author: LEVINE, J. KLINGENSMITH, J.,

text:
    S.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4125.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2015.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

S.S., a child, appeals the order withholding an adjudication of delinquency for resisting arrest without violence. We find that the trial court erred in denying the motion for judgment of dismissal because the police officer who detained appellant was not engaged in the lawful execution of a legal duty due to the fact that the police officer did not have reasonable suspicion that appellant was committing a crime.

Two officers from the Miramar police department responded to a dispatch. Upon arriving at the scene, officers observed a group of juveniles “causing a disturbance across the street from the incident location.” One officer estimated there were about thirty juveniles, and the other officer estimated there were about twenty juveniles. According to one officer, the juveniles, as a group, “were exhibiting hand gestures, aggressive behavior,” “screaming obscenities,” and “cursing across the street.”

When the officers exited their vehicles, about half of the juveniles ran away. One officer told the remaining juveniles to sit on the ground while he conducted an investigation. All of the juveniles complied with the officer except for appellant.

One officer testified that appellant was told to sit on the ground several times but appellant refused. Appellant started to walk away but the officer grabbed appellant’s left bicep in an attempt to have appellant sit on the ground. Appellant pulled away and continued to walk away. The officer grabbed appellant again, • and appellant then pushed the officer and attempted to punch him. The officer gained control of appellant and placed appellant on the ground, where appellant continued to resist. Another officer assisted in restraining appellant.

On cross-examination, the officer admitted he did not see appellant fighting. The officer further admitted that he witnessed only yelling, and that appellant was one of the juveniles taking part in the disturbance by screaming and cursing across the street. The officer testified:

Q You didn’t see [appellant] threatening anyone?
A Actually, I did. She was one— She was involved.
Q Really?
A Yes. She was screaming across the street. She was one of the juveniles taking part in the disturbance.
Q You didn’t see her threatening anyone?
A She was cursing across the street.

The- officer testified that he did not see appellant do anything illegal or criminal apart from the streaming and cursing that was part of the disturbance. The other officer stated on cross-examination that he did not see appellant do anything illegal. Neither officer testified' to any specific words uttered by appellant during the disturbance.

The trial court denied appellant’s motion for judgment of dismissal. The trial court found that the officer was in the lawful execution of a legal duty. The trial court stated that “the officer shows up and actually sees the defendant engaging in the screaming, the cursing, and the yelling. They could be investigating a breach of the peace.” The trial court relied on the disorderly conduct statute, section 877.08, Florida Statutes (2013), by stating, “So, the ‘affect the peace and the quiet of persons who may witness them’ is what I’m going under.” The trial court found appellant guilty. This appeal ensues.

The denial of a motion for judgment of dismissal is reviewed de novo. R.H. v. State, 56 So.3d 156, 157 (Fla. 4th DCA 2011). “If the evidence, taken in a light most favorable to the state does not support a conviction, the motion must be granted. If the state establishes the existence of each element of the crime charged, then the motion must be denied.” Id. (citation omitted).

Section 843.02, Florida Statutes (2013), provides, in pertinent part, that “[w]hoever shall resist, obstruct, or oppose any officer ... in the lawful execution of any legal duty, without offering or- doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree.” In other words, to support a conviction for resisting without violence, the state must prove: “(1) the officer was engaged in the lawful execution of a legal duty; and, (2) the actions of the defendant obstructed, resisted or opposed the officer in the performance of that legal duty.” AW. v. State, 82 So.3d 1136, 1138 (Fla. 4th DCA 2012) (citation omitted).

“In [resisting without violence] cases involving an investigatory detention, it is necessary for the State to prove that the officer had a reasonable suspicion of criminal activity.” A.T. v. State, 93 So.3d 1159, 1160 (Fla. 4th DCA 2012) (citation omitted). Thus, whether the officer was engaged in a lawful duty turns on whether the officer had a reasonable suspicion that appellant had committed, was committing, or was about to commit the act of disorderly conduct when he instructed appellant to sit on the ground. Popple v. State, 626 So.2d 185, 186 (Fla.1993) (To conduct an investigatory stop, a police officer must have “a well-founded, articulable suspicion” “that a person has committed, is committing or is about to commit a crime.”). “Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop.” Fuentes v. State, 24 So.3d 1231, 1234 (Fla. 4th DCA 2009).

Section 877.03, Florida Statutes (2013), which criminalizes breach of the peace and disorderly conduct, provides as follows:

Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree....

To withstand constitutional challenge, in State v. Saunders, 339 So.2d 641, 644 (Fla.1976), the supreme court construed the statute to limit its application to “words which ‘by their very utterance ... inflict injury or tend to incite an immediate breach of the peace,’ or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others.” Id. (citations omitted). In other words, “no words except ‘fighting words’ or words like shouts of ‘fire’ in a crowded theatre fall within its proscription.” Id. (citation omitted).

In C.N. v. State, 49 So.3d 831, 832 (Fla. 2d DCA 2010), the police responded to break up a crowd of juveniles that included the defendant, who was “shouting and using foul language’.’ and who refused to comply with the officer’s orders to leave. The Second District held that the defendant’s actions did not constitute disorderly conduct. Furthermore, because the officer did not have reasonable suspicion that the defendant was committing a crime, the defendant did not commit the offense of resisting without violence. The court noted that “[i]n order to prove disorderly conduct based on words alone, the State must show that the words either caused a crowd to gather, thereby resulting in safety concerns, or that the words incited a crowd to engage in an immediate breach of the peace.” Id. In C.N., there was no evidence of fighting or that the defendant instigated the gathering.

In the present case, although there was testimony that the juveniles were exhibiting “hand gestures” and “aggressive behavior,” this testimony related to the juveniles’ behavior as a group, and not to appellant specifically. Rather, as to appellant, the evidence showed only that appellant engaged in screaming and cursing, which was insufficient to constitute disorderly conduct. Like in C.N., there was no evidence that appellant was fighting or any evidence that appellant instigated the crowd. Because the officer did not have reasonable suspicion that appellant was committing the offense of disorderly conduct, the officer was consequently not engaged in the lawful execution of a legal duty, and thus appellant could not be convicted of the crime of resisting without violence.

Similarly, in A.S.C. v. State, 14 So.3d 1118, 1119 (Fla. 5th DCA 2009), the trial court erred in denying a motion for judgment of dismissal for disorderly conduct where the evidence showed only that the defendant “may have been loud, and she may have been profane, but the record” was “devoid of evidence that her words either incited or were even intended to incite others to breach the peace, or posed an imminent danger to others.” Like in A.S.C., here appellant may have been loud and profane, but the record was devoid of evidence that her words incited or were intended to incite others to breach the peace, or posed an imminent danger to others.

The dissent acknowledges C.N. and A.S.C., but highlights no testimony showing that appellant “caused a crowd to gather, thereby resulting in safety concerns, or .... incited a crowd to engage in an ‘immediate breach of the peace.’ ” Although the officer characterized appellant’s actions as “threatening,” the transcript does not support this characterization. When specifically asked what threatening acts appellant committed, the officer testified only that he saw appellant screaming and cursing. There was no testimony regarding the specific words used by appellant. Although appellant told the officer to “go to hell,” this statement was made only after the officer repeated commands to appellant to sit on the ground. A detention cannot be justified based on statements appellant made after the officer’s commands. Pritchett v. State, 677 So.2d 317, 320 (Fla. 1st DCA 1996). Moreover, there was no evidence in the record that the statement “go to hell” did anything to “incite others to breach the peace” or “posed an imminent danger to others.” A.S.C., 14 So.3d at 1119. The officer did not articulate any objective facts which would establish that appellant made any threats to anyone. See Forman v. State, 128 So.3d 817, 820 (Fla. 2d DCA 2013) (finding that although officer testified appellant was making “furtive movements” which caused the officer to be concerned for his safety, the officer “failed to testify to any objective circumstances that would support a finding that he had a reasonable belief that [appellant] posed a threat to the officers at the scene”).

In sum, because the evidence showed only that appellant engaged in screaming and cursing, and because this is insufficient to constitute disorderly conduct, the trial court erred in denying the motion for judgment of dismissal. As such, we reverse the judgment and sentence.

Reversed.

FORST, J., concurs.

KLINGENSMITH, J., dissents with opinion.

KLINGENSMITH, J.,

dissenting.

I dissent from the majority’s opinion and would affirm the trial court’s order denying the motion for judgment of dismissal and ultimate finding of guilt.

Upon arriving at the scene, the officer testified that he “observed a large group of juveniles, about thirty juveniles, causing a disturbance across the street from the incident location.” While the juveniles as a group, including appellant, were “exhibiting hand gestures, aggressive behavior,” and were “screaming obscenities,” the testimony presented showed that appellant herself was doing more.

After the officer exited his vehicle, half of the juveniles fled in different directions, while the other half remained at the scene. They were told to sit on the ground while he conducted an investigation. This officer did not know if the juveniles were gang members, or whether any weapons were involved. All of the juveniles complied with the request to sit, except for appellant who refused several verbal requests to sit on the ground, stating she didn’t have to listen to the officer, and telling him to “go to hell.” When appellant began to walk away, the officer grabbed her left bicep in an attempt to sit her on the ground. She pushed the officer several times and attempted to punch him in the face. She was eventually placed into custody. Nowhere in the record was there any indication that appellant’s detention was in any way based on statements she made after the officer’s commands.

Based on his independent observation, the investigating officer could have reasonably suspected either a disturbance of the peace had occurred, as was argued in the trial court, or perhaps an assault. See §§ 784.011 & 877.03, Fla. Stat. (2013). Whether or not to bring charges were dependent upon the outcome of any investigation undertaken by the officer. Along with the officer’s observations of the group as a whole and appellant in particular, the officer had reasonable suspicion under the “totality of the circumstances” to believe that a crime was being committed, or about to be committed. Therefore he was engaged in the lawful execution of a legal duty when he detained appellant along with the group of juveniles to pursue an investigation.

The majority appears to conclude that the crime of “disorderly conduct” could not have occurred under these circumstances. However, disorderly conduct can be founded on words alone if the words either caused a crowd to gather, thereby resulting in safety concerns, or if the words incited a crowd to engage in an “immediate breach of the peace.” C.H.C. v. State, 988 So.2d 1145, 1146-47 (Fla. 2d DCA 2008); A.S.C. v. State, 14 So.3d 1118, 1119 (Fla. 5th DCA 2009). Although one officer testified that appellant was screaming and cursing across the street, that officer also testified that she was threatening people. The fact that he did not articulate the precise words used in these threats does not negate the fact that threats were made.

Although the majority states that the officer characterized appellant’s actions as “threatening,” they believe the transcript does not support this characterization. However, when the officer was asked if he saw appellant threatening anyone, he testified, “Actually, I did. She was one — She was involved.” He went on to testify that he saw her “scream” and “curse.” As a result, my colleagues in the majority interpret the officer’s testimony to mean that he did not see appellant do anything illegal or criminal apart from the screaming and cursing that was part of the disturbance. This testimony, as quoted in the majority opinion, was susceptible of differing interpretations. Neither party sought clarification from the officer about appellant’s precise conduct or words. However, his statements that she “screamed” and “cursed” could also be fairly interpreted as merely describing the manner and context in which the threats were delivered, rather than an attempt to define the threats themselves. What is certainly clear is that appellant’s statements were understood by the officer arriving on the scene as “threats,” thus prompting his intervention.

According to the case law relied on by the majority in reaching its decision, C.N. v. State, 49 So.3d 831, 832 (Fla. 2d DCA 2010), appellant’s role in instigating the gathering is a relevant factor to be considered in whether she breached the peace. The only way to make that .determination was by conducting an investigation. These observed threats had the potential of taking her conduct beyond mere words and obscenities and into the realm of unlawful conduct. “[Pjrotected speech can be rendered unprotected by a defendant’s additional physical actions.” Barry v. State, 934 So.2d 656, 658 (Fla. 2d DCA 2006).

Whether the facts as gathered would have been sufficient to secure a conviction on any charges is not the issue here. While the majority highlights the fact that another officer at the scene stated on cross-examination that he did not see appellant do anything illegal, this is not dis-positive of the matter — the other responding officer testified that he did see the appellant engaged in possible illegal conduct, thus creating an issue of fact properly resolved by the trial judge as factfinder. At the very least, the appellant’s observed actions were sufficient to reasonably allow the officer to conduct an investigation at the scene to determine the extent of appellant’s involvement, including whether she was involved in causing the crowd to gather, incited the crowd, or otherwise presented a safety risk. Taken in the light most favorable to the State, these acts were sufficient to conclude that the officer was performing a legal duty during this encounter.

In sum, the observed acts of appellant that resulted in her detention had the potential to meet the criteria for disorderly conduct. Therefore, the officer had the requisite reasonable suspicion to investigate, and was thus performing a legal duty when he sought to obtain appellant’s compliance with his instructions. See E.A.B. v. State, 851 So.2d 308, 311 (Fla. 2d DCA 2003). For these reasons, I would affirm.


source: Caselaw Access Project

author: MAY, J.

license: Public Domain

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, and A.H., A Child, Appellants, v. T.S., The Mother and R.H., The Father, Appellees.
    No. 4D14-3629.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2015.

      Rosemarie Farrell for Department of Children and Families, Orlando, and Alexandra St. Pierre of Juvenile Advocacy Project, West Palm Beach, for A.H., the Child.
    No brief filed on behalf of appellees.
   MAY, J.

The Department of Children and Families (“DCF”) and the child appeal an order dismissing a petition for dependency at arraignment over the objection of both DCF and the child. They argue the trial court committed fundamental error and violated the child’s due process rights by dismissing the petition without notice and an opportunity to be heard. We agree and reverse.

On June 10, 2014, DCF filed a verified shelter petition detailing multiple abuse reports over the previous two months. At the time of the shelter hearing, it was unknown when the child last attended school. A no contact order was in place for the father.

There were no family members with whom the child could reside. DCF transported the child to a shelter from which she absconded. DCF subsequently transported the child to an out-of-county placement; she ran away again. She was still missing at the time of the arraignment.

On June 10, 2014, the trial court held ■ the shelter hearing with DCF, the child protective investigator (“CPI”), and the caseworker present. The trial court found probable cause that reasonable grounds for removal existed “based on the allegations in the verified shelter petition.” It also found that shelter care was necessary and in the best interests of the child because she had been “abused, abandoned, or neglected, or [was] in imminent danger of illness or injury as a result.” The trial court ordered the child to remain in shelter care. The court appointed a guardian ad litem and provisionally appointed an attorney ad litem.

On June 26, 2014, the CPI conducted a pre-disposition study for dependency. The study revealed that the child threatened to run away if placed in foster care. The mother needed to attend drug rehabilitation. The mother did not have a good relationship with her family, but believed she was a good mother. She had been involved with DCF before, but her children were never taken away. The case history included “eighteen prior reports involving family violence, inadequate supervision, physical injury, and substance misuse.” The CPI determined that “[t]here is an imminent risk to the child.”

An arraignment hearing was set for July 2, 2014; DCF filed the dependency petition. The arraignment was reset three times due to DCF’s difficulty in locating and serving both parents. DCF was in the process of conducting a diligent search for the father and attempting to serve the mother at her rehabilitation program. A pick-up order remained outstanding for the child.

On August 27, 2014, the trial court held a fourth arraignment. When the trial court was advised that the parents and the child could not be located, it responded, “Why — -why are we fooling around with it then? Why don’t we just dismiss it? Who cares? They don’t want us, we don’t want them, we got more — she’s 17 years old, when is she going to be 18?” The trial court asked where the mother was located and DCF responded that it had attempted to serve her several times, but the rehabilitation program' would not verify whether the mother was there.

The trial court responded, “I couldn’t care really less about where she is. Where is [the child], that’s who. I don’t care.” After a few people stated that they did not have contact with the child, the following transpired:

[The Court]: Let’s dismiss the case.
[Legal Aid]: Your Honor, we would object—
[Unknown Speaker]: We have a staffing procedure we have to go through before we can do that.
[The Court]: Well, I can dismiss the case. I — case dismissed.
[Legal Aid]: No, Your Honor—
[Unknown Speaker]: We have adopted the pendency [sic] petition at that point. It’s not in the child’s best interest for the case to be dis—
[The Court]: Then you find her and bring her back in and then we’ll do it, okay? Case dismissed. You find her, bring her back in, and we’ll start all over again. Next case.
[Unknown Speaker]: Just we’ll write something up over objection.
[The Court]: All right. Over objection, by all means, over objection.

The hearing took less than three minutes.

The trial court sua sponte dismissed the verified petition for adjudication of dependency, reasoning that, “[t]he child has absconded from [DCF] custody and the location of the parents are unknown. [DCF’s] dependency petition is hereby dismissed over the objection of the Child’s Attorney and [DCF]. The case, including shelter status, is hereby closed and dismissed.” Both DCF and the child moved for rehearing, which the trial court denied. DCF now appeals, joined by the child.

DCF argues the trial court violated its due process rights and those of the child by dismissing the case without notice, a hearing, and the opportunity to present evidence and be fully heard. The child argues the lack of proper notice, coupled with the denial of any meaningful opportunity to be heard and to present evidence, violated her due process rights, constituting fundamental error.

“We review whether a party was denied the opportunity to be heard for abuse of discretion.” C.K. v. Dep’t of Children & Family Servs., 88 So.3d 975, 977 (Fla. 2d DCA 2012).

“All procedures in a dependency case must comport with due process principles.” E.G-S. v. Dep’t of Children & Family Servs., 113 So.3d 77, 79 (Fla. 2d DCA 2013) (citation omitted). When due process is denied, fundamental error occurs. Weiser v. Weiser, 132 So.3d 309, 311 (Fla. 4th DCA 2014) (citation omitted).

Chapter 39 “provide[s] judicial and other procedures to assure due process through which children, parents, ... and other interested parties are assured fair hearings by a ... respected court ... and the recognition, protection, and enforcement of their constitutional and other legal rights.” § 39.001(1X0, Fla. Stat. (2014). Procedural due process requires “ ‘fair notice and a real opportunity to be heard.’ ” C.K, 88 So.3d at 977 (quoting Borden v. Guardianship of Borden-Moore, 818 So.2d 604, 607 (Fla. 5th DCA 2002)).

An arraignment provides the opportunity “for the parent or legal custodian to admit, deny, or consent to findings of dependency alleged in the petition.” § 39.506(l)-(2), Fla. Stat. (2014). Depending on the parents’ response, a disposition hearing will be held within fifteen or thirty days of the arraignment hearing. Id. An adjudicatory hearing is held “no later than [thirty] days after the arraignment.” § 39.507(l)(a), Fla. Stat. (2014).

Here, the arraignment was reset three times. The August 27th notice was for an arraignment. The notice did not provide for an adjudication or disposition of the petition. Neither the child nor DCF was on notice that the case might be dismissed. Neither the child nor DCF was allowed to present evidence or recommend what disposition was in the best interests of the child. Not only was the notice insufficient, there was no meaningful opportunity for either the child or DCF to be heard. See Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla.2001).

Notice and an opportunity to be heard are the hallmarks of due process. Here, that due process was missing. See Dep’t of Children & Families v. K.H., 937 So.2d 807, 808 (Fla. 5th DCA 2006). Both the child’s and DCF’s due process rights were violated. The order of dismissal must be reversed.

DCF also argues the trial court erred in not considering the best interests of the child. We agree. At the heart of all dependency proceedings is the best interests of the child. B.Y. v. Dep’t of Children & Families, 887 So.2d 1258, 1256 (Fla.2004).

“When the court obtains jurisdiction of any child who has been found to be dependent, the court shall retain jurisdiction, unless relinquished by its order, until the child reaches [twenty-one] years of age,” subject to a few exceptions. § 39.013(2), Fla. Stat. (2014). Had the trial court eventually adjudicated the child dependent, it would not have been divested of jurisdiction over the child upon her 18th' birthday, and could provide needed services. Thus, not only did the trial court fail to make a best interests determination, its dismissal was actually adverse to the child’s best interests.

We therefore reverse and remand this case to the trial court to reinstate the petition.

Reversed and Remanded for further proceedings consistent with this opinion.

STEVENSON and KLINGENSMITH, JJ., concur.

      . We have recently been advised that "the mother has consented to the dependency of the child ... with a goal of permanent guardianship." "[B]ecause the issue is important and capable of repetition yet evading review,” a written opinion is warranted. L.M.B. v. Dep’t of Children & Families, 28 So.3d 217, 218 (Fla. 4th DCA 2010).

      . The previous three arraignment hearings were held in front of Judge Kroll, but the fourth was in front of Judge Colton.


author: DAMOORGIAN, C.J.

text:
    Randall S. APPEL, Petitioner, v. Norman BARD and Shirley Bard, Respondents.
    No. 4D14-2061.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2015.

      Esther A. Zaretsky, West Palm Beach, for petitioner.
    Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for respondents.
   DAMOORGIAN, C.J.

Randall S. Appel petitions this Court for a-writ of certiorari, seeking review of an order granting plaintiffs’ motion to compel answers to deposition questions and overruling Fifth Amendment privilege objections. We grant the petition.

Respondents are seeking to execute a domesticated foreign judgment of more than $1 million dollars against Appel. During discovery, Appel invoked the Fifth Amendment privilege against self-incrimination and refrained from answering questions regarding whether he filed tax returns for a span of years. Respondents filed a motion to compel which the trial court granted for years 2005 through 2010.

Appel argues that this was a departure from the essential requirements of law because being forced to admit or deny, under oath, whether he filed his tax returns could be used by the U.S. Department of Treasury against him in a future tax prosecution. Appel also argues that his answers could “evoke a response forming a link in the chain of evidence which might lead to criminal prosecution.” Delisi v. Smith, 423 So.2d 934, 938 (Fla.’ 2d DCA 1982).

“Certiorari will lie to review an order compelling discovery in a civil case over an objection that the order violates the Fifth Amendment privilege against self-incrimination.” Boyle v. Buck, 858 So.2d 391, 392 (Fla. 4th DCA 2003).

When presented with a Fifth Amendment privilege objection, the court “must exercise its discretion and determine whether it is reasonably possible that answers to either interrogatories or deposition questions could evoke a response ‘forming a link in the chain of evidence which might lead to criminal prosecution.’ ” DeLisi v. Bankers Ins. Co., 436 So.2d 1099, 1101 (Fla. 4th DCA 1983) (quoting Delisi, 423 So.2d at 938).

A witness is generally entitled to invoke the Fifth Amendment privilege against self-incrimination whenever there is a realistic possibility that his answer to a question can be used in any way to convict him of a crime. It need not be probable that a criminal prosecution will be brought or that the witness’s ansiver will be introduced in a later prosecution; the witness need only show a realistic possibility that his answer ^will be used against him. Moreover, the Fifth Amendment forbids not only the compulsion of testimony that would itself be admissible in a. criminal prosecution, but also the compulsion of testimony, whether or not itself admissible, that may aid in the development of other incriminating evidence that can be used at trial. See Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).
The privilege is inapplicable only “if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness.” Brown v. Walker, 161 U.S. 591, 597, 16 S.Ct. 644, 647, 40 L.Ed. 819 (1896).

Pillsbury Co. v. Conboy, 459 U.S. 248, 267 n. 1, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983) (J. Marshall concurring) (emphasis added).

In the present case, petitioner has shown a reasonable probability that the information might be used against him in a prosecution for failure to file and failure to pay his taxes. We conclude that he is entitled to relief.

Compelling Appel to answer yes-or-no in response to whether he filed tax returns would be forcing him to admit or deny the very thing the government would be trying to prove in a federal tax prosecution — an essential element of the crime, thus lowering the government’s burden. We disagree with respondents’ contention that because the IRS is already aware of his filing status he should be compelled to answer.

We find that the trial court departed from the essential requirements of law in ordering Appel to respond to the deposition questions regarding whether he filed tax returns for years 2005-2010. We grant the petition, quash the order on review and remand for proceedings consistent with this opinion.

Petition Granted.

STEVENSON and CONNER, JJ., concur.

      . 10.05 FAILURE TO FILE
      10.05 [1] Elements
      To establish the offense of failure to make (file) a return, the government must prove three essential elements beyond a'reasonable doubt:
      1. The defendant was a person required to file a return;
      2. The defendant failed to file at the time required by law; and
      3. The failure to file was willful.
      U.S. Dep’t of Justice Tax Div., Criminal Tax Manual (2012), http://www.justice.gov/tax/ readingroom/2008ctm/CTMChapter I0.pdf (herein DOJ Tax Manual); 26 U.S.C. § 7203; United States v. Hassebrock, 663 F.3d 906, 919 (7th Cir.2011).
      10.06 FAILURE TO PAY
      10.06[1] Elements
      To establish the offense of failure to pay a tax, the government must prove beyond a reasonable doubt that
      (1) the defendant had a duty to pay a tax,
      (2) the tax was not paid at the time required by law, and
      (3) the failure to pay was willful.
      DOJ Tax Manual at 26-27; United States v. Tucker, 686 F.2d 230, 232 (5th Cir.1982); 26 U.S.C. § 7203.

      . The petitioner offers a form of alternate relief which does not appear to have been brought before the trial court. We note that respondents can pursue this alternate relief as offered by the petitioner.


author: PER CURIAM.

text:
    GO REALTY GROUP FL, LLC, Appellant, v. PNC BANK NATIONAL ASSOCIATION, Appellee.
    No. 4D14-2726.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2015.
    David A. Strauss of The Strauss Law Firm, P.A., Fort Lauderdale, for appellant.
    .Heidi J. Weinzetl of Robertson, An-schutz & Schneid, P.L., Boca Raton, for appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Upon appellee’s confession of error, we reverse the trial court’s order dated June 19, 2014, denying appellant’s motion to quash service of process. We remand the case to the trial court and instruct it to quash the subject service of process. With respect to appellant’s motion for attorney’s fees, we grant the motion contingent on appellant prevailing on the merits of the case in the trial court. See Johnson v. Maroone Ford LLC, 944 So.2d 1059, 1061 (Fla. 4th DCA 2006).

Reversed and remanded.

LEVINE, FORST and KLINGENSMITH JJ., concur.


text:
    Jackie R. CAMERON, Husband, Appellant, v. Christine S. CAMERON, Wife, Appellee.
    No. 1D14-1161.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2015.

      J. Rod Cameron of J. Rod Cameron, PL, Pace, for Appellant.
    Ross A. Keene of Beroset & Keene, Pensacola, for Appellee.
   PER CURIAM.

The Former Husband appeals the final judgment dissolving his marriage. In part, he challenges the trial court’s ruling delaying imputed income to the Former Wife for six months. As to this issue, we agree with the Former Husband that no competent, substantial evidence exists to support the trial court’s decision. We reverse on this point and affirm without comment the remainder of the final judgment.

The former spouses, both attorneys, were married just over 400 days, and the marriage produced one minor child. As to the Former Wife’s income, while she did not work during the marriage, she worked during the divorce litigation for four months at an annual income of $70,000. The trial court accepted her testimony that she quit this employment because of professional concerns involving her employer, and determined that the termination was reasonable under the circumstances.

By the time of trial, the Former Wife had found part-time legal work as an attorney on a per-case basis, only getting paid when she made appearances in court or mediation. The trial court attributed the delay in her return to full-time employment to the extensive amount of time she devoted to representing herself in her divorce proceeding. In its final written judgment, the court concluded:

Considering the [Former Wife’s] history of employment, her earning potential, and the fact that she will have substantially more time available to work now that this dissolution proceeding is concluded, the Court finds the [Former Wife’s] income is going to increase, and after a period of six months, the Court imputes income to the [Former Wife] in the amount of $60,000.00 annually.

The Former Husband contends that the trial court’s decision to withhold imputed income to the Former Wife for six months is erroneous given the evidence that the Former Wife was voluntarily underemployed.

“In a dissolution of marriage proceeding, each party’s sources of income and ability to pay are factors to be considered in. determining whether alimony, child support, or attorney’s fees are appropriate, and if so, in what amounts.” Smith v. Smith, 737 So.2d 641, 642 (Fla. 1st DCA 1999). Where a parent is underemployed, the court is required to impute income to that parent unless the lack of employment is the result of the parent’s physical or mental incapacity or other circumstances beyond the parent’s control. § 61.30(2)(b), Fla. Stat. (2011); Hentze v. Denys, 88 So.3d 307, 311 (Fla. 1st DCA 2012). The decision of whether to impute income must be supported by competent, substantial evidence. See Gray v. Gray, 103 So.3d 962, 966 (Fla. 1st DCA 2012).

Here, the record contains no evidence of involuntary únderemployment by the Former Wife for the relevant time period. To the extent that her underemployment was due to her status as a pro se litigant in her own divorce proceeding, there is no evidence that this decision was anything other than a voluntary one on her part, and one that was not due to “physical or mental incapacity or other circumstances” beyond her control. § 61.30(2)(b). Accordingly, we reverse on this point and remand with instructions to impute to the Former Wife income consistent with the guidelines set forth in section 61.30(2)(b), Florida Statutes, and to recalculate the Former Husband’s child support and alimony obligations as necessary.

AFFIRMED in part; REVERSED in part; REMANDED.

ROBERTS, RAY, and MAKAR, JJ., concur.


text:
    Lloyd PHELPS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3887.
    District Court of Appeal of Florida, First District.
    Jan. 27, 2015.
    Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Lloyd Phelps, challenges his convictions and sentences for first-degree murder and evidence tampering and raises three issues on appeal. We find no merit in Appellant’s arguments that the trial court erred in refusing to give his requested jury instruction and in denying his motion for judgment of acquittal on the tampering charge. In his remaining argument, Appellant contends that the trial court erred in calling Johnny Flowers as a “court witness” pursuant to section 90.615(1), Florida Statutes, in light of the 1990 amendment to section 90.608, Florida Statutes, which allows for any party, including the party calling a witness, to attack the witness’s credibility. In essence, Appellant argues that the court witness rule is no longer necessary or appropriate based upon section 90.608. However, our review of the record shows that the primary basis upon which Appellant objected to Mr. Flowers being called as a court witness was that the State improperly relied upon contradictory evidence provided by its other witnesses in representing that it could not vouch for Mr. Flowers’ credibility. Because the specific argument raised on appeal was not argued below, it was not preserved for appeal. See State v. Petroni, 123 So.3d 62, 66 (Fla. 1st DCA 2013) (“To preserve an argument for appeal, an appellant must timely and contemporaneously object at the trial level, on a stated legal basis, and then raise that specific contention again on appeal.”).

Accordingly, we AFFIRM.

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.'

      . Section 90.615(1) provides that a court “may call witnesses whom all parties may cross-examine.” The court witness rule was designed for those instances "where a party cannot vouch for the witness’s credibility, yet the witness’s evidence is so important that the interest of justice demands an evidentiary vehicle to have the person testify.” Shere v. State, 579 So.2d 86, 92 (Fla. 1991).


author: BENTON, J.

text:
    Zairon Jarquis FUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5419.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2015.

      Nancy A. Daniels, Public Defender, and Megan Long,' Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On direct appeal, Zairon Jarquis Fussell contends his conviction for conspiracy to commit aggravated assault with a deadly weapon, in violation of section 777.04(3), Florida Statutes (2012), (but not his conviction for attempted murder) should be reversed on grounds using the conjunction “and/or” in the jury instructions constituted fundamental error. We affirm.

The jury heard evidence that: Mr. Fus-sell and a co-defendant, Robert Morris, quarreled with Micca Gamble, Jacoryana Minnieñeld, Brandon Richardson and Amber Richardson (the movie patrons) in a theater. The argument subsided before the show began but, during the movie, Mr. Morris left the theater for several minutes and returned with something in his hands, then was seen giving Mr. Fus-sell a handgun inside the theater. In the parking lot after the movie, Mr. Fussell pulled a handgun and fired in the direction of at least three of the movie patrons, they testified.

The jury also heard testimony from law enforcement officers that, when Mr. Morris was apprehended soon after the incident, the officers seized a movie ticket stub (which indicated the ticket had been purchased at 10:20 p.m.) and Mr. Morris’s cell phone, which contained a record of a text purportedly sent from Mr. Morris’s phone to Mr. Fussell’s phone at 10:48 p.m., asking, “Do you want me to try to bring it there?” The testimony was that the phone also stored a record of a text apparently sent in response, which said simply, “Yeah.”

Charged with attempted murder in the first degree, Mr. Fussell was found guilty of the lesser included offense of attempted second-degree murder. He was also found guilty as charged of conspiracy to commit aggravated assault, and now appeals only his conviction and sentence for conspiracy to .commit aggravated assault. For the first time on appeal, he argues the trial court committed fundamental error in instructing the jury by using “and/or” between the movie patrons’ names in the conspiracy count.

Jury instructions “are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. To justify not imposing the contemporaneous objection rule, ‘the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991) (citations omitted). By definition, a nonstructural error is not fundamental unless it could have been outcome determinative. An erroneous jury instruction cannot be fundamental unless it pertains to a matter genuinely at issue in the case. See id.. at 645 (“ ‘[Fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.’” (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982))).

The use of “and/or” in jury instructions has been addressed in numerous decisions and condemned in many. But not all “and/ or” cases are alike. The present case involves the trial of a single defendant, and does not present the problems that may and do arise when multiple defendants are charged disjunctively. Cf. Garzon v. State, 980 So.2d 1038, 1043-45 (Fla.2008) (condemning use of “and/or” between the names of three co-defendants); Nicholson v. State, 33 So.3d 107, 111 (Fla. 1st DCA 2010) (“In some contexts such [‘and/or’] instructions pose the risk of misleading the jury to believe it can find one co-defendant guilty based solely on the other co-defendant’s conduct satisfying the elements of the crime.”); Moton v. State, 8 So.3d 483, 485 (Fla. 1st DCA 2009) (concluding use of the “and/or” phrase in the instructions constituted fundamental error because “the jury could have found Mr. Moton guilty on the basis of Mr. Stallworth’s conduct alone”); Green v. State, 996 So.2d 911, 912-13 (Fla. 1st DCA 2008) (concluding that the use of “and/or” between the names of defendants in criminal jury instructions was error).

In the present case, the movie patrons who were allegedly shot at — not multiple defendants — were linked with “and/ or.” This may not be the best practice. See Schepman v. State, 146 So.3d 1278, 1286 (Fla. 5th DCA 2014) (noting that “Florida courts have long condemned the use of the conjunctions ‘and/or’ and ‘or’ to connect multiple defendants or multiple victims within a single criminal charge” and “urg[ing] prosecutors and trial judges to avoid such faulty shortcuts”); Barnett v. State, 121 So.3d 643, 648-49 (Fla. 4th DCA 2013) (cautioning “the State and trial judges about the use of ‘and/or’ in informa-tions and jury instructions” because such use “may create the possibility for non-unanimous verdicts”); Fuller v. State, 942 So.2d 1039, 1039 (Fla. 2d DCA 2006) (concluding the jury instructions were “fundamentally erroneous because they improperly ‘permitted the jury to convict [the defendant] of aggravated assault if one alleged victim was threatened while the other [alleged victim] had a well-founded fear of violence’ ” (citations omitted)). But the defense in the present case cannot be said to have been prejudiced by the prosecutor’s decision to compress what might have been as many as four attempted murder charges into a single charge. Nor did using “and/or” to charge the conspiracy, without specifying which movie patron was (or patrons were) the object of the conspiracy, prejudice the defense here.

In assault cases, the state must prove the victim was in fear. See § 784.011(1), Fla. Stat. (2012) (“An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”). An individual determination is called for as to each alleged victim of assault. See Schep-man, 146 So.3d at 1284 (noting that “the lumping together of multiple victims in a single count with ‘or’ or ‘and/or’ may improperly allow the jury to find a defendant guilty by threatening one victim and causing fear of imminent violence in another victim”).

Under neither count tried below, however, was an individual determination required as to each (or any particular) possible victim. Neither count tried below alleged either simple assault or aggravated assault. One count charged attempted murder and the other charged conspiracy to commit aggravated assault. As charged, Mr. Fussell was guilty of attempted murder (whether he intended to kill one, two, three or four persons), and of conspiracy (whether he agreed to and acted in furtherance of a plan to assault one, two, three or four persons using a firearm). Despite the allegations of multiple possible victims in each count, the state had to prove but a single victim (which did not have to be the same person for both counts).

In short, on the facts of the present case, which of the movie patron(s) — whether as victim(s) of attempted murder or as the target(s) of a conspiracy — was an intended victim (so long as at least one was an intended victim) was not material under the (information and) jury instructions, within the meaning of Delva.

Affirmed.

WOLF and MAKAR, JJ., concur.

      . After Mr. Fussell, the co-defendant, and another companion, Andre O'Neil, took their seats, someone in Mr. Fussell’s group said, "Wait until we get out.”

      . Mr. Fussell was arrested two days after the incident. He acknowledged he was at the theater, but denied shooting. He also indicated that he paid someone all the money he had in his wallet for a ride from Gainesville to Miami that evening.

      . When instructing the jury on the charge of attempted first-degree murder, the jury was instructed on the lesser-included offense of aggravated assault as follows:
      To prove the crime of aggravated assault, the State must prove the following four elements beyond a reasonable doubt. The first three elements define assault: Zairon Fussell intentionally and unlawfully threatened, either by word or act, to do violence to Jacoryana Minniefield and/or Micca Gamble and/or Brandon Richardson and/or Amber Richardson; at the time Zairon Fus-sell appeared to have the ability to carry out the threat; the act of Zairon Fussell created in the mind of Jacoryana Minniefield and/or Micca Gamble and/or Brandon Richardson and/or Amber Richardson a well-founded fear that the violence was about to take place; the assault was made with a deadly weapon.
      On the charge of conspiracy to commit aggravated assault, the jury was instructed:
      To prove the crime of criminal conspiracy to commit aggravated assault, the State must prove the following two elements beyond a reasonable doubt.
      One: The intent of Zairon Fussell was that the offense of aggravated assault with a deadly weapon be committed; two, in order to carry out the intent, Zairon Fussell agreed, conspired, combined or confederated with Robert Morris to cause aggravated assault with a deadly weapon to be committed either by them or one of them or by some other person.
      It is not necessary that the agreement, conspiracy, combination or confederation to commit aggravated assault with a deadly weapon be expressed in any particular words or that words pass between the conspirators. It is not necessary that the defendant do any act in furtherance of the offense conspired. I have previously defined aggravated assault for you.

      .Acquiescence in the giving of a jury instruction, as opposed to an affirmative request for the instruction, does not amount to inviting error and does not preclude relief in the event of fundamental error. Compare Williams v. State, 145 So.3d 997, 1003 (Fla. 1st DCA 2014) (concluding error in jury instructions was not affirmatively waived where "defense counsel did not request the defective instruction” and the "record ... reflected] nothing more than unknowing acquiescence”), with Smith v. State, 76 So.3d 1056, 1058 (Fla. 4th DCA 2011) ("The specific issue of whether 'and/or' was appropriate was extensively discussed between the court and the attorneys, and Smith asked for the instruction that he now claims negated his entire defense.... Where the defendant asks for the instruction that he claims on appeal was erroneous, he cannot raise its error on appeal.”).

      . We have rejected the view that the state must meet both an objective and a subjective standard. See Thomas v. State, 989 So.2d 735, 736 (Fla. 1st DCA 2008) (“In determining whether a victim was put in fear in the course of a taking, the question is whether the circumstances surrounding the incident would cause a reasonable person to be afraid, not whether the victim was actually afraid. See Cliett v. State, 951 So.2d 3, 4 (Fla. 1st DCA 2007).... The facts surrounding the offenses at issue, as testified to by the victim identified in Count I, would cause, as the jury found, a reasonable person to be afraid. As such, it matters not that the victim identified in Count II did not testify.”); see also Johnson v. State, 888 So.2d 691, 693 (Fla. 4th DCA 2004) (noting that “the fact the victim did not testify, and thus could not describe or articulate any such fear,” did not bar a conviction for aggravated assault because the victim may properly be found to have been in fear " ‘[i]f the circumstances are such as would ordinarily induce fear in the mind of a reasonable person'" (citations omitted)).

      . See § 777.04(3), Fla. Stat. (2012) (“A person who agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy....”).


text:
    A. Q., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D14-2630.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2015.
    Amanda E. Heystek of Disability Rights Florida, Inc., Tampa, for Appellant.
    Tracy Cooper George, Chief Appellate Counsel, and Cynthia L. Hain, Assistant General Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED as moot.

PADOVANO, CLARK, and MARSTILLER, JJ., concur.


text:
    David A. BRANNEN, Reta Brannen, Brannen, Inc., BI, LLC, Pensacola Beach, Inc., Pensacola Beach, LLC, Driftwood, LLC, Dune, LLC, and PB Surf, Ltd., Petitioners, v. AMERICAN FIDELITY LIFE INSURANCE COMPANY, Respondent.
    No. 1D14-5676.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2015.
    Robert 0. Beasley and Phillip A. Pugh of Litvak Beasley & Wilson, LLP, Pensacola, for Petitioners.
    No appearance for Respondent.
   PER CURIAM.

Petitioners have failed to demonstrate that any harm caused by the lower tribunal’s order for which they seek review cannot be adequately remedied on plenary appeal after entry of a final order. Accordingly, the petition for writ of certiorari is DENIED. See AVCO Corp. v. Neff, 30 So.3d 597, 601 (Fla. 1st DCA 2010).

PADOVANO, CLARK, and MARSTILLER, JJ., concur.


author: PER CURIAM. GUIDRY, J., CLARK, J.,

text:
    In re COMMITTEE ON BAR ADMISSIONS CFN-958457.
    No. 2014-BA-2447.
    Supreme Court of Louisiana.
    Jan. 9, 2015.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

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

ADMISSION GRANTED.

WEIMER, GUIDRY and CLARK, JJ„ dissent with reasons.

GUIDRY, J.,

dissents.

hi conclude there is insufficient evidence at this time to conclude whether petitioner is qualified to be admitted to the practice of law in Louisiana. It is my position that a commissioner should be appointed, pursuant to Supreme Court Rule XVII, § 9, to take evidence and report to this court as to whether petitioner possesses the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.

CLARK, J.,

dissenting.

hi dissent. I would appoint a commissioner.


text:
    In re COMMITTEE ON BAR ADMISSIONS CFN-761166.
    No. 2014-BA-2423.
    Supreme Court of Louisiana.
    Jan. 9, 2015.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

hAfter reviewing the evidence and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.


text:
    Robin Wright HISER v. Elliot FELL.
    No. 2014-CJ-2336.
    Supreme Court of Louisiana.
    Jan. 9, 2015.
   PER CURIAM.

hAt issue in this child custody case is whether Louisiana has subject matter jurisdiction over the proceedings in light of a prior Texas judgment. The district court denied defendants’s motion to dissolve orders rendered in Louisiana. On original hearing, the court of appeal affirmed the judgment of the district court. However, on rehearing, the majority of the court of appeal, over dissents by two judges, reversed the judgment of the district court and dismissed proceedings in Louisiana based on lack of jurisdiction. This application from plaintiff followed.

It is undisputed Louisiana initially had jurisdiction over this case from its inception in 2007. Although Texas subsequently issued a judgment in the case, the district court concluded Texas court lacked jurisdiction to modify the Louisiana judgment, as Louisiana retained exclusive continuing jurisdiction pursuant to La. R.S. 13:1814. Most significantly, the Texas court expressly declined jurisdiction over this matter once it learned of the existence of the Louisiana proceeding. Under these facts, the district court did not err in denying defendant’s motion to dissolve.

Accordingly, the writ is granted. The judgment of the court of appeal is reversed, and the judgment of the district court is reinstated. The case is remanded to the district court for further proceedings.


text:
    In re Paul Eugene GARDNER.
    No. 2014-OB-2426.
    Supreme Court of Louisiana.
    Jan. 9, 2015.
   ORDER

I,The Office of Disciplinary Counsel (“ODC”) is conducting an investigation into allegations that respondent converted client funds to his own use. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Paul Eugene Gardner, Louisiana Bar Roll number 14279, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Paul Eugene Gardner for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Paul Eugene Gardner shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

FOR THE COURT:

/s/ John L. Weimer Justice, Supreme Court of Louisiana


author: CRAIN, J.

text:
    Delisyee Daggs JUPITER v. Kendrick D. JUPITER.
    No. 2014 CU 0395.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 24, 2014.
    Rehearing Denied Oct. 13, 2014.
    Tonya B. Clark, Felix J. Stemfels, Napo-leonville, Louisiana, Beau S. Brooks, Thi-bodaux, Louisiana, for Plaintiff/Appellee, Delisyee Daggs Jupiter Morris.
    Allen J. Myles, Plaquemine, Louisiana, Sharon D. Williams, Baton Rouge, Louisiana, Joseph R. Casanova, New Orleans, Louisiana, Robert M. Louque, Jr., Thibo-daux, Louisiana, for Defendant/Appellant, Kendrick D. Jupiter.
    Before PARRO, McDONALD, and CRAIN, JJ.
   CRAIN, J.

|?In this domestic proceeding, the father of two minor children appeals a judgment granting joint custody of the children to him and their mother. We dismiss the appeal as untimely.

FACTS AND PROCEDURAL HISTORY

Kendrick D. Jupiter filed a petition seeking sole custody of the two minor children of his former marriage to Delisyee Daggs Jupiter. Following a trial, the trial court signed a judgment on September 26, 2013, granting joint custody to both parents, with Mr. Jupiter designated as the domiciliary parent for one of the children, H.J., and Ms. Jupiter designated as the domiciliary parent for the other child, A.J. Notice of the judgment was mailed to Mr. Jupiter’s counsel on September 27, 2013. On October 21, 2013, Mr. Jupiter filed a “Motion to Set Aside Judgment” asserting that the judgment does not reflect the stipulations of counsel, does not reflect the orders of the trial court, and that “[ojppos-ing counsel did not incorporate our opinions on” the judgment. That motion was set for hearing on December 2, 2013, and then continued to February 24, 2014. The record before this court does not reflect any further activity in connection with that motion.

On November 26, 2013, Mr. Jupiter filed a motion for appeal from the September 26, 2013 judgment. On appeal, Mr. Jupiter asserts that the trial court erred in designating Ms. Jupiter as the domiciliary parent of A.J. and in awarding Ms. Jupiter joint custody of A.J. This court, ex proprio motu, issued a rule to show cause why the appeal should not be dismissed as untimely. Mr. Jupiter did not respond to the rule to show cause.

| .LAW AND ANALYSIS

Appeals from judgments awarding, denying, modifying, or terminating alimony or custody are governed by the provisions of Louisiana Code of Civil Procedure article 3943. Malone v. Malone, 282 So.2d 119, 121 (La.1973). Article 3943 provides, in pertinent part, that an “appeal from a judgment awarding custody, visitation, or support of a person can be taken only within the delay provided in Article 3942.” Article 3942 permits an appeal from a judgment granting or refusing an annulment of marriage or a divorce “only within thirty days from the applicable date provided in Article 2087(A).” Article 2087(A), in turn, provides that the delay for filing a devolutive appeal commences upon the expiration of the delay for applying for a new trial or judgment notwithstanding the verdict or the date of the mailing of the notice of the trial court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict. The delay for applying for a new trial is seven days, exclusive of legal holidays, commencing on the day after the clerk has mailed, or the sheriff has served, the notice of judgment. See La.Code Civ. Pro. art. 1974.

The clerk of court mailed notice of the September 26, 2013 judgment to Mr. Jupiter’s counsel on September 27, 2013, so the deadline for filing a motion for new trial was October 8, 2013. Pretermitting whether Mr. Jupiter’s “Motion to Set Aside Judgment” constitutes a motion for new trial, we find that the filing of that motion did not interrupt the appeal delays, because it was filed on October 21, 2013, well after the applicable deadline for a motion for new trial. An application for new trial does not interrupt the delay for applying for a new trial or the delays for appealing unless the application is timely. Everett v. Baton Rouge Student Housing, L.L.C., 10-0856 (La.App. 1 Cir. 5/6/11), 64 So.3d 883, 886, writ denied, 11-1169 (La.9/16/11), 69 So.3d 1149. Therefore, the 30-day delay for appealing the September 26, 2013 judgment commenced on October 9, 2013, and expired on | November 7, 2013. Mr. Jupiter’s motion for appeal was filed on November 26, 2013, almost three weeks after the expiration of the appeal delay.

An appellant’s failure to file a de-volutive appeal timely is a jurisdictional defect, in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse, revise, or modify a final judgment after the time for filing a devolutive appeal has elapsed. Everett, 64 So.Bd at 886. A court’s lack of jurisdiction can be noticed by the court on its own motion at any time. La.Code Civ. Pro. art. 2162; Everett, 64 So.Bd at 886.

The delays for filing a motion and order of appeal were not interrupted by a timely filed motion for new trial in this ease, and the motion for appeal was filed after the expiration of the applicable delay. Accordingly, this court has no jurisdiction over the appeal of the September 26, 2013 judgment, and we dismiss the appeal. See Haydel v. Pellegrin, 12-1697 (La.App. 1 Cir. 4/26/13), 2013 WL 1791037 (dismissing untimely appeal of custody judgment under Article 3943).

CONCLUSION

For the above reasons, the appeal of the September 26, 2013 judgment is dismissed, and all costs are assessed to Kendrick D. Jupiter.

APPEAL DISMISSED.

      . Pursuant to Uniform Rules — Courts of Appeal, Rule 5-2, we use initials throughout to protect the identity of the minor children.

      . According to the record, the motion for appeal was filed by facsimile transmission, and the original motion was filed thereafter on December 2, 2013. See La. R.S. 13:850.


author: THIBODEAUX, Chief Judge.

text:
    Dione W. DAVID v. Richard G. DAVID.
    No. 14-758.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.
    Rehearing Denied Dec. 30, 2014.

      Ed W. Bankston, Lafayette, LA, for Defendant/Appellant, Richard G. David.
    L.E. “Tony” Morrow, Jr., Law Offices of Tony Morrow, Lafayette, LA, for Plaintiff/Appellee, Dione W. David.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

11 Richard G. David appeals the trial court’s judgment cancelling notices of lis pendens against several properties awarded his former spouse, Dione W. David, in the judgment partitioning their community property. He contends ongoing litigation between the parties renders cancellation of the notices premature. Because the ongoing litigation does not affect title of the properties so as to justify recordation of lis pendens notices, we affirm. We do not consider Mrs. David’s request for sanctions and incidental relief based on her assertion of a frivolous appeal as her Answer to Mr. David’s appeal was untimely.

I.

ISSUE

We shall consider whether the trial court erred in cancelling notices of lis pen-dens in the face of ongoing litigation between the parties.

II.

FACTS AND PROCEDURAL HISTORY

During their thirty-six years of marriage, Richard and Dione David acquired several businesses and pieces of real estate. Following their divorce, the Davids litigated the partitioning of their community property. The resulting judgment awarded Mrs. David several pieces of real estate. Among them were properties located on Cove Row, Prioux Street, Dahlia Street, and Wayne Street. Mr. David appealed the judgment on partition of community property and filed notices of lis pendens on the above named properties. This court amended and affirmed the judgment partitioning community property. Mr. David then sought a 12rehearing, which was denied. Mr. David then filed an application for certiorari review of the judgment with the Louisiana Supreme Court, which was denied.

Mrs. David then filed a motion to cancel the notices of lis pendens attached to the named properties which were awarded to her. At the time of the hearing of her motion, several pieces of litigation were pending: (1) Mr. David’s appeal from a trial court judgment rendered against him for contempt and money damages; (2) Mr. David’s appeal from a trial court judgment dismissing his derivative action against the flower company awarded Mrs. David after the divorce; and (3) Mr. David’s petition to nullify the judgment partitioning the parties’ community property. Additionally, after the hearing on Mrs. David’s motion to cancel the notices of lis pendens, Mr. David filed a motion for a judgment in satisfaction of the equalization amount determined by this court in an earlier appeal. Subsequently, the trial court rendered judgment granting Mrs. David’s motion to cancel the notices of lis pendens. Unsurprisingly, Mr. David appealed.

III.

STANDARD OF REVIEW

This case poses a question of law; accordingly, the appropriate standard of review is de novo. A de novo review simply asks .whether the trial court was legally correct or legally incorrect. Domingue v. Bodin, 08-62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654. “[T]he appellate court assigns no special weight to the trial court.” Id. at 657. Instead, the appellate court reviews the record in its entirety and determines “whether the trial court’s decision was legally correct in light of the evidence.” Id.

_k.iv.

LAW AND DISCUSSION

Mr. David contends the trial court erred in cancelling notices of lis pendens before litigation between him and his former spouse had concluded. We disagree. While some litigation between the parties is ongoing, litigation affecting ownership of the four properties in question has concluded. As such, cancellation of the notices was proper.

The purpose of a notice of lis pendens is to give effective notice of pending litigation affecting title to real property to third persons. Karst v. Fryar, 430 So.2d 318 (La.App. 3 Cir.1983). As such, notice of lis pendens is improper when litigation affecting title to real property is no longer pending. Id. Louisiana Code of Civil Procedure Article 3753 provides two instances for the cancellation of a notice of lis pendens. First, cancellation of notice of lis pendens shall be ordered in a judgment rendered against the party who filed the notice at that party’s expense. Id. Second, notice of lis pendens filed in connection with a proceeding which yielded a judgment shall be cancelled at the request of any interested party if the judgment has been cancelled or the proceeding has been dismissed. Id. This article, however, does not provide the exclusive means of cancel-ling a notice of lis pendens. Strata Energy Inc. v. Lobrano, 514 So.2d 626 (La.App. 4 Cir.1987).

Mr. David cites four pieces of litigation pending at the time the notices of lis pen-dens were cancelled which render the cancellation premature. The first is an appeal filed by Mr. Dávid of a trial court judgment finding him in contempt and ordering him to pay damages. This litigation does not affect title on the four properties in question, and as such, provides no basis for a notice of lis pendens. The second is an appeal in a derivative suit filed by Mr. David against 14the flower company awarded Mrs. David in the community property partition judgment. This litigation does not affect title on the four properties in question, and as such, provides no basis for a notice of lis pendens. The third piece of litigation centers around a motion filed by Mr. David for satisfaction of an equalization amount determined by this court in an earlier appeal for amounts paid in excess by Mr. David. This piece of litigation does not affect title on the four properties in question, and as such, provides no basis for notice of lis pendens.

The fourth centers around a petition filed by Mr. David to nullify the judgment partitioning the Davids’ community property. This piece of litigation does not affect title on the four properties in question. The supreme court’s denial of Mr. David’s request for review of the judgment partitioning the community property cemented the judgment’s finality and the finality of its award of complete ownership to Mrs. David of the four properties in question. Unlike the mythical phoenix, Mr. David’s attempt to revive the settled matter of his and Mrs. David’s respective ownership of their community property is an exercise in legal futility. Thus, there was no litigation affecting title at the time the notices of lis pendens were cancelled, and there is no further litigation affecting title of the four properties awarded Mrs. David. Mr. David’s disagreements with his former wife appear to be fueled by animosity masquerading as legitimate litigation. This litigation’s apparent perpetual nature, however, does not talismanically transform finality into something transitory. Final is final. As such, the trial court’s cancellation of the notices of lis pendens was proper and remains so.

_kV.

CONCLUSION

Based upon the foregoing reasons, we affirm the judgment of the trial court can-celling notices of lis pendens on the Cove Row, Prioux Street, Dahlia Street, and Wayne Street properties awarded Mrs. David. Costs of this appeal are assessed against Mr. David.

AFFIRMED.


author: COOKS, Judge.

text:
    Glenn BERNARD and Randy Bernard v. CITY OF MARKSVILLE.
    No. 14-730.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2014.
    Chad P. Guillot, Marksville, LA, for Plaintiffs/Appellants, Glenn Bernard and Randy Bernard.

      Derrick M. Whittington, Whittington Law Firm, Marksville, LA, for Defendants/Appellees, City of Marksville.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and J. DAVID PAINTER, Judges.
   COOKS, Judge.

| .FACTS AND PROCEDURAL HISTORY

In 2004, Plaintiff, Glenn Bernard, purchased a tract of property adjacent to his residence from Defendant, the City of Marksville (hereafter the City). The purchased property was also bordered by Laurel Street, which is maintained by the City. At the time of the purchase, a twelve-inch culvert ran underneath Laurel Street and drained onto the purchased property. Plaintiff acknowledged the presence of this culvert constituted an apparent servitude on the property in question. The culvert was used to drain rainwater from City ditches and neighboring property. Plaintiff maintained his property suffered no damages as a result of the twelve-inch culvert.

According to Plaintiff, “[sjometime during the year 2005,” the City replaced the existing twelve-inch culvert with a thirty-inch culvert. According to Plaintiff, this replacement greatly increased the flow and volume of water running onto his property. Due to the influx of additional water, the ground became consistently muddy and soft, preventing Plaintiff from maintaining and enjoying his property under the same conditions existing prior to the installation of the larger culvert. Plaintiff also alleged a ditch formed on his property, from which shrubbery began growing.

On January 27, 2012, Plaintiffs filed a “Petition to Restore Peaceful Possession, for Injunctive Relief Under Ordinary Process, and for Damages” against the City. Damages were requested for “property damages” and “mental anguish and anxiety.” Plaintiffs also requested an injunction issue “ordering CITY OF MARKS-VILLE to remove the thirty inch culvert and reroute the water damage to a location away from [Plaintiffs’] property.”

| oOn August 19, 2013, the City filed a peremptory exception of prescription alleging that Plaintiffs’ claims had prescribed because suit was not filed within one year from the operating cause of their injury. The exception was set for a contradictory hearing.

After the hearing on the exception and the submission of briefs, the trial court granted the City’s exception of prescription. The trial court concluded the prescriptive period had run in this matter because Plaintiffs had known of the operating cause of the alleged damages/injuries (the installation of the thirty-inch culvert) for several years prior to suit being filed. The trial court also determined the facts of this case did not present a continuing tort case, reasoning the Plaintiffs were complaining of the ill effects of a single event. Plaintiffs now appeal the judgment of the trial court granting the exception of prescription.

ANALYSIS

Plaintiffs’ petition, which was filed on January 27, 2012, alleges “at the time of the purchase of the property in question, there was located on the property a drainage culvert twelve inches in diameter that [the City] used for the drainage of water.” The petition then alleges “approximately five years ago, [the City] installed a thirty inch culvert in place of the twelve inch culvert, in violation of Louisiana law ...” The petition contended “[a]s a result of defendant’s actions, [Plaintiffs are] unable to have the free and unfettered use and enjoyment of the property ...” and have suffered damages to their property and persons.

Louisiana law provides the one-year liberative prescriptive period for del-ictual actions begins to run from the day injury or damage is sustained. La.Civ. Code art. 3492. If the damage complained of is to immovable property, prescription begins to run from the day the owner “acquired, or should have acquired, knowledge of the damage.” La.Civ.Code art. 3493. A review of Plaintiffs’ petition reveals it asserts the installation of the thirty inch culvert was |4the operating cause of the alleged injuries and/or damages suffered. The petition, filed on January 27, 2012, asserts this act occurred “approximately five years ago.” Thus, Plaintiffs’ action is prescribed on the face of the pleadings of the petition. Ordinarily, the party urging prescription bears the burden of proof at trial of the exception; however, if the petition is prescribed on its face, the burden shifts to the plaintiff to show the action is not prescribed. Cichirillo v. Avondale Indus., Inc., 04-2894, 04-2918 (La.11/29/05), 917 So.2d 424; Dugas v. Bayou Teche Water Works, 10-1211 (La. App. 3 Cir. 4/6/11), 61 So.3d 826.

Recognizing these legal precepts, Plaintiffs argue on appeal that the tort sued upon is a continuous tort and prescription begins to run only when the wrongful conduct ceases. The City notes the petition did not specifically plead that Plaintiffs were the victims of a continuous tort. However, that issue was discussed at the hearing, with the trial court ultimately concluding no continuous tort existed under the facts of this case. After a review of the record and the applicable jurisprudence, we agree.

The Louisiana Supreme Court in Crump v. Sabine River Authority, 98-2326, pp. 9-10 (La.6/29/99), 737 So.2d 720, 726, discussed the theory of continuing tort:

As previously noted by this Court, the theory of continuing tort has its roots in property damage cases and requires that the operating cause of the injury be a continuous one which results in continuous damages. Bustamento v. Tucker, 607 So.2d 532, 543 n. 8 (La.1992); South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.1982). Professor Yiannopoulos, in his treatise on Louisiana predial servitudes clarified this requirement as it relates to prescription as follows:
[A] distinction is made between continuous and discontinuous causes of injury and resulting damage. When the operating cause of the injury is ‘not a continuous one of daily occurrence’, there is a multiplicity of causes of action and of corresponding prescriptive periods. Prescription is completed as to each injury, and the action is barred upon the lapse of one year from the date in which the plaintiff acquired, or should |shave acquired, knowledge of the damage.... [This is to be distinguished from the situation where] the ‘operating cause of the injury is a continuous one, giving rise to successive damages from day to day.... ’
A.N. Yiannopoulos, Predial Servitudes, § 63 (1983). (emphasis added).
In this latter case discussed by Professor Yiannopoulos, where the operating cause of injury is a continuous one and gives rise to successive damages, prescription dates from the cessation of the wrongful conduct causing the damage. South Central Bell, 418 So.2d at 583. However, in cases where property has been injured or damaged, and the continuing tort theory is inapplicable, either because the operating cause of the injury is discontinuous or because the damages are not successive, prescription runs from the date that knowledge of such damage was apparent or should have been apparent to the injured party. La.Civ.Code Ann. art. 3493 (West 1994); South Central Bell, 418 So.2d at 532; Dean v. Hercules, Inc., 328 So.2d 69, 73 (La.1976).

In Hogg v. Chevron USA, Inc., 09-2632, p. 16 (La.7/6/10), 45 So.3d 991, 1003, the supreme court further explained the inquiry as to whether there is continuous tor-tious conduct “is essentially a conduct-based one, asking whether the tortfeasor perpetuates the injury through overt, persistent, and ongoing acts.” The Hogg court stated:

[Cjourts [look] to the alleged injury-producing conduct of the tortfeasors to determine whether that conduct was perpetuated through overt, persistent, and ongoing acts. Where the wrongful conduct was completed, but the plaintiff continued to experience injury in the absence of any further activity by the tortfeasor, no continuing tort was found.

Id., 45 So.3d at 1005.

In the present case, there is no dispute that the operating cause of the damages claimed in the petition was the installation of the thirty-inch culvert. The petition does not claim there have been continual or ongoing unlawful acts on the part of the City subsequent to the installation of the thirty-inch culvert or that there was any failure to act or remediate the damages on the City’s part after being made aware of any problems. The continued presence of excess water on the property is simply the continuing ill effect from the original tor-tious act, installation of the | ^larger culvert. This is similar to what the supreme court found in Hogg (no continuing tort found where “the wrongful act was completed, but the plaintiff continued to experience injury in the absence of any further activity by the tortfeasor”) and Crump (no continuing tort found where the wrongful act of the tortfeasor, the digging of a canal some twenty years prior, was not followed by any further unlawful acts).

Plaintiffs cite Estate of Patout v. City of New Iberia, 01-151 (La.App. 3 Cir. 4/3/02), 813 So.2d 1248, writ denied, 02-1172, 02-1231 (La.6/21/02), 819 So.2d 335, 336, as support that the facts in the present case constitute a continuing tort. In Patout, the plaintiffs, private landowners who owned property adjacent to a city-operated landfill, sued the city for damages resulting when garbage was pushed onto their property. A panel of this court held that the continued presence of garbage on the plaintiffs’ property constituted a continuing trespass and that prescription would not begin to run until the garbage was removed. Patout, 813 So.2d at 1250. We find Patout is distinguishable, in that this court determined the failure to remove the garbage was the operating cause of the injury, not the placing of the garbage on the property, particularly given the fact the city in Patout, “[o]n numerous occasions, ... acknowledged its wrongful conduct and informed the landowners that the garbage would be removed.” Id., at 1250. In the instant case, Plaintiffs’ petition does not allege any such acknowledgment on the City’s part or any lack of action on its part. Moreover, as the City notes, Plaintiffs have acknowledged the water did not remain constantly on their property.

We also note with interest this court’s decision in LeJeune Brothers, Inc. v. Goodrich Petroleum, Co., L.L.C., 06-1557 (La. App. 3 Cir. 11/28/07), 981 So.2d 23, writ denied, 08-298 (La.4/4/08), 978 So.2d 327, wherein we rejected a landowner’s argument that the failure to remove oilfield exploration and production waste wrongfully deposited on his property constituted a continuing |7tort. It was determined that the operating cause of damage was the disposal of waste into the property, not the failure to remove it. In reaching this conclusion, we noted the following reasoning from Crump, 737 So.2d at 727-728:

In the instant case, the plaintiff similarly argues that the mere existence of the canal is the operating cause of daily injury because the effect of its presence is the continuous diversion of the flow of water away from the ox-bow. Relying on our prior decision in Griffin [v. Drainage Commission of New Orleans, 110 La. 840, 34 So. 799 (1903) ], however, we find that the actual digging of the canal was the operating cause of the injury. The continued presence of the canal and the consequent diversion of water from the ox-bow are simply the continuing ill effects arising from a single tortious act.

In LeJeune, Hogg and Crump, the courts looked to the alleged injury-producing conduct of the tortfeasors to determine whether that conduct was perpetuated' through overt, persistent, and ongoing acts. Where the wrongful conduct was completed, but the plaintiff continued to experience injury in the absence of any further activity by the tortfeasor, no continuing tort was found. We find the same result applies in the present case, and affirm the trial court’s grant of the exception of prescription.

We also find no merit in Plaintiffs’ alternative argument that even if we affirm the grant of the exception of prescription, we “should still reverse that portion of the judgment dismissing all causes of action against the City,” and allow for the recovery of damages for any injuries that have occurred “since suit has been filed.” Such an interpretation is contrary to the purpose of prescriptive statutes and is not supported by the law.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiffs/Appellants.

AFFIRMED.

      . Along with Glenn Bernard, the petition also named Randy Bernard as a plaintiff.