text:
    Randall GASKINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1089
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    James S. Purdy, Public Defender, and Darnelle Paige Lawshe, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Randall Gaskins was convicted of burglary of a dwelling with an assault or battery and grand theft of $ 100 or more from a dwelling or curtilage. On appeal, Gaskins challenges the judgment and sentence entered on the grand theft conviction. We affirm.

The sole issue on appeal is whether Gaskins' trial counsel was ineffective for failing to move for a judgment of acquittal on the basis that the State failed to present sufficient evidence establishing the stolen property's value. At trial, the victim testified only as to what he had paid for the stolen items.

Ineffective assistance of counsel claims may be raised on direct appeal "when ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable." Larry v. State , 61 So.3d 1205, 1207 (Fla. 5th DCA 2011) (quoting Corzo v. State , 806 So.2d 642, 645 (Fla. 2d DCA 2002) ). Gaskins' claim does not meet the second element-indisputable prejudice. It is not clear from the face of the record that had trial counsel moved for a judgment of acquittal, the State would have been incapable of reopening its case to prove the value of the stolen property at the time of the offense. Thus, we decline to address Gaskins' ineffective assistance of counsel claim on direct appeal and affirm without prejudice for Gaskins to raise this claim in a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See Beazley v. State , 148 So.3d 552, 554-55 (Fla. 1st DCA 2014) (noting that appellant may raise issue of ineffective assistance of counsel in motion for postconviction relief even though appellate court was unwilling to decide issue on direct appeal).

AFFIRMED, without prejudice to Gaskins asserting his ineffective assistance of counsel claim in a timely filed motion for postconviction relief pursuant to rule 3.850.

COHEN, LAMBERT, and SASSO, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Paul William PRICE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-0529
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    James S. Purdy, Public Defender, and Raymond M. Warren, Assistant Public Defender, Bunnell, for Petitioner.
    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 January 22, 2019 order denying motion to correct sentence, rendered in Case No. 2016-002277-XXDB, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAMBERT, HARRIS and GROSSHANS, JJ., concur.


text:
    Willie Lee BYRD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2755
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
    PER CURIUM.
    Appellant appeals his judgment and sentence for armed burglary of a dwelling (Count 1), robbery with a deadly weapon (Count 2), and petit theft of property more than $ 100 but less than $ 300 (Count 4). We affirm the judgment and sentence but remand for the correction of several scrivener's errors. For Count 1, the trial court is instructed to amend the judgment and sentence to reflect that Appellant pled guilty to a second-degree felony. For Count 2, the trial court is instructed to enter an order of probation that more clearly reflects what portion of the prison sentence is to be withheld or stayed during the five-year probationary period; however, the probationary period cannot be served concurrently with the incarceration portion of the sentence imposed under Count 1. Finally, for Count 4, the court must amend the sentence to read 364 days instead of 365 days so as to conform to the orally pronounced sentence.
    AFFIRMED; REMANDED FOR CORRECTION OF SCRIVENER'S ERRORS.
    COHEN, EDWARDS and EISNAUGLE, JJ., concur.

      The amended judgment dated August 13, 2018, was not rendered until August 28, 2018, hours after Appellant's counsel filed a notice of appeal which divested the trial court of jurisdiction to amend the original judgment.

   --------


text:
    Aaron W. DUPREE and Amber Dupree, as Husband and Wife, Appellants, v. Dana M. SPEER, Individually and Jaymor Management Group, LLC., a Limited Liability Company, Appellees.
    Case No. 5D17-3545
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 2, 2019
    Margaret E. Kozan, of Margaret E. Kozan, P.A., Winter Park, and Michael J. Damaso, II, of Wooten Kimbrough, P.A., Orlando, for Appellants.
    Samuel B. Spinner and Hinda Klein, of Conroy Simberg, Hollywood, for Appellee, Jaymor Management Group, LLC, a Limited Liability Company.
    No Appearance for Other Appellee.
   PER CURIAM.

AFFIRMED. See Hernandez v. Tallahassee Med. Ctr., Inc., 896 So.2d 839, 843 (Fla. 1st DCA 2005) ("[T]he law is well established that an employee driving to and from work is not within the scope of employment so as to impose liability on the employer." (citing Foremost Dairies, Inc. of the South v. Godwin, 158 Fla. 245, 26 So.2d 773 (Fla. 1946) ; Freeman v. Manpower, Inc., 453 So.2d 208, 209 (Fla. 1st DCA 1984) ) ).

EVANDER, C.J. , GROSSHANS and SASSO, JJ., concur.


author: PER CURIAM

text:
    STATE of Louisiana v. Henry E. ARMSTRONG
    No. 2019-KK-70
    Supreme Court of Louisiana.
    March 25, 2019
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT FOR THE PARISH OF MOREHOUSE
   PER CURIAM

The police officers had probable cause to seek a warrant for the defendant's residence. Their efforts to secure the premises, given that others were in and about the house, were justified. The evidence in plain view is therefore admissible. As such, the ruling of the trial court granting the motion to suppress is reversed. The motion to suppress is denied and this matter is remanded to the trial court for further proceedings.

REVERSED and REMANDED; MOTION TO SUPPRESS DENIED.

JOHNSON, C.J., would deny.

GENOVESE, J., would deny.


author: PER CURIAM:

text:
    STATE of Louisiana v. Alvin TUCKSON
    No. 2018-KH-0797
    Supreme Court of Louisiana.
    March 25, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Applicant does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. The application was not timely filed in the district court, and applicant fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Applicant 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Luther ROBERTSON
    No. 2018-KH-0670
    Supreme Court of Louisiana.
    March 25, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
   PER CURIAM:

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

Applicant has now fully litigated several applications 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 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Jeffery GUILLORY
    No. 2018-KH-0668
    Supreme Court of Louisiana.
    March 25, 2019
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Applicant fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Applicant 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

GENOVESE, J., recused.


text:
    Reuben ELLIS and Lasunda Ellis V. Quincy T. QUIETT, Bella Noche, Good Life Productions, XYZ Insurance Co., Plaza Holdings, and ABC Security Co.
    No. 2019-C-0065
    Supreme Court of Louisiana.
    March 25, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

WRIT GRANTED. In accordance with La.Code Civ.P. art. 966(D), as mover, Plaza Holdings, LLC ("Plaza Holdings") bore the initial burden of proof in its motion for summary judgment, and it introduced the lease in support of its assertion that it owed no duty to plaintiff, Reuben Ellis. Because Plaza Holdings will not bear the burden of proof at trial that it had a duty to protect Ellis from the criminal acts of third persons, Plaza Holdings' burden was "to point out to the court the absence of factual support for one or more elements essential" to the plaintiff's claims.

We find that Plaza Holdings met its burden of pointing out the absence of a duty, legal or contractually assumed, owed to plaintiff. We disagree with the court of appeal that the provisions of the lease agreement "conflict"; instead, we find that the following clause supersedes and overrides other provisions of the lease: "Notwithstanding anything to the contrary, contained in this section or elsewhere in this Lease, even though a portion of the Common Facilities Costs will be used to provide security services with respect to the Common Areas, Lessor does not assume any responsibility for security." Based upon the clear and unambiguous language of the lease agreement, Plaza Holdings did not contractually assume a duty to provide security.

Therefore, pursuant to La.Code Civ.P. art. 966, the burden then shifted to Reuben Ellis "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." Id. Plaintiff, who introduced no evidence in opposition to the motion for summary judgment, failed to meet this burden.

For the foregoing reasons, we grant this writ, reinstate the district court's judgment granting summary judgment in favor of Plaza Holdings, LLC, and dismiss the claims of Reuben Ellis with prejudice.


text:
    STATE of Louisiana v. Ellis REED
    No. 2018-KH-1825
    Supreme Court of Louisiana.
    March 25, 2019
    ON SUPERVISORY WRITS TO THE EIGHTEENTH JUDICIAL, DISTRICT COURT, PARISH OF POINT COUPEE
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Stephen C. LOEBER
    No. 2018-KH-0615
    Supreme Court of Louisiana.
    March 25, 2019
    ON SUPERVISORY WRITS TO THE EIGHTEENTH JUDICIAL DISTRICT COURT, PARISH OF WEST BATON ROUGE
   PER CURIAM:

Denied. Applicant does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. The application was not timely filed in the district court, and applicant fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Applicant 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 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: Hughes, J., concurring.

text:
    STATE of Louisiana v. Rudolph WADE
    No. 2018-KH-563
    Supreme Court of Louisiana.
    March 25, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS
    Writ denied.
    HUGHES, J., additionally concurs and assigns reasons.
   Hughes, J., concurring.

The appropriate channel for defendant to obtain the records he seeks (regardless of their utility at this late date) would instead be according to public records law. Generally, custodians of public records must provide inmates with a cost estimate for production of documents to which the inmates are entitled under the Public Records Law, R.S. 44:31 ; R.S. 44:31.1 ; State ex rel. Leonard v. State , 96-1889 (La. 6/13/97), 695 So.2d 1325, and which the inmates want to buy. See, e.g. , Landis v. Moreau , 00-1157, p. 6 (La. 2/21/01), 779 So.2d 691, 695 ; State ex rel. Level v. State , 99-2266 (La. 12/17/99), 751 So.2d 869 ; Range v. Moreau , 96-1607 (La. 9/3/96), 678 So.2d 537. However, those seeking such documents must make a demand of the record's custodian before seeking judicial review. R.S. 44:35(A). Only after a fruitless demand of the custodian may they seek mandamus relief. Id. In addition, they may seek judicial review only in an independent action under the district court's civil jurisdiction. State ex rel. McKnight v. State , 98-2258 (La. App. 1 Cir. 12/03/98), 742 So.2d 894.


text:
    STATE of Louisiana v. Myron Lamar FRAZIER
    No. 2018-KH-0045
    Supreme Court of Louisiana.
    March 25, 2019
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

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

Applicant 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 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Edward JOHNSON
    No. 2018-KH-0020
    Supreme Court of Louisiana.
    March 25, 2019
    ON SUPERVISORY WRITS TO THE TWENTIETH JUDICIAL DISTRICT COURT, PARISH OF WEST FELICIANA
   PER CURIAM:

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

Applicant 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 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    IN RE: Victor Roy LORASO, III
    NO. 2019-B-0444
    Supreme Court of Louisiana.
    March 25, 2019
    ORDER
   Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel, and the representation by the Chief Disciplinary Counsel that respondent has agreed to the entry of an order of interim suspension,

IT IS ORDERED that Victor Roy Loraso, III, Louisiana Bar Roll number 31239, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. Troy KING
    No. 2019-KK-0175
    Supreme Court of Louisiana.
    March 25, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS
    Writ denied.
   GUIDRY, J., would grant.

CRICHTON, J., would grant and assigns reasons.

CRICHTON, J., would grant and assigns reasons:

For reasons assigned by Judge Dysart's dissent, I would grant the writ application of the State of Louisiana. Specifically, I agree with Judge Dysart's finding that the district court abused its discretion in ordering the disclosure of the un-redacted video from which the C.I.'s identity would be ascertainable. State v. King, 19-0018 (La. App. 4 Cir. 1/10/19) (unpublished). (Dysart, J., dissenting). In my view, such disclosure would violate La. C.E. art. 514(A) as the defendant has failed to prove that "interest of the government in preventing disclosure is substantially outweighed by exceptional circumstances such that the informer's testimony is essential to the preparation of the defense or to a fair determination on the issue of guilt or innocence." La. C.E. art. 514(C).


text:
    STATE of Louisiana v. Ozaki TRICE
    No. 2018-KH-0560
    Supreme Court of Louisiana.
    March 25, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

Applicant 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Tracy KENT
    No. 2018-KH-0477
    Supreme Court of Louisiana.
    March 25, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. The claims are repetitive. La.C.Cr.P. art. 930.4(A).

Applicant 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 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    WOOD MATERIALS, LLC and Wood Resources, LLC v. CITY OF HARAHAN
    NO. 2019-C-0018
    Supreme Court of Louisiana.
    March 25, 2019
    ON WRIT OF CERTIORARI, TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
   PER CURIAM

Granted. The City of Harahan is not an instrumentality of the Parish of Jefferson for purposes of the three-year prescriptive period in La. R.S. 9:5625(C). See generally Slowinski v. England Economic and Industrial Develop. Dist. , 02-0189 (La. 10/15/02), 828 So.2d 520 ; Polk v. Edwards , 626 So.2d 1128 (La. 1993). Rather, the City of Harahan is properly classified as a municipality, which is governed by the five-year prescriptive period set forth in La. R.S. 9:5625(A)(3). Applying this statute, the reconventional demand filed by the City of Harahan is timely.

Accordingly, the judgment of the court of appeal, which affirmed the district court's judgment granting the exception of prescription, is reversed. The exception of prescription is denied, and the case is remanded to the district court for further proceedings.

GUIDRY, J., recused

HUGHES, J., would deny the writ.

GENOVESE, J., would deny.

      Guidry, J. recused.


text:
    Martin BEROTTE, et al. v. BECHTEL OG & C CONSTRUCTION SERVICES, INC.
    NO. 2018-CC-1973
    Supreme Court of Louisiana.
    February 18, 2019
    ON SUPERVISORY WRITS TO THE THIRTY-EIGHTH JUDICIAL DISTRICT COURT FOR THE PARISH OF CAMERON
   PER CURIAM

Granted. Plaintiffs' allegations regarding the validity of the arbitration agreement are intertwined with its arguments relating to the nullity of the underlying agreement. Therefore, the issue is properly presented to the arbitrator, not the court. See Buckeye Check Cashing, Inc. v. Cardegna , 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) ; Cambas Electric, Inc. v. McDonnel Group, LLC , 16-1774 (La. 10/28/16), 208 So.3d 377. Accordingly, the judgment of the court of appeal is reversed and relators' exception of prematurity is granted.

Hughes, J., would deny the writ.


text:
    STATE of Louisiana v. Timothy Ray MILLER
    NO. 2018-K-0915
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


text:
    STATE of Louisiana v. Robert Earl BASS, Jr.
    NO. 2018-K-0939
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


text:
    STATE of Louisiana v. Kendrick Damone HARRISON
    NO. 2018-K-1110
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.
   GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    Travis HIGGINS v. WILLIAMS ENERGY PARTNER, L.P., Williams Olefins, L.L.C., the Williams Company, Inc., XYZ Insurance Company, Chicago Bridge and Iron Company, and X Insurance Company
    Artie Hudson, Jeffery D. Wells v. Williams Olefins Development, L.L.C., et al
    Emile Wade and Patricia Wade v. The Williams Companies, Inc., et al.
    Leroy Mitchell v. Williams Companies, Inc., et al. v. Mark Bateast, Terrence Crosby, Blake Joseph, Tyrone Lawson, Alvin Long, Jr., Cheri Owens-Griffin, Mary Robinson, Bernard Sears, Aaron Stafford, Donitello Thomas,
    Calvin Vanner, Donald Wheaton, Asiag Williams, Marcus Wilson and Marcus Yates v. The Williams Companies, Inc., et al.
    No. 2019-C-0049
    Supreme Court of Louisiana.
    March 6, 2019
    Granted. The district court's judgment and the decision of the court of appeal are reversed, because there remain genuine issues of material fact as to whether the defendant is liable to this plaintiff as the result of an intentional act pursuant to La. Rev. Stat. 23:1032(B). See La. Code Civ. Proc. art. 966(D)(1). The matter is remanded to the district court for further proceedings.


text:
    STATE of Louisiana v. Teddy AGUILLARD
    NO. 2018-K-1207
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 18-PDB-055
    NO. 2018-OB-2097
    Supreme Court of Louisiana.
    March 6, 2019
    Leave to appeal denied.


text:
    STATE of Louisiana v. Anthony HINGLE
    NO. 2018-KP-1421
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


text:
    STATE EX REL. Nathaniel PAYTON v. STATE of Louisiana
    NO. 2017-KH-1893
    Supreme Court of Louisiana.
    March 6, 2019
    Not considered. See La.S.Ct.R. IX, § 6.


author: GENOVESE, J., would grant.

text:
    STATE of Louisiana v. Jerraud CARTER
    NO. 2019-KK-0056
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.
   GENOVESE, J., would grant.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Okyeame WOODARD
    NO. 2018-KH-1005
    Supreme Court of Louisiana.
    March 6, 2019
    Not considered. See La.S.Ct.R. IX, § 6.
   CRICHTON, J., recused.


text:
    STATE of Louisiana v. Cecilio A. ROMERO
    NO. 2018-K-0416
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


author: HUGHES, J., would grant.

text:
    Reginald MIMS v. METROPOLITAN PLANNING COMMISSION, City of Shreveport, and ABC Insurance Company
    NO. 2019-CC-0071
    Supreme Court of Louisiana.
    March 6, 2019
    Not considered in part; denied in part. Insofar as relator seeks review of the August 23, 2018 and October 23, 2018 judgments of the court of appeal, the application is not timely and is not considered. See Supreme Court Rule X, § 5. In all other respects, the application is denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Anton Caron COOLEY
    NO. 2018-KO-1160
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


text:
    STATE of Louisiana v. Pharaoh BRAZELL
    NO. 2018-KO-0868
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


text:
    SENIOR'S CLUB LLC /SENIORS CLUB ADHC AND PCA CENTER, Mr. T.J. McCoy, Jr. and Mrs. Karen McCoy v. STATE of Louisiana, THROUGH the DEPARTMENT OF HEALTH AND HOSPITALS, et al.
    NO. 2019-CC-0075
    Supreme Court of Louisiana.
    March 6, 2019
    Not considered. Not timely filed. See Louisiana Supreme Court Rule X, § 5.


author: WEIMER, J., would grant.

text:
    STATE of Louisiana v. Lamont LYLES
    NO. 2018-KP-1798
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.
   WEIMER, J., would grant.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Brandon Rashad MARTIN
    NO. 2018-KO-0568
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


text:
    STATE of Louisiana v. Tommie ANDERSON
    NO. 2018-K-0738
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


author: GUIDRY, J., recused.

text:
    Clyde PRICE and His Wife Mary Price v. CHAIN ELECTRIC COMPANY and Entergy Corporation and/or its Affiliate
    NO. 2019-00003
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.
   GUIDRY, J., recused.

HUGHES, J., would grant.


text:
    BANNISTER PROPERTIES, INC. v. STATE of Louisiana
    Southold Properties Inc. v. State of Louisiana
    Southold Properties Inc. v. State of Louisiana
    Bannister Properties, Inc. v. State of Louisiana
    NO. 2019-C-0025
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.
   WEIMER, J., would grant.


text:
    Nicole T. JONES v. LANE REGIONAL MEDICAL CENTER and Kendrick Carter
    NO. 2019-CC-0051
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.
    CLARK, J., would grant and proceed in accordance with La.C.Civ.P. art. 966(H).
    CRICHTON, J., would grant and proceed in accordance with La.C.Civ.P. art. 966(H).
   GENOVESE, J., would grant and proceed in accordance with La.C.Civ.P. art. 966(H).


text:
    James M. SONIAT v. CROWN BUICK & RISK MANAGEMENT SERVICES
    NO. 2019-00058
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.
   GUIDRY, J., recused.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    Aylin MAKLANSKY v. Steven MAKLANSKY
    NO. 2019-CC-0060
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


text:
    Terese LANDRY v. JOEY'S, INC. d/b/a Joey's Specialty Food
    NO. 2019-C-0072
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


text:
    STATE of Louisiana IN the INTEREST OF C.D. & C.D.
    NO. 2019-CJ-0120
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


text:
    Amber Lynn Lange FRAZIER v. Shelton Lundra FRAZIER
    NO. 2019-CJ-0129
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


text:
    Elizabeth SOILEAU v. WAL-MART STORES, INC.
    NO. 2019-C-0040
    Supreme Court of Louisiana.
    March 6, 2019
   Granted. See Order Attached.

Attachment

SUPREME COURT OF LOUISIANA

No. 2019-C-0040

ELIZABETH SOILEAU

VERSUS

WAL-MART STORES, INC

On Writ of Certiorari and/or Review Office of Workers' Compensation, No. 10-04116, District 4; Court of Appeal, Third Circuit, No. 18-284.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit- "It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.

Witness the Honorable Justices of the Supreme Court of the State of Louisiana, on this 6th day of March, in the year of our Lord, Two Thousand-Nineteen.

John Tarlton Olivier

Clerk of Court


text:
    STATE of Louisiana v. Grover D. CANNON
    NO. 2019-KH-0193
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


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

text:
    STATE of Louisiana IN the INTEREST OF A.T.
    NO. 2019-CJ-G222
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    Terry GOTCH v. SCOOBY'S ASAP TOWING, LLC, et al.
    No. 2019-C-0030
    Supreme Court of Louisiana.
    March 6, 2019
   Granted. See Order Attached.

Attachment

SUPREME COURT OF LOUISIANA

NO. 2019-C-0030

TERRY GOTCH

VS.

SCOOBY'S ASAP TOWING, LLC, ET AL.

On Writ of Certiorari and/or Review

Fifteenth Judicial District Court, Parish of Lafayette,

No. 2014-495, Division I;

Court of Appeal, Third Circuit, No. 18-355.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit- "It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.

Witness the Honorable Justices of the Supreme Court of the State of Louisiana, on this 6th day of March, in the year of our Lord, Two Thousand-Nineteen.

John Tarlton Olivier

Clerk of Court

/s/

Deputy Clerk of Court


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINK COMPANY, L.L.C., et al.
    NO. 2019-CD-0399
    Supreme Court of Louisiana.
    March 14, 2019
    Stay denied. Writ denied.


text:
    CROSSTEX ENERGY SERVICES, et al. v. TEXAS BRINE COMPANY, L.L.C., et al.
    NO. 2019-CD-0402
    Supreme Court of Louisiana.
    March 14, 2019
    Stay denied. Writ denied.


text:
    David O. JACOBSON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-CI-0521
    Supreme Court of Louisiana.
    March 13, 2019
    Denied.


text:
    Raul-Alejandro RAMOS v. Andrew LE and La Rouge Properties
    NO. 2019-C-0067
    Supreme Court of Louisiana.
    March 6, 2019
    Denied.


text:
    STATE of Louisiana v. Wayne THORNTON
    NO. 2019-KK-0387
    Supreme Court of Louisiana.
    March 15, 2019
    Stay denied. Writ denied.


text:
    PONCHARTRAIN NATURAL GAS SYSTEM, k/d/s Promix, LLC, Andacadian Gas Pipline System v. TEXAS BRINE COMPANY, L.L.C., et al.
    NO. 2019-CD-0403
    Supreme Court of Louisiana.
    March 14, 2019
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Phillip DOMINICK
    NO. 2019-KK-0322
    Supreme Court of Louisiana.
    March 14, 2019
    Denied.


author: WELCH, J.

text:
    LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY v. David Scott BURKETT, Ashley Burkett, and Shelter Mutual Insurance Company
    2018 CA 0468
    Court of Appeal of Louisiana, First Circuit.
    JUDGMENT RENDERED: NOVEMBER 02, 2018
    Craig J. Robichaux, Ryan G. Davis, Mandeville, Louisiana, Attorneys for Appellant, Plaintiff - Louisiana Farm, Bureau Casualty Insurance Company
    Stephen F. Butterfield, Brent E. Kinchen, Baton Rouge, Louisiana, Attorneys for Appellees, Defendants - David Scott Burkett, Ashley Burkett, and Shelter Mutual Insurance Company
    Before: Pettigrew, Welch, and Chutz, JJ.
   WELCH, J.

The plaintiff, Louisiana Farm Bureau Casualty Insurance Company ("Farm Bureau"), appeals from a judgment of the trial court granting summary judgment in favor of the defendants-Shelter Mutual Insurance Company ("Shelter") and its insureds, Ashley Burkett and David Scott Burkett ("Burketts")-that dismissed all of Farm Bureau's claims, with prejudice. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

This matter arises out of an automobile accident that occurred on December 13, 2015, when a 2013 Mercedes Benz GLK 350 operated by Katherine Burkett and insured by Shelter, collided with a 2014 Chevrolet Craze operated by Jessica Hall and insured by Farm Bureau. As a result of the accident, Ms. Hall sustained injuries and sought medical treatment. Pursuant to the terms of Ms. Hall's auto policy, Farm Bureau paid Ms. Hall a $5,000.00 medical payment and thereupon, became subrogated to Ms. Hall's claim for up to $5,000.00. See Egros v. Pempton, 606 So.2d 780, 784 (La. 1992). The policy provides: "If we make any payment under this policy and the person to or for whom payment is made has a right to recover damages from another, we shall be subrogated to that right. However, our right to recover is subordinate to the insured's right to be fully compensated."

On February 17, 2016, Farm Bureau notified Shelter of the $5,000.00 medical payment and its status as Ms. Hall's subrogee and requested reimbursement. Farm Bureau again notified Shelter of its subrogated interest, requesting reimbursement on July 11, 2016, and October 18, 2016.

After Farm Bureau notified Shelter of its subrogation claim, Ms. Hall instituted a personal injury action against Ashley Burkett-individually and on behalf of her minor daughter, Katherine Burkett-and Shelter on May 19, 2016, seeking damages for her injuries allegedly sustained as a result of the automobile accident. Farm Bureau did not intervene in that suit to collect the $5,000.00 medical payment it paid to Ms. Hall.

Thereafter, on December 12, 2016, Farm Bureau filed a petition for subrogation against Shelter and the Burketts, seeking recovery of the $5,000.00 medical payment it paid on behalf of its insured, Ms. Hall. Farm Bureau claimed that it was "subrogated, both conventionally and legally, to the rights of its insureds to recover medical payment made to or on behalf of its insured."

After Farm Bureau had notified Shelter of its subrogation claim and instituted the subrogation suit, Ms. Hall entered into a receipt and release agreement with Shelter for the sum of $53,500.00 on March 20, 2017, in full settlement of her personal injury claims. The language of that agreement stated that the amount was intended to cover any and all known damages (including property damage), physical injuries, medical payments, medical expenses, and claims of any type. The agreement also contained the following language:

Appearer further agrees to indemnify, hold harmless, and defend the released parties against and from all further claims, judgments, costs, expenses, and losses (including attorney's fees) by reason of or that may be made or asserted by her, or by anyone else on her behalf, because of any loss or expenses suffered as a result of the aforementioned incident. Such claims specifically include, but are not limited to, those by way of lien, indemnity, contribution, subrogation right, and/or assignment, asserted or claimed by any third party on account of benefits or services that have been or may be provided to or for Appearer as a result of the alleged incident described above, or otherwise. It is the intention of Appearer to release and hold harmless the released parties from all liens, encumbrances, debts, or obligations which are now or may be hereafter filed or asserted in connection with any expenses incurred by or on behalf of Appearer. Appearer hereby represents that she will defend and hold harmless the released parties from any such liens or interventions which have been or may be asserted by any person or entity.

Following settlement, Shelter and the Burketts filed a motion for summary judgment in the subrogation suit instituted by Farm Bureau, arguing that Ms. Hall's receipt and release agreement with Shelter released the defendants from any and all liability for Ms. Hall's personal injury claims, including medical payments and medical expenses. Farm Bureau opposed the motion, to which the defendants filed a reply. Following a hearing, the trial court granted summary judgment in favor of Shelter and the Burketts, dismissing all of Farm Bureau's claims, with prejudice, and signed a judgment in accordance therewith on December 28, 2017. Farm Bureau now appeals.

LAW AND DISCUSSION

Farm Bureau argues that the trial court erred by granting summary judgment in favor of Shelter and the Burketts after ruling that the receipt and release agreement executed by Ms. Hall released the defendants' obligations to Farm Bureau, despite the fact that the defendants had notice of Farm Bureau's subrogated interest well before the settlement with Ms. Hall.

A summary judgment is reviewed on appeal de novo , with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. , whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3) ; Turner v. Rabalais, 2017-0741 (La. App. 1 Cir. 12/21/17), 240 So.3d 251, 255, writ denied, 2018-0123 (La. 3/9/18), 237 So.3d 1193.

The burden of proof to show that no material factual issues exist is on the mover. However, if the mover will not bear the burden of proof at trial, the mover is not required to negate all essential elements of the adverse party's claim. Rather, the mover must point out to the trial court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, 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. See La. C.C. P. art. 966(D)(1). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law applicable to the case.

Pumphrey v. Harris, 2012-0405 (La. App. 1 Cir. 11/2/12), 111 So.3d 86, 89.

Under the principle of subrogation, the insurer stands in the shoes of the insured and acquires the right to assert the actions and rights of the plaintiff. A. Copeland Enterprises, Inc. v. Slidell Mem'l Hosp., 94-2011 (La. 6/30/95), 657 So.2d 1292, 1298. The insurance policy in this case clearly states that State Farm is subrogated to the extent of the medical payments made to its insured. See Doucet v. Gayden, 2007-183 (La. App. 5 Cir. 10/16/07), 971 So.2d 382, 384. Under Louisiana law, a subrogated insurer has the same right as its insured to a direct action against liability insurers of third parties. See Home Ins. Co. v. Highway Ins. Underwriters, 222 La. 540, 62 So.2d 828 (1952). Farm Bureau had no obligation to intervene in Ms. Hall's personal injury claim. See Polk Chevrolet Co. v. Salario, 132 So.2d 115, 119 (La. App. 1 Cir. 1961).

In their motion for summary judgment, the defendants rely primarily on the Louisiana Supreme Court's holding in Audubon Ins. Co. v. Farr, 453 So.2d 232 (La. 1984) as support for their position that Ms. Hall's settlement deprived Farm Bureau of its subrogation claim. The question before the supreme court in Farr was whether a subrogee (Audubon Insurance Company) could recover the amount it paid to its insured (Donna M. Paul) from the tortfeasor's insurer (Allstate Insurance Company), despite a settlement subsequent to the subrogation. Farr, 453 So.2d at 233. In Farr, Audubon's insured settled with the defendants (the tortfeasor and his insurer) without Audubon's knowledge and before Audubon had placed the defendants on notice of its subrogated interest. The supreme court ruled that Audubon had no recourse against the defendants, holding that a settlement by the tortfeasor's insurer (Allstate Insurance Company) and the Audubon's insured "without knowledge or notice that the latter had assigned its claim" to Audubon barred suit by Audubon. Because Allstate had no notice of Audubon's subrogation rights, the supreme court held that Allstate could not be penalized for its good faith settlement with the Audubon's insured, Ms. Paul. Id. at 235. It was clear that the timing of notice was a critical factor as to whether a subrogee maintains its subrogation rights against the tortfeasors:

In this case, [Audubon's insured] transferred her rights against [the tortfeasor] to Audubon in exchange for $4412. She gave no notice to Allstate. Allstate's subsequent payment was therefore prior to any notice of the assignment, and its debt to [Audubon's insured] and/or Audubon was thereby discharged.

Id. at 236 (Dixon, C.J., concurring).

In addition to Farr, other courts have recognized that the timing of notice is paramount in determining whether a settlement agreement made by a tortfeasor and its insurer with the subrogee's insured discharges a subrogee's subrogated interest. See State Farm Mut. Auto. Ins. Co. v. Manuel, 608 So.2d 1065 (La. App. 3 Cir. 1992) (subrogee's insured and tortfeasor's insurer were solidary obligors with respect to the subrogee's reimbursement claim, since the tortfeasor's insurer had knowledge of the subrogation claim prior to its settlement with subrogee's insured); see also Provident Life and Acc. Ins. Co. v. Turner, 582 So.2d 250, 256 (La. App. 1 Cir. 1991) (The injured plaintiff settled her tort claim with tortfeasor's liability insurer (National Union) without notice to her health insurer (Provident) after both had received notice of Provident's subrogated interest for her medical expenses. Provident sued for reimbursement of medical expenses, and the court held that if the plaintiff and National Union had actual knowledge of Provident's subrogation claim, but nevertheless settled the underlying tort claim without notice to Provident and subsequently refused to reimburse it, the plaintiff and National Union would be solidary obligors with respect to Provident's claim for reimbursement.); Serpas v. Ridley, 556 So.2d 134 (La. App. 5 Cir. 1990) (where the victim settled with his uninsured motorist insurer and gave it a subrogation claim before the victim settled with the tortfeasor, the subrogation was valid as against the tortfeasor); State Nat. Fire Ins. Co. v. Sykes, 527 So.2d 589 (La. App. 3 Cir. 1988) (a subrogee is precluded from asserting its claim against the tortfeasor and his insurer after a settlement between them and the plaintiff/subrogor, only when the tortfeasor and his insurer were not aware of the subrogee's claim for reimbursement at the time of the settlement); Southern Farm Bureau Cas. Ins. Co. v. Sonnier, 406 So.2d 178, 181 (La. 1981) (a partial subrogee has an independent substantive right to proceed against the debtor; subsequent acts of the original creditor (such as a settlement agreement) have no prejudicial effect upon the partial subrogee's right to collect against its debtor.).

In the present matter, it is undisputed that the defendants were on notice of Farm Bureau's subrogated interest well before the settlement with Ms. Hall. That notice prevented the defendants from relying upon the subsequent settlement with Ms. Hall as a release of its liability to Farm Bureau. Farm Bureau, has an independent, substantive right to proceed against Shelter and the Burketts. Subsequent acts of the original creditor, i.e. , Ms. Hall and her execution of the receipt and release agreement with Shelter, had no prejudicial effect upon Farm Bureau's right to collect against the defendants. Furthermore, solidarity exists between the defendants and Ms. Hall as it relates to Farm Bureau's subrogated claim. See, e.g., Manuel, 608 So.2d at 1067. Thus, as solidary obligors, Farm Bureau may seek recovery from either the defendants or its insured, Ms. Hall. See La. C.C. art. 1795. Based on the foregoing, the trial court erred in granting summary judgment in favor of Shelter and the Burketts. Accordingly, we reverse.

DECREE

The trial court's December 28, 2017 judgment is reversed. We remand for further proceedings consistent with this opinion. All costs of this appeal are assessed to the defendants/appellees, David Scott Burkett, Ashley Burkett, and Shelter Mutual Insurance Company.

REVERSED AND REMANDED.

      The Farm Bureau policy, A T23168, had liability limits of $100,000.00 per person, $300,000.00 per accident.

      See Jessica Hall v. Ashley Burkett and Shelter Mutual Insurance Company, Docket Number 2016-1418, Division C, 21st Judicial District Court, Parish of Tangipahoa, State of Louisiana.


author: THERIOT, J.

text:
    In the MATTER OF the SUCCESSION OF Wilfred Joseph NAQUIN, Jr.
    NO. 2018 CA 0518
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 5, 2018
    Mark R. Callender, Baton Rouge, Louisiana, Counsel for Appellant, Wilfred James Naquin
    Kevin P. Landreneau, Johanna R. Landreneau, Baton Rouge, Louisiana, Counsel for Appellee, Elizabeth Naquin
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   THERIOT, J.

The appellant, Wilfred James Naquin, appeals the judgment of possession of the Nineteenth Judicial District Court in the Succession of Wilfred Joseph Naquin, Jr. For the following reasons, we reverse the judgment and remand to the district court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

The decedent, Wilfred Joseph Naquin, Jr., died testate on May 17, 2015. In his last will and testament, he named his two children, Wilfred James Naquin and Elizabeth Naquin, as the sole universal legatees and the independent co-executors of the entire estate. Wilfred and Elizabeth filed a petition to probate the will and to be confirmed as co-independent executors on October 28, 2015. An order of Probate and letters of co-independent administration was signed by the district court on November 2, 2015.

On April 28, 2017, Elizabeth filed a petition for possession and rule to show cause, claiming therein that no debts encumbered the estate, and no further administration was necessary, but that she and Wilfred had been unable to reach any agreement on the division of the estate property. Elizabeth further claimed that shortly after the decedent's death, Wilfred moved into the decedent's home with his family, living rent free. Elizabeth also alleged that Wilfred had been farming on the property and keeping all of the profits for himself. Elizabeth prayed that Wilfred show cause as to why he should not show an accounting of his use of the property and why he and Elizabeth should not be placed into possession of their legacies in accordance with the will. Elizabeth attached a sworn detailed descriptive list of the estate to her petition.

Wilfred filed an opposition to the petition for possession and rule to show cause on June 20, 2017, wherein he claimed that, in his capacity as co-legatee, he did not consent to the filing of the petition. He also claimed that he was continuing the operation of the farm as an unincorporated business that he had run with the decedent, in which they shared profits and losses equally. Wilfred further found discrepancies and inaccuracies in Elizabeth's sworn detailed descriptive list. He therefore filed a motion to traverse the sworn detailed descriptive list on October 4, 2017. As a result, Elizabeth filed an amended and supplemental sworn detailed descriptive list on October 31, 2017.

After a hearing on the petition for possession and rule to show cause, the district court signed a judgment of possession on December 5, 2017, putting Wilfred and Elizabeth into undivided, equal shares of the estate, and terminating the succession. The judgment also stated that Wilfred and Elizabeth waived their rights to demand a final accounting. It is from this judgment that Wilfred has appealed.

ASSIGNMENTS OF ERROR

Wilfred cites three assignments of error:

1. The district court erred as a matter of law in ordering an administered succession to possession at a contradictory hearing before homologation of a final tableau of distribution on the petition for possession of only one of the two legatees.
2. The district court erred as a matter of law in ordering a discharge of the succession representatives, including the duty to file a final accounting, upon payment of the unpaid debts without a waiver by all legatees.
3. The district court erred as a matter of law in ordering payment of "all unpaid administrative expenses of the Succession including attorney's fees, court costs and any other expenses as enumerated in the First Amending and Supplemental Sworn Detailed Descriptive List" outside of a tableau of distribution to determine the amount and/or appropriateness of each administrative expense in a contested succession.

DISCUSSION

It shall be the duty of a succession representative to close the succession as soon as advisable. La. C.C.P. art. 3197. Heirs have the right to terminate the executor's administration at any time they desire to do so upon complying with the requirements of the law. In re Succession of Chambers , 2014-1030 (La. App. 3 Cir. 3/4/15), 160 So.3d 584, 586, writ denied, 2015-0694 (La. 6/1/15), 171 So.3d 263.

Wilfred and Elizabeth filed a petition to probate the last will and testament jointly; however, only Elizabeth filed a petition for possession. In that petition, Elizabeth claimed that all the debts of the succession had been paid and no further administration was necessary. She also averred that she and Wilfred had not been able to agree upon division of the estate property. Wilfred argued in his opposition memorandum and at the hearing that his legal fees related to the succession were not included in the descriptive list, that the details of ownership in the immovable property had not been determined, and that all of the estate's liabilities had not been assessed. The record shows no demand on the succession by any creditor filed within one year of the date of the decedent's death, as required by La. R.S. 13:3721.

The procedural law applicable to the instant case relates to testate successions with multiple representatives. Louisiana Code of Civil Procedure article 3031(A) states, in pertinent part:

When a testament has been probated or given the effect of probate... the court may send all of the legatees into possession of their respective legacies without an administration of the succession, on the ex parte petition of all the general and universal legatees... and each of them accepts the succession, and none of the creditors of the succession has demanded its administration.

A tableau of distribution has neither been filed nor homologated in the instant case. When no tableau in a testate succession has been homologated, La. C.C.P. art. 3372 controls the manner in which legatees can be placed into possession of the estate. Louisiana Code of Civil Procedure article 3372 states:

At any time prior to the homologation of the final tableau of distribution, the legatees in a testate succession may be sent into possession of all or part of their respective legacies upon filing a petition for possession as provided in Articles 3031 through 3035, except that the proceeding shall be contradictory with the executor. Upon the filing of such a petition, the court shall order the executor to show cause why the legatees should not be sent into possession. If the legatees are sent into possession of a part of their respective legacies, the executor shall continue to administer the remainder. (Emphasis added).

As indicated by the emphasized language, La. C.C.P. 3372 authorizes a judgment of possession only when "the legatees" petition the court for possession. In re Succession of Cannon , 2014-0826 (La. App. 1 Cir. 3/25/15), 166 So.3d 1107, 1111. In the instant case, only one legatee, Elizabeth, has petitioned the court on behalf of both legatees to be placed into possession of the estate. The district court's placing all of the legatees into possession, when all legatees have not joined in the petition for possession, does not follow the procedure set forth in La. C.C.P. art. 3372.

We further note that the second order of the judgment states that the legatees were "discharged from their duties as Succession Representatives including any obligation the Succession Co-Independent Executors have to provide a final accounting." In the Louisiana Rules for Civil Proceedings in District Courts Rule 9.5 certification, counsel for Elizabeth acknowledged several objections by Wilfred to the judgment, including that he did not waive the final accounting or agree to termination of the administration. The objections in the Rule 9.5 certificate indicate that the legatees have not agreed to the proper distribution of the estate's assets, which completely contradicts the procedure clearly laid out by La. C.C.P. art. 3372.

The legatee's disagreements over the petition of possession, the discharge of administration, the final accounting, and the handling of unpaid debts (should there be any), all indicate to this Court that the district court prematurely put the legatees into possession. We therefore reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

DECREE

The judgment of possession dated December 5, 2017, rendered by the Nineteenth Judicial District Court is reversed, and the matter is remanded for further proceedings. All costs of this appeal are assessed to the appellee, Elizabeth Naquin.

REVERSED AND REMANDED.

      The decedent had four other children that he expressly excepted from inheritance.

      Elizabeth was living in South Carolina throughout the litigation.

      Also known as the "Dead Man's Statute," La. R.S. 13:3721 states:
      Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
      (1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
      (2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
      (3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
      (4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
      The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.