author: SHEPHERD, C.J.

text:
    Luis Enrique LUZARDO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1678.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.

      Albert E. Acuña, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and LAGOA and FERNANDEZ, JJ.
   SHEPHERD, C.J.

This is an appeal by Luis Luzardo from a conditional plea of guilt, during which he expressly reserved for review a dispositive order denying his motion to dismiss a vehicular homicide charge informed against him. Luzardo argued below and maintains here that (1) his actions did not meet the level of recklessness required to convict him under the law, and (2) the conscious decision of the driver of the other vehicle to stop in Luzardo’s lane of traffic was the actual cause of the accident. After careful study, we conclude that while Luis Lazardo’s operation of his motor vehicle may have been careless, even negligent, it did not meet the level of recklessness required to convict him of vehicular homicide, and therefore, direct his discharge from custody in this case. A brief summary of the facts of the case is necessary to explain our decision.

FACTUAL AND PROCEDURAL HISTORY

The accident in this case occurred on the Tamiami Trail at approximately 9:54 a.m. on Sunday, May 8, 2011, at the entrance to Gator Park, a small airboat and tourist attraction located on the south side of the Tamiami Trail in Miami-Dade County. Tamiami Trail is a narrow, straight, two-lane road originally constructed in the 1920’s, which traverses the Everglades in an east-west direction. Gator Park is located approximately 6.2 miles west of Krome Avenue, the demarcation for our purposes of the western-most population boundary of Miami-Dade County. The morning was clear and sunny. The traffic, as captured on a Gator Park surveillance video camera which serendipitously included the road in its scope, was light.

At the time of the accident, Luis Luzar-do was travelling eastbound on Tamiami Trail in a white Ford Expedition at 8S.9 miles per hour. The speed limit in the area, and on most of Tamiami Trail, is posted at 55 miles per hour. Luzardo and a friend were returning to Miami after one of their periodic bike rides in the area. Luzardo was familiar with the road and the location of Gator Park. Michelle Ward, a tourist from the United Kingdom, was driving in the opposite direction, heading to Gator Park with three friends to experience an airboat ride. She was driving a black Chevrolet Impala, which she had leased just the day before. She was unfamiliar both with the vehicle she was driving and the area in which she was travelling. She needed to get to Gator Park by 10:00 a.m. to obtain a discounted price on the airboat tickets.

Ward testified that as she approached Gator Park, she saw an available parking space in front of the building. She further testified that after deciding it was safe to do so, she commenced a left turn toward the available space, but applied her brakes in the middle of the eastbound lane when one of her passengers told her of Luzar-do’s approaching vehicle. When Luzardo realized Ward was not going to complete her turn, Luzardo attempted to swerve around Ward’s vehicle, but his diversionary maneuver was unsuccessful. Luzar-do’s Ford Expedition impacted the rear right passenger door of the black Impala, killing Rachel May Coulson.

The Florida Highway Patrol initially attributed the accident to Michelle Ward and charged her non-criminally with violating Luis Luzardo’s right of way by turning left in front of oncoming traffic under section 316.122 of the Florida Statutes (2011). Over a year later, however, the State had a change of mind. Claiming “newly discovered evidence,” it dismissed the noncriminal violation against Michelle Ward and charged Luzardo with “feloniously operating] a motor vehicle in a reckless manner, to wit: SPEEDING WITHOUT REGARD FOR THE SAFETY OF OTHERS” in violation of section 782.071(1) of the Florida Statutes.* Both here and below Luzardo incants, in response, the oft-repeated statement in these type cases, that excessive speed alone will not support a conviction for vehicular homicide pursuant to this statute. Although we eschew the box-checking legal methodology implied by the chant, we agree that the facts of this case do not rise to the level of recklessness necessary to support the conviction and sentence.

ANALYSIS

The vehicular homicide statute in effect at the time of the accident in this ease reads as follows: “ “Vehicular homicide’ is the killing of a human being, or the killing of a viable fetus by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. § 782.071, Fla. Stat. (2011) (emphasis added). Vehicular homicide is a lesser included offense of manslaughter, created to cover the hiatus between manslaughter by culpable negligence and the non-criminal traffic offense of reckless driving created by section 316.029, Fla. Stat. (1975). McCreary v. State, 371 So.2d 1024, 1026 (Fla.1979). The culpable conduct necessary to sustain proof of manslaughter under section 782.07 is conduct of “a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.” Id. Luzar-do’s conduct in this case does not rise to that level.

Neither carelessness nor ordinary negligence in the operation of a motor vehicle are sufficient to sustain a conviction for vehicular homicide. By definition, the crime of vehicular homicide requires proof of the elements of reckless driving. See State v. Lebrón, 954 So.2d 52 (Fla. 5th DCA 2007); see also D.E. v. State, 904 So.2d 558 (Fla. 5th DCA 2005); State v. Del Rio, 854 So.2d 692 (Fla. 2d DCA 2003). Reckless driving, in turn, is defined as driving "... in willful or wanton disregard for the safety of persons or property .... ” § 316.192(l)(a), Fla. Stat. (2012). “Willful” means “intentional, knowing and purposeful” and “wanton” means “with a conscious and intentional indifference to consequences and with the knowledge that damage is likely to be done to persons or property.” See W.E.B. v. State, 553 So.2d 323 (Fla. 1st DCA 1989). In our view, the facts of this case, as unfortunate as they are, do not present a pri-ma facie case of reckless driving either.

The determination of a prima facie case of recklessness in a vehicular homicide case is a fact intensive, ad hoc inquiry. The focus is on the actions of the defendant and, considering the circumstances, whether it was reasonably foreseeable that death or great bodily harm could result. D.E. v. State, 904 So.2d 558, 562 (Fla. 5th DCA 2005). Most of the cases we have found that uphold a vehicular homicide conviction consist of facts much more egregious than ours. See, e.g. Santisteban v. State, 72 So.3d 187 (Fla. 4th DCA 2011) (finding reckless driving when defendant drove a gasoline truck, filled with 9,000 gallons of fuel, at excessive speeds around a curving highway ramp, while weaving around other drivers); State v. Lebrón, 954 So.2d 52 (Fla. 5th DCA 2007) (finding reckless driving where defendant, while speeding, attempted to pass a slower vehicle from the right lane, in the middle of traffic); D.E. v. State, 904 So.2d 558 (Fla. 5th DCA 2005) (finding sufficient evidence to support reckless driving, when juvenile knowingly drove the car without adult supervision in violation of the law, far in excess of the speed limit, around a dangerous curve, near a school, in the dark, and in an area likely to become congested); Martinez v. State, 692 So.2d 199 (Fla. 3d DCA 1997) (finding sufficient evidence to support a conviction for vehicular homicide where defendant drove 70 mph in a 30-mph zone, on a curving section of road, while passing another vehicle in a no-passing zone); Lewek v. State, 702 So.2d 527 (Fla. 4th DCA 1997) (finding evidence was sufficient to establish reckless driving where defendant drove a car with shallow tire treads, a missing lug nut, and window tinting that was too dark at 60 mph in a 45-mph zone and failed to reduce speed for a yellow light, subsequently running a red light); State v. Knight, 622 So.2d 188 (Fla. 1st DCA 1993) (finding a prima facie case for vehicular homicide where defendant did not possess a valid driver’s license, was driving 65-70 mph in a 35-mph residential area, and was operating a damaged vehicle without the consent of the owner); Wright v. State, 573 So.2d 998 (Fla. 1st DCA 1991) (evidence was sufficient to sustain a vehicular homicide conviction where defendant had consumed both a full quart and half a six-pack of malt liquor, was travelling approximately 20 mph over the speed limit, was driving in the oncoming lane of traffic to pass another vehicle, and did not attempt to slow down or maneuver to avoid striking the victim); Byrd v. State, 531 So.2d 1004 (Fla. 5th DCA 1988) (finding sufficient evidence to sustain a conviction for vehicular homicide where defendant drove at twice the posted speed limit in heavy traffic, was warned to slow down, and only tried to stop about six feet from another stopped vehicle); Savoid v. State, 389 So.2d 294 (Fla. 3d DCA 1980) (finding sufficient evidence to support a vehicular homicide conviction where defendant, driving on a wet road, drove at 90 mph while intoxicated and crashed into a parked truck without attempting to apply brakes). Additionally, it is important to note that speeding is not itself a necessary component of vehicular homicide, as evidenced by multiple cases upholding convictions for vehicular homicide, despite an absence of speed. See McCreary v. State, 371 So.2d 1024 (Fla.1979); Michel v. State, 752 So.2d 6 (Fla. 5th DCA 2000); State v. Sheppard, 401 So.2d 944 (Fla. 5th DCA 1981).

Among the cases that we find most instructive, two of them come from the Second District Court of Appeal. In one, House v. State, 831 So.2d 1230 (Fla. 2d DCA 2002), the defendant, while driving a stolen car, sped through an intersection in a residential neighborhood, where trees blocked the drivers’ views in both directions, at twice the 30-mile-per-hour posted speed limit. The State did not prove that House stole the car, and the theft was sufficiently attenuated temporally from the accident that the court did not consider it a factor in, its recklessness decision. The District Court of Appeal found the evidence insufficient to support a verdict of vehicular homicide, chanting the familiar refrain, “Speed alone will not support a charge of vehicular homicide.” Id. at 1233. The House court supported its reasoning by reference to another of its cases, Hamilton V. State, 439 So.2d 238 (Fla. 2d DCA 1983). In contrast to House, Hamilton actually affirmed a vehicular homicide verdict arising out of the deaths of two children in a residential area of Lee County. The facts and circumstances leading to affirmance in Hamilton included: (1) the day was clear and dry; (2) the defendant was traveling on a level two-lane roadway more or less in the middle of the road; (3) there were no obstructions to her view ahead in the form of parked vehicles, foliage or other objects; (4) she was traveling in an all-residential area, heavily congested with children; (5) she was familiar with the area and roadway; (6) the road was posted with both a 30 mile-per-hour speed limit sign and a “SLOW-CHILDREN PLAYING” sign; (7) she failed to reduce her speed either before or after striking the children; and (8) the defendant failed to exercise even the slightest care to avoid the collision. Id. at 238-39. The case before us is factually closer to House than to Hamilton.

Finally, State v. Gensler, 929 So.2d 27 (Fla. 3d DCA 2006), from this court contains some parallel facts. The facts of Gensler show that at approximately 3:15 a.m. on a dry, clear night, Police Officer Audria Gensler, was traveling northbound on South Dixie Highway in Miami-Dade County near 220th Street, where the posted ■ speed limit was forty-five miles per hour. Pedestrians at that location cross South Dixie Highway without using the designated crosswalk to go to and from a food market, which was located one block off the Highway. • - Although many businesses were closed that evening, the food market was open. Officer Gensler, dispatched as a back-up officer to a call, proceeded through the intersection where the traffic light was a flashing yellow signal. According to an accident reconstruction expert, her speed was approximately ninety miles per hour. She struck and killed the victim, Robin Ivy, who was approximately four to five feet into the right traffic lane and just north of the crosswalk. At the time of the collision, the victim had alcohol and cocaine in her body. This court found that these facts presented a prima facie case for jury resolution. We said:

Viewed in the light most favorable to the State and based on the fact that the defendant was traveling at a speed of ninety miles per hour-way over the posted speed limit of forty-five miles per hour-on a federal highway, at 3:00 a.m. where the street lights were out, coupled with the fact that she willfully disregarded a flashing, yellow traffic signal at the intersection one block from an open convenience store, we find that the State established a prima facie case of recklessness on the part of the defendant-likely to cause the death of, or great bodily harm to another. McCreary v. State, 371 So.2d 1024 (Fla.1979); D.E., 904 So.2d at 563; Moye v. State, 571 So.2d 113 (Fla. 4th DCA 1990); see Michel v. State, 752 So.2d at 6. As such, the recklessness issue is within the province of the jury and not subject to a motion to dismiss. State v. Sheppard, 401 So.2d 944 (Fla. 5th DCA 1981) (recklessness and proximate cause under vehicular homicide statute to be resolved by jury and not on motion to dismiss).

Id. at 30.

The case before, us is devoid of aggravating factors analogous to those found in either Hamilton or Gensler. Unlike Hamilton, the accident in our case did not occur in a residential area congested with children, there was no “SLOW-TOURIST ATTRACTION” sign on the road where Luzardo was travelling, and, unlike the driver in the Hamilton case, Luzardo did attempt to avoid the collision. And, unlike Gensler, the accident in our case occurred on a rural, dry road, in broad daylight, where it is not usual for automobiles to be entering or leaving the highway.

Lastly, the facts of this case are less compelling for a recklessness finding than any that our electronically assisted research has located that have either granted a motion to dismiss a vehicular homicide information or the evidence after trial was determined to be insufficient. The Second District Court of Appeal in House found that a vehicular homicide case did not he, despite the fact that the defendant was speeding in a stolen vehicle. See House, 831 So.2d at 1232-33. In State v. Del Rio, 854 So.2d 692 (Fla. 2d DCA 2003), the same court found that defendant’s failure to see a pedestrian pushing her baby stroller approximately six feet from the curb and forty-seven feet in front of the defendant after making a left turn at a T-intersection was insufficient to establish a prima facie case of vehicular homicide. Other cases lead us to the same conclusion. See, e.g. Stracar v. State, 126 So.3d 379 (Fla. 4th DCA 2013) (finding evidence insufficient to support conviction for vehicular homicide where defendant drove her vehicle into the opposing lane of traffic, did not attempt to brake the vehicle or avoid the crash, and tested positive for multiple substances, including alcohol, marijuana, oxycodone, and Xanax); Berube v. State, 6 So.3d 624 (Fla. 5th DCA 2008) (finding defendant did not operate his vehicle in a reckless manner where defendant stopped in the middle of the road, then pulled into the intersection and attempted to make a left-hand turn from the center lane in response to his passengers warning him of an approaching truck); State v. May, 670 So.2d 1002 (Fla. 2d DCA 1996) (finding no reckless driving where defendant, while under the influence of strong medication, swerved across lanes of traffic and off the road into a yard); Miller v. State, 636 So.2d 144 (Fla. 1st DCA 1994) (finding evidence insufficient to establish reckless driving where defendant, though speeding around 15 to 20 mph in excess of the posted speed limit, had control of his vehicle and slowed as he approached the intersection); W.E.B. v. State, 553 So.2d 323 (Fla. 1st DCA 1989) (finding evidence insufficient to establish reckless driving where juvenile had consumed alcohol, was speeding, and drove off of the road from overeorrecting his turn). The facts of our case — speeding on a straight road in sunny weather with clear visibility in combination with the attempt to avoid a vehicle which inexplicably turned and braked in the defendant’s path — are no more compelling than the facts of these exemplars.

Focusing on the actions of Luzardo, and considering the circumstances, we hold the State has not proffered sufficient facts from which a jury might conclude that Luzardo was engaged in reckless conduct “likely to cause the death of, or great bodily harm to another.” § 782.071. We therefore reverse the judgment of conviction and sentence in this case with directions to discharge the defendant on the charge informed against him. We decline to rest our decision on the “excessive speed alone ...” jingle. If Luzardo had been traveling at a speed of 120 miles per hour at the time of the accident, our decision might be different. “Judgment by jingle” is a perilous exercise, but if there must be a jingle in this area of the law, we would prefer, “Speed alone is not enough, except when it is.” See Rubinger v. State, 98 So.3d 659, 662 (Fla. 4th DCA 2012) (reserving for consideration a case where the speed of the defendant was “grossly excessive”). On the facts of this case, we reverse the judgment of conviction and sentence for proceedings in compliance herewith.

Reversed.

      . We have jurisdiction pursuant to Florida Rule of Criminal Procedure 9.140(b)(2)(a)(i), which states that "[a] defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a dispositive order of the lower tribunal, identifying with particularity the point of law being preserved.”

      . This conclusion makes it unnecessary to consider Luzardo's second ground for reversal.

      . The State's Information reads in full as follows:
      LUIS ENRIQUE LUZARDO, on or about May 08, 2011, in the County and State aforesaid, did unlawfully and feloniously operate a motor vehicle in a reckless manner, to wit: SPEEDING WITHOUT REGARD FOR SAFETY OF OTHERS, and thereby caused the death of RACHEL MAY COULSON, in violation of s.782.071(l), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

      . According to the last review date on the Florida Highway Patrol Traffic Homicide Investigation Report, the State actually knew Luzardo’s excessive speed not later than August 17, 2011, a mere three months after the accident.


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    Carla BRANCH, Appellant, v. Lee Anne O’SELMO, individually and First Caribbean International Bank d/b/a First Caribbean International Bank (Barbados) Ltd., a foreign entity, Appellees.
    No. 3D13-2613.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.

      Max R. Price, Miami, Dennis Grossman and Jay Warman, for appellant.
    Cooney Trybus Kwavnick Peets and Warren B. Kwavnick, Fort Lauderdale, for appellees Lee Anne O’Selmo and First Caribbean International Bank; Holland & Knight, Lee P. Teichner and Frances G. De La Guardia, Miami, for appellee First Caribbean International Bank.
    Before WELLS, SUAREZ and SALTER, JJ.
   WELLS, Judge.

Carla Branch, the plaintiff below appeals from an order denying her motion to amend her complaint, effectively dismissing her personal injury action with prejudice. Because we find that the court below did not lack jurisdiction to entertain her motion, we reverse.

This action stems from an auto accident which occurred in November of 2006 in which Branch, while a passenger in a car driven by a co-worker during a business trip, was seriously injured. Branch and her co-worker reside in Barbados where their employer, First Caribbean International Bank is located.

In advance of the running of the three year statute of limitations on personal injury claims in Barbados, Branch in November of 2009, filed suit against her co-worker and the bank in Barbados. After filing this action, Branch took no further actions to advance it.

On November 19, 2010, in advance of the expiration of the applicable Florida statute of limitations, Branch brought suit against the same defendants here. The Florida action thereafter proceeded in the court below where over a period spanning two years it was actively litigated with numerous depositions and other discovery being undertaken. In September of 2012, after this matter was set for trial for the one week trial period commencing October 29, Branch’s co-worker, defendant Lee Anne O’Selmo filed a motion to dismiss Branch’s complaint. That motion asserted only that Barbados would be a more “appropriate” forum in which to resolve this matter and that “[i]f the instant action is tried, the Barbados action will not be resolved and the Plaintiff can try again to recover against the Defendants.”

Despite the fact that O’Selmo’s motion, which must be characterized as a forum non conveniens motion, was two years too late and that no authority was cited for the proposition that two actions on the same claim may not be maintained in different jurisdictions simultaneously, the court below granted the motion. The court abated the action for 30 days for Branch to either dismiss her pending Barbados action with prejudice or provide the court with documents that demonstrated that the Barbados case “has been abated [and] that any judgment ... of the case in Florida would be res judicata in the action pending in Barbados.”

When Branch failed to satisfactorily comply, O’Selmo and the bank moved for a dismissal with prejudice reasserting its now long waived forum non conveniens claim and arguing that Branch’s failure to comply with the trial court’s prior order warranted dismissal as a sanction:

Plaintiffs willful noncompliance with the court’s January 15, 2013 order warrants dismissal of this action. Warriner v. Ferraro, 177 So.2d 723 (Fla. 3d DCA 1965). Where a party’s failure to comply with a court order is willful and not due to mistake, inadvertence or excusable neglect, dismissal is appropriate. Diaz v. Bushong, 619 So.2d 1020 (Fla. 3d DCA 1993).

On April 29, 2013, following a hearing at which Branch advised the court that she could not abate the Barbados action in a manner that would satisfy the requirements of the prior order, the court below entered an order granting the motion “in part,” dismissing the action “without prejudice” and allowing Branch to file a motion to amend her complaint in 20 days if she dismissed the Barbados action in such a way that it did not permit her to seek additional damages in Barbados:

Granted in part. I dismiss the pending action in Florida but that dismissal is without prejudice and can be re-brought if the action in Barbados is dismissed in such a way that does not permit the Plaintiff to seek additional damages in Barbados. Plaintiff has twenty days to move for leave to amend.

On May 15, within the 20 days allotted, Branch filed a motion for leave to amend in which she alleged that she had fully complied with the trial court’s April 29 order by “dismissing the Barbados case.” Attached to this motion and incorporated therein was a Notice of Discontinuance filed in the Barbados action in which Branch discontinued — that is, dismissed— the Barbados action.

In response, O’Selmo, while conceding that the April 29 order was “without prejudice” to filing an amended complaint, argued that Branch could not amend her complaint because the April 29 order dismissed this action and that it could not be resurrected by timely amendment because the statute of limitations had now rim on Branch’s claim. Alternatively, O’Selmo claimed that the Notice of Discontinuance filed in the Barbados case did not effectively terminate that case.

At a hearing conducted on July 18, 2013, Branch adduced uncontroverted expert testimony that the Notice of Discontinuance that she filed in the Barbados action unequivocally terminated that action. However, accepting O’Selmo’s argument that the April 29 order had dismissed the entire action, depriving the trial court of jurisdiction to entertain an amendment to the complaint now that the appeal time from that order had run, the court denied Branch’s motion to amend, leaving Branch, now that the statute of limitations had run in Florida, with no forum in which to seek recovery:

ORDERED AND ADJUDGED that Plaintiffs Motion is hereby DENIED. The instant action cannot be amended as it has been dismissed. See Derma Lift Salon, Inc. v, Swanko, 419 So.2d 1180 (Fla. 3d DCA 1982) (holding that when a trial court dismisses an action, even without prejudice, further jurisdiction of the trial court is terminated except upon the timely filing of a motion for rehearing); Golden Gate Homes, L.C. v. L &G Eng’g Servs., Inc., 974 So.2d 489 (Fla. 3d DCA 2008) (holding that after trial court dismissed the complaint, the action could not be reinstated because the “trial court lost jurisdiction over the cause after the ten-day period for rehearing expired”); City of Sanibel v. Maxwell, 925 So.2d 486 (Fla. 2d DCA 2006) (holding that where the trial court dismissed the amended complaint and no appeal was taken, the trial court “exceeded its subject matter jurisdiction” by granting leave to file a second amended complaint).

We reverse the order on appeal. While the April 29 order was not a model of clarity, it was neither intended to dismiss, nor dismissed, the Florida action in such a manner as to amount to a final judgment, such that the trial judge would be divested of jurisdiction to allow the amendment sought. At best, the order abated the Florida action, allowing plaintiffs twenty days to prove dismissal of the Barbados action. Any question as to this is resolved by the trial court’s statements at the April 29 hearing while making its ruling and entering the order at issue:

MR. PRICE [COUNSEL FOR BRANCH]: What I want to clarify, in terms of your ruling, so we walk out of here, know exactly where we’re at, we’re in a situation where they’ve already exchanged documents in Barbados, effectively dismissing the case there. I don’t want to be in a situation where now this order is somehow used against me to say, oh, the Judge dismissed your case here, now the Judge can do nothing further, and now we’ve got a dismissal in Barbados, now we [h]ave — because we’re dealing with statute of limitations in both countries, and obviously, the effect of this is not to put [Branch] in the position where both cases are dismissed in both jurisdictions. I certainly don’t want to be in that.
But I don’t want to be in a situation where we’ve dismissed Barbados, but I'm also faced with a dismissal here, and now we have nothing anywhere.
THE COURT: ... I’ve dismissed today without prejudice. So like many lawsuits that are pending, where there’s no complaint pending, but there’s still an action pending, so that will be the state in Florida at the moment, it will require a dismissal in Barbados, that, from what I’m hearing, you all may disagree as to the nature of that dismissal. Then you will have to file — plaintiff will have to file a motion for leave to file an amended complaint, in which you attempt to prove to me, through whatever method you choose, Barbadian expert witnesses, Barbadian statutes, et cetera, that the dismissal in Barbados precludes the plaintiff from seeking additional damages in Barbados. You’re not going to have to prove to me that she’s not going to be able to collect her Florida judgment.
MR. PRICE: Okay.
THE COURT: The defendants are going to attempt to prove to me, on that day, that there’s defects in that — may attempt to prove to me that there are defects in the Barbadian dismissal and that I shouldn’t let you file the amended complaint. And then on that day, we’ll have to — I’ll have to decide whether to let you file the amended complaint or not. But there will have to be some interim period in which there’s no complaint pending anywhere.
MR. TEICHNER [COUNSEL FOR THE BANK]: ... But presently, the Florida lawyers here don’t have a case because it’s been dismissed.
MR. PRICE: That’s just it. What they want now is because the dismissal’s already happened in Barbados.
THE COURT: In any event, I don’t agree with Mr. Teichner that there is not a case. There is a case. There is still a case, with this case number. There is not a complaint pending. And, you know, now that I’m thinking about it, maybe I should have some kind of deadline. We don’t allow cases without complaints to stay open indefinitely.
How much time do you want to try to accomplish the dismissal in Barbados and to bring the motion to amend?
MR. PRICE: Ten days.
THE COURT: Okay. I think we should add that. And I think we should give you more than ten days—
Double ten days. Twenty days. So let me add that to the order. I wish to add that, the defendant — plaintiff has twenty days to attempt to move to amend. You can’t amend as a matter of right, you have to move for leave to amend.

In sum, reviewing the order as well as the trial judge’s comments in making its ruling we conclude the order at issue did not dismiss the action or case, but only dismissed the complaint with leave to amend upon a showing that the Barbados action had been terminated. The September 23, 2013 order denying Branch’s motion to amend based on a determination that the court lacked jurisdiction to consider that motion by -virtue of dismissal of this action on April 29, is, therefore, contrary to both the letter and certainly the intent of that order.

It also is incorrect as a matter of law. “An order of dismissal granting leave to amend is interlocutory in nature until expiration of the amendment period and entry of final judgment by the trial court.” Dade County Classroom Teachers’ Ass’n, Inc. v. State Board of Education, 269 So.2d 657, 657-58 (Fla.1972). On this point, we find appellees’ reliance on DiPaolo v. Rollins Leasing Corp., 700 So.2d 31, 32 (Fla. 5th DCA 1997), misplaced. There, our sister court observed:

Once the summary judgment was entered disposing of the only action properly before the court as to Rollins, and the time for filing a petition for rehearing or a motion for new trial and the appeal period has run, there was no action remaining before the trial court on which to base an amendment even if the court had seen fit to permit one. A pending motion to amend does not extend the trial court’s jurisdiction after entry of final judgment, and the court’s reserving consideration of that issue until a later time does not change that fact.

No summary judgment or final disposition of the action pending below was entered in this case. Nor does the instant case involve a motion to amend pending before final disposition. DiPaolo is simply inap-posite.

So too are the cases relied on by the trial court in its dismissal order. In Derma Lift Salon, Inc. v. Swanko, 419 So.2d 1180, 1180 (Fla. 3d DCA 1982), this court concluded a trial court’s order of dismissal for failure to comply with discovery, albeit “without prejudice,” was a final order! However, the order at issue there accorded no opportunity to amend. Similarly, in Golden Gate Homes, L.C. v. L & G Engineering Services, Inc., 974 So.2d 489, 490 (Fla. 3d DCA 2008), this court concluded that an order, not contingent on any further action by the plaintiff, which granted a motion to dismiss as a sanction and without prejudice was a final order. Finally, while, our sister court in City of Sanibel v. Maxwell, 925 So.2d 486, 488 (Fla. 2d DCA 2006), concluded that a trial court was without jurisdiction to proceed, it did so on facts wholly distinguishable from those of the case at hand:

The trial court granted dismissal “without prejudice to the plaintiffs [the respondents herein] to seek relief in an original Petition for Writ of Certiorari.” The order of dismissal was filed August 19, 2003, and no appeal was taken from that order. The respondents then sought a writ of certiorari in a separate proceeding but subsequently ... agreed to a denial of their request for the writ of certiorari. Thereafter, in May 2005, they filed a motion for leave to file a second amended complaint in the original lawsuit, case no. 02-13281-CA-JC.

City ofSanibel, 925 So.2d at 488.

Here unlike City of Sanibel, time was accorded to amend in the pending action and timely compliance with that authorization occurred.

In short, this and the other cases cited by the trial court are simply inapposite. The order of dismissal with leave to amend was not a final order which resulted in loss of jurisdiction in the court below and must be reversed. Moreover, because no legal basis was demonstrated either below or in this court for demanding that Branch dismiss her action in Barbados as a condition precedent to maintaining her action here, and because the record demonstrates without contradiction that she had done so in any event, on remand Branch shall be allowed to file her amended complaint with this matter being expeditiously set for trial.

Reversed and remanded.

      . In light of these rulings we need not address further the untimely and wholly baseless forum non conveniens arguments made by defendants below.


author: ROTHENBERG, J.

text:
    Emilio PEREZ-TEJON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-560.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

The appellant, Emilio Perez-Tejon (“the defendant”), appeals his conviction and sentence for first degree murder and carjacking, arguing that the trial court improperly denied his motion to suppress the physical evidence and the statement he gave to the police. The defendant contends that his initial stop and arrest for loitering or prowling, which revealed evidence that later led to his conviction for murder and carjacking, was not supported by probable cause. Because the evidence clearly establishes the officer had probable cause to arrest the defendant for loitering or prowling, we affirm.

The facts underlying the defendant’s arrest are as follows. Officer Cabrera was patrolling a high-crime area in Hialeah that had been the subject of many recent home and vehicle break-ins and burglaries. At approximately 2:30 a.m., Officer Cabrera saw the defendant running down the street alone. His suspicions aroused, Officer Cabrera followed the defendant in his patrol vehicle for a short distance with the vehicle’s lights off. Shortly thereafter, Officer Cabrera observed the defendant pulling and jiggling the driver-side door handle of a van and then walking around the van and attempting to open the door on the van’s passenger side. It appeared to Officer Cabrera that the defendant was attempting to break into the vehicle.

At this point, Officer Cabrera activated his police lights and got out of his vehicle. When Officer Cabrera called out to the defendant, he attempted to conceal himself by lying down behind the van. After Officer Cabrera again called out to the defendant, the defendant got up and began running. Officer Cabrera returned to his vehicle and began pursuing the defendant. The defendant was eventually detained after his clothing got stuck while he was attempting to climb over a chain link fence.

After handcuffing the defendant and reading the defendant his Miranda rights, Officer Cabrera asked the defendant why he had hidden from him and run away. The defendant, who appeared nervous, told Officer Cabrera that he was only coming from McDonald’s. However, without prompting, the defendant changed his story and told Officer Cabrera that he was coming from a friend’s house. When Officer Cabrera asked the defendant if the van he had tried to enter was his, the defendant admitted that he did not know whose van it was, and Officer Cabrera arrested the defendant for loitering or prowling.

Before placing him in the police car, Officer Cabrera searched the defendant’s pockets, where he found a driver’s license and two credit cards that did not belong to the defendant. The defendant told Officer Cabrera that he had simply found these items on the ground. Another officer, Sergeant Ana Guerra of the Hialeah Police Department, responded to the scene and noticed a Chevrolet Impala that had been stripped for parts a few blocks away. The officers decided to take the defendant to the police station to question him about the driver’s license and credit cards found on the defendant’s person as well as the stripped vehicle.

After a few hours of questioning in which the defendant told many different versions of the events, the defendant confessed that he, along -with several cohorts, had carjacked and then stripped the Chevrolet Impala. Further investigation revealed that the driver’s license and credit cards in the defendant’s possession at the time of his arrest belonged to the owner of the stripped Chevrolet Impala, Andres Del Castillo, whose body was found in the parking lot of a nearby warehouse with two gunshot wounds. The defendant and his accomplice, Cesar Ruiz, were ultimately charged with and convicted of carjacking and the first degree murder of Mr. Castillo. This appeal followed.

The defendant’s argument at the suppression hearing, as well as before us on appeal, is that Officer Cabrera did not have probable cause to arrest the defendant for loitering or prowling, and therefore, any evidence obtained as a result of that arrest, including the defendant’s confession, was inadmissible as fruit of an illegal search and seizure.

Section 856.021 of the Florida Statutes (2007), the loitering or prowling statute, provides as follows:

(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself or herself and explain his or her presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.
(3) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

The case law interpreting section 856.021 has found that the State must prove two elements to support an arrest for loitering or prowling: (1) the defendant loitered or prowled in a place, time, or manner that would be unusual for law-abiding citizens; and (2) the loitering or prowling was under such circumstances as would warrant a justifiable and reasonable alarm or immediate concern for the safety of nearby persons or property. M.R. v. State, 101 So.3d 389, 392 (Fla. 3d DCA 2012).

The first element of this offense requires the State to demonstrate that the defendant had more than a “vaguely suspicious presence.” Mills v. State, 58 So.3d 936, 939 (Fla. 2d DCA 2011) (quoting J.S.B. v. State, 729 So.2d 456, 457 (Fla. 2d DCA 1999)). Thus, the State must prove that the defendant was “engaged in incipient criminal behavior which law-abiding people do not usually engage in given the time, place, or manner of the conduct involved.” E.C. v. State, 724 So.2d 1243, 1244 (Fla. 4th DCA 1999), quoted by B.J. v. State, 951 So.2d 100, 102-03 (Fla. 4th DCA 2007). A showing that the defendant’s conduct came close to, but fell short of, the actual commission or attempted commission of a substantive crime will suffice. M.R., 101 So.3d at 392.

The second element of the offense requires a set of circumstances establishing that the defendant’s behavior is alarming in nature, creating an imminent threat to nearby persons or property. Id.; see also § 856.021(1). The officer must articulate specific facts which, when taken together with rational inferences therefrom, support a finding that a breach of the peace or a threat to public safety is imminent. G.G. v. State, 903 So.2d 1031, 1033 (Fla. 4th DCA 2005) (citing Von Goff v. State, 687 So.2d 926, 928 (Fla. 2d DCA 1997)). “Notably, ‘alarm is presumed under the statute if the defendant flees, conceals himself or any object, or refuses to identify himself when law enforcement appears.’ ” M.R., 101 So.3d at 393 (quoting B.J., 951 So.2d at 102).

Here, the defendant’s conduct, particularly given the timing and circumstances of the events, clearly satisfy the first element of the offense. Officer Cabrera saw the defendant running alone on a dark street in a high crime area at 2:30 a.m. He then observed the defendant attempt to open a vehicle to which he obviously had no keys, trying first one door and then another door of the vehicle. When the defendant became aware of Officer Cabrera’s presence and the officer activated his emergency lights, the defendant attempted to conceal himself behind the van and then fled from Officer Cabrera. These are textbook examples of the “alarm” required in the statute, and are even specifically mentioned in section 856.021(2). Finally, when Officer Cabrera asked the defendant to explain what he was doing, the defendant provided contradictory statements, and he admitted that he did not know whose van he had just tried to enter.

Based on this evidence, the trial court correctly concluded that there was probable cause to support the defendant’s arrest for loitering or prowling. Thus, the evidence obtained after the defendant’s arrest was lawfully obtained.

Affirmed.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Moishe MANA, Petitioner, v. Anthony Jimmy CHO a/k/a Tony Cho, Metro 1 Properties, Inc., a Florida corporation, Scott Alan Silver, and Grouper Financial, Inc., a Florida corporation, Respondents.
    No. 3D14-1318.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.
    The Fischman Law Firm, P.A., and Bruce D. Fischman, Miami, and Jenna L. Fischman, for petitioner.
    Boies, Schiller & Flexner LLP, and Bruce Aan Weil and Steven W. Davis, Miami, for respondents.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   ROTHENBERG, J.

Moishe Mana (“Mana”) petitions this Court for a writ of certiorari to quash the trial court’s discovery order compelling him to produce his personal financial information, such as tax returns and income statements, a copy of all documents between Mana and three particular individuals, and a copy of all documents between Mana and any agent and/or broker of defendant Metro I Properties, Inc. (“Metro”). Because the portion of the discovery order requiring Mana to produce his personal financial information departs from the essential requirements of law and will cause material injury to Mana that cannot be adequately redressed on appeal, we grant the petition in part and quash the portion of the discovery order compelling Mana to produce his personal financial information. We, however, deny the petition in all other respects.

In the underlying lawsuit, Mana filed an amended complaint against Anthony Jimmy Cho (“Cho”), Metro, Scott Alan Silver (“Silver”), and Grouper Financial, Inc. (“Grouper Financial”) (collectively, “the Respondents”), alleging that Mana engaged Cho and Metro, both licensed real estate brokers, to assemble more than twenty-five acres of land within the Wyn-wood area, which would allow Mana to develop a project. Thereafter, Mana began to purchase properties within the specified area based on Cho’s and Metro’s advice, and Cho and Metro agreed that it would seek to acquire four specific parcels of vacant land that Mana needed to go forward with the project. However, instead of acquiring the four vacant parcels for Mana’s benefit as agreed, Cho, Metro, and Silver, through Grouper Financial, entered into a written agreement regarding the four vacant parcels to their own benefit without including Mana.

Mana alleged that Metro, Cho, and Silver breached their statutory duties to Mana under section 475.278(2)(a) of the Florida Statutes by failing to deal honestly and fairly with Mana and by failing to exercise their skill, care and diligence on Mana’s behalf. Mana also alleged that Grouper Financial and Silver conspired with Cho and Metro to assist in the commission of the violations of section 475.278(2)(a).

In the complaint, Mana sought “compensatory damages equal to the value of lost business opportunity ...However, in his response to interrogatories, Mana limited the damages he was seeking by stating: “[Mana’s] measure of damages is the difference between the fair market value of the subject properties at the time of the statutory breach and the fair market value of the properties at the time of trial. The amount shall be provided following completion of appraisals.”

Thereafter, Metro and Cho filed a counterclaim against Mana alleging that Mana tortiously interfered with contractual relationships (employment contracts) between Metro and two of Metro’s agents by inducing these agents to acquire land for Mana’s benefit in the Wynwood area through a straw buyer in violation of the agents’ employment contracts with Metro. Metro and Cho also asserted additional counterclaims against Mana for defamation and abuse of process.

A party seeking certiorari relief must demonstrate that the trial court’s order “depart[s] from the essential requirements of law, resulting in irreparable harm that cannot be adequately remedied on final appeal.” Millennium Diagnostic Imaging Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 129 So.3d 1086, 1089 (Fla. 3d DCA 2013); see also Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014); Miccosukee Tribe of Indians v. Lehtinen, 114 So.3d 329, 331 (Fla. 3d DCA 2013) (“A common law writ of certiorari is proper and will be granted when a trial court’s determination constitutes a clear departure from the essential requirements of the law resulting in material injury for the remainder of the case that cannot be properly remedied on post-judgment appeal.”). “Material injury and irreparable harm are ‘jurisdictional prerequisites to certiorari relief.’ ” Millennium Diagnostic Imaging Ctr., 129 So.3d at 1089 (quoting Nucci v. Nucci 987 So.2d 135, 139 (Fla. 2d DCA 2008)); see also Poston v. Wiggins, 112 So.3d 783, 785 (Fla. 1st DCA 2013) (hold-mg that the reviewing court “must first conduct a jurisdictional analysis to determine whether the petitioner had made a prima facie showing of irreparable harm” before ruling on a certiorari petition).

“Discovery is limited to those matters relevant to the litigation as framed by the parties’ pleadings.” Rousso v. Hannon, 146 So.3d at 69. “Generally, private individual financial information is not discoverable when there is no financial issue pending in the case to which the discovery applies.” Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450 (Fla.2012); see also Aspex Eyewear, Inc. v. Ross, 778 So.2d 481, 481-82 (Fla. 4th DCA 2001) (“Ordinarily the financial records of a party are not discoverable unless the documents themselves or the status which they evidence is somehow at issue in the case.”).

In the instant case, the Respondents argue that Mana’s personal financial information is relevant because he has sought “compensatory damages equal to the value of lost business opportunity,” and that Mana’s personal financial information will shed light on the amount of damages, if any, Mana has incurred as a result of his alleged “lost business opportunity.” The Respondents’ argument may have been meritorious if Mana was seeking damages for the loss of the business income.for the proposed project that did not come to fruition due to the Respondents’ alleged actions; however, as set forth in Mana’s interrogatory response, by which he is now bound, he is not. Rather, Mana is seeking damages for “the difference between the fair market value of the subject properties at the time of the statutory breach and the fair market value of the properties at the time of trial. The amount shall be provided following completion of appraisals.” Mana’s personal financial information has no bearing on the property value of the four vacant parcels, and is therefore irrelevant to the litigation. Allowing irrelevant discovery is a clear departure from the essential requirements of law, and the discovery of confidential financial information is the type of “cat out of the bag” discovery that can cause material injury that cannot be adequately redressed on appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Thus, we grant the petition for writ of certiorari in part and quash the portion of the discovery order pertaining to Mana’s personal financial information.

Finally, without further discussion, we deny the remaining portions of the petition for writ of certiorari because we conclude that the trial court’s discovery order requiring Mana to produce a copy of all documents between himself and three particular individuals and also between himself and any of Metro’s agents and/or brokers does not depart from the essential requirements of law. These documents, unlike Mana’s financial information, are relevant to the litigation as framed by the counterclaim. See Rousso, 146 So.3d at 69. (“Discovery is limited to those matters relevant to the litigation as framed by the parties’ pleadings.”).

Petition granted in part; discovery order quashed in part.


author: FERNANDEZ, J.

text:
    Jermaine HARRIS, et. al., Petitioners, v. Timothy RYAN, Director, and The State of Florida, Respondents.
    Nos. 3D14-1595, 3D14-1594, 3D14-1593.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.

      Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for petitioners.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for respondents.
    Before WELLS, SUAREZ and FERNANDEZ, JJ.
   FERNANDEZ, J.

In these consolidated petitions for writs of habeas corpus, petitioners Jermaine Harris, Rolando Gonzalez, and Lamothe Jean, challenge the revocation of their release to pretrial intervention (“PTI”) after respondent State of Florida charged each defendant with the commission of a new crime in violation of pretrial release conditions. We deny the petitions because the trial court did not abuse its discretion when it denied the petitioners’ motions for bond.

This Court reviews conditions of a pretrial release under an abuse of discretion standard. See Hernandez v. Roth, 890 So.2d 1173, 1174 (Fla. 3d DCA 2004). Sections 903.047(l)(a), 903.0471, and 907.041(4)(c)7, Florida Statutes (2014), provide for revocation of the defendants’ pretrial release under the circumstances presented in these cases. Under section 903.047(l)(a), Florida Statutes (2014), as a condition of pretrial release, a defendant shall “[r]efrain from criminal activity of any kind.” Section 903.0471, Florida Statutes (2014), provides that “a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.” Further, section 907.041(4)(c)7, Florida Statutes (2014), provides that a court may, within its discretion, order pretrial detention if a defendant violates pretrial release conditions.

PTI is a discretionary form of pretrial release. See § 948.08(l)-(2), Fla. Stat. (2013). The prosecution of a defendant on pretrial release for PTI who does not fulfill his or her obligations may continue at the discretion of the prosecuting authority. See Cleveland v. State, 417 So.2d 653, 654 (Fla.1982) (section 944.025, Florida Statutes (1979), allows the state attorney to continue prosecution if defendant is not fulfilling his obligations under the program or if the public interest requires). Further, the Florida Supreme Court in Cleveland noted that the state attorney’s decision to reinstate prosecution is discretionary and not subject to judicial review. Id. Therefore, the pretrial intervention program falls within the pretrial release statute’s meaning, and the trial court did not abuse its discretion in its revocation of the defendants’ bonds.

Neither does the revocation of the defendants’ bonds constitute a violation of due process. In Parker v. State, 843 So.2d 871, 879-80 (Fla.2003), the Florida Supreme Court determined that a trial court’s revocation of a defendant’s pretrial release after the defendant committed another crime while on bond for pending charges was not a due process violation. The Florida Supreme Court found that an adversarial hearing was not required and that section 903.0471, Florida Statutes (2000) is consistent with article 1, section 14 of the Florida Constitution. Id.

The Florida Supreme Court has, in fact, construed section 903.0471 broadly to authorize trial courts to revoke a defendant’s pretrial release when a second crime is committed from jail even when a defendant has not been physically released from custody. See Santiago v. Ryan, 109 So.3d 848, 849 (Fla. 3d DCA 2013). This Court held in Williams v. Spears, 814 So.2d 1167, 1170 (Fla. 3d DCA 2002), that “[t]he integrity of the judicial process is undercut if the courts do not have effective tools to use where a defendant free on bail commits a further crime.” See also Perry v. State, 842 So.2d 301, 303 (Fla. 5th DCA 2003) (finding that a court may revoke bail “based solely on a probable cause affidavit”).

Furthermore, the defendants signed a waiver form upon acceptance into the pretrial intervention program which stated, “I understand that if I violate the rules of the program which have been explained to me and which I have agreed to, that my case will be returned to court for prosecution.” Additionally, the program’s rules and regulations provided that the defendants “must not get re-arrested for any criminal offense” while in the program. The defendants do not dispute that they were arrested for new crimes.

For these reasons, the defendants’ subsequent criminal activity while released within the pretrial intervention program was sufficient to warrant the revocation of their bonds. We therefore deny the petitions in these consolidated appeals because the trial court did not abuse its discretion.

Petitions denied.

      . Section 948.08 provides as follows:
      948.08 Pretrial intervention program
      (1) The department shall supervise pretrial intervention programs for persons charged with a crime, before or after any information has been filed or an indictment has been returned in the circuit court. Such programs shall provide appropriate counseling, education, supervision, and medical and psychological treatment as available and when appropriate for the persons released to such programs.
      (2) Any first offender, or any person previously convicted of not more than one nonviolent misdemeanor, who is charged with any misdemeanor or felony of the third degree is eligible for release to the pretrial intervention program on the approval of the administrator of the program and the consent of the victim, the state attorney, and the judge who presided at the initial appearance hearing of the offender. However, the defendant may not be released to the pretrial intervention program unless, after consultation with his or her attorney, he or she has voluntarily agreed to such program and has knowingly and intelligently waived his or her right to a speedy trial for the period of his or her diversion. The defendant or the defendant’s immediate family may not personally contact the victim or the victim’s immediate family to acquire the victim’s consent under this section.

      . It is noteworthy that at no time in the three consolidated cases was there a finding of no probable cause which would require a release of the defendants without condition; indeed, the State filed an information in each of the defendant’s cases, charging each defendant, and judicial approval was obtained prior to placing each defendant in PTI.


author: SCALES, J.

text:
    Humberto TERANT, et al., Appellants, v. BELTWAY CAPITAL, LLC, Appellee.
    No. 3D14-302.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.

      Robert P. Bissonnette, P.A., and Robert P. Bissonnette, Fort Lauderdale, for appellants.
    Richman Greer, P.A., and Manuel Far-ach, West Palm Beach; Richman Greer, P.A., and Lyle E. Shapiro, Miami, for ap-pellee.
    Before ROTHENBERG, LOGUE and SCALES, JJ.
   SCALES, J.

In this mortgage foreclosure case, Humberto Terant, et al, the defendant/borrower, appeals the trial court’s sequestration order requiring that all revenues generated from the subject property be deposited into the registry of the court. We affirm the trial court’s order because, as defendant properly concedes, the error was not preserved, and the trial court’s error is not “fundamental error” warranting reversal.

I. Facts

On January 8, 2007, the borrower executed a mortgage securing an $840,000 promissory note. The mortgage encumbered a transient lodging establishment known as the European Guest House, a bed-and-breakfast lodging establishment located in Miami Beach. Oddly, the mortgage was a standard Fannie Mae/Freddie Mac single-family home form mortgage.

The borrower contemporaneously executed a Family Rider (Assignment of Rents) form, which unconditionally assigned to the Lender all the rents and revenues of the property.

In relevant part, Section H of the assignment of rents, reads as follows:

H. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN POSSESSION. Borrower absolutely and unconditionally assigns and transfers to Lender all the rents and revenues (“Rents”) of the Property, regardless of to whom the Rents of the Property are payable. Borrower authorizes Lender or Lender’s agents to collect the Rents, and agrees that each tenant of the Property shall pay the Rents to Lender or Lender’s agents. However, Borrower shall receive the Rents until (i) Lender has given Borrower notice of default ... and (ii) Lender has given notice to the tenant(s) that the Rents are to be paid to Lender or Lender’s agent.
Lender shall be entitled to have a receiver appointed to take possession of and manage the Property and collect the Rents and profits derived from the Property without any showing as to the inadequacy of the Property as security.

In November 2007, the lender’s assign-ee, Appellee Beltway Capital (Beltway), filed the instant foreclosure action, alleging the borrower was in default of the note and mortgage.

In November 2013, Beltway filed a motion seeking an order from the trial court requiring the borrower “to sequester all collected rents for the real property ... pursuant to Fla. Stat. Section 697.07(4).”

On January 9, 2014, the trial court held a hearing on Beltway’s motion, and the following day, January 10, entered the order on appeal. The order required the borrower to “deposit all rents collected from the Property into the registry of this Court within five (5) days from receipt thereof’ during the pendency of the foreclosure action.

The order also contained the following language: “All of the rents, revenue, income, and profits from the Property shall constitute and be construed as ‘rents’ for all purposes under Section 697.07 (2013), Florida Statutes.”

On January 16, 2014, Terant filed a Motion to Vacate and/or Amend the trial court’s January 10 sequestration order. In the motion, Terant argued that it was impossible for the borrower to comply with the order without “waste occurring and without destroying the continued existence of the business being conducted thereon[.]” Terant requested that the trial court enter an amended order excluding the guest house’s operating expenses from the sequestration order.

On February 7, 2014, Terant filed the instant appeal on the trial court’s January 10, 2014, sequestration order. We relinquished jurisdiction of the case to allow the trial court to hear Terant’s Motion to Vacate and/or Amend the sequestration order.

On April 11, 2014, the trial court conducted a hearing on Terant’s Motion to Vacate and/or Amend. While the transcript to that hearing is in the record before this court, the resulting order denying the borrower’s motion is not in the record.

II. Borrowers’Arguments on Appeal

On appeal, Terant makes three arguments: (i) Beltway should be estopped from seeking sequestration of rents because Beltway waited over six years to seek rent sequestration, (ii) the trial court’s expansive definition of “rents” to be sequestered constituted fundamental error, and (in) Beltway lacks standing to bring the foreclosure action. At oral argument, Terant conceded that the third argument (regarding standing) was without merit. Likewise, we summarily conclude Terant’s estoppel argument is without merit.

We write only to address Terant’s second argument, i.e., that the trial court committed “fundamental error” by requiring the sequestration of all business revenues generated from the borrower’s commercial operation of the subject property.

At oral argument, Terant conceded that he had not preserved this argument, and that, to reverse the trial court’s order on this basis, this court would have to conclude that the trial court committed “fundamental error.”

III. Analysis

Generally, for an appellate court to reverse unpreserved error in a civil case, the error has to be “fundamental error,” i.e., error which goes to the foundation of the case, Millen v. Millen, 122 So.3d 496, 498 (Fla. 3d DCA 2013), or involves an egregious deprivation of a constitutional right. Sec. Bank, N.A. v. Bell-South Adver. & Publ’g Corp., 679 So.2d 795, 803 (Fla. 3d DCA 1996); Yau v. IWD-Warriors, Corp., 144 So.3d 557 (Fla. 1st DCA 2014).

A trial court’s improper construing of a contract or statute generally does not implicate fundamental error. See, e.g., Millen, 122 So.3d at 498 (concluding trial court’s allowance of guardian ad litem to question a witness contrary to statute did not warrant reversal because the error was not fundamental to the case).

While we agree with the borrower that “rents” which are subject to foreclosure proceeding sequestration pursuant to either (i) Section 697.07, Florida Statutes (2013) or (ii) Section H of the mortgage’s assignment of rents rider, do not include all general accounts receivable and business revenues generated from all commercial use of the subject property, we conclude that the trial court’s error in this regard did not constitute fundamental error.

Affirmed.

      . The term "rents” contemplated in Section 697.07 does not include the revenues collected by a hotel from charges to hotel guests. See Orlando Hyatt Assocs., Ltd. v. F.D.I.C, 629 So.2d 975, 977 (Fla. 5th DCA 1993); In re Ashoka Enters., Inc., 125 B.R. 845, 846 (Bankr.S.D.Fla.1990); In re Shore Haven Motor Inn, Inc., 124 B.R. 617, 618 (Bankr. S.D.Fla.1991); In re Punta Gorda Assocs., 137 B.R. 535, 537 (Bankr.M.D.Fla.1992).

      . The definition of "Rents” in Section H includes two components: rents derived from the subject property and revenues derived from the subject property. However, all such-defined "Rents” are payable to the borrower unless and until the Lender provides notice to tenants that such payments are to be paid to the Lender. Plainly general business receipts of the borrower (such as guest room revenues) are not contemplated as "Rents” under this provision. See Bari Builders, Inc. v. Hovstone Props. Fla., LLC, No. 4D14-765, - So.3d-, 2014 WL 3843070 (Fla. 4th DCA Aug. 6, 2014) (citing J.C. Penney Co. v. Hoff, 345 So.2d 732, 735 (Fla. 4th DCA 1977) (stating to determine their true meaning, courts must review contracts "without fragmenting any segment or portion”)); see also World Vacation Travel, S.A., de C.V. v. Brooker, 799 So.2d 410, 412 (Fla. 3d DCA 2001) (quoting Paddock v. Bay Concrete Indus., Inc., 154 So.2d 313, 315-16 (Fla. 2d DCA 1963) (advising that all of the various parts of a contract must be construed so as to give effect to each)).
      It is clear from the text of Section H that the "revenues" component of "Rents” relates to sums a borrower-landlord may collect from a tenant and pay to the third-parties, such as taxes, insurance, and utilities.
      Additionally, had the parties contractually intended for the term “Rents” to include all business receipts derived by the borrower from the property, the use of the words “and profits” after the word "Rents” — relating to what a receiver is empowered to collect— would be mere surplusage. It bears noting that Appellee did not seek the appointment of a receiver in this case.
      Finally, construing the word "Rents” in this Family Rider form, intended for single-family home loans, to include all business receipts of the borrower derived from the mortgaged property could lead to absurd results. Surely, the mortgage does not provide for an unconditional assignment of all business receipts generated from the borrower’s use of a home office, garage sale, or lemonade stand on the subject property. See Paddock, 154 So.2d at 316 (stating "if one construction [of a contract] would lead to an absurd conclusion, such interpretation must be abandoned and that adopted which will be more consistent with reason and probability”).


author: PER CURIAM.

text:
    C.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2719.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Mary-Grace L. Mendoza, Assistant Attorney General, for appellee.
    Before WELLS, SUAREZ, and SALTER, JJ.
   PER CURIAM.

C.H. appeals a withhold of adjudication on a juvenile charge entered after she turned 20 years old. We affirm finding that the withhold was a confirmation of a previously entered oral disposition made pursuant to a plea agreement. We reverse the admonishment entered by the trial court simultaneously with that adjudication because that admonishment was not part of the previously entered sentence.

Affirmed in part and reversed in part.


text:
    Alba Nubia SENCI, Appellant, v. The BANK OF NEW YORK MELLON, etc., Appellee.
    No. 3D13-2792.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.
    Alba Nubia Senci, in proper person.
    Baker, Donelson, Bearman, Caldwell & Berkowitz, and Heidi J. Weinzetl (Fort Lauderdale), for appellee.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   PER CURIAM.

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


text:
    D.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-3082.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.
    Carlos J. Martinez, Public Defender, and Harvey Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before WELLS, SUAREZ and SALTER, JJ.
   WELLS, Judge.

Affirmed. See State v. Kirer, 120 So.3d 60 (Fla. 4th DCA 2013); Henderson v. State, 88 So.3d 1060 (Fla. 1st DCA 2012); State v. McCune, 772 So.2d 596 (Fla. 5th DCA 2000); Green v. State, 530 So.2d 480 (Fla. 5th DCA 1988); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).


text:
    Reid WELCH, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D14-1053, 3D14-1572.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.
    Reid Welch, in proper person.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LOGUE and SCALES, JJ.
   PER CURIAM.

Appellant, Reid Welch, appeals from the trial court’s April 17, 2014, order denying, without prejudice, Welch’s Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief.

Although the State properly confessed error — based on Rodriguez v. State, 45 So.3d 938, 939 (Fla. 3d DCA 2010), and Alfonso v. State, 35 So.3d 978, 979 (Fla. 3d DCA 2010),, — given Welch’s position that, “I positively refuse [the] ‘opportunity’ to amend the postconviction motion,” we affirm the order on appeal.

Affirmed.

      . In these cases, the trial court entered orders denying, without prejudice, the defendant's postconviction motions, reflecting its intent to allow the defendants to file amended motions; yet, in the same order, the trial court also advised the defendants of their right to appeal the order within thirty days. Based on the ambiguity, this court remanded, allowing the defendants to file amended motions.

      . Florida Rule of Criminal Procedure 3.850(f)(2) states that, when denying a timely Rule 3.850 motion for insufficiency, a trial court is required to enter a nonfinal, nonap-pealable order allowing the defendant sixty days to file an amended motion.


author: WALLIS, J.

text:
    R.M.L., Mother of R.L. and V.L., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D14-2556.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2014.
    H. Kyle Fletcher, Jr., of Fletcher Law Firm, Oviedo, for Appellant.
    Rosemarie Farrell, Appellate Counsel, Orlando, Department of Children and Families, for Appellee.
   WALLIS, J.

R.M.L., mother of R.L. and V.L., appeals the trial court’s order entering an adjudication of dependency and finding the children dependent. R.M.L. argues only that the written order does not reflect the trial court’s oral ruling, which withheld adjudication of dependency but found the children dependent. We agree. B.C. v. Dep’t of Child. & Fams., 864 So.2d 486, 488-89 (Fla. 5th DCA 2004) (“Where there is a difference between the court’s oral pronouncement and its written order, the oral pronouncement controls.” (citing D.F., Jr. v. State, 650 So.2d 1097 (Fla. 2d DCA 1995))). The transcript clearly reflects the trial court’s ruling that it was withholding adjudication and finding the children dependent. Accordingly, we remand the matter with instructions to conform the written order to the trial court’s oral pronouncement.

REVERSED and REMANDED.

PALMER and ORFINGER, JJ., concur.


text:
    Eddie WILLIAMS, Appellant, v. Regina WILLIAMS, Appellee.
    No. 5D13-3559.
    District Court of Appeal of Florida, Fifth District.
    Oct. 3, 2014.
    Mark A. Skipper of Law Office of Mark A. Skipper, P.A., Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Eddie Williams, the former husband, appeals a final judgment of dissolution and an order entered on his timely motion for rehearing. We affirm- in most respects, but agree with Appellant that the trial court, erred by awarding attorney’s fees to the Appellee without making the findings required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), and where the evidence did not support a finding that Appellant had an ability to pay Appellee’s fees. The trial court also erred by awarding the dependency tax exemption for the child to Appellee without adequate explanation, when she was not working. Accordingly, we affirm in part but reverse the attorney’s fees award and dependency tax exemption ruling. On remand, the trial court shall strike its award of attorney’s fees to Appellee, and readdress the dependency exemption for the minor child.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

LAWSON, LAMBERT, JJ., and WOODARD, J.L., III, Associate Judge, concur.

      . E.g., Kranz v. Kranz, 737 So.2d 1198 (Fla. 5th DCA 1999).


text:
    Christopher COUTINO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3958.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2014.

      Nancy Daniels, Public Defender; Steven L. Seliger and Michael Macnamara, Assistant Public Defenders; Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits.

THOMAS, ROBERTS, and ROWE, JJ., concur.


author: PER CURIAM. JOHNSON, Chief Justice,

text:
    STATE ex rel. Roger Wayne NASH v. STATE of Louisiana.
    No. 2013-KH-2032.
    Supreme Court of Louisiana.
    Sept. 19, 2014.
   PER CURIAM.

L Granted; relief denied; sentence corrected. The district court erred in granting relator’s motion to correct an illegal sentence by amending his sentence to reflect that it is no longer without parole eligibility and ordering the Louisiana Department of Corrections to revise relator’s prison master accordingly. The court further erred by directing the Department to calculate an eligibility date for parole consideration according to the criteria provided by La.R.S. 15:574.4(A)(2). Although relator seeks review because the district court did not provide him the remedy he sought — resentencing according to the applicable range for the next responsive verdict of manslaughter — the district court erred in granting relator any relief. The decision in Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), is not retroactive to final sentences. State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, — U.S.—, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014). The district court’s order is therefore vacated in its entirety. Relator’s original sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence is reinstated. See La.C.Cr.P. art. 882 (an appellate court may correct an illegal sentence “at any time”); see also State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. The Department of Corrections is directed to maintain relator’s prison master in conformity with the terms of the sentence required by law.

JOHNSON, C.J., would deny.

JOHNSON, Chief Justice,

dissents.

Li would deny the writ application.


text:
    Anthony J. RUSSO v. Lionel BURNS, Jr., and the Honorable Arthur A. Morrell.
    No. 2014-C-1963.
    Supreme Court of Louisiana.
    Sept. 24, 2014.
   PER CURIAM.

| ¶ This writ concerns whether defendant, Lionel Burns, Jr., must be disqualified from candidacy for the office of Orleans Parish District Attorney. For the reasons articulated below, we find the defendant falsely certified having filed his Louisiana individual income tax returns for the years 2010-2013, and, therefore, is disqualified from candidacy under Louisiana law.

On August 20th, 2014, Burns filed a signed and notarized Notice of Candidacy form which included the following certification as required by La. R.S. § 18:463(A)(2)(a):

If I am a candidate for any office other than United States senator or representative in congress, that for each of the previous five tax years, I have filed my federal and state income tax returns, have filed for an extension of time for filing either my federal or state income tax return or both, or was not required to file either a federal or state income tax return or both.

Plaintiff, Anthony J. Russo, brought this lawsuit on August 29th, 2014, asserting Burns had falsely certified having filed his state income tax returns for four of the five previous years and, therefore, must be disqualified as a candidate for office pursuant to La. R.S. § 18:492 and La. R.S. 18:494(A).

12At trial on September 2, 2014, Russo introduced correspondence to and from the Louisiana Department of Revenue (LDR) in which he requested Burns’s tax returns for 2008-2013, and LDR replied it had no tax returns on file for Burns for the years 2010-2013. Additionally, a representative of LDR testified at trial and confirmed he had performed a diligent search but could find no record of any income tax returns filed by Burns since 2009. The trial court asked LDR to perform an updated search, and LDR verified it still had no record of any filings for the disputed years as of September 2, 2014.

Disqualification: When an objection to a candidacy is sustained on the ground that the defendant failed to qualify for the primary election in the manner prescribed by law, that the defendant failed to qualify for the primary election within the time prescribed by law, or that the defendant does not meet the qualifications for the office he seeks, the final judgment shall disqualify the defendant as a candidate in the primary election for the office for which he failed to qualify properly.

Burns admitted at trial he had previously been aware of the potential problems regarding his filing status. Because of these concerns, he stated he had hired a tax preparer, Melissa Jackson, in August to file his income tax returns. After the lunch break at trial, Burns produced copies of records purportedly showing his tax returns which had been prepared. Burns asserts he believed in good faith that Jackson had filed his tax returns for him in early August, and therefore, did not make any false certifications on his Notice of Candidacy. Burns requested he be allowed to call Jackson as a witness on the following morning.

Initially, Burns’s request to allow Jackson to testify in a second day of the hearing was denied by the trial court, which cited the expedited nature of hearings launder the Louisiana Election Code. The trial court disqualified Burns as a candidate, finding Russo had established a pri-ma facie case which had not been effectively rebutted. Burns appealed. The Fourth Circuit remanded in order to allow Jackson’s testimony. Anthony Russo v. Lionel Bums, Jr., et al, 2014-CA-0952 (La.App. 4 Cir. 9/9/14), — So.3d —, 2014 WL 4636409.

On remand, Jackson testified to having prepared Burns’s tax returns in August of 2014. She acknowledged she may not have been the one to physically go inside the post office on Louisiana Avenue in New Orleans; however, she claimed she drove to the post office with the person from her office who would have mailed the returns. She testified to having memory lapses due to her diabetic condition. A United States Postal Service “Certificate of Mailing”- dated August 15th, 2014 was admitted into evidence. Jackson said she kept this certificate to document the tax returns had been mailed, in accordance with her normal custom. She did not send the returns via certified mail. She verified she told Burns his returns were mailed.

Russo presented rebuttal testimony from a paralegal employed by his counsel’s law firm, Helena Shear. Shear said she went to the same post office to mail letters, The certificates of mailing received by Shear and introduced into evidence showed postage paid affixed to the certificates, unlike the certificates of mailing introduced into evidence by Burns.

Additionally, Russo directed the trial court to LDR’s regulations regarding filing of income tax returns, found in La. Admin. Code tit. 61, pt. I, § 4911(B)(1):

Delivery by the United States Postal Service. A return, report or other document in a properly addressed envelope with sufficient postage delivered by the United States Postal Service is deemed filed on the date postmarked by the United States Postal Service. [Emphasis added].

Russo argues this provision shows LDR regulation unambiguously states income tax returns are not filed until they have been delivered to LDR.

The trial court determined Bums certified “to the best of his knowledge” that |4he had in fact filed his taxes. Finding Burns submitted sufficient evidence to rebut the prima facie case established by plaintiff, the trial court overruled the plaintiffs objection to Burns’s candidacy, effectively reinstating his qualification. The Court of Appeal affirmed in a split decision.

We find the lower courts erred as a matter of law in not looking to the unambiguous language regarding filing provided by LDR’s regulations. “Filing” of tax returns is clearly defined under regulation: “A return, report or other document in a properly addressed envelope with sufficient postage delivered by the United States Postal Service is deemed filed on the date postmarked by the United States Postal Service.” La. Admin. Code tit. 61, pt. I, § 4911(B)(1) (emphasis added). Returns which have not been delivered to LDR by the United States Postal Service have not been filed pursuant to this clear language.

Although Louisiana law favors candidacy, once an objector makes a prima facie showing of grounds for disqualification, the burden shifts to the defendant to rebut the showing. Landiak v. Richmond, 05-0758, p. 7-8 (La.3/24/05), 899 So.2d 535, 541-2. It is undisputed that as of August 15th, 2014, only five days prior to his attempt to qualify as a candidate for the office of Orleans Parish District Attorney, Burns had not filed his Louisiana state individual income tax returns for the years 2010, 2011, 2012 and 2013. Without sending the returns via certified mail or otherwise ensuring their delivery to LDR, Burns could not have known whether or not his tax returns had been filed pursuant to Louisiana regulation when he signed his Notice of Candidacy. We find Russo presented a prima facie case, which has not been rebutted by Burns, that the tax returns have not been delivered to LDR and were therefore not filed. Accordingly, we hereby reverse the trial court and disqualify Burns from candidacy for the office of Orleans Parish District Attorney for falsely certifying the filing of these tax returns.

REVERSED.

JOHNSON, C.J., dissents and assigns reasons.

JOHNSON, Chief Justice,

dissents and assigns reasons.

hi would deny the writ application, finding the lower courts correctly concluded that the candidate met the requirements of his candidacy.

Because election laws must be interpreted to give the electorate the widest possible choice of candidates, a person objecting to candidacy bears the burden of proving that the candidate is disqualified. Landiak v. Richmond, 05-0758 (La.3/24/05), 899 So.2d 535, 541. Further, a court determining whether the person objecting to candidacy has carried his burden of proof must liberally construe the laws governing the conduct of elections “so as to promote rather than defeat candidacy.” Id. Any doubt concerning the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office. Id. Once the objector makes a prima facie case, the burden shifts to the candidate to present sufficient evidence to overcome the prima facie case. Id. at 542. I disagree with the majority’s finding that the candidate did not sufficiently rebut the plaintiffs prima facie case. When the defendant. executed his affidavit he believed that his tax returns had been deposited in the U.S. mail. Thus, when he qualified for office, he certified to the best of his knowledge he had filed his taxes. I note in a similar case, Louisiana Board of Ethics vs. Wilson, 2014-C-1908, this court found that Mr. LWilson was a qualified candidate because he believed his fines were paid.

Additionally, I disagree with the majority’s interpretation of La. Admin. Code tit. 61, pt. I, § 4911, (B)(1). When using U.S. mail, the standard is not determined by the date on which the Louisiana Department of Revenue gains physical possession of the tax return; but, rather, when the filing party postmarked the returns. The majority’s interpretation of this provision would mean that Mr. Burns must ensure delivery and essentially perform the job of the U.S. Postal Service. Mr. Burns clearly exercised his reasonable best efforts to file his tax returns prior to qualifying for office.

Therefore, the defendant here should be deemed as a qualified candidate for district attorney.

      . La. R.S. 18:492 states, in pertinent part:
      A. An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:

      (7) The defendant falsely certified on his notice of candidacy that for each of the previous five tax years he has filed his federal and state income tax returns, has filed for an extension of time for filing either his federal or state income tax return or both as provided in R.S. 18:463(A)(2), or was not required to file either a federal or state income tax return or both.

      . La. R.S. 18:494(A) states:


text:
    WAL-MART ASSOCIATES, INC. v. Glenda WOODEN. Marion H. Sims v. Key Energy Services, Inc. Brian Gagnon v. Jay Mallard Ford.
    No. 2014-CC-0387.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Jay Mallard Ford; — Defendant; Applying For Supervisory and/or Remedial Writs Office of Worker’s Compensation District IE, Nos. 11-08462 C/W 12-02019, 12-02028; to the Court of Appeal, Second Circuit, Nos. 47,998-WCW, 48,051-WCW, 48,437-WCA.

Granted. The judgment of the Office of Workers’ Compensation is vacated. The case is remanded to the Office of Workers’ Compensation for reconsideration in light of Church Mutual Co. v. Dardar, 13-2351 (La.5/7/14), 145 So.3d 271, and Cook v. Family Care Services, Inc., 13-2326 (La.5/7/14), 144 So.3d 969.


text:
    Chet David JEANSONNE v. Cory Paul ROY, et al.
    No. 2014-C-0729.
    Supreme Court of Louisiana.
    June 30, 2014.
   In re Jeansonne, Chet David; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2012-7682; to the Court of Appeal, Third Circuit, No. 13-741.

Writ granted in part and denied in part. The court of appeal erred in awarding attorney’s fees pursuant to Louisiana Code of Civil Procedure Article 971. That portion of the ruling is hereby reversed. In all other respects, the writ is denied.


text:
    Brenda C. REDDOCH, Louise Barney, Lynn Sanger and Lettie Marinovich v. The PARISH OF PLAQUEMINES, the Plaquemines Parish Council, and ABC Insurance Company.
    No. 2014-C-0898.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Plaquemines Parish Government; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 48-380; to the Court of Appeal, Fourth Circuit, No. 2013-CA-0788.

Denied.


text:
    Jonathan PARKER v. FLANAGAN INSPECTION & TESTING, L.L.C., et al.
    No. 2014-C-0900.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Parker, Jonathan; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. C, No. 2012-5546; to the Court of Appeal, Third Circuit, No. 13-1261.

Denied.


text:
    Cynthia BRIDGES, Sec., LA Dept, of Revenue v. CEPOLK CORPORATION.
    No. 2014-C-0901.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Cepolk Corporation; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. A, No. 84,051; to the Court of Appeal, Third Circuit, No. 13-1051.

Denied.

HUGHES, J., would grant.


text:
    Rozina AMLANI v. Rocky James McGEE, et al.
    No. 2014-C-0905.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re McGee, Rocky James; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. D, No. 76,548; to the Court of Appeal, Third Circuit, No. 13-950.

Denied.


text:
    Nancy BLANCHARD and Park Plantation, L.L.C. v. LINDER OIL COMPANY, a Partnership; Tortuga Operating Co.; and Blanchard 1986 Ltd., a Limited Partnership.
    No. 2014-C-0906.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Maclean, Paul; — Other; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 606-555; to the Court of Appeal, Fifth Circuit, No. 13-CA-737.

Denied.


text:
    Bobby MORGAN v. Ravish V. PATWARDHAN, M.D.
    No. 2014-C-0919.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Morgan, Bobby; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 1, No. 546567; to the Court of Appeal, Second Circuit, No. 48,626-CA.

Denied.

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


text:
    DILLARD UNIVERSITY v. Tim BARFIELD, Secretary Department of Revenue State of Louisiana.
    No. 2014-C-0940.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re State of Louisiana Department of Revenue; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 2013-00216; to the Court of Appeal, Fourth Circuit, No. 2013-CA-1336.

Denied.


text:
    Mitchell LEMAIRE, et al. v. John Frank BLANCHARD, Jr., et al.
    No. 2014-C-0941.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re L. II, M.; Lemaire, Mitchell et al.; Lemaire, Monique; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. I, No. 2010-4888; to the Court of Appeal, Third Circuit, No. 13-942.

Denied.

HUGHES, J., would grant.


text:
    BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE v. BOUDREAUX’S TIRE & AUTO REPAIR, L.L.C.
    No. 2014-C-0942.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Board of Supervisors of Louisiana State University and Agricultural and Mechanical College; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 2010-8662; to the Court of Appeal, Fourth Circuit, No. 2013-CA-0444.

Denied.


text:
    U.S. BANK NATIONAL ASSOCIATION as Trustee for RFMSI 2005S7 v. Walter C. DUMAS.
    No. 2014-C-0943.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Dumas, Walter C.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. C610504; to the Court of Appeal, First Circuit, No. 2012 CA1902.

Denied.

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


text:
    Louis A. PALMER & Keri Kay Shirley Palmer v. VERMILLION HOME BUILDERS, LLC, et al.
    No. 2014-C-0946.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Palmer, Louis A. et al.; Plamer, Keri Kay Shirley; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 1, No. 551,984-A; to the Court of Appeal, Second Circuit, No. 48,838-CA.

Denied.


text:
    Lakhesia LEWIS v. PINE BELT MULTIPURPOSE COMMUNITY ACTION ACQUISITION AGENCY, INC., et al.
    No. 2014-CC-0965.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Lowery Carnival Company Inc.;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 554974; to the Court of Appeal, Second Circuit, No. 48,827-CW.

Denied.

HUGHES, J., would grant.


text:
    James A. PRICE v. Antoinette M. VALENTI, Jefferson Parish Hospital Service District No. 2, Catlin Insurance Company, Inc. and Geico General Insurance Company.
    No. 2014-C-0978.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Price, James A.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 705-529; to the Court of Appeal, Fifth Circuit, No. 18-CA-822. Denied.


text:
    Jerry J. SUIRE and Antonia G. Suire, et al. v. OLEUM OPERATING COMPANY, L.C.
    No. 2014-C-0982.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re J & J Onshore Production, Inc.; Suire, Antonia; Suire, Jerry G.; — Plaintiff/s); Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 2007-697; to the Court of Appeal, Third Circuit, No. 13-736.

Denied.


text:
    Lakhesia LEWIS and Sheldon Hallmon, individually and as natural tutors of the minor child, Sheldon Renard Lewis v. PINE BELT MULTIPURPOSE COMMUNITY ACTION ACQUISITION AGENCY, INC., et al.
    No. 2014-CC-0988.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Hallmon, Sheldon; Lakheshia Lewis, et al.; Lewis, Lakhesia; — Plaintiff/s); Applying for Supervisory and/ or Remedial Writs, Parish of Caddo. 1st Judicial District Court Div. B, No. 554,974; to the Court of Appeal, Second Circuit, No. 48,880-CW.

Denied.


text:
    Lakhesia LEWIS and Sheldon Hallmon, Individually and as Natural Tutors of the Minor Child, Sheldon Renard Lewis v. PINE BELT MULTIPURPOSE COMMUNITY ACTION ACQUISITION AGENCY, INC., et al.
    No. 2014-CC-1190.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re State Fair of Louisiana, Inc.;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 554974; to the Court of Appeal, Second Circuit, No. 48,880-CW.

Denied.


text:
    Clemcy A. LEGENDRE, Jr. v. The TRAVELERS INDEMNITY COMPANY, et al.
    No. 2014-CC-1230.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Legendre, Nellie et al.; Legendre, Tanya; Legendre, Todd; — Plaintiffs); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2013-04245; to the Court of Appeal, Fourth Circuit, No. 2014-C-0154.

Denied.


text:
    Laurie MURRAY v. Lisa CARUSO, Ascension Parish, Louisiana Risk Management Agency, et al.
    No. 2014-CC-1497.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Murray, Laurie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. B, No. 99,379; to the Court of Appeal, First Circuit, No. 2014 CW 0371.

Denied.

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