text:
    ANGELS SENIOR LIVING AT CONNERTON COURT, LLC; and Connerton Court, LLC, Appellants, v. Richard G. GUNDRY, as personal representative of the Estate of Edna E. Gundry, deceased, Appellee.
    Case No. 2D16-2080
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2017.

      Alec G. Masson, James P. Waczewski, and Dale J. Paleschic of Luks, Santaniello, Petrillo <& Jones, Tallahassee, for Appellants.
    Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa, for Ap-pellee.
   LaROSE, Judge.

Angels Senior Living at Connerton Court, LLC, and Connerton Court, LLC (Connerton), appeal a nonfinal order denying their motion to compel arbitration. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv). The case arises from the wrongful death of Mrs. Gundry. We reverse and remand for the trial court to compel arbitration.

Background

Mrs. Gundry was admitted to Conner-ton, an assisted living facility, in the spring of 2014. The events underlying the wrongful death lawsuit filed by her Estate occurred about one year later. Her sons, with power of attorney, signed the admission documents, including an arbitration agreement, on her behalf. Execution of the arbitration agreement was not a prerequisite to ensure Mrs. Gundry’s admission to Connerton.

The arbitration agreement included a delegation provision stating that “[a]ny dispute over [the] interpretation, scope, waiver or enforceability of this [a]greement and/or this [ajgreement’s arbitration is exclusively for the arbitrator to decide.” The agreement also contained a discovery clause that limited discovery “to production of written documents and depositions of opposing parties, treating physicians and expert witnesses. No other individuals may be deposed.”

Upon the filing of the lawsuit, Conner-ton moved to compel arbitration. The Estate argued that the arbitration agreement was void as against public policy because it incorporated the American Health Lawyers Association (AHLA) arbitration rules and limited discovery. Finding that the discovery limitation violated public policy, the trial court denied the motion.

Analysis

Issue 1: Delegation Provision

Connerton argues that the trial court lacked authority to determine whether the arbitration agreement was valid; the delegation clause, it tells us, vested that power in the arbitrator. See Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 74, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). Generally, when an “[arbitration] [a]greement contains a delegation provision, we only retain jurisdiction to review a challenge to that particular provision. Absent a direct challenge, we must treat the delegation provision as valid and allow the arbitrator to determine the issue of arbitrability.” Parnell v. CashCall, Inc., 804 F.3d 1142, 1148 (11th Cir. 2015) (citing Rent-A-Center, 561 U.S. at 72, 130 S.Ct. 2772).

Connerton failed to raise this issue in its initial motion to compel arbitration or at the hearing on the motion. Conner-ton raised the issue in a second motion to compel arbitration, essentially seeking rehearing of the trial court’s ruling. “Florida law does not authorize multiple motions to compel arbitration. Section 682.03(1), Florida Statutes (2005), author-fees an ‘application to the court’ to proceed with arbitration, not applications.” Wegner v. Schillinger, 921 So.2d 854, 855 (Fla. 4th DCA 2006) (emphasis omitted). The trial court did not err in refusing Connerton’s tardy entreaty. See Hubert v. Div. of Admin., Dep’t of Transp., 425 So.2d 671, 672 (Fla. 2d DCA 1983) (“[R]e-hearings are not authorized as to interlocutory or nonfinal orders.” (citing Wagner v. Bieley, 263 So.2d 1 (Fla. 1972))); Commercial Garden Mall v. Success Acad., Inc., 453 So.2d 934, 935-36 (Fla. 4th DCA 1984) (“While a non-final order is not subject to a petition for rehearing, it is also true that a trial court has jurisdiction to control its own non-final orders prior to entry of final judgment.” (citation omitted)).

Issue 2: Void As Against Florida Public Policy

With the delegation provision not in play, “it [is] for the court, not the arbitrator, to determine ‘whether a valid written agreement to arbitrate exists.’ ” Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 459 (Fla. 2011) (quoting Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999)). The Estate argues principally that the discovery limitation violates public policy, thus invalidating the entire arbitration agreement. The Estate also argues that application of the AHLA arbitration rules violates public policy. See Shotts, 86 So.3d at 478 (holding that the clause providing for the use of AHLA rules was against public policy and could not be severed because it goes to the essence of the agreement). We note that the AHLA rules have been changed substantially since Shotts. Importantly, the arbitration agreement provides that Florida law controls the issue of damages. The agreement does not bar the award of punitive damages, nor does it cap noneconomic damages. The AHLA rules in effect now and at the time of the hearing contained no restrictions on the recovery damages.

The Estate asserts that the discovery limitation “completely undermines the Estate’s ability to vindicate the statutory and common law rights of its decedent under statutory law, common law[,] and the public policy of the state of Florida.” The discovery provision allows for document production and the deposition of experts, treating physicians, and opposing parties. Moreover, Connerton has stipulated to allow the depositions of its current employees in the arbitration proceeding. Although Connerton cannot control the deposition of past employees, the Estate has advanced nothing to show that, at this point, it needs discovery from former employees.

Even if the discovery clause does not provide the full panoply of discovery available under Florida Rule of Civil Procedure 1.280(b), we are reluctant to conclude that the provision violates public policy. In light of Connerton’s concession concerning the deposition of current employees, we cannot say that the Estate will be denied meaningful discovery. Further, the applicable AHLA rules will provide the Estate an opportunity to seek additional discovery if necessary.

Ms. Gundry was admitted to Connerton on April 22, 2014. The current version of the AHLA rules dates to March 14, 2016. The events giving rise to Ms. Gundry’s death occurred on May 17, 2015. AHLA Arbitration Rule 1.1 states that “[a] claim will be arbitrated in accordance with the version of these rules ... posted on the website of [AHLA] on the date a Demand for Arbitration is received.” AHLA Arbitration Rule 5.5 of discovery states:

To promote speed and efficiency, the arbitrator, in his or her discretion, should permit discovery that is relevant to the claims and defenses at issue and is necessary for the fair resolution of a claim. ... An arbitrator may depart from any contract provision that is inconsistent with this [discovery] rule.

Additionally, AHLA Arbitration Rule 6.6 states that “[t]he parties may offer whatever evidence the arbitrator regards as relevant and material to the dispute. ,.. [T]he arbitrator need not follow rules applicable in court proceedings, but should generally permit evidence to be introduced that is relevant, material, and will allow for a fair adjudication of the matter.” AHLA Arbitration Rule 6.6 (March 2016). The availability of added discovery through the AHLA rules further minimizes the Estate’s concern about being unable to fully present its case.

We conclude that the parties’ agreement to follow AHLA rules and to limit discovery did not violate public policy. Indeed, the Estate will have a meaningful opportunity to conduct discovery and present its case. The trial court should have granted the motion to compel arbitration. Because the arbitration agreement is not void as against public policy, we need not address Connerton’s alternative argument that any offensive clause could be severed.

Conclusion

We reverse the trial court’s denial of the motion to compel arbitration and remand for the trial court to enter an order granting Connerton’s motion.

Reversed, and remanded with instructions.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . Section 682.03 has been substantially revised. See ch. 2013-232, § 8, at 2751-52, Laws of Fla. However, the effect is the same; the newly stated statute does not call for multiple motions.

      . Prior AHLA rules limited or even eliminated legislatively created remedies for nursing home residents. See Shotts, 86 So.3d at 474 ("[W]e conclude that the limitations of remedies provisions in the present case violate public policy, for they directly undermine specific statutory remedies created by the Legislature.”).
      We also note that the remedial statutes applicable for residents of an assisted living facility require proof only by a preponderance of the evidence for a claim alleging a violation of a resident’s rights or negligence causing injury to the resident. See § 429.29(2), Fla. Stat. (2015).

      . The applicable version of the rules when the Estate brought suit was the April 7, 2014, version. However, in light of our'decision, the applicable AHLA rules will be those in effect when a demand for arbitration is made.


source: Caselaw Access Project

author: SLEET, Judge.

license: Public Domain

text:
    Olivero GONZALEZ and Carol Perdomo, Appellants, v. HOMEWISE PREFERRED INSURANCE COMPANY and Florida Insurance Guaranty Association, Appellees.
    Case No. 2D15-425
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2017

      Kimberly Hendee, Michael V. Laurato, and Hannah Austin of Austin & Laurato, P.A., Tampa, for Appellants.
    G. William Bissett, Jr. of the Law Firm of Kubicki Draper, P.A., Miami, for Appel-lee, Florida Insurance Guaranty Association.
    No appearance for Appellee, Homewise Preferred Insurance Company.
   SLEET, Judge.

Oliver Gonzalez and Carol Perdomo challenge the trial court’s order dismissing with prejudice their breach of insurance contract action as to the Florida Insurance Guaranty Association (FIGA). Because an insured who has already instituted an action against his or her homeowner’s insurance carrier prior to the carrier being declared insolvent is not statutorily required to file a new action against FIGA or separately serve FIGA in the pending action, we reverse.

In 2009, Gonzalez and Perdomo timely filed a cause of action for breach of insurance contract against their homeowner’s insurance carrier, Homewise Preferred Insurance Company, and the case was set for jury trial. However, in 2011 Homewise became insolvent, and pursuant to section 631.67, Florida Statutes (2011), the proceedings were automatically stayed for six months “to permit proper defense by [FIGA].” During the stay, FIGA notified Gonzalez and Perdomo that it had assumed their claim and had assigned it to an adjuster. FIGA also advised them that the deadline for filing suit against it was the one-year statutory period set forth in section 631.68. Gonzalez and Perdomo subsequently moved to amend their complaint to substitute FIGA for Homewise as the defendant. The trial court granted the motion and ordered Gonzalez and Perdomo to serve FIGA with process.

The one-year statutory deadline that FIGA gave Gonzalez and Perdomo for instituting a new lawsuit against it expired without their effecting service upon FIGA. FIGA’s counsel then made a limited appearance and filed a motion to dismiss this action. The trial court granted FIGA’s motion to dismiss, interpreting section 631.68 to require that when FIGA assumes the defense of a covered claim, an insured who has already filed a timely lawsuit against its homeowner’s insurance carrier must file a new lawsuit against FIGA within section 631.68’s one-year filing period or be forever barred. This appeal ensued.

On appeal, Gonzalez and Perdomo argue that- the trial court erred in granting FIGA’s motion to dismiss for lack of jurisdiction because section 631.68 only applies to new lawsuits filed against FIGA after an insurer is declared insolvent. They maintain that the statute is inapplicable here because they instituted their suit against Homewise prior to insolvency and such suit was still pending at the time of insolvency. We agree.

Chapter 631, part II, known as the “Florida Insurance Guaranty Association Act,” § 631.50, created FIGA in part to “[pjrovide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer,” § 631.51(1). The Act expressly states that it is to be liberally construed to achieve its purpose. § 631.53.

When an insurer is declared insolvent, FIGA is “deemed the insurer to the extent of its obligation on the covered claims, and, to such extent, shall have all rights, duties, defenses, and obligations of the insolvent insurer as if the insurer had not become insolvent.” § 631.57(l)(b). As such, the Act contemplates that FIGA will step into the shoes of the insolvent insurer. Therefore, in cases where the insolvent insurer is already the defendant in a pending lawsuit, FIGA becomes the defendant in that pending lawsuit. To that end, section 631.67 of the Act explicitly states that it applies to pending proceedings and automatically stays those proceedings for a period of six months. Id. (“All proceedings in which the insolvent insurer is a party or is obligated to defend a party in any court or before any quasi-judicial body or administrative board in this state shall be stayed for [six] months .... ”). The Act also automatically extends to FIGA certain rights that only a party to those pending proceedings would have, including the right to “apply to have any judgment, order, decision, verdict, or finding based on the default of the insolvent insurer or its failure to defend an insured set aside ... and ... to defend against such claim on the merits.” Id. Accordingly, in cases where a lawsuit is pending at the time of insolvency, FIGA becomes the party defendant by operation of statute and there is no need for the filing of a new lawsuit against FIGA or for FIGA to be separately served in the pending lawsuit.

We therefore must conclude that the reliance by FIGA and the trial court on section 631.68 as a bar to the instant action is misplaced. Section 631.68 is entitled “Limitation; certain actions” and states as follows:

A covered claim as defined herein with respect to which settlement is not effected and suit is not instituted against the insured of an insolvent insurer or the association within [one] year after the deadline for filing claims, or any extension thereof, with the receiver of the insolvent insurer shall thenceforth be barred as a claim against the association and the insured.

This section addresses instances where no lawsuit was filed before the insurer was declared insolvent. Such is not the case here. Gonzalez and Perdomo filed their lawsuit against Homewise prior to the declaration of insolvency. Upon the declaration of Homewise’s insolvency, FIGA statutorily became Gonzalez and Perdomo’s insurer, having the duty to defend against their first-party lawsuit as if Homewise had not become insolvent. See § 631.57(l)(b). As such, Gonzalez and Perdomo were not required to file a new lawsuit against FIGA or to even move to substitute FIGA as a party and serve process upon it in their pending lawsuit.

Our conclusion is in line with the Third District’s recent opinion in Florida Insurance Guaranty Ass’n v. Mendoza, 193 So.3d 940 (Fla. 3d DCA 2016), a case that is factually indistinguishable from the instant case. Like Gonzalez and Perdomo, Ms. Mendoza filed a first-party breach of contract action against her insurance carrier based on a coverage dispute. Her insurer subsequently was declared insolvent. FIGA then began negotiating a settlement with Mendoza. Ultimately, Mendoza filed a motion to substitute FIGA for her insolvent insurer as the first-party defendant in her still pending lawsuit. FIGA responded by filing a limited appearance to contest the trial court’s jurisdiction, arguing that the trial court lacked jurisdiction because Mendoza’s motion to substitute was filed after the statute of limitations governing claims against FIGA had already run. The trial court disagreed with FIGA and granted Mendoza’s motion to substitute.

On appeal, the Third District looked at the entire “statutory scheme [of chapter 631] governing insolvent insurers!] and the role of FIGA in that scheme.” Id. at 943. Specifically, the court pointed out that “Mendoza’s substitution motion merely reflected what had already occurred by operation of section 631.57(l)(b) when [the insurer] was declared insolvent.” Id. at 944. The court also noted the automatic stay provided by section 631.67, as well as its stated purpose of permitting a proper defense by FIGA of all pending causes of action on covered claims and that the statute “allows FIGA to request from the trial court that the stay be enlarged, shortened!,] or waived.” Id. Noting that “[section 631.68 must be read in harmony with section 631.67, and all other related provisions of chapter 631, in order that the objectives of each of the chapter’s provisions not be sacrificed,” id. at 945, the Third District concluded that “FIGA’s interpretation of section 631.68 would impair those specific [sections of chapter 631] that address pending cases,” id. at 944. The court therefore concluded that “[s]ection 631.68 bars suits that have not yet been filed (in other words, non-pending [sic] lawsuits) from being filed more than one year beyond the deadline for filing claims with the receiver for the insolvent insurer.” Id.

We agree with the Third District’s reasoning in Mendoza and its conclusion that “[n]othing in chapter 631 contemplates the necessity for the plaintiff in a pending first-party lawsuit either to bring a new action against FIGA, or separately to serve FIGA in the pending action, in order for the trial court to obtain jurisdiction over FIGA.” Id. at 946. Accordingly, we must reverse the trial court’s order dismissing Gonzalez and Perdomo’s lawsuit and remand with instructions that the trial court reinstate their action against FIGA.

Reversed and remanded.

LaROSE and SALARIO, JJ., Concur.


author: KELLY, Judge.

text:
    GREEN EMERALD HOMES, LLC, Appellant, v. NATIONSTAR MORTGAGE, LLC, Appellee.
    Case No. 2D16-2552
    District Court of Appeal of Florida, Second District.
    Opinion filed February 17, 2017.

      Brennan Grogan of Levine Law Group, Palm Beach Gardens, for Appellant.
    Nancy M. Wallace of Akerman LLP, Tallahassee; William P. Heller of Aker-man LLP, Fort Lauderdale; and Eric M. Levine of Akerman LLP, West Palm Beach, for Appellee.
   KELLY, Judge.

In this foreclosure action, Green Emerald Homes, LLC, appeals from the nonfi-nal order denying its motion to quash service of process. Green Emerald argues that service was not accomplished because Nationstar Mortgage, LLC, failed to comply with the notice requirements in section 48.161(1), Florida Statutes (2014). We agree and reverse.

Nationstar was unable to serve Green Emerald’s registered agent and managing member. Consequently, Nationstar served the Florida Department of State with substitute service under section 605.0117(3), Florida Statutes (2014). Green Emerald filed a motion to quash service, contending that Nationstar was also required to mail the process through certified or registered mail, file the return receipt, and submit an affidavit of compliance, as required by section 48.161(1). In opposition, Nationstar claimed that newly enacted section 605.0117 provided an independent method of obtaining service on limited liability companies and compliance with chapter 48 was no longer required. The trial court agreed with Nationstar⅛ argument and denied the motion to quash service.

In prior years, service of process on a limited liability company was made pursuant to “chapter 48 or chapter 49, as if the limited liability company were a partnership.” § 608.463(l)(a), Fla. Stat. (repealed 2015); see, e.g., Boatfloat LLC v. Golia, 915 So.2d 288, 289 (Fla. 4th DCA 2005). “Substitute service on an LLC was not expressly authorized until the legislature enacted and amended various statutes effective January 1, 2014 and January 1, 2015.” Jupiter House, LLC v. Deutsche Bank Nat’l Tr. Co., 198 So.3d 1122, 1123 (Fla. 4th DCA 2016) (citing ch. 2013-180, §§ S, 29, Laws of Fla.); see § 605.0117(3) (“If the process, notice, or demand cannot be served on a limited liability company ..., the process, notice, or demand may be served on the department as an agent of the company.”); see also § 48.062(3) (providing that if service of process cannot be completed on a registered agent, “service of process may be effected by service upon the Secretary of State as agent of the limited liability company”).

Under the new statute, “[s]ervice with process, notice, or a demand on the department may be made by delivering to and leaving with the department duplicate copies of the process, notice, or demand.” § 605.0117(4). “Service is effectuated [for such purposes] on the date shown as received by the department.” § 605.0117(5). However, “none of the newly enacted LLC provisions furnish a method to communicate the substitute service upon the Secretary to the defendant.” Jupiter House, 198 So.3d at 1124. Because of this omission in chapter 605, the provisions of chapter 48 must be applied where chapter 605 is silent on the notice requirements. Id.

As the Fourth District held in Jupiter House, although section 605.0117 authorizes service on the Secretary of State, a plaintiff must still comply with the notice requirements in section 48.161(1). By failing to do so in this case, Nationstar did not effect valid service of process. Accordingly, we reverse the trial court’s order denying Emerald Green’s motion to quash service.

Reversed.

SILBERMAN and BLACK, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Theodore DELONG, Appellant, v. PARADISE LAKES CONDOMINIUM ASSOCIATION, INC., Appellee.
    Case No. 2D16-547
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2017
    Margaret Brenan Correoso of Wood-bury, Santiago & Correoso, P.A., Miami, for Appellant.
    Pamela Jo Hatley of Pamela Jo Hatley P.A., Tampa, for Appellee.
   NORTHCUTT, Judge.

Theodore DeLong filed a notice of appeal directed to a summary final judgment of foreclosure entered in favor of Paradise Lakes Condominium Association. However, the judgment is not final or appealable because the circuit court did not resolve DeLong’s interrelated counterclaims. See Innovision Practice Grp., P.A. v. Branch Banking & Tr. Co., 135 So.3d 501, 502 (Fla. 2d DCA 2014). Because the court departed from the essential requirements of law when it authorized the sale of the property prior to the rendition of an ap-pealable final judgment, and because there is no available appellate remedy that would protect DeLong’s interest in the property, we treat the appeal as a proceeding for writ of certiorari. See E. Ave., LLC v. Insignia Bank, 136 So.3d 659, 664-66 (Fla. 2d DCA 2014); Innovision Practice Grp., 135 So.3d at 502-03. Accordingly, we grant the writ and quash the order under review.

Petition for writ of certiorari granted; final summary judgment of foreclosure quashed.

SLEET and LUCAS, JJ., Concur.

      . The circuit court stayed the sale of the property pending the disposition of this proceeding.


author: PER CURIAM.

text:
    Leonard EDWARDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5724
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2017.
   PER CURIAM.

Leonard Edwards appeals the order summarily denying his motion for postcon-viction relief filed under Florida Rule of Criminal Procedure 3.850(b)(2). We reverse and remand for resentencing.

A jury convicted Edwards of rape in 1972, and the trial court sentenced him to life imprisonment. Edwards alleged in his sworn rule 3.850 motion that because he was sixteen years old when he committed his crime, his life sentence is illegal under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Horsley v. State, 160 So.3d 393 (Fla. 2015). Relying on McPherson v. State, 138 So.3d 1201, 1202 (Fla. 2d DCA 2014), and Atwell v. State, 128 So.3d 167, 169 (Fla. 4th DCA 2013), the postconviction court denied the motion because Edwards’ life sentence did not exclude the possibility of parole. Both of those cases held that Miller was inapplicable to juveniles who were sentenced to life in prison with parole eligibility after a term of years.

While this appeal was pending, the Florida Supreme Court quashed Atwell, holding that “Florida’s existing parole system, as set forth by statute, does not provide for individualized consideration of Atwell’s juvenile status at the time of the murder, as required by Miller, and that his sentence, which is virtually indistinguishable from a sentence of life without parole, is therefore unconstitutional.” Atwell v. State, 197 So.3d 1040, 1041 (Fla. 2016). The court held that juveniles sentenced to life with the possibility of parole are entitled to resentencing in conformance with sections 775.082, 921.1401, and 921.1402, Florida Statutes (2016). Id. at 1042-1043 (citing Horsley v. State, 160 So.3d 393, 395 (Fla. 2015)). See also McPherson v. State, 41 Fla. L. Weekly S578, 2016 WL 6357975 (Fla. Oct. 28, 2016) (quashing this court’s decision, with instructions to remand to the trial court for resentencing). Following Atwell, this court recently held that a juvenile who was sentenced to life imprisonment with parole eligibility after twenty-five years was entitled to be resentenced under sections 775.082, 921.1401, and 921.1402, Florida Statutes. See Landy v. State, 205 So.3d 801 (Fla. 2d DCA 2016).

Accordingly, we reverse the order denying Edwards’ motion and remand for re-sentencing in conformance with sections 775.082, 921.1401, and 921.1402, Florida Statutes.

Reversed and remanded.

NORTHCUTT, KHOUZAM, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: BLACK, Judge.

text:
    Edgar R. JACOBS and 4721 Westwood Drive Trust, Gulf Coast Home Sites, Inc. as Trustee, Dated November 22, 2002, Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    Case No. 2D15-4918
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2017.
    Eric J. Chrisner, David C. Hicks, and Vincent Carl LoBue of Alliance Legal Group, PL, Sarasota, for Appellants.
    Wm. David Newman, Jr. of Choice Legal Group, P.A., Fort Lauderdale, for Ap-pellee.
   BLACK, Judge.

In this appeal from a final judgment of foreclosure, Federal National Mortgage Association appropriately concedes that it failed to establish standing at the time the original plaintiff, JP Morgan Chase Bank, N.A., filed the complaint. As a result, we reverse and remand for dismissal of the foreclosure action. See Segall v. Wachovia Bank, N.A., 192 So.3d 1241, 1245-46 (Fla. 4th DCA 2016); Fiorito v. JP Morgan Chase Bank, Nat’l Ass’n, 174 So.3d 519, 521-22 (Fla. 4th DCA 2015).

Reversed and remanded.

KELLY and BADALAMENTI, JJ., Concur.


author: PER CURIAM

text:
    STATE of Louisiana v. Christopher CRAWFORD
    No. 2017-KK-0025
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM

11 Writ granted. The issue presented is whether the district court abused its discretion in granting the defendant’s motion to suppress evidence seized during a warrantless search of his vehicle following a traffic stop. For the reasons set forth below, we conclude the district court did abuse its discretion in finding that the automobile exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures did not apply to the search made by the arresting officer in this case.

The officer testified that he clocked the defendant’s vehicle going eighty-five miles per hour in a seventy-mile-per-hour zone and, with the intent to issue a speeding ticket, began to pursue the vehicle with his lights flashing. The officer explained that the defendant, although he pulled into the right lane as if he were going to stop, instead began abruptly swerving from side to side in his lane, then drove onto the shoulder of the road, and continued at eighty to eighty-five miles per hour. The officer observed the defendant drive onto the grassy area beside the shoulder and throw two plastic bags out of the car from the driver’s window. The defendant’s vehicle eventually came to a stop and the officer thereafter arrested the defendant for reckless operation of a vehicle, advised him of his rights, performed a pat down, and placed the defendant into a police car. The officer then walked |2down the shoulder of the road for approximately a mile and found a plastic bag with the top that was tied in a knot and the bottom ripped open. The officer testified that the lack of dew on the bag (and the presence of dew on other roadside litter) led him to believe this was the bag that had been tossed from the vehicle. The officer explained that it looked like it was the type of bag in which people normally carry illegal narcotics. The officer explained: “And, it has been my experience that when people are throwing things out of a car when you are pursuing them, they are usually trying to discard some sort of drugs.” The officer stated that he had often dealt with narcotics in that fashion, tied in a plastic bag. As to the fact the bag was torn, the officer explained: “It was tied in a plastic bag, and it was just a small plastic bag with the bottom ripped open, which has been my experience when pursuing people and they throw stuff out, they try to tear the bag rather than throwing [it] out so that when they throw the bag out whatever is in the bag gets discarded along the highway.” After discovering the bag, the officer returned to the vehicle, whereupon he conducted a search and found approximately seven to eight hundred alprazolam pills, generic for Xanax, in a plastic bag inside a black tote located behind the driver’s seat. The defendant responded that the pills were for his personal use.

To sanction the search conducted after finding the empty bag along the road, the “automobile exception” requires both (1) exigent circumstances and (2) probable cause. United States v. Ross, 456 U.S. 798, 102 S.Ct 2157, 72 L.Ed.2d 572 (1982); State v. Tatum, 466 So.2d 29, 31 (La. 1985) (quoting Ross, 456 U.S. at 800, 102 S.Ct. at 2159). Furthermore, pursuant to Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1712-13, 173 L.Ed.2d 485 (2009), “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe |athe vehicle contains evidence of the offense of arrest” unless some other exception applies.

In this matter, the vehicle was stopped along the highway and was readily mobile and, thus, the exigency requirement was satisfied. The issue is whether the facts and circumstances were such that the arresting officer’s reasonable suspicion had ripened to probable cause to believe the defendant had committed a crime and evidence thereof could be found in the vehicle. A subject’s furtive behavior upon becoming aware of police presence, cannot alone give rise to probable cause, even if the behavior was designed to avoid apprehension. State v. Talbert, 449 So.2d 446, 447 (La. 1984). Instead, “suspicious” acts must be corroborated by other information which indicates objectively that the circumstances are “inconsistent with any innocent pursuit.” Id.

This court described the requisites for a finding of probable cause as follows:

In the instant case, we find when defendant discarded the napkin as the officers approached, the officers’ reasonable suspicions ripened into probable cause. While the furtive reaction alone was certainly insufficient to provide legal justification for the search, when the act is considered together with other facts known to the officers, the officers had a particularized basis for associating the object with narcotics trafficking.

State v. Thompson, 02-333 (La. 4/9/03), 842 So.2d 330, 336.

Although in Thompson there were additional circumstances, such as an anonymous tip, the police conducted surveillance of the residence, and the police witnessed a possible hand-to-hand transaction, the facts in the instant case similarly demonstrate that the officer’s reasonable suspicion had blossomed into probable cause to justify the warrantless search of the vehicle under Ross. Here, the arresting officer, while attempting to stop the defendant for a traffic violation, observed the defendant attempt evasive actions, saw the defendant discard the bag, and then subsequently found the dry empty bag along the road about where he had |4seen the defendant toss it out the window. These circumstances, combined with the arresting officer’s experience in the field, provided a reasonable basis on which to believe that the bag and the defendant’s actions were consistent with drug trafficking. Thus, the officer had sufficient probable cause to search the vehicle under the automobile exception described in Ross. Because the district court abused its discretion in finding otherwise, its ruling granting the defendant’s motion to suppress the fruits of the officer’s search is reversed, and the matter is remanded to the district court for further proceedings.

      . Though the State now asserts the doctrine of inevitable discovery would have applied, the State, according to our review of the transcript, did not present to the district court that alternative basis for opposing the defendant's motion to suppress. Thus, we have not considered the State's argument here.


text:
    Edwin Ray PARKER & Kenneth Brad Ott v. The SENATE OF the STATE of Louisiana, the Board of Supervisors of Louisiana State University & Agricultural & Mechanical College, & The State of Louisiana
    NO. 2016-CA-1690
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM

|-i Rehearing granted. In our January 13, 2017 disposition, we concluded we were deprived of appellate jurisdiction pursuant to La. Const. Art. V, § 5(D) because the underlying dispute forming the basis for the constitutional challenge was rendered moot. However, we find the district court’s June 15, 2014 judgment may have some collateral impact on non-constitutional aspects of the case, such as plaintiffs’ ability to recover attorney fees.

Accordingly, rehearing is granted for the sole purpose of transferring this appeal to the Court of Appeal, First Circuit where it may be consolidated with other pending appeals as appropriate. In all other respects, our order of January 13, 2017 is affirmed.

WEUNER, J., would grant and docket.

HUGHES, J., would grant and docket.


author: PER CURIAM CLARK, J.,

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-369
    NO. 2017-BA-0098
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM

| T 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 the following conditions:

1. Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Judges and Lawyers Assistance Program (“JLAP”) on December 7, 2016.

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

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

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

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

|26. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

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

CONDITIONAL ADMISSION GRANTED.

GUIDRY, Justice, dissents and would deny admission.

CLARK, J.,

dissents.

hi respectfully dissent and would deny the petitioner admission.


author: PER CURIAM:

text:
    STATE EX REL. A.V. BARNETT v. STATE of Louisiana
    No. 2017-KH-0105
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM:

JjWRIT 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 flings 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. Taylor James WILLIAMS v. STATE of Louisiana
    No. 2017-KH-0221
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM:

I,WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before fling in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review.


text:
    STATE EX REL. Kashie A. FERNANDEZ v. STATE of Louisiana
    No. 2017-KH-0193
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM:

I, 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.


text:
    STATE EX REL. Dacarius HOLIDAY v. STATE of Louisiana
    No. 15-KH-1979
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM:

|,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.


text:
    STATE EX REL. Otis MCKINLEY v. STATE of Louisiana
    No. 15-KH-1998
    Supreme Court of Louisiana.
    2/24/2017
   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. Gregory NAVARRE v. STATE of Louisiana
    No. 2017-KH-0086
    Supreme Court of Louisiana.
    2/24/2017
   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 of Louisiana v. Ronald PITTS
    NO. 2017-KK-0050
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM

1(Writ Granted. For reasons more fully discussed in Judge Ledet’s dissent, State v. Pitts, 16-1068 (La. App. 4 Cir. 12/29/16) (unpub’d) (Ledet, J., dissenting), the court of appeal majority erred by reversing the district court and by granting the motion to suppress evidence, the defendant’s statement, and the identification. See State v. Washington, 12-2203, p. 4 (La. 11/16/12), 104 So.3d 401, 404 (holding “it was not unreasonable for police officers to push the door open further to better ascertain whether the residence had been again burglarized or what the security situation may be.”). Accordingly, the court of appeal’s ruling is reversed and the district court’s rulings denying the motions to suppress the statement, evidence, and identification are reinstated. The matter is remanded to the district court for further proceedings consistent with this order.


text:
    STATE EX REL. Andre LEE v. STATE of Louisiana
    No. 2016-KH-2272
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM:

|,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.


text:
    STATE EX REL. Stephen L. LANPHIER v. STATE of Louisiana
    No. 2016-KH-1922
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM:

I,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.


text:
    STATE EX REL. Rodney JOHNSON v. STATE of Louisiana
    No. 2017-KH-0059
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM:

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

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


author: PER CURIAM: CLARK, J.,

text:
    STATE of Louisiana v. Bobby L. BROCK
    No. 15-K-2165
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM:

| Writ granted. The trial court erred in denying the motion to suppress. Defendant’s pharmacy and prescription history was obtained from the Louisiana Prescription Monitoring Program without a warrant, in contravention of this Court’s pronouncement in State v. Skinner, 08-2522, p. 10, 10 So.3d 1212, 1218 (La. 2009) (“[W]e find the Fourth Amendment and La. Const. Art. I, § 5 require a search warrant before a search of prescription and medical records for criminal investigative purposes is permitted!)]”). That the investigator who obtained the Prescription Monitoring Program report complied with the administrative procedure set out in R.S. 40:1007 did not excuse his warrantless search because “the procedural requirements of [the statute] simply and clearly do not suffice to comply with the constitutional requirements of probable cause supported by a sworn affidavit for the issuance of a search warrant.” Id., p. 11, 10 So.3d at 1218.

The subsequently obtained pharmacy records must also be suppressed. When unlawfully obtained evidence, such as the Prescription Monitoring Program report here, has been utilized to establish probable cause to secure a search warrant, the tainted evidence can render the evidence obtained by the execution of that warrant inadmissible. State v. Scull, 639 So.2d 1239, 1244-45 (La. 1994); State v. Joseph, 351 So.2d 1162, 1168 (La. 1977). A review of the search warrant affidavits in this matter reveals that the information used to establish probable cause to search defendant’s pharmacy records originated from the ill-gotten Prescription Monitoring Program report, not from the pharmacy employee’s tip. The tip, when viewed in isolation, was insufficient to establish probable cause for the issuance of the search warrants to the five pharmacies.

Considering the totality of the circumstances, including the illegality of the Prescription Monitoring Program report’s provenance, defendant’s pharmacy records were obtained “by exploitation of the illegality,” and not by “means sufficiently distinguishable to be purged of the primary taint.” See State v. Jenkins, 340 So.2d 157, 174 (La. 1976). Accordingly, the trial court’s ruling denying the motion to suppress is reversed, and the case is remanded to the trial court for further proceedings consistent with this ruling.

CLARK, J., dissents and would deny the writ application.

CRICHTON, J., would deny.

CLARK, J.,

Dissents.

hi respectfully dissent and would deny the writ application.

      . Although, as the court of appeal reasoned, it is conceivable that an exception to the warrant requirement could apply in cases involving pharmacy records, the burden was on the state to prove that an exception applied to the initial warrantless search. See La.C.Cr.P, Art. 703(D). The state failed to present any such evidence at the suppression hearing and a reopened evidentiary hearing is unwarranted.


text:
    STATE EX REL. Michael Joseph DIXON v. STATE of Louisiana
    No. 2016-OK-0474
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM:

hWRIT 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.


text:
    IN RE: Romualdo GONZALEZ
    NO. 2017-B-0212
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM

|7 The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to properly supervise a non-lawyer assistant and mishandled his client trust account. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 1.15(a), 5.3(b), and 8.4(a) of the Rules of Professional Conduct, and that the misconduct was negligent. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Romualdo Gonzalez, Louisiana Bar Roll number 6118, be and he hereby is publicly reprimanded.

IT IS FURTHER ORDERED that respondent shall enroll in and attend the Louisiana State Bar Association’s Ethics School and Trust Accounting School.

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

Hughes, J., would reject the consent discipline.


author: PER CURIAM: CLARK, J., CRICHTON, J.,

text:
    STATE of Louisiana v. Joshua STEMLE
    No. 2016-KK-2266
    Supreme Court of Louisiana.
    2/24/2017
   PER CURIAM:

11 Granted. The ruling of the court of appeal is reversed and the district court’s ruling granting defendant’s motion to re-cuse the district attorney is reinstated. The court of appeal vacated the recusal order, citing State v. Ellis, 13-1401 (La. App. 4 Cir. 2/4/15), 161 So.3d 64, finding that defendant failed prove the district attorney treated him differently in the management of his case. However, given the highly unusual circumstances created by the ongoing professional relationship between the district attorney and his employees and Judge Laurie White, it was reasonable for the district court to find “the situation presented raises questions as to whether the district attorney’s ability to fairly and impartially perform his duties has been impaired,” and thus recusal was warranted. See State v. King, 06-2383, p. 9 (La. 4/27/07), 956 So.2d 562, 567 (La. C.Cr.P. art. 680 embodies a policy requiring recusal even when impartiality arises “unconsciously and despite [the district attorney’s] earnest assertions to the contrary.”).

GUIDRY, J., would deny.

CLARK, J., dissents and would deny the writ application.

CRICHTON, J., additionally concurs and assigns reasons.

GENOVESE, J., would deny the writ.

CLARK, J.,

Dissents.

IU respectfully dissent and would deny the writ application.

CRICHTON, J.,

additionally concurs and assigns reasons:

hi agree with the conclusion reached by the majority; however, I write separately to emphasize the exceedingly rare circumstances of this matter which, in my view— and importantly, the view of the trial judge who heard evidence in this case—warrants recusal of the Orleans District Attorney.

Louisiana Code of Criminal Procedure article 61 imbues the district attorney with “the entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute,” and, in accord with this awesome power granted by the legislature, I believe that recusal of a district attorney should be limited to only the most extraordinary cases. However, I believe this matter falls into that category.

The district attorney, through his assistant district attorneys, is a party in almost all cases in Judge White’s division. While Judge White and the Orleans Parish District Attorney are outspoken critics of each other and often cast as adversaries by local media, Judge White nevertheless has a professional relationship with the District Attorney. It is, indeed, a relationship which provides her with direct access to him and his office; in fact, she formally— and repeatedly—requested an upgrade of the original charge, to which he ultimately acceded. At a | 2minimum the appearance of access, power, and influence is present in this case. In accordance with La. C.Cr.P. art. 671 and recognizing public perception and the appearance of impropriety, all of the other 12 judges of Orleans Criminal District Court issued orders of self-recu-sal. Given the circumstances exacerbated by the extensive and somewhat obnoxious media attention created by these two members of the criminal justice system, I believe that the appointed ad hoc judge properly decided this issue and that the court of appeal erred in its reversal.

As noted in my concurrence in State ex rel. Morgan v. State, 15-0100 (La. 10/19/16), _ So.3d _, 2016 WL 6125428, we take a solemn oath to uphold the laws of this state. Louisiana law insists on a fair and impartial administration of justice in all matters. Por reasons assigned, the exceedingly rare recusal of the Orleans District Attorney and the appointment of the Louisiana Attorney General are warranted in this case. The integrity and the reputation of our judicial system demands no less.

GENOVESE, J.,

11 Would deny the writ.

      . While the issue in this case is the defendant’s recusal motion, Judge White testified that she does not believe that she can get a fair trial and has no objection to the defendant’s motion. Specifically, she testified under oath that she "does not like him (the district attorney), and is afraid his office’s handling of the matter will benefit the defendant.”


text:
    STATE of Louisiana v. Alireza SADEGHI
    NO. 2016-OK-2015
    Supreme Court of Louisiana.
    November 15, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 529-944; to the Court of Appeal, Fourth Circuit, No. 2016-K-1191

I,Stay denied. Writ denied.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Andre J. DAVIS
    NO. 2015-K-1949
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 514-254; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0456

h Granted. See Order Attached.


text:
    Byron GULLEY v. HOPE YOUTH RANCH, et al.
    NO. 2016-C-1112
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Rapides, Office of Workers’ Compensation—District 02, No. 15-08681; to the Court of Appeal, Third Circuit, No. 15-1076

h Granted. See Order Attached.


text:
    STATE of Louisiana v. Glenn COOK
    NO. 2016-KK-1518
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 313-275; to the Court of Appeal, Fourth Circuit, No. 2016-K-0269

11 Granted. See Order Attached.


text:
    IN RE: ELEANOR PIERCE (MARSHALL) STEVENS LIVING TRUST In re: Eleanor Pierce (Marshall) Stevens Living Trust and Eleanor Pierce Stevens Revocable Gift Trust
    NO. 2016-CC-1527
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Divs. D, E, Nos. 2007-6723, 2009-3827; to the Court of Appeal, Third Circuit, No. CW 16-00477 AND CW 16-478

I,Stay denied. Writ denied.


text:
    Chiffonia JACKSON v. IBERIA PARISH SHERIFF’S DEPARTMENT, et al.
    NO. 2016-CC-1931
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. H, No. 119971; to the Court of Appeal, Third Circuit, No. CW 16-00769

|, Stay denied. Writ denied.


text:
    STATE of Louisiana v. Shannon C. FERGUSON
    NO. 2015-KO-1919
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. B, No. 2011-186950; to the Court of Appeal, First Circuit, No. 2015 EA 0427

| ¶ Denied.

JOHNSON, C.J., would grant.


text:
    STATE of Louisiana v. Roger Dale MEDLEY
    NO. 2015-KO-1961
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 530,999; to the Court of Appeal, First Circuit, No. 2015 KA 0100.

| denied.


text:
    STATE of Louisiana v. Darby Mack FRICKEY, Jr.
    NO. 2015-KO-1966
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. D, No. 2012-187,446; to the Court of Appeal, First Circuit, No. 2015 KA 0511

| denied.


text:
    STATE EX REL. Chasidy Larie CARPENTER v. STATE of Louisiana
    NO. 2015-KH-1972
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. A, No. 28671; to the Court of Appeal, First Circuit, No. 2014 KA 1804

| jDenied.


text:
    STATE of Louisiana v. Aaron MARTIN
    NO. 2015-KO-2121
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 12-1928; to the Court of Appeal, Fifth Circuit, No. 15-KA-77

| denied.


text:
    STATE of Louisiana v. Joshua PRESTON
    NO. 2015-KO-2169
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 12-1119; to the Court of Appeal, Fifth Circuit, No. 15-KA-306

11 Denied.


text:
    STATE of Louisiana v. Dion GREEN, et al.
    NO. 2016-KK-1126
    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. 58585/58565/57048, 58180/58426/58427; to the Court of Appeal, Third Circuit, No. KW 16-00032

11 Denied


text:
    STATE of Louisiana v. Eric J. PERRY
    NO. 2016-KK-1306
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 526-054; to the Court of Appeal, Fourth Circuit, No. 2016-K-0505.

11 Denied. Adequate remedy on appeal.


text:
    STATE of Louisiana v. Larry FRANKLIN
    NO. 2016-KK-1436
    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. N, No. 03-12-1025; to the Court of Appeal, First Circuit, No. 2016 KW 0635

| tDenied.


text:
    WELLS FARGO BANK NA v. Todd Thomas CRAIGE and Cynthia Marie Trebotich Craige
    NO. 2016-OC-1533
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. F, No. 2013-10177; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0663

| iDenied.


text:
    D & D DRILLING & EXPLORATION, INC v. XTO ENERGY, INC., et al.
    NO. 2016-CC-1540
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Concordia, 7th Judicial District Court Div. A, No. 49,008; to the Court of Appeal, Third Circuit, No. 15-626 C/W 15-631

| iDenied.


text:
    STATE of Louisiana v. Hiram Lashaye EUGENE
    NO. 2016-KK-1544
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. B, No. 14-193127; q the Court of Appeal, First Circuit, No. 2016 KW 0709

11 Denied.


text:
    Maria EBARB v. BOISE CASCADE COMPANY
    NO. 2016-C-1545
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 02, No. 14-02843; to the Court of Appeal, Third Circuit, No. 16-94.

I iDenied.


text:
    Deon DANNA v. THE RITZ-CARLTON HOTEL CO., LLC, et al.
    NO. 2016-C-1552
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2011-1015; to the Court of Appeal, Fourth Circuit, No. 2015-CA-0651

11 Denied.


text:
    Derek Blaine BAUMBOUREE v. Sharon Meche BAUMBOUREE
    NO. 2016-C-1557
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. H, No. 2014-3303-H1; to the Court of Appeal, Third Circuit, No. 15-1053

|! Denied.

HUGHES, J., would grant.


text:
    Michael MCGREW v. Paul J. WAGUESPACK, M.D.
    NO. 2016-C-1560
    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. F, No. 613,682; to the Court of Appeal, First Circuit, No. 2015 CA 1891.

| ¶ Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Nicholas Graham HOUSDEN
    NO. 2016-KK-1561
    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. 2015-CR-58425; to the Court of Appeal, Third Circuit, No. KW 15-00993

h Denied.


text:
    Misty McTopy TRICHE, Individually, and on Behalf of Her Minor Son, Kade M. Triche v. TURNER INDUSTRIES GROUP, LLC, Turner Industries, LLC, Ace American Insurance Company / The Ace Group, Steadfast Insurance Company, Kyle David Joekel, Terry Smith, Brian L. Smith, et al Misty McTopy Triche, Individually and on Behalf of Her Minor Child, Kade M. 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, Steadfast Insurance Company, Gemini Insurance Company, Axis Insurance Company, Valero Refining-New Orleans, LLC and Diamond Green Diesel, LLC Misty McTopy Triche, Individually and on Behalf of Her Minor Son, Kade M. Triche v. Turner Industries Group, LLC, Turner Industries, LLC, Ace American Insurance Company / The Ace Group, Steadfast Insurance Company, Kyle David Joekel, Terry Smith, Brian L. Smith, et al.
    NO. 2016-CC-1593
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. B, No. 65271; to the Court of Appeal, Fifth Circuit, No. 16-C-121 C/W 16-C-122 & 16-C-124 & 16-C-129

^Denied.


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-1594
    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. 65279; to the Court of Appeal, Fifth Circuit, No. 16-C-120 C/W 16-C-126 & 16-C-127 & 16-C-128

I, Denied.


text:
    M. Scott BOYINGTON, Husband of/and Wendy Boyington, individually and on behalf of their Minor Children, Landon Boyington and Madison Boyington 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, Steadfast Insurance Company, et al. M. Scott Boyington, Husband of/and Wendy Boyington, individually and on behalf of their Minor Children, Landon Boyington and Madison Boyington 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, Steadfast Insurance Company, et al. M. Scott Boyington, Husband of/and Wendy Boyington, individually and on behalf of their Minor Children, Landon Boyington and Madison Boyington v. Turner Industries Group, LLC and/or Turner Industries, LLC, et al.
    NO. 2016-CC-1595
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. B, No. 65268; to the Court of Appeal, Fifth Circuit, No. 16-C-115 C/W 16-C-116 & 16-C-118 & 16-C-123.

| iDenied.


text:
    Perry COLE v. Dexter HAWKINS and Goauto Insurance Company
    NO. 2016-CC-1596
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. B, No. 74196; to the Court of Appeal, First Circuit, Nos. 2015 CW 1758, 2015 CW 1764

11 Denied.


text:
    Carl KRIELOW, Glendon Marceaux, Phillip J. Watkins, and Similarly Situated, Plaintiffs v. LOUISIANA RICE PROMOTION BOARD, Louisiana Rice Research Board, Louisiana Department of Agriculture and Forestry and the State of Louisiana
    NO. 2016-CC-1601
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 612175; to the Court of Appeal, First Circuit, No. 2016 CW 0743.

| iDenied


text:
    Ella Mae RUBIN v. THE OLD EVANGELINE DOWNS, LLC d/b/a The Evangeline Downs Racetrack and Casino
    NO. 2016-CC-1597
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. C, No. 08-C-6860-C; to the Court of Appeal, Third Circuit, No. CW 16-00360

| iDenied.

WEIMER, J., would grant.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Grid REDDICK
    NO. 2016-KK-1606
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 14-01668; to the Court of Appeal, Fourth Circuit, No. 2016-K-0708

| denied

HUGHES, J., would grant.


text:
    Fayez and Amal SHAMIEH v. FIRST NBC BANK HOLDING COMPANY, et al.
    NO. 2016-C-1623
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 2012-004961; to the Court of Appeal, Third Circuit, No. 15-1182.

| denied.

HUGHES, J., would grant.


text:
    STATE IN the INTEREST OF G.M.A. & K.K.A.
    NO. 2016-CJ-1945
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 27795; to the Court of Appeal, Third Circuit, No. 16-405

I iDenied.


text:
    Dr. Arthur DELAHOUSSAYE, Individually and on behalf of his Minor Children, Arthur Joseph Delahoussaye, V, Angelle Mae Delahoussaye, and Melissa Delahoussaye v. Frederick BOELTER, III, Specialized Bicycle Components, Inc., Spokesman Professional Bicycle Works, L.L.C., ABC Insurance Company, DEF Insurance Company, and GHI Insurance Company
    NO. 2016-01626
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 170134; to the Court of Appeal, First Circuit, No. 2015 CA 1790

| jDenied


text:
    Blanche JENKINS, et al. v. WILLOW INCORPORATED, National Home Insurance Company-A Risk Retention Group, et al.
    NO. 2016-C-1627
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 748-666; to the Court of Appeal, Fifth Circuit, No. 16-CA-38.

1 ,Denied.


text:
    Tina Marie BERNOS, Individually and as Administratrix of the Estates of Tyler Bernos v. SUZUKI MOTOR OF AMERICA, INC. and Champion Cycle of Louisiana, LLC and Champion Cycle
    NO. 2016-CC-1628
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Ju~ dicial District Court Div. I, No. 2015-14096; to the Court of Appeal, First Circuit, No. 2016 CW 0532

| ^Denied.


text:
    Robert D. MAYEUX and Lisa M. Mayeux v. George J. CHARLET, Jr., Deceased, Charlet Funeral Home, Inc., Reverend M. Jeffrey Bayhi and the Roman Catholic Church for the Diocese of Baton Rouge
    NO. 2016-CC-1630
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 580,066; to the Court of Appeal, First Circuit, No. 2016 CW 0505

|, Denied

WEIMER, J., recused.


text:
    Darla ROUSE v. Eugene CROCKETT, Evelyn Crockett and State Farm Fire and Casualty Company
    NO. 2016-CC-1636
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. B, No. 124317; to the Court of Appeal, First Circuit, No. 2016 CW 0658

| denied


text:
    Donald W. ABSHIRE and the other petitioners named herein v. The STATE of Louisiana, through the Department of Insurance of the State of Louisiana, The State of Louisiana, through the Office of Financial Institutions of the State of Louisiana, The Louisiana Insurance Guaranty Association and The Standard Analytical Service, Inc. Arthur A. Lewis, et al. v. The State of Louisiana, through the Department of Insurance, et al.
    NO. 2016-CC-1637
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 377,-713-M C/W 412,265-M; to the Court of Appeal, First Circuit, No. 2016 CW 0790

11 Denied.


text:
    AUTOVEST, L.L.C. v. Linda NASH
    NO. 2016-C-1644
    Supreme Court of Louisiana.
    November 18, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, City Court for Shreveport, No. 2013R04757; to the Court of Appeal, Second Circuit, No. 50,725-CA.

| denied.

JOHNSON, C.J., would grant.


text:
    David RAY and Angela Ray, Individually on Behalf of Their Minor Children, Chaney Ray and Lillian Ray v. STADIUM CHEVRON, INCORPORATED and/or Stadium Chevron, LLC, Chevron U.S.A., Inc. d/b/a Chevron-Texaco Products Company, Lard Oil Company, Inc., Donald Ray Dickerson, ABC Insurance Company and XYZ Insurance Company
    No. 2016-CC-1656
    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. D, No. 624,-613; to the Court of Appeal, First Circuit, Nos. 2016 CW 0445, 2016 CW 444

| ¶ Denied.

JOHNSON, C.J., would grant.

HUGHES, 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-1680
    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. 65271; to the Court of Appeal, Fifth Circuit, No. 16-C-120 C/W 16-C-126 & 16-C-127 & 16-C-128

|, Denied.


text:
    M. Scott BOYINGTON, Husband of/and Wendy Boyington, Individually and on Behalf of Their Minor Children, Landon Boyington and Madison Boyington 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, Steadfast Insurance Company, et al. M. Scott Boyington, Husband of/and Wendy Boyington, Individually and on Behalf of Their Minor Children, Landon Boyington and Madison Boyington v. Turner Industries Group, LLC And/or Turner Industries, LLC, et al. M. Scott Boyington, et al. 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, Steadfast Insurance Company, Gemini Insurance Company, Axis Insurance Company, Valero Refining-New Orleans, LLC and Diamond Green Diesel, LLC
    No. 2016-CC-1681
    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. 65,268; to the Court of Appeal, Fifth Circuit, No. 16-C-115 C/W 16-C116 & 16-C-118 & 16-C-123

I .Denied.


text:
    M. Scott BOYINGTON, Husband of/and Wendy Boyington, Individually and on Behalf of their Minor Children, Landon Boyington and Madison Boyington 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, Steadfast Insurance Company, et al. M. Scott Boyington, Husband of/and Wendy Boyington, Individually and on Behalf of their Minor Children, Landon Boyington and Madison Boyington v. Turner Industries Group, LLC and/or Turner Industries, LLC, et al. M. Scott Boyington, et al. v. Turner Industries Group, LLC and/or Turner Industries, LLC, Kyle David Joekel, Terry Smith, Brian L. Smith, Ace American Insurance Group / The Ace Group, Steadfast Insurance Company, Gemini Insurance Company, Axis Insurance Company, Valero Refining-New Orleans, LLC and Diamond Green Diesel, LLC
    No. 2016-CC-1701
    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. 65268; to the Court of Appeal, Fifth Circuit, No. 16-C-115 C/W 16-C-116 & 16-0-118 & 16-C-123

| denied.


text:
    Misty McTopy TRICHE, individually, and on behalf of her minor son, Kade M. Triche v. TURNER INDUSTRIES GROUP, LLC, Turner Industries, LLC, Ace American Insurance Company/The Ace Group, Steadfast Insurance Company, Kyle David Joekel, Terry Smith, Brian L. Smith, et al Misty McTopy Triche, Individually and on behalf of her minor Child, Kade M. 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, Steadfast Insurance Company, Gemini Insurance Company, Axis Insurance Company, Valero Refining-new Orleans, LLC and Diamond Green Diesel, LLC Misty McTopy Triche, individually and on behalf of her minor son, Kade M. Triche v. Turner Industries Group, LLC, Turner Industries, LLC, ACE American Insurance Company/The Ace Group, Steadfast Insurance Company, Kyle David Joekel, Terry Smith, Brian L. Smith, et al
    NO. 2016-CC-1679
    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. 65271; to the Court of Appeal, Fifth Circuit, No. 16-C-121 C/W 16-0-122 & 16-0-124 & 16-0-129

h Denied.


text:
    Misty McTopy TRICHE, individually, and on behalf of Her Minor Son, Kade M. Triche v. TURNER INDUSTRIES GROUP, LLC, Turner Industries, LLC, ACE American Insurance Company/The ACE Group, Steadfast Insurance Company, Kyle David Joekel, Terry Smith, Brian L. Smith, et al Misty McTopy Triche, individually and on behalf of Her Minor Child, Kade M. 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, Steadfast Insurance Company, Gemini Insurance Company, Axis Insurance Company, Valero Refining-New Orleans, LLC and Diamond Green Diesel, LLC Misty McTopy Triche, individually and on behalf of her Minor Son, Kade M. Triche v. Turner Industries Group, LLC, Turner Industries, LLC, ACE American Insurance Company/The ACE Group, Steadfast Insurance Company, Kyle David Joekel, Terry Smith, Brian L. Smith, et al
    NO. 2016-CC-1705
    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. 65271; to the Court of Appeal, Fifth Circuit, No. 16-C-121 C/W 16-C-122 & 16-0-124 & 16-C-129

| denied


author: COOKS, Judge. AMY, J., SAVOIE, J.,

text:
    Tamara Denice BROWN v. Steven BROWN
    16-31
    Court of Appeal of Louisiana, Third Circuit.
    OPINIONS RENDERED 12/21/2016
    William A. Keaty, II, John W. Tilly, Keaty & Tilly, LLC, 2701 Johnston Street, Suite 303, Lafayette, LA 70503, (337) 347-8995, ATTORNEY FOR DEFENDANT/APPELLANT, Steven Brown
    Mitchell M. Evans, II, 416 North Pine Street, DeRidder, LA 70634, (337) 462-5225, ATTORNEY FOR PLAINTIFF/AP-PELLEE, Tamara Denice Brown
    Court composed of Sylvia R. Cooks, John D. Saunders, Marc T. Amy, James T. Genovese and D. Kent Savoie, Judges.
   COOKS, Judge.

|2FACTS AND PROCEDURAL HISTORY

Steven Brown and Tamara Brown were married in Lafayette, Louisiana on August 27, 2005. Shortly after marrying, they moved to Leesville, Louisiana. Steven was a member of the United States Army and was deployed to Iraq during the marriage. Prior to his deployment, Steven executed a Power of Attorney in favor of Tamara.

According to Steven, he revoked the Power of Attorney before Tamara used it to sell any property. Tamara was notified by letter and electronic communication of the revocation. Steven maintained, while he was still deployed in Iraq, Tamara, used the revoked Power of Attorney to sell a house Steven had previously purchased in DeRidder for the amount of $43,000.00. Tamara kept the money and left Steven before he returned from Iraq. Steven also alleged Tamara took his 2003 Cadillac STS, which he claims was his separate property because it was purchased before the marriage. Steven also asserted Tamara removed almost all of the movables from the community home in Leesville where they resided.

On July 3, 2007, Tamara filed a Petition for Divorce. A Judgment of Divorce was entered on September 14, 2009, which in part ordered the “community aquets and gains be regulated to another date in accordance with La.R.S. 9:2801.” The judgment also ordered “all other matters in connection with the community property and reconciliation be defer [sic] to another date.”

As part of the divorce proceedings, Steven filed a Sworn Detailed Descriptive List of Community Property on July 16, 2009. Tamara did not file a list. On December 22, 2010, a hearing was held wherein the trial court ordered Steven’s Sworn Detailed Descriptive List be judicially accepted.

In Steven’s Sworn Detailed Descriptive List, a community home was listed, along with the community movables Steven could recall. Two reimbursement |aclaims were listed, one relating to the sale of the house in DeRidder and the other relating to the 2003 Cadillac STS. Steven maintained both the house in DeRidder and the Cadillac were his separate property.

A Motion to Partition Community Property was filed on April 21, 2011, and after several continuances, the motion was heard on June 24, 2015. Steven claimed he was unable to locate Tamara. Therefore, the trial court appointed a Curator to locate her and represent her in this matter. The only witness to testify at the hearing was Steven, who claimed Tamara had taken all other community property. He also testified Tamara had sold the house in DeRidder while he was deployed, kept the proceeds, and was in possession of the Cadillac. He requested reimbursement for those items, and desired full ownership of the community home. On cross-examination by the Curator, Steven Brown reiterated the immovable property sold was his separate immovable property.

At the conclusion of the hearing, the trial court gave an oral ruling. Each party was deemed to have full ownership of any movables in their possession, Steven was granted full ownership of the community home and Steven’s claims for reimbursement were denied.

This appeal followed, wherein Steven asserts the trial court erred in denying the reimbursement claims. He argues the only evidence in the record, his testimony and the Sworn Detailed Descriptive List, clearly establish a claim for reimbursement. For the following reasons, we agree and find the trial court erred in denying Steven’s claims for reimbursement.

ANALYSIS

The trial court’s judgment provided that each party be granted ownership of the movables in their possession as of June 24, 2015, Steven be granted full ownership of the community home and that neither party owed any reimbursement to the other. At issue in this appeal is the trial court’s refusal to grant Steven’s | ¿claims for reimbursement. The trial court gave the following oral reasons for denying Steven’s claims for reimbursement:

I’m not going to order that there be an amount reimbursed to Mr. Brown from her. I am not granting a money judgment in his favor as part of the community property because I have not seen a deed. I don’t know the date of the community—that wasn’t proven to me. I heard testimony here today and we accepted the list, but he still has to make a prima facie case. So what the Court is saying is that even if [it] were not separate, if it were community he still owed $80,000 and he has had the exclusive use and benefit from the home—a number of different things play into this at the time between 2009 and 2015... That’s why each party keeps all possessions and part of this is that the reimbursement claim is resolved.

The trial court’s ruling indicates it believed Steven did not make his prima facie case of proving the immovable property was his separate property. Apparently, the trial court also believed Steven’s exclusive use and benefit of the community home from 2009 through 2015 was of such benefit that it should preclude his reimbursement claims. We find both these conclusions erroneous.

Louisiana Revised Statutes 9:2801 sets forth the rules for partitioning community property and determining a party’s reimbursement claims, and provides in pertinent part:

A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which shall be conducted in accordance with the following rules:
(l)(a) Within forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. For good cause shown, the court may extend the time period for filing a detailed descriptive list. If a party fails to file a sworn detailed descriptive list timely, the other party may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities. At the hearing of the rule to show cause, the court may either grant the request or, for good cause shown, extend the time | ¡¡period for filing a sworn detailed descriptive list. If the court grants the request, no traversal shall be allowed.

The record is clear Steven timely filed a Sworn Detailed Descriptive List. Tamara did not file a Detailed Descriptive List, and she (or the Curator appointed to represent her interests) has never made any attempt to do so. Steven filed a motion to make his List the order of the court and the trial court granted this motion. Therefore, Steven’s List was judicially accepted, and as such, the only remaining issues before the trial court are valuation, distribution of the assets, equalizing payments and reimbursement claims. See Williams v. Williams, 07-541 (La.App. 3 Cir. 10/31/07), 968 So.2d 1234. As Steven notes, the classification of property as community or separate is not one of the issues this court in Williams stated was reviewable by the trial court.

Tamara (or her Curator) did not seek review of the trial court’s order accepting Steven’s Sworn Detailed Descriptive List. Tamara did not file a motion to traverse nor was she entitled to a traversal. See Gauthier v. Gauthier, 04-198 (La.App. 3 Cir. 11/10/04), 886 So.2d 681, writ not considered, 04-3019 (La. 2/18/05), 896 So.2d 15. This left Tamara only the right to appear at trial and present evidence and argument concerning the items listed on Steven’s Sworn Detailed Descriptive List and Amended List. Id.

Recently, in Williams, 968 So.2d 1234, another panel of this court, relying on Gauthier, 886 So.2d 681, and Charles v. Charles, 05-129 (La.App. 1 Cir. 2/10/06), 923 So.2d 786, reiterated the constraints placed upon the party who fails to file its own Detailed Descriptive List timely and leaves in place the trial court ruling making the other spouse’s List the order of the court.

The law is clear that Gauthier does not require any further evidence to establish the nature of the property in question other than the judicially accepted detailed descriptive list. Thus, the trial court erred in its ruling that Steven failed to Improve a prima facie case that the immovable property was his separate property. Although Steven contends his testimony was sufficient to establish a prima facie case, it was not necessary. Once the detailed descriptive list was judicially accepted, and Tamara did not challenge this acceptance, she lost her ability to traverse the list and contest the classification of the property. There is no legal authority for the trial court’s implication that a deed is required to establish the property in question as Steven’s separate property. The trial court erred in ignoring the only evidence in the record, Steven’s judicially accepted Sworn Detailed Descriptive List, which established the immovable property was Steven’s separate property.

The trial court also erred in refusing to award the reimbursement claims made by Steven because he had the exclusive use and benefit of the community home since 2009. As Steven notes, no reimbursement claim for Steven’s exclusive use of the community home was raised by Tamara in her Petition for Divorce or in any proceedings that followed. Therefore, the trial court should not have considered this as a factor in reducing or denying Steven’s reimbursement claims. We also note Steven paid the mortgage notes, insurance and all other expenses related to the maintenance of the home.

In this case, Steven’s Sworn Detailed Descriptive List was judicially accepted. The Sworn Detailed Descriptive List set the value of the immovable property at $43,000.00, and Steven additionally testified Tamara sold the immovable property for $43,000.00. The Sworn Detailed Descriptive List also set the value of the 2003 Cadillac STS at $17,500.00. The curator appointed to represent Tamara did not challenge either of these amounts. As this court held in Gauthier, 886 So.2d 681, 688, a judicially accepted sworn detailed descriptive list is sufficient to support the judgment, “since [the] list represented the entire body of evidence the initial trial court could consider.” Thus, we will award Steven |7$43,000.00 as reimbursement for the immovable property, and $17,500.00 as reimbursement for the 2003 Cadillac STS.

DECREE

For the foregoing reasons, we reverse the judgment of the trial court finding Steven Brown failed to prove a prima facie case regarding his separate property. For the reason set forth above, we award Steven Brown $43,000.00 as reimbursement for the sale of his separate immovable property and $17,500 as reimbursement for the 2003 Cadillac STS.

REVERSED AND RENDERED.

Amy, J., dissents and assigns reasons.

Savoie, J., concurs, in part, and dissents, in part.

AMY, J.,

dissenting.

|,I respectfully dissent from with the majority opinion as I find that an affirmation is appropriate.

Louisiana Revised Statutes 9:2801(A)(l)(a) indicates that a party may seek a rule to have its detailed descriptive list accepted as a judicial determination “of the community assets and liabilities.” The trial court’s ruling addressed Mr. Brown’s evidence of the claim for reimbursement as it related to allegedly separate property. Thus, the subject liability at issue, i.e., reimbursement, was not apparently one of the community, rather it must be viewed as one for Ms. Brown alone.

Accordingly, and although the reimbursement claim was originally listed on the detailed descriptive list, I do not find that La.R.S. 9:2801(A)(l)(a) precluded consideration of the adequacy of 1 ?Mr. Brown’s evidence in that regard. Additionally, jurisprudence indicates that, even when a detailed descriptive list is accepted as a judicial determination, claims for allocation of the assets and liabilities, as well as reimbursement remain for further consideration by the trial court. See Lacombe v. Lacombe, 11-1178, p. 12 (La.App. 3 Cir. 2/1/12), 85 So.3d 721, 729 (explaining that the acceptance of a spouse’s “entire list, including her reimbursement claim, would essentially negate the need for further proceedings, evidence, or depositions.”). In my opinion, the trial court noted the generalities of Mr. Brown’s testimony regarding his claim of separate property and the reimbursement claim before determining that he failed to satisfy his burden of proving that claim.

For these reasons, I would affirm the trial court’s ruling.

SAVOIE, J.,

concurring, in part, and dissenting, in part.

|J concur with the majority opinion that the trial court erred in finding a lack of evidence regarding the classification of the DeRidder house and the 2003 Cadillac STS as Steven’s separate property. The Detailed Descriptive List, which established that the DeRidder house and the 2003 Cadillac STS was Steven’s separate property, was not traversed and was judicially accepted. Therefore, additional evidence was unnecessary. See La.R.S. 9:2801(A)(l)(a); See also Durden v. Durden, 14-1154 (La.App. 4 Cir. 4/29/15), 165 So.3d 1131. Because the classification of the property has already been determined as separate, the only issues left for the court to decide at trial are valuation, distribution of the assets, equalizing payments and reimbursement claims. See Williams v. Williams, 07-541 (La.App. 3 Cir. 10/31/07), 968 So.2d 1234.

As to Steven’s reimbursement claim for the DeRidder house, I agree with the award of $43,000. Steven alleges Tamara sold the Deridder house, his separate property, and kept the proceeds. He testified that she sold the house for $43,000. Because there is no conflicting evidence as to the sale price, awarding Steven this amount for reimbursement from the sale of the house is appropriate.

I disagree with the award for the 2003 Cadillac STS. Steven testified that Tamara was in possession of the vehicle and that he did not know her location. Steven did not testify as to the value of the Cadillac, and the only mention of the lavalue is in the Detailed Descriptive List, setting the value at $17,500. The trial court “shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.” La. R.S. 9:2801(A)(4)(a) (Emphasis added). The current proceeding was instituted in 2007 by Tamara through a Petition for Divorce. Steven filed his Detailed Descriptive List on July 16, 2009. The partition proceeding was heard on June 24, 2015, nearly six years after the Detailed Descriptive List was filed and eight years after the commencement of this lawsuit. In my view, it is not proper to use a Detailed Descriptive List that was filed six years prior to the hearing to set a value for the vehicle. When the Detailed Descriptive List was filed, the Cadillac was six years old. At the time of trial, it was thirteen years old. It had certainly depreciated in value during that time, which has not been taken into account. Although Steven had ample opportunity to put on evidence of the 2003 Cadillac STS at the hearing, he did not do so. Therefore, I would not award Steven reimbursement for the 2003 Cadillac STS based on a lack of evidence as to the value of the vehicle at the time of trial.