author: Winokur, J.

text:
    FLORIDA HIGHWAY PATROL, A DIVISION OF the FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Lashonta Renea JACKSON, as personal representative of the Estate of Vontavia Kiara Robinson, Appellee.
    No. 1D16-3940
    District Court of Appeal of Florida, First District.
    February 23, 2018
    Pamela Jo Bondi, Attorney General, and Britt Thomas, Chief Assistant Attorney General, Tallahassee, for Appellant.
    Jack J. Fine and Melissa Susan Sheldon of Fine, Farkash & Parlapiano, P.A., Gainesville, for Appellee.
   Winokur, J.

Immunity from suit is meaningless if a court denies immunity to a party entitled to it, forcing the party to stand trial and appeal the improper denial of immunity. This case concerns our jurisdiction to hear an interlocutory appeal of an order denying immunity to a party claiming entitlement to it. The trial court denied a motion for summary judgment filed by the Florida Highway Patrol (FHP), which had argued, among other things, that it was immune from suit. FHP asserts that we have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi), which permits appellate review of non-final orders that determine "as a matter of law" that a party is not entitled to sovereign immunity. Because the order under review did not explicitly determine, as a matter of law, that FHP was not entitled to sovereign immunity, we dismiss this appeal. But because we perceive an inconsistency between the Florida Supreme Court's decision in Beach Community Bank v. City of Freeport , 150 So.3d 1111 (Fla. 2014), and other cases regarding the specificity with which a court must deny an immunity motion "as a matter of law" to permit interlocutory appellate review, we certify a question of great public importance to the Florida Supreme Court.

BACKGROUND

On January 28, 2012, a brush fire started on Paynes Prairie Preserve in Alachua County. Near midnight on January 29, 2012, two traffic crashes occurred, one on I-75 and one on US-441, both of which included reduced visibility from the fire as a contributing factor. Both roads were closed due to the crashes and visibility concerns, and traffic was diverted onto smaller roads. Several hours later, FHP weighed the safety risks involved with keeping both roads closed, determined that visibility conditions had improved, and reopened I-75. Shortly after, the decedent Vontavia Robinson was driving on I-75 when he was involved in a fatal multiple-vehicle collision due to a sudden deterioration in visibility.

Lashonta Renea Jackson, as personal representative of Robinson's estate, filed an action against FHP alleging negligence in the reopening of I-75. FHP filed a motion for summary judgment asserting that sovereign immunity protected its discretionary decision to reopen the interstate. The trial court denied FHP's motion, finding that disputed factual issues precluded summary judgment. FHP appeals from this order.

ANALYSIS

I. Appealability of non-final orders denying immunity

Only recently were the rules of appellate procedure amended to permit interlocutory appeals of orders denying sovereign immunity. In re Amendments to Fla. Rule of Appellate Procedure 9.130 , 151 So.3d 1217, 1218 (Fla. 2014). In order to understand how this rule should be applied here, a review of the background leading to the amended rule is helpful.

In Mitchell v. Forsyth , 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the United States Supreme Court addressed the pre-trial appealability of an order denying qualified immunity, which protects public officials from federal civil-rights claims under certain circumstances. The Court described such immunity as not simply a defense to liability, but an immunity from suit, which "is effectively lost if a case is erroneously permitted to go to trial." Id. Accordingly, "denial of a claim of qualified immunity, to the extent that it turns on an issue of law " is subject to interlocutory review. Id. at 530, 105 S.Ct. 2806 (emphasis added).

When the Florida Supreme Court encountered this issue in state-court suits, it noted that the Florida Rules of Appellate Procedure at the time did not permit appellate review of non-final orders denying most types of immunity. Tucker v. Resha , 648 So.2d 1187, 1189 (Fla. 1994). Citing Mitchell , the Court agreed that qualified immunity is immunity from suit, and not merely a defense to liability, and that such immunity is lost and cannot be restored on appeal if one is erroneously required to litigate. Id. "[I]f orders denying summary judgment based upon claims of qualified immunity are not subject to interlocutory review, the qualified immunity of public officials is illusory and the very policy that animates the decision to afford such immunity is thwarted." Id. at 1190. In order to make such immunity real rather than illusory, the Court requested an amendment to Rule 9.130 providing that "an order denying summary judgment based upon a claim of qualified immunity is subject to interlocutory review to the extent that the order turns on an issue of law ." Id. at 1190 (emphasis added).

Two years after deciding Tucker , the Florida Supreme Court refused to extend the Tucker rule to governmental claims of sovereign immunity. Dep't of Educ. v. Roe , 679 So.2d 756, 757 (Fla. 1996). The Court stated, "[o]ftentimes, the applicability of the sovereign immunity waiver is inextricably tied to the underlying facts, requiring a trial on the merits. Thus, many interlocutory decisions would be inconclusive and in our view a waste of judicial resources." Id. at 758. The Court found that sovereign immunity, unlike qualified immunity, is not rooted on a worry of undue influence on public officials, and its applicability would not have a chilling effect on public officials doing their jobs. Id. at 759. As such, the benefit of sovereign immunity "will not be lost simply because review must wait until after final judgment," and the Court declined to permit interlocutory appeals of orders denying sovereign immunity. Id.

The Court later analyzed the individual immunity protections of section 768.28(9)(a), Florida Statutes, and determined that this immunity is more similar to qualified immunity, as described in Tucker , than to sovereign immunity, as described in Roe . Keck v. Eminisor , 104 So.3d 359 (Fla. 2012). As such, the Court held that interlocutory review of orders denying the immunity protections of section 768.28(9)(a) would be permitted "where the issue turns on a question of law." Id. at 366. In a concurring opinion, a majority of the Court requested a review as to whether Rule 9.130 should be expanded so that "the denial of any claim of immunity where the question presented is solely a question of law" should be subject to interlocutory appeal. Id. at 370 (Pariente, J., concurring).

After the Florida Bar Appellate Court Rules Committee proposed an amendment to Rule 9.130(a)(3) in response to the Court's request in Keck , the Court adopted two new subdivisions to the rule, permitting appellate review of non-final orders determining that "as a matter of law, a party is not entitled to" immunity under section 768.28(9), or to sovereign immunity. In re Amendments to Fla. Rule of Appellate Procedure 9.130 , 151 So.3d at 1218 ; Fla. R. App. P. 9.130(a)(3)(C)(x) and (xi). The Court did not specify the extent the amended rule abrogated Roe , which had specifically prohibited interlocutory appeal of orders denying sovereign immunity.

The Florida Supreme Court addressed the appealability of an order denying sovereign immunity most recently in Beach Community Bank v. City of Freeport , decided the same day as the 2014 amendment to Rule 9.130. Our Court had granted a writ of certiorari after the trial court denied the defendant's motion to dismiss based on sovereign immunity. Beach Community Bank , 150 So.3d at 1112. The supreme court stated that the new amendment "permits district courts to review nonfinal orders of decisions determining entitlement to sovereign immunity where the case involves a pure legal question." Id. at 1113. The Court agreed that the defendant's sovereign immunity claim "rested on a pure question of law," which "falls squarely within the new rule amendment." Id. However, at no point did the Court discuss the language of the trial court's order or whether it specifically decided that immunity was not an available defense; it simply found that the issue was a question of law and, thus, within the ambit of the amendment permitting appellate review.

II. Requirement that the challenged order determine that the party is not entitled to immunity "as a matter of law"

Both federal law and Florida law prohibit interlocutory appeal of an order denying immunity unless the order determines as a matter of law that the party is not entitled to immunity. See e.g., Mitchell , 472 U.S. at 530, 105 S.Ct. 2806 ; Fla. R. App. P. 9.130(a)(3)(C)(v), (vii), (x), and (xi). In analyzing whether an order has rejected an immunity claim "as a matter of law," it is worth noting as a preliminary matter that the United States Supreme Court has ruled that immunity questions generally must be resolved by the court rather than the jury. Hunter v. Bryant , 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). In Hunter , the Court "stressed the importance of resolving immunity questions at the earliest possible stage in litigation" after a federal appellate court denied summary judgment and held that a factual determination should be decided by the trier of fact. Id. at 227, 112 S.Ct. 534. The Court rejected the lower court's approach because it would "routinely place[ ] the question of immunity in the hands of the jury. Immunity ordinarily should be decided by the court long before trial." Id. at 228, 112 S.Ct. 534 ; see also Greene v. Reeves , 80 F.3d 1101, 1104 (6th Cir. 1996) (" Hunter established that the determination of whether qualified immunity applies to an officer's judgment as to probable cause is one for the court, not the jury, to make"); Ansley v. Heinrich , 925 F.2d 1339, 1348 (11th Cir. 1991) ("[Q]ualified immunity is a question of law for the court to decide preferably on pretrial motions."). This rule seems necessary in light of the Court's observation that immunity "is effectively lost if a case is erroneously permitted to go to trial." Mitchell , 472 U.S. at 526, 105 S.Ct. 2806. Requiring a jury to find facts supporting an immunity claim at trial has this effect. This observation should be remembered when deciding whether a court has determined an immunity issue "as a matter of law."

Again, the Supreme Court in Mitchell permitted interlocutory appeal of an order denying immunity that "finally and conclusively determines the defendant's claim of right not to stand trial on the plaintiff's allegations," "to the extent that it turns on an issue of law." Mitchell , 472 U.S. at 527, 530, 105 S.Ct. 2806. The Court clarified this rule in Johnson v. Jones , 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), where it ruled that interlocutory appeal is not available when the trial court determines that factual issues genuinely in dispute preclude summary judgment. In Johnson , the plaintiff alleged that police officers used excessive force and beat him. Id. at 307, 115 S.Ct. 2151. The officers moved for summary judgment on the ground that they were not present at the time of the alleged beating. Id. at 307-08, 115 S.Ct. 2151. The trial court denied their motion on the ground that some evidence supported the plaintiff's allegations that the officers were in fact present. Id. at 308, 115 S.Ct. 2151. The Supreme Court held that the order was not appealable because it merely decided "a question of 'evidence sufficiency,' i.e., which facts a party may, or may not, be able to prove at trial." Id. at 313, 115 S.Ct. 2151.

In contrast, the Supreme Court permitted interlocutory review in Scott v. Harris , 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The plaintiff in Scott also alleged that an officer used excessive force, and the officer moved for summary judgment based on qualified immunity. Id. at 375-76, 127 S.Ct. 1769. The trial court denied the motion, finding that "there are material issues of fact on which the issue of qualified immunity turns which present sufficient disagreement to require submission to a jury." Id. at 376, 127 S.Ct. 1769. In spite of the trial court's order that material issues of fact precluded a ruling on the qualified immunity claim, the Supreme Court found that the plaintiff's version of the facts was not supported by the record, that the issue was therefore a "pure question of law," and that summary judgment should have been granted. Id. at 381 n.8, 127 S.Ct. 1769. Thus, the Supreme Court has ruled that an order denying summary judgment, even if based on the existence of "disputed issues of material fact," can still be subject to interlocutory review if the trial court incorrectly ruled that the material facts were in dispute. See also Plumhoff v. Rickard , --- U.S. ----, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) (allowing interlocutory appeal of summary-judgment order denying qualified immunity, and distinguishing Johnson on the ground that the disputed issue in Johnson was purely factual).

Florida has taken a much stricter view, compared to federal courts, of the requirement that an order deny immunity "as a matter of law" before permitting an interlocutory appeal. In Hastings v. Demming , 694 So.2d 718, 720 (Fla. 1997), the court ruled that an interlocutory appeal of an order denying workers' compensation immunity was not permitted "unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party " (emphasis supplied). Reeves v. Fleetwood Homes of Florida, Inc. , 889 So.2d 812, 821 (Fla. 2004), reaffirmed Hastings , and required a "determination, on the face of the order" that the defendant, as a matter of law, is not entitled to workers' compensation immunity in order to file an interlocutory appeal. "The lower courts of Florida have strictly adhered to this Court's decisions in Hastings and Culver ,[ ] determining that a district court does not have jurisdiction to review a nonfinal order denying summary final judgment unless the trial court's order explicitly states that the defendant will not be entitled to present a workers' compensation immunity defense at trial ." Id. (emphasis supplied).

The "as a matter of law" language appears identically in all of the subdivisions in Rule 9.130(a)(3)(C) involving orders denying immunity. Fla. R. App. P. 9.130(a)(3)(C)(v), (vii), (x), and (xi). As such, all of the subdivisions should be construed identically. See Miami-Dade County v. Pozos , 42 Fla. L. Weekly D418, D419, --- So.3d ----, ---- (Fla. 3d DCA Feb. 15, 2017) ; see also Tindel v. Kessler , 772 So.2d 599 (Fla. 5th DCA 2000) (applying the Hastings rule to dismiss an appeal of an order denying qualified immunity). In short, a defendant in Florida asserting that the trial court erroneously denied immunity may not appeal unless the order explicitly states that the defendant is not entitled to immunity.

Miami-Dade County v. Pozos applies this rule. The county moved for summary judgment on the ground that sovereign immunity barred the suit, but the trial court's order denying the motion stated only, "the motion for summary judgment is denied." 42 Fla. L. Weekly at D418, --- So.3d at ----. Applying Hastings and Reeves , the Pozos court noted that the trial court made no specific determination that the county was not entitled to immunity, and dismissed the appeal. Id. at D420, --- So.3d at ----. Although the dissenting opinion argued persuasively that the county was in fact entitled to sovereign immunity as a matter of law , and that the trial court therefore erred in denying immunity, it did not address Hastings and Reeves , on which the majority based its ruling dismissing the appeal. Id. at D420-425, --- So.3d at ---- - ---- (Rothenberg, J., dissenting).

Pozos exposes the difficulty with the Hastings rule. Even if the defendant had been unquestionably entitled to summary judgment as a matter of law, the trial court's failure to explicitly indicate its basis for denial prohibits interlocutory review and forces a party immune from suit to stand trial. This result is clearly inconsistent with the oft-stated importance of resolving immunity matters early in litigation. While the Florida Supreme Court has demonstrated willingness to expand the reviewability of orders denying sovereign immunity, the Hastings rule substantially restricts review. The Hastings rule also permits a trial court to frustrate a party's legitimate assertion of immunity simply by failing to provide reasons for a denial of an immunity motion. The approach taken by the United States Supreme Court avoids these pitfalls by permitting interlocutory review of any order denying immunity that turn on an issue of law, regardless of whether the order explicitly says so, even when the trial court finds (erroneously) that disputed issues of material fact exist.

III. Application to this case

The trial court here denied FHP's motion for summary judgment on the ground that "[d]isputed issues of material fact exist, including, but not limited to, the extent and adequacy of [FHP]'s continued monitoring of the roadway, that prevent the entry of Final Summary Judgment." Any dispute related to the quality of FHP's monitoring the interstate does not seem to relate to the question of whether FHP is immune from suit. Instead, these disputed facts relate to the question of FHP's negligence, rather than its immunity from suit.

In this respect, the order under review is similar to the order in Pozos , in that neither order gives reasons for its denial of the sovereign-immunity claim, much less rule "explicitly" that the governmental defendant is not entitled to sovereign immunity as a matter of law. Like the Pozos court, we are constrained to find that Hastings and Reeves preclude appellate review.

Without ruling on the merits of this appeal, FHP makes a sound argument that the trial court erred in finding that issues of material fact precluded a ruling that it was immune from suit. But even if this possible error were an issue of law, Hastings and Reeves still would not permit appellate review. The Reeves court noted that Rule 9.130"was not intended to grant a right of nonfinal review if the lower tribunal denies a motion for summary judgment based on the existence of a material fact dispute." Reeves , 889 So.2d at 821 (quoting Fla. R. App. P. 9.130 (Committee Notes, 1996 Amendment) ). An erroneous conclusion that issues of fact exist is not a "matter of law" in this context. Contra Scott v. Harris , 550 U.S. at 381 n.8, 127 S.Ct. 1769 (finding that the correctness of the trial court's conclusion that material issues of fact existed was a "pure question of law" subject to interlocutory review).

IV. Conflicts in the law

The Florida Supreme Court has given two recent indications suggesting that the Hastings and Reeves rules unduly restrict interlocutory appellate review of orders denying immunity. First is the 2014 amendment expanding the types of non-final orders denying immunity, including sovereign immunity, that may be appealed. Given the justification for allowing interlocutory review of orders denying immunity set forth in Tucker and Keck , a strong argument can be made that Roe , which held that orders denying sovereign immunity are unappealable because sovereign immunity is a defense to liability rather than an immunity from suit, is no longer good law.

Second, in Beach Community Bank , the Florida Supreme Court's most recent discussion of the appealability of orders denying sovereign immunity, the Court permitted interlocutory appellate review of an order denying immunity without any discussion of whether the order under review "explicitly" stated that the governmental entity was not entitled to sovereign immunity as a matter of law. The Court noted only that this court had concluded that "the City's claim to sovereign immunity rested on a pure question of law." Beach Community Bank , 150 So.3d at 1113. This approach seems more similar to the United States Supreme Court's approach in Scott and Plumhoff than to the rule stated in Hastings and Reeves . Beach Community Bank appears to signal a return to the principle of permitting appellate review of an order denying immunity when the appellate court can consider the issue without any additional factual determinations (i.e., a question of law). See Mitchell , 472 U.S. at 530, 105 S.Ct. 2806 (holding that the "denial of a claim of qualified immunity, to the extent that it turns on an issue of law" is subject to interlocutory review); Tucker , 648 So.2d at 1190 ("[A]n order denying summary judgment based upon a claim of qualified immunity is subject to interlocutory review to the extent that the order turns on an issue of law."); Keck , 104 So.3d at 370 (Pariente, J., concurring) (requesting review for a rule expansion to permit interlocutory review of "the denial of any claim of immunity where the question presented is solely a question of law"). This appears to be the analysis undertaken by Judge Rothenberg in Pozos when she concluded that the record "clearly established" the legal question of sovereign immunity. Pozos , 42 Fla. L. Weekly at D420, --- So.3d at ---- (Rothenberg, J., dissenting).

CONCLUSION

It is unclear if the Florida Supreme Court has departed from narrowly interpreting "as a matter of law" to permit appellate review of orders denying sovereign immunity when the record demonstrates that the defendant is entitled to such immunity and was erroneously required to continue to defend itself. If the Court did not intend to signal a departure, appellate courts will continue to dismiss interlocutory appeals that will ultimately be reversed on appeal after trial, and parties will continue to defend themselves from suits they are "immune" from. Without clarification, this appeal must be dismissed for lack of jurisdiction. To address the perceived conflict between Beach Community Bank and prior case law, we certify the following as a question of great public importance:

DOES RULE 9.130 PERMIT AN APPEAL OF A NON-FINAL ORDER DENYING IMMUNITY IF THE RECORD SHOWS THAT THE DEFENDANT IS ENTITLED TO IMMUNITY AS A MATTER OF LAW BUT THE TRIAL COURT DID NOT EXPLICITLY PRECLUDE IT AS A DEFENSE?

DISMISSED .

LEWIS, J, concurs in result and concurs in certification; BILBREY, J., concurs in result with opinion.

BILBREY, J., concurring in result.

I concur in the result reached by Judge Winokur and the decision to certify a question.

"Generally, an appellate court may not review interlocutory orders unless the order falls within the ambit of non-final orders appealable to a district court as set forth in Florida Rule of Appellate Procedure 9.130." Keck v. Eminisor , 104 So.3d 359, 363-64 (Fla. 2012). We have previously noted that "the categories of non-final orders subject to interlocutory appeal are narrowly construed." Walker v. Florida Gas Transmission Co., LLC , 134 So.3d 571, 572 (Fla. 1st DCA 2014), citing Travelers Ins. Co. v. Bruns , 443 So.2d 959, 961 (Fla. 1984). The only subsections potentially applicable here are rule 9.130(a)(3)(C)(x) & (xi), which provide an appellate court with jurisdiction to hear appeals of orders which determine as a matter of law that a party is not entitled to immunity under section 768.28(9), Florida Statutes, or that a party is not entitled to sovereign immunity.

As Judge Winokur notes, the trial court denied summary judgment finding disputed issues of facts remain, without determining whether the Florida Highway Patrol was entitled to immunity as a matter of law. As cases he cites correctly hold, the absence of a trial court ruling on immunity as a matter of law means we lack jurisdiction to consider the appeal. See Miami-Dade Cnty. v. Pozos , 42 Fla. L. Weekly D418, --- So.3d at ----, 2017 WL 621233 (Fla. 3d DCA Feb. 15, 2017) ; Eagle Arts Acad., Inc. v. Tri-City Elec. Co, Inc. , 211 So.3d 1083 (Fla. 3d DCA 2017) ; Taival v. Barrett , 204 So.3d 486 (Fla. 5th DCA 2016). Dismissal of the appeal is therefore the correct result. See Douglas v. Bronson , 178 So.3d 552 (Fla. 1st DCA 2015). I also concur in the decision to certify a question.

      FHP also argued that no material issue of fact existed to support a common-law duty of care it owed to Robinson, as opposed to the general public. Whether a governmental entity owes a duty of care to a particular plaintiff is often intertwined with the question of whether the governmental action is discretionary and therefore immune from suit, but the issues are "conceptually distinct ." Wallace v. Dean , 3 So.3d 1035, 1044 (Fla. 2009). While FHP raised these issues distinctly in its motion, the trial court found only that "[d]isputed issues of material fact exist" without specifying whether the disputed issues relate to the lack-of-duty claim or to the sovereign-immunity claim. We treat the order as if the court meant to deny the motion on the immunity ground, because that is the only basis on which FHP could seek an interlocutory appeal under Rule 9.130.

      The first type of order denying immunity that could be challenged by interlocutory appeal was one denying workers' compensation immunity, which was authorized two years prior to Tucker . See Mandico v. Taos Constr., Inc. , 605 So.2d 850 (Fla. 1992) ; In re Amendments to Fla. Rules of Appellate Procedure , 609 So.2d 516, 517 (Fla. 1992).

      It is also worth noting that "the Seventh Amendment right to trial by jury does not apply in actions against the Federal Government." Lehman v. Nakshian , 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981). Thus, it would be constitutionally permissible for the trial court to resolve factual issues to determine whether a party is entitled to sovereign immunity. For instance, the Florida Supreme Court has ruled that the trial court must decide factual issues involving "Stand Your Ground" immunity from prosecution. Dennis v. State , 51 So.3d 456, 464 (Fla. 2010) ("[W]here a criminal defendant files a motion to dismiss pursuant to [the Stand Your Ground immunity statute], the trial court should decide the factual question of the applicability of the statutory immunity").

      Fla. Dep't of Corrs. v. Culver , 716 So.2d 768 (Fla. 1998) (clarifying Hastings by holding that an appellate court must determine that the lower court denied immunity from the face of the order alone, without looking at the record to determine whether the lower court correctly found that disputed issues of material fact actually existed).

      See also Eagle Arts Acad., Inc. v. Tri-City Elec. Co., Inc. , 211 So.3d 1083, 1084 (Fla. 3d DCA 2017) (dismissing the appeal of an order denying summary judgment based on sovereign immunity because the order did not find that the defendant was not entitled to sovereign immunity as a matter of law); Taival v. Barrett , 204 So.3d 486 (Fla. 5th DCA 2016) (same).

      FHP's appeal cannot be treated as a petition for writ of certiorari. While certiorari petitions have in the past been routinely used for pretrial review of orders denying immunity, this avenue has been closed by more recent Florida Supreme Court decisions. See Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc. , 104 So.3d 344, 355 (Fla. 2012) (holding that "the district courts do not have jurisdiction to entertain petitions for certiorari based on a public entity's claim that it is entitled to immunity based on the particular facts of the lawsuit brought against it"); Rodriguez v. Miami-Dade County , 117 So.3d 400, 405 (Fla. 2013) ("[W]e reiterate that the continuation of litigation and any ensuing costs, time, and effort in defending such litigation does not constitute irreparable harm. Thus, the use of certiorari review is improper in such an instance.").

      See also Rodriguez , 117 So.3d at 410 (Canady, J., concurring in result only) ("Once it is legally established that the statutory waiver of sovereign immunity is inapplicable, the sovereignly immune entity is both immune from liability and immune from suit," and to hold otherwise "fundamentally degrades the meaning of immunity from suit.").

      The Supreme Court was reviewing our decision in City of Freeport v. Beach Community Bank , 108 So.3d 684 (Fla. 1st DCA 2013). In our opinion, we stated only that the trial court "denied the motion to dismiss." Id. at 687.

      It is true that Beach Community Bank involved a motion to dismiss, while Hastings and Reeves , as well as Pozos and this case, involved a motion for summary judgment. However, this court has specifically applied Hastings to hold that an order denying a motion to dismiss that does not determine that the party is not entitled to immunity is not appealable. Martin Elecs., Inc. v. Glombowski , 705 So.2d 26 (Fla. 1st DCA 1997). As such, this difference is not relevant to our analysis.


source: Caselaw Access Project

license: Public Domain

text:
    DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee FOR RESIDENTIAL ACCREDIT LOANS, INC., MORTGAGE ASSET BACKED PASS-THROUGH CERTIFICATES SERIES 2007-QS11, Appellant, v. Carlos MERCED, Jr. and Alethea Merced, Appellees.
    Case No. 5D16-3486
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018
    William L. Grimsley and N. Mark New ll, of McGlinchey Stafford, Jacksonville, and Jennifer M. Chapkin of McGlinchey Stafford, Fort Lauderdale, for Appellant.
    Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellees.
    COHEN, C.J., Deutsche Bank Trust Company Americas, as Trustee for Residential Accredit Loans, Inc., Mortgage Asset Backed Pass-Through Certificates Series 2007-QS11 ("Deutsche Bank"), appeals a final judgment of involuntary dismissal entered in favor of Carlos Merced, Jr. and Alethea Merced. We reverse and remand for a new trial.
    In 2015, Deutsche Bank filed a complaint seeking to foreclose the Merceds' residential mortgage. Before trial, the court entered a partial summary judgment finding that Deutsche Bank had standing to foreclose, and that ruling has not been challenged on appeal. The court held a non-jury trial on the remaining issues of compliance with conditions precedent and the amount due and owing on the note.
    At trial, Deutsche Bank presented Dorothy Thomas as a witness. Thomas is a corporate representative of PNC Bank, National Association S/B/M to National City Mortgage, a division of National City Bank ("PNC"), the servicer of the subject loan. Thomas testified that she had worked as a senior default litigation specialist for PNC since 2009. She also testified that she had worked in the same position at a division of National City Bank since 1992. National City was the original servicer and merged with PNC in 2009.
    Thomas testified that she was familiar with the Merceds' mortgage account based on her review of the payment history, correspondence such as PNC's demand letter to the Merceds, system notes, and copies of the note, mortgage, and assignments that were contained in PNC's system of record. She testified to the programs PNC used to maintain records and that the records in the system were true and accurate copies of what was scanned into PNC's system.
    Deutsche Bank then moved to enter a series of business record exhibits into evidence, including a limited power of attorney and a copy of a loan modification document. Thomas testified to recognizing and personally reviewing all of the proposed documents, her familiarity with PNC's and National City's policies and procedures regarding the documents, that the documents were created near or at the time of the respective event by a person with knowledge, and to PNC's duty to maintain the documents truthfully and accurately in its regular course of business. The Merceds stipulated to the entry of several of the documents into evidence but moved to exclude the power of attorney for lack of foundation. The court excluded the power of attorney, finding that it did not qualify for the business records exception to hearsay.
    The Merceds then moved to strike Thomas as a witness based on the exclusion of the power of attorney, arguing that she lacked contractual authority to appear on behalf of Deutsche Bank. The court agreed and struck Thomas as a witness. Therefore, Deutsche Bank was unable to enter several business records into evidence, including a copy of the loan modification document. Ultimately, the trial court granted the Merceds' motion for involuntary dismissal based on the absence of the loan modification document, concluding that it was unable to calculate the amount due and owing. This appeal followed.
    The dispositive issue on appeal is that the trial court abused its discretion in striking Thomas as a witness based on the exclusion of the power of attorney. Proof of contractual authority to testify is not required for a witness to lay the foundation for the business records exception to hearsay because a witness may testify to matters within his or her personal knowledge.
    See U.S. Bank Nat'l Ass'n v. Clarke, 192 So.3d 620, 621 n.1 (Fla. 4th DCA 2016). Section 90.803(6), Florida Statutes, provides that business records may be "shown by the testimony of the custodian or other qualified witness" and does not impose the requirement that such individuals be contractually authorized to so testify.
    Thomas was a qualified witness, and the court abused its discretion in striking her testimony. Under the business records exception, a party must present the business record via one of the following: "(1) testimony of the records custodian or other qualified witness, pursuant to section 90.803(6)(a), Florida Statutes ; (2) stipulation; or (3) certification or declaration.... [T]he authenticating witness need not be 'the person who actually prepared the business records.' " Nationstar Mortg., LLC. v. Berdecia, 169 So.3d 209, 213 (Fla. 5th DCA 2015) (citations omitted). The party must then establish that "(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record." Id. at 212-13 (citing Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008) ).
    Thomas testified that she had worked as a senior default litigation specialist for National City and PNC for twenty-four years, that she was familiar with National City and PNC's policies and procedures with respect to servicing loans, and that PNC was the servicer of the loan at issue. She also testified that she was familiar with the Merceds' mortgage account, the documents in their account were created near or at the time of the occurrence of the event by a person with knowledge, PNC had a duty to maintain those documents truthfully and accurately, and PNC kept the documents in its regular course of business. Thus, Thomas's testimony demonstrated sufficient personal knowledge of PNC's business relationship with Deutsche Bank and PNC's record-keeping system to lay the foundation for Deutsche Bank's business records, including the dispositive copy of the loan modification document. Cf. Bank of N.Y. v. Calloway, 157 So.3d 1064 (Fla. 4th DCA 2015) (finding that mortgagee's witness laid a proper foundation to admit mortgagor's payment history under the business records hearsay exception based on her "demonstrated knowledge of the accuracy of the records").
    We decline the Merceds' invitation to treat the error in excluding Thomas as harmless. The effect of the court striking Deutsche Bank's sole witness was to deny it the right to introduce dispositive evidence. See Dobson v. U.S. Bank Nat'l Ass'n, 217 So.3d 1173, 1174 (Fla. 5th DCA 2017) (explaining that the due process right to be heard includes the right "to introduce evidence at a meaningful time and in a meaningful manner," as well as the right "to testify and call witnesses on [a party's] behalf" (citations omitted) ). Accordingly, we reverse and remand for a new trial.
    REVERSED AND REMANDED.
    SAWAYA and BERGER, JJ., concur.

      Although the power of attorney was excluded, it was irrelevant to Thomas's ability to testify on behalf of PNC. The excluded power of attorney would be relevant to the issue of PNC's standing to foreclose as servicer of the loan. See Russell v. Aurora Loan Servs., 163 So.3d 639 (Fla. 2d DCA 2015) (finding that power of attorney by which trustee that owned mortgage loan granted limited powers to current loan servicer was insufficient to establish that prior loan servicer, and therefore current loan servicer, had standing to foreclose at the time it filed the foreclosure action). Here, however, PNC was not the party attempting to foreclose.

   --------


author: PER CURIAM.

text:
    Sagia D. CASTANEDA, Appellant, v. Carlos CASTANEDA, Appellee.
    No. 4D16-3431
    District Court of Appeal of Florida, Fourth District.
    March 7, 2018
    June Galkoski Hoffman of Fowler White Burnett, P.A., Fort Lauderdale, for appellant.
    Steven Cripps of Law Offices of Orsley & Cripps, P.A., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the order granting the former husband's petition for modification of alimony. We remand, however, for a recalculation of the alimony arrearage amount. The circuit court determined that the arrearage amount was $9,800 based on a reduction of the former husband's alimony obligation from $2,650 a month to $500 a month dating back to May 9, 2014. It appears that the total arrearage for the 28-month period should be $14,000. Any basis for further reducing the arrearage amount is not apparent in the record. See Polcz v. Polcz, 160 So.3d 113, 114 (Fla. 4th DCA 2015) (case remanded for clarification of arrearages, where "mathematical findings [did] not support the court's final decision as to a reduction in arrearages"); Allison v. Allison , 605 So.2d 130, 131 (Fla. 4th DCA 1992) (case reversed for clarification of the arrearages amount when it was unclear how the trial court calculated the deduction).

Gerber, C.J., Gross and Kuntz, JJ., concur.


text:
    Travis DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2093
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 6, 2018
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Rutledge v. State, 1 So.3d 1122 (Fla. 1st DCA 2009).

ORFINGER, TORPY and LAMBERT, JJ., concur.


text:
    Albert L. HAMPTON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3979
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 9, 2018
    Albert L. Hampton, Chipley, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 6, 2017 sentence imposed in Case No. 2010-CF-4226-H, in the Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., EVANDER and EDWARDS, JJ., concur.


text:
    Daniel HEMINGER, Appellant, v. BAYVIEW LOAN SERVICING, LLC, Appellee.
    No. 4D17-1964
    District Court of Appeal of Florida, Fourth District.
    March 7, 2018
    Jeffrey M. Liggio and Geoff S. Stahl of Liggio Law, West Palm Beach, Robert C. Gindel, Jr. of Robert C. Gindel Jr., P.A., Boynton Beach, and Adam Richardson of Burlington & Rockenbach, P.A., West Palm Beach, for appellant.
    William S. Isenberg and Jonathan L. Blackmore of Phelan Hallinan Diamond & Jones, PLLC, Ft. Lauderdale, for appellee.
   PER CURIAM.

Affirmed . See Davenport v. Dimitrijevic , 857 So.2d 957, 963 (Fla. 4th DCA 2003) ; Shienvold v. Habie , 627 So.2d 1203, 1205 (Fla. 4th DCA 1993).

Warner, May and Klingensmith, JJ., concur.


text:
    Robert A. WEST, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3808
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 9, 2018
    Robert A. West, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 6, 2016 post-conviction order rendered in Case No. 2006-CF-006241-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, BERGER and EDWARDS, JJ., concur.


text:
    Victor WRIDEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4087
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 9, 2018
    James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Victor Wriden's convictions and sentences. However, we remand this matter to the trial court to enter a written order adjudicating Wriden competent to proceed nunc pro tunc to August 27, 2015, the date when the trial court orally found on the record that Wriden was competent.

AFFIRMED AND REMANDED FOR ENTRY OF ORDER.

SAWAYA, ORFINGER and EDWARDS, JJ., concur.


author: Per Curiam.

text:
    Levi Z. PARRISH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5204
    District Court of Appeal of Florida, First District.
    March 9, 2018
    Levi Z. Parrish, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Rowe, Ray, and Makar, JJ., concur.


text:
    James BROWN, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D17-3337
    District Court of Appeal of Florida, First District.
    March 9, 2018
    James Brown, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

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

Rowe, Ray, and Makar, JJ., concur.


text:
    Marvin L. ROBERTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-2760
    District Court of Appeal of Florida, First District.
    March 9, 2018
    Marvin L. Roberts, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Rowe, Ray, and Makar, JJ., concur.


text:
    Dara L. RATNER, Petitioner, v. Shirley A. CEMONI, Respondent.
    Case No. 5D17-3858
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2018
    Miguel R. Acosta and Dale T. Gobel, of Gobel Flakes, LLC, Orlando, for Petitioner.
    Jeffrey M. Byrd, of Jeffrey M. Byrd, P.A., Orlando, for Respondent.
   PER CURIAM.

Petitioner, Dara L. Ratner, petitions this court for a writ of prohibition after the trial judge denied her motion for disqualification as legally insufficient. While most of Petitioner's allegations are insufficient to warrant disqualification, we find the final allegation legally sufficient. Accordingly, the trial court erred in denying the motion, and we grant the petition.

PETITION FOR WRIT OF PROHIBITION GRANTED.

ORFINGER, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Branden J. BAILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0081
    District Court of Appeal of Florida, First District.
    March 15, 2018
    Branden J. Bailey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Lewis, and Jay, JJ., concur.


text:
    Michael B. GILMORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5307
    District Court of Appeal of Florida, First District.
    March 9, 2018
    Michael B. Gilmore, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Wolf, Osterhaus, and Winsor, JJ., concur.


text:
    Cary AUSTIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3584
    District Court of Appeal of Florida, First District.
    March 15, 2018
    Cary Austin, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Roberts, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Matthew Lee ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-1331
    District Court of Appeal of Florida, First District.
    March 15, 2018
    Matthew Lee Robinson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED. See Florida Rule of Appellate Procedure 9.141(c)(5)(A).

Wolf, Lewis, and Jay, JJ., concur.


text:
    Antonio James PRICE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4881
    District Court of Appeal of Florida, First District.
    March 15, 2018
    Antonio James Price, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The amended petition seeking belated appeal is denied on the merits.

Wolf, Lewis, and Jay, JJ., concur.


text:
    Marie A. GAETA, Individually and as Personal Representative of the Estate of Anthony J. Gaeta, Appellant, v. SEASIDE MANOR, LLC and Saber Healthcare Holdings, LLC, Appellees.
    Case No. 5D17-2212
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 16, 2018
    Herbert T. Sussman, of Boyer, Tanzler & Sussman, P.A., Jacksonville, for Appellant.
    Scott A. Cole, of Cole, Scott & Kissane, P.A., Miami, for Appellees.
   PER CURIAM.

Appellant, Marie A. Gaeta, individually and as personal representative of the Estate of Anthony J. Gaeta, appeals the trial court's non-final order compelling arbitration of her tort claims against Appellees. Appellant's husband was admitted to Appellees' assisted living facility, at which time Appellant signed, on behalf of her husband, an agreement to arbitrate any disputes between the parties (the "Agreement"). Appellant argues that numerous provisions of the Agreement, including a limitation of liability provision, are unenforceable because they violate Florida's public policy, and that those provisions cannot be severed, citing Gessa v. Manor Care of Florida, Inc. , 86 So.3d 484 (Fla. 2011), Shotts v. OP Winter Haven, Inc. , 86 So.3d 456 (Fla. 2011), and Estate of Reinshagen ex rel. Reinshagen v. WRYP ALF, LLC , 190 So.3d 224 (Fla. 5th DCA 2016). We agree.

In light of this binding case law, Appellees make no attempt to argue that any of the challenged provisions are consistent with public policy or even that they are severable. Rather, Appellees' primary argument is that the arbitrator, not the court, must make those determinations because the Agreement contains a delegation provision. However, after a thorough review of the record, we do not find a delegation provision in the Agreement. Thus, we agree with Appellant that Gessa , Shotts , and Reinshagen compel a conclusion here that the limitation of liability provision in the Agreement is both unenforceable and not severable.

REVERSED and REMANDED.

PALMER, WALLIS and EISNAUGLE, JJ., concur.

      Appellant also challenges the validity of other provisions of the Agreement which may be against public policy, but we need not reach those issues in light of the controlling precedent of Gessa , Shotts , and Reinshagen .


text:
    STATE EX REL. Shawanda Marie NEVERS-HAWKINS v. STATE of Louisiana
    NO. 2018-KH-0042
    Supreme Court of Louisiana.
    March 9, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE EX REL. Kevin D. SMITH v. STATE of Louisiana
    NO. 2018-KH-0054
    Supreme Court of Louisiana.
    March 9, 2018
    Writ not considered. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE EX REL. Jonathan P. SIMS v. STATE Op Louisiana
    NO. 2018-KK-0058
    Supreme Court of Louisiana.
    Louisiana March 9, 2018
    Writ not considered. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    Robby SANDIFER v. CALCASIEU PARISH PUBLIC WORKS, et al.
    NO. 2017-C-2148
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    Maria MORALES-AMAYA, Heidy Montoya-Corrales, Norma Montoya-Corrales, Alejandra Montoya-Corales, Santos Cordero, and Herlinda Marquez, Yolanda Hernandez, Lucio Hernandez, Israel Hernandez and Lee Roy Hernandez v. Damien P. ROBINSON, D & P Robinson Trucking, LLC, Praetorian Insurance Company, JKL Transportation Company and XYZ Insurance Company
    NO. 2018-CC-0365
    Supreme Court of Louisiana.
    March 9, 2018
    Stay denied. Writ denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Kandie THOMAS
    NO. 2017-K-1049
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   HUGHES, J., would grant.


author: WEIMER, J., would grant.

text:
    Alpichon LAVALAIS, et al. v. The SCHUMACHER GROUP OF LOUISIANA, INC., et al.
    NO. 2018-CC-0111
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   WEIMER, J., would grant.

GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Shawn BECNEL
    NO. 2017-KO-1023
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    Richard BAGOT, Joan Bagot, Wilson Revelle, Darla Revelle, Mark Guillote, and Lashan Guillote, Individually and on behalf of All Others Similarly Situated v. JAMES HOLDINGS, LLC, Volkert, Inc., Parish of Jefferson and the State of Louisiana through the Louisiana Department of Transportation and Development
    NO. 2018-C-0124
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    Billy SWIFT, et al. v. GENERAL ELECTRIC COMPANY, et al.
    NO. 2018-CC-0104
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    Janet CAHANIN v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, Ludwig C. Heintz, M.D. and Julie A. Lawrence, M.D.
    NO. 2018-C-0129
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    Zerika WILLIAMS v. Calvin E. WILLIAMS, M.D. and Cheryl H. Williams, M.D.
    NO. 2018-CC-0122
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    Cynthia DuFour CANNATELLA v. Anthony CANNATELLA, Sr.
    NO. 2018-CC-0135
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    STATE of Louisiana v. Monroe Adam MEYERS, III
    NO. 2018-KH-0171
    Supreme Court of Louisiana.
    March 9, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review.


text:
    EXCELTH, INC. v. STATE of Louisiana, THROUGH the DEPARTMENT OF HEALTH AND HOSPITALS
    NO. 2018-C-0113
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Irma RABUN, Individually and on behalf of others similary situated v. ST. FRANCIS MEDICAL CENTER, INC.
    NO. 2018-CC-0120
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    STATE of Louisiana v. Timothy Wayne CALHOUN
    NO. 2017-KO-1029
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


author: GENOVESE, J., recused.

text:
    Brandi BILLEAUDEAU, et al. v. OPELOUSAS GENERAL HOSPITAL AUTHORITY, et al.
    NO. 2017-CC-2166
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   GENOVESE, J., recused.


text:
    STATE EX REL. Timothy Cardell THOMAS v. STATE of Louisiana
    NO. 2016-KH-2162
    Supreme Court of Louisiana.
    March 9, 2018
    Denied; moot.


text:
    SAFE AIR TECHNOLOGY, LLC v. Gerald CHRISTIE
    NO. 2017-C-1979
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   HUGHES, J., would grant.


author: JOHNSON, C.J., would grant.

text:
    Jamie MYERS and Ericka Myers, Individually and on Behalf of Their Minor Deceased Child, Tyler Myers, and Peyton Myers (their Minor Son) v. Brad M. WELCH, Valentine & Leblanc, LLC ; Security National Insurance Company and Southern Farm Bureau Casualty Insurance Company
    NO. 2017-C-2165
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    STATE EX REL. Gary JUENGAIN v. STATE of Louisiana
    NO. 2018-KH-0073
    Supreme Court of Louisiana.
    March 9, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review.


text:
    Lillie D. WHEAT v. LOUISIANA STATE BOARD OF PRACTICAL NURSE EXAMINERS
    NO. 2018-OC-0138
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    STATE of Louisiana v. Demetric Lawaderick WHITLOCK
    No. 2016-K-1954
    Supreme Court of Louisiana.
    March 9, 2018
    Reconsideration denied.
   JOHNSON, C.J., would grant.


text:
    Michael ALOISE, Jr. v. CAPITAL MANAGEMENT CONSULTANTS, INC., Marwan Mohey-El-Dien, E. Margriet Langenberg, and Barbara Lane Irwin
    NO. 2017-C-0784
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Maria MORALES-AMAYA, Heide Montoya-Corrales, Norma Montoya-Corrales, Alejandra Montoya-Corales, Santos Cordero, and Herlinda Marquez, Yolanda Hernandez, Lucio Hernandez, Israel Hernandez and Lee Roy Hernandez v. Damien E. ROBINSON, D & P Robinson Trucking, LLC, Praetorian Insurance Company, JKL Transportation Company and XYZ Insurance Company
    NO. 2018-CC-0363
    Supreme Court of Louisiana.
    March 9, 2018
    Stay denied. Writ denied.


text:
    STATE EX REL. John E. TICKLES v. STATE of Louisiana
    NO. 2017-KH-2121
    Supreme Court of Louisiana.
    March 9, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances"
    that would justify bypassing that level of review.


text:
    Walter GABRIEL, Jr. and Christine Lewis v. RITCHIE REAL ESTATE, LLC. et al.
    NO. 2017-CC-2147
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Leah ROSA v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    NO. 2018-CC-0432
    Supreme Court of Louisiana.
    March 19, 2018
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., recused.


text:
    Brandi BILLEAUDEAU, et al. v. OPELOUSAS GENERAL HOSPITAL AUTHORITY, et al.
    NO. 2018-CC-0128
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., recused.


text:
    LOUISIANA BOARD OF ETHICS IN the MATTER OF Walter C. DUMAS and Walter C. Dumas & Associates, Inc.
    NO. 2018-C-0132
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.
    HUGHES, J., would grant and docket.


text:
    STATE of Louisiana v. Jessie HAVIES
    NO. 2017-KO-0921
    Supreme Court of Louisiana.
    March 23, 2018
    Not considered. Not timely filed. See La.S.Ct. Rule X, § 5.


text:
    BEAR INDUSTRIES, INC. v. The HANOVER INSURANCE COMPANY & Amtek of Louisiana, Inc.
    NO. 2018-C-0224
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


author: Judge Joy Cossich Lobrano

text:
    Geoffrey J. BOULMAY, Sr. v. Frederick R. HEEBE, Jr., Copeland Estate et al.
    NO. 2017-CA-0638
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 27, 2017
    Geoffrey J. Boulmay, Sr., 218 East Gatehouse Drive, Suite C, Metairie, LA 70001-7808, PLAINTIFF/APPELLANT, IN PROPER PERSON
    William P. Gibbens, Teva F. Sempel, SCHONEKAS EVANS McGOEY & McEACHIN, L.L.C., 909 Poydras Street, Suite 1600, New Orleans, LA 70112, Peter J. Butler, Jr., Richard G. Passler, BREAZEALE SACHSE & WILSON, L.L.P., 909 Poydras Street, Suite 1500, New Orleans, LA 70112, Len R. Brignac, KING KREBS & JURGENS, P.L.L.C., 201 St. Charles Avenue, Suite 4500, New Orleans, LA 70170, Alexander M. McIntyre, Jr., BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, P.C., 201 St. Charles Avenue, Suite 3600, New Orleans, LA 70170, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins )
   Judge Joy Cossich Lobrano

In this action to nullify judgment and claim for damages, plaintiff/appellant, Geoffrey J. Boulmay, Sr. ("Boumay") appeals the district court's judgments rendered on April 13, 2017 and June 26, 2017, granting the exceptions of prescription filed by defendants/appellees, Frederick R. Heebe, Jr. ("Heebe"), Alvin Copeland, Jr. as trustee of the Article III Trust under the will of Alvin C. Copeland ("Copeland"), Richard Talluto ("Talluto"), Bryan White ("White"), Aubrey B. Hirsch, Jr. ("Hirsch"), and Peter J. Butler ("Butler")(collectively the "appellees"), and dismissing Boulmay's claims against these appellees. For the reasons that follow, we affirm.

On December 28, 2016, Boulmay filed a petition in the district court in which he alleged that the appellees committed acts of "fraud on the court," ultimately leading to a plan of reorganization and Chapter XI bankruptcy judgment, which were adverse to Boulmay's financial interests. According to the petition, the events giving rise to this litigation were initiated in 1981. The petition itself does not identify the date of the judgment from which Boulmay seeks relief. According to exhibits attached to the petition, a third amended plan of reorganization was approved by the bankruptcy court on March 3, 1983; judgment resolving the bankruptcy proceedings was rendered on January 30, 1985 and affirmed by the United States District Court for the Eastern District of Louisiana on February 28, 1986.

On February 3, 2017, Heebe filed exceptions of prescription and vagueness. On February 13, 2017, Copeland, Talluto, and White jointly filed exceptions of prescription, res judicata, and no cause of action. On February 17, 2017, Hirsch filed exceptions of prescription, vagueness, no cause of action, and res judicata.

On March 31, 2017, the district court held a hearing on the exceptions filed by Heebe, Copeland, Talluto, White, and Hirsch. On April 13, 2017, the district court rendered judgment, granted the exceptions of prescription, and dismissed Boulmay's claims against Heebe, Copeland, Talluto, White, and Hirsch.

Thereafter, on May 12, 2017, Butler made an appearance in the litigation and filed exceptions of prescription, vagueness, and no cause of action.

On June 16, 2017, the district court held a hearing on the exceptions filed by Butler. The district court rendered judgment on June 26, 2017, which granted Butler's exception of prescription and dismissed Boulmay's claims against Butler. This appeal followed.

Before discussing the merits of this appeal, we first address whether this Court has appellate jurisdiction to review the April 13, 2017 and June 26, 2017 judgments rendered by the district court. Boulmay filed motions for appeal referencing judgments dated March 31, 2016 and June 16, 2017; the record before us, however, contains no judgments dated March 31, 2016 or June 16, 2017. Rather, the judgments in the record were rendered, respectively, (1) on April 13,

2017 from a hearing held on March 31, 2017, and (2) June 26, 2017 from a hearing held on June 16, 2017.

This Court has held that, although inaccurate, an appeal may proceed where "the record reflects that all parties thought the subject matter of the [two] judgments were being appealed and that none of the appellees were prejudiced by the mistake."

Duplantier v. Krewe of Pygmalion , 2007-1034, p. 3 (La. App. 4 Cir. 12/3/08), 1 So.3d 570, 572. It is evident from the record that Boulmay intended to appeal the judgments granting exceptions of prescription in favor of the appellees, and all appellees have addressed the merits of their respective exceptions in their briefs. We find no prejudice to the appellees as a result of the mistaken dates contained in Boulmay's motions for appeal. As such, the appeal is properly before us, and we now address the merits of the appeal.

Boulmay sets forth one primary argument on appeal: that the judgment he complains of in his petition is an absolute nullity and cannot prescribe.

This Court has articulated the standard of review, relative to peremptory exceptions of prescription, as follows:

Ordinarily, a party asserting a peremptory exception of prescription bears the burden of proof. Trust for Melba Margaret Schwegmann v. Schwegmann , 09-968, p. 8 (La. App. 5 Cir. 9/14/10), 51 So.3d 737, 742. However, if prescription is evident from the face of the pleadings, the plaintiff will bear the burden of showing an action has not prescribed. Id. If evidence is introduced at the hearing on the peremptory exception of prescription, the district court's findings of
fact are reviewed under the manifest error-clearly wrong standard of review. Rando v. Anco Insulations, Inc. , 08-1163, p. 20 (La. 5/22/09), 16 So.3d 1065, 1082. If there is [ ] an absence of evidence, the exception of [ ] prescription must be decided upon the properly pleaded material allegations of fact asserted in the petition, and those alleged facts are accepted as true. Trust for Melba Margaret Schwegmann , 51 So.3d at 742. Further, in reviewing a peremptory exception of prescription, appellate courts strictly construe the statutes against prescription and in favor of the claim. Id. Of the possible constructions of a prescriptive or preemptive statute, the one that maintains enforcement of the claim or action, rather than the one that bars enforcement should be adopted. Rando , 16 So.3d at 1083.

Ames v. Ohle , 2011-1540, pp. 5-6 (La. App. 4 Cir. 5/23/12), 97 So.3d 386, 390-91, decision clarified on reh'g (7/11/12).

The record before us reflects that, at the hearing of the exceptions brought by Heebe, Copeland, Talluto, White, and Hirsch, no evidence was introduced. With respect to those exceptions, we confine our review to the "properly pleaded material allegations of fact asserted in the petition." See Ames , 2011-1540 at p. 5, 97 So.3d at 391. At the hearing of the exceptions filed by Butler, Boulmay introduced the entirety of the district court record into evidence without objection. The district court stated at the hearing that the exhibits would be admitted once costs for the exhibits were paid. We are unable to determine from the record whether this was accomplished. Where evidence is introduced at the hearing of the exception, we review the district court's factual findings subject to the manifest error-clearly wrong standard of review. Ames , 2011-1540 at. p. 5, 97 So.3d at 390-91. Nevertheless, whether we construe the record as a whole as evidence for the purposes of reviewing Butler's exception, our conclusion remains the same for the reasons explained herein.

"The nature of a cause of action must be determined before it can be decided which prescriptive term is applicable." Ames , 2011-1540 at p. 6, 97 So.3d at 391 (citing dela Vergne v. dela Vergne , 99-0364 (La. App. 4 Cir. 11/17/99), 745 So.2d 1271, 1275 ). "The character of an action disclosed in the pleadings determines the prescriptive period applicable to that action." Id. "A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes." La. C.C.P. art. 853.

A review of the petition and its exhibits reveals that Boulmay alleges that the bankruptcy judgment is "void" on the basis that appellees provided false testimony and made false filings relative to those proceedings; he also prays for damages to compensate him for financial losses allegedly stemming from appellees' actions in connection with the bankruptcy proceedings and corresponding judgment. We construe Boulmay's petition as an action for nullification of judgment. The petition also contains allegations of fraud and violations of the Louisiana Racketeering Act.

The following articles of the Louisiana Code of Civil Procedure are pertinent to Boulmay's claims:

Art. 2002. Annulment for vices of form; time for action
A. A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid final default judgment has not been taken.
(3) By a court which does not have jurisdiction over the subject matter of the suit.
B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.
Art. 2004. Annulment for vices of substance; peremption of action
A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.

Article 3499 of the Louisiana Civil Code provides that "[u]nless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years." Generally, a civil cause of action for fraud is subject to a ten year prescriptive period. See Ames , 2011-1540 at p. 8, 97 So.3d at 392.

The Louisiana Racketeering Act is located in La. R.S. 15:1351 -56. "Although these statutes are part of the Code of Criminal Procedure, they provide for a civil cause of action similar to the federal RICO statute." Ames , 2011-1540 at pp. 6-7, 97 So.3d at 391. The civil remedies provision of these statutes is subject to a prescriptive period of "five years after the conduct in violation of a provision of this Chapter terminates or the cause of action accrues." La. R.S. 15:1356(H).

We reject Boulmay's argument that his claims against the appellees cannot prescribe. "An absolutely null judgment may be attacked collaterally, at any time, by rule or by any other method."

Miccol Enterprises, Inc. v. City of New Orleans , 2012-0864, p. 10 (La. App. 4 Cir. 12/19/12), 106 So.3d 746, 752. The specific vices of form that render a judgment absolutely null are provided in La. C.C.P. art. 2002 ; the grounds for nullity enumerated in this article are exclusive. Id. ; La. C.C.P. art. 2002 cmt. (e)(citing Accardo v. Dimiceli , 226 La. 435, 76 So.2d 521 (1954) ). The petition contains no allegation, and the record contains no evidence, that the judgment was rendered against an unrepresented incompetent person; against an unserved defendant who has not waived objection to jurisdiction, or against whom a valid final default judgment has not been taken; or by a court lacking subject matter jurisdiction over the suit. La. C.C.P. art. 2002 does not apply to the matter before us.

Rather, the substance of Boulmay's petition demonstrates that he seeks nullification of judgment for fraud or ill practices, which is a vice of substance, implicating La. C.C.P. art. 2004. An action for nullification of judgment under article 2004 must be brought within "one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices." La. C.C.P. art. 2004.

Based on the foregoing, we find that Boulmay's claims are subject to one, five, and ten year prescriptive periods.

As stated in the petition and its exhibits, the events alleged in Boulmay's petition began in 1981; the amended plan of reorganization was approved by the bankruptcy court on March 3, 1983; judgment on the bankruptcy proceedings was rendered on January 30, 1985; and the bankruptcy judgment was affirmed by the federal district court on February 28, 1986. Boulmay did not file suit against the appellees until December 28, 2016. Under each of the applicable prescriptive periods, the petition is prescribed on its face.

Whether we limit our review to the petition with exhibits or consider the record as a whole, we discern no basis on which to extend or defeat these prescriptive periods. While Boulmay's petition makes multiple references to "fraudulent concealment," the petition lacks any allegation that Boulmay had no knowledge of the alleged false testimony and filings prior to December 28, 2006, December 28, 2011, or December 28, 2016. Quite the opposite, Boulmay attached as an exhibit to his petition correspondence specifically stating as of April 2015 that "Mr. Boulmay has filed in Orleans and New Orleans Federal Courts for decades to expose the attorney irrefutable fabrications to void Judgments." (Emphasis added). Boulmay's exhibits to his petition also included a memorandum filed in connection with prior litigation in 1987, explaining the circumstances of "a series of lawsuits" as a result of disputes between Boulmay and proponents of the amended plan of reorganization. Thus, under the facts before us, we find that Boulmay failed to meet his burden to prove that this action has not prescribed. We find no error in either of the district court's rulings granting the exceptions of prescription in favor of the appellees and dismissing Boulmay's claims against the appellees.

For the reasons set forth above, we affirm the April 13, 2017 and June 26, 2017 judgments of the district court.

AFFIRMED

      The exhibits attached to Boulmay's petition were comprised of: (1) correspondence dated August 5, 2015, from the Louisiana Attorney Disciplinary Board to Boulmay acknowledging receipt of documents submitted by Boulmay relative to a disciplinary claim against Butler; (2) correspondence to this Court dated April 2, 2015 from Lawrence Catha and Raymond Peacock, former business partners of Alvin C. Copeland, complaining of "false testimony and false filing" made in 1987 in district court docket no. 87-8673, referencing the bankruptcy proceedings; and (3) Plaintiff's Memorandum in Opposition to Motion to Remove Counsel, dated June 18, 1987, filed by Butler in docket no. 87-8673.

      "An error misstating the date of judgment in a motion for appeal does not require dismissal where the: 1) appellant actually intended to appeal from a related judgment of the trial court; 2) errors assigned in brief on merits were adjudicated by a related judgment; or 3) parties were aware of which judgment appellant intended to appeal, and the appellee was not prejudiced by the error in date." Duplantier , 2007-1034 at p. 3, n. 1, 1 So.3d at 572 (citing Wilson v. Transp. Consultants, Inc. , 2004-0334, p. 4 (La. App. 4 Cir. 3/2/05), 899 So.2d 590, 596 ).

      This correspondence was dated April 2, 2015 and was sent by Catha and Peacock to this Court regarding previous litigation related to the underlying bankruptcy.

      Here, it is not necessary for us to, and we do not, take judicial notice of pleadings filed in other court proceedings, which are outside of the record of this Court; rather we consider those documents that are exhibits to and form a part of Boulmay's petition as provided by La. C.C.P. art. 853, and documents entered into evidence at the June 16, 2017 hearing on the trial of Butler's exceptions. See La. C.E. art. 202(B) ; United Gen. Title Ins. Co. v. Casey Title, Ltd. , 2001-600, pp. 6-7 (La. App. 5 Cir. 10/30/01), 800 So.2d 1061, 1065.

      The exhibit is entitled "Plaintiff's Memorandum in Opposition to Motion to Remove Counsel," dated June 18, 1987, which was filed by Butler.


author: Judge Rosemary Ledet

text:
    Beulah M. FORSTALL, Wife of/and Barry A Forstall v. The CITY OF NEW ORLEANS, Ulis Gaines, and Reconcile New Orleans, Inc.
    NO. 2017-CA-0414
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 17, 2018
    Christopher J. Davidson, DAVIDSON & DAVIDSON, APLC, 2901 Independence Street, Suite 201, Metairie, LA 70006, COUNSEL FOR PLAINTIFF/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown )
   Judge Rosemary Ledet

This is a suit to quiet a tax sale of certain immovable property located in the City of New Orleans (the "Property"). In June 2009, Beulah and Barry Forstall (the "Forstalls") commenced this suit. In their petition, the Forstalls averred that they were the sole owners of the Property; and they named as defendants the following three parties: (i) the City of New Orleans (the "City"); (ii) a prior owner of the Property, Ulis Gaines; and (iii) a subsequent donee of the Property, Reconcile New Orleans, Inc. ("Reconcile").

In July 2016, a one-day bench trial was held in this matter. At trial, three witnesses testified-the Forstalls and Walter O'Brien, the revenue clerking supervisor of the City's Bureau of Treasury, Department of Finance. At the close of the trial, the trial court judge orally ruled as follows:

The only thing that I'm taking up today is whether or not there was notice to the Forstalls relative to the second tax sale, absent notice to the Forstalls of the second, not the tax sale they participated in but the subsequent tax sale, then I've got to grant their request for nullity of that second tax same. [sic] That's all I'm rendering judgment on.

The trial court stated that it was reserving judgment on the following two issues: (i) "whether or not the Forstalls are entitled to title"; and (ii) "whether or not[,] if they [the Forstalls] are entitled to title[,] any reimbursement[s] are due and/or taxes specifically are due to the City."

Six months elapsed between the July 2016 trial and the issuance of a written judgment on January 17, 2017 (the "January Judgment"). In the January Judgment, the trial court, memorializing its earlier oral ruling, ordered that "the trial is bifurcated and the evidence presented at trial pertained only to the validity of the tax sale plaintiff is seeking to be annulled." Also in this judgment, the trial court recognized the City's stipulation, at trial, that it had "no evidence of notice of tax sale" to the Forstalls. The trial court thus ruled in the Forstalls' favor, and against the City, declaring the October 2, 1986 tax sale adjudication of the Property to the City a nullity.

During the six-month period between the trial and the January Judgment, Reconcile filed a motion for summary judgment. Following a hearing, the trial court, on November 18, 2016, issued a judgment granting the motion for summary judgment and dismissing Reconcile with prejudice (the "November Judgment"). In November 2016, the Forstalls filed a motion for new trial from the November Judgment. The trial court, however, did not rule on that motion until February 2017.

On appeal, the Forstalls seek review of both the November Judgment and the January Judgment. For the reasons that follow, we dismiss the appeal insofar as it pertains to the January Judgment, reverse the November Judgment, and remand.

Jurisdictional issues

Appellate courts have a duty to determine, even if the parties do not raise the issue, whether subject matter jurisdiction exists to entertain an appeal. See Moulton v. Stewart Enters., Inc. , 17-0243, 17-0244, p. 3 (La. App. 4 Cir. 8/3/17), 226 So.3d 569, 571 (citing Moon v. City of New Orleans , 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425 ). The threshold question that must be answered before reaching the merits of an appeal is whether the ruling from which a party seeks review is an appealable judgment. "A party may appeal (1) from a final judgment in actions in which appeals are given by law; (2) an interlocutory judgment only when expressly provided by law; and (3) from a judgment reformed in accordance with an additur or remittitur." Frank Maraist, 1 LA. CIV. L. TREATISE, CIVIL PROCEDURE § 14:3 (2d ed. 2017) (citing La. C.C.P. art. 2083 ) ("Maraist ").

A judgment that determines the merits in whole-or in part-is a final-or a partial final-judgment; whereas, a judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. C.C.P. art. 1841. "[A]ll judgments other than final judgments and partial final judgments are interlocutory." Maraist , supra.

Both the November Judgment and the January Judgment are partial final judgments. The right to appeal a partial final judgment is governed by La. C.C.P. art. 1915, which has two subparts-"Subpart A" and "Subpart B." Subpart A " 'designates certain categories of partial judgments as final judgments subject to immediate appeal without the necessity of any designation of finality by the trial court.' " Wells Fargo Fin. Louisiana, Inc. v. Galloway , 17-0413, pp. 4-5 (La. App. 4 Cir. 11/15/17), 231 So.3d 793, 798, 2017 WL 5485412, *2 (quoting Quality Envtl. Processes, Inc. v. Energy Dev. Corp. , 16-0171, 16-0172, p. 6 (La. App. 1 Cir. 4/12/17), 218 So.3d 1045, 1053 ).

Subpart B " 'provides that when a court renders a partial judgment, partial motion for summary judgment, or exception in part, it may designate the judgment as final when there is no just reason for delay.' " Id. , 17-0413, at p. 5, 231 So.3d at 798, 2017 WL 5485412, *2 (quoting Quality Envtl. Processes , supra ). Subpart B has the following two subparts:

• "[T]he judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay." La. C.C.P. art. 1915(B)(1) ; and
• "In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties." La. C.C.P. art. 1915(B)(2).

See also La. C.C.P. art. 1911(B) (providing, in part, that "[n]o appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B). An appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated.").

The November Judgment falls under Subpart A because it "[d]ismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors." La. C.C.P. art. 1915(A)(1). The November Judgment dismisses the suit as to one party-Reconcile. The November Judgment thus is a partial final judgment that is immediately appealable pursuant to Subpart A without the necessity of a designation of finality by the trial court. See In re LoCicero , 10-0624, p. 4 (La. App. 4 Cir. 10/20/10), 51 So.3d 126, 128. This court has jurisdiction over the Forstalls' appeal from the November Judgment.

The January Judgment falls under Subpart B because it is a bifurcated judgment not covered by Subpart A. Subpart A authorizes only the following two categories of bifurcated judgments as partial final judgments: (i) a judgment "on the issue of liability when that issue has been tried separately by the court;" and (ii) "when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury." La. C.C.P. art. 1915(A)(5). The January Judgment falls into neither of those categories; it bifurcates the issues before the trial court and grants relief as to only one issue-the nullity of the October 2, 1986 tax sale adjudication to the City. Because the trial court did not certify the January Judgment as immediately appealable, it is a non-appealable judgment. See Richardson v. Tessier , 07-0374, p. 3 (La. App. 1 Cir. 11/2/07), 977 So.2d 55, 56. (noting that the bifurcated judgment was not a final, appealable judgment because it "adjudicate[d] fewer than all the claims and was not certified as final by the trial court in accordance with La. C.C.P. art. 1915(B)(1)").

When, as here, a non-appealable judgment is appealed, this court has the discretion to convert the appeal to an application for supervisory writ. Stelluto v. Stelluto , 05-0074, p. 7 (La. 6/29/05), 914 So.2d 34, 39. This court's discretionary authority, however, is not unlimited. One condition is that the appeal must have been filed within the thirty-day period for filing a writ application. This condition is not met here. The trial court rendered the bifurcated judgment on January 17, 2017. The Forstalls filed their motion for appeal on March 10, 2017. The motion for appeal thus was not filed within the thirty-day period for filing an application for supervisory writs.

Although the Forstalls filed a motion for new trial, which the trial court denied on February 10, 2017, " 'the filing of a motion for new trial seeking reconsideration of an interlocutory judgment cannot interrupt the 30-day period for filing an application for supervisory writs established by Rule 4-3 of the Uniform Rules-Courts of Appeal.' " Johno v. Doe , 16-0200, p. 5 (La. App. 4 Cir. 8/17/16), 198 So.3d 1216, 1218 (quoting Carter v. Rhea , 01-0234, p. 5 (La. App. 4 Cir. 4/25/01), 785 So.2d 1022, 1025 ). "[A] motion for new trial is a procedural device applying only to final judgments." Winston v. Martin , 34,424, p. 3 (La. App. 2 Cir. 9/21/00), 801 So.2d 389, 391 ; Daniels v. SMG Crystal, LLC , 13-0761, p. 9 (La. App. 4 Cir. 12/4/13), 128 So.3d 1272, 1277 (quoting Winston , supra , and citing Carter , supra ). The motion for new trial could not extend the thirty-day period for filing a writ. Given the instant appeal was not filed within thirty days from the date of the January Judgment, we cannot convert the appeal to a writ. Accordingly, we dismiss the appeal insofar as it pertains to the January Judgment for lack of jurisdiction.

Summary judgment-November Judgment

The sole issue presented here is whether the trial court erred in granting Reconcile's motion for summary judgment. "Appellate courts review motions for summary judgment de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate." Peironnet v. Matador Res. Co. , 12-2292, 12-2377, p. 29 (La. 6/28/13), 144 So.3d 791, 814 ; see also Sutherland v. Alma Plantation, L.L.C. , 15-1136, p. 4 (La. App. 4 Cir. 5/4/16), 193 So.3d 1178, 1181.

Because Reconcile's motion for summary judgment was filed in September 2016, the 2015 amendment and reenactment of La. C.C.P. art. 966 (the "2015 Revisions") applies here. The 2015 Revisions overhauled La. C.C.P. art. 966 -the article that governs motions for summary judgment. The 2015 Revisions did not change the legal standard for summary judgment. Summarizing the effect of the 2015 Revisions on the legal standard for summary judgment, one commentator noted:

Although the 2015 [R]evisions brought about a number changes to the substantive law of Article 966, the legal standard for summary judgment did not change with the 2015 [R]evisions. To prevail on a motion for summary judgment, the moving party is still required to show that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. The technicalities of the
burdens of proof and production also did not change. The revision comments-though not substantive law-indicate that the purpose of the changes made to the paragraphs dealing with the burden of proof was merely to clarify and make explicit the existing burden of proof.

Garrett Filetti, 22nd Time's the Charm: The 2015 Revisions to Summary Judgment in Louisiana , 77 LA. L. REV. 479, 503 (2016).

The 2015 Revisions, however, did change the rule regarding the evidence and supporting documents that can be introduced and considered by a court in deciding a motion for summary judgment. The recently-enacted rule narrowly defines the field of evidence that a court can consider for purposes of a motion for summary judgment to "those documents filed in support of or in opposition to the motion for summary judgment." La. C.C.P. art. 966(D)(2).

Different from its federal counterpart-Rule 56(c)(3) of the Federal Rules of Civil Procedure - La. C.C.P. art. 966(D)(2) does not allow a court to consider the record as a whole in deciding a motion for summary judgment. "To the contrary, the comments specifically indicate that the court may only consider those documents filed either in support of or in opposition to a motion for summary judgment." Washington v. Gallo Mech. Contractors, LLC , 16-1251, p. 6 (La. App. 4 Cir. 5/17/17), 221 So.3d 116, 121 ; see also Viering v. Liberty Mut. Ins. Co. , 17-0204, p. 8 (La. App. 1 Cir. 9/27/17), 232 So.3d 598, 603, 2017 WL 4320998, *4 (unpub .) (observing that "the parties must now attach all documents in support of or in opposition to" the motion for summary judgment). Revision Comment (k) to La. C.C.P. art. 966 states as follows:

Subparagraph (D)(2) maintains most of the recent legislative changes to this Article, which change the law. Subparagraph (D)(2) makes clear that the court can consider only those documents filed in support of or in opposition to the motion. This rule differs from Federal Rules of Civil Procedure, Rule 56(c)(3), which allows the court to consider other materials in the record.

Contrary to the requirements of La. C.C.P. art. 966(D)(2), Reconcile failed to attach any documents in support of its motion for summary judgment; rather, it referenced evidence located elsewhere in the record-"the previously filed exhibits, [and] the testimony at the bifurcated trial by the plaintiffs." Indeed, Reconcile concluded its memorandum in support of its motion by stating that "predicated upon the exhibits previously filed in this proceeding and from the testimony at the bifurcated trial, [Reconcile] submits that this motion for summary judgment should be granted."

As noted elsewhere in this opinion, the 2015 Revisions did not change the legal standards governing motions for summary judgment. Summarizing those legal standards, in general, and the mover's burden of proof, in particular, this court recently noted that "[t]he burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case showing that there are no genuine issues of material fact." Roadrunner Transp. Sys. v. Brown , 17-0040, p. 7, n. 4 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270 (citing Rapp v. City of New Orleans , 95-1638, p. 4 (La. App. 4 Cir. 9/18/96), 681 So.2d 433, 437 ). Thus, "the movant does not carry his initial burden when he simply 'points out' by motion or brief that the plaintiff lacks factual support for any claim against him." Roadrunner Transp. Sys. , supra (citing 1 Frank L. Maraist, LA. CIV. L. TREATISE, CIVIL PROCEDURE § 6:8 (2d ed. 2016) (citing

Sheppard v. Cityof Baton Rouge , 02-2421 (La. App. 1 Cir. 9/17/04), 897 So.2d 25 )). Such is the case here.

Given that La. C.C.P. art. 966(D)(2) precluded the trial court from considering other materials in the record for purposes of ruling on the motion for summary judgment, Reconcile failed to meet its burden, as mover, to establish a prima facie case showing that there are no genuine issues of material fact. Because Reconcile failed to make such a showing, the burden of proof never shifted to the Forstalls. The trial court thus erred in granting the motion for summary judgment, dismissing the Forstalls' claims against Reconcile with prejudice.

DECREE

For the foregoing reasons, the appeal of the January 17, 2017 judgment is dismissed; the November 18, 2016 judgment, granting Reconcile's motion for partial summary judgment, is reversed; and this matter is remanded.

APPEAL OF JANUARY 17, 2017 JUDGMENT DISMISSED; NOVEMBER 18, 2016 JUDGMENT REVERSED; AND REMANDED

      In support of their claim that they were the sole owners of the Property, the Forstalls enumerated the following three reasons:
      • On June 25, 1985, Mrs. Forstall acquired the Property from Mr. Gaines in a tax sale conducted by the City's Bureau of the Treasury for unpaid 1983 taxes; and the "[P]roperty has not been redeemed nor has any suit been filed to annul the tax sale in question prior to the institution of this proceeding."
      • On November 7, 1986, a tax sale adjudication of the Property to the City was recorded; however, the 1986 tax sale to the City is "absolutely null and void for failure to notify plaintiff of the said tax sale adjudication to the Parish of Orleans."
      • The City executed an Act of Donation of the Property to Reconcile, which was recorded on August 20, 2007; however, since the tax sale adjudication to the City is null and void, the City's donation of the Property to Reconcile is "also null and void and could have transferred no interest to said done[e]."

      Before the trial, Reconcile filed a similar motion for summary judgment with attached exhibits, which the trial court denied on February 1, 2010.

      The record reflects that the Forstalls filed two motions for new trial-one from the November Judgment and one from the January Judgment. The trial court, however, only issued one judgment denying the Forstalls' motions for new trial on February 10, 2017.

      Summarizing the current scope of appealable judgments, La. C.C.P. art. 2083 provides as follows:
      A. A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.
      B. In reviewing a judgment reformed in accordance with a remittitur or additur, the court shall consider the reasonableness of the underlying jury verdict.
      C. An interlocutory judgment is appealable only when expressly provided by law.

      When confronted with a judgment on appeal that is not final and appealable, this court has exercised its discretion to convert the appeal to an application for supervisory writs only when the following two conditions are met:
      (i) The motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal.
      (ii) When the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court's decision would terminate the litigation.
      Mandina, Inc. v. O'Brien , 13-0085, pp. 7-8 (La. App. 4 Cir. 7/31/13), 156 So.3d 99, 103-04.

      The Louisiana Legislature amended and reenacted La. C.C.P. art. 966 in La. Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. La. Acts 2015, No. 422, § 2, provides that "[t]he provisions of this Act shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date of this Act." Since this motion was filed after the effective date of this Act, the amended version of La. C.C.P. art. 966 applies here.

      La. C.C.P. art. 966(D)(2) provides:
      The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.

      In its memorandum in support of its motion, Reconcile averred that it established its entitlement to summary judgment based on the following:
      1. By plaintiffs' own admissions during the bifurcated trial on July 14, 2016, plaintiffs did not pay the property taxes due between 1984 and August 17, 2007 and cannot quiet title to the property.
      2. By plaintiffs' own admissions during the bifurcated trial on July 14, 2016, plaintiffs did not maintain the property since 1984 and plaintiffs cannot quiet title to the property.
      3. The City of New Orleans acquired a 100% interest in and to the Property free and clear of all encumbrances pursuant to, and by virtue of, the Donation of Abandoned or Blighted Housing Property statutes, La. R.S. 33:4720.25, et seq. , and La. R.S. 47:2201.
      4. The City of New Orleans donated its 100% interest in and to the Property free and clear of all encumbrances to Reconcile New Orleans, Inc. and Reconcile New Orleans, Inc. accepted same.
      5. Reconcile New Orleans, Inc. is the sole owner of a 100% interest in and to the Property free and clear of all encumbrances, including the tax to plaintiff registered at COB 799, folio 394, which is cancelled.
      6. Plaintiff may have a claim, but plaintiff has no claim against Reconcile New Orleans, Inc. and plaintiff has no claim to take possession of the Property.

      If Reconcile had attached a copy of the transcript from the bifurcated trial, this evidence would have been subject to an objection by the Forstalls as improper summary judgment evidence. Recently-enacted La. C.C.P. art. 966(A)(4) provides that "[t]he only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." Under La. C.C.P. art. 966(A)(4), "[t]rial testimony is not the type of documentary evidence that is listed as admissible." Suire v. Oleum Operating Co. , 17-117, p. 15, 235 So.3d 1215, 1227 (La. App. 3 Cir. 11/2/17), 2017 WL 4987635, *8. Given Reconcile failed to attach a copy of the transcript to its motion, the Forstalls had no opportunity to object to the transcript as improper summary judgment evidence. Nor do we definitively decide the issue of whether the transcript would have been competent summary judgment evidence. See Gallo , 16-1251 at p. 6, 221 So.3d at 121 (observing that the court "need not reach the issue of whether the transcript excerpts are competent summary judgment evidence under La. C.C.P. art. 966A(4)").

      Opposing the motion for summary judgment, the Forstalls raised this issue regarding the lack of documentary support-albeit not citing La. C.C.P. art. 966(D)(2) -by pointing out that "[n]o document is submitted to support the allegations of this Motion." In their opposition, the Forstalls also raised the issue of Reconcile's alleged failure to comply with District Court Rule 9.10, which requires that a memorandum in support of a motion for summary judgment contain the following: (i) a list of essential legal elements establishing that the mover is entitled to summary judgment; (ii) a list of the material facts that the mover maintains are not disputed; and (iii) references to the document proving each material fact. The Forstalls also contended that Reconcile was "essentially attempting to obtain relief by motion, subsequent to the trial on the merits, that it did not receive following the trial."

      It is not contended that the Forstalls' petition, on its face, fails to state a cause of action against Reconcile.

      Reconcile is entitled to file another motion for summary judgment, with appropriate documentary support. See Fayard v. Contifleeting, Inc. , 488 So.2d 1269, 1271 (La. App. 4th Cir. 1986).