text:
    Benjamin I. MCDONALD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1308
    District Court of Appeal of Florida, First District.
    June 5, 2018
    Benjamin I. McDonald, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Makar, Winokur, and Winsor, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Selvin E. SHAW, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5174
    District Court of Appeal of Florida, First District.
    June 5, 2018
    Selvin E. Shaw, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Roberts, Rowe, and Kelsey, JJ., concur.


text:
    Branden J. BAILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1682
    District Court of Appeal of Florida, First District.
    June 5, 2018
    Branden J. Bailey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

Wolf, Jay, and Winsor, JJ., concur.


text:
    Andre Devon UNDERWOOD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1362
    District Court of Appeal of Florida, First District.
    June 5, 2018
    Andre Devon Underwood, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Wolf, Jay, and Winsor, JJ., concur.


text:
    Raymond Wayne BREEDEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1114
    District Court of Appeal of Florida, First District.
    June 5, 2018
    Raymond Wayne Breeden, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Wolf, Jay, and Winsor, JJ., concur.


text:
    Thomas G. HYLAND, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, State of Florida, Respondents.
    No. 1D18-1468
    District Court of Appeal of Florida, First District.
    June 5, 2018
    Thomas G. Hyland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee; Kenneth S. Steely, General Counsel, and Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondents.
   Per Curiam.

The petition for writ of certiorari is denied.

Wolf, Jay, and Winsor, JJ., concur.


text:
    Antwan DILWORTH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1239
    District Court of Appeal of Florida, First District.
    June 5, 2018
    Antwan Dilworth, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Makar, Winokur, and Winsor, JJ., concur.


text:
    Darryl Emery GORDON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-3671
    District Court of Appeal of Florida, First District.
    June 5, 2018
    Darryl Gordon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition is denied on the merits.

Lewis, Roberts, and Jay, JJ., concur.


author: PER CURIAM.

text:
    Michael Lewis-Steven JOHNS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1356
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 8, 2018
    Michael Lewis-Steven Johns, Malone, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the December 6, 2017 order denying motion for postconviction relief rendered in Case No. 2013-CF-390, in the Circuit Court in and for Citrus County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, ORFINGER and WALLIS, JJ., concur.


text:
    Thomas Earl SMAIL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-753
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 8, 2018
    Thomas Earl Smail, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the order under review without prejudice to Appellant filing an appropriate motion for postconviction relief as to claims one and eight.

AFFIRMED.

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


text:
    Shacobi WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-3567
    District Court of Appeal of Florida, First District.
    June 7, 2018
    Shacobi Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Wolf, Lewis, and Ray, JJ., concur.


text:
    DYCK-O'NEAL, INC., Appellant, v. Alice CISLO, Appellee.
    No. 1D17-2151
    District Court of Appeal of Florida, First District.
    June 13, 2018
    Susan B. Morrison, of Law Offices of Susan B. Morrison, P.A., and David M. Snyder, of David M. Snyder, and Joshua D. Moore, of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    James Dale Gibson, of Gibson, Kohl, Wolff & Hric, P.L., Sarasota, for Appellee.
   Per Curiam.

AFFIRMED . See Dyck-O'Neal, Inc., v. Lanham , 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court's decision Higgins v. Dyck-O'Neal, Inc. , 201 So.3d 157 (Fla. 1st DCA 2016), and decisions by the other four district courts of appeal), review granted , SC17-975, 2017 WL 4052015 (Fla. Sept. 14, 2017).

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


text:
    Shakeyna FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3819
    District Court of Appeal of Florida, First District.
    June 13, 2018
    Andy Thomas, Public Defender, and Robin B. Rogers, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tabitha Herrera and Kaitlin Weiss, Assistant Attorneys General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Shakeyna Foster, challenges her conviction and sentence for possession of over 20 grams of cannabis following a no contest plea where she reserved her right to appeal the denial of a dispositive motion to suppress. Nine pounds of marijuana were found in the common area of Appellant's residence after law enforcement entered the residence to serve arrest warrants on two brothers who law enforcement believed to be staying there. Because the law enforcement officers reasonably believed the subjects of the arrest warrants were present in Appellant's residence, the officers were allowed to enter the residence. Payton v. New York , 445 U.S. 573, 602-03, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ; § 901.19(1), Fla. Stat. (2016). After they entered the residence, the officers were permitted to conduct a protective sweep per Maryland v. Buie , 494 U.S. 325, 334-36, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

AFFIRMED .

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    Adrian Lamar GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0938
    District Court of Appeal of Florida, First District.
    June 13, 2018
    Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges his judgment and sentence, after jury trial, on one count of battery on a law enforcement officer. He asserts error in the trial court's denial of his motion for judgment of acquittal, denial of a requested jury instruction, exclusion of a video from evidence, and denial of his motion for new trial. However, we do not reach these issues because Appellant also asserts and the State concedes error in the pretrial proceedings under rule 3.212, Florida Rules of Criminal Procedure, which requires reversal.

The record reflects that prior to trial Appellant was found incompetent to proceed to trial due to mental illness. Fla. R. Crim. P. 3.212(c). A subsequent evaluation indicated the psychologist's opinion that Appellant was competent to proceed. However, the record contains no transcript or other indication of an independent hearing or written order by the court finding that Appellant had been restored to competence prior to the trial.

Under these circumstances, proceeding to trial violated Appellant's due process rights and reversal is required. Dougherty v. State , 149 So.3d 672 (Fla. 2014). The case is remanded for further proceedings in light of Blaxton v. State , 188 So.3d 48 (Fla. 1st DCA 2016) and Belizaire v. State , 188 So.3d 933 (Fla. 1st DCA 2016).

REVERSED and REMANDED .

B.L. Thomas, C.J., and Bilbrey and Jay, JJ., concur.


text:
    DYCK-O'NEAL, INC., Appellant, v. Grigoriy BRUTSKIY, Appellee.
    No. 1D17-891
    District Court of Appeal of Florida, First District.
    June 13, 2018
    Susan B. Morrison, of Law Offices of Susan B. Morrison, P.A., and David M. Snyder, of David M. Snyder, and Joshua D. Moore, of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    David P. Grigaltchik and Boris Galustov, of Grigaltchik & Galustov, P.A., Jacksonville, for Appellee.
   Per Curiam.

AFFIRMED . See Dyck-O'Neal, Inc., v. Lanham , 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court's decision Higgins v. Dyck-O'Neal, Inc. , 201 So.3d 157 (Fla. 1st DCA 2016), and decisions by the other four district courts of appeal), review granted , SC17-975, 2017 WL 4052015 (Fla. Sept. 14, 2017).

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


text:
    DYCK-O'NEAL, INC., Appellant, v. Jacob KRAWIEC; Kayela Krawiec, Appellee.
    No. 1D17-508
    District Court of Appeal of Florida, First District.
    June 13, 2018
    Susan B. Morrison, of Law Offices of Susan B. Morrison, P.A., and David M. Snyder, of David M. Snyder, and Joshua D. Moore, of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Adam B. Schemer, Jacksonville, for Appellee.
   Per Curiam.

AFFIRMED . See Dyck-O'Neal, Inc., v. Lanham , 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court's decision Higgins v. Dyck-O'Neal, Inc. , 201 So.3d 157 (Fla. 1st DCA 2016), and decisions by the other four district courts of appeal), review granted , SC17-975, 2017 WL 4052015 (Fla. Sept. 14, 2017).

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


text:
    STATE of Louisiana v. Samuel ANDERSON a/k/a Samuel Brent Anderson
    No. 2018-K-90
    Supreme Court of Louisiana.
    June 1, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF EVANGELINE
    Writ denied.
    HUGHES, J., would grant in part and assigns reasons.
   Hughes, J., would grant the writ in part.

Respectfully, in my opinion, "I wish I had a lawyer" is enough.


text:
    STATE of Louisiana v. Derrick GUMMS
    No. 2017-KO-2152
    Supreme Court of Louisiana.
    June 1, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
    Writ denied.
   Hughes, J., would grant the writ in order to ascertain the correct date.


text:
    STATE of Louisiana v. Phillip SCHANE
    No. 2017-KP-0582
    Supreme Court of Louisiana.
    June 1, 2018
    ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA
    This court granted the defendant's application, vacated his sentence, and remanded for resentencing pursuant to La.C.Cr.P. art. 878.1. The State's application for rehearing is granted to clarify that the district court on remand has discretion to determine the extent of the proceedings necessary to comply with that directive.
    While defendant must be given the opportunity to show his crime did not reflect irreparable corruption, in accordance with Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), because substantial proceedings have already been conducted in this matter the parties should have the opportunity to introduce transcripts of those earlier proceedings at the resentencing hearing conducted on remand. Furthermore, in light of the earlier proceedings, the district court has discretion to determine what additional evidence is necessary to comply with La.C.Cr.P. art. 878.1(C). Finally, as we noted previously, after defendant is resentenced, that judgment is included by statute among those which defendant may appeal. See La.C.Cr.P. art. 912(C)(1).
    WEIMER, J., concurring in part and dissenting in part.
   I concur in the result, but would grant and docket to address the issue of the vacature of the defendant's sentence.


author: PER CURIAM:

text:
    STATE EX REL. Sean Michael VINES v. STATE of Louisiana
    No. 2017-KP-0678
    Supreme Court of Louisiana.
    June 1, 2018
    ON SUPERVISORY WRITS TO THE 14TH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

Denied. Relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Thomas, 08-2912, (La. 10/16/09), 19 So.3d 466.

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

Hughes, J., would grant.


text:
    STATE of Louisiana v. Ardulrauman ZEITOUN
    NO. 2017-K-2034
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    STATE of Louisiana IN the INTEREST OF L.W.
    NO. 2018-CK-0139
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


author: JOHNSON, C.J., would grant.

text:
    IN RE: MEDICAL REVIEW PANEL PROCEEDINGS
    In the Matter of Meagan Boudoin and Sherie Boodoin v. Ochsner Clinic Foundation, Olswale Sulaiman, M.D., Abbas El-Say Ed Abbas, M.D., Donald Gainer, M.D., Melissa Matte, M.D., and Christie DeGrange, M.D.
    NO. 2018-C-0594
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.
   JOHNSON, C.J., would grant.


text:
    Erin CRONIN v. INDIAN HARBOR INSURANCE COMPANY and Mid-City Carriages, Inc.
    NO. 2018-CC-0702
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    Shane R. PIERCE, et ux. v. Irma M. RODRIGUEZ, et al.
    NO. 2018-CC-0587
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


author: GENOVESE, J., would grant.

text:
    STATE of Louisiana v. Johnny ROBERTSON
    NO. 2018-KK-0592
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.
   GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Damichael COOK
    NO. 2018-KK-0753
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.
    HUGHES, J, would grant the writ to order an in camera inspection.
   CRICHTON, J., would grant the writ to order an in camera inspection.


text:
    STATE of Louisiana v. Joseph McKinley GUILLORY aka Joseph Guillory
    NO. 2017-KO-1964
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    G.L. EDWARDS, Lisa Edwards, Randy L. Ewing, Robert B. Greer, Billy Hakes, Steven W. Kelly, Stanley Knight, Jeffrey Scott McKaskle, Suzanne McKaskle, William James Slusher, Tonya Slusher, Hershel R. Sullivan, and Meseret Haile Sullivan v. LANDRY CHALET RENTALS, LLC
    NO. 2018-C-05G2
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


author: GUIDRY, J.

text:
    Tammy L. BRIGGS v. FLORIDA PARISHES JUVENILE JUSTICE COMMISSION; Florida Parishes Juvenile Detention Center
    NUMBER 2017 CA 1189
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 12, 2018
    Thomas J. Hogan, Jr., Hammond, LA, Counsel for Plaintiff/Appellant, Tammy L. Briggs
    Randall L. Kleinman, Keene R. Kelley, New Orleans, LA, Counsel for Defendants/Appellees, Florida Parishes Juvenile Justice Commission and Florida Parishes Juvenile Detention Center
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

A discharged employee appeals the dismissal of her petition alleging racial and gender discrimination as being prescribed. Finding no error in the trial court's judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

According to her petition, the plaintiff, Tammy L. Briggs, was hired as a cook at the Florida Parishes Juvenile Detention Center in 2006. On August 19, 2014, Ms. Briggs was terminated from her employment for violating Detention Center rules and procedures. Ms. Briggs later filed an Equal Employment Opportunity Commission (EEOC) complaint with the Louisiana Commission on Human Rights, alleging that her suspension and subsequent termination were premised on racial and gender discrimination.

On August 19, 2015, the EEOC mailed a "Dismissal and Notice of Rights" letter to Ms. Briggs, notifying her that based on its investigation, it was unable to conclude that a violation had occurred. The letter also included the following "Notice of Suit Rights":

This will be the only notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice or your right to sue based on this charge will be lost. (The time limit for filing suit based on a claim under state law may be different.)

Ms. Briggs subsequently filed a petition against the Florida Parishes Juvenile Justice Commission and the Detention Center on December 8, 2015. After answering Ms. Briggs' petition, the defendants raised the objection of prescription by filing a peremptory exception, or in the alternative, motion for summary judgment. The defendants asserted that Ms. Briggs' claims of discrimination were subject to a one-year prescriptive period under La. R.S. 23:303(D), and as the last act of discrimination alleged by Ms. Briggs (her termination) occurred on August 19, 2014, her lawsuit filed on December 8, 2015, was untimely. Ms. Briggs opposed the objection of prescription, arguing that under jurisprudence interpreting La. R.S. 23:303(D), the prescriptive period applicable to her claims was 18 months, not one year.

The trial court heard the defendants' objection of prescription urged pursuant to a peremptory exception, or in the alternative, motion for summary judgment, on December 6, 2016. The trial court thereafter denied the alternative motion for summary judgment, but granted the defendants' peremptory exception urging the objection of prescription and dismissed Ms. Briggs' claims with prejudice in a judgment signed January 6, 2017. Ms. Briggs timely appealed the judgment sustaining the peremptory exception raising the objection of prescription.

DISCUSSION

The issue before us in this appeal is simply the legal question of whether the trial court properly interpreted and applied La. R.S. 23:303(D) to find Ms. Briggs' claims prescribed. That statute is found in the chapter known as the Louisiana Employment Discrimination Law (LEDL) and provides:

Any cause of action provided in this Chapter shall be subject to a prescriptive period of one year. However, this one-year period shall be suspended during the pendency of any administrative review or investigation of the claim conducted by the federal Equal Employment Opportunity Commission or the Louisiana Commission on Human Rights. No suspension authorized pursuant to this Subsection of this one-year prescriptive period shall last longer than six months.

Relying on cases wherein the plaintiffs filed their petitions alleging discrimination beyond the 18-month maximum time period provided in La. R.S. 23:303(D), Ms. Briggs argues that her right to file suit on her claims did not prescribe until February 19, 2016. Thus, she contends that her petition, filed on December 8, 2015, was timely. Based on the plain language of the statutory provision, we disagree.

Section 303(D) expressly provides that the one-year prescription applicable to claims filed pursuant to the LEDL shall be "suspended during the pendency of any administrative review or investigation." (Emphasis added.) The effect of a suspension of prescription is provided in La. C.C. art. 3472, which provides "[t]he period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension."

As recognized in the jurisprudence relied on by Ms. Briggs, the "maximum" amount of time that a plaintiff is afforded to file suit under Section 303(D) is 18 months; however, while such a time period is clearly provided in the statute, it is allowed only if the condition listed in the provision is also met. That condition is "the pendency of any administrative review or investigation of the claim conducted by the federal Equal Employment Opportunity Commission or the Louisiana Commission on Human Rights." (Emphasis added.)

The pendency of any administrative or investigative review of Ms. Briggs' claims ended on August 19, 2015. At that time, the suspension provided by La. R.S. 23:303(D) ended, and prescription commenced to run again on Ms. Briggs' claims. See La. C.C. art. 3472. Accepting Ms. Briggs' contention that she filed her claim with the EEOC on June 7, 2015, the running of prescription on her claims, which had commenced on August 20, 2014, would have halted as of that date. Thus, at the time prescription was suspended on her claims, approximately 73 days remained of the one-year prescriptive period applicable to her claims.

Therefore, Ms. Briggs had 73 days in which to file her petition following her receipt of the EEOC's "Dismissal and Notice of Rights" letter. Even allowing additional days to account for her actual receipt of the letter, which was mailed on August 19, 2015, her petition, filed on December 8, 2015, was still well beyond the 73 days remaining of the prescriptive period applicable to her claims. To be timely, Ms. Briggs' petition needed to be filed no later than sometime in November 2015. As Ms. Briggs petition was not filed in November 2015, we likewise find that Ms. Briggs' right to file suit on her claims prescribed.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court dismissing the plaintiff's petition as prescribed. All costs of this appeal are cast to the appellant, Tammy L. Briggs.

AFFIRMED.

      Ms. Briggs was charged with malfeasance based on her removing food items from the Detention Center without prior written authorization. She was also charged with failure to follow orders for neglecting on several occasions to stop by the control room to have her bags inspected before exiting the facility.

      In her EEOC complaint, Ms. Briggs, an African American female, alleged that a Caucasian male co-worker had similarly removed food items, but was not discharged.

      The copy of the EEOC complaint that appears in the record indicates that it was filed on August 13, 2015.


author: CRAIN, J.

text:
    Petrie and Bertha THOMPSON v. The CENTER FOR PEDIATRIC AND ADOLESCENT MEDICINE, L.L.C., Bernard Gaudin, PNP, Henry M. Peltier, M.D., Louisiana Medical Mutual Insurance Company, and American Casualty Company of Reading, Pennsylvania
    NO. 2017 CA 1088
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 15, 2018
    Michael C. Palmintier, Joshua M. Palmintier, Baton Rouge, Louisiana, Attorneys for Plaintiffs/Appellants, Petrie Thompson and Bertha Thompson
    Micholle W. Mordock, Metairie, Louisiana, Attorney for Defendants/Appellees, Bernard Gaudin and American Casualty Company of Reading, PA
    Deborah I. Schroeder, Metairie, Louisiana, Attorney for Defendants/Appellees, Henry M. Peltier, MD, The Center for Pediatric and Adolescent Medicine, L.L.C., and Louisiana Medical Mutual Insurance Company
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

The plaintiffs in this medical malpractice action appeal a summary judgment dismissing their claims against two defendants. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

This case arises out of the death of Jessica Thompson, the one-year-old daughter of the plaintiffs, Petrie and Bertha Thompson. Three days before Jessica's death, Bertha brought her to The Center for Pediatric and Adolescent Medicine, L.L.C. (The Center), where she was examined by Bernard Gaudin, a nurse practioner. The Thompsons allege, in relevant part, that Gaudin provided substandard care to Jessica by administering immunizations under contraindicated conditions. As a result, Jessica allegedly suffered injuries and ultimately died.

The Thompsons sued Gaudin, The Center, and Henry M. Peltier, M.D., Gaudin's alleged supervisor. The claims against Dr. Peltier and The Center were reviewed by a medical review panel, which found no breach of the applicable standard of care and, more specifically, found Jessica's condition was appropriate for the administration of vaccines. Relying on that opinion, Gaudin and his liability insurer, American Casualty Company of Reading, Pennsylvania, (collectively "Gaudin") filed a motion for summary judgment seeking a dismissal of the claims against them. Gaudin asserted the Thompsons had "no expert to establish the standard of care, whether there was a breach of the standard of care, and whether there was medical causation."

The Thompsons responded with the affidavit of Robert S. Chabon, M.D., a board-certified pediatrician, who attested that, based upon his review of Jessica's medical records, Gaudin breached the standard of care when he administered the vaccinations to Jessica. The administration of those vaccinations, according to Dr. Chabon, resulted in Jessica's untimely death.

Gaudin objected to the affidavit, arguing it was inadmissible and should be stricken because it was untimely, not in proper form, and conclusory. The trial court allowed the affidavit into evidence but found it insufficient to create a genuine issue of material fact. In a judgment signed on March 6, 2017, the trial court granted the motion for summary judgment and dismissed, with prejudice, the Thompsons' claims against Gaudin. The Thompsons appeal.

DISCUSSION

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria governing the trial court's determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La. App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue before the court on the motion for summary judgment, the mover's burden does not require that he negate all essential elements of the adverse party's claim, action, or defense, but rather to point to the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966D(1). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent's favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050.

A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam ); Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765 ; Smith, 639 So.2d at 751. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case. Bryant v. Premium Food Concepts, Inc., 16-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 82, writ denied, 17-0873 (La. 9/29/17), 227 So.3d 288.

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence, the standard of care applicable to the defendant, a breach of that standard of care, and a causal connection between the breach and the claimed injury. See La. R.S. 9:2794A; Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 883-84. Nurses who perform medical services are subject to the same standards of care and liability as are physicians. Johnson v. Morehouse General Hospital, 10-0387 (La. 5/10/11), 63 So.3d 87, 96 ; Aymami v. St. Tammany Parish Hospital Service District No. 1, 13-1034 (La. App. 1 Cir. 5/7/14), 145 So.3d 439, 447. Expert testimony is generally required, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Johnson, 63 So.3d at 96 ; Aymami, 145 So.3d at 446.

In his motion and supporting documents, Gaudin sufficiently pointed out an absence of factual support for one or more elements essential to the Thompsons' claim. See La. Code Civ. Pro. art. 966D(1); Samaha, 977 So.2d at 883-84. The burden of proof then shifted to the Thompsons to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See La. Code Civ. Pro. art. 966D(1). To meet that burden, the Thompsons rely on the affidavit of Dr. Chabon.

Dr. Chabon, as confirmed in his affidavit, is a board-certified pediatrician, licensed to practice medicine in Missouri. The affidavit verifies that the opinions therein are based on Dr. Chabon's review of the records provided to him, including Jessica's autopsy report and her medical records from The Center and Ochsner Health System. The affidavit then provides:

4.
Based upon my training, knowledge, education and experience, as a medical doctor specializing in pediatric medicine, and based on the records and facts of this case, it is my medical opinion that Bernard Gaudin, PNP, Henry M. Peltier, M.D., and the Center for Pediatric and Adolescent Medicine, LLC, fell below the standard of care when they administered Jessica Thompson vaccinations, against the consent and vehement objections of her mother, Bertha Thompson.
5.
Further, it is my opinion that the administration of vaccinations to the Decedent, without and against the consent of her mother, resulted in the untimely death of thirteen-month old Jessica Thompson.

In his reply memorandum, Gaudin objected to the admissibility of the affidavit on several grounds, including its form (an initial copy was not signed or notarized), timeliness, and purported failure to satisfy the requirements of Louisiana Code of Civil Procedure article 967 and Louisiana Code of Evidence article 702. At the beginning of the hearing on the motion, Gaudin's counsel advised the trial court he had "no objection" to any of the evidence "[e]xcept to the extent that we have objected to the sufficiency of the affidavit that has been presented," which, according to counsel, did not "overcome our motion for summary judgment as to the need for expert testimony." The trial court responded, "[T]hat goes to the merits so I'm going to hear the merits." After confirming there was no objection to the timeliness of the affidavit, the trial court stated, "So it's in." Gaudin's counsel replied, "That's fine." The trial court then reviewed the substance of the affidavit and found it "inadequate," "conclusory," and insufficient to establish the plaintiffs would prevail at trial. Based on that finding, the trial court granted summary judgment.

An affidavit of an expert may set forth opinions "as would be admissible in evidence under Louisiana Code of Evidence Article 702," and shall show affirmatively the affiant is competent to testify to the matters stated therein. See La. Code Civ. Pro. art. 961A. Article 702 permits an expert witness to testify in the form of an opinion if (1) the witness's expertise will help the trier of fact to understand the evidence or to determine a fact in issue, (2) the testimony is based on sufficient facts or data, (3) the testimony is the product of reliable principles and methods, and (4) the expert has reliably applied the principles and methods to the facts of the case. See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-95, 113 S.Ct. 2786, 2795-98, 125 L.Ed.2d 469 (1993) ; Freeman v. Fon's Pest Management, Inc., 17-1846 (La. 2/9/18), 235 So.3d 1087, ---- (2018 WL 793988, p. 3). The inadequacy of an affidavit offered in connection with a motion for summary judgment is a "formal defect," which is waived by the opponent unless he timely objects to the affidavit. Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181 (La. 2/29/00), 755 So.2d 226, 235 n.4.

Article 966D(2), as amended in 2015, provides:

The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.

Pursuant to this provision, if an expert's affidavit contains opinions that lack an adequate factual basis, are not sufficiently reliable, or are otherwise inadmissible under Article 702 and 967A, the opposing party must object to the affidavit. See also La. Code Civ. Pro. art. 1425F; Adolph v. Lighthouse Property Insurance Corporation, 16-1275 (La. App. 1 Cir. 9/8/17), 227 So.3d 316, 320 ; Dawson v. Harmony, L.L.C., 12-1580, 2013 WL 1189381 (La. App. 1 Cir. 3/22/13), writ denied, 13-1915 (La. 11/8/13), 125 So.3d 454. In the absence of an objection or, as here, if the objection is overruled, the trial court is now statutorily obligated to consider the expert's opinions. See La. Code Civ. Pro. art. 966D(2). At that point, in determining whether the evidence creates a genuine issue of material fact, the trial court cannot make credibility determinations, evaluate testimony, or otherwise weigh the evidence. See Smith, 639 So.2d at 751 ; Janney v. Pearce, 09-2103 (La. App. 1 Cir. 5/7/10), 40 So.3d 285, 289, writ denied, 10-1356 (La. 9/24/10), 45 So.3d 1078. The trial court must assume all affiants are credible. See Independent Fire Insurance Company, 755 So.2d at 236 ; Janney, 40 So.3d at 289.

Gaudin timely objected to Dr. Chabon's affidavit, then waived those objections "[e]xcept to the ... sufficiency of the affidavit." The trial court, believing that challenge went to the merits of the motion, ruled the affidavit was "in." Because Dr. Chabon's affidavit was not excluded pursuant to Gaudin's objection, his opinions must be considered in determining whether the opponents met their burden of proving the existence of a genuine issue of material fact or that the movers are not entitled to judgment as a matter of law. See La. Code Civ. Pro. art. 966D(2).

Gaudin, however, contends Dr. Chabon's opinions do not create a genuine issue of material fact because the affidavit does not provide sufficient facts or reasons to support the opinions. Gaudin specifically points to Dr. Chabon's failure to explain why the administration of the vaccines was inappropriate or how the vaccines caused or contributed to Jessica's death. For support, Gaudin cites jurisprudence for the general proposition that an expert's "conclusory" affidavit, devoid of specific underlying facts to support a conclusion of ultimate "fact," is not legally sufficient to defeat summary judgment. See Scott v. Leonard J. Chabert Medical Center , 10-0192 (La. App. 1 Cir. 12/22/10), 53 So.3d 714, 719-20, writ denied, 11-0175 (La. 3/25/11), 61 So.3d 668 ; Tillman v. Eldridge, 44,460 (La. App. 2 Cir. 7/15/09), 17 So.3d 69, 79 ; Kinch v. Our Lady of Lourdes Regional Medical Center, 15-603 (La. App. 3 Cir. 12/9/15), 181 So.3d 900, 905 ; Albers v. Vina Family Medicine Clinic, 12-1484 (La. App. 4 Cir. 5/22/13), 116 So.3d 940, 944.

This contention fails to recognize that, in a motion for summary judgment, the reasoning or methodology underlying an expert's opinion are relevant only to determine whether the opinions are admissible under Articles 967A and Article 702. See Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796 ; Freeman , 235 So.3d at ---- (2018 WL 793988 at p. 3) ; Independent Fire Insurance Company, 755 So.2d at 235. Under Article 966D(2), that threshold determination is made when deciding the merits of an objection to the affidavit. As previously explained, if the affidavit passes that threshold test and is admitted, the trial court is statutorily obligated to consider the expert's opinions but, at that point, cannot evaluate the credibility or weight of that evidence. See La. Code Civ. Pro. art. 966D(2); Smith, 639 So.2d at 751 ; Janney, 40 So.3d at 289.

Here, the trial court admitted Dr. Chabon's affidavit into evidence. Gaudin, after seemingly waiving the objection, did not seek review of the trial court's ruling by filing an answer to this appeal or seeking a supervisory writ. Consequently, the admissibility of the affidavit, and more specifically whether the opinions therein are adequately supported to meet the requirements of Article 702 and Article 967A, is not before this court. The affidavit is in evidence and must be considered. See La. Code Civ. Pro. art. 966D(2).

The facts of this case, as well as the applicable law, distinguish it from the cases relied upon by Gaudin. In Scott, a medical malpractice case, the trial court granted summary judgment to the defendant, although the plaintiff presented an expert's affidavit stating the defendant did not follow its protocol for a blood transfusion and, as a result, one of the plaintiffs contracted Hepatitis C. Scott, 53 So.3d at 719. In affirming the summary judgment, this court found the opinions of the plaintiff's expert were "unsupported by facts and insufficient to show the Scotts can win at trial." Scott, 53 So.3d at 719. In contrast to this case, the expert's affidavit in Scott did not establish a breach of the standard of care, but only stated the hospital did not follow its protocol. Scott, 53 So.3d at 719. Scott was also decided before the 2015 amendment to Article 966D(2), which, as previously pointed out, now requires an opposing party to object to an affidavit containing an inadmissible expert opinion. Under current law, if an expert's affidavit is not excluded pursuant to an objection, the trial court is statutorily obligated to consider the opinions therein, regardless of how "conclusory" they may be. See La. Code Civ. Pro. art. 966D(2).

Kinch and Albers are also factually distinguishable. Unlike Dr. Chabon's affidavit, the experts' affidavits in those cases did not address an essential element of the plaintiff's burden of proof. See Kinch , 181 So.3d at 905 (expert's affidavit "fail[ed] to specifically address causation"); Albers , 116 So.3d at 944 (expert's affidavit did not establish the defendant physician actually prescribed the medications that purportedly caused the plaintiff's death). In Tillman , also cited by Gaudin, the court of appeal found the expert's affidavit was sufficient to create a material issue of fact and reversed a summary judgment. See Tillman , 17 So.3d at 80.

Gaudin also argues Dr. Chabon's affidavit does not address all essential elements of the Thompsons' burden of proof. Gaudin contends the affidavit does not identify the standard of care applicable to a nurse practitioner and does not confirm Dr. Chabon is familiar with that standard of care.

Where medical disciplines overlap, a specialist in one field can testify as to the standard of care applicable to those areas of the practice of medicine that are common to both disciplines. See McGregor v. Hospice Care of Louisiana in Baton Rouge, LLC , 13-1979, 2014 WL 5422188 (La. App. 1 Cir. 10/24/14) ; Ricker v. Hebert, 94-1743 (La. App. 1 Cir. 5/5/95), 655 So.2d 493, 495 ; Newsom v. Lake Charles Memorial Hospital, 06-1468 (La. App. 3 Cir. 4/4/07), 954 So.2d 380, 384 n.2, writ denied, 07-0903 (La. 6/15/07), 958 So.2d 1198. Dr. Chabon's affidavit confirms he is a board-certified pediatrician. The parties do not dispute Gaudin was providing nursing care to a pediatric patient at the time of the alleged malpractice. While Dr. Chabon's affidavit does not specifically state the standard of care, he did attest that the medical care provided by the defendants to Jessica fell below the standard of care. Construing all reasonable inferences from this evidence in favor of the Thompsons, one can reasonably infer that Dr. Chabon is familiar with the applicable standard of care, and Gaudin breached that standard.

If a party submits expert opinion evidence in opposition to a motion for summary judgment that would be admissible under Daubert - Foret and the other applicable evidentiary rules, and is sufficient to allow a reasonable juror to conclude that the expert's opinion on a material fact more likely than not is true, the trial court should deny the motion. Independent Fire Insurance Company, 755 So.2d at 236. Dr. Chabon's affidavit was admitted into evidence. Having reviewed that affidavit, we find it sufficient to allow a reasonable juror to conclude that Gaudin breached the applicable standard of care, and that Jessica sustained damages therefrom. The evidence thus creates a genuine issue of material fact precluding summary judgment.

CONCLUSION

The March 6, 2017 summary judgment is reversed, and the case is remanded to the trial court for further proceedings. All costs of this appeal are assessed to Bernard Gaudin and American Casualty Company of Reading, Pennsylvania.

REVERSED AND REMANDED.

      The defendants also include American Casualty Company of Reading, Pennsylvania, and Louisiana Medical Mutual Insurance Company.

      When an unrestricted appeal is taken from a final judgment, the appellee may seek review of all adverse interlocutory rulings by filing an answer to the appeal. See La. Code Civ. Pro. art. 2133A; Wilson v. Two SD, LLC, 15-0959 (La. App. 1 Cir. 12/23/15), 186 So.3d 103, 113. In his brief on appeal, Gaudin argues in support of a "Motion to Strike" the affidavit. No such motion was filed in the trial court, and, absent an answer to the plaintiffs' appeal or a writ application, the trial court's ruling admitting the affidavit cannot be reversed on appeal. Id.

      Under these circumstances, we need not address whether the factual basis for an expert's opinion must, as a condition to the opinion's admissibility, be set forth in the expert's affidavit. While Article 702 states an expert's testimony must be based on "sufficient facts," Article 705A further explains "the expert may testify in terms of opinion or inference and give his reasons therefore without prior disclosure of the underlying facts or data, unless the court requires otherwise." (Emphasis added.) The expert may be required to disclose the underlying facts or data on cross-examination. See La. Code Evid. art. 705A. Pre-trial procedures, including discovery and contradictory motions, are available to a party to obtain and scrutinize the factual basis of an expert's opinion to determine if the opinion is sufficiently reliable to be admissible. See La. Code Civ. Pro. art. 1425 ; Adolph, 227 So.3d at 320 ; Dawson, 2013 WL 1189381 at pp. 1-2.

      We also distinguish two recent cases from this circuit affirming summary judgments where opposing experts' affidavits were considered "conclusory." See Cordell v. Tanaka, LLC, 17-0285, 2018 WL 301331 (La. App. 1 Cir. 1/4/18), and Williams v. Liberty Mutual Fire Insurance Company, 16-0996 (La. App. 1 Cir. 3/13/17), 217 So.3d 421, 426-27, writ denied, 17-0624 (La. 6/5/17), 219 So.3d 338. Both cases are silent as to whether objections were made to the affidavits as required by Article 966D(2), and whether the objections were sustained or overruled. Further, the cases involve "trip and fall" claims asserting premises liability, and thus were not governed by Section 9:2794A, which sets forth a specific burden of proof for this medical malpractice action.

      See State v. Foret, 628 So.2d 1116, 1123 (La. 1993). The Daubert -Foret standard was codified in Article 702 following its amendment in 2014. See Freeman , 235 So.3d at ---- (2018 WL 793988 at p. 3).