text:
    DYCK-O’NEAL, INC., Appellant, v. James N. SHEILS, Appellee.
    CASE NO. 1D16-5009
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    David M. Snyder, David M. Snyder Professional Association, Tampa, Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa, and Joshua D. Moore of the Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Ryan G. Moore and Wendal Finner, First Coast Consumer Law, Jacksonville Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

ROBERTS, BILBREY, and KELSEY, JJ., CONCUR.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DYCK-O’NEAL, INC., Appellant, v. Raul Maceda EGUI, Appellee.
    CASE NO. 1D17-0920
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    David M. Snyder, David M. Snyder Professional Association, Tampa, Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa, and Joshua D. Moore of the Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Ryan G. Moore, First Coast Consumer Law, Jacksonville Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

ROBERTS, BILBREY, and KELSEY, JJ., CONCUR.


text:
    DYCK-O’NEAL, INC., Appellant, v. Jordan Paul BOGART & Amanda Lauren Bogart, Appellees.
    CASE NO. 1D17-0918
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    David ,M. Snyder, David M. Snyder Professional Association, Tampa, Susan .B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa, and Joshua D. Moore of the Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Austin Tyler Brown of Parker & Du-Fresne, P.A., Jacksonville, for Appellees.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

ROBERTS, BILBREY, and KELSEY, JJ., CONCUR.


author: PER CURIAM,

text:
    MORTGAGE GUARANTY INSURANCE, Appellant, v. LUCAS HEWETT & RACHEL LUNE CORNWELL, Appellees.
    CASE NO. 1D17-0897
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017.
    David M. Snyder, David M. Snyder Professional Association, Tampa, Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa, and Joshua D. Moore of the Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Austin Tyler Brown of Parker & Du-Fresne, P.A., Jacksonville, for Appellees.
   PER CURIAM,

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins- and decisions by the other four district courts of appeal).

ROBERTS, BILBREY, and KELSEY, JJ., CONCUR.


text:
    DYCK-O’NEAL, INC., Appellant, v. Paula RICKELS, Appellee.
    CASE NO. 1D17-0544
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017.
    David M. Snyder, David M. Snyder Professional Association, Tampa, Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa, and Joshua D, Moore of the Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED, See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a. party is not entitled to pursue a.separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

ROBERTS, BILBREY, and KELSEY, JJ., CONCUR.


text:
    DYCK-O’NEAL, INC., Appellant, v. Dhanraj SINGH, Appellee.
    CASE NO. 1D16-3898
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    David M. Snyder, David M. Snyder Professional Association, Tampa, Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa, and Joshua D. Moore of the Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Austin Tyler Brown of Parker & Du-Fresne, P.A., Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

ROBERTS, BILBREY, and KELSEY, JJ., CONCUR.


text:
    Desiree Nicole BAILEY, the former wife, Appellant, v. Michael Andrew BAILEY, the former husband, Appellee.
    CASE NO. 1D17-453
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant.
    Lisa A. March of the Law Office of Lisa A. March, P.A., Jacksonville Beach, for Appellee.
   PER CURIAM.

In this post-dissolution appeal, we agree with the former wife that the trial court erred in requiring the parties to equally split the responsibility of transportation for timesharing because that issue was not pled or tried by consent. Accordingly, we reverse that portion of the challenged order. In all other respects, we affirm the order.

AFFIRMED in part; REVERSED in part.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.

      . Unlike the former wife, we do not read the order to modify the limitation on overnights embodied in the consent final judgment. Instead, as the former husband conceded in his brief, "he is still limited to 130 overnights."


text:
    DYCK-O’NEAL, INC., Appellant, v. Daniel F. ORTIZ, Appellee.
    CASE NO. 1D17-0787
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    David M. Snyder, David M. Snyder Professional Association, Tampa, Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa, and Joshua D. Moore of the Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Ryan G. Moore, First Coast Consumer Law, Jacksonville Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

ROBERTS, BILBREY, and KELSEY, JJ., CONCUR.


text:
    DYCK-O’NEAL, INC., Appellant, v. William WIGGINS, Appellee.
    CASE NO. 1D17-0323
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    David M. Snyder, David M. Snyder Professional Association, Tampa; Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa; Daniel C. Con-suegra and Joshua D. Moore of the Law Offices of Daniel C. Consuegra, Tampa; and Scott Zimmer of the Law Offices of Daniel C. Consuegra, Riverview, for Appellant.
    Austin Tyler Brown, Parker & Du-Fresne, P.A., Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

ROBERTS, BILBREY, and KELSEY, JJ., CONCUR.


text:
    MORTGAGE GUARANTY INSURANCE CORPORATION, Appellant, v. John R. HANDY & Latisha Sneed, Appellees.
    CASE NO. 1D17-0322
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017

      David M. Snyder, David M. Snyder Professional Association, Tampa, Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa, and Joshua D. Moore of the Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

ROBERTS, BILBREY, and KELSEY, JJ„ CONCUR.


text:
    DYCK-O’NEAL, INC., Appellant, v. Brennan Patricia MEASE, Appellee.
    CASE NO. 1D17-0286
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017.
    David M. Snyder, David M. Snyder Professional Association, Tampa, Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa, and Scott Zimmer of the Law Offices of Daniel C. Consuegra, Riverview, for Appellant.
    Ryan G. Moore, First Coast Consumer Law, Jacksonville Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

ROBERTS, BILBREY, and KELSEY, JJ„ CONCUR.


author: MAKAR, J.

text:
    SCF, INC., Appellant, v. FLORIDA THOROUGHBRED BREEDERS’ ASSOCIATION, INC. dba Florida Thoroughbred Breeders’ and Owners’ Association, Inc.; and Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, Appellees.
    CASE NO. 1D16-3211
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017.

      David S. Romanik of David S. Romanik, P.A., Oxford, for Appellant.
    J. Stephen Menton and Tana D. Storey of Rutledge Ecenia, P.A., Tallahassee, for Appellee Florida Thoroughbred Breeders’ Association, Inc.
    Jason L. Maine, Dwight' O. Slater, Che-vonne T. Christian, and Caitlin Rose Mawn, Tallahassee, for Appellee Department of Business & Professional Regulation. ' '
   MAKAR, J.

Florida-grown thoroughbred racehorses, and the prize money they earn, underlie this dispute involving a breeder, the industry association that controls in-state thoroughbred racing, and the Florida agency providing regulatory oversight. The question we address is whether the breeder has legal standing to challenge the annual plan for distribution of owners’ and breeders’ awards as non-compliant with statutory requirements.

I.

Ocala is the county seat- of Marion County, Florida, both of which promote their North Florida community as the “Horse Capital of the World™ due to its rich history of equestrian farms and success in national thoroughbred racing, including the first Florida-bred horse to win the Kentucky Derby (Needles, in 1956) and the last horse to win the Triple Crown (Affirmed, in 1977) before American Phar-oah- (who has a Florida connection to Affirmed’s bloodline) ended the streak in 2015 by winning the “Grand Slam” of American horse racing. Over the years, Florida’s equestrian success has transformed the niche North Florida cottage industry of the early 1900s into a major economic force in the state:

The equine industry in Florida is big business. Florida ranks only behind Texas and California with respect to the total number of horses (500,000). Approximately 440,000 Floridians are involved in the industry as horse owners, service providers, employees, and volunteers. Even more participate as spectators at .equine-related events. The horse racing industry alone has a greater overall economic impact than baseball’s spring training. All equine activities generate approximately $5 billion for Florida’s economy. People from all walks of life are involved in Florida’s total equine industry, from the wealthiest families (e.g., the Bloomberg, Steinbrenner, Gates, and Onassis families) to your regular Joe farmers, horse trainers, children and retirees.[]

As the industry and its gambling revenues grew, the legal and regulatory structure overseeing its operation also expanded, though the heart of thoroughbred breeding and- its administration remained in the Ocala area.

At the epicenter of the industry are two entities: the Florida Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering, which is the regulatory arm of the state, and the Florida Thoroughbred Breeders’ Association, Inc., also known as Florida • Thoroughbred Breeders’ & Owners’ Association (FTBOA), which is a unique Ocala-based, private, non-profit corporation that has been granted legal authority to promote Florida’s thoroughbred industry and receive monies and distribute awards to owners of the top Florida-bred thoroughbred competitors. In its own words, it “administers the lucrative awards program which encourages individuals to participate in the industry in the Sunshine State.” FTBOA was initially established in 1945 and was specifically designated by the Legislature in 1977 to collect and distribute wagering prize monies as awards, section 550.38, Florida Statutes (1977), Chapter 77-167, Laws of Florida, which were considered an “important factor[ ] in attracting the entry of well-bred horses in Florida racing meets, which in turn helps to produce maximum racing revenues for the state and the counties.” Id. § 550.262, Fla. Stat. (1977).

A recurrent theme in FTBOA’s history is the tension between the association’s economic interests and those of the breeders and owners, each -seeking a share of the pool of funds dedicated to promoting the State’s economic interests and encouraging development of successful homegrown thoroughbred racehorses. This tension has persisted through good economic times in the industry, as well as the bad times (such as when federal tax laws changed in the 1980s making equine investments less remunerative), the focus often being on how awards are determined. Thoroughbred breeders’ awards were initially set by statute, see Chapter 68-161, Laws of Florida (establishing section 550.38), but over the decades, that system evolved into one in which FTBOA is empowered to decide the amount and distribution of awards. Ch. 92-348, § 31, Laws of Fla. (establishing section 550.26165 and specifying the percentage of race purses to be distributed as awards to registered Florida-bred horses, such as up to twenty percent, but not less than fifteen percent, from available funds); see also Ch. 2000-354, § 25, Laws of Fla. (amending section 550.26165(1)). Whether set by statute or by the discretion of FTBOA, the goal of the breeders’ awards are “to encourage the agricultural activity of breeding racehorses in this state.” § 550.26165, Fla. Stat. (1993).

With this brief historical overview, we turn to the central feature of this case, which is the statutory mandate that FTBOA annually create a “uniform rate and procedure for the payment of breeders’ and stallion awards” that “must provide for the maximum possible payments within revenues.” §§ 550.2625(3)(h), 550.26165(2), Fla. Stat. (2017). FTBOA “shall make breeders’ and stallion award payments in strict compliance with the established uniform rate and procedure plan.” Id. § 550.2625(3)(h). And the fund of undistributed breeders’ awards shall not be allowed “to grow excessively.” Id. § 550.26165(4).

Monies distributed as breeders’ awards are limited “to breeders of registered Florida-bred horses winning horseraces” and, under the current statutory structure, must be within certain parameters. For example, “awards shall be given at a uniform rate to all winners of the awards, shall not be greater than 20 percent of the announced gross purse, and shall not be less than' 15 percent of the announced gross purse if funds are available.” § 550.26165(1), Fla. Stat. To provide a floor below which FTBOA awards should not go, “[p]riority shall be placed upon imposing [restrictions such as caps on winnings and deferred payments] in lieu of allowing the uniform rate to be less than 15 percent of the total purse payment.” Id. § 550.2625(3)(h). To cover its own expenses, FTBOA is authorized to withhold up to ten percent of permitholder’s payments “as a fee for administering the payments of awards and for general promotion of the industry.” Id. In 2009, FTBOA was told to become more responsive to competition from other states’ “rapidly changing” programs and given more flexibility to- “design competitive awards programs” for inclusion in its annual plan, such as paying awards for second and third place finishes and paying awards “that are greater than 20 percent and less than 15 percent of the announced gross purse” and so on. Ch. 2009-170, § 12, Laws of Fla. (adding subsection (5) to section 550.26165).

FTBOA’s annual plan “must, be approved by the [Division before implementation. In .the absence , of an approved plan and procedure, the authorized rate for breeders’ and stallion awards is 15 percent of the announced gross purse for each race.” § 550.2625(3)(h), Fla. Stat. FTBOA must “keep accurate records showing receipts and disbursements of such payments” and “annually file a full and complete report to the [Division showing such receipts and disbursements and the sums withheld for administration.” .The Division may “audit the records and accounts” of FTBOA “to determine that payments have been made to eligible breeders and stallion owners in accordance with this section.” Id. § 550.2625(3)(i). The Division “may order [FTBOÁ] to cease and desist from receiving funds and administering funds received under this section” upon a finding of non-compliance “with any provision of this section[.]” Id. § 550.2625(3)(j).

Since 1996, Southern Cross Farms, doing business as SCF, Inc., has been among the hundreds of thoroughbred ■ breeders and owners in the Ocala area. It has been successful, receiving breeders’ awards from FTBOA every year since 1998 (save 2001), representing thirty-one racehorses earning approximately $138,000 in award monies. Recently, SCF earned $17,405.00 in breeders’ awards in 2015 (four different horses) and intended to race these same horses in 2016 (one of which it alleged in its amended petition had already won a breeders’ award in 2016); it also alleged it had “3 . two-year Florida-bred horses in final preparation for launching their racing careers in 2016 at the racetracks in South Florida.” SCF’s membership in FTBOA lapsed, but that does not prevent it from eligibility to receive awards.

In response to the Division’s approval of FTBOA’s proposed plan for the 2016 race year, SCF initiated an administrative proceeding to challenge the plan’s compliance with statutory .requirements, principally those related to FTBOA’s responsibility to ensure that award amounts are set appropriately. SCF filed an amended petition, but the administrative law judge (ALJ) granted the motions to dismiss of FTBOA and the Division, finding that SCF lacked standing because its substantial interests were not-affected by the Division’s “mere approval” of the plan. Despite SCF’s unbroken track record of awards in the fifteen years leading up to its administrative challenge, the ALJ found it “much too speculative” that SCF would again receive awards that might be . diminished by FTBOA’s actions. In addition, the ALJ recognized that although SCF had an interest in how the plan is “ultimately implemented, it has no interest whatsoever in the agency action in the present matter, i.e., approval of the Plan by the Division.” The' ALJ noted that if SCF were a member of FTBOA, which is not required to win awards, it could “petition [FTBOA] in some fashion to seek redress or input about the proposed plan before it is submitted to the Division. But once the Division approves the Plan, it is in place and cannot be disturbed.” Based on the ALJ’s order, the Division dismissed SCF’s amended petition with prejudice, resulting in this appeal.

II.

The issue presented is whether SCF has standing to bring an administrative challenge against FTBOA’s approved annual plan for breeders’ awards as'being non-compliant with the statutory requirements for such a plan. This question is answered by analyzing whether SCF has a “substantial interest” to be determined in the proceeding challenging the statutory compliance of FTBOA’s plan. § 120.52(13)(b), Fla. Stat. To détermine whether a third-party has a substantial interest in the outcome of a proceeding for standing purposes, the test set out in Agrico Chemical Company v. Department of Environmental Protection, 406 So.2d 478, 482 (Fla. 2d DCA 1981), is applied, consisting of two questions: 1) will the party suffer injury in fact, which is of sufficient immediacy to entitle it to a section 120,57 hearing; and 2) does the party have a substantial injury of a type or nature for which the proceeding is designed to protect? Id. “The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.” Id.

But first we address the claim of FTBOA and the Division that this- case is moot because all awards for the 2016 year have been issued and paid, leaving no meaningful remedy for SCF; they say SCF seeks an advisory opinion on “what should be included in future” plans and that SCF’s legal claims are not ones that would recur. But SCF does not seek payment or rescission of 2016 awards. Instead, the primary relief it requests in this appeal is the determination that it had standing to pursue its claims of statutory non-compliance against FTBOA and the Division, an important issue that is likely to recur and over which we have jurisdiction despite it being moot as to the 2016 plan. Godwin v. State, 593 So.2d 211, 212 (Fla. 1992) (mootness does not deprive appellate court of jurisdiction where issue is likely to recur).

Turning back "to the merits, SCF alleged that the 2016 plan did not comply with statutory mandates and thereby contained breeders’ awards that were below levels that should otherwise have been met and for Which SCF would be eligible and likely would have received in some measure due to its' having done so for seventeen of the past eighteen years. As to the second part of the Agrico test, it is clear that SCF meets its requirements. To begin, the Legislature’s stated purpose of the statutory framework at issue is to “encourage the agricultural activity of breeding and training racehorses in this state” by distributing “awards ' to breeders of registered Florida-bred horses winning horseraces;” See § 550.26165(1), Fla. Stat. SCF’s petition alleges a scope of interest and activities (breeding and racing thoroughbred horses in Florida), and relief requested (an annual plan that- complies with statutes that- seek to maximize the payment 'of breeders’ awards) that demonstrates the type of substantial interest that can be administratively addressed and resolved. Indeed, the- raison d’étre for the plan to establish breeders’ awards of optimal magnitude is to encourage the very activity in which SCF . has successfully engaged. See § 550.26165(2) (annual plan “must provide for the maximum possible payments within revenues”).

This type of economic interest has been recognized as sufficiént to establish standing 'in this same industry. In Florida Horsemen Benevolent & Protective Association v. Rudder, three Florida thoroughbred owners—who were not members of an association representing most thoroughbred racehorse owners and trainers— sued the association, asserting economic harm. 738 So.2d 449, 451 (Fla. 1st DCA 1999). The claimed injury was that the purse the three owners might have received was reduced by a statutory one-percent deduction paid directly to the association. Id. Because the “purses that the [owners] would otherwise receive are diminished by the one percent deduction made in favor of the [association]. These [owners] therefore satisfy the general standing requirement that the case involve an actual controversy as to the issue or issues presented.” Id. at 451. Given that the Florida thoroughbred owners in Rudder had standing in a civil court, and that “[expansion of public access to the activities of governmental agencies was one of the major legislative purposes of the new Administrative Procedure Act,” it follows that SCF’s substantial interests are sufficient under the second part of the Agrico test.

Next, as to the first part of the Agrico test, FTBOA and the Division claim that SCF had nothing more than a speculative prospect of earning an award in 2016; they also argue that the prospects of SCF earning a larger award (if the plan complied with statutes) are irrelevant and likewise speculative. But the proper inquiry is on the likelihood of injury, not that it be certain. With the past as a predictor, it was substantially certain that SCF would win another award in 2016 (at the time of its amended petition it had already done so). Indeed, none of the three thoroughbred owners in Rudder had the fifteen-year consecutive string of awards that SCF had achieved at the time of its petition, making the case for SCF’s standing that much stronger.

As to whether SCF might earn a larger award, FTBOA and the Division assert that SCF has no direct injury from the adoption of the plan and that potential future applications of the plan to SCF were speculative. In short, they claim that the legislative grant of authority to FTBOA to develop a plan of breeders’ awards that compete with those of other states “does not contemplate participation by individual breeders seeking to protect their individual economic interests.” Such a conclusion—and that of the ALJ that SCF has “no express entitlement” to a statutory award—overlooks that much of the impetus and focus of the statutory framework is to optimize payouts to top Florida-bred horse owners whose horses excel in Florida races, SCF being one. Because the statutory framework was set up to provide economic inducements for Florida breeders like SCF to operate successful equestrian programs in-state, it would be a curious conclusion that none of them individually or as a group has a legal basis to complain about the plan’s compliance with statutory guidelines as to awards. Fla. Home Builders Ass’n, 412 So.2d at 354.

FTBOA and the Division point out that a proposed plan must be submitted at least sixty days before the beginning of the payment year, such that “there is simply no time or contemplation” for a third-party challenge to be made; instead, only FTBOA and the Division are allowed to be involved in the approval process. The finality of the plan once approved, and the statutory admonition that it not be modified thereafter absent “the most compelling reasons,” section 550.26165, Florida Statutes, is a two-edged sword. Though the compacted time-frame may suggest that third-party challenges might be problematic, the seeming irreversibility of the plan once finalized weighs in favor of the interests asserted by SCF; absent early correction, statutory compliance may. never be achievable, as this case demonstrates. Moreover, the finality of the plan weighs in favor of allowing a challenge. Unlike the situation in Suwannee River Area Council Boy Scouts of America v. State, Department of Community Affairs, 384 So.2d 1369, 1374 (Fla. 1st DCA 1980), which involved a “binding letter” process that merely determined “whether another layer of government must be dealt with by a developer,” the plan under scrutiny here is a final one not subject to any layer of government scrutiny other than by the Division. As we said in Ybor III, Limited v. Florida Housing Finance Corporation, 843 So.2d 344, 346 (Fla. 1st DCA 2003), the “administrative need for decisional finality is a nullity if the road toward closure does not permit a reasonable point of entry for an aggrieved applicant to speak and be heard.” The Legislature has neither expressly nor impliedly said that the very persons the statutory framework was designed to benefit—breeders of Florida thoroughbred racehorses—are to be excluded from administratively challenging a plan that, by statute, is intended to benefit them; and we are disinclined to do so absent clearer legislative direction. See Rosenzweig, 979 So.2d at 1054 (“[I]t is clear that if anyone has the ability to challenge the Department’s interpretation of section 335.065, which specifically relates to bicycle lanes, it would be those seriously involved in bicycling”).

REVERSED.

WINSOR, J. and BROWN, JOHN, ASSOCIATE JUDGE, CONCUR.

      .See generally Charlene R. Johnson, Central Florida Thoroughbreds: A History of Horses in the Heart of Florida, (2014) (detailing the equine history of Central Florida); American Pharoah, Wikipedia, https://en.wikipedia.org/ wiki/American_-Pharoah (last visited April 17, 2017) (Triple Crown of Kentucky Derby, Preakness Stakes, and Belmont Stakes plus the Breeders' Cup Classic).

      . Amanda Simmons Luby & Renée E. Thompson, Taking Notice of Florida’s Antiquated Equine Lien Laws, Fla. B.J., November 2014, at 16, 16 (footnote omitted).

      . See About FTBOA, Florida Thoroughbred Breeders' & Owners’ Association, https:// www.ftboa.com/News/About-Us (last visited April 14, 2017).

      . Years ago, the Florida Supreme Court and this Court nullified statutes that lacked direction on how revenues generated for the promotion of Florida-bred racehorses were to be used. See Horsemen's Benevolent & Protective Ass'n, Fla. Div. v. Div. of Pari-Mutuel Wagering, Dep't of Bus. Reg., 397 So.2d 692, 695 (Fla. 1981) (Striking down a statute "containing] no provision for how the funds paid to the horsemen’s association must be spent or that they must be spent in furtherance of the legitimate state objective herein advanced,” such that the "statute effectually requires payment of money to a private association to do with as it chooses.”); see also Fla. Horsemen Benevolent & Protective Ass’n v. Rudder, 738 So.2d 449, 452 (Fla. 1st DCA 1999) (Striking down statute that "places no obligation upon the association as to how funds deducted pursuant to the statute are to be expended and it specifies no benefit that is to be received by owners or trainers.”).

      . Until 1999, the complete statutes of Florida were published only in odd-years, supplements in even-years. Because section 550.26165 was enacted in December 1992, after the supplement was published, it first appears in the 1993 statute book.

      . See Fla. Home Builders Ass'n v. Dep't of Labor & Emp’t Sec., 412 So.2d 351, 352-53 (Fla. 1982); Rosenzweig v. State Dep't of Transp., 979 So.2d 1050, 1053 (Fla. 1st DCA 2008) ("[0]ne of the major legislative purposes of the Administrative Procedure Act was the expansion of public access to the activities of governmental agencies[.]”).


text:
    Cletus Ray THOMPSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1519
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    Diana L. Johnson and Matthew I. Lufra-no of Johnson and Lufrano, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Cletus R. Thompson was found guilty of armed burglary, aggravated battery with a deadly weapon, and aggravated assault. The trial court sentenced Thompson and reserved jurisdiction to address restitution, but judgment was entered and Thompson filed a notice of appeal after his motion to withdraw plea was denied.

Soon after the notice of appeal was filed, the trial court held a restitution hearing and ordered Thompson to pay restitution. The State properly concedes that it was reversible error to do so because the trial court lacked jurisdiction. See Smith v. State, 39 So.3d 471, 472 (Fla. 1st DCA 2010) (“[T]he trial court did not have jurisdiction to enter the restitution order because it was rendered months after Smith filed his notice of appeal.”) Accordingly, we affirm the judgment and sentence, but strike the restitution order and remand to the trial court for further proceedings.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

WETHERELL, MAKAR, and KELSEY, JJ., CONCUR.


text:
    Amanda CUDWORTH, Appellant, v. Joseph TROZZO, Appellee.
    CASE NO. 1D17-100
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    Emilian “Ian” Bucataru, Tallahassee, for Appellant.
    Thomas Duggar and Daniel. I. Phillips of Duggar & Duggar, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Amanda Cudworth challenges. the trial court’s order on motion for sanctions and motion for enforcement that required her to, pay $1,453.82 in un-reimbursed expenses and $220 in .band fees and that awarded Joseph Trozzo attorney’s fees for pursing the enforcement action. We reverse.

The trial court- relied on a spreadsheet entered into evidence by Trozzo when determining the amounts.that Cudworth was required to pay. However, the attached documentation failed to- support the amounts listed in the spreadsheet. More-. over, many of the expenses should -not have been considered because they were incurred prior to Trozzo seeking a child support order. See Cordell v. Cordell, 30 So.3d 647, 649 (Fla. 3d DCA 2010). Thus, the trial court abused its discretion by granting the motion for enforcement. We also reverse the award of attorney’s fees as Trozzo should not have prevailed on this motion for enforcement.

We, therefore, REVERSE the order on appeal.

B.L. THOMAS, C.J., and LEWIS and ROWE, JJ., CONCUR.


text:
    DYCK-O’NEAL, INC., Appellant, v. Danell A. HUTHSING, et al., Appellees.
    CASE NO. 1D16-4352
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    David M. Snyder, David'M. Snyder Professional Association, Tampa; Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa; Daniel C. Con-suegra, Chad W. Howard, and Joshua D. Moore of the Law Offices of Daniel C. Consuegra, Tampa; and Scott Zimmer of the Law Offices of Daniel C. Consuegra, Riverview, for Appellant.

      Austin Tyler Brown, Parker & Du-Fresne, P.A., Jacksonville, for Appellees.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate, action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

ROBERTS, BILBREY, and KELSEY, JJ., CONCUR.


text:
    DYCK-O’NEAL, INC., Appellant, v. Angella MASSA & Joseph Massa, Appellees.
    CASE NO. 1D16-4350
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    Consuegra, Chad W. Howard, and Joshua D. Moore of- the Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    ' Catrina H. Markwalier and J. Morgan Foster, Shutts & Bowén, LLP, Jacksonville, for Appellees.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So,3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So,3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

ROBERTS, BILBREY, and KELSEY, JJ., CONCUR.


text:
    BAYVIEW LOAN SERVICING, LLC, Appellant, v. Rita KAY, Appellee.
    CASE NO. 1D16-4043
    District Court of Appeal of Florida, First District.
    Opinion filed October 18, 2017

      Jonathan L. Blackmore and John D. Cu-sick of Phelan, Hallinan, Diamond & Jones, PLLC, Ft. Lauderdale, for Appellant.
    Michael Wm Mead, Mead Law Firm, Ft. Walton Beach, for Appellee.
   PER CURIAM.

Bayview Loan Servicing, LLC (“Bay-view”), appeals a final order dismissing its foreclosure action against Rita Kay. After the trial court excluded Bayview’s loan payment history documents from evidence as hearsay, it determined that Bayview could not state a prima facie case and dismissed the case without prejudice. Because we conclude that the trial court erred in its application of the business records exception, we reverse and remand for a new trial.

Bayview and M & T Bank executed a servicing agreement whereby M & T Bank serviced loans until mortgagors defaulted, at which point Bayview took over all default and foreclosure procedures. To make this arrangement simple and beneficial for both parties, they shared a mutually accessible online platform to track all loan and payment records. Only the name of M & T Bank can be found on the online records in this platform.

After the original mortgage and note were admitted into evidence, Bayview attempted to have the loan payment history admitted. Bayview called its Litigation Manager, Juan Pesantes, to discuss the loan and documents at issue. Mr. Pesantes testified that the payment history was made by someone with knowledge of its contents near the time of the events and was kept in the ordinary course of business, in accordance with the regular practice at Bayview, and that he had reviewed and was familiar with these documents. Additionally, Mr. Pesantes effectively detailed the relationship between Bayview and M & T Bank, as well as the platform at issue.

Following a hearsay objection, the trial court ruled that Bayview could not admit the payment history into evidence under the business records exception because the document only had M & T Bank’s name on it, the witness was an employee of Bayview and not M & T Bank, and Bayview did not have the servicing agreement between the two companies on hand.

“A trial court’s decision to admit evidence is reviewed for abuse of discretion, subject, of course, to the rules of evidence and case law.” Hunter v. Aurora Loan Servs., LLC, 137 So.3d 570, 572 (Fla. 1st DCA 2014). Section 90.803(6), Florida Statutes (2014), permits the admission of business records into evidence that would otherwise be inadmissible hearsay. To admit such a record, the proponent must show that the following conditions are satisfied:

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

Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008). The proponent may present the testimony of a records custodian to show these predicate requirements. Id. This witness need not have prepared the document, but “must be able to show each of the requirements for establishing a proper foundation.” Mazine v. M & I Bank, 67 So.3d 1129, 1132 (Fla. 1st DCA 2011).

In Hunter, the witness, an employee of Rushmore, attempted to lay the foundation to admit loan records of MortgagelT under the business records exception. 137 So.3d at 570. The witness testified as to industry standards, but could not demonstrate personal knowledge, including whether or not the documents actually belonged to MortgagelT. Id. at 572. We held not simply that the witness was not an employee of MortgagelT, but that he “otherwise lacked particular knowledge” of their procedures. Id. at 573.

Other district courts of appeal have consistently held that a witness can lay the foundation for business records of another company. See Bank of New York v. Calloway, 157 So.3d 1064, 1072 (Fla. 4th DCA 2015), review denied, 177 So.3d 1263 (Fla. 2015) (finding that loan servicers can admit business records of a different business by showing a business or contractual relationship, integration and reliance, or verification); Nationstar Mortg., LLC v. Berdecia, 169 So.3d 209, 216 (Fla. 5th DCA 2015], review denied, SC15-1560, 2016 WL 374148 (Fla. Jan. 27, 2016) (same); Stern v. Gad, 575 So.2d 258, 260 (Fla. 3d DCA 1991) (holding that the foundation for admission as business records was shown when the witness acted as an agent for the business). As witnesses may lay a proper foundation for records of other companies, there is no reason that a Bayview employee could not lay the foundation for Bay-view’s own records, simply because they are accessed through a shared platform and have another company’s name on them.

Additionally, the witness did not need to produce the servicing agreement between Bayview and M & T Bank as he had personal knowledge of this business relationship. See U.S. Bank Nat’l Ass’n v. Clarke, 192 So.3d 620, 621 n.1 (Fla. 4th DCA 2016) (finding that the bank’s witness could “testify as to matters within the witness’s personal knowledge,” regardless of the terms of a power of attorney); Bank of New York, 157 So.3d at 1072 (holding that testimony alone was sufficient to verify the accuracy of records of another company integrated by the witness’s company).

Section 90.803(6)(a), Florida Statutes, allows for any “qualified witness” to demonstrate the personal knowledge necessary to establish the requirements of the business records exception. Additional requirements are not to be, added by the courts. While section 90.803(6)(a) allows courts to exclude records if the circumstances indicate untrustworthiness, there is no. .indication that the trial court found the testimony or ^documents at issue untrustworthy. See Cayea v. CitiMortgage, Inc., 138 So.3d 1214, 1218 (Fla. 4th DCA 2014). Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED.

ROWE, OSTERHAUS, and WINOKUR, JJ., CONCUR.


author: B.L. THOMAS, C.J.,

text:
    R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA Inc., Appellants. v. Andy R. ALLEN Sr., as Personal Representative for the Estate of Patricia L. Allen, Appellee.
    CASE NO. 1D15-4197
    District Court of Appeal of Florida, First District.
    Opinion filed October 18, 2017
    Robert B. Parrish, David C. Reeves, and Jeffrey A. Yarbrough of Moseley, Prich-ard, Parrish, Knight & Jones, Jacksonville, for Appellant R.J. Reynolds Tobacco Company.
    Geoffrey J. Michael of Arnold & Porter LLP, Washington D.C., for Appellant Philip Morris USA Inc.
    Celene H. Humphries, Steven L. Bran-nock, Philip J. Padovano, Maegen P. Luka, and Thomas J. Seider of Brannock & Humphries, Tampa; Gregory- D. Prysock and Katy M. Massa of Morgan & Morgan, P.A., Jacksonville, for Appellee.
   ORDER DISSOLVING REHEARING EN BANC.

The Court by previous order issued June 15, 2017, by majority vote of judges, granted Appellants’ Motion for Rehearing En Banc. Following that order, upon motion by a judge, a majority of judges voted to dissolve.the en banc proceeding. Accordingly the en banc proceeding is dissolved, and the case is assigned to the panel for further action.

WOLF, LEWIS, ROBERTS, MAKAR, BILBREY, and WINOKUR, JJ., concur.

OSTERHAUS, WINSOR, and M.K. THOMAS, JJ., dissent.

B.L. THOMAS, C.J., dissents with opinion.

WETHERELL, ROWE, RAY, KELSEY, and JAY, JJ,, recused.

B.L. THOMAS, C.J.,

dissenting from the dissolution of rehearing en banc.

I dissent from the Court’s decision dissolving its en banc rehearing in this case, after the Court initially granted Appellants’ Motion for Rehearing En Banc on June 15, 2017. Nothing short of 'a grave injustice has been done in this case: a prospective juror, who later served as the jury foreperson, withheld information during voir dire that he had previously likened a party to a slaveholder or a leech, and after voting to return a multi-million dollar verdict against that party, the juror exulted in the verdict, calling the party “Satan.” And here, the trial court had not one but two alternate jurors who could have replaced the biased juror.

Trial lawyers practice in extremely difficult circumstances and cannot read minds to discover hidden biases of prospective jurors, who give false answers in voir dire. There was no failure on the part of Appellants to discover this undisclosed bias and animosity.

We held in Philip Morris USA, Inc. v. Brown, 96 So.3d 468 (Fla. 1st DCA 2012), that a trial judge who compared the company’s corporate executive officer to a war criminal mandated removal of the trial judge from the case. But here, we are affirming an unjust verdict tainted by a biased juror. Thus, I dissent from the decision to dissolve our previous conclusion that-the court should rehear this ease-en banc.


author: WALLIS, J.

text:
    K.C., Mother of J.C., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D17-2266
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 18, 2017
    Ryan Thomas Truskoski, Lori D. Loftis, and Jeffrey Deen, of Office of Criminal and Civil Regional Counsel, Casselberry, for Appellant. '
    Wendie Michelle Cooper, Appellate Counsel, Guardian ad. Litem Program, Sanford.
    Kelley Schaeffer, Appellate Counsel, Children’s Legal. Services, Bradenton, for Appellee.
   WALLIS, J.

Appellant (“Mother”)’appeals the trial court’s order awarding permanent custody of her child to the non-offending parent (“Father”), denying reunification with her, and relinquishing jurisdiction by erroneously applying section 39.521(3)(b), Florida Statutes (2015), resulting in an order permanently placing the child with Father. The Department of Children and Families concedes error.

We have repeatedly held that a court commits reversible error when it “permanently award[s] custody to a non-offending parent when the offending parent has a case plan goal of reunification and has either substantially complied with the plan, or where the time for compliance has not yet expired—at least without a finding that reunification would be detrimental to the children.” M.M. v. Dep’t of Child. & Fams., 29 So.3d 1200, 1201 (Fla. 5th DCA 2010) (citing K.E. v. Dep’t of Child. & Fams., 958 So.2d 968, 972 (Fla. 5th DCA 2007); R.H. v. Dep’t of Child. & Fams., 948 So.2d 898, 900 (Fla. 5th DCA 2007); D.G. v. Dep’t of Child. & Fams., 903 So.2d 1042, 1042 (Fla. 5th DCA 2005); D.S. v. Dep’t of Child. & Fams., 900 So.2d 628, 631-32 (Fla. 5th DCA 2005)); see also B.W. v. Dep’t of Child. & Fams., 114 So.3d 243, 249 (Fla. 5th DCA 2013).

Here, the trial court ordered Mother to comply with a case plan instituted in 2016 with the goal of reunification. Throughout the pendency of the case plan, the trial court held review hearings and found that Mother was working diligently toward the completion of the plan. Despite Mother’s progress, the trial court subsequently gave Father permanent custody and closed the case, without making a finding that reunification with Mother would either endanger the child or not be in the child’s best interest pursuant to section 39.522(3), Florida Statutes. Accordingly, we reverse and remand for an evidentiary hearing. See M.M., 29 So.3d at 1201.

REVERSED and REMANDED with Instructions.

EDWARDS and EISNAUGLE, JJ., concur.


text:
    LLANO FINANCING GROUP, LLC, Appellant, v. Kelly H. KELLOG, Nickole Allison Tunnock and Appraisal Experts, Appellees.
    Case No. 5D16-4392
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017
    Robert J. Hauser, of Pankauski Hauser PLLC, West Palm Beach, for Appellant.
    Alex Tirado-Luciano, Joan Carlos Wizel, and Sandra Ferrin, of Lydecker/Diaz, Miami, for Appellees.
   PER CURIAM.

We affirm the trial court’s order dismissing Appellant’s complaint with prejudice because Appellant’s claims are time-barred by the statute of limitations. We agree with the reasoning of Llano Financing Group, LLC v. Petit, 42 Fla. L. Weekly D2071 (Fla. 1st DCA Sept. 27, 2017).

AFFIRMED.

TORPY, EDWARDS, and EISNAUGLE, JJ„ concur.


text:
    MID-CONTINENT CASUALTY COMPANY, Appellant, v. R.W. JONES CONSTRUCTION, INC. and Carr Law Firm, P.A., Appellees.
    Case No. 5D16-2836
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017

      Derek J, Angelí, of O’Connor & O’Con-nor, LLC, Winter Park,' for Appellant.
    Peter F. Carr, Jr., of Carr Law Firm, P.A., and Stephen A. Marino, Jr., of Ver Ploeg & Lumpkin, P.A., Orlando, for Ap-pellee, Carr Law Firm, P.A.
    No Appearance for Appellee, R.W. Jones Construction, Inc.
   WALLIS, J.

Mid-Continent Casualty Company (“MCC”) appeals the trial court’s order granting a motion to enforce a mediated settlement agreement filed by R.W. Jones Construction, Inc. (“R.W. Jones”), and Carr Law Firm, P.A. (“Carr Law”) (collectively, “Appellees”). Because the trial court incorrectly found MCC judicially es-topped from challenging-the amount of Carr Law’s fees and that Carr Law timely filed its charging lien, we reverse.

FACTS

The underlying litigation began in 2008 with Carr Law representing R.W. Jones in a breach of contract case against Glenn and Jo Ann Mueller. R.W. Jones’s general commercial liability insurer, MCC, retained Meier, Bonner, Muszynski, O’Dell <& Harvey, P.A. (“Meier Bonner”), to defend against the Muellers’ counterclaims. A jury returned a verdict for R.W. Jones, and the trial court entered a final judgment of $234,490.26, expressly reserving jurisdiction to determine Appellees’ entitlement to recover costs, expenses, and attorneys’ fees. Carr Law moved for $415,666 in attorneys’ fees and just over $8000 in costs. Meier Bonner also moved for attorneys’ fees on MCC’s behalf but did not request a specific amount.

In March 2014,’ Mrs. Mueller filed a notice of Chapter 7 bankruptcy. In July 2014, MCC, Carr Law, and R.W. Jones filed a combined proof of claim for $1,353,422, comprised of: $290,558 as judgment awarded to R.W. Jones; $217,608 for Meier Bonner’s fees; $831,312 for Carr Law’s fees (including a 2,0 multiplier); and $13,944 for Carr Law’s costs. MCC’s counsel qualified its agreement to filing the combined proof of claim, reserving the right to challenge the amount .of Carr Law’s fees and costs, as referenced in the following email to R.W. Jones’s counsel:

Finally, I am okay with you filing the proof of claim in the form and amounts you presented. However, my consent to your filing the POC shall not be construed as acquiescence to, or waiver of any rights that (MCC] may have to dispute, the amount or award of legal fees to [Carr Law], the lodestar multiplier and/or the priority/marshalling/division of the distribution of funds by the bankruptcy estate. Moreover, [MCC] agrees with [R.W. Jones] in that the division of funds should be revisited when we have a better idea of what will be distributed.

MCC, R.W. Jones, and Carr Law agreecl to create a Florida Land Trust Agreement (the “Trust”), into which the bankruptcy trustee conveyed title to the home, and which named each party as an equal one-third beneficiary.’ Regarding distribution of the Trust assets, the agreement provided:

Trustee and Beneficiary agree that all monies received by the sale of the Property shall remain in the Trust Account of [Meier Bonner] until either all parties hereto agree in writing to a disbursement of said monies or a court orders the same. The respective beneficial interests in this Trust shall have no bearing on what amount each Beneficiary is entitled to recover from the sale of the Property.

The parties then participated in bankruptcy mediation, culminating in a mediated settlement agreement (the “Bankruptcy MSA”). The Bankruptcy MSA provided that the combined proof of claim “in the amount of $1,353,442 is deemed an irrevocably allowed claim that will-not be objected to by any of the Parties.” Mrs. Mueller agreed to dismiss her appeal of the final judgment entered in favor of R.W. Jones. The Bankruptcy MSA further stated that MCC joined the “agreement for the purpose of the foregoing release. Such release does not affect the rights and obligations between [R.W.] Jones and [MCC].”

In December 2015, the parties returned to mediation in state court to determine the distribution of the approximately $800,000 in the trust, received from the sale of the home. Appellees ultimately executed a settlement agreement (“State Court MSA”), whereby R.W. Jones received $265,000, Carr Law received $510,000,' and MCC “receive[d} the balance of the escrowed monies.” MCC did not sign the State Court MSA or otherwise agree to its terms. Appellees moved to approve the State Court MSA and to distribute the escrowed funds accordingly. MCC moved to' intervene to challenge the reasonableness of Carr Law’s fees and determine the priority of payments among the parties. After a hearing, the trial court reserved ruling on the issue, affording the parties twenty days to file additional briefs. On the twentieth day, Carr Law filed a notice of charging lien.

In June 2016, the trial court entered an order granting Appellees’ motion to approve the State Court MSA. The court explained that the filing of the charging lien perfected Carr Law’s “first right of,recovery, ... superior in right to any judgment liens against the recovery.” The court further found MCC judicially es-topped from challenging Carr Law’s fees because it never objected to the Bankruptcy MSA. The trial court ordered distributions of: $265,000 to R.W. Jones; $510,000 to Carr Law; and any remainder to MCC. In its unsuccessful motion for rehearing, MCC challenged the timeliness of the filing of the charging lien, as well as the court’s finding that it did not object to the amount of Carr Law’s fees. MCC now appeals the trial court’s approval of the State Court MSA. We review de novo a trial court’s interpretation of a mediated settlement agreement. Silver v. Silver, 992 So.2d 886, 888 (Fla. 2d DCA 2008) (citing Kirsch v. Kirsch, 933 So.2d 623, 626 (Fla. 4th DCA 2006)).

TIMELINESS OF CHARGING LIEN

“The charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit. It serves to protect the rights of the attorney.” Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla. 1983). “[I]n order to perfect a charging lien an attorney must give his or her client timely notice.” Rose v. Marcus, 622 So.2d 63, 65 (Fla. 3d DCA 1993) (citing Baucom, 428 So.2d at 1385). More broadly, “[pjroce-dural due process requires both fair notice and a real opportunity to be heard.” Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla. 2001). Courts do not evaluate the specific parameters of procedural due process “by fixed rules of law, but rather by the requirements of the particular proceeding.” Id. (citing Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997)). “[D]ue process is flexible and calls for' such procedural protections as the particular situation demands.” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Further, a party must have an opportunity to be heard “at a meaningful time and in a meaningful manner.” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).

After the March 10, 2016 hearing on Appellees’ motion to enforce the State Court MSA, the trial court permitted the parties an additional twenty days to brief the issue of priority. On the last briefing day, March 30, Carr Law filed its notice of charging lien at approximately 5:00 p.m. Three hours later, MCC submitted its brief, which did not address Carr Law’s charging lien. Carr Law followed with its supplemental brief at 10:00 p.m. that same night, relying on the charging lien as its primary argument for receiving first priority. MCC first challenged the enforcement of the charging lien in its July 11 motion for rehearing. Carr Law’s 5:00 p.m. filing of its notice of charging lien provided, at most, seven hours for MCC to respond before the end of the extended briefing window. This conduct tested the bounds of timely notice and thus deprived MCC of a meaningful opportunity to be heard on the issue. See id. By then relying on the charging lien in its ruling, the trial court denied MCC procedural due process. On remand, we instruct the trial court to provide MCC with adequate notice and opportunity to be heard at a hearing on Carr Law’s charging lien, after which the trial court may consider the effect of the lien on the parties’ priority. See Rose, 622 So.2d at 65.

JUDICIAL ESTOPPEL

“Judicial estoppel is an equitable doctrine that is used to prevent litigants from taking totally inconsistent positions in separate judicial, including quasi-judicial, proceedings.” Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla. 2001) (quoting Smith v. Avatar Props., Inc., 714 So.2d 1103, 1107 (Fla. 5th DCA 1998)). “A situation justifying the application of judicial estoppel ’is more than affront to judicial dignity. For intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.’” Grau v. Provident Life & Acc. Ins. Co., 899 So.2d 396, 400 (Fla. 4th DCA 2005) (quoting Scarano v. Cent. R.R. Co. of N.J., 203 F.2d 510, 513 (3d Cir. 1953)).

Here, the record does not support the trial court’s conclusion that MCC “agreed not to object to the detailed claim amounts for their respective fees and costs” pursuant to the Bankruptcy MSA. MCC’s email exchange with Carr Law demonstrated that, before agreeing to file a combined proof of claim, it did not waive “any rights that [MCC] may have to dispute the amount or award of legal fees to [Carr Law].” The parties’ Trust agreement similarly provided that the trustee would not distribute any proceeds “until either all parties hereto agree in writing to a disbursement of said monies or a court orders the same. The respective beneficial interests in this Trust shall have no bearing on what amount each Beneficiary is entitled to recover from the sale of the Property.” Moreover, the Bankruptcy MSA provided that MCC joined the agreement “for the purpose of the foregoing release” but that such release did not “affect the rights and obligations between RW Jones and [MCC].” MCC proceeded to challenge the amount of Carr Law’s fees both in its motion to intervene in the circuit court action and at the hearing on Appellees’ motion to enforce the State Court MSA.

The Bankruptcy MSA did not conclusively determine distribution of the assets; it simply provided that no party would object to the other parties’ rights to assert their individual claims. Cf. GMGRSST, Ltd. v. Menotte (In re Air Safety Int’l, L.C.), 336 B.R. 843, 849 (S.D. Fla. 2005) (concerning a settlement agreement providing for distribution of specific percentages to creditors in two separate phases). Under the circumstances of this case, we agree with MCC that agreeing not to challenge another creditor’s right to assert a claim does not necessarily constitute a waiver of any challenge to the amount of that creditor’s claim. Pursuant to the Trust, the parties had to either agree on the distribution scheme or wait for a court to make the determination for them. Indeed, R.W. Jones and Carr Law did not agree on the amount of their individual distributions until they executed the State Court MSA, which MCC did not join. In other words, the Bankruptcy MSA “reinforced the existing contractual relationships” created by the Trust, but it did not determine each party’s distribution. Thus, MCC did not assert “totally inconsistent positions” in the bankruptcy case and the circuit court case. See Blumberg, 790 So.2d at 1066.

In light of the foregoing, MCC has shown that the trial court erred by finding it judicially estopped from challenging Carr Law’s fees. Contrary to the trial court’s findings, MCC objected to the amount of Carr Law’s fees throughout the proceedings. We reverse and remand for a fee hearing to determine the reasonable amount of Meier Bonner’s and Carr Law’s fees.

REVERSED and REMANDED with Instructions.

ORFINGER and EDWARDS, JJ., concur.

      . R.W. Jones did not participate on appeal.

      . Glenn Mueller died in January 2009.


text:
    ALLSTAR CLEANING SERVICE, INC., Appellant, v. Anna GRINWIS and John Grinwis, Appellees.
    Case No. 5D16-2617
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017
    Dennis R. O’Connor, of O’Conner & O’Conner, LLC, Winter Park, and Warren Kwavnick, of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for Appellant.
    Gregory J. Donoghue, N. John Hedrick, Jr., and Robert D. Hoag, of Law Offices of Donoghue & Associates, Melbourne, for Appellees.
   PER CURIAM.

This appeal is from an order granting the plaintiffs’ motion for new trial after the jury returned its verdict in favor of Allstar Cleaning Services, Inc. in a failure to warn, slip and fall case. The trial court erroneously concluded that the verdict was against the greater weight of the evidence. In this case, there was conflicting testimony regarding liability and injury causation from a number of witnesses. “A jury verdict is contrary to the manifest weight of the evidence only when the evidence is clear, obvious, and indisputable.” Jones v. Stevenson, 598 So.2d 219, 220 (Fla. 5th DCA 1992) (internal quotation and citation omitted).. “A jury’s verdict is generally not against .the manifest weight of the evidence if the record shows conflicting testimony from two or more witnesses.” Lindon v. Dalton Hotel Corp., 113 So.3d 985, 987 (Fla. 5th DCA 2013). “[W]here there is conflicting evidence, the weight to be given that evidence is within the province of the jury.” Harlan Bakeries, Inc. v. Snow, 884 So.2d 336, 340 (Fla. 2d DCA 2004). Nor can the order granting a new trial be sustained based upon the jurors’ questions as suggested by the trial court; there was nothing in the record to indicate that the jury’s verdict was the result of anything other than its consideration of the disputed evidence and the trial court’s instructions on the law.

Accordingly, we ■ reverse and remand with instructions for the trial court to enter final judgment in favor of the Appellant.

REVERSED AND REMANDED WITH INSTRUCTIONS.

TORPY, EDWARDS, and EISNAUGLE, JJ., concur.


text:
    Jerry VOSBURG and Esther Vosberg v. SEARS ROEBUCK AND COMPANY, et al.
    NO. 2017-OC-1510
    Supreme Court of Louisiana.
    10/05/2017
   Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. A, No. 2008-568;

h Granted. Ad hoc judge appointed. See order.

GENOVESE,J., would deny the writ as premature

laGENOVESE, Justice, would deny the writ as premature.

Attachment

JjjSUPREME 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 October 4,2017 in matter Nos. 17-OC-1510 and 17-OC-1511, resulting in the need to assign a judge ad hoc for the purpose of hearing a Motion to Recuse the Judges of the Fourth Judicial District Court in the below mentioned matters on the docket, of said court, and further considering the willingness of Retired Judge Frank Foil to accept said assignment

IT IS ORDERED THAT:

Retired Judge Frank Foil be and he is hereby assigned as judge ad hoc of the Fourth Judicial District Court, Parishes of Morehouse and Ouachita, for the purpose of hearing a Motion to Recuse the Judges of the Fourth Judicial District Court in the matters entitled “Jerry Vosburg and Esther Vosburg vs. Sears Roebuck and Company, et al” No. 2008-568 and “Jerry Vos-burg and Esther Vosburg vs. Eddie S. Lampei’t, et al” No. 2016-332 on the docket of said court, subject to the completion of any unfinished business.

This Order shall not deprive the judges of the Fourth Judicial District Court, Parishes of Morehouse and Ouachita, of their offices as judges of the Fourth Judicial District Court, Parishes of Morehouse and Ouachita, or of any other courts to which they may have been assigned by previous order of this Court, nor shall it deprive Retired Judge Frank Foil of his office as judge of any other court to which he 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 5th day of October, A.D., 2017, New Orleans. Louisiana.

FOR THE COURT:

/a/ Jefferson D. Hughes III, Justice


author: PER CURIAM:

text:
    STATE EX REL. Herbert A. PIERRE, Jr. v. STATE of Louisiana
    No. 2016-KH-1310
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PÁRISH OF JEFFERSON

PER CURIAM:

| denied. 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. 9/5/95), 660 So.2d 1189. We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated six 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.

Guidry, J., recused


text:
    STATE EX REL. Michael BALL v. STATE of Louisiana
    No. 2016-KH-1288
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| TDenied. 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. 9/5/95), 660 So.2d 1189. We attach hereto and make a part hereof the court of appeal’s written reasons denying writs.

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. 980.4 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. James JONES v. STATE of Louisiana
    No. 2016-KH-1287
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See 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. In addition, relator’s sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030.

Relator has now fully litigated at least two 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 barsL 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. Isaac J. LANDRY, Jr. v. STATE of Louisiana
    No. 2016-KH-1281
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE THIRTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON DAVIS

PER CURIAM:

| denied. 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. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated three 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.


text:
    STATE EX REL. David BOUDREAUX v. STATE of Louisiana
    No. 2016-KH-1235
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| ¶ Denied. 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. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4. We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated at least three 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 preview. The district court is ordered to record a minute entry consistent with this per curiam.

Guidry, J. recused


text:
    STATE EX REL. Samuel KELLY v. STATE of Louisiana
    No. 2016-KH-1233
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

h Relator shows no error in the district court’s ruling denying relief.

Relator has how fully litigated’ at least three 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.


text:
    STATE EX REL. Mattavious WORTHAM v. STATE of Louisiana
    No. 2016-KH-1222
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF WEBSTER

PER CURIAM:

11 Denied. 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, 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. Kevin Dee GILDHOUSE v. STATE of Louisiana
    No. 2016-KH-1221
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE

PER CURIAM:

h Denied. Relator fails to show he was denied access to the courts by an arbitrary and unjustified enforcement of the uniform rules governing the filing of applications in the court of appeal, and thus shows no error in the Third Circuit’s denial of writs on technical grounds. La.C.Cr.P. art. 912.1(C).

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. Willie TRIPLETT v. STATE of Louisiana
    No. 2016-KH-1197
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE

PER CURIAM:

^Denied. Relator fails -to show entitlement to DNA testing. La.C.Cr.P. art. 926.1. We attach hereto and make a part hereof the court of appeal’s written reasons denying relief. " ■

Relator has now fully litigated two 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 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 claim has 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. Louis Joseph GEORGE v. STATE of Louisiana
    No. 2016-KH-1167
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO, THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE

PER CURIAM:

It Denied. The district court’s minute entry provided sufficient notice of the court’s denial of relator’s application for post-conviction relief. Cf. State ex rel. Foy v. Criminal Dist. Court, 96-0519, pp, 1-2 (La. 3/15/96), 669 So.2d 393, 393. Furthermore, 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 bright to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Shawn MURPHY v. STATE of Louisiana
    No. 2016-KH-1092
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

11 Denied. Relator. does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See 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. Clover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030.

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 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. Terry L. COOLEY v. STATE of Louisiana
    No. 2016-KH-1089
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE THIRTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BEAUREGARD

PER CURIAM:

| denied. Relator has previously exhausted.his right to state collateral review, see State ex rel. Cooley v. State, 15-2339 (La. 2/26/16), 184 So.3d 1281, and he fails to carry his burden of.-showing that one of the narrow exceptions authorizing the filing of a successive application applies. See La.C.Cr.P. arts. 930.4 & 930.8.

GENOVESE, J„ recused.


text:
    STATE EX REL. Marlin S. RAY v. STATE of Louisiana
    No. 2016-KH-1053
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

PER CURIAM:

| denied.' Relator has previously exhausted his right to state collateral review. State ex rel. Ray v. State, 15-2023 (La. 2/17/17), 211 So.3d 1159.


text:
    STATE EX REL. Elmer RAMOS v. STATE of Louisiana
    No. 2016-KH-1030
    Supreme Court of Louisiana.
    10/09/2017
   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). We attach hereto and make a part hereof the district court’s written reasons denying relief.

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. Michael VIDEAU v. STATE of Louisiana
    No. 2016-KH-1017
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| denied. Relator shows no error in the lower court rulings.

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. Jauve’ COLLINS v. STATE of Louisiana
    No. 2016-KH-0811
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE

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). As to the remaining claims, relator fails to show any district court error. Cf. La.C.Cr.P. art. 841; La. C.Cr.P. art. 930.4.

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 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. Samuel L. WILLIAMS v. STATE of Louisiana
    No. 2016-KH-0806
    Supreme Court of Louisiana.
    10/09/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OP ORLEANS

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). We attach hereto and make. a part hereof the district court’s written reasons denying relief.


text:
    STATE EX REL. Martin Luther TEXADA v. STATE of Louisiana
    No. 2016-KH-0802
    Supreme Court of Louisiana.
    10/9/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY

PER CURIAM:

| denied. 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. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has’ now fully litigated at least three 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.

Genovese, J., recused.


author: PER CURIAM CRICHTON, J.,

text:
    STATE of Louisiana v. Jamieon CHATMAN
    No. 2017-KK-1698
    Supreme Court of Louisiana.
    10/17/2017
   ON SUPERVISORY WRIT TO THE COURT OF APPEAL FIRST CIRCUIT, PARISH OF ST. TAMMANY

PER CURIAM

11 Writ granted. While this court found in State v. Taylor, 16-1124 (La. 12/1/16), 217 So.3d 283, that testimony is not always required at a hearing held to determine the admissibility of other crimes, wrongs, or acts pursuant to La.C.E. art. 404(B) and State v. Prieur, 277 So.2d 126 (La. 1973), in the present case the nature of the state’s allegations failed to establish that the evidence has substantial relevance independent from showing defendant’s general criminal character and thus proves a material fact at issue or rebuts defendant’s defense. See Taylor, 16-1124, p. 12, 217 So.3d at 292. Although the state alleges the defendant’s earlier fight with a third-party is probative of his motive for the shootings, no link between the two is apparent from the limited information provided by the state. In addition, even if the evidence is deemed relevant, it cannot be determined from the information alleged by the state whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. La.C.E. art. 403. Accordingly, we reverse the trial court’s ruling that the other bad acts evidence will be admissible at trial and we remand for further proceedings.

CRICHTON, J., ADDITIONALLY CONCURS AND ASSIGNS REASONS.

ON SUPERVISORY WRITS TO THE 22ND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

CRICHTON, J.,

additionally concurs and assigns reasons.

hi concur in the order. I write separately ’ to emphasize that, based on the extremely limited information provided by the state, I cannot determine defendant’s degree of involvement in the prior incident and how that incident relates to the charges against defendant. Some of the state’s allegations may not implicate defendant in prior bad acts committed by him at all, in which case the protections of La. C.E. art. 404(B) and Prieur may not be triggered. State v. Prieur, 277 So.2d 126 (La. 1973). In such ease, however, the evidence must still be relevant and is subject to the balancing test provided in La, C.E. art. 403. Thus, what the state, characterized as a Prieur hearing may be better construed as an ordinary motion in limine. Regardless, based on the state’s showing to date, I cannot find that the evidence is relevant and that its probative value is not substantially outweighed by the danger of unfair prejudice. I nóte, however, that nothing preóludes the state from seeking a new hearing at which it can provide sufficient evidence for the trial court to perform its crucial function as gatekeeper in this capital trial.


author: PER CURIAM

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-150933
    NO. 2017-BA-1710
    Supreme Court of Louisiana.
    10/17/2017
   BAR ADMISSIONS PROCEEDING

PER CURIAM

1,After reviewing the evidence and considering the law, we conclude petitioner is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Judges and Lawyers Assistance Program (“JLAP”) on September 18, 2015.

2. The period of this conditional admission shall coincide with the period of petitioner’s JLAP agreement. However, petitioner’s conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel (“ODC”).

4. Upon the expiration of the term of petitioner’s JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner’s progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner’s continued participation in JLAP.

5. Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

|⅞6. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-485346
    NO. 2017-BA-1703
    Supreme Court of Louisiana.
    10/17/2017
   BAR ADMISSIONS PROCEEDING

PER CURIAM

11 After reviewing the evidence and considering the law, we conclude petitioner is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Judges and Lawyers Assistance Program (“JLAP”) on July 31, 2017.

2. The period of this conditional admission shall coincide with the period of petitioner’s JLAP agreement. However, petitioner’s conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel (“ODC”).

4. Upon the expiration of the term of petitioner’s JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner’s progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner’s continued participation in JLAP.

5. Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

6. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

| ¡.Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

CLARK, J., would deny.