author: ORFINGER, J.

text:
    Lisa WRIGHT, Appellant/Cross-Appellee, v. Hendon O. WRIGHT, III, Appellee/Cross-Appellant.
    No. 5D13-460.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2014.

      William S. Graessle, of William S. Graes-sle, P.A., Jacksonville, for Appellant/Cross-Appellee.
    Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, and David A. Garfinkel, of GrayRobinson, Jacksonville, for Appel-lee/Cross-Appellant.
   ORFINGER, J.

The former wife, Lisa Wright, and the former husband, Hendon 0. Wright, III, each appeal from a final judgment of dissolution of marriage addressing equitable distribution, alimony and child support. While the parties raise numerous issues, we find merit in two of the former wife’s challenges, and affirm the remaining issues without comment.

The parties were married for eighteen years. They have four children; three were minors at the time of the final hearing. The former husband is a risk manager with a national bank, while the former wife is a business analyst, with a different national bank. Annually, the former husband earns approximately $177,000, while the former wife earns about $109,000. In the final judgment, the court denied the former wife’s request for permanent alimony, noting that her need for alimony had not been proven. In doing so, the court observed that it “need not address the statutory factors regarding the type and amount of alimony until there is proof produced at trial that there is a need .... ” On appeal, the former wife argues that the trial court erred in denying her permanent alimony when it failed to make the factual findings required by section 61.08, Florida Statutes (2012).

A final judgment awarding or denying alimony must contain findings of fact relative to the specific, non-exhaustive list of factors enumerated in section 61.08(2). See § 61.08(1), Fla. Stat. (2012) (“In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony”). Section 61.08(2), Florida Statutes (2012), mandates that the trial court evaluate any relevant economic factors, including the parties’ earning ability, age, health, education, standard of living during the marriage, value of each party’s estate and contribution to the marriage. See, e.g., Canakaris v. Canakaris, 382 So.2d 1197, 1201-02 (Fla.1980); Roth v. Cortina, 59 So.3d 163, 166 (Fla. 3d DCA 2011); Matajek v. Skowronska, 927 So.2d 981, 986-87 (Fla. 5th DCA 2006); Ryan v. Ryan, 927 So.2d 109, 112 (Fla. 4th DCA 2006); Williams v. Williams, 923 So.2d 606, 608 (Fla. 2d DCA 2006). In conducting the required evaluation, the trial court must make findings of fact regarding each listed factor. Ryan, 927 So.2d at 112. This Court has consistently held that a trial court’s failure to make the findings of fact, as section 61.08 requires, constitutes reversible error. See, e.g., Vitalis v. Vitalis, 799 So.2d 1127, 1131 (Fla. 5th DCA 2001); Hill v. Hooten, 776 So.2d 1004, 1006 (Fla. 5th DCA 2001); Beasley v. Beasley, 717 So.2d 208, 209 (Fla. 5th DCA 1998); Rausch v. Rausch, 680 So.2d 624, 624-25 (Fla. 5th DCA 1996); Brown v. Brown, 626 So.2d 1121, 1122 (Fla. 5th DCA 1993); Miller v. Miller, 625 So.2d 1320, 1321 (Fla. 5th DCA 1993); Moreno v. Moreno, 606 So.2d 1280, 1281 (Fla. 5th DCA 1992). However, omitting these findings is only harmful if their absence impedes appellate review. Williams, 923 So.2d at 608. After a thorough review of the record, we find that is the case here.

The parties’ eighteen-year marriage was a long-term marriage, and therefore, subject to the presumption for permanent, periodic alimony if a need was demonstrated. See § 61.08(4), Fla. Stat. (2012) (defining long-term marriages as “having a duration of 17 years or greater”); McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008) (recognizing eighteen-year marriage as long term); Schomburg v. Schomburg, 845 So.2d 257, 258 (Fla. 2d DCA 2003) (“Because of the long term of the marriage, there is an initial presumption that permanent alimony is proper.”). The former wife may be entitled to permanent alimony, but we are unable to reach that conclusion as a matter of law because the trial court failed to set forth sufficient findings of fact. See Hill, 776 So.2d at 1006. While several of the statutory factors relating to the former wife’s need for alimony can be inferred from the record, the record does not conclusively establish all of them. For example, the record is conflicted as to the parties’ standard of living during the marriage, each party’s physical and emotional condition, the contribution of each party to the marriage, and each party’s responsibility with regard to their minor children. In addition, the record is murky regarding the former wife’s current living expenses and whether her current income is capable of meeting those expenses. Because it is difficult to discern the facts supporting the former wife’s need for alimony, the trial court’s omission of findings confounds meaningful appellate review. In determining the need for alimony, the trial court should be mindful that the former wife is not required to liquidate and deplete her assets to provide for her living expenses. Grill v. Grill, 128 So.3d 683, 684 (Fla. 2d DCA 2013). The primary factor for the trial court to consider is the former wife’s need for alimony and the former husband’s ability to pay. See Kelley v. Kelley, 967 So.2d 924, 926 (Fla. 2d DCA 2006). The trial court should not leave the former wife substantially unable to meet her basic needs, let alone enjoy the standard of living she enjoyed during the marriage, if she can demonstrate a need and the former husband’s ability to pay. McCants, 984 So.2d at 683.

Accordingly, we reverse the final judgment as it relates to the issue of alimony. The parties are entitled to findings, based on the evidence in the record and all of the factors enumerated in section 61.08(2)(a)-(j). See § 61.08(8), Fla. Stat. (2012) (“Permanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of the factors set forth in subsection (2) .... ”); Broemer v. Broemer, 109 So.3d 284, 290 (Fla. 1st DCA 2013) (remanding durational alimony award for additional findings where court failed to address initial rebuttable presumption of permanent alimony arising out of twenty-seven-year long-term marriage); Sellers v. Sellers, 68 So.3d 348, 350-51 (Fla. 1st DCA 2011) (reversing and remanding for trial court to make findings regarding denial of permanent alimony). Because we reverse on the issue of alimony, the court may need to reconsider the child support award if it reaches a different result on this issue. See, e.g., Guobaitis v. Sherrer, 18 So.3d 28, 33 (Fla. 3d DCA 2009) (requiring trial court to reconsider alimony and child support in light of reversal of equitable distribution scheme); Sola v. Sola, 940 So.2d 1206,1207 (Fla. 2d DCA 2006) (urging trial court to reconsider awards of attorney’s fees and child support in light of reduction of alimony award).

The former wife also argues that the final judgment is inconsistent. Ambiguities in a final judgment can require remand for clarification. See, e.g., Salm v. Salm, 975 So.2d 583, 583 (Fla. 4th DCA 2008) (remanding for trial court to clarify ambiguity in final judgment); T.P. v. Dep’t of Children & Families, 954 So.2d 677, 681 (Fla. 5th DCA 2007) (remanding for clarification of inconsistent order). In the in-stant case, the trial court required the former wife to bear the costs of “electric and utilities, cable, internet and telephone services to the marital residence,” while also requiring her to split with the former husband “all utilities and service contracts associated with the marital residence.” Because the judgment requires the former wife to both solely bear and split the enumerated utilities and services, it should be clarified on remand.

The final judgment’s shortcomings can be remedied by adding appropriate findings of fact based on the evidence in the record and clarifying the utilities provisions on remand. To the extent that the parties failed to carry their evidentiary burden on certain issues, they should not be permitted to receive a second opportunity to prove their case. Thus, we remand for the purposes of clarification and making factual findings as to those factors not addressed originally. Vitalis, 799 So.2d at 1133; Parenteau v. Parenteau, 795 So.2d 1124 (Fla. 5th DCA 2001). However, the trial court may, within it broad discretion, reopen the evidence if it deems it necessary to address the issues remanded.

AFFIRMED in part; REVERSED in part; REMANDED.

PALMER and LAWSON, JJ., concur.

      . The findings of fact requirement serves two important purposes. First, it requires the judge to determine what the "facts” of the case actually are. Testimony is not a fact until the trial judge says it is a fact. Second, it permits an appellate court to do a comparable fairness analysis on appeal. Kennedy v. Kennedy, 622 So.2d 1033, 1035 (Fla. 5th DCA 1993).

      . The parties testified that their standard of living during the marriage was substantial, but because the trial court did not make findings describing the standard of living, appellate review has been inhibited. See Ondrejack v. Ondrejack, 839 So.2d 867, 871 (Fla. 4th DCA 2003).

      . We also note that one of the former wife's bases for seeking alimony is the children’s extracurricular activities. The children’s expensive extracurricular activities are a consideration in establishing child support, not alimony. The guideline amount, as determined by section 61.309, presumptively establishes the amount that the court shall order as child support. However, the court may order payment of child support that varies, plus or minus five percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent. In addition, the court may order payment of child support in an amount that varies more than five percent from the guideline amount upon a written finding explaining why the guideline amount is unjust or inappropriate. § 61.309(l)(a), Fla. Stat. (2013).


source: Caselaw Access Project

author: BERGER, J.

license: Public Domain

text:
    Robert Michael PUGLISI, Appellant, v. Teri Anne PUGLISI, Appellee.
    No. 5D12-2572.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2014.

      Kenneth C. Gallagher, Orlando, for Appellant.
    Lisa R. Patten and Jennifer R. Marks, of Patten Durham Law Firm, Orlando, for Appellee.
   BERGER, J.

Former husband, Robert Puglisi, appeals a final judgment awarding section 57.105 fees to the former wife. We reverse.

The current fee award was prompted by cross-motions filed by the parties in 2007 to modify the custody and visitation provisions contained in a final judgment of dissolution dated April 11, 2000. The case was settled immediately prior to the final hearing and the parties orally stipulated to the terms of their agreement on the record in the presence of the judge. The former husband later refused to agree to entry of a final written judgment incorporating these same terms, and filed a motion asking that the oral agreement be set aside and the case proceed to final hearing on grounds that the agreement was not in the best interests of his children. This request was ultimately denied and final judgment was entered in accordance with the stipulated settlement. Thereafter, the former wife asked for and was awarded section 57.105 fees, on the basis there was no justiciable issue of either law or fact in the former husband’s request to set aside the stipulated oral settlement. On the facts of this case, we hold it was error to grant the fees.

Section 57.105, Florida Statutes (2011), authorizes sanctions in the form of attorney’s fees and other expenses if a trial court determines the party or the party’s attorney knew or should have known at the time a claim or defense was presented that the claim or defense “[w]as not supported by the material facts necessary to establish the claim or defense” or “[w]ould not be supported by the application of then-existing law to those material facts.” § 57.105(l)(a)-(b), Fla. Stat. (2011). The purpose of the statute is to “deter meritless filings and thus streamline the administration and procedure of the courts.” Mullins v. Kennelly, 847 So.2d 1151, 1154 (Fla. 5th DCA 2008). The standard of review of a trial court’s order awarding section 57.105(1) attorney’s fees is an abuse of discretion. Lago v. Kame By Design, LLC, 120 So.3d 73, 74 (Fla. 4th DCA 2013); Scott v. Busch, 907 So.2d 662, 665 (Fla. 5th DCA 2005). That is, this Court looks to see if the trial court abused its discretion in finding no justiciable issues of fact or law. Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615, 617 (Fla. 4th DCA 2006). “The trial court’s finding must be based upon substantial competent evidence presented to the court at the hearing on attorney’s fees or otherwise before the court and in the trial court record.” Weatherby Assocs., Inc. v. Ballack, 783 So.2d 1138, 1141 (Fla. 4th DCA 2001).

This case involved a stipulated settlement of the partys’ cross-petitions for modification of custody and visitation. In the usual case, this oral settlement would be considered binding and enforceable in accordance with contract principles, meaning it would be enforceable in the absence of allegations of fraud, deceit, duress, coercion or mutual mistake warranting rescission. See, e.g., Dowie v. Dowie, 668 So.2d 290, 292 (Fla. 1st DCA 1996) (“[A]n oral agreement reached by the parties and announced to the trial court is a fully enforceable settlement agreement.”); Roskind v. Roskind, 552 So.2d 1155, 1156 (Fla. 3d DCA 1989) (enforcing oral settlement stipulation entered into the record, to which wife affirmed her understanding and unequivocally agreed). However, this case involves child custody and visitation issues, which are always subject to the overriding concern of the children’s best interests.

It is well recognized that “[a] court is not bound by an agreement of parents regarding child support, custody, or visitation.” Trang Ngoan Le v. Tung Phuong Nguyen, 98 So.3d 600, 601 (Fla. 5th DCA 2012); see also Lane v. Lane, 599 So.2d 218, 219 (Fla. 4th DCA 1992) (“It is undisputed, and should be indisputable, that a trial court’s responsibility to the child cannot be abdicated to any parent, any expert. That heavy responsibility mandates that a court is not bound by any agreement between parents, nor by the opinions of any expert or group of experts.”). The “best interests” of the child takes predominance over any agreement between the parents and must be independently determined by the trial court. See Feliciano v. Feliciano, 674 So.2d 937 (Fla. 4th DCA 1996) (confirming that trial court is not bound by agreement regarding child support, custody and visitation where it determines that is not in best interests of children); Jones v. Jones, 674 So.2d 770, 774 (Fla. 5th DCA 1996) (reiterating that “best interests of the children are to govern custody decision, regardless of any stipulation between the parties”).

In Jones, this Court remanded for an evidentiary hearing on the children’s best interests where the father moved to set aside a custody stipulation prior to entry of final judgment. This Court explained:

Because the father had, prior to the final hearing, moved the court to set aside the parties’ custody stipulation and the temporary order, the court had an obligation at the final hearing to determine the best interests of the children. Although the court initially approved the agreement, it should have allowed the father to proceed to hearing pre-judgment on his motion to modify the agreement to insure that the children’s best interests were being met. The court’s refusal to do so placed the father in the posture of being a post-judgment mov-ant for modification with the concomitant burden of having to show a substantial change of circumstances in order to prevail. Consequently, the father was prejudiced by having a greater burden than he should otherwise have had. Where a party to an agreement moved to set aside the agreement prior to rendition of the final judgment based on factors showing that the best interests of the children are not met by the agreed-upon arrangement, the court must hold an evidentiary hearing to settle the issue. The best interests of the children are to govern the custody decision, regardless of any stipulation between the parties. See Kennedy v. Kennedy, 583 So.2d 415 (Fla. 5th DCA 1991); Holland v. Holland, 458 So.2d 81 (Fla. 5th DCA 1984); Elebash v. Elebash, 450 So.2d 1268 (Fla. 5th DCA 1984).

Id. at 773-74; see also Wayno v. Wayno, 756 So.2d 1024, 1025 (Fla. 5th DCA 2000) (trial court was not bound to accept a court-approved mediated settlement on the issue of child custody and child support).

Although section 57.105 fees have been awarded where there has been an unjustified refusal to honor the terms of a marital settlement agreement, see Koch v. Koch, 47 So.3d 320 (Fla. 2d DCA 2010), we cannot conclude that former husband’s attempt to set aside the custody agreement prior to issuance of the final judgment, on the basis that the trial court had an independent obligation to determine the children’s “best interests” and repudiate the “preliminary” agreement to the extent it was inconsistent with this standard, warrants such an award. To uphold the award we must determine that the finality of the court-approved oral settlement in this case was so clear that former husband’s attempt to set it aside was the equivalent of bad faith — e.g., it was completely without merit in law and could not be found to be supported by any reasonable argument for an extension, modification or reversal of existing law. See Yakavonis, 934 So.2d at 619 (discussing guidelines for determining when action is frivolous). These standards were not met, requiring that we reverse the award.

REVERSED.

SAWAYA and EVANDER, JJ„ concur.

      . Notably, this is not a case in which the parties agreed that the transcript itself would serve as the final order. It was clear at the hearing that a written order was to be prepared and further, that the judge never addressed the “best interests” issues.


author: GRIFFIN, J.

text:
    RICHARD W. TAYLOR, P.A., Appellant, v. Christopher N. BAVARO, et al., Appellees.
    No. 5D13-1818.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2014.

      Michael S. Tuma, of Michael S. Tuma, P.A., DeLand, for Appellant.
    Paul R. Linder, of Griffin & Linder, P.A., Orlando, for Appellees.
   GRIFFIN, J.

Appellant, Richard W. Taylor, P.A. [“Appellant”], appeals a trial court order dismissing its action against Christopher N. Bavaro, Frank J. Bavaro, Jr. [“Ap-pellees”], and an additional unserved defendant, Sunday A. Stefaniw. Appellant argues that the trial court erred by dismissing its action without allowing it an extension of time to effect service on Stefaniw and by dismissing its action based on the parties’ failure to submit a joint status report.

On December 30, 2011, Appellant filed a complaint against Appellees and Stefaniw. In Appellant’s complaint, it alleged that Appellees and Stefaniw failed to pay attorney’s fees for legal services it rendered on their behalf. In March 2012, Appellees filed an answer and counterclaim against Appellant for legal malpractice. On June 26, 2012, Appellant filed a motion for extension of time to effect service of process on defendant Stefaniw. On July 3, 2012, the trial court granted the motion and gave Appellant an additional sixty days to serve process on Stefaniw. On August 31, 2012, Appellant filed an affidavit of diligent search and inquiry, presumably in preparation for serving Stefaniw by notice. Then, on October 22, 2012, Appellant filed a motion to dismiss Appellees’ counterclaim, but never set the motion for hearing.

Over the next few months, the parties apparently initiated some discovery, but filed nothing with the trial court. As a result, on February 12, 2013, the trial court entered two orders, one requiring submission of a joint status report to be executed by all parties, and the other notifying the parties of the absence of timely service as to Stefaniw. Specifically, the order requiring submission of a joint status report advised the parties that their unexcused failure to submit a joint status report would subject the parties to “appropriate sanctions,” including, but not limited to, dismissal. Using language similar to Florida Rule of Civil Procedure 1.070(j), the notice of absence of timely service ordered:

that if, within thirty (30) days of the date of this order, there is no showing that service was effected within said 120 days [after the filing of the initial pleading], or, alternatively, good cause is not shown in writing as to why such service was not made within said 120 days, this action may be dismissed without prejudice, or any unserved defendant shall be dropped as a party, without further notice or hearing. Any such dismissal shall not be considered to be a voluntary dismissal or operate as an adjudication on the merits as to this action.

Subsequently, the parties filed several discovery-related documents with the trial court, but did not submit a joint status report. Appellant failed to respond to the trial court’s notice of absence of timely service and, thus, did not attempt to show good cause why service on Stefaniw was not timely effected.

On March 20, 2013, thirty-seven days after the trial court entered the two orders, the trial court dismissed Appellant’s action. Specifically, the order stated:

THIS CAUSE came before the court pursuant to Rule 1.070(j), Florida Rules of Civil Procedure. The record of this action does not show service of initial process and initial pleading upon defendants) Sunday A. Stefaniw within 120 days after filing of the initial pleading, and the record does not reflect any order extending the time for service. Notice of the absence of timely service was previously given in the action February 12, 2013, and no good cause has been shown why service was not made within the required 120 days. The court also notes the failure to respond to the court’s order requiring submission of status report dated February 12, 2013. The Court must assume Plaintiff has no interest in pursuing this action. Whereupon, IT IS ADJUDGED that this action is dismissed.

Appellant filed a motion for reconsideration and, in support of its motion, explained to the trial court that it had attempted to serve process on Stefaniw twice and would be filing a motion to extend the time for service (which it subsequently did). With respect to Appellant’s failure to submit a joint status report, Appellant explained that “the Joint Status Report was miscalendared ... and therefore there [sic] Plaintiffs response was not timely tendered.” Appellant later amended its motion for reconsideration to assert that, although the notice of absence of timely service was received (and miscalen-dared), neither it nor Appellees’ counsel had, in fact, received the order requiring submission of a joint status report. Appel-lees also filed a motion for clarification of the dismissal order or, in the alternative, a motion for reconsideration. In their motion, Appellees asked the trial court to clarify whether their counterclaim against Appellant was also dismissed since the order simply states that the “action” is dismissed.

On April 12, 2013, the trial court held a hearing on the parties’ motions. Although Judge Robert K. Rouse, Jr., was the assigned trial judge (and the trial judge who had entered the dismissal order), the hearing was held before Judge Margaret W. Hudson. The record contains no transcript of the hearing, but the parties stipulated to a statement of the evidence, and the trial court approved the statement. The statement of the evidence reflects that the trial court inquired and was told by Appellant’s counsel that the statute of limitations was not an issue. The statement of evidence also reflects that counsel for both Appellant and Appellees represented to Judge Hudson that they did not receive the order requiring submission of a joint status report. In response, Judge Hudson said that she believed the order had been sent; that she personally had knowledge that the judicial assistant for Judge Rouse routinely mails out the judicial mail efficiently; and that the order was not returned in the mail. She also observed that the parties have access to the court’s file by way of the internet and could have found the order there. Even if the order had not been sent, it was the duty of counsel to have reviewed the docket on the internet to find the order.

Judge Rouse entered the written order denying the motions for reconsideration and clarification. The written order recites that the notice of absence of timely service and the order requiring a joint status report were mailed together to counsel in the same envelope, but that fact is not supported by any evidence in the record, except to the extent that they appear on the docket on the same date. The order also recites that both counsel for Appellant and counsel for Appellees agree that they received the notice of absence of timely service, but the record shows that was only acknowledged by Appellant. The order also reiterates that the clerk of court’s docket is available to view online by all parties and their counsel. Finally, the order notes that the statute of limitations in Appellant’s action had not expired.

There are several problems with the dismissal of this action. First, the action against Appellees cannot be dismissed simply because Stefaniw has not been served. See Meadows of Citrus Cnty., Inc. v. Jones, 704 So.2d 202 (Fla. 5th DCA 1998). Appellees suggest in their filings that it was appropriate to dismiss the suit against Appellees because Stefan-iw is an indispensable party to Appellant’s lawsuit, but that issue has never been addressed below or on appeal, and is not self-evident.

Then there is the issue of the failure to timely file the joint status report. It is true that the notation on the orders that copies were sent to both counsel is some evidence that they were sent, and the fact that they were not returned as “undelivered” is some evidence they were received. No mention is made, however, of the fact that, if the joint status order had been received by both counsel, two experienced and reputable attorneys would have had to connive to perpetrate a fraud on the court. The trial court’s opinion that its judicial assistant is efficient does not take us very far, and the trial court’s suggestion that counsel have a continuing duty to monitor the court’s docket as an alternative to service, lest something appear that they were not sent, is wrong. See Courtney v. Catalina, Ltd,., 130 So.3d 739, 740 (Fla. 3d DCA 2014). Additionally, we have the problem that the order does not say that the case was dismissed without prejudice and can be refiled, even though that appears to have been the court’s intent, and there is no explanation of the status of the counterclaim, which appears also to have been dismissed. Given this constellation of problems, we conclude that it was error to issue the appealed order dismissing the action. We, accordingly, reverse and remand. On remand, if the trial court continues to be of the view that dismissal of the action is a suitable remedy for the parties’ failure to comply with the trial court’s joint status report order, that option is not foreclosed to the trial court if the appropriate evidentiary hearing is conducted and appropriate findings are made. See Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993).

REVERSED and REMANDED.

ORFINGER and BERGER, JJ., concur.


author: PER CURIAM.

text:
    Marie MINOR, Appellant, v. Stevelyn YOUNG, Appellee.
    No. 5D12-4219.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2014.
    Micah J. Longo, of Cornell & Associates, P.A., Weston, for Appellant.
    Derek J. Angelí and Matthew J. Haftel, of O’Connor & O’Connor, LLC, Winter Park, for Appellee.
   PER CURIAM.

Marie Minor was injured when she fell through an unfinished attic floor on premises owned by her aunt, appellee Stevelyn Young. Minor, a party guest in Young’s home, had gone to the attic to retrieve an item for Minor’s grandmother. After taking only a few steps in the direction indicated by Young, Minor fell through the attic floor and landed on the garage floor below, injuring her ankle. Minor sued Young for negligently failing to maintain her premises in a reasonably safe condition and for failing to warn Minor of the dangerous condition.

We reverse the summary judgment rendered in favor of Young, concluding, based on the record before us, that disputed issues of fact remain unresolved as to whether Minor knew of the danger, whether the danger was open and obvious, and whether Young knew, or should have known, of the danger and breached the duty to maintain her premises in a reasonably safe condition and warn her invited guest of the danger before she entered the attic. See Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (“Summary judgments should be cautiously granted in negligence and malpractice suits.”); Ciolli v. City of Palm Bay, 59 So.3d 295, 297 (Fla. 5th DCA 2011) (“The party moving for summary judgment has the burden of proving the absence of any genuine issue of material fact and that the movant is entitled to judgment as a matter of law.”); Lomack v. Mamey, 14 So.3d 1090, 1092 (Fla. 1st DCA 2009) (“[A]n invitee’s knowledge of a danger is normally not a complete bar to recovery, but rather only triggers the application of comparative negligence principles.”); Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005) (“[T]he obvious danger doctrine does not apply when negligence is predicated on breach of the duty to maintain the premises in a reasonably safe condition.” (footnote omitted)); Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303, 305 (Fla. 5th DCA 2003) (“[W]e must view the evidence contained in the record, including any properly asserted supporting affidavits, in the light most favorable to the non-moving party, and if the slightest doubt exists, the summary judgment must be reversed.”). We remand this case to the trial court for further proceedings.

REVERSED and REMANDED.

SAWAYA, ORFINGER, and LAWSON, JJ., concur.


author: THOMAS, J.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Kayla Nichole FOSMIRE, Appellee/Cross-Appellant.
    No. 1D13-1532.
    District Court of Appeal of Florida, First District.
    April 22, 2014.

      Pamela Jo Bondi, Attorney General, Jay Kubica, Assistant Attorney General, Tallahassee, for Appellant/Cross-Appellee.
    Edmund D. Quintana, Panama City, for Appellee/Cross-Appellant.
   THOMAS, J.

The State appeals an order granting, in part, Appellee Fosmire’s motion to suppress as it related to three cell phones and evidence contained therein. Fosmire cross-appeals the same order denying, in part, her motion to suppress as it related to a Sony tablet and evidence contained therein. Fosmire also raises an additional issue regarding an unrelated discovery order.

Pursuant to rule 9.140(c)(1)(B) of the Florida Rules of Appellate Procedure, we have jurisdiction to review the trial court’s order granting, in part, Fosmire’s motion to suppress. See Fla. R. App. P. 9.140(c)(1)(B) (2013) (the state may appeal an order “suppressing before trial confessions, admission, or evidence obtained by search and seizure”). Additionally, in accordance with rule 9.140(b)(4), we also have jurisdiction to review Fosmire’s cross-appeal regarding the trial court’s same order denying, in part, her motion to suppress. We are without jurisdiction, however, to review the additional issue raised by Fosmire regarding an unrelated discovery order. See Fla. R. App. P. 9.140(b)(4) (2013) (“Review of cross-appeals before trial is limited to related issues resolved in the same order being appealed.”). Accordingly, we dismiss the portion of Fosmire’s cross-appeal regarding an unrelated discovery order.

Based upon the analysis below, we reverse the trial court’s order suppressing the two cell phones that were not Fos-mire’s property. We affirm without comment the lower court’s order denying Fos-mire’s motion to suppress the Sony tablet.

Discussion

The State, by a third amended information, charged Fosmire with two counts of lewd or lascivious exhibition, four counts of sexual performance by a child, and one count of child abuse. Fosmire filed a motion to suppress all evidence obtained as a result of an allegedly unlawful search and seizure of a Sony tablet and three cell phones located in Fosmire’s home.

A suppression hearing proceeded on Fosmire’s motion. The trial court took judicial notice of evidence, testimony and its previous rulings denying the suppression of the tablet and the three cell phones in co-defendant Nicholas Evans’ case arising out of the same search and seizure. Testimony from the suppression hearing established that on April 28, 2012, the police responded to a domestic violence call placed by Fosmire against Evans, her live-in boyfriend and the father of her child. During their response to the domestic violence call, the police recovered property stolen by Evans, including fishing equipment. Multiple officers testified that Fosmire invited them into the home, gave consent to search the house for stolen property, and was cooperative the entire time the police were in her home. Fos-mire also signed a written statement that stated, “The police got here [and] I gave him permission to search my house for stolen property.”

The police also asserted that Fosmire gave permission to search electronics found in the same room as the stolen fishing equipment to determine whether the serial numbers matched any numbers in a national criminal database for stolen property. An officer testified that when he picked up the Sony tablet to verify the serial number, the home screen to the device became visible, revealing a photo of the stolen fishing equipment. The officer asserted that he did not take any affirmative action to turn on the tablet and claimed that Fosmire gave him permission to look through the tablet for additional pictures related to the stolen property.

While looking through the contents of the tablet, the officer discovered pictures that he perceived to be child pornography, which he described as including photographs of Fosmire, Evans, and their nude child. The police collected the tablet, Fos-mire’s cell phone, and two other cell phones which Fosmire told the officers belonged to Evans. The officers testified that the cell phones were turned off and collected, but were not examined until they obtained a search warrant 19 days later. An officer testified that the only images that produced the charges in this case were collected from the tablet and Evans’ cell phones.

In contradiction to the police officers’ testimony, Fosmire testified at Evans’ suppression hearing that she never gave consent to search anything in her home and specifically denied giving consent to search the tablet, which she claimed she bought for Evans and did not know how to use. Fosmire asserted that the officers were alone in the room with the stolen fishing equipment when they performed the search of the tablet. She also claimed that the police told her “word-for-word” what to write in her written statement regarding giving the officers permission to search.

The trial court entered an order denying Fosmire’s motion as it related to the Sony tablet, but granting the motion as it related to all three cell phones. The court found that the police had been dispatched to Fosmire and Evans’ residence in reference to a report of domestic violence report, Evans was arrested for domestic battery, and Fosmire gave the police permission to search her apartment for suspected stolen fishing equipment. The court found that Fosmire’s consent to search the Sony tablet was voluntary, it was reasonable for the police to rely on Fosmire’s consent to look through the tablet, and concluded that Fosmire had actual authority to consent to the search of the apartment and apparent authority to consent to the search of the tablet, which was not password protected and in plain view with the fishing equipment believed to be stolen.

The court, however, was persuaded that the seizure of the three cell phones from Fosmire’s residence was without warrant or any legal justification. Accordingly, it granted the motion to suppress the three cell phones and any evidence flowing therefrom.

The State asserts that the trial court erred in granting Fosmire’s motion to suppress as it related to two of three cell phones, because Fosmire lacked standing to object to the search and seizure of the two cell phones when she disclaimed ownership. We note that the trial court did not address this specific argument in the order on appeal. We recognize that the trial court may not have even been presented with this argument before it entered the order, as the State first raised this argument in its addendum to its response to Fosmire’s motion to suppress. This addendum does not appear as being filed in the record until three days after the order at issue was entered. Nevertheless, we hold this argument preserved for appeal, because an argument regarding standing to contest the search and seizure of evidence has been subsumed into Fourth Amendment issues and may be raised for the first time on appeal. See State v. Fernandez, 86 So.3d 120, 123 (Fla. 2d DCA 2010); St. John v. State, 400 So.2d 779, 780 (Fla. 1st DCA 1981).

Standing

A defendant who voluntarily abandons property or disclaims ownership lacks standing to challenge its search and seizure. See Mori v. State, 662 So.2d 431, 431 (Fla. 3d DCA 1995); see also State v. Jones, 454 So.2d 774, 776 (Fla. 3d DCA 1984) (holding that “Courts have uniformly recognized that the disclaiming of ownership or knowledge of an item ends any legitimate expectation of privacy in that item.”).

Here, Fosmire does not dispute that she disclaimed ownership in Evans’ two cell phones, but attempts to distinguish this case from the case law above by asserting that the State fails to recognize that no place is afforded more protection under the Fourth Amendment than a person’s home; thus, her expectation of privacy in her home afforded her a possessory interest in Evans’ cell phones. We do not find merit in this argument under the facts of this case.

In Mori v. State, the Third District reviewed a trial court’s denial of the defendant’s motion to suppress a wallet found in the defendant’s home and the evidence that flowed from it. 662 So.2d at 431. The police were called to a reported burglary at both the defendant’s apartment and his adjacent neighbor’s apartment. Id. The defendant was arrested, but maintained that he was the victim, not the perpetrator. Id. Acting on the defendant’s claim, the police officer and the handcuffed defendant entered his apartment to inspect his back door. Id. The officer also asked the defendant for identification and followed him as he proceeded to his bedroom. Id. The officer saw a wallet on the defendant’s dresser and, looking at the defendant, simultaneously opened the wallet while asking if it was the defendant’s property. Id. The defendant immediately denied ownership of the wallet and claimed that it was dropped by the burglar. Id. On appeal, the defendant did not challenge his custodial arrest, and it was undisputed that the police had a lawful right to be inside his apartment. Id. The Third District concluded that “[wjhere a defendant voluntarily abandons property, he thereafter lacks standing to challenge its search or seizure.” Id. (citing State v. Daniels, 576 So.2d 819 (Fla. 4th DCA 1991)).

Here, like Mori, the trial court clearly made a finding that the police had a lawful right to be inside Fosmire’s residence. The trial court found that Fosmire had invited the police into her home, gave consent to search for stolen fishing equipment property, to run serial numbers on the electronics that could have potentially been stolen, and to look at the Sony tablet. Also like Mori, it is undisputed that Fos-mire disclaimed any ownership of two of the three cell phones. Under these circumstance, Fosmire lacked standing to challenge the seizure of Evans’ two cell phones. Accordingly, we reverse the portion of the trial court’s order suppressing Evans’ two cell phones.

AFFIRMED in part, REVERSED in part, and DISMISSED in part.

VAN NORTWICK, J., and NORTON, VIRGINIA, B., Associate Judge, concur.

      . We note that the State did file, on the same date as the order at issue, a "Directions to the Clerk” that noted the State's addendum was filed on the date of the suppression hearing, but the addendum did not appear on "Benchmark.” The State requested that the Clerk make sure its addendum was transmitted on appeal.


text:
    Sharon E. McINTOSH, Appellant, v. CVS PHARMACY and Holiday CVS, LLC/Caremark Corporation/Gab Robbins Gallagher Bassett Services, Inc., Appellees.
    No. 1D13-2397.
    District Court of Appeal of Florida, First District.
    April 22, 2014.
    Bill McCabe, Longwood, and Christopher Puleo, Jacksonville, for Appellant.
    James H. Wyman of Hinshaw & Culbertson, LLP, Coral Gables, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) erred in denying com-pensability of her post-traumatic stress disorder (PTSD). Because the JCC conflated the standard for determining whether a mental or nervous injury arose out of an employment-related accident with whether a mental or nervous injury occurred as a manifestation of a compensable physical injury, we reverse and remand for application of the correct standard. In addition, it is unclear whether the JCC applied the correct standard in determining whether the Employer/Carrier (E/C) was estopped, under section 440.20(4), Florida Statutes (2010), from denying com-pensability of the PTSD. If necessary on remand, this issue should also be reconsidered by the JCC.

Compensability of Claimant’s PTSD

Claimant, a pharmacist, was at work on October 19, 2010, at 3 a.m., when an armed robber entered the store. Claimant was six months pregnant at the time. The gunman ordered Claimant to get down on the floor; Claimant, however, attempted to flee. In this attempt, Claimant fell, landing on her stomach.

The JCC found that Claimant sustained a compensable physical injury to her right knee, albeit a minor one, at the time of the accident for which Claimant received treatment at an emergency room on the date of the accident. The JCC also found Claimant was subsequently diagnosed with PTSD by Dr. Abraham, a psychiatrist authorized by the E/C. The JCC further found that Dr. Abraham causally related the PTSD to the events occurring on October 19, 2010, not to any physical injury suffered on that date. The JCC also found Dr. Kolin, another psychiatrist authorized by the E/C, shared these opinions.

Section 440.093(1), Florida Statutes (2010), the statutory provision applicable here, provides:

A mental or nervous injury due to stress, fright, or excitement only is not an injury by accident arising out of the employment. Nothing in this section shall be construed to allow for the payment of benefits under this chapter for mental or nervous injuries without an accompanying physical injury requiring medical treatment. A physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment shall not be compensable under this chapter.

Section 440.093(2), Florida Statutes (2010), is not applicable here because the relevant mental or nervous injury did not “occur[ ] as a manifestation of an injury compensa-ble under this chapter.”

Section 440.093 was addressed at length by this Court in McKenzie v. Mental Health Care, Inc., 43 So.3d 767 (Fla. 1st DCA 2010). The McKenzie court determined that, with the addition of section 440.093 in 2003, the Legislature described four situations in which mental or nervous injuries may arise in the workplace. Id. at 769. The situation presented under the facts as found here by the JCC most closely parallels the second sentence in section 440.093(1). The McKenzie court determined that:

This second provision recognizes and makes compensable mental or nervous injuries that accompany a separate physical injury serious enough to require medical treatment. Critically important to the interpretation of this provision is the recognition that a workplace accident can cause an employee to suffer both a physical injury and a separate mental or nervous injury. The statute sets conditions regarding standards and proof requirements, but generally if a separate mental or nervous injury occurs at the same time as a physical injury requiring medical treatment, the mental or nervous injury will also be compensable. For example, if an employee, in the course and scope of employment, is sexually assaulted at the workplace and suffers a physical injury that requires medical treatment, the physical injury is certainly compen-sable. See § 440.09, Fla. Stat. (2007). If the employee also suffers a mental or nervous injury separate and apart from the physical injury, the mental or nervous injury would be compensable because it would meet the section 440.09 requirements and also comply with section 440.093(1). In this hypothetical situation, the employee would have simultaneously suffered two compensable workplace injuries: one physical and one mental.

Id. Based on statutory language, as explained by the McKenzie court, the JCC here erred in denying compensability of Claimant’s PTSD based on the finding that no competent substantial evidence established that the PTSD “was the natural or unavoidable result [of Claimant’s] minor physical injuries treated at the emergency room on 10/19/2010.” For this reason, we reverse the appealed order, and remand for additional proceedings.

Application of section M0.20U)

In addition to the foregoing basis for reversal, Claimant also asserts that the JCC applied the wrong legal standard and, thus, erred by concluding the E/C was not estopped by operation of section 440.20(4) from denying compensability of the PTSD. For the reasons that follow, we agree with Claimant’s argument, and direct the JCC to reconsider on remand Claimant’s estop-pel argument, if necessary.

Claimant first sought psychiatric treatment in the summer of 2012 and the E/C authorized an evaluation that took place on July 11, 2012. At that time, Dr. Abraham, the evaluating psychiatrist, determined that Claimant was suffering from PTSD caused by the October 2010 accident and the doctor began a course of treatment, which the E/C paid for. Significantly, the E/C did not deny compensability of Claimant’s PTSD within 120 days from the date that treatment was initially provided for this condition.

Claimant sought compensability of her PTSD independent of her physical injury. It was of no consequence that compensa-

bility was sought long after the date of the accident; the relevant inquiry is whether the E/C denied compensability within 120 days of first providing treatment for the PTSD. See Bynum Transp., Inc. v. Snyder, 765 So.2d 752, 754 (Fla. 1st DCA 2000) (holding section 440.20(4) applies to any claim for compensability of any injury made following date of accident, not just first claim). Thus, the E/C had to deny compensability of the PTSD within 120 days of July 11, 2012, “unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period.” § 440.20(4), Fla. Stat. (2010). It is unclear why the JCC rejected Claimant’s argument that the “120-day pay and investigate rule” as set out in section 440.20(4), precluded the E/C from denying compens-ability of her PTSD as of the March 2013 merits hearing.

If necessary on remand, the JCC should apply the correct analysis and determine whether the E/C timely denied compensa-bility of Claimant’s PTSD or sufficiently demonstrated facts relevant to the issue of compensability that it could not have discovered within the 120 days following its initial provision of treatment for this condition.

REVERSED and REMANDED with directions that the JCC apply the correct standards to determine whether Claimant’s PTSD is compensable.

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


author: CLARK, J.

text:
    William Henry BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1805.
    District Court of Appeal of Florida, First District.
    April 22, 2014.
    Waffa J. Hanania, Office of Regional Conflict Counsel, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Respondent.
   CLARK, J.

Petitioner seeks a writ of prohibition following the trial court’s denial of his pretrial motion to determine immunity from criminal prosecution, pursuant to section 776.032, Florida Statutes. By his own admission at the motion hearing, Petitioner was engaged in the unlawful activity of a sale of a controlled substance when he fled the scene and exchanged gunfire with the buyers as he retreated. One of the buyers was shot and killed, resulting in a charge of murder against Petitioner.

Petitioner’s pre-trial motion sought the statutory immunity provided for in section 776.032(1), Florida Statutes, which provides in pertinent part:

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force .... As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant,

(emphasis added). As the first line of the statute clearly sets out, there are three avenues by which a defendant’s use of force may qualify for the statutory immunity from prosecution: that his or her use of force was permitted by section 776.012; by section 776.013; or by section 776.031. For all three avenues, the 2005 amendments/enactments abolished the duty to retreat if the other statutory justifications for use of force, including deadly force, were met. Of the three avenues for immunity, the use of force as permitted in section 776.013 is the only avenue limited to persons “not engaged in an unlawful activity.”

In this case, Petitioner’s motion in the circuit court specifically sought the immunity provided by section 776.032(1) based on his use of force as permitted in section 776.013(3), Florida Statutes. Whether constrained by the facts or other strategic considerations, he did not allege entitlement to immunity due to his use of force as authorized by either section 776.012 or 776.031. During Petitioner’s pre-trial hearing on his motion to determine immunity, his testimony was undisputed and he admitted that his use of force occurred during, or as he retreated from, a botched illegal drug-sale transaction. The circuit court ruled, and we agree, that under the undisputed facts presented at the motion hearing, immunity under section 776.032(1) was not available to Petitioner on the basis of his use of force as permitted in section 776.013(3). State v. Hill, 95 So.3d 434 (Fla. 4th DCA 2012).

While not raised by Petitioner in this Court or the circuit court proceedings, we note that statutory immunity under section 776.032(1), Florida Statutes, based on the defensive use of force as permitted in sections 776.012(1) and 776.031, is potentially available even to a person engaged in an unlawful activity at the time. See State v. Wonder, 128 So.3d 867 (Fla. 4th DCA 2013); Little v. State, 111 So.3d 214 (Fla. 2d DCA 2013). In order to sufficiently raise a claim for immunity under section 776.032(1), the defendant must identify the particular statutory basis or avenue (section 776.012; 776.013; 776.031; or any combination thereof) upon which he or she relies to justify the force used. The potential for confusion in the absence of such specification is illustrated by the certified conflict and question of great public importance in the Second District’s Little decision and the conflict with the Fourth District’s Hill decision certified in Bragdon v. State, 123 So.3d 654 (Fla. 4th DCA 2013). After alleging the particular statutory basis for a claim of immunity, the defendant must then prove the facts (reasonable belief that such force is necessary, etc.) as required by the statute upon which he or she relies to allow the court to determine whether section 776.032(1) immunity attaches.

Writ DENIED.

THOMAS and ROBERTS, JJ., concur.

      . Section 776.032, Florida Statutes, is one of the statutes created by the 2005 legislation popularly referred to as the "Stand Your Ground law.” Committee Substitute for Committee Substitute for Senate Bill No. 436 (2005) was adopted by the Florida Legislature and published in Chapter 2005-27, Laws of Florida. The bill also created section 776.013 and amended sections 776.012 and 776.031, Florida Statutes. While the phrase "stand his or her ground and meet force with force" does appear in the text of section 776.013(3), chapter 2005-27 did not include the enactment of a title for the legislation. Informal references to the "Stand Your Ground law” lack the precision required for a clear and definite presentation of a legal claim, defense, argument, or ruling pertaining to the current self-defense laws. Because the legislative enactment is now codified in four separate sections of the Florida Statutes, the statutes cross-reference each other by number, and must be applied in relation to each other, the better practice for legal documents is to refer numerically to the particular section of the Florida Statutes at issue, rather than by the imprecise common parlance.

      . Section 776.013(3), Florida Statutes, provides:
      776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.

      (3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.


text:
    Terrance Eugene SHAW, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0078.
    District Court of Appeal of Florida, First District.
    April 22, 2014.
    Matt Shirk, Public Defender, and Tricia Rado, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on November 2, 2012, in Duval County Circuit Court case number 16-2009-CF-008630-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

LEWIS, C.J., PADOVANO and MAKAR, JJ., concur.


text:
    Mark Anthony HOLLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0345.
    District Court of Appeal of Florida, First District.
    April 22, 2014.
    Melissa Montle and Seth E. Miller, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The timely petition seeking a belated appeal of the order denying defendant’s motion for DNA testing rendered on or about January 9, 2012, in Duval County Circuit Court case number 16-1999-CF-5084-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

LEWIS, C.J., PADOVANO and MAKAR, JJ., concur.


text:
    Joseph A. DE COSMO, Petitioner, v. Maureen M. FORST, Respondent.
    No. 1D13-4298.
    District Court of Appeal of Florida, First District.
    April 22, 2014.
    Joseph A. De Cosmo, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner has not demonstrated that the trial court has failed to timely consider and rule upon any pending pleading or motion after having that matter called up for hearing and disposition. Petitioner has therefore failed to demonstrate an entitlement to mandamus relief. See Smartt v. First Union Nat Bank, 771 So.2d 1232 (Fla. 5th DCA 2000). We DENY the petition accordingly.

LEWIS, C.J., PADOVANO and MAKAR, JJ., concur.


text:
    CHOICE PLUS LLC, In re: Estate of Inez Eleanor Rigley, Petitioner, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, BUREAU OF UNCLAIMED PROPERTY, Respondent.
    No. 1D14-0124.
    District Court of Appeal of Florida, First District.
    April 22, 2014.
    Michael Farrar, Miami; and Seann M. Frazier of Parker, Hudson, Rainier & Dobbs, L.L.P., Tallahassee, for Petitioner.
    P.K. Jameson, General Counsel, and Lori Lynn Jobe, Assistant General Counsel, Florida Department of Financial Services, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is DISMISSED as moot. We write, however, to address one of the Department of Financial Services’ arguments made in response to the petition seeking to compel it to determine petitioner’s claim to property filed under section 717.124, Florida Statutes (2013). The Department asserts that mandamus does not lie because petitioner has sought to compel an act that is not ministerial, as the timeframes included within section 717.124(1) are directory rather than mandatory. We disagree. While the Department certainly has the discretion to deny a claim if warranted, the legislature has clearly provided time-frames under which the Department is to act. See § 717.124(l)(c), Fla. Stat. (2013) (“Within 90 days after receipt of the claim, or the response of the claimant or the claimant’s representative to the department’s request for addition information, whichever is later, the department shall determine each claim.”); see also Fla. Caucus of Black State Legislators, Inc. v. Crosby, 877 So.2d 861, 863 (Fla. 1st DCA 2004) (“Because the legislature chose to use the word ‘shall’ ... the Department’s obligations are not discretionary.”).

LEWIS, C.J., PADOVANO and MAKAR, JJ., concur.


author: WETHERELL, J.

text:
    Robert B. LINDSEY, Joseph D. Adams and Mark J. Swee, Appellants, v. CADENCE BANK, N. A., Appellee.
    No. 1D13-4686.
    District Court of Appeal of Florida, First District.
    April 24, 2014.

      David P. Healy of Law Offices of David P. Healy, PLC, Tallahassee, for Appellants.
    H. Matthew Fuqua of Bondurant & Fu-qua, P.A., Marianna, for Appellee.
   WETHERELL, J.

Robert Lindsey, Joseph Adams, and Mark Swee (“the borrowers”) appeal the summary final judgment of foreclosure entered in favor of Cadence Bank, N.A. (“the bank”). The borrowers argue that (1) the trial court erred in granting the bank’s motion for summary judgment because the amended affidavit submitted by the bank to establish the amount due on the loan (a) raised a disputed issue of fact as a result of an internal inconsistency in the affidavit and (b) was based on inadmissible hearsay; and (2) the award of attorney’s fees in the judgment was not supported by competent substantial evidence. We affirm issue (l)(a) without further comment, and for the reasons that follow, we affirm issue (l)(b) and reverse in part and remand with directions on issue (2).

Factual and Procedural Background

In May 2005, the borrowers borrowed $400,000 from the bank and gave the bank a mortgage on a parcel of land in Franklin County as security for the loan. In July 2011, the bank filed a two-count complaint against the borrowers; count I sought to foreclose the mortgage and count II sought a judgment for the amount due on the loan. The bank subsequently filed an amended complaint asserting the same two counts.

The amended complaint alleged that the borrowers defaulted on the loan by failing to make payments when due. The borrowers admitted in their answer that they “have not made certain of the payments that [the bank] has demanded of them,” but they denied the bank’s allegations regarding the amount due on the loan.

The bank filed a motion for summary judgment supported by several affidavits, including the amended affidavits of Cornelia Wiley and Frank Bondurant. Ms. Wiley’s affidavit is pertinent to issue (l)(b) and Mr. Bondurant’s affidavit is pertinent to issue (2).

Ms. Wiley was an assistant vice president with the bank and was responsible for handling the bank’s delinquent loans. Among other things, Ms. Wiley’s amended affidavit attested to the amount due on the borrowers’ loan. The affidavit stated in pertinent part:

I have reviewed the records available to [the bank] reflecting the status of indebtedness due upon the promissory note, mortgage and modification of mortgage .... The records are kept in the normal course of business of the [the bank] and reflect timely recordation of payments made, interest due and other accountings related to the account. The records of the account are maintained in the [the bank]’s computer system which is specifically designed for banking and to track and reconcile accounts such as that of the [borrowers]. The system automatically maintains account balances and each payment that is received from the [borrowers] or anyone else on their behalf is entered into the system by our loan processing center employees. Copies of the relevant portions of these records are attached as Composite Exhibit “A”.
Based upon my review of these records, I have determined that there is presently .due and owing to [the bank] principal in the amount of $366,344.36, interest as of July 31, 2013, in the amount of $64,095.01, and late fees in the amount of $102.53.

Several computer printouts pertaining to the borrowers’ loan were attached to Ms. Wiley’s affidavit.

Mr. Bondurant was one of the attorneys who represented the bank in the trial court. His amended affidavit, dated August 2, 2013, contains a detailed listing of the work he performed and the 28.45 hours he spent on this case from March 2012 through the date of the affidavit. Additionally, under the heading “estimated time to complete,” the affidavit listed 3.5 hours of additional work that Mr. Bondu-rant expected to perform after the date of the affidavit, including drafting the summary final judgment, attending the summary judgment hearing, preparing the notice for the expected public sale of the property, attending the sale, and preparing the certificates of sale and title for the property. The fee award requested by the bank for Mr. Bondurant’s work included all 31.95 hours listed on his affidavit at a rate of $175 per hour.

The borrowers filed a response in opposition to the bank’s motion for summary judgment, along with the transcript of Ms. Wiley’s deposition. The response argued that Ms. Wiley’s amended affidavit was insufficient to establish the amount due on the loan because her deposition testimony showed that she did not have sufficient knowledge of the bank’s computerized loan processing system to establish the foundation necessary to admit the computer printouts she relied on in her affidavit under the business records exception to the hearsay rule. The response also argued that there was no evidentiary basis to award fees for the items listed in Mr. Bondurant’s affidavit under the “estimated time to complete” heading.

The trial court held a hearing on the bank’s motion and, thereafter, entered a summary final judgment foreclosing the mortgage and awarding the bank approximately $452,500. This amount included all of the principal, interest, late charges, and other costs set forth in Ms. Wiley’s affidavit, and all of the attorney’s fees set forth in Mr. Bondurant’s affidavit. The borrowers timely appealed the summary final judgment to this court.

Analysis

Summary judgment is proper “if the pleadings and summary judgment evidence [ie., affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence] on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); see also Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1106 (Fla. 4th DCA 2010). All affidavits in support of a motion for summary judgment “shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Fla. R. Civ. P. 1.510(e).

“The burden is upon the party moving for summary judgment to establish that there is no issue of material fact and that he is entitled to judgment as a matter of law.” Connell v. Sledge, 306 So.2d 194, 196 (Fla. 1st DCA 1975). The opposing party is not required to file a counter-affidavit to defeat the motion, but if the moving party meets its burden of proof, it is “incumbent upon the party against whom the judgment is sought to demonstrate, by affidavit or otherwise, the existence of an issue of material fact in order to avoid having a summary judgment rendered against him.” Id.; see also Landers v. Milton, 370 So.2d 368, 370 (Fla.1979) (“[O]nce [the moving party] tenders competent evidence to support his motion, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist.”).

Issue (l)(b) — Amount of Indebtedness

The assertion in Ms. Wiley’s amended affidavit regarding the amount due on the borrowers’ loan is based solely upon her review of the information in the bank’s computerized loan processing system that is contained in the printouts attached to her affidavit. The printouts are hearsay and, thus, the affidavit cannot support the summary final judgment unless the printouts would be admissible under an exception to the hearsay rule.

The bank contends that the printouts are admissible under section 90.803(6), Florida Statutes, which provides an exception to the hearsay rule for records maintained in the ordinary course of business. For records to be admissible under this exception, the party seeking to introduce the records must show that:

(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was regular practice of that business to make such a record.

Yisrael v. State, 993 So.2d 952, 956 (Fla.2008). Testimony from the person who prepared the record or the custodian of the record is not necessary, but “the witness through whom a document is being offered must be able to show each of the requirements for establishing a proper foundation.” Mazine v. M & I Bank, 67 So.3d 1129, 1132 (Fla. 1st DCA 2011); see also Lassonde v. State, 112 So.3d 660, 663 (Fla. 4th DCA 2013) (explaining that “a qualified person to introduce business records, other than the records custodian, must be a person who, by the very nature of that person’s job responsibilities and training, knows and understands the records sought to be introduced”); cf. Hunter v. Aurora Loan Sens., LLC, 2014 WL 847477 (Fla. 1st DCA Mar. 4, 2014) (finding testimony of employee of loan servicing company insufficient to admit bank’s records showing ownership of the note where employee was not a current or former employee of the bank and lacked knowledge of the bank’s record-keeping procedures).

The borrowers contend that Ms. Wiley was not competent to establish the requisite foundation to admit the computer printouts under the business records exception, and in support of this argument, they rely primarily on Glarum v. LaSalle Bank Nat’l Ass’n, 83 So.Bd 780 (Fla. 4th DCA 2011). In response, the bank relies primarily on Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So.3d 1111 (Fla. 4th DCA 2012). We find the circumstances of this case to be more like Weisenberg than Glarum.

In Glarum, the court found that the affidavit of an employee of the loan servicing company was insufficient to lay the requisite foundation under the business records exception for the loan balance reflected in the company’s computer system because it was clear from the employee’s deposition that he “did not know who, how, or when the data entries were made into [the] computer system.” See 83 So.3d at 782. By contrast, in Weisenberg, the court found that the affidavit of a supervisor for the bank’s servicing agent was sufficient to lay the foundation under the business records exception for the loan balance reflected in the servicing agent’s computer system because the supervisor’s deposition testimony “demonstrated that she was familiar with the bank’s record-keeping system and had knowledge of how the data was uploaded into the system.” See 89 So.3d at 1112.

Here, the summary judgment evidence shows that Ms. Wiley was familiar with how the bank’s computerized loan processing system worked by virtue of her position as an assistant vice president with the bank responsible for handling delinquent loans. For example, she explained in her amended affidavit that the system “automatically maintains account balances and each payment that is received from the [borrowers] or anyone else on their behalf is entered into the system by [the bank’s] loan processing center employees;” and she testified in her deposition that loan payments are entered into the system “as the transaction is happening” and the loan records are updated within 24 hours to reflect the transaction.

The fact that Ms. Wiley testified in her deposition that she did not personally oversee the operation of the computer system, that she was not personally responsible for posting payments to the system, and that she did not know the identity of the particular person who entered each transaction reflected on the printouts attached to her affidavit, does not mean that Ms. Wiley is incompetent to establish a foundation for its admission under the business records exception. Indeed, as the court noted in the Glarum case relied on by the borrowers, “[t]he law does not require an affiant who relies on computerized bank records to be the records custodian who entered or created the data, nor must the affiant identify who entered the data into the computer.” See 83 So.3d at 782 n. 2.

In sum, Ms. Wiley demonstrated a sufficient understanding of the bank’s computerized loan processing system to establish the foundation necessary to admit the printouts attached to her amended affidavit under the business records exception. Accordingly, contrary to the borrowers’ argument, the trial court did not err in relying on Ms. Wiley’s affidavit to establish the amount due on the loan, and because the borrowers did not submit any counter-affidavits or other evidence refuting the assertions in Ms. Wiley’s affidavit, the trial court properly entered summary judgment in favor of the bank.

Issue (2) — Attorney’s Fees

The borrowers also challenge several aspects of the attorney’s fees award in the summary final judgment. We find merit in their argument that there is no competent substantial evidence to support that portion of the award related to the 3.5 hours under the “estimated time to complete” heading in Mr. Bondurant’s amended affidavit. We reject the borrowers’ challenges to other aspects of the fee award without further comment.

The summary judgment evidence submitted by the bank to support the fee award included (1) affidavits from the attorneys who performed the work detailing the tasks performed, the time spent on the tasks, and each attorney’s hourly rate, and (2) an affidavit from an attorney who reviewed the files and time records in this case, was familiar with the experience, reputation, and prevailing hourly rates for the bank’s attorneys, considered the factors contained in the Rules of Professional Responsibility, and provided an opinion as to a reasonable fee for this case. These affidavits provide the requisite evidentiary support for the fee award in this case in all respects, except one: the award of fees for the “estimated time to complete” certain tasks.

This court addressed a similar situation in Monson v. Monson, 712 So.2d 770 (Fla. 1st DCA 1998). The attorney’s fee award in that case was based on an affidavit submitted before the final hearing that included an estimate of the time that would be required for hearing preparation, the final hearing, and post hearing matters. Id. The opposing party objected because the affidavit did not represent actual time. Id. This court reversed, noting that the record substantiated the time actually spent in the final hearing, but not any of the other time set forth in the affidavit upon which the fee award was based. Id.

Here, the bank argues that the record substantiates at least two hours of the 3.5 hours listed under the “estimated time to complete” heading because the summary final judgment has been drafted (1.0 hours), and the hearing has been held and the proof of publication has been filed (1.0 hours). The problem with this argument is that even though the record reflects that these tasks have been completed, it does not reflect whether the tasks took the amount of time estimated in the affidavit or whether the tasks were performed by Mr. Bondurant or someone else in his firm at a lower hourly rate. The same is true of the other tasks listed under the “estimated time to complete” heading; for example, the affidavit estimated that it would take Mr. Bondurant a total of 0.5 hours (at $175 per hour) to draft a certificate of sale and a certificate of title even though these tasks could likely have been performed by a paralegal at a lower hourly rate since there are statutory forms for the certificates. See § 45.031(4)-(5), Fla. Stat.

Accordingly, even though the remainder of the fee award is adequately supported by the record, we agree with the borrowers that there is no competent substantial evidence to support $612.50 (ie., 3.5 hours at $175 per hour) of the award. On remand, the trial court shall reduce the judgment by this amount or, upon the bank’s motion, conduct further proceedings on its request for attorney’s fees for work in the trial court since the date of Mr. Bondu-rant’s affidavit.

Conclusion

In sum, for the reasons stated above, we reverse a portion of the attorney’s fee award in the summary final judgment and remand for entry of an amended judgment consistent with this opinion or, upon the bank’s motion, further proceedings on this issue. We affirm the summary final judgment in all other respects.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

ROBERTS and OSTERHAUS, JJ., concur.


text:
    Steven M. LORD, Appellant, v. SANTA ROSA CORRECTIONAL INSTITUTE/The Division of Risk Management, Appellees.
    No. 1D13-3249.
    District Court of Appeal of Florida, First District.
    April 24, 2014.
    Teresa E. Liles of Smith & Liles, P.A., Pensacola, for Appellant.
    Elizabeth A. Izquierdo and Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) on his motion for employer/carrier-paid (E/C-paid) attorney’s fees. The JCC awarded approximately half of the requested fees. We reverse the exclusion of the remainder of the requested fees, and hold that, because entitlement to fees is tied to the securing of a benefit, the amount of fee for securing any given benefit should include all attorney time reasonably necessary to secure that benefit.

As background, Claimant suffered a compensable injury on September 28, 1999, and the E/C accepted the injury as compensable and authorized Dr. Kalaji to be Claimant’s primary care provider (PCP). Eventually, Dr. Kalaji discontinued seeing workers’ compensation patients, and Claimant requested authorization of a new PCP. The parties mediated the claim on September 12, 2012, and at mediation the E/C agreed to authorize a new PCP, and conceded entitlement to E/C-paid attorney’s fees for securing that benefit. The E/C had trouble finding a doctor who would agree to serve as PCP for Claimant, so Claimant moved to enforce the mediation agreement, which ultimately — after several orders from the JCC — resulted in the E/C’s selecting Dr. VerVoort to be Claimant’s new PCP on December 7, 2012. The JCC did not include the fees incurred between the mediation and the authorization of Dr. VerVoort (except for the time expended on receipt and review of both the mediation report and the order cancelling the pretrial conference and final hearing), and it is these excluded fees which Claimant now seeks.

The JCC reasoned that Claimant was “entitled” to E/C-paid fees for the attorney time expended before the mediation, but not “entitled” to E/C-paid fees for the time expended after mediation because the E/C did not act in bad faith or unreasonably delay the authorization of a new PCP. It was error for the JCC to conceptualize the attorney time as two distinct periods of “entitlement” because all of the fees in dispute were alleged to be associated with a single benefit (authorization of Dr. VerV-oort as the new PCP). This error is not harmless because entitlement to fees for securing that benefit had already been stipulated to. See § 440.34, Fla. Stat. (1999).

The JCC based his ruling largely on Jennings v. National Linen Services, 995 So.2d 1153 (Fla. 1st DCA 2008), which involved the issue of entitlement to an E/C-paid attorney’s fee. In Jennings, the claimant’s pain management physician forewarned the E/C that he was planning to discontinue his practice, but the E/C had difficulty locating a physiatrist to take over claimant’s care. Id. at 1154. In the meantime, the physician continued to furnish care and treatment, uninterrupted, and when the JCC ultimately entered an order authorizing a new physiatrist, the JCC denied E/C-paid attorney’s fees, reasoning that the claimant’s attorney had not secured any benefit not otherwise being provided by the E/C. Id. This court affirmed, explaining that a claimant is not entitled to an E/C-paid fee “unless a JCC first determines the E/C wrongfully refused to furnish benefits to the claimant” and, in that case, there was no such determination because it was undisputed that the E/C provided the claimant all required care and treatment while it searched for a physiatrist to take over his care and the claimant did not allege bad faith, unreasonable delay, or even that the E/C could have acted faster in locating a new physia-trist. Id. at 1155.

Jennings is distinguishable because, here, the question before the JCC was the amount of the attorney’s fee award, not entitlement to a fee. The proper legal test for the amount of fee is whether the attorney time alleged was reasonable and required to secure the benefit. See § 440.34(1), Fla. Stat. (1999) (“a fee ... may not be paid ... unless approved as reasonable”); § 440.34(l)(a), Fla. Stat. (1999) (stating JCC shall consider factors to include “[t]he time and labor required”). The JCC here did not apply that test, which error is likewise not harmless, given that the JCC found Dr. VerVoort was authorized “as a result of’ his orders, which were prompted by Claimant’s motion to enforce, and given this court’s prior analogous holding that a “one-time” change of physician under section 440.13(2)(f), Florida Statutes, has not been authorized until the E/C has named at least one doctor. See Harrell v. Citrus Cnty. Sch. Bd., 25 So.3d 675 (Fla. 1st DCA 2010); see also Great Am. Indem. Co. v. Williams, 85 So.2d 619 (Fla.1956).

We therefore reverse the ruling on appeal, and remand for the JCC to determine what amount of the fees incurred between the mediation and the authorization of Dr. VerVoort was reasonable and necessary for Claimant’s counsel to secure that benefit, and to enter an order accordingly. The remainder of the order is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.


text:
    Kareem X. GOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3157.
    District Court of Appeal of Florida, First District.
    April 24, 2014.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Kareem X. Gough seeks review of his judgment and sentence for second degree murder, asserting that the trial court committed fundamental error by giving the standard jury instruction on the lesser included offense of manslaughter. Because the record reflects that intent was a disputed issue in this case, we reverse and remand for new trial. Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), approved, State v. Montgomery, 39 So.3d 252 (Fla.2010).

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


text:
    Charity April GRICE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6075.
    District Court of Appeal of Florida, First District.
    April 24, 2014.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the May 29, 2012, judgment and sentence, in Escambia County Circuit Court case numbers 2010-5457 CFA and 2011-3493 CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). Upon receipt of the notice of appeal, the clerk of this court is directed to transfer the record on appeal from case number 1D12-3278 into the new appeal.

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.


author: PER CURIAM. CLARK, J.,

text:
    In re Scott M. HAWKINS.
    No. 2014-OB-0195.
    Supreme Court of Louisiana.
    March 14, 2014.
   PER CURIAM.

| ¶ This proceeding arises out of an application for reinstatement filed by petitioner, Scott M. Hawkins, an attorney currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Hawkins, 10-1093 (La. 7/2/10), 38 So. 3d 263, we accepted a petition for consent discipline and imposed a two-year suspension upon petitioner following his guilty plea to two criminal offenses involving battery. Petitioner was also placed on two years of probation, subject to the following conditions:

1. He shall enter into a two-year diagnostic monitoring contract with the Lawyers Assistance Program (“LAP”) to include abstinence from all addictive substances including alcohol. The contract should include random urine drug screens and ETG. Any non-compliance or positive screens should result in a full five-day evaluation.
2. He shall attend regular counseling sessions with an experienced counselor approved by LAP to deal with ongoing personality features, interpersonal relationships, poor judgment, and dimensional personality issues. Quarterly reports on his progress in therapy should be sent to LAP.

Petitioner subsequently filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set |?forth in Supreme Court Rule XIX, § 24(E). The ODC took no position regarding the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

Following the hearing, the hearing committee, recommended that petitioner be reinstated to the practice of law, subject to two years of probation with conditions. Neither petitioner nor the ODC objected to the hearing committee’s recommendation.

After considering the record in its entirety, we will adopt the committee’s recommendation and reinstate petitioner to the practice of law. As found by the committee, the record provides clear and convincing evidence of petitioner’s compliance with the reinstatement criteria. Under these circumstances, petitioner has shown that he possesses the requisite competence, honesty, and integrity to be reinstated to the practice of law. Nevertheless, we find further precautions are warranted to insure that the public will be protected upon petitioner’s return to practice. See Supreme Court Rule XIX, § 24(J).

Accordingly, we will grant the petition for reinstatement and reinstate petitioner to the practice of law, subject to a two-year period of probation with the following conditions:

1. Petitioner shall refrain from all use of alcohol and illegal drugs and refrain from abusing prescription and non-prescription medication;
2. Petitioner shall enter into a new five-year LAP contract;
3. Petitioner shall be subject to random alcohol and drug testing to be conducted under the direction of LAP at petitioner’s cost and expense;
4. A practice monitor shall be appointed by the disciplinary board to monitor petitioner’s law practice, including monitoring for compliance with trust account rules, accounting procedures, law office management procedures, adequate communication with clients, diligence in the representation of [¡¡clients, and otherwise verifying compliance with the Rules of Professional Conduct;
5. Petitioner shall enroll in and successfully complete the Louisiana State Bar Association’s Ethics School;
6. Petitioner must not violate Rules of Professional Conduct throughout the period of his conditional reinstatement; and
7. Should petitioner have a disciplinary complaint lodged against him at any time during the period of his conditional reinstatement, he must promptly and fully cooperate with the ODC’s investigation.

Any failure of petitioner to comply with these conditions may be grounds for immediately placing him in interim suspension.

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that Scott M. Hawkins, Louisiana Bar Roll number 27498, be immediately reinstated to the practice of law in Louisiana, subject to a two-year period of probation with conditions set forth herein. All costs of these proceedings are assessed against petitioner.

GUIDRY, J., would deny.

CLARK, J., dissents and assigns reasons.

CLARK, J.,

dissenting.

hi would deny reinstatement.

Petitioner was charged with two felony crimes against persons, simple rape and second degree battery. Petitioner pled guilty to an amended charge of simple battery, a misdemeanor, in the battery case. Petitioner then pled guilty to an amended charge of second degree battery, a felony, in the rape case, acknowledging that he “did commit a battery by sexual conduct upon [his victim, an employee of his firm].”

A license to practice law in Louisiana is a privilege, not a right, and petitioner has shown by his abhorrent conduct that he is not entitled to that privilege. Further, the Court is reinstating to the Bar a person who has admitted to committing two crimes of violence, one of a sexual nature, conduct we likely would not accept in a new applicant for admission.

By reinstating petitioner to the Louisiana Bar, the Court is lowering the standards demanded of members of the Bar.


author: GUIDRY, J.

text:
    Francis Elaine REAGAN v. The RECREATION AND PARK COMMISSION FOR the PARISH OF EAST BATON ROUGE (BREC).
    No. 2013-CC-2761.
    Supreme Court of Louisiana.
    March 14, 2014.
   In re: The Recreation and Park Commission for the Parish of East Baton Rouge (BREC); — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 605289; to the Court of Appeal, First Circuit, No. 2018 CW 1285.

11 Denied.

VICTORY, J., would grant.

GUIDRY, J., dissents with reasons.

CLARK, J., would grant.

GUIDRY, J.

dissents and would grant the writ.

[ TAlthough the opinion in Broussard v. State, 12-1238 (La.4/5/13), 113 So.3d 175, holds the determination of an unreasonable risk of harm is a question of fact, our jurisprudence does not preclude the granting of a motion for summary judgment in cases where the plaintiff is unable to produce factual support for his or her claim that a thing is unreasonably dangerous. See Pitre v. Louisiana Tech. Univ., 95-1466 (La.5/10/96), 673 So.2d 585.

In the instant case, defendant has presented evidence establishing an absence of factual support for plaintiffs claim that the small crack in the sidewalk was unreasonably dangerous. Plaintiff failed to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof. Therefore, summary judgment in defendant’s favor is mandated.


text:
    Susan CLEVELAND v. IMPERIAL FIRE AND CASUALTY INSURANCE COMPANY.
    No. 2013-C-2795.
    Supreme Court of Louisiana.
    March 14, 2014.
    Rehearing Denied May 2, 2014.
   In re: Cleveland, Susan; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. F, No. 129,314; to the Court of Appeal, First Circuit, No. 2013 CA 0165.

Prior report: 135 So.3d 1176, 2014 WL 998507.

I,WRIT GRANTED IN PART. Insofar as the court of appeal found the foreclosure was not wrongful and reversed the trial court personal damage award without finding manifest error in the trial court ruling, that part of the court of appeal decision is reversed and the trial court damage award is reinstated. Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La.5/5/09), 9 So.3d 815. In all other respects the writ is denied. The case is remanded to the TC for further proceedings.

WEIMER, J., would grant and docket.

CLARK, J., would deny.


text:
    David GUILLOT v. DOLGENCORP, L.L.C.
    No. 2013-C-2953.
    Supreme Court of Louisiana.
    March 21, 2014.
   PER CURIAM.

11 Writ granted. For the reasons assigned by Chief Justice Thibodeaux of the Third Circuit, the judgments of the lower courts are reversed and judgment is rendered in favor of the defendant, Dolgen-corp, L.L.C.

REVERSED AND RENDERED.

JOHNSON, C.J., would deny.

WEIMER, J., would grant and docket.

HUGHES, J., would deny.