author: CASANUEYA, Judge.

text:
    W. Robert MATHEWS and Lura B. Mathews, Appellants, v. BRANCH BANKING & TRUST CO., Appellee.
    No. 2D13-4065.
    District Court of Appeal of Florida, Second District.
    June 6, 2014.
    David W. Wilcox, Bradenton, for Appellants.

      D. Brent Hargett of Sasser, Sefton, Brown, Tipton & Davis, P.C., Montgomery, Alabama, for Appellee.
   CASANUEYA, Judge.

W. Robert and Lura B. Mathews appeal an order awarding Branch Banking and Trust Co. (BB & T) surplus funds from the foreclosure sale of their home. The trial court found that BB & T was entitled to the entire surplus amount to satisfy a second mortgage interest in the property. We conclude that the trial court erred in awarding BB & T the surplus funds because it failed to file a claim with the clerk of the court within sixty days after the foreclosure sale as required by section 45.031(7)(b), Florida Statutes (2010).

Trial Court Proceedings

A foreclosure action was initiated by U.S. Bank National Association (U.S. Bank) against the Mathewses after they defaulted on their loan. US Bank named Colonial Bank, N.A., as a defendant in that action due to its second mortgage on the property. BB & T, as successor in interest to Colonial Bank, filed an answer and an affirmative defense alleging that “BB & T is entitled to receive the proceeds from the sale of the encumbered real property, in light of the mortgage in BB & T’s favor, in accordance with its priority in recording.”

A final judgment of mortgage foreclosure was entered in favor of U.S. Bank along with a notice of foreclosure sale. After the sale of the property, the clerk paid U.S. Bank the full amount of the judgment entered against the Mathewses and retained $124,369.43 in surplus funds. Approximately seven months after the foreclosure sale and disbursement of funds as required by the final judgment, the Mathewses filed a claim for the foreclosure surplus funds. Over three months later, BB & T filed its claim for the foreclosure surplus. In its order, the trial court ruled that BB & T was entitled to all of the foreclosure sale surplus funds remaining in the court registry.

Chapter k5, Florida Statutes (2010)

After property is sold in a foreclosure sale, the clerk of court is required to file a certificate of title, distribute the proceeds of the sale as directed by the final judgment, and issue a certificate of disbursements. § 45.031(5), (7), Fla. Stat. (2010). After the clerk of court issues a certificate of disbursements, the clerk must hold any surplus funds for sixty days pending an order from the trial court. § 45.032(3). If the owner of the property claims a right to the surplus during this time period and there is no subordinate lienholder, the trial court must order the clerk to pay the surplus to the owner after the deduction of service charges. § 45.032(3)(a).

Section 45.031(7)(b) provides that the clerk’s certificate of disbursements must include the following language:

IF YOU ARE A PERSON CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS. AFTER 60 DAYS, ONLY THE OWNER OF RECORD AS OF THE DATE OF THE LIS PENDENS MAY CLAIM THE SURPLUS.

The certifícate of disbursements filed in this case contains the above mandatory language.

In its order, the trial court acknowledged that a subordinate lienholder claiming a right to surplus funds was required to file its claim with the clerk within sixty days of the sale of the property. However, the trial court ruled that BB & T had asserted its claim to any surplus funds in its answer and affirmative defense to U.S. Bank’s complaint, which was filed approximately two years before the foreclosure sale took place. We conclude that the trial court erred in interpreting the mandatory claim provisions in chapter 45 to mean that an answer and affirmative defense filed in a civil lawsuit satisfied the requirement that the party file a claim with the clerk after the sale of the property.

Standard of Review

The interpretation of a statute is a question of law, and it is therefore subject to a de novo review. W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 8 (Fla.2012).

As this court has recently noted:

“It is well settled that legislative intent is the polestar that guides a court’s statutory construction analysis. In determining that intent, we have explained that we look first to the statute’s plain meaning. Normally, [w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.”

Gulf Atl. Office Props., Inc. v. Dep’t of Revenue, 133 So.3d 537, 539 (Fla. 2d DCA 2014) (alteration in original) (quoting Hess v. Walton, 898 So.2d 1046, 1049 (Fla. 2d DCA 2005)).

Discussion

The language of section 45.031(7)(b) is clear and unambiguous in requiring that any person claiming a right to the surplus funds “MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE.” (Emphasis added.) The statute also specifically warns that if a subordinate lien-holder fails to file a claim, they “WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.” Id. Therefore, BB & T was required to file a claim with the clerk within sixty days after the sale of the property to preserve any claim it may have had to the surplus funds, and the previous pleadings BB & T filed in the suit involving U.S. Bank did not satisfy this requirement.

In interpreting the mandatory claim requirement in section 45.031(7)(b), the trial court relied on a case from this court, Citibank v. PNC Mortg. Corp. of Am., 718 So.2d 300 (Fla. 2d DCA 1998). We conclude that the trial court’s reliance on Citibank was improper. When Citibank was issued in 1998, chapter 45, Florida Statutes (1997), did not contain the statutory language providing for a sixty-day time limit to file a claim. This requirement was added to sections 45.031 and 45.032 in 2006. Ch. 06-175, § 1, at 1, Laws of Fla.

Conclusion

Because BB & T did not file a claim within sixty days of the sale of the home, it was not entitled to the surplus funds from the foreclosure sale. We reverse the trial court order holding otherwise and remand for proceedings consistent with this opinion.

Reversed and remanded.

DAVIS, C.J., and NORTHCUTT, J., concur.

      . BB & T purchased the property.

      . The hearing on the Mathewses’ claim for surplus funds was set for Monday, July 8, 2013, at 9:45 a.m., and BB & T filed its claim at 4:42 p.m. on the preceding Friday, July 5, 2013.

      . We note that although the statutory language is clear and unambiguous and there is no need to resort to the rules of statutory construction, the above interpretation of section 45.031 is supported by its legislative history. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla.2013) ("In instances of an ambiguity in statutory language, we may resort to the rules of statutory construction, which permit us to examine the legislative history to aid in our determination regarding legislative intent.”). The House of Representatives Staff Analysis summary states:
      The bill requires the clerk to furnish a copy of the final judgment to every party in the action or to their attorney of record. The final judgment shall provide certain language including a notice of potential surplus, a statement indicating that a subordinate lienholder must file a claim for surplus funds no later than 60 days after the sale ....
      Fla. H.R. Comm, on Just., HB 65 (2006) Staff Analysis 3 (Apr. 20, 2006) (on file with comm.).
      The legislature clearly intended that every party in a foreclosure action be notified that a subordinate lienholder must file a claim for surplus funds no later than sixty days following the foreclosure sale, irrespective of any demand for such in the party's prior pleadings.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    Keith LUTZ and Sandra J. Lutz, Appellants, v. Thomas S. RUTHERFORD and JDE Florida, LLC, Appellees.
    No. 2D13-1562.
    District Court of Appeal of Florida, Second District.
    June 6, 2014.
    Jesse L. Ray of Jesse Lee Ray Attorney at Law, P.A., Tampa, for Appellants.
    Thomas S. Rutherford, pro se.
    No appearance for JDE Florida, LLC.
   MORRIS, Judge.

Keith Lutz and Sandra J. Lutz appeal a March 4, 2013, order granting attorney Thomas S. Rutherford’s motion to enforce the charging lien against the Lutzes, the defendants Rutherford represented in the underlying lawsuit. On, appeal, the Lutzes argue that the trial court erred in entering the order because Rutherford’s notice of charging lien was untimely and because the trial court did not have jurisdiction to rule on the charging lien. However, these arguments are essentially challenges to the order entered on November 29, 2011, in which the trial court determined that Rutherford was entitled to recover $46,873.75 from the Lutzes. The Lutzes did not appeal that final order between the Lutzes and Rutherford, and this appeal is untimely as to that order.

In addition, the November 29, 2011, order on Rutherford’s charging lien cannot now be challenged on the basis that it is void for lack of jurisdiction. See generally Strommen v. Strommen, 927 So.2d 176, 179 n. 4 (Fla. 2d DCA 2006) (“[W]hen a court acts without jurisdiction, its action is void and subject to collateral attack.” (quoting Fla. Power & Light Co. v. Canal Auth., 423 So.2d 421, 423 n. 5 (Fla. 5th DCA 1982))). In the final judgment in the underlying lawsuit between the plaintiffs and the Lutzes, the trial court reserved jurisdiction to award “attorneys’ fees that may be applicable”; therefore, the trial court had jurisdiction to rule on Rutherford’s charging lien. Cf. Weiland v. Wetland, 814 So.2d 1252, 1253 (Fla. 2d DCA 2002) (holding that trial court lacked jurisdiction to impose husband’s attorney’s charging lien where final judgment contained express reservation for trial court to award fees to wife only).

Dismissed.

WALLACE and LaROSE, JJ., concur.


author: PER CURIAM.

text:
    The LEMON TREE I CONDOMINIUM, ETC., Appellant, v. BANK OF AMERICA, N.A., etc., et al., Appellee.
    No. 5D13-762.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2014.
    Jacob A. Brainard and Scott C. Davis of Business Law Group, P.A., Tampa, for Appellant.
    Ronnie J. Bitman of Pearson Bitman LLP, Maitland, for Appellee.
   PER CURIAM.

We strike paragraph nine of the final judgment in its entirety. In all other respects, the final judgment is affirmed.

AFFIRMED.

TORPY, C.J., SAWAYA and BERGER, JJ., concur.


text:
    Albon C. DIAMOND, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0052.
    District Court of Appeal of Florida, First District.
    June 6, 2014.
    Mark V. Murray, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, ROBERTS, and MAKAR, JJ., concur.


author: WOLF, J.

text:
    T.J.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0853.
    District Court of Appeal of Florida, First District.
    June 9, 2014.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Kristen Bonjour and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee.
   WOLF, J.

T.J.L, a juvenile appellant, appeals the lower court’s order finding him in direct criminal contempt for certain behavior while appearing before the court. Appellant asserts both procedural and substantive errors in the lower court’s order. We find merit in both of appellant’s arguments, therefore, we vacate the order on review.

The transcript in this case reflects that after being directed to pull up his pants, appellant responded, “It won’t go up.” After an unhelpful comment by the bailiff, appellant’s mother forcibly brought appellant to the podium. The transcript reflects appellant then said something or made an “indiscernible” sound, to which the bailiff responded, ‘You think something’s funny?” The court then charged appellant with direct criminal contempt because appellant was “acting out.” Explaining that the charge was unrelated to any direction to appellant to pull up his pants, the court said, “He’s throwing a tantrum, he’s slinging his head around, he’s disrupting the proceedings, he’s showing out in front of all the people in this court and he’s interrupting the decorum of the court.” Appellant apologized to the court. The court invited appellant to show cause why he should not be held in direct criminal contempt and then found appellant in contempt after his lawyer pointed out that appellant had apologized. Appellant’s mother attempted to speak to the court, but the judge cut her off. Appellant’s mother then attempted to explain appellant’s head was swinging because she had been jerking him around, an explanation which is supported by a video of the proceeding. Later, the court further explained the basis of the ruling: “It was not appropriate what he did in throwing a tantrum, swinging his head around, giving the big sighs, throwing the drama, temper tantrum in front of the entire courtroom.” The court does not provide any more details on the record describing appellant’s behavior.

In the written judgment of contempt, the court found that after being directed to follow a decorum order, appellant “became loud, argumentative, combative and defiant to the bailiff and the Court. This scene interrupted proceedings and the dignity of the Court.” Appellant was sentenced to two days of incarceration at a juvenile detention center.

“Conduct which is calculated to embarrass, hinder, or obstruct the trial court in the administration of justice or that which is calculated to lessen the court’s authority or dignity constitutes criminal contempt.” Woodie v. Campbell, 960 So.2d 877, 879 (Fla. 1st DCA 2007). This court reviews an order of direct criminal contempt for an abuse of discretion. See Thomas v. State, 752 So.2d 679, 685 (Fla. 1st DCA 2000). Florida Rule of Criminal Procedure 3.830 requires a judgment of guilt of contempt to include a “recital of those facts on which the adjudication of guilt is based.” “While a judgment of contempt is entitled to a presumption of correctness, it must be supported by the record.” Smith v. State, 954 So.2d 1191, 1194 (Fla. 3d DCA 2007).

On review, appellant argues the record does not support the court’s characterization of his behavior. The State concedes appellant’s behavior was not a “temper tantrum” in the traditional sense, but argues that appellant’s “defiant attitude” delayed proceedings, interrupted the court’s decorum, and obstructed the administration of justice. We agree with appellant.

Other than appellant’s statement that he could not comply any further with the court’s decorum order, the only indication in the transcript of appellant’s allegedly contemptuous behavior is the court’s description of the behavior as a “temper tantrum,” “showing out,” “acting out,” “slinging his head around,” “giving big sighs,” and “throwing the drama.” We have reviewed the transcript and a video of the entire incident. The video has been made part of the record without objection. Besides the “head swinging,” which appears to be caused by appellant’s mother grabbing him and dragging him to the podium, and arguably some sighing, we are hard pressed to understand what physical behavior the court was describing. Further, neither the behavior described in the transcript nor the video support the written findings that appellant’s behavior was loud, argumentative, combative, and defiant.

In addition, we find the trial court’s actions were insufficient to comply with the procedural requirements of rule 3.830 of the Rules of Criminal Procedure. As we stated in Garrett v. State, 876 So.2d 24, 25 (Fla. 1st DCA 2004):

Strict compliance with rule 3.830 is necessary to safeguard procedural due process. Berman v. State, 751 So.2d 612, 613 (Fla. 4th DCA 1999); Cook v. State, 636 So.2d 895, 896 (Fla. 3d DCA 1994). In O’Neal v. State, 501 So.2d 98, 100 (Fla. 1st DCA 1987), this court determined that merely asking the defendant if he wished to explain his behavior was insufficient to meet the requirement that the defendant be given an opportunity to present evidence of excusing or mitigating circumstances. In Marshall v. State, 764 So.2d 908 (Fla. 1st DCA 2000), we cited O’Neal, and again reversed an order of direct criminal contempt because the judge “failed to give appellant an opportunity to present excusing or mitigating evidence.”

In this case the juvenile appellant was asked why he should not be held in contempt. Appellant said he was sorry. The judge never gave appellant the opportunity to present evidence of excusing or mitigating circumstances. In fact, the trial court refused to hear from appellant’s mother. The actions of the court did not meet the orderly proceedings mandated by the rule or our decision in Garrett.

Finding no evidentiary support for the written findings and determining the proper procedural requirements were not met, we VACATE the order of contempt.

PADOVANO and RAY, JJ., concur.

       While there may be circumstances when it would be justified to limit input from a parent in order to maintain decorum, the record before us reflects no such concern in this case.


text:
    Matthew Sonny THOMAS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2994.
    District Court of Appeal of Florida, First District.
    June 9, 2014.
    Nancy A. Daniels, Public Defender, and Zachary F. Lawton, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The issues raised in appellant’s Points I, II, and III, are without merit. We therefore affirm those points without further comment. The state correctly concedes, however, that we must reverse appellant’s judgment of conviction and sentence for criminal mischief causing damage in an amount greater than $200 but less than $1000. Because the state failed to present competent evidence of the dollar value of the damage for which appellant was responsible, he can only be found guilty of what would be the second-degree misdemeanor of criminal mischief involving damage of $200 or less. See Clark v. State, 746 So.2d 1237, 1241 (Fla. 1st DCA 1999); J.O.S. v. State, 668 So.2d 1082, 1083 (Fla. 1st DCA 1996) (citing Valdes v. State, 510 So.2d 631, 632 (Fla. 3d DCA 1987) (holding offense of criminal mischief established by proof of willful or malicious damage to another’s property; dollar value of damage relevant only to degree of offense)).

AFFIRMED, in part, REVERSED, in part, and REMANDED for further proceedings consistent with this opinion.

ROWE, SWANSON, and MAKAR, JJ., concur.


text:
    STANLEY STEEMER INTERNATIONAL, INC. and Broadspire, Appellants/Cross-Appellees, v. Troy SMITH, Appellee/Cross-Appellant.
    No. 1D13-773.
    District Court of Appeal of Florida, First District.
    June 9, 2014.
    Kevin R. Clarke of the Law Office of Kevin R. Clarke, Jupiter, for Appellants/Cross-Appellees.
    Kenneth B. Schwartz of Kenneth B. Schwartz, P.A., West Palm Beach, for Ap-pellee/Cross-Appellant.
   PER CURIAM.

Both the Employer/Carrier (E/C) and Claimant, through appeal and cross-appeal, challenge an order by the Judge of Compensation Claims (JCC) awarding Claimant attendant care benefits, along with attorney’s fees. Finding no error in the JCC’s rejection of the E/C’s affirmative defense based on misrepresentation and no merit to the arguments raised concerning the award of attendant care benefits, we affirm these issues without further discussion. Because the JCC retained jurisdiction over the amount of attorney’s fees and entitlement to costs, the issues relating to these claims are not ripe for appellate review and we dismiss for lack of jurisdiction those portions of the appeal and cross-appeal relating to the awards of fees and costs. See Zampell Refractories, Inc., v. Welch, 61 So.3d 1160 (Fla. 1st DCA 2011) (dismissing cross-appeal for lack of jurisdiction where JCC reserved jurisdiction on fee amount). In all other respects, the order on appeal is AFFIRMED.

VAN NORTWICK, PADOVANO, and MARSTILLER, JJ., concur.


text:
    Celine SAYERS, a Minor, by Lori KELLERMAN, Next Friend or Counsel, Appellant, v. Ellen SAYERS, Appellee.
    No. 1D14-1840.
    District Court of Appeal of Florida, First District.
    June 9, 2014.
    Lori Kellerman, Gainesville, for Appellant.
    Jennifer Kirkhart Curcio, Gainesville, for Appellee.
   PER CURIAM.

Appellant has sought review of an interlocutory order of the circuit court granting appellee’s motion and disqualifying attorney Lori Kellerman. The Court has concluded that the order is not an appealable order, and that the Court therefore lacks appellate jurisdiction. Cf. Zarco Supply Co. v. Bonnell, 658 So.2d 151 (Fla. 1st DCA 1995) (reviewing order on motion to disqualify counsel by petition for writ of certiorari). Accordingly, the appeal is dismissed.

BENTON, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Rachel BERRY, Petitioner, v. Brett BERRY, Respondent.
    No. 1D14-0964.
    District Court of Appeal of Florida, First District.
    June 10, 2014.
    William E. Whitlock, III, Tallahassee, for Petitioner.
    Ethan Andrew Way, B.C.S. of Gillis Way & Duncan, Tallahassee, for Respondent.
   PER CURIAM.

While we ascribe absolutely no improper motive to the trial judge’s actions, we find that the ex parte conference was not authorized under the terms of Canon 3B(7) of the Code of Judicial Conduct, and the husband has failed to identify any other applicable exception to the general rule that a judge shall not permit or consider ex parte communications concerning a pending proceeding. We further conclude that the fact that this ex parte conference occurred constituted a legally sufficient basis for petitioner’s motion for disqualification. See generally Rose v. State, 601 So.2d 1181 (Fla.1992). Accordingly, the petition for writ of prohibition is granted. On remand, a new judge shall be assigned to hear further proceedings in this matter.

WOLF, PADOVANO, and RAY, JJ., concur.


text:
    Jacob VEAL, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-6099.
    District Court of Appeal of Florida, First District.
    June 10, 2014.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant argued in a motion filed under Florida Rule of Criminal Procedure 3.800(b) that he had received an unlawful sentence following his conviction for possession of a firearm by an adjudicated juvenile delinquent. The state conceded the sentence was illegal, and the trial court granted the 3.800 motion, then announced it would “do an amended sentencing.” Before pronouncing sentence, the trial court should have, but did not, set a resentenc-ing hearing at which the appellant could be present. A criminal defendant is entitled to be present at all “critical stage[s]” of the proceedings. State v. Scott, 439 So.2d 219, 221 (Fla.1983). We remand for the trial court to conduct a second resentenc-ing hearing at which appellant has an opportunity to be present with counsel.

BENTON, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Jan-Michael BRISTOL, Petitioner, v. FLORIDA DEPARTMENT OF HEALTH, Respondent.
    No. 1D14-1458.
    District Court of Appeal of Florida, First District.
    June 11, 2014.
    Thomas Wade Young, B.C.S. of Thomas Wade Young, P.L., Orlando, for Petitioner.
    Caryl Kilinski, Chief Legal Counsel, and Alysson H. Bradley, Assistant General Counsel, Florida Department of Health, Tallahassee, for Respondent.
   PER CURIAM.

Based on the Department of Health’s concession that petitioner’s claim of paternity has been registered in the Putative Father Registry with an effective date of December 23, 2013, the petition for a writ of mandamus is DISMISSED as moot.

WETHERELL, MARSTILLER, and SWANSON, JJ., concur.


text:
    Franchot BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1047.
    District Court of Appeal of Florida, Third District.
    June 11, 2014.
    Rehearing Denied June 23, 2014.
    Franchot Brown, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012), rehearing denied, 115 So.3d 385 (Fla. 3d DCA 2013). But see Falcon v. State, 111 So.3d 973 (Fla. 1st DCA 2013), review granted, 2013 Fla. LEXIS 1259 (Fla. June 3, 2013).


author: PER CURIAM. WEIMER, J., HUGHES, J.,

text:
    STATE of Louisiana v. Vernon Wayne ALTENBERGER.
    No. 2013-KK-2518.
    Supreme Court of Louisiana.
    April 11, 2014.
   PER CURIAM.

11 This writ presents the issue of whether the trial court erred in denying the State’s motion to introduce Prieur evidence demonstrating a pattern of domestic violence and abuse by defendant, Vernon Wayne Altenberger. For the following reasons, we grant the State’s writ, reversing and vacating the trial court’s denial of the State’s motions, and remand this matter for a full Prieur hearing consistent with the views expressed herein.

FACTS AND PROCEDURAL HISTORY

In the underlying proceeding, defendant is charged with domestic abuse battery-strangulation, a violation of La.Rev.Stat. § 14:35.3(B)(3), resulting from an incident that occurred on March 28, 2010. On that date, defendant was allegedly under stress because his mother was dying and was irritated with the victim, his wife Deanna Altenberger, when he allegedly approached her, picked her up by the neck, choked her, and then threw her on top of a bar. The victim allegedly kicked the defendant into loosening his grip and fell to the floor. When she then tried to grab a broom handle, defendant | ^allegedly punched her in the left eye. As the victim ran towards the front door to make her escape, defendant allegedly slammed the door on her hand. It is further alleged, once the victim managed to get past defendant, she ran to a neighbor’s house and asked the neighbor to phone the police. The victim was not previously able to dial 911 because defendant allegedly took the telephones. -In the meantime, defendant allegedly absconded with the couple’s child, who was three years of age, and allegedly secreted the child for several days. The allegations further contend the victim finally caught up with defendant at a church service, wherein both the pastor and members of the congregation encouraged defendant to voluntarily return the child to her mother. Subsequently, a warrant was issued for defendant’s arrest, but it was not executed until June 4, 2012.

On August 7, 2012, the State filed its Notice of Intent to Introduce Evidence of Other Crimes, Wrongs or Acts. Specifically, the State sought to introduce evidence that:

On or about July 4, 2011, defendant telephoned the victim, Deanna Altenber-ger, leaving her over 300 text messages. Additionally, defendant telephoned victim’s place of employment, posted derogatory comments on “Facebook” with the intent to embarrass and harass the victim.

The State explained its intent to introduce this evidence “for all purposes proper under the law, including but not limited to: motive, knowledge, preparation, plan, intent, opportunity, identity and absence o[f] mistake or accident, in accordance with La.Code of Evidence art. 404(B).”

Relevant herein, this evidence involves conduct defendant engaged in between the strangulation offense and the date of his arrest, which violated a | ..¡Protective Order issued against him in favor of the victim. Specifically, the State explains defendant was charged with violating the no contact order by telephoning his victim. Though defendant claimed the call was placed by mistake, defendant proceeded to contact the victim again by telephone through a third party. Moreover, the facts of abuse/harassment stated within the Protective Order alleged defendant sent the victim over 300 text messages, attempted to interfere with the victim’s employment at the federal prison by constant uninvited telephone calls, and made allegations to her supervisors that the victim was engaging in sexual misconduct with inmates. Defendant also posted these allegations and stated he would cause harm to the victim on Facebook. In conjunction therewith, defendant was arrested twice, on or about and between June 4, 2011, and July 2, 2011, for the offense of Harassing Telephone Language.

Without an evidentiary hearing, the trial court denied the State’s motion, noting the alleged strangulation occurred on March 28, 2010, and the phone calls, texts, posts, and the Protective Order all occurred over one year later. In its written reasons, the trial court explained:

The state’s motion includes language that indicates that the very intention of filing the Prieur Motion was to meet the requirements of 404(B)(1) and State v. Prieur, 277 So.2d 126 (1973).... The State has not addressed how the subsequent acts of the defendant which occurred over on[e] year after the alleged crime demonstrate intent, motive, knowledge, plan or absence of mistake or accident. According to Louisiana jurisprudence, remoteness in time is a factor to be considered when determining whether the probative value of evidence outweighs its prejudicial effect. The time between the evidence and the offense charged is also important in determining relevancy. Because the items occurred over one year after the incident the court does not find that such evidence is relevant to the present charged crime. Considering all factors including remoteness |4in time and relevance, its probative value does not substantially outweigh the danger of unfair and undue prejudice as the Code of Evidence requires.

Then on July 3, 2013, the State filed its Second Motion to Introduce Evidence of Other Crimes, Wrongs or Acts. Specifically, the State sought to introduce:

A.
A Petition for Protective Orders ... filed on or about November 1988, against defendant ..., in which it is alleged defendant “kicked in Aunt’s door” and proceeded to physically assault the plaintiff, Cassie Purvis Alten-berger, as well as threaten to “kill her.”
B.
A Petition and Order for Temporary Protective Orders and Rule to Show Cause ... filed in 1992, against defendant ..., in which it is alleged by petitioner that both parties’ minor child was in danger of abuse.
C.
A Contradictory Rule for Custody and/or Grandparents’ Visitation Privileges ... filed against defendant ..., in which it is alleged by petitioners (Vernon Edward Altenberger and Colleen Kimmel Altenberger) that the minor child of defendant was the victim of mental and physical abuse.

The State again explained it intended to introduce “this evidence for all purposes proper under the law, specifically including but not limited to: motive, knowledge, plan, intent and absence of mistake or accident, all in accordance with Rule 404B(1) of the Louisiana Code of Evidence.”

Relevant herein, this evidence consists of two petitions for protective orders and a contradictory rule for custody. Both protective orders were filed by defendant’s prior spouse, Cassie Purvis Altenberger. The first was filed on or about November 21, 1988, alleging defendant kicked in the door of the residence of Cassie’s aunt and began pushing and swinging at Cassie, while she was holding their baby. Defendant then allegedly grabbed the infant around the waist and started jerking her. Next, defendant pushed Cassie against a refrigerator and stove. At the time of this occurrence, Cassie was pregnant. Defendant also threatened to 1 skill her if she did not hand him the baby. The Protective Order was granted in Cassie’s favor by court order dated November 22,1988.

The second was filed on January 24, 1992, on Cassie’s own behalf and on behalf of her minor daughter, H.L.A. In the petition, Cassie alleged abuse by defendant and sought sole custody of H.L.A. or, alternatively, joint custody with defendant’s parents, Vernon and Colleen Altenberger. The order was granted on February 10, 1992, in favor of Cassie, who was granted weekend visitation, but not custody; the paternal grandparents were also granted limited visitation.

Thereafter, on May 1, 1992, defendant’s parents filed their Contradictory Rule for Custody and/or Grandparents’ Visitation Privileges. According to paragraph six of the petition, the grandparents had physical custody of H.L.A. from the time she was ten days old until she was in excess of three years of age. The defendant then took the minor child and moved to Louisiana, on or about April 20, 1991. The grandparents then relocated to Louisiana in order to be closer to the child and continued to see the child on a regular basis until they discovered the child had bruises and cigarette burns to her body. At this time, defendant ceased to allow visitation by the grandparents, keeping the child from them. The petition further alleged the child had been subjected to physical and mental abuse in her parents’ custody.

On July 12, 2018, the State filed its Motion to Reconsider Prieur Evidence, in order to give the State the opportunity to have an evidentiary hearing on both motions. Ruling from the bench, the trial court denied the State’s second motion, reasoning:

.... the remoteness is way too far. Yes, I’m clearly aware of the cycle of violence and is it shocking that everybody is back here, no, but I do | finot see where — that remoteness is too far, you’re going to have to show what occurred with [the victim] and with him on [March 28, 2010]. Using the prior stuff is not going to come in.

As to the previous motion, the trial court indicated, if either party opened the door, it would allow all the Facebook postings of both parties, but strongly discouraged the parties from taking such action. Moreover, any texts regarding the incident at issue would be admissible; however, the trial court admitted it had not reviewed the 300 plus messages. In essence, it appears the trial court intends to carefully address the evidence in context of the actual trial and will allow admission for narrative and credibility purposes and in response to defenses raised by defendant:

.... I will allow some but I’m giving you the warning up front to say, we cannot confuse the jury. There is a separate time for violation of protective order. We’re not yet at that trial and so those things that are connected to violation of the protective order are a whole — but there’s a whole story to be told about the March 28th and why it took so long for it to come and what those events are and I am ... certain your client is going to end up — I mean, the victim is going to tell that story and those events are allowed to come in because it is — no doubt ... what happened and when and what occurred what and why it took so long to come to trial.
.... we’re going to have to walk across that ... very slowly and at trial and it may be piecemealed, to let her know that, it’s according what gets said and how it’s connected.
Let me see what they’re going to do. We can what if this thing to death for hours but I would rather wait to let’s see what y’all are really going to — how it’s going to roll out....

17Basically, what the trial court was “saying ... is that pretrial, nothing automatically gets in. When we get to the trial, of course, if those doors are open and there’s a legal — a legal avenue for them to get in then, of course, they would be admissible.”

The State sought review of these ruling from the Court of Appeal, Third Circuit, which denied the State’s writ, finding no error. State v. Altenberger, 13-906 (La.App. 3 Cir. 10/10/13) (unpublished writ). Therefore, it falls to this Court to provide needed guidance to the lower court on the proper admission of Prieur evidence.

DISCUSSION

Most recently in State v. Garcia, 09-1578 (La.11/16/12), 108 So.3d 1, we addressed in detail the proper use and admissibility of other crimes evidence, explaining:

The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is, and has been, such evidence is not admissible to prove the accused committed the charged crime because he has committed other such crimes in the past or to show the probability he committed the crime in question because he is a man of criminal character. State v. Lee, 05-2098, p. 44 (La.1/16/08), 976 So.2d 109, 139; State v. Patza, 3 La.Ann. 512 (1848).
Nevertheless, although evidence of other crimes, wrongs, or acts may not be admitted to prove the accused is a person of criminal character, evidence of other crimes has long been admissible if the state establishes an independent and relevant reason for its admission. See State v. Anderson, 45 La.Ann. 651, 654, 12 So. 737, 738 (1893). This very principle is embodied in our Code of Evidence at Article 404(B)(1), which provides, in pertinent part:
Except as provided in Article 412 [regarding a victim’s past sexual behavior in sexual assault cases], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided |8that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La.Code Evid. art. 404(B)(1). While still prohibiting the state from introducing evidence of other crimes, wrongs, or acts to show a probability the accused committed the charged crime because he is a “bad” person, the rule articulated in Article 404(B)(1) allows admission for other purposes, ie., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La.Code Evid. art. 404(B)(1); Lee, 05-2098 at p. 44, 976 So.2d at 139; State v. Kennedy, 00-1554, p. 5 (La.4/3/01), 803 So.2d 916, 920.

Garcia, 09-1578 at pp. 53-54, 108 So.3d at 38.

Logically, this evidence must have substantial relevance independent from showing defendant’s general criminal character in that it tends to prove a material fact genuinely at issue. State v. Lee, 05-2098, p. 44 (La.1/16/08), 976 So.2d 109, 139; State v. Moore, 440 So.2d 134, 137 (La.1983). The trial court in its gatekeep-ing function determines the independent relevancy of such evidence and balances its probative value against its prejudicial effect. La.Code Evid. art. 403; Huddleston v. United States, 485 U.S. 681, 690-91, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988). “In this analysis, the court seeks to answer the question: Is this evidence so related to the crime on trial or a material issue or defense therein that, if admitted, its relevancy will outweigh the prejudicial effect, which the defendant will necessarily be burdened with?” Garcia, 09-1578 at p. 55, 108 So.3d at 39. Its answer to this question and corresponding ruling on the admissibility of the additional other crimes evidence will not be disturbed absent an abuse of discretion, State v. Scales, 93-2003, pp. 4-5 (La.5/22/95), 655 So.2d 1326, 1330-31, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996).

| aAs evident from its written and oral reasons, the trial court herein denied the State’s motions based on the remoteness of the various offenses to the charged offense. However, we have previously stated:

The fact that the other acts or crimes happened some time before the offense for which the defendant is on trial is not sufficient, in and of itself, to require the exclusion of the evidence. Remoteness in time, in most cases, is only one factor to be considered when determining whether the probative value of the evidence outweighs its prejudicial effect. Generally, a lapse in time will go to the weight of the evidence, rather than to its admissibility.
... the time between the other crimes evidence and the offense charged is but one factor to be considered when balancing probative value, prejudicial effect, and relevancy. Length of time between the offenses should not exclude otherwise admissible evidence unless the lapse strips the testimony of probative value. While there must be some con-nexity between the crime charged and the other acts or crimes, the mere passage of time will not necessarily defeat admissibility.

State v. Jackson, 625 So.2d 146, 149-51 (La.1993). Accordingly, while we acknowledge the trial court’s broad discretion in this regard, we find it abused its discretion by limiting its evaluation strictly to remoteness.

As Garcia noted, our jurisprudence has long held evidence of other crimes is admissible if the State establishes an independent and relevant reason for its admission. The State herein argues (1) the evidence of defendant’s prior incidents has independent relevance to establish knowledge, identity, and absence of mistake or accident in connection with the present case; (2) the credibility of the victim and the defendant is a genuine issue to be contested at trial; and (3) the evidence rebuts and/or negates the defendant’s contention the incident never occurred or alternatively, he was acting in self-defense.

In this regard, we note, in the November 1988 incident, defendant allegedly battered his pregnant wife and then attempted to take their child physically from her, threatening to kill her if she did not relinquish the child. According to the | inState, these allegations mirror the March 2010 incident in which defendant allegedly battered his wife and took their child from her. It argues these similarities, in turn, make the likelihood the March 2010 incident happened accidentally or never happened so remote as to rebut any such defenses as well as to negate any contention by the accused that he acted in self-defense. Furthermore, coupling the two incidents with the 1992 incident, the State posits there are three distinct allegations of domestic violence — two with prior wives and one with a child — all three resulting in the defendant taking or attempting to take his child from his victims, which further refute the defenses available to the defendant. Thus, the State’s intent to introduce these prior offenses to established defendant’s pattern of domestic abuse goes directly to rebut defenses defendant may raise at trial and demonstrates their independent relevancy besides merely painting defendant as a bad person. It follows, therefore, the trial court should have considered the independent relevancy of this evidence, rather than outright excluding same based merely on remoteness.

Regarding the various messages and posts, the State argues defendant’s statements carry the narrative momentum of his actions in the context of domestic violence. According to the State, the effects of defendant’s coercive behavior as shown by his statements are part of one continuous transaction of domestic violence and should be viewed as a single and continuing entity, including, but not limited to, defendant’s attempting to manipulate the victim’s behavior by suggesting his own suicide and how that would affect the victim’s daughter as well as threatening to cut off her phone. While these statements were apparently regarded as part and parcel of an ongoing divorce dispute by the trial court, we note the trial in the instant case involves domestic violence, psychological abuse, and coercive behavior, as allegedly exhibited by defendant on three separate |n occasions, which is an integral part of the continuing nature and pattern of domestic violence. See Hernandez v. Ashcroft, 345 F.3d 824, 836-37 (9th Cir.2003)(discussing “cycle of violence” within abusive intimate relationships).

Moreover, contrary to the trial court’s reasoning, the mere fact this criminal conduct occurred after the underlying offense does not preclude its admission or detract from its relevance in regards to the numerated exceptions of La.Code Evid. art. 404(B). Our most recent decision illustrating this principle is State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, in which the State sought the death penalty for Charlotte Pace’s murder that occurred on May 31, 2002, and relied heavily upon the attack on Diane Alexander that occurred on July 9, 2002, Pamela Kinamore’s murder that occurred sometime between July 12-16, 2002, Trineisha Colomb’s murder that occurred around November 21, 2002, and Carrie Yoder’s murder that occurred sometime between March 3-13, 2003, to prove its case in the guilt phase of that capital murder trial. Therefore, the evidence of defendant’s subsequent criminal conduct should likewise have been evaluated in light of the State’s purpose for its admission and not excluded merely because of its temporal remoteness to the underlying offense.

Accordingly, we vacate the trial court’s denial of the State’s motions to introduce other crimes evidence. Under the guidance set forth herein, we remand this matter for an evidentiary hearing in accordance with State v. Prieur. We note the hearing need not be a “trial” on the offenses. See e.g., Garcia, 09-1578, pp. 18-22, 108 So.3d at 15-18; see also State v. Shirley, 08-2106 (La.5/5/09), 10 So.3d 224, 228 (the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility 118of evidence); La.Code Evid. art. 104(A)(“[p]reliminary questions concerning ... the admissibility of evidence shall be determined by the court ... In making its determination it is not bound by the rules of evidence except those with respect to privilege.”). Rather, the State needs merely to present its other crimes evidence and its purpose in seeking its admission. See e.g., Garcia, 09-1578, pp. 18-22, 108 So.3d at 15-18. We then task the trial court in determining whether the State’s purpose in seeking the admission of the other crimes evidence has substantial relevance independent from showing defendant’s general criminal character which outweighs the prejudicial effect, if any, with which defendant will be burdened.

REVERSED and VACATED; REMANDED TO THE DISTRICT COURT.

VICTORY, J., concurs in the result.

WEIMER, J., concurs in part and dissents in part.

HUGHES, J., concurs in part and dissents in part.

WEIMER, J.,

concurring in part, dissenting in part.

|,I agree that a full Pñeur inquiry into the admissibility of other crimes evidence is necessary. See La. C.E. art. 404(B)(1) and State v. Prieur, 277 So.2d 126 (La.1973). As the majority notes, prior jurisprudence of this court holds: “Remoteness in time, in most cases, is only one factor to be considered when determining whether the probative value of the evidence outweighs its prejudicial effect. Generally, a lapse in time will go to the weight of the evidence, rather than to its admissibility.” State v. Jackson, 625 So.2d 146, 149 (La.1993). Inasmuch as the district court did not conduct a full Pneur inquiry because the state’s other crimes evidence was remote in time to the presently charged offense, I concur that a remand is appropriate for an evidentiary hearing.

However, I respectfully dissent from the majority’s additional “guidance on the proper admission of Prieur evidence.” State v. Altenberger, 13-KK-2518, p. 7 (La.4/11/14), 139 So.3d 510, 514, 2014 WL 1407762. Although well-intentioned, the additional “guidance” on what may be admissible at trial is premature and hence advisory. Furthermore, as indicated in a per curiam filed by the trial court, this matter presents in an unique and difficult procedural posture.

Beyond that portion of the per curiam relating to the necessity of conducting a Prieur hearing, the majority accepts the state’s arguments made in this court, but those arguments have never been raised in the first instance in the district court. Because, as the per curiam rightly points out, there has never been a Prieur hearing, it remains to be seen whether the state can — or will — seek to introduce the alleged other crimes evidence for the purposes indicated to this court. In conclusion, because of this court’s longstanding refusal to issue advisory opinions, I dissent from the discussion of potential uses of the alleged other crimes evidence because I believe the per curiam goes too far by opining on matters that have not been and may never be presented in the district court. See State v. Duheart, 13-1105 p. 3 (La.6/14/13), 120 So.3d 239, 240 (“The jurisprudence of this court is well settled that, courts will not render advisory opinions. Cases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely....”), quoting Louisiana Federation of Teachers v. State, 11-2226, pp. 4-5 (La.7/2/12), 94 So.3d 760, 763.

HUGHES, J.,

concurring in part and dissenting in part.

1¶With respect, I agree with the concerns expressed by Justice Weimer. Also, while the rules of evidence are relaxed in a pretrial hearing to determine what evidence may be offered at trial, the rules of evidence will apply at trial. Allegations in a petition or “narrative” are not proof that specific acts occurred, bearing in mind that the acts must fit one of one of the Prieur exceptions in order to be admissible.

The exclusion of general “bad character” evidence (using one’s history of bad behavior as proof of guilt of the crime charged), absent the delineated exceptions, is the reason for the Prieur rule.

      . State v. Prieur, 277 So.2d 126 (1973).

      . On March 31, 2010, the victim made a request to officers at the City of Ball Police Department to drop the charges against defendant. Apparently, the victim made this request because: (1) a protective order hearing was scheduled to commence on April 16, 2010; (2) defendant was seeking professional help; and (3) defendant's mother passed away and he needed to attend the funeral. Because of this request, the Ball Police Department made the decision not to execute the warrant. However, approximately one year later, the Rapides Parish District Attorney’s Office sent a letter of inquiry to the Ball Police Department as to why their office had not forwarded any case files for prosecution regarding defendant.

      . Along with the domestic abuse-strangulation charge, defendant is charged with one count of Violation of a Protection Order, in Criminal Docket Number 311,059, alleged to have occurred on July 6, 2011, and one count of Harassing Telephone Language, in Criminal Docket Number 308,210, alleged to have occurred between June 4, 2011, and July 2, 2011. The State has reported to this Court that, on December 5, 2013, defendant was convicted of the offense Harassing Telephone Language and sentenced to serve six months in the Rapides Parish Jail.

      . Note, this record is currently under seal and will require an order of the court for an in camera inspection.

      . During the hearing, the trial court explained:
      I’m going to say it again for the world of Facebook because no one’s hands are clean in this courtroom. That y’all have taken it to a level that — that’s been amazing and so that’s why it’s going to be in front of a jury and ... so if hands want to keep getting dirty, all — everything is going to be exposed, which is not pleasant for anybody, and it’s not a wise decision for anyone.

      . The trial court’s evidentiary ruling on the admissibility of defendant's alleged criminal conduct that occurred after the charged offense is tenuous at this time.

      . We note the hearing transcript does evidence an understanding of the domestic violence cycle on the part of the trial court and a willingness to allow the victim to narrate her story regarding the actions and inactions taken in bringing this matter to trial.


author: GUIDRY, J.,

text:
    [PARENTS OF MINOR CHILD] v. George J. CHARLET, Jr., Deceased, Charlet Funeral Home, Inc., [the Priest], and the Roman Catholic Church of Thediocese of Baton Rouge.
    No. 2013-C-2879.
    Supreme Court of Louisiana.
    May 23, 2014.
    WEIMER, J., recused.
    GUIDRY, J., concurs and assigns reasons.
   GUIDRY, J.,

concurs in the denial of rehearing with reasons.

| jThe privilege created by La.Code of Evid. art. 511 is for “confidential communications,” that is, communications “made privately and not intended for further disclosure by the person to a clergyman in his professional character as a spiritual adviser,” and belongs to the communicant. There is no express statutory privilege, exception to the reporting mandate, or even particular reference to communications during the Catholic Sacrament of Reconciliation or Confession. Whether or not the communication was part of a “confession per se” as that term is understood in religious doctrine, may be an ecclesiastical problem for the priest, but it does not appear to be relevant here to consideration of the meaning and intent of the Louisiana statutes involved in this case.

VICTORY, J., dissents from the denial of rehearing and would grant and docket.

LON REHEARING

I dissent from the majority’s decision to deny rehearing and would grant and docket the case for full argument and briefing by the parties to consider whether the reporting requirement of La. Ch. C. art. 609 overrides any privilege that may otherwise be claimed by the priest. At the very least, I would grant rehearing to correct the per curiam which remands the case to the trial court to determine whether the communications between the priest and the minor were “confessions per se.” Instead, the proper inquiry would be whether the communications were “confidential communications” under La. C.E. art. 511 and La. Ch. C. art. 603(15). Not only is a “confession per se ” undefined in the per curiam, it has no legal relevance to this case.

For the above reasons, I respectfully dissent from the denial of rehearing.


text:
    STATE of Louisiana v. Marcus WEBER.
    No. 2013-K-1851.
    Supreme Court of Louisiana.
    May 30, 2014.
   PER CURIAM.

| granted. The court of appeal’s decision in State v. Weber, 12-2021 (La.App. 1 Cir. 6/27/13), 120 So.3d 328 (Crain, J., dissenting), is reversed, and defendant’s conviction and sentence for vehicular homicide in violation of La.R.S. 14:32.1 are reinstated.

The trial court did not err in denying defendant’s motion to suppress the results of a blood alcohol test performed on a sample of blood taken from him in the hospital without his express consent following an accident in which the truck occupied by defendant and two other persons collided with another vehicle, killing its driver, and sending all of the survivors to various nearby hospitals for treatment of their injuries. The two other occupants of the vehicle in which defendant was riding were conscious, although one of them was unable to speak, and gave consent to withdrawal of a blood sample for testing. The two investigating officers arrived on the scene after the survivors were removed by first responders and they initially could not determine who among the three occupants had been driving the truck. One officer not involved in the defendant’s blood draw did, however, |?run the license plate number on the scene of the accident and determined that defendant owned the truck.

When an accident involving motor vehicles results in a fatality, the police need not have reasonable grounds to suspect that alcohol or drugs were involved to order a chemical test of the operator’s blood, urine, or other bodily substances, as to which the operator of the vehicle is deemed by law to give his consent. La.R.S. 32:681(A). The officer authorizing the test must, however, have “reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state.” La.R.S. S2:681(B). In the present case, for the majority the First Circuit panel, the police had only one chance out of three defendant was at the wheel of the truck when it collided with the victim’s vehicle and therefore did not have “reasonable grounds to believe that the unconscious person before [the authorizing officer] was the driver of the truck any more than either of the other two persons.” Weber at 12, 120 So.3d at 336. Dissenting, Judge Crain observed that “by the time that defendant’s blood was drawn, the officers knew there had been a fatality, that the truck had caused the fatality, and that three people including the defendant, occupied the truck at the time of the collision.” Id. at 1, 120 So.3d at 337 (Crain, J., dissenting). Under these “unique circumstances,” Judge Crain deemed that “the belief that one of the occupants was the driver constituted reasonable grounds to draw the defendant’s blood.” Id. at 2, 120 So.3d at 337 (footnote omitted).

There is a more particularized reason for subscribing to the conclusion reached by Judge Crain, which takes into account the highly evanescent nature of blood alcohol levels and the corresponding necessity of the police |3to act quickly to preserve potentially critical evidence as their investigation unfolds. The determination of whether the blood draw was justified under the circumstances entails a purely objective inquiry considering “all of the information known collectively to the law enforcement personnel involved in the investigation.” State v. Landry, 98-0188, p. 5 (La.1/20/00), 729 So.2d 1019, 1022 (citing and quoting United States. v. Klein, 93 F.3d 698, 701 (10th Cir.1996) (“Probable cause can rest upon the collective knowledge of the police, rather than solely on that of the officer who actually makes the arrest.”) (citation and internal quotation marks omitted); United States v. Butler, 74 F.3d 916, 921 (9th Cir.1996) (“Probable cause can also be demonstrated through the collective knowledge of police officers involved in the investigation, even if some of the information known to the other officers is not communicated to the arresting officer.”)). The police had determined on the scene that defendant was the owner of the truck well before the draw of defendant’s blood was authorized. There was no testimony at the suppression hearing that the information with respect to defendant’s ownership of the truck was actually communicated to the officer who then authorized the blood draw from defendant. Testimony at the suppression hearing established, however, that both officers were on the scene and engaged in closing off the highway to permit the landing of an Air Medevac helicopter. The survivors had already been removed to two different hospitals but the deceased driver of the other vehicle was still in the car. Testimony further established that the two officers consulted with each other and with the supervisor on the scene before they went their separate ways to interview the survivors in an attempt to determine how the accident happened and to identify the driver of the truck.

|4Under these circumstances, it is fair to consider the two officers as part of a single investigative team operating in close concert and to impute one officer’s knowledge that defendant was the owner of the truck to the officer who ultimately authorized the blood draw from defendant even in the absence of any affirmative evidence the actual communication took place. See United States v. Gillette, 245 F.3d 1032, 1034 (8th Cir.2001) (when officers working together as a team and some degree of communication between them exists, fair to impute the knowledge acquired by the team collectively to each of its members); see also 2 Wayne R. LaFave, Search and Seizure, § 3.5(c), p. 355, n. 90 (2012) (collecting cases). The purpose of requiring some degree of communication between the officers is to “distinguish between officers functioning as a search team and officers acting as independent actors who merely happen to be investigating the same subject.” Gillette, 245 F.3d at 1034 (citations omitted); see also United States v. Banks, 514 F.3d 769, 776 (8th Cir.2008) (“When officers function as a search team, it is appropriate to judge probable cause upon the basis of their combined knowledge, because ‘we presume that the officers have shared relevant knowledge which informs the decision to seize evidence or to detain a particular person.’ ”) (quoting United States v. O’Connell, 841 F.2d 1408, 1419 (8th Cir.1988)); United States v. Nafzger, 974 F.2d 906, 911 (7th Cir.1992) (“[W]hen officers are in communication with each other while working together at a scene, their knowledge may be mutually imputed even when there is no express testimony that the specific or detailed information creating the justification for a stop was conveyed....”) (citations omitted).

|fiIn the present case, reasonable grounds existed to order the blood draw from defendant because it is objectively reasonable to assume, even to a fair probability that might support a finding of probable cause, State v. Thompson, 02-0333, p. 8 (La.4/9/03), 842 So.2d 330, 336, the owner of a vehicle is also the driver. Cf. State v. Tozier, 2006 Me. 105, 905 A.2d 836, 838-39 (2006) (Courts “uniformly hold that an officer does not violate the Fourth Amendment by making a traffic stop when the officer randomly checks a license plate number of a vehicle on a public road, learns the owner’s license has been suspended or revoked, and observes no other circumstances that demonstrate the driver is not the vehicle’s owner.... These courts each concluded that it is reasonable to suspect that the driver of a vehicle is its registered owner, absence indications to the contrary.”) (citations omitted); State v. Vance, 790 N.W.2d 775, 781 (Iowa 2010) (While other people may drive an owner’s vehicle, “it is reasonable for an officer to infer the registered owner of the vehicle will do the vast amount of the driving.... Although this inference may be fallible, it is sufficiently reasonable to generate reasonable suspicion for an investigatory stop to resolve the ambiguity as to whether criminal activity is afoot.”) (citations omitted); State v. Owens, 75 Ohio App.3d 523, 599 N.E.2d 859, 860 (1991) (license plate check revealing owner of the vehicle had his license suspended provided reasonable suspicion to pull the vehicle over because “[i]t is reasonable to assume that the driver of a vehicle is most often the owner of the vehicle.”).

In the present case, the police thus had more than a random one in three chance that defendant was the driver of the truck. Of the three occupants in the vehicle, as the owner, defendant was far more likely than |finot to have been at the wheel of the truck at the time of the accident, as, in fact, the ongoing investigation subsequently determined. Once the police determined on the scene that defendant was the registered owner, the officers had reasonable grounds to draw his blood for analysis and it made no practical difference which member of the team investigating the accident actually gave the authority for the blood draw. The trial court therefore correctly denied the motion to suppress and the court of appeal erred in overturning that decision. The ruling of the trial court is reinstated and with it, defendant’s conviction and sentence for vehicular homicide.


text:
    In re Christopher D. WEDDLE.
    No. 2014-B-0904.
    Supreme Court of Louisiana.
    May 30, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_jjThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to inform his client of what was transpiring in her case and then executed an agreement contrary to the stated objectives of the representation without first obtaining her informed consent to do so. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Christopher D. Weddle, Louisiana Bar Roll number 29475, be suspended from the practice of law for a period of three months. This suspension shall be deferred in its entirety, subject to the condition that any misconduct by respondent during a one-year period following the date of finality of this court’s judgment may be grounds for making the deferred suspension execu-tory, or imposing additional discipline, as appropriate.

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


author: BROWN, Chief Judge. WILLIAMS, J.,

text:
    Willie HARLOW, Plaintiff-Respondent v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Applicant.
    No. 48,676-CW.
    Court of Appeal of Louisiana, Second Circuit.
    April 23, 2014.

      Lisa V. Johnson, Natchitoches, for Applicant.
    Harold D. Lucius, Jr., for Respondent.
    Before BROWN, WILLIAMS, CARAWAY, DREW, and LOLLEY, JJ.
   BROWN, Chief Judge.

liWe granted the application of defendant, State Farm Fire and Casualty Company (“State Farm”), who sought supervisory review of the denial of its motion for summary judgment. This is an uninsured motorist insurance coverage question that arises from a very unusual set of facts. We now affirm the trial court’s denial of State Farm’s motion for summary judgment.

Facts

On September 9, 2010, Willie Harlow was driving his BMW eastbound on Holly Springs Church Road in Coushatta, Louisiana, when he was hit head-on by a Mitsubishi automobile driven by Thomas Dixon, a relative of Harlow’s. Apparently, the Mitsubishi that Dixon was driving was owned by Harlow. The BMW was covered by an auto policy issued by State Farm. In addition to liability insurance, Harlow had uninsured motorist (“UM”) coverage on the BMW with limits of $15,000/$30,000. Dixon, the driver of the Mitsubishi, was at fault. The insurance company on the Mitsubishi (which was not State Farm) paid its policy limits to Harlow. When State Farm refused to pay Harlow under the UM provision of the policy that covered his BMW, Harlow filed suit against State Farm. He alleged that he was seriously injured in the crash and that he had only-received $15,000 from the Mitsubishi’s liability insurance, which was not enough to satisfy his damages. Therefore, Harlow argued that the other vehicle was underin-sured, thus triggering the UM provision of the State Farm policy on the BMW. It is unclear from this record whether Harlow or [¡JDixon had obtained the insurance on the Mitsubishi. It is clear, however, that the insurance was not purchased through State Farm. In brief, Harlow states that he “was allowing Dixon to purchase the [Mitsubishi]. Dixon had his own insurance policy on the vehicle, written by Progressive Insurance Company supplying liability insurance and its own UM policy.”

State Farm answered the lawsuit with general denials of Harlow’s claims. State Farm then filed a motion for summary judgment, asserting that its policy provides no coverage for Harlow because he was the owner of the car that hit him. The State Farm policy provides:

Insuring Agreement
Under Uninsured Motor Vehicle Coverage, we will pay nonpunitive damages for bodily injury an insured is legally entitled to recover from the owner or driver of an uninsured motor vehicle.

The policy defines “uninsured motor vehicle” this way:

Uninsured Motor Vehicle does not include a land motor vehicle.
2. owned by, rented to, or furnished or available for the regular use of you or any resident relative.

The record in this ease consists of State Farm’s policy on the BMW and a document purporting to be from “American Driving Records, Inc.,” apparently a private database service for motor vehicle records. This record provides the following data for the Mitsubishi automobile driven by Dixon:

Registered and Legal Owner
| sReg. Owner:
WILLIE J. HARLOW
451 HOLLY SPRINGS CHURCH COUSHATTA, LA 71019
Legal Owner:
NATIONAL AUTO ACCEPTANCE 2600 BELLE CHASSE HWY 206 GRETNA, LA 70056

The trial judge denied State Farm’s motion for summary judgment. The court stated, in part:

It is argued that uninsured motorist coverage requires the insured to have coverage on each vehicle he owns that he wants uninsured motorist coverage on. The reasoning is the insurance company does not want an insured to cover only one vehicle with uninsured motorist coverage and cover him in all his owned vehicles. In this case, the second vehicle was insured by another company and there was uninsured motorist coverage on the (BMW) owned by the plaintiff. Absence of fraud, it would seem that as a matter of law the summary judgment should be denied.

State Farm timely filed its writ application in this court, which was granted and docketed.

Discussion

The application of the summary judgment rules to insurance coverage is now well-settled. The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. The motion should be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P art. 966; King v. Phelps Dunbar L.L.P., 98-1805 (La.06/04/99), 743 So.2d 181; Beck v. Burgueno, 43,557 (La.App.2d Cir.09/17/08), 996 So.2d 404.

AppeIlate review of the grant or denial of a summary judgment is de novo. Jones v. Estate of Santiago, 03-1424 (La.04/14/04), 870 So.2d 1002; Row v. Pierremont Plaza L.L.C., 35,796 (La.App.2d Cir.04/03/02), 814 So.2d 124, writ denied, 02-1262 (La.08/30/02), 823 So.2d 952.

A summary judgment may be rendered on the issue of insurance coverage alone although there is a genuine issue as to liability or the amount of damages. La. C.C.P. art. 966(E); Jie v. Certified Lloyds Plan, 34,545 (La.App.2d Cir.04/04/01), 785 So.2d 118.

An insurer seeking to avoid coverage through summary judgment bears the burden of proving that some provision or exclusion applies to preclude coverage. Alexander v. Cornett, 42, 147 (La.App.2d Cir.07/11/07), 961 So.2d 622, writ denied, 07-1681 (La.11/02/07), 966 So.2d 603.

Any exclusion from coverage in an insurance policy must be clear and unmistakable. South Central Bell Telephone Co. v. Ka-Jon Food Stores of Louisiana, Inc., 93-2926 (La.05/24/94), 644 So.2d 357. It is the duty of the insurer to clearly express exclusions or limitations in a liability policy. Little v. Kalo Laboratories, Inc., 406 So.2d 678 (La.App. 2d Cir.1981), writ denied, 410 So.2d 1133 (La.1982). Thus, any ambiguity in an exclusion should be narrowly construed in favor of coverage. Yount v. Maisano, 627 So.2d 148 (La.1993).

The Louisiana insurance statutes provide the substantive framework for this analysis. A Louisiana auto policy must include uninsured/underinsured coverage unless the insured specifically rejects that | ¿coverage. La. R.S. 22:1295. In this case, Harlow purchased and paid for UM coverage for his BMW, the car he was driving at the time he was injured in the accident. Under ordinary circumstances, he would plainly be entitled to the UM coverage he paid for, provided that he could prove that his losses exceeded the liability limit of the policy on the car that hit him.

The Mitsubishi is a “land motor vehicle” (which is undefined but clearly includes automobiles). Whether it is “owned” by Harlow is equivocal. The petition states Harlow’s ownership; Harlow’s brief however, asserts that Harlow was allowing Dixon to purchase the Mitsubishi. In fact, Dixon was driving the car at the time of the accident which could indicate delivery. Who actually bought the insurance covering the Mitsubishi is unknown. In Maloney v. State Farm, Ins. Co., 583 So.2d 12 (La.App. 4th Cir.1991), writ denied, 586 So.2d 544 (La.1991), a UM coverage case in which an agreement of sale for an automobile had been reached but the price not yet paid or delivery made, the court stated:

|fiThe sales of motor vehicles are governed by the Civil Code articles relating to sales, and are not affected by non compliance with the requirements of the Vehicle Certificate of Title Law.
La. C.C. Art. 2456. Completion of Contract by Agreement as to Object and Price.
The sale is considered to be perfected between the parties, and the property is of right acquired by the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.
Thus, LSA-R.S. 22:1406 D(1)(d) supra, is applicable in the instant case. The uninsured motorist coverage of State Farm applicable to the 1971 Plymouth is not available as coverage (because ownership had changed) and that part of the Trial Judge’s decision is reversed, with judgment rendered in favor of State Farm.

Even if you consider Harlow to be the owner of the Mitsubishi, the trial court was unwilling to exclude UM coverage for Harlow, finding that this situation was not necessarily one in which UM coverage would be excluded for an “owned” vehicle. Specifically, the law is written to allow insurers to prevent an insured from collecting UM insurance when they are occupying a vehicle they own but did not cover with UM insurance. La. R.S. 22:1295(1)(e). This is not the situation in this case; Harlow was occupying a vehicle he owned that was covered by UM insurance. State Farm argues that “Harlow should not be allowed to benefit and receive UM benefits under the State Farm policy covering the BMW as the result of his own failure to obtain adequate liability insurance on the Mitsubishi that he also owned.” This is not a valid analogy to La. R.S. 22:1295(1)(e).

Louisiana law requires auto insurance policies to include UM coverage unless the insured specifically rejects that coverage. However, Louisiana does not allow drivers to reject liability coverage, and state law ^requires a minimum amount of liability insurance. Although the record could be clearer on this point, Harlow or Dixon apparently complied with the law and had the statutory minimum amount of liability coverage on the Mitsubishi. Because the insured did everything the law requires him to do and does not appear to be attempting to obtain coverage he did not pay for, there are public policy concerns with allowing the “owned vehicle” exclusion in this case. Harlow is not attempting to collect on both the liability and UM coverage portions of his BMW policy; he is only asking for UM coverage under that policy.

Conclusion

For these reasons, we AFFIRM the decision of the trial court and REMAND for further proceedings. Costs are assessed to defendant, State Farm.

WILLIAMS, J., dissents with written reasons.

WILLIAMS, J.,

dissenting.

11 Concluding that UM coverage is excluded for this accident pursuant to the language of the insurance policy in question, I respectfully dissent.

An insurance policy is a conventional obligation that constitutes the law between the insured and the insurer and the agreement governs their relationship. LSA-C.C. art. 1983. The extent of coverage is determined from the intent of the parties as reflected by the words of the insurance policy. Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024.

Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume. When the language of a policy is unambiguous and clear, the insurance contract must be enforced as written. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty, 93-0911 (La.1/14/94), 630 So.2d 759.

In this case, Harlow was driving his BMW when he was hit head-on by a Mitsubishi automobile, which was driven by his relative, Thomas Dixon, but owned by Harlow. The State Farm UM insurance policy clearly states that an “uninsured motor vehicle” does not include a vehicle owned by the insured.

The evidence submitted on summary judgment demonstrates that Harlow was the registered owner of both vehicles involved in the accident. The record contains no evidence of a sale of the Mitsubishi by Harlow, despite the suggestion of a possible sale raised for the first time in his appellate brief to this court. Consequently, a de novo review of this record 12shows that Harlow failed to present any evidence of a sale of the Mitsubishi in opposition to State Farm’s motion for summary judgment.

Pursuant to the unambiguous terms of the policy, the Mitsubishi is not an uninsured motor vehicle because it was owned by the insured, Harlow, at the time of the accident. Thus, Harlow’s UM coverage is not applicable to this situation under the plain language of the policy.

There is no showing by Harlow that the UM statute, LSA-R.S. 22:1295, prohibits an insurer from defining what constitutes an uninsured motor vehicle under the policy. In the cases of Lang v. Economy Fire & Casualty, 2000-1634 (La.App.3rd Cir.4/4/01), 783 So.2d 587 and Hasha v. Calcasieu Parish Police Jury, 539 So.2d 779 (La.App. 3rd Cir.), writ denied, 541 So.2d 872 (La.1989), the appellate court determined that an almost identical exclusion was not contrary to law or public policy.

Although Harlow was driving a vehicle he owned that was covered by UM insurance, he was injured by another vehicle which he also owned, but that he did not cover with UM insurance. Thus, contrary to the majority’s assertion, Harlow is attempting to collect liability coverage on his Mitsubishi while also attempting to collect UM coverage on his BMW.

Based upon the language of the policy and the applicable law, Harlow is not entitled to recover under his UM coverage because his Mitsubishi is not an uninsured vehicle as defined in the policy. Consequently, the district court erred in denying the insurer’s motion for summary judgment.

LOLLEY, J., dissents for the reasons assigned by WILLIAMS, J.

      . State Farm Fire and Casualty Company was incorrectly referred to as State Farm Mutual Automobile Insurance Company in the original petition and answer. State Farm Fire and Casualty Company filed an amended answer seeking to have all incorrect designations corrected.

      . La. R.S. 22:1295 provides, in part:
      (1)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (1)(a)(ii) of this Section. In no event shall the policy limits of an uninsured motorist policy be less than the minimum liability limits required under R.S. 32:900, unless economic-only coverage is selected as authorized in this Section.