author: WALLACE, Judge.

text:
    IN the INTEREST OF D.P., III, a child. M.M., Appellant, v. K.P., Appellee.
    Case No. 2D16-4982
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017
    Ita M. Neymotin, Regional Counsel, Fort Myers, and Joseph Thye Sexton, Assistant Regional Counsel, Bartow, for Appellant.
    Jeanne T. Tate and Erica T. Healey of Jeanne T. Tate, P;A., Tampa, for Appellee.
   WALLACE, Judge.

M.M., the Birth Mother, appeals from a judgment terminating her parental rights to her one child in conjunction with a proceeding for a stepparent adoption under chapter 63, Florida Statutes (2016). Because the trial court erred by failing to rule on the Birth Mother’s timely filed motion for appointment of counsel, we reverse the judgment and remand for a new proceeding.

I. THE FACTS AND PROCEDURAL BACKGROUND

Because we reverse' on a narrow procedural ground, a detailed recitation of the underlying facts is unnecessary. It suffices to say that, following the dissolution of the marriage of the Birth Mother and the child’s father iñ 20Í8, the Birth Mother absconded with the child, was eventually apprehended, and is" now serving a sentence of five years’ imprisonment for illegally removing the child from the state. Following the dissolution of marriage, the father married K.P., the appellee Stepmother.

The Stepmother petitioned for termination of the Birth Mother’s parental rights and for adoption of the child in August 2016, alleging various grounds, including abandonment of the child resulting from the Birth Mother’s incarceration. The clerk of the circuit court issued a summons to the Birth Mother, attaching the petition; the summons was personally served on the Birth Mother at her prison. The summons recited that the Birth Mother would have twenty days to respond to the petition, failing which a default would be entered against her. The summons additionally notified her of her right to counsel:

If you cannot afford an attorney to represent you in this- matter, you may be entitled to a court-appointed attorney. Only persons determined to be indigent are entitled to an attorney who is court-appointed, If you desire counsel and believe you may be entitled to representation by a court-appointed attorney, you must contact the Office of the -Clerk of Court and request that an “Affidavit of Indigent Status” be mailed to you. That affidavit must be completed and re.turned to the Office of the Clerk of Court for review and a determination of whether you are indigent. You should act immediately.in submitting.a request for counsel and copy your request on Petitioner so that any request can be promptly addressed.

The summons announced that the hearing on the petition was set for October 6,2016, and informed the Birth Mother that, if incarcerated, she should make arrangements with her classification officer to . attend the hearing. The summons recited the hearing judge’s name and phone number and concluded with this warning written in all-caps:

Under sections 63.087 and 63.089, Florida Statutes, failure to timely file a written response to this notice and the petition with the court and to personally appear at this hearing scheduled on the petition constitutes grounds upon which the court shall end any parental rights you may have or assert regarding the minor child.

The return of service reflects service of the petition -on the Birth Mother at her prison on August 26, 2016. Therefore, the deadline for serving-a response to the petition would have been September 15, 2016. See Fla. R. Civ. P. 1.140(a) (requiring that “a defendant must serve an answer within 20 days after service of original process and the initial pleading”); Fla. Fam. L.R.P. 12.140 (same deadline). The Stepmother filed a motion for default on September 16, the twenty-first day after service of the summons, and the clerk entered a default that day.

The Birth Mother mailed a motion for extension of time to respond that was filed in the circuit court on September 22, 2016. The Birth Mother did not state a date in her certificate of service of this motion, nor was a prison date stamp affixed to the face of the motion. As a result, we cannot determine with certainty whether this motion was served within the twenty-day deadline set by the rules. In her motion, the Birth Mother acknowledged that she had been served with the summons on August 26; the Birth Mother also asserted that she had sent a request for an indigency application on' that date, which she had not received.

Also filed in the trial court on September 22 was the Birth Mother’s motion for appointment of counsel. This motion has a certificate of service dated September 14, 2016, one day before the twenty-day deadline for service of a response.to the petition. The record on appeal does not contain .any orders disposing of the Birth Mother’s motion for extension of time or motion for appointment of counsel, and the docket sheet attached to the record does not reflect any orders ruling on these motions. The judgment on appeal does not address the motions either.

On September 28, 2016, the Birth Mother served from prison her response to the petition, which was filed with the clerk on September 30. In her response, the Birth Mother acknowledges the court’s jurisdiction and the underlying historical facts but denies the Stepmother’s allegations made against her.

The Birth Mother’s response is followed chronologically in the record by the final judgment of termination of parental rights, as well as a final judgment of stepparent adoption, both rendered on October 6, 2016. The termination judgment begins by reciting that the case “came to be heard on October 6, 2016,” and that the Birth Mother “failed to appear (telephonically) at the hearing, despite being given an opportunity to do so.” The court found further that the Birth Mother had not filed an indigency application, that she had failed to respond timely to the petition, that a clerk’s default had been entered against her, that she was entitled to no further notice of the proceedings, and' that she “has been deemed to have admitted the well-pled allegations of the [pjetition.” The court terminated the Birth Mother’s parental rights, finding that doing so was in the child’s best interests and was the least-restrictive means of protecting the child.. The final judgment of stepparent adoption entered on the same day declares the child to be the legal child of the Stepmother, with the father retaining his parental rights.

II. DISCUSSION

The petition in the trial court was brought under chapter 63, which governs adoptions. Unlike chapter 39, Florida Statutes (2016), governing juvenile dependency, which has an explicit requirement that counsel be provided for indigent parents, the sections of chapter 63 governing the termination of parental rights, see, e.g., §§ 63.063, .087- 089, include no such provision. Nevertheless, under both the federal and Florida constitutions, the Birth Mother had a right to representation by counsel at the termination hearing and, if found indigent, the right to court-appointed counsel. See In re D.B., 385 So.2d 83, 90-91 (Fla. 1980) (holding in a dependency case “that counsel is necessarily required under the due process clause of the United States and Florida Constitutions, in proceedings involving the permanent termination of parental rights to a child” and that “where permanent termination or child abuse charges might result, counsel must be appointed for ... the natural married or divorced indigent parents of the child”); G.C. v. W.J., 917 So.2d 998, 999 (Fla. 1st DCA 2005) (holding that “Although it is true that chapter 63, unlike chapter 39, does not expressly provide for appointed counsel, such an entitlement is inherent where fundamental parental rights are subject to termination;” and re-versing for the trial court to verify the appellant’s, affidavit of indigency and “appoint him counsel if he qualifies”); cf. O.A.H. v. R.L.A., 712 So.2d 4, 4 (Fla. 2d DCA 1998) (holding that, under a former provision in chapter 63, “an indigent legal parent is entitled to appointed counsel in an adoption proceeding that involves the involuntary termination of his or. her parental rights”); see also § 27.511(6)(a), Fla. Stat. (2016) (“The office of criminal conflict and civil regional counsel has primary responsibility for representing persons entitled to court-appointed counsel under the Federal or State Constitution or as authorized by general law in civil proceedings, including, bijt not limited to ... proceedings to terminate parental rights under chapter 63.”); § 27.40(2)(a) (“Private counsel shall be appointed to represent persons in those cases in which provision is made for court-appointed counsel but the office of criminal conflict and civil regional counsel is unable to provide representation due to a conflict of interest.”),

The Birth Mother argues that the trial court erred by not addressing her motion for appointment of counsel, which, she contends, would likely have been granted. The Stepmother counters that the Birth' Mother was not entitled to appointed counsel because she had not established indigency by the date of the final hearing. As the parties’ arguments reflect, the issue here is not the Birth Mother’s right to counsel. Rather, the issue is whether the Birth Mother properly invoked that right and whether the trial court was required to address her motion for appointment of counsel before proceeding with the termination hearing.

We conclude that the trial court erred in failing to address the Birth Mother’s motion for appointment of counsel. Two reasons support this conclusion. First, although' the Birth Mother failed to comply with the summons’ instruction to request from and file with the clerk of the circuit court an “Affidavit of Indigent Status,” and to “act immediately,” the Birth Mother timely filed a motion for appointment of counsel'. The Birth Mother not only served the motion within the twenty-day time limit required by the rules for serving a response to the petition, but she also physically filed the motion two weeks before the scheduled termination hearing. See Fla. R. Civ. P. 1.140(a); Fla. Fam. L.R.P. 12.140; cf. G.C., 917 So.2d at 999 n.1 (“Appellant’s first [of two] requests for appointment of counsel] was made two days before the hearing on the petition to terminate his parental rights,”).

Second, we recognize that “it is generally necessary [in a civil proceeding] to bring a pending matter to the trial court’s attention by-having it noticed for hearing,” Al-Hakim v. State, 783 So.2d 293, 294 (Fla. 5th DCA 2001) (emphasis added). However, in an adoption proceeding such as the one under review that involves the involuntary termination of parental rights under chapter 63, the trial court errs when it fails to comply “with the dictates of O.A.H. by making an inquiry as to whether the [parent] would qualify for court-appointed counsel and, if so, offering him [or her] representation.” M.G.C. v. M.C., 899 So.2d 486, 487 (Fla. 2d DCA 2005). Accordingly, it was unnecessary for the Birth-Mother to take any extra steps to have her motion addressed by the court. Indeed, the language of the summons would lead a recipient to believe that a request for counsel would be addressed upon the mere filing of the request. Furthermore, a quick perusal of the docket by the trial court before the termination hearing would have disclosed the pending motion for counsel as well as the Birth Mother’s motion for an extension of time to respond to the petition.

We reject the Stepmother’s argument that any error associated with the trial court’s failure to appoint counsel is harmless. The First District Court of Appeal disposed of a similar argument in the context of a dependency casé as follows:

The Department has argued that the father failed to preserve arguments concerning; the right to counsel as he did not request counsel during the’ shelter hearing. However, the statutory scheme and rule cited above indicate- it is the responsibility of the trial court to ensure the parent’s right to counsel is respected, not the parent. Moreover, violations of the right to counsel are considered fundamental error which can be addressed for the first time on appeal. See State v. DiGuilio, 491 So.2d 1129, 1137 (Fla. 1986) (stating “[d]enial of counsel is always harmful, regardless of the strength of admissible evidence, and can be properly categorized as per se reversible [error]”).

A.G. v. Fla. Dep’t of Children & Families, 65 So.3d 1180, 1183 n.1 (Fla. 1st DCA 2011) (alterations in original) (emphasis added). We conclude that the principle should be no different for a chapter 63 termination case. See O.A.H., 712 So.2d at 4; G.C., 917 So.2d at 999. We- also reject the Stepmother’s argument that the appointment-of-counsel issue is a moot point because the Birth Mother failed to appear telephonically at the termination hearing. The motion for appointment of counsel preceded the termination hearing procedurally and chronologically; had the motion been appropriately resolved, the failure to appear would not likely have occurred.

III. CONCLUSION

In conclusion, we reverse the final judgment of termination of parental rights and remand for a new hearing. As the trial court has already appointed counsel for the Birth Mother for purposes of this appeal based on an Application for Determination of Civil Indigent Status approved by the clerk of the circuit court, the trial court shall appoint counsel for the proceedings on remand, The .trial court shall also vacate the clerk’s default. In addition, although the point is not formally before us, our reversal- of the termination judgment will necessarily require the vacation of the final judgment of stepparent adoption. •

Reversed and remanded with instructions.

MORRIS and BADALAMENTI, JJ., Concur.

      . The record on appeal does not include a request for an indigency application, and the docket attached to the record does not list it. The Birth Mother did not attach a copy of it to the motion for extension of time.

      . We note that the mailbox rule for prisoners applies to civil as well as criminal cases. See Scullock v. Gee, 133 So.3d 1208, 1209 (Fla. 2d DCA 2014); see also Griffin v. Sistuenck, 816 So.2d 600, 601 (Fla. 2002) ("Under the mailbox rule, a notice is deemed filed when it is delivered to prison. authorities for mailing.”). In light of. the mailbox rule and the Birth Mother’s known status as a state prisoner, the better practice for the Stepmother would have been to allow at least five days after the twentieth day from the service of the summons for a response from the Birth Mother to arrive -in the clerk's office by mail.

      . The judgment of stepparent adoption is not on appeal.

        . There is no hearing transcript in the record. Because the error for which we reverse is apparent on the face of the record, this circumstance does not affect our disposition of the appeal. See Chirino v. Chirino, 710 So.2d 696, 697 (Fla. 2d DCA 1998) ("[E]ven where the appellant fails to provide a transcript, the absence of a transcript does not preclude reversal where an error of law is apparent on the face of the judgment.”).

      .The termination judgment recites sixteen Bases for .termination, reproducing verbatim the list found in the father’s "affidavit of inquiry” attached to and referenced in the Stepmother’s petition.
      The Birth Mother untimely filed a motion for rehearing challenging the - termination judgment, triggering a series of filings from both parties, none of which is relevant to our disposition of this appeal.

      . § 39.807(1)(a), Fla. Stat. (2016) ("At each stage of the proceeding under this part [part X, ‘Termination of Parental Rights’], the court shall advise the parent of the right to have counsel present. The court shall appoint counsel for indigent parents.”).

      . The Birth Mother raises a second argument, which we need not address; the second argument is mooted by the resolution of her first argument concerning the appointment of counsel.

      .The formal title of this form is "Application for Determination of Civil Indigent Status." In re Approval of Application for Determination of Indigent Status Forms for Use by Clerks and Amendment to Fla. Rule of Criminal Procedure 3,984, 969 So.2d 283, 287-88 (Fla. 2007).

      . We note that the Birth Mother asserted in hér motion that she had attempted to comply with the procedure outlined in the summons.

      . We note that the simplest resolution of the motion would have been a denial without prejudice to the Birth Mother to file an indi-gency application with the clerk within a reasonable time, after which the court would rule on the motion.


source: Caselaw Access Project

author: LaROSE, Chief Judge.

license: Public Domain

text:
    Edward ADKINS, Appellant, v. DANTRO LLP, a dissolved Florida limited liability partnership; Phoenix Equities/DHDC-Reflection Lakes, LLP, a dissolved Florida limited liability partnership; in rem Dantro Fund; in rem PHOENIX FUND; and any unknown party, heir, devisee, assignee or otherwise that may claim an ownership interest in all or part of the in rem defendants, Appellees.
    Case No. 2D16-4751
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017
    Jason P. Ramos of the Law Offices of Jason P. Ramos PLLC, Sarasota, for Appellant.
    Joseph M. Kaye and Robert A, Stok of Stok Folk ‡. Kon, Aventura, for Appellees Dantro LLJ? and Phoenix Equities/DHDC-Reflection Lakes LLP,
    No appearance for remaining Appellees.
   LaROSE, Chief Judge.

Pursuant to our review under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), we affirm the trial court’s order, in part. We dismiss all claims unrelated to the determination of the trial court’s personal jurisdiction over Edward Adkins.

Affirmed, in part, and dismissed, in part.

SILBERMAN and MORRIS, JJ., Concur.


author: PER CURIAM.

text:
    Isaac SUTTON, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3856
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017
    Isaac Sutton, Jr., pro se.
   PER CURIAM.

Isaac Sutton, Jr., appeals the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In May 2016, Sutton filed his rule 3.850 motion in circuit court case number 01-CF-1334, challenging a conviction that was later used to habitualize him when he was convicted of new offenses in 2009. The postconviction court dismissed Sutton’s rule 3.850 motion as untimely, finding that his conviction in 01-CF-1334 became final in 2008 when a mandate was issued in his direct appeal and that he had until April 24, 2010, to file a timely rule 3.850 motion.

We affirm the postconviction court’s dismissal; however, we clarify the dates that render his motion untimely. The dates relied on by the postconviction court relate to one of Sutton’s other postconviction appeals (2D07-5888), rather than the direct appeal from his judgment and sentence in 01-CF-1334. Sutton’s judgment and sentence in 01-CF-1334 was affirmed in 2003 in 2D03-160, and the mandate issued on February 2, 2004. Therefore, he had until February 2006 to file a timely rule 3.850 motion relating to his conviction in that case. See Fla. R. Crim. P. 3.850(b). Based on the allegations in his rule 3.850 motion, none of the exceptions to the two-year time limit apply.

Affirmed.

MORRIS, BLACK, and SALARIO, JJ., Concur.


text:
    Everton HINDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3586
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017.

      Everton Hinds, pro se.
   PER CURIAM.

Affirmed without prejudice to any right Hinds might have to file a timely and sufficient petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

NORTHCUTT, BLACK, and BADALAMENTI, JJ., Concur.


author: BILBREY, J.

text:
    C.W., Father of R.G. and T.W., minor children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    CASE NO. 1D17-2696
    District Court of Appeal of Florida, First District.
    Opinion filed October 27, 2017.
    Crystal McBee Frusciante, Sunrise, and Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville, for Appellee.
   BILBREY, J.

C.W., the father of R.G. and T.W., had his parental rights to those children terminated based on the trial court’s finding that C.W. “has engaged in a course of conduct toward the children ... that demonstrates that the continuing involvement of the father in the parent-child relationship threatens the life, safety, well-being, and physical, mental and emotional health of the children irrespective of the provision of services.” See § 39.806(1)(c), Fla. Stat. C.W. was not offered any services to address his mental health or substance abuse issues. See § 39.6012, Fla. Stat. At the termination of parental rights hearing, the Department did not offer evidence to establish that the provision of mental health and substance abuse services to C.W. would be futile.

In discussing termination of parental rights under section 39.806(l)(c), we have required proof either that services have been provided to the parent or that it would be futile to even attempt to provide services to address the parent’s issues. N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996 (Fla. 1st DCA 2003). Although there are ,other subsections in section 39.806(1) that do not require proof of either the provision of services or the futility of the same as grounds for termination of parental rights, they were not pleaded or proven before the trial court. The Department concedes error, and we accept the concession. Therefore, the order on appeal is reversed in part as the order pertains to the parental rights of C.W., and this matter is remanded for further proceedings as to C.W., R.G., and T.W. In all other respects, the order is affirmed. See In re L.C., 908 So.2d 568 (Fla. 2d DCA 2005).

REVERSED and REMANDED.

ROBERTS and KELSEY, JJ., CONCUR.


text:
    Rodney Craig MOUNTJOY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2676
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 27, 2017
    Rodney Craig Mountjoy, Perry, pro se.
    No Appearance for Appellee,
   PER CURIAM.

■ ' We affirm the postconviction court’s denial of Appellant’s Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. See Anderson v. State, 42 Fla. L. Weekly D1870 (Fla. 1st DCA Aug. 28, 2017). However, we note that the judgment and sentence contains a scrivener’s error. The judgment and sentence reflects that Appellant was charged and convicted of trafficking in 28 grams or more of oxy-codone, When he was actually charged and convicted of trafficking in 28 grams or more of hydrocodone. We therefore remand with directions that the court correct the judgment and sentence.

AFFIRMED; REMANDED to correct scrivener’s error.

ORFINGER, BERGER and ' LAMBERT, JJ,, concur.


text:
    George ROSARIO, Appellant, v. Glen C. WILSON and City of Groveland, Florida, Appellees.
    Case No. 5D17-287
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 27, 2017
    Rehearing Denied November 1, 2017
    Joan C. Wizel, Onier Llopiz and Troy Beecher, of Lydecker Diaz, Miami, for Appellant.'
    Derek A. Schroth and Zachary T. Broome, of Bowen, Schroth, Mazenko & Broome, P.A., Eustis, for Appellee, Glen C. Wilson. .
    Michael J. Roper, Dale A. Scott and John M. Janousek, of Bell & Roper, P.A., Orlando, for Appellee, City of Groveland, Flor da.
   PER CURIAM.

We address the propriety of a preliminary injunction..prohibiting the City of Groveland from- “recognizing the authority of George Rosario as the City of Groveland Mayor” due to his alleged status as a convicted felon. Although numerous issues challenging the order have been raised, including the failure to join Mr. Rosario as a party and the failure to' provide hitó notice of the hearing on the motion, we conclude as dispositive that injunctive relief is unavailable because of an adequate remedy at. law—application for a writ of quo warranto. See Swoope v. City of New Smyrna, 98 Fla. 1082, 125 So. 371 (Fla. 1929). Accordingly, we reverse the order under review and remand this cause for further proceedings.

REVERSED AND REMANDED.'

TORPY, WALLIS and LAMBERT, JJ., concur.

      . After the' injunction was entered, the complaint-was amended to join Mr, Rosario and to seek a writ of quo warranto,


text:
    STATE of Florida, Appellant, v. Michel NOEL, Appellee.
    Case No. 5D16-4393
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 27, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

We reverse the order dismissing the information based upon the ostensible, permanent incompetency of the defendant because the order was premature. Fla. R. Crim. P. 3.213(a)(1); State v. Carey, 212 So.3d 448 (Fla. 3d DGA 2017) (dismissal premature until lapse of five years after determination of incompetency).- We reject Appellee’s contention that dismissal was proper pursuant to Florida Rule of Criminal Procedure 3.213(a)(2). The record does not support the assertion that Appellee met the statutory definition of “intellectual disability.”

REVERSED AND REMANDED.

TORPY, WALLIS and LAMBERT, JJ.,' concur.


text:
    Kari Corinne Phyllis WEST, Appellant, v. Lawrence WEST, III, Appellee.
    Case No. 5D16-2925
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 27, 2017

      David T. Roberts, of The Roberts Family Law Firm, P.A., Orlando, and Shannon L. Akins, of Law Offices of Shannon L. Akins, P.A., Orlando, for Appellant.
    Nicole Benjamin, of Benjamin Law Firm, PA, Orlando, for Appellee.
   PER CURIAM.

Wife appeals the marital dissolution final judgment that Husband submitted ex parte, and the trial judge adopted verbatim. It is well known that adopting a proposed final judgment, verbatim, without any modification, especially with no judicial pronouncements of any rulings or findings, is frowned upon. We affirm the portion of the judgment that dissolved the parties’ marriage, but reverse the balance in its entirety and remand for entry of an amended final judgment.

The parties’ marriage was dissolved after nearly twelve years. The issues for the one-day trial included alimony, child support, equitable distribution of marital property, creation of a parenting plan with time-sharing, a request for partition of the marital home, and requests for attorney’s fees. At the conclusion of trial, the trial judge did not entertain closing arguments, nor did he announce or otherwise indicate any findings or rulings. Rather, he instructed both sides to submit proposed final judgments to the trial judge’s assistant, and both sides timely complied.

For reasons that are not clear, Husband submitted his proposal without providing a copy to Wife; thus, she had no opportunity to review, comment on, or object to any aspect of Husband’s proposed judgment. Approximately six weeks post-trial, the trial court adopted Husband’s version, including all of its attachments, and entered it without making any changes. The trial court denied Wife’s timely filed motion seeking rehearing or a new trial.

We recognize that in dissolution proceedings it is common for the judge to direct each side to submit its proposed final judgment for consideration. See Merkin v. Merkin, 804 So.2d 595, 598 (Fla. 2d DCA 2002). “Although a trial court may request, as it did in this case, that counsel for both parties submit a proposed final judgment, the court may not adopt the judgment verbatim, blindly, or without making in-court findings.” Rykiel v. Rykiel, 795 So.2d 90, 92 (Fla. 5th DCA 2000), quashed on other grounds, 838 So.2d 508 (Fla. 2003). The appearance of impropriety exists when the trial judge adopts verbatim one party’s one-sided final judgment, especially where the judge did not orally announce findings or rulings during or at the end of trial. The possible impropriety is that the trial judge may be perceived to have delegated his decision-making authority to Husband’s counsel because it does not appear that the judge independently made factual findings and legal conclusions.

The Florida Supreme Court set forth clear guidelines for dealing with party-submitted proposed judgments in marital dissolutions in Perlow v. Berg-Perlow, 875 So.2d 383, 384 (Fla. 2004):

(1) [T]he trial judge may ask both parties or one party to submit a proposed final judgment;
(2) if proposed final judgments are filed, each party should be given an opportunity to review the other party’s proposed final judgment and make objections;
(3) if only one party submits a proposed final judgment, there must be an opportunity for review and objections by the opposing party; and
(4) prior to requesting proposed final judgments, the trial judge should, when possible, indicate on the record the court’s findings of fact and conclusions of law.

During the trial phase in this case, the trial judge made no indication on how he might rule on any of the many issues, nor did he announce any findings of fact. Nevertheless, Husband’s proposed judgment included very specific findings and rulings on disputed issues such as imputation of income, parental evaluations using statutory considerations, valuation and distribution of marital assets and liabilities, retroactive and future child support, and others. “It is ... difficult to believe, on such fact-intensive issues as presented here, that an attorney can be so omniscient as to the court’s findings that they could be entirely correct without a single edit where the court made no rulings in open court.” Ross v. Botha, 867 So.2d 567, 572 (Fla. 4th DCA 2004) (citation omitted).

“Unfortunately, proposed orders prepared by one side are frequently one-sided as to findings and rulings.” Id. Predictably, all rulings and findings on disputed issues in Husband’s proposed judgment were one-sided, favoring Husband. As noted above, Husband did not provide a copy of his proposed judgment to Wife; thus, the trial judge did not have the benefit of receiving any objections or corrections from Wife prior to entering the judgment. Furthermore, the potential harm in verbatim adoption of one party’s proposed judgment was compounded here because the final judgment contains numerous errors, including many findings that are not supported by competent substantial evidence in the record. We note that the one-sided nature of the judgment was consistent, as all of the errors favored Husband and prejudiced Wife. The numerous errors only add to our conclusion that the judgment cannot stand.

Accordingly, we affirm the portion of the final judgment dissolving the marriage, reverse the balance of the final judgment in its entirety, and remand for entry of an amended final judgment.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

EVANDER, EDWARDS, and EISNAUGLE, JJ., concur.

      . The errors include but are not limited to: inappropriately imputing a higher income to Wife, using a lower than actual income for Husband, misstating the net valuation of the marital home, miscalculating overnights each parent shared with the children following separation, miscalculating financial contributions made by each parent to the children’s care and provision of health insurance, failing to credit Wife for payments of marital debts, failing to include valuable marital assets possessed by Husband in the calculation of equitable distribution, awarding Husband ultimate decision-making authority on all issues regarding the children, and ordering Wife to contribute to Husband’s attorney’s fees despite financial inability to pay.

      . The trial judge should consider-whether to take further evidence, given the passage of time since the original trial and entry of the original judgment.'


text:
    Jesse J. HILL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3961
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 27, 2017
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We' affirm Jesse Hill’s convictions, but remand for the entry of a proper nunc pro tunc order finding Hill competent to stand trial. See Francis v. State, 65 So.3d 103 (Fla. 5th DCA 2011) (holding that where trial court made oral findings that defendant was competent but failed to enter written order of competency, proper remedy was to affirm judgment and -remand case to trial court for entry of nunc pró tunc order finding defendant competent to stand trial).

AFFIRMED; REMANDED WITH DIRECTIONS TO ENTER PROPER NUNC PRO TUNC ORDER.

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


author: PER CURIAM..

text:
    R.W., Father of K.W., V.W. and A.W., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. Department of Children and Families and Guardian Ad Litem Program o/b/o K.W., V.W. and A.W., Children, Appellants, v. R.A.D. and R.W., Parents, Appellees.
    Case No. 5D17-2010
    Case Nos. 5D17-2012, 5D17-2027
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 31, 2017

      Edward'Juan Lynum, of Lynum & Associates, PLLC, Leesburg, for Father, R.W.
    Elliott Ambrose, Brooksville. for Mother, R.A.D.
    Stephanie C. Zimmerman, Deputy Director & Statewide Director of Appeals, Children’s Legal Services, Bradenton, and Rachel Batten, Hernando County Children’s Legal Services, Brooksville, for Department of Children and Families.
    Laura J. Lee, Sanford, for Guardian Ad Litem Program.
   PER CURIAM..

The Department of Children and Families (Department) and the Guardian ad Litem Program (GAL) appeal from the trial court’s order denying a petition for termination of parental rights filed by the Department against both- parents, R.A.D. and R.W. ’ Although the trial court found three separate grounds for termination, it denied the petition because it found the Department had not proven that termination was the least restrictive means of protecting the children because the parents “require an opportunity to rehabilitate or fail.” Instead, the court adjudicated the children dependent and directed the Department to provide the parents with a case plan. We affirm the trial court’s findings that the Department proved grounds for termination of parental rights as to both parents, but reverse as to the trial court’s finding that termination was not the least restrictive means. We also affirm the trial court’s findings of dependency without further discussion.

The children, K.W., V.W. and A.W., were sheltered in May 2016, based on allegations of substance abuse, mental health issues, domestic violence, and the parents’ history with the Department. Based on the mother and father’s extensive history of domestic violence, substance abuse, and dependency adjudications, the Department filed an expedited termination of parental rights petition instead of offering the parents another case plan. After a hearing, the trial court concluded that the Department proved grounds for termination against both parents under section 39.806(1)(c) (continuing involvement threatens, irrespective of services) and section 39.806(1)(l) (three or more removals caused by parent), and against the mother under section 39.806(1)(j) (chronic substance abuse), Florida Statutes (2017).

In its order, the trial court made extensive findings detailing a history of domestic violence and substance abuse on the part of the father, and chronic substance abuse on the part of the mother. The trial court summarized the parents’ history as follows:

The evidence and testimony at trial represents , a historical biography of this family that dates back to 2005 for the mother and 2009 for the father. It paints a picture of a family plagued by violence and substance misuse. Since 2009, the mother and father have been in a violent, drug-fueled relationship. The victims of that relationship have been the parents’ five children. who.. have been removed out of their home on- five occasions. [V.W.] and [K.W.] have been removed and placed in out-of-ho,me care three times, initially after they almost died due to the mother’s substance misuse and her failure to obtain. proper medical care. The mother has been offered six case plans over the course of over a decade. The father has been offered four ease[ ] plans over the course of eight years.

Most importantly, as to the mother, the trial court also expressly found that “[bjased on the repeated cycle of behavior and the mother’s- history in the dependency system, there is absolutely NO reasonable basis to believe that she will improve and not engage in the same behaviors again in the future and cause the children to be uprooted and thrust back into the system.” The trial court went on, finding that “[hjistory tells us that, even with her engagement in services, the mother will eventually repeat the same behaviors that have caused the removal of all seven of her children on multiple occasions.”

As to the father, the trial court found that he had been offered four case plans and a host of services related to domestic violence and substance abuse treatment. In its order, the trial court found “[d]e-spite having access to services on four occasions, the father continues to revert back to the same behavior. The father appears to not want to change or acknowledge that there are any issues.” The trial court also noted' that the father “has not engaged in any services since the children were sheltered this last time.”

Despite these findings, which are supported by competent, substantial evidence contained in the voluminous record on appeal, the court found the Department failed to prove termination was the least restrictive means of protecting the children from harm because the parents “require an opportunity to rehabilitate or fail.” In light of its least restrictive means finding, the court did not consider whether termination was in the children’s manifest best interests, but “note[d] and agree[d] [with-the Department and the GAL] that these children need stability as well, as permanency.”

We reverse because, although the record contains competent, substantial evidence that the Department established grounds for termination pursuant to sections 39.806(1)(c) and 39.806(1)(j), Florida Statutes (2017) as to both parents, and section 39.806(1)(j) as to the mother, the trial court misconstrued the requirements of the least restrictive means test. To terminate parental rights, the Department must prove that termination is the “least restrictive means of protecting the child from serious harm.” Statewide Guardian Ad Litem Program v. A.A., 171 So.3d 174, 177 (Fla. 5th DCA 2015). However, the “least restrictive means” test is not intended to preserve a parental bond at the cost of a .child’s future. E.g., Dep’t of Child. & Fams. v. B.B., 824 So.2d 1000 (Fla. 5th DCA 2002). Rather, it simply requires that measures short of termination should be utilized if such measures can permit the safe re-establishment of the parent-child-bond. Id. at 1009.

Ordinarily, prior to termination, the department must “show that it has made a good faith effort to rehabilitate the parent and reunite the family.” Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla. 1991). However, the Legislature has specifically provided that no case plan is required where the trial court determines, as in this case, that termination is proper pursuant to sections 39.806(1)(b)-(d) or (f)-(m), Florida Statutes (2017). See § 39.806(2), Fla. Stat. (2017) (“Reasonable efforts to preserve and reunify families are not required if a court of competent jurisdiction has determined that any of the events described in paragraphs [39.806](l)(b)-(d) or paragraphs ' (1)(f)-(m) have occurred.”). Likewise, our supreme court has recognized, in certain “extraordinary circumstances,” termination of parental rights without the use of a case plan is the least restrictive means to protect a child. In re T.M. & F.M., 641 So.2d 410, 413 (Fla. 1994). Those extraordinary circumstances include severe or continuing abuse through continuing involvement and egregious abuse as found in then section 39.464, paragraphs (3) and (4), now renumbered as section 39.806(1)(c) and (1)(f). Id. “Only by the use of such measures will this Court be able to adhere to the ‘overriding principle that it is the ultimate welfare or best interest of the child which must prevail.’ ” Id. (quoting Padgett, 577 So.2d at 570).

Here, the trial court reasoned that “[t]he purpose of the least restrictive means analysis is to ensure that parents have an opportunity to rehabilitate and parent prior to the court terminating their fundamental rights to parent,” and found that “[i]n this case, the parents require an opportunity to rehabilitate or fail.” The trial court’s legal conclusion, however, is in conflict with its findings that there is “absolutely NO reasonable basis to believe [the mother] will improve,” ánd that “the father continues to revert back to the same behavior” after receiving services and “appears to not want to change or ácknowl-edge that there are any issues.” Moreover, requiring “an opportunity to rehabilitate” the parents is inconsistent with the Legislature’s mandate in section 39.806(2), given the statutory grounds proven for termination in this case. Thus, we conclude that the Department also proved by substantial, competent evidence that termination is the least restrictive' means to protect the Children from serious harm.-

Therefore, on remand, we instruct the trial court to consider whether termination of R.A.D’s and R.W.’s parental rights is warranted based upon the manifest best interest of the children, and to make appropriate findings. See R.L. v. Dep’t of Child. & Fams., 63 So.3d 920, 921-22 (Fla. 5th DCA 2011) (“To terminate parental rights, the State must establish: (1) the existence, of one of the statutory grounds set forth in Chapter 39; (2) that termination is in the best interest of the child; and (3) that termination is the least restrictive means of protecting the child from harm.”).

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, LAMBERT and EISNAUGLE, JJ., concur.

      . This court previously consolidated cases 5D17-2012 and 5D17-2027, both challenging the trial court's denial of the Department’s petition for termination. For purposes of this opinion, we now also consolidate case number 5D17-2010, in which the father challenged the trial court’s finding of dependency, with 5D17-2012 and 5D17-2027.


text:
    Yeimis BANEGAS, Appellant, v. ACR ENVIRONMENTAL, INC., and Berkley Specialty Underwriting Managers, Appellees.
    CASE NO. 1D17-1251
    District Court of Appeal of Florida, First District.
    Opinion filed November 6, 2017.
    Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Christopher W. Wadsworth and Samuel J. Cili of Wadsworth Huott, LLP, Miami, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant, through her counsel, challenges the Judge of Compensation Claims’ (JCC’s) order reducing the. jointly, agreed upon amount of the Employer/Carrier-paid attorney’s fee and requiring that the excess amount be remitted to Claimant personally. We reverse and remand for proceedings consistent with this opinion.

We review for competent, substantial evidence the issue of the reasonableness of ah attorney’s fee. See Sanchez v. Woerner Mgmt., Inc., 867 So.2d 1173 (Fla. 1st DCA 2004). Neither argument of counsel nor “the JCC’s reductions and deletions .,. based solely on the JCC’s own subjective and personal experience of what he deemed reasonable” are sufficient to rebut a claimant’s counsel’s sworn affidavit. See Minerd v. Walgreens, 962 So.2d 955, 957 (Fla. 1st DCA 2007). Because the record here contains no evidence to rebut Claimant’s counsel’s sworn affidavit or the representations of the Employer/Carrier’s counsel, the JCC erred in reducing the time entries contained within that affidavit.

In Luces v. Red Ventures, 140 So.3d 999 (Fla. 1st DCA 2014), we explained that “chapter 440 limits the authority of JCCs and does not authorize them to reform the agreements of the parties on their own motion.” Id. at 1000. Further, a JCC is “without authority to redirect the attorney’s fee from counsel to claimant as an exercise of plenary equitable jurisdiction.” Id. Here, the JCC erred in doing so.

Accordingly, we REVERSE the portion of the order reducing the agreed upon attorney’s fee as well as the portion of the order reforming the stipulation, and REMAND for further proceedings consistent with this opinion.

LEWIS, MAKAR, and OSTERHAUS, JJ„ CONCUR.


text:
    Leonardo Ernesto GOMEZ, Appellant, v. FRANK CRUM, INC., and Broadspire, Appellees.
    CASE NO. 1D17-1173
    District Court of Appeal of Florida, First District.
    Opinion filed November 6, 2017.
    Kevin R. Gallagher of Gallagher Law Group, P.A., Fort Lauderdale, for Appellant.
    William H, Rogner -and Paul L. Luger, Winter Park, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant, through his counsel, challenges the Judge of Compensation Claims’ (JCC’s) order rejecting a jointly agreed upon Employer/Carrier-paid attorney’s fee, awarding instead a fee based on the statutory fee schedule as set out in subsection 440.34(1), Florida Statutes (2012), and requiring the excess amount be remitted to Claimant personally. We reverse and remand for proceedings consistent with this opinion.

We review for competent, substantial evidence the issue of the reasonableness of an attorney’s fee. See Sanchez v. Woerner Mgmt., Inc., 867 So.2d 1173 (Fla. 1st DCA 2004). As we recently explained in Banegas v. ACR Environmental, Inc., No. 1D17-1251, 2017 WL 5076887 (Fla. 1st DCA Nov. 6, 2017), “[njeither argument of counsel nor ‘the JCC’s reductions and deletions ... based solely on the JCC’s own subjective and personal experience of what he deemed reasonable’ are sufficient to rebut a claimant’s counsel’s sworn affidavit. See Minerd v. Walgreens, 962 So.2d 955, 957 (Fla. 1st DCA 2007).” Because the record before us contains no evidence rebutting Claimant’s counsel’s sworn affidavit or the representations of the Employer/Carrier’s counsel, the JCC erred in deleting the time entries contained within the'affidavit.

As for the redirection of the monies in excess of the statutory fee schedule to Claimant, a JCC is “without authority to redirect the attorney’s fee from counsel to claimant as an exercise of plenary equitable jurisdiction.” Luces v. Red Ventures, 140 So.3d 999, 1000 (Fla. 1st DCA 2014) (explaining that “chapter =440' limits- the authority of JCCs and does not authorize them to reform the agreements of the parties on their own motion”). Thus, the JCC erred in doing so.

Accordingly, we REVERSE the portion of the order rejecting the agreed upon Employer/Carrier-paid attorney’s fee as well as the portion of the order reforming the stipulation, and REMAND for further proceedings consistent with this opinion.

LEWIS, MAKAR, and OSTERHAUS, JJ., CONCUR.


text:
    Elizabeth KESSINGER, Former Wife, Petitioner, v. Clifton J. KESSINGER, Former Husband, Respondent.
    CASE NO. 1D16-5593
    District Court of Appeal of Florida, First District.
    Opinion filed November 6, 2017
    Beth M. Terry, Jacksonville, for Petitioner.
    Robert Elrod, Jr., Jacksonville, for Respondent,
   PER CURIAM.

DENIED. See Kessinger v. Kessinger, 1D16-1997 (Fla. 1st DCA 2017) (reversing with directions to vacate the final judgment and dismiss the petition).

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


text:
    Robert F. MATHERS, Individually, Appellant, v. BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC, a Foreign Company which is the Successor to Bridgestone/Firestone North America Tire, LLC, Appellee.
    CASE NO. 1D16-3231
    District Court of Appeal of Florida, First District.
    Opinion filed November 6, 2017.
    Sean C. Domnick of Dominick, Cunningham & Whalen, Pam Beach Gardens, and William F. Sharpe of the Office of Candice K. Brower, Tallahassee, for Appellant.
    Alexander R. Boler, Xerox Recovery Services, Tallahassee; Tracy George, Chief Appellate Counsel for Agency for Health Care Administration, Tallahassee; and Lee Teichner of Holland & Knight, LLP, Miami, for Appellee.
   PER CURIAM.

AFFIRMED. See Suarez v. Port Charlotte HMA, LLC, 171 So.3d 740 (Fla. 2d DCA 2015), reh’g denied (Aug. 5, 2015), review dismissed, 182 So.3d 635 (Fla. 2015), and review denied, SC15-1848, 2016 WL 800689 (Fla. Mar. 1, 2016).

WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.


text:
    IN RE: Jeanne Marie BOURQUE
    NO. 2017-OB-1692
    Supreme Court of Louisiana.
    11/06/2017
   ORDER

1 t Considering the Petition for Transfer to Active Status filed by respondent, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Jeanne Marie Bourque, Louisiana Bar Roll number 26607, be and she hereby is reinstated to active status pursuant to Supreme Court Rule XIX, § 22(G), subject to the condition that she must fully and completely adhere to all terms of her December 8, 2012 recovery agreement with the Judges and Lawyers Assistance Program, and such other conditions as may be imposed upon her by the Judges and Lawyers Assistance Program. The Office of Disciplinary Counsel shall monitor respondent’s compliance with her recovery agreement and notify this court of any violation, which may be grounds for immediately returning respondent to disability inactive status.

This order shall be effective immediately.


author: PER CURIAM

text:
    IN RE: John Thomas FULLER, IV
    NO. 2017-B-1668
    Supreme Court of Louisiana.
    11/06/2017
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

11 Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which respondent acknowledges that he knowingly violated Rule 4.2(a) of the Rules of Professional Conduct by communicating with two persons known to be represented by counsel about the subject of the representation and without the consent of their counsel. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that John Thomas Fuller, IV, Louisiana Bar Roll number 27341, be and he hereby is publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


author: CRICHTON, J.,

text:
    Steve BLANCHARD v. Michael J. MITCHELL, et al.
    No. 2017-CC-1372
    Supreme Court of Louisiana.
    11/06/2017
   ON SUPERVISORY WRITS TO THE 12™ JUDICIAL DISTRICT COURT, PARISH OF AVOYELLES

11 Writ denied.

CLARK, J., would grant.

CRICHTON, J., would grant and assigns reasons.'

CRICHTON, J.,

would grant and assigns reasons

lil disagree with the majority's decision to deny this writ application, as I find the application of La. R.S. 32:145 under circumstances such as these to be an important issue this Court has not recently addressed. In my view, I do not find the statute was intended to create a duty to protect third persons from the negligence of unauthorized users of a.vehicle. As such, I would grant and docket this matter to examine this issue more closely.


author: PER CURIAM: Crichton, J.,

text:
    STATE of Louisiana v. Richard A. SEATON, Jr.
    2016-KP-1061
    Supreme Court of Louisiana.
    11/06/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT FOR THE PARISH OF CADDO

PER CURIAM:

|, Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator also fails to show the state withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Relator 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.

CRICHTON, j, would grant in part and assigns reasons.

Crichton, J.,

would grant in part and assigns reasons

hi would grant defendant’s application to remand to the district court to conduct a post-conviction evidentiary hearing on defendant’s claim of ineffective assistance of counsel. Defendant, who has always maintained the sexual activity was consensual, was found guilty of forcible, rape after a bench trial based largely on the testimony of his accuser. While the testimony of a sexual assault victim, alone is generally sufficient to support a conviction, see, e.g., State v. Rives, 407 So.2d 1195, 1197 (La. 1981), the victim’s statements here contained numerous inconsistencies and unusual features that were not explored through cross-examination. At a minimum, I believe defendant has presented a color-able claim of ineffective assistance that merits evidential^ development rather than summary denial. See La.C.Cr.P. art. 930(A).


text:
    STATE EX REL. David L. WILLIAMS v. STATE of Louisiana
    NO. 2017-KH-1496
    Supreme Court of Louisiana.
    October 16, 2007
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 06-13-0241; to the Court of Appeal, First Circuit, Nos. 2016 KW 1692, 2017 KW 0482

11 Writ not considered. Untimely filed pursuant to La.S.Ct. Rule X, § 5.


text:
    IN RE: Appeal of the Decision of the DISCIPLINARY BOARD NO. 17-PDB-008
    No. 2017-OB-1308
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Counsel, No. 17-PDB-008;

| petition for leave to appeal denied.


text:
    Marsha A. WILLIS v. EAN HOLDINGS d/b/a Enterprise Rent A Car, Elco Insurance Group, Inc., Toyota Motor Corporation, and Troy David Thibodeaux
    NO. 2017-C-0791
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 614-425; to the Court of Appeal, First Circuit, No. 2016 CA 0473;

|T Denied.


text:
    COMMAND CONSTRUCTION INDUSTRIES, LLC v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Sherri Leras, in Her Official Capacity as Secretary of Louisiana Department of Transportation and Development, Metropolitan Council for the Parish of East Baton Rouge, and City of Raton Rouge/Parish of East Baton Rouge
    NO. 2017-CC-0821
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 621815; to the Court of Appeal, First Circuit, No. 2017 CW 0078;

liDemed.


text:
    Brian BALTHAZAR, et al. v. HENSLEY R. LEE CONTRACTING, INC., et al. Brian Balthazar, et al. v. Hensley R. Lee Contracting, Inc., et al.
    NO. 2017-CC-0777
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2012-3399 C/W 2012-3400; to the Court of Appeal, Fourth Circuit, No. 2016-C-0920 THRO 2016-C-0928

| iDenied.


text:
    Tyrone GOODMOND v. STATE of Louisiana, THROUGH the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT (DOTD), Duane P. Alleman, and Union Pacific Railroad Company
    NO. 2017-C-0820
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. C, No. 069510; to the Court of Appeal, First Circuit, No. 2016 CA 1024

| jDenied.

JOHNSON, C.J., would grant.

HUGHES, J„ would grant.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. ACADIAN PROPERTIES NORTHSHORE, L.L.C.
    NO. 2017-C-0775
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 2013-12755; to the Court of Appeal, First Circuit, No. 2016 CA 1108

Denied.


text:
    IN RE: MEDICAL REVIEW PANEL OF Anthony BRUNO
    NO. 2017-CC-0792
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. I, No. C-2016 0954; to the Court of Appeal, Third Circuit, No. CW 17-00119

Denied.


text:
    Nancy MOREL v. CHEEMA PROPERTIES, LLC, Cheema Three, LLC and ABC Insurance Company
    No. 2017-c-0787
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 749-803; to the Court of Appeal, Fifth Circuit, No. 16-CA-666;

I iDenied.


text:
    Gregory DEEDS and Jennifer Deeds v. ACADIANA OIL COMPANY OF LOUISIANA
    NO. 2017-CC-0799
    Supreme Court of Louisiana.
    September 22, 2017
   IN RE: Acadiana Oil Company of Louisiana; - Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. C, No. 2016-2054; to the Court of Appeal, Third Circuit, No. CW 17-00133.

Denied.


text:
    Todd CROCHET v. CALCASIEU PARISH POLICE JURY, et al.
    NO. 2017-C-0781
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation—District 3, No. 14-03253; to the Court of Appeal, Third Circuit, No. 16-954

JiDeniecl


text:
    Linda Aranguren BALLEX, Individually and on Behalf of Her Minor Child, Verna Maria Ballex v. MUNICIPAL POLICE EMPLOYEES’ RETIREMENT SYSTEM
    NO. 2017-00822
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 616-165; to the Court of Appeal, First Circuit, No. 2016 CA 0906

11 Denied.

WEIMER, J,, would grant.


text:
    STATE EX REL. Leroy DAVIS v. STATE of Louisiana
    No. 2016-KH-0543
    Supreme Court of Louisiana.
    September 22, 2017
   Applying for Reconsideration of this Court’s action dated-June 16, 2017; Parish of Iberia, 16th Judicial District Court Div. C, No. 10-0913; to the Court of Appeal, Third Circuit, No. KH 16-00866

I (Not considered. See La.S.Ct. Rule DC, §6.

GENOVESE, j., recused.


text:
    POSIGEN, INC. v. ONYX RENEWABLE PARTNERS, L.P. and Blackstone Solar Holdco L.P.
    NO. 2017-CC-0819
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 764-365; to the Court of Appeal, Fifth Circuit, No. 17-C-165

L Denied.


text:
    Marsha A. WILLIS v. EAN HOLDINGS d/b/a Enterprise Rent a Car, Elco Insurance Group, Inc., Toyota Motor Corporation, and Troy David Thibodeaux
    NO. 2017-C-0790
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 614-425; to the Court of Appeal, First Circuit, No. 2015 CA 1539;

| denied.


text:
    IN RE: MEDICAL REVIEW PANEL OF Mario HURST
    NO. 2017-OC-0803
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 2015-8161; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0934

| denied.


text:
    Brian CHEHARDY v. RAYMOND JAMES FINANCIAL, INC., et al.
    NO. 2017-CC-0780
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. F, No. 2016-09137; to the Court of Appeal, Fourth Circuit, No. 2017-C-0030;

| TDenied.


text:
    STATE EX REL. Alvin BRATTON v. STATE of Louisiana
    NO. 2016-KH-1473
    Supreme Court of Louisiana.
    September 22, 2017
   Applying for Reconsideration of this Court’s order dated November 7, 2016, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 644,623

11 Reconsideration granted; relief denied.

CRICHTON, J., recused.


text:
    STATE of Louisiana v. Leopold “Chuck” LACOSTE, II
    NO. 2017-KP-1259
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 635841; to the Court of Appeal, First Circuit, No. 2017 KW 0483;

It Denied.

WEIMER, J., recused.


text:
    Jonathan FAWER v. RAYMOND JAMES FINANCIAL, INC., et al.
    NO. 2017-CC-0779
    Supreme Court of Louisiana.
    September 22, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. F, No. 2016-09138; to the Court of Appeal, Fourth Circuit, No. 2017-C-0029

h Denied.


text:
    ROTORCRAFT LEASING, LLC and Gatlin Insurance Company, Inc. v. H.E.R.O.S., INC., et al.
    NO. 2017-C-1071
    Supreme Court of Louisiana.
    October 9, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 2011-5309-B; to the Court of Appeal, Third Circuit, No. 16-690

|, Denied.


text:
    SUCCESSION OF Richard E. O’KREPKI Bruce A. O’Krepki, Independent Executor of the Succession of Richard E. O’Krepki v. Penelope Brodtmann O’Krepki
    NO. 2017-CC-1063
    Supreme Court of Louisiana.
    October 9, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 742-430 C/W 749-364; to the Court of Appeal, Fifth Circuit, No. 17-C-152

I, Denied.


text:
    Deianca Jones HENRY, Wife of/and Glen Edward Henry, Individually and on Behalf of Their Minor Children Dajaene Jones and Adeja Henry v. Kyle Derek WEISHAUPT, Miranda Leah Romero Mcgoffin, Ochsner Foundation Hospital and Clinic A.K.A. Ochsner Health System, Inc., d/b/a Ochsner Hospital—elmwood and XYZ Insurance Company
    NO. 2017-C-1066
    Supreme Court of Louisiana.
    October 9, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 719-891; to the Court of Appeal, Fifth Circuit, No. 17-CA-26;

1 denied.

HUGHES, J., would grant.


text:
    Michael Martin MULKEY, Sr. v. CENTURY INDEMNITY COMPANY, Petroleum Casualty Company, James Ralph Vannoy, R.H. Bretz, Ralph F. Howe and Joseph D. Midwikis
    NO. 2017-C-1059
    Supreme Court of Louisiana.
    October 9, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Eaton Rouge, 19th Judicial District Court Div. E, No. 628,667; to the Court of Appeal, First Circuit, No. 2016 CA 1119

Denied.


text:
    Heather Roper KAPTEIN v. Jesse KAPTEIN
    No. 2017-CJ-1421
    Supreme Court of Louisiana.
    October 9, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2014-4304; to the Court of Appeal, Fourth Circuit, No. 2016-CA-1249

| tDenied.


text:
    Catherine MATTHEWS, Patrick Matthews, Monica Matthews and Leander Matthews, Jr. v. Louis J. PROVENZA, M.D. and Deepak Dixit, M.D. and Dr. Deepak Dixit, L.L.C.
    NO. 2017-C-1062
    Supreme Court of Louisiana.
    October 9, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No.. 2010-16406; to the Court of Appeal, First Circuit, No. 2016 CA 1139;

hDenied.


text:
    Frank S. ROMANO, Sr. and Lynn Rome Romano v. METROPOLITAN LIFE INSURANCE COMPANY, et al.
    NO. 2017-C-1072
    Supreme Court of Louisiana.
    October 9, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 2014-8969; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0954

hDenied.


text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL COMPANY and Texas Brine Company, LLC
    NO. 2017-CC-1040
    Supreme Court of Louisiana.
    October 9, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. A, No. 33796; to the Court of Appeal, First Circuit, No. 2017 CW 0185

hDenied.


text:
    STATE EX REL. Demetrius BRADLEY v. STATE of Louisiana
    No. 2016-KH-0446
    Supreme Court of Louisiana.
    October 9, 2017
   Applying for Reconsideration of this Court’s action dated May 26, 2017; Parish of Caddo, 1st Judicial District Court Div. 1 No. 240612; to the Court of Appeal, Second Circuit, No. 50679-KH

Not considered. See La.S.Ct.R. IX § 6.


text:
    CITY OF BATON ROUGE v. Breanna ROBICHAUX
    NO. 2017-KK-1052
    Supreme Court of Louisiana.
    October 9, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, City of Baton Rouge, No. BR00428466; 19th Judicial District Court Div. L, No. 10-16-0721; to the Court of Appeal, First Circuit, No. 2017 KW0403

|! Denied.

GUIDRY, J., would grant.

GENOVESE, J., would grant.


text:
    Shawn RAY and Johnathan Raborn v. AMERICAN ALTERNATIVE INSURANCE CORPORATION and Chad Dauthier
    NO. 2017-CC-1709
    Supreme Court of Louisiana.
    October 12, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. D, No. 46728; to the Court of Appeal, First Circuit, No. 2017 CW 1359;

|, Stay denied; writ denied. Adequate remedy on appeal.


text:
    Betty Ann Breads DEFIORE v. HUNTINGTON INGALLS INCORPORATED, et al.
    NO. 2017-CC-1731
    Supreme Court of Louisiana.
    October 15, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2016-10800; to the Court of Appeal, Fourth Circuit, No. 2017-C-0828;

I ¶ Stay denied; writ denied.


text:
    STATE of Louisiana v. Ernest BILLIZONE, Sr.
    NO. 2017-KO-0191
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 15-3716; to the Court of Appeal, Fifth Circuit, No. 16-KA-478;

| denied.


text:
    STATE EX REL. David L. WILLIAMS, Sr. v. STATE of Louisiana
    NO. 2017-KH-0767
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 06-13-0241; to the Court of Appeal, First Circuit, No. 2016 KW 1469

11 Denied.


text:
    Mary MASON v. BURLINGTON COAT FACTORY OF LOUISIANA, LLC, et al
    NO. 2017-C-1079
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 2014-5102-B; to the Court of Appeal, Third Circuit, No. 17-44;

1 iDenied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Farren Wayne MCCLELLAND aka Farren Wayne Sinke
    NO. 2017-KK-1091
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. A, No. 83727; to the Court of Appeal, Third Circuit, No. KW 17-00373

| iDenied.


text:
    STATE EX REL. David L. WILLIAMS, Sr. v. STATE of Louisiana
    NO. 2017-KH-0769
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 06-13-0241; to the Court of Appeal, First Circuit, No. 2016 KW 1671

I iDenied.


text:
    STATE EX REL. David L. WILLIAMS, Sr. v. STATE of Louisiana
    NO. 2017-KH-0768
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 06-13-0241; to the Court of Appeal, First Circuit, Nos. 2016 KW 1605, 2016 KW 1469;

Denied.


text:
    STATE of Louisiana v. Danny P. BATTAGLIA
    NO. 2017-KK-1451
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. A, No. 2013-190791; to the Court of Appeal, First Circuit, No. 2017 CW 0626;

11 Granted.


text:
    SOUTHEAST HOLDINGS, LLC v. Assad MOUHAFFEL
    NO. 2017-CC-1089
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. E, No. 153,840; to the Court of Appeal, First Circuit, No. 2017 CW 0377

hDenied.


text:
    Charles FRAZIER v. DOLLAR GENERAL CORPORATION
    NO. 2017-C-1115
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 2013-13916; to the Court of Appeal, First Circuit, No. 2016 CA 1628;

11 Denied.


text:
    STATE EX REL. Spencer GILMORE v. STATE of Louisiana
    NO. 2017-KH-1513
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 366-409; to the Court of Appeal, Fourth Circuit, No. 2017-K-0486;

|!Writ not considered. Untimely filed pursuant to La.S.Ct. Rule X, § 5.


text:
    STATE of Louisiana v. Terry SPEAKS a/k/a Allen Rice a/k/a Leslie Allen Rice a/k/a/ Leslie Rice
    NO. 2017-KO-0185
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 14-2321; to the Court of Appeal, Fifth Circuit, No. 16-KA-163

11 Denied.


text:
    Arthur DEAL v. FARM BUREAU CASUALTY INSURANCE COMPANY
    NO. 2017-C-1111
    Supreme Court of Louisiana.
    October 16, 2017
   . Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. E, No. 115,505; to the Court of Appeal, First Circuit, No. 2016 CA 1647

hDenied.


text:
    STATE EX REL. Damon DELMORE v. STATE of Louisiana
    NO. 2017-KH-1304
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div., No. 32656; to the Court of Appeal, First Circuit, No. 2016 KA 1614

hWrit not considered. Untimely filed pursuant to La.S.Ct. Rule X, § 5.


text:
    800 IBERVILLE STREET LIMITED PARTNERSHIP v. RESTAURANT GROUP, L.L.C., and Vanna Ly 800 Iberville Street Limited Partnership v. Restaurant Group, L.L.C., et al.
    NO. 2017-OC-1118
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 2014-1909; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0799 C/W 2016-C-0483;

hDenied.


text:
    Richard PALMER v. UV INSURANCE RISK RETENTION GROUP, INC., et al. Jeannie Breaux v. UV Insurance Risk Retention Group, Inc., et al.
    NO. 2017-CC-1294
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial Distinct Court Div. D, No. 37296 C/W 37319; to the Court of Appeal, FifthCircuit, No. 17-C-279

hDenied.


text:
    Freddie POPULIS v. The STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Lester C. Ledet, III and Allstate Insurance Company Sandra Bovie, Byron Thomas, Mary Lou Boudoin, and Mary Mitchell v. State of Louisiana, Through the Department of Highways Pamela Lewis v. State of Louisiana, Through the Department of Highways, Unknown Captain and Unknown Deckhand(s); Robin Wilson and Jahmal A. Wilson v. The State of Louisiana, Through the Louisiana Department of Transportation and Development, Fara Insurance Services, and Lester C. Ledet, III
    NO. 2017-C-1106
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 65830 C/W 66201 C/W 67262; to the Court of Appeal, Fifth Circuit, No. 16-CA-655 C/W 16-CA-656 & 16-CA-657 & 16-CA-658

| denied.


text:
    STATE of Louisiana v. William Chester FARRY, Jr. aka William Chester Farry aka William C. Farry aka William Farry
    NO. 2017-KO-0301
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 31701-11; to the Court of Appeal, Third Circuit, No. 16-210;

| denied.


text:
    STATE EX REL. Anthony HATCHER v. STATE of Louisiana
    NO. 2016-KH-1645
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 635,586; to the Court of Appeal, First Circuit, No. 2015 CA 1754

hNot considered. Untimely filed. See La. S.Ct.R. X, § 5.


text:
    STATE EX REL. Tasha L. LISTER v. STATE of Louisiana
    NO. 2017-KH-1352
    Supreme Court of Louisiana.
    October 16, 2017
   ' Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. G, No. 08F0311; to the Court of Appeal, Second Circuit, No. 46,-306-KA

hWrit not considered. Untimely filed pursuant to La.S.Ct.R. X, § 5.


text:
    In the MATTER OF: LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY PERMITTING DECISION: WATER QUALITY CERTIFICATION WQC 140708-02
    NO. 2017-C-1105
    Supreme Court of Louisiana.
    October 16, 2017
   -Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. C644048; to the Court of Appeal, First Circuit, No. 2016 CA 1181;

[ iDenied.


text:
    STATE EX REL. David Lee WILLIAMS v. STATE of Louisiana
    NO. 2016-KH-1888
    Supreme Court of Louisiana.
    October 16, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. A, No. 82-CRC-037096;

11 Denied; moot.


text:
    STATE EX REL. Louis C. HAWKINS v. STATE of Louisiana
    NO. 2017-KH-1275
    Supreme Court of Louisiana.
    October 18, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 1, No. 284,936; to the Court of Appeal, Second Circuit, No. 51639-KH

hWrit not .considered. Untimely filed pursuant to La.S.Ct. Rule X, § 5.


author: Judge Daniel L. Dysart

text:
    STATE of Louisiana v. Jeffrey P. GRANIER State of Louisiana v. Jeffrey Granier
    NO. 2017-KA-0355, NO. 2017-K-0447
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 27, 2017

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, Donna Andrieu, J. Taylor Gray, DISTRICT ATTORNEY’S OFFICE, ORLEANS PARISH, 619 South White, New Orleans, LA 70119, COUNSEL FOR APPELLANT, STATE OF LOUISIANA
    Mark A. Marino, MARINO LAW FIRM, L.L.C., 104 Campus Drive East, Suite 101, Destrehan, LA 70047, COUNSEL FOR APPELLEE, JEFFREY GRA-NIER
    (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Paula A. Brown)
   Judge Daniel L. Dysart

hThe State of Louisiana appeals the district court’s grant of the Motion to Quash filed by the defendant, Jeffrey Granier.

.The district court granted the defendant’s motion on March 7, 2016, and thereafter granted the State’s Motion for Appeal and Designation of. Record on January 20, 2017. However, on March 24, 2017, the district court granted the defendant’s Motion to Dismiss Appeal as untimely. The State filed an application for supervisory writ challenging the dismissal of its appeal, while concurrently timely filing its appeal brief. We granted the supervisory writ for the limited purpose of deferring consideration of the merits of the writ application to the appeal panel.

We have consolidated the writ application and the appeal.

| .WRIT NO. 2017-K-0355:

We first address the State’s writ application. The district court granted the underlying motion to quash filed by the defendant, Jeffrey Granier, on March 7, 2016. The record contains a copy of a Motion for Appeal filed by the State, date stamped March 21, 2016, and signed and dated by the presiding judge, setting a return date of July 25, 2016. Due to a clerical irregularity in the court' below, the original motion was not filed into the record of the case, and no notices were mailed. Upon realizing several months later that the appeal had never been prepared or lodged in this Court, on January-20, 2017, the State moved the district court to issue a minute entry noting that the State had indeed filed a Motion for Appeal and Designation of Record oh March 21, 2016. The motion was granted.

On February 14, 2017, defendant fíled a Motion to Dismiss the Appeal arguing that as the “original” motion for appeal was not entered timely on the record, and that the appeal should be dismissed; Despite the district court having signed the original Motion for Appeal and a motion to issue a minute entry indicating that the motion for appeal was filed timely, it granted the defendant’s motion' to dismiss the appeal on the basis that; the motion was not filed timely.

We find this to be in error, Louisiana Code Criminal Procedure 914 A- and B provide that “the appeal shall not be affected by any fault or omission on the part Rot the district court,” and “failure of the minute clerk, the clerk of' court, or the party moving for the appeal, to provide notice shall not affect the validity of the appeal.” The record evidence, i.e., the order signed and dated by the trial judge, which is also date stamped and signed by the court clerk, confirms that a representative of the district attorney’s office moved timely for an appeal of the court’s March 7,2016 ruling.

Accordingly, we find that the district court erred in dismissing the State’s appeal.

APPEAL NO, 2017-KA-447:

Jeffrey Granier was charged with one count of third offense operating a vehicle while intoxicated (DWI), a violation of La. R.S. 14:98D, on June 11, 2014. He pled not guilty and fifed a motion to quash arguing that the first predicate offense had been obtained in violation of his constitutional rights. The district Court granted the motion, agreeing with the defendant that his first plea was invalid as he had not been properly advised of his rights. This Court reversed the ruling as it found the district court had not weighed the evidence presented by the State, namely, the defendant’s Waiver of Constitutional Rights/ Guilty Plea form, which the defendant, his counsel and the trial judge had signed, and the acknowledgement signed by the defendant indicating that the trial judge had personally addressed him as to all of the rights he was waiving.

On remand, the defendant re-urged his motion to quash, which was again granted by the district court.

|4In State v. Granier, 15-0608 (La.App. 4 Cir. 10/28/15), 178 So.3d 1106, this Court recognized that:

“for recidivist DWI prosecutions,' the State may satisfy its burden of production and persuasion by producing proof of a prior- DWI conviction by way of a counseled guilty plea. The burden then shifts to the defendant to produce evidence of a significant procedural irregularity in the plea. If such evidence is produced, the burden shifts back to the State to produce other contemporaneous records of the guilty plea, including a trinscript of the plea colloquy, to demonstrate that the defendant made a valid waiver of his right to trial.

Granier, 15-0608, pp, 2-3, 178 So.3d at 1108, citing State v. Carlos, 98-1366, pp. 6-7 (La. 7/7/99), 738 So.2d 556, 559.

The record in this case contains the files from case number S-261428 “A,” the defendant’s first DWI offense. The record indicates that the defendant was represented by counsel at arraignment and at the time of his plea. The record contains a Waiver of Constitutional Rights/Plea of Guilty form signed by the defendant, his attorney and the judge. The form contains an acknowledgement, signed by the defendant, affirming that he was personally addressed by the judge 'as to all details of the waiver, and he was given an opportunity to make a statement, and that “[njevertheless, I do hereby enter a plea of GUILTY to the charge of OPERATING A VEHICLE WHILE INTOXICATED,”-The record also includes minute entries indicating that the defendant pleaded guilty pursuant to La. Code Crim. Proc. art, 894 and paid a fine. . .

-The defendant argues that the minute entries do not indicate that the district court accepted the waiver, that a colloquy took place between the defendant and the court, that the defendant’s plea was free and voluntary, or that the defendant I sunderstood his rights. While wé' agree that the minute entries do not indicate any of the above, the defendant’s signature, his attorney’s signature and the judge’s signature on the waiver form and acknowledgment do confirm those facts. The acknowl-edgement, signed by the defendant, states that he was addressed personally by the judge.

The defendant also relies on comments made by the district court concerning procedures in traffic court following Hurricane Katrina. However, the defendant has submitted no. proof to substantiate his claims. His reference to comments made by the judge as to the conditions in traffic court following Hurricane Katrina do not rise to the level of judicial notice.

Thus, relying on State v. Carlos, supra, we find the evidence produced by the State to be sufficient to substantiate the defendant’s first DWI offense. Specifically, we find that the State met its initial burden, and the defendant did not produce any affirmative evidence of an improper plea.

The defendant also argues that the fine he paid in connection with the 2006 DWI charge was excessive and thus constitutes a procedural irregularity sufficient to shift the burden back to the State to prove his plea was valid. This argument has no merit.

IflAn excessive fine is a sentencing issue that- must be addressed pursuant to La. Code Crim. Proc. art. 882; it has no bearing on the validity of a plea for purposes of recidivist DWI prosecutions.

Accordingly, we grant ,the State’s writ and reverse the ruling of the district court dismissing its appeal. We further reverse the ruling of the district court as to the defendant’s Motion to Quash, and.remand this matter for further proceedings.

WRIT GRANTED, MOTION TO DISMISS REVERSED; JUDGMENT ON MOTION TO QUASH, REVERSED; REMANDED

      . This Court reversed the district court’s earlier ruling granting a motion to quash the habitual offender bill and remanded the case to the district court for further proceedings. State v. Granier, 15-0608 (La.App. 4 Cir. 10/28/15), 178 So.3d 1106.

      . Both parties agreed at oral argument that the standard operating procedure in Criminal District Court is to present a motion to the minute clerk of the division for signing and dating. The minute clerk then flies the motion into the record, and the clerk of court distributes the appropriate notices.

      . Courts may properly take judicial notice only of facts that may be regarded as forming part of the common knowledge óf every person of ordinary understanding and intelligence. Perez v. Evenstar, Inc., 12-0941 (La. App. 4 Cir. 1/30/13), 108 So.3d 898.

      . See also, State v. Shelton, 621 So.2d 769, 779 (La. 1993)("[w]hen a defendant denies the allegations contained in the bill of information in an habitual offender proceeding, the burden is on the State to prove' the existence of the prior guilty pleas and that the defendant was represented by counsel when they were taken, If the State meets this initial burden, the defendant must produce affirmative evidence showing an infringement of his rights or á procedural irregularity in the taking of his plea.).


author: THIBODEAUX, Chief Judge.

text:
    Athid PHAENGPHAN and Thinutta Anupat, etc. v. Gabriel CASTILLO, et al.
    17-116
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017
    William Allen Repaske, Landry, Watkins, Repaske & Breaux, P. O. Drawer 12040, New Iberia, LA 70560, Telephone: (337) 364-7626, COUNSEL FOR: Plaintiff/Appellant—Thinutta Anupat
    Bruce David Beach, Law Offices of Keith S. Giardina, 9100 Bluebonnet Centre Boulevard—Suite 300, Baton Rouge, LA 70809, Telephone: (225) 293-7272, COUNSEL FOR: Defendants/Appellees—Liberty Mutual Insurance Company, Zachary Louviere, and Pioneer Coiled Tubing Services, LLC

      Sean P. Rabalais, 11550 Newcastle Avenue—Suite 200, Baton Rouge, LA 70816, Telephone: (337) 347-0096, COUNSEL FOR: Defendants/Appellees—Progressive County Mutual Insurance Company and Gabriel Castillo
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   THIBODEAUX, Chief Judge.

hThinutta “June” Anupat appeals the award of general damages for a car collision following a final judgment from a jury verdict. Plaintiff contends that the $3,000 awarded for general damages was abusively low given the nature and extent of her injuries. Defendant-Appellee, Zachary Louviere, asserts that the general damages award was reasonable and supported by the evidence. Ms. Anupat’s injuries sustained in the collision impacted her ability to care for her family, and her family-faced financial hardship. Because we find the trial court abused its discretion and that the award of general damages was abusively low, we affirm the judgment of the trial court in favor of Ms. Anupat but increase the general damages award to $12,500.

I.

ISSUES

We must decide whether the trial court abused its discretion in awarding $3,000 in general damages. If so, we must then determine the lowest amount the trier of fact could have reasonably awarded the plaintiff under the particular facts and circumstances of this case.

II.

FACTS AND PROCEDURAL HISTORY

Ms. Anupat was injured in a multi-vehi-cle collision on June 16, 2013. On the date of the collision, Ms. Anupat and her four children were passengers in a truck driven by her husband, Mr. Phaengphan. Gabriel Castillo was rear-ended by Zachary Louvi-ere, -causing him to rear-end Mr. Phaeng-phan’struck.

12At the scene of the collision, a police officer asked if everyone was okay and Ms. Anupat answered affirmatively after evaluating the physical condition of her children. Shortly .thereafter, while filling out an accident report, Ms. Anupat complained of dizziness and needed her daughter to complete the remainder of the report. Ms. Anupat was taken from the scene of the accident to the hospital by ambulance after experiencing dizziness and vomiting in addition to pain in her back, neck, and head.

The hospital ran multiple diagnostic tests and gave Ms. Anupat morphine for pain and ondansteron for nausea. While in the emergency room, Ms. Anupat’s pain score decreased from nine out of ten to three out of ten, but her pain did not completely' subside. The notes from Ms. Anupat’s emergency room visit thoroughly documented Ms. Anupat’s headache, vomiting, and back, neck, and arm pain. Ms. Anupat was discharged and provided with instructions that she may experience increased soreness the following day as is common after accidents. Ms. Anupat was prescribed naprosyn as needed for pain and followed up with an outside physical medicine and rehabilitation specialist, Dr. Joseph Bozzelle, Jr. Ms. Anupat saw Dr. Bozzelle six times from July 10, 2013 to December 11, 2013. Dr. Bozzelle prescribed tramadol for Ms. Anupat’s pain and his notes reflect that Ms. Anupat experienced improvement of her symptoms over time. Dr. Bozzelle also noted that there was a causal link between her symp-’ toms and injuries and the car accident. Throughout her visits to Dr. Bozzelle, Ms. Anupat reported lower back pain, right shoulder pain, and pain and numbness in her right arm. Ms. Anupat received six months of medical treatment for her injuries and incurred $12,757 in special damages.

| aAfter the car accident, the Anupat/Pha-engphan family unit was disrupted by fin'anciál hardships related to the accident. Mr. Phaengphan was injured in the accident and was unable to work as a welder. Ms. Anupat was unable to care for her children and was unable to pick up her infant who was approximately one year old at the time óf the ■ accident. When Ms. Anupat’s husband was no longer able to work because of his injuries, she sought employment as a'cook at a Thai restaurant. Her employment notably aggravated her arm injury. Prior to the accident, Ms. Anupat was the primary caretaker for their children. The family’s financial situation necessitated that Ms. Anupat seek employment outside of the home for the first time in order to provide for the family even though Ms. Anupat’s pain was exacerbated by motion and the lifting required for her job.

As Ms. Anupat joined the workforce, she struggled to care for her children and provide for the family. Ms. Ahupat’s grandmother traveled from Thailand to stay with the family and to help her care for the children. Ms, Anupat worked for long hours and both Ms. Anupat’s and Mr. Phaengphan’s injuries prevented them from caring for the children without help. Ms. Anupat’s grandmother returned to Thailand, and her mother came over from Thailand to help with childcare for six months after the accident. After six months, Ms. Anupat’s mother needed to return to Thailand, but Ms. Anupat and Mr. Phaengphan still required help with childcare. Under these trying circumstances, the family sent the youngest child to live in Thailand with the maternal grandmother for two years. Ms. Anupat’s physical limitations and the family’s financial hardship were substantial. This trauma was further compounded by the emotional distress of sending her young child to live in another country.

STANDARDS OF REVIEW

Vast discretion is afforded to the trier of fact in fixing an award of general damages. La.Civ.Code art. 2324.1; Menard v. Stroy, 16-609 (La.App. 3 Cir. 12/21/16), 210 So.3d 302 (citing Hollenbeck v. Oceaneering Int’l, Inc., 96-377 (La.App. 1 Cir. 11/8/96), 685 So.2d 163, writ denied, 97-493 (La.App. 1 Cir. 4/4/97), 692 So.2d 421). Accordingly, a damage -award should not .be disturbed by an appellate court absent, an abuse of discretion. Lewis v. Progressive Paloverde Ins. Co., 13-617 (La. App. 3 Cir. 11/6/13), 125 So.3d 581.

IV.

LAW AND DISCUSSION

Ms. Anupat asserts that the award of general damages was below that which a reasonable trier of fact should have awarded based on her injuries. This appeal calls for a review of the trial court’s award of general damages, which requires this court to look to “the individual circumstances of the case.” Lewis, 125 So.3d at 583 (quoting Plaissance v. McDonald, 03-1043, p. 4 (La.App. 3 Cir. 2/4/04), 865 So.2d 1004, 1008, writ denied, 04-585 (La. 4/23/04), 870 So.2d 305). Here, Mr. Louviere contends that the jury awarded general damages of $3,000, which was $1,500 per week for a two-week injury. The record clearly establishes that'Ms. Anupat had six months of injuries, not a two-week injury. While Ms. Anupat testified that her other pain resolved after two-weeks, the medical evidence documented that her right arm pain and numbness continued thereafter and required medical attention.

IfiMr. Louviere argues that if this court reaches a different conclusion, the jury could have reasonably concluded that Ms. Anupat’s injuries were from a subsequent accident. Although an assertion- is made that a subsequent accident could have been interpreted by the jury as the cause for Ms. Anupat’s right arm injury, the record is devoid of evidence that supports an intervening or contributing cause which would have altered the impact of the injury from the June accident, which preceded Ms. Anupat’s subsequent car accident.

Mr. Louviere heavily emphasises that trial testimony from Ms. Anupat could have left the jury with concerns about her credibility and, thus, the lower award was merited by the trier of fact’s concerns about credibility. Mr. Louviere contends that Ms. Anupat’s testimony about the resolution of her other symptoms after two weeks, and her husband’s employment before and after the accident supported the jury’s general damage award. A review of the record does not support a finding that a credibility issue existed from the testimony provided by Ms. Anupat at trial.

Mr. Louviere describes Ms. Anupat’s injuries as mild and temporary, asserting that at trial Ms. Anupat testified that she was not moved around in the car upon impact during the collision and told a police officer and the other driver that everyone was okay. However, the record clearly established that Ms. Anupat had well-documented pain at the scene of the accident, in the ambulance, at the emergency room, and with the specialist for six months following the car accident.

Furthermore, Mr. Louviere contends that Ms. Anupat had no work restrictions and continued to work despite-the fact that Ms. Anupat’s injuries were exacerbated by her employment as a cook. Ms. Anupat only sought employment] for the first time to mitigate the financial burden on the family because her husband could no longer work as a welder after the car accident,

Mr. Louviere further contends that most of Ms. Anupat’s medical expenses were incurred on the day of the accident. However, at issue before this court is the general damages award. This court has noted that' “when reviewing an'award of general damages for an abuse ’of discretion we must also focus on the total award.” Stewart v. Select Ins. Co., 93—666, p. 601 (La. App. 3 Cir. 2/2/94), 631 So.2d 599, 601, writ denied, 94-545 (La. 4/22/94), 637 So.2d 159. Ms. Anupat had six months of follow-up visits with a specialist—well beyond medical expenses incurred in the emergency room solely on the date of the accident.

Ms.. Anupat suffered emotionally from the accident, because she was not able to care for her children and had to send her young child to Thailand. Consequently, she suffered beyond what Mr. Louviere refers to as a mild and temporary physical injury.

Following a 'finding that the trial court abused its discretion, this court look's to amend the award of general damages. This court noted in Lewis v. Progressive Paloverde Ins. Co., that “[o]nly after an abuse of discretion is disclosed-by an articulated analysis of the- facts is an examination of prior awards in similar cases proper.” Lewis, 125 So.3d at 583 (quoting Plaissance, 865 So.2d at 1008). This court has held that after a finding that the trial court abused its discretion, an appellate court may amend the award by “lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that.court.” Deligans v. Ace Am. Ins. Co., 11-1244, p. 3 (La.App. 3 Cir. 3/7/12), 86 So.3d 109, 112 (quoting Wainwright v. Fontenot, 00-492, p. 6 (La. 10/17/00), 774 So.2d 70, 74) (citations omitted).

|7In Deligans, this court affirmed the trial court’s judgment in favor of a young mother involved in an auto accident which exacerbated her pre-existing TMJ, causing jaw pain, low back pain, shoulder pain, headaches, and neck pain. Id. We found that the trial court abused its discretion in its award of general damages for $9,000 for past physical pain and suffering, $3,000 for future physical pain and suffering, $9,000 for past mental pain and suffering, and $600 for future mental pain and suffering. Id. In Deligans, this court determined that the lowest amount the jury could have awarded the plaintiff for past physical pain and suffering was $20,000. We increased the award of $1,200 to $5,000 for future loss of enjoyment after concluding that the plaintiff could no longer participate in recreational activities with her children such as skiing, tubing, and fishing at their camp. Id. The trial testimony reflected the plaintiff saw a decrease in her quality of life and was unable to perform household chores and experienced a loss of enjoyment of her life with her husband and children. Id.

In Edwards v. Geico Indemnity Co., 14-606 (La.App. 3 Cir. 3/18/15), 167 So.3d 957, this court reduced the award of damages from $30,000 to $15,000, finding that the trial court abused its discretion when the trial court awarded general damages to each plaintiff and one of the plaintiffs sought medical treatment for several months for lower back pain and right knee pain as well as tenderness in the lumbar and cervical spine regions. Id.

A review of the record in this case reveals that the trial court abused its discretion in awarding $3,000 in general damages to Ms. Anupat. Other similarly-situated plaintiffs received substantially higher general damages awards for loss of enjoyment of life, and for the inability to partake in recreational activities. We conclude that Ms. Anupat should receive $12,500 for the six months of injuries, the lowest amount the trier of fact could have awarded Ms. Anupat based on the facts and circumstances of the case. Thus, we affirm the trial court’s judgment in favor of Ms. Anupat but amend the trial court’s award of general damages by increasing it to $12,500.

V.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s judgment in favor of Ms. Anupat but increase the general damages award from $3,000 to $12,500. All costs are assessed to the Defendants-Appellees.

AFFIRMED AS AMENDED.