author: BENTON, J. ROBERTS, J.,

text:
    R.J. REYNOLDS TOBACCO and Liggett Group LLC, Appellants, v. Erskin Donal WARD, as Personal Representative of the Estate of Mattie Emma Ward, Appellee.
    No. 1D13-0869.
    District Court of Appeal of Florida, First District.
    June 24, 2014.
    Charles F. Beall, Jr. and Larry Hill of Moore, Hill & Westmoreland, P.A., Pensacola, Gregory G. Katsas of Jones Day, Washington, D.C., Stephanie E. Parker, John F. Yarber, and John M. Walker of Jones Day, Atlanta, GA, and Randal S. Baringer of Womble, Carlyle, Sandridge & Rice, Winston-Salem, NC, for Appellant R.J. Reynolds Tobacco Company; Karen H. Curtis of Clarke Silverglate, P.A., Miami, Kelly A. Luther and Kelly A. Spear of Kasowitz, Benson, Torres & Friedman, LLP, Miami, for Appellant Liggett Group, LLC.
    David J. Sales of David J. Sales, P.A., Jupiter, for Appellee.
   BENTON, J.

Defendants in a wrongful death action below, the tobacco companies who are now appealing, refused Erskin Ward’s offers of judgment, only to lose at trial and suffer entry of judgment in the wrongful death case awarding sums dramatically in excess of what Mr. Ward had been willing to settle for. As the prevailing party, he filed a timely motion to tax attorney’s fees and costs pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2012), and Florida Rule of Civil Procedure 1.442, but cited no other statute or rule. The trial court granted the motion, and awarded costs and fees against the tobacco companies, on the ground that they had not accepted his timely offers of judgment. We reverse the award of costs and fees.

In the main case, Mr. Ward sought both compensatory and punitive damages from each defendant, and amended his complaint to include the punitive damages claims, after the trial judge ruled he could, and before he served the offers of judgment. The jury awarded nearly two million dollars more than what he had proposed (lump sums of $216,000 to Reynolds and $40,000 to Liggett) to settle all claims as to both defendants, and judgment was entered in the main case accordingly. As to the punitive damages claims, each offer stated, “Punitive damages are included in the amount of this proposal, whether pled or unpled. Acceptance of this proposal will extinguish any present or future claims for punitive damages.” Both the statute and the rule require the offeror to state with particularity the amount proposed to settle any claim for punitive damages, however, whenever such a claim exists. Mr. Ward’s claims for punitive damages against Reynolds and Liggett were pending when the offer was made. Yet he did not specify an amount for settling either of the punitive damages claims, or indicate in any way what portion of the total sum he offered either defendant should be allocated to punitive damages.

Our supreme court has recently and repeatedly said that the rule and statute must be strictly construed. See, e.g., Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 376-78 (Fla.2013) (requiring strict compliance with rule 1.442(c)(2)(F), and reversing an award because the offer did not specify whether attorneys’ fees were included); Campbell v. Goldman, 959 So.2d 223, 226-27 (Fla.2007) (requiring strict compliance with section 768.79(2)(a) and reversing a fee award because the offer failed to cite the statute even though the offer did cite rule 1.442); Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278-79 (Fla.2003) (requiring strict compliance with rule 1.442(c)(3) which dictates that a “joint proposal shall state the amount and terms attributable to each party”).

There is no ambiguity in Mr. Ward’s offers of judgment — it is clear the punitive damages claims would have been extinguished if the tobacco companies had accepted the offers — but the supreme court has made the test strict compliance, not the absence of ambiguity. In Campbell, for example, the supreme court expressly rejected the Fourth District’s view that the offeror’s failure to cite to the statute was inconsequential despite a reference to rule 1.442 and the fact that only one statute existed under which fees were awardable for failure to accept an offer of judgment. 959 So.2d at 227. See Goldman v. Campbell, 920 So.2d 1264, 1266 (Fla. 4th DCA 2006) decision quashed, 959 So.2d 223 (Fla.2007). In this connection, Justice Pariente’s concurring opinion is instructive. She pointed out that “there was no lack of clarity, uncertainty, or confusion in this offer,” Campbell, 959 So.2d at 227, just as there is no lack of clarity, uncertainty, or confusion in the offer in the present case. But in the present case, as in Campbell, under the logic of the supreme court’s decisions in this area, “the language of the statute and rule must be strictly construed because the offer of judgment statute and rule are in derogation of the common law [or, more accurately, the American] rule that each party pay its own fees. Willis Shaw, 849 So.2d at 278.” Campbell, 959 So.2d at 226.

Strict construction is also required because the offer of judgment statute prescribes a sanction. See Willis Shaw, 849 So.2d at 278 (“Section 768.79, Florida Statutes (1999) (“ ‘Offer of judgment and demand for judgment’ ”), provides a sanction against a party who unreasonably rejects a settlement offer.”). The decision in State Farm Mutual Automobile Insurance Co. v. Nichols, 932 So.2d 1067 (Fla.2006), cited by the dissenting opinion, is distinguishable. In Nichols, our supreme court examined two subsections of rule 1.442 which required the offer to “state with particularity” all nonmonetary terms and relevant conditions. Id. at 1078. But neither of the provisions considered in Nichols required, as both the rule and statutory subsection at issue here plainly do, that an “amount” be stated. The offers of judgment in the present case did not “state with particularity the amount offered to settle a claim for punitive damages.” § 768.79(2)(c), Fla. Stat. (2012); Fla. R. Civ. P. 1.442(c)(2)(E) (requiring offeror to “state with particularity the amount proposed to settle a claim for punitive damages”).

On remand, it remains for the court to determine the amount of attorney’s fees and costs to be awarded under plaintiffs alternative motion for attorney’s fees and costs, based on defendants’ unwarranted denials of requests for admission. The trial court found entitlement, but preter-mitted any ruling on amount. Because the trial court did not decide on or award any amount of attorneys fees and costs on this ground in the final judgment, the order determining entitlement is a nonfinal, non-appealable order, and the matter remains pending. See Bowman v. United Servs. Auto. Ass’n, 923 So.2d 1235, 1235 (Fla. 1st DCA 2006).

Reversed and remanded.

PADOVANO, J., concurs; ROBERTS, J., dissents with opinion.

ROBERTS, J.,

dissenting.

The Florida Supreme Court has recently been called upon to construe several aspects of the offer of judgment rule, but it has not issued a decision on this particular issue. In State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1078 (Fla.2006), the Supreme Court, in the context of interpreting rule 1.442(c)(2)(C)-(D), explained that the fundamental purpose behind the requirement of particularity is to eliminate ambiguity so as to allow the offeree to fully evaluate the offer and “ ‘if accepted, the proposal should be capable of execution without the need for judicial interpretation.’ ” Id. at 1079.

We recognize that, given the nature of language, it may be impossible to eliminate all ambiguity. The rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.

Id.

Plaintiff-appellee’s offer of judgment stated that if accepted, the offer would extinguish all pending punitive damage claims, leaving defendants without any doubt as to the effect of the language. Defendants were unable to articulate how they were harmed by plaintiffs failure to assign an arbitrary numerical value such as zero, or one dollar to the amount offered to settle the punitive damages claim. In the absence of a case expressly mandating the majoritys result, I am disinclined to extend section 768.79(l)(c) and rule 1.442(2)(E) beyond its logical purpose where the offer of judgment satisfied the particularity requirement, was not ambiguous, and allowed the defendants to fully evaluate the proposal and make an informed decision.

      . The court awarded plaintiff attorney’s fees and costs in the amount of $1,119,152.50 and $333,185.12, respectively, aggregating $1,452,337.62, against Reynolds and Liggett, jointly and severally.

      . Based on the jury's verdict, the trial court entered final judgment holding Reynolds and Liggett jointly and severally liable for $487,000 in compensatory damages and against Reynolds alone for an additional $1,700,000 in punitive damages. Reynolds and Liggett appealed and Ward cross-appealed application of the comparative fault statute. We affirmed per curiam. R.J. Reynolds et al. v. Ward, No. 1D12-2953, 2013 WL 4778569 (Fla. 1st DCA Sept. 6, 2013).

      . Section 768.79, Florida Statutes (2012) provides in part:
      (1) In any civil action for damages filed in the courts of this state ... [i]f a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand.
      (2) ... An offer must [in part]:
      (a) Be in writing and state that it is being made pursuant to this section.
      (b) Name the party making it and the party to whom it is being made.
      (c) State with particularity the amount offered to settle a claim for punitive damages, if any.
      (d) State its total amount.

      .Rule 1.442, which implements the statute, see Attorneys' Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646, 649 (Fla.2010) (“Florida Rule of Civil Procedure 1.442 provides the method and means of implementing this right by outlining the required form and content of a proposal for settlement.”) (footnote omitted), provides in part:
      (c) Form and Content of Proposal for Settlement. (1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.
      (2) A proposal shall:

      (D) state the total amount of the proposal and state with particularity all nonmone-tary terms of the proposal;
      (E) state with particularity the amount proposed to settle a claim for punitive damages, if any[.]

      . Florida, which was admitted into the Union by Act of Congress of March 3, 1845, c. 48, 5 Stat. 742, adopted the "common and statute laws of England ... down to the 4th day of July, 1776,” § 2.01, Fla. Stat. (2013), not the law of another American jurisdiction. At common law at the time of the Revolution, the prevailing party was entitled to recover both fees and costs. "Fees were ordinarily paid by the parties during the course of the litigation and were ultimately recovered by the winner from the loser in the bill of costs.” James E. Pfander, Judicial Compensation and the Definition of Judicial Power in the Early Republic, 107 Mich. L. Rev. 1, 8 (2008). The common law rule that the prevailing party could recover its costs can be traced to the Statute of Gloucester (1275) and the Statute of Marlborough (1267). See Arthur L. Goodhart, Costs, 38 Yale L.J. 849, 852-53 (1929). This system was "planted” in British North America "along with its first settlements.” Pfander, supra, at 8.
      As the Fifth District has pointed out, this circumstance has not altered our supreme court’s directive that fee-shifting statutes be strictly construed:
      In Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1147-48 (Fla.1985) the court recognized that such statutes are contrary to the "American Rule,” rather than in derogation of the common law rule that litigants pay their own attorney's fees. Nevertheless, after Rowe the supreme court has reiterated that attorney’s fees statutes should be strictly construed. See, e.g., Dade County v. Pena, 664 So.2d 959 (Fla.1995) (citing Gershuny v. Martin McFall Messenger Anesthesia Professional Ass'n, 539 So.2d 1131, 1132 (Fla.1989).)

        Nationwide Mut. Ins. Co. v. Nu-Best Diagnostic Labs, Inc., 810 So.2d 514, 516 (Fla. 5th DCA 2002). The supreme court has discussed the matter in detail:
      At the outset, we note that some of the decisions of this Court contain the historically incorrect statement that attorney fee statutes are “in derogation of the common law.” At the time of the American Revolution, the English courts generally awarded attorney fees to the prevailing party in all civil litigation. See M. Derfner, Court Awarded Attorney Fees 1.02[1] (1984) (hereinafter Derfner); Goodhart, Costs, 38 Yale LJ. 849, 851-54 (1929); Note, Attorney's Fees: Where Shall the Ultimate Burden Lie?, 20 Vand.L.Rev. 1216, 1218 (1967). By its decisions, however, this Court, along with the majority of other jurisdictions in this country, refused to accept the “English Rule” that attorney fees are part of the costs to be charged by a taxing master, adopting instead the "American Rule” that attorney fees may be awarded by a court only when authorized by statute or by agreement of the parties. See, e.g., Hampton's Estate v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla.1976); Webb v. Scott, 129 Fla. 111, 176 So. 442 (1936); State v. Barrs, 87 Fla. 168, 99 So. 668 (1924); Zinn v. Dzialynski, 14 Fla. 187 (1872). See also Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) (reaffirming the American Rule). The English Rule has strong advocates in this country, however. See, e.g., Bishop, Let’s Adopt the English Fees Award System, 4 Cal.Law. 10 (1984). This state has recognized a limited exception to this general American Rule in situations involving inequitable conduct. See Wahl, Attorney’s Fees Taxed Against a Party Because of his Inequitable Conduct, 26 Fla.L.J. 281 (1952); Wahl, Attorneys' Fees Taxed Against Opposing Party, 37 Fla.B.J. 220 (1963).

        Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1147-48 (Fla.1985) (footnote omitted) holding modified on other grounds by Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). The American Rule, under which “attorney’s fees are not ordinarily recoverable in the absence of a statute or enforceable contract,” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967), was articulated at least as early as the opinion in Arcambel v. Wiseman, 3 U.S. 306, 3 Dall. 306, 1 L.Ed. 613 (1796).

      . The rule requires that settlement proposals ‘‘state with particularity all nonmonetary terms” and also "state with particularity any relevant conditions.” Fla. R. Civ. P. 1.442(c)(2)(C)-(D). The supreme court considered whether State Farm’s release as in-eluded in its offer of judgment met the particularity requirement, concluding it did not because it was ambiguous whether the release covered a pending uninsured motorist claim. Id. at 1080.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    H.C., Appellant, v. DEPARTMENT OF CHILDREN & FAMILY SERVICES and Guardian ad Litem Program, Appellees.
    No. 3D14-348.
    District Court of Appeal of Florida, Third District.
    June 25, 2014.
    Herscher & Herscher, P.A., and llene Herscher, Coral Gables, for appellant.
    Karla Perkins, Miami, for appellee Department of Children & Family Services; Hillary S. Kambour, for appellee Guardian ad Litem Program.
    Before ROTHENBERG, LAGOA, and LOGUE, JJ.
   ROTHENBERG, J.

H.C. (“the Father”) appeals an order adjudicating his children, H.C.(l) and H.C.(2) (collectively, “the Children”), dependent based on a finding of “abuse” as defined in section 39.01(2), Florida Statutes (2013). We reverse.

In December 2013, the Department of Children and Family Services (“the Department”) filed a verified petition for dependency, alleging abuse based on “two purple-green, non-patterned bruises on [H.C.(2)’s] left lateral thigh as well as a purple loop mark.” Although the Department originally became involved with the family in December 2012 due to domestic violence by both parents in the presence of the Children, there was no prior history of injuries or harm to the Children.

The testimony at the adjudicatory hearing reflects as follows. The Father picked up the Children from daycare on Friday, October 4, 2013, and returned the Children to the Children’s mother (“Mother”) on Sunday, October 6, 2013. At that time, the Father lived with his then-wife and her two children, ages eleven and thirteen. Overall, the weekend was uneventful: the Children played at the park and attended a football game, and the Father fed and bathed the Children. During the weekend, the Father did not notice any bruises or marks on H.C.(2), who was then eleven months old; the Father did not know how the bruises and mark occurred; and there was absolutely no evidence that the Father hit or physically disciplined the Children during the weekend visitation.

The Mother claimed that she first noticed the bruises and mark on H.C.(2)’s thigh on Sunday, October 6, while bathing her. However, the Mother waited until Monday, October 7, to contact her caseworker at the Department, and did so only after her own mother urged her to do so. When the Mother touched the bruise on H.C.(2)’s thigh, H.C.(2) did not cry or appear to be in pain.

The Department’s expert, Cynthia Hunt (“Hunt”), a nurse practitioner with the University of Miami Child Protection Team, testified that she examined H.C.(2) on Wednesday, March 9, 2013. Hunt’s written report described H.C.(2)’s injuries as follows: “Left lateral thigh with two purple-green nonpatterned bruises and a purple loop mark.” In the report, Hunt opined that H.C.(2)’s injury “represents child physical abuse.” At the dependency hearing, Hunt testified that H.C.(2) had two medium-sized bruises on her left thigh and a “loop mark.” She also explained that a loop mark is indicative of “[bjeing hit with an instrument” such as a belt or electrical cord, but that any kind of cord can cause a “loop mark.” Hunt, however, could not determine the date the injuries occurred because all individuals heal differently. When asked whether H.C.(2)’s bruises and the “loop mark” could be attributed to H.C.(2) falling while attempting to walk, Hunt testified that she sees children “learning to walk half bruising sometimes,” and that it is possible that H.C.(2)’s bruises could have been caused by falling, but the loop mark could not be a result of falling even if H.C.(2) had fallen on an item.

Following the adjudicatory hearing, the trial court entered an order adjudicating the Children dependent as to the Father. The trial court found that “[sjomething happened to [H.C.(2) ] during the weekend,” and her injuries, which include “bruising and a loop mark on her left thigh,” are consistent with “child physical abuse.” Based on these findings of fact, the trial court concluded that the Department established by a “preponderance of the evidence that the Children are dependent by acts of abuse and the prospective risk of abuse presented by the Father.” The Father’s appeal followed.

The Father contends the trial court abused its discretion by finding that the Children are “dependent by acts of abuse and the prospective risk of abuse presented by the Father.” We agree.

To adjudicate a child “dependent,” the trial court must find that the Department proved the allegations set forth in the verified petition for dependency by a preponderance of the evidence. An appellate court reviews “an adjudication of dependency for an abuse of discretion, and will uphold the determination if the trial court applied the correct law and its ruling is supported by competent, substantial evidence.” Y.P. v. Dep’t of Children & Family Servs., 939 So.2d 1118, 1119 (Fla. 3d DCA 2006).

Section 39.01(2) defines “abuse” as follows:

“Abuse” means any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.

(emphasis added). Further, “harm” is defined, in relevant part, as follows:

(32) “Harm” to a child’s health or welfare can occur when any person:
(a) Inflicts or allows to be inflicted upon the child physical, mental, or emotional injury. In determining whether harm has occurred, the following factors must be considered in evaluating any physical, mental, or emotional injury to a child: the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted. Such injury includes, but is not limited to:
1. Willful acts that produce the following specific injuries: [Bruises are not listed as one of the specific injuries.] As used in this subparagraph, the term “willful” refers to the intent to perform an action, not to the intent to achieve a result or to cause an injury.
4. Inappropriate or excessively harsh disciplinary action that is likely to result in physical injury, mental injury as defined in this section, or emotional injury. The significance of any injury must be evaluated in light of the following factors: the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted. Corporal discipline may be considered excessive or abusive when it results in any of the following or other similar injuries:
k. Significant bruises or welts,

(emphasis added).

Based on the definition of “harm,” there is substantial, competent evidence that H.C.(2) was harmed, as it is undisputed that she not only had significant bruises, but she also had a “loop mark” that is consistent with being hit with an instrument such as an electrical cord or a belt. However, the record is completely devoid of any evidence that the Father caused H.C.(2)’s injuries, allowed anyone else to inflict H.C.(2)’s injuries, or has ever hit or physically disciplined H.C.(2) or H.C.(l). Moreover, during the weekend, H.C.(2) was exposed to numerous individuals besides the Father and the Mother, including the Father’s then-wife, her two children, the maternal grandmother, and several of H.C.(2)’s cousins. Thus, the Department failed to establish by a preponderance of the evidence that the Father inflicted or allowed someone else to inflict these injuries on H.C.(2). We therefore reverse the order adjudicating the Children dependent as to the Father.

Reversed.

      . The dependency petition also asserted that the Children were at substantial risk of neglect as defined in section 39.01(44), Florida Statutes (2013), however, the order adjudicating the Children dependent was based solely on abuse.


author: ROBERTS, J. THOMAS, J., CLARK, J.,

text:
    Jovita C. IBEAGWA, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2602.
    District Court of Appeal of Florida, First District.
    July 1, 2014.
    Sheila Callahan and Michael Jerome Titus, Assistant Regional Conflict Counsels, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Jay Kubica and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee.
   ROBERTS, J.

The appellant, Jovita Ibeagwa, appeals her conviction for two counts of aggravated manslaughter of a child following the drowning deaths of her two children, aged six and three. On appeal she raises three arguments, two of which merit discussion. First, she argues that the trial court erred in denying her motion for judgment of acquittal where the State failed to present a prima facie case that her action of leaving the children unsupervised constituted culpable negligence to support the charges of aggravated manslaughter. She also argues that improper comments made by the prosecution during closing argument constituted fundamental error and had the effect of lowering the State’s burden of proof. Viewing the evidence in the light most favorable to the State, we affirm the appellant’s conviction.

This Court reviews the trial court’s denial of a motion for judgment of acquittal de novo, with the evidence and all reasonable inferences from the evidence being viewed in a light most favorable to the State. See Ramos v. State, 89 So.Bd 1119, 1122 (Fla. 1st DCA 2012) (citing Jones v. State, 790 So.2d 1194, 1196-97 (Fla. 1st DCA 2001)). Viewing the facts in the light most favorable to the State, the evidence showed that sometime between 4:00 p.m. and 7:00 p.m., a neighbor observed the naked children playing, unsupervised, with a ladder in the appellant’s backyard. At around 6:30 p.m., the appellant left her two children home alone in order to report to work. At around 8:30 p.m., the appellant spoke to her husband on the phone, at which time she was aware that the children had been unsupervised at home for approximately two hours. The appellant did not return home at this time and instead continued to work. At around 10:00 p.m., she received a call to return home immediately as there had been an accident. At some time between the time the appellant left for work and approximately 10:00 p.m., the children gained access to a neighbor’s pool and drowned.

The appellant was charged with two counts of aggravated manslaughter of a child by culpable negligence under section 782.07(3), Florida Statutes (2010), which provides,

A person who causes the death of any person under the age of 18 by culpable negligence under s. 827.03(3) commits aggravated manslaughter of a child, a felony of the first degree....

Section 827.03(3) defines “neglect of a child” to include a “caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health.... ” “Neglect may be based upon repeated conduct or on a single isolated incident or omission .... ” § 827.03(3)(a), Fla. Stat. (2010). Child neglect is criminalized when a person “willfully or by culpable negligence neglects a child.” § 827.03(3)(b), Fla. Stat. (2010).

The term “culpable negligence” is not defined in the statute, but the standard jury instruction, which was given in the instant case, defines it to include negligence that is “gross or flagrant,” a course of conduct showing “reckless disregard of human life,” an “entire want of care as to raise a presumption of a conscious indifference to consequences,” or such “wantonness or recklessness” as to equal the intentional violation of the rights of others. See Fla. Std. Jury Instr. (Crim.) 7.7.

Culpable negligence must be determined upon the facts and the totality of the circumstances in each particular case. Behn v. State, 621 So.2d 534, 537 (Fla. 1st DCA 1993). If the evidence is sufficient to establish a jury question regarding whether a defendant is culpably negligent, then affirmance is required. See Ramos, 89 So.3d at 1121.

Here, the facts taken in the light most favorable to the State showed that the appellant drove away from her home, leaving her two young children home alone without confidence that they would be supervised. She remained away from home for a period of hours, despite knowing that the children were unsupervised for a large portion of that time. In addition, the neighbor’s testimony suggested that the appellant was or should have been aware that the children had access to a ladder in the backyard. Had the evidence only shown that the appellant left her children unsupervised for a period of minutes, culpable negligence may not have been established. However, leaving two young children home alone for a period of hours and failing to return after she knew that the children had been unsupervised constituted sufficient evidence to make a prima facie case of child neglect by culpable negligence. This constituted sufficient evidence to send the issue to the jury, whose duty it was to resolve any conflicts in the evidence and credibility of the witnesses. As such, the trial court properly denied the motion for judgment of acquittal.

The appellant also argues that comments by the prosecutor in closing misstated the burden of proof and constituted fundamental error. These unobjected-to comments did not rise to the level of fundamental error. Moreover, any harm was cured when the jury was properly instructed on the law and that closing arguments should not be considered as law or evidence.

AFFIRMED.

THOMAS, J., concurs with opinion; CLARK, J., dissents with opinion.

THOMAS, J.,

concurs with opinion.

I concur with Judge Roberts’ opinion in this tragic criminal case involving the deaths of two very young children, aged six and three. Whether we might have reached a different verdict is certainly understandable, given the evidence described in the dissenting opinion, but this is not dispositive under the controlling law. Our standard of review requires us to review the evidence under the following rule: “In moving for a judgment of acquittal, a defendant ‘admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.’ ” Beasley v. State, 774 So.2d 649, 657 (Fla.2000) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). By this standard, .the State’s evidence was sufficient to present the case to the jury to decide whether Appellant’s conduct of leaving her children unattended constituted culpable negligence.

The case of State v. Brooks, 17 So.3d 1261 (Fla. 2d DCA 2009), is persuasive and comparable to the facts here. There, the Second District correctly held that leaving an infant, who drowned, and his two-year-old sibling in a bathtub with running water, was sufficient evidence of child neglect, based on culpable negligence for the offense of leaving the two-year-old child unattended. The differences in age and maturity between Appellant’s children and the children in Brooks are not significant enough, in my view, to hold that Appellant’s conduct cannot be submitted to a jury, as a matter of law. Had Appellant’s children been older, my view might be different as to whether the evidence was sufficient to withstand a motion for judgment of acquittal.

Furthermore, although the State presented evidence that Appellant said she called her husband on her cell phone when she left for work and he told her he would be home shortly, this cannot establish a lack of culpable negligence as a matter of law, especially where the State presented evidence that this phone call never actually occurred. Under Lynch, a jury could reasonably infer that Appellant did not call her husband when she left the children unattended, or the jury could reasonably conclude she did place the call.

In addition, there was no evidence that Appellant attempted to confirm that her husband arrived home within a reasonable time to supervise the young children. In fact, two hours after she had left them, Appellant discovered that the children remained unsupervised, yet still failed to immediately go home to verify their safety.

Thus, while I could certainly agree that Appellant might not reasonably foresee that her children would die in a tragic and unexpected accident, her conduct of leaving her young children unattended for several hours was likely to result in serious injury to the children, which is all that the State was required to present to the jury. See Burns v. State, 132 So.3d 1238, 1240 (Fla. 1st DCA 2014). Appellant’s conduct created a “ ‘reasonably expected’ potential for the child to suffer, at a minimum, serious injury.” Id. at 1241 (quoting Arnold v. State, 755 So.2d 796, 798 (Fla. 2d DCA 2000)). Although this court reversed the conviction in Bums, it correctly recognized that the State is required to present evidence establishing that Appellant’s conduct was “ ‘gross and flagrant ... negligence ... committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm.’ ” Id. at 1240 (quoting Fla. Std. Jury Instr. (Crim.) 16.5). In Bums, the only evidence established was that the defendant had a child call the child’s mother within ten minutes, rather than calling 911; this court found this insufficient as a matter of law to support a conviction of child neglect without causing great bodily harm.

Here, by contrast, the evidence, and its reasonable inferences, established that Appellant left her two young children unattended for several hours, and a witness observed the children playing on a ladder in the back yard, which Appellant knew or should have known was occurring. Such conduct, in my view, can support a conviction for aggravated manslaughter based on child neglect. Under section 827.03(l)(e)l., Florida Statutes (2010), Appellant failed to “provide a child with the ... supervision ... necessary to maintain the child’s physical ... health .... ” Such child neglect was the result of Appellant “willfully or by culpable negligence neglecting] a child.” § 827.03(2)(b), Fla. Stat. (2010). It was not necessary that the State present evidence establishing that Appellant should have known that the children might die in a terrible accident; it was only incumbent on the State to present competent evidence that Appellant committed acts of child neglect that were gross and flagrant, such that it could be said that Appellant’s conduct could be “reasonably expected” to result in the children suffering great bodily harm or serious injury.

The State’s evidence met this test. Acknowledging that reasonable people may disagree with the jury’s verdict, the Florida Supreme Court has repeatedly held that a trial court’s order denying a motion for judgment of acquittal will not be reversed if there is competent, substantial evidence to support the verdict. Chamberlain v. State, 881 So.2d 1087, 1104-05 (Fla.2004). In Chamberlain, the court cited Lynch, holding that “[t]he courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion ... the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge.” Id. at 1104 (citing Darling v. State, 808 So.2d 145, 155 (Fla.2002) (quoting Lynch, 293 So.2d at 44-45)) (emphasis added).

Here, while there may have been room for a “difference of opinion” as to whether Appellant’s conduct constituted culpable negligence, the trial court did not reversibly err in submitting the case to the jury for its ultimate conclusion. Thus, I concur in Judge Roberts’ opinion affirming the trial court’s ruling denying Appellant’s motion for judgment of acquittal.

CLARK, J.,

dissents with opinion.

I disagree and would reverse the convictions for aggravated manslaughter of a child because the State failed to present a prima facie case of aggravated manslaughter by culpable negligence. The denial of Appellant’s motion for judgment of acquittal (“JOA”) was reversible error.

While “culpable negligence” is not defined by statute, courts have established a case-law definition. Culpable negligence is reserved for egregious acts: “consciously doing an act which a reasonable person would know is likely to result in death or great bodily harm to another person, even though done without any intent to injure anyone but with utter disregard for the safety of another.” Arnold v. State, 755 So.2d 796, 797 (Fla. 2d DCA 2000) (quoting Azima v. State, 480 So.2d 184, 186 (Fla. 2d DCA 1985)). It is also reserved for acts of “a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects.” Arnold v. State, 755 So.2d 796, 797 (Fla. 2d DCA 2000) (quoting State v. Greene, 348 So.2d 3 (Fla.1977)). Culpable negligence requires “that entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.” Arnold v. State, 755 So.2d 796, 797 (Fla. 2d DCA 2000) (quoting State v. Greene, 348 So.2d 3 (Fla.1977)).

To withstand the motion for JOA, the State’s evidence was required to support a prima facie case for each element of the charged offense, aggravated manslaughter of a child (§ 782.07(3), Fla. Stat.) by culpable negligence (§ 827.03(3), Fla. Stat.). It is well-settled that in ruling on a motion for JOA, the evidence must be considered in the light most favorable to the State. However, the light most favorable to the State means that conflicts in the evidence are resolved in favor of the State’s position, not that we disregard the portions of the State’s evidence which make the State’s case weaker, or might support the defense.

At the close of the State’s case, the evidence was insufficient to prove a prima facie case that Appellant’s negligence exceeded mere negligence and constituted the gross and flagrant actions demonstrating a reckless disregard for the life of her children such that her actions could be considered equivalent to an intent that her children be severely injured or killed. In addition to the facts emphasized by the majority, the State’s witnesses, Investigators Medina and Hinton, each testified that Appellant told them she voluntarily left her children at home alone at approximately 6:30 to 7:00 p.m. to report for a night shift at Shands Hospital. They explained she only did this after she had called her husband at his work at a nursing home when Appellant learned that she was called in to work a shift that night. According to their testimony, she also told both officers that she told her husband to come home to watch the children, and that he assured her he was close to home and would arrive in a few minutes, or five minutes. At the time Appellant made these statements to the officers, she did not know the children were dead and had no opportunity to coordinate her story with her husband.

Officer Hinton testified that the father’s statement to him was consistent with Appellant’s — that the parents had communicated around 6:30 p.m. and that he had told her to go ahead and leave for work because he would be there shortly. This testimony of the State’s witnesses was not direct evidence of Appellant’s state of mind at the time she left her children alone, but it did constitute indirect evidence of Appellant’s lack of wanton or reckless disregard for the safety of the children.

The State presented no evidence that conditions in the home itself were dangerous or that the neighbors or anyone else had ever observed Appellant acting with reckless indifference regarding the children’s safety. There was no evidence that Appellant knew the children would leave the home (or that they ever had), that they were capable of making their way to the neighbor’s swimming pool, or were capable of climbing over the fence to gain access to the neighbor’s pool. When compared to other cases where a caregiver’s acts constituted culpable negligence, the State’s evidence was insufficient to send this case to the jury.

For instance, in Ramos v. State, 89 So.3d 1119 (Fla. 1st DCA 2012), this Court upheld the conviction of a mother for aggravated manslaughter of a child by culpable negligence where her nineteen-month-old child drowned in a retaining pond. The State presented evidence that the mother had frequently and repeatedly failed to supervise her child in the months leading up to the child’s death. Neighbors had saved the child from danger before when he was roaming outside alone; neighbors had often found the child near the retaining pond and had taken him back to his inattentive mother who continued— even when he was returned to her apartment — to ignore and neglect him. Another neighbor had saved the child from drowning at the apartment pool complex when he played there with no supervision and fell into the spa. This Court concluded that in these circumstances, the totality of the mother’s conduct on the day the child died, as well as the past neglect and indifference showing a pattern of egregious behavior, “was sufficient to create a jury question of whether [the mother] was culpably negligent in breaching her duty” toward the child. The evidence was sufficient for a jury question because her repeated lack of supervision — especially where her child had frequently been unsupervised while close to the retention pond where he ultimately died — was quite likely to result in severe injury or death.

In State v. Nowlin, 50 So.3d 79 (Fla. 1st DCA 2010), we reversed the dismissal of a charge of neglect of a child with great bodily harm where a two-year-old was mauled by the babysitter’s pit bull. A critical issue was whether the babysitter was culpably negligent where the dog had bitten another child six months before, the babysitter signed paperwork about the previous incident as required by animal control officers, and the child’s mother had directed the sitter to care for the child in the child’s home, not the sitter’s home due to the dog’s presence there. This Court found the State had made a prima facie showing of culpable negligence where it established the babysitter’s “reckless indifference or grossly careless disregard for the safety of the two-year-old child in her care.” Nowlin, 50 So.3d at 83. Under those circumstances, the facts were sufficient to infer the caregiver’s awareness that serious physical injury was likely to befall that child.

In State v. Brooks, 17 So.3d 1261 (Fla. 2d DCA 2009), the evidence showed that the mother left her children, aged nine months and two years, unsupervised in a bathtub for up to 40 minutes with the bath water running. She had intended to return to the children quickly, but became involved visiting with her aunt in another room and “lost track of time.” The nine-month-old drowned. The jury found the mother not guilty of manslaughter (by culpable negligence) of the infant, but guilty of the lesser included offense of negleet of a child by culpable negligence regarding the older child. After the jury verdict, the trial court granted JOA but the appellate court reversed. The Second District Court of Appeal found the evidence sufficient to support the charge of child neglect by culpable negligence and thus sufficient to support the jury’s verdict. Because the evidence showed that the mother left the very young children in an inherently dangerous situation — a tub with running water for up to forty minutes — her degree of negligence was equivalent to an intentional act. Serious bodily injury or death was likely to occur in that situation.

Finally, although not a manslaughter case, dismissal of a charge of child neglect by willful or culpably negligent act was reversed in State v. Wynne, 794 So.2d 642 (Fla. 2d DCA 2001). There, the father and caretaker of the six-year-old stopped on an exit ramp for 1-295 and Hillsborough Avenue in the city of Tampa. As punishment for fighting with another child in the vehicle, the father removed the boy from the car, left him alone on the interstate ramp, and drove away. Such egregious conduct was certainly likely to result in serious physical injury or death to the child. The court noted that “the evidence established] that Wynne acted willfully or with culpable negligence in creating this dangerous situation.” Wynne, 794 So.2d at 644.

Compared to the inherently dangerous situations and repeated courses of conduct described in the cases above, even if the State’s evidence at the close of its case had been sufficient to withstand the first motion for JOA in this case, the motion presented at the close of all the evidence should have been granted. After the State’s own witnesses offered some evidence of Appellant’s motive and state of mind when she left the children at home, the defense offered additional evidence that Appellant’s negligence did not rise to culpable negligence. Appellant’s hospital co-worker described the ordinary childcare arrangements between the families and how these arrangements fell through on the night of the deaths. Appellant’s testimony was consistent with the testimony of the officers about her state of mind when she left the children and her belief that her husband, the children’s father, was only minutes away. She also testified that her duties at the hospital did not allow her to call her husband again until 8:40 p.m., when he again assured her he was almost home. She stated that the children were not mischievous or disobedient, had never expressed an interest in the neighbor’s pool, and were afraid of the neighbor’s dog. Appellant testified that she left the children inside the home with a video playing, instructed them to stay inside and told them their father would be there soon. She had never known the children to “escape” from the home and wander about.

At the close of all the evidence, the motion for JOA due to the lack of proof of the State’s prima facie case for culpable negligence — in other words, negligence so severe as to equate to an intentional exposure to danger likely to cause serious injury or death — should have been granted. When the elements of a crime have not been proven by competent substantial evidence, the trial judge may not simply overlook the dearth of evidence and send it to the jury to see what might happen. “Clearly if the evidence is not sufficient to support the elements of the alleged crime, the trial court cannot simply decide to submit the case to the jury anyway.” Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001).

During trial and at oral argument, the State’s theory was that Appellant’s behavior amounted to wanton and reckless behavior sufficient to constitute culpable negligence because when a child is left unsupervised, “anything is foreseeable” and “anything might happen.” The possibility that “anything might happen,” no matter how attenuated or unforeseeable, does not support a conclusion that Appellant was culpably negligent. The horrific result of the bizarre chain of events presented in this case is not a proper basis upon which Appellant’s negligence may be magnified to the level of culpable negligence.

To presume that one is culpably negligent because “anything might happen” makes manslaughter by culpable negligence a strict liability crime, dependent upon the end result and regardless of the defendant’s actions and mental processes. An isolated miscalculation where there is no evidence that the parent was otherwise recklessly or grossly careless under the facts she believed at the time does not establish a prima facie case of culpable negligence even where, as here, the end result is an unimaginable tragedy costing the lives of both of this family’s children. To hold a caregiver culpably negligent for “anything [that] might happen” whenever children are left unsupervised, without regard for a caregiver’s state of mind, mistaken belief of the situation, or any other factor affecting the defendant’s thought process negates any requirement of “a state of mind so wanton or reckless that the behavior it produces may be regarded as intentional.” Bowen v. State, 791 So.2d 44 (Fla. 2d DCA 2001); see also Sexton v. State, 898 So.2d 1187 (Fla. 1st DCA 2005).

In fact, at oral argument for this ease, the State advanced the strict liability standard to its logical conclusion. The Court inquired of the State if leaving two young children with no history of “escape” or any other indicia of mischievousness — like the children in this case — home alone for ten minutes to procure medicine would constitute culpable negligence. The State answered that no matter what event occurred, leaving the children was sufficient evidence of heightened culpable negligence to go to a jury. With this, I cannot agree. The key is not whether Appellant was negligent. Instead, the sole and determinative question is whether her negligence rose to the necessary heightened standard of egregiousness and wantonness, evincing indifference towards the death of the children. That question must be answered in the negative.

The State’s evidence was insufficient for a prima facie showing of the necessary element of culpable negligence and the trial court erroneously denied JOA. I would reverse the judgment and sentence.


author: PER CURIAM.

text:
    Joennes GIL, Appellant, v. CARGO FORCE, INC. and Gallagher Bassett Services, Inc., Appellees.
    No. 1D13-5423.
    District Court of Appeal of Florida, First District.
    July 1, 2014.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Kip 0. Lassner, Scott A. Cole and Daniel M. Schwarz of Cole, Scott & Kissane, P.A., Miami, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals a final order denying him payment of temporary partial disability benefits (TPD) based on his medical noncompliance. Because the record contains competent substantial evidence supporting the Judge of Compensation Claims’ (JCC) finding that Claimant did not take reasonable steps to secure the medical care when first offered by the Employer/Carrier (E/C), we affirm that portion of the order denying benefits through the date of the mediation conference held on August 8, 2013. See Lobnitz v. Orange Mem’l Hosp., 126 So.2d 739 (Fla.1961) (reversing award of compensation for period when claimant absented herself from available medical treatment which could have ameliorated compensable skin condition).

The evidence, however, does not support a finding of noncompliance by Claimant after the August 8, 2013, mediation conference where the parties agreed to the authorization of a spine specialist, because the E/C took no action thereafter to set an appointment. The doctrine of medical noncompliance does not result in the permanent forfeiture of benefits and will only apply during the period Claimant failed to take reasonable steps to secure medical care. See Davis v. Marion County, 667 So.2d 297 (Fla. 1st DCA 1995) (stating Lobnitz does not support denial of medical benefits or forfeiture of future benefits after claimant makes herself available for medical examination).

Here, the E/C appeared to have adopted the position that it was no longer obliged to continue to offer medical care once Claimant failed to attend the originally scheduled appointments. As the JCC observed, it was “illogical” for the E/C to fail to set an appointment after the mediation conference resulting in an agreement on authorized care. The JCC, therefore, erred when he found Claimant was not entitled to payment of benefits based on noncompliance for the period after August 8, 2013. Accordingly, we REVERSE that portion of the final order denying Claimant payment of TPD benefits after August 8, 2013, and REMAND for additional proceedings consistent with this opinion.

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


text:
    Anthony GARLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-727.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.
    Anthony Garland, Wewahitchka, pro se.
    No appearance required for appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

We previously affirmed the denial of the frivolous and untimely motion appealed in this case and issued an order to show cause why sanctions should not be imposed. State v. Spencer, 751 So.2d 47 (Fla.1999). We have considered appellant’s May 19, 2014, response to this Court’s order to show cause and determine that appellant has failed to show any reason why sanctions should not be imposed.

In the January 2014 motion on appeal, appellant sought “rehearing” of a postconviction motion that was denied in 2008. He did not appeal from that denial but instead filed an untimely and successive motion in 2012 contending that the 2008 denial was procured by fraud. That frivolous motion was denied and affirmed on appeal in case number 4D13-2188 where this Court cautioned appellant for the second time that further frivolous filing would result in sanctions. Appellant was also cautioned about sanctions for frivolous filing in case number 4D10-3902. Undeterred, appellant has filed another untimely and successive postconviction challenge arguing the repetitive claim that the denial of his motion in 2008 was procured by fraud. The motion was clearly abusive and frivolous. “[M]otions to set aside orders denying prior motions to vacate a sentence under Rule 3.850 cannot be used to circumvent the limitations on successive motions set forth in the rule.” Booker v. State, 503 So.2d 888, 889 (Fla.1987). The motion at issue is nothing more than an attempt to relitigate issues denied long ago.

Accordingly, the Clerk of this Court is directed to no longer accept any paper filed by appellant unless the document has been reviewed and signed by a member in good standing of the Florida Bar.

The Clerk is directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures including forfeiture of all gain time. § 944.279(1), Fla. Stat. (2013). No motion for rehearing will be entertained.

Affirmed.

GROSS, CIKLIN and CONNER, JJ., concur.


text:
    OCEAN BANK, Appellant, v. Maria E. GARCIA-VILLALTA, Appellee.
    No. 3D13-461.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Louis K. Nicholas II, Miami, for appellant.
    Russo Appellate Firm, P.A., and Christopher J. Bailey, Coral Gables, for appel-lee.
    Before ROTHENBERG, SALTER, and FERNANDEZ, JJ.
   ROTHENBERG, J.

Ocean Bank appeals the dismissal of its foreclosure action against Maria E. Garcia-Villalta (“Garcia-Villalta”) without prejudice to refile based on Ocean Bank’s failure to comply with the trial court’s Uniform Order Setting Cause for Non-Jury Trial and Trial Instructions (“Uniform Order”). Because we find that the trial court abused its discretion, we reverse the orders under review and remand for reinstatement of the foreclosure action.

Ocean Bank filed a foreclosure action against Garcia-Villalta in July 2011, but failed to serve her with the complaint either personally or by publication. In August 2011, Garcia-Villalta moved to dismiss the action based on Ocean Bank’s failure to serve the complaint. Although Garcia-Villalta did not file an answer, she participated in the litigation through counsel by serving Ocean Bank with interrogatories and requests for production on October 19, 2011. Ocean Bank failed to respond, and therefore, the following month, Garcia-Villalta moved to compel the pending discovery.

On November 20, 2012, the trial court sua sponte issued a Uniform Order, which set Garcia-Villalta’s foreclosure case and approximately 80 other foreclosure cases for a non-jury trial on January 11, 2013. The Uniform Order, which was furnished by fax to the numerous plaintiffs’ attorneys, provided, in part, as follows: “The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsels of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of the Court.”

Ocean Bank served a copy of the Uniform Order on Garcia-Villalta’s trial counsel on December 20, 2012 — only twenty-two days prior to the scheduled non-jury trial. On January 4, 2013, Garcia-Villalta moved to strike the matter from the non-jury docket, arguing that Ocean Bank had not served Garcia-Villalta with the Uniform Order at least thirty days before the scheduled trial as required by Florida Rule of Civil Procedure 1.440(c). Thereafter, on January 7, 2013, Ocean Bank moved to continue the trial because it had not properly served Garcia-Villalta with the complaint, and, on the following day, Ocean Bank filed a motion for default against another named defendant, Chase Bank USA, N.A. (“Chase Bank”).

The parties appeared before the trial court for the scheduled trial on January 11, 2013. Ocean Bank’s counsel explained that she did not immediately serve the Uniform Order on Garcia-Villalta’s counsel because she mistakenly believed that Garcia-Villalta’s counsel had received the Uniform Order via fax. However, once she learned that Garcia-Villalta had not received the Uniform Order, she immediately served Garcia-Villalta’s counsel with the Uniform Order on December 20, 2012. Ocean Bank’s counsel described her delay as “an honest error.”

The trial court dismissed Ocean Bank’s foreclosure action without prejudice to refile based on Ocean Bank’s counsel’s failure to timely serve the Uniform Order and on the trial court’s finding of “further good cause.” Ocean Bank’s appeal followed.

Ocean Bank contends the trial court abused its discretion in dismissing its foreclosure action without prejudice to refile. See Bank One, N.A. v. Harrod, 873 So.2d 519, 520 (Fla. 4th DCA 2004) (holding that the dismissal of an action for failure to comply with a trial court’s order is reviewed for an abuse of discretion). We agree.

Under the circumstances of this case, the trial court abused its discretion for various reasons. First, the foreclosure case was not properly “at issue” when the trial court issued its sua sponte order setting the case for trial because Garcia-Villalta had not filed a responsive pleading, no default had been issued against Garcia-Villalta, and the trial court had not ruled on Ocean Bank’s motion for default against Chase Bank. See Fla. R. of Civ. P. 1.440(a); Tucker v. Bank of New York Mellon, — So.3d -, -, 2014 WL 1491630, 39 Fla. L. Weekly D789, D789 (Fla. 3d DCA Apr. 16, 2014) (holding that the foreclosure action was improperly tried before case was “at issue” in contravention of Florida Rule of Civil Procedure 1.440 where a responsive pleading to counterclaim had not been filed prior to issuing the order setting case for trial); Precision Constructors, Inc. v. Valtec Const. Corp., 825 So.2d 1062, 1063 (Fla. 3d DCA 2002); Bennett v. Cont’l Chems., Inc., 492 So.2d 724, 727 n. 1 (Fla. 1st DCA 1986) (en banc) (“An answer must be served by or a default entered against all defending parties before the action is at issue.” (quoting Trawick’s Florida Practice and Procedure § 22-2 (1980 ed.))).

Second, when both parties appeared before the trial court on January 11, 2013, they informed the trial court they were not ready to proceed — Garcia-Villalta had not filed an answer; Ocean Bank’s motion for default against Chase Bank was pending; Garcia-Villalta’s discovery requests were pending; and the trial court had not ruled on Garcia-Villalta’s motions to dismiss and to compel discovery. As such, both parties requested that the non-jury trial not go forward that day. Despite the parties’ requests and the fact that a continuance would not have prejudiced either party, the trial court dismissed the action without prejudice to refile.

Finally, even if the foreclosure case had been “at issue,” the trial court nonetheless abused its discretion by dismissing the action without prejudice to refile because the record demonstrates that Ocean Bank’s trial counsel’s failure to timely serve Garcia-Villalta with the Uniform Order was nothing more than “an honest error.” See JP Morgan Chase Bank v. Jurney, 86 So.3d 1182, 1182-84 (Fla. 2d DCA 2012) (holding that the trial court abused its discretion by dismissing the bank’s foreclosure action and allowing the bank to refile a new foreclosure action because the bank’s failure to timely file an amended complaint that complies with Florida Rule of Civil Procedure 1.110(b) “was no more than an honest mistake”). Accordingly, we reverse the orders under review and direct the trial court to reinstate the foreclosure action.

Reversed and remanded.

      . In dismissing the action based on "further good cause,” the trial court did not precisely specify what "further good cause” warranted the imposition of such a harsh sanction. Regardless, as explained in this opinion, dismissal without prejudice to refile was an abuse of discretion.


text:
    Edgar NIVIA, Appellant, v. AURORA LOAN SERVICES, LLC, Appellee.
    No. 3D13-3199.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Edgar Nivia, in proper person.
    McCalla Raymer, LLC, and Charles P. Gufford (Orlando), for appellee.

      Before WELLS, LOGUE, and SCALES, JJ.
   PER CURIAM.

Upon consideration of the initial brief, and finding no preliminary basis for reversal has been demonstrated, the order below is summarily affirmed pursuant to Florida Rule of Appellate Procedure 9.315(a).

Affirmed.


author: SCALES, J.

text:
    Michael OWENS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-9.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Carlos J. Martinez, Public Defender, and Kathryn J. Strobach, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS and SCALES, JJ.
   SCALES, J.

Michael Owens appeals the trial court’s order revoking his probation and imposing a ten-year sentence.

We affirm both the order of revocation of probation and sentence, but remand the case for entry of a written order to conform to the trial court’s oral pronouncement that revocation was based on the trial court’s finding that Owens committed the new law violation of trespass, the lesser-included offense of burglary. See Thompson v. State, 965 So.2d 1250, 1251 (Fla. 1st DCA 2007) (“[W]hen a conflict exists between an oral revocation pronouncement and the written order revoking probation, the oral pronouncement will control.”); Futch v. State, 605 So.2d 954, 955 (Fla. 4th DCA 1992) (affirming revocation of probation but remanding for entry of written order to accurately reflect the oral pronouncement).

Order and sentence affirmed; case remanded with instructions consistent herein.


text:
    Alexander Eugenio MOSKOVITS, Petitioner, v. CRYSTAL HOUSE, INC., et al., Respondents.
    No. 3D14-684.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Alexander E. Moskovits, in proper person.
    Becker & Poliakoff, P.A., and Michael C. Gongora and Adam Cervera; Marshall Dennehey Warner Coleman & Goggin, and Andrew J. Márchese (Ft. Lauderdale); Robert N. Pelier, for appellees.
    Before WELLS, LOGUE and SCALES, JJ.
   PER CURIAM.

Petitioner, Alexander Eugenio Mosko-vits, the plaintiff below, has filed an original proceeding with this court for mandamus relief, certiorari relief, and “extraordinary review from the non-final denial” of Moskovits’ motion for summary judgment. We dismiss the petition.

In the trial court, Moskovits filed an amended complaint seeking to void a settlement agreement that he and Defendants-Respondents, Crystal House, a condominium association, entered into in 2007.

Crystal House filed motions to dismiss Moskovits’ amended complaint on statute of limitations grounds, and Moskovits filed a motion for summary judgment, asserting that the summary judgment evidence before the trial court established that the settlement agreement was the result of “extrinsic fraud.”

At a hearing held on February 26, 2014, the trial court heard the motions, and subsequently entered an order denying both: (i) Crystal House’s motions to dismiss, and (ii) Moskovits’ motion for summary judgment.

We dismiss Moskovtis’ petition because he has failed to assert — and indeed cannot assert — that the trial court violated any clear legal right of Moskovits, or that the trial court had an indisputable legal duty to grant his motion for summary judgment. See Bailem v. State, 984 So.2d 604, 606 (Fla. 3d DCA 2008) (“To be entitled to a writ of mandamus, the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy.” (citation omitted)); Fla. Caucus of Black State Legislators, Inc. v. Crosby, 877 So.2d 861, 863 (Fla. 1st DCA 2004) (stating an “extraordinary writ of mandamus may not be used to establish the existence of an enforceable right, but rather only to enforce a right already clearly and certainly established in law” (citation omitted)).

Similarly, Moskovits has failed to assert- and again cannot assert-that in denying his summary judgment motion, the trial court departed from the essential requirements of law, or that he suffered any type of irreparable harm, so as to entitle him to certiorari relief. See Flores v. Sanchez, 137 So.3d 1104 (Fla. 3d DCA 2014) (quoting Rodriguez v. Miami-Dade Cnty., 117 So.3d 400, 404 (Fla.2013) (explaining “[t]he threshold question that must be reached first is whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm” and whether the order under review constitutes a departure from the essential requirements of the law)).

As acknowledged by Moskovits on the face of his petition, the trial court’s order denying his summary judgment motion was a non-final order. Only those non-final orders enumerated in Florida Rule of Appellate Procedure 9.130 are subject to interlocutory review, and an order denying a motion for summary judgment is not delineated by the rule. See Castillo v. Deutsche Bank Nat’l Trust Co., 57 So.3d 965, 966 (Fla. 3d DCA 2011) (“[Ijnterlocu-rotry appeals of non-final orders denying motions for summary judgment are not permitted under [Rule 9.130].”).

Petition dismissed.


text:
    Jessica FRUGGIERO, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D13-1572, 1D13-1573, 1D13-1574.
    District Court of Appeal of Florida, First District.
    July 7, 2014.
    Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In these consolidated appeals pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), our independent review of the record in each case reveals no reversible error. However, as the state concedes, the trial court erred by imposing a special condition of probation requiring appellant to pay for the cost of drug testing when such a condition was not orally pronounced at sentencing. See Clussman v. State, 89 So.3d 1093 (Fla. 1st DCA 2012). This issue was properly preserved by appellate counsel through a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which was deemed denied when not timely ruled upon.

Accordingly, the judgments and sentences on appeal are AFFIRMED. On remand, however, the trial court is directed to strike from the orders of probation the special condition requiring appellant to pay the cost of drug testing.

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


text:
    RIVERCREEK PRESERVE, LLC, A Florida Limited Liability Company, William E. Glenn and Patricia W. Glenn, Appellants, v. AMERIS BANK, Appellee.
    No. 1D14-1568.
    District Court of Appeal of Florida, First District.
    July 8, 2014.
    Stephen C. Bullock, Lake City; Steven R. Browning, Jacksonville; and William H. Rogner, Winter Park, for Appellants.
    Frederick R. Brock, Jacksonville, for Appellee.
   PER CURIAM.

Upon consideration of appellants’ response to the Court’s order of May 6, 2014, the Court has determined that the order on appeal is not one which determines jurisdiction of the person. Cf. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla. 4th DCA 1982). Therefore, this Court lacks jurisdiction to review the order by appeal. Moreover, we decline appellants’ suggestion that we undertake cer-tiorari review, concluding that appellants have failed to demonstrate entitlement to such relief. Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000). Accordingly, the appeal is dismissed.

BENTON, CLARK, and OSTERHAUS, JJ., concur.


text:
    Nora Bloxom WILLIAMS, Appellant, v. CITY OF JACKSONVILLE, Appellee.
    No. 1D12-5801.
    District Court of Appeal of Florida, First District.
    July 9, 2014.
    Nora Williams, pro se, Appellant.
    Derrell Q. Chatmon, City of Jacksonville, Office of General Counsel, Jacksonville, and John G. Showalter, Staff Attorney, Public Employees Relations Commission, Tallahassee, for Appellee.
   PER CURIAM.

Nora Williams appeals the final order of the Public Employees Relations Commission affirming the summary dismissal of Ms. Williams’ amended charge of an unfair labor practice by the City of Jacksonville. §§ 447.501, 447.503, Fla. Stat. This court has jurisdiction to review the final order. § 447.504, Fla. Stat. Because the appellant has failed to establish any ground under section 120.68(7), Florida Statutes upon which this court might set aside the agency’s final order, the Commission’s final order is AFFIRMED.

VAN NORTWICK, ROBERTS, and CLARK, JJ., concur.


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Janice L. SIKES, As Personal Representative for the Estate of Jimmie Wayne Sikes, Appellee.
    No. 1D13-3183.
    District Court of Appeal of Florida, First District.
    July 9, 2014.
    Meir Feder and Charles R.A. Morse of Jones Day, New York, New York, Robert B. Parrish, David C. Reeves, and Jeffrey A. Yarbrough of Moseley, Prichard, Parrish of Knight & Jones, Jacksonville. Stephanie E. Parker, John F. Yarber, and John M. Walker of Jones Day, Atlanta. Kevin D. Boyce, and Edward Carter of Jones Day, Cleveland, Ohio, Gregory G. Katsas of Jones Day, Washington, DC., for Appellant.
    John S. Kalil, Jacksonville, and John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee, for Appellee.
   PER CURIAM.

R.J. Reynolds Tobacco Company appeals the final judgment for plaintiff Janice L. Sikes, the personal representative of the estate of Jimmie Wayne Sikes. We affirm on all issues. But following R.J. Reynolds Tobacco Company v. Hiott, 129 So.3d 473 (Fla. 1st DCA 2014), we certify conflict with the Fourth District’s decision in Philip Morris USA, Inc. v. Hess, 95 So.3d 254 (Fla. 4th DCA 2012), rev. denied, 117 So.3d 412 (Fla.2013), on the issue of whether the trial court reversibly erred by denying Reynolds’ requested jury instruction on the statute of repose, section 95.031(2), Florida Statutes.

AFFIRMED; CONFLICT CERTIFIED.

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


text:
    Ioannis PAPADOPOULOS, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Triangle House LLC, DBA Moodhoops, Appellees.
    No. 1D14-2589.
    District Court of Appeal of Florida, First District.
    July 9, 2014.
    Ioannis Papadopoulos, pro se, Appellant.
    Norman A. Blessing, General Counsel, Tallahassee (no appearance), for Appellee.
   PER CURIAM.

DISMISSED. See Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998).

THOMAS, RAY, and OSTERHAUS, JJ., concur.


author: JOHNSON, C.J.,

text:
    STATE of Louisiana v. Juavé COLLINS.
    No. 2013-OK-1324.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 03-07-0231, Louis R. Daniel, J.; to the Court of Appeal, First Circuit, No. 2013 KW 0419.

L Granted. The court of appeal erred in ordering respondent sentenced under Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and the district court’s order denying respondent’s Motion to Correct an Illegal Sentence is hereby reinstated. 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 reasons.

JOHNSON, C.J.,

dissents and would deny the writ.

hi 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. Henry MONTGOMERY.
    No. 2013-KP-1163.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Montgomery, Henry; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Curt Div. G, No. 48-489; to the Court of Appeal, First Circuit, No. 2013 KW 0442.

| iDenied. The district court did not err in denying relator’s Motion to Correct an Illegal Sentence. 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.

|J 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. George GILLAM.
    No. 2013-OK-946.
    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. 370-260, Keva Land-rum-Johnson, J.; to the Court of Appeal, Fourth Circuit, No. 2013-K-0491.

h Granted. The district court’s order granting respondent’s 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 respondent’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).

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

JOHNSON, C.J.,

dissents and would deny the writ.

IU 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. George TOCA.
    No. 2013-KK-1880.
    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. G, No. 301-875; to the Court of Appeal, Fourth Circuit, No. 2013-K-1061.

11 Granted. The district court’s order granting respondent’s 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 respondent’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).

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.


text:
    STATE of Louisiana v. Ronald OLIVIER.
    No. 2013-KK-1110.
    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. 354-800, Robin Pittman, J.; to the Court of Appeal, Fourth Circuit, No. 2013-K-0630.

| ¶ Granted. The district court’s order granting respondent’s 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 respondent’s case. See State v. Tate, 2012-2763 (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.

hi 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. Maurice HERRING.
    No. 2014-KK-1185.
    Supreme Court of Louisiana.
    June 8, 2014.
   In re Herring, Maurice; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 517-121; to the Court of Appeal, Fourth Circuit, No. 2014-K-0527.

Stay denied; writ denied.


text:
    STATE of Louisiana in the Interest of D.V.
    No. 2014-CK-1105.
    Supreme Court of Louisiana.
    June 11, 2014.
   In re D.V.; — Other; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Orleans Parish Juvenile Court, No. 2018-003-04-DQ-E; to the Court of Appeal, Fourth Circuit, No. 2013-CA-1283.

Denied.


text:
    Susan COURVILLE v. TURNER INDUSTRIES GROUP, LLC.
    No. 2013-CC-2631.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Turner Industries Group, LLC;— Defendant; Applying For Supervisory and/or Remedial Writs Office of workers’ Compensation, District 5, No. 11-05934; to the Court of Appeal, First Circuit, No. 2013 CW 0711.

Granted. The judgment of the court of appeal is vacated. The case is remanded to the court of appeal for reconsideration in light of Church Mutual Co. v. Dardar, 13-2351 (La.5/7/14), — So.3d -, 2014 WL 1800067, and Cook v. Family Care Service, Inc., 13-2326 (La.5/7/14), 144 So.3d 969, 2014 WL 1800038.


text:
    Tyreyon JORDAN, et al. v. Kawana GLOVER, et al.
    No. 2014-CC-0752.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re City of New Orleans; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 2011-02376; to the Court of Appeal, Fourth Circuit, No. 2014-C-0081.

Granted. The City produced sufficient evidence to establish it had no prior knowledge of the missing stop sign. See La. R.S. 9:2800(C). Plaintiffs failed to offer any contradictory evidence. Accordingly, the judgment of the district court is reversed. The City’s motion for summary judgment is granted, dismissing plaintiffs’ claims against the City.

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


text:
    STATE of Louisiana v. Cornie JONES.
    No. 2014-KK-0922.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Jones, Cornie; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 511-982; to the Court of Appeal, Fourth Circuit, No. 2013-K-0880.

Not considered. Not timely filed. See Supreme Court Rule X, § 5.


text:
    In re Appeal of the Decision of the DISCIPLINARY BOARD NO. 13-PDB-141.
    No. 2014-OB-0852.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Dykes, Harold; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 13-PDB-141.

Leave to appeal denied.


text:
    Bruce PERONE v. DECATUR HOTELS, LLC.
    No. 2014-CC-1034.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Decatur Hotels, LLC; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 2013-5422; to the Court of Appeal, Fourth Circuit, No. 2013-C-1670.

Stay denied. Writ denied.


text:
    STATE ex rel. Joshua P. HITT v. STATE of Louisiana.
    No. 2013-KH-2369.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Hitt, Joshua P.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tensas, 6th Judicial District Court Div. A, No. 81,910; to the Court of Appeal, Second Circuit, No. 48,-742-KH.

Denied.


text:
    STATE ex rel. Freddie J. BANKS v. STATE of Louisiana.
    No. 2013-KH-2528.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Banks, Freddie J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 10-06-0166; to the Court of Appeal, First Circuit, No. 2013 KW 1118.

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


text:
    Walter HOUSTON, Jr. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2013-CI-2538.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Houston Jr., Walter; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 609184; to the Court of Appeal, First Circuit, No. 2013 CW 0855.

Denied.


text:
    STATE ex rel. John LAUTERBACH v. STATE of Louisiana.
    No. 2013-KH-2548.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Lauterbach, John; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, Nos. 154,236, 154,-237, 154,238 / 149,827; to the Court of Appeal, Third Circuit, No. KH 12-00446.

Denied.


text:
    STATE ex rel. Ronald Lee WASHINGTON v. STATE of Louisiana.
    No. 2013-KH-2564.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Washington, Ronald Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. E, No. 237,561; to the Court of Appeal, Second Circuit, No. 48,-811-KH.

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


text:
    STATE ex rel. Michael GARNER v. STATE of Louisiana.
    No. 2013-KH-2595.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Garner, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 409-935; to the Court of Appeal, Fourth Circuit, No. 2013-K-1270.

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


text:
    STATE ex rel. Timothy SPICER v. STATE of Louisiana.
    No. 2013-KH-2610.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Spicer, Timothy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 276-533; to the Court of Appeal, First Circuit, No. 2013 KW 1134.

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


text:
    STATE ex rel. Anthony HATCHER v. STATE of Louisiana.
    No. 2013-KH-2611.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Hatcher, Anthony; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 04-09-0888; to the Court of Appeal, First Circuit, No. 2013 KW1315.

Denied.


text:
    JARRAD BENCAZ, DDS, LLC v. Jayme RITCHEY d/b/a Jayme Roofing & Repair, Atlantic Casualty Insurance Company, Borde Properties, LLC and Scottsdale Insurance Company.
    No. 2014-CC-0794.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Jarrad G. Bencaz D.D.S., L.L.C.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. A, No. 125,905; to the Court of Appeal, First Circuit, No. 2013 CW 1895.

Denied.

HUGHES, J., would grant.


text:
    Patricia BERGERON, George Bergeron, Jr., and Wendy Bergeron, Individually and on Behalf of her Minor Child, Alexis Bergeron and Jennifer Tuttle Hopkins, Individually and on Behalf of her Minor Child Abbigail Tuttle and William Tulak and Heather Tulak Individually and on Behalf of their Minor Children, Mackenzie Tulak and Ian Tulak v. Lanier James SOUDELIER, Power Torque Services, LLC, American States Insurance Company, American First Insurance Company and Liberty Mutual Insurance Company.
    No. 2014-CC-0851.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re First Mercury Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Terre-bonne, 32nd Judicial District Court Div. A, No. 167907; to the Court of Appeal, First Circuit, No. 2018 CW 2104.

Denied.

VICTORY and WEIMER, JJ., would grant.


text:
    Sean McCAFFERY v. Christi L. McCaffery.
    No. 2014-CJ-0981.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re McCaffery, Sean; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, No. 629-957; to the Court of Appeal, Fifth Circuit, No. 13-CA-692.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    The SWEET LAKE LAND & OIL CO., LIMITED LIABILITY COMPANY v. OLEUM OPERATING COMPANY, et al.
    No. 2014-CC-1001.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re BP Exploration & Oil, Inc. et ah; BP Exploration, Inc.; BP Products North America, Inc.; Soho Petroleum Company; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Cal-casieu, 14th Judicial District Court Div. A, No. 2010-1272; to the Court of Appeal, Third Circuit, No. CW 14-00319.

Denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Michael PRICE.
    No. 2014-KK-1201.
    Supreme Court of Louisiana.
    June 17, 2014.
   In re Price, Michael; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 515-954; to the Court of Appeal, Fourth Circuit, No. 2014-K-0514.

Denied.


text:
    Damien Deron WILLIAMS v. Rebecca ANDERSON.
    No. 2014-CJ-0944.
    Supreme Court of Louisiana.
    June 18, 2014.
   In re Williams, Damien Deron; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. D, No. 224,508; to the Court of Appeal, Third Circuit, No. 13-1405.

Denied.


text:
    Eddy OLIVER, Oscarlene Nixon, and Mildred Goodwin v. ORLEANS PARISH SCHOOL BOARD.
    No. 2014-C-0329.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Louisiana Board of Elementary and Secondary Education; Louisiana Department of Education; State of Louisiana; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2005-12244; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1520.

Granted.


text:
    Eddy OLIVER, Oscarlene Nixon, and Mildred Goodwin v. ORLEANS PARISH SCHOOL BOARD.
    No. 2014-C-0330.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Orleans Parish School Board;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2005-12244; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1520.

Granted.


text:
    CANAL/CLAIBORNE, LIMITED v. STONEHEDGE DEVELOPMENT, LLC.
    No. 2014-C-0664.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Louisiana Department of Children and Family Services; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 626-977; to the Court of Appeal, Fifth Circuit, No. 13-CA-641.

Granted.


text:
    Dwayne CHAUVIN v. EXXON MOBIL CORPORATION, et al.
    No. 2014-CC-0808.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Shell Offshore Inc.; Shell Oil Company; SWEPI L.P.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 713-971; to the Court of Appeal, Fifth Circuit, No. 14-C-30.

Granted.


text:
    Jerry Lee BALDWIN v. The BOARD OF SUPERVISORS FOR the UNIVERSITY OF LOUISIANA SYSTEM, the University of Louisiana at Lafayette, and Nelson Schexnayder, Individually, and in his Capacity as Director of Athletics for the University of Louisiana at Lafayette.
    No. 2014-C-0827.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Nelson Schexnayder, Director of Athletics for the University of Louisiana at Lafayette; Schexnayder, Nelson; The Board of Supervisors for the University of Louisiana System et al.; The University of Louisiana at Lafayette; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 509,900; to the Court of Appeal, First Circuit, No. 2013 CA 0602.

Granted.


text:
    Roy BUFKIN, Jr. v. FELIPE’S LOUISIANA, LLC, et al.
    No. 2014-CC-0288.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Shamrock Construction Co. Inc.;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2012-02260; to the Court of Appeal, Fourth Circuit, No. 2014-C-0051.

Granted.


text:
    STATE of Louisiana v. Richard L. DAVIS.
    No. 2013-KP-1868.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 262971; to the Court of Appeal, Second Circuit, No. 48317-KH.

Writ granted. The order of the court of appeal is reversed to the extent that it granted relief and ordered the district court to conduct an evidentiary hearing. The order of the district court dismissing all claims for post-conviction relief upon the pleadings is reinstated. See La. C.Cr.P. art. 929(A); State ex rel. Tassin v. Whitley, 602 So.2d 721, 722 (La.1992).


text:
    STATE of Louisiana v. Everette NORWOOD.
    No. 2013-KP-2075.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Norwood, Everette; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 01-04-0053; to the Court of Appeal, First Circuit, No. 2013 KW 0853.

Not considered; not timely filed.


text:
    STATE ex rel. Dale Robin MILLER v. STATE of Louisiana.
    No. 2013-KH-2230.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Miller, Dale Robin; — Plaintiff; Applying for Reconsideration of this Court’s action dated April 25, 2014, Parish of Lafayette, 15th Judicial District Court Div. K, No. 01-92141; to the Court of Appeal, Third Circuit, No. CW 12-00593.

Reconsideration denied.


text:
    Christie Lecompte THOMAS v. Kellsey THOMAS.
    No. 2014-CC-0668.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Thomas, Kellsey; — Defendant(s); Applying For Reconsideration of this Court’s order dated May 2, 2014, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 160666; to the Court of Appeal, First Circuit, No. 2013 CW 1554.

Reconsideration denied.


text:
    CITY OF NEW ORLEANS, et al. v. Kevin M. DUPART. Kevin M. Dupart v. City of New Orleans, et al. City of New Orleans, et al. v. Kevin M. Dupart.
    No. 2014-C-617.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Kevin M. Dupart; — Defendant; Applying for Rehearing of this Court’s action dated May 2, 2014, parish of Orleans, Civil District Court Div. J, No. 2013-04392; to the Court of Appeal, Fourth Circuit, Nos. 2013-CA-1292, 2013-CA-1293, 2013-CA-1294.

Rehearing denied.

WEIMER, J., would grant.


text:
    STATE ex rel. Everette NORWOOD v. STATE of Louisiana.
    No. 2013-KH-2226.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Norwood, Everette; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 01-04-0053; to the Court of Appeal, First Circuit, No. 2013 KW 0853.

Denied.

WEIMER and HUGHES, JJ., would grant.


text:
    STATE of Louisiana v. Travis CUTRER.
    No. 2013-K-2509.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Cutrer, Travis; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 453489; to the Court of Appeal, First Circuit, No. 2012 KA 2128.

Denied.


text:
    STATE ex rel. Michael TURNER v. STATE of Louisiana.
    No. 2013-KH-2525.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Turner, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 12-93-0388; to the Court of Appeal, First Circuit, No. 2013 KW 1339.

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

WEIMER, J., recused.


text:
    STATE ex rel. Milton WILSON v. STATE of Louisiana.
    No. 2013-KH-2530.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Wilson, Milton; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, Nos. 413805, 403919; to the Court of Appeal, First Circuit, No. 2013 KW 1229.

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


text:
    STATE of Louisiana v. Jeffery L. LEWIS.
    No. 2013-KO-2537.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Lewis, Jeffery L.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 494-752; to the Court of Appeal, Fourth Circuit, No. 2012-KA-0803.

Denied.


text:
    STATE ex rel. Charles FISCHER, Jr. v. STATE of Louisiana.
    No. 2013-KH-2543.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Fischer, Charles Jr.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 359-855; to the Court of Appeal, Fourth Circuit, No. 2013-K-1315.

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


text:
    STATE ex rel. Donald E. BARNES v. STATE of Louisiana.
    No. 2013-KH-2551.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Barnes, Donald E.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 402-960; to the Court of Appeal, Fourth Circuit, No. 2013-K-1351.

Denied.


text:
    STATE ex rel. Stephen J. BUTLER v. STATE of Louisiana.
    No. 2013-KH-2566.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Butler, Stephen J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 499-328; to the Court of Appeal, Fourth Circuit, No. 2013-K-1305.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. David MITCHELL v. STATE of Louisiana.
    No. 2013-KH-2578.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Mitchell, David; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 02-89-0002; to the Court of Appeal, First Circuit, No. 2013-KW-1428.

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


text:
    STATE ex rel. Ricky O. BUCKNER v. STATE of Louisiana.
    No. 2013-KH-2593.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Buckner, Ricky O.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 254284; to the Court of Appeal, Third Circuit, No. KH 13-00607.

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