author: CALOCA-JOHNSON, DAWN, Associate Judge.

text:
    SHANDS JACKSONVILLE MEDICAL CENTER, INC., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 1D14-2001.
    District Court of Appeal of Florida, First District.
    June 22, 2015.

      John A. Tucker of Foley & Lardner LLP, Jacksonville; James A. McKee of Foley & Lardner LLP, Tallahassee, for Appellant.
    Anthony J. Russo, Alan J. Nisberg, and Jared M. Krukar of Butler Pappas Weih-muller Katz Craig LLP, Tampa, for Appel-lee.
   CALOCA-JOHNSON, DAWN, Associate Judge.

This case requires us to define the scope of the enforcement provision available to insurers under section 627.736(6)(c), Florida Statutes. In applying this statute, the trial court ordered Appellant, Shands Jacksonville Medical Center (Shands), to produce a variety of documents, including confidential contracts between Shands and 37 health insurance entities. Appellee State Farm seeks discovery of these contracts because they contain information regarding negotiated reimbursement rates that Shands agreed to accept for services and supplies rendered on behalf of each entity’s insureds. State Farm argues that this information is necessary in order for it to determine if the amounts billed by Shands are reasonable. The court also ordered Shands to make a designated corporate representative available for deposition. Shands raises a number of arguments with respect to the trial court’s' order, including that the order exceeds the scope of the discovery provided by the statute. Because we agree with Shands on this point, we need not address its other points. Furthermore, our reversal of the trial court’s discovery order renders unnecessary the attendant confidentiality order which the court entered.

Facts

After paying Shands for medical services provided to 29 of its insureds, State Farm sent letters to Shands requesting certain information regarding the invoices for treatment. These requests for information were submitted pursuant to section 627.736(6)(b), Florida Statutes, which requires a health care provider which renders services to a PIP carrier’s insureds to provide certain information and documents related to treatment and associated costs upon the insurer’s request.

In response, Shands sent State Farm all medical records, information regarding services rendered, its most recent Medicare cost report filed with the Agency for Health Care Administration (AHCA), and its cost information as well as comparative cost information relating to other hospitals’ charges for the same procedures, which Shands obtained from AHCA. Shands did not comply with State Farm’s request for copies of third-party contracts with medical insurers which contain negotiated discount rates from its regular charges with these third parties, contending that section 627.736(6)(b) does not entitle State Farm to those documents or that information. Subsequently, State Farm filed a petition pursuant to section 627.736(6)(c), which provides, in relevant part:

In the event of a dispute regarding an insurer’s right to discovery of facts under this section, the insurer may petition a court of competent jurisdiction to enter an order permitting such discovery.

In addition to the aforementioned contracts, State Farm also asked the court to order Shands to make certain of its employees available for deposition. The matter eventually resulted in an evidentiary hearing. Following the hearing, the trial court issued the order on appeal.

The court found that section 627.736(5)(a), Florida Statutes, prohibits PIP health care providers from charging more than a reasonable amount for services and supplies, and “identifies the type of evidence that may be considered” when determining a “reasonable reimbursement rate for medical bills presented for treatment.” Section 627.736(5)(a) provides, in relevant part:

(a) ... In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

(Emphasis added.)

Focusing on this highlighted language, the trial court determined that third-party “discount contracts,” such as those State Farm sought here, fall within the ambit of the information a PIP carrier is entitled to obtain under section 627.736(6)(b). The trial court also found that the “express language of [section 627.736(6)(c) ] allows discovery under the entirety of’ section 627.736, thus rejecting Shands’ position that the discovery language in subsection (6)(c) applies only to the information specifically referenced in subsection (6)(b).

Finally, the trial court adopted the reasoning of the Fourth District in Kaminester v. State Farm Mutual Automobile Insurance Co., 775 So.2d 981 (Fla. 4th DCA 2000), and found that the phrase “discovery of facts” as used in subsection (6)(c) is not limited to “document production, but also [includes] deposition testimony and other means of obtaining information authorized by the Florida Rules of Civil Procedure.”

Ultimately, the trial court ordered Shands to produce copies of the 37 third-party contracts (with the insurers’ names and any other identifying information redacted). The court also ordered Shands to produce a spreadsheet of the amounts Shands agreed to accept from those insurers as well as from Medicare and Medicaid, and a “detailed, written accounting and explanation of the ‘additional costs’” identified in one of the documents Shands previously produced. The court also granted State Farm “leave to depose a designated corporate representative of Shands” about the “documents and information produced in the course of this proceeding.” For the reasons explained below, we reverse this order in its entirety because it exceeds the extent of discovery permissible under sections 627.736(b) and (c), Florida Statutes.

Analysis

Generally, discovery orders are reviewed for abuse of discretion. See Friedman v. Heart Inst. of Port St Lucie, Inc., 863 So.2d 189,194 (Fla.2003) (holding scope and limitation of discovery is in trial court’s sound discretion). This case also involves the trial court’s statutory interpretations, which we review de novo. See Borden v. E.-European Ins. Co., 921 So.2d 587, 591 (Fla.2006).

At the outset, we disagree with the trial court’s conclusion that the “discovery of facts” referred to in section 627.736(6)(c), Florida Statutes allows discovery under the entirety of section 627.736, including the types of evidence that may be considered when determining the reasonable reimbursement rate for medical bills presented for treatment referred to in section 627.736(5)(a). Rather, we hold that this reference to discovery applies only to the types of information a healthcare provider is required to provide as delineated in section 627.736(6).

In reaching this conclusion, we note that section 627.736(6) is entitled “Discovery of Facts About an Injured Person; Disputes.” Subsection (6)(b) discusses the information and facts about an injured insured a PIP insurer is entitled to receive from a healthcare provider, specifically:

a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically nee-essary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce, and allow the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment. ... An “insurer that requests documentation or information pertaining to reasonableness of charges or medical necessity under this paragraph without a reasonable basis for such requests as a general business practice is engaging in an unfair trade practice under the insurance code.”

(Emphasis added.) Subsection (6)(b) is followed by subsection (6)(c), which provides, in relevant part: “In the event of a dispute regarding an insurer’s right to discovery of facts under this section, the insurer may petition a court of competent jurisdiction to enter an order permitting such discovery.”

It seems clear to us, therefore, that the “section” referred to in subsection (6)(c) is in fact a reference to subsection (6), not the entirety of section 627.736. Subsection (6), unlike subsection (5)(a), specifically provides that a PIP insurer is entitled to “Discovery of Facts About an Injured Person,” and subsection (6)(b) delineates the specific types of information (facts) and documentation to which a PIP insurer is entitled to receive from medical providers in analyzing the payment of claims. Furthermore, the title to subsection (6) also indicates that it addresses “Disputes.” Accordingly, subsection (6)(c) begins with the phrase: “In the event of a dispute regarding an insurer’s right to discovery of facts under this section ...which clearly applies to disputes related to an insurer’s attempt to obtain the information and documentation relating to the treatment and associated costs of treatment to an injured insured specified in subsection (6).

Thus, subsection (6)(b) concerns the types of facts and documents to which a PIP insurer is entitled to assist it in ascertaining the reasonableness of the treatment provided to its insured and the amount the medical provider charged for that care. Subsection (5)(a), on the other hand, addresses the factors, or “types of evidence,” relevant to the reasonableness of a medical provider’s charges. These factors, however, are implicated when there is a dispute as to the reasonableness of charges for treatment, not when there is a dispute concerning an insurer’s attempt to obtain the information it is entitled to so that it can assess the reasonableness of those charges.

Applying the foregoing here, although the documents the trial court ordered may very well be relevant and discoverable in the context of litigation over the issue of reasonableness of charges instituted pursuant to subsection (5)(a), they are clearly not the types of documents specifically delineated by subsection (6)(b). Accordingly, State Farm was not entitled to these documents in a proceeding brought pursuant to subsection (6)(c). The trial court’s order compelling production of these documents was an abuse of discretion because it exceeded the bounds of subsections (6)(b) and (c).

The remaining issue we must address concerns that portion of the trial court’s order requiring Shands to produce a designated corporate representative for deposition. The trial court relied upon the Fourth District’s opinion in Kaminester. In Kaminester, the medical service provider argued that section 627.736(6)(e) “does not authorize depositions duces tecum, [but] merely allows the production of specified documents.” 775 So.2d at 984. The district court disagreed, positing that “the legislature has used the legal term of art ‘discovery of facts’” in the statute, and that the “term ‘discovery is obviously borrowed from the Florida Rules of Civil Procedure,” which includes “ ‘depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission.’ ” Id. (quoting Fla. R. Civ. P. 1.280(a)). The court explained, “When the legislature uses a legal term like ‘discovery, we will ordinarily attribute a meaning consistent with its legal meaning.” Id.

We respectfully disagree with this reasoning and certify conflict with Kamines-ter. In our view, the phrase “discovery of facts” in subsection (6)(c) is limited to the production of the documents described in subsection (6). The process encompassed by subsections (6)(b) and (c) is meant to be a limited pre-litigation procedure for a PIP insurer to obtain specified information about the treatment provided to its insured and the charges for that treatment.

The discovery tools found in the rules of civil procedure, on the other hand, are not triggered until litigation over the reasonableness of those charges has ensued (i.e., commenced pursuant to subsection (5)(a)). Thus, nothing in subsections (6)(b) or (c) contemplates requiring a PIP medical provider to submit any of its representatives to deposition, and the trial court erred by ordering Shands to make a designated corporate representative available for deposition.

Conclusión

For the foregoing reasons, we reverse in its entirety the trial court’s order compelling discovery. We also certify conflict with Kaminester v. State Farm Mutual Automobile Insurance Co., 775 So.2d 981 (Fla. 4th DCA 2000), to the extent that it holds that the “discovery of facts” referred to in section 627.736(6)(c), Florida Statutes, means that the discovery methods provided for in the Florida Rules of Civil Procedure are available to insurers that institute proceedings pursuant to that statute.

REVERSED; CONFLICT CERTIFIED.

MARSTILLER and SWANSON, JJ., concur.

      . This provision, as well as other provisions in section 627.736 discussed in this opinion, are part of the broader Florida “No-Fault” or personal injury protection (PIP) law.

      . This subsection underwent a minor, non-substantive, amendment subsequent to the commencement of the proceedings below, including deletion of the numeral "1” that immediately followed "(a).”

      . Although not at issue in this case, this would also include subsection (6)(a), which entitles PIP insurers to certain information from injured insured’s employers.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Xavier JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0899.
    District Court of Appeal of Florida, First District.
    June 22, 2015.
    Xavier Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n., 807 So.2d 733 (Fla. 1st DCA 2002). We encourage the circuit court to continue its efforts to expeditiously dispose of the motion pending below.

WOLF, WETHERELL, and BILBREY, JJ., concur.


text:
    Albert WILLIAMS, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW and Florida Department of Corrections, Respondents.
    No. 1D15-1079.
    District Court of Appeal of Florida, First District.
    June 22, 2015.
    Albert Williams, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Commission on Offender Review, Tallahassee; Jennifer Parker, General Counsel, Department of Corrections, Tallahassee, for Respondents.
   PER CURIAM.

In light of the circuit court’s order entered May 6, 2015, this petition for writ of mandamus is dismissed as moot.

WOLF, WETHERELL, and BILBREY, JJ., concur.


text:
    Detarsha Castro BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-2626.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2015.
    Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Walton v. State, 106 So.3d 522 (Fla. 1st DCA) (en banc), review granted, 145 So.3d 830 (Fla.2014).

THOMAS, WETHERELL, and RAY, JJ., concur.


author: May, J.

text:
    Zaira Gutierrez MORGAN, Appellant, v. Richard MORGAN, Appellee.
    No. 4D15-1607
    District Court of Appeal of Florida, Fourth District.
    January 18, 2017

      Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Donna Greenspan Solomon of Solomon Appeals, Mediation & Arbitration, Fort Lauderdale, for appellee.
   May, J.

The former wife appeals a final judgment of dissolution awarding her exclusive use and possession of the marital home, but leaving title in the name of both parties. She argues the trial court erred in not awarding her 100% of the home, not ordering the former husband to pay prior and future expenses for the home, and in not awarding her alimony, attorney’s fees, and costs. We affirm except for the trial court’s failure to address the issue of attorney’s fees and costs.

The former wife lived with the former husband in the marital home for about 25 years. She filed a sworn statement, attesting that the former husband vacated the marital home nine years prior to the proceedings. She attested that she paid around $40,000 in property taxes and homeowner’s association fees after the husband vacated the home. The former husband did not contribute to the home expenses nor child support after vacating the home. She claimed to have subsisted off of her disability checks. Due to illness, she was unable to obtain gainful employment until 2011 and was laid off shortly thereafter.

In 2013, the former wife petitioned for dissolution of marriage. Although she asked for alimony in the alternative, her primary goal was to obtain full ownership of the marital home through equitable distribution. She also requested attorney’s fees and costs. The former wife’s financial affidavit showed a gross monthly income of $1,219 while the former husband’s financial affidavit indicated a gross monthly income of $3,158.

The former husband answered and counter-petitioned. He requested sale of the former marital home with the proceeds to be “divided among the parties in proportion to their respective interests,” or that he receive “the temporary exclusive use and permanent ownership of the marital home.”

The parties prepared a statement of the evidence in lieu of providing a transcript. The statement reflects the former wife testified that the home had special features, including a special electric generator and an open floor plan. The former husband testified that there was nothing special about the home. It was a builder model similar to like models in the neighborhood. The former husband testified that he is disabled and unemployed. He collects social security, which is $289 more than the former wife’s monthly disability payments.

In closing, the former wife argued that the former husband had superior assets and financial ability, which she believed weighed in favor of awarding the home to her. She requested equitable distribution of the marital home. Alternatively, she requested 75% of the proceeds if the home is sold, and that the former husband pay half of the homeowner’s expenses exceeding $500. The former husband disagreed and requested that the home be sold with the profits split 50/50.

The trial court articulated its ruling at the end of the hearing. It ordered the former wife receive exclusive use and possession of the marital home with a 50/50 split of the proceeds upon its sale. The court requested the parties to submit proposed final judgments. After not having received a proposed final judgment from the former wife, the court set the matter for a status conference. Ultimately, the trial court signed the former husband’s proposed final judgment.

The trial court awarded the former wife exclusive use and possession of the marital home until her death or remarriage, and ordered her responsible for “all usual and customary expenses.” In the event the home was sold, the proceeds were to be split 50/50. The judgment indicated that the court considered the relevant factors for alimony and equitable distribution: (1) the standard of living established during the marriage; (2) the duration of the marriage; (3) the age and physical emotional condition of each party; (4) the financial resources of each party; (5) the earning capacities and educational levels of each; (6) the contribution of each party to the marriage; (7) all sources of income available to each; and (8) the opinion in Anderson v. Anderson, 489 So.2d 1232 (Fla. 1st DCA 1986). The judgment was silent regarding alimony and the former wife’s request for attorney’s fees and costs.

The former wife moved for rehearing, which the court denied. She now appeals.

The former wife argues the trial court erred in equitably distributing the marital assets. She argues the court failed to make the specific written findings required by section 61.075, Florida Statutes (2015). She also argues the court erred in failing to award her alimony. As an equal owner of the home, she argues the former husband should be responsible for half of the expenses and reimbursement for all repair expenses incurred after the former husband left the marital home. And last, she argues the court erred in failing to award her attorney’s fees and costs.

The former husband responds that the former wife improperly relies on her own self-serving statements attached to her motion for rehearing and not the record evidence. The court correctly awarded the former wife exclusive possession of the home as not only alimony, but equitable distribution of the only marital asset. The former wife invited error by requesting exclusive ownership of the home in lieu of alimony. He argues that the trial court complied with section 61.075 by listing its factors in the final judgment. With regard to attorney’s fees and costs, the former husband argues that the issue may have been waived, which cannot be determined without a transcript.

We review a trial court’s decision on the equitable distribution of marital assets and liabilities for an abuse of discretion. Pierre v. Pierre, 185 So.3d 1264, 1265 (Fla. 4th DCA 2016).

This is a case that reflects the old adage: “Be careful what you wish for.” Here the former wife requested ownership of the marital home. In fact, she asked for the home in lieu of alimony. The trial court essentially awarded her a life estate in the home as she was given full and exclusive possession of it. If however she sold the home, remarried, or died, the ownership of the home or proceeds from its sale would be split 50/50. So she did not receive all that she wished for, but did receive exclusive possession and use of the marital home.

When a court is equitably distributing assets, the starting point is an equal division of those assets. § 61.075(1), Fla. Stat. (2015). Here, the only marital asset in existence was the marital home. The court gave each party fifty percent ownership in that asset if the former wife sold the home, remarried, or died. She otherwise had exclusive possession of it. The court listed all the relevant factors under section 61.075, but did not analyze them.

The court also indicated that it relied upon Anderson v. Anderson, 489 So.2d 1232, 1234 (Fla. 1st DCA 1986), in reaching its decision. There, the First District also ordered the trial court to award the former wife exclusive possession of the home, as the trial court did here, with a 50/50 split upon remarriage, death, or sale of the home. “The critical question is whether the award is equitable and just given the nature of the case.” Id. (citing Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980)). The award here was equitable under the facts of this case, and we will not disturb it.

We also find no error in the court not ordering the former husband responsible for half of the expenses associated with the home. Unlike Anderson, where there was a significant financial disparity between the spouses’ income, here there was little financial disparity between the parties. The former wife was accustomed to not receiving financial support from the former husband since he left the marital residence nine years before the dissolution. The trial court was not required to hold the former husband responsible for future expenses of a home he was no longer permitted to live in. He had his own living expenses, which he outlined in his financial affidavit.

“In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay .,,. ” § 61.08(2), Fla. Stat. (2015). “The Court may provide for equitable distribution of marital assets and liabilities without regard to alimony for either party. After the determination of an equitable distribution of the marital assets and liabilities, the court shall consider whether a judgment for alimony shall be made,” § 61.075(9), Fla. Stat. (2015).

Here, the former wife waived her claim for alimony by specifically requesting the marital home in lieu of alimony. She cannot now argue the court erred in not awarding alimony. She invited the error. See Shingledecker v. State, 734 So.2d 483, 484 (Fla. 4th DCA 1999) (“A party may not invite error at trial and then be heard to complain of that error on appeal.”). By waiving her claim for alimony, the trial court was not required to make factual findings under section 61.08(2), Florida Statutes.

Even if the former wife had not waived alimony, she did not prove entitlement to it. The evidence revealed the former husband’s net income was less than the former wife’s. Because a spouse’s ability to pay may be determined from net income rather than gross income, the record demonstrated the former husband lacked the ability to pay. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla. 1980). And, “[exclusive possession given an ex-spouse ... sometimes [ ] constitutes an aspect of alimony.” Nolan v. Nolan, 100 So.3d 170, 171-72 (Fla. 5th DCA 2012).

The final judgment is however silent on the issue of attorney’s fees. “The standard for awarding attorney’s fees in dissolution cases is the financial need of the requesting party and the financial ability of the other party to pay.” Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005). Section 61.16(1), Florida Statutes, provides that a trial court “may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees.” § 61.16(1), Fla. Stat. (2015) (emphasis added).

Here, the trial court tacitly denied the requests for attorney’s fees and costs. Both parties requested fees, but the judgment does not address the issue. The court should have addressed the issue by making “specific findings of fact—either at the hearing or in the written judgment—supporting its determination of entitlement [or lack of entitlement] to an award of attorney’s fees.” Fichtel v. Fichtel, 141 So.3d 593, 596 (Fla. 4th DCA 2014) (citation and internal quotations omitted). We therefore reverse and remand only on the issue of attorney’s fees and costs.

Reversed and Remanded.

Ciklin, C.J., and Kuntz, J., concur.

      . The former wife filed a declaration providing more detail of the facts leading to the petition for dissolution. The statement of the evidence does not include most of the facts found in the declaration.

      . The former wife claimed to have submitted two proposed final judgments, and provided mail receipts. Neither. of them apparently reached the trial court.


text:
    Robert Riddle CLINTON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-0477
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 24, 2017

      Robert Riddle Clinton, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 18, 2016, Order Denying Motion for Postcon-viction Relief, filed in Case Nos. 2007-000425-CFAWS and 2007-000541-CFAWS, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EVANDER, BERGER, JJ., concur.


author: PER CURIAM

text:
    STATE of Louisiana v. Marcus Donte REED
    No. 2014-KA-1980
    Supreme Court of Louisiana.
    10/19/2016
   PER CURIAM

| ^Rehearing granted in part, otherwise denied. This Court erroneously determined that Assignments of Error 41, 42, 43, 46, 47, and 48 were procedurally barred. Notwithstanding this finding, the Court addressed each of these assignments of error on its merits in its opinion and found each one to be baseless. Accordingly, there are no grounds for granting defendant relief.

      . Retired Judge Michael Kirby sitting ad hoc for Crichton, J., recused.


author: PER CURIAM WEIMER, J.,

text:
    ST. JOHN THE BAPTIST PARISH SCHOOL BOARD v. STATE of Louisiana, et al.
    NO. 2015-CA-1659
    Supreme Court of Louisiana.
    12/05/2016
    LOUISIANA DEPARTMENT OF JUSTICE, Hon. Jeffrey Martin Landry, Attorney General, David Jeddie Smith, Jr., Assistant Attorney General; Joan Ellen Hunt; Willa Rebecca Smith; Patricia Hill Wilton; FAIRCLOTH, MELTON AND SOBEL, Brook L. Villa, Christie C. Wood, for Appellant.
    BLACKWELL & ASSOCIATES, Brian Francis Blackwell, Charles Leonard Patin, Jr.; KEAN MILLER, LLP, Randal R. Cangelosi, John Edward Heinrich; HAM-MONDS, SILLS, ADKINS & GUICE, LLP, Robert Lloyd Hammonds, Melissa Sophia Losch; GRANT & BARROW, Michael George Fanning, Glenn David Price, Jr., for Appellee.
   PER CURIAM

The State of Louisiana, the Louisiana State Board of Elementary & Secondary Education, and the State of Louisiana, through the Department of Education lodged this direct appeal pursuant to La. Const. Art. V, § 5(D), seeking review of the district court’s judgment declaring 2010 HRC 243 and 2011 HRC 130 violate La. Const. Art. VIII, § 2(A)(4)(a).

Pretermitting the merits, we find this case fails to present a justiciable controversy upon which relief can be granted. See Council of the City of New Orleans v. Sewerage and Water Board of New Orleans, 06-1989 (La. 4/11/07), 953 So.2d 798; Hoag v. State, 04-0857 (La. 12/1/04), 889 So.2d 1019; see also St. John the Baptist Parish School Board v. State of Louisiana, 15-0264 (La.App. 1st Cir. 7/12/16) (unpublished), writ denied, 16-1798 (La. 12/5/16), 211 So.3d 390. Accordingly, on our own motion pursuant to La. Code Civ. P. art. 927(B), we recognize the failure of the petition to state a cause of action, vacate the judgment of the district court and dismiss the suit.

DECREE

For the reasons assigned, the judgment of the district court is vacated and set aside, and the petition is hereby dismissed with prejudice.

Hughes, J., would grant and docket.

WEIMER, J.,

dissenting.

hi believe matters of great public significance, such as this one, which is related to the funding of public education, merit the state supreme court’s full consideration. On this basis, I would docket this matter for full briefing and argument before rendering a considered opinion.


text:
    STATE EX REL. Ross H. MCCAA v. STATE of Louisiana
    NO. 2016-KH-0885
    Supreme Court of Louisiana.
    October 28, 2016
   h Granted for the limited purpose of transferring the pleading to the Court of Appeal, Third Circuit, for its consideration as a request to compel the enforcement of its orders in State v. McCaa, 12-1046 (La. App. 3 Cir. 10/25/12) and State v. McCaa, 15-0486 (La. App. 3 Cir 9/14/15), if it has not already done so.

KNOLL, J., would deny. CLARK, J., would deny. CRICHTON, J., would deny.


text:
    STATE of Louisiana v. Carlos T. CLEMMONS
    NO. 2015-KO-1969
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 1201002; to the Court of Appeal, First Circuit, No. 2014 KA 1372.

| ^Denied


text:
    STATE EX REL. Gino Remi CRUCIA v. STATE of Louisiana
    NO. 2015-KH-1986
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 549289; to the Court of Appeal, First Circuit, No. 2015 KA 0303

|, Denied.


text:
    Cindy and Blake COUVILLION v. Ryan MATHERNE, D.D.S.
    NO. 2016-C-1559
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 2014-002852; to the Court of Appeal, First Circuit, No. 2015 CA 1762.

|, Denied.


text:
    John M. BYRD, Eugene Moore, Chris Navarro, and Joseph Michael Williams, Jerry Starr, individually and on behalf of His Minor Daughter Jamie Starr v. STATE of Louisiana, through the Department of Transportation & Development
    NO. 2016-C-1578
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 613,437; to the Court of Appeal, First Circuit, No. 2015 CA 0597

| ] Denied.


text:
    Calvin Joseph GUIDRY, et al. v. LAFAYETTE HEALTH VENTURES, INC., et al.
    NO. 2016-C-1643
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Vermilion, 15th Judicial District Court Div. C, No. 97171; to the Court of Appeal, Third Circuit, No. 15-307.

| denied.

WEIMER, J., would grant.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Peter GRANDPRE, Jr.
    NO. 2016-KK-1660
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 14-4005; to the Court of Appeal, Fifth Circuit, No. 16-K-368

| iDenied.

JOHNSON, C.J., would grant.


text:
    Jason TRICHE, Wife Melissa Triche, Individually and on behalf of their Minor Child, Payton N. Triche v. TURNER INDUSTRIES GROUP, LLC, and/or Turner Industries, LLC, Ace American Insurance Company/The Ace Group, Steadast Insurance Company, Kyle David Joekel, Terry Smith, Brian L. Smith, et al Jason Triche, Wife, Melissa Triche, Individually and on behalf of their Minor Child, Payton N. Triche v. Turner Industries Group, LLC, and/or Turner Industries, LLC, Kyle David Joekel, Terry Smith, Brian L. Smith, Ace American Insurance Company/The Ace Group, Steadast Insurance Company, Gemini Insurance Company, Axis Insurance Company, Valero Refining-New Orleans, LLC, and Diamond Green Diesel, LLC
    No. 2016-CC-1702
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 66279; to the Court of Appeal, Fifth Circuit, No. 16-C-120 C/W 16-C-126 & 16-C-127 & 16-C-128

| ] Denied.


text:
    STATE of Louisiana v. Kenya GAINES
    NO. 2016-KK-1553
    Supreme Court of Louisiana.
    August 17, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 11-2407; to the Court of Appeal, Fifth Circuit, No. 16-K-386

[t Stay denied; writ denied.


text:
    STATE of Louisiana v. David BROWN
    NO. 2016-KK-1901
    Supreme Court of Louisiana.
    October 20, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. A, No. 520,401; to the Court of Appeal, First Circuit, No. 2016 KW 1377;

| iDenied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Zachary GIBSON
    NO. 2016-KK-1764
    Supreme Court of Louisiana.
    October 24, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 521,459; to the Court of Appeal, Fourth Circuit, No. 2016-K-0807.

| jWrit granted. The district court is instructed to determine the relevance and admissibility of the seized assault rifle under Louisiana Code of Evidence Articles 401, 402, 403 and 404(B). See, e.g., State v. Manieri, 378 So.2d 931 (La. 1979).

CRICHTON, J., would deny.


text:
    STATE of Louisiana v. Alfredo SCHEXNAYDER
    NO. 2016-KK-1827
    Supreme Court of Louisiana.
    October 26, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 529-808; to the Court of Appeal, Fourth Circuit, No. 2016-K-1018

11 Stay denied. Writ denied.

CLARK, J., would grant.


text:
    STATE of Louisiana v. IN RE: GRAND JURY INVESTIGATION
    NO. 2016-KK-1828
    Supreme Court of Louisiana.
    October 26, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 529-171; to the Court of Appeal, Fourth Circuit, No. 2016-K-1027

11 Denied.

HUGHES, J., dissents and would grant for the reasons assigned by Judge Bonin with the Fourth Circuit Court of Appeal.


text:
    Ronald Lee STUTES and Carroll Lynn Stutes v. GREENWOOD MOTOR LINES, et al.
    NO. 2016-CC-1934
    Supreme Court of Louisiana.
    October 26, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. F, No. 2013-1119; to the Court of Appeal, Third Circuit, No. CW 16-00854

I denied.


text:
    STATE of Louisiana v. Woodrow KAREY, Jr., a/k/a Woodrow Karey, II
    NO. 2016-K-0377
    Supreme Court of Louisiana.
    October 28, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 17151-14; to the Court of Appeal, Third Circuit, No. 15-522;

|! Granted. See Order Attached.


text:
    BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College v. Gregory GUTH, et al.
    NO. 2016-C-1191
    Supreme Court of Louisiana.
    October 28, 2016
   Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court, Div. M, No. 2010-8897; to the Court of Appeal, Fourth Circuit, No. 2015-CA-0680

| |Writ granted. There are genuine issues as to material facts concerning whether Gregory and Maria Guth were the owners of the business or simply the lessors which preclude summary judgment in this case. Accordingly, the lower court decisions are reversed and the case is remanded to the district court for further proceedings.

WEIMER, J., would deny.

GUIDRY, J., would deny.


text:
    STATE of Louisiana v. Ross H. MCCAA
    NO. 2015-KP-1867
    Supreme Court of Louisiana.
    November 2, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. C, No. 89-113,530; to the Court of Appeal, Third Circuit, No. KH 15-00486.

|, Denied.

KNOLL, J., would grant.

CLARK, J., would grant.

CRICHTON, J., would grant.


text:
    Brian MCCANN, et al. v. CHRISTUS ST. FRANCES CABRINI HOSPITAL, et al.
    NO. 2016-C-1111
    Supreme Court of Louisiana.
    November 2, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. C, No. 247,132; to the Court of Appeal, Third Circuit, No. 16-21

hDenied.

CLARK, J., would grant and reinstate trial court’s grant of exception of prescription.


text:
    Eric BORCIK v. CROSBY TUGS, L.L.C.
    NO. 2016-CQ-1372
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Certified Question United States Court of Appeals for the Fifth Circuit, No. 15-30435;

h Certification granted.


text:
    John SONS, et al. v. STATE of Louisiana, Through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, et al.
    NO. 2016-CC-1391
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 2015-3948; to the Court of Appeal, Third Circuit, No. CW 16-00294

| granted. The judgment of the court of appeal is reversed, and the judgment of the district court is reinstated. Venue is governed by La. R.S. 13:5104. La. R.S. 22:639 is not a venue provision directed at a certain specific state agency. Colvin v. Louisiana Patient’s Compensation Fund Oversight Board, 06-1104 (La. 1/17/07), 947 So. 2d 15.

HUGHES, J., would deny.


text:
    John SONS, et al. v. STATE of Louisiana, Through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, et al.
    NO. 2016-CC-1392
    Supreme Court of Louisiana.
    November 7, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 2015-3948; to the Court of Appeal, Third Circuit, No. CW 16-00294

11 Granted. The judgment of the court of appeal is reversed, and the judgment of the district court is reinstated. Venue is governed by La. R.S. 13:5104. La. R.S. 22:639 is not a venue provision directed at a certain specific state agency. Colvin v. Louisiana Patient’s Compensation Fund Oversight Board, 06-1104 (La. 1/17/07), 947 So. 2d 15.

HUGHES, J., would deny.


text:
    Gregory NOYEL v. CITY OF ST. GABRIEL and St. Gabriel Police Department
    NO. 2016-C-1745
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 72,893; to the Court of Appeal, First Circuit, No. 2015 CA 1890;

| ¶ Denied.


text:
    Thomas J. SCIORTINO v. George J. SCIORTINO and Cynthia Kropog Sciortino
    NO. 2016-CC-1750
    Supreme Court of Louisiana.
    November 29, 2016
   Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court, Div. L, No. 2014-8537; to the Court of Appeal, Fourth Circuit, No. 2016-C-0781

| ¶ Denied.


text:
    Stephanie FAUCETTA v. Dr. Jerry ROSENBERG
    NO. 2016-CC-1758
    Supreme Court of Louisiana.
    November 29, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 759-500; to the Court of Appeal, Fifth Circuit, No. 16-C-513;

11 Denied.

GUIDRY, J., would grant.


text:
    GALLAGHER BASSETT SERVICES, INC./National Union Fire Insurance Company as Subrogee of April Celestine v. CANAL INSURANCE COMPANY and April Celestine and OM Logistics, LLC
    NO. 2016-C-1860
    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. B, No. 626,588; to the Court of Appeal, First Circuit, No. 2016 CA 0088;

11 Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. James EARL
    NO. 2016-KO-1329
    Supreme Court of Louisiana.
    December 5, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. F, No. 11 CR5 112566; to the Court of Appeal, First Circuit, No. 2015 KA 1383

h Denied.


author: GUIDRY, J.

text:
    Michael HAMPTON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NUMBER 2016 CA 0402
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 17, 2017
    Michael Hampton, Baton Rouge, LA, Plaintiff/Appellant In Proper Person
    Debra A. Rutledge, Baton Rouge, LA, Counsel for Defendant/Appellee Louisiana Department of Public Safety and Corrections
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   GUIDRY, J.

12Michael Hampton, a felon convicted of armed robbery, who was freed from his initial term of incarceration on good time release, but later violated the conditions of his release and was re-incarcerated, appeals a judgment of the district court that affirmed the decision of the Louisiana Department of Public Safety and Corrections (“DPSC”) denying his administrative remedy request (“ARP”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 18, 1994, Mr. Hampton was sentenced to 20 years imprisonment for the crime of armed robbery. On September 2, 1994, Mr. Hampton signed a “Good Time Rate Option and Approval Form,” wherein, in lieu of incentive wages, he agreed “to receive good time at the rate of thirty days for every thirty days in actual custody pursuant to La. R.S. 15:571.3.” Pursuant to his election to receive good time, Mr. Hampton was approved to become eligible to receive good time at the rate of thirty days for every thirty days in actual custody effective March 18, 1994. As a result of his election to receive good time, Mr. Hampton was released from prison on good time supervised parole on June 7, 2003.

In December 2007, Mr. Hampton committed the crimes of simple burglary and attempted simple burglary. He was arrested on December 29, 2007, but allowed to bond out of jail on January 6, 2008. Then on January 13, 2010, he was arrested by officers with the Baton Rouge Police Department, again for the offense of simple burglary. Following that arrest, a parole hold was placed on Mr. Hampton on January 25, 2010. Thereafter, a “Notice of Preliminary Hearing” was provided to Mr. Hampton for violating the terms of his good time release. On May 25, 2010, Mr. Hampton waived his right to a preliminary hearing and final parole revocation hearing and pled guilty to all parole violations. Hence, Mr. Hampton’s good time release was revoked, effective May 25,2010.

laOn October 13, 2010, Mr. Hampton pled guilty to the December 2007 charges of simple burglary and attempted simple burglary and was sentenced to eight and six years imprisonment, respectively, with the sentences to run concurrent with the 20-year sentence Mr. Hampton was serving for armed robbery.

At some point during his re-incarceration, Mr. Hampton’s parole eligibility was marked as “D” rather than “N” on his armed robbery sentence. However, on being transferred to the Phelps Reentry Program at Angola State Penitentiary, Mr. Hampton’s master prison record was corrected to reflect that he was not parole eligible.

On November 15, 2012, Mr. Hampton filed ARP No. CPCC-2012-0413, in which he complained about his parole eligibility status being changed from being at the discretion of the parole board to his not being eligible for parole. He further complained about an alleged addition of one month and 16 days to his sentence. After Mr. Hampton’s ARP was rejected at both steps of the DPSC’s administrative review, he filed a petition for judicial review of the denial of his complaints asserted in ARP No. CPCC-2012-0413 on June 11, 2013.

A commissioner with the Nineteenth Judicial District Court held a hearing on Mr, Hampton’s petition for judicial review on April 10, 2015, at which time Mr. Hampton appeared in proper person, having again been freed on good time release. On the date of the hearing, but prior to the actual hearing, Mr. Hampton filed a motion for subpoena duces tecum and a motion to amend his petition for judicial review to add a personal injury claim.

|4At the hearing, Mr. Hampton argued that pursuant to La. R.S. 15:574.9(F), the parole board had the authority to reinstate his release on good time supervised parole, and that before his transfer to the Phelps Reentry Program at Angola, his master prison record reflected his parole eligibility as being “D.S.C.B.” or at the “discretion of the board.” He further contended that prior to his good time release, he served one-half of his armed robbery sentence, ten years. In particular, he asserted that he was released from the Hunt Correctional Center on June 7, 2003, after accruing nine years and “some months, and days,” but on leaving Hunt, he was transferred to a Blue Walters program and then to the City of Faith Halfway House in Monroe, Louisiana. Thus, he argued that he had served a complete ten years before being freed on good time release.

The DPSC argued that any reference that may have appeared on Mr. Hampton’s master prison record indicating that he was parole eligible was simply an error that was later noticed and corrected. The DPSC further denied that an additional month and sixteen days was added to Mr. Hampton’s armed robbery sentence. According to the agency’s records, Mr. Hampton only served nine years, ten months, and 15 days before he was freed on good time release.

During the hearing, the commissioner advised Mr. Hampton that she found his parole eligibility argument to be moot, since he had been freed again on good time release. She further advised him that she would recommend that his motions for subpoena duces tecum and to amend his petition for judicial review be denied. As for the time-served calculations, the commissioner directed the DPSC to supplement the record with missing portions of Mr. Hampton’s master prison record for her to review. After the record was supplemented, the commissioner issued a report to the district court recommending that the decision of the DPSC (denying Mr. Hampton’s complaints under ARP No. CPCC-2012-0413) be affirmed, that Mr. Hampton’s petition be dismissed with prejudice, and that the | ^motions Mr. Hampton filed on April 9, 2015 (the date of the hearing before the commissioner), be denied. The district court signed a judgment consistent with the commissioner’s recommendations on November 10, 2015, which judgment Mr. Hampton appeals herein.

DISCUSSION

The first issue presented by Mr. Hampton in this appeal concerns whether the DPSC’s modification of his master prison record, removing the indication that he was parole eligible, was improper.

Louisiana Revised Statute 14:64(B) provides that whoever commits the crime of armed robbery shall be imprisoned at hard labor without the benefit of parole, probation, or suspension of sentence. Moreover, it has been held that the determination of the sentence a defendant is to serve, and what, if any, conditions are to be imposed on that sentence, is made by the trial judge, not the defendant’s custodian. The custodian’s obligation is to see that the sentence imposed is the sentence served. Blair v. Stalder, 99-1860, p. 9 (La.App. 1 Cir. 1/31/01), 798 So.2d 132, 139. Thus, the DPSC is charged with complying with any conditions placed on a sentence by the trial judge. Boddye v. La. Dept. of Corrections, 14-1836, p. 6 (La.App. 1 Cir. 6/26/16), 175 So.3d 437, 441, writ denied, 15-1688 (La. 10/30/15), 180 So.3d 303.

Mr. Hampton does not dispute, and at the hearing before the commissioner, he even acknowledged that he was sentenced to 20 years imprisonment, without the benefit of parole, on his armed robbery offense. So despite the temporary | ^indication otherwise in Mr. Hampton’s master prison record, and despite his actually having been afforded a hearing before the parole board in 2011, these actions by the DPSC cannot override the sentence imposed by the trial judge, which is that Mr. Hampton’s armed robbery sentence was to be served without the benefit of parole. Hence, as the DPSC is charged with complying with any conditions placed on a sentence by the trial judge, we find no error in the district court’s determination that the DPSC acted properly in correcting Mr. Hampton’s master prison record to reflect that Mr. Hampton’s armed robbery sentence was to be served without the benefit of parole, as imposed by the trial judge.

The remaining issue raised by Mr. Hampton on appeal is his contention that his master prison record incorrectly indicated that at the time his good time release was revoked, he had ten years, one month, and 16 days left to serve of his 20-year sentence. We find no merit to this argument.

At the time Mr. Hampton committed the offense of armed robbery, La. R.S. 15:571.3(B)(1) provided, in pertinent part:

Every inmate in the custody of the department who has been convicted of a felony and sentenced to imprisonment for a stated number of years or months may earn, in lieu of incentive wages, a diminution of sentence by good behavior and performance of work or self improvement activities, or both, to be known as “good time”.The amount of diminution of sentence allowed under the provisions of this Section shall be at the rate of thirty days for every thirty days in actual custody, including time spent in custody with good behavior pri- or to sentence for which defendant is given credit. Under the provisions of this Section, no inmate shall receive more than thirty days of good time or thirty days of jail credit for any calendar month while serving a term for consecutive sentences.

Moreover, La. R.S. 15:571.5 provided, in pertinent part:

|7B. (1) Before any prisoner is released on parole upon diminution of sentence, he shall be issued a certificate of parole that enumerates the conditions of parole. These conditions shall be explained to the prisoner and the prisoner shall agree in writing to such conditions prior to his release on parole,
(2) The person released because of diminution of sentence pursuant to this Part shall be supervised in the same manner and to the same extent as if he were released on parole. The supervision shall be for the remainder of the original full term of sentence. If a person released because of diminution of sentence pursuant to this Part violates a condition imposed by the parole board, the board shall proceed in the same manner as it would to revoke parole to determine if the release upon diminution of sentence should be revoked.
C. If such person’s parole is revoked by the parole board for violation of the terms of parole, the person shall be recommitted to the department for the remainder of the original full term. [Emphasis added.]

Prior to being freed on good time release, Mr. Hampton’s master prison record reflected a full-term release date of July 23, 2013, which was exactly 20 years from July 23,1993, the date Mr. Hampton started serving jail time for the armed robbery offense. Further, the diminution of sentence release form signed by Mr. Hampton upon being freed on good time release recited that Mr. Hampton was to “remain within the limits of the Baton Rouge District until July 23,2013.”

The jail time served by Mr. Hampton from March 18, 1994 (the date he was sentenced on the armed robbery offense), to June 7, 2003 (the date he was originally freed on good time release), was a total of nine years, two months, and twenty days. Mr. Hampton also accrued 238 days of jail credit because he remained incarcerated from the time he was arrested on the armed robbery offense to the time he was sentenced (July 23, 1993 to March 18, 1994). Thus, the total amount of time Mr. Hampton was actually imprisoned relative to the armed robbery offense was nine years, ten months, and 15 days (July 23, 1993 to June 7, 2003). However, during that same period of incarceration, Mr. Hampton earned certain educational credits, which accounted for him being released on' June 7, 2003. Otherwise, diminution of Mr. Hampton’s sentence strictly based on | ^accruing good time at the rate of thirty days for every thirty days spent in actual custody would have resulted in his not being released until July 23,2003.

Thus, as a result of the additional educational good time credits that Mr. Hampton earned, he was released on diminution of sentence before having fully served one-half of his sentence in actual custody. Nevertheless, this early release in no way impacted or changed Mr. Hampton’s original full term release date. Instead, as provided in La. R.S. 15:571.4(B)(2), “[a]n inmate who has been returned to the custody of the department because of a violation of the terms of parole granted by the committee on parole shall forfeit all good time earned or credits toward the reduction of the projected good time parole supervision date on that portion of the sentence served prior to the granting of parole.” So, as a consequence of Mr. Hampton violating the terms of his good time release, he forfeited not only the good time he had accrued for every thirty days he had spent in actual custody, he forfeited the educational good time credits he had accrued as well. And as prior to his good time release, Mr. Hampton had only served nine years, ten months, and 15 days in actual custody, we find the district court did not err in affirming the DPSC’s determination that Mr. Hampton had ten years, one month, and 16 days remaining to be served on the original full term of his sentence.

CONCLUSION

For the foregoing reasons, we find the DPSC properly dismissed Mr. Hampton’s complaints regarding his parole eligibility and time-served calculations. Thus, we affirm the judgment of the district court. All costs of this appeal are cast to the appellant, Michael Hampton.

AFFIRMED.

      . Based on the testimony presented at the hearing on judicial review, it is presumed that "D" stands for "discretion of the parole board” and "N” for "not eligible.”

      . Although the petitioner named several other persons associated with the DPSC as defendants in his petition for judicial review, the only proper party defendant is the DPSC, unless the matter involves a tort claim. See La. R.S. 15:1177(A)(1)(b).

      . See La. R.S. 13:711 and 713.

      . We observe that Mr. Hampton presents several assignments of error and arguments that are beyond the scope of the two issues expressly raised in the ARP that is the subject of this appeal. As a general matter, appellate courts will not consider issues raised for the first time, which are not pled in the court below and which the district court has not addressed. Council of City of New Orleans v. Washington, 09-1067, p. 3 (La. 5/29/09), 9 So.3d 854, 856. And while Mr. Hampton did attempt to raise these additional issues below, the district court properly did not consider them, as the district court's judicial review is limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level. See La. R.S. 15:1177(A)(5).

      . It has been held that the good time provisions that were in effect at the time of the commission of the offense govern good time credit eligibility, consistent with the general principle that the law in effect at the time of the commission of an offense is determinative of the penalty that an accused must suffer. See Massey v. Louisiana Department of Public Safety & Corrections, 13-2789 (La. 10/15/14), 149 So.3d 780.

      . This version of La. R.S, 15:571.3, which was enacted pursuant 1991 La. Acts, No. 138, is commonly referred to as simply "Act 138.” See Massey, 13-2789 at p. 2, 149 So.3d at 782.


author: McDonald, J.

text:
    Cesar ESPINOZA and Mayra Moreno, Individually and on Behalf of their Minor Children, Jair Espinoza and Jimena Moreno v. Jane DOE, ABC Insurance Company, and Go Auto Insurance Company
    2016 CA 0424
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 17, 2017
    Ivan A. Orihuela, Kenner, Louisiana And Ryan A. Creel, Metairie, Louisiana, Attorneys for Plaintiffs/Appellants, Cesar Espinoza and Mayra Moreno, individually and on behalf of their minor children, Jair Espinoza and Jimena Moreno

      Chase Tettleton, Kevin Kleinpeter, Timothy S. Babcock, Baton Rouge, Louisiana, Attorneys for Defendants/Appellees, Go Auto Insurance Company
    BEFORE: PETTIGREW, MCDONALD, and CALLOWAY, JJ.

       Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   McDonald, J.

lain this appeal, insureds under an automobile liability insurance policy challenge a judgment dismissing their underinsured-uninsured motorist (UM) claim against the insurer. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of January 6, 2013, Cesar Espinoza was driving a Chevrolet Tahoe and was stopped behind a stalled vehicle on Airline Highway in Gonzales, Louisiana. Mr. Espinoza’s wife, Mayra Moreno, and their minor children, Jair Espinoza and Jimena Moreno, were with him. A white Chevrolet truck was stopped immediately behind the Espinozas’ Tahoe. At some point, the white truck attempted to leave the line of stopped traffic and, in doing so, hit the rear of the Espinozas’ Tahoe. The driver of the truck then left the accident scene before the police arrived, but Mr. Espinoza noted that she was a white female and took a photograph of the truck’s license plate. Officer Anthony Cantrell of the Gonzales Police Department was dispatched to investigate the accident. After speaking to Mr. Espinoza, Officer Cantrell called in the truck’s license plate number to a dispatcher, who was able to identify William Morris as the truck’s registered owner, but who was unable to provide Office Cantrell with Mr. Morris’ contact information.

Later the same day, while visiting a family member’s home, Mr. Espinoza saw the truck that hit him, and the white female who was driving it, across the street. He called Officer Cantrell, who then drove to meet Mr. Espinoza, and Mr. Espinoza identified the white female and the truck to him. Officer Cantrell confirmed that the truck’s license plate number was the same number Mr. Espinoza had given him at the accident scene and saw that the front of the truck was damaged. He spoke to the female, Selena Morris, and obtained her driver’s license number. Ms. Morris told Officer Cantrell that she did not have insurance. Officer Cantrell did not speak to William Morris, the truck’s registered owner, nor determine whether Mr. Morris had insurance coverage on the truck. The record does not show the relationship, if any, between Selena and William Morris.

LThe Espinozas filed a personal injury suit, individually, and on behalf of their children, against Jane Doe, identified as the phantom driver, and against Go Auto Insurance Company, identified as the Es-pinozas’ UM insurer. Go Auto answered the suit and filed a third party demand against Mr. Morris, Ms. Morris, and ABC Insurance Company. Ultimately, a bench trial was held, at the end of which, the trial court ordered the parties to submit post-trial briefs regarding whose burden it was to prove the existence of underlying insurance coverage. Later, on October 14, 2015, the trial court signed a judgment: (1) in favor of Jane Doe, ABC Auto Insurance Company, and Go Auto, and dismissing the plaintiffs’ claims with prejudice, and (2) in favor of Go Auto and against Ms. Morris on the third party demand for $17,912.83, plus costs and interest.

The plaintiffs appeal from the adverse judgment contending, in a single assignment of error, that the trial court erred in rendering judgment against them. They claim their Go Auto policy provided UM coverage and that they proved Ms. Morris was uninsured.

DISCUSSION

A plaintiff seeking to recover insurance proceeds has the burden of proving every fact essential to establish that his claim is within the policy coverage. William Shelby McKenzie & H. Alston Johnson, III, 15 Louisiana Civil Law Treatise: Insurance Law and Practice, § 4:12. See Keller v. Amedeo, 512 So.2d 385, 387 (La. 1987); Campbell v. Am. Home Assur. Co., 260 La. 1047, 1057, 258 So.2d 81, 84 (1972). To recover against his UM insurer, an insured must prove that the owner and operator of the vehicle involved in the accident did not have automobile liability insurance in effect on the date of the accident. Louisiana Revised Statute 22:1295(6) provides three methods for establishing prima facie proof of such by affidavit. If the insured does not use the affidavits as described in LSA-R.S. 22:1295(6), he must prove the owner and operator’s uninsured status with other admissible evidence. See Gillmer v. Parish Sterling Stuckey, 09-0901 (La.App. 1 Cir. 12/23/09), 30 So.3d 782, 787. The effect of the prima facie evidence is to shift the burden of proof from the party alleging the uninsured status of the vehicle) 4 to the insured’s UM insurer. LSA-R.S. 22:1295(6)(d); see Lozano v. Brown, 10-489 (La.App. 5 Cir. 1/25/11), 60 So.3d 669, 671.

Officer Cantrell’s trial testimony establishes that Mr. Morris was the registered owner of the offending truck and that Ms. Morris was the operator of the truck on January 6, 2013, the day of the accident. Officer Cantrell’s trial testimony, which was unchallenged, also established that Ms. Morris did not have automobile liability insurance in effect on that date. But, there is no evidence in the record, by affidavit or otherwise, that proves Mr. Morris did not have automobile liability insurance. The fact that Ms. Morris, the operator of the truck, admitted to Officer Cantrell that she did not have insurance is not proof that Mr. Morris, the owner of the truck, likewise had no insurance.

Thus, because plaintiffs failed to prove that Mr. Morris was uninsured, the trial court did not err in rendering judgment in favor of Go Auto and dismissing the plaintiffs’ claims with prejudice. See Chauncy v. Allen, 15-0874 (La.App. 1 Cir. 2/26/16), 191 So.3d 25, 30-31.

CONCLUSION

For the above reasons, the October 14, 2015 judgment is affirmed. Costs of this appeal are assessed to Cesar Espinoza and Mayra Moreno.

AFFIRMED.


author: THERIOT, J.

text:
    In the MATTER OF the SUCCESSION OF Effie Mae Evans PORCHE
    NO. 2016 CA 0538
    Court of Appeal of Louisiana, First Circuit.
    FEBRUARY 17, 2017

      Charles G. Blaize, Jr., Spencer R. Schoonenberg, Baton Rouge, Louisiana, Counsel for Appellant Cedric Brown, as natural tutor on behalf of his minor son, Cedric Dorien Lastat Brown
    Kendall Plain, Baton Rouge, Louisiana, Counsel for Appellee Kelli LaToye Turner
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

|2The appellant, Cedric Brown, as natural tutor on behalf of his minor son, Cedric Dorien Lastat Brown, seeks review of a judgment modifying a prior ruling on opposing motions for summary judgment and placing certain restrictions on the use and maintenance of funds within a savings account. For the following reasons, we dismiss the appeal for want of appellate jurisdiction.

FACTS AND PROCEDURAL HISTORY

On September 9,2014, the appellee, Kelli LaToye Turner, filed a petition for possession seeking to be recognized as the sole hen1 of the decedent, Effie Mae Evans Porche, who died intestate in March of 2013. Ms. Turner claimed that she was the only child of the decedent, that the succession of the decedent was relatively free of debt, that no inheritance taxes were due, that no creditors had demanded an administration, and that no administration of the succession was necessary. Ms. Turner therefore requested the trial court issue a judgment of possession placing her into possession of all of the property of the decedent, as described more fully in an attached detailed descriptive list of assets.

On September 11, 2014, based upon the petition for possession and the record of the proceeding, the trial court signed a judgment of possession dispensing of the administration of the succession and recognizing Ms. Turner as the owner of, and sending her into possession of, all of the decedent’s property. In pertinent part, the trial court recognized Ms. Turner as the owner of a certain savings account with Neighbors Federal Credit Union, in the name of one Effie T. Porche, account no. 801271068-2 (“the savings account”). The savings account had a listed value of $47,081.66.

IsOn September 26, 2014, the appellant, Mr. Brown, filed a petition to re-open and amend the judgment of possession on behalf of his minor son, Cedric Dorien Lastat Brown (“Cedric Jr.”). Mr. Brown claimed that Cedric Jr. was the decedent’s nephew and that his full name was listed on the savings account as a payee and/or owner and designated beneficiary. Mr. Brown alleged that Cedric Jr. was entitled to ownership and possession of the full value of the savings account. Mr. Brown claimed that the succession should be reopened and the judgment of possession amended to reflect Cedric Jr.’s ownership and possession of the savings account.

On March 24, 2015, Ms. Turner filed a motion for summary judgment with respect to the claims asserted by Mr. Brown. Ms. Turner claimed there were no genuine issues of material fact and that Mr. Brown could not establish the burden of proof for all elements of the asserted cause of action; that is, Ms. Turner claimed that Mr. Brown could not present evidence sufficient to establish that Cedric Jr. maintained and/or was entitled to ownership of the savings account. Mr. Brown opposed Ms. Turner’s motion.

On June 19, 2015, Mr. Brown filed a motion for summary judgment arguing that he, as natural tutor on behalf of his minor son, was entitled to judgment as a matter of law. Mr. Brown specifically requested the following relief in his motion for summary judgment: 1) that the trial court render judgment declaring each and every deposit of money into the savings account constituted a donation inter vivos through manual gift in favor of Cedric Jr., and 2) that the trial court render judgment declaring that Cedric Jr., as donee of the aforementioned donations, is entitled to ownership and possession of the funds in the savings account. In support of his motion for summary judgment, Mr. Brown attached, amongst other things, copies of I ¿bank statements detailing the various deposits of money that he argued were donations made in favor of Cedric Jr.

On June 29, 2015, the trial court held a hearing on the opposing motions for summary judgment. The record does not contain a transcript of this hearing, but, according to the minute entry, counsel for both parties made appearances and offered arguments on the motions, and the trial court orally rendered judgment in favor of Mr. Brown. Following the conclusion of the hearing, on July 14, 2015, the trial court signed a judgment in accordance with its oral ruling, denying the motion for summary judgment filed on behalf of Ms. Turner and granting the motion for summary judgment filed on behalf of Mr. Brown. The trial court declared that each and every deposit of money into the savings account constituted a donation inter vivos through manual gift in favor of Cedric Jr., and declared that Cedric Jr., as donee of the aforementioned donations, was entitled to ownership and possession of the funds in the savings account. That same date, July 14, 2015, the clerk of court mailed notice of judgment to counsel of record for Ms. Turner and Mr. Brown.

Shortly thereafter, Ms. Turner retained new counsel. On August 14, 2015,-Ms. Turner filed a motion for new trial through new counsel, arguing that the trial court’s ruling on the motions for summary judgment was clearly contrary to the law and evidence. Ms. Turner submitted that only $10,692.84 of the funds within the savings account could have been determined to be the property of Cedric Jr., and she claimed that the remainder of the funds should have been maintained within the succession of the decedent.

Mr. Brown responded to Ms. Turner’s motion for new trial by filing a motion to strike the motion for new trial. Mr. Brown noted that the trial 1 Bcourt mailed notice of judgment to counsel of record for all parties on July 14, 2015, and that Ms. Turner had not filed her motion for new trial until August 14, 2015. Mr. Brown argued that the motion for new trial was untimely pursuant to La. C.C.P. art. 1974. Mr. Brown therefore prayed that the motion for new trial be dismissed without the necessity of a hearing.

On October 22, 2015, Ms. Turner filed a motion to set aside, nullify, and/or in the alternative modify judgment and reinstate the previous judgment of possession. Ms. Turner again argued that the trial court’s ruling on the motions for summary judgment was clearly contrary to the law and the evidence. Ms. Turner further claimed that the trial court’s judgment allowed for the unjust enrichment of Mr. Brown. Ms. Turner requested the trial court order Mr. Brown to appear before the court for a hearing and show cause as to why the trial court should not set aside, nullify, and in the alternative modify the ruling on the motions for summary judgment, including, amongst other things, to show cause as to why the funds awarded to Cedric Jr. should not be put into a trust account for the minor child until he turned eighteen years old.

On November 30, 2015, the motion for new trial, the motion to strike the motion for new trial, and the motion to set aside, nullify, and/or in the alternative modify judgment and reinstate the previous judgment of possession all came before the trial court for a hearing. On December 30, 2015, the trial court signed a judgment denying Ms. Turner’s motion for new trial as untimely, denying Mr. Brown’s motion to strike the motion for new trial, and granting, in part, and denying, in part, the motion to set aside, nullify, and/or in the alternative modify judgment and reinstate the previous | ¿judgment of possession. The trial court ordered all funds in the savings account be maintained, preserved, and administered in accordance with the tutorship laws of Louisiana, as set forth in La. C.C.P. art. 4031, et seq.; ordered Mr. Brown to place the funds in the savings account in trust or in the registry of the court within thirty days of the notice of the signing of the judgment; ordered Mr. Brown to obtain court approval for any action affecting the minor’s property; and ordered Mr. Brown to file an annual accounting. The trial court denied the motion to set aside, nullify, and/or in the alternative modify judgment and reinstate the previous judgment of possession in all other respects. Mr. Brown now appeals.

ASSIGNMENT OF ERROR

Mr. Brown raises the following assignment of error:

1. The trial court committed error when it rendered its December 30, 2015 judgment, insofar and only insofar as it amended its original July 14, 2015 judgment.

DISCUSSION

Initially, we must consider the rule to show cause order issued by this court, ex proprio motu, on May 5, 2016. The rule to show cause order noted that the trial court’s December 30, 2015 judgment appeared to be a nonappealable ruling and directed the parties to show cause as to whether or not the appeal should be dismissed for this reason. On September 19, 2016, the rule to show cause order was referred to the panel to which the merits of the appeal were assigned.

Louisiana Code of Civil Procedure art. 1841 states that a judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. A judgment may be interlocutory or final. A judgment which does not determine the merits but only preliminary matters in the course of an action is an interlocutory judgment, whereas a | judgment that determines the merits in whole or in part is a final judgment. The appellate jurisdiction of this court extends to final judgments. See La. C.C.P. art. 2083; Kelly v. Kelly, 16-0206 (La.App. 1 Cir. 10/31/16), — So.3d -, -, 2016 WL 6534299.

Under Louisiana law, the form and wording of judgments are not sacramental, but the courts do require judgments to be precise, definite, and certain. See Laird v. St. Tammany Parish Safe Harbor, 02-0045 (La.App. 1 Cir. 12/20/02), 836 So.2d 364, 365. In addition, a final judgment must be identified as such by appropriate language, see La. C.C.P. art. 1918, and must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Kelly, — So.3d at -. Moreover, a final and appealable judgment must contain appropriate decretal language disposing of or dismissing the ciatos in the case. These determinations should be evident from the language of the judgment without reference to other documents in the record. Id.

In the case at bar, the trial court’s December 30, 2015 judgment granted, in part, Ms. Turner’s motion to set aside, nullify, and/or in the alternative modify judgment and reinstate the previous judgment of possession, and set forth certain restrictions on the use and maintenance of the funds within the savings account. The trial court’s December 30, 2015 judgment is not identified or designated as a final judgment, and, since the judgment modified and amended the trial court’s July 14, 2015 ruling on the opposing motions for summary judgment, the relief granted can only be understood by reference to the trial court’s prior judgment.

In sum, the imprecise, indefinite, and uncertain nature of the trial court’s December 30, 2015 judgment illustrate that, on its face, the judgment is not a final and appealable judgment over which our appellate jurisdiction ^extends. The proper procedural vehicle to contest an interlocutory judgment is an application for supervisory writ. See La. C.C.P. art. 2201; Alex v. Rayne Concrete Service, 05-1457 (La. 1/26/07), 951 So.2d 138, 144. Therefore, we dismiss this appeal and remand this matter to the trial court for further proceedings.

DECREE

For the foregoing reasons, we dismiss this appeal for want of appellate jurisdiction and remand this case to the trial court for further proceedings. All costs of this appeal are assessed to the appellant, Cedric Brown, as natural tutor on behalf of his minor son, Cedric Dorien Lastat Brown.

APPEAL DISMISSED.

      . Louisiana Code of Civil Procedure art. 1974 provides that the delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment.

      . Here, we recognize that we have discretionary authority to convert an appeal from an interlocutory judgment to an application for supervisory writ. See Stelluto v. Stelluto, 05-0074 (La. 6/29/05), 914 So.2d 34, 39. However, the appellate courts of this state ordinarily convert an appeal to an application for supervisory writ only if the motion for appeal is filed within the thirty-day time period allowed for the filing of an application for supervisory writ under Rule 4-3 of the Uniform Rules— Courts of Appeal. See e.g., KAS Properties, LLC v. La. Bd. of Sup’rs for La. State Univ., 14-0566 (La.App. 1 Cir. 4/21/15), 167 So.3d 1007, 1010; Wadick v. General Heating & Air Conditioning, LLC, 14-0187 (La.App. 4 Cir. 7/23/14), 145 So.3d 586, 593, writ denied, 14-1913 (La. 11/21/14), 160 So.3d 972. In the instant case, Mr. Brown did not file his motion for devolutive appeal until February 12, 2016, after the expiration of the thirty-day period for filing an application for supervisory writ; accordingly, we decline to exercise our discretionary authority to convert this appeal to an application for supervisory writ.