author: THOMAS, J.

text:
    SAFECO INSURANCE COMPANY OF ILLINOIS, Petitioner, v. Earle RADER, Jr., Respondent.
    No. 1D13-2659.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2014.

      B. Richard Young, Megan M. Hall, and Adam A. Duke of Young, Bill, Roumbos & Boles, P.A., Pensacola, for Petitioner.
    Louis K. Rosenbloum of Louis K. Ro-senbloum, P.A., Pensacola; William C. Baker, Jr., of Baker & Baker PLLC, Pensacola, for Respondent.
   THOMAS, J.

Petitioner, Safeco Insurance Company (Safeco), seeks a writ of certiorari with regard to the lower court’s order denying Safeco’s motion requesting the court to enter a final judgment in accordance with Petitioner’s confession of judgment, and also granting Respondent’s motion for leave to amend his complaint seeking un-derinsured motorist (UM) benefits to add a claim for bad faith. For the reasons explained below, we deny Safeco’s petition.

BACKGROUND

Respondent was in a motor vehicle accident with a third party. Respondent was insured by Safeco for UM benefits. Respondent, with Safeco’s consent and waiver of subrogation rights, settled his bodily injury claim against the third party for his insurance policy limits of $25,000. On February 13, 2012, Respondent filed a complaint against Safeco seeking UM benefits under his policy with Safeco. The next day, Respondent filed a “Civil Remedy Notice of Insurer Violations” form, asserting Safeco had tendered an unsatisfactory settlement offer on the UM policy, i.e., an offer less than the UM policy’s limits “even though the claim value exceeds” the limits of the tortfeasor’s policy limits combined with the UM limits.

Safeco did not serve an answer to the UM complaint until July 2, 2012. Safeco’s answer indicated “without knowledge” to Respondent’s allegation that he incurred damages in excess of the $25,000 available from the tortfeasor’s liability policy, but paradoxically, Safeco also asserted that it had previously tendered to Respondent the $100,000 available under the UM policy. Safeco asserted that this “tender operates as a confession of judgment as a matter of law” and that, “pursuant to Florida law, this Court should now enter judgment in this case for Plaintiff for the applicable $100,000 policy limits.” Safeco also asserted that, because of its prior confession of judgment, the court “no longer has jurisdiction over this case or its subject matter regarding any claim ... in excess of the policy limits, which if there is such a claim, must be litigated as a separate suit on damages as contemplated by § 627.727(10), Florida Statutes.” Safeco also cited Government Employees Insurance Company v. King, 68 So.3d 267 (Fla. 2d DCA 2011), as authority for this proposition.

Shortly thereafter, on July 11, 2012, Respondent filed a motion to amend his complaint, asserting, inter alia, that Safeco, “after being relieved of a default for failure to timely file an answer to the initial complaint, has asserted an affirmative defense to the effect that it wants to ‘confess judgment’ in the amount of $100,000 as a ploy or strategy to allegedly relieve this court of any jurisdiction over this case inclusive of any bad faith damages in excess of the policy limit.” Respondent also asserted he was entitled to proceed to a jury trial on the UM claim to allow a jury to determine the full extent of his damages related to the accident, and then proceed to a separate trial on the proposed amended bad-faith count.

The following month, Safeco filed a response opposing Respondent’s motion to amend his complaint, arguing that the motion should be denied “because a bad faith action is separate and distinct from the underlying UM action. Therefore, it is improper to bring both claims in the same litigation.” Safeco also argued that amending the complaint was unnecessary, because there remained no justiciable issue between the parties and the only remaining judicial act was entry of a judgment in Respondent’s favor in the amount of the $100,000 policy limits. Additionally, Safeco asserted that the bad-faith claim was premature, absent a final judgment on the UM claim. Concurrent with this response, Safeco filed its motion for judgment on the pleadings in the amount of $100,000, asserting that pleadings in the matter were closed in light of the complaint and answer.

After conducting a hearing on the parties’ respective motions, the court issued the order under review. The court found that “[o]n the one hand, a bad faith claim is not ripe until a judgment has been entered or until a determination has been made such that the Plaintiff can allege” that his damages have been determined. “On the other hand, discovery is not permissible as to the underlying circumstances regarding a bad faith claim” until that determination has been made. The court noted that it is a “frequent practice ... to allow amendment of the complaint which is then abated until resolution of the underlying claim. That has frequently been the practice regarding third party claims; however, this is a first party claim,” and Respondent and the third-party tortfeasor have settled their action, with Petitioner’s concurrence. The court noted that Respondent agreed that judgment at that point could only be entered in the amount of policy limits as to the UM claim. The court found that “judgment on the pleadings cannot be resolved until the pleadings are closed,” as provided by Florida Rule of Civil Procedure 1.140(c).

The trial court further stated that “[u]n-der these circumstances, it is therefore appropriate to resolve the matter in this first party” bad-faith claim by granting Respondent’s motion to amend and “[e]i-ther by stipulation between the parties or after the Defendant files an Answer to the Amended Complaint and the pleadings are closed, the Defendant may submit a partial judgment” on the UM count “in the amount of $100,000.00 which shall not be a final judgment.” The court also found that, pursuant to this resolution, discovery in the bad-faith claim could commence and the claim could then proceed to trial “where a single, final judgment as to both counts can be rendered after a jury determines all relevant damages.”

Shortly after the trial court entered this order, Safeco filed a Notice of Removal to the federal district court for Florida’s northern district. The federal court denied the removal and remanded the case to the state court, finding the removal was untimely. The court rejected Petitioner’s argument that the bad-faith claim in Respondent’s amended complaint “constituted a separate and independent cause of action, triggering the thirty-day removal period.” The court also rejected the argument that the amended complaint revived the removal period, disagreeing with contrary conclusions in the middle district, but agreeing with cases from the southern district. The court discussed the removal statutes and found that, under plain language it rejected Petitioner’s position that the “bad faith claim is separate and independent of [the] UM claim for removal purposes” and Petitioner failed to timely seek removal when the original complaint was filed. The court also noted that there was nothing in the statutes “allowing for severance of claims in diversity cases” such as this.

In the wake of this order, the case was remanded to the circuit court. Petitioner filed a notice of appeal of the court’s order granting the motion to amend and denying the motion to enter a final judgment. This court issued an order in which it announced the order was not appealable and, thus, the notice would be treated as a petition for writ of certiorari.

ANALYSIS

“To obtain a writ of certiorari, a petitioner must show there has been ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” Lacaretta Restaurant v. Zepeda, 115 So.3d 1091, 1092 (Fla. 1st DCA 2013) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004)). Recently, our supreme court reiterated that “[t]he threshold question that must be reached first [when determining whether to grant certiorari] is whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm.” Rodriguez v. Miami-Dade County, 117 So.3d 400, 404 (Fla.2013). The court also noted that the question of irreparable harm is jurisdictional. Id. at 406. Therefore, we first address whether Safeco has established this threshold element.

Irreparable Harm

Notably, in Rodriguez, the non-final order under review was a denial of the county’s motion for summary judgment on sovereign immunity grounds. Logically, if denial of the right to avoid litigation and trial based on such immunity is not subject to relief via certiorari, it stands to reason that the order here, which, at most, might cause a delay in Petitioner’s ability to remove this matter to federal court, is also not appropriate for such relief.

It is in this regard that this matter materially differs from the facts in Sunrise Mills (MLP) Limited Partnership v. Adams, 688 So.2d 464 (Fla. 4th DCA 1997), upon which Safeco relies. In that case, the “defendant served plaintiff with a request for admission ‘that you are seeking damages exclusive of interest and costs in excess of $50,000.’ This was done within the time that defendant could have removed the case to federal court because of diversity of citizenship. Plaintiff objected, and the trial court sustained the objection.” Id. at 465. The court explained, “The requested admission involved defendant’s right to removal under federal law, the time for which is relatively abbreviated after notice of the claim has been given.” Id. It was in this context that the court held that “[n]ot permitting certiorari review under these circumstances would have the effect of defeating defendant’s statutory right of removal to a federal court having constitutional jurisdiction of the claim.” Id. In other words, had the court’s ruling remained in force past the time for removal, the defendant would have been permanently deprived of its removal right. Here, however, in the event the trial court’s order is reversed on appeal, Respondent will have to file a new, separate action for bad faith if he wishes to continue pursuing his bad-faith claim. Safeco would then be able to remove that action. Consequently, unlike in Adams, there is no threat of a permanent deprivation of Safeco’s removal right.

Safeco also relies on GEICO General Insurance Co. v. Harvey, 109 So.3d 236 (Fla. 4th DCA 2013). In that case, the plaintiff obtained a judgment against Harvey, who had a liability policy with GEI-CO. Subsequent to this judgment, the plaintiff was permitted to add GEICO as a defendant, and Harvey filed a counterclaim against GEICO, asserting bad faith. Id. at 237. “GEICO attempted to remove the bad faith action to federal court, but the notice of removal was found to be untimely, and the case was remanded to the state circuit court.” Id. The federal court’s reasoning was essentially identical to that of the federal court in this case. “GEICO then moved to dismiss or sever the bad faith crossclaim by arguing that the claim was not part of the same transaction or occurrence as the wrongful death action.” The trial court denied the motion, and GEICO petitioned for certiorari. Id. The court granted this petition, holding “the denial of the motion to dismiss has defeated GEICO’s right to have the action removed to federal court. The loss of this statutory right of removal is among the narrow class of matters subject to certiora-ri review,” citing Adams. Id. Bit 238.

Although procedurally somewhat similar to the case here, the court in Harvey did not address just how the harm was irreparable. Presumably, had the matter proceeded to a final judgment and, for the reasons explained in the remainder of the opinion, the court reversed the trial court’s order on the merits, Harvey would have been forced to file a new and separate action, at which time GEICO, similar to Respondent here, would have been able to remove that claim. That option was not, as discussed, available to the insurer in Adams. A strict reading of the Harvey opinion suggests that even a mere delay in a party’s ability to remove a case ipso facto equates to irreparable harm, a conclusion that is at odds with the supreme court’s admonition in Rodriguez that “the continuation of litigation and any ensuing costs, time, and effort in defending such litigation does not constitute irreparable harm.” 117 So.3d at 405. It is also clear from the supreme court’s opinions in Rodriguez and Citizens Property Insurance Corp. v. San Perdido Association, 104 So.3d 344 (Fla.2012), that the court’s position is that the instances in which certiora-ri is appropriate should be restricted, not expanded. A decision by the Fourth District ten months after its Harvey decision indicates, however, that the court recognized there is no such automatic irreparable harm in cases involving removal. In Beazley Insurance Co., Inc. v. Banerjee, the court held that “[cjertiorari relief may be appropriate when the effect of a court’s ruling is to defeat a litigant’s ability to remove an action to federal court.” 123 So.3d 1184, 1185 (Fla. 4th DCA 2013) (emphasis added). Again, here, assuming, ar-guendo, the trial court erred, at worst, Safeco’s ability to remove this case has been delayed, not defeated.

Note, too, that in Banerjee and Harvey, the petitioners were joined in actions that had been pending for some time, and then-attempts at removal were thwarted because the federal courts found them untimely — using, as the federal court did here, the date the underlying action was filed, not the date the petitioner was joined. Here, however, Safeco was the only defendant in the underlying action and did not seek removal until Respondent was permitted to amend his complaint to include a bad-faith action. Thus, unlike the petitioners in Banerjee and Harvey, Safeco had a measure of control over its fate, but was late in exercising it, resulting in a denial of its attempt to remove the case to federal court. Notably, during the hearing below, Safeco’s sole concern was having to go through with a UM trial even though it had tendered its policy limits and the court could not enter a judgment in excess of those limits.

Safeco also argues that it will suffer irreparable harm if it has to go through with a second trial because by then it will have revealed its trial strategy during the first trial. But the Florida Supreme Court has already rejected this argument in Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998) (rejecting petitioner’s argument of “substantial injury caused when aggrieved parties must ‘show their hand’ in a preliminary nonjury trial.”).

For the foregoing reasons, Safeco has failed to establish that it will suffer irreparable harm if it is required to continue litigating Respondent’s bad-faith claim and appeal the order under review after a final, appealable judgment is entered in this matter. Although this failure alone means Safeco is not entitled to a writ of certiora-ri, we address the issue of whether the trial court’s order departed from the essential requirements of law to further explain our decision.

Departure from Essential Requirements of Law

“The departure from the essential requirements of the law necessary for granting a writ of certiorari is something more than a simple legal error.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010). “The district courts should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla.1983). “Appellate eourts do not issue writs of certiorari merely to correct an erroneous application of the law, as would be the case in a plenary appeal.” Abbey v. Patrick, 16 So.3d 1051, 1054 (Fla. 1st DCA 2009).

Safeco contends the court departed from the essential requirements of law by allowing Respondent to amend his complaint to assert a bad-faith claim, arguing that, once Safeco confessed judgment and moved for entry of a judgment against it in the amount of the policy limits, the court lost jurisdiction to do anything other than enter a final judgment because there was no further judicial labor for the lower court to perform as the pleadings stood at the time. Safeco also argues the trial court “improperly attempted to retain jurisdiction over” the UM claim by refusing to enter a final judgment.

The latter point is not supported by the court’s order, which makes it clear that the UM claim had been resolved and that the bad-faith claim ripened by the combined effect of the settlement between Respondent and the tortfeasor (with Safeco’s consent) as well as Safeco’s tendering of the policy limits. The court also found that Respondent agreed that the court could enter a judgment only in the amount of the policy limits. The court did not refuse to enter a judgment on the pleadings but, rather, found it could not do so until the pleadings were closed, which would not occur until Safeco filed an answer to the amended complaint. Thus, although the court declined to enter a final judgment on the UM claim, there is no indication that any further litigation on that claim was contemplated. Rather, the court simply declined to enter a final judgment until the bad-faith claim was resolved, at which point it would add the amount of the verdict in that claim, if any, to the $100,000 partial judgment.

Under Safeco’s rationale, if Respondent had originally filed his complaint to include a claim for both UM benefits and bad faith, and the court simply abated the bad-faith claim pending the conclusion of the UM claim, the court would not have jurisdiction over the bad-faith claim once the UM judgment was entered. This is contrary to the case law, according to which a trial court may proceed with a bad-faith count after entering judgment on the UM claim. See, e.g., Landmark Am. Ins. Co. v. Studio Imports, Ltd., 76 So.3d 963, 963 (Fla. 4th DCA 2011) (holding petitioner “should not have to defend against a bad faith claim at the same time as the underlying issue without the appellee first prevailing on the merits,” and reversing “so the trial court can determine whether the bad faith claim should be abated or dismissed without prejudice.”); Lime Bay Condo. Inc. v. State Farm Fla. Ins. Co., 94 So.3d 698, 699 (Fla. 4th DCA 2012) (holding: “ ‘When a plaintiff does not and cannot allege that there has been a final determination of both the insurer’s liability and the amount of damages owed by the insurer, the plaintiffs bad faith claim is premature and should be either dismissed without prejudice or abated.’ ” (quoting State Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So.2d 633, 635-36 (Fla. 2d DCA 2008)); State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So.3d 809, 810 (Fla. 4th DCA 2010) (granting certiorari “petition as to the abatement, because the final determination of coverage and damages for the underlying claim has not been made, which must precede a statutory bad faith action.”).

Notably, in Tranchese, “[t]he cause of action for bad faith was one of multiple claims, including ones for determination of liability and the amount of damages sustained as a result of two automobile accidents suffered by State Farm’s insured Neil Tranchese and his wife, Patricia Tranchese.” Id. at 809-10. Thus, it is clear from these cases that: a) an insured may file a complaint alleging both breach of contract as to UM coverage at the same time as a premature claim for bad faith, but that the latter should, if premature, be either dismissed without prejudice or abated; b) the concern in all of the cases is forcing an insurer to defend against both a UM claim and a bad-faith claim simultaneously; and c) if a claim for bad faith is abated, the trial court of necessity retains jurisdiction over that claim even though, also of necessity, the UM claim has been resoived favorably to the insured.

What occurred here was that Respondent waited until the bad-faith claim ripened when Safeco, in its answer to the UM claim, confessed to liability in the amount of its policy limits. Respondent moved to amend its complaint just nine days after Safeco filed its answer, and Safeco did not move for entry of a final judgment until the following month. Thus, the entire action was still pending before the circuit court, which allowed Respondent to amend his complaint to add the now ripe bad-faith claim, while also, as allowed by the case law, agreeing to enter a judgment for the UM claim. Thus, the court did not require that Petitioner simultaneously defend both a UM claim and a bad-faith claim. Petitioner cites no authority for its proposition that this was a departure from the essential requirements of law. Rather, Safeco cites a number of cases for the undisputed proposition that a bad-faith claim is separate from a UM claim. But this fact does not divest the court of jurisdiction to preside over both, so long as it does so in the proper manner.

Safeco relies heavily on Safeco Insurance Company of Illinois v. Fridman, 117 So.3d 16 (Fla. 5th DCA 2013), but that case is factually distinguishable. There, unlike here, the trial court required the insurer to proceed to a jury trial on the UM claim, despite having tendered policy limits and a confession of judgment in that amount. Id. at 17-18. The court then entered a final judgment in the amount of the policy limits (which were far less than the jury verdict) and purported to reserve jurisdiction to determine whether the insured had a right to amend his complaint. Id. at 18. Here, however, the court entered a partial judgment in the amount of the tendered policy limits and simultaneously allowed Respondent to amend his complaint to add a bad-faith claim which, by virtue of Safeco’s tender, had ripened. The trial court in Fridman erred, in part, by entering a final judgment and also reserving jurisdiction to allow the insured to amend his complaint. Further, the court in Fridman also erred by requiring the insurer to proceed with a UM trial even after tendering its policy limits and even though the maximum judgment available in a UM action is for the policy limits. Here, however, the only trial to which the court’s order subjected Safeco was a bad-faith claim, not the UM claim, which was Safeco’s concern at the hearing.

Based on the foregoing, Safeco has not established that the trial court’s order allowing Respondent to amend his complaint to add a bad-faith claim rose to the level of a departure from the essential requirements of law.

CONCLUSION

For the foregoing reasons, we hold that Safeco is not entitled to a writ of certiorari because it failed to establish that the trial court’s order exposes Safeco to irreparable harm if it is required to wait until a final appealable judgment is entered in this matter or that the trial court departed from the essential requirements of law.

Petition DENIED.

MARSTILLER and MAKAR, JJ., concur.

      . According to the federal court order entered in this case (discussed below), Safeco had defaulted and, in its June 2012 motion to set aside the default, "offered to settle the ... claim — and any future bad faith claim — for policy limits,” and mailed a check for $100,000 to Respondent.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph Q. NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3551.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2014.

      Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Joseph Neal appeals his convictions for armed robbery with a firearm, aggravated assault with a firearm, and shooting at or into an occupied vehicle. Because the trial court failed to apply the correct legal standard in evaluating and denying Mr. Neal’s request to proceed without counsel, we reverse and remand for a new trial.

A person who is accused of a crime has a constitutional right to represent himself or herself. See Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Pasha v. State, 39 So.3d 1259, 1261 (Fla.2010). The accused need have no legal experience nor any special ability. It is enough that the accused understand the right to be represented by counsel and decide voluntarily to proceed without counsel, assuming severe mental illness does not preclude self-representation. See Indiana v. Edwards, 554 U.S. 164, 178, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) (“[T]he Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under [Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)] but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.”). Accordingly, it is error to deny a defendant’s unequivocal request to represent himself, regardless of his legal skills or the complexity of the case, if the trial court determines that the defendant made a knowing and intelligent waiver of the right to counsel and “does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself.” Fla. R. Crim. P. 3.111(d)(3).

“ ‘[0]nee a court determines that a competent defendant of his or her own free will has “knowingly and intelligently” waived the right to counsel, the dictates of Faretta are satisfied, the inquiry is over, and the defendant may proceed unrepresented.’ When that occurs, ‘[t]he court may not inquire further into whether the defendant “could provide himself with a substantively qualitative defense,” for it is within the defendant’s rights, if he or she so chooses, to sit mute and mount no defense at all’ ” Muehleman v. State, 3 So.3d 1149, 1160 (Fla.2009) (citations omitted). See also Thompson v. State, 37 So.3d 939, 940 (Fla. 2d DCA 2010) (“[possessing legal skills is not a precondition for exercising the right of self-representation.”); Ollman v. State, 696 So.2d 409, 409 (Fla. 1st DCA 1997) (“[T]he issue in a Faretta hearing is whether the defendant has knowingly and intelligently waived the right to counsel, not whether the defendant is intellectually capable of conducting an effective defense.”).

In the present case, as in Thompson and Oilman, the trial court failed to apply the correct standard in evaluating Mr. Neal’s request to proceed without counsel. The state argues that the trial court determined that Mr. Neal was not knowingly and voluntarily waiving his right to counsel. But this assertion is not supported by the record. The trial court’s finding does not even address whether Mr. Neal’s request to represent himself was knowing and intelligent. Nor did the trial court find that Mr. Neal suffered from “severe mental illness to the point where [he was] not competent to conduct trial proceedings by [himself]” so as to fall within the exception to the general rule explicated in Edwards, 554 U.S. at 178, 128 S.Ct. 2379.

The error is structural and not subject to harmless error review. See United States v. Gonzalez-Lopez, 548 U.S. 140, 148-19, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (recognizing the denial of the right of self-representation as one of a limited number of structural defects which “ ‘defy analysis by “harmless-error” standards’ because [it affects] ‘the framework within which the trial proceeds’ ” (quoting Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)); McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (“Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis. The right is either respected or denied; its deprivation cannot be harmless.”); Pasha, 39 So.3d at 1262 (same).

Presiding over a criminal case involving multiple charges and multiple victims, with a pro se defendant, can present “a difficult and challenging responsibility for a trial judge.” Tennis v. State, 997 So.2d 375, 380 (Fla.2008). As explained in Faretta, however, the constitutional right to self-representation belongs to the defendant. Although the defendant “may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ ” Faretta, 422 U.S. at 834, 95 S.Ct. 2525 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J, concurring)). Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


author: VAN NORTWICK, J.

text:
    Azita BEHNAM, Former Wife, Appellant, v. Jafar Mamaghani ZADEH, et al., Former Husband, Appellee.
    No. 1D12-5760.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2014.

      Cynthia Stump Swanson, Gainesville, for Appellant.
    Jesse Caedington of Scruggs & Carmichael, P.A., Gainesville, for Appellee.
   VAN NORTWICK, J.

Azita Behnam, the former wife, challenges a final summary judgment entered in a dissolution of marriage proceeding. Because there was no motion for summary judgment before the trial court, entry of an order granting such was in error. Accordingly, we reverse and remand for further proceedings.

The parties were married in Iran in 1981. After separating in August 2009, the former wife left Iran and relocated to Gainesville, Florida. The former wife filed a petition for support unconnected with dissolution of marriage, which was later amended to a petition for dissolution of marriage.

The former husband filed multiple motions to dismiss, the last of which is at issue here. In pertinent part, the former husband’s motion alleged that the parties had already been divorced in Iran, and as such, the doctrine of res judicata barred the former wife from further litigating the issue. In response to the motion to dismiss, the trial court entered an order granting final summary judgment for the former husband.

It was error to treat the former husband’s motion to dismiss as one for summary judgment. As explained in Holland v. Anheuser Busch, Inc., 643 So.2d 621, 623-24 (Fla. 2d DCA 1994),

[cjounsel must remember that [a motion for summary judgment and a motion to dismiss have] separate purpose[s] under our rules of civil procedure. A motion to dismiss is customarily designed to test the legal sufficiency of a complaint to state a cause of action, not to determine issues of ultimate fact. The function of a motion for summary judgment is to determine if the parties can offer sufficient proof to support the issues framed in their pleadings.

See also Wells Fargo Bank, N.A. v. Bohatka, 112 So.3d 596 (Fla. 1st DCA 2013).

Because the trial court erred in treating the motion to dismiss as one for summary judgment, we REVERSE and REMAND for further proceedings. Given our disposition as to this issue, all other issues raised on appeal are moot.

CLARK and OSTERHAUS, JJ., concur.


text:
    Catherine D. BROADWAY, Former Wife/Appellant, v. Eric J. BROADWAY, Former Husband/Appellee.
    No. 1D13-2779.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2014.
    E. Jane Brehany, Pensacola, for Appellant.
    Clay B. Adkinson, DeFuniak Springs, for Appellee.
   PER CURIAM.

Catherine D. Broadway, the former •wife, raises nine issues on appeal challenging the Final Judgment of Dissolution of Marriage between herself and appellee, Eric J. Broadway, the former husband. We affirm the Final Judgment as to eight of the former wife’s issues without further discussion. We find merit, however, in one of the former wife’s issues and, as explained below, reverse and remand for further proceedings.

The record demonstrated that the parties separated in early September 2010, and that the former husband purchased a 25-foot pull-behind camper some time during the week the separation began. The former wife filed her petition for dissolution of marriage on July 26, 2011. In the equitable distribution portion of the Final Judgment, the trial court included the camper in the spreadsheet grid that it utilized to compile and allocate the assets subject to equitable distribution. The trial court ruled that the camper was acquired post-separation and was designated as a non-marital asset of which the former husband retained sole ownership. In this ruling the trial court erred.

Marital assets are defined, inter alia, as “[ajssets acquired ... during the marriage, individually by either spouse or jointly by them.” § 61.075(6)(a)l.a., Fla. Stat. (2011). Florida Statutes further provide:

The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. § 61.075(7), Fla. Stat. (2011). A trial court’s allocation of an asset as marital or non-marital for purposes of equitable distribution is reviewed de novo. Puskar v. Puskar, 29 So.3d 1201, 1203 (Fla. 1st DCA 2010).

Here, there is no evidence that the parties executed a valid separation agreement, either orally or in writing. Therefore, the date the former wife filed her petition for dissolution of marriage, July 26, 2011, would be the cut-off date used to determine whether assets were marital or non-marital. Both parties testified that the former husband purchased the pull-behind camper the week that he moved out of the former marital residence, which was in early September 2010. Because the camper was unquestionably acquired by the former husband before the petition for dissolution was filed, it should have been classified as a marital asset subject to equitable distribution.

Accordingly, we REVERSE in part and REMAND to allow the trial court to either classify the camper as a marital asset and restructure the equitable distribution accordingly, or provide adequate factual findings to support the designation of the camper as a non-marital asset. We AFFIRM the Final Judgment in all other respects.

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


author: WOLF, J.

text:
    Rico Ricardo WHALEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D13-1570, 1D13-1571.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Samuel B. Steinberg and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
   WOLF, J.

We affirm the trial court’s revocation of probation in both cases. While we have some concern regarding the effectiveness of appellant’s counsel at the revocation hearing, we believe this issue would be more properly resolved through a motion filed pursuant to Florida Rule of Criminal Procedure 3.850.

LEWIS, C.J., and ROBERTS, J„ concur.


text:
    Raymond Joseph VONNOH, Former Husband, Appellant, v. Deborah Peacock VONNOH, Former Wife, Appellee.
    No. 1D13-2940.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2014.
    Gary Baker, and Matthew L. Rhodes, Callahan, for Appellant.
    Valerie C. Faltemier, Fernandina Beach, for Appellee.
   PER CURIAM.

This cause comes before us on the husband’s appeal from the final judgment entered by the trial court dissolving the marriage of the parties and establishing a parenting plan. We reverse and remand as to two issues raised by the husband as discussed below. We affirm the judgment in all other respects without comment.

First, the judgment below erred by requiring a specific annuity election related to the husband’s retirement income plan in the absence of record support. See, e.g., Steadman v. Steadman, 645 So.2d 581, 582 (Fla. 1st DCA 1994) (requiring the scheme of distribution devised by the trial court to be supported by competent substantial evidence). Specifically, the judgment required that the parties “shall cooperate to elect the 50% Joint and Survivor Annuity with the Wife named as beneficiary.” However, evidence does not exist in the record that provides a foundation for requiring this specific annuity election — neither confirming whether this option has been made available to the parties, nor specifying the terms under which it is available to them. For this reason, we reverse this aspect of the final judgment.

Second, the husband challenges and the wife concedes error as to the parenting plan’s provision for “Extra-curricular Activities.” The Plan states that “[t]he cost of extra-curricular activities shall be divided proportionally to the parties’ respective incomes.” But we can find no evidence supporting a division of extracurricular costs based on the parties’ respective incomes. Rather, the evidence adduced at the hearing supports a different, conflicting provision found in the final judgment stating that the parties will “equally share the cost” of current and future extra-curricular activities. Accordingly, we reverse and remand the parenting plan for revision consistent with the evidence and terms of the final judgment.

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

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Keith A. HALPERN, Former Counsel for Defendants Trifecta Services, Inc. and Nicholas George, Appellant, v. John R. GRIFFIN, III, Appellee.
    No. 1D13-5726.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2014.
    Keith A. Halpern, pro se, Appellant.
    Steven E. Sellers, and Christine E. La-mia, Tallahassee, for Appellee.
   PER CURIAM.

Appellee’s motion to dismiss, filed on December 23, 2013, is granted. The appeal is dismissed as untimely. See Coats v. Climatic Products Corp., 756 So.2d 1104 (Fla. 1st DCA 2000) (holding that a motion for rehearing filed by one party adversely affected by judgment did not delay rendition of judgment with respect to other adversely affected parties, making appeal by nonmoving parties untimely).

THOMAS, RAY, and SWANSON, JJ., concur.


text:
    Dennis COX, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1393.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2014.
    Rehearing Denied Jan. 11, 2014.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   On Remand from the Supreme Court

PER CURIAM.

The supreme court having quashed this court’s decision in Cox v. State, 127 So.3d 561 (Fla. 4th DCA 2012), we reverse appellant’s conviction on the ground that the jury instruction for attempted voluntary manslaughter was fundamentally erroneous under Williams v. State, 123 So.3d 23 (Fla.2013).

Reversed and remanded for a new trial.

DAMOORGIAN, C.J., TAYLOR and MAY, JJ., concur.


author: KNOLL, J.,

text:
    T.D. v. F.X.A.
    No. 2014-CJ-0189.
    Supreme Court of Louisiana.
    Feb. 6, 2014.
   KNOLL, J.,

concurring. I find this issue will be moot in a short period of time, and therefore I vote to deny.

HUGHES, J., recused.

KNOLL, J., concurring.

lil find this issue will be moot in a short period of time, and therefore I vote to deny.


text:
    Rhonda DANOS, et al. v. BOH BROS. CONSTRUCTION CO., LLC, et al.
    No. 13-CC-2605.
    Supreme Court of Louisiana.
    Feb. 7, 2014.
   PER CURIAM.

| Ronald Martin, an employee of Boh Bros. Construction Company, LLC (“Boh Bros.”), was severely injured while using a cutting saw during the course of his employment. The' accident occurred when Mr. Martin was directed to use a cutting saw to cut a pipe, which was laying flat on the ground without support. As Mr. Martin cut the pipe, the pipe caved inward at the cut, pinching the blades of the saw. The saw then kicked back and struck Mr. Martin in the head and neck.

Subsequently, plaintiffs filed the instant suit against Boh Bros. Plaintiffs alleged Boh Bros, committed an intentional tort by requiring Mr. Martin to cut the pipe in an unsafe manner.

Boh Bros, moved for summary judgment, alleging plaintiffs’ exclusive remedy was in workers’ compensation. The district court denied summary judgment, and the court of appeal denied supervisory writs. This application followed.

To recover in tort against Mr. Martin’s employer under La. R.S. 23:1032(B), plaintiffs must prove the employer (1) consciously desired the physical result of its act, whatever the likelihood of that result happening from its conduct, or (2) knew that the result is substantially certain to follow from its conduct, whatever its desire may be as to that result. Moreau v. Moreau’s Material Yard, 12-1096 (La.9/21/12), 98 So.3d 297. In Reeves v. Structural Preservation Systems, 98-1795 at pp. 9-10 (La.3/12/99), 731 So.2d 208, 213, we discussed the “substantial certainty” requirement as follows:

Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.
“ ‘Substantially certain to follow’ requires more than a reasonable probability that an injury will occur and ‘certain’ has been defined to mean ‘inevitable’ or ‘incapable of failing.’ ” Jasmin v. HNV Cent. Riverfront Corp., supra [642 So.2d 311] at 312 [La.App. 4 Cir.1994], “[A]n employer’s mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the ‘substantial certainty’ requirement.” Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.2d 1140, 1142 (La.App. 4 Cir.1993), writ denied, 629 So.2d 347 (La.1993). “Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.” Id. (citing Tapia v. Schwegmann Giant Supermarkets, Inc., 590 So.2d 806, 807-808 (La.App. 4 Cir.1991)).

In the instant case, Boh Bros, presented testimony from Mr. Martin’s co-workers on the day of the accident, indicating that no one, including Mr. Martin’s foreman, intended for Mr. Martin to be harmed in any way. Boh Bros, further presented evidence establishing that an accident of this nature has never occurred in Boh Bros.’ history of operation.

In opposition, plaintiffs submitted expert evidence indicating that Boh Bros, should have known that using the cutting saw in this manner would cause injury. Additionally, plaintiffs assert Mr. Martin’s foreman gave conflicting testimony as to whether he personally assigned the task to Mr. Martin, which created an issue of material fact. We do not find that any minor discrepancies in the foreman’s testimony creates a genuine issue of material fact on the critical issue of whether he intended to [3cause injury to Mr. Martin. To the contrary, the foreman’s affidavit establishes he did not believe Mr. Martin would be injured, as other Boh Brothers employees have used the cutting saw on previous occasions without incident or injury.

Moreover, even accepting plaintiffs’ contention that using the saw in this manner was likely to produce injury, we And they failed to establish that Mr. Martin’s accident was substantially likely to occur. As we explained in Reeves, the substantial certainty requirement has been held to require more than a mere probability of injury; rather, injury must be inevitable. The mere knowledge that a procedure is dangerous, and that its use creates a high probability that someone will eventually be injured, is not sufficient to meet the substantial certainty requirement.

Under the facts presented, we do not find Mr. Martin’s injury was inevitable. Rather, the evidence indicates there had been no similar accidents in the company’s history. In hindsight, Boh Bros, may have been negligent in directing employees to use unsafe cutting procedures, but its actions were not intentional. As we explained in Simoneaux v. Excel Group, LLC, 06-1050 at p. 3 (La.9/1/06), 936 So.2d 1246, 1248, the employer’s actions in providing poor working conditions “may have been negligent or even grossly negligent, but they were not intentional.”

Accordingly, the writ is granted. The judgment of the district court is reversed, and summary judgment is granted in favor of Boh Bros.

JOHNSON, C.J., would deny.

KNOLL, J., would deny.

      . Plaintiffs in this matter are Mr. Martin’s wife, on behalf of his minor children, and Mr. Martin’s sister, in her capacity as his curatrix.


text:
    In re Appeal of the Decision of the DISCIPLINARY BOARD NO. 13-PDB-108.
    No. 2013-OB-2886.
    Supreme Court of Louisiana.
    Feb. 7, 2014.
   IN RE: Jones, Lee Ester; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No 13-PDB-108;

Leave to appeal denied


text:
    STATE ex rel. Scott Lee BROWN v. STATE of Louisiana.
    No. 2013-KH-2531.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Brown, Scott Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. E, No. C-514444; to the Court of Appeal, First Circuit, No. 2013 KW 1410.

Denied.

WEIMER, J., recused.


text:
    Clarence BUTLER v. STATE of Louisiana, through the BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURE AND MECHANICAL COLLEGE, Health Care Services Division of the Louisiana State University Health Sciences Center-Shreveport and the Office of Risk Management.
    No. 2013-CC-2589.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Board of Supervisors of Louisiana State University and Agriculture and Mechanical College; Health Care Services Division of the Louisiana State University Health Science Center-Shreveport; Office of Risk Management; State of Louisiana et al.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 548,449; to the Court of Appeal, Second Circuit, No. 48865-CW.

Denied.

VICTORY, .GUIDRY and CLARK, JJ„ would grant.


text:
    Charles A. CIOLINO and Gertrude K. Ciolino v. FIRST GUARANTY BANK and Capital One, N.A. Estate of Joseph Perricone, Sr., et al. v. First Guaranty Bank and Capital One, N.A.
    No. 2013-C-2753.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Capital One N.A.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. A, Nos. 2010-0003104, 2010-0003465; to the Court of Appeal, First Circuit, Nos. 2012 CA 2079, 2012 CA 2080.

Denied.


text:
    Auta B. HIGHSMITH, et ux. v. Lynn Edward FORET, M.D.
    No. 2013-C-2756.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Auta B. Highsmith, et ux.; Hi-ghsmith, Eunice; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 20102721; to the Court of Appeal, Third Circuit, No. 13-441.

Denied.

HUGHES, J., would grant.


text:
    Jurnell SMITH v. Bobby GUIDROZ, et al.
    No. 2013-C-2757.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re City of Eunice; Rozas, Brian;— Defendant(s); Applying For Writ of Cer-tiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. C, No. 09-C-6656-C; to the Court of Appeal, Third Circuit, No. 12-1232.

Denied.

VICTORY, J., would grant.


text:
    QUANTUM RESOURCES MANAGEMENT, L.L.C. and Milagro Producing, L.L.C. v. PIRATE LAKE OIL CORP., et al.
    No. 2013-C-2759.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Jones, Allen Kent; — Other; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 686-816; to the Court of Appeal, Fifth Circuit, No. 13-CA-74.

Denied.


text:
    Charles A. CIOLINO and Gertrude K. Ciolino v. FIRST GUARANTY BANK and Capital One, N.A. Estate of Joseph Perricone, Sr., et al. v. First Guaranty Bank and Capital One, N.A.
    No. 2013-C-2765.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re First Guaranty Bank; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. A, No. 2010-0003104; 2010-0003465; to the Court of Appeal, First Circuit, No. 2012 CA 2079.

Denied.


text:
    Donald TUCKER, Diane Tucker and D & D Audio Video LLC v. Richard TONRY, II and Tonry, Brinson, and Glorioso LLC.
    No. 2013-CC-2766.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Richard Tonry, et al.; Tonry II, Richard; Tonry, Brinson, and Glorioso, LLC; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, Nos. 2009-03623, 2011-11237; to the Court of Appeal, Fourth Circuit, No. 2013-C-0951.

Denied.


text:
    SUCCESSION OF McKinley HOUSTON.
    No. 2013-CC-2779.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Houston, Michael; Houston, Steve; — Other(s); Applying For Supervisory and/or Remedial Writs, Parish of De-soto, 42nd Judicial District Court Div. A, No. 74746; to the Court of Appeal, Second Circuit, No. 48917-CW.

Denied.


text:
    Annette CLARK v. J-H-J INC. d/b/a Piggly Wiggly and Bunker Hill Underwriters Agency Inc.
    No. 2013-C-2780.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Clark, Annette; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 603,914; to the Court of Appeal, First Circuit, No. 2013 CA 0432.

Denied.

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


text:
    WEGMANN-DAZET & CO. v. PIERRE VILLERE, INC., et al.
    No. 2013-CC-2781.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Vilquest, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 2012-10798; to the Court of Appeal, First Circuit, No. 2013 CW 1169.

Denied.


text:
    Cruz Daniel GUEVARA v. BRAND ENERGY & INFRASTRUCTURE SERVICES, INC.
    No. 2013-C-2782.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Brand Services, L.L.C.; — Defendant; Applying For Writ of Certiorari and/or Review Office of Worker’s Compensation, District 7, No. 11-10622; to the Court of Appeal, Fifth Circuit, No. 13-CA-381.

Denied.


text:
    Angela JONES v. The STATE of Louisiana through the DEPARTMENT OF CORRECTIONS, Warden Johnnie Jones and Deacon Joseph Mamou.
    No. 2013-C-2783.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Jones, Angela; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. C, No. 63,662; to the Court of Appeal, First Circuit, No. 2013 CA 0482.

Denied.

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


text:
    LAW OFFICES OF FRED L. HERMAN, APLC, et al v. Belinda HELMER.
    No. 2013-C-2786.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Helmer, Belinda; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 698-690; to the Court of Appeal, Fifth Circuit, No. 12-CA-897.

Denied.


text:
    Benjamin SCOTT, Estate of Agnes Scott Bell, Estate of Ruby Scott Donald, Benjamin Scott Revocable Living Trust, Olivia Scott McMillan, Michel McMillan, Julia M. Carnes, and Leonard Scott Jr. v. Leroy CHUSTZ, Patricia Connell Chustz, and Point Coupee Parish Police Jury.
    No. 2013-C-2787.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Scott Benjamin, et al; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Pointe Coupee, 18th Judicial District Court Div. C, No. 40,587; to the Court of Appeal, First Circuit, No. 2013 CA 0610.

Denied.


text:
    Lucille GRAY, individually & o/b/o Hase Gray, III v. SAFECO INSURANCE COMPANY OF AMERICA, Geico General Insurance Company & Zachary Dean Talbot.
    No. 2013-C-2790.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Gray, Lucille; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 585,573; to the Court of Appeal, First Circuit, No. 2013 CA 0210.

Denied.

HUGHES, J., would grant.


text:
    Vincent E. JOHNSON v. MOTIVA ENTERPRISES, LLC, Anastasia Coleman, Mike Johnson and Corey E. Bazile.
    No. 2013-C-2791.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Johnson, Vincent E.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 59,856; to the Court of Appeal, Fifth Circuit, No. 13-CA-305.

Denied.


text:
    Reinier NESLO v. James L. FAHRENHOLTZ, Jr., and Civil District Court, Orleans Parish.
    No. 2013-CP-2792.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Neslo, Reinier; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. H, No. 2005-9390; to the Court of Appeal, Fourth Circuit.

Denied. Relator must first seek relief in the district court.


text:
    Clarence M. LELAND, et al. v. LAFAYETTE INSURANCE COMPANY.
    No. 2013-C-2814.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Lafayette Insurance Company;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 2007-5518; to the Court of Appeal, Third Circuit, No. 13-476.

Denied.


text:
    Thomas HARRISON v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Office of Probation and Parole.
    No. 2013-C-2816.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Harrison, Thomas; — Plaintiff; Applying For Writ of Certiorari and/or Review Louisiana Civil Service Commission, Nos. 17161, 17218; to the Court of Appeal, First Circuit, Nos. 2013 CA 0380, 2013 CA 0381.

Denied.


text:
    Kenneth DAVIS, Individually and as Natural Tutor of his Minor Child, N.A.D. v. SCOTTSDALE INSURANCE COMPANY; Ramelli Waste, LLC, and Knollie Jones. Barry Terrell, Indvidually and as Natural Tutor of his Minor Child, H.T. v. Scottsdale Insurance Company; Ramelli Waste, LLC, and Knollie Jones.
    No. 2013-C-2818.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re QBE Specialty Insurance Company; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. E, No. 70,176 C/W 70,992; to the Court of Appeal, Fifth Circuit, No. 13-CA-255 C/W 13-CA-256.

Denied.

VICTORY, J., would grant.


text:
    Lacy JOHNSON, Hattie Okoye as Tutrix of Keith Bosley and Lashae Bosley, and Rosie Watson as Tutrix of Larise Bosley v. Peter J. BOSTICK, M.D., Deborah Cavalier, M.D., David Boudreaux, M.D. Pathology Group of Louisiana, Woman’s Hospital Foundation, and ABC Insurance Company.
    No. 2013-C-2819.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Bosley, Lashae; Hattie Okoye as Tutrix of Keith Bosley; Johnson, Lacey; Rosie Watson as Tutrix of Larise Bos-ley; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 569,619; to the Court of Appeal, First Circuit, No. 2013 CA 0439.

Denied.

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


text:
    Nicholas WILLIAMS, et al. v. USAGENCIES CASUALTY INSURANCE COMPANY.
    No. 2013-CC-2824.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re USAgencies Casualty Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 73991; to the Court of Appeal, Third Circuit, No. CW13-00994.

Denied. Adequate remedy on appeal.

VICTORY and CLARK, JJ., would grant.


text:
    STATE of Louisiana v. Alfred RICHARD, III.
    No. 2013-KK-2826.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Richard, III, Alfred; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. D, No. 880-04; to the Court of Appeal, First Circuit, No. 2013 KW1607.

Denied.


text:
    Sherri ARCENEAUX, et al. v. Amanda ARCENEAUX, et al.
    No. 2013-C-2827.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re QBE Specialty Insurance Company; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. L, No. 20120982; to the Court of Appeal, Third Circuit, No. 13-511.

Denied.

VICTORY, J., would grant.


text:
    Terry CAMPBELL, Individually, and on Behalf of all those similarly situated Tax Payers v. BOARD OF COMMISSIONERS FOR the AMITE RIVER BASIN DRAINAGE AND WATER CONSERVATION DISTRICT; Asessor and Sheriff of East Baton Rouge Parish; Assessor and Sheriff of Ascension Parish; Assessor and Sheriff of Livingston Parish; the Louisiana Tax Commission; and the State of Louisiana.
    No. 2014-CC-0161.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Campbell, Terry et al.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 597,072; to the Court of Appeal, First Circuit, No. 2013 CW 1400.

Denied.

VICTORY, J., would grant.


text:
    In re SUCCESSION OF Mary Howard NESLO.
    No. 2014-CP-0186.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Neslo, Reinier; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 99-18173.

Denied. Relator must first seek relief in the district court.


text:
    Reinier NELSO v. James L. FAHRENHOLTZ, Jr., and Civil District Court, Orleans Parish.
    No. 2014-CP-0187.
    Supreme Court of Louisiana.
    Feb. 14, 2014.
   In re Nelso, Reinier; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. H, No. 2005-9350.

Denied. Relator must first seek, relief in the district court


author: AMY, Judge.

text:
    James Ricky BIAGAS v. ST. LANDRY PARISH SHERIFF OFFICE, et al.
    No. 13-642.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Harold D. Register, Jr., Lafayette, LA, for Plaintiff/Appellant, James Ricky Bia-gas.
    Chad Pitre, Opelousas, LA, David Clay Clarke, Galloway, Johnson, Tompkins, Burr & Smith, PLC, Lafayette, LA, for Defendants/Appellees, Bobby Guidroz, Sheriff of St. Landry Parish, Deputy Eric Reed.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

| ¡The plaintiff sought damages for mental and physical damages he allegedly suffered as the result of excessive force and offensive statements that he contends occurred during his arrest by St. Landry Parish Sheriffs Office deputies. After the plaintiff presented his case in chief at trial, the defendants moved for an involuntary dismissal. The trial court granted the motion. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, James Ricky Biagas, filed suit in this matter against the St. Landry Parish Sheriffs Office, St. Landry Parish Sheriff Bobby Guidroz, Deputy Eric Reed, and another unnamed deputy. Therein, Mr. Biagas alleges that he suffered “physical, mental anguish, and social anguish” as a result of “racist, sexist and vulgar remarks” made by the deputies during his arrest, as well as other actions by the deputies which Mr. Biagas felt were outrageous. Mr. Biagas also contends that the deputies used excessive force during his arrest.

At trial, after Mr. Biagas presented his case-in-chief, the defendants moved for involuntary dismissal. The trial court granted the motion and dismissed Mr. Biagas’ claims against the defendants.

Mr. Biagas appeals, asserting as error that:

I. Whether the trial court erred in excluding the plaintiffs medical records for treatment received from Dr. Brennan after October 2011?
II. Whether the trial court erred in granting the defendants’ motion for involuntary dismissal?

| ¡¿Discussion

Evidentiary Issues

Mr. Biagas’ first assignment of error addresses the trial court’s decision not to allow evidence of Mr. Biagas’ treatment with a clinical psychologist, Dr. Maureen Brennan, after October of 2011. According to the record, Dr. Brennan’s deposition was taken in November of 2011, and the defendants were provided with medical records at that time. However, Mr. Bia-gas apparently continued his treatment with Dr. Brennan, and records concerning his ongoing treatment were not provided to the defendants. Pointing, in part, to discovery requests provided to Mr. Biagas, the defendants objected to the introduction of any evidence concerning Mr. Biagas’ treatment after October of 2011. The trial court permitted Mr. Biagas to testify about his treatment, but otherwise excluded Dr. Brennan’s testimony and medical records concerning treatment after October of 2011, noting that the local rules and the scheduling conference requires that documents be exchanged at least 45 days before trial.

Evidentiary rulings renewable on appeal are subject to the provisions of La.Code Civ.P. art. 1636, which permits a party to preserve evidence which was ruled inadmissible in the trial court. Archangel v. Mayeux, 12-696 (La.App. 5 Cir. 5/30/13), 119 So.3d 786. If the complaining party fails to proffer the excluded evidence, the appellate court cannot review it and determine its admissibility. Williams v. Lafayette City-Parish Consol. Gov’t, 11-281 (La.App. 3 Cir. 10/5/11), 72 So.3d 1023, writ denied, 11-2473 (La.2/3/12), 79 So.3d 1027. Therefore, that party is precluded from arguing on appeal that the exclusion was erroneous. Id.

|sOur review of the record reveals that Mr. Biagas proffered neither Dr. Brennan’s testimony concerning his treatment after October of 2011, nor his medical records. Thus, Mr. Biagas is precluded from asserting that the exclusion was erroneous.

Involuntary Dismissal

Mr. Biagas also contends that the trial court erred in granting the defendants’ motion for involuntary dismissal.

Louisiana Code of Civil Procedure Article 1672(B) addresses the motion for involuntary dismissal in bench trials, stating:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and the law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render judgment until the close of all the evidence.

Thus, the trial court must consider the evidence presented by the plaintiff and, if the trial court determines that that evidence is insufficient to establish the plaintiffs case by a preponderance of the evidence, dismissal is appropriate. Vintage Wings & Things, LLC v. Toce & Daiy, LLC, 04-706 (La.App. 3 Cir. 11/10/04), 886 So.2d 652. The appellate court reviews the trial court’s grant of a motion for involuntary dismissal under the manifest error standard of review. Id.

In White v. Monsanto Co., 585 So.2d 1205, 1209-10 (La.1991) (citations omitted), the supreme court found that a cause of action for intentional infliction of emotional distress existed in Louisiana, stating that:

[I]n order to recover for intentional infliction of emotional distress, a plaintiff must establish (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe ^emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.
The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Persons must necessarily be expected to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. Not every verbal encounter may be converted into a tort; on the contrary, “some safety valve must be left through which irascible tempers may blow off relatively harmless steam.”
The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests ....
The distress suffered must be such that no reasonable person could be expected to endure it. Liability arises only where the mental suffering or anguish is extreme.
The defendant’s knowledge that plaintiff is particularly susceptible to emotional distress is a factor to be considered. But the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough. It follows that unless the actor has knowledge of the other’s particular susceptibility to emotional distress, the actor’s conduct should be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.
Liability can arise only where the actor desires to inflict severe emotional distress or where he knows that such distress is certain or substantially certain to result from his conduct. The conduct must be intended or calculated to cause severe emotional distress and not just some lesser degree of fright, humiliation, embarrassment, worry, or the like.

In addition to his own testimony, Mr. Biagas presented the testimony of Deputy (now Sergeant) Reed, Lisa Arceneaux, Dr. Brennan, and Sheriff Guidroz. Both Mr. Biagas and Ms. Arceneaux testified about events leading up to Mr. Biagas’ arrest and his response thereto. According to Mr. Biagas’ and MsJ^Arceneaux’s testimony, there was an incident between Mr. Biagas and his brother-in-law involving the brother-in-law shooting at Mr. Biagas’ mother’s dog. The record indicates that the altercation culminated in Mr. Biagas and the brother-in-law confronting each other in front of Mr. Biagas’ mother’s house. Although it is not clear from the testimony whether any weapons were pointed at anyone else, Mr. Biagas testified that both Mr. Biagas and the brother-in-law had firearms at some point during the confrontation.

Thereafter, the police were called. The record indicates that Sergeant Reed and Deputy Ryan Fenton responded. The conduct of the officers during this interaction is in dispute. Mr. Biagas and Ms. Arceneaux testified that the officers refused to listen to Mr. Biagas’ version of events and refused to take Ms. Arcen-eaux’s statement. Additionally, Mr. Bia-gas and Ms. Arceneaux testified that the officers repeatedly made crude, sexist, and racist remarks to Mr. Biagas, including offensive questions about his relationship with Ms. Arceneaux. Further, they testified that the officers followed Mr. Biagas into the house, and into his bedroom, without permission. Mr. Biagas also testified that, after his arrest, the officers left him in a police car for over an hour and, at the police station, shackled him so tightly to a bench that his left foot went numb.

However, Sergeant Reed testified that he responded to a complaint that Mr. Bia-gas had pulled a gun on the complainant. Sergeant Reed thought that the complainant was Mr. Biagas’ brother-in-law. According to Sergeant Reed, his investigation was limited to whether Mr. Biagas had pulled a gun on his brother-in-law. He denied questioning Mr. Biagas about who he was dating. Sergeant Reed also denied making any racial, sexist, or vulgar comments to Mr. Biagas. He also denied mocking Mr. Biagas in Ms. Arceneaux’s presence.

|fiBoth Mr. Biagas and Ms. Arceneaux testified that they complained about the officers’ behavior to Sheriff Guidroz but that they were never contacted about their complaint and, when they contacted the Sheriffs office to follow up, were told that no disciplinary action would be taken against the officers. Sheriff Guidroz also testified. According to Sheriff Guidroz, racist comments are not permitted or condoned, and he would find any such comments unprofessional. Sheriff Guidroz testified that he did not recall either Mr. Biagas or Ms. Arceneaux coming in to talk to him about his officers’ behavior. Further, Sheriff Guidroz testified that he had attempted to find documentation of a complaint by either Mr. Biagas or Ms. Arcen-eaux and had been unable to find any. He stated that, if he had received a complaint, he would have documented it and handed it over to the chief deputy for investigation. However, Sheriff Guidroz did concede that he occasionally spoke with citizens on his cell phone and that there was no procedure for keeping track of those calls.

Mr. Biagas, Ms. Arceneaux, and Dr. Brennan testified about the effects of these incidents on Mr. Biagas. There was testimony that, since the incidents, Mr. Biagas has had trouble sleeping, had nightmares, has become somewhat withdrawn, and that his temper is shorter. Mr. Biagas testified that he did not have problems sleeping or with nightmares before the incident. He also testified that his attitude towards police officers had changed. According to his testimony, Mr. Biagas used to look up to police officers, but is now cautious around then and thinks that they are “very, very corrupt!.]” Mr. Biagas described police officers as the “first line of soldiers in our country to uphold the Constitution” and stated that he had previously put them in high regard. Mr. Biagas wanted to see the officers punished so that they would know unprofessional behavior is unacceptable.

|7Pr. Brennan, a clinical psychologist, was accepted as an expert. She testified that she had been treating Mr. Biagas and that they had worked on reducing his anxiety, nightmares, and associated headaches. She also reported that Mr. Biagas was anxious about how his arrest might affect custody of his young son. Dr. Brennan testified that she saw Mr. Biagas three times between December of 2009 and January of 2010, and again in March of 2011. According to Dr. Brennan, Mr. Biagas had an adjustment reaction after the incident. She testified some of the basic tenets that ordered Mr. Biagas’ universe — namely, that there are good guys and bad guys and that you can count on the good guys — had been undermined. Dr. Brennan opined that Mr. Biagas had an overly naive view of right and wrong and “an unrealistically high belief and expectation to start with” and that he put law enforcement on a pedestal. Further, Dr. Brennan reported that Mr. Biagas had experienced a lessening of his symptoms, although seeing incidents on television and in the news could trigger problems.

The record indicates that Mr. Bia-gas stipulated that he had no physical injuries. Further, finding that being shackled for an hour did not constitute excessive force, the trial court found that Mr. Biagas did not prove his excessive force claim. We find no error in the trial court’s conclusion in this regard.

|RWith regard to Mr. Biagas’ intentional infliction of emotional distress claim, the trial court found that the only acts taken by the defendants that might be actionable were the unprofessional and vulgar remarks allegedly made by the officers. The trial court found that all of the other actions taken by the defendants were within their authority. The trial court found that, even assuming the officers made the crude and offensive remarks, that there was no evidence presented that the officers knew that Mr. Biagas was particularly susceptible to emotional distress. Further, the trial court concluded that Mr. Biagas’ reaction was not that of a person of ordinary sensibilities. Specifically, the trial court stated that:

That leaves the third issue and that is whether or not the actor knew or should have known of the certainty or substantial result to follow or he desired to inflict the severe emotional distress. The court went on in [White, 585 So.2d 1205] to state unless the actor has knowledge of the other’s particular susceptibility to emotional distress, the actor’s conduct should be judged in the light of the affect such conduct would ordinarily have on a person of ordinary sensibilities and I think Dr. Brennan, the expert called by the plaintiff, answered that question for us. Basically what Dr. Brennan testified is that Mr. Biagas had an unreasonable expectation. He held all police officers on a pedestal and he did not see black and white. It was either concrete or it was not concrete and that basically his reactions to what happened in this matter [sic]. Taking her testimony [as] a whole, the Court finds that Mr. Biagas’ reactions to what was said to him was not — and what followed and the damages was not a reasonable response by Mr. Biagas and it was not conduct that would ordinarily have on a person of ordinary responsibilities [sic]. Furthermore, there was no evidence that has been shown, in this case that Officer Reed knew or had any reason to intentionally inflict emotional distress or knew that it could cause Mr. Biagas the emotional distress which he has, in his perception, has suffered as a result of this matter.

In order to succeed on his intentional infliction of emotional distress claim, the plaintiff had to establish three elements: that the defendants’ conduct was extreme and outrageous; that his emotional distress was severe; and that “the defendants] desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from [their] IflConduet.” White, 585 So.2d at 1209. The trial court concluded that Mr. Biagas failed to prove the third element of his intentional infliction of emotional distress claim, and our review of the record does not reveal manifest error in that conclusion. See Webb v. Theriot, 97-624 (La.App. 3 Cir. 10/29/97), 704 So.2d 1211.

In White, 585 So.2d at 1210, the supreme court stated that “unless the actor has knowledge of the other’s particular susceptibility to emotional distress, the actor’s conduct should be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.” The evidence supports a finding that Mr. Biagas’s perception was that the defendants engaged in the alleged conduct, and that he had an adjustment reaction as a result. However, the record supports the trial court’s conclusion that Mr. Biagas’ reaction was not that of a person of ordinary sensibilities. Specifically, Dr. Brennan indicated that Mr. Biagas had an overly naive view of right and wrong and that his problems occurred when that view was challenged. Further, Mr. Biagas presented no evidence that the defendants knew that he was particularly susceptible to emotional distress or that they “desire[ed] to inflict severe emotional distress” or that they knew “that such distress is certain or substantially certain to result from [their] conduct.” Id. at 1210. Accordingly, the record supports the trial court’s conclusion that the evidence was insufficient to prove Mr. Biagas’ case by a preponderance of the evidence. See Vintage Wings & Things, 886 So.2d 652. Thus, we find no manifest error in the trial court’s grant of the motion for involuntary dismissal.

The plaintiffs assignment of error with regard to the motion for involuntary dismissal is without merit.

| inDECREE

For the foregoing reasons, we affirm in all respects the trial court’s judgment granting the motion for involuntary dismissal made by the defendants, St. Landry Parish Sheriff Bobby Guidroz and Deputy Eric Reed. Costs of this appeal are assessed to the plaintiff, James Ricky Bia-gas.

AFFIRMED.

      . The trial court's judgment dated April 29, 2013, only granted judgment as to Sheriff Guidroz and Deputy Reed.

      . According to the record, after a bench trial, Mr. Biagas was found not guilty of the underlying charges.

      . Pursuant to La.Code Civ.P. art. 1636(A), "[w]hen the court rules against the admissibility of any evidence, it shall permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.”

      . In Kyle v. City of New Orleans, 353 So.2d 969, 972-73 (La.1977) (citations omitted), the supreme court addressed the determination of excessive force cases, stating:
      The use of force when necessary to make an arrest is a legitimate police function. But if the officers use unreasonable or excessive force, they and their employer are liable for any injuries which result.
      Whether the force used is reasonable depends upon the totality of the facts and circumstances in each case. A court must evaluate the officers’ actions against those of ordinary, prudent, and reasonable men placed in the same position as the officers and with the same knowledge as the officers. As such, the trial court's finding is entitled to great weight.


author: EZELL, Judge.

text:
    Christy ROGEL v. DOLLAR GENERAL CORP.
    No. WCA 13-792.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Marcus Miller Zimmerman, Lake Charles, LA, for Plaintiff/Appellee, Christy Rogel.
    Michael Meunier, Sullivan, Stolier, Ko-vata, New Orleans, LA, for Defendant/Appellant, Dollar General Corp. (Dolgencorp, LLC).
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   EZELL, Judge.

| ,In this workers’ compensation case, Dollar General appeals the decision of the workers’ compensation judge (WCJ) below awarding Christy Rogel supplemental earning benefits (SEB), medical expenses, a second medical opinion, as well as penalties and attorney fees. For the following reasons, we hereby affirm the decision of the WCJ in part, reverse in part, and render judgment.

Ms. Rogel was the store manager at Dollar General in Starks, Louisiana. On June 17, 2010, she was moving a rolltainer loaded with 600 pounds of charcoal to the store’s sidewalk when the rolltainer tipped, pinning her. As a result, her ankle suffered a chip avulsion. She continued to work until July 6, 2010, when her ankle was surgically repaired by Dr. Geoffrey Collins. She was placed on total disability benefits from this date until she returned to work on September 2, 2010. Ms. Rogel returned to work on light-duty status; however, because she was often alone at the store, she continued to perform duties that required her to labor beyond the light-duty work she was restricted to.

In December 2010, Ms. Rogel again presented to Dr. Collins with complaints that her ankle pain was getting worse and affecting her work. Eventually, a functional capacity evaluation was ordered which found swelling, tenderness, decreased mobility, and an abnormal gait and standing mechanics. The functional capacity evaluation and Dr. Collins recommended limitations on standing and walking. Dr. Collins ultimately decided that a second surgery was needed to remove hardware placed on the ankle during Ms. Rogel’s first surgery. This surgery was delayed when Ms. Rogel suffered chest pains during her pre-sur-gery physical and she was taken via ambulance to the hospital. She was cleared, but could not be anesthetized until a complete cardiac work-up was performed. | ¾While Dollar General sought to authorize this work-up, an error by Dr. Collins’ office delayed this for several months. Ms. Ro-gel eventually resigned her position in April 2011. After that, the second surgery was performed.

Ms. Rogel filed the current workers’ compensation action seeking SEB, medical expenses, and penalties and attorney fees. The WCJ awarded her SEB, medical expenses related to her hospitalization for chest pain, and penalties and attorney fees for Dollar General’s failure to timely pay those claims. The WCJ also rejected Dollar General’s allegations that Ms. Rogel committed fraud under La.R.S. 23:1208 and approved a second medical opinion for her continuing ankle pain. From that decision, Dollar General appeals.

Dollar General asserts six assignments of error on appeal. It claims:

1. The [WCJ] clearly erred in awarding SEBs;
2. The [WCJ] clearly erred in authorizing a second choice of orthopedic surgeon;
3. The [WCJ] clearly erred in ordering defendant to pay medical bills which were not related to the work accident;
4. The [WCJ] clearly erred in finding that defendant did not timely approve the cardiac clearance, when the uniform evidence shows that in fact the employer did just that and;
5. The [WCJ] clearly erred in refusing to apply La. R.S. 23:1208 forfeiture in the face of numerous deliberate misrepresentations made by the plaintiff in order to obtain workers’ compensation benefits; and
6. The [WCJ] clearly erred in awarding penalties and attorney’s fees and in finding that defendant did not reasonably controvert the plaintiffs claims.

In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court stated:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir. 6/27/03), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105.

Supplemental Earnings Benefits

Dollar General first claims that the WCJ erred in awarding Ms. Rogel SEB after she was able to return to part-time work.

“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 28:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin Williams Co., 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee’s community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.

Poissenot v. St. Bernard Parish Sheriffs Office, 092793, pp. 4-5 (La.1/9/11), 56 So.3d 170, 174 (alterations in original)(footnote omitted). “In determining whether a [workers’ compensation judge’s] finding that an employee has met his initial Lburden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-688, p. 8 (La.12/2/97), 704 So.2d 1161, 1166

Ms. Rogel clearly suffered a workplace accident when the rolltainer fell on her ankle. Dollar General does not dispute that. It is further clear that she is limited to light to medium-duty work with limited time on her feet, prolonged stooping, and in the amount of weight she is to lift. This is supported by both her testimony and Dr. Collins’ medical records. Ms. Rogel testified that she cannot work because of her continued ankle pain. This testimony is uncontroverted by Dollar General. Additionally, the WCJ stated that he found Ms. Rogel to be very credible and praised her work ethic and history of continuing work through pain. This is bolstered by her uncontested testimony that, while between surgeries, she performed duties at a level higher than those she was limited to by her doctor because that work needed to be done and Dollar General would not hire additional help. Based on the WCJ’s evaluation of MS. Rogel’s credibility and the record before this court, there is reasonable basis for the workers’ compensation judge’s award of SEB. What is more, Dollar General has failed to prove that Ms. Rogel is “physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee’s community or reasonable geographic location.” Poissenot, 56 So.3d at 174. Accordingly, this assignment of error is without merit.

Second Choice of Physician

In its second assignment of error, Dollar General claims that the WCJ erred in authorizing Ms. Rogel a second medical opinion regarding her ankle. Louisiana 15Revised Statutes 23:1121(B) provides that an employee has a right to select one treating physician in any field or specialty. However, Scott v. Piccadilly Cafeteria, 97-1584 (La.App. 3 Cir. 4/1/98), 708 So.2d 1296, recognized that while La.R.S. 23:1121(B) requires that an employee obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty, an employer may be bound to provide additional expenses from another physician in the same field or specialty as long as the treatment is both reasonable and necessary to alleviate the employee’s symptoms.

Here, the WCJ obviously credited Ms. Rogel’s assertion that she continues to experience pain in her ankle, and the WCJ found that the sought-after care might relieve those painful symptoms. While Ms. Rogel’s treating physician, Dr. Collins, was of the opinion that he could do nothing else for Ms. Rogel, his records indicate that she still presented with pain and swelling at her last visit with him. Moreover, Dr. Collins felt that a second opinion was not unreasonable. Thus, the evidence reasonably supports a finding of necessity. Therefore, the WCJ’s finding cannot be clearly wrong.

Unrelated Medical Expenses

Dollar General next claims the WCJ erred in awarding Ms. Rogel expenses related to hospital visits on March 22 and 28, 2011, arising from incidents of chest pain suffered by Ms. Rogel. We agree.

The record reflects that on March 22, 2011, Ms. Rogel was having tests performed as part of a pre-surgery check-up as ordered by Dr. Collins. These included a chest x-ray, blood work, and an EKG. During the EKG, Ms. Rogel began to experience chest pain. The doctor present at the time became concerned enough that an ambulance was called and she was sent to Lake Charles Memorial |fiHospital (LCMH) for diagnosis and treatment for that chest pain. The records from LCMH show that her chief complaint was chest pain which was deep, intensified by moving, and relieved by nothing. The records show that Ms. Rogel had suffered this pain for two months with increasing frequency. She was diagnosed with non-cardiac chest pain.

The record is clear that some of the expenses incurred on March 22, 2011, are related to her workers’ compensation claim. The chest x-ray, EKG, and blood-work ordered by Dr. Collins were part of clearing Ms. Rogel for her second surgery. Thus, the charges related to that were correctly awarded by the WCJ. Those include $30.00 to Radiology Associates of SWLA, $218.00 to The Clinic, and $95.00 for charges from the Medical Laboratory.

However, the record is also clear that when Ms. Rogel began to experience chest pain during the EKG, she was sent via ambulance to LCMH for treatment of that potentially life threatening condition. There is nothing in the records from LCMH that indicates any pre-surgical cardiac work-up was performed, but rather, that she was simply treated for her chest pain and discharged. While the work-up itself would be related, since it was required to allow Ms. Rogel to have her second surgery on her injured ankle, her chest pain and treatment thereof had nothing to do with the accident at Dollar General whatsoever. Accordingly, the WCJ committed manifest error when he ordered Dollar General to pay for medical expenses not related to Ms. Rogel’s work-place injury. We hereby reverse the awards of $1,228.59 to Acadian Ambulance, and $2,268.00 and $1,146.15 to LCMH.

Dollar General also challenges the WCJ’s finding that it is responsible for charges stemming from Ms. Rogel’s visit to Moss Regional Hospital on March 28, 2011. Again, we agree.

17Even accepting as true Ms. Ro-gel’s unlikely assertion that she went to Moss Regional partially to have the cardiac work-up performed and partially due to ongoing chest pain, she testified that no such work up was done at that time. This is also shown by the medical records from Moss Regional. Rather, she testified that the doctor at Moss Regional sent her to Lafayette “to have a complete work up” after the EKG performed there to help in treating her chest pain was normal. Moreover, she stated that she never told anyone at Moss Regional to send Dollar General any of the records from that day, which Dollar General would have needed had the work-up actually been performed. What the medical records from Moss Regional do show is that Ms. Rogel complained of “constant chest pain” which had been ongoing for two days. No work-up is ever mentioned in the records. She was simply treated for anxiety related chest pains, something which has nothing to do with her work-place accident. Accordingly, Dollar General is not responsible for the $610.34 in charges arising from her visit to the hospital there. The WCJ was clearly wrong in his finding that the visit was related to her injury and that finding is hereby reversed.

Timely Approval

Dollar General’s next assignment of error claims that the WCJ erred in finding it failed to timely approve the cardiac workup required to clear Ms. Rogel for her second surgery. However, while the WCJ did discuss this in his reasons for judgment, the judgment itself makes no mention of or award for anything in connection with that issue. Accordingly, we need not address that assignment of error.

| JPraud

As its fifth assignment of error, Dollar General claims that the WCJ erred in failing to find that Ms. Rogel committed fraud under La.R.S. 23:1208. An employer claiming that an employee has forfeited his or her rights under La. R.S. 23:1208 must prove “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, 94-3138, p. 7 (La.9/5/95), 660 So.2d 7, 12. The supreme court further explained:

[T]he statute does not require the forfeiture of benefits for any false statement, but rather only false statements that are willfully made for the purpose of obtaining benefits. It is evident that the relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits.... Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits.

Id. at 16, 660 So.2d 7.

A WCJ’s determination as to whether a claimant has made a false statement, willfully, for the purpose of obtaining workers’ compensation benefits is a finding of fact, and is, therefore, subject to the manifest error standard of review. Jim Walter Homes, Inc. v. Guilbeau, 05-1473 (La.App. 3 Cir. 6/21/06), 934 So.2d 239. Further,

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact-finder’s finding is based on its decision to credit the testimony of |9one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted).

Here, the record is devoid of any evidence of false statements by Ms. Rogel willfully made for the purpose of obtaining benefits. To the contrary, the WCJ explicitly found Ms. Rogel to be a credible witness, stating that “[a] fair reading of the evidence suggests that at no point did she deliberately misrepresent her previous medical history or exaggerate her injuries from the accident.” Moreover, as noted above, the WCJ was extremely complimentary of Ms. Rogel’s work history and work ethic and felt that Dollar General allegations of fraud were “creative but scarcely credible.” There is nothing in the record which shows this determination to be clearly wrong.

Penalties and Attorney Fees

Finally, Dollar General claims that the WCJ erred in granting Ms. Rogel penalties and attorney fees for its failure to timely pay benefits and expenses. The Louisiana Supreme Court discussed the meaning of “reasonably controverting a claim” in Brown v. Texas-LA Cartage, Inc., 981063, p. 9 (La.12/1/98), 721 So.2d 885, 890, as follows:

In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

The determination of whether an employer should be cast with penalties and attorney fees in a workers’ compensation case is essentially a question of fact and subject to the manifest error/clearly wrong standard of review. Reed v. Abshire, 05-744 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224.

The record before this court does not show that the WCJ erred in granting Ms. Rogel $2,000.00 in penalties for Dollar General’s failure to pay SEB. Her medical records showed a consistent history of problems, including pain and swelling after even the second surgery. Ms. Rogel remains restricted to light to medium-duty work, despite her prior attempts to work under the harsher duties of her job with Dollar General. Ms. Rogel’s testimony concerning her injuries is supported by her medical records and her testimony that Dollar General failed to accommodate her restricted duties is uncontroverted. We can find nothing in the record which shows the WCJ erred in granting this penalty.

Likewise, even though Dollar General would have reasonably controverted the claims for the LCMH, Moss Regional, and Acadian Ambulance expenses reversed above, because it failed to give any reason at all for the failure to pay the medical expenses from March 22, 2011, ordered by Dr. Collins and directly related to her second surgery, we cannot say that the WCJ erred in awarding the $2,000.00 penalty for those smaller, completely related charges. As there is no evidence the WCJ’s awards of penalties and attorney fees were manifestly erroneous, this assignment of error is without merit.

Ms. Rogel has answered this appeal seeking additional fees for work done on appeal. Considering our decision affirming the majority of the judgment, Ms. Rogel is entitled to additional attorney fees for work done on appeal, and same will be awarded.

INDISPOSITION

For the above reasons, the ruling of the WCJ is hereby affirmed in part and reversed in part. The portions of the judgment awarding Ms. Rogel awards of $1,228.59 to Acadian Ambulance, $2,268.00 and $1,146.15 to LCMH, and $610.34 to Moss Regional hospital are reversed. The judgment is affirmed in all other respects. Ms. Rogel is awarded additional attorney fees of $2,000.00 for work performed on this appeal.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.