author: MORRIS, Judge.

text:
    TRIAL PRACTICES, INC., Appellant, v. HAHN LOESER & PARKS, LLP, as Substitute party FOR Jack J. ANTARAMIAN, Appellee.
    Case Nos. 2D13-6051, 2D14-86
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017

      G. Donovan Conwell, Jr., of Conwell Business Law, P.A., Tampa, for Appellant.

      Edmond E. Koester of Coleman, Yova-novich <& Koester, P.A., Naples, for Appel-lee. ..
   BY ORDER OF THE COURT:

Upon consideration of the appellant’s motion for clarification filed April 27, 2017, it is

ORDERED that the appellant’s motion for clarification is granted as it relates to the issues of the trial court’s cost award including reimbursement for payments made to fact witnesses for their assistance with case and discovery preparation. The. appellant’s motion to certify questions of great public importance is granted in part. However, we deny both the appellant’s motion for rehearing and motion for rehearing en banc. Accordingly, we withdraw our prior opinion of April 12, 2017, and substitute this opinion in its place.

MORRIS, Judge.

Trial Practices, Inc. (TPI), appeals a final judgmént awarding attorneys’ fees, costs, .and prejudgment interest to Hahn Loeser & Parks, LLP (Hahn), as substituí-, ed- for Jack J. Antaramian who is deceased. The underlying litigation began when TPÍ brought suit against Antaramian to recover fees it alleged it was owed for various trial support services that TPI provided to Antaramian in his suit against a third party. Antaramian successfully defended against TPI’s suit, and as a result, he sought prevailing party attorneys’ fees and costs in, the trial court. Ultimately, the trial court awarded him prevailing party attorneys’ fees, costs, and prejudgment interest.

On appeal, TPI argues that the trial court erred by awarding attorneys’ fees and' costs for litigating the amount of attorneys’ fees. As will be discussed herein, we disagree with that argument and we therefore affirm that portion of the award. TPI also argues that Hahn is not entitled to prevailing party attorneys’ fees because Antaramian improperly paid expert; witness fees to fact witnesses. And TPI challenges the inclusion of overhead expenses within the cost award. While we find no error in the trial court’s ultimate conclusion regarding the propriety of payments to the fact witnesses for their assistance with case and discovery preparation or in the trial court’s' award of costs for over-' head expenses to Antaramian’s attorneys, we conclude that the trial court’s failure to itemize an award of $317,873.64 within -the overall cost award requires reversal. We also agree with TPI that the trial court erred in awarding prejudgment interest running from the time the attorneys’ fees and costs were' incurred rather than from the time when they were awarded. Addi-tio'nally, it is unclear whether the prejudgment interest award was based, in part, on disallowed office overhead expenses. Consequently, we must reverse the trial court’s prejudgment interest award. We affirm all other issues without further comment.

BACKGROUND

In August 2006, TPI entered into its contract with Antaramian' to perform litigation support services in Antaramian’s lawsuit'against'a third party (the “Consulting Agreement”). TPI wás required to assist Ant'áramian and his counsel in preparing for trial and in presenting the case during trial. The Consulting Agreement required Antaramian to compensate TPI five percent of any gross recovery that Antaramian obtained as a result of a verdict in his favor or settlement. Ultimately, Antaramian and the third party settled the lawsuit with each party agreeing to drop their claims against the other - party. Thereafter, Antaramian refused to pay TPI the five percent fee pursuant to the Consulting Agreement under the theory that Antaramian did not obtain a gross recovery and, therefore, did not owe anything to TPI.

In June 2006, TPI sued Antaramian for breach of the Consulting Agreement. The issue to be decided was whether Antarami-an obtained a gross recovery through his settlement with the third party thereby obligating him to pay TPI its fee. The jury returned a verdict in favor of Antaramian. TPI appealed, but this court affirmed the final judgment.

Antaramian then sought prevailing party attorneys’ fees and costs pursuant in part to .a provision in the Consulting Agreement, The provision provides in relevant part that the

prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, ... or in connection with enforcement of a judgment, including, but not limited to, attorneys’ and experts’ fees.

Antaramian sought $2,551,796.26, exclusive of prejudgment interest. After a hearing, the trial court granted Antaramian’s motion, though in a reduced amount of $2,004,432.58. The trial court also awarded prejudgment interest in the amount of $462,709.81 “from the date the attorneys’ fees and costs were incurred.” Thus the total award was $2,467,142.39.

In making the award, the trial court found that" the majority of Antaramian’s witnesses were fact witnesses and that An-taramian had improperly paid them as if they were expert witnesses, which was prohibited by section 92.142(1), Florida Statutes (2013). The trial court also found that the prevailing party provision in the Consulting Agreement did not entitle An-taramian to recover the full amount' paid to the fact witnesses because TPI could not have foreseen that Antaramian would have paid the witnesses at "a rate higher than what they were entitled to be compensated. However, the court noted that the fact witnesses also “assisted in both case and discovery preparation” thereby rendering them consulting experts. Consequently, the trial court permitted Antaramian to recover “certain fees charged.” Those fees were apparently part of a $317,873.64 cost award.

Additionally, the trial court found that Antaramian could recover attorneys’ fees and costs for his attorneys’ litigation of the issues'of entitleihent to and the ’amount of attorneys’ fees and costs; The trial court explained that the attorneys’ fees and costs provision in the Consulting Agreement is broad enough to encompass such an award.

The trial court also found that Antara-mian was entitled to recover his costs incurred in connection with the action, but the court noted that the Consulting Agreement .did not extend so far as to require payment for “an ‘overhead allocation’ of [Antaramian’s] staff and rent paid on [his] behalf.” While the trial court awarded separate cost awards for various attorneys who represented Antaramian, TPI contends that the $317,893.64 cost award erroneously includes .or at least fails to indicate whether it includes $255,000 of Antarami-an’s office overhead expenses which the trial court expressly disallowed. .,

ANALYSIS

I. Award of Attorneys’ Fees and Costs for Litigating the Amount of Attorneys’ Fees and Costs

TPI challenges the award of $40,346 which was the portion of the final judgment attributed to Antaramian’s attorneys’ litigation of the issue of the amount of attorneys’ fees and costs. TPI contends that Antaramian was not entitled to recover attorneys’ fees and cost for litigating the amount of fees to be recovered, even though a fee-shifting provision in the parties’ contract provides that such fees and costs may be recovered.

Both the Florida Supreme Court and this court have recognized that when parties are seeking attorneys’ fees pursuant to a statute, the parties are not necessarily entitled to recover attorneys’ fees for litigating the amount of fees. See, e.g., State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 833 (Fla. 1993); Wight v. Wight, 880 So.2d 692, 694 (Fla. 2d DCA 2004). But in this case, the attorneys’ fees and costs were not awarded pursuant to a statute. Instead, they were awarded pursuant to the fee-shifting provision in the Consulting Agreement. And we agree with the trial court that the provision is broad enough to encompass the award of fees and costs for litigating the amount of attorneys’ fees. Parties may “freely contract on the issue of attorney[s’] fees,” Precision Tune Auto Care, Inc. v. Radcliffe, 815 So.2d 708, 710 (Fla. 4th DCA 2002), and we will not re write a contract in order to relieve TPI of the result of its obligation under the Consulting Agreement, see Beach Resort Hotel Corp. v. Wieder, 79 So.2d 659, 663 (Fla. 1995).

We are not persuaded by the cases cited by TPI: Oquendo v. Citizens Property Insurance Corp., 998 So.2d 636, 638 (Fla. 3d DCA 2008), Paladyne Corp. v. Weindruch, 867 So.2d 630, 634 (Fla. 6th DCA 2004), and Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720, 723-24 (Fla. 5th DCA 1999). In those cases, the parties seeking the awards of fees relied on retainer agreements with their attorneys as the basis for the parties’ recovery of fees from the opposing parties. But here, Antaramian did not rely on a retainer agreement with his counsel as the basis for recovery of attorneys’ fees and costs. Rather, he relied on. the Consulting Agreement which was an agreement between himself and TPI. As already discussed herein, the Consulting Agreement includes a very broad, fee-shifting provision which permits an award of fees that were incurred by the prevailing party in any matter that is connected with the Consulting Agreement.

We find Waverly at Las Olas Condominium Ass’n v. Waverly Las Olas, LLC, 88 So.3d 386 (Fla. 4th DCA 2012), to be instructive to our case. In Waverly, a tenant sued a condominium association in a dispute over parking spaces, and the association filed a third-party complaint against the developer. After the third-party complaint was dismissed, the developer sought prevailing party attorneys’ fees against the association pursuant in part to an agreement between the developer and the individual unit owners. As part of the fee request, the developer sought to recover fees that were expended on litigating the amount of fees. Id. at 388. Because the trial court concluded that the association’s claims were all inextricably intertwined with one set of core facts, the trial court awarded all fees incurred to the developer, including fees for time spent on litigating the amount. Id.

On appeal, the Fourth District upheld the fee award. The Fourth District explained that “[t]he various third-party complaints focused on a common core set of facts” and that although it might have been possible to apportion the fees between the breach of contract claims and the other claims, “the broad language in the fee provision contemplate[d] its application to more than breach of contract claims.” Id. Specifically, the fee provision at issue in Waverly “provided for an award of fees for ‘any litigation between the, parties under this Agreement.’ ” Id. The Fourth District also upheld the trial court’s decision to award fees for litigating the amount of attorneys’ fees. The court concluded that the contractual provision was “broad enough to encompass fees incurred in litigating the amount of fees.” Id. at 389. In doing so, the court distinguished Palma on the basis that it involved a request for fees pursuant to a statute. Waverly, 88 So.3d at 389.

Similarly here, the fee-shifting provision was drafted in such a way that it broadly encompasses all claims that were connected in any way to the Consulting Agreement. Further, the fee-shifting provision permits recovery, of “all expenses of any nature incurred in any way” including attorneys’ fees. Consequently, as the Fourth District did in Waverly, we conclude that the language in the fee-shifting provision is “broad enough to encompass fees incurred in litigating the amount of fees.” Id. We hold that the trial court did not err in including an award of attorneys’, fees and costs for time .spent on litigating the amount of fees.

II. The Cost Award’s Inclusion of Recoverable Payments to Fact Witnesses for Assistance with Case and Discovery Preparation and Possible Inclusion of Antaramian’s Office Overhead Expenses

TPI argues that payment to the fact witnesses of more than $5 per day violates section 92.142(1) and constitutes sanctionable conduct. Thus TPI contends that the trial court should have rejected Antaramian’s total request for prevailing party attorneys’ fees and costs based on this alleged misconduct. TPI also asserts that payment of prevailing party attorneys’ fees and costs under these circumstances was not reasonably contemplated by the parties at the.time they entered into the Consulting Agreement. TPI further contends that the trial court’s award of costs improperly included Antaramian’s office overhead expenses.

Below, the trial court agreed that attorneys who testify at trial as fact witnesses are not entitled to the same hourly fee as an expert witness and, instead, that they are entitled only to $5 per day, the amount of witness compensation provided for in section 92.142. The trial court also' agreed that the fee-shifting provision in the Consulting Agreement does not entitle Antaramian to recover the full amount paid to the attorney witnesses because TPI could not have foreseen that the witnesses would have been paid at a rate higher than that to which they were entitled. However, the trial court did permit recovery of “certain fees charged” by the witnesses, because the trial court found that they also acted as consulting experts who “assisted in both case and discovery preparation.”

At the time of trial, rule 4-3.4(b) of the Rules Regulating the Florida Bar provided that a lawyer could pay witnesses in the following manner: “reasonable expenses incurred by the witness attending or testifying at proceedings; a reasonable noncon-tingent fee for professional services of an expert witness; and reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings.” Subsequently, in 2014, the rule was amended to omit the explicit reference to payment for loss of compensation. The relevant portion of the rule now provides that a lawyer may pay “reasonable compensation to a witness for time spent preparing for, attending, or testifying at proceedings.” R. Regulating Fla. Bar 4—3.4(b); In re Amendments to the Rules Regulating the Fla. Bar, 140 So.3d 541, 667. (Fla. 2014). Notably, while eliminating the explicit reference to “loss of compensation,” the court left intact the portion of the rule permitting payment of reasonable compensation for the witness’s time spent preparing for, attending, or testifying at the proceedings. Such payments have long been permitted as long as the payment is not conditioned on the content of the testimony. See ABA Formal Op. 96-402 (1996), Propriety of Payments to Occurrence Witnesses. Thus both versions of the rule acknowledge the value of a witness’s time as it relates to preparing for, attending, and testifying at trial. And while the amended rule does not govern this case, we emphasize that neither version of the rule makes it unethical or illegal for a party to pay fact witnesses for their expenses incurred in attending or testifying at trial or reasonable compensation for their time spent in preparing for, , attending, or testifying at trial.

In this case,. Antaramian requested $715,467.61 for legal expenses, litigation support, lodging, fuel, and airfare as listed in the spreadsheet attached to the affidavit of Robert Frazitta, Antaramian’s controller. Of this amount, $255,000 appears to be litigation support expenses as incurred by Antaramian Development Corporation of Naples (ADCN), which TPI argues were Antaramian’s' office ovérhead expenses that were nontaxable. This leaves an amount of $460,467.61' in fees, expenses, and costs that were charged to Antarami-an by other entities for legal services, litigation support, and related charges (such as lodging, fuel, and airfare). However, after considering this amount as well as the .assistance provided by the fact witnesses in case and discovery preparation, the trial court found—consistent with rule 4-3.4(b)—that Antaramian could not recover a]l of the requested costs for the payments to the witnesses. Thus the trial courj; awarded Antaramian costs to recover his payments to the fact witnesses but did so in a reduced amount. The trial- court awarded $317,873.64 “with ... respect [to] fees, costs[,] and expenses for which An-taramian is indebted or has paid as testified to by Robert Frazitta and as introduced at the evidentiary hearing,”

We agree with the trial court’s analysis of section 92.142 as well as the trial court’s conclusion that Antaramian was entitled to recover (as costs) the fees paid to witnesses for their assistance with case and discovery preparation. In doing so, we reject TPI’s argument that Antaramian’s conduct of paying the attorney fact witnesses anything more than $5 per day constituted illegal conduct that negated his right to recbver prevailing party attorneys’ fees and costs. We find no conflict between the “statute and the rule. The statute restricts payments to witnesses for their attendance and thus presumably their actual testitnony at trial. But the rule addresses páyments for entirely different and com-pensable items; witnesses’ expenses incurred in connection with their attendance and testimony at trial and reasonable compensation. for the time spent by 'the witnesses in' preparing for, attending, and testifying at trial so long as the payments are not conditioned on the content of the witnesses’ testimony. Thus we interpret the rule to mean that witnesses may be compensated not only for travel related expenses, such as airfare, car rentals, and hotel expenses, but also for a witness’s time spent in responding to discovery and appearing at depositions. At least some of the witnesses in this ease testified that they billed for their time spent in responding to discovery and appearing at depositions, and we find no error in the trial court’s conclusion that Antaramian was entitled to be reimbursed for his payments to the witnesses for those items, especially where there was no evidence presented that the payments constituted any sort of bonus or that they were contingent on any type of recovery made by Antaramian.

The trial court’s recognition of the limitation on payments to witnesses for their attendance and testimony at trial as set forth in section 92.142 indicates that the award for “certain fees’ charged” was not meant to be compensation for the witnesses’ trial testimony. Indeed, when the award provision relating to the witnesses is read in full context, it is apparent that that portion of the award was based only on the witnesses’ time spent in preparing for trial, i.e., their assistance with case and discovery preparation,

To the extent that TPI argues that it could not have reasonably foreseen that Antaramian would pay the attorney fact witnesses anything more than $5 per day, we likewise reject that assertion based on our conclusion that rule 4—3.4(b) permits the payment of reasonable compensation to witnesses for preparing for, attending, and testifying at proceedings which, in this case, includes assistance with case and discovery preparation.

We acknowledge that the rule does not expressly state that witnesses may be paid for. “assistance..with case and discovery preparation.” But for the reasons we explained, we hold that the rule’s language is broad enough to encompass such payments. Nevertheless, we agree with TPI that this is an issue that should be presented to the Florida Supreme Court. We therefore certify the following question as one of great public importance:

DOES RULE 4—3.4(B) OF THE RULES REGULATING THE FLORIDA BAR PERMIT A PARTY TO PAY A FACT WITNESS FOR THE WITNESS’S ASSISTANCE 'WITH CASE AND DISCOVERY PREPARATION?

Despite our conclusion that Antara-mian was entitled to be reimbursed for the payments made to the fact witnesses, TPl has raised another argument related to the costs that were awarded to Antaramian which requires us to reverse • the $317,873.64 cost award. From the record before us, we cannot conclude that the award is supported by competent, substantial evidence. This is because the trial court failed to itemize the award, and we cannot determine which costs the trial court deemed taxable and which it deemed nontaxable. Although the trial court made the finding that Antaramian was not entitled to recover costs for “ ‘overhead allocation’ of the normal staff and rent paid” on his behalf, the trial court’s order also awarded costs to Antaramian as set forth in his hearing exhibits 1 and 13. A comparison of the two exhibits reveals that Antar-amian’s prejudgment interest calculation spreadsheet contained figures matching figures on the attachment to Frazitta’s affidavit and that attachment included An-taramian’s office overhead expenses. Thus Antaramian’s prejudgment interest calculation appears to be based on an amount which includes the disallowed office overhead expenses. And if the trial court awarded prejudgment interest that was calculated based on amounts that included Antaramian’s office overhead expenses, that fact necessarily implies that those office overhead expenses are part of the cost award itself. Although Antaramiaris prejudgment interest calculation spreadsheet indicates that there was an adjustment made discounting Frazitta’s costs, that fact does not save the $317,873.64 cost award. Absent an itemization, the award on its face could be interpreted to include costs for the disallowed office overhead expenses. Similarly, we are unable to discern what portion of the award was for the payment to fact witnesses for their assistance with case and discovery preparation. For this reason, we reject TPI’s assertion that we- must offer guidance to the trial court as to the reasonableness of the amounts paid to the fact witnesses.

Where a trial court reviews a motion to tax costs, it “should consider each item of cost and determine whether it should be allowed in whole or in part or disallowed.” Northbrook Life Ins. Co. v. Clark, 590 So.2d 528, 528 (Fla. 2d DCA 1991). And a trial court’s failure to itemize costs, especially where a motion to tax costs is denied in part, can result in a reversal. See id. (“Because [the appellant] failed to itemize these costs, there was no Way to determine whether they were all taxable.”); Winn-Dixie Stores, Inc. v. Reddick, 954 So.2d 723, 730 (Fla. 1st DCA 2007) (holding that the trial court erred by failing to itemize which costs it chose to allow or disallow, thereby precluding intelligent appellate review of the awarded costs); Kirkland v. Thurmond, 519 So.2d 717, 718 (Fla. 1st DCA 1988) (explaining that “unless the trial court grants or denies [a] motion to tax costs in its entirety,” the trial court should itemize those costs “allowed and those disallowed [] and the amounts approved for each item” in order to facilitate appellate review). Thus because the trial court failed to itemize the $317,893.64 cost award and because it could be construed to include disallowed costs, we must reverse this award and remand for the trial court to determine which costs were taxable and which costs were nontaxable.

III. Challenge to Inclusion of Costs to Counsel for Overhead

TPI also challenges the various cost awards to Antaramian’s attorneys in the total amount of $89,415.48 to the extent that .the awards include overhead expenses such as postage, Westlaw research, office supplies, an iPad, travel expenses, telephone calls, courier service, and photocopies. TPI cites cases that stand for the proposition that such overhead expenses are nontaxable unless there is evidence that they are reasonably necessary to prosecute or defend the case. See Lewis v. Thunderbird Manor, Inc., 60 So.3d 1182, 1182 (Fla. 2d DCA 2011); Bolton v. Bolton, 412 So.2d 72, 73 (Fla. 2d DCA 1982); Landmark Winter Park, LLC v. Colman, 24 So.3d 787, 789 (Fla. 5th DCA 2009). However, courts have acknowledged that a party may recover overhead expenses as part of a cost award where a contract between the parties permits such an award. See In re Amendments to Unif. Guidelines for Taxation of Costs, 915 So.2d 612, 614 (Fla. 2005) (recognizing that “guidelines are advisory only” and “are not intended to ... limit the amount of costs recoverable under a contract or statute”); Panama City-Bay Cty. Airport & Indus. Dist. v. Kellogg Brown & Root Servs., Inc., 136 So.3d 788, 788 n.1 (Fla. 1st DCA 2014) (“The parties’ contract broadly allows for the prevailing party to recover on ‘any and all claims actions, damages, losses and costs’ and ‘all costs, expenses, and attorney’s fees,’ without specifying limits, such as those provided under the Statewide Uniform Guidelines of Taxation of Costs in Civil Cases.”). And here, we construe the fee-shifting provision in the Consulting Agreement to be broad enough to include such expenses. Our treatment of these overhead expenses—versus Antaramian’s personal office overhead expenses—is different because the fee-shifting provision here permit the recovery of “all expenses of any nature incurred in any way in connection with the matter,” and the attorneys’ overhead expenses as described fall within that definition. But the reason why we (and presumably the trial court) concluded that Antaramian’s personal office overhead expenses are not recoverable is because the expenses related to his staff and rent are expenses that exist independently of the action. We find no error in the distinct treatment of the types of overhead expenses, and we conclude that the trial court did not err in awarding costs related to Antaramian’s attorneys’ overhead expenses that were related to this action.

IV. Prejudgment Interest Award

In awarding prejudgment interest on the award of attorneys’ fees and costs, the trial court found that the attorneys’ fees and costs were an element of damages. The trial court therefore found that the interest accrued from the date that the fees and costs were incurred. However, fees awarded pursuant to a prevailing party fee provision in a contract are not damages because the party requesting them is not entitled to the fees until he becomes the prevailing party, and therefore, interest does not accrue prior to the date that entitlement to attorneys’ fees is fixed by agreement, an arbitration award, or by a court determination. See Butler v. Yusem, 3 So.3d 1185, 1186 (Fla. 2009); Quality Engineered Installation, Inc. v. Higley S., Inc., 670 So.2d 929, 930-31 (Fla. 1996). We reject Hahn’s argument that entitlement to fees was fixed on the date that the Consulting Agreement was signed in this case. While the fee-shifting provision is broad and establishes a right to prevailing party attorneys’ fees, that right was not vested on the date that the Consulting Agreement was signed. Rather, that right was established on the date that the trial court determined that Antaramian was the prevailing party. Consequently, the trial court erred by awarding prejudgment interest running from the date that the fees were incurred rather than from the date that Antaramian was deemed to be the prevailing party.

There is an additional reason for reversal relating to the prejudgment interest award. In rendering its order, the trial court expressly relied on Antaramian’s prejudgment interest calculation spreadsheet. In fact, the trial court’s prejudgment interest award amount of $462,709.81 is the exact amount of interest listed on Antaramian’s prejudgment interest calculation spreadsheet. But as we discussed in relation to the award of costs, the prejudgment interest calculation spreadsheet appears to include the disallowed office overhead expenses as the basis for the prejudgment interest calculation, and it is unclear whether the trial court’s $317,873.64 cost award included all or a portion of Antaramian’s disallowed office overhead expenses. If the cost award included such disallowed expenses, then the award of prejudgment interest was incorrectly calculated. Accordingly, we reverse the trial court’s award of prejudgment interest, and we remand for a recalculation of the award running from the date that the attorneys’ fees and costs were awarded rather than from when they were incurred. Additionally, if the trial court’s prejudgment interest calculation included interest on disallowed office overhead expenses, it should omit that portion of the award on remand.

CONCLUSION

The trial court correctly determined that Antaramian is entitled to recover his attorneys’ fees and costs for time spent litigating the amount of attorneys’ fees. Similarly, the trial court was correct in its finding that Antaramian’s fact witnesses are entitled to receive compensation for their assistance with case and discovery preparation, but we certify a question on this issue as previously detailed herein. However, because the trial court failed to itemize the cost award of $317,878.64, thereby precluding effective appellate review, we must reverse that portion of the cost award and remand for further proceedings. We likewise reverse the prejudgmeht interest award because the trial court erred in its method of calculation and because it is unclear if the interest award is based, in part, on disallowed office overhead expenses. In all other respects, we affirm.

Affirmed in part; reversed in part; remanded for further proceedings; question certified.

WALLACE and SLEET, JJ., Concur.

      . Antaramian was also successful on appeal and was awarded appellate attorneys’ fees by this court due to his status as the prevailing party. See Trial Practices, Inc. v. Antaramian, 97 So.3d 228 (Fla. 2d DCA 2012) (table decision).

      . TPI presents no argument on the propriety of awarding attorneys' fees and costs for litigating entitlement to attorneys’ fees. Since there is no dispute on this issue, we do not address it.

      . We conclude that both the applicable and the newly amended versions of the rule permit payments for a witness’s time spent in preparation for trial. While the applicable version of the rule more explicitly referred to payments for a witness’s loss of compensation incurred by reason of the witness’s preparation for trial, we do not think "loss of compensation” is the determinative factor. As prer viously noted, payments for a witness’s time spent preparing for trial have long been permitted so long as the payments are not conditioned on the witness’s téstimony. Further, the fact that the amended version of the rule removed the reference to “loss of compensation’,’ and now refers to compensation for "time spent preparing for, attending, or testifying at proceeding,” leads us to conclude that the focus is on the value of the witness’s time, even where no lost monetary amount is . proven.

      . We acknowledge that the award could also be interpreted to exclude the office overhead expenses, but it is precisely because the award could be construed in two different ways that renders the award problematic.


source: Caselaw Access Project

author: BERGER, J.

license: Public Domain

text:
    US BANK, NA as Legal Title Trustee FOR TRUMAN 2012 SC2 TITLE TRUST, Appellant, v. David S. GLICKEN a/k/a David Glicken, Unknown Spouse of David S. Glicken a.k.a Mrs. David Glicken, Appellees.
    Case No. 5D15-4059
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 27, 2017

      Roy A. Diaz, of SHD Legal Group, P.A., Fort Lauderdale, for Appellant.
    David Scott Glicken, of The Glicken Law Firm, Orlando, pro se.
    No Appearance for other Appellees.
   BERGER, J.

U.S. Bank, N.A., as Legal Title Trustee For Truman 2012 SC2 Title Trust (U.S. Bank), appeals the final judgment' entered in favor of David S. Glicken and the Unknown Spouse of David S. Glicken denying its foreclosure claim. U.S. Bank argues that the trial court erred in finding that it lacked standing to foreclose at the time of the trial and final judgment. We agree and reverse.

Wells Fargo filed a verified one-count foreclosure complaint against Glicken, alleging that he. was in default as to'his mortgage payments. Copies of the note, allonge, and mortgage were attached to the complaint. The allonge contained a blank indorsement without recourse from First Union National Bank, the original lender.

Thereafter, Wells Fargo assigned the mortgage and transférred possession of the note to U.S. Bank, which was later substituted as the party plaintiff in the case. U.S. Bank then filed the original note, allonge, and mortgage with the trial court, and the case proceeded to trial. The original note, the allonge attached to the original note, the original mortgage, a copy of the assignment of the mortgage, tlje acceleration letter, and the payment history were admitted into evidence.

. At the close of evidence, Glicken argued, among other things, that U.S. Bank lacked standing at the time of trial because there was no testimony about the assignment of the note. The trial court agreed with Glicken on the issue of standing and dismissed the case, concluding:

Standing is not transferrable and US Bank was not the holder of the note as of the date of the filing. It wasn’t, the attorney enact [sic] of the—Wells Fargo. It wasn’t a successor in - interest, it wasn’t purchased by, there was no way in which the two entities became one entity. There are a number of ways in which this happens, it. evolves [sic] in a variety of lawsuits we see,
,In this case, you cannot transfer by selling the note. You cannot transfer standing.
My ruling here is for the defendant.

This was error. The trial court’s ruling that standing could not be transferred by selling the note and that the only way the note could be transferred was through a merger of the two banks is incorrect. Notes can be sold or otherwise transferred even when the entire bank is not acquired. See Fed. Nat’l Mortg. Ass’n v. Rafaeli, 225 So.3d 264 (Fla. 4th DCA 2017); Jallali v. Christiana Tr., 200 So.3d 149, 152 (Fla. 4th DCA 2016) (“A substituted plaintiff can acquire standing to foreclose if the original, party had standing.” (citing Assil v. Aurora Loan Servs., LLC, 171 So.3d 226, 227 (Fla. 4th DCA 2015))). After all, that is the entire purpose of negotiability. See § 673.2011, Fla. Stat. (2012); Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010) (noting that a blank indorsement is payable to the bearer and can be negotiated by the transfer of possession alone); Barnett Bank of Palm Beach Cty., N.A. v. Regency Highland Condo. Ass’n, 452 So.2d 587, 589 (Fla. 4th DCA 1984) (“The law favors negotiability and is reluctant to adopt rules that burden transferability of negotiable paper.” (citing 11 Am. Jur. 2d § 398)), superseded by statute on other grounds as recognized in Any Kind Checks Cashed, Inc. v. Talcott, 830 So.2d 160, 164-65 (Fla. 4th DCA 2002).

The obligation under a promissory note is owed to the person entitled to enforce the instrument. § 673.4121, Fla. Stat. (2012). U.S. Bank argues that it established Wells Fargo had standing at the time the foreclosure complaint was filed because a copy of the note and the allonge, containing the indorsement in blank, was attached to the foreclosure complaint. U.S. Bank further argues that it proved it had standing at the time of trial through possession of the original note indorsed in blank, by filing the original note and al-longe with the trial court, and by successfully seeking their admittance into evidence. Glicken counters that while U.S. Bank presented proof of assignment of the mortgage, it failed to present any evidence or testimony whatsoever to show it was assigned or became the legal owner of the note. He maintains that U.S. Bank cannot prove standing through the assignment of the mortgage. •

Glicken is correct that an assignment of the mortgage is insufficient to establish standing without an indorsement on the note predating the complaint. See Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 46 (Fla. 5th DCA 2015); see also Jelic v. BAC Home Loans Servicing, LP, 178 So.3d 523, 525 (Fla. 4th DCA 2015) (citing Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039 (Fla. 4th DCA 2015)). Indeed, the mortgage follows the note. See Deutsche Bank Nat’l Tr. Co. v. Lippi, 78 So.3d 81, 85 (Fla. 5th DCA 2012) (citing Chem. Residential Mortg. v. Rector, 742 So.2d 300, 300-01 (Fla. 1st DCA 1998)). As such, standing to foreclose is focused on the promissory note.

When the note with an undated blank indorsement has been attached to the original complaint, this is sufficient to prove standing provided that the plaintiff produces the original note at trial or files it with the trial court with the same in-dorsement and there are no subsequent contradictory indorsements. See Nationstar Mortg., LLC v. Bo Chan, 226 So.3d 330 (Fla. 5th DCA 2017); Ortiz v. PNC Bank, Nat’l Ass’n, 188 So.3d 923, 925 (Fla. 4th DCA 2016); Eagles Master Ass’n v. Bank of Am., N.A., 198 So.3d 12, 14 (Fla. 2d DCA 2015) (citing Am. Home Mortg. Servicing, Inc. v. Bednarek, 132 So.3d 1222 (Fla. 3d DCA 2014)); Le v. U.S. Bank, 165 So.3d 776, 778 (Fla. 5th DCA 2015); Clay Cty. Land Tr. No. 08-04-25-0078-014-27, Orange Park Tr. Servs., LLC v. JPMorgan Chase Bank, Nat’l Ass’n, 152 So.3d 83, 85 (Fla. 1st DCA 2014) (citing Wells Fargo Bank, N.A. v. Morcom, 125 So.3d 320, 321-22 (Fla. 5th DCA 2013)).

Here, Wells Fargo attached a copy of the note and the allonge containing the blank indorsement from the original lender, First Union, to the foreclosure complaint. Subsequently, the original note and allonge, which are identical to the copies that were attached to the foreclosure complaint, were filed with the trial court by U.S. Bank and were admitted into evidence at trial. This is sufficient to show that the blank indorsement on the allonge predated the date on which the foreclosure complaint was filed and showed that Wells Fargo had standing at that time. As the act of filing the note with the trial court is indicative of possession, U.S. Bank’s filing of the original note and allonge, containing the blank indorsement, and admission of these documents into evidence at trial was sufficient proof that U.S. Bank possessed the note before and during trial. See Bo Chan, 226 So.3d 330; Ortiz, 188 So.3d at 925.

Accordingly, we reverse the final judgment entered in favor of Glicken and remand -with directions that the trial court enter final judgment in favor of U.S. Bank.

REVERSED and REMANDED, with instructions.

SAWAYA and LAMBERT, JJ„ concur.

      . Because we find the first issue dispositive, it is unnecessary for us to address the arguments regarding the acceleration letter, except to say that U.S. Bank presented sufficient evidence to show compliance with the notice before acceleration requirement in paragraph 21 of the mortgage.

      . The written final judgment states as its reasoning for finding in favor of Glicken that "[i]n weighing the evidence presented, the ■ Court finds that the Plaintiff did not meet its burden to prove that it is entitled to foreclose the mortgage in this matter.”


author: PER CURIAM.

text:
    Crystal LANCASTER, Appellant, v. Erik S. LANCASTER, Appellee.
    CASE NO. 1D17-0912
    District Court of Appeal of Florida, First District.
    Opinion filed November 6, 2017.

      Lindsey Lander, Trenton, for Appellant.
    Robert A. Sandow, Lake City, for Ap-pellee.
   PER CURIAM.

We have for review the final judgment dissolving the marriage between Crystal Lancaster (“the wife”) and Erik Lancaster (“the husband”). Among other issues, the wife challenges the provision relating to child support, arguing the trial court erred in deviating from the child support guidelines and denying her child support-to the detriment of the children. The father defends the final judgment on the basis that it incorporated the negotiated settlement agreement between the parties, which provided that neither parent would be responsible for paying child support to the other parent.

A trial court has an independent duty to determine the appropriateness' of child support provisions in a marital settlement agreement before incorporating them into a final judgment of dissolution. See Cross v. Cross, 490 So.2d 958, 960 (Fla. 1st DCA 1986); Wendel v. Wendel, 852 So.2d 277, 285 (Fla. 2d DCA 2003). This duty exists because child support is a, right that belongs to the child. See Dep’t of Revenue v. Reyes, 181 So.3d 1270, 1274 (Fla. 1st DCA 2015) (citing Imami v. Imami, 584 So.2d 596, 598 (Fla. 1st DCA 1991)). “It is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the state.” Id. (citations omitted). Accordingly, parents may not contract away or waive the rights of their child for support. Armour v. Allen, 377 So.2d 798, 799-800 (Fla. 1st DCA1979); Serio v. Serio, 830 So.2d 278, 280 (Fla. 2d DCA 2002).

The statutory guidelines set forth in section 61.30, Florida Statutes, are the starting point for the child support determination. See Morrow v. Frommer, 913 So.2d 1195, 1197 (Fla. 4th DCA 2005), The trial court is permitted to deviate plus or minus five percent from the presumptive guideline amount after considering all relevant factors and can deviate more than five percent upon a written finding explaining why ordering payment of the guideline amount would be unjust or inappropriate. § 61.30(1)(a), ’ Fla. Stat. (2016). In cases where the parenting plan provides that each child spend a. “substantial amount of time” with each parent, the methodology of section 61.30(11)(b) is used to calculate child support.

In the instant case, the final judgment incorporated the parties’ agreement that neither, is required to pay child support to the other. Although the court concluded that, this arrangement is ⅛. the “children’s best interests,” neither the agreement nor the final judgment addressed the needs of the children, the overall financial circumstances of the parties, or any other factor in section 61.30. In the absence of information concerning the manner in which the child support determination was made, we are unable to meaningfully review whether the trial court discharged its independent obligation to assess whether the parties’ agreement serves the best interests of the children.

Accordingly, we reverse the provision of the final judgment relating to child support and remand for further, proceedings consistent with this opinion. In all other respects, the final judgment is affirmed.

LEWIS, RAY, and JAY, JJ., CONCUR.


author: RAY, J.

text:
    Lois VANCE, Appellant, v. OKALOOSA-WALTON UROLOGY, P.A., a Florida Profit Corporation, and/or Thomas D. Zachos, M.D., as an Employee/Agent and/or Thomas D. Zachos M.D., Individually, Appellees.
    CASE NO. 1D16-4272
    District Court of Appeal of Florida, First District.
    Opinion filed November 6, 2017

      J. Alistair McKenzie of the McKenzie Law Firm, P.A., Pensacola, for Appellant.
    J. Andrew Talbert and Lindsey M. Romano of Quiritairos, Prieto, Wood & Boyer, P.A., Pensacola, for Appellees.
   RAY, J.

Lois Vance appeals a final order dismissing her amended complaint with prejudice for failure to comply with the presuit requirements for medical negligence claims and for failure to comply with the applicable statute of limitations. The narrow issue presented by this appeal is whether Ms. Vance’s amended complaint sounds in ordinary negligence rather than medical negligence. Because we agree with Ms. Vance that it is the former, we reverse and remand for further proceedings.

The amended complaint alleged that Ms; Vance visited Dr. Zachos, a urologist, at his office to have a catheter removed. In the examination room, the doctor provided a step for Ms. Vance to use to ascend onto the examination table. The doctor then moved the step away and performed the ■ procedure. After' the procedure, the doctor told Ms. Vance to go to the front desk and schedule another appointment for the following week. The doctor then left the examination room. Ms. Vance began to descend from the examination table, but because the step had been removed, she fell onto the floor. She alleged that the failure to replace the step created a known dangerous condition, and the doctor knew or should have known that he had not replaced the step for her. She claimed she suffered serious and permanent injuries due to her fall.

When evaluating whether a complaint sounds in ordinary or medical negligence, courts must determine from the allegations “whether the claim arises out of the rendering of, or the failure to render, medical care or services.” Doe v. Baptist Primary Care, Inc., 177 So.3d 669, 674 (Fla. 1st DCA 2015) .(citations omitted); see also § 766.106(1)(a), Fla. Stat. (2011) (defining a claim for medical negligence or malpractice). The core inquiry is “whether the claim relies on the application of the medical malpractice standard of care.” Holmes Reg’l Med. Ctr., Inc. v. Dumigan, 151 So.3d 1282, 1286 (Fla. 5th DCA 2014). Merely “labeling allegations as ‘ordinary negligence’ is not dispositive.” Shands Teaching Hosp. & Clinics, Inc. v. Estate of Lawson, 175 So.3d 327, 331 (Fla. 1st DCA 2015) (en banc). “Courts must look beyond the legal,labels urged by plaintiffs and ‘must[ ] apply the law to the well-pleaded factual allegations and decide the legal issue of whether the complaint sounds in simple or medical negligence.’ ” Id. (alteration in original) (quoting Dr. Navarro’s Vein Ctr. of Palm Beach, Inc. v. Miller, 22 So.3d 776, 778 (Fla. 4th DCA 2009)).

As we have explained before, the mere fact that “a negligent act occurred in a medical setting doesn’t make it medical negligence.” Lawson, 175 So.3d at 332; see e.g., Tenet St. Mary’s Inc. v. Serratore, 869 So.2d 729 (Fla. 4th DCA 2004) (medical center employee inadvertently kicking a patient); Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251 (Fla. 1st DCA 2000) (patient’s slip and fall in hospital room); Broadway v. Bay Hosp., Inc., 638 So.2d 176 (Fla. 1st DCA 1994) (collapse of hospital bed). We have described ordinary negligence as something jurors can resolve “by referring to common experience,” whereas medical negligence requires “the help of experts to establish what is acceptable, appropriate, and prudent” because jurors cannot determine through “common experience” whether medical standards of care were breached. Lawson, 175 So.3d at 332-33.

While there is no doubt that the line between ordinary and medical negligence may at times be difficult to draw, at this stage of the proceedings we do not believe Ms. Vance’s claim sounds in medical negligence. Jurors can use their common experiences to evaluate the act of placing and removing a step used by someone to get on and off a table, just as they could evaluate the act of pulling a chair out from under someone about to sit down. We note that our decision today rests solely on the allegations within the four corners of the amended complaint and should not foreclose a later challenge should the case morph into a medical negligence claim. Because we conclude that the amended complaint alleges a claim of ordinary negligence, we reverse and remand for further proceedings.

REVERSED and REMANDED.

WOLF and BILBREY, JJ„ CONCUR.


text:
    Elizabeth KESSINGER, Former Wife, Appellant, v. Clifton J. KESSINGER, Former Husband, Appellee.
    CASE NO. 1D16-1997
    District Court of Appeal of Florida, First District.
    Opinion filed November 6, 2017
    Beth M. Terry, Jacksonville, for Appellant.
    Robert Elrod, Jr., Jacksonville, for Ap-pellee.
   PER CURIAM.

A State of Georgia resident, Elizabeth Kessinger, appeals the trial court’s judgment domesticating her out-of-state divorce judgment and decision to resolve her former ■ husband Clifton Kessinger’s request to modify their out-of-state child support and child custody orders. We reverse because the trial court lacks jurisdiction to modify the orders.

In 2011, the parties received a final judgment of divorce from the State of New York. The judgment incorporated a child custody arrangement providing for Ms. Kessinger to be the primary residential parent of the parties’ three children, and a child support agreement requiring Mr. Kessinger to provide for the children until age twenty-one. . Mr. Kessinger subsequently moved to Jacksonville, Florida, and Ms. Kessinger moved to Georgia. Two of the children have since turned eighteen and one of them lives with Mr. Kessinger in Jacksonville.

In 2015, Mr, Kessinger filed a petition to modify the New York-entered child support and, child custody orders, seeking specifically “to name [himself as] the majority timesharing parent of the minor children, to give the Former Wife limited to no timesharing with the children, [and] to recalculate the child support.” The trial court granted Mr. Kessinger’s petition, ordering the New York judgment “fully enforceable and modifiable” in Florida and setting a hearing regarding the modification of child support and child custody. Ms. Kessinger then timely appealed the final judgment.

Ms. Kessinger objects to the final judgment on jurisdictional grounds. Ms. Kes-singer objects because she lives in Georgia and has not consented to having a Florida court modify the judgment. Two statutes address the circumstances under which Florida’s courts can modify out-of-state child support judgments. Section 88.6131, Florida Statutes, allows modifications, but only if all parties now reside in the State of Florida. Here, they do not. Ms. Kessinger lives in • Georgia, which Mr. Kessinger’s petition acknowledges. Section 88.6111 allows for modifications if the petitioner is not a Florida resident and the children are Florida residents. But it is the opposite in this case; -Mr. Kessinger lives in Florida and two- of the children live elsewhere, according to Mr. Kessinger’s- Petition and the Uniform ■ Child Custody Jurisdiction Enforcement Act (UCCJEA) verified affidavit filed by Ms. Kessinger.

With respect to custody, two of the older children have reached eighteen years of age and the court lacks subject matter jurisdiction with respect to them. Hardman v. Koslowski, 135 So.3d 434 (Fla. 1st DCA 2014) (holding that a trial court loses subject matter jurisdiction over child custody and visitation determinations when a child turns eighteen). Only one of Mr. Kessinger’s children remains a minor and that child lives with Ms. Kessinger in Georgia. § 61.503(2), Fla. Stat. (defining a “child” as an individual who has not turned eighteen). Florida is not the child’s home state and its courts lack jurisdiction because the child lived with her mother in Georgia during the six-month period preceding the petition. See Gonzalez v. Gonzalez, 654 So.2d 257, 259 (Fla. 3d DCA 1995) (“[Mjerely having a parent who lives in Florida will not support a finding that the child has a significant connection with this state”). For these reasons, we conclude that the trial court lacks jurisdiction to domesticate the out-of-state divorce judgment for the purposes of modifying the child support and custody orders.

Thus, we REVERSE with directions to VACATE the final judgment below and DISMISS the petition on jurisdictional grounds. We need not reach the notice issue raised by Ms. Kessinger’s appeal.

B.L. THOMAS, C.J., and OSTERHAUS and BILBREY, JJ., CONCUR.

      . The record also does not support the exercise of jurisdiction for other statutory reasons. See §61.514(1), Fla. Stat; §61.516, Fla. Stat. There is no indication, for instance, that Georgia’s courts (or another state’s courts) lack, or have declined jurisdiction over the custody issue here, And, from all indications, a Georgia court would be the more convenient forum.


text:
    Richard S. ABBAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2049
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 17, 2017
    Richard S. Abbas, Gainesville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Kielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Richard Abbas appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief, alleging ineffective assistance of counsel. Because the records attached to the order do not conclusively refute Abbas’ claim that counsel was ineffective for threatening to withdraw if Abbas did not accept a plea, we reverse the order under review and remand for attachment of portions of the record conclusively refuting Abbas’ claim that he was threatened with counsel’s withdrawal during the April 2016 plea and resentencing proceeding or, in the absence of such records, for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) (“[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996))).

REVERSED and REMANDED.

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


author: PER CURIAM. PALMER, J.,

text:
    PROGRESSIVE SELECT INSURANCE COMPANY, Petitioner, v. FLORIDA HOSPITAL MEDICAL CENTER a/a/o Louis Pena, Respondent.
    Case No. 5D16-2334
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 17, 2017
    Douglas H. Stein, of Bowman and Brooke, LLP, Coral Gables, for Petitioner.
    Chad A. Barr, of Law Office of Chad A. Barr, P.A., Altamonte Springs, for Respondent.
    Lawrence' M. Kopelman, of Lawrence M. Kopelman, P.A., Fort Lauderdale and Mac S. Phillips and Chris Tadros, of Phillips Tadros, P.A., Fort Lauderdale, as Amicus Curiae Floridians for Fair Insurance, Inc.
   PER CURIAM.

Progressive Select Insurance Company (hereinafter “Progressive”) petitions this court for a writ of certiorari, seeking to quash an opinion issued by the Circuit Court for Orange County, sitting in its appellate capacity, which affirmed the final judgment entered by the County Court. We deny the petition based upon the reasoning set forth in our opinion in Progressive Select Insurance v. Florida Hospital Medical Center A/A/O Jonathan Parent, No. 5D16-2333, 229 So.3d 901, 2017 WL 5503835 (Fla. 5th DCA Nov. 17, 2017).

PETITION DENIED.

SAWAYA and EDWARDS, JJ., concur.

PALMER, J., dissents, with opinion.

PALMER, J.,

dissenting.

I respectfully dissent for the reasons set forth in my dissent in Progressive Selective Insurance Co. v. Florida Hospital Medical Center A/A/O Jonathan Parent, No. 5D16-2333, 229 So.3d 901, 2017 WL 5503835 (Fla. 5th DCA November 17, 2017).


author: GENOVESE, J.,

text:
    Tim BARFIELD, Secretary, Department of Revenue, State of Louisiana v. DIAMOND CONSTRUCTION INCORPORATED
    NO. 2017-C-0751
    Supreme Court of Louisiana.
    09/15/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF WEBSTER

GENOVESE, J.,

would grant and assigns reasons:

LThe district court is not allowed to weigh the evidence and make credibility calls when considering a motion for summary judgment. See Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226. In this case, though the State by statute, La.R.S. 13:5034, has presented a prima facie case, that alone does not warrant summary judgment. A prima facie case merely relegates the burden of proof at trial on the merits to the defendant. This was not a trial, it was summary judgment; and, the law relative to summary judgment remains applicable. The mere proof of a prima facie case does not ipso facto morph a prima facie case into a successful summary judgment.

The defendant taxpayer proved by its affidavits that a considerable amount of work done by it was done out of state (approximately fifty percent). The defendant taxpayer presented affidavits sufficient to counter, at least in part, the State’s motion for summary judgment and to create genuine issues of material fact as to the exact amount of tax due by defendant. The district court completely disregarded the defendant taxpayer’s affidavits in evidence which unquestionably created genuine issues of material fact sufficient to defeat summary judgment.

|2I would grant the writ, reverse the district court’s grant of summary judgment, and remand the matter for further proceedings.


author: PER CURIAM GENOVESE; J., WEIMER, J.,

text:
    John W. SMITH v. HIGHLINES CONSTRUCTION CO., INC., and The Gray Insurance Company
    No. 2016-C-1443
    Supreme Court of Louisiana.
    9/22/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, OFFICE OF WORKERS’ COMPENSATION DISTRICT IE

PER CURIAM

hln light of our opinion in Burgess v. Sewerage & Water Board of New Orleans, 16-2267 (La. 6/29/17), 225 So.3d 1020, 2017 WL 2836062, the judgment of the court of appeal is vacated and set aside insofar as it finds claimant was not entitled to reimbursement. The case is remanded to the Office of Workers’ Compensation for a determination, consistent with the interpretation of La. R.S. 23:1203(A) set forth in Burgess, of whether the out-of-state pharmacy’s services were not available in Louisiana or whether the out-of-state pharmacy can provide services for comparable costs to those of a Louisiana pharmacy. In all other respects, the judgment of the court of appeal is affirmed.

GENOVESE; J.,

concurs in the result and assigns reasons.

hi concur with the majority’s remand only to the extent of having the Office of Worker’s Compensation determine whether the out-of-state pharmacy services were not available in Louisiana or whether the out-of-state pharmacy can provide services for comparable costs to those of a Louisiana pharmacy. In all other respects, and particularly with respect to the issue of choice of pharmacy in a worker’s compensation case, I maintain the position which I previously articulated in my dissent in Burgess v. Sewerage & Water Board of New Orleans, 16-2267 (La. 6/29/17), 225 So.3d 1020, 2017 WL 2836062, that the choice of pharmacy does not necessarily rest with the employer.

WEIMER, J.,

dissenting.

11 Having granted the writ of certiorari in this matter, I would issue a full opinion based upon the record before this court.


author: CRICHTON, J.,

text:
    STATE of Louisiana v. Warren DEMESME
    No. 2017-KK-0954
    Supreme Court of Louisiana.
    10/27/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

Writ denied.

CRICHTON, J.,

additionally concurs' and assigns reasons:

hi agree with the Court’s decision to deny the defendant’s writ application and write separately to spotlight the very important constitutional issue regarding the invocation of counsel during a law enforcement interview. The defendant voluntarily agreed to be interviewed twice regarding his alleged sexual misconduct with minors. At both interviews detectives advised the defendant of his Miranda rights and the defendant stated he understood and waived those rights. Nonetheless, the defendant argues he invoked his right to counsel. And the basis for this comes from the second interview, where I believe the defendant ambiguously referenced a lawyer—prefacing, that statement with “if y’all, this is how I feel, if y’all think I did ⅛ I know, that I didn’t do it so why don’t you just give me a lawyer dog cause .this is not what’s up.’’

As this Court has written, “[i]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel, the cessation of questioning is not required.” State v. Payne, 2001-3196, p. 10 (La. 12/4/02), 833 So.2d 927, 935 (citations omitted and emphasis in original); see also Davis v. United States, 512 U.S. 452, 462, 114 S.Ct. 2350, 2357, 129 L.Ed.2d 362 (1994) (agreeing with the lower courts’ conclusion that the ^statement “[m]aybe I should talk to a lawyer” is not an unambiguous request for a lawyer). In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

HUGHES, J., would grant.


text:
    Trae THIBODEAUX v. Steven ARVIE, Jr., State Farm Fire and Casualty Company and Progressive Secruity Insurance Company
    No. 2017-CC-1666
    Supreme Court of Louisiana.
    10/27/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF ST. LANDRY

Writ denied.

CRICHTON, J.,

would grant and assigns reasons:

hFor the reasons assigned by Judge Gremillion, Thibodeaux v. Arvie, 2017-625, p. 1 (La. App. 3 Cir. 8/31/17), 226 So.3d 1229, 2017 WL 3775712 (Gremillion, J., dissenting), I would grant this writ application. In this motorcycle accident case, an uninsured motorist (“UM”) insurer—Progressive Security Insurance Company (“Progressive”)—-filed a partial motion for summary judgment arguing for the district court to dismiss the plaintiffs claim for bad faith. I agree with Judge Gremillion that the district court’s finding of genuine issues of liability, without more, does not necessarily constitute genuine issues of bad faith. See Louisiana Bag Co., Inc. v. Audubon Indem. Co., 2008-0453, p. 14 (La. 12/2/08), 999 So.2d 1104, 1114 (noting that when there are “substantial, reasonable, and legitimate questions as to the extent of the insurer’s liability” bad faith cannot be inferred). And as stated by Judge Gremil-lion, the evidence in the record suggests that the plaintiff was partially at fault for the accident and that the plaintiff may not be entitled to UM insurance. Therefore, I would grant Progressive’s writ application in order to fully evaluate whether there is a genuine issue of material fact as to bad faith."


author: PER CURIAM:

text:
    STATE of Louisiana v. Robert TASSIN
    No. 2016-KP-0997
    Supreme Court of Louisiana.
    11/17/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

|, Denied. The lower courts did not err in denying relator’s claims on procedural grounds. Moreover, relator’s motion for stay is moot.


text:
    STATE EX REL. Wesley James MONROE v. STATE of Louisiana
    No. 2016-KH-1615
    Supreme Court of Louisiana.
    11/17/2017
   ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE

PER CURIAM:

It Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator -has now fully-litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conyiction - procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013. La. Acts 251 amended that article to make the procedural bars , against successive filings mandatory. Relator’s claims have now been fully litigated in aceord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter,- unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review: The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant in part.


text:
    STATE of Louisiana v. Damien HALL
    No. 2016-KP-1004
    Supreme Court of Louisiana.
    11/17/2017
   ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION

PER CURIAM:

|! Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C, § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

HUGHES, J., would grant.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 15-PDB-008
    NO. 2017-OB-1360
    Supreme Court of Louisiana.
    11/17/2017
   ORDER

h Treating the “Request for Written Findings of Fact and Reasons for Judgment” filed by complainant as a Petition for Reconsideration of the court’s October 9,2017 judgment,

IT IS ORDERED that reconsideration be and hereby is denied.


text:
    STATE EX REL. Kenneth Wayne MONTGOMERY v. STATE of Louisiana
    No. 2016-KH-1476
    Supreme Court of Louisiana.
    11/17/2017
   ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CAL-CASIEU

PER CURIAM:

I ¶ Denied. Relator has now .fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.G. § 2244, Louisiana.post-conviction procedure envisions the filing of a second or'successive application only under the narrow circumstances provided in La.C.Cr.P. art, 930.4 and.within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord. with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

GENOVESE, J„ recused.


author: PER CURIAM Hughes,' J.,

text:
    KT FARM PARTNERSHIP, et al. v. CITIZENS PROGRESSIVE BANK, et al.
    NO. 2017-OC-1443
    Supreme Court of Louisiana.
    11/13/2017
   ON SUPERVISORY WRITS TO THE FIFTH JUDICIAL DISTRICT COURT FOR THE PARISH' OF FRANKLIN

PER CURIAM

11 Considering the unique facts presented in this case, we find the interests of justice warrant the appointment of a judge ad hoc. The specific appointment will be made in a separate order accompanying this opinion.

In making- this appointment, we emphasize that lawyers should not engage- in conduct calculated to force the recusal of the assigned trial judge where no grounds for recusal would otherwise exist. Such conduct may raise significant ethical concerns. Similarly, trial' judges presented with such conduct should act with restraint and decorum in order to avoid creating an appearance of impropriety.

HUGHES, J., dissents and assigns reasons. - ⅛

Hughes,' J.,

dissenting

hi respectfully dissent. I would deny the stay and the .writ on the merits.

Attachment

JjSUPREME COURT OF LOUISIANA

ORDER

Acting under the authority of Article V, Section 5(A), Constitution of 1974, and the inherent power of this Court, and considering the decision of this Court on November 13, 2017 in matter No. 17-OC-1443, resulting in the need to assign a judge ad hoc to the Fifth Judicial District Court in the below mentioned matter on the docket of said court, and further considering the willingness of Retired Judge Anne Lennan Simon to accept said assignment,

IT IS ORDERED THAT:

Retired 'Judge Anne Lennan Simon be and she is hereby assigned as judge ad hoc of the Fifth'Judicial District Court, Parishes of Franklin, Richland, and West Carroll, for the purpose of hearing and disposing of the matter entitled “KT Farms Partnership, et al vs. Citizens Progressive Bank, et al” No. 43,818 on the docket of said court, subject to the completion of any unfinished business.

This order shall not deprive the judges of the Fifth Judicial District Court, Parishes of Franklin, Richland, and West Carroll, of their offices as judges of the Fifth Judicial District Court, Parishes of Franklin, Richland, and West Carroll, or of any other courts to which they may have been assigned by previous order of this Court, nor shall it deprive Retired Judge Anne Lennan Simon of her office as judge of any other court to which she may have been assigned by previous order of this Court.

The Court or Judge requesting ad hoc or pro tempore assistance shall have the duty and obligation to provide the requisite courtroom and office space, legal support personnel (if necessary), court reporting and secretarial personnel, and related equipment to enable ad hoc or pro tempore judges to fulfill their obligations.

The judge assigned to sit ad hoc or pro tempore hereunder in any district, juvenile, parish, city, municipal, or traffic court shall be subject to Supreme Court General Administrative Rule, Part G, Section 2, “Cases Under Advisement,” with respect to deciding matters timely and reporting to this Court’s judicial Administrator. Any retired judge assigned to sit ad hoc in any district court shall report biannually on the status of his or her assignment, using the District Court Ad Hoc Judicial Assignment Report Form.

Given under our hands and seal this 13th day of November, A.D., 2017, New Orleans, Louisiana.

FOR THE COURT:

/s/ Marcus R. Clark Marcus R. Clark, Justice


text:
    STATE EX REL. Michael D. EZELL v. STATE of Louisiana
    No. 2016-KH-1517
    Supreme Court of Louisiana.
    11/17/2017
   ON SUPERVISORY WRITS TO THE SIXTH JUDICIAL DISTRICT COURT, PARISH OF TENSAS

PER CURIAM:

|,Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for póst-conviction relief. State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that: an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated five applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application [¡..applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: PER CURIAM

text:
    IN RE: Wayne E. GARRETT
    NO. 2017-B-1460
    Supreme Court of Louisiana.
    11/17/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

|, This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Wayne E. Garrett, an. attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

15-DB-015

Respondent represented a client in a personal injury claim stemming from a 2006 accident, after which the client sought treatment for her injury at Natchez Rehab and Sports Specialists (“NRSS”). In June 2007, respondent sent a guarantee letter to Sherry Norman, the administrator of NRSS, in which he acknowledged that any balance remaining on the NRSS bill that was not paid by medical insurance would be paid out of the claim proceeds.

The case settled in 2010. The settlement proceeds were deposited and distributed in February 2010. The amount due to the client was paid in full; however, respondent did not notify NRSS of the settlement, and the settlement distribution statement reflects that he failed to withhold funds from the proceeds for payment of the NRSS bill.

In December 2010, Ms. Norman spoke with respondent to advise him of the situation, but subsequent calls from NRSS to respondent were not answered. In February 2011, a representative from NRSS sent a written request for payment to) 2 respondent via certified mail. Although the letter was successfully delivered, NRSS received no response from respondent.

In March' 2011, NRSS filed a complaint against respondent with the ODC. In October 2012, respondent forwarded a $500 check to NRSS along with a letter indicating that the $505 balance would be forwarded in the next thirty days. Respondent did not pay the remaining balance until December 2014.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons), 1.15(d) (failure to timely remit funds to a client or third person), and 8.4(a) (violation of the Rules of Professional Conduct).

16-DB-051

On November 26, 2014, the ODC received notice of an overdraft in respondent’s client trust account. Thereafter, the ODC’s forensic auditor performed an audit of the account for the period of June through December of 2014. According to the auditor’s report, respondent misused, commingled, and converted funds in his trust account during that time, and his records reflected procedural and accounting errors. Respondent’s trust account balance also fell below the amount necessary to honor the funds deposited. The auditor concluded that respondent failed to maintain the safety of money deposited for disbursement, did not transfer attorney’s fees as earned, and failed to properly document his records for disbursement changes to ensure that he handled the account properly.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a), 1.15(b) (a lawyer may deposit the lawyer’s own funds in a client trust account for the sole purpose of paying bank service - charges or obtaining a waiver of those charges, but only in an amount necessary for that purpose), 1.15(d), and 8.4(a).

I ¡¡DISCIPLINARY PROCEEDINGS

In April 2015, the ODC filed formal charges against respondent in 15-DB-015. Respondent answered the formal charges and admitted to all of the factual allegations as outlined by the ODC. In explaining his conduct, respondent stated that he believed that his client’s treatment at NRSS in 2007 was in connection with a separate and distinct personal injury action, and not the action for which he represented the client.

In May 2016, the ODC filed formal charges against respondent in 16-DB-051. Respondent answered the formal charges, and generally denied any misconduct. He indicated that at the time of the overdraft, there were no client funds in the account, and thus, no client was impacted -by the overdraft.

The two sets of formal charges were consolidated before proceeding to a formal hearing on the merits.

Heating Committee Report

After considering the testimony and evidence presented at the hearing,'the hearing committee made factual findings consistent with the underlying facts set forth above; The committee also made the following additional findings:

Regarding the NRSS' matter, the evidence shows that respondent admitted that he failed to ' safeguard the funds due to NRSS under the terms of the guarantee, failed to promptly notify NRSS of the settlement of the client matter, and" failed to promptly deliver the funds to NRSS despite actual notice from NRSS of the error.

Regarding the overdraft matter, the evidence shows that respondent misused, commingled, and converted funds in his trust account during the audit period, of May 31, 2014 to December 31, 2014. His trust account balance fell below the amount necessary to honor funds deposited. He committed procedural án'd accounting errors, deposited earned attorney’s fees with client money, did not transfer money|4 as earned, failed to maintain the safety of money deposited for disbursement, used money from the trust account for personal use (loan to bookkeeper and payment to mechanic), and failed to identify disbursed attorney’s fees with á particular client.

Based on these findings, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee found that respondent’s actions resulted from sloppy and unorganized bookkeeping, poor law office management, and negligence. The clients suffered little or no harm and .no restitution was needed as respondent took corrective action.

The committee found no aggravating factors present. In mitigation, the committee jbund the absence of a dishonest or selfish motive, a .cooperative attitude toward the proceedings, and remorse.

Based on these findings, the committee recommended respondent be suspended from the practice of law for six months, fully deferred, subject to a one-yeár period of probation. The committee also recommended that respondent be assessed with the costs and expenses of this proceeding.

The ODC objected to the leniency of the hearing committee’s recommended sanction.

Disciplinary Board Recommendation

After review, the, disciplinary board determined that the hearing committee’s findings of fact are supported by the record and are not manifestly erroneous. The board also found that the committee correctly determined respondent violated the Rules of Professional Conduct as charged.

The board determined respondent violated a duty to his clients. His misuse of his trust account was negligent and caused the potential for harm. His conduct caused no harm to any client and little harm, in the form of a delay in payment, to | fiNRSS. Though the delay was significant, the amount in question was relatively -small. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction is suspension.

The board found no aggravating factors present. In mitigation, the board found the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, timely good faith effort to make restitution or to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse.

After further considering this court’s prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for six months, fully deferred, subject to a one-year period of probation. The board further recommended respondent be assessed with the costs and expenses of this proceeding.

Neither respondent nor the QDC filed an objection to the disciplinary. board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by dear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the. findings and recommendations of the hearing committee and disciplinary, board, we have held the manifest error standard is applicable to the -committee’s factual findings. See In re: Caulfield, 96-1401 (La. 11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La. 3/11/94), 633 So.2d 150.

| nThe record of this matter supports a finding that respondent failed to timely pay a third-party provider and mishandled his client trust account,'resulting in the commingling and conversion of client funds. Based on these facts, respondent has violated the Rules of Professional Conduct as alleged in-the formal charges.

Having found evidence of professional misconduct,- we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La. 1984).

.Respondent violated a duty owed to his clients. His failure to maintain adequate documentation to ensure that his trust account was handled properly created the potential for significant harm, although no client has reported actual harm. NRSS did suffer actual harm caused by the significant delay in receiving the full amount of money to which it was rightfully entitled. Suspension is the baseline sanction for this misconduct.

The sole aggravating factor present is respondent’s substantial experience in the practice of law (admitted 1974). The record supports the mitigating factors as found by the board, except that respondent did not make a timely good faith effort to make restitution or to rectify the consequences of his misconduct in the NRSS matter.

17Under the unique facts of this case, we agree that the sanction recommended by the board is appropriate. Accordingly, we will suspend respondent from the practice of law for six months, fully deferred, subject to a one-year period of probation.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record', it is ordered that Wayne E. Garrett, Louisiana Bar Roll number 5947, be and he hereby is suspended from the practice of law for six months. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on probation for a period of one year. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent also has a 2002 admonition for a conflict of interest violation. This misconduct is remote in time and is unrelated to the current misconduct.


text:
    STATE EX REL. John Shane NICOSIA v. STATE of Louisiana
    No. 2016-KH-1563
    Supreme Court of Louisiana.
    11/17/2017
   ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES

PER CURIAM:

h Denied. Relator shows no error in the lower courts’ rulings. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Dennis L. MAGEE v. STATE of Louisiana
    No. 2016-KH-1616
    Supreme Court of Louisiana.
    11/17/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON

PER CURIAM:

| iDenied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/6/95), 660 So.2d 1189.

Relator has now fully litigated his second application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 261 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Robert TASSIN v. Darrel VANNOY, Warden
    No. 2016-KP-1948
    Supreme Court of Louisiana.
    11/17/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| denied. Relator fails to show the state withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Relator also fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claim, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

■ Relator has now fully litigated his application- for. post-conviction relief in state court. Similar, to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions. the filing of a second- or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, 1 ¿relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: ■GENOVESE, Justice,

text:
    Curtis BRICE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Old Republic Insurance Company
    No. 2017-C-1285
    Supreme Court of Louisiana.
    11/17/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF CADDO

11Writ denied.

■GENOVESE, Justice,

would grant and assigns the following reasons. ¡

|TI agree with the trial court that the uninsured/underinsured (UM) form was invalid. In Gray v. American National Property & Cas. Co., 07-1670, pp. 12-13 (La. 2/26/08), 977 So.2d 839, 848, this Court has ruled that “an insurer ,,. has an affirmative duty to place the insured in a position to make an informed decision, not just to present the required form for the signature of the insured or the insured’s representative.” Exceptions to uninsured/underinsured coverage must be strictly construed as there is a strong public policy in-favor of uninsured motorist coverage. In this case, it is undisputed that the agent (insurance broker), not the .insured, supplied the lower limits of UM coverage and filled in that part of the form. I find that the insurer breached its affirmative duty to place the insured in a position to make an informed decision when the insurance broker assumed the onus of making, and did in fact make, the selection of UM coverage. This is the insured’s determination, not the broker’s pre-fabricated determination.


author: PER CURIAM: JOHNSON, Chief Justice,

text:
    STATE of Louisiana v. Kevin JAGO
    No. 2017-K-0183
    Supreme Court of Louisiana.
    November 17, 2017

      JOHNSON, C.J., would grant and assigns reasons.
    WEIMER, J., would grant and docket.
    HUGHES, J., would grant and docket
   ON WRIT OF CERTIORARI TO THE FIFTH CIRCUIT COURT OF APPEAL, PARISH OF ST. CHARLES

PER CURIAM:

11Writ denied. The court of appeal, erred in finding that defendant must have injected a lethal quantity of heroin before he can be shielded from prosecution by operation of La.R.S. 14:403.10(B), Requiring a drug user to have experienced a life-threatening overdose—and requiring a lay person: before seeking help to -determine whether a drug user has experienced a life-threatening overdose—would frustrate the purpose of the statute, which is to encourage persons to seek help for those they reasonably believe 'have overdosed, However, under the circumstances here, in which the unconscious defendant was quickly roused and required no medical attention of any kind, La.R,S. 14:403.10(B) does not shield defendant from prosecution because it is only triggered when' (emphasis added), “A person ... experiences a drug-related overdose and is in need of medical assistance ....” Therefore, notwithstanding the court of appeal’s erroneous statement of law, the court'of appeal reached "the correct result and defendant is not entitled to have the charge against him quashed.

Johnson, C.J., would grant and assigns reasons.

JOHNSON, Chief Justice,

would grant.

_JjI write separately to address the stark disparity that exists in characterizing individuals impacted by the opioid epidemic. A swift rise in opioid-related deaths has been portrayed as a public health crisis of epic proportions. In fact, President Donald Trump declared the epidemic a national public health emergency on October 26, 2017. While a new collective understanding has emerged acknowledging drug addiction, particularly opioid abuse, as an illness best addressed by our public health institutions rather than our criminal justice system, this new collective understanding only relates to one, category of drug addiction.

When we declared a War on Drugs in the 1980’s and 1990’s, lawmakers eschewed compassion and reason, painting a distorted picture of certain drug abusers as violent criminals deserving of long prison sentences, rather than treatment. Prior to the Fair Sentencing Act (FSA) of 2010, the sentencing disparity between offenses for • crack and powder cocaine was 100:1, See Dorsey v. United States, 567 U.S. 260, 264, 132 S.CL 2321, 183 L.Ed.2d 250 (2012). Interestingly, crack addiction largely affected poor communities' of color, while powder cocaine predominantly impacted more affluent white communities. The current opioid crisis, however, casts a much broader demographic net. Many opioid abusers use legally prescribed medication, yet others are addicted to unlawfully, obtained heroin. Indeed, over forty states across the nation, including |gLouisiana, have made opioid antagonists such as na-loxone available over the counter at drugstores such as CVS and Walgreens. The fact remains, however, that opioids killed more than 33,000 people in 2015, and nearly half of those deaths were caused by a prescription opioid. In my view, it is inconceivable to categorize one class of opioid abusers as ill and in need of treatment, while others are prosecuted to the full extent of the law.

In this particular case, a deputy responded to an anonymous tip that two males were passed out inside of a parked car with the engine running. Defendant Kevin Jago was in the driver’s seat and co-defendant Rafael Brooks was in the passenger seat. See State v. Brooks, 16-0345 (La. App. 5 Cir. 12/28/16), 210 So.3d 514. Both men were unconscious and did not respond when the deputy knocked on the window of the vehicle. The deputy opened the driver’s side door and checked the defendant for a pulse, at which point defendant began to regain consciousness. The deputy noticed a hypodermic needle in co-defendant Brooks’ right hand, as well as a belt tied around his left arm. After both men regained consciousness, they were removed from the vehicle, arrested, and a search of the vehicle was conducted. The co-defendants were subsequently charged with possession of heroin. Defendant filed a motion to quash the charge, invoking the protection of La. R.S. 14:403.10(B).

The defendant submits that the court of appeal’s decision frustrates the very purpose of La. R.S. 14:403.10(B), which is to encourage individuals to seek help in the event of an opioid overdose. The trial court granted the defendant’s motion to quash based on its finding that the statute was specifically designed for this kind of case. The court of appeal overturned the trial court decision with a narrow, more [.^restrictive interpretation of La. R.S. 14:403.10(B), which will effectively deter persons from seeking medical assistance out of fear of prosecution.

To be clear, I embrace the notion that drug treatment should be the primary tool used to solve addictions. I have long advocated for reform in our criminal justice system and have actively participated in the Louisiana Justice Reinvestment Task Force, which successfully passed ten bills designed to reduce penalties for drug offenses and other non-violent offenses, while investing in substance abuse treatment and counseling programs. Equal protection requires that we change our approach in handling addictions. We must not continue this pattern of relegating one group of drug abusers to prison, while providing medical assistance for some opioid abusers.

Weimer, J., would grant and docket.

Hughes, J., would grant and docket

      . Opioid Overdose, Centers for Disease Control and Prevention Website, https://www.cdc. gov/drugoverdose/index.html (last visited November 13, 2017).

      . Louisiana Justice Reinvestment Package Summary, Department of Corrections Website, http://www.doc.la.gov/iustice-reinvestment-task-force (last visited November 13, 2017).


text:
    Gerald P. MOORE and GM Enterprises, L.L.C. v. CHEVRON USA, TRMI Holdings Inc., Star Enterprise, State of Louisiana, Department of Environmental Quality, Evangeline Street Texaco, Inc.
    NO. 2017-C-1085
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. C574063; to the Court of Appeal, First Circuit, No. 2016 CA 0805

I iDenied.


text:
    Charles AGUILLARD v. CITY OF NEW ROADS, THROUGH its Chief Executive Officer, Mayor Robert MYER, Officer Robert Dixon, Beauregard “Bud” Torres, III, Sheriff Ex Officio as the Administrator of the Pointe Coupee Parish Prison, Pointe Coupee Detention Center
    NO. 2017-C-1086
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Pointe Coupee, 18th Judicial District Court Div. D, No. 46443; to the Court of Appeal, First' Circuit, No. 2016 CA 1262;

| iDenied.


text:
    STATE of Louisiana v. Travis BOYS
    NO. 2017-KD-1769
    Supreme Court of Louisiana.
    October 21, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 525362; to the Court of Appeal, Fourth Circuit, No. 2017-K-0867

11 Stay denied; writ denied.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Christopher WINSTON State of Louisiana v. Christopher Winston
    NO. 2017-KK-1245
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 527-312; to the Court of Appeal, Fourth Circuit, No. 2017-K-0365 C/W 2017-K-0397;

|! Denied.


text:
    GAUDET & TOLSON, LTD. and Le Centre Evangeline Corporation v. Kelley HRABE, Baton Rouge Partners, LLC, The Garden Senior Apartments, LLC, Humanities Foundation, Inc., State of Louisiana, Division of Administration, Office of Community Development, Louisiana Housing Corporation, Net Giver, LLC and First American Title Insurance Company, Inc.
    NO. 2017-C-1126
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. C628657; to the Court of Appeal, First Circuit, No. 2016 CA 0422

h Denied.


text:
    CREEK MANAGEMENT, L.L.C. v. UNOPENED SUCCESSION and Unknown Heirs or Legatees of Wade Williams, et al.
    NO. 2017-C-1252 VS
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. A, No. 585,355; to the Court of Appeal, Second Circuit, No. 51,-392-CA;

| j Denied.


text:
    STATE of Louisiana v. Ricky DUNN
    NO. 2017-KO-0297
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div, C, No, 13-CR8-122601; to the Court of Appeal, First Circuit, No. 2015 KA 1972

Denied.


text:
    OPELOUSAS GENERAL HOSPITAL AUTHORITY, a Public Trust, d/b/a Opelousas General Health System and ArkLaMiss Surgery Center, L.L.C. v. FAIRPAY SOLUTIONS, INC.
    NO. 2017-C-1223
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of-Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. C, No. 12-C-1599-C; to the Court of Appeal, Third Circuit, No. 17-42

| denied..


text:
    Ronald COURVILLE and Angela Courville v. ALLIED PROFESSIONALS INSURANCE COMPANY, A Risk Retention Group, Inc., Rathmann-Keogh Chiropractic Clinics, L.L.C., and Thomas J. Rathmann, D.C.
    NO. 2017-C-0783
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E, Baton Rouge, 19th Judicial District Court Div. B, No. 607,202; to the Court of Appeal, First Circuit, No. 2016-CW-1354;

JjDenied.