/07), 961 So.2d 404, 408, writ denied, 07-1123 (La.9/21/07), 964 So.2d 333. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Anglin v. Anglin, 05-1233, p. 5 (La.App. 1 Cir. 6/9/06), 938 So.2d 766, 769. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Fernandez, 06-1558 at 8, 961 So.2d at 408. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2).

lfiIn determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at p. 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (Rho Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

An incorporeal right to which a person has been subrogated, either conventionally or by effect of law, shall be enforced judicially by the subrogee when the entire right is subrogated. La. C.C.P. art. 697(2). Furthermore, an incorporeal right which has been assigned shall be enforced judicially by the assignee when the entire right is assigned. La. C.C.P. art. 698(2). If there has been a total subrogation or assignment of a right, suit may not be brought to enforce that right in the name of the subrogor/assignor, as he has no right of action. See La. C.C.P. art. 697, Comment (c) and art. 698, Comment (d).

In the Transfer of Usufructuary Rights as Payment of Debt, Peck agreed to “relinquish, transfer and deliver ... all of his rights of usufruct over any and all of the assets in the Estate of Byard Edwards, Sr. and the Estate of Neville Reid Edwards ... with warranty and full subrogation to all rights of warranty in said usufructuary rights which are held by Byard “Peck” Edwards, Jr.” (emphasis added). It is clear from the language of this agreement that Peck transferred the entirety of his usufructuary rights to his children. As a result of the Transfer of Usufructruary Rights as Payment of Debt, Peck no longer had any real and actual interest in the usufruct. | ./Therefore, once Ashley and Hawk were assigned and subrogated to the entirety of Peck’s usufructuary rights, Peck no longer had a right of action to raise claims arising from the usufruct. See La. C.C.P. art. 681.

Because we have concluded that Peck no longer has a right of action to raise any claims arising from the usufruct. Peck’s remaining assignments of error are moot.

CONCLUSION

The trial court judgment granting summary judgment and dismissing all of Peck’s claims against Andrew with prejudice is affirmed. Costs of this appeal are assessed to Byard “Peck” Edwards, Jr.

AFFIRMED.

      . Hawk’s full name is Byard Edward, III.

      . Usufruct is an incorporeal thing. La. C.C. art. 540.


author: CRAIN, J.

text:
    Evorjia WOODARD v. James Robert UPP, Jr., M.D. and Our Lady of the Lake Regional Medical Center.
    No. 2013 CA 0999.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 18, 2014.

      Peter “Q” John, Baton Rouge, Louisiana, for Plaintiff/Appellant, Evorjia Woodard.
    Jason R. Cashio, and Thomas R. Temple, Jr., Baton Rouge, Louisiana, for Defendants/Appellees, James Robert Upp, Jr. M.D. and Our Lady of the Lake Regional Medical Center.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

|2In this medical malpractice action, the plaintiffs appeal a judgment sustaining a dilatory exception of lack of procedural capacity and a peremptory exception of prescription, and dismissing all claims with prejudice. We affirm in part, amend in part, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Evorjia Woodard filed a petition for damages against James Robert Upp, Jr., M.D., and Our Lady of the Lake Regional Medical Center (Hospital), on April 9, 2012, alleging that the defendants breached the standard of care while treating Mrs. Woodard’s minor daughter, Alexis Woodard, who was later transferred to another hospital where she died. According to the petition, it was filed by “Evorjia Woodard, a major individual, domiciled in the Parish of East Baton Rouge, City of Baton Rouge, State of Louisiana, for and on behalf of her deceased minor daughter and through her undersigned attorney....”

Dr. Upp and the Hospital responded to the petition by filing a dilatory exception raising the objections of lack of procedural capacity and nonconformity of the petition with the requirements of Louisiana Code of Civil Procedure article 854. The defendants primarily argued that the petition lacked sufficient allegations to establish that Mrs. Woodard was the natural tutor of Alexis pursuant to Louisiana Code of Civil Procedure article 4061.1. By judgment signed on | sOctober 15, 2012, the trial court granted the exceptions but permitted Mrs. Woodard fifteen days to amend her petition.

On November 5, 2012, Mrs. Woodard filed an amended petition for damages that added a new plaintiff, Ado Woodard (Mr. Woodard), and alleged that Mrs. Woodard and Mr. Woodard were legally married and that Alexis was born of the marriage. Dr. Upp and the Hospital again filed an exception of procedural capacity as “to the claims of plaintiff, Evorjia Woodard,” arguing that the child’s father, Mr. Woodard, was the proper party to assert any claims on behalf of their deceased minor child pursuant to Louisiana Code of Civil Procedure article 683. Subpart C of Article 683 provides, in pertinent part, “The father, as administrator of the estate of his minor child, is the proper plaintiff to sue to enforce a right of an unemancipated minor who is born of the marriage of parents who are not divorced or judicially separated.” As to the claims filed by Mr. Woodard, the defendants asserted a peremptory exception of prescription and argued that the medical malpractice action prescribed on August 8, 2012. Citing Warren v. Louisiana Medical Mutual Insurance Company, 07-0492 (La.12/2/08), 21 So.3d 186, Dr. Upp and the Hospital asserted that the amended petition did not relate back to the filing of the original petition on April 9, 2012, and, therefore, the claims filed by Mr. Woodard had prescribed. The defendants requested that the exceptions be sustained and that there be judgment “dismissing plaintiffs’ amended petition” with prejudice.

The record on appeal does not contain the memorandum filed on behalf of Mr. and Mrs. Woodard in opposition to the exceptions; however, at the hearing on the exceptions, plaintiffs’ counsel essentially argued that applying Article 683C to prevent Mrs. Woodard from filing a claim on behalf of her deceased minor daughter would be unfair and suggested that Article 683C was unconstitutional. |4At the conclusion of the hearing, the trial court granted the exceptions, finding that Mrs. Woodard did not have the capacity to bring the suit under Article 683 and that she had “not completed the procedural formalities to become the administratrix” of her daughter’s estate. The trial court further held that Mr. Woodard’s claim had prescribed. A judgment was signed on March 25, 2013, dismissing all of the plaintiffs’ claims with prejudice. Mr. and Mrs. Woodard appealed.

LAW AND ANALYSIS

On appeal, Mrs. Woodard argues that Article 683C is unconstitutional or should not be applied to the facts of this case; and, therefore the trial court erred in sustaining the dilatory exception of lack of procedural capacity. Dr. Upp and the Hospital contend that Mrs. Woodard should be precluded from challenging the constitutionality of Article 683C because she did not assert the unconstitutionality of the article in a pleading filed with the trial court. See Vallo v. Gayle Oil Company, Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 864-865.

We pretermit consideration of Mrs. Woodard’s constitutional challenge to Article 683C and any procedural deficiencies inherent in that challenge because (1) we find Article 683C does not apply to the facts of this case, and (2) the trial court’s ruling is supported by the alternative basis cited by the court insofar as it sustained the exception of lack of procedural capacity and dismissed the claims filed by Mrs. Woodard in a representative capacity on behalf of her deceased child.

A. Dilatory Exception of Lack of Procedural Capacity

The dilatory exception of lack of procedural capacity raises the issue of want of capacity of the plaintiff to institute and prosecute the action and stand in | ¿judgment and/or challenges the authority of a plaintiff who appears in a purely representative capacity. See La.Code Civ. Pro. art. 926A(6); Palowsky v. Premier Bancorp, Inc., 597 So.2d 543, 546 (La.App. 1 Cir.1992). “Lack of capacity” is not synonymous with no right of action. Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 10/6/00), 808 So.2d 363, 369, writ denied, 803 So.2d 971 (La.12/7/01). Lack of procedural capacity is a dilatory exception which tests a party’s legal capacity to bring a suit. Horrell, 808 So.2d at 369.

It is not necessary to allege the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of a legal entity or an organized association of persons made a party. Such procedural capacity shall be presumed, unless challenged by the dilatory exception. La.Code Civ. Pro. art. 855. The determination of whether a party has the procedural capacity to sue or be sued involves a question of law, which is reviewed under the de novo standard of review to determine whether the ruling of the trial court was legally correct. Swift v. Juvenile Court, 09-1182 (La.App. 3 Cir. 3/10/10), 2010 WL 786031 (unpublished opinion), writ denied, 10-1139 (La.9/17/10), 45 So.3d 1048.

B. Claims Filed in Representative Capacity

Mrs. Woodard and the defendants focus their appellate arguments on Article 683C. Subpart A of Article 683 provides that an unemancipated minor does not have procedural capacity, and Subparts B through D identify the proper parties to enforce a right of an unemancipated minor; however we interpret the article to govern the enforcement of a claim of a living minor, not a deceased minor. This interpretation is supported by the facts of the cases cited by the defendants, as each of those cases involved a parent’s capacity to file a personal injury claim on behalf of a living minor. See Wiggins v. State Through Department of Transportation and Development, 97-0432 (La.App. 1 Cir. 5/15/98), 712 So.2d 1006, 1008, writ not [ ficonsidered, 98-1652 (La.9/25/98),726 So.2d 6; Cosey v. Allen, 316 So.2d 513, 516 (La.App. 1 Cir.1975); Alexander v. Town of Jeanerette, 371 So.2d 1245, 1246 (La.App. 3 Cir.1979). See also Scott v. Jack’s Cookie Company, 413 So.2d 1334, 1335 (La.App. 1 Cir.1982). Therefore, we find Article 683 to be inapplicable to the facts of this case.

The enforcement of a right of a deceased person is governed by Article 685, which provides that the “succession representative appointed by a court of this state is the proper plaintiff to sue to enforce a right of the deceased or of his succession” while a succession is under administration. If no succession is open and under administration, an heir can sue directly, in his or her own name, without having been recognized as such by the probate court; all that is required is that he furnish satisfactory evidence of his right to inherit. See La.Code Civ. Pro. art. 426; La. Civ.Code arts. 935, 938; Sherar v. Besse, 07-2003, p. 5 (La.App. 1 Cir. 8/12/09), 2009 WL 2461303 (unpublished opinion), writ denied, 09-1993 (La.11/20/09), 25 So.3d 799; Jones v. McDonald’s Corp., 618 So.2d 992, 996 (La.App. 1 Cir.1993); see also La.Code Civ. Pro. art. 801.

Mrs. Woodard attempts to assert claims in a representative capacity on behalf of her deceased daughter. Pursuant to Article 685, representative claims of that nature may only be pursued by an appointed succession representative while a succession is under administration. Mrs. Woodard did not allege nor prove that a succession has been opened and is under administration for her deceased daughter or that she had been appointed as the succession representative. Accordingly, she lacks the procedural capacity to file a suit in a representative capacity on behalf of her deceased minor daughter. See La.Civ.Code art. 685; Horrell, 808 So.2d at 369 (plaintiff who was not the appointed succession representative lacked the legal capacity to file suit on behalf of the succession). Accordingly, we find the trial court properly granted the exception as to any claims filed by Mrs. Woodard in a 17purely representative capacity on behalf of her deceased minor daughter. However, the dismissal of these claims should have been without prejudice. When a suit is dismissed for failure of a party to comply with a judgment sustaining a dilatory exception and ordering the plaintiff to remove the objection raised by the exception, the dismissal must be without prejudice. Lemoine v. Roberson, 366 So.2d 1009, 1012 (La.App. 1st Cir.1978) (where plaintiff lacked procedural capacity to bring action on behalf of her child because she had never qualified as tutrix of the minor, dismissal of the suit should have been without prejudice). The trial court’s judgment ordering dismissal of Mrs. Woodard’s claims in a representative capacity on behalf of her deceased minor daughter will be amended accordingly.

C. Claims Filed in Individual Capacity

The exception of lack of procedural capacity was directed at “the claims of the plaintiff, Evorjia Woodard” and requested that the trial court dismiss “plaintiffs’ amended petition with prejudice.” Pursuant to that request, the trial court sustained the exception and dismissed “plaintiffs’ claims” with prejudice. We find that the trial court erred in dismissing all of plaintiffs’ claims. The original petition provides that it was filed by Mrs. Woodard as “a major individual, domiciled in the Parish of East Baton Rouge, City of Baton Rouge, State of Louisiana, for and on behalf of her deceased minor daughter and through her undersigned attorney .... ” This introduction is followed by detailed factual allegations about her daughter’s medical treatment and associated complications that ultimately led to her death. The petition further provides, “Plaintiff itemizes the damages ... which she is entitled to recover as a result of the death of her minor daughter, as follows:

a. Mental anguish, grief, pain, and emotional distress and sufferings;
b. Loss of enjoyment of life;
_j£. Loss of life; and
d. Medical expense[;]
e. As well as other elements of personal injury damages to be shown at the trial should this matter proceed to trial.

The petition concludes with a prayer for relief that includes a request for “an award of compensatory damages to Plaintiff, Evorjia Woodard, and against defendants, jointly and severally, for the wrongful death of her daughter and survival action in an amount to be determined at trial.”

A pleading must be reasonably construed so as to afford the litigant his day in court, arrive at the truth, and do substantial justice. La.Code Civ. Pro. art. 865; First Nat. Bank of Picayune v. Pearl River Fabricators, Inc., 06-2195 (La.11/16/07), 971 So.2d 302, 308. Construing the petition in its entirety, we find the allegations are sufficient to set forth claims by Mrs. Woodard in her individual capacity.

A competent major and a competent emancipated minor have the procedural capacity to sue. La.Code Civ. Pro. art. 682. A natural person who has reached majority has capacity to make all sorts of juridical acts, unless otherwise provided by legislation. La. Civ.Code art. 28. Mrs. Woodard’s procedural capacity to pursue her individual claims is presumed because it was not challenged by the defendants in the exception of lack of procedural capacity. See La.Code Civ. Pro. art. 855; Horrell, 808 So.2d at 369. Accordingly, the trial court erred to the extent it granted the exception of lack of procedural capacity and dismissed Mrs. Woodard’s claims pursued in her individual capacity.

^CONCLUSION

The March 25, 2013 judgment of the trial court is affirmed to the extent it sustained the exception raising the objection of lack of procedural capacity as to the claims filed by Mrs. Woodard in a purely representative capacity on behalf of her deceased minor daughter, but the judgment is amended to provide that the dismissal of those claims shall be without prejudice. The judgment is reversed to the extent it dismissed Mrs. Woodard’s claims filed in her individual capacity, including the survival action pursuant to Louisiana Civil Code article 2315.1 and the wrongful death action pursuant to Louisiana Civil Code article 2315.2. Costs of this appeal are assessed to James Robert Upp, Jr., M.D., and Our Lady of the Lake Regional Medical Center. This matter is remanded for further proceedings in accordance herewith.

AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART, AND REMANDED.

      . Article 4061.1, applicable to natural tutor-ships arising after the death of a parent or upon divorce or judicial separation, provides, in part, that "the natural tutor of a minor child may file an action for damages based on a delictual obligation without the necessity of qualifying as tutor pursuant to Article 4061 and without the necessity of filing a petition pursuant to Article 4031, if the natural tutor is any of the following ... [t]he surviving parent of the minor child [or] [t]he parent under whose sole care the minor child has been placed when the parents are divorced or judicially separated from bed and board....” La.Code Civ. Pro. art. 4061.1 A; see also La.Civ.Code arts. 250 and 257. Under Subpart B of Article 4061.1, the "petitioner in an action for damages based on a delictual obligation shall allege in the petition that he qualifies under Paragraph A of this Article to act of right as tutor, and the petitioner shall set forth the facts, including the relationship to the minor child, entitling the petitioner to act as tutor.”

      . Prior to the judgment, Mrs. Woodard obtained leave of court and filed an amended petition but later withdrew that amended petition by order of the court issued on October 31, 2012.

      . Although Mr. Woodard joined in the motion for appeal, he did not file a brief with this court; nor has Mrs. Woodard advanced any argument for the modification or reversal of the judgment to the extent it sustained the exception of prescription and dismissed Mr. Woodard's claims. Therefore, our review of the trial court's judgment does not extend to the granting of the exception of prescription and dismissal of Mr. Woodard's claims, as that portion of the judgment is final. See Uniform Rules — Courts of Appeal, Rules 1-3 and 2-12.4; Franklin v. AIG Casualty Company, 13-0069, n. 3 (La.App. 1 Cir. 6/7/13), 2013 WL 3475773 (unpublished opinion).

      . A survival action under Louisiana Civil Code article 2315.1 is not a claim pursued in a representative capacity on behalf of the deceased victim, Rather, it is a cause of action granted to certain designated beneficiaries to recover the damages that a person suffered and would have been entitled to recover from a tortfeasor, if the person had lived. See In re Brewer, 05-0666 (La.App. 1 Cir. 5/5/06), 934 So.2d 823, 826, writ denied, 06-1290 (La.9/15/06), 936 So.2d 1278. Similarly, Article 2315.2 grants a "wrongful death action" to the same beneficiaries to recover such damages as the beneficiaries have suffered if a person dies as a result of a tort. In re Brewer, 934 So.2d at 827.


text:
    James DOGANS v. DEPARTMENT OF REVENUE.
    No. 2013 CA 1196.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 18, 2014.

      Ronald L. Wilson, New Orleans, Louisiana, for Plaintiff/Appellant, James Dogans.

      Mark E. Falcon, Daniel L. Avant, Baton Rouge, Louisiana, for Defendant/Appellee, Department of Revenue.
    Adrienne Bordelon, Baton Rouge, Louisiana, for Defendant/Appellee, Shannon S. Templet, Director, Department of State Civil Service.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

12James Dogans, a former employee of the Department of Revenue, State of Louisiana (Department), appeals a decision of the State Civil Service Commission that dismissed his appeal of the Department’s termination of his employment. We affirm.

FACTS AND PROCEDURAL HISTORY

In January of 2013, Dogans was employed as an auditor for the Department; however, due to illness he had been continually absent from his employment since February 29, 2012, a period of almost one year. On January 3, 2013, Dogans received a written notification from Joseph Vaughn, an assistant secretary for the Department, stating that Vaughn was recommending that Dogans be dismissed from his employment for non-disciplinary reasons pursuant to Civil Service Rule 12.6(a)l, which provides:

12.6 Non-disciplinary Removals
(a) An employee may be non-disciplin-arily removed under the following circumstances:
1. When, on the date the notice required by Rule 12.7 is mailed, hand delivered, or orally given, the employee is unable to perform the essential functions of his job due to illness or medical disability and has fewer than eight hours of sick leave. An employee removed under this provision shall be paid for all remaining sick leave.

According to the notification, Dogans’ available sick leave was exhausted on December 27, 2012, and he had exhausted his Family Medical Leave entitlement. The notification further advised that the position of employment held by Dogans “is critical to this agency’s ability to collect revenue, and the duties of the position must be performed without further delay.” Dogans was instructed to respond to |sDee Everett, the Human Resources Director, if he disagreed with any of the facts stated in the notification.

In a written response to Everett dated January 10, 2013, Dogans stated that he had an appointment with his doctor on February 11, 2013, to discuss the results of his therapy and to undergo some tests. If the results of his therapy were favorable, Dogans stated that he would “request permission to return to duty,” adding that if the test results “are also favorable, I can return to duty around March 4,2013.”

On January 25, 2013, Vaughn forwarded a second notification to Dogans confirming that he had been non-disciplinarily removed from classified service pursuant to Rule 12.6(a)l, effective February 4, 2013. Vaughn explained:

By pre-deprivation notice dated January 3, 2013, you were notified of the recommendation of removal. Therein reference was made to your continual absence from duty dating back to February 29, 2012; exhaustion of your sick leave entitlement as of the date of issuance of the pre-deprivation notice; your exhaustion of leave under the Family and Medical Leave Act; and the recommendation of removal in accordance with Civil Service Rule 12.6(a)l. Responsive to this notice, by letter dated January 10, 2013, you informed Ms. Dee Everett, Human Resources Director, of a scheduled appointment with your physician on February 11, 2013, and your expectation of being released to return to duty on or about March 4, 2013. To this date, you have not provided any documentation from your physician evidencing your release to return to work to perform your customary job duties.

Dogans appealed the termination of his employment to the State Civil Service Commission. In his appeal, Dogans did not deny that on the date of the pre-deprivation notice, he was unable to perform the essential functions of his job due to illness, and that he had exhausted his sick leave. Instead, he asserted that he informed the Human Resources Director that he had a doctor’s appointment scheduled on February 11, 2013, and, if cleared, he would return to work. He further stated that his immediate supervisor, Barry Kelly, had authorized him to |4use annual leave in lieu of sick leave on various occasions during the month of January. Do-gans further alleged that he had offered to return to work but was not permitted to return without a release from his doctor, Dogans maintained that by “rejecting his offer to return to work, and terminating him prior to exhaustion of the leave authorized by Mr. Kelly, the agency, through Mr. Vaughn, acted arbitrarily and capriciously.”

The Commission assigned the appeal to a referee who issued a notice to Dogans informing him that his appeal did not contest any of the elements of Rule 12.6(a)l. Dogans was ordered to show cause why his appeal should not be summarily dismissed and/or to amend his appeal to cure the defect. Dogans amended his appeal but again did not contest that on the date of the pre-deprivation notice, he was unable to perform the essential functions of his job due to illness, and that he had exhausted his sick leave. Dogans did supplement his appeal with copies of emails from his supervisor and an assistant that confirmed the granting of Dogans’ requests in January for annual leave. He also alleged that “he was able, and did in fact return, to work on January 22, 2013, and worked that day, and the following day, January 23, 2013, without any problems.” According to the amended appeal, Dogans “ceased working only because he was ordered to do so” by his supervisor, and he was “not able to provide a medical release due to the fact that his next medical appointment was not scheduled until February 11, 2013.” He further asserted that Rule 12.6(a)l is discretionary, and the Department’s decision to invoke it was arbitrary and capricious because he had returned to work and could perform the tasks. Dogans concluded by averring that the Department “should have permitted him ample time to provide the medical release that the [Department] thought he needed.... ”

IsThe referee issued a decision that summarily dismissed the appeal, finding that Dogans’ contentions were irrelevant to the validity of his removal and explaining:

Allowing an employee to use annual leave for absences due to illness, injury or medical treatment is at the appointing authority’s discretion under the Civil Service Rules. Mr. Dogans has not properly contested the elements of a [Rule] 12.6(a)! removal by alleging a delay in obtaining a release from his doctor, as he has not alleged that he was able to perform the essential functions of his job on January 3, 2013.
On January 3, 2013, (the date [the Department] delivered the pre-deprivation letter to Mr. Dogans), he was unable to perform the essential functions of his job due to illness or medical disability, and he had fewer than eight hours of sick leave. Despite being given an opportunity to do so, Mr. Dogans has not alleged sufficient specific facts supporting a conclusion that [Rule] 12.6(a)1 was violated by [the Department] in effecting his removal. Therefore, he has failed to allege a right of appeal to the Commission.

Dogans did not seek further review of the referee’s decision with the Commission and filed an appeal to this court. The referee’s decision constitutes a final decision of the Commission and is subject to appeal to this court pursuant to Article X, § 12(A) of the Louisiana Constitution. On appeal, Dogans contends that (1) the Commission erred in concluding that he offered no facts challenging his removal pursuant to Rule 12.6(a)1, and (2) assuming arguendo that the requirements for a non-disciplinary removal under Rule 12.6(a)1 were present, the Department acted arbitrary and capricious in effecting his removal prior to the expiration of his extended leave.

LAW AND ANALYSIS

Decisions of the Commission are subject to the same standard of review as a decision of a district court. King v. LSU Health Sciences Center, 03-1138 (La.App. 1 Cir. 4/2/04), 878 So.2d 544, 546. Factual determinations should not be reversed or modified unless clearly wrong or manifestly erroneous. King, 878 So.2d at 546; Gorbaty v. Department of State Civil Service, 99-1389 (La.App. 1 Cir. 6/23/00), 762 So.2d 1159, 1162, writ denied, 00-2534 (La.11/13/00), 774 So.2d |fi147. However, the issue before the court in the present appeal is a procedural one involving a determination of the sufficiency of an allegation rather than a factual finding. The deferential standard of review afforded to factual findings is therefore inapplicable to our review of the Commission’s decision for legal error. King, 878 So.2d at 546; Marcantel v. Department of Transportation and Development, 590 So.2d 1253, 1256 (La.App. 1 Cir.1991).

The Commission’s jurisdiction to hear appeals is limited to two categories of claims: discrimination claims under Article X, § 8(B) of the Louisiana Constitution, and removal or disciplinary claims under Article X, § 12(A). Louisiana Department of Agriculture and Forestry v. Sumrall, 98-1587 (La.3/2/99), 728 So.2d 1254, 1260. Chapter 13 of the Civil Service Rules governs appeals to the Commission, and Rule 13.14(d) authorizes a referee to summarily dismiss an appeal if the appellant has no legal right to appeal. Whether an employee has the right to appeal a decision to the Commission is analogous to the question of whether a plaintiff has stated a cause of action. King, 878 So.2d at 546; Ramirez v. Department of Social Services, 603 So.2d 795, 798 (La.App. 1 Cir.), writ denied, 608 So.2d 195 (La.1992). When a petition states a cause of action as to any ground or portion of the demand, an exception raising the objection of no cause of action must be overruled. Similarly, if the classified employee has alleged grounds upon which appeals are allowed, he has the right to appeal. The correctness of conclusions of law is not conceded for the purposes of a ruling on an exception raising the objection of no cause of action. King, 878 So.2d at 546-547; Ramirez, 603 So.2d at 798.

Dogans’ appeal was summarily dismissed because the referee found that Dogans did not contest the elements of his removal pursuant to Rule 12.6(a)l, 17namely that on the date of the pre-deprivation notice, he was “unable to perform the essential functions of his job due to illness or medical disability and [had] fewer than eight hours of sick leave.” Our supreme court has held that a rule providing for the permissible termination of an employee who is unable to perform his duties by reason of illness, and who has exhausted his sick leave, expresses a legal cause for dismissal. Bradford v. Department of Hospitals, 255 La. 888, 897, 233 So.2d 553, 556 (1970). In discussing the purpose of the rule, the Bradford court recognized:

The Rules make allowance for sick leave with pay for employees in the classified service.... But there is no law or rule that entitle[s] one who has become incapacitated by illness or accident to continue indefinitely in the service; and, after the allowance of sick leave prescribed by the Rules has been exhausted, it is a matter of administrative discretion as to how much longer the employee shall be allowed to retain his position in the classified service.

Bradford, 255 La. at 896, 233 So.2d at 556 (1970) (quoting excerpt of Commission’s findings set forth in Villemarette v. Department of Public Safety, Division of State Police, 129 So.2d 835, 838 (La.App. 1 Cir.1961)).

In support of his right to an appeal, Dogans first argues that Rule 12.6(a)l only applies if an employee is unable to return to work “on the effective date of removal.” Dogans maintains that the allegations in his appeal establish that the effective date of his removal was January 22, 2013, and that he was able to return to work that day and the next day. Therefore, according to Dogans, the allegations of his appeal establish that all of the grounds for a nondisciplinary removal pursuant to Rule 12.6(a)l were not present.

This argument relies on a version of Rule 12.6(a)1 that is no longer in effect. Prior to amendment in 2007, Rule 12.6(a)1 provided, in pertinent part, that an employee may be removed:

When, on the effective date of removal, the employee is unable to perform the essential functions of his job due to illness or medical disability and he has fewer than eight (8) hours of sick leave to his | ^credit and his job must be performed without further interruption [Emphasis added].

The Commission subsequently amended Rule 12.6(a)1, effective December 12, 2007, to provide, in pertinent part, that an employee may be removed:

When, on the date the notice required by Rule 12.7 is mailed, hand delivered, or orally given, the employee is unable to perform the essential functions of his job due to illness or medical disability and has fewer than eight hours of sick leave. [Emphasis added.]

As indicated, the relevant point in time for determining whether the employee was unable to perform the essential functions of his job and had fewer than eight hours of sick leave was changed from “the effective date of removal” to “the date the notice required by Rule 12.7 is mailed, hand delivered, or orally given” to the employee. According to the Commission, the amendment was necessary because:

Over the years agencies have complained that as soon as the employee receives notice that removal has been proposed, the employee returns to work, works a short period of time, earns more sick leave, runs out of sick leave, and the cycle begins again. The change would stop the “revolving door” problem.

Applying current Rule 12.6(a)1, Dogans’ appeal to the Commission did not dispute that as of January 3, 2013, the date of the pre-deprivation notice, he was unable to perform the essential functions of his job due to illness or medical disability, and he had fewer than eight hours of sick leave. His alleged attempts to return to work after that date are irrelevant to the application of Rule 12.6(a)1. 19Accordingly, we find no merit to the assertion that the referee erred in summarily dismissing the appeal because Dogans failed to contest the elements of his removal under Rule 12.6(a)1. See Dent v. Department of Corrections, Hunt Correctional Center, 460 So.2d 57, 58 (La.App. 1 Cir.1984) (affirming referee’s summary dismissal of appeal where referee found that “nowhere in the appeal does appellant deny or otherwise put at issue the facts on which her termination was based”); Broussard v. Department of Corrections, Louisiana Correctional and Industrial School, 405 So.2d 1219, 1221 (La.App. 1 Cir.1981) (affirming summary dismissal of appeal where employee admitted to having been absent and that her sick leave was exhausted).

Dogans next argues that his right to appeal to the Commission was established by allegations that Vaughn acted in an arbitrary and capricious manner by removing Dogans while he was on approved annual leave. Although Dogans’ appeal to the Commission contains a general allegation that the termination of his employment was “arbitrary and capricious,” the documents submitted therewith reflect without contradiction that he was removed from his employment for non-disciplinary reasons in accordance with the provisions of Rule 12.6(a)1. The pre-termination notice attached to his appeal to the Commission provides that Dogans was unable to perform the essential functions of his employment and had exhausted all of his sick leave as of that date. Dogans was instructed to respond to the Human Resources Director if he disagreed with those facts, and his subsequent response does not deny or otherwise contest those facts. To the contrary, his response confirms that he would not be able to return to work until about three 1 inmonths later, and then only if he receives favorable results from his therapy and medical tests.

The emails from Kelly (Dogans’ immediate supervisor) and his assistant confirm that Dogans was permitted to take annual leave during certain days in January of 2018, Dogans had exhausted his sick leave and was unable to return to work, so he requested and was permitted to use annual leave in lieu of sick leave. The Department had the discretion to allow Dogans to use annual leave under Rule 11.7. The discretionary allowance of that annual leave did not change or otherwise alter the fact that the requisite conditions for a removal under Rule 12.6(a)1 existed as of January 3, 2013. Annual leave cannot be considered in determining whether an employee has sick leave remaining under Rule 12.6(a)1. See Pierre v. Department of Natural Resources, Office of Environmental Affairs, 449 So.2d 596, 599 (La.App. 1 Cir.1984) (applying former Rule 12.10(a), now set forth at Rule 12.6(a)1).

As explained by the Department, the decision to allow Dogans to use annual leave was important only for payroll purposes, as it allowed him to remain on payroll during his continued absence pending the outcome of his pre-deprivation process. The Department’s only other alternative was to place Dogans on leave without pay pursuant to Rule 11.27. Dogans was permissibly removed from his employment under Rule 12.6(a)1 because on January 3, 2013, he was unable to perform the essential functions of his job due to illness or medical disability, and he had fewer than eight hours of sick leave. That removal was not rendered arbitrary or capricious by the Department’s decision to permit his use of annual leave in lieu of sick leave during the pre-deprivation process.

CONCLUSION

By relying on an attempt to return to work and the use of annual leave after his receipt of the pre-deprivation notice, Dogans attempts to utilize the “revolving _[ndoor” that the Commission effectively closed in 2007 when it amended Rule 12.6(a)1 to provide that the date of the pre-deprivation notice is the pertinent date for determining whether the employee was unable to perform the essential functions of his employment and had less than eight hours of available sick leave. Based upon our finding that Dogans’ appeal to the Commission did not set forth facts sufficient to establish his right to appeal we affirm the decision of the referee to summarily dismiss the appeal. All costs of this appeal are assessed to Dogans.

AFFIRMED.

      . Rule 12.6(b) further provides that when an employee is removed under this rule, the adverse consequences of Rules 6.5(c), 22.4(d), 23.16(a)4, 23.13(b), 11.18(b), and 17.23(e)4 “shall not apply.”

      . The January 3, 2013 notification will be referred to hereinafter as the “pre-deprivation notice.”

      . Rules adopted by the Civil Service Commission have the force and effect of laws. La. Const. Art. X, § 10(A)(4); Bradford v. Department of Hospitals, 255 La. 888, 897, 233 So.2d 553, 556 (1970).

      . See Shortess v. Department of Public Safety & Corrections, 06-2313 (La.App. 1 Cir. 9/14/07), 971 So.2d 1051, 1054, writ denied, 07-2293 (La.1/25/08), 973 So.2d 761.

      . See General Circular No. 001717, State of Louisiana, Department of State Civil Service (November 5, 2007); Annotations to the Civil Service Rules, Louisiana Department of State Civil Service (2nd Ed.2008), at pg. 96.

      . Rule 12.7 provides, "When an appointing authority proposes to discipline or remove a permanent employee, the employee must be given oral or written notice of the proposed action, the factual basis for and a description of the evidence supporting the proposed action, and a reasonable opportunity to respond,” Dogans does not dispute that the January 3, 2013 pre-deprivation notice satisfies the requirements of Rule 12.7, and he concedes that he received the notice on January 3, 2013.

      . See General Circular No. 001717, Explanation 2.

      .In determining whether Dogans has a right to appeal to the Commission, we consider the appeal and any documents annexed thereto. See King, 878 So.2d at 546 (right to appeal is analogous to whether a plaintiff has stated a cause of action); Paulsell v. State, Department of Transportation and Development, 12-0396 (La.App. 1 Cir. 12/28/12), 112 So.3d 856, 864, writ denied, 13-0274 (La.3/15/13), 109 So.3d 386 (an exception of no cause of action is triable solely on the face of the petition and any attached documents).