text:
    CELEBRITY CRUISES, INC., Appellant, v. Vicente J. FERNANDES, Appellee.
    Nos. 3D14-85, 3D13-2612.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2014.

      Holland & Knight, Rodolfo Sorondo, Jr. and Christopher Bellows, Miami, for appellant.
    Meister Law and Tonya J. Meister; Col-son Hicks Eidson Colson Matthews Martinez Gonzalez Kalbac & Kane, Maureen E. Lefebvre. and Ervin A. Gonzalez, Coral Gables, for appellee.
    Before WELLS, EMAS and LOGUE, JJ.
   WELLS, Judge.

Celebrity Cruises, Inc., the defendant in this negligence action brought by an injured seaman, appeals from a defáult final judgment entered after its pleadings were stricken as a discovery sanction. Because the sanction order was entered without prior notice or opportunity to be heard, we reverse the judgment predicated on it and remand for further proceedings consistent with this opinion.

This action was filed on July 6, 2011, by Vicente J. Fernandes a seaman allegedly injured during a fight with another crew-member while aboard a Celebrity cruise ship. Early on and in response to interrogatories propounded with the initial complaint, Celebrity disclosed that the altercation had been witnessed by a number of crewmembers.

On October 14, only three months after this action was filed, Fernandes’s counsel notified the court and. opposing counsel that she would be unavailable for approximately 10 weeks, or through December 30, 2011, due to a planned leave. Despite the fact that counsel was unavailable to move this case forward and that no depositions had been taken or discovery conducted, on December 5, Fernandes’s counsel notified the court that this case was at issue and ready for trial. Two days later, on December 7, 2011, an order was issued setting this matter for trial for the one-week trial period commencing March 19, 2012. That order, among other- things, required the parties (1) within 60 days of Monday of the week of March 19 — that is, by January 19 — to exchange the names and addresses of all expert witnesses and to complete all medical evaluations and examinations; (2) within 45 days of Monday of the week of March 19 — that is, by February 4 — to exchange written witness and exhibit lists and to make all exhibits available to opposing counsel for copying and examination; and, (3) within 15 days of Monday of the week of March 19 — that is, by March 4 — to have completed all discovery and pre-trial motions and to have attended mediation.

Needless to say, none of this was going to nor actually did happen.

On December 28, Celebrity propounded its first set of interrogatories and request for production on Fernandes. On January 17, 2012, Celebrity filed an unopposed motion to continue the trial representing that Fernandes had not yet been deposed nor had he undergone a compulsory medical examination. Celebrity also advised the court below that virtually no discovery had taken place and that the action was “not ready to be tried.” Shortly thereafter, Fernandes requested an extension of time to respond to Celebrity’s discovery requests. The trial was continued to September 2012.

On February 22, 2012, counsel for Fer-nandes notified the court and opposing counsel that she would be unavailable to advance this litigation for one week at the end of March and for another week at the end of June 2012. On May 18, Celebrity filed its privilege log. It simultaneously noticed the filing of its responses to Fer-nandes’s request for production, request for admissions, and interrogatories.

On June 7, Fernandes moved to compel Celebrity to provide dates for the depositions of the crewmember who allegedly assaulted Fernandes and the crewmem-bers who investigated the incident; Fer-nandes also sought to compel a date on which he might inspect the vessel on which the fight occurred. An agreed order on this motion was entered requiring Celebrity within 7 days to provide Fernandes with dates for the requested depositions which were to take place within 60 days. That same day, July 11, 2012, the trial was continued again, this time to the three week trial period beginning February 4, 2013. Less than a week later, Fernandes’s counsel notified the court that she already had a trial set for that week and would be unavailable for trial of this matter at that time.

On August 20, 2012, Celebrity notified Fernandes’s counsel that the vessel on which Fernandes allegedly was injured had been on “the west coast consistently throughout the year,” but that it would be in Ft. Lauderdale on December 19, 2012 and January 18, 2013 and could be inspected locally on those days. Fernandes’s counsel advised Celebrity that she would inspect the vessel on December 19 in Ft. Lauderdale.

Two days later, Celebrity notified Fer-nandes’s counsel that its corporate representative would be available for deposition on either November 13 or 15, 2012. While Fernandes was willing to take this deposition at the beginning of October, she refused to wait until mid-November and moved to compel not only a more timely date for the deposition of Celebrity’s corporate representative but also compliance with the July 11 order to provide dates for the depositions of the crewmember who allegedly injured Fernandes and the crew-members who investigated the incident in which he was injured. The motion to compel a more timely date for the corporate representative’s deposition was, in effect, denied, with the deposition being ordered for November 15, one of the dates proposed by Celebrity. With regard to the other depositions, Celebrity was ordered to provide a date for the deposition of investigator Ira Warder and shipboard investigator or investigators within 7 days.

That same day, September 27, 2012, Celebrity moved to compel Fernandes, a resident of India, to appear in Miami for his deposition and a compulsory medical examination. Shortly thereafter, Fernandes moved to . compel the depositions of 11 crewmembers who allegedly had knowledge of the incident in which Fernandes claimed he was injured. On September 27, Fernandes was ordered to appear within 45 days to be deposed and examined and to appear in Miami for trial. In a separate order dated October 18, 2012, Celebrity was ordered to provide, within 30 days, the “schedule, ship assignment and deposition availability [for the crew-members who had been identified by Celebrity as witnessing the fight],” along with their contact information. Celebrity also was ordered to provide, within 30 days, contact information for those crewmem-bers no longer employed by it. Finally the court ordered Fernandes’s deposition to be taken first before the deposition of any of these crewmembers.

On October 29, Celebrity advised Fer-nandes’s counsel that one of the ship’s investigators, Anton Kogan, was currently aboard a Celebrity ship in Europe but that the ship would be in port in Miami in December and that Celebrity was “aiming for Dec 3 in Miami” for his deposition, if not in person then via telephone. In response, Fernandes’s counsel agreed to take Kogan’s deposition on December 3, if she were available and if not during the second week in December. Counsel for Fernandes further advised that she would be taking Ira Warder’s deposition on November 28. Upon receipt of this informar tion, Celebrity advised that December 3 was not an option for Kogan but agreed to Fernandes’s counsel’s suggestion of the following week and offered either December 7, 8, or 10, for Kogan’s deposition. But because Celebrity’s counsel was set for trial during the week of December 7, Celebrity notified Fernandes’s counsel that it was not available for depositions during that week after all. Celebrity also inquired about Fernandes’s availability for deposition which was to take place before that of any crewmember and by mid-November. While stating that she was “happy to work with [counsel for Celebrity] on the dates for the deposition of Anton Ko-gan, the ship board investigator, to accommodate [his] trial,” Fernandes’s counsel advised that if a date for this deposition was not provided within a week, she would “seek court intervention.” As for Fer-nandes’s availability, she further advised Celebrity that she would “let [it] know.”

When Celebrity was not able to provide deposition dates to counsel for Fernandes as demanded, Fernandes filed a motion to sanction Celebrity for its failures to comply with the July 11 and September 27 court orders to provide dates for crew-member and investigator depositions. This motion was never heard because the parties jointly moved on December 17 to continue the scheduled trial. In that joint motion, the parties represented that it would be best if the trial were continued (1) because only the deposition of investigator, Ira Warder, had been taken; (2) because the deposition of Celebrity’s corporate representative had commenced but had not yet been completed because of scheduling conflicts ; (3) because the parties were working with each other to schedule a deposition of the ship’s other investigator, Anton Kogan, which had not been taken because he “recently [had] been off contract and unavailable”; and (4) because Fernandes — who was to be deposed before the crewmembers — “ha[d] encountered difficulty securing a travel visa, frustrating efforts to coordinate his deposition.” The trial was reset for the three week trial period commencing May 6, 2013.

In February 2013, Fernandes moved to compel better answers to Celebrity’s interrogatories and to compel the deposition of Tony Faso, the individual identified by Celebrity as having decided Fernandes’s entitlement to maintenance and cure. Celebrity agreed to an order providing for better answers to some of its interrogatories. In a separate order dated February 20, 2013, Tony Faso was ordered to appear for deposition within 30 days with Fernandes to be deposed “via skype or videoconferencing following Faso’s deposition.” Celebrity was not, however, obligated to take Fernandes’s deposition within 30 days if it decided to go to India to depose him.

Two weeks later, on March 7, 2013, Fer-nandes filed a motion to compel compliance with the court’s earlier October 18, 2012 order. While the motion claimed that Celebrity had failed to provide information regarding five of the eleven crewmembers who allegedly had witnessed the incident in which Fernandes was injured, the purpose of the motion was to secure relief from the September 27, 2012 order that required Fernandes to be deposed before any crewmembers:

4. Although the Court ordered the [crewmember] depositions to be set following the Plaintiffs deposition, the Court entered an Order on February 20, 2013 requiring the deposition of the Plaintiff within thirty (30) days. See Order attached as Exhibit “B”. Defendant was allowed the option of going to India should it choose and, if so, the thirty (30) day limitation would not be applicable.
5. Plaintiff requests this Court order the depositions of the witness crewmem-bers following the thirty (30) day time period that Defendant had to take Plaintiffs deposition (on or before March 22, 2013). If Defendant chooses to delay the Plaintiff[’]s deposition past March 22, 2013, then Plaintiff should thereafter be allowed to proceed with the witness crew ■ member depositions. Plaintiffs trial preparation should not be prejudiced by Defendant’s voluntary delay with respect to the Plaintiffs deposition. Plaintiff requests the witness crewmem-bers’ depositions take place between March 23, 2013 and April 11, 2013.

This motion (which provided the predicate for the trial court’s order striking Celebrity’s pleadings)' sought no sanctions in its title, in its body, or in its request for relief.

Indeed, attorney discussions on March 19, one day before the hearing on this motion, memorialized by e-mails, made no mention of sanctions. In fact, the afternoon before the hearing, the parties were trying to work out a deposition schedule with Fernandes’s attorney suggesting the exchange of crewmember information and a 30-day deposition schedule:

Regarding Plaintiffs Motion to Compel Compliance with Court Order dated October 18, 2012 and to Compel Crewmem-ber Depositions, you indicated Celebrity will be providing the information regarding the crew members [sic] locations this Friday [March 22]. I propose an agreed order for Defendant to produce the crew members for deposition within 30 days thereafter. In addition the crew depos will not be dependant [sic] on Plaintiffs deposition date considering Defendant has not yet advised of its intentions regarding Plaintiffs deposition. Let me know if Celebrity is agreeable to that compromise. If so, we can submit an Agreed Order.

Although the parties could not agree as to the timing of Fernandes’s deposition, there was no hint that any sanctions were contemplated or were to be imposed. However, at the March 20 motion-calendar hearing which followed, without notice and without sanctions having been requested or ever previously imposed in the matter, the trial court sua sponte entered an order sanctioning Celebrity striking its pleadings, entering the default on liability, and ordering a trial on damages alone:

Order granting Plaintiffs Motion to Compel Compliance with Court Order
This Cause having come to be heard on March 20, 2013 on Plaintiffs Motion to Compel Compliance with Court Order dated October 18, 2012 and Compel Crew Depositions^] and the court having heard arguments of counsel, and being otherwise advised in the premises, it is hereupon ORDERED AND ADJUDGED that said motion be and the same is hereby
Granted as follows: Court finds Defendant’s failure to comply with Court’s Order was intentional delay and prejudiced Plaintiffs preparation for the May 2013 [trial] and there is insufficient time to conduct depositions now. As such, this Court strikes Defendant’s pleadings and this matter shall proceed to trial on damages only. Default judgment against defendant on liability.

(Emphasis added).

Celebrity, by that time had actively engaged in substantial discovery and was prepared to exchange extensive exhibit and witness lists in anticipation of the upcoming trial. Within days of this order, Celebrity provided better answers to Fer-nandes’s interrogatories as agreed; it also set Fernandes and others for deposition and provided witness and exhibit lists. It also moved for reconsideration of the order striking its pleadings and entering default on liability.

The motion was denied in an order stating only:

Denied based on reasons set forth in Pltff s [sic] response in opposition [to the motion for rehearing]. Court notes noncompliance with orders dated 7/11/12; 9/27/12; 10/18/12; and 2/20/13

This matter thereafter proceeded to jury trial without Fernandes — who was unable to secure a visa — and resulted in a $2.5 million damage award. Celebrity appeals; we reverse.

While Celebrity argues a number errors mandating reversal, we need go no further than the total lack of notice to Celebrity that sanctions were going to be considered much less imposed and the lack of an opportunity to present evidence on this issue, to conclude reversal is required. First, “the granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process.” Connell, 932 So.2d at 444 (citations omitted). In his March 7, 2013 motion, Fernandes neither moved for sanctions nor asked to have Celebrity’s pleadings stricken and the court below did not issue an order to show cause as to why sanctions should not be imposed. Thus, we agree with Celebrity that the court below had no authority to strike its pleadings on March 20 or to otherwise impose the sanction ordered. See Keys Island Props., LLC v. Crow, 97 So.3d 329, 330-31 (Fla. 3d DCA 2012) (observing the trial court could not determine matters not the subject of a proper pleading and notice and citing Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986 So.2d 1244, 1252 (Fla.2008) (quoting Carroll & Assocs., P.A. v. Galindo, 864 So.2d 24, 28-29 (Fla. 3d DCA 2003)) (“noting that ‘Florida law clearly holds that a trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading and notice’ and ‘[t]o allow a court to rule on a matter without proper pleadings and notice is violative of a party’s due process rights’ ”) (emphasis removed) and Mizrahi v. Mizrahi, 867 So.2d 1211, 1213 (Fla. 3d DCA 2004) (“Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings.”)); Atala v. Kopelowitz, 664 So.2d 1156, 1157 (Fla. 3d DCA 1995) (holding that striking of pleadings for failure to comply with discovery was error where party was not given notice that such a sanction was being considered); Epic Metals Corp. v. Samari Lake E. Condo. Ass’n, Inc., 547 So.2d 198, 199 (Fla. 3d DCA 1989) (“A trial court violates a litigant’s due process rights when it expands the scope of a hearing to address and determine matters not noticed for hearing.”).

Second, while it is well established that “determining sanctions for discovery violations is committed to the discretion of the trial court,” dismissal of an action or striking a party’s pleadings and entry of a default for failure to comply with a discovery order is “the most severe of all sanctions which should be employed only in extreme circumstances.” Ham v. Dunmire, 891 So.2d 492, 495 (Fla.2004) (citing Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)). Thus, “[w]here a trial court fails to make express written findings of fact to support a conclusion that a party’s failure to obey court orders demonstrates willful or deliberate disregard, the dismissal of such action [or the striking of a party’s pleadings] constitutes an abuse of discretion.” Toll v. Korge, 127 So.3d 883, 887 (Fla. 3d DCA 2013). Moreover, to ensure that a litigant is not unduly punished for failures of counsel, a trial court must consider those factors delineated by the Florida Supreme Court in Kozel to determine whether dismissal or striking of a party’s pleadings is an appropriate sanction for an attorney’s rather than a client’s behavior. See Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1994); see also Korge, 127 So.Bd at 887 (“[t]he Kozel factors ensure that a sanction is directed towards the party responsible for the error or misconduct”).

In this case, the trial court did not conduct an evidentiary hearing before striking Celebrity’s pleadings to determine whether Celebrity or its lawyers had violated any court orders by failing to engage in meaningful discovery. Nor did it make findings necessary to support its sanctions order. These failures also require rever-, sal here. See TICO Ins. Co. v. Schonning, 960 So.2d 6, 6 (Fla. 3d DCA 2005) (“Because the pleadings were struck in the absence of an evidentiary hearing, we reverse.”); Bank One, N.A. v. Harrod, 873 So.2d 519, 521 (Fla. 4th DCA 2004) (“Where, as here, there is no indication that the trial court considered [the Kozel ] factors ... reversal has been required.”)”); Franchi v. Shapiro, 650 So.2d 161, 162 (Fla. 3d DCA 1995) (“Before this ultimate sanction [the striking of pleadings or entering a default for noncompliance with an order compelling discovery] can be entered ... a party must be given notice and an opportunity to be heard. This opportunity to be heard must include the opportunity to present evidence of extenuating and/or mitigating circumstances, which might explain the failure to comply with the court’s discovery order or the opposing party’s discovery request.”) (citations omitted); see also Alsina, 83 So.3d at 964 (“While dismissal of a complaint for non-compliance with a court order is subject to an abuse of discretion standard of review, Erdman v. Bloch, 65 So.3d 62, 65 (Fla. 5th DCA 2011) (citing Bank One, N.A. v. Harrod, 873 So.2d 519, 520 (Fla. 4th DCA 2004)), failure to apply the standards for the sanction of dismissal set forth in Kozel ... is in itself a basis for reversal and remand for application of those standards. Ham v. Dunmire, 891 So.2d 492, 500 (Fla.2004).”).

Third, the record does not support the trial court’s conclusion that Celebrity’s delay in taking Fernandes’s deposition left Fernandes with insufficient time before the scheduled May trial to take the remaining crewmembers’ depositions. To the contrary, when Fernandes sought relief from the October 18 2012 order which required his deposition to be taken before that of any crewmembers, he proposed a 30-day deposition schedule for these individuals “between March 23, 2013 and April 11, 2013,” and represented this schedule as being sufficient for him to prepare for the upcoming May trial. Thus, the trial court’s March 20 conclusion that Fer-nandes was incurably prejudiced because “there is insufficient time to conduct depositions now,” is not only unsupported by the record but also contradicted by it. See Beaver Crane Serv., Inc. v. Nat’l Sur. Corp., 373 So.2d 88, 89 (Fla. 3d DCA 1979) (sanction of dismissal was error where ap-pellee was not prejudiced in any meaningful way by appellant’s tardiness).

Finally, the record below fails to demonstrate the level of disobedience or inappropriate behavior that would justify imposition of the litigation/liability death penalty. This matter was first noticed for trial in December of 2011 by counsel for Fernandes only six months after this action was filed and at a time when neither party was prepared to try this case. While Celebrity may have engaged in some discovery “foot dragging” along the way, all of the delays incurred below cannot be attributed to it. Indeed, this matter was reset for trial a number of times, often on agreement of the parties and on occasion to accommodate the schedule of Fernandes’s trial counsel. Some of the delays certainly must be attributed to Fer-nandes’s inability to secure a visa to enter the country so that he could be examined and deposed.

The record also shows that both parties were diligently pursuing this matter and had engaged in substantial negotiations over, and agreed for the most part about, discovery. The parties also had attended mediation, secured expert witnesses, and prepared extensive witness and exhibit lists. In short, the parties were close to being ready for trial when the court below sunk Celebrity’s case without so much as the proverbial warning shot across the bow.

As this court and others before us have made clear, the ultimate penalty for discovery sanctions must be reserved for the most egregious cases. See, e.g., Franchi, 650 So.2d at 162 (quoting Mercer, 443 So.2d at 946 for the proposition that “the striking of pleadings or entering a default for noncompliance with an order compelling discovery is the most severe of all sanctions which should be employed only in extreme circumstances”). This is not a case where such a sanction is warranted.

We therefore reverse the judgment in Fernandes’s favor and remand for a trial on the merits. In light of this reversal, we decline to address the remainder of the arguments advanced by Celebrity.

      . The corporate representative's deposition subsequently was set to continue on January 17, 2013.

      . Kogan’s deposition subsequently was set for February 1, 2013.

      . There is no transcript of the March 20, 2013 hearing. Fernandes maintains this mandates affirmance. We cannot agree. In the instant case, the error appears on the face of the record which grants relief not noticed and without the requisite evidentiary hearing, findings, or due process. See Hill v. Calderin, 47 So.3d 852, 854 (Fla. 3d DCA 2010) ("Generally, where an appellant fails to provide the appellate court with a trial transcript, the trial court's judgment must be affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (FIa.1979). Notwithstanding the absence of a transcript, however, an appellate court may review a lower court judgment for error apparent on its face.”); Connell v. Capital City Partners, LLC, 932 So.2d 442, 443-44 (Fla. 3d DCA 2006) ("We find that the order on appeal reflects an error on its face, as it reveals a denial of due process. Specifically, the order reflects that the only motion set for hearing was a motion to dismiss. The trial court, however, went beyond a determination of the motion to dismiss, by also requiring Connell to transfer $49,000 to Capital City.”) (footnote omitted); see also Alsina v. Gonzalez, 83 So.3d 962, 965 (Fla. 4th DCA 2012) ("The Gonzalezes argue that an affirmance [of the discovery sanction order at issue] is required because the Alsinas have not provided a transcript of the hearing where those factors [enunciated in Kozel ] may have been considered. We disagree that a transcript is necessary where the order is devoid of any consideration of the factors. In fact, no transcript of the sanction hearing was available in Ham [v. Dunmire, 891 So.2d 492 (Fla.2004)], and the order contained language finding willful conduct. Despite this, the supreme court still remanded for the trial court to conduct a Kozel [v. Ostendorf, 629 So.2d 817 (Fla.1993)] analysis.”).

      . Fernandes had filed a motion for sanctions in December of 2012, however a motion to compel better answers followed and the next order from the trial court was the February 20, 2013 "Agreed Order Granting Plaintiff's Motion to Compel Better Int. Answers.” The March 7 motion requested only an order compelling Celebrity to comply with the trial court’s October 18, 2012 order and "any other relief this Court deems appropriate,” an insufficient basis for the sanction that followed.

      . These factors are: (1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than negligent or uninformed; (2) whether the attorney has been sanctioned previously; (3) whether the client was personally involved in the disobedience; (4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; (5) whether the attorney offered a reasonable justification for noncompliance; and, (6) whether the delay created significant problems for judicial administration. See Kozel, 629 So.2d at 818.

      . The March 20, 2013 hearing was an add-on to the trial court’s five minute motion calendar, it was not an evidentiary hearing.

      . Attempts to justify the March 20, 2013 sanction order by later order citing to a number of orders (dated 7/11/12; 9/27/12; 10/18/12; and 2/20/13) and an unsworn memorandum of law filed by Fernandes's counsel after Celebrity’s pleadings were stricken does not satisfy these requirements.
      • The July 11, 2012 order read:

        Agreed ORDER GRANTING /DENYING PLAINTIFF’S /DEFENDANT’S Motion to Compel

        THIS CAUSE having come to be heard on July 11, 2012 on Plaintiff’s /Defendant’s Motion to Compel Depositions and Vessel Inspection and the Court having heard arguments of counsel, and being otherwise advised in the premises, it is hereupon
      ORDERED AND ADJUDGED that said Motion be, and the same is hereby
      Granted. Defendant to provide dates for the requested depositions within (7) seven days and for the depositions to be conducted within (60) sixty days. Parties may mutually agree to different dates.

      (Some emphasis added).
      The record shows that the vessel was being made available to Fernandes upon its return to a local port. There is no showing that Fernandes was denied access at any other port at which this vessel called had his counsel wanted to go there. Also, the depositions of the ship’s investigators had either begun or were scheduled when Celebrity's pleadings were stricken. The same applies to the deposition of Celebrity's corporate representative.
      • The September 27, 2012 order read:

        Agreed ORDER GRANTING /DENYING

        PLAINTIFF’S /DEFENDANT’S Motion for Compliance
      THIS CAUSE having come to be heard on September 27, 2012 on Plaintiffs/Defendant's Motion to Compel Compliance with Court Order and the Court having heard arguments of counsel, and being otherwise advised in the premises, it is hereupon
      ORDERED AND ADJUDGED that said Motion be, and the same is hereby Granted as follows:
      Deposition of Defendant’s corporate representative shall take place on November 15, 2012. Defendant shall provide proposed dates for deposition for Ira Warder and shipboard investigators) within seven (7) days.
      (Some emphasis added).
      Again, these depositions had already been taken, had commenced, or were scheduled when Celebrity’s pleadings were stricken.
      • The October 18, 2012 order read:
      Order GRANTING /DENYING PLAINTIFF’S /DEFENDANT’S Motion to Compel Crew Member Depos THIS CAUSE having come to be heard on October 18, 2012 on Plaintiffs/Defendant’s Motion to Compel Crew member Depositions and the Court having heard arguments of counsel, and being otherwise advised in the premises, it is hereupon ORDERED AND ADJUDGED that said Motion be, and the same is hereby Granted. Defendant shall provide crew members schedule, ship assignment and deposition availability within 30 days. These depositions will be set following Plaintiffs deposition. Plaintiff shall update Defendant on Plaintiffs visa status/ability to travel to U.S. within 60 days. Defendant shall provide contact information for crew-members no longer employed within 30 days.
      (Some emphasis added).
      Although Celebrity apparently provided the information ordered for only six of the eleven crewmembers at issue, it failed to timely provide the information sought for the other five crewmembers. This failure did not prejudice Fernandes because none of these individuals could be deposed until after Fernandes had made himself available here — something that he could not do — for examination and deposition. Moreover, Celebrity had advised Fer-nandes's counsel that the information sought would be made available, and actually was made available, on March 22, 2013, only two days after the motion to compel this information was set.
      • Two orders dated February 20, 2013.

      The first February 20 order read:
      ORDER GRANTING /DENYNG PLAINTIFF’S /DEFENDANT’S Motion to Compel Fasos [sic] Deposition THIS CAUSE having come to be heard on February 20, 2013 on Plaintiff’s /Defendant’s to Compel Deposition of Tony Faso and the Court having heard arguments of counsel, and being otherwise advised in the premises, it is hereupon ORDERED AND ADJUDGED that said Motion be and the same is hereby Granted. Tony Faso shall appear for deposition within the next 30 days. Court sua sponte orders Plaintiff to be deposed via Skipe or videoconferencing following Faso’s deposition. If [Defendant] wants to go to India the 30 day limitation/requirement is not applicable.
      The second February 20 order;

      This order was an Agreed Order on Plaintiff’s "Motion to Compel Better Answers to As Well as Sworn Answer[s] to Plaintiff's Interrogatories.” That order listed a number of questions requiring better responses but again made no mention whatsoever of sanctions. It read:

        Agreed as follows: Defendant shall provide sworn answers/jurat page; telephone # s of the individuals* disclosed in # 1 and # 8; better answer to # 18 with an MM I date or “none”; in response to #13 Defendant shall produce all of Plaintiff's pay slips for 2009; Objection to # 14 withdrawn; will provide better answers to # 14 and # 15 + # 23; # 24(2nd) language following "including but not...” stricken and ... withdraws objection and will provide better answer.
      Compliance within 30 days.
      *no longer employed by cruise line
      (Emphasis added).
      Celebrity provided the better answers as agreed and was only obligated to take Fer-nandes's deposition in 30 days if it opted to do so via skype or videoconference. It also noticed his deposition for April 2, 2013, within 30 days of the March 20 order. These orders, neither individually nor in concert, would have alerted Celebrity that some sanction, much less that its pleadings were subject to being stricken, was being contemplated by the court on March 20.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Antawn PARHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-868.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2014.
    Eugene F. Zenobi, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Third Region, and Roberta G. Mandel, Special Assistant Regional Counsel, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

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

Affirmed. See Ferguson v. State, 789 So.2d 306, 314-15 (Fla.2001) (affirming trial court’s finding of competency where court’s rejection of defense experts’ opinions was supported by testimony of three doctors who found evidence of malingering and by testimony of corrections officers that defendant only acted irrationally shortly before and after mental evaluations).


text:
    Detelina Y.A. MITEVA, Appellant, v. AMERICAN EXPRESS BANK, FSB, Appellee.
    No. 3D13-2093.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2014.
    Detelina Y.A. Miteva, in proper person.
    Zwicker & Associates, P.C., and Zoran D. Jovanovich (Jacksonville), for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   CONFESSION OF ERROR

PER CURIAM.

The defendant, Detelina Y.A. Miteva, appeals the trial court’s order entering summary final judgment in favor of the plaintiff, American Express Bank, FSB (“American Express”). As American Express properly concedes, the order granting summary final judgment in its favor must be reversed because (1) there is a lack of record evidence to establish that American Express had standing at the time it filed its breach of contract action against Miteva, see Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So.3d 251, 253-54 (Fla. 2d DCA 2012); Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011), and (2) the incorrect card-member agreement was attached to American Express’s complaint. Accordingly, we reverse the order under review and remand for further proceedings. On remand, American Express is permitted to (1) establish by record evidence that it had standing at the time it filed its breach of contract action against Miteva and (2) file an amended complaint referencing and attaching the correct cardholder agreement.

Based on American Express’s proper confession of error, we need not address the remaining issues raised by Miteva.

Reversed and remanded.


text:
    3 D OF KEY WEST, INC., etc., Appellant, v. NEW STOCK ISLAND DEVELOPMENT CO., LLC, Appellee.
    No. 3D13-2703.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2014.

      Koenig Highsmith & Van Loon and Timothy J. Koenig, David Van Loon and Kasey W. Liberatore (Key West), for appellant.
    John R. Allison, III (Key West), for appellee.
    Before SHEPHERD, C.J., and EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


author: WELLS, Judge.

text:
    REGENTS PARK INVESTMENTS, LLC., a Florida Limited Liability Company, Appellant, v. KAI PROPERTIES, LTD, a Florida Limited Partnership, Appellee.
    No. 3D14-1511.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2014.
    Arnaldo Velez, for appellant.
    Duane Morris, Lida Rodriguez-Taseff, Nicole L. Levy and Charles C. Papy, III; Joel S. Perwin, for appellee.
    Before WELLS, EMAS and LOGUE, JJ.
   WELLS, Judge.

Contract purchaser Regents Park Investments, LLC, appeals from a final summary judgment following dismissal of its sihgle-count complaint for specific performance of a real estate sales transaction. Because the default provision detailed in the contract for purchase and sale does not limit the remedies available to the purchaser in the event of a default by the seller, the court below erred in concluding that an action for specific performance could not be asserted. See Coastal Computer Corp. v. Team Mgmt. Sys., Inc., 624 So.2d 352, 352-53 (Fla. 2d DCA 1993) (finding that the appellant could “pursue any remedy that the law affords” where the parties’ contract set out one remedy for its breach, but did not also provide that this was an exclusive remedy); Dillard Homes, Inc. v. Carroll, 152 So.2d 738, 739 (Fla. 3d DCA 1963) (confirming that where contract language “discloses that the parties intended to limit [a non-breaching party’s] remedy in the event” of default, remedies other than that provided in the contract, to include specific performance, are precluded).

Accordingly, the judgment entered below is reversed and this matter remanded for further proceedings.


text:
    Diori BARNARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2319.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2014.

      Christian Dunham, P.A., and Christian Dunham, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   PER CURIAM.

Affirmed. See Brooks v. State, 969 So.2d 238, 243 (Fla.2007) (“Accordingly, for motions filed under rule 3.800(a), we hold that if the trial court could have imposed the same sentence using a correct score-sheet, any error was harmless.”) (emphasis added).


text:
    Suzette RIVERA, Appellant, v. WELLS FARGO BANK, N.A. et al. Appellees.
    No. 5D14-1305.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.
    Suzette Rivera, Orlando, pro se.
    Ronnie J. Bitman, Allison M. Hise, and Courtney Crossland of Pearson Bitman, LLP, Maitland, for Appellee.
   PER CURIAM.

Suzette Rivera appeals the trial court’s Order Denying Motion to Vacate and Set Aside Void Default Judgment against Hector Rivera and Motion to Intervene on Part of Hector.

We affirm the order insofar as it denied the motion to intervene and, based upon lack of jurisdiction, dismiss the appeal of the denial of her motion to vacate default.

AFFIRMED in part; DISMISSED in part.

ORFINGER, EVANDER and COHEN, JJ., concur.


text:
    Michael Dennard GOODSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3549.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2014.
    Nancy A. Daniels, Public Defender, and Megan Lynne Long, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, for Appellee.
   PER CURIAM.

AFFIRMED. See Walton v. State, 106 So.3d 522 (Fla. 1st DCA 2013) (en banc), review dismissed, 116 So.3d 1264 (Fla. 2013) and review granted, 123 So.3d 1148 (Fla.2013) and review granted, 145 So.3d 830 (Fla.2014).

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


author: WALLIS, J.

text:
    Andrew L. TERKEURST, Appellant, v. Monica D. TERKEURST, Appellee.
    No. 5D13-1640.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.
    Brian P. North, Gainesville, and Stefani K. Nolan and Shachar D. Spiegel of Kenny Leigh & Associates, Jacksonville, for Appellant.
    Leanna S.A. Freeman, St. Augustine, for Appellee.
   WALLIS, J.

Andrew Terkeurst (“Former Husband”) appeals the denial of his motion for reconsideration of a child support order, which provides monthly support for his two children to Monica Terkeurst (“Former Wife”). Former Husband argues the trial court abused its discretion when it calculated the support award because one of the two children resides with him. We agree with Former Husband and reverse and remand for the trial court to recalculate the support award.

Former Husband and Former Wife divorced in 2003. The couple had two children, G.T. and C.T., and initially, both resided primarily with Former Wife. In 2011, Former Husband and Former Wife agreed G.T. would reside primarily with Former Husband while C.T. would continue to reside with Former Wife. The parties consented to a modified timesharing and parenting plan, which was memorialized on April 17, 2012, in a consent final judgment. Under the modified timeshar-ing schedule, G.T. resided primarily with Former Husband and visited Former Wife every other weekend. C.T. resided primarily with Former Wife and visited Former Husband every other weekend. Each child would spend six weeks over the summer with the parent that the child did not primarily reside with during the school year. In effect, the parents averaged equal nights per year overall.

Pursuant to the consent judgment, the parties were to determine a modification in support. The parties were unable to agree upon a modification in support following the revision to the timesharing. On December 12, 2012, Former Wife filed a motion to determine child support, which resulted in a March 18, 2013 support order. The trial court relied on Former Wife’s suggested worksheet, which provided the total monthly support necessary for both children as $1,463.00. The trial court improperly treated both children as residing primarily with Former Wife despite the modification contained in the April 17, 2012 consent final judgment. Based upon the parents’ respective incomes, the trial court set Former Husband’s obligation at $1,088.79 and Former Wife’s obligation at $374.21. Stated differently, the percentage amount of support allocated was 74% from Former Husband and 26% from Former Wife. The trial court determined Former Husband owed Former Wife $1,088.79 per month for “two minor children.” The trial court also awarded retroactive support to Former Wife of $10,887.90 for the previous ten months, dating back to June 1, 2012.

We review child support awards for an abuse of discretion. Karimi v. Karimi, 867 So.2d 471, 473 (Fla. 5th DCA 2004) (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). The parenting plan, which the consent judgment incorporated, provides that G.T.’s arrangement for primary residency with Former Husband mirrors C.T.’s arrangement for primary residence with Former Wife. Thus, if each parent has on average an equal number of- nights, the trial court erred by requiring Former Husband to pay all of his 74% share of the support award to Former Wife. If the nights per year with each parent were equal, Former Husband should have retained 50% of the $1463 total support and, based upon the income disparity, paid 24%, or $357.27, to Former Wife. This error requires a recalculation of the retroactive support award Former Husband owes Former Wife.

We reverse and remand for the trial court to recalculate the ongoing support award and retroactive support based on the number of nights G.T. and C.T. reside with each parent.

REVERSED and REMANDED with.instructions.

COHEN and BERGER, JJ., concur.

      . This court ordered Former Wife to submit an answer brief; however, she declined to do so and filed a notice of intent not to respond.'

      . Former Husband raises other issues about the facial validity of the support order, which we decline to address as a result of this reversal, Former Husband also argues the trial court’s contempt order, entered four months after his notice of appeal, was facially invalid. Because Former Husband did not amend or file a separate notice of appeal, we do not have jurisdiction to consider the contempt issue. See Lauderdale Marine Ctr., Ltd. v. MYD Marine Distributors, Inc., 31 So.3d 256, 257 (Fla. 4th DCA 2010) (holding the court lacks jurisdiction to consider proceedings after the date of the notice of appeal); accord Fla. R. App. P. 9.110(h).


author: LAMBERT, J.

text:
    Tommie Lee ANDREWS, Appellant, v. ESTATE OF Mable Louise ANDREWS, Appellee.
    No. 5D14-441.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.
    Tommie L. Andrews, Arcadia, pro se.
    No Appearance for Appellee.
   LAMBERT, J.

Tommie Lee Andrews appeals the trial court’s denial of his petition to have his sister, Mable Louise Andrews, declared deceased, as she had been continuously missing for nearly 39 years. Because we conclude .that the trial court erred in summarily denying the petition, we reverse and remand for an evidentiary hearing.

On November 8, 2013, Appellant petitioned the trial court to declare his sister deceased pursuant to section 731.103(3), Florida .Statutes (2013). According to the petition, Appellant’s sister went missing in 1974 and has never been found. She was 14 years old at the time. The trial court denied the petition, finding that the evidence was insufficient to prove that she was dead.

Section 731.103(3), Florida Statutes (2013), provides that:

A person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier.... A petition for this determination shall be filed in the county in Florida where the decedent maintained his or her domicile....

§ 731.103(3), Fla. Stat.- (2013). Section 731.103(3) creates a presumption of death after the person has been absent for five years. Woods v. Estate of Woods, 681 So.2d 903, 905 (Fla. 4th DCA 1996) (“At common law, upon the éxpiration of seven years’ unexplained absence, a presumption of death arose.” (citing Groover v. Simonhoff, 157 So.2d 541 (Fla. 3d DCA 1963))). Section 731.103(3) “is merely a procedure by which the Legislature has provided a method to judicially establish the presumption of death which has already arisen by the passage of time.” Id. (citing Groover, 157 So.2d at 543). In applying section 731.103(3), the standard of proof is “ ‘[whether] the circumstantial evidence amounts to a preponderance of all reasonable inferences that can be drawn from the circumstances in evidence to the end that the evidence is not reasonably susceptible of two equally reasonable inferences.’ ” Id. (alteration in original) (quoting Johns v. Burns, 67 So.2d 765, 767 (Fla.1953)).

Here, Appellant filed a petition, explaining that his sister has been missing since December 24, 1974. Appellant advised the court that ■ his sister left their home in Orlando to go'to the neighborhood park, but that she never returned. Their parents filed a missing person’s report with the Orlando Police Department. There was no indication that his. sister would have run away from home and there is no record of her whereabouts. Due to the length of time that Mable Louise Andrews has been missing, there exists a presumption that she is deceased. See § 731.103(3), Fla. Stat. (2013). At a minimum, Appellant was entitled to an eviden-tiary hearing before denying the petition.

REVERSED AND REMANDED.

SAWAYA and PALMER, JJ„ concur.

      . Appellant raises two issues on appeal. The second issue, whether the judge should have been disqualified, is moot as a result of the retirement of the circuit judge.

      . There is nothing in the record indicating • that an evidentiary hearing was held.


text:
    Tania M. TORRUELLA, Appellant, v. The BANK OF NEW YORK MELLON, Appellee.
    No. 5D14-1510.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.
    Adam H. Sudbury of Sudbury Law, Orlando, for Appellant.
    Ronnie J. Bitman and Allison M. Morat of Pearson Bitman, LLP, Maitland, for Appellee.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to Appellee’s Notice of Non-Contest, which is treated as a concession of error, the circuit court’s April 24, 2014 Order Disposing of Motion to Quash is reversed, and this cause is remanded to the circuit court for further proceedings.

REVERSED and REMANDED.

ORFINGER, EVANDER and COHEN, JJ., concur.


text:
    STATE of Louisiana In the Interest of L.D.
    No. 2014-KA-1080.
    Supreme Court of Louisiana.
    Oct. 15, 2014.
    Roach & Roach, APLC, Annette Fuller Roach, for Applicant.
    Fifteenth Judicial District, District Attorney’s Office, Sharon Michelle Meaux Breaux, Michael Harson, District Attorney, for Respondent.
   PER CURIAM.

|, On September 5, 2013, the state filed a petition charging L.D. with the commission of a felony-grade delinquent act of unauthorized use of a movable in violation of La. R.S. 14:68. Although La.Ch.C. art. 854(A) required, in this instance that L.D. appear to answer the delinquency petition within five days of filing because he was continued in custody, the district court set the answer hearing for the next available court date dedicated to juvenile matters, 27 days later on October 2, 2013. The juvenile appeared at that time, objected to the untimeliness of the hearing, and asked for his release from custody and for dismissal of the delinquency petition. The juvenile judge found, consistent with a policy of that court, that the court’s scheduling constraints constituted “good cause” for the delay under La.Ch.C. art. 854(C). The court therefore declined to dismiss the petition and release L.D. from custody, and the juvenile did not seek immediate review of that ruling.

The court adjudicated L.D. delinquent 21 days later on October 23, 2013, within the 30 days from the answer hearing afforded by La.Ch.C. art. 877(A). On appeal, L.D. contended that his adjudication hearing was nevertheless untimely and that the petition should therefore have been dismissed because each step in | ^delinquency adjudication process should be seen as carefully and closely placed, like dominoes in a row, and that by wrongly delaying the answer hearing, the juvenile court judge triggered a cascade, a rippling effect, that ended in an adjudication that should be viewed as untimely as well. The state responded that the adjudication was not, in fact, untimely because it was conducted according to the letter of La.Ch.C. art. 877, which fixes the date for the adjudication based solely on the date of appearance at the answer hearing without regard to the timeliness of the preceding steps.

The court of appeal affirmed in a split panel decision. State in Interest of L.D., 14-01 (La.App. 3 Cir. 5/7/14), 139 So.3d 679 (Genovese and Conery, JJ., Thibo-deaux, C.J., dissenting). The court agreed with L.D. that “good cause was not established by the juvenile court in its extension of the time period for having [the] answer hearing.” Id., 14-0001 at 12, 139 So.3d at 686. The majority on the panel nevertheless agreed with the state that in setting out the various time periods for delinquency proceedings in the Children’s Code, the legislature did not subscribe to L.D.’s ripple effect by which “the failure to comply with any of the time periods ... would result in dismissal of the petition since a violation of any of the time periods would ultimately alter the time period for the adjudication hearing.” Id. The majority specifically noted that “the remedy for failing to timely file the delinquency petition of a juvenile in custody , is release of the juvenile from custody.” Id. The majority thus concluded that L.D. was “not entitled to receive the benefit of ‘wiping out’ his adjudication simply because the timing of the adjudication was altered by the untimely answer hearing,” and that the appropriate remedy for an untimely answer was the same as for the untimely filing of the petition, ie. release of the juvenile from custody. That remedy | sbecame moot, however, when L.D. failed to seek timely review of the juvenile court’s ruling on October 2, 2013, denying his motion for release from custody when he answered the petition, and then appeared for the adjudication hearing on October 23, 2013, or within 30 days of the answer, as required by La.Ch.C. art. 877(A). Id. Dissenting, Chief Judge Thibodeaux emphasized the statement of legislative purpose in La.Ch.C. art. 102 that “[t]hese Code provisions shall be construed to promote ... the elimination of unjustifiable delay,” and in La.Ch.C. art. 801, that the purpose of Title VIII of the Code entitled “Delinquency” is “to accord due process to each child who is accused of having committed a delinquent act.” In his view, neither policy was served “by allowing the State to extend the adjudication hearing by simply not adhering to the mandatory time standards of the Louisiana Children’s Code.... This is especially égregious where there is an erroneous finding of good cause and an erroneous refusal to release an incarcerated juvenile, as here.” L.D., 14-01 at 2, 139 So.3d at 687 (Thibo-deaux, C.J., dissenting).

We agree with L.D. and the court of appeal panel that the juvenile court lacked good cause for setting the answer hearing outside of the time limit dictated by La.Ch.C. art. 854(A). The juvenile judge here found good cause existed to extend the period established in this article based on the scheduling practices of the court. As clarified in oral argument before this Court, it appears that each year two judges of the 15th Judicial District Court (J.D.C.) are selected to preside over juvenile matters in addition to their civil docket. Barring illness or vacation, they sit in that capacity for approximately one week each month. In the present case, between the date the petition was filed and the date the answer hearing was set, there were no juvenile sittings scheduled. Evidently, the judges assigned to | Juvenile matters had determined earlier that these scheduling constraints hampered the court’s ability to comply with La.Ch.C. art. 854. Their solution was to make it an unwritten policy, known to the attorneys who regularly appear in juvenile matters in that district, that the judges would endeavor to comply with the time limits set by the article but that when they were unable to do so, the court’s schedule would be considered good cause for an extension. That policy was cited by the juvenile judge when L.D. objected to the untimeliness of the answer hearing. It also appears that in another unwritten rule, duty judges provided by local court rule 3.2 of the 15th J.D.C. for each parish within the district for each judicial day are not consulted in juvenile matters.

We have made clear, however, that in the context of adult criminal proceedings, “[t]he court system cannot excuse itself from affording an accused a trial within the delay required by law, simply by relying upon internal operating procedures which result in noncompliance with the statutory mandate.” State v. Driever, 347 So.2d 1132, 1134 (La.1977). This observation applies with even greater force in the context of juvenile proceedings in which, as Chief Judge Thibodeaux emphasized in dissent, the provisions of the Children’s Code “shall be construed to ... secure simplicity in procedure, fairness in adjudication and administration, and the elimination of unjustifiable delay.” La. Ch.C. art. 102. The legislature has specifically provided that in cases in which the child is continued in custody, “he shall be ordered to appear to answer the petition within five days after the filing of the petition.” La.Ch.C. art. 854(A) (emphasis added). Article 854(C) specifically provides that the court may extend such period “[f]or good cause.” As the term is used in the Children’s Code, “‘[g]ood cause’ is determined on a case-by-case basis and must be fully supported in the record.” State in the Interest of R.G., 506-1625, p. 3 (La.App. 4 Cir. 7/18/07), 963 So.2d 475, 477 (citation omitted). We think it clear that a blanket rule of local practice does not constitute one such case-specific instance supplanting a legislative mandate intended to promote the fair and expeditious conduct of juvenile delinquency proceedings.

We nevertheless agree with the court of appeal majority that the legislature did not subscribe to the rippling effect advocated by L.D., such that the slightest perturbation in the steady march of various time limits through the process results inexorably in the dismissal of a delinquency petition. The court of appeal noted, and all parties agree, that La.Ch.C. art. 854 specifies no remedy when the time afforded for an answer hearing is exceeded without good cause. The provisions of the Children’s Code governing delinquency proceedings otherwise contain several explicit time limits. Under La.Ch.C. art. 819, a juvenile who has been taken into custody must have a continued custody hearing within three days (unless released pursuant to La.Ch.C. art. 817). Failure to timely hold the continued custody hearing results in release of the juvenile from custody unless the hearing was continued at the request of the juvenile. See La.Ch.C. art. 819. Under La.Ch.C. art. 848(A), if the juvenile remains in custody, the delinquency petition must be filed within 48 hours of the continued custody hearing. Failure to timely file the petition also results in release of the juvenile. See La. Ch.C. art. 848(B). Only when the time afforded by La.Ch.C. art. 877 to commence the delinquency adjudication following the answer hearing is exceeded must the court dismiss the petition at the request of the juvenile. In the absence of clearly expressed legislative intent to the contrary, the remedy adopted by the court of appeal in the present case for an untimely answer hearing appears entirely consistent with the explicit remedies provided for untimely continued custody hearings and untimely filings of the | ^delinquency petitions when, as here, the adjudication hearing itself occurs within 30 days of the answer hearing.

The court of appeal found in the present case that the juvenile judge erred in denying L.D.’s motion for release based on failure to timely hold the answer hearing. That determination is consistent with the overall structure of the Children’s Code and appears correct. Although the concerns expressed by Judge Thibodeaux in his dissent are well-founded, L.D. had time enough to seek immediate review in the court of appeal of the juvenile court’s erroneous ruling on an expedited basis without necessarily upsetting the date set for the adjudication hearing and resulting in further delays. As the court of appeal majority concluded, because L.D. did not seek expedited writ review at that time, the issue became moot after he was adjudicated delinquent in a hearing conducted within the literal compass of La.Ch.C. art. 877.

Therefore, the court of appeal’s opinion is affirmed. The 15th J.D.C., however, is advised to reevaluate its practices pertaining to delinquency proceedings consistent with the view expressed herein.

AFFIRMED.


author: HUGHES, J.

text:
    Ashanti GREEN, as Tutrix of the Minors, Dave PETERSON III and David Peterson v. Michael JOHNSON, State Farm Insurance Agency, Allstate Insurance Company, and American Southern Home Insurance.
    No. 2014-C-0292.
    Supreme Court of Louisiana.
    Oct. 15, 2014.

      The Maughan Law Firm, Roy Hyrum Maughan, Jr., Namisha D. Patel, Joshua David Roy, Baton Rouge, LA, for Applicant.
    Hammonds, Sills, Adkins & Guice, LLP, Harold James Adkins, Baton Rouge, LA, Kinchen, Walker, Bienvenu, Bargas & Reed, LLC, Gregory Kent Moroux, Jr., Lafayette, LA, Perry, Atkinson, Balhoff, Mengis & Burns, LLC, Daniel R. Atkinson, Jr., Porteous, Hainkel & Johnson, LLP, Bryan Joseph Haydel, Jr., Baton Rouge, LA, for Respondent.
   HUGHES, J.

| ]This writ presents the issue of whether a motorcycle accident victim, ostensibly insured under the provisions of the motorcycle co-owner’s uninsured/underinsured motorist (UM) automobile insurance policy, was entitled to UM coverage under the policy even though there was no coverage for the accident under the policy’s liability provisions. Finding the insurer failed to demonstrate a lack of UM coverage, we conclude the district court erred in granting summary judgment dismissing the UM insurer, and the appellate court erred in affirming the ruling; therefore, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

This wrongful death and survival action arose on July 16, 2007 when Dave Peterson, while riding a motorcycle that he co-owned with Benjamin Gibson, was involved in an accident with a sport utility vehicle driven by Michael Johnson. Mr. Peterson died from the injuries he received in the accident.

At the time of his death, Mr. Peterson resided with his girlfriend, Ashanti Green, and their two minor children. Ms. Green filed this suit on June 19, 2008, as | gtutrix for the minor children, naming as defendants: Michael Johnson and his insurer, State Farm Mutual Automobile Insurance Company (“State Farm”); Allstate Insurance Company (“Allstate”), as the UM insurer of the plaintiff, who contended that coverage extended to Mr. Peterson under her policy provisions; and American Southern Home Insurance Company (“American Southern”), as the alleged insurer of the motorcycle. By a supplemental petition, Allstate was also named as a party defendant in its capacity as the automobile insurer of Mr. Gibson, on the allegation that UM coverage was provided to Mr. Peterson under that policy.

Subsequent to the dismissal of American Southern and Allstate, as the plaintiffs insurer,' Allstate, in its capacity as Mr. Gibson’s insurer, filed a motion for summary judgment, in 2009, contending there was no after-acquired auto coverage on the motorcycle in question because it was expressly covered by an American Southern policy; the motion was denied by the district court in February, 2012.

Thereafter, on April 16, 2012, Allstate filed another motion for summary judgment asserting a lack of coverage under the Gibson policy. The plaintiff responded with an exception pleading the objection of res judicata, contending the coverage issue had been previously decided by the court in February, 2012. Allstate argued that Mr. Peterson did not have UM coverage under the policy since the policy definitions for “insured person” and “insured auto,” as set forth in the liability section of the policy, were not met. The plaintiff contended that the motorcycle met the “insured auto” definition, necessary for coverage as an after-jacquired3 vehicle, as contained in the UM section of the policy; thus, the plaintiff asserted that Mr. Peterson had UM coverage under the policy. Following a July 23, 2012 hearing on Allstate’s motion for summary judgment and the res judicata exception raised by the plaintiff, the district court overruled the exception and rendered summary judgment dismissing Allstate, finding that Mr. Peterson was required to qualify as an insured under the liability portion of the policy in order to qualify for UM coverage.

The plaintiff appealed the district court decision to the appellate court, which affirmed. See Green v. Johnson, 13-0103, 2013 WL 5177142 (La.App. 1 Cir. 9/13/13) (unpublished). This court granted the plaintiffs subsequent writ application. See Green v. Johnson, 14-0292 (La.4/17/14), 138 So.3d 614. Concluding that the lower courts erroneously interpreted the policy provisions and' UM jurisprudence, we reverse.

LAW AND ANALYSIS

Motion for Summary Judgment

This court applies a de novo standard of review in considering lower court rulings on summary judgment motions. Thus, we use the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law, pursuant to LSA-C.C.P. art. 966(B). See Catahoula Parish School Board v. Louisiana Machinery Rentals, LLC, 12-2504 (La.10/15/13), 124 So.3d 1065,1071.

On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or 14more elements essential to the adverse party’s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See LSA-C.C.P. art. 966(C)(2). See also Schultz v. Guoth, 10-0343 (La.1/19/11), 57 So.3d 1002,1006.

In its motion for summary judgment, Allstate asserted that the policy it issued to Benjamin Gibson did not provide UM coverage to Dave Peterson while riding the co-owned motorcycle. Allstate argued that Dave Peterson was required to qualify as an “insured” under the liability portion of the Allstate policy in order for him to be entitled to UM coverage and that the plaintiff could not meet her burden to show that the motorcycle was an “insured auto” as defined by the Gibsons’ Allstate policy.

Uninsured Motorist Coverage ,

As this court recognized in Sims v. Mulhearn Funeral Home, Inc., certain elementary legal principles apply in analyzing an insurance policy. First and foremost is the rule that an insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. According to those rules, the responsibility of the judiciary in interpreting insurance contracts is to determine the parties’ common intent; this analysis is begun by reviewing the words of the insurance contract. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent, and courts must enforce the contract as written. The determination of whether a contract is clear or ambiguous is a question of law. See Sims v. Mulhearn Funeral Home, Inc., 07-0054 (La.5/22/07), 956 So.2d 583, 589-90.

UM coverage is determined by contractual provisions and by applicable |,^statutes. Under the UM statute, eur-rently LSA-R.S. 22:1295, the requirement of UM coverage is an implied amendment to any automobile liability policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected. See Duncan v. U.S.A.A. Insurance Company, 06-363 (La.11/29/06), 950 So.2d 544, 547. However, the coverage requirement of LSA-R.S. 22:1295 “is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage.” See LSA-R.S. 22:1295(l)(a)(i).

|fiIn the instant case, the Gibsons’ Allstate automobile insurance policy contractually provided both liability and UM coverage. The liability limits selected by the Gibsons were $100,000/$800,000/$100,000, while the UM limits selected were $50,000/ $100,000; thus, the Gibsons “select[ed] lower limits” of UM coverage than the policy provided for liability coverage in accordance with LSA-R.S. 22:1295(l)(a)(i). Under these circumstances, by its own terms the coverage requirements of the UM statute were inapplicable to the Gibson policy.

Notwithstanding, and despite the language of the UM section contained in the Gibson policy, the lower courts relied on jurisprudential language holding that “it is well-settled that a person who does not qualify as a liability insured under a policy of insurance is not entitled to UM coverage under the policy” as a basis for finding that there was no UM coverage for the accident at issue under the Gibsons’ Allstate policy. See Green v. Johnson, 13-0103 at p. 6. However, this quoted language first appeared in Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 196, in a discussion concerned with whether UM coverage was statutorily mandated in a case in which the policy at issue did not contain express contractual UM coverage. Thus, the Magnon holding, because it discussed statutorily-mandated UM coverage, is not examined at the outset when the automobile insurance policy at issue contains express contractual UM coverage, absent some contention that the contractual coverage runs afoul of the UM statute. Courts begin their analysis of an insurance contract by examining the words of the insurance contract itself. ■ See Sims v. Mulhearn Funeral Home, Inc., 956 So.2d at 589.

In Magnon v. Collins, the plaintiff/tort victim sought UM coverage under his employer’s commercial general liability policy (“CGI”), which included |7limited automobile liability coverage for non-owned and hired vehicles; the CGI policy did not contain either express UM coverage or a rejection of UM coverage. Because the tort victim in Magnon was an employee of the policyholder and was using his own vehicle at the time of the accident, and the CGI policy expressly excluded, as insureds, the policyholder’s employees while using their own vehicles, no coverage was found under the CGI policy for the plaintiff/tort victim’s injuries. The Magnon court then examined the requirements of the UM statute to determine whether the tort victim was entitled to statutory UM coverage, in the absence of express contractual coverage. No statutorily-mandated UM coverage was found to be required, as the court reasoned that UM coverage was mandated by statute only for “an ‘insured’ under auto liability coverage.” Magnon v. Collins, 739 So.2d at 196.

Ergo, the quoted statement of law, taken from Magnon, was intended to convey only that, in order for a tort victim to be entitled to statutory UM coverage, which would be an implied amendment to an automobile liability policy not expressly containing such coverage, the tort victim seeking UM coverage must qualify as a liability insured under the policy at issue. Also considering CGI policies, Succession of Fannaly v. Lafayette Insurance Company, 01-1355 (La.1/15/02), 805 So.2d 1134, and Carrier v. Reliance Insurance Company, 99-2573 (La.4/11/00), 759 So.2d 37, ruled in accordance with Magnon v. Collins. Significantly, in Carrier, this court stated: “Plaintiff obviously would be entitled to recovery against [the defendant/insurer] if he qualified under the ‘Who is an Ijnsured’ provision of the UM coverage.” See Carrier v. Reliance Insurance Company, 759 So.2d at 41.

The holding of Magnon v. Collins, that “a person who does not qualify as a liability insured under a policy of insurance is not entitled to UM coverage under the policy,” was also quoted in Filipski v. Imperial Fire & Casualty Insurance Company, 09-1013 (La.12/1/09), 25 So.3d 742, and Cadwallader v. Allstate Insurance Company, 02-1637 (La.6/27/03), 848 So.2d 577; albeit, after a determination that no contractual UM coverage was provided in those cases.

In Filipski, the plaintiffitort victim was the subject of an “Exclusion of Named Driver Endorsement” to the automobile insurance policy at issue, which resulted in a contractual agreement between the policyholder and his insurer that there would be no coverage under the policy while the insured vehicle was being driven by the plaintiff, as authorized by LSA-R.S. 32:900(L); therefore, no UM coverage was found to be available under the policy for the plaintiff.

In Cadwallader, the plaintiffs sought UM coverage for the policyholder’s resident foster children, who had sustained injuries while riding in a non-owned vehicle. The policy at issue in that case provided UM coverage only for the policyholder or her “resident relatives,” when occupying an uninsured auto. The foster children, who were in the custody of the Department of Social Services, which contracted with the foster parent to provide care for the children, were not found to be “relatives” of the policyholder and, therefore, they were not entitled to UM coverage under her automobile liability policy. See Cadwallader v. Allstate Insurance Company, 848 So.2d at 582-83.

In so holding, this court recognized that the UM statute only mandates that an automobile liability policy provide UM coverage for its named insureds. See Cadwallader v. Allstate Insurance Company, 848 So.2d at 583-84. Moreover, Cadwallader went on to point out that, in the absence of a conflict with statutes or 13with public policy, insurers have the same rights as do individuals to limit their liability and to enforce whatever conditions they impose upon their obligations, stating, “It is the particular insurance policy of the insured that establishes the limits of liability and it is well established that this contract of insurance is the law between the parties.” Id. at 583. When the contract of insurance is clear and unambiguous, the policy must be enforced as written. Id. Thus, we conclude that, even when an insurer is not required by law to provide UM coverage, it is nevertheless free to contract to do so.

When the existence of UM coverage under a policy of automobile insurance is at issue, Magnon v. Collins, Succession of Fannaly v. Lafayette Insurance Company, Filipski v. Imperial Fire & Casualty Insurance Company, and Cadwallader v. Allstate Insurance Company demonstrate a two-step analysis: (1) the automobile insurance policy is first examined to determine whether UM coverage is contractually provided under the express provisions of the policy; (2) if no UM coverage is found under the policy provisions, then the UM statute is applied to determine whether statutory coverage is mandated. See also Bernard, v. Ellis,, 11-2377 (La.7/2/12), 111 So.3d 995, 1000 (recognizing that an automobile insurance policy must first be examined for contractual UM coverage, and if contractual coverage is absent, “if a plaintiff is insured under the auto liability coverage, he is entitled to UM coverage” (citing Magnon v. Collins and Filipski v. Imperial Fire & Casualty Insurance Company)).

As required by the first step in this two-step analysis, we turn now to an examination of the UM coverage expressly provided in the Gibsons’ Allstate policy to determine whether contractual UM coverage existed for the accident at issue in this case.

In support of her claim of UM coverage for Mr. Peterson’s accident, the plaintiff in this case relies on “Part V” of the Gibsons’ Allstate policy, entitled 1^“Uninsured Motorists Insurance,” which provided, in pertinent part, as follows:

We will pay those • damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of:
(1) bodily injury sustained by an insured person, and
(2) property damage to your insured auto....
Bodily injury or property damage must be caused by accident and arise out of the ownership, maintenance, or use of an uninsured auto. We will not pay any punitive or exemplary damages.
Insured Persons
(1) You and any resident relative.
(2) Any person while in, on, getting into or out of an insured auto with your express or implied permission.
Any other person who is legally entitled to recover because of bodily injury to you, a resident relative, or an occupant of your insured auto with your express or implied permission.
An insured auto is a motor vehicle:
(1) described on the Policy Declarations. This includes the motor vehicle you replace it with.
(2) you become the owner of during the premium period. This additional motor vehicle will be covered if we insure all other private passenger motor vehicles you own. You must, however, tell us within 60 days after you acquire the motor vehicle. You must pay any additional premium.
Definitions
(3) Motor Vehicle — means a land motor vehicle or trailer other than:
a) a vehicle or other equipment designed for use off public roads, while not on public roads,
b) a vehicle operated on rails or crawler-treads, or
c) a vehicle when used as a residence or premises.
(5) You or Your — means the policyholder named on the Policy Declarations and that policyholder’s resident spouse.

Under these express contractual UM provisions, Dave Peterson would meet the definition of an “insured person” since he was a’“person while in, on, getting into or out of an ‘insured auto’ with [the policyholder’s] express or implied | ^permission.” Further, the eo-owned motorcycle would qualify as an “insured auto” for purposes of UM coverage since it was a “land motor vehicle.”

In support of its claim that there was no UM coverage for the instant accident, Allstate points to the limited . definition of “auto” in “Part I” of the Gibsons’ Allstate policy, entitled “Automobile Liability Insurance,” which provided, in pertinent part, as follows:

We will pay those damages which an insured person is legally obligated to pay because of:
(1) bodily injury, sustained by any person, and
(2) damage to, or destruction of, property.
Under these coverages, your policy protects an insured person from claims for accidents arising out of the ownership, maintenance or use, loading or unloading of an insured auto.
Insured Persons
(1) While using your insured auto:
a) you,
b) any resident, and
c) any other person using it with your express or implied permission.
Insured Autos
(1) Any auto described on the Policy Declarations. This includes the four wheel private passenger auto or utility auto you replace it with.
(2) An additional four wheel private passenger auto or utility auto you become the owner of during the premium period. This auto will be covered if we insure all other private passenger autos or utility autos you own. You must, however, tell us within 60 days of acquiring the auto. You must pay any additional premium.
* * *
Definitions
(2) Auto — means a land motor vehicle designed for use on public roads.
(6) You or Your — means the policyholder named on the Policy Declarations and that policyholder’s resident spouse.

The primary distinction between the UM provisions and the liability provisions vis-a-vis coverage for the instant accident is that the UM provisions 112included within the definition of “insured auto,” for coverage as an after-acquired vehicle, a “land motor vehicle,” which would 'encompass a motorcycle, while the liability provisions included within the definition of “insured auto,” for coverage as an after-acquired vehicle, only a “four wheel” auto, which would exclude liability coverage for a motorcycle. We conclude the former policy provisions are applicable herein, rather than the latter.

An insurance contract is to be construed as a whole and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions. Neither should an insurance policy be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Sims v. Mulhearn Funeral Home, Inc., 956 So.2d at 589.

When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and courts must enforce the contract as written. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms. The rules of contractual interpretation simply do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clarity the parties’ intent. Id.

We find no ambiguity in the Gibson policy; the parties clearly intended to extend greater UM coverage to after-acquired vehicles, by defining an “insured auto” to encompass any “land motor vehicle” (with only three listed exceptions), | iSthan for liability coverage, which was limited to “four wheel” autos. The inclusion in the policy of differing definitions for “insured auto” in differing coverage sections produced no absurd consequences, and the policy must be applied as written. See LSA-C.C. art. 2046 (“When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.”); Sims v. Mulhearn Funeral Home, Inc., 956 So.2d at 589.

Considering that the co-owned motorcycle fell within the definition set forth in the Gibson policy’s UM coverage provisions, as a “land motor vehicle,” and the motorcycle was acquired by the Allstate policyholder (Gibson) within the requisite sixty-day time period, the motorcycle could be considered an insured motor vehicle for purposes of UM coverage. Further, it was uncontested that Dave Peterson was operating the motorcycle with the permission of Mr. Gibson. Therefore, under the contractual UM provisions, Mr. Peterson’s accident could not be excluded from UM coverage under the Gibson policy, on the basis alleged in Allstate’s 2012 motion for summary judgment. Because there was express contractual UM coverage in the Gibson policy, it was unnecessary for the lower courts to apply the UM statute to determine whether UM coverage was statutorily mandated, thus the second prong of the two-part inquiry demonstrated in the Magnon v. Collins line of cases should not have been reached in this case.

In this case, Allstate, as the mover, was required to show that it was entitled to summary judgment as a matter of law, as set forth in LSA-C.C.P. art. 966(B)(2). Allstate failed to show that UM coverage was excluded under its policy provisions; therefore, summary judgment was inappropriate.

| Ulssue First Raised at Oral Argument

During oral argument before this court, counsel for Allstate argued, in addition to the contentions it presented in brief to this court, that coverage to Mr. Peterson was excluded under its policy provisions because the motorcycle he was riding at the time of the accident was covered under an American Southern policy, and the Allstate policy allegedly excluded coverage in such a circumstance.

We note that this particular issue was not presented in briefs filed with this court, nor does the appellate court opinion indicate that the issue was raised in that court. Further, counsel for Allstate indicated during oral argument to this court that, as he was not Allstate’s counsel in the district court, he was unsure whether the matter was raised in the district court. However, a review of the record reveals that Allstate’s 2009 motion for summary judgment was, in fact, based on this exact argument, and the 2009 motion for summary judgment was denied by the district court in February, 2012. Allstate did not seek appellate review of the denial of that motion for summary judgment.

Thereafter, in its subsequent April 2012 motion for summary, Allstate- again contended that there was no UM coverage under its policy, arguing that Mr. Peterson did not qualify as an insured under the liability portion of the policy, and, hfiin answer to the plaintiffs plea of res judica-ta (based on the February 2012 denial of Allstate’s motion for summary judgment) to the motion, Allstate specifically stated that it was urging “a different issue of law.” (Underscoring and emphasis original.) In its memorandum in opposition to the plaintiffs plea of res judicata, Allstate further expressly stated that its 2012 motion for summary judgment “raises a completely new issue of law in this case.” Thus, the appellate record does not reflect that the argument previously presented in the 2009 motion for summary judgment (i.e., that the American Southern coverage precluded coverage under the Allstate policy) was re-asserted in the 2012 motion for summary judgment or that Allstate’s 2009 argument served as a basis for the district court’s decision on the 2012 motion for summary judgment.

In the plaintiffs appeal to the court of appeal and subsequent writ of review before this court, the plaintiff has exclusively-sought review of only the 2012 summary judgment in Allstate’s favor. The appellate record, as designated by the | ¶6plaintiff, did not contain the 2009 motion for summary judgment, nor any supporting documents submitted in connection therewith. Notably absent from the appellate record is a copy of the American Southern insurance policy, which formed the basis for Allstate’s policy defense raised in its 2009 motion for summary judgment. Furthermore, at the time that the plaintiff designated the appellate record in the district court, Allstate filed a motion to supplement the appellate record with certain other items appearing in the district court record; however, the 2009 motion for summary judgment, memorandum, and attachments were not among the items sought to be supplemented into the appellate record.

Since appellate review of motions for summary judgment is de novo, an appellate court considers the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits submitted by the parties. Cichirillo v. Avondale Industries, Inc., 04-2894 (La.11/29/05), 917 So.2d 424, 428 n. 7 (citing Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1992)). The failure of Allstate to ensure that the appellate record contains the basis for its 2009 policy defense (i.e. that UM coverage was excluded under its policy because the co-owned motorcycle - was expressly insured by American Southern), re-urged by Allstate at oral argument before this court, precludes review of the issue.

CONCLUSION

As we state herein, a two-step analysis is employed in evaluating whether an automobile insurance policy provides UM coverage: (1) the policy is first examined to determine whether UM coverage is provided under the express 117provisions of the policy; (2) if no UM coverage is found under the policy provisions, then the UM statute is applied to determine whether statutory coverage is mandated. Since the Allstate policy at issue in this case contractually included UM coverage, these express provisions governed whether UM coverage existed for the accident at issue, and statutory UM coverage was not at issue. The lower courts erred in first evaluating the policy for statutorily-mandated UM coverage and holding that there could be no UM coverage absent liability coverage, in disregard of the express contractual coverage provided under the UM portion of the policy. Allstate failed to show on motion for summary judgment that the plaintiff would be unable to establish UM coverage under its policy provisions for the accident at issue. Further, arguments raised at oral argument, not previously briefed and unsupported by the appellate record will not be considered by this court.

DECREE

Accordingly, we reverse the appellate court’s affirmance of the district court’s summary judgment in favor of Allstate Insurance Company, and we remand the matter to the district court for further proceedings.

REVERSED AND REMANDED.

VICTORY, Justice, concurs.

      . Although the motorcycle co-owned by Gibson and Peterson was not expressly listed as an insured vehicle on the Allstate policy issued to Gibson (which listed as insured vehicles only a GMC sport utility vehicle and a Nissan car owned by Gibson and his wife), the Allstate policy contained an after-acquired vehicle provision that covered any auto acquired by the Gibsons during the policy premium period, provided Allstate insured all other private passenger motor vehicles owned by the policyholder, Allstate was notified within sixty days after acquisition of the vehicle, and any additional premium was paid.

      . At the time of the accident at issue herein, July 16, 2007, the UM statute was cited as LSA-R.S. 22:680 (formerly LSA-R.S. 22:1406(D), redesignated as LSA-R.S. 22:680 by 2003 La. Acts, No. 456, § 3); the UM statute was again redesignated as LSA-R.S. 22:1295 by 2008 La. Acts, No. 415, § 1, although no changes were made to the substance of the statute by Act No. 415. For ease of discussion, we will refer to the UM statute by its current designation of LSA-R.S. 22:1295, as there have been no substantive changes to Paragraph (l)(a)(i), at issue herein, since the date of the 2007 accident. We note that 2010 La. Acts, No. 703 made a non-substantive change to Paragraph (l)(a)(i), in changing "herein” to read "in this Section."

      . Paragraph (l)(a)(i) of LSA-R.S. 22:1295 provides:
      The following provisions shall govern the issuance of uninsured motorist coverage in this state:
      (l)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators, of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (l)(a)(ii) of this Section. In no event shall the policy limits of an uninsured motorist policy be less than the minimum liability limits required under R.S. 32:900, unless economic-only coverage is selected as authorized in this Section. Such coverage need not be provided in or supplemental to a renewal, reinstatement, or substitute policy when the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer or any of its affiliates. The coverage provided under this Section may exclude coverage for punitive or exemplary damages by the terms of the policy or contract. Insurers may also make available, at a reduced premium, the coverage provided under this Section with an exclusion for all noneconomic loss. This coverage shall be known as "economic-only” uninsured motorist coverage. Noneconomic loss means any loss other than economic loss and includes but is not limited to pain, suffering, inconvenience, mental anguish, and other noneconomic damages otherwise recoverable under the laws of this state. [Emphasis added.]

      . In the instant case, no issue has been raised by the parties as to whether the express contractual UM coverage met other requirements for UM coverage set forth in LSA-R.S. 22:1295.

      . At all pertinent times the UM statute has required that UM coverage be provided "in not less than the limits of bodily injury liability” by an automobile liability policy “for the protection of persons insured thereunder” unless "any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage.” See LSA-R.S. 22:1295(l)(a)(i).

      . Both Succession of Fannaly and Carrier similarly found no UM coverage under an employer's commercial liability policy, providing limited automobile liability coverage for non-owned and hired vehicles and excluding coverage for the use of employee-owned vehicles, when the tort victims were company employees occupying employee-owned vehicles.

      . See Posey v. Commercial Union Insurance Company, 332 So.2d 909, 912 (La.App. 2 Cir. 1976) ("A motorcycle is clearly a land motor vehicle.”).

      . The motorcycle was purchased on June 30, 2007, within the Gibson policy premium period of February 26, 2007 through August 26, 2007, and the accident occurred on July 16, 2007, sixteen days later.

      . Although the appellate record, which was designated by the plaintiff/appellant in accordance with LSA-C.C.P. art. 2128 for purposes of appeal, does not pontain the 2009 motion for summary judgment filed by Allstate, Allstate points out, in a memorandum in support of its 2012 motion for summary judgment that is contained in the appellate record, the argument it previously made in its 2009 motion for summary judgment: “Allstate as UM insure[r] for Benjamin Gibson first filed a Motion for Summary Judgment arguing that the 60 day after-acquired language in the UM policy does not apply to the motorcycle because Benjamin Gibson and Dave Peterson chose liability and UM insurance with American Southern Home Insurance Company, not Allstate.”

      . The district court’s reasons for denying Allstate's 2009 motion for summary judgment were set forth in the court’s February 13, 2012 minute entry, which stated:
      Allstate has exposure under the UM policy. Even though Benjamin Gibson may not have desired to insure the motorcycle, it appears there may have been coverage under the 60-day acquisition rule. The Court believes there are genuine issues of material fact in dispute that would prevent the granting of the motion for summary judgment; therefore, the Court denies the motion for summary judgment. [Emphasis added.]

      .The district court gave written reasons for granting Allstate’s 2012 motion for summary judgment on August 9, 2012, stating in pertinent part as follows:
      The facts are that Mr. Gibson co-owned a motorcycle with Dave Peterson. Mr. Peterson was killed in an accident involving the motorcycle and a third party. The insurance on the motorcycle was provided by a separate insurer that listed Mr. Peterson and his girlfriend as permissive driver and insured respectively. Plaintiff has sued Allstate as the liability and underinsured motorist carrier for Ben Gibson, who simply signed as co-owner to allow Mr. Peterson to obtain financing.
      Allstate previously filed a motion for summary judgment claiming that the Gibson liability policy did not afford coverage to Peterson. That motion was denied because ... under the Allstate liability policy, Mr. Gibson had a 60 day grace period to add newly acquired vehicles and the accident occurred prior to the running of the 60 days.
      Allstate now argues that there is no coverage under the Gibson UM policy. The court agrees with the defendant that the Allstate UM policy does not provide coverage because Peterson does not qualify as an insured under the liability portion of the policy. It is undisputed that Mr. Peterson was not a named insured under the Gibson liability policy and that he was not a resident of the Gibson household. Therefore, the court agrees that the only way for Mr. Peterson to qualify for UM coverage is if the liability policy also afforded coverage to him and the motorcycle.
      In review of the liability policy, the motorcycle is clearly not covered and in order to be covered under the UM policy one must also be covered under the liability policy. Mr. Peterson was not an insured and the after acquired provisions of the liability policy does not include motorcycles.

      . Generally, a party who is satisfied with a judgment and does not file an appeal or a petition for review is entitled to make any argument, supported by the record, in support of the judgment in his favor. See City of Baton Rouge/Parish of East Baton Rouge v. Myers, 13-2011 (La.5/7/14), 145 So.3d 320, 330 n. 5; Mosing v. Domas, 02-0012 (La. 10/15/02), 830 So.2d 967, 976; Matthews v. Consolidated Companies, Inc., 95-1925 (La. 12/8/95), 664 So.2d 1191, 1191-92 (per curiam); Roger v. Estate of Moulton, 513 So.2d 1126, 1136 (La.1987) (on rehearing). However, "[mjatters dehors the record cannot be considered on appeal.” Wilson v. Wilson, 219 La. 205, 207-08, 52 So.2d 716, 717 (La.1951).


author: PER CURIAM. CLARK, J.,

text:
    In re COMMITTEE ON BAR ADMISSIONS CFN-2792.
    No. 2013-OB-2152.
    Supreme Court of Louisiana.
    Oct. 15, 2014.
    Dane S. Ciolino, for Applicant.
    LA Committee on Bar Admissions, Monique Rene Drake, McGlinchey Stafford, PLLC, Larry Feldman, Jr., New Orleans, LA, for Respondent.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

hThe Committee on Bar Admissions (“Committee”) opposed petitioner’s application to sit for the Louisiana Bar Examination based on character and fitness concerns relating to his prior criminal history and his military disciplinary history. In addition, the Committee cited a finding by the Texas Board of Bar Examiners that petitioner had failed to fully and accurately disclose his criminal and military disciplinary history on his law school application and on his bar application in Texas. We subsequently granted petitioner permission to sit for the bar exam, with the condition that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence.

Petitioner thereafter successfully passed the essay portion of the bar exam, and upon his application, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending petitioner be admitted to the practice of law. Neither party objected to this recommendation; however, on its own motion, this court ordered the matter docketed for oral argument.

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in |2Louisiana.

Accordingly, it is ordered that the application for admission be and hereby is granted.

ADMISSION GRANTED.

VICTORY, Justice, would deny admission.

GUIDRY, Justice, dissents and would deny admission.

CLARK, Justice, would deny admission and assigns reasons.

VICTORY, J., dissents.

_JjI would deny admission.

CLARK, J.,

dissenting.

|,I voted to deny petitioner’s request to sit for the bar exam, I voted to deny petitioner’s application for the appointment of a commissioner, and, for the same reasons, I would deny admission.

Petitioner has a record of both civilian criminal conduct and military criminal conduct. Further, and perhaps more seriously, petitioner shown a pattern of dis: honesty by failing to report his complete criminal history and/or his employment history on his law school admission, his application for admission to the Texas Bar, and his application for admission to the Louisiana Bar.

A license to practice law in Louisiana is a privilege, not a right, and petitioner has shown by his illegal and dishonest conduct that he is not entitled to that privilege. By admitting petitioner to the Louisiana Bar, the Court is lowering the standards demanded of members of the Bar.