author: LAGOA, J.

text:
    Xernona PINNOCK, Appellant, v. Warren WHYTE, Appellee.
    No. 3D15-1042
    District Court of Appeal of Florida, Third District.
    Opinion filed December 28, 2016.

      Scanziani Law Group, LLC and Denise Martinez-Scanziani and John Scanziani, for appellant.
    Warren Whyte, in proper person.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   LAGOA, J.

Xernona Pinnock (“Pinnock”) appeals from a final judgment of paternity, paternal responsibility, parenting plan, time-sharing schedule and child support (“Final Judgment”).

Because Pinnock’s due process rights were violated by the trial court expanding the scope of the scheduled hearing without notice, we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee, Warren Whyte (“Whyte”), filed a Petition for the Determination of Paternity. Pinnock filed an answer to the petition. The trial court referred the parties to mediation, and the parties reached a partial mediated settlement agreement. The following remaining contested issues were not part of the mediated settlement agreement: Winter Break, Spring Break, and Summer time timesharing; child support; and allocation of the child tax ex-émption.

On February 3, 2015, the trial court entered an Order Scheduling Uncontested Final Hearing or in the Alternative Setting Status Conference. The order specifically stated that “[i]f an answer has been filed, this hearing will serve as a STATUS CONFERENCE.” (emphasis in original).

Both Whyte and Pinnock attended the scheduled hearing. A review of the hearing transcript shows that the trial court — notwithstanding Pinnock’s filed answer to the petition — proceeded to conduct a final hearing and entered the Final Judgment. Following the entry of the Final Judgment, Pinnock filed a motion for rehearing, which the trial court denied in a written order. In its order, the trial court found that: (1) the motion was untimely; (2) a mediated agreement had been reached by the parties; and (3) “[t]he few areas of disagreement were resolved at the UCD/Status Conference.” This appeal ensued.

II. ANALYSIS

The facts of this case are identical to those in Shah v. Shah, 178 So.3d 70 (Fla. 3d DCA 2015), where this Court reversed the trial court’s entry of a final judgment of dissolution of marriage. In Shah, as in the case before us, the trial court issued a scheduling order that specifically stated that “[i]f an answer has been filed, this hearing will serve as a STATUS CONFERENCE.” 178 So.3d at 71. Notwithstanding the wife’s pro se reply to the petition for dissolution of marriage, which the trial court correctly treated as an answer, the trial court conducted a final hearing and orally granted the petition over the wife’s objections. The wife moved for rehearing, which the trial court denied.

In reversing the trial court, this Court held that:

Due process requires proper notice and an opportunity to be heard. The trial court’s July 30, 2014 notice of hearing notified the parties that if an answer to the petition had been filed, the hearing would serve as a status conference rather than a final hearing. The trial court, however, changed the nature and expanded the scope of the scheduled hearing without proper notice. In doing so, the court violated the wife’s due process rights.

Id.

Here, as in Shah, the trial court’s order notified the parties that if an answer to the petition had been filed, the hearing would serve as a status conference rather than a final hearing. Notwithstanding Pin-nock’s answer, the trial court proceeded to final hearing and entry of final judgment. Because Pinnock’s due process rights were violated by the trial court’s expansion of the scope of the scheduled hearing without notice, we reverse the Final Judgment of Paternity and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . After failing to file his answer brief, this Court entered an order directing Whyte to file an answer brief or be subject to sanctions. No answer brief was filed and this Court, therefore, entered an Order precluding Whyte from filing an answer brief.

      . Pinnock’s motion for rehearing was timely as it was both filed and served on the fifteenth day from the date of the filing of the Final Judgment. Rule 1.530(b), Fla. R. Civ. P., requires that "[a] motion for new trial or for rehearing shall be served not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-juiy action.”

      . Although we need not address the merits of the remaining issues raised by Pinnock as we are vacating the Final Judgment, to assist the trial court on remand we note that the trial court does not have the power to allocate the Federal Tax Dependency Exemption directly. See Pullis v. Pullis, 118 So.3d 937 (Fla. 3d DCA 2013). "The trial court can only ‘require the custodial parent to transfer the exemption to the non-parent through the execution of a waiver. However, the transfer of the dependency exemption to the non-custodial parent is conditioned on that parent being current with support payments.’ ” Id. at 941 (quoting Robertson v. Bretthauer, 712 So.2d 1140, 1141 (Fla. 3d DCA 1998)).
      Additionally, we note that a court's imputation of income must be supported by competent, substantial evidence. See Harbus v. Harbus, 874 So.2d 1230 (Fla. 4th DCA 2004). The trial court "is required to set forth the amount and source of the imputed income. If the court fails to do so, the case must be reversed and remanded for specific findings of fact.” Id. at 1231.


source: Caselaw Access Project

author: SHEPHERD, J.

license: Public Domain

text:
    Andy RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-897
    District Court of Appeal of Florida, Third District.
    Opinion filed December 28, 2016
    Andy Rodriguez, in proper person.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SHEPHERD, LAGOA and EMAS, JJ.
   SHEPHERD, J.

Andy Rodriguez appeals the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Rodriguez raised nine claims. We affirm the denial of the motion as to claims two through eight without further discussion. We ordered the State to respond to claims one and nine. As to these claims, which the State contends are refuted by the record, we reverse and remand for attachment of those portions of the record which conclusively refute Rodriguez’s claims of ineffective assistance of trial counsel for failing to move to suppress defendant’s incriminating statements and for failing to object to the trial court giving a defective self-defense jury instruction. Fla. R. App. P. 9.141(b)(2)(A), (D).

Affirmed in part, reversed in part, and remanded.


author: PER CURIAM.

text:
    Rafael M. NAVARRO, Appellant, v. Krista Rose NAVARRO, Appellee.
    CASE NO. 1D15-4201 & 15-4613
    District Court of Appeal of Florida, First District.
    Opinion filed December 30, 2016
    Rehearing Denied February 6, 2017
    Rafael M. Navarro, pro se, Appellant.
    Krista Rose Navarro, pro se, Appellee.
   PER CURIAM.

The Former Husband appeals the supplemental final judgment of dissolution of marriage and the post-judgment order on the Former Wife’s motion for contempt, enforcement, and sanctions. We find merit only in the Former Husband’s argument that the trial court erred by not valuing the marital assets and liabilities distributed in the supplemental final judgment. Accordingly, on that issue, we reverse and remand for the trial court to make specific findings on the value of the marital assets and liabilities, and if necessary based on those findings, to either reconsider the distribution scheme in the supplemental final judgment or make additional findings to support an unequal distribution. We find no merit in the other issues raised by the Former Husband.

Section 61.075(3), Florida Statutes (2014), requires the trial court to make specific written findings of fact to support its distribution of the parties’ marital assets and liabilities, including findings on the values of the assets and liabilities. Without such findings, the appellate court is unable to conduct a meaningful review of the distribution ordered by the trial court. See Shoffner v. Shoffner, 744 So.2d 1157, 1157-58 (Fla. 1st DCA 1999).

Here, the trial court specifically identified the significant marital assets and liabilities and specified which spouse received them. The court did not, however, make the required written findings concerning the valuation of these assets and liabilities. Without such findings, we are unable to determine whether the distribution ordered by the trial court was equal, but it appears that the distribution favored the Former Wife. Specifically, based on the values listed in the parties’ financial affidavits, it appears that the Former Wife received between $179,793 and $202,406 in net assets while the Former Husband received between negative $8,614 and negative $17,270 in net assets.

The trial court has the authority to order an unequal distribution of marital assets and liabilities. See § 61.075(1), Fla. Stat. However, if it does so, the court must provide specific written findings justifying the unequal distribution. Id.; Wagner v. Wagner, 61 So.3d 1141, 1143 (Fla. 1st DCA 2011); Davis v. Davis, 32 So.3d 743, 744 (Fla. 1st DCA 2010). Here, the supplemental final judgment contains no findings to justify what appears to be an unequal distribution of the marital assets and liabilities.

Accordingly, we reverse the distribution of the marital assets and liabilities in the supplemental final judgment and remand for the trial court to (1) make specific findings on the values of the marital assets and liabilities distributed to each party, and (2) either reconsider the distribution scheme to equally distribute the marital assets and liabilities, or make specific findings to justify an unequal distribution. We affirm the supplemental final judgment in all other respects, and we also affirm the contempt order.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

B.L. THOMAS, WETHERELL, and M.K. THOMAS, JJ., CONCUR.

       The appeal of the supplemental final judgment is Case No. 1D15-4201, and the appeal of the contempt order is Case No. 1D15-4613. We previously consolidated the cases for record and travel purposes, and we now consolidate them for disposition and any post-disposition motions.


text:
    Andrea ACOSTA-RUBIO, Appellant, v. Hector DAGER, etc., Appellee.
    No. 3D15-1839
    District Court of Appeal of Florida, Third District.
    Opinion filed January 4, 2017

      Andrea Acosta-Rubio, in proper person.
    Kim Vaughan & Lerner LLP, and Robert C. L. Vaughan and Anisha C. Atchanah (Fort Lauderdale), for appellee.
    Before SUAREZ, C.J., and ROTHENBERG and LOGUE, JJ.
   PER CURIAM.

Affirmed. See De La Osa v. Wells Fargo Bank, N.A., No. 3D14-1455, 208 So.3d 259, 2016 WL 7232272 (Fla. 3d DCA Dec. 14, 2016) (en banc); Reyes v. Aqua Life Corp., No. 3D15-2304, 209 So.3d 47, 2016 WL 7232267 (Fla. 3d DCA Dec. 14, 2016).


text:
    Pedro YNIGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2489
    District Court of Appeal of Florida, Third District.
    Opinion filed January 4, 2017
    Pedro Ynigo, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, C.J., and ROTHENBERG and SCALES, JJ.
   PER CURIAM.

Appellant Pedro Ynigo seeks review of both: (i) a trial court order denying Yni-go’s April 2016 petition to enforce the terms of a plea agreement; and (ii) a tidal court order denying Ynigo’s August 2016 motion for rehearing of that April 2016 order. We affirm the trial court’s orders.

After filing his notice of appeal, Ynigo filed with this Court a document that he captioned “Writ for Appellate Review,” challenging these same orders. We treat this petition for a writ as Ynigo’s initial brief.

In sum, Ynigo argues that, after he accepted the 2013 plea agreement in case number F06-22268 — in which he agreed, among other things, to waive all credit for time served and serve sixty months in prison — the trial court erred by not giving him credit for time served. Ynigo’s April 2016 petition marks at least the third time he has made this identical argument below. Each time, including this most recent time, the trial court has correctly denied the sought relief.

We affirm the orders on appeal, and write only to caution Ynigo that further attempts, either below or with this Court, to litigate this issue may result in the imposition of sanctions. Sanctions may include, but not necessarily be limited to, the entry of an order prohibiting Ynigo from further pro se filings in case number F06-22268.

Affirmed.


author: SHEPHERD, Senior Judge.

text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. Thomas A. DIXON, Appellee.
    No. 3D13-3005
    District Court of Appeal of Florida, Third District.
    Opinion filed January 4, 2017

      Carlton Fields Jorden Burt, P.A., and Paul L. Nettleton, for appellant.
    Kimberly L. Boldt, Jeffrey D. Mueller and Mario R. Giommoni (Boca Raton); Hoffman, Larin <& Agnetti, P.A., and John B. Agnetti and David Perkins, for appellee.
    Before SUAREZ, C.J., and SCALES, J., and SHEPHERD, Senior Judge.
   SHEPHERD, Senior Judge.

This is an appeal by GEICO General Insurance Company from a trial court order denying GEICO’s motion for new trial on compensatory damages in an automobile accident case involving an uninsured motorist in which the jury first considered and awarded compensatory damages against both GEICO and the co-defendant uninsured motorist driver arising out of the accident, and then reconvened to consider an award of punitive damages against the uninsured motorist driver alone. Before trial, GEICO and the co-defendant uninsured motorist driver admitted liability for the accident, and the court ordered that the plaintiff, GEICO’s insured, was entitled to recover an award of punitive damages against the uninsured motorist driver in an amount to be determined in the second phase of the proceeding.

GEICO’s principal assignment of error is the admission of evidence showing that the uninsured motorist driver was intoxicated beyond the legal limit at the time of the crash in the compensatory phase of the trial. We agree and reverse and remand the case for a new trial on compensatory damages. We find the evidence of the uninsured motorist driver’s alcohol use was irrelevant to the issue of the amount of compensatory damages, which was the subject of the first phase of the proceedings, and that any arguable probative value the evidence might have had — say, to the credibility of the testimony of the uninsured defendant driver — was substantially outweighed by the danger of unfair prejudice.

Because we are remanding this case for a new trial on compensatory damages, we also address two issues raised by GEICO concerning the sufficiency of the evidence to support the future economic damage award to the plaintiff because they are likely to recur in the new trial. A brief summary of the factual and procedural background of this case is necessary to explain our decision.

FACTUAL AND PROCEDURAL BACKGROUND

This action arises out an automobile accident which took place on May 17,2009, in Monroe County, in which GEICO insured, Thomas Dixon, was struck head-on by a vehicle driven by Gerardo Alcebo. Alcebo was driving under the influence of alcohol at the time of the accident and ultimately was adjudicated guilty of driving under the influence causing “bodily injury.” See § 316.193(3)(a), (b) and (c)(2), Fla. Stat. (2015). Alcebo did not have a policy of liability insurance. Dixon’s policy, issued by GEICO, included uninsured motorist coverage of up to $20,000 per person.

In 2011, Dixon sued GEICO for breach of contract for failure to pay the amount of the uninsured motorist coverage and joined Alcebo as a co-defendant seeking both compensatory and punitive damages against him for negligently and recklessly operating a motor vehicle while intoxicated causing serious bodily injury. Prior to trial, Alcebo and GEICO admitted liability for the accident, and the trial court ruled, as a matter of law, that Alcebo was punitively liable for driving under the influence of alcohol at the time. Thus, the only issues remaining to be tried were the amounts of compensatory and punitive damages which should be awarded to Dixon. Before trial, GEICO moved to bifurcate the two issues and to exclude any reference to Alcebo’s intoxication during the first compensatory damages trial. The trial court granted bifurcation, but nullified GEICO’s reason for bifurcation by permitting Dixon to offer evidence and argument on Alcebo’s intoxication during the compensatory phase.

Alcebo’s intoxication while driving quickly became the central theme of the first phase of the trial. The trial judge himself began the barrage by instructing the jury, before the first witness was called, that “punitive damages are warranted against Mr. Alcebo as a punishment to him and as a deterrent to others because he was driving under the influence of alcoholic beverages ... to the extent that his normal faculties were impaired while having a blood alcohol level of .08 or higher and during the course of such driving ... he caused ... bodily injury to Mr. Dixon.” Dixon’s first witness was the state trooper who investigated the DUI charges. Counsel for Dixon repeatedly referred to Alce-bo’s drunk driving as “a conscious decision to operate a vehicle while under the influence of alcohol” and stressed that “GEICO stands in the shoes of Alcebo” for purposes of the compensatory damage award. Although the focus of phase one should have been on the issue of permanent injury and the amount of compensatory damages to be awarded, counsel for Dixon made Alce-bo’s, and in his stead GEICO’s, callousness in causing Dixon’s injury the central feature of the trial.

As to damages, Dixon admitted he had suffered from back pain since the early 1990’s. In 2004, Dixon underwent spinal surgery to relieve the pain. Dixon testified he did not take any pain medication for back pain between the 2004 surgery and the date of the automobile accident. However, Dixon testified that after the accident he was prescribed Oxycontin and gradually became addicted. After a second back surgery in 2011, Dixon began to take Subox-ene to detoxify himself from the Oxycontin. Dixon testified:

DIXON: ... [Dr. Nordt] gave me the scrip to take to [the detox clinic] to tell him to detox me the proper way. So they put me back on the medication, and he slowly took me down off of it until he slowly put me on a drug called Subox-one. Suboxone is designed for opiate addiction, and it’s called an opioid. I can’t really explain to you how it works, but it causes the brain to do something to where and it does have a mild painkiller in it, too.
COUNSEL: Do you take it every day?
DIXON: Every day of my life.
COUNSEL: How many times a day do you take it?
DIXON: I take eight — I take four milligrams, three times a day.
COUNSEL: And can you advise the jury what that costs you?
DIXON: It costs me $560 a month, like $565, something like that.

During closing arguments and without any evidentiary basis, Dixon’s counsel suggested the jury should award Dixon a five-year supply of Suboxone as future medical damages.

Next, in support of his claim for future loss of earning capacity, Dixon testified that on May 4, 2009, thirteen days before the accident, he retired from Florida Keys Aqueduct Authority after working there for a little over thirty-five years. He testified he was hired by the Authority soon after graduation from high school. He was later promoted to supervisor of engineering and worked in that capacity for the last fifteen to twenty years of his employment. At age fifty-three, he accepted a retirement package. Dixon testified that he planned to take three to six months off after retirement and then begin to supplement his retirement income by working “in the diving industry for hydrostacking [sic] dive tanks and the repair of fiber tanks.” He testified he had hands-on work experience in this area through his association with a dive shop located at a Chevron gas station. He stated “the boss from there flew me and another guy ... up together to Chicago to get training in order to have a certification to be able to do it.” Dixon obtained the certification but was never hired at the Chevron due to its closure. Nonetheless, he testified that he expected to subsidize his retirement by making $2,000 to $2,500 a month in that business after a brief vacation. However, because of the back injury he claimed was related to the accident, he could no longer perform that type of work. During closing arguments, Dixon’s counsel suggested an award for future loss of earning capacity of $288,000, based on the scenario of Dixon working in the hydrostatic testing business for twelve years, or until he reached the age of sixty-six, at $2,000 a month.

At the close of the compensatory trial, the jury found Dixon suffered a permanent injury to his back as a result of the accident and returned an itemized verdict of $970,396.62 in compensatory damages. The award included $38,600.00 for future medical expenses and $288,000.00 for loss of future earning capacity. GEICO’s motion for a new trial based on the evidence of Alcebo’s intoxication elicited during the compensatory damages phase of the trial, and its motion for directed verdict as to Dixon’s claim for future medical expenses and loss of earning capacity were also denied.

The trial court entered judgment against GEICO in the amount of $20,000.00, the uninsured motorist policy limit, and against Alcebo for the remaining amount of the compensatory damages according to the verdict. GEICO timely appealed.

ANALYSIS

We review the denial of a motion for directed verdict de novo, Banco Espirito Santo Intern., Ltd. v. BDO Int’l, B.V., 979 So.2d 1030, 1032 (Fla. 3d DCA 2008), and the admission of evidence and denial of a motion for new trial under an abuse of discretion standard. Kalbac v. Waller, 980 So.2d 593, 595 (Fla. 3d DCA 2008); H & H Elec., Inc. v. Lopez, 967 So.2d 345, 347 (Fla. 3d DCA 2007).

1. Irrelevant DUI Evidence and Argument.

The trial court correctly exercised its discretion when it granted GEICO’s motion to bifurcate the compensatory and punitive damage issues in the trial of this case. See Fla. R. Civil P. 1.270(b); Roseman v. Town Square Ass’n, 810 So.2d 516, 519-20 (Fla. 4th DCA 2001) (“[T]he trial court’s decision to bifurcate is subject to an abuse of discretion standard of review.”) However, the laudable purpose of the motion was annulled when the trial judge admitted evidence and permitted argument concerning drunk driving in the compensatory damage phase of the bifurcated proceeding.

In an automobile negligence case, when the/defendant admits liability regarding the cause, of the accident, evidence of the defendant’s sobriety is irrelevant and prejudicial. Swanson v. Robles, 128 So.3d 915, 917-18 (Fla. 2d DCA 2013); see also Jones v. Alayon, 162 So.3d 360 (Fla. 4th DCA 2015); Neering v. Johnson, 390 So.2d 742, 742 (Fla. 4th DCA 1980) (concluding the trial court erred in admitting • testimony of defendant’s sobriety when“[p]rior to trial the parties entered into a written stipulation by which appellant admitted liability and the parties agreed the sole issue for trial was the damages incurred by appellees”). The existence of the punitive damage claim in this case does not change the result because the trial court also found before trial that Alcebo was liable for punitive damages. Swanson, 128 So.3d at 918 (concluding that when “liability for punitive damages was no longer at issue ... [tjhere was no reason to admit evidence of [defendant’s] drug use in a bifurcated first phase other than to inflame the jury and increase the compensatory damages verdict”). For these reasons, we hold that the trial court abused its discretion by allowing evidence and argument regarding Alcebo’s drunk driving in. phase one of .the trial, and order a new trial on the issue of compensatory damages. Furthermore, because we are reversing and remanding the case for a new trial and the issues may occur on retrial, we also address the sufficiency of the evidence to support the award of future economic damages for future medical expenses arid future loss of earning capacity.

2. Future Economic Damages Evidence.

As a matter of law, future economic damages are only appropriate when established with reasonable certainty. See Auto-Owners Ins. Co. v. Tompkins, 651 So.2d 89, 91 (Fla. 1995); Fasani v. Kowalski, 43 So.3d 805, 812 (Fla. 3d DCA 2010). Thus, Dixon had the burden to establish his need for future medical treatment, within a reasonable degree of certainty, and to provide evidence for the jury to determine, with reasonable certainty, the amount needed to pay for the treatment. See Loftin v. Wilson, 67 So.2d 185, 188 (Fla. 1953); Fasani, 43 So.3d at 812; DeAlmeida v. Graham, 524 So.2d 666, 668 (Fla. 4th DCA 1987). “A mere possibility that certain treatment might be obtained in the future cannot form the basis of an award of future medical expenses.” Fasani, 43 So.3d at 812 (citing Truelove v. Blount, 954 So.2d 1284, 1288 (Fla. 2d DCA 2007)). Similarly, Florida law does not permit a plaintiff to recover loss of future earnings unless plaintiff proves with a reasonable degree of certainty his or her future earning capacity. Truelove, 954 So.2d at 1288 (citing W.R. Grace & Co.-Conn. v. Pyke, 661 So.2d 1301, 1303-04 (Fla. 3d DCA 1995)). After a close review of the trial transcripts in this case, we find there is an insufficient evidentiary basis for the jury to determine, with reasonable certainty, both future medical expenses and future loss of earning capacity.

The evidence Dixon presented to support his claim for future medical expenses consisted solely of his testimony that at the time of trial he was taking the prescription drug, Suboxone, to detoxify himself from an opiate addiction. The evidence is unclear whether the opiate addiction had any relationship to the accident. More significantly, there is a complete absence of any testimony, either lay or expert, evidencing, with reasonable certainty, how long into the future Dixon would need to take the drug. The jury simply accepted the suggestion by counsel for Dixon in final argument that five years was a sufficient number of years to use to calculate the award. The jury awarded precisely the amount suggested by counsel. The trial court should have granted GEICO’s motion for directed verdict on this award.

In support of future loss of earning capacity, Dixon testified to his plans for future employment, but did not present sufficient evidence from which the jury could determine, with any degree of certainty, that Dixon was prevented by his injury-related limitations from obtaining suitable work in the future, including work hydrotesting and repairing dive tanks. Dixon testified he had obtained experience in this field through his association with a dive shop located at a gas station and received certification for the work. However, he presented no concrete evidence demonstrating the availability of this type of job in the diving industry or the pay being offered for such a position. Dixon speculated he could earn $2,000 to $2,500 a month in that business, and his counsel suggested Dixon could earn this amount until he was sixty-six. Essentially, Dixon wanted the jury to follow his unfounded supposition that, because he was trained for hydrostatic testing and because his back injury prevented him from doing this work, he no longer has any capacity to earn supplementary income during his retirement years. Without evidence of alternative employment for a man of Dixon’s age, skills, education, etc., the jury was forced to engage in a future loss of earnings analysis which is not recognized in Florida.

CONCLUSION

For the foregoing reasons, we find the trial court abused its discretion in admitting irrelevant evidence of Alcebo’s intoxication during the compensatory damages trial when, prior to trial, the defendant admitted causing the accident and the court determined punitive damages liability as a matter of law. We also agree that the court below erred in denying GEICO’s motions for directed verdict and judgement notwithstanding the verdict regarding future economic losses. Accordingly, we reverse and remand for a new trial.

      . The trial resulting in the judgment on appeal is actually the third time this case was tried. Two prior attempts to try this case resulted in mistrials for reasons unrelated to this appeal.

      . Included in the calculation of the amount of compensatory damages was the sub-issue of whether Dixon sustained a permanent injury as a result of the accident. Absent permanent injury, a plaintiff is entitled to recover UM benefits only for economic damages incurred as a result of injuries sustained in the accident and not for economic damages, such as pain and suffering. See §§ 627.727, 627.737, Fla. Stat. (2015).

      , The jury also returned a verdict for $1,000.00 in punitive damages against Alcebo. The paltry punitive damage verdict is explained by the fact that Dixon’s real play in this case is to build up the compensatory damage award against Alcebo as much as possible in order to seek an amount in excess of the uninsured motorist limit of $20,000 from GEICO in a first party bad faith action Dixon has pending against GEICO pursuant to section 624.155 of the Florida Statutes. At present, Dixon is limited in the amount of compensatory damages he can recover from GEICO to the amount of the uninsured motorist’s coverage, and the final judgment so reflects. See Fridman v. Safeco Ins. Co. of Ill., 185 So.3d 1214 (Fla. 2016); Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So.2d 239 (Fla. 2d DCA 2008). A punitive damage award in any amount is not recoverable under section 624.155 without a claim of a general business practice which violates the statutes. § 624.155(5), Fla. Stat. (2015). Because Alce-bo is impecunious (to the point he did not even show up, for the third trial), counsel for Dixon agreed to limit the amount of punitive damages he would seek against Alcebo to $1.00 for the likely purpose of encouraging Alcebo's cooperation with Dixon in the litigation. The jury awarded 1,000' times more than Dixon agreed to seek.-


author: PER CURIAM:

text:
    STATE EX REL. Terry FERGUSON v. STATE of Louisiana
    No. 2016-KH2118
    Supreme Court of Louisiana.
    01/23/2017
   PER CURIAM:

11WRIT NOT CONSIDERED. Petitioner has not sought review in the district court and/or the court of appeal before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. R. X § 5(b).


text:
    STATE EX REL. Lawrence Ray PITTMAN v. STATE of Louisiana
    No. 16-KH-2028
    Supreme Court of Louisiana.
    01/23/2017
   PER CURIAM:

11WRIT NOT CONSIDERED. Petitioner has not sought review in the district court and/or the court of appeal before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. R. X § 5(b).


text:
    STATE EX REL. Leonard PERKINS v. STATE of Louisiana
    No. 15-KH-1427
    Supreme Court of Louisiana.
    01/23/2017
   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.CrJP. 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.

GUIDRY, J., recused.


text:
    IN RE: Richard C. TEISSIER
    NO. 2017-OB-0014
    Supreme Court of Louisiana.
    01/20/2017
   ORDER

h Considering the Petition for Transfer to Disability Inactive Status filed by respondent, Richard C. Teissier, and the response thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Richard C. Teis-sier, Louisiana Bar Roll number 18461, be and he hereby is transferred to interim disability inactive status pending a hearing to determine the validity of his claim of inability to assist in his defense due to mental or physical incapacity, pursuant to Supreme Court Rule XIX, § 22(C). All disciplinary proceedings shall be stayed pending this determination.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ Bernette J. Johnson JUSTICE, SUPREME COURT OF LOUISIANA


author: CRICHTON, J.,

text:
    STATE of Louisiana v. Edward OGLETREE
    No. 2016-KK-2168
    Supreme Court of Louisiana.
    01/23/2017
    GUIDRY, J., would grants.
    CRICHTON, J., would grant and assigns reasons.
   CRICHTON, J.,

would grant and assigns reasons:

pin my view, the ruling of the district court suppressing cocaine seized from defendant’s pocket should be reversed. When the officers saw defendant holding a clear plastic bag containing what they believed to be cocaine, they had probable cause to arrest the defendant. They were therefore justified in retrieving the cocaine from defendant’s pocket, where they watched him secrete it, before placing him under arrest. See generally Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966) (“Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.”); Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980) (“Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”). Therefore, in my opinion, the district court erred in granting the motion to suppress.


author: PER CURIAM

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-3463
    No. 2016-BA-1920
    Supreme Court of Louisiana.
    01/23/2017
   PER CURIAM

[, Reconsideration denied. No further applications shall be considered in this matter unless petitioner can demonstrate a change in circumstances materially affecting his character and fitness. See In re: Jordan, 00-3006 (La. 12/15/00), 775 So.2d 1065. Additionally, in no event will any application for admission be considered if filed less than one year from finality of our order in In re: Committee on Bar Admissions CFN-3463, 16-1920 (La. 11/18/16), 206 So.3d 860.


text:
    STATE EX REL. Andrew FUSILLO v. STATE of Louisiana
    No. 2016-KH-2234
    Supreme Court of Louisiana.
    01/23/2017
   PER CURIAM:

|,WRIT NOT CONSIDERED. Petitioner has not sought review in the district court and/or the court of appeal before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. R. X § 5(b).


text:
    STATE EX REL. Jerxavier LANE v. STATE of Louisiana
    No. 2016-KH-2217
    Supreme Court of Louisiana.
    01/23/2017
   PER CURIAM:

11 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.


text:
    STATE EX REL. Jordan CARAMBAT v. STATE of Louisiana
    No. 2016-KH-2215
    Supreme Court of Louisiana.
    01/23/2017
   PER CURIAM:

hWRIT NOT CONSIDERED. Petitioner has not sought review in the district court and/or the court of appeal before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. R. X § 5(b).


text:
    STATE ex rel. Jason Reeves v. Darrell VANNOY, Warden, Louisiana State Penitentiary, Angola, Louisiana
    No. 16-KP-2199
    Supreme Court of Louisiana.
    01/23/2017
   PER CURIAM:

h Denied. Relator shows no abuse of discretion in the district court’s decision to deny his request to further supplement his application for post-conviction relief. See State ex rel. Duhon v. Whitley, 92-1740 (La. 9/2/94), 642 So.2d 1273 (district court has discretion to decide whether to allow a post-conviction petitioner to amend or supplement a timely-filed application for post-conviction relief); cf. La.C.Cr.P. art. 930.4(E). Within 90 days of this order, the district court is ordered to rule on all of relator’s now pending claims. See State v. Reeves, 15-1668 (La. 4/4/16), 188 So.3d 257.


text:
    STATE EX REL. Corey EXPOSE v. STATE of Louisiana
    No. 16-KH-2158
    Supreme Court of Louisiana.
    01/23/2017
   PER CURIAM:

|,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.


text:
    STATE EX REL. Albert GRAYER v. STATE of Louisiana
    No. 2016-KH-2069
    Supreme Court of Louisiana.
    01/23/2017
   PER CURIAM:

|;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.


text:
    STATE EX REL. Darrell Lamont ALGERE v. STATE of Louisiana
    No. 2015-KH-1827
    Supreme Court of Louisiana.
    01/23/2017
   PER CURIAM:

I,Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies, La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

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


text:
    STATE EX REL. Dalduran J. BRANDON v. STATE of Louisiana
    No. 16-KH-2042
    Supreme Court of Louisiana.
    01/23/2017
   PER CURIAM:

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


text:
    Ernest GUIDRY, et ux. v. ABC INSURANCE COMPANY, et al.
    NO. 2016-C-2013
    Supreme Court of Louisiana.
    01/23/2017
   PER CURIAM

|, Granted in part. The district court erred in awarding pre-judgment interest on the entire damage award. It is well settled that a court sitting in admiralty has no authority to grant interest on the general maritime and Jones Act awards for future damages, such as future lost earnings or future pain and suffering. Milstead v. Diamond M Offshore, Inc., 95-2446 (La. 7/2/96), 676 So.2d 89.

Accordingly, the judgment of the district court is vacated insofar as it awards prejudgment interest on the entire damage award. The case is remanded to the district court for reformation of the judgment as to interest. In all other respects, the application is denied.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-640622
    NO. 2016-BA-2260
    Supreme Court of Louisiana.
    01/25/2017
   PER CURIAM

| ¶ After reviewing the evidence and considering the law, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. During this period, petitioner shall provide evidence to the Office of Disciplinary Counsel, on at least a quarterly basis, demonstrating that she has made a good faith effort to satisfy her financial obligations. Should petitioner fail to make a good faith effort to satisfy her financial obligations, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


author: PER CURIAM: WEIMER, J.

text:
    STATE EX REL. Terry MCELVEEN v. STATE of Louisiana
    No. 2015-KH-1920
    Supreme Court of Louisiana.
    01/25/2017
   PER CURIAM:

| t Granted in part; otherwise denied. Relator’s sentencing claim is not cognizable on collateral review, see La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172, and is also repetitive. La.C.Cr.P. art. 930.4(A).

With respect to his remaining claims for post-conviction relief, the district court’s September 2, 2014 ruling, in which it summarily denied relator’s application, is vacated, and the claims are remanded for district court consideration.

If it finds any, the district court is directed to notify relator of deficiencies in his petition’s form and afford him a reasonable opportunity to cure them. See State ex rel. Johnson v. Maggio, 440 So.2d 1336, 1337 (La. 1983) (a pro se petitioner “is not to be denied access to the courts for review of his case on the merits by the overzealous application of form and pleading requirements or hyper-technical interpretations of court rules.”).

^Finally, in the event the district court finds an evidentiary hearing is warranted, relator (if he is indigent) will be entitled to the appointment of counsel. La.C.Cr.P. art. 930.7(C).

WEIMER, J. dissents and would deny.

CLARK, J. would deny.

WEIMER, J.

dissents and would deny.

hi would deny the writ.


author: WEIMER, J., CRICHTON, J.

text:
    STATE of Louisiana v. Derrick GROVES
    No. 2016-KD-2200
    Supreme Court of Louisiana.
    01/23/2017

      WEIMER, J., dissents and assigns reasons.
    CLARK, J., would grant.
    CRICHTON, J., dissents and assigns reasons.
   WEIMER, J.,

dissenting.

_jjThe statement at issue is undeniably hearsay. The defendant contends that his right to present a defense justifies admission of the statement at trial, notwithstanding that the statement does not qualify for any of the statutory exceptions to the prohibition against admitting hearsay.

The district court determined that the statement was admissible, accepting the defendant’s argument that the statement was reliable, pursuant to this court’s ruling in State v. Gremillion, 542 So.2d 1074 (La. 1989). The district court indicated that “based on the testimony provided that the statement is trustworthy and reliable.”

It is unclear as to what testimony the district court may have been referring, because none was adduced during the hearing. Therefore, it would be a simple matter, in one sense, to find the statement is inadmissible based on the defendant’s apparent failure to establish reliability and trustworthiness. However, in light of the significant constitutional right of a defendant to present a defense, rather than finding that the defendant failed to carry his burden of showing the hearsay statement had sufficient indicia of trustworthiness and reliability, I believe this is one of the rare instances where a litigant should be afforded a second opportunity to make his case. See Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (in Roberts, the Court noted that the proponent of a statement that would be inadmissible hearsay bears the burden of proving that an exception to inadmissibility applies).

Therefore, I would remand for a pretrial evidentiary hearing with instructions that the defendant offer whatever evidence he may have to carry his burden of demonstrating that notwithstanding the prohibition against hearsay, that the statement at issue has sufficient indicia of trustworthiness and reliability. See Gremillion, 542 So.2d at 1078.

Accordingly, I respectfully dissent.

CRICHTON, J.

dissents and assigns reasons:

LFor reasons assigned by Justice Weimer, I too would grant the State’s writ and remand for a pre-trial evidentiary hearing. Regarding the hearsay statement at issue, the trial court stated: “I think until it’s presented during trial as of right now I do find it trustworthy and reliable. I’ll make any other appropriate decisions as they merit during the proceedings.” In my view, it is critical that this issue be determined only after a pre-trial evidentiary hearing in which the defense investigator provides detailed testimony of the circumstances surrounding the statement. Determining reliability and trustworthiness of the statement “presented during the trial ... as they merit during the proceedings” — and presumably after opening statements— may cause the proverbial cat to be let out of the bag, possibly resulting in prejudice to the State.


text:
    Shannon M. RODRIGUE v. The BATON ROUGE RIVER CENTER d/b/a Riverside Performing Centroplex, Def Insurance Company And the City of Baton Rouge
    NO. 2016-CC-2075
    Supreme Court of Louisiana.
    01/25/2017
   PER CURIAM

Granted. Under the facts presented, we find there are genuine issues of fact as to whether the dimly-lit stairwell was unreasonably dangerous, thereby precluding judgment as a matter of law. To the extent plaintiff was aware of the condition of the stairwell, the trier of fact may consider such evidence at trial for purposes of determining the percentage of fault, if any, to be assigned to plaintiff. See, e.g., Broussard v. State ex rel. Office of State Buildings, 2012-1238 (La. 4/5/13), 113 So.3d 175.

Accordingly, the judgment of the court of appeal is reversed, and the judgment of the district court denying summary judgment is reinstated. The case is remanded to the district court for further proceedings.

WEIMER, J., dissents and would deny.

GUIDRY, J., would deny.

CLARK, J. would deny.


text:
    STATE of Louisiana IN the INTEREST OF B.M.
    NO. 2016-CJ-1916
    Supreme Court of Louisiana.
    October 24, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, Caddo Parish Juvenile Court, No. 153,609; to the Court of Appeal, Second Circuit, No. 50,977-JAC.

L Stay denied. Writ denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. David ADAMS
    NO. 2016-KK-1935
    Supreme Court of Louisiana.
    October 26, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. E, No. 32,145; to the Court of Appeal, First Circuit, No. 2016 KW 1409

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

GUIDRY, J., would deny the writ.


text:
    Earl Scott BREWER and His Wife, Sony Brewer v. MOTIVA ENTERPRISES, LLC, Cooper T. Smith Mooring Co. and Sgs North America, Inc.
    NO. 2016-CC-1788
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. A, No. 00035306; to the Court of Appeal, Fifth Circuit, No. 16-C-470.

|! Denied.


text:
    STATE of Louisiana v. Jared Paul PONTIFF
    NO. 2015-K-1107
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. CR-627-13; to the Court of Appeal, Third Circuit, No. 14-1049;

| iDenied.


text:
    STATE EX REL. Jon Brent JONES v. STATE of Louisiana
    NO. 2015-KH-1254
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. B, No. 2001-157497; to the Court of Appeal, First Circuit, No. 2015 KW 0476;

| denied.


text:
    Charles L. CIOLINO and Gertrude K. Ciolino v. FIRST GUARANTY BANK and Capital One, N.A.
    NO. 2016-01292
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. A, No. 2010-0003104 C/W 2010-0003465; to the Court of Appeal, First Circuit, No. 2015 CA 0818 C/W 2015 CA 0819.

h Denied.


text:
    STATE EX REL. Ronald FOSTER v. STATE of Louisiana
    NO. 2016-KH-1419
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. 16-CR-000724; to the Court of Appeal, Third Circuit, No. 16-558-KH.

| denied.


text:
    Eliana Amparo SOTO v. Alireza SADEGHI Eliana Amparo Soto v. Alireza Sadeghi
    NO. 2016-CC-1295
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. K, No. 2014-11550; to the Court of Appeal, Fourth Circuit, No. 2016-C-0563 C/W 2016-C-0565.

| denied.

WEIMER, J., would grant.

GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    Edward YOUNG v. ST. GEORGE FIRE PROTECTION DISTRICT NO. 2 and the St. George Fire Protection District No. 2 Civil Service Board
    NO. 2016-CC-1321
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, St. George Fire Protection District No. 2 Civil Service Board, No. 13-01; 19th Judicial District Court Div. E, No. 621,176; to the Court of Appeal, First Circuit, No. 2016 CW 0104

| denied.


text:
    Jennifer Lee KRAMER, et al. v. PENDLETON MEMORIAL METHODIST HOSPITAL, et al.
    NO. 2016-CC-1324
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2004-12842; to the Court of Appeal, Fourth Circuit, No. 2016-C-0390; November 7, 2016

| denied.


text:
    STATE of Louisiana v. Rickey GUIDRY
    NO. 2016-KK-1334
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. A, No. 536-278; to the Court of Appeal, First Circuit, No. 2016 KW 0502.

|! Denied.

WEIMER, J., recused.


text:
    Francisco ARNUERO and Samuel Velazquez v. Jacqueline LIRETTE and Safeway Insurance Company of Louisiana
    NO. 2016-CC-1335
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 165986; to the Court of Appeal, First Circuit, No. 2016 CW 0524.

| tDenied.


text:
    ADAIR ASSET MANAGEMENT, LLC v. Michael Harris TURNEY, et al.
    NO. 2016-01347
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 575-185-B; to the Court of Appeal, Second Circuit, No. 50,-574-CA

| jDenied.


text:
    Donnelda MARTIN, et al v. Daryl MARX, M.D.
    NO. 2016-CC-1348
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. J, No. 12-3775; to the Court of Appeal, Second Circuit, No. 50918-CW

h Denied.

WEIMER, J., would grant. GUIDRY, J., would grant.


text:
    GULP COAST INTERNATIONAL, LLC v. The RESEARCH CORPORATION OF THE UNIVERSITY OF HAWAII
    NO. 2016-CC-1353
    Supreme Court of Louisiana.
    November 7, 2016
   Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. E, No. 126822; to the Court of Appeal, Third Circuit, No. CW16-00280.

|, Denied.


text:
    James A. THOMAS and Sharon Thomas v. Bryan BOYD, et al.
    NO. 2016-CC-1356
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 11-1844; to the Court of Appeal, Second Circuit, No. 50947-CW

I ,Denied


text:
    The INDEPENDENT WEEKLY, LLC v. Lafayette City Marshall Brian POPE (In re: Contempt of Court)
    NO. 2016-OK-1376
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. B, No. C-2015-5737; to the Court of Appeal, Third Circuit, No. KW 16-00327;

| denied.


text:
    Barbara GUILLORY, et al. v. Christopher BALLARD, et al.
    NO. 2016-CC-1377
    Supreme Court of Louisiana.
    November 7, 2016
   Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court, Div. I, No. 752,815; to the Court of Appeal, Fifth Circuit, No. 16-C-340;

| denied.


text:
    LUBA CASUALTY INSURANCE COMPANY v. Cherri MCMORRIS, Individually, John Doe and Cherri McMorris as Natural Tutor of Alexis McMorris, An Unemancipated Minor, and State Farm Insurance Company
    NO. 2016-CC-1378
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 13-3247; to the Court of Appeal, Second Circuit, No. 50,-911-CW.

| ^Denied.


text:
    Harold JACKSON v. ROYAL T ENERGY, LLC
    NO. 2016-CC-1383
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 1-East, No. 16-01667; to the Court of Appeal, Second Circuit, No. 50,-645-WCW;

11 Denied.


text:
    Cynthia NUGENT v. Theresa MCNEASE and State of Louisiana Special School District
    NO. 2016-C-1385
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. G, No. 10-4457; to the Court of Appeal, Second Circuit, No. 50,-529-CA;

LIN RE: Cynthia Nugent; — Plaintiff;

Denied.


text:
    CITY OF NEW ORLEANS, Norman Foster, Director, Department of Finance, Bureau of Revenue and Anthony Reilly, Collector v. JAZZ CASINO COMPANY, LLC
    NO. 2016-C-1393
    Supreme Court of Louisiana.
    November 7, 2016
   Applying for Writ of Certiorari and/or Review Louisiana Board of Tax Appeals, Local Division, No. L00007; to the Court of Appeal, Fourth Circuit, No. 2015-CA-1150; November 7, 2016

Denied.

WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    Heather Lynn CARMICHAEL v. Ray Bradley BROOKS
    NO. 2016-C-1396
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. C, Nos. 11-C-0929-C, 12-C-0845-C; to the Court of Appeal, Third Circuit, No. 16-93.

| denied.

WEIMER, J., would grant.


text:
    Juan VARA & Kevin Wheeler v. DEPARTMENT OF POLICE
    NO. 2016-C-1397
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review Civil Service Commission, City of New Orleans, No. 8106 AND 8109; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0036.

| denied.


text:
    Heather Lynn CARMICHAEL v. Ray Bradley BROOKS
    NO. 2016-01501
    Supreme Court of Louisiana.
    November 7, 2016
   Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court, Div. C, No. 12-C-0845-C; to the Court of Appeal, Third Circuit, No. 16-93;

Denied.

WEIMER, J., would grant.


text:
    Claudette SISLO v. NEW ORLEANS CENTER FOR CREATIVE ARTS
    NO. 2016-C-1781
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 8, No. 14-04943; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0178.

^Denied.


text:
    Darrin COULON and Tess Coulon v. ENDURANCE RISK PARTNERS, INC., West Bank Surgery Center, L.L.C., and Mark Juneau, M.D.
    NO. 2016-CC-1146
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 756876; to the Court of Appeal, Fifth Circuit, No. 16-C-264;

|! Granted. See Order Attached.


text:
    STATE EX REL. Cary MALONE v. STATE of Louisiana
    NO. 2016-KH-1091
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. A, No. 08 F 1745

JjWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Landon FULLER v. STATE of Louisiana
    NO. 2016-KH-1328
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Franklin, 5th Judicial District Court Div. B, No. 2013-607F.

11 WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct. Rule X § 5(b).


text:
    STATE EX REL. Darrin SIBLEY v. STATE of Louisiana
    NO. 2016-KH-1447
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. N, No. 1301362; to the Court of Appeal, First Circuit, No. 2016 KA 1424;

| VWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 6.


text:
    STATE EX REL. Howard LINDSEY, Jr. v. STATE of Louisiana
    NO. 2016-KH-1492
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Divs. B, I, Nos. 547528, 372682; to the Court of Appeal, First Circuit, No. 2016 KW 0105.

|, WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE of Louisiana v. Donald G. CROCHET
    No. 2016-KK-1123
    Supreme Court of Louisiana.
    November 7, 2016
   Applying for Rehearing of this Court’s action dated September 23, 2016, Parish of Lafourche, 17th Judicial District Court Div. D, No. 546870; to the Court of Appeal, First Circuit, No. 2016 KW 0363.

| Rehearing denied.

WEIMER, J., recused.


text:
    Tom ASWELL v. The DIVISION OP ADMINISTRATION, of the State of Louisiana and Kristy Nichols, Individually and as the Commissioner of Administration
    NO. 2016-C-1263
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 636,454; to the Court of Appeal, First Circuit, No. 2015 CA 1851;

| TDenied.

KNOLL, J., would grant. WEIMER, J., would grant. HUGHES, J., would grant.


text:
    Vickie HENRY, Individually and on Behalf of Her Minor Child, Madison Henry v. GABRIEL’S HOUSE OF EVENTS and Scottsdale Insurance Company
    NO. 2016-01270
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. C, No. 107,965; to the Court of Appeal, First Circuit, No. 2015 CA 1909.

11Denied.

JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    IASIS GLENWOOD REGIONAL MEDICAL CENTER v. Lisa HILL
    NO. 2016-CC-1323
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs Office of Worker’s Compensation, No. 15-07253; to the Court of Appeal, Second Circuit, No. 50991-WCW.

| denied.


text:
    STATE of Louisiana v. Keithdrick Lamond PIER
    NO. 2016-KK-1366
    Supreme Court of Louisiana.
    November 7, 2016
   Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court, Div. N, No. 02-14-1044; to the Court of Appeal, First Circuit, No. 2016 KW 0542;

| denied.

WEIMER, J., would grant.


text:
    Jerry PEREZ v. EXPRESS JET
    NO. 2016-C-1362
    Supreme Court of Louisiana.
    November 7, 2016
   Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation — District 1W, No. 14-00172; to the Court of Appeal, Second Circuit, No. 50,-731-WCA;

| t Denied.


text:
    James G. CHOWNS v. C.A. FREDERICKS, Warden Caldwell Correctional Center and James LeBlanc, Secretary Louisiana Department of Public Safety & Corrections and Genie Powers, Director Louisiana Board of Parole and State of Louisiana and Renee Streeter, Court Stenographer
    NO. 2016-CC-1358
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Caldwell, 37th Judicial District Court Div. 0, No. 26932; to the Court of Appeal, Second Circuit, No. 50,948-CW.

11 Denied.

CRICHTON, J., would grant.


text:
    Lisa HILL v. IASIS GLENWOOD REGIONAL MEDICAL and Corvel Corporation
    NO. 2016-C-1357
    Supreme Court of Louisiana.
    November 7, 2016
   Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation, District 01E, No. 14-04394; to the Court of Appeal, Second Circuit, No. 50,531-WCA;

| denied.


text:
    David PITTS Jr. and Kenyetta Gurley v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY and Rhoda Renee Jones, M.D.
    NO. 2016-C-1232
    Supreme Court of Louisiana.
    November 15, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 2012-0003618; to the Court of Appeal, First Circuit, No. 2015 CA 0848

11 Granted. See Order Attached.


author: GREMILLION, Judge.

text:
    John BILLIOT v. Dale ANGELLE
    16-436 consolidated with 16-435
    Court of Appeal of Louisiana, Third Circuit.
    Opinions Rendered 11/30/2016
    Michael Erwin Katz, Attorney at Law, 829 Baronne Street, New Orleans, LA 70113, (504) 581-1394, COUNSEL FOR DEFENDANT/APPELLEE: Dale An-gelle
    Harold Dewey Register, Jr., Attorney at Law, 216 Rue Louis XIV, Lafayette, LA 70508, (337) 981-6644, COUNSEL FOR PLAINTIFF/APPELLANT: John Billiot
    Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

The plaintiff/appellant, John Billiot, appeals the summary judgment granted in favor of defendant/ appellee, Dale Angelle. For the reasons that follow, we affirm.

FACTS

Mr. Billiot alleged in his petition for damages that he entered into a lease with Mr. Angelle of barn stalls for the purpose of housing a horse. As further alleged, the barn caught fire on February 7, 2014; during this fire, Mr. Billiot’s horse was killed. He also lost equipment, supplies, and medicine. Mr. Billiot allegedly discovered the fire himself and unsuccessfully attempted to rescue the horses in the barn. The fire, Mr. Billiot alleged, resulted from the failure of Mr. Angelle to keep the barn in adequate repair. In addition to the loss of his horse, Mr. Billiot alleges that the fire caused him to develop asthma, and that he suffers from recurring nightmares.

Mr. Billiot’s suit against Mr. Angelle was consolidated with the suit filed by Mr. Joseph Boxie resulting from the same fire. These matters are also consolidated for purposes of this appeal. See Boxie v. Angelle, 16-435 (La.App. 3 Cir.-/-/16), — So.3d —.

On June 15, 2015, Mr. Angelle filed a motion for summary judgment in which he asserted that the fire was caused by a heating rod that had been left in a bucket of oats in the “feed room.” Mr. Angelle argued that Mr. Boxie was in the habit of feeding his animals oats that he cooked in a plastic bucket by inserting a heating rod. In support of his motion, Mr. Angelle introduced the interrogatory responses of Mr. Boxie, the fire investigation report of the Lafayette Fire Department, excerpts from the deposition of Mr. Elliot Roger of the Lafayette Fire Department, Mr. An-gelle’s own affidavit, and the affidavit of Mr. Dallas Antoine, who also housed a thoroughbred horse with Mr. Angelle.

The matter was not fixed for hearing until October 19, 2015; nonetheless, Mr. Billiot did not file his opposition to the motion for summary judgment until October | ⅞13, 2015 — almost four months after Mr. Angelle’s motion was filed — in contravention of La.Code Civ.P. art. 966(B)(1) and Uniform Rules — District Courts, Rule 9.9, which specifies that a party opposing a motion or exception must serve an opposition memorandum “so that it will be received by the other parties at least eight calendar days before the hearing, unless the court sets a shorter time.” Mr. Angelle objected to the late filing, and Mr. Billiot’s counsel was not allowed to present oral argument. Following the hearing, the trial court granted Mr. Angelle’s motion. Mr. Billiot appeals, arguing that a genuine issue of material fact exists in the case.

ANALYSIS

Mr. Billiot argues that the trial court erred in granting summary judgment to Mr. Angelle because:

Joseph Boxie presented evidence that Dale Angelle knew of the failing condition of the barn, yet failed to make these repairs; Joseph Boxie presented evidence of what contributed to the fire; and [t]he fireman’s investigative report indicated that the origin of the fire was undetermined and that there were no human factors contributing to ignition.

Before we examine each of these three arguments, we will briefly discuss the nature of summary judgment and the standards employed to determine whether summary judgment is warranted.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is enti-tied to judgment as a matter of law.

La.Code Civ.P. art. 966(A)(2) & (3). The mover must bear his burden on the motion, but if the burden of proof at trial rests with his opponent, “the mover’s burden on the motion does not require him to negate all essential elements of the- adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual |ssupport for one or more elements essential to the adverse party’s claim, action, or defense. The burden ⅛ on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(D)(1). (Emphasis added),

“A fact is ‘material’ when its ex? istence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. A genuine issue is one on which reasonable minds could disagree. Id.

When faced with a properly-supported motion for summary judgment, “an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.” La.Code Civ.P. art. 967(B). (Emphasis added).'

Finally, summary judgments are reviewed on appeal de novo; thus, the court of appeal applies the same criteria as the trial court, those set forth above. Smith, 639 So.2d 730.

In support of his motion, Mr. Angelle filed Mr. Boxie’s answers to interrogato-ríes; the Lafayette Fire Department report of Mr. Elliott Roger; excerpts from Mr. Roger’s deposition testimony; the affidavit of Mr. Angelle; the affidavit of Mr. Dallas Antoine, another man who boarded horses in the barn; and the affidavit of Mr. Chad Mouton, who also boarded horses with Mr. Angelle. Mr. Billiot opposed the motion with the complete deposition of Mr. Roger.

The report and deposition of Mr. Roger establish that he was summoned to the scene of the fire as the blaze was still being fought. He arrived and spoke to Mr. Billiot, who indicated that he had arrived at the scene and noticed smoke, which he | ^initially attributed to a pile of rice chaff he had noted behind the barn. However, as he got closer, Mr. Billiot realized that the barn itself was on fire. He entered the barn and saw that the last and next-to-the-last stalls were ablaze. Mr. Billiot began opening stalls to rescue the horses, but the fire was too intense and he was forced to leave.

Mr. Roger’s report states:

In further conversation with Mr. Billi-ot, he informed me that one of the other horse owner [sic] (Mr. Joseph Boxie) had a habit of cooking oats in his feed room (which was actually a stall converted into a feed and tack room) and forgetting to unplug his heating rod before leaving the barn. Mr. Billiot stated this happened on several occasions. He was certain of this due to Mr. Boxie calling him on several occasions asking him to unplug the.heating rod for him. I asked Mr. Billiot how he would cook oats and he stated he would place oats and water in a plastic white five gallon container and insert the heating rod into the oat and water mixture.

Mr. Roger located the feed/tack room and observed the remains of a heating rod, a white plastic bucket, and oats. The electric cord of the heating rod extended toward the location of the electrical outlets.

In his deposition, Mr. Roger stated that the feed/tack room was the area Mr. Billiot observed the fire having originated. The fire’s origin in this area coincided with Mr. Roger’s observations, too. In it, he found a white plastic bucket that was melted relatively uniformly on all sides. He found the heating rod in the bucket, and it appeared to have melted a hole in the bottom of the bucket. He found bloated oats, indicating that they had been cooked.

Mr. Roger, who was tendered in his deposition as an expert in fire cause and origins, opined that the fire started when the heating rod cooked the water out of the oats and melted through the bottom of the bucket. The rod came into contact with combustible material on the floor of the stall, which ignited the blaze. The heating rod had been subjected to extremely high heat.

On cross-examination, Mr. Roger was asked about whether he observed any electrical outlets that held water. Mr. Roger indicated that he did not. He did not | Bopine a cause of the fire in his report, as that is not his practice; his report represents only Mr. Roger’s observations, not his opinions. Nonetheless, Mr. Roger could not express an opinion on the condition of the wiring of the building because the barn was so severely damaged.

Mr. Antoine’s affidavit indicates that he had boarded horses at a separate barn on Mr. Angelle’s property, but he used an electric walking wheel to exercise his horse on several occasions, including the morning of the fire. This electric walking wheel was energized from the burned barn. Mr. Antoine observed no problems with the electrical system in that barn. Everything he observed of the electrical system on the day of the fire was operating properly.

Mr. Mouton attested in his affidavit that he had been in the barn in question on many occasions and observed no vice or defect in the electrical system of the barn. Although his own horse was destroyed in the fire, Mr. Mouton has made no claim against Mr. Angelle because he observed no vice or defect in the premises on which to base such a claim.

Mr, Angelle’s affidavit indicates that he was at the premises on the date of the fire and that he observed no electrical issues. Just a week before the fire, Mr. Angelle had been to the barn to replace some boards in anticipation of acquiring new boarders; at that time, all electrical systems were operating normally.

Mr, Billiot maintains that he presented evidence that the bam was in failing condition and Mr. Angelle failed to make repairs. Those conditions include: boards that needed replacing; lights that needed replacing; soffits that needed replacing; boards that were treated with creosote; a breaker box that was not functioning or was “overloaded”; an outlet that had water leaking into it; and a dead horse that had been allowed to remain in the barn for four days without burial. In no way did Mr. Billiot demonstrate factual support for the proposition that any of these conditions, or a combination of them, led to the fire.

ifiThe proof of the cause of the fire is a matter on which Mr. Billiot would bear the burden of proof at trial. Simply stating that certain conditions were present at the barn does not satisfy La.Code Civ.P. art. 966(D)(1); when a defendant such as Mr. Angelle presents evidence of the cause of a fire, and that evidence is properly supported, it is incumbent upon the plaintiff, such as Mr. Billiot, to produce specific factual support that there exists a genuine issue of material fact.

For example, in Nugent v. J & A Auto Supply, Inc., 11-693 (La.App. 3 Cir. 11/2/11), 76 So.3d 650, writ denied, 11-2650 (La. 2/10/12), 80 So.3d 481, we held that the plaintiff did produce facts sufficient to demonstrate a genuine issue of material fact regarding the cause of an electrical fire when he produced proof that the building’s owner had installed improper-gauge wire in the building, which even the building owner testified may have caused the fire. Similarly, the evidence of dueling expert testimony raised a genuine issue of material fact and precluded a motion for summary judgment in Shelter Ins. Co. v. Broan-Nutone, LLC, 39,625 (La.App. 2 Cir. 5/11/05), 902 So.2d 1146, writ denied, 05-1483 (La. 12/16/05), 917 So.2d 1112. Mr. Billiot has produced no evidence demonstrating that something other than the heating rod caused the fire, or that the heating rod was in Mr. Angelle’s control. Mr. Angelle has produced evidence that the heating rod caused the fire; thus, the burden shifted to Mr. Billiot to produce evidence either that it did not or that something else did. Conjecture and conclu-sory statements are not evidence. See Scott v. City of Shreveport, 15-1438 (La. 10/9/15), 186 So.3d 1149 (Crichton, Justice, concurring).

Similarly, we find the lack of an opinion in Mr. Roger’s report to be of no moment. It is common, in the court’s experience, for experts to omit opinions in reports that they freely express in testimony. The court is precluded from engaging in credibility determinations on summary judgment; however, because we find no inconsistency between Mr. Roger’s report and his testimony, there exists no genuine |7issue of material fact. See Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226.

CONCLUSION

We affirm the summary judgment granted to Mr. Dale Angelle. He demonstrated in his motion that the cause of the fire that engulfed his barn was a heating rod that was not in his control. Mr. John Billiot failed to produce evidence demonstrating that there was another cause or that Mr. Angelle controlled the heating rod. All costs of this appeal are taxed to plaintiff/appellant, John Billiot.

AFFIRMED.