text:
    Hasmukhbai PATEL, a/k/a Hasmukh Patel and Hemuben Patel, a/k/a Hemu Patel, Appellants, v. WILMINGTON SAVINGS BANK, FSB, as Trustee FOR STANWICH MORTGAGE LOAN TRUST A, Appellee.
    Case No. 5D17-1900
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 6, 2018 Rehearing Denied July 30, 2018
    Eric O. Husby, Tampa, for Appellants.
    Thomas Wade Young and Joseph B. Towne, of Lender Legal Services, LLC, Orlando, for Appellee.
   PER CURIAM.

Hasmukhbai Patel and Hemuben Patel appeal the trial court's nonfinal order denying their motion to quash constructive service of process in the foreclosure action brought by Wilmington Savings Bank, FSB, as Trustee for Stanwich Mortgage Loan Trust A ("the Bank"), against the Patels. Because the trial court did not rule that it obtained personal jurisdiction over the Patels, but instead determined only that it had in rem jurisdiction, this Court lacks jurisdiction over this nonfinal order and we dismiss the appeal. See Archer v. U.S. Bank Nat'l Ass'n, 220 So.3d 477, 478-79 (Fla. 5th DCA 2017) (dismissing appeal because nonfinal order denying mortgagor's motion to quash constructive service of process did not refer to personal jurisdiction and no assertion of personal jurisdiction was made in trial court); Koniecpolski v. Stelnicki, 571 So.2d 577, 578 (Fla. 5th DCA 1990) (dismissing appeal because Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) does not vest jurisdiction in this Court over nonfinal order denying motion to quash constructive service of process in foreclosure proceeding when order does not determine jurisdiction of person).

APPEAL DISMISSED.

SAWAYA, ORFINGER and EDWARDS, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Allan RUSH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1348
    District Court of Appeal of Florida, First District.
    June 28, 2018 Rehearing Denied July 31, 2018
    Charles E. Hobbs, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Wetherell, Rowe, and Winokur, JJ., concur.


author: PER CURIAM.

text:
    PROGRESSIVE SELECT INSURANCE COMPANY, Petitioner, v. FLORIDA HOSPITAL MEDICAL CENTER a/a/o Jose Sanchez, Respondent.
    Case No. 5D17-3540
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 13, 2018
    Douglas H. Stein, of Association Law Group, P.L., Miami, for Petitioner.
    Chad A. Barr and Heather M. Kolinsky, of Law Office of Chad A. Barr, P.A., Altamonte Springs, and Robert J. Hauser, of Pankauski Hauser PLLC, West Palm Beach, for Respondent.
   PER CURIAM.

Progressive Select Insurance Company ("Progressive") petitions for a writ of certiorari regarding an order issued by the circuit court sitting in its appellate capacity in favor of Florida Hospital Medical Center ("Florida Hospital") a/a/o Jose Sanchez. Progressive seeks certiorari because of the circuit court's affirmance that Sanchez's personal injury protection ("PIP") deductible should be applied to 100% of Florida Hospital's total medical charges before reducing the amount paid by Progressive pursuant to the statutory reimbursement limitation provided in section 627.736(5)(a)1.b., Florida Statutes (2013).

This case is identical to our recent decisions in Progressive Select Insurance Co. v. Florida Hospital Medical Center a/a/o Parent, 236 So.3d 1183, 1192 (Fla. 5th DCA 2018), and Progressive Select Insurance Co. v. Florida Hospital Medical Center a/a/o Pena, 236 So.3d 1182, 1182 (Fla. 5th DCA 2018). In those cases, we denied Progressive's petitions for writs of certiorari, concluding:

Section 627.739(2)[, Florida Statutes (2014),] currently requires that the deductible be applied to 100% of the expenses and losses, and that is the version the circuit court properly applied. We see no divergence from the correct law in the circuit court's decision, and we see no violation of a clearly established principle of law that results in a miscarriage of justice.

Parent, 236 So.3d at 1192. We also certified a question of great public importance:

WHEN CALCULATING THE AMOUNT OF PIP BENEFITS DUE AN INSURED, DOES SECTION 627.739(2), FLORIDA STATUTES, REQUIRE THAT THE DEDUCTIBLE BE SUBTRACTED FROM THE TOTAL AMOUNT OF MEDICAL CHARGES BEFORE APPLYING THE REIMBURSEMENT LIMITATION UNDER SECTION 627.736(5)(a)1.b., OR MUST THE REIMBURSEMENT LIMITATION BE APPLIED FIRST AND THE DEDUCTIBLE SUBTRACTED FROM THE REMAINING AMOUNT?

Id. The Florida Supreme Court has accepted jurisdiction. Progressive Select Ins. Co. v. Fla. Hosp. Med. Ctr., No. SC18-278, 2018 WL 2064894, at *1 (Fla. Mar. 20, 2018). At the time of this opinion, it has not yet rendered its decision.

After we issued our opinions in Parent and Pena, the Fourth District Court reached a contrary result in several of its cases and certified conflict with our decisions. State Farm Mut. Auto. Ins. Co. v. Care Wellness Ctr., LLC, 240 So.3d 22, 31 (Fla. 4th DCA 2018) ; USAA Gen. Indem. Co. v. Gogan, 238 So.3d 937, 937 (Fla. 4th DCA 2018) ; Progressive Select Ins. Co. v. Blum, 238 So.3d 852, 853 (Fla. 4th DCA 2018). We accordingly certify conflict with Care Wellness Center, Gogan, and Blum and certify the same question that we previously certified in Parent as one of great public importance.

PETITION DENIED; CONFLICT CERTIFIED; QUESTION CERTIFIED.

SAWAYA, PALMER, and LAMBERT, JJ., concur.


text:
    Troy Sheldon CRAIG, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2087
    District Court of Appeal of Florida, Fourth District.
    July 11, 2018
    Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   Per Curiam.

We affirm in this Anders appeal of the trial court's disposition of appellant's violation of probation proceeding, but remand for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated. See Brown v. State , 82 So.3d 910 (Fla. 4th DCA 2011) ; Rey v. State , 904 So.2d 566 (Fla. 4th DCA 2005), Riley v. State , 884 So.2d 1038 (Fla. 4th DCA 2004).

Damoorgian, Levine and Klingensmith, JJ., concur.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Charlene Marie DURYEA, Appellant, v. Keith Robert BONO, Appellee.
    Case Nos. 2D17-4314 2D17-4422
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018
    Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant.
    Andrea Black of Andrea Black, P.A., Orlando, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

In this consolidated appeal, the Mother challenges a Temporary Order for Timesharing, rendered on October 27, 2017 (case no. 2D17-4314), and an Amendment to Temporary Order for Timesharing, rendered on November 2, 2017 (case no. 2D17-4422).

We affirm the October 27, 2017, order without comment. However, the November 2, 2017, order was rendered after the notice of appeal in case number 2D17-4314 had been filed. The November 2, 2017, order modified a substantive provision of the October 27, 2017, order and is, therefore, a nullity. See Haines v. State, 805 So.2d 972, 973 (Fla. 2d DCA 2001) (trial court lacked jurisdiction to enter amended order elaborating on original order while appeal was pending; therefore amended order was a nullity): Albertson's Inc. v. Ferrell, 647 So.2d 242, 242 (Fla. 1st DCA 1994) (holding that amended order making more than clerical corrections was a nullity when it was entered after notice of appeal of the original order). The Father concedes error. Accordingly, we remand with directions to vacate the November 2, 2017, order. See Schaeffer v. State, 995 So.2d 518, 518 (Fla. 2d DCA 2008) (affirming original order but remanding with directions to vacate amended order "as it was entered without jurisdiction").

Because of the time-sensitive nature of the proceedings below, no motion for rehearing will be considered. The clerk of this court is directed to immediately issue the mandate so that the trial court may enter a final order in this matter.

Affirmed; remanded.

LaROSE, C.J., and BADALAMENTI, J., Concur.


author: Per Curiam. Osterhaus, J., dissenting.

text:
    Scott Anthony MITCHELL, Appellant, v. Taylor N. BROGDEN, Appellee.
    No. 1D16-5849
    District Court of Appeal of Florida, First District.
    July 16, 2018
    Seth Schwartz and Albert J. Tasker, The Schwartz Law Group, P.A., Jacksonville, for Appellant.
    Taylor Nicole Brogden, pro se, Appellee.
   Per Curiam.

Scott Mitchell appeals the stalking injunction entered against him. The injunction has now expired on its own terms, so it no longer has effect. Nonetheless, we cannot dismiss the appeal as moot because "collateral legal consequences flowing from such an injunction outlast the injunction itself." Murphy v. Reynolds , 55 So.3d 716, 716 (Fla. 1st DCA 2011).

Viewing the evidence in a light most favorable to Appellee, we conclude that the evidence did not support a finding that Mitchell's conduct was sufficient to "cause[ ] substantial emotional distress" under the reasonable-person standard we must apply. See § 784.048(1)(a), Fla. Stat.; see also Bouters v. State , 659 So.2d 235, 238 (Fla. 1995) (holding objective, reasonable-person standard applies). Accordingly, we reverse the order. See Ashford-Cooper v. Ruff , 230 So.3d 1283, 1283 (Fla. 1st DCA 2017) ("[T]here was no evidence that the repeated calls and texts Appellant made to Appellee to try to get in touch with her husband caused Appellee-or would cause a reasonable person in Appellee's position-substantial emotional distress."); David v. Schack , 192 So.3d 625, 628 (Fla. 4th DCA 2016) (reversing stalking injunction after finding reasonable person would not suffer substantial emotional distress when respondent "banged on [petitioner's] door" and left a letter and payment); Plummer v. Forget , 164 So.3d 109, 110 (Fla. 5th DCA 2015) ("Based upon our careful review of the record, we conclude that the incidents described by Forget, when examined through the prism of the 'reasonable person' standard, would not have caused 'substantial emotional distress' to support a finding of stalking."); Leach v. Kersey , 162 So.3d 1104, 1106 (Fla. 2d DCA 2015) (noting that "[a] reasonable woman who had an eighteen-month affair with another woman's husband might well expect to hear the scorn of an angry wife" and concluding that "[t]he evidence fails to show that a reasonable person in Kersey's situation would suffer substantial emotional distress from these contacts"); Touhey v. Seda , 133 So.3d 1203, 1204 (Fla. 2d DCA 2014) (reversing stalking injunction after finding reasonable person would not suffer substantial emotional distress based on particular contacts); Goudy v. Duquette , 112 So.3d 716, 717 (Fla. 2d DCA 2013) ("[A] reasonable person would not have suffered substantial emotional distress as a result of the conversation, however one-sided or hostile it might have been."); Jones v. Jackson , 67 So.3d 1203, 1203-04 (Fla. 2d DCA 2011) (finding appellant's threatening phone calls and text messages to appellee, and his statements to third parties suggesting he would do violence to appellee, would not have caused a reasonable person to suffer substantial emotion distress); Slack v. Kling , 959 So.2d 425, 426 (Fla. 2d DCA 2007) ("Slack left [two] voice message[s] stating that if Kling did not stay away from Slack's wife, Slack would make an 'arrangement.' We conclude that nothing in the record demonstrates any basis for finding that a reasonable person would suffer 'substantial emotional distress' from these two phone messages." (footnote omitted) ); McMath v. Biernacki , 776 So.2d 1039, 1040-41 (Fla. 1st DCA 2001) (noting that appellee admitted appellant never threatened her and holding that "[n]o evidence exists in the record that a reasonable person would suffer substantial emotional distress from these incidents. The record reveals that the appellee does not feel comfortable around the appellant. In response to why the appellee was afraid of the appellant, the appellee stated that the appellant did not understand her and had made several attempts to talk to her.").

REVERSED.

B.L. Thomas, C.J., and Winsor, J., concur; Osterhaus, J., dissents with opinion.

Osterhaus, J., dissenting.

I think we should affirm because competent, substantial evidence supports the trial court's conclusion that Mr. Mitchell violated the stalking statute.

ORDER ON MOTION FOR HEARING EN BANC

A judge of this Court requested that this cause be heard en banc in accordance with Florida Rule of Appellate Procedure 9.331(c). All judges in regular active service have voted on the request. Less than a majority of those judges voted in favor of hearing en banc. Accordingly, the request for hearing en banc is denied.

B.L. Thomas, C.J., and Lewis, Roberts, Wetherell, Rowe, Ray, Osterhaus, Kelsey, Winokur, Jay, Winsor, and M.K. Thomas, JJ., concur.

Wolf and Bilbrey, JJ., dissent.

Makar, J., dissents with opinion.

Makar, J., dissenting from the denial of hearing en banc.

Due to a large caseload, our fifteen-member appellate court-like the other four district courts in Florida-assigns each case randomly to a three-judge panel for disposition, raising the trivia question: How many different three-judge panels are possible? If you said 455, you're correct. Most people guess a far smaller number. What isn't trivial is the jurisprudential impact that so many different panels have on similar or related cases, making the need for intra-court decisional uniformity important, which was the basis upon which en banc review was sought as to the proposed disposition of this case by a divided panel.

Decisional uniformity is so important that it is one of only two grounds for en banc review, the other involving cases of exceptional importance. Rule 9.331, Fla. R. App. P. (2018). It is the primary tool for reducing disparate results within a large appellate court arising from randomized panel assignments. For example, in Jones v. State , 790 So.2d 1194, 1196 (Fla. 1st DCA 2001), this Court decided to hear a case en banc "to resolve a conflict in our opinions regarding the applicable standard of review" in a criminal case. By doing so, the Court furthered "a primary function of the en banc rule [which] is to standardize the decisions of each district so as to minimize the importance of the 'luck of the [appellate] draw' ... in presenting cases before our increasingly multi-member courts." Schreiber v. Chase Fed. Sav. & Loan Ass'n , 422 So.2d 911, 912 n.1 (Fla. 3d DCA 1982) (" Schreiber I ") (Schwartz, J.), decision quashed , 479 So.2d 90 (Fla. 1985) (adopting Judge Schwartz's viewpoint).

Without en banc review for uniformity, we'd not be one court attempting to dispense uniform justice, but an assemblage of 455 randomly-assigned and autonomous three-judge panels each doing as it sees fit. That is not our jurisprudential system. As our supreme court said when it established the en banc rule: "Under our appellate structural scheme, each three-judge panel of a district court of appeal should not consider itself an independent court unto itself, with no responsibility to the district court as a whole ." See In re Rule 9.331, Determination of Causes by a Dist. Court of Appeal En Banc, Fla. Rules of Appellate Procedure , 416 So.2d 1127, 1128 (Fla. 1982) (emphasis added). The court long ago held that language in article V, section 4-that "three judges shall consider each case"-does not "restrict[ ] the district courts from hearing cases en banc." Chase Fed. Sav. and Loan Ass'n v. Schreiber , 479 So.2d 90, 93 (Fla. 1985) (" Shreiber II "). The purpose of the en banc process is to unify a court's jurisprudence, rather than potentially fracture it by giving decisions of three-judge panels preferred or protected status. As our supreme court said in support of the en banc rule:

The en banc process now authorized for the district courts is designed to help the district courts avoid conflict, assure harmonious decisions within the courts' geographic boundaries, and develop predictability of the law within their jurisdiction. Consistency of decisions within each district is essential to the credibility of the district courts. There has been criticism of intermediate appellate courts for their failure to speak with "a single voice of the law." Meador, An Appellate Court Dilemma and A Solution Through Subject Matter Organization, 16 U. Mich. J.L. Ref. 471, 474 (1983). As judges are added to Florida's district courts to meet expanding caseloads, the resulting increased number of three-judge panels cannot help but increase the number of inconsistent and conflicting decisions. When there is a general rotation of Florida's district court judges among three-judge panels, the increased number of panel combinations compounds the problem. With a five-member court, the number of different panel combinations is ten. With a twelve-member court, however, the number of panel combinations is 220. The en banc process provides a means for Florida's district courts to avoid the perception that each court consists of independent panels speaking with multiple voices with no apparent responsibility to the court as a whole. The process provides an important forum for each court to work as a unified collegial body to achieve the objectives of both finality and uniformity of the law within each court's jurisdiction.

Schreiber II , 479 So.2d at 93-94 (emphasis added). Uniformity review, perhaps a bit like a cranky hall monitor, helps to keep order by requiring three-judge panels to be open-minded as to the views of their colleagues and responsible to the court as a whole in their decisions, particularly written ones that become binding precedent. Our supreme court-with its limited jurisdiction-does not perform this function; instead, each district court must do so, making enthusiasm and dedication to the task important.

Little judicial fervor exists for decisional uniformity, however. The primary reason is an institutional predisposition-ingrained on the first day of new appellate judges' school-to avoid the en banc process and its rancor entirely, invoking it only as a last resort in extraordinary situations, typically only very high-profile cases. An almost plague-like resistance prevails. Another reason is that en banc review takes time and energy, both of which may be in short supply, making the judicial cost/benefit balance teeter presumptively against review. And a key word in Rule 9.331(a) is that en banc review is appropriate only if "necessary to maintain uniformity in the court's decisions." Rule 9.331(a), Fla. R. App. P. (2018) (emphasis added). What may be important to one judge may not matter to others, making the necessity for en banc review in the eye of each judicial beholder.

And what standard should apply in deciding when uniformity review is justified? As noted in Jones , the "district courts are free to adopt their own standards for determining whether en banc consideration is required to maintain uniformity of decisions. An intra-district conflict may justify en banc review even if it does not meet the more exacting definition of 'express and direct conflict' in the context of the supreme court's discretionary jurisdiction." 790 So.2d at 1196 (citing Schreiber II , 479 So.2d 90 ). Our court lacks a standard for uniformity review, saying only that it is a discretionary decision, Internal Operating Procedures, 6.4. ("A decision to grant or deny en banc review on either of these [two] grounds is within the discretion of the court."), but we ought to have one, as should any large multi-member appellate court. For example, Judge Schwartz proposed that "an appropriate standard or rule-of-thumb is the rather practical one that decisions lack uniformity whenever it appears that they are so inconsistent and disharmonious that they would not have been rendered by the same panel of the court." Schreiber I , 422 So.2d at 912 n.1, (Schwartz, J.), decision quashed , 479 So.2d 90 (Fla. 1985) (adopting Judge Schwartz's viewpoint that uniformity review is not limited to direct conflict). This standard is workable, and others exist, but what matters most is that there exists a standard that reflects commitment to the goal of uniformity. After all, even a uniform standard can be applied in a non-uniform manner, making institutional devotion to decisional uniformity a key factor.

In this regard, an oft-heard comment against uniformity review is: "If I were on the panel, I'd decide the case differently, but it is not en-banc-worthy." By this reasoning, uniformity will never occur; panel decisions become immunized from internal review even if a majority of the court may disagree with them. Uniformity review, of course, cannot be undertaken in every case where a judge disagrees with a panel decision; we don't have the ability to oversee each other's daily work to that degree; indeed, the largest slice of our caseload results in per curiam affirmed decisions, which escape uniformity review entirely because no written opinion is produced and non-panel members typically are unaware of the issues raised and the basis for their resolution. In any event, although perfect decisional uniformity is impossible, striving for and encouraging en banc review on this basis is a worthy goal.

Given this backdrop, it is respectfully submitted that a substantial likelihood exists, if not a certainty, that the "luck of the draw" will dictate whether stalking injunctions are upheld or reversed in this district absent clarity in how the appellate standard of review is to be applied in this class of cases-for which uniformity is important. Panels will decide similar cases differently, applying standards of review in differing ways and viewing factual records through divergent minds' eyes. The degree of decisional dispersion is potentially wide, resulting in unpredictable and inconsistent results based on the panel assigned, just like our jurisprudence on other topics for which a motion for hearing en banc failed. See, e.g. , In re Doe 13-A , 136 So.3d at 758 (denial of hearing en banc with a concurral, four dissentals, and a commental). I disagree profoundly that a basis for reversal exists in this case, but-more importantly-believe that uniformity review would produce greater clarity and predictability, as in Jones and In re Doe 13-A , on the appellate standard of review and its application to the record in this class of cases.

      The formula for combinations applied here is (15x14x13)/(1x2x3)=455. When you factor in visiting judges (circuit judges from within our district or judges from other district courts of appeal) the number increases substantially. The Second District, the largest intermediate appellate court in Florida with sixteen members, has 560 possible three-judge panels (slightly less due to a husband-wife combo currently serving on that court); the Third District, the smallest with ten members, has 120 possible three-judge panels. Viewed in a different way, it takes about ten years for a district judge to sit with every possible combination of her colleagues on a fifteen-member court (assuming no panel combinations are repeated, which is unlikely).

      Review was sought because it was unlikely that the victim, who had no lawyer at trial or on appeal, would seek review. She filed a pro se answer brief (well done by pro se standards), but it was stricken for technical non-compliance with our Court's citation rules, such that only the appellant's brief was considered. It would have been better to have stricken only the non-compliant portions. Better yet, consideration ought to be given to appointing counsel or encouraging legal aid organizations and appellate pro bono attorneys to provide representations in this type of case where one or both parties lack counsel.

      We also have no standard for determining what cases are of "exceptional importance" under the en banc rule. In re Doe 13-A , 136 So.3d 748, 754 (Fla. 1st DCA 2014) ("This Court has not expressly articulated standards for determining whether a case is exceptionally important.") (Rowe, J., dissenting from denial of hearing en banc).


text:
    Giles E. ORCUTT, DOC#054904, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3941
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018
   PER CURIAM.

We affirm the summary denial of Mr. Orcutt's motion for postconviction relief. Our affirmance is without prejudice to Mr. Orcutt's pursuing any administrative remedies he may have with the Florida Commission on Offender Review.

CASANUEVA, SALARIO, and BADALAMENTI, JJ., Concur.


text:
    Nicholas FOUNTAIN, DOC #H06734, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3933
    District Court of Appeal of Florida, Second District.
    Opinion filed July 20, 2018
    Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee.
   PER CURIAM.

Nicholas Fountain appeals the order revoking his probation and imposing an incarcerative sentence for his felony and misdemeanor offenses. We affirm the revocation of Fountain's probation and his resulting sentences without further comment; however, the trial court erroneously entered a second judgment when it imposed Fountain's sentences upon revocation. See Schaufler v. State, --- So.3d ----, 43 Fla. L. Weekly D1391a, 2018 WL 3040383 (Fla. 2d DCA June 20, 2018) ("Duplicative adjudications of guilt after revocation of probation or community control are superfluous, are unauthorized, and can cause undue confusion in future proceedings." (quoting Butler v. State, 195 So.3d 1147, 1148 (Fla. 2d DCA 2016) ) ). Because the trial court initially adjudicated Fountain guilty and entered a judgment against him when it imposed his split sentences, the second judgment was unauthorized and should be stricken. See id. ("[T]he circuit court only enters a judgment on a violation of probation in those instances when it withheld an adjudication of guilt, i.e., withheld judgment, at the time it originally imposed probation." (alteration in original) (quoting Butler, 195 So.3d at 1148-49 ) ).

Accordingly, we affirm the revocation of Fountain's probation and his resulting sentences but remand for the trial court to vacate the second written judgment.

Affirmed.

NORTHCUTT and LUCAS, JJ., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.


text:
    Aaron A. CAMERON and Sara D. Cameron, Appellants, v. JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, and Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust, as Trustee of the Residential Credit Opportunities Trust Series 2015-1, Appellee.
    No. 1D18-1400
    District Court of Appeal of Florida, First District.
    July 17, 2018 Rehearing Denied August 10, 2018
    Aaron A. Cameron, pro se, Appellant.
    Melisa Manganelli of Law Offices of Mandel, Manganelli & Leider, P.A., Boca Raton, for Appellee.
   Per Curiam.

AFFIRMED . See Rivas v. Bank of New York Mellon , 244 So.3d 334 (Fla. 4th DCA 2018).

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


text:
    Ronald J. MARZULLO, Appellant, v. Joyce MARZULLO a/k/a Joyce Bryan, Appellee.
    Case No. 2D17-3953
    District Court of Appeal of Florida, Second District.
    Opinion filed July 25, 2018
    Ronald J. Marzullo, pro se.
    Joyce Marzullo a/k/a Joyce Bryan, pro se.
   PER CURIAM.

In this appeal, the former husband, Ronald J. Marzullo, challenges a nonfinal order denying his supplemental counter petition for modification of alimony and for retroactive modification of alimony and granting the former wife, Joyce Marzullo's, supplemental counter petition for modification of alimony, for retroactive alimony, for modification of retirement benefits, and for retroactive retirement benefits and payment of alimony arrears. We dismiss the appeal in part as it pertains to the portion of the order granting the former wife a share of the former husband's retirement benefits. That portion of the order is nonfinal and nonappealable as the trial court has not yet set an amount for the award of either current or retroactive retirement benefits and, in fact, expressly reserved jurisdiction to set the amount for retroactive retirement benefits and to enter an order to that effect. Cf. Rollins Fruit Co. v. Wilson, 923 So.2d 516, 519-20 (Fla. 2d DCA 2005) (holding that where trial court reserved jurisdiction to determine amount due to one party and to enter a judgment for that amount in that party's favor, the order on appeal was not final and thus dismissal of appeal was appropriate). In all other respects, the order on appeal is affirmed.

Affirmed in part; dismissed in part.

LaROSE, C.J., and MORRIS and ATKINSON, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    SUPER PRODUCTS, LLC, a Delaware limited liability company, Appellant, v. INTRACOASTAL ENVIRONMENTAL, LLC, a Florida limited liability company, Appellee.
    Case No. 2D17-1735
    District Court of Appeal of Florida, Second District.
    Opinion filed July 25, 2018
    Arthur S. Weitzner of Arthur S. Weitzner, P.A., Sarasota, for Appellant.
    Adam Hersh of Hunter Business Law, Tampa, for Appellee.
   NORTHCUTT, Judge.

Super Products, LLC, challenges an interlocutory order awarding attorney's fees to Intracoastal Environmental, LLC, in this ongoing breach of contract action. The circuit court assessed the fees pursuant to a Wisconsin statute in the misguided belief that the law of that state governs the Florida lawsuit. Plainly, however, the contract's choice of law provision governs only the construction of the contract.

Still, we lack jurisdiction to reverse the fee award at this time. The order does not contain language allowing execution; as such, it is a nonappealable, nonfinal order, and we must dismiss this appeal. See McHale v. Grobowsky, 913 So.2d 1292, 1292 (Fla. 2d DCA 2005). As we do so, it is worth noting that until an action is resolved by entry of final judgment, a circuit court has inherent authority to reconsider its interlocutory orders. See LoBello v. State Farm Fla. Ins. Co., 152 So.3d 595, 600 (Fla. 2d DCA 2014).

Dismissed.

MORRIS, J., Concurs.

LUCAS, J., Concurs in result only.


text:
    Jose C. DURON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4405
    District Court of Appeal of Florida, First District.
    July 25, 2018
    Jose C. Duron, 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:
    Jarvis HARMON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2073
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 27, 2018
    Jarvis Harmon, Perry, pro se.
    No appearance 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 March 8, 2018, order denying Petitioner's pro se Motion to Correct Illegal Sentence, filed in Case No. 2011-CF-17214-A-O in the Ninth Judicial Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, BERGER and LAMBERT, JJ., concur.


text:
    Lyle Franklin FORREST, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2085
    District Court of Appeal of Florida, First District.
    July 25, 2018
    Lyle Franklin Forrest, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Jordan v. State , 549 So.2d 805, 806 (Fla. 1st DCA 1989).

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


author: ORFINGER, J.

text:
    STATE of Florida, Appellant, v. OFFICE OF THE PUBLIC DEFENDER, EIGHTEENTH JUDICIAL CIRCUIT, BREVARD COUNTY, Florida and Michael Falanga, Appellees.
    Case No. 5D18-686
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 27, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca R. McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellees.
   ORFINGER, J.

The State of Florida appeals the circuit court's order denying its petition for a writ of quo warranto, challenging the Office of Public Defender's authority to intervene in civil traffic infraction cases. Based on our opinion in State v. Grate, No. 5D18-683, --- So.3d ----, 2018 WL 3595263 (Fla. 5th DCA July 27, 2018), issued simultaneously herewith, we treat this matter as a direct appeal, reverse the circuit court's order, and remand with instructions to grant the petition.

REVERSED and REMANDED.

WALLIS and LAMBERT, JJ., concur.

      The circuit court considered this matter with a three-judge panel. Judge Paulk dissented and would have granted the petition.


text:
    STATE of Florida, Appellant, v. John Paul SKINNER and Paula Wright, Appellees.
    Case No. 5D18-685
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 27, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca R. McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellees.
   ORFINGER, J.

The State of Florida appeals the circuit court's order denying its petition for a writ of quo warranto, challenging the Office of Public Defender's authority to intervene in civil traffic infraction cases. Based on our opinion in State v. Grate, No. 5D18-683, --- So.3d ----, 2018 WL 3595263 (Fla. 5th DCA July 27, 2018), issued simultaneously herewith, we treat this matter as a direct appeal, reverse the circuit court's order, and remand with instructions to grant the petition.

REVERSED and REMANDED.

WALLIS and LAMBERT, JJ., concur.

      The circuit court considered this matter with a three-judge panel. Judge Paulk dissented and would have granted the petition.


text:
    Brian WALLACE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-279
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 27, 2018
    James S. Purdy, Public Defender, and Danielle Renee Rufai, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant's judgment and sentence. However, as the State properly concedes, the trial court was without jurisdiction to rule on Appellant's Florida Rule of Criminal Procedure 3.800(c) motion while his direct appeal was pending. See, e.g. , Liranzo-Cruzata v. State , 6 So.3d 114 (Fla. 2d DCA 2009) ; Mowatt v. State , 963 So.2d 348 (Fla. 4th DCA 2007). We therefore reverse the order denying Appellant's rule 3.800(c) motion and remand for the trial court to enter a new order on Appellant's aforementioned motion.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

EVANDER, BERGER and WALLIS, JJ., concur.


text:
    Andre ROBINSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1801
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 27, 2018
    David J. Joffe, of Joffe Law, P.A., Ft. Lauderdale, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Andre Robinson appeals his sentences for manslaughter with a firearm and robbery with a weapon, imposed after his entry of a no contest plea. Robinson committed these crimes when he was sixteen years of age. We affirm the concurrent twenty-two-year prison sentences imposed by the trial court, but reverse in part and remand for resentencing solely to provide for a judicial review hearing after twenty years to allow for the possibility of early release. See Kelsey v. State , 206 So.3d 5, 8 (Fla. 2016) ("[A]ll juvenile offenders whose sentences meet the standard defined by the Legislature in chapter 2014-220, a sentence longer than twenty years, are entitled to judicial review."); see also Dinnall v. State , 246 So.3d 1302, 2018 WL 3312116 (Fla. 5th DCA July 6, 2018) ; Montgomery v. State , 230 So.3d 1256, 1263 (Fla. 5th DCA 2017) ; Burrows v. State , 219 So.3d 910, 911 (Fla. 5th DCA 2017).

AFFIRMED, in part; REVERSED, in part; and REMANDED with instructions.

TORPY, EVANDER and EDWARDS, JJ., concur.

      §§ 775.087(1)(b), 782.07(1), Fla. Stat. (2015).

      § 812.13(2)(b), Fla. Stat. (2015).


text:
    Jadarion Devonte JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1047
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 27, 2018
    James S. Purdy, Public Defender, and David M. Dixon, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

As the State properly concedes, the record does not support the conclusion that the trial judge made an independent determination of competency before accepting Appellant's plea entered after his competency was ostensibly restored. Accordingly, we reverse and remand for further proceedings. Bynum v. State , 43 Fla. L. Weekly D1063 (Fla. 5th DCA May 11, 2018) ; Rumph v. State , 217 So.3d 1092, 1094 (Fla. 5th DCA 2017).

REVERSED AND REMANDED.

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


author: BLACK, Judge.

text:
    Mallory MCCANN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-812
    District Court of Appeal of Florida, Second District.
    Opinion filed July 27, 2018
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Mallory McCann challenges her fifteen-year sentence for armed robbery. We affirm the sentence without comment. However, we agree with McCann's contention that the trial court erred in imposing a $65 assessment pursuant to section 939.185(1)(a), Florida Statutes (2015), because the order assessing costs and fees fails to indicate the applicable county ordinance. See Swift v. State, 53 So.3d 394, 395 (Fla. 2d DCA 2011) (citing Ayoub v. State, 901 So.2d 311, 315 (Fla. 2d DCA 2005) ); Carter v. State, 173 So.3d 1048, 1051 (Fla. 1st DCA 2015). We affirm the assessment but remand for the trial court to enter an amended order assessing costs and fees reflecting the applicable county ordinance. See Swift, 53 So.3d at 395.

Affirmed; remanded with directions.

ATKINSON, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.

      McCann preserved this issue by raising it in a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).


text:
    Waymon BRAZILE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1463
    District Court of Appeal of Florida, First District.
    July 27, 2018
    Waymon Brazile, 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.

Bilbrey, Winokur, and Jay, JJ., concur.


text:
    Al TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1503
    District Court of Appeal of Florida, First District.
    July 27, 2018
    Al Taylor, 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.

Bilbrey, Winokur, and Jay, JJ., concur.


text:
    Desmond BALLARD and Niles B. Whitten, Appellants, v. BANK OF AMERICA, N.A., Appellee.
    Case No. 2D17-1425
    District Court of Appeal of Florida, Second District.
    Opinion filed August 1, 2018
    Niles B. Whitten, Gainesville, for Appellants.
    Jacqueline Costoya of Kelley Kronenberg, Fort Lauderdale, for Appellee.
   PER CURIAM.

Desmond Ballard seeks review of orders that effectuated several rulings concerning discovery disputes, sanctions, and a judicial default in the course of a civil proceeding. With respect to the circuit court's rulings on the contested discovery issues and judicial default, these are nonappealable, nonfinal orders, and so we cannot exercise our appellate jurisdiction to consider them. See Fla. R. App. P. 9.130 ; Hitt v. Homes & Land Brokers, Inc., 993 So.2d 1162, 1165 (Fla. 2d DCA 2008) ("[T]he list of appealable nonfinal orders in [ rule 9.130 ] is intended to be exhaustive."). We also conclude that the discovery and default rulings are not reviewable through certiorari. See Capital One, N.A. v. Forbes, 34 So.3d 209, 212 (Fla. 2d DCA 2010) ; FirstParadee, Ltd. v. Jones, 828 So.2d 483, 485 (Fla. 2d DCA 2002). Accordingly, we dismiss the appeal as it pertains to those rulings. With respect to the portion of the order that imposes sanctions in the total amount of $11,728.67 to be paid within thirty days from the entry of the circuit court's order, we do have jurisdiction to review that ruling and affirm it without comment. See Burt v. SP Healthcare Holdings, LLC, 163 So.3d 1274, 1276-77 (Fla. 2d DCA 2015) ; Griffith v. Ramzey's A Plus, Inc., 186 So.3d 629, 630 (Fla. 5th DCA 2016) ; J.P. Morgan Chase Bank v. Combee, 883 So.2d 330, 331 (Fla. 1st DCA 2004).

Affirmed in part; dismissed in part.

KHOUZAM, LUCAS, and ATKINSON, JJ., Concur.


text:
    Bernadette G. WOLFF, Petitioner, v. Charles L. WOLFF, Respondent.
    No. 1D17-5135
    District Court of Appeal of Florida, First District.
    July 31, 2018
    Crystal C. Spencer, Spencer Law, P.A., Pensacola, for Petitioner.
    No appearance for Respondent.
   Per Curiam.

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

Wetherell, Ray, and Osterhaus, JJ., concur.


text:
    Michael Harry SARDER, Petitioner, v. Major Jeff CLOUTIER, Director, Alachua County Department of the Jail, Respondent.
    No. 1D18-2205
    District Court of Appeal of Florida, First District.
    August 1, 2018
    Stacy A. Scott, Public Defender, and Rachael J. O'Brien, Assistant Public Defender, Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed as moot.

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


text:
    Kenneth Wayne PICKENS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4942
    District Court of Appeal of Florida, First District.
    August 1, 2018
    Kenneth Wayne Pickens, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is dismissed as untimely.

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


author: Per Curiam. Bilbrey, J., concurring.

text:
    Britany LANE f/k/a Brittany Hoyt, Petitioner, v. Charles HOYT, Respondent.
    No. 1D18-2082
    District Court of Appeal of Florida, First District.
    August 1, 2018
    David A. Carroll, Pensacola, for Petitioner.
    Caryn Van Matre, Pensacola, for Respondent.
   Per Curiam.

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

Wetherell and M.K. Thomas, JJ., concur; Bilbrey, J., concurs with opinion.

Bilbrey, J., concurring.

The motion to disqualify the trial judge raised sufficient grounds for disqualification but was untimely. See Fla. R. Jud. Admin. 2.330(d)(1) & (e). I therefore concur in the denial of the petition for writ of prohibition. Of course, the trial judge retains "authority to enter an order of disqualification on the judge's own initiative." Fla. R. Jud. Admin. 2.330(i).


text:
    Alexandra A. CANCEL, Petitioner, v. Roberto MONTANEZ, Respondent.
    Case No. 5D18-2355
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 1, 2018
    Richard L. Wilson, Orlando, for Petitioner.
    H. Kyle Fletcher, of Fletcher Law Firm, Oviedo, for Respondent.
   PER CURIAM.

Alexandra A. Cancel petitions this Court for a writ of prohibition to review the denial of her motion to disqualify the Honorable Luis F. Calderon from presiding over her child relocation case against Roberto Montanez. We grant the petition.

We review trial court orders denying motions to disqualify trial judges by prohibition. Isan v. Isan, 209 So.3d 40, 41 (Fla. 5th DCA 2016). Motions to disqualify are governed procedurally by Florida Rule of Judicial Administration 2.330. See Wall v. State, 238 So.3d 127, 142 (Fla. 2018) ; Krawczuk v. State, 92 So.3d 195, 200 (Fla. 2012). Specifically, the motion to disqualify "shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling." Fla. R. Jud. Admin. 2.330(e). Upon receiving the motion, the judge shall determine only the legal sufficiency of the motion without passing on the truth of the facts alleged. Fla. R. Jud. Admin. 2.330(f). The test for determining the legal sufficiency of a motion for disqualification is whether "the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial." Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981). Here, the facts presented in the affidavit, which we must presume to be true, are sufficient to prompt Cancel to fear that she cannot get a fair hearing.

Accordingly, we grant the petition for writ of prohibition, quash the order denying the motion for recusal, and remand this case for assignment to a different trial judge.

PETITION GRANTED; ORDER QUASHED.

PALMER, ORFINGER and TORPY, JJ., concur.


text:
    BLADE OF ORLANDO, LLC, Patrick Amore and Stefano Tedeschi, Appellants, v. Amelia DELSANTER and Anthony Carrino, Appellees.
    Case No. 5D17-514
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 3, 2018
    Frederic E. Waczewski, of Law Office of Frederic E. Waczewski, PA, Orlando, and James P. Waczewski, of Waczewski Law Group, Tallahassee, for Appellants.
    Cesery L. Bullard, of Bullard Law, Orlando, for Appellees.
   PER CURIAM.

Blade of Orlando, LLC, Patrick Amore, and Stefano Tedeschi ("Appellants") appeal an order affirming as final a 2010 judgment entered in favor of Amelia Delsanter and Anthony Carrino ("Appellees"). Appellants contend that the trial court erred in its determination that the judgment was a final order disposing of all issues in the case. Appellees raise two arguments upon appeal, which we affirm without further discussion.

Appellants argue that the trial court erred in holding that the judgment was a final order. See Landing Grp. of Tampa, Inc. v. Kifner, 951 So.2d 1014, 1017 (Fla. 5th DCA 2007) ("The traditional test for 'determining the finality of an order, judgment, or decree is whether the order in question marks the end of the judicial labor in the case, and nothing further remains to be done by the court to fully effectuate a termination of the cause ....' "). We agree that the judgment did not address the first count of Appellants' complaint and that several of their affirmative defenses to Appellees' counterclaim were not disproved by the record. "A court cannot grant summary judgment where a defendant asserts legally sufficient affirmative defenses that have not been rebutted." Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So.2d 730, 733 (Fla. 1991).

We further note that, following both parties' motions in a 2010 appeal of the judgment, this court relinquished jurisdiction for the trial court to amend the judgment to make it a final order. The trial court never did so. The parties then stipulated that the judgment was not final, and this court dismissed the appeal for lack of jurisdiction.

We therefore reverse the trial court's order finding the judgment to be final and remand for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, PALMER and TORPY, JJ., concur.


text:
    DYCK-O'NEAL, INC., Appellant, v. Oerti STERMILLI, Appellee.
    No. 1D17-3396
    District Court of Appeal of Florida, First District.
    August 3, 2018
    Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., David M. Snyder of David M. Snyder, P.A., and Joshua D. Moore of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Michael S. Drews of Drews Law Firm, Jacksonville, for Appellee.
   Per Curiam.

In Higgins v. Dyck-O'Neal, Inc. , this court held that "a party is not entitled to pursue an action at law on a promissory note where that party includes a prayer for a deficiency judgment in its foreclosure complaint and the trial court reserves jurisdiction to enter a deficiency judgment." 201 So. 3d 157, 166 (Fla. 1st DCA 2016). Based on that case, which was binding at the time, the trial court dismissed with prejudice appellant's independent action for a deficiency judgment.

On appeal, appellant argued that Higgins was wrongly decided. And while the appeal was pending, the Florida Supreme Court agreed. It disapproved Higgins and held that "when a foreclosure court reserves jurisdiction to adjudicate a deficiency judgment claim but has not adjudicated the claim, section 702.06, Florida Statutes (2014), permits the lender or its assignee to bring its deficiency claim in a separate action at law." Dyck-O'Neal v. Lanham , SC17-975, --- So.3d ----, 43 Fla. L. Weekly S278c, 2018 WL 3301567 (Fla. July 6, 2018). Accordingly, we reverse and remand for further proceedings on appellant's deficiency claim.

REVERSED and REMANDED .

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


text:
    Daniel Albert STANDARD, Appellant, v. STATE, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM and Tara Lynn Curtis, Appellees.
    No. 1D17-2231
    District Court of Appeal of Florida, First District.
    August 3, 2018
    Daniel Albert Standard, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Toni C. Bernstein, Senior Assistant Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Appellees.
   Per Curiam.

Appellant challenges on appeal the Department of Revenue's administrative paternity and support order, entered in proceedings under sections 409.256 and 409.2563, Florida Statutes. Appellant seeks judicial review of the administrative order pursuant to sections 409.256(12) and 409.2563(10)(a).

Because Appellant failed to participate in the administrative proceedings by returning the forms for financial information supplied him by the Department and failed to request an administrative hearing after notice of his right to do so and the consequences for failing to do so, Appellant has not preserved any issue for this Court's appellate review. By waiving his right to a hearing, Appellant waived his ability to challenge the sufficiency of the evidence to support the Department's determination of his child support obligations. See § 409.2563(7)(b), Fla. Stat.

Even if Appellant had preserved any issues for appellate review, the grounds he asserts for setting aside the administrative order would have no merit. We are required to affirm final agency action unless Appellant shows a ground for setting such action aside, as provided by section 120.68, Florida Statutes. § 120.68(8), Fla. Stat. Appellant fails to establish any of the statutory grounds. His assertion of an agreement with the child's mother that no retroactive child support is owed is legally irrelevant because parents may not contract away or waive the rights of their child for support. Lancaster v. Lancaster , 228 So.3d 1197, 1198 (Fla. 1st DCA 2017). Accordingly, the administrative paternity and support order is

AFFIRMED .

Bilbrey, Winokur, and Jay, JJ., concur.


text:
    K.W., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-3662
    District Court of Appeal of Florida, First District.
    August 7, 2018
    Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed as moot.

Wetherell, Ray, and Osterhaus, JJ., concur.


text:
    Tlacey Al RANDALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3735
    District Court of Appeal of Florida, First District.
    August 3, 2018
    Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Tlacey Randall was found guilty by a jury of possession of marijuana and possession of cocaine (as a lesser-included offense of trafficking cocaine), and acquitted of possession of drug paraphernalia. The trial court sentenced Randall to the maximum sentence of five years in prison for possessing cocaine. Under the facts presented, we agree with Randall that the trial court sentenced him improperly, by relying partly on the premise that he was trafficking cocaine at the time of the offense, a charge for which he had been acquitted. See Drinkard v. State , 177 So.3d 993 (Fla. 1st DCA 2015). We also agree that the trial court improperly relied on certain uncharged criminal activity in imposing sentence. See Mosley v. State , 198 So.3d 58 (Fla. 2d DCA 2015). Accordingly, we REVERSE Randall's sentence and REMAND for sentencing before a different judge.

Wolf, Winokur, and Jay, JJ., concur.


text:
    Rohbanni WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4628
    District Court of Appeal of Florida, First District.
    August 7, 2018
    Andy Thomas, Public Defender, Joanna A. Mauer, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Romero v. State , 105 So.3d 550, 553-54 (Fla. 1st DCA 2012) (holding that Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), does not apply to offenders eighteen years of age or older).

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


author: PER CURIAM

text:
    IN RE: Debra L. CASSIBRY
    NO. 2017-B-2045
    Supreme Court of Louisiana.
    May 1, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Debra L. Cassibry, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1985. In March 2011, respondent pleaded guilty to driving while intoxicated ("DWI"). She subsequently failed to cooperate with the ODC in its related investigation. Accordingly, we placed her on interim suspension for threat of harm to the public. In re: Cassibry , 12-0931 (La. 5/2/12), 88 So.3d 442. In November 2013, we suspended respondent from the practice of law for one year and one day, retroactive to the date of her interim suspension, for the above misconduct. In re: Cassibry , 13-1923 (La. 11/1/13), 131 So.3d 22 (" Cassibry I "). Respondent has not yet applied for reinstatement to the practice of law from her suspension in Cassibry I and, thus, remains suspended from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent under disciplinary board docket numbers 14-DB-040 and 16-DB-071. Respondent failed to answer either set of formal charges, and the factual allegations contained therein were deemed admitted. The matters were considered by separate hearing committees before being consolidated by order of the disciplinary board. The board then filed in this court a single recommendation of discipline encompassing both sets of formal charges.

14-DB-040

The Mississippi Arrest Matter

In January 2012, while driving in Mississippi, respondent struck another vehicle and attempted to leave the scene of the accident. The other driver physically prevented respondent from leaving, and when the investigating police officer arrived, he observed respondent swaying in all directions while trying to stand still and slurring her speech. The officer also described her eyes as "pin point." Respondent advised the officer that she had taken a Percocet earlier that morning, and a blood sample was obtained pursuant to a warrant.

Respondent was then arrested for driving under the influence, driving under suspension, and driving without insurance. In May 2013, respondent pleaded no contest to the charges. She was put on probation with the condition that she pay certain fines and costs. She failed to pay the fines and costs, and a warrant for her arrest was issued on July 9, 2013. Respondent is currently a fugitive from justice in Mississippi.

The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 3.3 (candor toward the tribunal), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

The Louisiana Arrest Matter

In January 2013, respondent was driving on I-10 West in Slidell when she was pulled over by the police on suspicion of impairment. The police officer suspected respondent had been using drugs and requested that she provide a urine sample for analysis, which she refused.

Respondent was arrested on charges of DWI 2nd offense, improper lane usage, driving under suspension, and no seat belt. Her arraignment was scheduled for March 6, 2013, but she failed to appear. She also failed to appear for the bond forfeiture hearing on May 8, 2013; as a result, her bond was forfeited.

On August 22, 2013, a bail bondsman delivered respondent to the custody of the Slidell Police Department. She was subsequently arraigned on August 27, 2013. She pleaded not guilty to all charges, and her bond was reinstated.

Respondent's trial was set for April 2, 2014, but she again failed to appear. Consequently, she was charged with the additional offense of failure to appear 2nd offense, and a warrant was issued for her arrest. The warrant remains outstanding, and respondent is evading prosecution in this matter.

The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 3.3, 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

The Forgery Matter

In January 2014, respondent contacted her attorney, Stephen Richard, and asked him to file a motion requesting the Slidell City Court to refund monies she recently paid towards her fees and court costs related to her first DWI case, which was the subject of Cassibry I . When Mr. Richard refused, respondent prepared the motion herself and forged Mr. Richard's signature on it. Respondent subsequently failed to cooperate with the ODC's investigation of this matter.

The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 3.3, 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a), 8.4(b), and 8.4(c).

As previously noted, respondent failed to answer the formal charges in 14-DB-040. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.

Hearing Committee Report

After considering the ODC's deemed admitted submission, the hearing committee accepted the deemed admitted factual allegations as true. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee then determined that the baseline sanction is disbarment, based on the ABA's Standards for Imposing Lawyer Sanctions . In aggravation, the committee found a prior disciplinary record, a dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and refusal to acknowledge the wrongful nature of the conduct. The committee did not note the presence of any mitigating factors.

Under these circumstances, the committee recommended respondent be disbarred. The committee further recommended that respondent be required to successfully complete a substance abuse counseling program as a condition of readmission.

Neither respondent nor the ODC filed an objection to the hearing committee's report.

16-DB-071

The Jefferson Parish Criminal Matter

In September 2014, respondent was staying at the Extended Stay America Hotel in Metairie, Louisiana. Several times during her stay, the hotel's staff requested that respondent refrain from smoking in her non-smoking room. When she failed to stop smoking in the room, the hotel's staff asked her to leave. She failed to leave, and she was arrested on charges of entry/remaining after forbidden. The charges were later amended to a loud noise charge, and on September 17, 2015, respondent pleaded guilty to the amended charges.

The ODC sent notice of the related disciplinary complaint to respondent at her primary bar registration address via certified mail, but the notice was returned undelivered. Thereafter, the ODC made several attempts to personally serve respondent with notice of the complaint at all of her known addresses.

The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.1(c), 8.4(a), and 8.4(b).

The Outstanding Warrants Arrest Matter

In November 2014, respondent was arrested by the Slidell Police Department on two outstanding warrants. While incarcerated, respondent became combative with the corrections officers and suffered injuries. Respondent requested to be taken to the hospital, and after arriving at the hospital, she tried several times to leave her bed, ignoring the corrections officer's commands to stay in the bed. When the corrections officer attempted to handcuff respondent to the bed, she attempted to bite his forearm. Respondent was charged with simple assault and pleaded guilty to the charge on December 8, 2015.

The ODC sent notice of the related disciplinary complaint to respondent at her primary bar registration address via certified mail, but the notice was returned undelivered. Thereafter, the ODC made several attempts to personally serve respondent with notice of the complaint at all of her known addresses.

The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.1(c), 8.4(a), and 8.4(b).

As previously noted, respondent failed to answer the formal charges in 16-DB-071. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.

Hearing Committee Report

After considering the ODC's deemed admitted submission, the hearing committee acknowledged that the factual allegations of the formal charges were deemed admitted and made the following factual findings:

This committee finds that the Respondent was in fact arrested on no less than two occasions. The Respondent's arrests and conduct reflects [sic] adversely on her fitness to practice law. She has failed to cooperate with the ODC in any manner whatsoever, and has committed a criminal act that reflects adversely on her honesty, trustworthiness or fitness as a lawyer.

Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee then determined that respondent knowingly and intentionally violated duties owed to the legal profession, which caused actual harm to the profession. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is disbarment.

In aggravation, the committee noted respondent's disregard for her obligation to participate in these disciplinary proceedings. The committee also noted that respondent's non-participation prevented her from producing evidence of any mitigating factors.

Under these circumstances, the committee recommended respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee's report.

14-DB-040 and 16-DB-071

Disciplinary Board Recommendation

After reviewing these consolidated matters, the disciplinary board determined that the factual allegations in the formal charges have been deemed admitted and proven. The board further determined that the hearing committees' factual findings are supported by the deemed admitted factual allegations and/or by the evidence submitted in support of those allegations. Based on these facts, the board determined that both committees correctly applied the Rules of Professional Conduct, except that with respect to the Mississippi arrest matter and the Louisiana arrest matter in 14-DB-040, the board determined that respondent did not violate Rule 3.3 because neither the factual allegations nor the evidence submitted by the ODC support such a violation.

The board then determined that respondent intentionally violated duties owed to the public and the legal profession, with her conduct causing actual and potential harm. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined that the baseline sanction is disbarment.

In aggravation, the board found a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, substantial experience in the practice of law (admitted 1985), and illegal conduct. The board found that the record does not support any mitigating factors.

The board then considered respondent's conduct in light of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E. Specifically, the board noted that respondent's conduct falls within the scope of Guideline 9 (instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime). Nevertheless, the board declined to recommend permanent disbarment because, although the record contains no evidence of such, it appears that respondent's conduct was caused by significant personal issues (possible alcohol and drug abuse and possible mental or emotional problems).

Under these circumstances, the board recommended that respondent be disbarred. The board also indicated its hope that respondent will seek the services of the Judges and Lawyers Assistance Program. One board member dissented and would recommend permanent disbarment.

The ODC filed an objection to the disciplinary board's recommendation. Pursuant to Supreme Court Rule XIX, § 11(G)(1)(b), the case was scheduled on our docket; however, respondent failed to file a brief and therefore waived her right to oral argument. Thereafter, the ODC filed a motion waiving its right to oral argument. We granted the ODC's motion and now consider the case based upon the record and the brief filed by the ODC.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan , 01-3058 (La. 1/10/03), 838 So.2d 715.

The evidence in the record of this deemed admitted matter supports a finding that respondent was arrested for DWI in Louisiana and then failed to appear for the related trial, pleaded no contest to driving under the influence in Mississippi and then failed to pay the associated fines and court costs, forged her criminal attorney's signature on a motion and filed the motion with the court, pleaded guilty to a loud noise charge after being arrested for failing to leave a hotel upon multiple requests to do so by the hotel's staff, pleaded guilty to simple assault after attempting to bite a corrections officer, and failed to cooperate with the ODC in its investigations. Based on these facts, respondent violated the Rules of Professional Conduct as found by the disciplinary board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

The record also supports a finding that respondent knowingly and intentionally violated duties owed to the public, the legal system, and the legal profession, causing actual and potential harm. The baseline sanction for this type of misconduct is disbarment.

We agree with the aggravating factors found by the board. However, regarding mitigating factors, we disagree that none are present. At the very least, respondent's multiple DWI offenses suggest the possibility of a substance abuse problem, and the police reports included in the record of this matter reflect conduct which suggests respondent may be suffering from mental health issues (e.g., banging her head against the cage of the police car and attempting to bite a corrections officer who was trying to handcuff her). Since respondent allowed the formal charges to be deemed admitted, we have no way of knowing whether she has since sought treatment for these problems. Under these circumstances, we are reluctant to permanently prohibit respondent from seeking readmission to the practice of law.

Accordingly, we will accept the board's recommendation and disbar respondent. Should respondent decide to seek readmission in the future, she will be required to show by clear and convincing evidence that she has complied with each subsection of Supreme Court Rule XIX, § 24 before she will be allowed to return to the practice of law. In any event, and regardless of respondent's future intention to resume the practice of law, we strongly encourage her to avail herself of the resources of the Judges and Lawyers Assistance Program so that she can enjoy a healthy and productive life.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record and the brief filed by the ODC, it is ordered that Debra L. Cassibry, Louisiana Bar Roll number 17029, be and she hereby is disbarred. Her name shall be stricken from the roll of attorneys and her license to practice law in the State of Louisiana shall be revoked. 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.

CRICHTON, J., dissents and assigns reasons:

I disagree with my colleagues in this matter, and would impose permanent disbarment. The Court's opinion thoroughly establishes that respondent is no stranger to the disciplinary process, as she is currently suspended from the practice of law in Louisiana for driving while intoxicated in 2011. In re: Cassibry , 13-1923 (La. 11/1/13), 131 So.3d 22. Since her arrest in 2011, not only has respondent been apprehended again for driving under the influence, remaining after forbidden at a hotel, and assaulting a police officer, she remains a fugitive from the law in both Louisiana and Mississippi as related to many of those charges. Moreover, despite being suspended, she engaged in the unauthorized practice of law by forging an attorney's signature on a motion in a legal proceeding (in which she sought to relieve herself of costs associated to her criminal charges). Respondent has also never addressed any of the serious formal charges against her and has failed to appear on each occasion offered to her. In my view, respondent's blatant disregard for the law, her abhorrent disrespect for the lawyer disciplinary process, and her consistent display of willful disobedience places her directly in the guidelines for permanent disbarment found in Supreme Court Rule XIX, Appendix E. This Court reserves such severe punishment for "instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime." I find this case fits squarely therein.

While I am ever sensitive to substance abuse and mental health issues in the attorney disciplinary process, because of respondent's failure to participate in her own defense, the record here is devoid of even a scintilla of mitigation evidence. By reading potential mitigating factors into the record, the Court is whittling away at the significance of those respondents who come before us with true substance abuse and mental health issues and who display a sincere desire (and corresponding efforts) for rehabilitation. For this reason, I would permanently disbar respondent and forever disallow her from seeking readmission to the practice of law in Louisiana.


text:
    BOARD OF ETHICS IN the MATTER OF Jordan MONSOUR and Walter Monsour
    No. 2017-C-1274
    Supreme Court of Louisiana.
    May 1, 2018
   PER CURIAM

In this case, we are called upon to decide whether certain provisions of the Louisiana Code of Civil Procedure apply to a motion for summary judgment filed in administrative proceedings before the Ethics Adjudicatory Board. For the reasons that follow, we conclude the evidence produced in connection with motions for summary judgment in these administrative proceedings must conform to the same requirements applicable to civil proceedings.

FACTS AND PROCEDURAL HISTORY

The Board of Ethics ("Board") filed formal charges against respondents, Walter Monsour and Jordan Monsour. Respondents filed separate motions for summary judgment with the Ethics Adjudicatory Board ("EAB"), seeking dismissal of the charges and attaching exhibits in support of their motions for summary judgment. The Board opposed the motions and attached exhibits in support of its opposition.

Respondents filed a reply memorandum. In support, they argued the exhibits attached to the Board's opposition did not constitute competent evidence because they were unsworn, unverified, and not self-proving.

The EAB denied respondents' objections to the Board's exhibits and admitted them into evidence. At the end of the hearing, the EAB took the motion for summary judgment under advisement.

Respondents sought supervisory review from the ruling admitting the exhibits into evidence. The court of appeal found the EAB erred in admitting the Board's exhibits, because these exhibits did not meet the requirements of La. Code Civ. P. arts. 966 and 967. Accordingly, the court reversed the EAB's ruling and remanded for further proceedings. Two judges dissented in part, and would have allowed the Board, on remand, to submit competent evidence prior to a ruling on the motion for summary judgment. Board of Ethics in the Matter of Jordan Mansour and Walter Mansour , 16-1159 (La. App. 1st Cir. 6/21/17), 233 So.3d 625.

Upon application of the Board, we granted certiorari to consider the correctness of this ruling. Board of Ethics in the Matter of Jordan Mansour and Walter Mansour , 12-1274 (La. 12/5/17), 231 So.3d 623.

DISCUSSION

Pursuant to La. R.S. 42:1143, all proceedings before the EAB "shall be subject to and in accordance with the Administrative Procedure Act." The Board argues we should apply the provisions of La. R.S. 49:956(1) of the Administrative Procedures Act, which provides:

In adjudication proceedings:
(1) Agencies may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent men in the conduct of their affairs. They shall give effect to the rules of privilege recognized by law. Agencies may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form. [emphasis added].

The Board asserts that because this statute is phrased in permissive terms, the EAB may exclude incompetent evidence but is not required to do so. Thus, it contends the decision to consider evidence which would otherwise be incompetent under the Code of Civil Procedure rests in the discretion of the EAB.

We acknowledge hearings in administrative proceedings are held to a relaxed evidentiary standard. See , e.g., Louisiana Household Goods Carriers v. Louisiana Public Service Commission , 99-3184 (La. 6/30/00), 762 So.2d 1081 (holding the Louisiana Public Service Commission had broad discretion to admit evidence that would not be admissible in a judicial proceeding, provided the evidence is probative and relevant). Nonetheless, we find the provisions of La. R.S. 49:956(1) are inapplicable to the instant dispute, as that statute is expressly limited to "adjudication proceedings." A motion for summary judgment is distinct from a formal adjudication hearing. See La. Admin. Code 52:1102.

The Louisiana Code of Civil Procedure governs civil proceedings in administrative agency proceedings where agency laws are silent. Ellis v. Louisiana Board of Ethics , 14-0112 (La. App. 1 Cir. 12/30/14), 168 So.3d 714, 723 ; Liberty Mut. Ins. Co. v. Louisiana Ins. Rating Comm'n , 96-0793 (La. App. 1st Cir. 2/14/97), 696 So.2d 1021, 1027, writs denied , 97-2069, 972062 (La.12/19/97), 706 So.2d 45, 452. Because the Administrative Procedure Act contains no specific requirements for evidence at the summary judgment stage, the provisions of La. Code Civ. P. arts. 966 and 967 are applicable.

Based on our review, we find the evidence produced by the Board in opposition to respondents' motions for summary judgment does not satisfy the requirements of La. Code Civ. P. arts. 966 and 967. The court of appeal correctly held this evidence may not be considered by EAB when deciding the motion for summary judgment.

Accordingly, we affirm the judgment of the court of appeal and remand the case to the EAB for further proceedings.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed. The case is remanded to the Ethics Adjudicatory Board for further proceedings consistent with this opinion.

      La. Admin. Code 52:1102 provides:
      A. Motions and exceptions may be made before, during, or after a public hearing.
      B. Motions and exceptions made before or after the public hearing shall be filed with the appropriate panel of the Ethics Adjudicatory Board. Contradictory motions and exceptions shall be accompanied by a memorandum which shall set forth a concise statement of the grounds upon which the relief sought is based and the legal authority therefore.
      C. A motion for summary judgment may be filed by either the respondent or the trial attorney(s).

      We decline to adopt the position of the dissenting judges in the court of appeal who suggested it would be appropriate to grant the Board an additional opportunity to submit competent evidence in opposition to the motion for summary judgment. However, nothing in this opinion should be construed as preventing the EAB from exercising its discretion to grant the parties an opportunity to supplement their submissions.