author: PER CURIAM. MAKAR, J.,

text:
    CONSULATE HEALTH CARE and Gallagher Bassett Services, Inc., Petitioners, v. Reina Mifon HO, Respondent.
    CASE NO. 1D16-3808
    District Court of Appeal of Florida, First District.
    Opinion filed February 24, 2017.

      William H. Rogner, Winter Park, for Petitioners.
    Victor Arias of Victor Arias, P.A., Cape Coral, for Respondent Reina Mifon Ho; and Stephanie R. Hayes of the Office of the Judges of Compensation Claims, Tallahassee, for Respondent Edward R. Almey-da.
   PER CURIAM.

In this workers’ compensation case, the employer and its third-party administrator (Petitioners) seek a writ of prohibition to quash the order denying their motion to disqualify the Judge of Compensation Claims (JCC). We grant the petition for the reasons that follow.

The motion to disqualify was based on a comment allegedly made by the JCC after a lengthy video teleconference (VTC) hearing that was inadvertently picked up by the VTC equipment and overheard by Petitioners’ attorney. Specifically, the motion alleged that “[fjollowing the dismissal of counsel and the party, the [JCC] turned in his chair, and spoke to an off camera staff member, saying ‘was I nice and sweet and patient to let the attorney talk on and on and on ad nauseam’?” The JCC summarily denied the motion as legally insufficient.

We agree with the JCC that the motion was legally insufficient. The comment attributed to the JCC did not specifically single out Petitioners' attorney as the loquacious one, and even if it had, that would not establish an objectively reasonable basis for Petitioners to fear that the JCC was biased against them. See Letterese v. Brody, 985 So.2d 597, 599 (Fla. 4th DCA 2008) (finding motion to disqualify based on judge’s comment that he had heard the parties’ arguments “ad nause-um” to be legally insufficient and explaining that although “[a] judge must not be unduly biased against a party or prejudge a matter [ ], after hearing the evidence and arguments, a judge must be permitted to ‘judge’ ”).

Notwithstanding the legally insufficiency of the motion, we are compelled to grant the petition because the response voluntarily filed on behalf of the JCC by the Office of Judge of Compensation Claims (OJCC) attempted to refute the alleged partiality of the JCC by asserting—without any record support—that JCC “did not interrupt or raise his voice to counsel” and that he “allowed both sides to fully make their arguments, resulting in what would normally be a 5 to 10 minute hearing lasting over an hour.” This was improper because it effectively placed the JCC in an adversarial posture with Petitioners by impermissibly suggesting that the allegations in the motion to disqualify were an incomplete account of the factual circumstances bearing on the JCC’s impartiality. See Ellis v. Henning, 678 So.2d 825, 827 (Fla. 4th DCA 1996) (granting petition for writ of prohibition because even though response filed on behalf of the trial judge did not directly controvert the allegations in the motion for disqualification, it did so indirectly by “unmistakably conveying] the impression that [the movant’s] allegations are an incorrect and incomplete account of the factual circumstances”). The fact that the response was filed by the OJCC rather than the JCC himself is immaterial. Fabber v. Wessel, 604 So.2d 533, 534 n.1 (Fla. 4th DCA 1992), disapproved on other grounds, Enterprise Leasing Co. v. Jones, 789 So.2d 964 (Fla. 2001); see also Valltos v. State, 707 So.2d 343, 344-45 (Fla. 2d DCA 1997) (explaining that the principle that a judge’s attempt to refute the charges of partiality exceed the proper scope of inquiry and will result in the judge’s disqualification applies with equal force to a response filed on the judge’s behalf in a prohibition proceeding in the appellate court).

In light of this disposition, we take this opportunity to remind the OJCC that it is under no obligation to file a response in a pi-ohibition proceeding such as this unless the court specifically orders it to do so. See Fla. R. App. P. 9.100(e)(3) (stating that “the responsibility for responding to a petition is that of the litigant opposing the relief requested in the petition” and that “[ujnless otherwise specifically ordered, the judge or lower tribunal has no obligation to file a response”); see also Fabber, 604 So.2d at 534 (“Although we do not hold that any response filed by a judge in a prohibition-disqualification proceeding is per se disqualifying, it is decidedly dangerous for the judge to do so. ... It is much the better practice ... for the judge to remain silent and let the adversarial party supply the response. The judge has no personal interest in presiding over any particular case, and the petitioner’s adversary in the lower court can usually be counted on to show why disqualification is not necessary.”). However, if the OJCC chooses to file a response on behalf of the JCC, it must limit the response to the legal sufficiency of the motion and avoid the temptation to factually refute—either directly or indirectly—the allegation of partiality as it did in this case. See Ellis, 678 So.2d at 828.

Accordingly, for the reasons stated above, we grant the petition for writ of prohibition and quash the order denying Petitioners’ motion to disqualify the JCC. We withhold issuance of the formal writ because we are confident that the Deputy Chief Judge of Compensation Claims will promptly reassign this case to another JCC.

PETITION GRANTED.

WETHERELL and KELSEY, JJ., CONCUR. MAKAR, J., CONCURS IN RESULT WITH OPINION.

MAKAR, J.,

concurring in result.

While the legally-correct result is reached in this case, I don’t fully share the views expressed in Fabber v. Wessel, 604 So.2d 533, 534 (Fla. 4th DCA 1992), disapproved of by Enterprise Leasing Co. v. Jones, 789 So.2d 964 (Fla. 2001), particularly that it is “decidedly dangerous” for a response on behalf of a judge to be filed in a prohibition-disqualification proceeding, and that the “better practice” is “for the judge to remain silent and let the adversarial party supply the response.” The claim that a “petitioner’s adversary in the lower court can usually be counted on to show why disqualification is not necessary” has not proven to be true, at least in my thirty years of experience. While a judge shouldn’t have a “personal interest in presiding over any particular ease,” 604 So.2d at 534, a judge surely has a professional interest in assuring that an adequate response is provided in prohibition-disqualification proceedings. Relying solely on the adverse party places too much responsibility on that party; and it creates the potential for a perceived bias to be created that the judge favors the adverse party (after all, the adverse party is expected to defend the trial judge’s legal acumen, if not integrity, under Fabber). All this is too much to expect from a lawyer or law firm that often has little or no interest in expending time and resources on the preparation of an appellate brief that the client may be unwilling to fund. For these and other policy reasons, it may well be the Office of the Judges of Compensation Claims has decided to provide responses as a matter of course, which would be commendable. The isolated statements in its brief in this case that conflict with the petitioner’s statement of facts—though of the type that likely led the court in Fabber to caution against judicial filings in prohibition-disqualification proceedings—are preventable and not so inherently “dangerous” as to jettison representation unless called upon by this Court.


source: Caselaw Access Project

author: KELSEY, J. MAKAR, J.,

license: Public Domain

text:
    Michael D. PATTISON, Appellant, v. Terry Lynn PATTISON, Appellee.
    CASE NO. 1D16-0615
    District Court of Appeal of Florida, First District.
    Opinion filed February 24, 2017.

      William L. Ketchersid and A. Richard Troell of Ward & Ketchersid, P.A., Destín, for Appellant.
    Terry Lynn Pattison, pro se, Appellee.
   KELSEY, J.

The order on appeal in this post-dissolution proceeding finds Appellant, the former husband, in contempt for failing to pay alimony. Former Husband does not dispute his failure to pay. He challenges provisions of the order that operate prospectively as automatic findings of future contempt punishable by immediate incarceration without further hearing for any of Husband’s future failures to make the required monthly payments of alimony and arrearages. We conclude that the trial court erred in ordering automatic future contempt and incarceration, and we reverse those provisions of the order. We affirm in all other respects.

The trial court found that Former Husband had the ability to pay alimony and arrearages and had willfully failed to do so (specifically, that the nonpayment was “dilatory and egregious” and his attempts to make excuses were “an insult to all who have heard this case”). The court then imposed the following conditions on Former Husband’s future performance of his obligations (emphasis added):

As punishment for contempt, the Former Husband is sentenced to eleven (11) months and twenty-nine (29) days in the Okaloosa County Jail suspended upon compliance with the remaining terms of this order. To purge himself of contempt, beginning February 1, 2016, and due on the first day of each month thereafter, the Former Husband shall pay the full amount of regular ongoing monthly alimony in the amount of $1,493.00 plus $250.00 to be applied toward the remaining established arrear-age. ALL payments shall be made through the Clerk of Court Central Depository along with the Clerk’s fee.
Upon non-compliance with the terms of Section 4(b) above [alimony obligations and arrearages], the Former Wife shall file an affidavit of non-compliance and contact the Family Law Case Manager at (850) 609-5495. Without further hearing, the suspended sentence shall then be reinstated and the Court shall issue a Writ of Bodily Attachment remanding the Former Husband into the custody of the Okaloosa County Sheriff’s Department to serve his sentence.

While an automatic finding of contempt and immediate incarceration for future nonpayment has efficiency on its side, and is perhaps an understandable reaction given the protracted and contentious history of this litigation and Former Husband’s willful failures to make required payments that Former Wife desperately needs, such an automatic, prospective arrangement fails the due process test. The trial court certainly has discretion to fashion a contempt order sufficient to coerce Former Husband’s compliance with his support obligation. Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla. 1985). However, a court may order incarceration for civil contempt upon intentional violation of a court order only after finding that the contemnor has the 'present ability to purge the contempt and refuses to do so. Id.; see also Pugliese v. Pugliese, 347 So.2d 422, 424 (Fla. 1977) (“[I]t is said that the con-temnor ‘carries the key to his cell in his own pocket.’ ”); Ponder v. Ponder, 438 So.2d 541, 543 (Fla. 1st DCA 1983) (“[I]n every case, present ability to pay the purge amount is a necessary predicate to committing a civil contemnor to jail for failing to comply with the court’s order.”). The trial court’s order deprived Former Husband of his due process right to defend against any future allegations of non-payment by showing either that he had made the payment, or that he is not at that time able to pay through no fault of his own.

We agree with the Fourth District’s analysis in a case directly on point, Hipschman v. Cochran, 683 So.2d 209, 210 (Fla. 4th DCA 1996). The order at issue in Hipschman, like the order now before us, required future payments of alimony, failing which the former wife and her counsel were permitted to file an affidavit of nonpayment that would result in immediate issuance of a writ of bodily attachment and incarceration. 683 So.2d at 210. We agree with our sister court’s conclusion that such an order violates due process requirements, as follows:

It is clear that civil contempt orders may not provide for incarceration based on future, anticipated noncompliance with a court’s periodic support order. Phillips v. Phillips, 502 So.2d 2 (Fla. 4th DCA 1986); Miller v. Miller, 587 So.2d 601 (Fla. 5th DCA 1991). There must be a hearing before incarceration, where a contemnor may challenge the allegation of noncompliance and defend on the ground that he does not have the present ability to pay under Bowen.

Hipschman, 683 So.2d at 211. This analysis and conclusion apply with equal force here.

Accordingly, we AFFIRM the trial court’s finding of contempt, but REVERSE the improper provisions of the contempt order and REMAND to the trial court to fashion a remedy, consistent with due process, sufficient to ensure that the Former Husband complies with his financial obligation.

WINSOR, J., CONCURS; MAKAR, J., CONCURS WITH OPINION.

MAKAR, J.,

concurring.

After a pre-incarceration hearing involving pro se former spouses, the trial court held the former husband in contempt for willfully violating court orders to pay past-due alimony ($5,945.50) to his disabled former wife (who has “serious health issues requiring a special dietary formula through a feeding tube”) despite having the present ability to do so (he makes $175,000 yearly), sentencing him to just short of a year in jail. The trial court found that the former husband’s non-payment was “egregious,” if not worse (“The word evil comes to my mind. Greed comes to my mind.”). The trial court’s written order provided for a purge of contempt if the former husband (a) repaid the past-due alimony via monthly $250 payments, plus (b) timely paid all future monthly alimony obligations, short of which the former husband would go to jail without another hearing.

Called into question is whether a second pre-incarceration hearing is required under due process principles, making it important to distinguish between future payment of future alimony obligations versus future payment of past-due, accrued alimony that formed the basis of the current contempt order (both forms of future payments are woven together in the order).

As to the future payment of future alimony, the order is faulty by failing to provide any hearing at all. It is necessary under basic principles of due process to accord notice and a pre-incarceration hearing because the former husband might encounter significant, unforeseen economic hardships in the future that might warrant judicial reconsideration of his ability to comply with a court order. See Hipschman v. Cochran, 683 So.2d 209, 212 (Fla. 4th DCA 1996) (en banc) (“For nonpayment of future support obligations, a hearing comporting with due process requirements is always necessary to determine both the fact of nonpayment and whether the defaulting payor has the ability to pay such amount before any incarceration may begin.”). On that basis, this portion of the order must be stricken; the former husband must be accorded due process via notice and hearing should contempt be sought as to his future non-payment of future alimony obligations. On this basis, such a hearing would not be a second pre-incarceration hearing; it would be the initial hearing on the issue of non-payment of future alimony obligations.

More nuanced is what pre-incarceration process is due if the former husband fails to make the monthly $250 payments for the $5,945.50 of past-due, accrued alimony that he willfully failed to pay, resulting in a finding of contempt. As discussed in Hipschman, a second pre-incarceration hearing is not legally required in all circumstances. Id. (noting that cases involving future payment of future obligations “are not analogous to the situation where incarceration is ordered for non-compliance with past, accrued and unpaid support obligations—i.e., arrearages”). For example, where a trial court determines after a contempt hearing that a former spouse “had not made court ordered payments and had the ability to purge within a short time frame .... due process does not automatically require a second hearing before arrest on the question of whether the contemnor has the ability to pay the purge amount.” Id. (noting that “[njeither constitutional principle, nor rule of procedure, nor common sense impose the requirement of an additional pre-in-carceration hearing on a busy trial court to reconsider fact issues already determined”). Nothing precludes a trial court from requiring payment immediately or within a “relatively brief purge period” provided adequate findings are made as to the present ability to pay immediately or during such period. Id. Thus, had the order in this case concluded that the former husband had the present ability to either make full payment immediately in a lump sum or, alternatively, via a series of partial payments over a “relatively brief’ period of time, a second pre-incarceration hearing would be unnecessary. Though the trial court concluded that the former husband “had and continues to have the ability to pay the amounts owed,” it required the payment of $250 monthly over almost 24 months, which exceeds what would ordinarily be deemed a “relatively brief purge period.” Much can happen in two years.

More importantly, the trial court’s order put in the former wife’s hands the ability to trigger the former husband’s incarceration without due process. As discussed in Hipschman, holding a second pre-incarcer-ation hearing is “indispensable” such as where a judicial contempt order:

specifies compliance extra-judicially, i.e., by performance outside the auspices of the court or its adjuncts. Here, the court ordered the husband to make his purge payment directly to the wife. We believe that in this instance the court must allow an additional, pre-incarceration hearing on whether the contemnor has actually complied during the purge period. This is necessary to avoid the situation where the moving party misrepresents whether performance has been sufficient to comply, an occasion might arise in a hotly contested ease where the temptation is great to use the court’s coercive powers for the movant’s own ends.

Id. at 212-13 (footnotes omitted). Because the trial court’s order placed its enforcement solely in the former wife’s control (she need only file an affidavit of noncompliance and contact the case manager), and explicitly dispensed with any judicial review via a hearing, it is defective. Though the file in this case reflects that many judges have expended much time, effort, and patience on the ongoing post-dissolution disputes between the former spouses, the requirement of a pre-incareer-ation hearing cannot be put aside except under narrow and carefully delineated circumstances, such as those discussed in Hipschman.

Finally, the former husband claims that the trial judge’s “compulsion” to assist the dual pro se litigants went astray to his disadvantage, for instance, “by not only seizing [former husband’s] pleading and ‘redrafting’ it into an impossible absurdity that even Lewis Carrol would find amusing, but then seizing and truncating the presentation of the case and any evidence to support it.” Using golf parlance, he ruminates whether the trial judge has “wanderfed] hopeless into the rough along the fairway” by perhaps “nudgfing] the ball back onto the fairway to speed play for the judge’s own preference.” Oddly, he does not mention the characterization of his non-payment of alimony as “evil,” focusing instead on perceived slights (that the record shows the trial judge did not make) for which he claims entitlement to a do-over. In golf lingo, this claim is a whiff (swinging at and entirely missing the ball) for which no mulligan (a second chance) is allowed.


author: PER CURIAM:

text:
    STATE EX REL. Karl PETERS v. STATE of Louisiana
    No. 16-KH-1574
    Supreme Court of Louisiana.
    02/03/2017
   PER CURIAM:

|!Writ 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). His cumulative error claim is not cognizable. La.C.Cr.P. art. 930.3. Relator’s remaining claims are repetitive and/or unsupported. La.C.Cr.P. art. 930.2; La.C.Cr.P. art. 930.4. We attach hereto and make á part hereof the District Court’s written reasons denying relator’s application.

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.

^Attachment


author: .PER CURIAM

text:
    Jackie DOUCET et al. v. DARWIN SELECT INSURANCE COMPANY et al.
    No. 2016-C-1989

      Supreme Court of Louisiana.
    02/03/2017
   .PER CURIAM

11Writ granted. For the reasons set forth below, we reverse the lower courts’ rulings and hereby grant summary judgment in favor of the defendant, Allied World Insurance Company. An insurance policy is a conventional obligation that constitutes the law between the insured and the insurer. Peterson v. Schimek, 98-1712 (La. 3/2/99), 729 So.2d 1024; La. C.C. art. 1983. The intent of the parties is to be determined in accordance with the words and phrases used in a policy, and these words and phrases are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. Id.; La. C.C. art 2047. The court of appeal in this case committed legal error in finding that ambiguity exists as to the language used in the insurance policy.

The plaintiff, according to his own petition, was employed as a deputy sheriff and was an employee of the Evangeline Parish Sheriffs Department when he was injured in the course and scope of his employment. According to his petition, the plaintiff was injured while supervising trustee inmates at the Sheriffs Department’s automobile repair shop. The plaintiff leaned back while sitting in a chair, which gave way, causing him to fall onto the concrete floor, injuring his | aright shoulder and arm. The plaintiff and his wife eventually brought a tort action against the Sheriffs Department, the Sheriff, and their insurer, Allied World. In the petition, the plaintiff alleged inter alia that the accident was caused by a defective chair owned by the Sheriffs Department and located on premises occupied by the Department. The plaintiff alleged the defective chair created an unreasonable risk of injury, that the Department or the Sheriff knew or should have known that the chan* could expose the user to injury, and that the Department was negligent in failing to maintain the chair. The insurer later moved for summary judgment asserting there was no coverage for the alleged accident under its Police Professional Liability Policy. The trial court found ambiguity in the provisions of the policy and denied summary judgment as to coverage under the policy. The court of appeal affirmed in an unpublished decision. Doucet v. Darwin Select Ins. Co., 16-131 (La. App. 3 Cir. 10/5/16), 2016 WL 5815260. After reviewing the matter de novo, we find the lower courts committed legal error in interpreting the insurance policy to find ambiguity as to general liability coverage and thus reverse those rulings.

The Police Professional Liability Policy in this case obligated the Insurer to pay on behalf of the Insured “Loss which the Insured is legally obligated to pay as a result of a Claim...for a Law Enforcement Wrongful Act....” A Law Enforcement Wrongful Act is defined in the policy as “an actual or alleged act, error or omission, neglect or breach of duty by an Insured: (1) which arises out of and is committed during the course and scope of Law Enforcement Activities, or (2) which arises out of the ownership, maintenance and use of Premises by the Insured for the purpose of conducting Law Enforcement Activities; and which results in Personal Injury, Bodily Injury or Property Damage.” Law Enforcement Activities is defined in the policy as “law enforcement-related duties conducted by any Insured for or on behalf of the Named Insured....” The plaintiff rests his claim |son the “neglect or breach of duty by an Insured” arising out of Law Enforcement Activity or the use of Premises by the Insured for such Activity.

However, the alleged accident did not arise out of the use of a scheduled Premise as identified in the policy itself. The language therein is clear that Premises is defined as “the location in ITEM 1. of the Declarations,” “any jail, holding cell or lock-up facility, owned or leased by, and operated by, the Named Insured at the location designated in ITEM 1. of the Declarations,” and “any other location specifically scheduled in an Endorsement to this Policy.” ITEM 1. on the Declarations page provides the address of 200 Court Street, Suite 100, Ville Platte, Louisiana. Endorsement PGU 1043 to the policy lists 415 West Cotton, Ville Platte, Louisiana, as additional covered Premises. The facts are not in dispute that the subject accident, which occurred at an automobile repair shop located at 412 South Soileau Street, Ville Platte, Louisiana, did not occur at either of the scheduled locations identified in the policy.

Additionally, the policy specifically excluded “Personal Injury or Bodily Injury to an employee of the Insured arising out of and in the course and scope of employment by the Insured.... ” Personal Injury and Bodily Injury were elsewhere restricted to injuries “alleged against an Insured by an entity or person who is not an Insured.... ” The plaintiff admitted in his petition that he was employed as a deputy sheriff, was an employee of the Sheriffs Department, and was injured while in the course and scope of his employment at the Sheriffs Department automobile repair shop. Applying the ordinary and prevailing meaning of employee, we find the plaintiff was clearly an employee of the Sheriff’s Department and thus an Insured under the policy. Therefore, the plaintiffs claims are not covered by the policy’s definition of Bodily Injury and the specific | .provision excluding coverage for Bodily Injury. The lower courts erred in finding ambiguity in these provisions.

In sum, the subject policy did not provide coverage for injuries sustained by an Insured or an employee of the Named Insured while in the course and scope of his employment, nor did it provide coverage for injuries that did not arise out of Law Enforcement Activities or out of the use of Premises listed on the Declarations page or in any endorsement of the policy. Therefore, under the clear and unambiguous language of the policy, the injuries sustained by the plaintiff in the course and scope of his employment at a location not listed in the policy would not be covered by the policy. The rulings of the lower courts denying Allied World’s motion for summary judgment on coverage are reversed. The case is remanded for further proceedings consistent with these views.

REVERSED AND REMANDED

JOHNSON, C.J., would deny the writ.


author: GENOVESE, J.,

text:
    Sherry LICCIARDI v. Daniel LICCIARDI
    NO. 2017-C-0015
    Supreme Court of Louisiana.
    02/10/2017
   GENOVESE, J.,

would grant and assigns reasons.

Ill respectfully dissent and would grant the writ and docket it. In my view, it is necessary to address whether a trial court’s discretionary authority under La. R.S. 9:2801(A)(4)(d) in partitioning community property “upon such terms and conditions as the court shall direct” includes the authority of the trial court to divert a child support obligation, which is a legal duty owed to the minor children, in satisfaction of a spouse’s community property obligation.


author: CRICHTON, J.

text:
    STATE of Louisiana v. Darrell J. ROBINSON
    NO. 2017-OK-0012
    Supreme Court of Louisiana.
    02/10/2017
   CRICHTON, J.

additionally concurs and assigns reasons:

hi agree with the Court’s order that the motion for leave to file an amicus curiae brief should be denied, as it is not in compliance with Louisiana Supreme Court Rule VII, § 12. Specifically, there is no pending application before this Court involving this defendant’s proceedings, and therefore, no legal recourse we can take in response to counsel’s allegations. Moreover, I write separately to note that the brief is submitted by a lawyer, an officer of the court, who is bound by the Louisiana Rules of Professional Conduct. In my view, the filing skirts perilously close to a violation of Rule 3.5(d) of the Rules of Professional Conduct, which prohibits conduct intended to disrupt a tribunal. Furthermore, counsel’s “amicus curiae” brief clearly does not comport with this Court’s unequivocal rule regarding amicus briefs, and as a result, in my view, could be considered a frivolous filing, which is prohibited by Rule 3.1 of the Rules of Professional Conduct.


text:
    IN RE: Michael l. THIEL
    NO. 2017-B-0104
    Supreme Court of Louisiana.
    02/09/2017
   ORDER

h Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel, and the response thereto filed by respondent,

IT IS ORDERED that Michael L. Thiel, Louisiana Bar Roll number 8491, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

FOR THE COURT:

/s/ Jefferson D. Hughes, III JUSTICE, SUPREME COURT OF LOUISIANA


author: CRICHTON, J.,

text:
    Gustave LABARRE, Jr. et al. v. OCCIDENTAL CHEMICAL CORPORATION, et al.
    NO. 2017-CC-0064
    Supreme Court of Louisiana.
    02/10/2017
   CRICHTON, J.,

would grant and assigns reasons

_jjl respectfully dissent from the denial of this writ application and would grant the defendant’s writ application to reverse the trial court’s ruling. Specifically, I find that under La. C.E. Art. 508, the deposition testimony of Vulcan’s Vice President and Associate General Counsel “is essential to the successful completion of an ongoing investigation, is essential to the case of the party seeking the information, and is not merely peripheral, cumulative, or speculative.” La. C.E. Art. 508(A)(1). While I recognize that pre-trial discovery matters are generally left to the great discretion of the trial court, in my view, the trial court in this instance abused its discretion in denying the Motion to Compel the deposition of Vulcan’s Vice President and Associate General Counsel. In this protracted, complex, and difficult litigation, the information concerning Vulcan’s post-2007 document retention and deletion policies is crucial to discovery in this matter, and there does not appear to be an alternative means by which to obtain this 1 ¡¡information. Assuming as true the applicant’s assertion that the scope of the deposition is to be narrowed with respect to subject matter and time period, I would grant this writ application to reverse the trial court’s denial of the Motion to Compel and allow the deposition to occur.

      . See, Caminita v. State of Louisiana Through the Dep't of Transportation and Dev., 14-2317 (La. 2/6/15), 177 So.3d 321 (Crichton, J., concurring, questioning whether the exercise of this Court's supervisory jurisdiction is warranted on a pre-trial matter such as a Motion in Limine, quoting then-Associate Justice Catherine D. Kimball's concurring opinion in Lenard v. Dilley, 01-1522 (La. 1/15/02), 805 So.2d 175, 181, which stated that "reviewing decisions stemming from motions in limine is, in my view, an inefficient allocation of this court’s already strained judicial time and resources. ...”). See also, Moak v. Illinois Central Railroad Company, 93-0783 (La. 1/14/94), 631 So.2d 401, 406, reh’g den. 2/10/94 (“[i]t is well established that trial courts in Louisiana have broad discretion when regulating pretrial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse.”) (internal citations omitted).


text:
    STATE of Louisiana v. John C. BROYARD
    No. 2016-K-0102
    Supreme Court of Louisiana.
    02/10/2017
   PER CURIAM:

I,Writ granted. The district court’s order granting defendant’s motion to quash is reversed. A criminal proceeding or case encompasses the time during which the district attorney is determining whom, when, and how to prosecute. See La, C.Cr.P. art. 61. This includes the 90-day or 150-day timeframe the state possesses to charge an individual who has not been kept in continued custody with either a misdemeanor or a felony offense. See La. C.Cr.P. art. 701(B)(2). This matter is remanded to the district court for further proceedings consistent with this order.

JOHNSON, C.J. dissents.

GENOVESE, J„ dissents.


text:
    STATE EX REL. Dax STRATTMAN v. STATE of Louisiana
    No. 2017-KH-0080
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM:

I,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. R. X § 5.

Relator has now exhausted his right to obtain 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 has filed an application for post-conviction relief in the District Court, and the District Court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


author: Hughes, J.,

text:
    Jerry L. JOHNSON and Debbie R. Johnson v. Gary BYRD and Farm Bureau Mutual Insurance Company of Arkansas, Inc.
    No. 2017-CC-0115
    Supreme Court of Louisiana.
    2/24/2017
    HUGHES, J., would grant the writ and assigns reasons.
   Hughes, J.,

would grant the writ and assigns reasons.

|,I respectfully dissent and would grant the writ. The defendant did not solicit or conduct business in Louisiana. He did not advertise in Louisiana; his business was known by “word of mouth.” He did not seek the business, it came to him. His posture was passive, not active.

Furthermore, the action involved, a dog bite, has nothing to do with his engine repair business. Had the dog bitten a neighbor, the mailman, or a salesman the result should be the same. Jurisdiction does not constitutionally lie in Louisiana under these facts.


text:
    STATE EX REL. Felton James LEDET v. STATE of Louisiana
    No. 2015-KH-1978
    Supreme Court of Louisiana.
    02/10/2017
   PER CURIAM:

| denied. Relator’s application was not timely filed in the district court, and he has failed to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. His application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated at least three applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a 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 consfe tent with this per curiam.


text:
    STATE of Louisiana v. Nathaniel Wayne CARMOUCHE
    NO. 2015-KO-2042
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. B, No. 314,389; to the Court of Appeal, Third Circuit, No. 15-264;

| denied.


text:
    Antonio FONTENOT, Individually, et al. v. CITGO PETROLEUM CORPORATION, et al.
    NO. 2016-CC-2060
    Supreme Court of Louisiana.
    November 28, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 2007-2626; to the Court of Appeal, Third Circuit, No. CW16-00906.

I, Denied.


text:
    STATE of Louisiana v. Robert MOSLEY
    NO. 2016-KK-1350
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 515-820; to the Court of Appeal, Fourth Circuit, No. 2016-K-0554

I,WRIT GRANTED IN PART. We find the defendant, as a person charged with violating La. R.S. 14:42(A)(6), has standing to challenge the constitutionality of the statute as it relates to his prosecution for the charged offense. Therefore, we reverse the decision of the district court in part and remand for consideration of the merits of defendant’s motion solely as it pertains to defendant’s claim that the I.Q. cutoff score of 70, considered alone, is arbitrary, rendering the statute unconstitutional.

CLARK, J., would deny.

CRICHTON, J., would deny.


text:
    STATE EX REL. Eric BROWN v. STATE of Louisiana
    No. 2015-KH-1405
    Supreme Court of Louisiana.
    November 29, 2016
   Applying for Rehearing of this Court’s action dated September 23, 2016; Parish of Jefferson, 24th Judicial District Court Div. M, No. 94-5632; to the Court of Appeal, Fifth Circuit, No. 15-KH-395

I í Rehearing denied.


text:
    STATE EX REL., Ronnie CHENEAU v. STATE of Louisiana
    NO. 2015-KH-1900
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 514-830; to the Court of Appeal, Fourth Circuit, No. 2015-K-0964.

| denied.


text:
    STATE of Louisiana v. Terrance MOUTON aka Terrence Mouton
    NO. 2015-KO-1984
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Vermilion, 15th Judicial District Court Div. G, No. 55101; to the Court of Appeal, Third Circuit, No. 15-287

11 Denied.


text:
    STATE of Louisiana v. Joe RILEY
    NO. 2015-K-2010
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 509-505; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0309;

^Denied.


text:
    STATE EX REL. John Love ROBINSON v. STATE of Louisiana
    NO. 2015-KH-2047
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 248,131; to the Court of Appeal, Second Circuit, No. 50,-090-KA

[ denied.


text:
    Deborah Kraft CASEY v. Francis CASEY, III
    NO. 2016-C-1410
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2009^4130; to the Court of Appeal, Fourth Circuit, No. 2015-CA-1269.

11 Denied.

KNOLL, J., would grant.


text:
    LFI FORT PIERCE, INC. v. ACME STEEL BUILDINGS, INC.
    NO. 2016-C-1684
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 16th Judicial District Court Div. D, No. 2013-3395-D; to the Court of Appeal, Third Circuit, No. 16-71

| ¶ Denied.


text:
    DAVID MORTUARY, LLC, et al. v. Royal J. DAVID, et al.
    NO. 2016-C-1687
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. C, No. 126,587; to the Court of Appeal, Third Circuit, No. 15-974; November 29, 2016

h Denied.


text:
    Arniter SIMMONS, Mildred Garner, Pauline Magee, Steffie Patterson, and Wavis Knight v. COOPER/T. SMITH STEVEDORING COMPANY, INC., Ports America Gulfport, Inc. and Hartford Accident and Indemnity Company
    NO. 2016-CC-1688
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 2010-12236; to the Court of Appeal, Fourth Circuit, No. 2016-C-0656

Denied.


text:
    Jeremy WILCOX v. DEPARTMENT OF POLICE
    NO. 2016-C-1691
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil Service Commission City of New Orleans, No. 8185; to the Court of Appeal, Fourth Circuit, No. 2015-CA-1156

| denied


text:
    Nikia ADAMS v. DEPARTMENT OF POLICE
    NO. 2016-C-1692
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Writ of Certiorari and/or Review City Civil Service Commission Orleans, No. 7796; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0146

| í Denied.


text:
    Thomas Clifton KICKLIGHTER, et al. v. SPARKS NISSAN KIA REAL ESTATE, L.L.C.
    NO. 2016-CC-1768
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Ouachita, Monroe City Court, No. 2014-CV-00413; to the Court of Appeal, Second Circuit, No. 51,211-CW

| [Denied


text:
    STATE of Louisiana v. Valerie A. TABB aka Valerie A. Gilbert aka Valerie A. Korn
    NO. 2016-C-1695
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 142742; to the Court of Appeal, Third Circuit, No. 15-1129

11 Denied.

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


text:
    Simone B. GUILLORY v. Samuel S. BROUSSARD, Jr. and Sam Broussard Trucking Co., Inc.
    NO. 2016-C-1707
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. F, No. 119,923; to the Court of Appeal, Third Circuit, No. 15-888.

| denied.

GUIDRY, J., would grant.


text:
    Harold Joe BLACK v. Judge Craig O. MARCOTTE, Former Judges Charles Rex Scott & Sheriff Don Hathaway, Clerk, Gary Loftin, Asst. District Atty. Donna Hall, Asst. District Atty. Brian H. Barber Agent Rick Faaris & April Wright Atty Allan Harris Atty J. Keene, Atty. William D. Hall
    NO. 2016-OC-1700
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 574,799-C; to the Court of Appeal, Second Circuit, Nos. 51,115-CW, 51078-CW;

h Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Gerald E. HOPKINS
    NO. 2016-KK-1779
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Allen, 33rd Judicial District Court Div. B, No. CR-2013-1286; to the Court of Appeal, Third Circuit, No. KW 16-00657.

11 Denied.


text:
    Clovina STEIN v. CITY OF GRETNA, Emergency Medical Services Paramedic Association, Mayor Ronnie C. Harris, ABC and DEF Employees, and XYZ Insurance Company
    NO. 2016-CC-1773
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 678-724; to the Court of Appeal, Fifth Circuit, No. 16-C-530.

| denied.

HUGHES, J., would grant.


text:
    Julius David BOURKE v. EXXONMOBIL CORPORATION, ET AL.
    NO. 2016-CC-2103
    Supreme Court of Louisiana.
    December 1, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2015-8136; to the Court of Appeal, Fourth Circuit, No. 2016-C-1234.

|T Stay denied. Writ denied.

CRICHTON, J., would grant and docket.


text:
    STATE of Louisiana v. Bruce POLLARD and Wendell Jackson
    NO. 2016-KK-2117
    Supreme Court of Louisiana.
    December 2, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 527-423; to the Court of Appeal, Fourth Circuit, No. 2016-K-0900.

liNot considered. Not timely filed. See Supreme Court Rule X, § 5(a).


text:
    STATE Louisiana v. Morgan HUTCHINSON
    NO. 2016-KK-1800
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 04-15-0574; to the Court of Appeal, First Circuit, No. 2016 KW 1007.

h Granted. After reviewing the application, we find the District . Court abused its discretion in granting the defendant’s Motion to Suppress. We reverse and vacate the District Court’s ruling, and we hereby deny the defendant’s Motion to Suppress. Case remanded to the District Court for further proceedings.

HUGHES, J., would deny.


text:
    STATE of Louisiana v. Shawn BARABIN
    NO. 2016-KK-1850
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, No. 15-196384; to the Court of Appeal, First Circuit, No. 2016 KW 1117.

1jWrit granted; case remanded to Court of Appeal to allow applicant to supplement record and provide documentation of second extension to return date.

WEIMER, J., would deny. HUGHES, J., would deny.


text:
    STATE of Louisiana v. Alikeza SADEGHI
    NO. 2016-OK-2052
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 529-944

| j Writ granted. The matter is remanded to the trial court for the purpose of performing the ministerial duty of signing an order of appeal to this Court. See La.R.S. 13:4431.


text:
    STATE of Louisiana v. Ebin ROUSELL
    NO. 2016-KK-1829
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. F, No. 529-075; to the Court of Appeal, Fourth Circuit, No. 2016-K-0893.

LNot considered. Not timely filed. See Supreme Court Rule X, § 5(a).


text:
    Lorraine Elaine ROEBUCK, Wife of Rodney Roebuck v. Rodney Leon ROEBUCK
    NO. 2016-C-1884
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. B, No. 16-0302; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0221.

hNot considered. Not timely filed. See La.S.Ct. Rule X, § 6(a).

KNOLL, J., would grant and consider the merits.


text:
    Jerry SIMMONS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2015-CI-1860
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 631,037; to the Court of Appeal, First Circuit,.No. 2015 CA 0431.

h Denied.


text:
    STATE of Louisiana v. Joshua RECASNER
    NO. 2015-KP-2212
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Reconsideration of this Court’s action dated September 23, 2016, Parish of Orleans, Criminal District Court Div. C, No. 516-586; to the Court of Appeal, Fourth Circuit, No. 2015-K-1059.

1, Reconsideration denied.


text:
    STATE of Louisiana v. Kendrick WARREN
    NO. 2015-KO-1963
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. B, No. 87036; to the Court of Appeal, Second Circuit, No. 50,-147-KA.

| denied.


text:
    STATE of Louisiana v. Francisco HERNANDEZ
    NO. 2015-K-2111
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 08-4643; to the Court of Appeal, Fifth Circuit, No. 14-KA-863.

| Denied.


text:
    STATE of Louisiana v. Tyrone B. JONES
    NO. 2016-KO-0027
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 513-255; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0128.

|, Denied.


text:
    STATE of Louisiana v. Taryn BLUME
    NO. 2016-KK-1818
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 522-905; to the Court of Appeal, Fourth Circuit, No. 2016-K-0795.

| Denied.

HUGHES, J„ would grant.


text:
    Imad F. HAMDAN and Khadija Hamdan v. GEOVERA SPECIALTY INSURANCE COMPANY
    NO. 2016-CC-1834
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 730-579; to the Court of Appeal, Fifth Circuit, No. 16-C-489.

| denied.


text:
    Eric GILLARD, Ray Byrd, Andre Carter, Nicholas Williams, and George Olivier v. CITY OF NEW ORLEANS POLICE DEPARTMENT
    NO. 2016-CC-1840
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil Service Commission City of New Orleans, Nos. 8483, 8483; to the Court of Appeal, Fourth Circuit, No. 2016-C-0752.

| denied.

HUGHES, J., would grant.


text:
    Ginger Leigh HAVARD v. Catherine L. DAVIDSON
    NO. 2016-CC-1847
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 2015-9370; to the Court of Appeal, Fourth Circuit, No. 2016-C-0747.

| denied.


text:
    Amanda BERTRAND v. PROGRESSIVE SECURITY INSURANCE COMPANY
    NO. 2016-CC-1849
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 2014-2898; to the Court of Appeal, Third Circuit, No. CW16-00678.

|! Denied.


text:
    Demitrius PERRODIN, et al. v. CITY OF ALEXANDRIA, et al.
    NO. 2016-CC-1854
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 250,259; to the Court of Appeal, Third Circuit, No. CW 16-00438.

| ^Denied.


text:
    Shawn VERGES v. AMTRUST NORTH AMERICA and Community Leaders Advocacy for Success
    NO. 2016-C-1859
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, Dist. 08, No. 15-03168; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0203.

| TPenied.


text:
    Eliana Amparo SOTO v. Alireza SADEGHI
    NO. 2016-CC-1858
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. K, No. 2014-11550; to the Court of Appeal, Fourth Circuit, No. 2016-C-1054

| TPenied.


text:
    STATE of Louisiana v. RD SANDBOM
    NO. 2016-KK-1891
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. A, No. 525980; to the Court of Appeal, First Circuit, No. 2016 KW 0969.

|! Denied.


text:
    Evelyn J. MENARD v. COX COMMUNICATIONS LOUISIANA, INC. aka CoxCom, Inc., State of Louisiana-Department of Transportation and Development, Entergy Corporation, Parish of East Baton Rouge, and State Farm Mutual Automobile Insurance Company
    NO. 2016-C-1902
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div, I, No. 528,413; to the Court of Appeal, First Circuit, No. 2015 CA 1628.

| TPenied.


text:
    Amon MERRITT and Sandra Merritt v. TEXACO INC., et al.
    NO. 2016-CC-1904
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 2015-10509; to the Court of Appeal, Fourth Circuit, No. 2016-C-0667.

| ^Denied.


text:
    Anthony TOWNSEND v. Max HIMMEL, Chad Himmel, Jerry Himmel, and Himmel’s Hardware & Cabinets, Inc.
    NO. 2016-CC-1914
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 641099; to the Court of Appeal, First Circuit, No. 2016 CW 0571.

| TPenied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Victor BECNEL
    NO. 2016-KK-1864
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. B, No. 15-1943; to the Court of Appeal, Fifth Circuit, No. 16-K-510;

| denied.

WEIMER, J., would grant.

CLARK, J., would grant.

HUGHES, J., would grant.


text:
    Celia Jones BEZOU v. Jacques F. BEZOU
    NO. 2016-C-1869
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 2003-12574; to the Court of Appeal, First Circuit, No. 2015 CA 1879

| denied.


author: PICKETT, Judge.

text:
    Monty RIVERS v. Michael J. DAIGLE, et al.
    16-805
    Court of Appeal of Louisiana, Third Circuit.
    02/01/2017
    Michael P. Corry, Sr., J. Daniel Siefker, Jr., Briney Foret Corry, Post Office Box 51367, Lafayette, LA 70505-1367, (337) 237-4070, COUNSEL FOR DEFENDANT-APPELLEE: Allstate Insurance Company
    Todd A. Townsley, The Townsley Law Firm, 3102 Enterprise Boulevard, Lake Charles, LA 70601-8722, (337) 478-1400, COUNSEL FOR PLAINTIFFS-APPELLANTS: Monty Rivers, Brenda Rivers
    John W. Perry, Jr., Daniel J. Balhoff, John W. Perry, III, Perry, Balhoff, Mengis & Burns, LLC, 2141 Quail Run Drive, Baton Rouge, LA 70808, (225) 767-7730, COUNSEL FOR PLAINTIFFS-APPELLANTS: Monty Rivers, Brenda Rivers
    Charles C, Garrison, Caffery, Oubre, Campbell & Garrison, L.L.P., 800 South Lewis Street, Suite 205, New Iberia, LA 70562-2410, (337) 364-1816, COUNSEL FOR DEFENDANTS-APPELLEES: Louisiana Farm Bureau Casualty Insurance Company, Michael J. Daigle
    Ian A. Macdonald, Jones Walker, Post Office Drawer 3408, Lafayette, LA 70502-3408, (337) 593-7600, COUNSEL FOR DEFENDANT-APPELLEE: Progressive Security Insurance Company
    C. Shannon Hardy, John W. Penny, Jr., Penny & Hardy, Post Office Box 2187, Lafayette, LA 70502, (337) 231-1955, COUNSEL FOR INTERVENOR-AP-PELLANT: Angel Landry Allemand on behalf of her minor child, Megan Daigle
    Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery, Judges.
   PICKETT, Judge.

|,At issue in this appeal is the trial court’s grant of summary judgment dismissing the insurer of two defendants on the basis that the insurer’s policy did not provide coverage for the minor tortfeasor and its denial of the plaintiffs’ cross motion on the same issue. The plaintiffs appeal, arguing the insurer waived its coverage defense; therefore, its policy provides coverage for their claims. For the following reasons, we reverse the judgment of the trial court.

FACTS

On September 22, 2013, Megan Daigle failed to obey a stop sign and collided with a vehicle driven by Monty Rivers. When the accident occurred, Megan was a minor. She was driving a vehicle owned by and provided for her sole use by her father, Michael Daigle. Mr. Daigle and Angel Alle-mand, Megan’s mother, were divorced, and Mrs. Allemand had legal custody of Megan. Megan lived with Mrs. Allemand and her husband, Harris Allemand.

Mr. Rivers was injured in the accident, and he and his wife filed suit against Mr. Daigle; his insurer, Louisiana Farm Bureau Insurance Company; and Progressive Insurance Company, their uninsured/underinsured insurer. On March 25, 2014, the Rivers added Mrs. Allemand as a defendant. Thereafter, on May 9, 2014, they added Megan and Allstate Insurance Company, Mr. and Mrs. Allemand’s insurer, as defendants.

Counsel hired by Allstate filed an answer on behalf of Allstate, Mrs. Allemand, and Megan on May 22, 2014. Thereafter, in June 2014, Allstate notified the Allemands and Megan that its policy excluded coverage because | aMegan was driving a vehicle provided to her by her father. Allstate issued a reservation of rights and hired an attorney to provide a defense to Mrs. Alle-mand and Megan.

In 2015, Allstate filed a motion for summary judgment asserting its policy does not provide coverage for the accident because when the accident occurred, Megan was driving a vehicle owned by her father that he provided for her regular use. The motion asserts that although Megan satisfies its policy’s definition of an insured, she was not operating an insured vehicle when the accident occurred; therefore, the policy does not provide coverage for the accident. Allstate also filed a motion for partial summary judgment, arguing that it did not waive the coverage defense because it urged the defense timely and its actions did not prejudice the Allemands. The Rivers then filed a motion for partial summary judgment in which they argue that Allstate waived its coverage defense because Allstate filed an answer without notifying Mrs. Allemand and Megan of its coverage defense and without hiring separate counsel to represent them in this litigation.

After a hearing, the trial court awarded summary judgment and partial summary judgment in favor of Allstate and denied partial summary judgment as requested by the Rivers. The Rivers appealed.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria as the trial court. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670 (La. 2/26/08), 977 So.2d 839. In order to prevail on a motion for summary judgment, the moving party must “show that there is no genuine issue as to material fact and that [he] is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2).

1 ¡¡Generally, interpretation of an insurance contract concerns a legal question that can be resolved in the framework of a motion for summary judgment. Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945. Insurance policies are interpreted according to the general rules of contract interpretation, and liability insurance policies are interpreted to provide coverage not deny coverage. Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La. 5/22/07), 958 So.2d 634.

Before addressing the Rivers’ claims, we observe that while the Allemands are “the most appropriate parties” to complain of the trial court’s grant of Allstate’s motion for summary judgment, they did not oppose Allstate’s motion and have not appealed the judgment, and Louisiana’s direct action statute, La.R.S. 22:1269(B), provides the Rivers the right to be provided information of any affirmative defenses, including coverage defenses. Breazeale v. T.T., 12-1703 (La.App. 1 Cir. 4/26/13), 117 So.3d 192, writ denied, 13-1852 (La. 11/1/13), 125 So.3d 437.

The Rivers argue Allstate waived its right to assert its coverage defense. Jurisprudence has held that an insurer’s failure to obtain a reservation of rights to contest coverage before assuming the defense of a claim can result in the waiver of the right to contest coverage if the insurer assumes the defense having knowledge of facts indicating a coverage defense may exist. Steptore v. Masco Const. Co., Inc. 93-2064 (La. 8/18/94), 643 So.2d 1213. In Steptore, the supreme court held that a “[w]aiver occurs when there is an existing right, a knowledge of its existence and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that the right has been relinquished.” Id. at 1216. The court explained that this principle is required to Uprotect insureds from conflicts of interest that can arise between insurers and their insureds on coverage issues. Specifically, the supreme court explained:

It is well established that an insurer is charged with knowledge of the contents of its own policy. In addition, notice of facts which would cause a reasonable person to inquire further imposes a duty of investigation upon the insurer, and failure to investigate constitutes a waiver of all powers or privileges which a reasonable search would have uncovered.
Waiver principles are applied stringently to uphold the prohibition against conflicts of interest between the insurer and the insured which could potentially affect legal representation in order to reinforce the role of the lawyer as the loyal advocate of the client’s interest. Accordingly, when an insurer, with knowledge of facts indicating noncover-age under the insurance policy, assumes or continues the insured’s defense without obtaining a nonwaiver agreement to reserve its coverage defense, the insurer waives such policy defense.

Id. (citations omitted).

An insurer’s obligation to its insured includes the duty to defend which is broader in scope than the duty to provide coverage for claims. Steptore, 643 So.2d 1213. The insurer is obligated to defend its insured “unless the petition unambiguously excludes coverage.” Id. at 1218.

Allstate argues that it is entitled to summary judgment because when the accident occurred, Megan was driving a vehicle provided to her by her father for her regular use; therefore, she was not an insured under the terms of its policy. The motion outlined the coverage provided by its policy:

We will pay those damages which an insured person is legally obligated to pay because of:
1. Bodily injury, sustained by any person, and
2. Damage to, or destruction of, property.
Under these coverages, your policy protects an insured person from claims for accidents arising out of the ownership, maintenance or use, loading or unloading of an insured auto.

|fiThe policy defines an “insured person” as any of the following:

1. While using your insured auto:
a. You,
b. Any resident ....
2. While using a non-owned auto:
a. You,
b. Any resident relative using a four wheel private passenger or utility auto.
3. Any person or organization liable for the use of an insured auto if the auto is not owned or hired by this person or organization provided the use is by an insured person under 1 or 2 above.

The policy’s definition of “insured autos” includes the following pertinent definitions:

1. Any auto described on the policy declarations page. This includes the four wheel private passenger auto or utility auto you replace it with.
4. A non-owned auto used by you or a resident relative with the owner’s express or implied permission. This auto must not be available or furnished for the regular use of an insured person.

The original petition named Mr. Daigle, a resident of Lafourche Parish, as a defendant and alleged that Megan was his daughter and in his custody at the time of the accident and that she was driving a vehicle owned by him. The first supplemental and amending petition named Mrs. Allemand, a resident of St. Martin Parish, as a defendant on the basis that she is Megan’s mother and alleged that Megan was residing with and was in her custody.

On April 30, 2014, Allstate employee Michelle Bailey began adjusting the claim. On May 5, 2014, Mrs. Bailey sent a letter to Megan at her home address in Morgan City, informing her that the suit filed against her would be defended by |fian attorney hired by Allstate. The letter stated general information about its policy, the coverage it provided, and that she would be liable for any judgment exceeding the policy’s limits. The letter did not seek a non-waiver agreement or assert any coverage defenses.

The record shows that Allstate hired an attorney to represent the Allemands on or about May 9, 2014, and that on May 15, 2014, the attorney notified Mrs. Allemand that he had been hired to represent her. The attorney filed an answer on behalf of Allstate, Megan, and Mrs. Allemand on May 22, 2014. The letter did not seek a non-waiver agreement or assert any coverage defenses.

Allstate’s adjuster determined on June 23,2014, that a coverage defense should be asserted because Megan may have been driving a car provided for her regular use by her father when the accident occurred. The following day, the adjuster sent reservation of rights letters to Mrs. Allemand and Megan. A week/month later, on July 31, 2014, Allstate split the defense between it and the Allemands.

The Rivers assert that the allegations in their pleadings put Allstate on notice that a coverage defense existed. They argue that upon receipt and review of their pleadings Allstate had notice of facts indicating that its policy did not provide coverage for Megan; therefore, Allstate should have notified the Allemands and Megan of the coverage defense, provided them with a reservation of rights to deny coverage, and split the parties’ defense before filing an answer. Further, the Rivers contend that by undertaking Mrs. Allemand’s and Megan’s defense before notifying them of the coverage defense and hiring them their own attorney, Allstate waived the coverage defense.

|7In Steptore, the insurer’s policy provided a navigation warranty that required the barge on which the accident occurred be maintained at a designated location. The evidence established that the barge had been moved to a new location before the accident, the insurer’s vice-president knew the day the accident occurred that the barge had been moved, suit was filed in a parish other than the parish identified in the navigation warranty, and the allegations of the plaintiffs petition asserted the accident occurred at a location other than the location provided in the navigation warranty. The supreme court concluded that these facts were “unequivocal indications of an apparent violation of the navigation warranty”; therefore, the insurer’s representation of the insured for sixteen months without obtaining a waiver of rights and notifying the insured of its coverage defense constituted waiver of the navigation warranty. Id. at 1217.

Upon receipt and review of the Rivers’ petitions, Allstate had knowledge of the following dispositive information.

a) The provisions of its policy, including the exclusion at issue;
b) Megan, the alleged tortfeasor, was a minor at the time of the accident;
e)Megan’s parents were Michael Dai-gle and Angel Allemand;
d) The vehicle Megan was driving at the time of the accident was owned by her father;
e) Mr. Daigle resided in Thibodaux;
f) Mrs. Allemand, a listed driver on Mr. Allemand’s Allstate policy, was residing with Mr. Allemand in Morgan City;
g) Megan was in the custody of and residing with Mrs. Allemand in Morgan City; and
h) The accident occurred just a few blocks from the Allemands’ residence.

|sThe Rivers argue strenuously that this information provided Allstate all the notice it needed to conclude that its policy did not provide coverage for the accident. We agree. Allstate had all the information it needed to determine a coverage defense existed upon being served with and reviewing the Rivers’ petitions. At the least, Allstate had “knowledge of facts indicating noncoverage under its policy.” Steptore, 643 So.2d at 1216. If its attorney or adjuster had any questions about Megan’s living arrangements and the car she was driving when the accident occurred, they could have spoken with Mrs. Allemand or Megan before filing an answer to clarify that information. Accordingly, when Allstate proceeded to file an answer and defend Mrs. Allemand and Megan, it waived its coverage defense.

Allstate points out that it provided notice to the Allemands and issued a reservation of rights in a relatively short time of being served with the Rivers’ petitions and that the Allemands testified they never believed Megan was covered under their Allstate policy. It urges that its actions did not induce the Allemands into believing that its policy provided coverage for the accident and did not prejudice them. Allstate further ai-gues that because the Alle-mands were not prejudiced, it did not waive this coverage defense.

Allstate cites Breazeale, 117 So.3d 192, in support of this argument, but Breazeale does not apply here. In Breazeale, the court found that the insureds were not prejudiced by the insurer’s action; however, that was not the basis of the court’s conclusion that the insurer had reserved is coverage defense. The court ultimately held that because the insureds filed their own answer after being notified of its insurer’s coverage defense and being provided a reservation of rights, they implicitly agreed that the insurer had reserved its coverage defense.

| j)The Rivers’ petitions provided Allstate all the information it needed to assert its coverage defense and issue a reservation of rights. Allstate failed to do so before filing an answer. If Allstate’s adjuster or attorney had questions regarding Megan’s vehicle and whether she maintained possession and use of it, they could have contacted their insureds and asked any clarifying questions they had before filing an answer. They • did not, and Allstate’s unconditional undertaking of the Alle-mands’ defense waived its right to assert the coverage defense. Accordingly, the grant of summary judgment and partial summary judgment in favor of Allstate is reversed, and partial summary judgment is granted in favor of the plaintiffs.

DISPOSITION

The trial court’s judgment granting summary judgment and partial summary judgment in favor of Allstate Insurance Company is reversed. Judgment is granted in favor of Monty and Brenda Rivers that Allstate waived its coverage defense, and the matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to Allstate Insurance Company.

REVERSED, RENDERED, AND REMANDED FOR FURTHER PROCEEDINGS.

      . Mrs. Rivers was not initially a plaintiff, but she intervened seeking recovery as a plaintiff against the defendants named by Mr. Rivers. Accordingly, we address her as a plaintiff.


author: AMY, Judge.

text:
    STATE of Louisiana v. Alex HAYES
    16-784 consolidated with 16-783
    Court of Appeal of Louisiana, Third Circuit.
    02/01/2017

      Adrienne E. Aucoin, Department of Public Safety and Corrections, Office of State Police, Post Office Box 66614, Baton Rouge, LA 70896-6614, (225) 925-6177, COUNSEL FOR APPELLANT: State of Louisiana
    Alex Hayes, 5106 Westwood Pines Drive, Katy, TX 77449, IN PROPER PERSON
    Court composed of Marc T. Amy, D. Kent Savoie, and Van Hardin Kyzar, Judges.
   AMY, Judge.

hFor the reasons discussed in the companion case, State of Louisiana v. Alex Hayes, 16-783 (La.App. 3 Cir. -/-/17), _ So.3d _, the trial court’s order of expungement as granted in trial court Docket Number 70,689 is reversed. The trial court judgment is further reversed to the extent it overruled the Objection to Motion for Expungement, as filed by the appellant, the State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, Office of State Police, Bureau of Criminal Identification and Information. This matter is remanded for further proceedings consistent with this opinion.

ORDER OF EXPUNGEMENT REVERSED. JUDGMENT OVERRULING OBJECTION TO MOTION FOR EX-PUNGEMENT REVERSED. REMANDED FOR FURTHER PROCEEDINGS.


author: EZELL, Judge.

text:
    Charlie JOHNSON v. A. W. CHESTERTON, et al.
    16-807
    Court of Appeal of Louisiana, Third Circuit.
    02/01/2017

      George E. Escher, Sheryl Story, One Galleria Blvd., Suite 1610, Metairie, LA 70003-7551, (504) 841-5093, COUNSEL FOR DEFENDANTS/APPELLANTS:, A. W. Chesterton, National Fire Ins. Co. of Hartford
    Kevin Louis Camel, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad St., Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/APPEL-LEE: Charlie Johnson
    Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery, Judges.
   EZELL, Judge.

_JjA.W. Chesterton and its workers’ compensation insurance carrier, CNA, appeal the decision of the workers’ compensation judge below finding that Charlie Johnson did not commit fraud under La.R.S. 23:1208. For' the following reasons, we hereby affirm the decision of the workers’ compensation judge.

On December 13, 2012, Mr. Johnson suffered a work-related accident while picking up a box of parts. Neither his injury nor benefits were disputed at trial. Rather, the sole issue before the workers’ compensation judge was whether or not Mr. Johnson committed fraud under La.R.S. 23:1208 by failing to note the proceeds from the sale of a horse on monthly 1020 forms dealing with income from any business enterprise. Mr, Johnson had marked “no” on his monthly questionnaire to questions which read (emphasis in original):

2. For the period covered in this report, did you receive a salary, wage, sales commission, or payment, including cash, of any kind?
3. For the period covered in this report, were you self-employed or involved in any business enterprise? These include but are not limited to farming, sales work, operating a business (even if the business lost money), child care, yard work, mechanical work, or any type of family business?
4. Did you perform any volunteer work during the period covered in this report?

In December 2014, Mr. Johnson sold a horse for $3,500. Chesterton terminated Mr. Johnson’s benefits, claiming that this sale was part of a business enterprise and that Mr. Johnson committed fraud when he denied being part of any business on his 1020 forms. Mr. Johnson then instituted the current claim against Chesterton. After a trial on the merits, the workers’ compensation judge found that 12Chesterton failed to carry its burden of proof as to the fraud defense, awarded Mr. Johnson supplemental earnings benefits at a zero rate of earnings, awarded penalties in the amount of $8,000 for the termination of benefits, as well as attorney fees in the amount of $10,000. From that decision, Chesterton appeals. Mr. Johnson answers that appeal, seeking additional attorney fees for work done on appeal.

Chesterton asserts two assignments of error. It claims that the workers’ compensation judge erred in denying its La.R.S. 23:1208 fraud claims against Mr. Johnson, and that the workers’ compensation judge erred in granting Mr. Johnson penalties and attorney fees.

Louisiana Revised Statutes 23:1208 provides, in pertinent part:

A. It shall be unlawful for any person, for the purpose obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The Louisiana Supreme Court in Resweber v. Haroil Constr. Co., 94-2708 (La. 9/5/95), 660 So.2d 7, 16, addressed the proof required to prove fraud under La. R.S. 23:1208:

By its plain words Section 23:1208 requires only that 1) the claimant make a false statement or representation, 2) the statement or representation be willfully made, and 3) the statement or representation be made for the purpose of obtaining workers’ compensation benefits.
|aThe legislature has made a policy decision that willful and deliberate false statements made specifically for the purpose of obtaining workers’ compensation benefits is an attempt to defraud the workers’ compensation system and should be dealt with harshly. The legislature has shown a continued effort over recent years to make Section 1208 easier to enforce and to make its penalties stronger.

The Resweber court noted the false representations must be made for the purpose of obtaining benefits and must be more than inadvertent or inconsequential statements. The court stated:

It is evident that the relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. A false statement which is inconsequential to the present claim may indicate that the statement was not willfully made for the purpose of obtaining benefits. Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits.

Id. Louisiana Revised Statutes 23:1208 applies to statements made to insurance investigators and physicians alike; and it imposes no requirement that the employer show prejudice. Id.

A decision to impose or deny forfeiture under La.R.S. 23:1208 is a factual finding which will not be disturbed on appeal absent manifest error. Brooks v. Madison Parish Serv. Dist. Hosp., 41,957 (La.App. 2 Cir. 3/7/07), 954 So.2d 207, writ denied, 2007-0720 (La. 5/18/07), 957 So.2d 155. To reverse a fact finder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). When there are two permissible views of the evidence, the workers’ compensation judge’s choice between them can never be manifestly erroneous or clearly wrong. Id. Ultimately, [4the issue to be resolved by the reviewing court is not whether the frier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart, 617 So.2d 880 (La.1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

We find that a reasonable factual basis exists for the workers’ compensation judge’s finding that Chesterton failed to carry its burden of proof of La.R.S. 23:1208 fraud. Mr. Johnson testified that he had owned horses as a hobby since he was five years old. Mr. Johnson was seventy-six years old at the time of trial. He had owned as many as forty-two horses at one point, but had decreased that 'number to seven after his accident. Chesterton was aware that Mr. Johnson raised horses while he was employed, as well as after the accident.

While he admitted that he did sell a horse in 2014, Mr. Johnson stated that it was as part of his hobby of raising horses, rather than as any business venture. He testified that the horse he sold for $3,500 was purchased for $20,000 nineteen years prior. He further stated that, prior to that sale, he last sold a horse in 2010, for a mere $1,500. Mr. Johnson stated that any physical work done, such as cleaning stalls and feeding the animals, were done solely out of his desire to have horses as a hobby, rather than as a means of income. While he admitted to using the animals as a tax write-off, he stated unequivocally that he was “not involved in [any] business.” The workers’ compensation judge clearly believed him. “[Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed unless manifestly erroneous.” Novak v. Texada, Miller, Masterson and Davis Clinic, 514 So.2d 524, 525 (La.App. 3 Cir.), writ denied, 515 So.2d 807 (La.1987).

^Further, CNA’s adjuster, Shannon Dove, admitted at trial that had Mr. Johnson held a garage sale and sold personal property, those proceeds would not be material to his workers’ compensation claim. The workers’ compensation judge agreed, finding that the sale of the horse was a similar sale of a personal asset, and immaterial to any workers’ compensation proceedings. After a thorough review of the record before us, we cannot find that Mr. Johnson willfully made false statements for the purpose of obtaining workers’ compensation benefits. There is no manifest error in the workers’ compensation judge’s findings.

Chesterton next claims that the workers’ compensation judge erred in granting Mr. Johnson penalties and attorney fees. A workers’ compensation judge has great discretion in deciding whether to allow or disallow penalties and attorney fees, and the decision will not be disturbed absent abuse of that discretion. Frank v. City of Lake Charles, 04-820 (La.App. 3 Cir. 11/10/04), 887 So.2d 679. After reviewing the record, we find no abuse of discretion in the award of penalties. Therefore, we can find no merit in this assignment of error.

Finally, Mr. Johnson filed an answer to Chesterton’s appeal, seeking an additional award of attorney fees for work done on appeal. “An increase in [attorney] fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiffs attorney, provided that the plaintiff requests such an increase.” McKelvey v. City of Dequincy, 07-604, pp. 11-12 (La.App. 3 Cir. 11/14/07), 970 So.2d 682, 690. The record before this court reflects that Mr. Johnson’s counsel requested such attorney fees, filed a brief in support of the judgment of the workers’ compensation judge, and was successful in defending the judgment in its favor on appeal. Therefore, $2,500 in attorney fees for work performed on appeal is awarded.

UFor the above reasons, the decision of the workers’ compensation judge is hereby affirmed as amended. We amend the judgment in favor of Mr. Johnson to award an additional $2,500 in attorney fees. Costs of this appeal are hereby assessed against Chesterton.

AFFIRMED AS AMENDED.

      . Chesterton lists a third assignment of error in its brief, however, that “assignment of error” is an argument that there is no basis for additional attorney fees to be awarded to Mr. Johnson for work done on appeal. As this is not a true allegation of any error on the workers’ compensation judge's part, it will not be treated as such.


author: BROWN, CHIEF JUDGE.

text:
    D.W. THOMAS & SON, INC., Plaintiff-Appellant v. Rice GREGORY, Defendant-Appellee
    No. 50,878-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 23, 2016

      HUDSON, POTTS & BERNSTEIN, LLP By: Johnny R. Huckabay, II, Counsel for Appellant
    HAYES, HARKEY, SMITH & CAS-CIO, LLP By: Thomas M. Hayes, III, Counsel for Appellee, Diamond Mobile Home Park, LLC
    Before BROWN, DREW, and PITMAN, JJ.
   BROWN, CHIEF JUDGE.

| plaintiff, D.W. Thomas & Sons, Inc., has appealed from the trial court’s judgment dismissing its action against defendant, Diamond Mobile Home Park, L.L.C., as abandoned pursuant to La. C.C.P. art. 561. For the reasons set forth below, we affirm.

Facts and Procedural History

On September 28, 2005, plaintiff filed the instant action seeking $54,500 alleged to be due under an oral modification of contract on a project that included dirt work, the clearing of some land and the building of a road. Defendant filed its answer and reconventional demand on November 28, 2005. The parties engaged in discovery and submitted pretrial statements to the trial court. A joint motion for continuance was submitted and signed by the trial court on November 15, 2006.

Thereafter, the case languished. Plaintiffs original counsel served interrogatories and requests for production of documents on defendant on September 11, 2009. Defendant did not respond. Thereafter, on October 26, 2009, plaintiffs counsel filed a motion to withdraw. The trial court issued a rule to show cause to D.W. Thomas. Following a hearing on April 16, 2010, at which Mr. Thomas was present, the trial court allowed the attorney to withdraw; however, the trial court did not admonish Mr. Thomas to secure counsel if he wanted to continue his claim.

Nothing further appears in the record until September 4, 2015, when new counsel filed a motion to enroll on behalf of plaintiff. Defendant filed a |2motion to dismiss the suit as abandoned, together with a supporting affidavit and memorandum, urging that no step in the prosecution or defense of the action had occurred after September 11, 2009, except for the service of discovery on defendant’s attorney on September 4, 2012, by D.W. Thomas, the president/owner of plaintiff, D.W. Thomas & Sons, Inc. According to defendant, service of the discovery requests did not interrupt the running of the three-year abandonment period since Mr. Thomas, a non-attorney, had not gotten the court’s permission to act as plaintiffs representative. Thus, the service of discovery by Mr. Thomas, who was not a party to the action, had no effect on the tolling of abandonment. Plaintiff, with a new attorney, opposed the motion, and a hearing was held by the trial court on February 29, 2016. The trial court found that the matter was abandoned and entered a judgment of dismissal. It is from this judgment that plaintiff has appealed.

Discussion

Plaintiff asserts that the trial court erred in failing to find that the service of discovery on defense counsel by D.W. Thomas, plaintiffs sole shareholder, owner and president, on behalf of the corporate plaintiff, was sufficient to interrupt the abandonment period. According to plaintiff, this act clearly evidenced its intent not to abandon its suit against defendant.

On the other hand, defendant urges that the trial court correctly found that the discovery served upon defense counsel on September 4, 2012, by Mr. Thomas, a non-party and non-attorney, did not serve to interrupt the abandonment period as Mr. Thomas lacked the authority to seek discovery.

There are three requirements imposed by La. C.C.P. art. 561 to avoid abandonment: (1) a party must take some “step” in the prosecution or |adefense of the action; (2) the step must be taken in the proceeding, and, with the exception of formal discovery, must appear in the record of the suit; and (3) the step must be taken within three years of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step. Louisiana DOTD v. Oilfield Heavy Haulers, L.L.C., 11-0912 (La. 12/06/11), 79 So.3d 978; Clark v. State Farm Mutual Automobile Ins. Co., 00-3010 (La. 05/15/01), 785 So.2d 779; Hudson v. Town & Country Nursing Center, L.L.C., 49,581 (La.App. 2 Cir. 03/04/15), 162 So.3d 632.

Abandonment is not a punitive concept; rather, it balances two competing policy considerations: (1) the desire to see every litigant have his day in court and not to lose the same by some technical carelessness or unavoidable delay; and (2) the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription. Id.

Whether a particular act, if proven, precludes abandonment is a question of law that is reviewed on appeal by determining whether the trial court’s decision is legally correct. Hudson, supra; Wolf Plumbing, Inc. v. Matthews, 47,822 (La. App. 2 Cir. 09/25/13), 124 So.3d 494, writs denied, 13-2510, 13-2516 (La. 01/17/14), 130 So.3d 94, 950; Brown v. Kidney & Hypertension Associates, L.L.P., 08-0919 (La.App. 1 Cir. 01/12/09), 5 So.3d 258.

The trial court observed the following at the December 29, 2015, hearing on defendant’s motion to dismiss plaintiffs action as abandoned:

Defendant contends that ... the last formal step in the prosecution of this action [occurred on September 11, 2009, when plaintiff, through counsel, served a second set of interrogatories and request for production of documents on the defendant]. Plaintiffs counsel ... | ¿Sled a motion to withdraw on October the 26th, 2009 [which was allowed by the trial court following a hearing on March 30, 2010]. According to an affidavit from the defense attorney, Mr. Hayes, that accompanies the present motion, on September the 4th, 2012, a person known to him as D.W. Thomas, III, came, to his office and delivered written discovery. The discovery was signed by Mr. Thomas himself, purportedly acting on behalf of the plaintiff corporation as ... its president. Mr. Thomas is not an attorney. Mr. Hayes heard nothing further from Mr. Thomas until he received a letter from Mr. Huckabay on September the 3rd, 2015, stating he intended to file a motion to enroll as counsel of record for plaintiff and attempting to serve another set of written discovery upon the defendant. ... [Defendant contends that [t]he attempted discovery by Mr. Thomas in September of 2012 did not constitute a step in the prosecution of the case [which was therefore abandoned] as of September the 11th of 2012.... It’s well established that a motion to withdraw, enroll or substitute counsel is not considered a formal step in the prosecution [of an action] as contemplated by article 561. Accordingly, Mr. Baldwin’s motion to withdraw, filed [in] October of 2009, and the subsequent hearing on that motion did not constitute steps in the prosecution. As for the attempted discovery by Mr. Thomas in September 2012, defendant has argued and the court agrees that did not constitute a step in the prosecution. ... Mr. Thomas lacked the authority to propound the attempted discovery on plaintiffs behalf and it could not be considered a valid step in the prosecution of plaintiffs claims.

As set forth above, La. C.C.P. art. 561(B) provides that any formal discovery as authorized by this Code and served on all parties whether or not filed of record ... shall be deemed to be a step in the prosecution or defense of an action. (Emphasis added). The Code of Civil Procedure’s provisions authorizing discovery are found in La. C.C.P. arts. 1420-1475. Code of Civil Procedure art. 1420(A) provides in part that every discovery request, response or objection made by a party represented by counsel must be signed by at least one attorney of record, and that a party not repi-esented by an attorney must sign the request, response or objection. (Emphasis added).

^Louisiana Civil Code art. 24 provides in part that a juridical person is an entity to which the law attributes personality, such as a corporation or a partnership, and the personality of a juridical person is distinct from that of its members. An action can be brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. A domestic corporation (with some limitations, none of which are applicable in the instant case) has the procedural capacity to sue to enforce its rights in the corporate or company name. La. C.C.P. art. 690.

Corporate entities must be represented by counsel. See, Deal v. Lexing- Powell, 36-168 (La.App. 2 Cir. 08/16/02), 824 So.2d 541; Bankston v. Tasch, L.L.C., 09-1573 (La. App. 4th Cir. 06/02/10), 40 So.3d 495. As noted by the court in St. Raymond v. City of New Orleans, 99-2438 (La. App. 4th Cir. 08/02/00), 775 So.2d 31, even where a limited liability company has a sole shareholder, it is an entity separate and distinct from that shareholder in terms of procedural capacity.

D.W. Thomas, a non-attorney, cannot act in a representative capacity for plaintiff in connection with the instant litigation, notwithstanding his status as owner, investor and president of the corporation. See, La. R.S. 37:212 and 213; Bankston, supra; Sadler v. Midboe, 97-2120 (La.App. 1 Cir. 12/28/98), 723 So.2d 1076. Therefore, because the discovery of September 11, 2012, was not signed by an attorney of record on behalf of plaintiff, the interrogatories and request for production of documents prepared and served by D.W. Thomas upon defense counsel did not constitute a step in the prosecution of the action such that the three-year abandonment period set forth in La. C.C.P. art. 561 was interrupted. See, Gambino v. Standard Fire Ins. Co., 12-474 (La. App. 5th Cir. 02/21/13), 110 So.3d 1127; Nwokedi v. Transit Mgmt. of Southeast La., Inc., 12-0150 (La. App. 4th Cir. 05/23/12), 2012 WL 4044906; Williamson v. Berger, 05-83 (La.App. 3 Cir. 06/08/05), 908 So.2d 35; Stillman v. Board of Supervisors of Southern University and Agricultural and Mechanical College, 07-2107 (La.App. 1 Cir. 06/06/08), 992 So.2d 523.

Conclusion

For the reasons set forth above, the trial court’s judgment is AFFIRMED. Costs are assessed to plaintiff, D.W. Thomas and Sons, Inc.

      . Although Rice Gregory was initially named as defendant, Diamond Mobile Home Park, L.L.C., was substituted as the proper party defendant by a supplemental and amending petition filed by plaintiff on October 31, 2005.

      . See also La. C.C.P. art. 863(A), which provides that every pleading of a party represented by an attorney shall be signed by at least one attorney of record, and a party not represented by an attorney shall sign his pleading.